March 21, 2022

On March 21, 2022, DSB obtained an Order from the United States Supreme Court denying certiori in the matter of Vanderveer v. ZBA of the Town of East Hampton. Mr. Vanderveer was the owner of a mostly vacant approximately 4 acre parcel of land that he claimed had historically been used for commercial outdoor storage, but his Town declined his request to recognized a legally pre-existing non-conforming (i.e. grandfathered) use. He challenged whether the informal procedures used by zoning boards throughout New York State, wherein the rules of evidence do not apply and cross-examination can be allowed by the board but is not automatically permitted as-of-right, comport with the Due Process Clause; whether by not recognizing grandfathered rights more easily the state and local governments violated the Takings Clause; and also argued that he had been treated differently than other property owners under similar circumstances, in violation of the Equal Protection Clause. DSB had successfully obtained dismissal of the complaint as a matter of law via a pre-answer motion to dismiss before the Eastern District of New York, which was then upheld by the Second Circuit Court of Appeals. Mr. Vanderveer sought to have the matter reviewed by the United States Supreme Court by arguing, among other things, that it raised important questions of federal law, offered an opportunity for the Court to clarify the impact of its recent Takings Clause cases, and identified a possible split between the Second Circuit (NY, CT, VT) and the Seventh Circuit (IL, IN, WI) regarding how specific a complaint must be before an Equal Protection Clause is allowed to proceed to discovery. The Justices conferenced the matter on March 18, 2022, and declined to hear the case.