17-2290-cv
Islamic Community Center for Mid Westchester v. City of Yonkers Landmark Preservation Board

                              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.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
6th day of July, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________

ISLAMIC COMMUNITY CENTER FOR MID WESTCHESTER, MOHAMMED ZUBER
NAKADAR, OMAR OCKEH, SYED KAMAL, ALI NAWAZUDDIN, MOHAMMED
SOHAIL, ALI EL-OUSROUTI, FAVZUL KABEER, MOHAMMED RAHEEM, ARSHAD
SHARIFF, ISMET JASHARI,

                                          Plaintiffs-Appellants,

                         v.                                                         17-2290-cv

CITY OF YONKERS LANDMARK PRESERVATION BOARD, CITY OF YONKERS
PLANNING BUREAU, AKA CITY OF YONKERS PLANNING BOARD, CITY OF
YONKERS, MAYOR MICHAEL SPANO, IN HIS OFFICIAL CAPACITY AS MAYOR OF
THE CITY OF YONKERS, LIAM J. MCLAUGHLIN, IN THEIR OFFICIAL CAPACITY AS
MEMBERS OF THE CITY OF YONKERS CITY COUNCIL, DENNIS SHEPHERD, IN
THEIR OFFICIAL CAPACITY AS MEMBERS OF THE CITY OF YONKERS CITY
COUNCIL, MIKE BREEN, IN THEIR OFFICIAL CAPACITY AS MEMBERS OF THE CITY
OF YONKERS CITY COUNCIL, JOHN LARKIN, IN THEIR OFFICIAL CAPACITY AS
MEMBERS OF THE CITY OF YONKERS CITY COUNCIL, GORDON A. BURROWS, IN
THEIR OFFICIAL CAPACITY AS A DISTRICT COUNTY LEGISLATOR IN THE CITY OF
YONKERS,

                                          Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:      Omar T. Mohammedi, New York, N.Y.

Appearing for Appellee:       Patrick A. Knowles, Feerick Lynch MacCartney & Nugent, PLLC
                              (Dennis E.A. Lynch, Mary E. Brady Marzolla, on the brief), South
                              Nyack, N.Y.

Appeal from the United States District Court for the Southern District of New York (Briccetti,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order and judgment of said District Court be and hereby are
AFFIRMED.

        Appellant Islamic Community Center for Mid Westchester (“ICCMW”) appeals from
the June 28, 2017 opinion and order and the June 30, 2017 judgment of the United States District
Court for the Southern District of New York (Briccetti, J.), dismissing without prejudice
ICCMW’s complaint and denying ICCMW’s motions for leave to file a supplemental complaint
and a preliminary injunction. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        In April 2013, ICCMW identified a piece of property located in Yonkers, New York that
it wished to purchase for use as a mosque. The property had fallen into a state of disrepair,
however, and ICCMW was not able to close on the purchase until March 2015. In the
intervening period, ICCMW met with local officials to confirm that they could use the property
as a mosque. Yonkers city officials confirmed that the property was zoned for use either as a
residence or a house of worship.

        Several months after ICCMW closed on the property purchase, the group became aware
that a different local organization—Colonial Heights Association of Tax Payers—had filed an
application to designate the property as a landmark. In order to receive a landmark designation in
the City of Yonkers, a property must possess one of several enumerated characteristics. See City
of Yonkers Landmark Ordinance, § 45-2; App’x at 223. The proposed designation must also be
considered by several elected bodies before it is approved by the City. Id.

        Accordingly, after initial consideration by the Landmark Preservation Board on
November 4, 2015, the application made the rounds to several other committees, before being
approved by the City Council on May 24, 2016. On May 27, 2016, the Mayor signed the
resolution designating the property as a landmark.

       Four months later, ICCMW filed this lawsuit in federal district court challenging the
landmark designation on several grounds, including allegations that the designation violated
ICCMW’s First Amendment right to the free exercise of religion, as well as several claims under
the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc. On June
28, 2017, the district court dismissed the complaint for want of subject-matter jurisdiction,



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finding the case was not yet ripe because ICCMW had not yet complied with the “final-decision
requirement.” Special App’x at 15. On July 25, 2017, ICCMW timely appealed.

        We engage in de novo review of a district court’s dismissal under Fed. R. Civ. P. 12(b)(1)
and its determination that an issue is not yet ripe. Sunrise Detox V, LLC v. City of White Plains,
769 F.3d 118, 121 (2d Cir. 2014). “Ripeness is a jurisdictional inquiry,” such that we are
obligated to “presume that we cannot entertain [ICCMW’s] claims unless the contrary appears
affirmatively from the record.” Murphy v. New Milford Zoning Commission, 402 F.3d 342, 347
(2d Cir. 2005) (internal quotation marks omitted). We have previously described this as a “high
burden” for landowners to meet, requiring owners to prove that “we can look to a final, definitive
position from a local authority to assess precisely how they can use their property.” Id. Further,
we must determine the ripeness of the case at the very outset of our analysis, because “[r]ipeness
is a constitutional prerequisite to exercise of jurisdiction by federal courts,” so essential that we
may “raise the issue sua sponte.” Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d
Cir. 1998).

        ICCMW challenges the district court’s use of the ripeness analysis in Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), arguing
that the district court erred by not engaging in a traditional ripeness analysis. The district court
did not err on this question of law.

        Traditionally, courts have assessed whether a case is ripe for adjudication by engaging in
a “two-prong inquiry,” Murphy, 402 F.3d at 347, regarding both the “fitness of the issues for
judicial decision and the hardship to the parties of withholding court consideration,” id. (citation
omitted). In Williamson County, the Supreme Court articulated a similar, but distinct test for
cases arising in the context of takings challenges to land use regulations. The Court in that case
held:

       [A] claim that the application of government regulations effects a taking of a property
       interest 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 County, 473 U.S. at 186.1 Since Williamson County, this Circuit has applied its
ripeness test to land use challenges far afield from the takings context. As this Court previously
explained:

       Although Williamson County involved a challenge to a regulatory taking, the final-
       decision requirement has not been so strictly confined. We have previously extended the
       final-decision requirement to zoning challenges based on substantive due process, First
       Amendment rights of assembly and free exercise; the Religious Land Use and



1
 In step two, the Williamson County Court also required petitioners to “seek compensation
through the procedures the State has provided for doing so,” but that prong of the test is not
relevant in this non-takings case. Id. at 194.

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       Institutionalized Persons Act of 2000 (“RLUIPA”) . . . and a state analogue to RLUIPA .
       . . .”

Sunrise Detox, 769 F.3d at 122 (internal citations and quotation marks omitted). In Sunrise Detox
this Court explained that it “decline[d] to adopt a categorical rule excepting from the final-
decision requirement any case in which a landowner alleges intentional discrimination.” Id.
Instead, it determined 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.” Id. at 123. We also observed that “the finality
requirement is not mechanically applied” and will not be found to bar a suit when further appeals
would be futile or when the relevant town board “sits purely as a remedial body.”2 Murphy, 402
F.3d at 349; see also Sunrise Detox, 769 F.3d at 124 (recognizing, but declining to apply, the
futility exception to the prong-one final-decision requirement); Williamson County, 473 U.S. at
193 (“[R]espondent would not be required to resort to those procedures before bringing its . . .
action, because those procedures clearly are remedial”). In sum, as the Murphy Court explains,
“absent a futility or remedial finding, prong-one ripeness reflects the judicial insistence that a
federal court know precisely how a property owner may use his land before attempts are made to
adjudicate the constitutionality of regulations purporting to limit such use.” Id. at 349.

        Application of the Williamson County ripeness inquiry makes clear that this case is not
yet ripe. This Court must engage in a “fact-sensitive inquiry,” Murphy, 402 F.3d at 350, while
remaining mindful of the important rationales underlying our ripeness inquiries. The Murphy
Court articulated four reasons for Williamson County’s prong-one ripeness inquiry (i.e., the final-
decision requirement): this requirement 1) “aids in the development of a full record,” 2) enables
the court to “know precisely how a regulation will be applied to a particular parcel,” 3) may
enable resolution of the case on “non-constitutional grounds,” which we prefer whenever
possible, and 4) reflects our adherence to federalism, because “land use disputes are uniquely
matters of local concerns more aptly suited for local resolution.” Id. at 348. In short, “a non-final
decision on how a parcel of land may be used does not ordinarily give rise to an injury that is
sufficiently concrete and particularized to satisfy Article III.” Sunrise Detox, 769 F.3d at 122.

         The district court held this case was not ripe because ICCMW failed to apply for the
“certificate of appropriateness” that would, if granted, enable them to pursue their construction
projects despite the landmark designation. Special App’x at 15. ICCMW argues that applying for
a certificate of appropriateness would have no bearing on the alleged harm, because “this process
cannot reverse or amend the landmark designation.” Appellant’s Br. at 36. “In fact, the
Certificate of Appropriateness process is the harm caused to Appellants—it is an additional
burden that ICCMW must now overcome given the discriminatory landmark designation.” Id.
Yet ICCMW seems to unwittingly reflect the very rationales underlining the final-decision rule
articulated in Williamson County, because at no point in its briefing was it clear exactly how the
2
  ICCMW also attempts to avoid the Williamson County final-decision rule by arguing that it is
raising a facial challenge to the rule, rather than an as-applied challenge. The district court was
not persuaded by this argument, finding that “[e]ven a cursory review of the complaint and
plaintiffs’ arguments reveals that plaintiffs are challenging the application of the Landmark Law
to them. Such challenges are plainly as-applied challenges.” Special App’x at 14. We agree with
the district court.


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landmark designation impacted its ability to use its property, let alone how the designation
substantially burdened its ability to practice its religious faith. The final-decision rule is designed
to aid courts in understanding exactly how a litigant is being harmed by a land use designation,
and to prevent litigants from rushing into federal courts when the harm could be avoided through
a local process. ICCMW’s failure to attain a final decision on its application by availing itself of
the local procedure that could remedy its alleged harm—whatever that may be, since none has
yet been articulated—bars it from litigating this claim in federal court.

         ICCMW’s motion for leave to file an amended complaint fares no better. The district
court dismissed that motion under Fed. R. Civ. P. 12(b)(1), determining that principles of comity
and the Tax Injunction Act (“TIA”), 28 U.S.C. § 1341, barred it from entertaining the claim.
Special App’x at 10. The City further argues that the claim is moot in any event because the
alleged harm—the City’s revocation of ICCMW’s tax-exempt status—was rendered moot by a
review board’s decision to reinstate the status. We need not reach either the TIA or mootness
arguments, because we hold that the district court was correct to dismiss the claim for want of
jurisdiction in deference to principles of comity. See Levin v. Commerce Energy, Inc., 560 U.S.
413, 432 (2010) (“Because we conclude that the comity doctrine justifies dismissal of
respondents’ federal-court action, we need not decide whether the TIA would itself block the
suit.”); Fair Assessment in Real Estate Association, Inc. v. McNary, 454 U.S. 100, 107 (1981)
(“Because we decide today that the principle of comity bars federal courts from granting
damages relief in [Section 1983] cases, we do not decide whether [TIA], standing alone, would
require such a result.”). In short, the Supreme Court has expressly articulated the holding that the
principle of comity bars Section 1983 actions premised on decisions by local taxing authorities.
See McNary, 560 U.S. at 105 (“We hold that . . . as to [Section 1983] actions . . . the principle of
comity controls”).

       We acknowledge the troubling reports of ICCMW regarding anti-Muslim animus
expressed by some members of the surrounding community and we express no view on whether
those accounts may be sufficient to raise a successful claim after ICCMW has received a final
decision on its application for a certificate of appropriateness. We do express concern with the
presentation of the factual and legal arguments in ICCMW’s briefing, which we found to be
concerningly misleading.

        We have considered the remainder of ICCMW’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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