Sunrise Detox v. City of White Plains

1
13‐2911
Sunrise Detox v. City of White Plains
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2013 3
(Argued: May 8, 2014 Decided: October 2, 2014) 4
Docket No.13‐2911 5
6
Sunrise Detox V, LLC, 7
Plaintiff–Appellant, 8
v. 9
City of White Plains, City of While Plains Common Council, City of White Plains 10
Department of Building, 11
Defendants–Appellees. 12
13
Before: JACOBS, SACK, and LYNCH, Circuit Judges. 14
The plaintiff, a provider of medically supervised care for individuals 15
recovering from alcohol and drug abuse, sought permission to operate a 16
treatment facility in White Plains, New York. After a determination that the 17
facility did not meet applicable zoning regulations, the plaintiff brought this suit 18
under the Americans with Disabilities Act. The United States District Court for 19
the Southern District of New York (Vincent L. Briccetti, Judge) dismissed the 20
complaint for lack of subject‐matter jurisdiction, concluding that the plaintiff, by 21
declining to seek a variance or appeal the zoning decision, had failed to obtain a 22

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final decision on its application. Because we reject the plaintiffʹs argument that 1
its allegations of intentional discrimination relieve it from the final‐decision 2
requirement, the judgment of the district court is 3
AFFIRMED. 4
JAMES K. GREEN, West Palm Beach, FL 5
(Robert L. Schonfeld, Moritt Hock & 6
Hamroff LLP, Garden City, NY, on the 7
brief), for Plaintiff–Appellant. 8
LALIT K. LOOMBA (Peter A. Meisels, John 9
M. Flannery, on the brief), Wilson, Elser, 10
Moskowitz, Edelman & Dicker LLP, White 11
Plains, NY, for Defendants–Appellees. 12
S ACK, Circuit Judge: 13
Sunrise Detox V, LLC, applied for a special permit under the zoning 14
ordinance of White Plains, New York, to establish a facility for individuals 15
recovering from drug or alcohol addiction. In order to satisfy the zoning 16
regulations in force at its identified site, Sunrise sought to have its proposed 17
facility designated a ʺcommunity residence.ʺ The commissioner of the cityʹs 18
Department of Building determined that the facility did not qualify as a 19
community residence and that, as a result, the city could take no further action 20
on the application until Sunrise either applied for a variance or appealed the 21
determination. Instead, Sunrise brought this action alleging intentional 22
discrimination, disparate impact discrimination, and failure to grant a reasonable 23

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accommodation in violation of the Americans with Disabilities Act (ʺADAʺ), 42 1
U.S.C. § 12101 et seq. Because we conclude that the dispute is not ripe, we affirm 2
the judgment of the district court. 3
BACKGROUND 4
Sunrise wants to establish a facility for individuals recovering from 5
addiction at 37 DeKalb Avenue, White Plains, New York, in a building that was 6
formerly used as a nursing home. Because the site is located in the cityʹs R2‐2.5 7
zoning district, Sunriseʹs proposed facility would have to qualify as a 8
ʺcommunity residenceʺ or a ʺdomiciliary care facilityʺ and be granted a special 9
permit from the cityʹs Common Council in order to operate within the cityʹs 10
zoning ordinance.1 The ordinance defines a ʺcommunity residenceʺ as 11
[a] residential facility for the mentally disabled operated 12
pursuant to the New York State Mental Hygiene Law 13
and regulations promulgated thereunder, including an 14
alcoholism facility, a hostel, a halfway house and any 15
other such facility as defined in such regulations, and 16
any similar facilities operated under the supervision of 17
federal departments and agencies. 18
City of White Plains, N.Y. Zoning Ordinance § 2.4 (1981) (hereinafter 19
ʺOrdinanceʺ), available at http://www.cityofwhiteplains.com/index.aspx?nid=120 20
(last visited Oct. 1, 2014). 21
1 The nursing homeʹs establishment predated the current ordinance, and it was
granted a special permit to continue operation as a ʺdomiciliary care facility.ʺ

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On June 15, 2012, Sunrise submitted its application for a special permit for 1
its proposed facility, which it styled a ʺcommunity residence,ʺ to the city 2
Department of Building. See Ordinance § 6.3. In a cover letter, Sunrise stated 3
that the residence would ʺoperate as a short‐term, medically monitored facilityʺ 4
treating ʺadults who have a primary substance use disorder which requires 5
medical detoxification,ʺ with a maximum capacity of 33 beds and an average 6
client stay of 5.7 days. J.A. 89, 90. Having ʺdetermined [the application] to be 7
complete,ʺ Ordinance § 6.3, the commissioner of the Department of Building 8
forwarded Sunriseʹs proposal to the Common Council. 9
The application was deemed ʺofficially submitted and receivedʺ at the 10
Common Councilʹs early July meeting and was then forwarded to the Planning 11
Board, in accordance with the procedures set out in the zoning ordinance. 12
Ordinance §§ 6.3, 6.4.1. The Planning Board unanimously recommended 13
approval ʺfor a period of one year,ʺ finding that ʺthe proposed community 14
residence meets the special permit requirements of the zoning ordinance.ʺ Letter 15
of Michael Quinn, Chairman, Planning Board, to Mayor and Common Council of 16
White Plains (July 27, 2012) (J.A. 177). The cityʹs Department of Law also 17
reviewed the application, and a public hearing was set for September 4, 2012. 18

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As public opposition to the facility mounted through the summer of 2012, 1
however, Sunrise sought to delay the hearing. After two adjournments and two 2
open sessions, the Common Council ended public hearings on December 3, 2012. 3
Sunrise then changed tack, writing to the mayor of White Plains and the 4
Common Council to ʺrequest[ ] a reasonable accommodation to treat Sunriseʹs 5
proposed use as a ʹCommunity Residence.ʹʺ Letter of Sunrise to Mayor and 6
Common Council of White Plains, at 1 (Dec. 19, 2012) (J.A. 119). At its next 7
meeting, the Common Council adopted a resolution permitting the letter to be 8
considered despite its late submission and allowing an additional two weeks for 9
public comment. 10
The Common Council also referred the application back to the Planning 11
Board for reconsideration in light of Sunriseʹs letter. The board reiterated its 12
view that Sunriseʹs proposal met the ordinanceʹs special permit requirements. 13
But local residents argued that the proposed facility did not qualify as a 14
ʺcommunity residence.ʺ They asserted in letters submitted during the extended 15
public comment period that the proposed number of beds and short client stays 16
made the facility a short‐term inpatient treatment facility rather than a 17
community residence under state law. See N.Y. Mental Hyg. Law § 1.03(28) 18

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(stating that a ʺcommunity residenceʺ ʺprovides . . . a homelike environment and 1
room, board and responsible supervision for the habilitation or rehabilitation of 2
individuals with mental disabilities as part of an overall service delivery systemʺ 3
but also ʺinclude[s] an intermediate care facility with fourteen or fewer 4
residentsʺ). 5
On February 27, 2013, after reviewing Sunriseʹs supplemented application, 6
the commissioner of the Department of Building issued a revised determination. 7
He noted that the department had ʺinitially concluded that the proposed facility 8
most closely matched the ʹCommunity Residenceʹ definitionʺ in the zoning 9
ordinance, but explained that the newly submitted information had led it to 10
reconsider. Letter from Damon A. Amadio, Commʹr, Depʹt of Bldg., to Mayor 11
and Common Council of White Plains, at 1–2 (Feb. 27, 2013) (J.A. 129–31). The 12
department, he wrote, had now determined that the services provided by Sunrise 13
were properly classified as ʺCrisis Services,ʺ so that the ʺclosest appropriate 14
zoning ordinance classification . . . [wa]s Hospitals or Sanitariaʺ—a use not 15
permitted in the R2‐2.5 zone. Id. at 3 (J.A. 131). The commissioner informed 16
Sunrise that it would have to either seek a variance or appeal the departmentʹs 17

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determination to the Zoning Board of Appeals in order to proceed with its 1
application. Id.; see also Ordinance § 6.4.5.2. 2
Sunrise did not seek relief from the Board of Appeals. Instead, it filed this 3
lawsuit on March 11, 2013, alleging that the city intentionally discriminated 4
against it and its prospective clients; that the commissionerʹs interpretation of 5
ʺcommunity residenceʺ disparately impacted Sunrise and its prospective clients; 6
and that the city failed to offer a reasonable accommodation by allowing 7
Sunriseʹs proposed use of the property. 8
Sunrise filed a motion for a preliminary injunction on March 20, 2013. On 9
April 30, 2013, the city cross‐moved to dismiss the complaint pursuant to Rule 10
12(b)(1). Oral argument was held on July 8, 2013. At the close of argument, the 11
district court (Vincent L. Briccetti, Judge) dismissed the case for lack of subject‐ 12
matter jurisdiction, concluding that Sunriseʹs claims were unripe for adjudication 13
by the court because they presented ʺa zoning dispute as to which there has been 14
no final determination.ʺ Tr. of Oral Argument at 63, Sunrise Detox V, LLC v. City 15
of White Plains, No. 13 Civ. 1614 (VB) (S.D.N.Y. July 8, 2013) (relying on Murphy v. 16
New Milford Zoning Commʹn, 402 F.3d 342 (2d Cir. 2005)). The district court also 17
concluded that the futility exception to the final determination requirement did 18

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not apply because Sunrise had shown neither that the Board of Appeals lacked 1
jurisdiction to grant a variance or to reverse the commissionerʹs determination, 2
nor that the Board of Appeals had ʺdug in its heels and made clear that all such 3
applications will be denied.ʺ Id. at 64. Judgment was entered on July 10, 2013. 4
Sunrise appeals, arguing that the dispute is ripe for adjudication and that 5
the city violated the ADA by intentionally discriminating against its prospective 6
clients and failing to make a reasonable accommodation.2 7
DISCUSSION 8
This Court reviews de novo the dismissal of a complaint under Rule 9
12(b)(1). Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013). The district courtʹs 10
determination that an issue is not ripe is also reviewed de novo. United States v. 11
Broadcast Music, Inc., 275 F.3d 168, 178 (2d Cir. 2001). 12
Because ʺ[r]ipeness is a jurisdictional inquiry,ʺ landowners bringing 13
zoning challenges must meet ʺthe ʹhigh burdenʹ of proving that we can look to a 14
final, definitive position from a local authority to assess precisely how they can 15
use their propertyʺ before this Court may entertain their claims. Murphy, 402 16
F.3d at 347. Sunrise argues that this final‐decision requirement does not apply to 17
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).

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zoning challenges under the ADA based on allegations of intentional 1
discrimination because those ʺcause[] a uniquely immediate injuryʺ rendering 2
such claims ʺripe from the act of discrimination.ʺ Appellantʹs Br. 22. In the 3
alternative, Sunrise contends that its suit is ripe either because the city 4
constructively denied its application or because further pursuit of the application 5
would have been futile. We conclude otherwise. 6
The Supreme Court has articulated ʺspecific ripeness requirements 7
applicable to land use disputes,ʺ Murphy, 402 F.3d at 347, in particular holding 8
that a takings claim ʺis not ripe until the government entity charged with 9
implementing the regulations has reached a final decision regarding the 10
application of the regulations to the property at issue,ʺ Williamson Cnty. Regʹl 11
Planning Commʹn v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). 12
Although Williamson County involved a challenge to a regulatory taking, the 13
final‐decision requirement ʺhas not been so strictly confined.ʺ Murphy, 402 F.3d 14
at 349‐50 (citing opinions from the Third, Seventh, and Ninth Circuits). We have 15
previously extended the final‐decision requirement to zoning challenges based 16
on substantive due process; First Amendment rights of assembly and free 17
exercise; the Religious Land Use and Institutionalized Persons Act of 2000 18

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(ʺRLUIPAʺ), 42 U.S.C. §§ 2000cc et seq.; and a state analogue to RLUIPA, the 1
Connecticut Act Concerning Religious Freedom (ʺCACRFʺ), Conn. Gen. Stat. 2
§ 52‐571b. See Southview Assocs. v. Bongartz, 980 F.2d 84, 96–97 (2d Cir. 1992) 3
(substantive due process); Murphy, 402 F.3d at 352 (First Amendment, RLUIPA, 4
and CACRF). For the reasons that follow, we decline to adopt a categorical rule 5
excepting from the final‐decision requirement any case in which a landowner 6
alleges intentional discrimination. 7
We have previously characterized ʺ[t]he purpose of the ripeness 8
requirementʺ as ʺensur[ing] that a dispute has generated injury significant 9
enough to satisfy the case or controversy requirement of Article III of the U.S. 10
Constitution.ʺ Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 11
83, 90 (2d Cir. 2002). Williamson Countyʹs final‐decision requirement helps 12
distinguish between those cases in which a plaintiff has suffered a ʺconcrete and 13
particularized,ʺ ʺactual or imminentʺ injury, Lujan v. Defenders of Wildlife, 504 U.S. 14
555, 560 (1992), and those in which the injury is ʺmerely speculative and may 15
never occur, depending on the final administrative resolution,ʺ Dougherty, 282 16
F.3d at 90; see Williamson Cnty., 473 U.S. at 191 (ʺ[T]he factors of particular 17
significance in the [takings] inquiry . . . . simply cannot be evaluated until the 18

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administrative agency has arrived at a final, definitive position regarding how it 1
will apply the regulations at issue to the particular land in question.ʺ). In other 2
words, a non‐final decision on how a parcel of land may be used does not 3
ordinarily give rise to an injury that is sufficiently concrete and particularized to 4
satisfy Article III. 5
Sunrise argues, however, that there are limits to the principle announced 6
in Williamson County, and that distinctions between the rights at issue in that case 7
and in this one illustrate those limits. Sunrise points out that Williamson County 8
involved a claim of ʺregulatory takingʺ— that is, a claim that the denial of the 9
landownerʹs development proposal was tantamount to a taking of the ownerʹs 10
property for public purposes, that under the Constitution entitled the owner to 11
compensation. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992); 12
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In such a case, Sunrise 13
argues, the landowner seeks compensation for a harm that is inherent in the 14
denial of the permit itself, which is not complete until the proposed land use is 15
finally and definitely forbidden. Here, in contrast, Sunrise claims that it was the 16
victim of an act of disability discrimination forbidden by federal law, and that 17

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the injury from such discrimination is experienced as soon as the official acts 1
with a discriminatory motivation. 2
The argument is not without appeal. Generally, when a public official 3
violates constitutional or statutory rights of citizens to equal treatment, we allow 4
resort to the federal courts to vindicate those rights, without requiring the 5
offended person to exhaust potentially available state remedies first. See Patsy v. 6
Fla. Bd. Of Regents, 457 U.S. 496, 516 (1982); Doe v. Pfrommer, 148 F.3d 73, 78 (2d 7
Cir. 1998). In such cases, however, the victim of discrimination normally seeks 8
compensation, in the form of money damages, for the violation of his or her 9
rights. 10
We need not address here whether a property owner who claimed that a 11
local official vetoed his or her development project out of hostility based on the 12
ownerʹs race, gender, disability, or the like, in violation of federal statutory or 13
constitutional law, could seek immediate recompense in federal court from that 14
official for the dignitary or emotional harm inflicted by the official even in the 15
absence of a final decision on the development proposal or without pursuing an 16
administrative appeal of that action. That question is not presented in this case, 17
because Sunrise does not seek compensatory damages from the official who it 18

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claims acted out of discriminatory motivation, but rather seeks an injunction 1
blocking the disapproval and authorizing construction of its project. Regardless 2
of the basis of the claim that the local action violated federal rights, the relief 3
sought brings the case squarely within the compass of Williamson County and its 4
progeny. 5
Even if it were true that the challenged rejection by the Building 6
Department was the product of a discriminatory motivation on the part of the 7
official who issued it, that illegal act would not necessarily require, as a remedy, 8
the issuance of a permit to Sunrise. If Sunrise proceeds with its application, the 9
rejection may be reversed, and the project may be permitted to proceed—or the 10
application may be rejected on other, non‐discriminatory grounds. Only after 11
Sunrise completes the process will it be known whether the allegedly 12
discriminatory decision of the official had any effect at all on Sunriseʹs 13
application. 14
We think, therefore, that a plaintiff alleging discrimination in the context of 15
a land‐use dispute is subject to the final‐decision requirement unless he can show 16
that he suffered some injury independent of the challenged land‐use decision. 17
Thus, for example, a plaintiff need not await a final decision to challenge a 18

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zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 1
F.3d 1531, 1541 (11th Cir. 1994), or the manipulation of a zoning process out of 2
discriminatory animus to avoid a final decision, Groome Res. Ltd. v. Parish of 3
Jefferson, 234 F.3d 192, 199–200 (5th Cir. 2000). In those cases, ʺpursuit of a further 4
administrative decision would do nothing to further define [the] injury,ʺ and the 5
ʺclaim should not be subject to the application of the Williamson ripeness test.ʺ 6
Dougherty, 282 F.3d at 90. 7
This is not such a case. Sunrise alleges that the commissionerʹs 8
determination that its facility did not qualify as a ʺcommunity residenceʺ and the 9
Common Councilʹs failure to take further action on its application thereafter 10
caused it immediate injury. Appellantʹs Br. 24‐25. But in light of administrative 11
avenues for relief outlined in the zoning ordinance and the commissionerʹs letter, 12
we conclude that neither of these acts gave rise to an injury independent of the 13
cityʹs ultimate land‐use decision. Sunrise must therefore ʺprov[e] that we can 14
look to a final, definitive positionʺ from the city regarding its application before 15
we may entertain its claims. Murphy, 402 F.3d at 347. 16
That Sunrise has failed to do. We have previously interpreted Williamson 17
County as ʺcondition[ing] federal review on a property owner submitting at least 18

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one meaningful application for a variance.ʺ Id. at 348. By forgoing the avenues 1
for relief outlined in the commissionerʹs revised determination, Sunrise deprived 2
the city of the opportunity to issue a final decision. See Ordinance § 6.4.5.2 3
(barring the city from taking any further action on an application until the 4
applicant procures all required variances). A federal lawsuit at this stage would 5
inhibit the kind of give‐and‐take negotiation that often resolves land use 6
problems, and would in that way impair or truncate a process that must be 7
allowed to run its course. In light of Sunriseʹs midstream abandonment of the 8
zoning process, its claim is not yet ripe. 9
Nor can we excuse Sunriseʹs failure to comply with the final‐decision 10
requirement by characterizing the cityʹs response to its request for a reasonable 11
accommodation as ʺconstructively denyingʺ its application. First, because 12
Sunriseʹs request sought the same result as its special permit application, we do 13
not think that the city ignored the request by incorporating it into the 14
application. See Oxford House, Inc. v. City of Virginia Beach, 825 F. Supp. 1251, 1261 15
(E.D. Va. 1993) (stating that the ʺzoning process, including the hearings on 16
applications for conditional use permits, servesʺ Congressʹs purpose to provide 17
municipalities with ʺthe opportunity to adjust their generally applicable rules to 18

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allow handicapped individuals equal access to housingʺ). Second, we have 1
explained that to prevail on a reasonable accommodation claim, ʺplaintiffs must 2
first provide the governmental entity an opportunity to accommodate them 3
through the entityʹs established procedures used to adjust the neutral policy in 4
question.ʺ Tsombanidis v. W. Haven Fire Depʹt, 352 F.3d 565, 578 (2d Cir. 2003). 5
Again, Sunriseʹs failure to pursue a variance or to appeal the commissionerʹs 6
determination deprived the city of this opportunity. 7
Nor do we think that requiring Sunrise to pursue an administrative appeal 8
or an application for a variance would necessarily be futile. The cityʹs Board of 9
Appeals does not ʺlack[ ] discretion to grant variances,ʺ Murphy, 402 F.3d at 349; 10
see also Ordinance § 10.3.5. And Sunriseʹs own failure to ʺsubmit[ ] at least one 11
meaningful application for a varianceʺ prevents us from determining whether 12
the board ʺhas dug in its heels and made clear that all such applications will be 13
denied,ʺ Murphy, 402 F.3d at 348, 349; see also Ordinance § 6.4.5.2, so as to permit 14
us to treat the matter appealed from as ripe for judicial consideration. We thus 15
see no basis in the record to apply the futility exception to the final‐decision 16
requirement in this case. 17

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CONCLUSION 1
We have considered Sunriseʹs remaining arguments and have found them 2
to be without merit. We therefore AFFIRM the judgment of the district court 3
dismissing Sunriseʹs claims for lack of subject‐matter jurisdiction. 4

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