17‐769‐cv
Obsession Sports Bar & Grill, et al. v. City of Rochester
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
TO 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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 20th day of December, two thousand
4 seventeen.
5
6 PRESENT: GERARD E. LYNCH,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 CHRISTINA REISS,
10 Chief District Judge.*
11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12 OBSESSION SPORTS BAR & GRILL, INC., JOAN
13 C. ORTIZ,
14
15 Plaintiffs‐Appellants,
16
17 v. No. 17‐769‐cv
18
19 CITY OF ROCHESTER,
20
21 Defendant‐Appellee.
22 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
23
* Chief Judge Christina Reiss, of the United States District Court for the District of
Vermont, sitting by designation.
1
2 FOR APPELLANTS: MICHAEL A. BURGER (Tina M. Foster,
3 New York, NY, on the brief), Santiago
4 Burger Annechino LLP, Pittsford,
5 NY.
6
7 FOR APPELLEE: John M. Campolieto, for Brian F.
8 Curran, Corporation Counsel of the
9 City of Rochester, Rochester, NY.
10
11 Appeal from a judgment of the United States District Court for the Western
12 District of New York (Charles J. Siragusa, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the judgment of the District Court is AFFIRMED.
15 Obsession Sports Bar & Grill, Inc. and its owner, Joan C. Ortiz (collectively,
16 “Obsession”), appeal from a judgment of the District Court (Siragusa, J.)
17 dismissing their first amended complaint (“FAC”) against the City of Rochester
18 (the “City”) for failure to state a claim. We assume the parties’ familiarity with
19 the facts and record of the prior proceedings, to which we refer only as necessary
20 to explain our decision to affirm.
21 Obsession argues that the District Court erred in dismissing its substantive
22 due process claim. To state a substantive due process claim, Obsession was
23 required to show that the City’s enactment of its zoning regulation, Rochester
24 Municipal Code § 120‐34(O), was “arbitrary, conscience‐shocking, or oppressive
2
1 in the constitutional sense, not merely incorrect or ill‐advised.” Ferran v. Town
2 of Nassau, 471 F.3d 363, 370 (2d Cir. 2006) (quotation marks omitted). The
3 enactment of zoning regulations, even those in contravention of State law, does
4 not violate substantive due process unless the defendant engages in conduct “so
5 outrageously arbitrary as to constitute a gross abuse of governmental
6 authority[.]” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999); see
7 also Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 785 (2d Cir. 2007)
8 (government conduct “tainted with racial animus or fundamental procedural
9 irregularity” violates substantive due process (quotation marks omitted)). The
10 FAC does not allege that the enactment of section 120‐34(O) was motivated by
11 animus or accomplished through procedural irregularity. Nor does it otherwise
12 plausibly allege that the City acted in a manner that is arbitrary,
13 conscience‐shocking, or oppressive. That section 120‐34(O) was ultimately
14 invalidated by the New York State courts is insufficient, standing alone, to state a
15 substantive due process claim. See Ferran, 471 F.3d at 370; Natale, 170 F.3d at
16 263.
17 Obsession next argues that the District Court erred in dismissing its
18 procedural due process claim. We conclude that the procedural due process
3
1 claim was properly dismissed for substantially the reasons stated by the District
2 Court in that part of its opinion addressing the claim on the merits. See
3 Obsession Sports Bar & Grill, Inc. v. City of Rochester, 235 F. Supp. 3d 461, 466–67
4 (W.D.N.Y. 2017). Obsession was not entitled to a pre‐deprivation hearing when
5 the City enacted and enforced section 120‐34(O), a “generally applicable zoning”
6 regulation. See Edelhertz v. City of Middletown, 714 F.3d 749, 750 (2d Cir. 2013).
7 We have considered Obsession’s remaining arguments and conclude that
8 they are without merit. For the foregoing reasons, the judgment of the District
9 Court is AFFIRMED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk of Court
4
Obsession Sports Bar & Grill v. City of Rochester
Combined Opinion