Sobel v. Derry, NH

2011 DNH 132

Opinion

Sobel v. Derry, NH 10-CV-592-SM 08/24/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jonathan W. Sobel, Trustee, Plaintiff

v. Case No. 10-cv-592-SM Opinion No. 2011 DNH 132 Town of Derry, New Hampshire, Defendant

O R D E R

Plaintiff, Jonathan Sobel, brought suit in state court to

challenge a zoning decision by the defendant. Town of Derry.

Among other claims, Sobel asserted that the zoning decision

amounted to an unlawful taking of his property, in violation of

his federal constitutional rights. The Town removed the case to

this court, invoking its federal question jurisdiction. 28

U.S.C. § 1331. The court requested briefing on a preliminary

issue — whether plaintiff's unripe federal claims require

dismissal and/or remand. Having considered the parties'

arguments, the court dismisses the federal claims and remands the

state law claims.

Federal claims that challenge state zoning decisions, like

those Sobel asserts here, are not ripe if the "government entity

charged with implementing the [zoning] regulations" has not

"reached a final decision." Williamson Ctv. Reg'1 Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 187-88

(1985). There is no "final decision" when the plaintiff has not

sought a zoning variance. .Id. at 188-90. Here, Sobel concedes

that he has not sought a zoning variance. His federal claims,

therefore, are not ripe and are necessarily dismissed, albeit

without prejudice. See Pennichuck Corp. v. City of Nashua, Case

No. Civ. 04-18 7-JD, 2004 WL 2030282, at *3 (D.N.H. Sept. 13,

2004) (dismissing unripe federal claims without prejudice for

failure to pursue state remedies). See also Anderson v.

Chamberlain, 134 F. Supp. 2d 156, 161 (D. Mass. 2001) (remanding

zoning challenge because complaint did not allege satisfaction of

Williamson's state litigation requirement) (citing Viqueira v.

First Bank, 140 F.3d 12, 17 (1st Cir. 1998)).

"Given that this case is 'at an early stage in the

litigation,'" the court declines to exercise supplemental

jurisdiction over Sobel's state law claims, and, therefore does

not address the validity of those claims. DePoutot v. Raffaellv,

Case No. Civ.04-38-SM, 2005 WL 515853, at *10 (D.N.H. March 3,

2005) (quoting Camelio v. Am. Federation, 137 F.3d 666, 672 (1st

Cir. 1998)). See also Pennichuck, 2004 WL 2030282, at *3

(remanding state inverse condemnation claims).

2 For the reasons stated, plaintiff's federal claims are

dismissed without prejudice as unripe. Plaintiff's state law

claims are remanded to state court.

SO ORDERED.

Stfeven J./McAuliffe Chief Judge

August 24, 2 011

cc: Corey M. Belobrow, Esq. Edmund J. Boutin, Esq. Sumner F. Kalman, Esq. Lynne G. Sabean, Esq. Thea S. Valvanis, Esq.