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Defendant-appellants/cross-appellees, Town of Blooming Grove and its Town Supervisor, Board, Building Inspector, Planning Board and Board of Zoning Appeals (collectively, "the Town") appeal from the amended portion of a judgment entered in the United States District Court for the Southern District of New York (Kram, J.). The action was brought under the provisions of 42 U.S.C. § 1983 (1988) ("section 1983") to redress the unconstitutional deprivation of a property right, a claim rejected in the jury verdict and the original judgment entered thereon. An amendment to the judgment declared a property right under state law. The amendment was based on a jury finding, in answer to one of the questions posed by the court in a special verdict form, that under New York law plaintiff-appellee/cross-appellant Marvin H. Greene held a vested property right to develop a 136-acre parcel of land he owned in Blooming Grove in a manner that did not conform with current town zoning regulations. Greene and Lake Anne Realty Corporation (collectively, "Greene"), a company of which Greene is the sole shareholder and officer, cross-appeal from the portion of the judgment, entered upon the jury verdict, determining that the Town had not unconstitutionally deprived them of any property right.

Each of the eight claims (designated as "causes of action" in Greene's complaint) originally pleaded by Greene was premised on the contention that the Town's use of its zoning powers to deny his applications for building permits constituted a deprivation of property without due process under section 1983. The third cause of action was based on the Town's amendment to its zoning ordinance in 1974. That amendment foreclosed Greene from using the undeveloped portion of his land for the extension of his existing bungalow colony. Although it was not contested that Greene had a right of nonconforming use as to the 123 bungalow units already built, the issue dividing the parties was whether his right had vested with respect to the planned expansion of the resort over the entire 136-acre parcel. Thus, in the third cause of action, Greene sought a declaration that he had "a valid vested right to improve [the] bungalow colony by the addition of an additional 419 units in accordance with the provisions of the [Town] zoning ordinance in force prior to the adoption of the Zoning Ordinance of 1974" and a direction that the Town issue him a permit to build the 419 units. The Town moved for summary judgment dismissing the complaint, which the district court granted. On appeal, we reversed and remanded as to that portion of the summary judgment dismissing Greene's third cause of action, finding a triable issue of fact as to "whether Greene's nonconforming bungalow colony use includes, as a matter of property right under New York law, the construction of the additional bungalow units." Greene v. Blooming Grove, 879 F.2d 1061, 1066 (2d Cir.1989) ("Greene I").

On this appeal, we hold that the district court erred in exercising jurisdiction over an unpleaded pendent claim to grant declaratory relief to Greene on an issue of state law after the jury had found for the Town on the federal claim and after the district court had entered a judgment, pursuant to the jury's special verdict, dismissing the entire complaint. Accordingly, we reverse the portion of the judgment granting declaratory relief. We affirm the portion of the judgment entered upon the jury verdict in favor of the Town upon the section 1983 claim.


935 F.2d 507 (1991)

Marvin H. GREENE and Lake Anne Realty Corp., Plaintiffs-Appellees, Cross-Appellants,


TOWN OF BLOOMING GROVE; Supervisor and Town Board of the Town of Blooming Grove; Building Inspector of the Planning Board of the Town of Blooming Grove; and Board of Zoning Appeals of the Town of Blooming Grove, Defendants-Appellants, Cross-Appellees.

Nos. 1200, 1377, Dockets 90-9025, 91-7043. United States Court of Appeals, Second Circuit.

Argued April 3, 1991. Decided June 10, 1991.

New York Law School location: File #1194, Box #127