11-2743-cv
Nenninger v. Village of Port Jefferson


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of January, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
                    Circuit Judges.

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DONALD NENNINGER, JR.,
                                 Plaintiff-Appellant,

                                 v.                                      No. 11-2743-cv

VILLAGE OF PORT JEFFERSON, PLANNING BOARD
OF THE INCORPORATED VILLAGE OF PORT
JEFFERSON, JAMES BURKE, Chairman, PHIL
SCHIAVONE, JENNIFER SIGLER, RAY DIBASE,
MARK BROSMAN, KEVIN KOUBEK, Individually and as
Director of Planning & Engineering of the Village of Port
Jefferson, WILLIAM RAU, Individually and as Village
Planner, and the Tax Assessor of the Village of Port
Jefferson, BRIAN HARTY,
                                 Defendants-Appellees.
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FOR APPELLANT:              William D. Wexler, John R. DiCioccio, Law Office of William
                            D. Wexler, North Babylon, New York.

FOR APPELLEES:              David H. Arntsen, Devitt Spellman Barrett, LLP, Smithtown,
                            New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Thomas C. Platt, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on June 23, 2011, is AFFIRMED.

       Plaintiff Donald Nenninger, Jr., appeals from an award of summary judgment on

various constitutional claims that he raises pursuant to 42 U.S.C. § 1983 against the Village

of Port Jefferson (“Village”) and individual members of the Village Planning Board.

Nenninger’s claims arise from defendants’ alleged (1) refusal to consider his renewed

application to subdivide real property zoned for single-family use, and (2) decision to hold

him liable for the cost of clearing debris from an undeveloped road (“Boulder Court”)

adjacent to his property. We review an award of summary judgment de novo, asking whether

the record evidence, viewed in the light most favorable to the non-moving party, raises a

genuine dispute of material fact requiring a trial. See Ramos v. Baldor Specialty Foods, Inc.,

, 558 (2d Cir. 2012); Fed. R. Civ. P. 56(a). Insofar as the district court based

its ruling on ripeness, we also review that determination de novo. See Connecticut v.

Duncan, 

, 112 (2d Cir. 2010). We assume the parties’ familiarity with the facts

and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm for substantially the reasons stated in the district court’s well-reasoned

memorandum and order.

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1.     Ripeness

       a.     Consideration of Subdivision Application

       Nenninger faults the district court’s determination that his due process and equal

protection claims against the Village for failing to consider his renewed application were

unripe for adjudication. See New York Civil Liberties Union v. Grandeau, 

,

130 (2d Cir. 2008) (discussing jurisdictional and prudential aspects to ripeness doctrine). We

are not persuaded.

       A land-use claim is not ripe until the relevant government entity takes “a final,

definitive position regarding how it will apply the regulations at issue to the particular land

in question.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,

, 191 (1985); accord Dougherty v. Town of N. Hempstead Bd. of Zoning

Appeals, 

, 88 (2d Cir. 2002) (applying requirement to due process and equal

protection claims). A property owner cannot claim to have received such a definitive

decision without “submitting at least one meaningful application” to the relevant government

entity for the relief sought. Murphy v. New Milford Zoning Comm’n, 

, 348 (2d

Cir. 2005).

       Here, the renewed subdivision application, considered by defendants at an October

24, 2006 planning meeting, was deemed incomplete for reasons promptly conveyed to

Nenninger. Indeed, Nenninger’s own consultant acknowledged at his deposition that the

application was incomplete. Nenninger contends that he subsequently submitted a completed

application, but he fails to adduce evidence to support this conclusory assertion. See

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Salahuddin v. Goord, 

, 272 (2d Cir. 2006) (observing that “factual statements

only in the parties’ briefs” cannot carry summary judgment burden); Holtz v. Rockefeller &

Co., 

, 74 (2d Cir. 2001) (disregarding contention not “supported by the portions

of the record cited . . . or by the record as a whole” on summary judgment). Although

Nenninger’s consultant states in his affidavit that “the application would not have been

placed on the final subdivision calendar had it not been complete,” Cramer Aff. ¶ 12, J.A.

1040; see generally Fed. R. Evid. 406 (allowing evidence of organizational practice to prove

occurrence in given instance), Cramer attests to no personal knowledge that the application

was so calendared, see Fed. R. Evid. 602. Instead, he references a March 7, 2007 letter from

Village Planner Rau to Nenninger, the text of which only confirms that the application was

incomplete and nowhere indicates that it was re-calendared. Indeed, no admissible evidence

refutes Rau’s deposition testimony that he “never put [the] application on the agenda.” Rau

Dep. 84, J.A. 199.

       Nenninger submits that, even if he cannot demonstrate submission of a completed

application, his claims falls within the narrow “futility” exception to ripeness requirements

that has been recognized where an agency “has dug in its heels and made clear that all such

applications will be denied.” See Murphy v. New Milford Zoning Comm’n, 402 F.3d at 349.

In fact, he does not qualify for that exception. Although defendants here indicated that even

a completed application would not be calendared until Nenninger cleared debris from

Boulder Court, this fact does not by itself compel a finding that the application inevitably

would be denied on its merits once the alleged violations were resolved. See id.; see also

                                             4
Southview Assocs., Ltd. v. Bongartz, 

, 99 (2d Cir. 1992) (denying futility

exception where environmental board’s initial decision left open possibility that “it would

be receptive to a[nother] subdivision proposal”).1

       In sum, Nenninger’s due process and equal protection claims relating to the

subdivision proposal were properly dismissed as unripe.2

       b.     Tax Lien

       Insofar as Nenninger bases his due process and equal protection claims on the

Village’s threat to enforce a tax lien on his property in the amount it expended to clear debris

from Boulder Court, he does not—and cannot—dispute that no such lien ever was placed on

his property nor any such cleanup costs added to his tax bill. On this record, the district court

correctly held that any challenge to these hypothetical future events was too speculative to

be ripe for adjudication. See generally City of Los Angeles v. Lyons, 

, 105


       1
         Notably, Nenninger does not base his futility argument on the statement in Rau’s
March 7, 2007 letter that Nenninger’s 2006 application appeared identical to his 2003
application, which was denied, presumably because that denial, reached after a full agency
hearing and judicial review, would independently defeat Nenninger’s § 1983 due process
claims with respect to an identical application.
       2
         To the extent Nenninger argues that a failure to rule on his application—complete
or incomplete—denied him procedural due process, the claim fails in any event because
Nenninger was free to bring an Article 78 mandamus proceeding in New York State court.
See Housing Opportunities Made Equal, Inc. v. Pataki, 

, 889, 

, 217 (4th Dep’t 2000) (noting courts’ power to “grant[] mandamus to compel hearings”
(internal quotation marks omitted)); see also New York State Nat’l Org. for Women v.
Pataki, 

, 168 (2d Cir. 2001) (holding that availability of Article 78 mandamus
proceeding forestalled procedural due process concerns arising from delay in processing
administrative complaints). Having failed to avail himself of that remedy, Nenninger cannot
now be heard to complain of a denial of procedural due process.

                                               5
(1983) (requiring plaintiff to show “real and immediate threat” of official action to establish

justiciable case or controversy); Simmonds v. INS, 

, 357 (2d Cir. 2003) (stating

that ripeness requirement allows courts “to avoid becoming embroiled in adjudications that

may later turn out to be unnecessary”).

       To the extent Nenninger suggests his due process rights were violated by Village

Director of Planning and Engineering Koubek’s holding him responsible without a hearing

for the cost of removing the debris, the claim fails for lack of evidence that Koubek or any

other defendant enforced this responsibility to Nenninger’s detriment. See, e.g., Zinermon

v. Burch, 

, 125 (1990) (reiterating that first step in due process analysis is

identifying “deprivation by state action of a constitutionally protected interest”). While the

Village has now commenced legal proceedings against Nenninger to recover the cleanup

costs, an event that prompts his retaliation claim, Nenninger does not maintain that these

proceedings afford him inadequate process.

       Accordingly, Nenninger’s § 1983 claim regarding the tax lien was properly dismissed.

2.     Remaining Claims

       Because Nenninger’s due process and equal protection claims—whether charged

against defendants individually or as members of a conspiracy—were correctly dismissed,

we need not consider the other grounds relied on by the district court in concluding that

Nenninger’s conspiracy claim failed as a matter of law. We affirm judgment in favor of

defendants on Nenninger’s retaliation claim for the reasons stated by the district court.



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The judgment of the district court is AFFIRMED.

                          FOR THE COURT:
                          CATHERINE O’HAGAN WOLFE, Clerk of Court




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