July 14, 2015

In Sherman v Town of Chester, 2015 WL 1473430 (SDNY 3/31/2015), Plaintiff, a real estate developer, initially filed suit in Supreme Court, Orange County, New York, alleging that the Town wrongfully obstructed his efforts to develop MareBrook, a 398 acre parcel of land he purchased in 2001. Plaintiff claimed that by implementing a series of amendments to the local zoning laws that specifically targeted his project, and otherwise engaging in conduct that frustrated his ability to commence development, the Town violated his rights to freedom of religion, freedom to petition, substantive due process, procedural due process, equal protection, and his right not to have his property taken without just compensation under the State and Federal constitutions.

After addressing Plaintiff’s takings claim, the Court addressed Plaintiff’s retaliation claim. The Circuit Court’s opinion that the Town “singled out Plaintiff’s development, suffocating him with red tape” over the course of a decade to “make sure he could never succeed in developing MareBrook,” was sufficient to show that the Defendants’ conduct was motivated by or substantially caused by [the plaintiff’s] exercise of speech. Evidence that the Town repeatedly refused the Plaintiffs’ requests to enforce Zoning Codes and ordinances over a nine-year period was sufficient to constitute a continuing violation.

However, the Court held that Plaintiff’s due process claims did not constitute a continuing violation because they were based on discrete acts by the Town that were readily discerned by Plaintiff at the time the acts were taken.

Therefore, the Court held that Defendants’ motion to dismiss was granted in part and denied in part.

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