Sunrise Detox v. City of White Plains, No. 13-2911 (2d Cir. 2014)

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Sunrise filed suit alleging intentional discrimination, disparate impact discrimination, and failure to grant a reasonable accommodation under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., after the commissioner determined that Sunrise's application for a special permit to establish a facility for individuals recovering for drug or alcohol addiction did not meet applicable zoning regulations. The court affirmed the district court's dismissal of the complaint based on lack of subject matter jurisdiction because the dispute was not ripe. In this case, Sunrise failed to pursue a variance or to appeal the commissioner's determination, and therefore, failed to obtain a final decision on the permit application. The court concluded that Sunrise's remaining arguments were without merit.

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13 2911 Sunrise Detox v. City of White Plains 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2013 (Argued: May 8, 2014 4 Decided: October 2, 2014) Docket No.13 2911 5 6 7 8 Sunrise Detox V, LLC, Plaintiff Appellant, 9 v. 10 11 12 City of White Plains, City of While Plains Common Council, City of White Plains Department of Building, Defendants Appellees. 13 14 Before: JACOBS, SACK, and LYNCH, Circuit Judges. The plaintiff, a provider of medically supervised care for individuals 15 16 recovering from alcohol and drug abuse, sought permission to operate a 17 treatment facility in White Plains, New York. After a determination that the 18 facility did not meet applicable zoning regulations, the plaintiff brought this suit 19 under the Americans with Disabilities Act. The United States District Court for 20 the Southern District of New York (Vincent L. Briccetti, Judge) dismissed the 21 complaint for lack of subject matter jurisdiction, concluding that the plaintiff, by 22 declining to seek a variance or appeal the zoning decision, had failed to obtain a 1 1 final decision on its application. Because we reject the plaintiffÊ¹s argument that 2 its allegations of intentional discrimination relieve it from the final decision 3 requirement, the judgment of the district court is AFFIRMED. 4 JAMES K. GREEN, West Palm Beach, FL (Robert L. Schonfeld, Moritt Hock & Hamroff LLP, Garden City, NY, on the brief), for Plaintiff Appellant. 5 6 7 8 LALIT K. LOOMBA (Peter A. Meisels, John M. Flannery, on the brief), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for Defendants Appellees. 9 10 11 12 13 SACK, Circuit Judge: 14 Sunrise Detox V, LLC, applied for a special permit under the zoning 15 ordinance of White Plains, New York, to establish a facility for individuals 16 recovering from drug or alcohol addiction. In order to satisfy the zoning 17 regulations in force at its identified site, Sunrise sought to have its proposed 18 facility designated a Êºcommunity residence.Êº The commissioner of the cityÊ¹s 19 Department of Building determined that the facility did not qualify as a 20 community residence and that, as a result, the city could take no further action 21 on the application until Sunrise either applied for a variance or appealed the 22 determination. Instead, Sunrise brought this action alleging intentional 23 discrimination, disparate impact discrimination, and failure to grant a reasonable 2 1 accommodation in violation of the Americans with Disabilities Act (ÊºADAÊº), 42 2 U.S.C. § 12101 et seq. Because we conclude that the dispute is not ripe, we affirm 3 the judgment of the district court. BACKGROUND 4 5 Sunrise wants to establish a facility for individuals recovering from 6 addiction at 37 DeKalb Avenue, White Plains, New York, in a building that was 7 formerly used as a nursing home. Because the site is located in the cityÊ¹s R2 2.5 8 zoning district, SunriseÊ¹s proposed facility would have to qualify as a 9 Êºcommunity residenceÊº or a Êºdomiciliary care facilityÊº and be granted a special 10 permit from the cityÊ¹s Common Council in order to operate within the cityÊ¹s 11 zoning ordinance.1 The ordinance defines a Êºcommunity residenceÊº as 12 13 14 15 16 17 18 [a] residential facility for the mentally disabled operated pursuant to the New York State Mental Hygiene Law and regulations promulgated thereunder, including an alcoholism facility, a hostel, a halfway house and any other such facility as defined in such regulations, and any similar facilities operated under the supervision of federal departments and agencies. 19 City of White Plains, N.Y. Zoning Ordinance § 2.4 (1981) (hereinafter 20 ÊºOrdinanceÊº), available at http://www.cityofwhiteplains.com/index.aspx?nid=120 21 (last visited Oct. 1, 2014). The nursing homeÊ¹s establishment predated the current ordinance, and it was granted a special permit to continue operation as a Êºdomiciliary care facility.Êº 1 3 On June 15, 2012, Sunrise submitted its application for a special permit for 1 2 its proposed facility, which it styled a Êºcommunity residence,Êº to the city 3 Department of Building. See Ordinance § 6.3. In a cover letter, Sunrise stated 4 that the residence would Êºoperate as a short term, medically monitored facilityÊº 5 treating Êºadults who have a primary substance use disorder which requires 6 medical detoxification,Êº with a maximum capacity of 33 beds and an average 7 client stay of 5.7 days. J.A. 89, 90. Having Êºdetermined [the application] to be 8 complete,Êº Ordinance § 6.3, the commissioner of the Department of Building 9 forwarded SunriseÊ¹s proposal to the Common Council. The application was deemed Êºofficially submitted and receivedÊº at the 10 11 Common CouncilÊ¹s early July meeting and was then forwarded to the Planning 12 Board, in accordance with the procedures set out in the zoning ordinance. 13 Ordinance §§ 6.3, 6.4.1. The Planning Board unanimously recommended 14 approval Êºfor a period of one year,Êº finding that Êºthe proposed community 15 residence meets the special permit requirements of the zoning ordinance.Êº Letter 16 of Michael Quinn, Chairman, Planning Board, to Mayor and Common Council of 17 White Plains (July 27, 2012) (J.A. 177). The cityÊ¹s Department of Law also 18 reviewed the application, and a public hearing was set for September 4, 2012. 4 1 As public opposition to the facility mounted through the summer of 2012, 2 however, Sunrise sought to delay the hearing. After two adjournments and two 3 open sessions, the Common Council ended public hearings on December 3, 2012. 4 Sunrise then changed tack, writing to the mayor of White Plains and the 5 Common Council to Êºrequest[ ] a reasonable accommodation to treat SunriseÊ¹s 6 proposed use as a Ê¹Community Residence.Ê¹Êº Letter of Sunrise to Mayor and 7 Common Council of White Plains, at 1 (Dec. 19, 2012) (J.A. 119). At its next 8 meeting, the Common Council adopted a resolution permitting the letter to be 9 considered despite its late submission and allowing an additional two weeks for 10 public comment. The Common Council also referred the application back to the Planning 11 12 Board for reconsideration in light of SunriseÊ¹s letter. The board reiterated its 13 view that SunriseÊ¹s proposal met the ordinanceÊ¹s special permit requirements. 14 But local residents argued that the proposed facility did not qualify as a 15 Êºcommunity residence.Êº They asserted in letters submitted during the extended 16 public comment period that the proposed number of beds and short client stays 17 made the facility a short term inpatient treatment facility rather than a 18 community residence under state law. See N.Y. Mental Hyg. Law § 1.03(28) 5 1 (stating that a Êºcommunity residenceÊº Êºprovides . . . a homelike environment and 2 room, board and responsible supervision for the habilitation or rehabilitation of 3 individuals with mental disabilities as part of an overall service delivery systemÊº 4 but also Êºinclude[s] an intermediate care facility with fourteen or fewer 5 residentsÊº). 6 On February 27, 2013, after reviewing SunriseÊ¹s supplemented application, 7 the commissioner of the Department of Building issued a revised determination. 8 He noted that the department had Êºinitially concluded that the proposed facility 9 most closely matched the Ê¹Community ResidenceÊ¹ definitionÊº in the zoning 10 ordinance, but explained that the newly submitted information had led it to 11 reconsider. Letter from Damon A. Amadio, CommÊ¹r, DepÊ¹t of Bldg., to Mayor 12 and Common Council of White Plains, at 1 2 (Feb. 27, 2013) (J.A. 129 31). The 13 department, he wrote, had now determined that the services provided by Sunrise 14 were properly classified as ÊºCrisis Services,Êº so that the Êºclosest appropriate 15 zoning ordinance classification . . . [wa]s Hospitals or SanitariaÊº a use not 16 permitted in the R2 2.5 zone. Id. at 3 (J.A. 131). The commissioner informed 17 Sunrise that it would have to either seek a variance or appeal the departmentÊ¹s 6 1 determination to the Zoning Board of Appeals in order to proceed with its 2 application. Id.; see also Ordinance § 6.4.5.2. Sunrise did not seek relief from the Board of Appeals. Instead, it filed this 3 4 lawsuit on March 11, 2013, alleging that the city intentionally discriminated 5 against it and its prospective clients; that the commissionerÊ¹s interpretation of 6 Êºcommunity residenceÊº disparately impacted Sunrise and its prospective clients; 7 and that the city failed to offer a reasonable accommodation by allowing 8 SunriseÊ¹s proposed use of the property. Sunrise filed a motion for a preliminary injunction on March 20, 2013. On 9 10 April 30, 2013, the city cross moved to dismiss the complaint pursuant to Rule 11 12(b)(1). Oral argument was held on July 8, 2013. At the close of argument, the 12 district court (Vincent L. Briccetti, Judge) dismissed the case for lack of subject 13 matter jurisdiction, concluding that SunriseÊ¹s claims were unripe for adjudication 14 by the court because they presented Êºa zoning dispute as to which there has been 15 no final determination.Êº Tr. of Oral Argument at 63, Sunrise Detox V, LLC v. City 16 of White Plains, No. 13 Civ. 1614 (VB) (S.D.N.Y. July 8, 2013) (relying on Murphy v. 17 New Milford Zoning CommÊ¹n, 402 F.3d 342 (2d Cir. 2005)). The district court also 18 concluded that the futility exception to the final determination requirement did 7 1 not apply because Sunrise had shown neither that the Board of Appeals lacked 2 jurisdiction to grant a variance or to reverse the commissionerÊ¹s determination, 3 nor that the Board of Appeals had Êºdug in its heels and made clear that all such 4 applications will be denied.Êº Id. at 64. Judgment was entered on July 10, 2013. 5 Sunrise appeals, arguing that the dispute is ripe for adjudication and that 6 the city violated the ADA by intentionally discriminating against its prospective 7 clients and failing to make a reasonable accommodation.2 DISCUSSION 8 This Court reviews de novo the dismissal of a complaint under Rule 9 10 12(b)(1). Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013). The district courtÊ¹s 11 determination that an issue is not ripe is also reviewed de novo. United States v. 12 Broadcast Music, Inc., 275 F.3d 168, 178 (2d Cir. 2001). 13 Because Êº[r]ipeness is a jurisdictional inquiry,Êº landowners bringing 14 zoning challenges must meet Êºthe Ê¹high burdenÊ¹ of proving that we can look to a 15 final, definitive position from a local authority to assess precisely how they can 16 use their propertyÊº before this Court may entertain their claims. Murphy, 402 17 F.3d at 347. Sunrise argues that this final decision requirement does not apply to Because its brief makes no argument regarding disparate impact, Sunrise has waived that issue on appeal. See Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009). 2 8 1 zoning challenges under the ADA based on allegations of intentional 2 discrimination because those Êºcause[] a uniquely immediate injuryÊº rendering 3 such claims Êºripe from the act of discrimination.Êº AppellantÊ¹s Br. 22. In the 4 alternative, Sunrise contends that its suit is ripe either because the city 5 constructively denied its application or because further pursuit of the application 6 would have been futile. We conclude otherwise. 7 The Supreme Court has articulated Êºspecific ripeness requirements 8 applicable to land use disputes,Êº Murphy, 402 F.3d at 347, in particular holding 9 that a takings claim Êºis not ripe until the government entity charged with 10 implementing the regulations has reached a final decision regarding the 11 application of the regulations to the property at issue,Êº Williamson Cnty. RegÊ¹l 12 Planning CommÊ¹n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). 13 Although Williamson County involved a challenge to a regulatory taking, the 14 final decision requirement Êºhas not been so strictly confined.Êº Murphy, 402 F.3d 15 at 349 50 (citing opinions from the Third, Seventh, and Ninth Circuits). We have 16 previously extended the final decision requirement to zoning challenges based 17 on substantive due process; First Amendment rights of assembly and free 18 exercise; the Religious Land Use and Institutionalized Persons Act of 2000 9 1 (ÊºRLUIPAÊº), 42 U.S.C. §§ 2000cc et seq.; and a state analogue to RLUIPA, the 2 Connecticut Act Concerning Religious Freedom (ÊºCACRFÊº), Conn. Gen. Stat. 3 § 52 571b. See Southview Assocs. v. Bongartz, 980 F.2d 84, 96 97 (2d Cir. 1992) 4 (substantive due process); Murphy, 402 F.3d at 352 (First Amendment, RLUIPA, 5 and CACRF). For the reasons that follow, we decline to adopt a categorical rule 6 excepting from the final decision requirement any case in which a landowner 7 alleges intentional discrimination. We have previously characterized Êº[t]he purpose of the ripeness 8 9 requirementÊº as Êºensur[ing] that a dispute has generated injury significant 10 enough to satisfy the case or controversy requirement of Article III of the U.S. 11 Constitution.Êº Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 12 83, 90 (2d Cir. 2002). Williamson CountyÊ¹s final decision requirement helps 13 distinguish between those cases in which a plaintiff has suffered a Êºconcrete and 14 particularized,Êº Êºactual or imminentÊº injury, Lujan v. Defenders of Wildlife, 504 U.S. 15 555, 560 (1992), and those in which the injury is Êºmerely speculative and may 16 never occur, depending on the final administrative resolution,Êº Dougherty, 282 17 F.3d at 90; see Williamson Cnty., 473 U.S. at 191 (Êº[T]he factors of particular 18 significance in the [takings] inquiry . . . . simply cannot be evaluated until the 10 1 administrative agency has arrived at a final, definitive position regarding how it 2 will apply the regulations at issue to the particular land in question.Êº). In other 3 words, a non final decision on how a parcel of land may be used does not 4 ordinarily give rise to an injury that is sufficiently concrete and particularized to 5 satisfy Article III. Sunrise argues, however, that there are limits to the principle announced 6 7 in Williamson County, and that distinctions between the rights at issue in that case 8 and in this one illustrate those limits. Sunrise points out that Williamson County 9 involved a claim of Êºregulatory takingÊº that is, a claim that the denial of the 10 landownerÊ¹s development proposal was tantamount to a taking of the ownerÊ¹s 11 property for public purposes, that under the Constitution entitled the owner to 12 compensation. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992); 13 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In such a case, Sunrise 14 argues, the landowner seeks compensation for a harm that is inherent in the 15 denial of the permit itself, which is not complete until the proposed land use is 16 finally and definitely forbidden. Here, in contrast, Sunrise claims that it was the 17 victim of an act of disability discrimination forbidden by federal law, and that 11 1 the injury from such discrimination is experienced as soon as the official acts 2 with a discriminatory motivation. The argument is not without appeal. Generally, when a public official 3 4 violates constitutional or statutory rights of citizens to equal treatment, we allow 5 resort to the federal courts to vindicate those rights, without requiring the 6 offended person to exhaust potentially available state remedies first. See Patsy v. 7 Fla. Bd. Of Regents, 457 U.S. 496, 516 (1982); Doe v. Pfrommer, 148 F.3d 73, 78 (2d 8 Cir. 1998). In such cases, however, the victim of discrimination normally seeks 9 compensation, in the form of money damages, for the violation of his or her 10 rights. 11 We need not address here whether a property owner who claimed that a 12 local official vetoed his or her development project out of hostility based on the 13 ownerÊ¹s race, gender, disability, or the like, in violation of federal statutory or 14 constitutional law, could seek immediate recompense in federal court from that 15 official for the dignitary or emotional harm inflicted by the official even in the 16 absence of a final decision on the development proposal or without pursuing an 17 administrative appeal of that action. That question is not presented in this case, 18 because Sunrise does not seek compensatory damages from the official who it 12 1 claims acted out of discriminatory motivation, but rather seeks an injunction 2 blocking the disapproval and authorizing construction of its project. Regardless 3 of the basis of the claim that the local action violated federal rights, the relief 4 sought brings the case squarely within the compass of Williamson County and its 5 progeny. 6 Even if it were true that the challenged rejection by the Building 7 Department was the product of a discriminatory motivation on the part of the 8 official who issued it, that illegal act would not necessarily require, as a remedy, 9 the issuance of a permit to Sunrise. If Sunrise proceeds with its application, the 10 rejection may be reversed, and the project may be permitted to proceed or the 11 application may be rejected on other, non discriminatory grounds. Only after 12 Sunrise completes the process will it be known whether the allegedly 13 discriminatory decision of the official had any effect at all on SunriseÊ¹s 14 application. 15 We think, therefore, that a plaintiff alleging discrimination in the context of 16 a land use dispute is subject to the final decision requirement unless he can show 17 that he suffered some injury independent of the challenged land use decision. 18 Thus, for example, a plaintiff need not await a final decision to challenge a 13 1 zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 2 F.3d 1531, 1541 (11th Cir. 1994), or the manipulation of a zoning process out of 3 discriminatory animus to avoid a final decision, Groome Res. Ltd. v. Parish of 4 Jefferson, 234 F.3d 192, 199 200 (5th Cir. 2000). In those cases, Êºpursuit of a further 5 administrative decision would do nothing to further define [the] injury,Êº and the 6 Êºclaim should not be subject to the application of the Williamson ripeness test.Êº 7 Dougherty, 282 F.3d at 90. This is not such a case. Sunrise alleges that the commissionerÊ¹s 8 9 determination that its facility did not qualify as a Êºcommunity residenceÊº and the 10 Common CouncilÊ¹s failure to take further action on its application thereafter 11 caused it immediate injury. AppellantÊ¹s Br. 24 25. But in light of administrative 12 avenues for relief outlined in the zoning ordinance and the commissionerÊ¹s letter, 13 we conclude that neither of these acts gave rise to an injury independent of the 14 cityÊ¹s ultimate land use decision. Sunrise must therefore Êºprov[e] that we can 15 look to a final, definitive positionÊº from the city regarding its application before 16 we may entertain its claims. Murphy, 402 F.3d at 347. That Sunrise has failed to do. We have previously interpreted Williamson 17 18 County as Êºcondition[ing] federal review on a property owner submitting at least 14 1 one meaningful application for a variance.Êº Id. at 348. By forgoing the avenues 2 for relief outlined in the commissionerÊ¹s revised determination, Sunrise deprived 3 the city of the opportunity to issue a final decision. See Ordinance § 6.4.5.2 4 (barring the city from taking any further action on an application until the 5 applicant procures all required variances). A federal lawsuit at this stage would 6 inhibit the kind of give and take negotiation that often resolves land use 7 problems, and would in that way impair or truncate a process that must be 8 allowed to run its course. In light of SunriseÊ¹s midstream abandonment of the 9 zoning process, its claim is not yet ripe. Nor can we excuse SunriseÊ¹s failure to comply with the final decision 10 11 requirement by characterizing the cityÊ¹s response to its request for a reasonable 12 accommodation as Êºconstructively denyingÊº its application. First, because 13 SunriseÊ¹s request sought the same result as its special permit application, we do 14 not think that the city ignored the request by incorporating it into the 15 application. See Oxford House, Inc. v. City of Virginia Beach, 825 F. Supp. 1251, 1261 16 (E.D. Va. 1993) (stating that the Êºzoning process, including the hearings on 17 applications for conditional use permits, servesÊº CongressÊ¹s purpose to provide 18 municipalities with Êºthe opportunity to adjust their generally applicable rules to 15 1 allow handicapped individuals equal access to housingÊº). Second, we have 2 explained that to prevail on a reasonable accommodation claim, Êºplaintiffs must 3 first provide the governmental entity an opportunity to accommodate them 4 through the entityÊ¹s established procedures used to adjust the neutral policy in 5 question.Êº Tsombanidis v. W. Haven Fire DepÊ¹t, 352 F.3d 565, 578 (2d Cir. 2003). 6 Again, SunriseÊ¹s failure to pursue a variance or to appeal the commissionerÊ¹s 7 determination deprived the city of this opportunity. Nor do we think that requiring Sunrise to pursue an administrative appeal 8 9 or an application for a variance would necessarily be futile. The cityÊ¹s Board of 10 Appeals does not Êºlack[ ] discretion to grant variances,Êº Murphy, 402 F.3d at 349; 11 see also Ordinance § 10.3.5. And SunriseÊ¹s own failure to Êºsubmit[ ] at least one 12 meaningful application for a varianceÊº prevents us from determining whether 13 the board Êºhas dug in its heels and made clear that all such applications will be 14 denied,Êº Murphy, 402 F.3d at 348, 349; see also Ordinance § 6.4.5.2, so as to permit 15 us to treat the matter appealed from as ripe for judicial consideration. We thus 16 see no basis in the record to apply the futility exception to the final decision 17 requirement in this case. 16 CONCLUSION 1 We have considered SunriseÊ¹s remaining arguments and have found them 2 3 to be without merit. We therefore AFFIRM the judgment of the district court 4 dismissing SunriseÊ¹s claims for lack of subject matter jurisdiction. 17

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