15-797-cv
Safe Harbor Retreat LLC v. Town of East Hampton
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of October, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 GEOFFREY W. CRAWFORD,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 SAFE HARBOR RETREAT LLC,
14 Plaintiff-Appellant,
15
16 -v.- 15-797-cv
17
18 TOWN OF EAST HAMPTON, NEW YORK, TOWN
19 OF EAST HAMPTON ZONING BOARD OF
20 APPEALS,
21 Defendants-Appellees.
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23
*
Judge Geoffrey W. Crawford, of the United States
District Court for the District of Vermont, sitting by
designation.
1
1 FOR APPELLANT: Joseph N. Campolo, Campolo
2 Middleton & McCormick LLP,
3 Ronkonkoma, New York.
4
5 FOR APPELLEES: Brian S. Sokoloff and Anthony F.
6 Cardoso, Sokoloff Stern LLP,
7 Carle Place, New York.
8
9 Appeal from an order of the United States District
10 Court for the Eastern District of New York (Wexler, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the order of the district court be
14 AFFIRMED.
15
16 Safe Harbor Retreat LLC (“Safe Harbor”) appeals from
17 the order of the United States District Court for the
18 Eastern District of New York (Wexler, J.) dismissing without
19 prejudice its complaint against the Town of East Hampton
20 (“East Hampton”) and the Town of East Hampton Zoning Board
21 of Appeals (“Zoning Board”). The court held that it lacked
22 subject matter jurisdiction. We assume the parties’
23 familiarity with the underlying facts, the procedural
24 history, and the issues presented for review.
25
26 This appeal arises out of a land-use dispute between
27 Safe Harbor, the owner and operator of an “executive retreat
28 for individuals recovering from alcohol and drug addiction,”
29 Appellant Br. at 4, and the town and its zoning authority.
30 Before Safe Harbor opened, East Hampton’s building inspector
31 granted it a reasonable accommodation to operate in a
32 residential area, as the functional equivalent of a family.
33 The building inspector later determined that Safe Harbor
34 needed to apply for a special permit because it was a semi-
35 public facility, not the functional equivalent of a family
36 entitled to a reasonable accommodation. Safe Harbor
37 appealed this decision to the Zoning Board, which affirmed.
38 The Zoning Board concluded that Safe Harbor was not entitled
39 to a reasonable accommodation and that it needed to apply
40 for a special permit to operate its facility on its
41 property.
42
43 Safe Harbor brought claims against East Hampton and the
44 Zoning Board for violations of the Americans with
2
1 Disabilities Act (“ADA”) and Fair Housing Act (“FHA”). The
2 district court concluded that it lacked subject matter
3 jurisdiction over Safe Harbor’s claims because the claims
4 were unripe.
5
6 We review de novo the dismissal of a complaint for lack
7 of subject matter jurisdiction on ripeness grounds. Kurtz
8 v. Verizon New York, Inc., 758 F.3d 506, 511 (2d Cir. 2014).
9 “Because ripeness is a jurisdictional inquiry, landowners
10 bringing zoning challenges must meet the high burden of
11 proving that we can look to a final, definitive position
12 from a local authority to assess precisely how they can use
13 their property before this Court may entertain their
14 claims.” Sunrise Detox V, LLC v. City of White Plains, 769
15 F.3d 118, 121 (2d Cir. 2014) (quoting Murphy v. New Milford
16 Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005))
17 (alterations and quotation marks omitted). “[A] plaintiff
18 alleging discrimination in the context of a land-use dispute
19 is subject to the final-decision requirement unless he can
20 show that he suffered some injury independent of the
21 challenged land-use decision.” Id. at 123. However, a
22 landowner “will be excused from obtaining a final decision”
23 if doing so “would be futile”; that is, “when a zoning
24 agency lacks discretion to grant variances or has dug in its
25 heels and made clear that all such applications will be
26 denied.” Murphy, 402 F.3d at 349.
27
28 1. Safe Harbor’s claims were not ripe because it
29 failed to apply for the special permit that both the
30 building inspector and Zoning Board identified as the
31 appropriate avenue for obtaining the town’s permission to
32 operate its facility on its property. The Zoning Board’s
33 decision was final as to whether Safe Harbor is the
34 functional equivalent of a family or a semi-public facility,
35 but not as to whether it could operate at all at its chosen
36 location. The salient issue from the ripeness perspective,
37 however, is whether East Hampton and the Zoning Board will
38 permit Safe Harbor to use its land in its desired way, i.e.,
39 by running an “executive retreat for individuals recovering
40 from alcohol and drug addiction,” Appellant Br. at 4. See
41 Murphy, 402 F.3d at 347 (holding that ripeness requires a
42 “final, definitive position from a local authority to assess
43 precisely how [a landowner] can use [his] property”
44 (emphasis added)). For this reason, both Sunrise Detox and
3
1 Murphy emphasized that the landowner did not appeal the
2 adverse decision (as to the first ground for obtaining town
3 authorization) or seek a variance (as an alternative). Id.
4 at 348; Sunrise Detox, 769 F.3d at 124.
5
6 Safe Harbor is correct that “[t]he door has definitely
7 closed on the issue of whether [East Hampton] will treat
8 Safe Harbor’s residents as the functional equivalent of a
9 family.” Appellant Br. at 33-34. However, when there is
10 another, perfectly good door nearby with the sign “special
11 permit,” Safe Harbor must try to open it before running to
12 federal court. Safe Harbor has failed to apply for the
13 special permit as a semi-public facility, notwithstanding
14 the building inspector’s and Zoning Board’s invitations that
15 it do so. Safe Harbor thus “deprive[d] us of any certainty
16 as to what use of [its] property would be permitted.”
17 Murphy, 402 F.3d at 353.
18
19 2. The district court properly concluded that Safe
20 Harbor’s intentional discrimination and retaliation claims
21 were also unripe. Safe Harbor does not allege any “injury
22 independent of the challenged land-use decision” that would
23 warrant a departure from the final-decision requirement.
24 Sunrise Detox at 123. Safe Harbor’s grievance arises solely
25 from East Hampton’s and the Zoning Board’s determinations
26 that it does not satisfy one possible basis for operating
27 its facility on its property. Safe Harbor also does not and
28 cannot plausibly allege that East Hampton’s zoning policies
29 are discriminatory on their face or that East Hampton is
30 manipulating its zoning process with a discriminatory animus
31 to avoid rendering a final decision. At most, Safe Harbor
32 alleges that animus towards wealthy, “transient”
33 individuals, combined with negative press coverage of Safe
34 Harbor, influenced the building inspector and Zoning Board
35 to deny the reasonable accommodation. Such an allegation is
36 far from sufficient to satisfy the independent injury
37 requirement.
38
39 3. Safe Harbor has not alleged facts to support its
40 claim that applying for the special permit would be futile.
41 Like in Sunrise Detox, Safe Harbor’s failure to apply for
42 the special permit prevents us from determining whether East
43 Hampton and, by extension, the Zoning Board “ha[ve] dug in
44 [their] heels and made clear that all such applications will
4
1 be denied.” Sunrise Detox, 769 F.3d at 124 (quoting Murphy,
2 402 F.3d at 349); see also Nenninger v. Vill. of Port
3 Jefferson, 509 F. App’x 36, 39 (2d Cir. 2013) (holding that
4 futility requires a “finding that the application inevitably
5 would be denied on its merits”). Here, both the building
6 inspector and Zoning Board informed Safe Harbor of the
7 alternative avenue of applying for a special permit as a
8 semi-public facility to continue operating the facility on
9 the current property. Safe Harbor argues that requiring it
10 to pursue a second ground for operating its facility on its
11 property will allow East Hampton and the Zoning Board to
12 erect multiple hurdles that Safe Harbor must surmount before
13 establishing finality. We see no such abuse.
14
15 For the foregoing reasons, and finding no merit in Safe
16 Harbor’s other arguments, we hereby AFFIRM the order of the
17 district court.
18
19 FOR THE COURT:
20 CATHERINE O’HAGAN WOLFE, CLERK
21
5