     15-1192-cv (L)
     Bernstein v. Village of Wesley Hills

                         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 ASUMMARY 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   23rd day of March, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PETER W. HALL,
 8                          Circuit Judges
 9            JANE A. RESTANI,1
10                          Judge.
11
12   - - - - - - - - - - - - - - - - - - - -X
13   RABBI JAMES BERNSTEIN, MOSHE AMBERS,
14   BEATRICE ZAKS, SIMA ZAKS, NAFTOLI
15   TESHER, MOSDOS CHOFETZ CHAIM, INC.,
16            Plaintiffs-Appellants,
17
18   YESHIVA CHOFETZ CHAIM, INC., RABBI
19   MAYER ZAKS, RABBI ARYEH ZAKS, RABBI
20   NAFTOLI SOFER, MILTON B. SHAPIRO, SONYA
21   SHAPIRO, THE TOWN BOARD OF THE TOWN OF
22   RAMAPO,
23             Plaintiffs,
24


     1
          Honorable Jane A. Restani, Judge for the United States Court of
     International Trade, sitting by designation.

                                                1
 1            -v.-                             15-1192 (Lead)
 2                                             15-1195 (Con)
 3
 4   THE VILLAGE OF WESLEY HILLS, THE MAYOR
 5   AND BOARD OF TRUSTEES OF THE VILLAGE OF
 6   WESLEY HILLS, ROBERT H. FRANKL, in his
 7   official capacity, DAVID A GOLDSMITH,
 8   in his official capacity, ROBERT I.
 9   RHODES, in his former official
10   capacity, JAY B. ROSENSTEIN, in his
11   former official capacity, EDWARD B.
12   MCPHERSON, in his official capacity,
13   THE VILLAGE OF POMONA, THE MAYOR AND
14   BOARD OF TRUSTEES OF THE VILLAGE OF
15   POMONA, THE VILLAGE OF CHESTNUT RIDGE,
16   THE MAYOR AND BOARD OF TRUSTEES OF THE
17   VILLAGE OF CHESTNUT RIDGE, THE VILLAGE
18   OF MONTEBELLO, THE MAYOR AND BOARD OF
19   TRUSTEES OF THE VILLAGE OF MONTEBELLO,
20             Defendants-Appellees.
21
22   THE VILLAGE OF NEW HEMPSTEAD, THE MAYOR
23   AND BOARD OF TRUSTEES OF THE VILLAGE OF
24   NEW HEMPSTEAD, ROBERT A. MOSKOWITZ,
25   TRSUTEE OF THE VILLAGE OF NEW
26   HEMPSTEAD, in his individual and former
27   official capacity, FORMER MAYOR
28   HERBERT I. MARSHALL, in his individual
29   and former official capacity, MAYOR OF
30   POMONA NICHOLAS L. SANDERSON, in his
31   individual and official capacity, JOHN
32   DOE 1-37, JEROME KOBRE, MAYOR OF THE
33   VILLAGE OF CHESTNUT RIDGE, in his
34   individual and official capacity,
35   TRUSTEE HOWARD L. COHEN, in his
36   individual and official capacity,
37   KATHRYN ELLSWORTH, FORMER MAYOR OF
38   MONTEBELLO, in her individual and
39   former official capacity, MAYOR OF
40   MONTEBELLO JEFFREY OPPENHEIM, in his
41   individual and official capacity,
42   SCENIC DEVELOPMENT, LLC, TOWN OF

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 1   RAMAPO, THE PLANNING BOARD OF THE TOWN
 2   OF RAMAPO, THE BOARD OF APPEALS OF THE
 3   TOWN OF RAMAPO,
 4            Defendants.
 5
 6   - - - - - - - - - - - - - - - - - - - -X
 7
 8   FOR APPELLANTS:              JOSEPH J. HASPEL, Goshen, NY.
 9
10   FOR VILLAGES APPELLEES:      MICHAEL D. ZARIN (Jody T. Cross, on
11                                the brief), Zarin & Steinmetz,
12                                White Plains, NY.
13
14   FOR POMONA APPELLEES:        GREGORY R. SARACINO, Milber Makris
15                                Plousadis & Seiden, LLP, White
16                                Plains, NY.
17
18        Appeal from a judgment of the United States District Court
19   for the Southern District of New York (Karas, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
22   DECREED that the judgment of the district court be AFFIRMED.
23
24        Plaintiffs-appellants, religious organizations and
25   affiliated individuals (collectively, the “Mosdos
26   Plaintiffs”), appeal from the judgment of the United States
27   District Court for the Southern District of New York (Karas,
28   J.) granting summary judgment dismissing their discrimination
29   complaint against villages and current and former officials for
30   those villages (collectively, the “Villages Defendants”). We
31   assume the parties’ familiarity with the underlying facts, the
32   procedural history, and the issues presented for review.

33        The Mosdos Plaintiffs are affiliated with the Chofetz Chaim
34   sect of Orthodox Judaism and reside in the Town of Ramapo, New
35   York (the “Town”). The Villages Defendants are incorporated
36   villages located within the Town, and various associated
37   officials. In 2001, the Town initiated a review of its local
38   zoning laws, and in 2004, passed the Adult Student Housing Law
39   (“ASHL”) to permit the construction and operation of adult
40   student living facilities in certain residential zones.
41   Pursuant to the ASHL, predecessors to the Mosdos Plaintiffs

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 1   applied for site plan approval for the construction of an adult
 2   student housing facility (“Kiryas Radin”) on a property (the
 3   “Nike Site”) located near the Villages Defendants. As was
 4   required by New York’s State Environmental Quality Review Act
 5   (“SEQRA”), the Town’s Planning Board conducted an analysis on
 6   the impact the construction of Kiryas Radin would have on the
 7   environment and concluded that it would not be significantly
 8   adverse. Accordingly, the Town’s Planning Board cleared the
 9   Mosdos Plaintiffs to build Kiryas Radin on the Nike Site.

10        As the Town’s Planning Board finished its SEQRA review, a
11   subset of the Villages Defendants filed a lawsuit in New York
12   state court to challenge the ASHL and the Town Planning Board’s
13   SEQRA analysis (the “SEQRA Action”). In response, the Mosdos
14   Plaintiffs filed counterclaims under 42 U.S.C. § 1983 alleging
15   violations of the Free Exercise and Free Speech clauses of the
16   First and Fourteenth Amendments, the Fair Housing Act, and the
17   Religious Land Use and Institutionalized Persons Act.

18        While the parties litigated the SEQRA Action, the Mosdos
19   Plaintiffs also filed a new action in federal court against the
20   Villages Defendants, bringing claims under 42 U.S.C. §§ 1981,
21   1982, 1983, and 1985(3) alleging violations of the Free
22   Exercise, Establishment, and Free Association clauses of the
23   First and Fourteenth Amendments, the Equal Protection Clause
24   of the Fourteenth Amendment, the Fair Housing Act, and various
25   state laws (the “Equal Protection Action”). The core
26   allegation in the Equal Protection Action was that the Villages
27   Defendants filed the SEQRA Action for discriminatory reasons.

28        On March 31, 2010, the district court dismissed all of the
29   Mosdos Plaintiffs’ claims in the Equal Protection Action on the
30   ground that the Villages Defendants were entitled to qualified
31   immunity. Mosdos Chofetz Chaim, Inc. v. Village of Wesley
32   Hills, 701 F. Supp. 2d 568, 604 (S.D.N.Y. 2010) (Mosdos I). The
33   district court’s analysis turned on applying the
34   Noerr-Pennington doctrine2 to the Mosdos Plaintiffs’ civil
35   rights claims. The district court held that for the Mosdos

     2
           The name derives from two cases from the 1960s in which the Supreme
     Court applied the First Amendment in the antitrust context. See E. R.R.
     Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);
     United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).

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 1   Plaintiffs to make out a discrimination claim based on the
 2   filing of the SEQRA Action, they had to allege that (i) they
 3   were selectively treated compared with others similarly
 4   situated, and (ii) the selective treatment was motivated by an
 5   intention to discriminate on the basis of, inter alia, religion.
 6   Id. at 603. Because the initial complaint failed to allege
 7   facts to show that similarly situated properties were treated
 8   differently, the district court dismissed the complaint without
 9   prejudice.

10        On September 26, 2011, the district court granted in part
11   and denied in part the Villages Defendants’ motion to dismiss
12   the amended complaint in the Equal Protection Action. Mosdos
13   Chofetz Chaim Inc. v. Village of Wesley Hills, 815 F. Supp. 2d
14   679, 683 (S.D.N.Y. 2011) (Mosdos II). The district court
15   concluded that the Mosdos Plaintiffs had adequately specified
16   six similarly situated sites that the Villages Defendants did
17   not treat the same as the Nike Site, that is, the Villages
18   Defendants did not file a lawsuit to block the development on
19   those sites. Id. at 700-04. Accordingly, discrimination
20   claims against the Villages Defendants proceeded to discovery.

21        Meanwhile, the SEQRA Action continued. Though the subset
22   of the Villages Defendants litigating the SEQRA Action
23   persuaded a state court to grant them a preliminary injunction
24   and temporary restraining order against the Kiryas Radin
25   construction, their claims were eventually dismissed on the
26   merits. As a result, on December 5, 2012, the Mosdos Plaintiffs
27   removed the SEQRA Action to federal court to pursue their
28   counterclaims; there, it was consolidated with the Equal
29   Protection Action.

30        On March 27, 2015, the district court granted summary
31   judgment to the Villages Defendants on the Mosdos Plaintiffs’
32   claims in the Equal Protection Action and their counterclaims
33   in the SEQRA Action. Bernstein v. Village of Wesley Hills, 95
34   F. Supp. 3d 547, 551 (S.D.N.Y. 2015) (Mosdos III). The district
35   court concluded that the Mosdos Plaintiffs failed to produce
36   evidence sufficient to raise a genuine issue of material fact
37   as to similarly situated sites that were treated differently
38   or as to whether the Villages Defendants acted out of
39   discriminatory animus. The district court also rejected the

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 1   Mosdos Plaintiffs’ argument that they had a valid RLUIPA claim
 2   based on this Court’s opinion in Fortress Bible Church v.
 3   Feiner, 694 F.3d 208 (2d Cir. 2012). In this appeal, the Mosdos
 4   Plaintiffs challenge only the determination that they failed
 5   to present sufficient evidence to sustain their discrimination
 6   claims against the Villages Defendants.

 7        We review de novo a district court’s grant of summary
 8   judgment. Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89, 93 (2d
 9   Cir. 2015). Summary judgment must be granted if “there is no
10   genuine dispute as to any material fact and the movant is
11   entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
12   “In assessing the record to determine whether there is a genuine
13   issue as to any material fact, the court is required to resolve
14   all ambiguities and draw all factual inferences in favor of the
15   party against whom summary judgment is sought.” Noll, 787 F.3d
16   at 94 (internal brackets and citation omitted). A genuine
17   issue of material fact is one that “might affect the outcome
18   of the suit under the governing law” and as to which “a
19   reasonable jury could return a verdict for the nonmoving party.”
20   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

21        1. As an initial matter, the Mosdos Plaintiffs do not
22   appeal from Mosdos I or Mosdos II. Their Pre-Argument
23   Statement (Form C) states that they are only appealing from a
24   summary judgment order and that the only issues raised on appeal
25   are those that concern the summary judgment opinion in Mosdos
26   III. The Mosdos Plaintiffs’ brief represents that the only
27   issue presented is whether the district court properly granted
28   summary judgment for the Villages Defendants, and the only
29   opinion included in the Mosdos Plaintiffs’ Special Appendix is
30   Mosdos III. The Villages Defendants argue at length in their
31   brief that the Mosdos Plaintiffs are not appealing from Mosdos
32   I or Mosdos II and the Mosdos Plaintiffs do not rebut this
33   contention in their reply. Accordingly, we lack jurisdiction
34   to review the district court’s opinions in Mosdos I and Mosdos
35   II. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir.
36   1995). The remaining issue before us is whether the district
37   court properly granted summary judgment for the Villages
38   Defendants. We assume without deciding that the district
39   court’s Noerr-Pennington-based analysis for determining


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 1   whether the Villages Defendants are entitled to qualified
 2   immunity, detailed in Mosdos I and Mosdos II, is correct.

 3        2. Turning to Mosdos III, the district court’s thorough
 4   and well-reasoned opinion demonstrated that the Mosdos
 5   Plaintiffs failed to produce evidence sufficient for a jury
 6   finding either that (i) there were similarly situated sites or
 7   (ii) the Villages Defendants acted out of discriminatory
 8   animus. Kiryas Radin is a residential complex containing sixty
 9   residential units at a density of 12.8 units per acre and a
10   number of non-residential buildings. The Nike Site sits on a
11   two-lane road of low-to-moderate capacity, is surrounded by a
12   low-density residential district that contains mostly single
13   family homes, and is approximately one mile from the nearest
14   commercial development. The Mosdos Plaintiffs failed to
15   provide credible evidence that any of the purported comparable
16   sites were similarly situated, e.g., that they had a similar
17   impact on traffic and community character, or that the Villages
18   Defendants knew of the comparable sites before they were built.
19   The Mosdos Plaintiffs also failed to offer evidence that the
20   Villages Defendants were driven by discriminatory animus in
21   bringing the SEQRA Action. Rather, there is no real dispute
22   that the Villages Defendants were motivated by a genuine concern
23   that the ASHL and Town’s SEQRA analysis would result in adverse
24   effects on the environment. Accordingly, we conclude that the
25   Villages Defendants are entitled to qualified immunity on the
26   Mosdos Plaintiffs’ claims and counterclaims.

27        The Mosdos Plaintiffs raise one additional issue. They
28   assert that Fortress Bible provides them with either a cause
29   of action or a theory of discrimination that sustains their
30   claims. It does neither. Fortress Bible concerned a
31   municipality abusing the SEQRA review process as a vehicle for
32   executing its zoning regulations in connection with a church’s
33   land use proposal for a site located within that municipality’s
34   jurisdiction. Here, the Villages Defendants – none of which
35   had jurisdiction over the Nike Site or Kiryas Radin project –
36   filed a lawsuit to challenge some other municipality’s SEQRA
37   review. Fortress Bible is inapposite.




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1        Accordingly, and finding no merit in Mosdos Plaintiffs’
2   other arguments, we hereby AFFIRM the judgment of the district
3   court.

4                               FOR THE COURT:
5                               CATHERINE O’HAGAN WOLFE, CLERK




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