     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.
22       - - - - - - - - - - - - - - - - - - - -X
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




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