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United States Court of Appeals,Second Circuit.

SUNRISE DETOX V, LLC, Plaintiff–Appellant, v. CITY OF WHITE PLAINS, City of While Plains Common Council, City of White Plains Department of Building, Defendants–Appellees.

Docket No. 13–2911.

Decided: October 02, 2014

Before JACOBS, SACK, and LYNCH, Circuit Judges. James K. Green, West Palm Beach, FL (Robert L. Schonfeld, Moritt Hock & Hamroff LLP, Garden City, NY, on the brief), for Plaintiff–Appellant. Lalit K. Loomba (Peter A. Meisels, John M. Flannery, on the brief), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for Defendants–Appellees.

Sunrise Detox V, LLC, applied for a special permit under the zoning ordinance of White Plains, New York, to establish a facility for individuals recovering from drug or alcohol addiction. In order to satisfy the zoning regulations in force at its identified site, Sunrise sought to have its proposed facility designated a “community residence.” The commissioner of the city's Department of Building determined that the facility did not qualify as a community residence and that, as a result, the city could take no further action on the application until Sunrise either applied for a variance or appealed the determination. Instead, Sunrise brought this action alleging intentional discrimination, disparate impact discrimination, and failure to grant a reasonable accommodation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Because we conclude that the dispute is not ripe, we affirm the judgment of the district court.


Sunrise wants to establish a facility for individuals recovering from addiction at 37 DeKalb Avenue, White Plains, New York, in a building that was formerly used as a nursing home. Because the site is located in the city's R2–2.5 zoning district, Sunrise's proposed facility would have to qualify as a “community residence” or a “domiciliary care facility” and be granted a special permit from the city's Common Council in order to operate within the city's zoning ordinance.1 The ordinance defines a “community residence” as

[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.

City of White Plains, N.Y. Zoning Ordinance § 2.4 (1981) (hereinafter “Ordinance”), available at aspx? nid=120 (last visited Oct. 1, 2014).

On June 15, 2012, Sunrise submitted its application for a special permit for its proposed facility, which it styled a “community residence,” to the city Department of Building. See Ordinance § 6.3. In a cover letter, Sunrise stated that the residence would “operate as a short-term, medically monitored facility” treating “adults who have a primary substance use disorder which requires medical detoxification,” with a maximum capacity of 33 beds and an average client stay of 5.7 days. J.A. 89, 90. Having “determined [the application] to be complete,” Ordinance § 6.3, the commissioner of the Department of Building forwarded Sunrise's proposal to the Common Council.

The application was deemed “officially submitted and received” at the Common Council's early July meeting and was then forwarded to the Planning Board, in accordance with the procedures set out in the zoning ordinance. Ordinance §§ 6.3, 6.4.1. The Planning Board unanimously recommended approval “for a period of one year,” finding that “the proposed community residence meets the special permit requirements of the zoning ordinance.” Letter of Michael Quinn, Chairman, Planning Board, to Mayor and Common Council of White Plains (July 27, 2012) (J.A. 177). The city's Department of Law also reviewed the application, and a public hearing was set for September 4, 2012.

As public opposition to the facility mounted through the summer of 2012, however, Sunrise sought to delay the hearing. After two adjournments and two open sessions, the Common Council ended public hearings on December 3, 2012. Sunrise then changed tack, writing to the mayor of White Plains and the Common Council to “request[ ] a reasonable accommodation to treat Sunrise's proposed use as a ‘Community Residence.’ “ Letter of Sunrise to Mayor and Common Council of White Plains, at 1 (Dec. 19, 2012) (J.A. 119). At its next meeting, the Common Council adopted a resolution permitting the letter to be considered despite its late submission and allowing an additional two weeks for public comment.

The Common Council also referred the application back to the Planning Board for reconsideration in light of Sunrise's letter. The board reiterated its view that Sunrise's proposal met the ordinance's special permit requirements. But local residents argued that the proposed facility did not qualify as a “community residence.” They asserted in letters submitted during the extended public comment period that the proposed number of beds and short client stays made the facility a short-term inpatient treatment facility rather than a community residence under state law. See N.Y. Mental Hyg. Law § 1.03(28) (stating that a “community residence” “provides ․ a homelike environment and room, board and responsible supervision for the habilitation or rehabilitation of individuals with mental disabilities as part of an overall service delivery system” but also “include[s] an intermediate care facility with fourteen or fewer residents”).

On February 27, 2013, after reviewing Sunrise's supplemented application, the commissioner of the Department of Building issued a revised determination. He noted that the department had “initially concluded that the proposed facility most closely matched the ‘Community Residence’ definition” in the zoning ordinance, but explained that the newly submitted information had led it to reconsider. Letter from Damon A. Amadio, Comm'r, Dep't of Bldg., to Mayor and Common Council of White Plains, at 1–2 (Feb. 27, 2013) (J.A. 129–31). The department, he wrote, had now determined that the services provided by Sunrise were properly classified as “Crisis Services,” so that the “closest appropriate zoning ordinance classification ․ [wa]s Hospitals or Sanitaria”—a use not 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 department's determination to the Zoning Board of Appeals in order to proceed with its application. Id.; see also Ordinance §

Sunrise did not seek relief from the Board of Appeals. Instead, it filed this lawsuit on March 11, 2013, alleging that the city intentionally discriminated against it and its prospective clients; that the commissioner's interpretation of “community residence” disparately impacted Sunrise and its prospective clients; and that the city failed to offer a reasonable accommodation by allowing Sunrise's proposed use of the property.

Sunrise filed a motion for a preliminary injunction on March 20, 2013. On April 30, 2013, the city cross-moved to dismiss the complaint pursuant to Rule 12(b)(1). Oral argument was held on July 8, 2013. At the close of argument, the district court (Vincent L. Briccetti, Judge ) dismissed the case for lack of subject-matter jurisdiction, concluding that Sunrise's claims were unripe for adjudication by the court because they presented “a zoning dispute as to which there has been no final determination.” Tr. of Oral Argument at 3, Sunrise Detox V, LLC v. City of White Plains, No. 13 Civ. 1614(VB) (S.D.N.Y. July 8, 2013) (relying on Murphy v. New Milford Zoning Comm'n, 402 F.3d 342 (2d Cir.2005)). The district court also concluded that the futility exception to the final determination requirement did not apply because Sunrise had shown neither that the Board of Appeals lacked jurisdiction to grant a variance or to reverse the commissioner's determination, nor that the Board of Appeals had “dug in its heels and made clear that all such applications will be denied.” Id. at 64. Judgment was entered on July 10, 2013.

Sunrise appeals, arguing that the dispute is ripe for adjudication and that the city violated the ADA by intentionally discriminating against its prospective clients and failing to make a reasonable accommodation.2


This Court reviews de novo the dismissal of a complaint under Rule 12(b)(1). Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir.2013). The district court's determination that an issue is not ripe is also reviewed de novo. United States v. Broadcast Music, Inc., 275 F.3d 168, 178 (2d Cir.2001).

Because “[r]ipeness is a jurisdictional inquiry,” landowners bringing zoning challenges must meet “the ‘high burden’ of proving that we can look to a final, definitive position from a local authority to assess precisely how they can use their property” before this Court may entertain their claims. Murphy, 402 F.3d at 347. Sunrise argues that this final-decision requirement does not apply to zoning challenges under the ADA based on allegations of intentional discrimination because those “cause[ ] a uniquely immediate injury” rendering such claims “ripe from the act of discrimination.” Appellant's Br. 22. In the alternative, Sunrise contends that its suit is ripe either because the city constructively denied its application or because further pursuit of the application would have been futile. We conclude otherwise.

The Supreme Court has articulated “specific ripeness requirements applicable to land use disputes,” Murphy, 402 F.3d at 347, in particular holding that a takings claim “is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue,” Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Although Williamson County involved a challenge to a regulatory taking, the final-decision requirement “has not been so strictly confined.” Murphy, 402 F.3d at 349–50 (citing opinions from the Third, Seventh, and Ninth Circuits). We have previously extended the final-decision requirement to zoning challenges based 17 on substantive due process; First Amendment rights of assembly and free exercise; the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq.; and a state analogue to RLUIPA, the Connecticut Act Concerning Religious Freedom (“CACRF”), Conn. Gen.Stat. § 52–571b. See Southview Assocs. v. Bongartz, 980 F.2d 84, 96–97 (2d Cir.1992) (substantive due process); Murphy, 402 F.3d at 352 (First Amendment, RLUIPA, and CACRF). For the reasons that follow, we decline to adopt a categorical rule excepting from the final-decision requirement any case in which a landowner alleges intentional discrimination.

We have previously characterized “[t]he purpose of the ripeness requirement” as “ensur[ing] that a dispute has generated injury significant enough to satisfy the case or controversy requirement of Article III of the U.S. Constitution.” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir.2002). Williamson County's final-decision requirement helps distinguish between those cases in which a plaintiff has suffered a “concrete and particularized,” “actual or imminent” injury, Lujan v. Defenders of Wildlife, 504 U.S. 555, 56 0 (1992), and those in which the injury is “merely speculative and may never occur, depending on the final administrative resolution,” Dougherty, 282 F.3d at 90; see Williamson Cnty., 473 U.S. at 191 (“[T]he factors of particular significance in the [takings] inquiry ․ simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.”). In other 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 satisfy Article III.

Sunrise argues, however, that there are limits to the principle announced in Williamson County, and that distinctions between the rights at issue in that case and in this one illustrate those limits. Sunrise points out that Williamson County involved a claim of “regulatory taking”—that is, a claim that the denial of the landowner's development proposal was tantamount to a taking of the owner's property for public purposes, that under the Constitution entitled the owner to compensation. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In such a case, Sunrise argues, the landowner seeks compensation for a harm that is inherent in the denial of the permit itself, which is not complete until the proposed land use is finally and definitely forbidden. Here, in contrast, Sunrise claims that it was the victim of an act of disability discrimination forbidden by federal law, and that the injury from such discrimination is experienced as soon as the official acts with a discriminatory motivation.

The argument is not without appeal. Generally, when a public official violates constitutional or statutory rights of citizens to equal treatment, we allow resort to the federal courts to vindicate those rights, without requiring the offended person to exhaust potentially available state remedies first. See Patsy v. Fla. Bd. Of Regents, 457 U.S. 496, 516 (1982); Doe v. Pfrommer, 148 F.3d 73, 78 (2d Cir.1998). In such cases, however, the victim of discrimination normally seeks compensation, in the form of money damages, for the violation of his or her rights.

We need not address here whether a property owner who claimed that a local official vetoed his or her development project out of hostility based on the owner's race, gender, disability, or the like, in violation of federal statutory or constitutional law, could seek immediate recompense in federal court from that official for the dignitary or emotional harm inflicted by the official even in the absence of a final decision on the development proposal or without pursuing an administrative appeal of that action. That question is not presented in this case, because Sunrise does not seek compensatory damages from the official who it claims acted out of discriminatory motivation, but rather seeks an injunction blocking the disapproval and authorizing construction of its project. Regardless of the basis of the claim that the local action violated federal rights, the relief sought brings the case squarely within the compass of Williamson County and its progeny.

Even if it were true that the challenged rejection by the Building Department was the product of a discriminatory motivation on the part of the official who issued it, that illegal act would not necessarily require, as a remedy, the issuance of a permit to Sunrise. If Sunrise proceeds with its application, the rejection may be reversed, and the project may be permitted to proceed—or the application may be rejected on other, non-discriminatory grounds. Only after Sunrise completes the process will it be known whether the allegedly 13 discriminatory decision of the official had any effect at all on Sunrise's application.

We think, therefore, that a plaintiff alleging discrimination in the context of a land-use dispute is subject to the final-decision requirement unless he can show that he suffered some injury independent of the challenged land-use decision. Thus, for example, a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1541 (11th Cir.1994), or the manipulation of a zoning process out of discriminatory animus to avoid a final decision, Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 199–200 (5th Cir.2000). In those cases, “pursuit of a further administrative decision would do nothing to further define [the] injury,” and the “claim should not be subject to the application of the Williamson ripeness test.” Dougherty, 282 F.3d at 90.

This is not such a case. Sunrise alleges that the commissioner's determination that its facility did not qualify as a “community residence” and the Common Council's failure to take further action on its application thereafter caused it immediate injury. Appellant's Br. 24–25. But in light of administrative avenues for relief outlined in the zoning ordinance and the commissioner's letter, we conclude that neither of these acts gave rise to an injury independent of the city's ultimate land-use decision. Sunrise must therefore “prov[e] that we can 15 look to a final, definitive position” from the city regarding its application before we may entertain its claims. Murphy, 402 F.3d at 347.

That Sunrise has failed to do. We have previously interpreted Williamson County as “condition[ing] federal review on a property owner submitting at least one meaningful application for a variance.” Id. at 348. By forgoing the avenues for relief outlined in the commissioner's revised determination, Sunrise deprived the city of the opportunity to issue a final decision. See Ordinance § (barring the city from taking any further action on an application until the 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 problems, and would in that way impair or truncate a process that must be allowed to run its course. In light of Sunrise's midstream abandonment of the zoning process, its claim is not yet ripe.

Nor can we excuse Sunrise's failure to comply with the final-decision requirement by characterizing the city's response to its request for a reasonable accommodation as “constructively denying” its application. First, because Sunrise's request sought the same result as its special permit application, we do not think that the city ignored the request by incorporating it into the application. See Oxford House, Inc. v. City of Virginia Beach, 825 F.Supp. 1251, 1261 (E.D.Va.1993) (stating that the “zoning process, including the hearings on applications for conditional use permits, serves” Congress's purpose to provide municipalities with “the opportunity to adjust their generally applicable rules to allow handicapped individuals equal access to housing”). Second, we have explained that to prevail on a reasonable accommodation claim, “plaintiffs must first provide the governmental entity an opportunity to accommodate them through the entity's established procedures used to adjust the neutral policy in question.” Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 578 (2d Cir.2003). Again, Sunrise's failure to pursue a variance or to appeal the commissioner's determination deprived the city of this opportunity.

Nor do we think that requiring Sunrise to pursue an administrative appeal or an application for a variance would necessarily be futile. The city's Board of Appeals does not “lack[ ] discretion to grant variances,” Murphy, 402 F.3d at 349; see also Ordinance § 10.3.5. And Sunrise's own failure to “submit[ ] at least one meaningful application for a variance” prevents us from determining whether the board “has dug in its heels and made clear that all such applications will be denied,” Murphy, 402 F.3d at 348, 349; see also Ordinance §, so as to permit us to treat the matter appealed from as ripe for judicial consideration. We thus see no basis in the record to apply the futility exception to the final-decision 17 requirement in this case.


We have considered Sunrise's remaining arguments and have found them to be without merit. We therefore AFFIRM the judgment of the district court dismissing Sunrise's claims for lack of subject-matter jurisdiction.


1.  The nursing home's establishment predated the current ordinance, and it was granted a special permit to continue operation as a “domiciliary care facility.”

2.  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).

SACK, Circuit Judge: