Concern for Independent Living, Inc. v. Town of Southampton, New York et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Concern for Independent Living, Inc.,
Plaintiff,
-v-
Town of Southampton, New York, Town Board of the
Town of Southampton,
Defendants.
2:24-cv-7101
(NJC) (JMW)
OPINION AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
Plaintiff Concern for Independent Living, Inc. (“Concern”) brings this action against the
Town of Southampton, New York (the “Town”), and its Town Board (collectively “Defendants”)
for denying its application to rezone a parcel of land on which it planned to construct affordable
housing for veterans and individuals with mental health disabilities. (Compl., ECF No. 1.)1 The
Complaint brings claims under the Fair Housing Act (“FHA”), the Americans with Disabilities
Act (“ADA”), Section 504 of the Rehabilitation Act, the New York State Human Rights Law
(“NYSHRL”), and Article 78 of the New York Civil Practice Law and Rules. (Id. ¶¶ 132–75.)
Defendants moved to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure (“Fed. R. Civ. P.”).
The motion to dismiss is denied in part and granted in part for the reasons explained
below. Concern’s damages claims for injuries suffered due to its exposure to an alleged
1 All page references use ECF pagination except where noted.
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discriminatory zoning process, including alleged dignitary and emotional harms, are ripe because
the final decision requirement does not apply to these claims. Concern’s claims for damages,
declaratory, and injunctive relief stemming from the denial of its zone-change application are
ripe because the Complaint alleges facts showing that Defendants arrived at a final decision in
denying that application and that a variance would violate state law. The Court chooses to
exercise jurisdiction over Concern’s Article 78 claim under its independent grant of
supplemental jurisdiction under 28 U.S.C. § 1367. Finally, the Court dismisses Concern’s New
York State Human Rights Law claims and claims against the Town Board.
BACKGROUND
I assume as true all well-pled allegations in the Complaint and draw all inferences in
favor of Concern in considering Defendants’ Motion to Dismiss. See Whiteside v. Hover-Davis,
Inc., 995 F.3d 315, 318 n.2 (2d Cir. 2021). The following facts are taken from the Complaint.
I. 	Concern proposes Liberty Gardens, an affordable-housing development for
people with low income and people with disabilities.
Concern is a non-profit organization that helps individuals and families live in their
communities with dignity and enhanced opportunities through the provision of housing and
support services. (Compl. ¶ 26.) Concern constructs high quality, attractive housing for low-
income individuals and people with disabilities and provides supportive services to help people
with disabilities live with as much independence as possible. (Id.)
In March 2017, the Town’s Director of Housing and Community Development
approached Concern about building affordable housing on a five-acre lot owned by the
Southampton Full Gospel Church in the unincorporated community of Tuckahoe (“Church
Parcel”) located in the Town. (Id. ¶¶ 1, 32–33.) In October 2018, at the Town’s encouragement,
Concern submitted a proposal to build and operate “Liberty Gardens,” a 60-unit multi-family
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housing development on the Church Parcel. (Id. ¶ 37.) Concern planned to rent each unit at a rate
affordable to households earning “less than 60%” of Southampton’s Area Median Income and to
reserve half the units for individuals with a “primary diagnosis of serious mental illness.” (Id.
¶¶ 37–38.) It also planned to set aside thirteen units for veterans and obtain subsidies for tenants
with disabilities or especially low incomes. (Id. ¶¶ 37, 39.)
The Town’s 2022 housing plan confirms the lack of affordable housing and housing
support for people with disabilities in Southampton. (Id. ¶ 12.) Liberty Gardens would thus help
address the need for affordable and supportive housing in Southampton and Suffolk County.
(Id. ¶ 14.) Concern secured $30 million in funding from Suffolk County, New York State
Housing and Community Renewal, Federal Home Loan Bank, and the New York State Office of
Mental Health that could only be used to develop the Church Parcel. (Id. ¶ 10.) It preliminarily
proposed monthly rental rates in Liberty Gardens ranging from $550 to $1,371 per month, well
below the Town’s median rent levels. (Id.)
II. 	Concern files a zone change application for permission to build Liberty Gardens.
Before breaking ground to build Liberty Gardens, Concern needed an exemption from the
Town’s zoning rules. (See id. ¶ 54.) The plot lay in the “R-20 zone,” which permits developers to
build at most two dwelling units per acre—far below the necessary allowance for Concern’s
proposed 60-unit, five-acre construction. (Id. ¶ 35.) To rezone the property, in October 2018,
Concern filed a “pre-application with the Town Board” of the Town of Southampton (“Town
Board”), an elected five-member body (including the Town Supervisor) empowered to amend
Southampton’s zoning code. Id. ¶¶ 28, 53; see Southampton, N.Y., Town Code § 330-5,
https://ecode360.com/8700218. In the pre-application, Concern requested that the Board change
the Church Parcel’s zoning designation to “MF-44,” which would permit construction of up to
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eight units per acre. (Compl. ¶ 54.) The pre-application also sought a density increase under
Southampton Town Code § 330-8, which would enable selected non-profits to build twelve units
per acre on the parcel. Id.; Southampton, N.Y., Town Code § 330-8,
https://ecode360.com/8700216. Concern’s filings clarified that it intended to create housing for
veterans and people with disabilities. (Compl. ¶ 55.)
After taking feedback from residents and the Town’s Citizens Advisory Committee,
Concern formally petitioned for the zone change in June 2020. (Id. ¶ 57.)
III. 	Concern undergoes the New York State Environmental Quality Review Act
review process.
Concern’s zone-change application was subject to New York procedures for
environmental review. Local agencies must conduct an assessment under the New York State
Environmental Quality Review Act (“SEQRA”) before adopting “rules, regulations, and
procedures” or approving projects that “may affect the environment.” N.Y. Comp. Codes R. &
Regs. tit. 6, §§ 617.2(b), (e), 617.3(a), 617.4(b)(3). This procedural regime has substantive bite.
For “Type I” actions—such as those granting “a zoning change” to construct significant numbers
of new residential units—the developer must prepare an “environmental assessment form.” Id.
§§ 617.2(m), 617.4(b)(3), 617.6(a)(2).
The SEQRA form permits the lead agency managing the environmental review process
(here, the Town Board) to determine whether the zone change would potentially have
“significant adverse environmental impact[s].” Compl. ¶¶ 58, 60; see N.Y. Comp. Codes R. &
Regs. tit. 6, §§ 617.2(n), 617.4(a)(1). If the Town Board finds such potential effects, it may
require Concern to submit a draft Environmental Impact Statement (“EIS”) containing “a
statement and evaluation of the potential significant adverse environmental impacts” as well as
possible mitigation measures. N.Y. Comp. Codes R. & Regs. tit. 6, §§ 617.9(a)–(b); Compl.
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¶ 60. If the Town Board accepts the draft EIS as adequate for public review, it may then invite
public comments and hearings regarding the proposed action and the draft EIS. N.Y. Comp.
Codes R. & Regs. tit. 6, § 617.9(a)(4). After receiving public comments, the Town Board may
prepare or approve a final EIS. Id. § 617.9(a)(5). Only then, and after it has afforded agencies
and the public “a reasonable time period” to consider the final EIS, may the Town Board “make
a final decision to undertake, fund, approve or disapprove” the proposed zone change. Id.
§ 617.11(a), (c). In doing so, the Town Board must issue a “findings statement” explaining how
its decision “avoids or minimizes adverse environmental impacts to the maximum extent
practicable.” Id. § 617.11(c)–(d).
Concern followed this procedure. In May 2020, it submitted an environmental assessment
form regarding the proposed zone change. (Compl. ¶ 58.) In March 2021, Concern submitted an
expanded environmental assessment form, which elaborated on its original proposal. (Id.) In July
2021, the Town Board concluded that the proposed zone change would potentially generate an
adverse environmental impact and required Concern to prepare a draft EIS. (Id. ¶ 60.) So,
Concern participated in another “public process” to determine the scope of the EIS so that
“members of the public” and “other interested agencies” could comment on the change-of-zone
application. (Id. ¶ 61.) It then conducted due diligence and submitted a 151-page draft EIS in
June 2022, which the Town Board accepted for filing, determining that it had complied with the
scope required by the Town Board and SEQRA and was adequate for public review. (Id.
¶¶ 15, 62.)
The Town held two public hearings over Concern’s draft EIS for the Liberty Gardens’
zone change proposal in September and October 2022. (Id. ¶ 63.) Town residents objected to
various facets of Liberty Gardens’ potential impact on the local community, submitting around
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441 public comments in all. (Id. ¶¶ 63–64, 72.) Across two hearings, “68 speakers provided 260
separate verbal comments or questions.” (Id. ¶ 63.) Members of the public submitted “38
additional written correspondences” during this time. (Id.) Objections ranged from “concerns
about traffic,” “SEQRA compliance, density, the impact on natural resources and human health,
the impact on community services,” and “the population to be served by the development.” (Id.
¶ 64.) The latter concern was voiced by opponents who protested that Liberty Gardens would
attract “people who may not be able to work,” or outsiders “who don’t live here.” (Id. ¶ 65.) One
opponent objected that the proposed Liberty Gardens development was equivalent to “a secure
facility for a compromised population that will be imported here.” (Id.)
Town Councilwoman Cyndi McNamara emerged as a vocal opponent of Liberty
Gardens. (Id. ¶ 66.) She suggested that the development would attract low-income residents into
the Town. (Id. ¶ 67.) She also suggested that the psychiatric needs of prospective Liberty
Gardens tenants would strain Town services and questioned their burden on the community,
specifically opining that veterans who would live in the complex would require comprehensive
psychiatric emergency treatment. (Id. ¶ 68.) According to the Complaint, Ms. McNamara’s
concerns—highlighted in her unsuccessful campaign for Town Supervisor—heightened “public
pressure” against the project. (Id. ¶¶ 70–71.) The Southampton Press ran an editorial asserting
that Liberty Gardens would provide “affordable housing” as opposed to “workforce housing”
and that 30 units would be set aside for “Vietnam-era veterans with mental health diagnoses,
who would require extensive support services.” (Id. ¶ 69.) Although the editorial was incorrect, it
contributed to growing public pressure opposing the project based on the disabilities of
prospective residents. (Id. ¶ 70.)
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In November 2023, Concern submitted a final EIS responding to all “441 comments or
questions raised during the environmental review process.” (Id. ¶ 72.) The final report addressed
public concerns about Liberty Gardens’ potential impact on potable water, displacement of
natural areas, noise, pollution, effect on Town aesthetics, burden on community services, and
SEQRA compliance, as well as the selection criteria for prospective residents. (Id. ¶¶ 73–77.)
Ultimately, however, the final EIS concluded that Liberty Gardens would pose “no significant
adverse environmental impacts” that would require Concern to explore alternative development
plans. (Id. ¶ 99.) In response to water quality concerns, Concern negotiated an agreement with a
local rehabilitation center “to pump wastewater offsite to the [c]enter’s Sewage Treatment
Plant.” (Id. ¶ 101.) Concern also found that the development would not affect endangered species
or unique habitats, cohered with the neighborhood’s visual character, and would create limited
noise and pollution. (Id. ¶ 74.) In the final EIS, Concern responded to public comments about
housing density by removing a 10-unit two-story building from the planned development,
thereby reducing the number of units from 60 to 50. (Id. ¶ 80.) In response to questions about
prospective residents, the final EIS projected that most occupants “would be people already
living or working” in Southampton and emphasized Concern’s intent to advertise Liberty
Gardens to local groups. (Id. ¶ 75.) The report affirmed that Concern did not violate SEQRA
requirements in proposing the zone change. (Id. ¶ 76.) Finally, Concern conceded that the
development would increase total demand for local “water, energy, healthcare, waste
management, and garbage pickup services”—but argued that a development under the existing
zoning designation would have done so as well. (Id. ¶¶ 77–78.) The final EIS further theorized
that Liberty Gardens imposed only a limited net burden on community services because it would
generate $1.5 million in revenue for the Town over 30 years. (Id. ¶ 77.)
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Even after Concern’s issuance of the final EIS, Councilwoman McNamara continued to
oppose the project on the basis that units would be reserved for people “who are unable to
remain stably housed due to a mental health diagnosis.” (Id. ¶ 84.) Ultimately, however, three of
the five Town Board members disagreed with McNamara and concluded that the final EIS
“sufficiently addressed all potential environmental impacts associated with the project.” (Id.
¶ 85.) Accordingly, the Town Board voted to accept the final EIS and filed a Notice of
Completion on December 27, 2023, by a vote of 3 to 2. Id. ¶¶ 81, 86; see N.Y. Comp. Codes R.
& Regs. tit. 6, § 617.9(a)(6).
The political winds changed in November 2023, when Southampton residents voted to
replace two of the Town Board members who had voted to approve the final EIS. (Compl. ¶ 88.)
After those Board members were replaced, Town Supervisor Maria Moore asked Concern if it
would develop “alternate sites” to the Church Parcel. (Id. ¶ 90.) Reasoning that “pre-
development costs incurred at the Church Parcel and environmental concerns at other sites”
foreclosed it from considering alternate locations, Concern declined. (Id.)
IV. 	The Town Board adopts a Findings Statement rejecting Concern’s proposal.
The Town Board finally issued a Findings Statement on June 11, 2024—more than seven
years after “Town staff” had approached Concern about this project in 2017. (See id. ¶¶ 13, 92.)
Concern alleges that, upon information and belief, the Board had originally prepared a draft
statement agreeing with the conclusion in the final EIS that “the project would not have
generated any unmitigated significant adverse environmental impacts.” (Id. ¶ 91 (emphasis
added).) But when the Board issued its Findings Statement in June 2024, it ultimately found by a
4–1 margin that rezoning the Church Parcel would impose significant adverse environmental
impacts. (Id. ¶¶ 92–94.) In contrast to the final EIS, the Town Board’s Findings Statement stated
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that the proposed development would (1) deplete potable water supplies, (2) adversely affect the
local ecosystem, (3) strain community services, (4) increase traffic, (5) compromise the town’s
residential character, and (6) impose “other impacts” resulting from construction and energy
usage. (Id. ¶ 97.) The Findings Statement offered two purported “alternatives” to mitigate those
impacts: not to build Liberty Gardens at all, or to build it within the existing two-dwelling-per-
acre zoning limitation. (Id. ¶ 98.)
PROCEDURAL HISTORY
Finding the Town’s proposed “alternatives” inadequate, Concern filed the Complaint
against the Town and the Town Board on October 9, 2024. (Id. ¶ 122.) The Complaint contends
that the reasoning set forth in the Board’s Findings Statement is pretext to discriminate against
prospective residents based on their disabilities and military status. It brings five claims. Count
One alleges that Defendants discriminated on the basis of disability in violation of the Fair
Housing Act (“FHA”) by blocking the Liberty Gardens development. (Id. ¶¶ 132–40.) Counts
Two and Three allege that in doing the same, Defendants violated the Americans with
Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. (Id. ¶¶ 141–46.) Count Four
claims that Defendants discriminated against people with disabilities and veterans in violation of
the NYSHRL. (Id. ¶¶ 147–54.) Count Five challenges the legality of the Findings Statement
under Article 78 of the New York Civil Practice Law and Rules. (Id. ¶¶ 155–75.) The Complaint
requests a declaratory judgment, damages, and an injunction ordering Defendants to approve
Concern’s change-of-zone application and to issue a Findings Statement consistent with the final
EIS. (Id. at 41.)
Defendants requested a pre-motion conference in anticipation of a proposed motion to
dismiss on December 10, 2024. (Letter Mot., ECF No. 17.) Judge Rachel P. Kovner, to whom
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this case was previously assigned, waived the pre-motion conference requirement and ordered
the parties to brief and file a motion to dismiss by March 1, 2025. (Elec. Order, Dec. 23, 2024.)
That motion has been filed. (Mot. to Dismiss, ECF No. 27.) In their motion to dismiss,
Defendants attach copies of the following documents, which they allege are incorporated by
reference into the Complaint: the draft EIS, the final EIS, the Findings Statement, selected
minutes of Town Board meetings, and the Town Board Resolution denying Concern’s change-
of-zone application. (ECF Nos. 27-3 to 27-13.) Concern does not contest the use of these
documents and concedes that they are referenced in the Complaint. See Mem. of L. in Opp’n to
Defs.’ Mot. to Dismiss (“Opp’n Mot. to Dismiss”), ECF No. 27-14; Hr’g Tr. at 64:4–65:4. On
October 21, 2025, the case was reassigned to this Court, which scheduled oral argument. (Elec.
Order, Oct. 21, 2025.) The Court held argument on February 25, 2026, and thanks the parties for
their helpful arguments in this case.
Separately, the parties sought a stay of discovery pending the resolution of the motion to
dismiss, which Judge James M. Wicks granted on January 29, 2025. (Mot. to Stay Discovery,
ECF No. 20.) Concern moved to lift the stay on November 7, 2025, arguing that proceeding with
the action would help allay its ongoing monthly costs to “maintain its option to purchase the land
at issue.” (Mot. to Lift Stay at 1, ECF No. 29.) Judge Wicks denied the motion without prejudice
for this Court to determine at oral argument whether the discovery stay should continue. (Order,
ECF No. 31.) Because the Court now resolves Defendants’ motion to dismiss, the stay of
discovery is lifted.
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LEGAL STANDARD
Because ripeness is a “constitutional prerequisite to exercise of jurisdiction,” the Court
analyzes a motion to dismiss for lack of ripeness under Federal Rule of Civil Procedure 12(b)(1).
Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (citation omitted). “If
the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.” Fed. R. Civ. P. 12(h)(3).
When a party raises a facial challenge to the court’s subject matter jurisdiction, “the
plaintiff has no evidentiary burden”; the district court need only “determine whether the
[p]leading alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to
sue.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (brackets and internal
quotation marks omitted); see also Lugo v. City of Troy, 114 F.4th 80, 87 (2d Cir. 2024). In
assessing such a facial challenge to justiciability, a court “must take all uncontroverted facts in
the complaint (or petition) as true, and draw all reasonable inferences in favor of the party
asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243
(2d Cir. 2014). The court may also take judicial notice of matters of public record and may
consider documents incorporated by reference in, attached to, or integral to the complaint.
Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Cruz v. N.Y. City Transit, No. 24-cv-
89, 2025 WL 209598, at *4 (S.D.N.Y. Jan. 16, 2025) (doing so in Rule 12(b)(1) motion); Cruz v.
N.Y.C. Dep’t of Educ., No. 19-cv-856, 2020 WL 1322511, at *6 (S.D.N.Y. Mar. 20, 2020)
(same).
Under Rule 12(b)(6), by contrast, a complaint must plead sufficient facts to “state a claim
to relief that is plausible on its face.” Green v. Dep’t of Educ. of N.Y.C., 16 F.4th 1070, 1076–77
(2d Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In determining
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if a claim is sufficiently plausible to withstand dismissal,” a court also “accepts all factual
allegations as true” and “draw[s] all reasonable inferences in favor of the plaintiffs . . . .”
Melendez v. City of New York, 16 F.4th 992, 1010 (2d Cir. 2021) (internal quotation marks and
citation omitted). Nevertheless, a court is “not required to credit conclusory allegations or legal
conclusions couched as factual allegations.” Hamilton v. Westchester Cnty., 3 F.4th 86, 91 (2d
Cir. 2021). The plaintiff must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In evaluating Defendants’ Rule 12(b)(6) motion, the Court may consider all
allegations set forth in the Complaint, along with “matters of which judicial notice may be taken”
and materials that are attached to the Complaint, incorporated by reference in it, or are integral to
it. See Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023). A document is “integral to a complaint”
where the “complaint relies heavily on its terms and effect,” even if the “document is not
expressly incorporated by reference.” Revitalizing Auto Communities Env’t Response Tr. v. Nat’l
Grid USA, 92 F.4th 415 (2d Cir. 2024).2
2 Here, the parties agree that the exhibits attached to Defendants’ Motion to Dismiss do not
“contradict the relevant allegations in the pleadings.” Vill. Green at Sayville, LLC v. Town of
Islip, 43 F.4th 287, 290 n.1 (2d Cir. 2022). At oral argument, the parties confirmed that those
exhibits are all documents that are incorporated by reference in the Complaint or are integral to
it, and that the parties did not dispute any of the relevant factual allegations. (Hr’g Tr. at 64:4–
65:4.) This Court may therefore consider those documents in resolving the pending motions,
although the parties are correct that these documents do not contradict the allegations of the
Complaint.
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DISCUSSION
For the following reasons, the motion to dismiss is granted in part and denied in part. The
motion to dismiss for lack of ripeness is denied.3 Defendants’ request that the Court decline to
exercise supplemental jurisdiction over Concern’s Article 78 claim is also denied. On the merits,
the Rule 12(b)(6) motion to dismiss the NYSHRL claims is granted because Concern “does not
object to” the dismissal of these claims. (Opp’n Mot. to Dismiss at 16–17.) Finally, the motion to
dismiss the Town Board as a duplicative defendant is granted.
I. 	Concern’s claims are ripe.
The ripeness doctrine “prevents a federal court from entangling itself in abstract
disagreements over matters that are premature for review because the injury is merely
speculative and may never occur.” United States v. Traficante, 966 F.3d 99, 106 (2d Cir. 2020).
The doctrine reflects both “Article III limitations on judicial power” and “prudential reasons for
refusing to exercise jurisdiction.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662,
670 n.2 (2010) (citation omitted); Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808
(2003).
The Supreme Court and the Second Circuit have set out rules governing ripeness in the
context of land-use disputes. For the archetypal takings claim, a plaintiff must wait 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), overruled on
3 While Defendants do not specify whether they move to dismiss for lack of ripeness under Rule
12(b)(1) or 12(b)(6), they fail to establish grounds for dismissal under either standard. (See Mot.
to Dismiss at 10–15.)
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other grounds, Knick v. Township of Scott, 588 U.S. 180 (2019). If “avenues still remain for the
government to clarify or change its decision,” a plaintiff’s claim is generally not ripe. Pakdel v.
City & County of San Francisco, 594 U.S. 474, 480 (2021) (per curiam). However, a plaintiff
challenging a land use decision may establish ripeness by showing that “pursuing an appeal to a
zoning board of appeals or seeking a variance would be futile.” Murphy v. New Milford Zoning
Comm’n, 402 F.3d 342, 349 (2d Cir. 2005).
This two-step test reflects the “high degree of discretion characteristically possessed by
land-use boards in softening the strictures of the general regulations they administer,” Suitum v.
Tahoe Reg’l Planning Agency, 520 U.S. 725, 738 (1997), and a hesitance to inhibit the “give-
and-take negotiation that often resolves land use problems,” Vill. Green at Sayville, LLC v. Town
of Islip, 43 F.4th 287, 297 (2d Cir. 2022). It also ensures that a plaintiff seeking “an injunction
blocking the disapproval” of its project has identified a defined injury in that it cannot pursue its
land use goal. Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 122 (2d Cir. 2014).
For that reason, the Second Circuit has extended the two-step rule to claims “based on
substantive due process; First Amendment rights of assembly and free exercise; the Religious
Land Use and Institutionalized Persons Act of 2000,” and state religious-liberty laws. Id.
However, the final decision requirement does not apply where a plaintiff seeks damages for
injuries that are “independent of the challenged land-use decision,” such as injuries suffered as a
result of the unequal treatment itself. See Sunrise Detox, 769 F.3d at 123.
Concern’s damages claims challenging injuries suffered as a result of its exposure to an
alleged discriminatory zoning process itself, such as dignitary and emotional harms, are ripe and
the final decision requirement does not apply to these claims. Moreover, its claims for damages
and an injunction remedying the denial of the change-of-zone application are also ripe. The
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Court finds that Defendants arrived at a final decision as to Concern’s request for a change-of-
zone application, and in the alternative, that seeking a variance would be futile.4 I address each
argument in turn.
A. Concern’s discrimination claims for damages stemming from emotional and
reputational harms are ripe and fall outside the final decision requirement.
Generally, a “plaintiff alleging discrimination in the context of a land-use dispute” falls
within the ambit of the final-decision rule. Id. But the final-decision rule is not “mechanically
applied.” See Vill. Green, 43 F.4th at 294 (citation omitted). The Second Circuit has not
addressed “whether a property owner who claimed that a local official vetoed his or her
development project out of hostility” to a protected class “could seek immediate recompense in
federal court from that official . . . even in the absence of a final decision . . . .” Sunrise Detox,
769 F.3d at 123 (emphasis added). But it has suggested that the answer is “Yes.” When a
plaintiff “suffer[s] some injury independent of the challenged land-use decision,” they need not
establish that the official imposed that injury in a final decision. Id. That is because “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.” Id. At that moment, the injury has already
occurred. Further administrative appeals or applications for a variance “would do nothing to
further define” the injury of facing discrimination itself. Id. (citation omitted).
Any claims based on injuries Concern allegedly suffered from exposure to a
discriminatory process itself—independent of the denial of its change-of-zone application—are
4 Because the Court finds Concern’s claims ripe in this instance, it does not address whether
challenges to rezoning applications are always ripe when denied by a town’s legislative body.
(See Opp’n Mot. to Dismiss at 19.)
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ripe even absent a final decision under the principles recognized in Sunrise Detox. There, a
company requested a permit to operate an addiction treatment facility. Id. at 119. The
Department of Building declined. Id. at 120–21. The Second Circuit concluded that the
company’s request for “an injunction blocking the disapproval and authorizing construction of its
project” essentially made its claim an archetypal land-use claim, which required a final decision
by the city before the developer could sue. Id. at 123. But it recognized that certain
discrimination claims might rest on independent harms that could bypass such a requirement. See
id. The Second Circuit again recognized this principle in Village Green. 43 F.4th at 295–96 &
n.5.
The Complaint in this case pleads at least some claims that fall under the latter category.
Concern requests an injunction ordering Defendants to retract their Findings Statement and alter
the zoning map, claims for relief that fall within the scope of the finality requirement. (See
Compl. at 41.) But it also seeks damages on the grounds that Defendants used “methods of
administration that discriminate against people with mental health diagnoses.” Id. ¶ 142; see also
Vill. Green, 43 F.4th at 295–96 & n.5 (recognizing that injuries arising from exposure to a
discriminatory process may be ripe). Supplementing those allegations, the Complaint claims that
“Defendants’ discriminatory conduct has caused harm to Plaintiff’s business reputation . . . .”
(Compl. ¶ 129.) As an example, the Complaint alleges that Defendants’ discriminatory conduct
painted them as developers who “take[] parcel[s] off the market through an option to purchase
contract” but fail to follow through on the option. (Id.) In doing so, Defendants frustrate
Concern’s mission to help people live “in their communities with dignity.” (Id. ¶ 130.) The Court
therefore understands the Complaint to seek damages arising from the discrimination itself in
requesting “full[] compensat[ion] . . . for the loss that has been caused by the conduct of
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Defendants alleged.” (Id. at 41.) That claim for damages from the denial of “equal treatment” for
harm to business reputation and frustration of mission is ripe. Sunrise Detox, 769 F.3d at 123.
Resisting this conclusion at oral argument, Defendants insist that this passage of Sunrise
Detox is dicta. (Hr’g Tr. at 57:17–21.) But they offer no competing theory as to why a property
owner injured by the exposure to discriminatory treatment itself and seeking relief for injuries
independent of the land-use decision must show that the land-use decision is final. And legions
of federal courts in New York have taken the Second Circuit’s guidance set forth in Sunrise
Detox, which was subsequently reiterated in Village Green. See, e.g., Rehab. Support Servs., Inc.
v. Town of Colonie, No. 15-cv-589, 2018 WL 1415199, at *3 (N.D.N.Y. Mar. 20, 2018)
(recognizing that plaintiffs showing “some injury independent of the challenged land-use
decision” can be exempt from final-decision requirement); Orthodox Jewish Coal. v. Village of
Chestnut Ridge, No. 19-cv-443, 2021 WL 1226930, at *12 (S.D.N.Y. Mar. 31, 2021) (finding
claim that zoning law “w[as] discriminatory on [its] face” ripe even absent final decision because
discrimination posed independent injury “sufficient to confer standing” (citation omitted)); Dean
v. Town of Hempstead, 527 F. Supp. 3d 347, 398 (E.D.N.Y. 2021) (stating that “injury
independent of the challenged land-use decision” was not subject to final-decision rule).
Defendants fail to provide a substantive reason to ignore the Second Circuit’s directive in
Sunrise Detox and Village Green. Accordingly, Concern’s damages claims challenging
discrimination resulting in alleged harms to its business reputation and frustration of mission are
ripe.
B. The Town of Southampton made a final decision regarding Concern’s request for
permission to construct Liberty Gardens.
Concern’s remaining theory that Defendants deprived it of the opportunity to construct
affordable housing faces the final-decision test because it seeks “an injunction blocking the
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disapproval and authorizing construction of its project” and damages for Defendants’ denial of
its change-of-zone application. Sunrise Detox, 769 F.3d at 123; see also Compl. at 41 (seeking
an injunction that, among other things, would “direct[] Defendants to take all affirmative steps
necessary to remedy the effects of the illegal, discriminatory conduct . . . including, but not
limited to, issuance of a SEQRA Findings Statement that is consistent with the DEIS and FEIS,
and approval of the Liberty Gardens change of zone application”).
The final-decision test also contains two prongs that defy mechanical application. First,
the plaintiff must submit a “meaningful application to” the relevant “municipal agencies to
address its land-use dilemma.” Vill. Green, 43 F.4th at 297 (quoting Murphy, 402 F.3d at 348).
In many cases, that requires “at least one meaningful application for a variance” or authority “to
use [the] property in a manner forbidden by the zoning regulations,” Murphy, 402 F.3d at 345
n.1, 348 (citation omitted); see also 7-Eleven v. Inc. Vill. of Mineola, 7 N.Y.S.3d 517, 518–19
(App. Div. 2015). But in others, a meaningful application may consist of something more
robust—like a formal petition to a town board to “remov[e] . . . two [covenants and restrictions]”
from a rezoned plot of land. Vill. Green, 43 F.4th at 290, 297. The touchstone of this first prong
is to ensure that an abstract dispute is deferred until it arises “in a more concrete and final form.”
Murphy, 402 F.3d at 347. Second, the municipality must “have an opportunity to commit to a
position.” Vill. Green, 43 F.4th at 297. Together, these two steps ensure that by the time of suit,
the government has exhausted its opportunities to “clarify or change its decision.” Pakdel, 594
U.S. at 480.
Defendants suggest that because Concern has not sought use and area variances from the
Southampton Zoning Board of Appeals or a density increase from the Southampton Planning
Board, the Town Board did not make a final decision denying approval to build Liberty Gardens.
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(Mem. of L. in Supp. of Defs.’ Mot. to Dismiss (“Mot. to Dismiss”) at 14–15, ECF No. 27-13.)
Concern rejoins that the Town Board reached a final decision when it issued the Findings
Statement and denied its change-of-zone application. (Opp’n Mot. to Dismiss at 16–17.)
The Complaint plausibly alleges that Defendants made a final decision in denying
Concern’s application for a zone change. First, Concern made one meaningful application to use
its property in a manner forbidden by existing zoning regulations. All agree that Concern cannot
construct a 50-unit multi-family development on the five-acre Church Parcel, which is currently
zoned for at most 10 single-family units. (See Compl. ¶ 54.) So, Concern requested that the
Town Board exempt it from this rule by filing a “pre-application . . . seeking a zone change” in
2018. (Id. ¶ 53.) In June 2022, Concern wrote a draft EIS, which it amended in 2023 in response
to public feedback—specifically, 441 comments or questions raised during the environmental
review process. (Id. ¶¶ 62, 72.) There is “no question” that Concern submitted a “‘meaningful
application’ to municipal agencies to address its land-use dilemma.” Vill. Green, 43 F.4th at
297–98 (citation omitted). In proceeding through a seven-year regulatory gauntlet, it “did not
shirk the ‘give-and-take negotiation that often resolves land use problems.’” Id. (finding final
decision where a developer “began the arduous process of modifying” covenants on rezoned
property over a three-year long process) (citation omitted). Indeed, in response to public
comments, Concern revised its proposal for Liberty Gardens by removing a 10-unit building and
reducing the number of proposed units from 60 to 50. (Compl. ¶¶ 37, 80, 161.)
Second, the Complaint plausibly alleges that the Defendants exercised their “opportunity
to commit to a position” with respect to Liberty Gardens. Vill. Green, 43 F.4th at 297. Again,
Village Green at Sayville, LLC v. Town of Islip is analogous. There, a developer received
permission to rezone a plot of land on condition that it follow a set of covenants. Id. at 290. The
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developer later “petitioned the Town Board” to adjust the covenants so that it could construct a
64-unit apartment complex. Id. at 290–91. Instead of voting on the petition, the Board deemed it
to have “fail[ed] for lack of second” and shelved any future vote. Id. at 292, 298. The Second
Circuit found that the Town Board made a final decision even absent an official denial, because
its behavior showed that it had arrived “at a definitive position on the issue that inflict[ed] an
actual, concrete injury” on the developer. Id. at 298 (quoting Williamson Cnty., 473 U.S. at 193).
Asserting jurisdiction would not “entangl[e]” the courts “in abstract disagreements over matters
that are premature for review.” Id. at 293 (citation omitted).
This case parallels Village Green. The Town Board also “ha[d] an opportunity to commit
to a position” when Concern submitted a final EIS for its approval. Id. at 297. The Town Board
first adopted the final EIS on December 27, 2023, concluding that it “sufficiently addressed all
potential environmental impacts associated with the projects” (Compl. ¶¶ 85–86), but then
flipped its position by issuing a June 11, 2024 Findings Statement concluding that the only way
to avoid adverse environmental impacts from the proposed rezoning was to deny Concern’s
change-of-zone application—and in effect doom the Liberty Gardens development (id. ¶ 98).
The Town Board then did what it said and formally denied Concern’s “zone change application.”
(Id. ¶ 16.) In finding that Liberty Gardens would impose irremediable adverse environmental
effects, Defendants took a definitive position that Concern could not build Liberty Gardens on
the Church Parcel within the R-20 zone. See Vill. Green, 43 F.4th at 297–98. That conclusion
perfected the Town Board’s decision and ripened Concern’s lawsuit.
Defendants resist this conclusion, primarily relying on BMG Monroe I, LLC v. Village of
Monroe, 93 F.4th 595 (2d Cir. 2024). Their arguments are unpersuasive. The Second Circuit
there emphasized that ripeness depends “on a property owner submitting at least one meaningful
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application for a variance.” Id. at 601 (emphasis added) (citation omitted). Defendants take that
line to require, in all instances, “variance relief from the” Zoning Board of Appeals (“ZBA”).
(Mot. to Dismiss at 8 (emphasis added).) The words, however, cannot bear that brightline rule.
The first clue is the opinion’s text, in context. The Court declines to read BMG Monroe to
silently reverse Village Green’s holding that a “petition[]” to “the Town Board to allow it to
construct an apartment complex of 64 rental units” by removing two covenants attached to a
rezoned plot was a “meaningful application” notwithstanding the fact that it was not specifically
an application for a variance. 43 F.4th at 290–91, 296.
The second clue is the federal courts’ mantra that “judicial opinions are not statutes, and
we don’t dissect them word-by-word as if they were.” See United States v. Chastain, 145 F.4th
282, 294 n.4 (2d Cir. 2025) (quoting Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019) (Barrett,
J., dissenting)). Yet Defendants’ approach would do just that. Defendants overread the reference
to “variance” in BMG Monroe and would require every developer to apply for relief from the
ZBA and Planning Board before suit, even when other paths for obtaining that kind of
dispensation would be more appropriate. The facts of BMG Monroe illuminate why. There, a
developer challenged the “discriminatory enforcement of zoning regulations” but failed “to seek
a second variance after it sought to depart from the terms of” an initial variance. 93 F.4th at 601
(emphasis added). The Second Circuit held that when the village planning board informed the
developer that it had exceeded the conditions of the first variance, it “naturally follow[ed]” that
the developer should have applied for another variance. Id. at 603. That made sense, because the
developer obtained its first allowances through an initial variance. See id. at 599–600.
Through that lens, the Court’s holding in this action is consistent with BMG Monroe.
Nothing in that opinion precluded a developer from selecting a more shelf-stable method to
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obtain relief—here, a change-of-zone application. After all, the Second Circuit defined a
variance as the authority to use property “in a manner forbidden by the zoning regulations.”
Murphy, 402 F.3d at 345 n.1 (citation omitted); BMG Monroe, 93 F.4th at 602. And a zone
change is authority to use property in a manner previously forbidden by the zoning regulations.
Because Defendants originally “approached Concern” to build Liberty Gardens in the first place
(Compl. ¶ 13), it “naturally follows” here that Concern applied for regulatory relief from the
Town Board rather than from the ZBA and the Planning Board, BMG Monroe, 93 F.4th at 603.
That is true even if the Town Board is a different entity from the ZBA and Planning Board,
because the inquiry focuses on whether the plaintiff obtained a meaningful dispensation from the
rules—even in context. To hold otherwise and require a plaintiff to exhaust all possible forms of
relief would inflate ripeness into an exhaustion requirement.5 See Seafarers Int’l Union of N.
Am., AFL-CIO v. U.S. Coast Guard, 736 F.2d 19, 26 n.11 (2d Cir. 1984). Because “the initial
decisionmaker has arrived at a definitive position on the issue” of Concern’s zone-change
application, the claims challenging the denial of this application are ripe. Williamson Cnty., 473
U.S. at 193.
5 Indeed, the use and area variances required to achieve the same effect as Concern’s change-of-
zone application may impose an even greater burden than the parties represent. While the parties
do not brief this point, it appears that a variance from the Southampton Building Inspector or
ZBA would likely also trigger the environmental review processes under SEQRA because
Concern’s proposed variance would obtain the same result as the zone change. See, e.g., Gidney
v. Zoning Bd. of Appeals, 171 N.Y.S.3d 274, 275 (App. Div. 2022) (affirming SEQRA review of
variance application); Buckley v. Zoning Bd. of Appeals, 139 N.Y.S.3d 732, 734 (App. Div.
2020) (same). Therefore, it also “may have a significant adverse impact on the environment and
require[] the preparation of an EIS.” N.Y. Comp. Codes R. & Regs. tit. 6, § 617.4(a)(1).
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C. Even if Defendants did not render a final decision as to Concern’s application to
develop Liberty Gardens, seeking variances would be futile.
A plaintiff is “excused from obtaining a final decision if pursuing an appeal to a zoning
board of appeals or seeking a variance would be futile.” Murphy, 402 F.3d at 349. This exception
protects “property owners from being required to submit multiple applications when the manner
in which the first application was rejected makes it clear that no project will be approved.”
Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona, 915 F. Supp. 2d 574, 602
(S.D.N.Y. 2013), aff’d, 945 F.3d 83 (2d Cir. 2019) (citation omitted). For instance, a developer
need not seek a dispensation from an agency that “lacks discretion to grant variances” or that
“has dug in its heels and made clear that all such applications will be denied.” Murphy, 402 F.3d
at 349; Williamson Cnty., 473 U.S. at 193. But “mere doubt” that a variance “would be denied is
insufficient to establish futility.” Dreher v. Doherty, 531 F. App’x 82, 83 (2d Cir. 2013)
(summary order); BMG Monroe I, 93 F.4th at 603. Stating that a government entity is “openly
hostile to” a proposal, for instance, is not enough. See Xikis v. City of New York, No. 89-cv-2000,
1990 WL 156155, at *6 (E.D.N.Y. Sept. 28, 1990); Homefront Org., Inc. v. Motz, 570 F. Supp.
2d 398, 408 (E.D.N.Y. 2008).
Concern argues that even if it had to request a variance from the Zoning Board of
Appeals, doing so would be futile. It claims that the density bonus incentive for “community
benefit units,” which Defendants urge Concern to request, is not generous enough to permit a 50-
unit project. (Mot. to Dismiss at 14; Opp’n Mot. to Dismiss at 21–22.) As to the variance itself,
Concern suggests that the Southampton ZBA lacks discretion to grant the “use variance to permit
multi-family dwellings” and “area variance to increase the permitted density to ten units per
acre” that would allow Liberty Gardens to be a viable housing complex. Such a dramatic
exemption, it argues, would redraw the zoning map—circumventing the separation between the
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Town Board’s power to create the zoning rules and the ZBA’s power to grant variances from
those rules “in harmony with their general purpose and intent.” N.Y. Town Law § 261.
A density increase would be futile. Under Southampton Town Code § 330-9(C)(2), the
Town Planning Board “may authorize a maximum density increase of up to 50% of the as-of-
right yield for community benefit units.” Southampton, N.Y., Town Code § 330-9(C)(2),
https://ecode360.com/8700476#8700536. But the as-of-right yield under the existing R-20 zone
at issue permits Concern to build only two units per acre. (Compl. ¶ 35.) A 50% increase from
that two-unit figure under Section 330-9(2) would not come close to the 10-unit-per-acre
allowance the project requires. (See id. ¶ 37.) Because the Town Planning Board lacks discretion
to grant the substantial incentive increase “of the type [Concern] would likely require,” Concern
has plausibly alleged facts showing that pursuing a substantial incentive increase is futile.
Londregan v. Town of East Lyme, 666 F. Supp. 3d 192, 201 (D. Conn. 2023).
Concern also plausibly alleges that the use and area variances would also be futile. In
Southampton, the ZBA processes requests for variances from the Town’s zoning laws.
Southampton, N.Y., Town Code § 330-166, https://ecode360.com/8702293. But the ZBA may
not “remake the zoning map under the guise of granting a variance.” Levitt v. Inc. Vill. of Sands
Point, 189 N.Y.S.2d 212, 214–15 (1959); see also Lerner v. Town of Islip, 272 F. Supp. 664, 668
(E.D.N.Y. 1967) (finding claim ripe on this ground); Hess v. Zoning Bd. of Appeals of Vill. of
Sands Point, 188 N.Y.S.2d 1028, 1029 (N.Y. Sup. Ct. 1955) (“The Board of Appeals is an
administrative body and may not usurp the functions of the village trustees.”). That is because
rezoning is a legislative power, vested in the Town Board. By contrast, the ZBA wields the
administrative “power” to issue “variation[s] or dispensation[s]” from the rules, “where strict
enforcement of the letter of the restriction would cause practical difficulties or unnecessary
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hardship.” Levy v. Bd. of Standards & Appeals, 267 N.Y. 347, 352–53 (1935). The converse is
also true: the ZBA may not “review the legislative general rules regulating the use of the land.”
Id. at 352. Because any variance must cohere “with the general intent of the zoning restrictions,”
id. at 353, ZBAs across New York have declined to grant variances which would practically
effect “a change of zone,” Hess, 188 N.Y.S.2d at 1029; In re Northampton Colony, Inc., 219
N.Y.S.2d 292, 293–94 (N.Y. Sup. Ct. 1961); see also Ifrah v. Utschig, 98 N.Y.2d 304, 309
(2002) (upholding variance denial on statutory grounds that the variance was substantial);
Pecoraro v. Bd. of Appeals, 2 N.Y.3d 608, 614 (2004) (same); Allstate Props., LLC v. Bd. of
Zoning Appeals, 856 N.Y.S.2d 130, 132 (App. Div. 2008) (same). To allow such a variance
would “violate[] the general purpose of the” zoning map and intrude upon the Town Board’s
jurisdiction. Van Deusen v. Jackson, 312 N.Y.S.2d 853, 857 (App. Div. 1970); Scarsdale Supply
Co. v. Village of Scarsdale, 8 N.Y.2d 325, 330 (1960).
New York’s statutory scheme confirms this approach. To safeguard the Town Board’s
prerogative, New York law emphasizes that a ZBA may grant only the “minimum variance that
it shall deem necessary and adequate” to address an applicant’s hardships, but “at the same time
preserve and protect the character of the neighborhood.” N.Y. Town Law § 267-B(2)(c). And in
imposing variance conditions, the ZBA must ensure that such conditions follow “the spirit and
intent of the zoning ordinance or local law.” Id. § 267-B(4).
The Complaint adequately alleges that Defendants’ proposed variance would violate New
York law by implementing precisely the zone change rejected by the Town Board. To build
Liberty Gardens by way of variance, Concern would need a 400% increase in the density limit
permitted by the R-20 zone. (See Compl. ¶ 54.) Because the Church Parcel permits only single-
family developments, Concern would also require a separate use variance for multi-family
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housing on the limited land. (Opp’n Mot. to Dismiss at 22.) A reasonable decisionmaker could
find that this kind of dramatic transformation in the Church Pacel’s carrying capacity
contravenes the “spirit and intent of the zoning ordinance.” N.Y. Town Law § 267-B(4).
Accordingly, the Complaint sets forth allegations rendering plausible that the ZBA lacks
discretion to issue the variance, so requesting one is futile at this stage.
Resisting this conclusion, Defendants suggest that the “negotiation process inherent in
land use matters” might result in a development that is both acceptable to Concern and within the
ZBA’s prerogative. (Reply Mem. of L. in Supp. of Mot. to Dismiss at 13, ECF No. 27-17.) But
Defendants cite no authority showing that Concern’s claim against the denial of its zone-change
application is unripe simply because Concern could theoretically settle for a project with
different characteristics. And they do not adduce evidence as to what compromise development
Concern might accept. The Complaint indicates that Concern already negotiated with the District
to reduce the number of planned units from 60 to 50. (Compl. ¶ 80.) Though “mere doubt” as to
a variance’s success cannot establish futility, Dreher, 531 F. App’x at 83, Defendants cannot
rebut Concern’s case by simply asserting that the ZBA would perform a miracle or that Concern
would accept a far smaller development.
II. 	The Court exercises supplemental jurisdiction over Concern’s Article 78 claim.
Federal district courts have “supplemental jurisdiction over all other claims that are so
related to claims in the action within [its] original jurisdiction that they form part of the same
case or controversy.” 28 U.S.C. § 1367(a). A group of claims form part of the same case or
controversy if they are derived from “a common nucleus of operative fact.” Shahriar v. Smith &
Wollensky Rest. Grp., 659 F.3d 234, 245 (2d Cir. 2011) (citation omitted). At issue is whether
the Court may exercise supplemental jurisdiction over Concern’s Article 78 claim.
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Under Article 78, a party may challenge a municipal entity’s actions that are legally
wrongful, outside the officer’s jurisdiction, arbitrary and capricious, or unsupported by
substantial evidence. N.Y. C.P.L.R. § 7803(2)–(4). Though Article 78 proceedings offer
expedited procedures for litigants, such claims “shall be brought in the supreme court in the”
relevant county. Id. § 7804(b). Defendants ask that the Court “decline to exercise its
discretionary supplemental jurisdiction” over Concern’s claim under Article 78 of the New York
Civil Practice Law and Rules. (Mot. to Dismiss at 16.)
For the reasons explained below, the Court finds that it may exercise supplemental
jurisdiction over Concern’s Article 78 claim under Section 1367(a). The Court chooses to
exercise that jurisdiction in view of the factors set out in 28 U.S.C. § 1367(c).
A. As an initial matter, federal courts may exercise supplemental jurisdiction over
Article 78 claims.
The Second Circuit has not decided “whether Article 78 can, on its own, deprive a federal
court of jurisdiction over claims brought under that provision.” Carver v. Nassau Cnty. Interim
Fin. Auth., 730 F.3d 150, 155 (2d Cir. 2013). Courts in this Circuit are of two minds. One line of
cases looks to the state statutory text to conclude that “New York State has not empowered the
federal courts to consider such claims.” Blatch ex rel. Clay v. Hernandez, 360 F. Supp. 2d 595,
637 (S.D.N.Y. 2005); Garofalo v. City of New York, No. 22-cv-7620, 2023 WL 3792514, at *5
(E.D.N.Y. June 2, 2023) (collecting cases). Another line looks to Congress’s conferral of broad
supplemental jurisdiction under 28 U.S.C. § 1367 to hear Article 78 claims. Garofalo, 2023 WL
3792514, at *6 (E.D.N.Y. June 2, 2023) (exercising removal jurisdiction over plaintiff’s Article
78 claim raising embedded Second Amendment issues); Casale v. Metro. Transp. Auth., No. 5-
cv-4232, 2005 WL 3466405, at *6 (S.D.N.Y. Dec. 19, 2005) (exercising removal jurisdiction
over Article 78 proceeding presenting Fourteenth Amendment and arbitrary-and-capricious
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claim); Residents & Fams. United to Save Our Adult Homes v. Zucker, No. 16-cv-1683, 2017
WL 5496277, at *13 (E.D.N.Y. Jan. 24, 2017) (exercising removal jurisdiction over federal and
state claims).
The Court agrees with the latter camp. The Second Circuit has intimated that the
Supreme Court’s decision in City of Chicago v. International College of Surgeons, 522 U.S. 156
(1997), “would suggest” that New York law may not “deprive a federal court of jurisdiction over
claims brought under that provision.” Carver, 730 F.3d at 155. In that case, a developer
challenged the denial of a permit by filing a claim under the Illinois Administrative Review Law,
a state cause of action for reviewing administrative acts under federal or state law. 522 U.S. at
163–64. After defendants removed the case to federal court, the Supreme Court held that federal
district courts could assert jurisdiction. Id. It reasoned, as to the state claim, that “[n]othing in
§ 1367(a)” foreclosed supplemental jurisdiction over claims seeking “review of local
administrative determinations.” Id. at 171.
The same is true here. The Complaint brings numerous federal statutory claims, but it
also brings an Article 78 claim for arbitrary and capricious review of the Town of Southampton’s
Findings Statement. (See Compl. ¶¶ 132–75.) The Court has original jurisdiction over the federal
claims, which “aris[e] under” federal law. 28 U.S.C. § 1331. Accordingly, I may also exercise
supplemental jurisdiction over the Article 78 claim under 28 U.S.C. § 1367(a) because it shares a
common “nucleus of operative fact” with the remaining claims: the denial of Concern’s change-
of-zone application. City of Chicago, 522 U.S. at 157; 28 U.S.C. § 1367(a). And while New
York State may specify how Article 78 claims proceed in its own courts, its requirement that
such petitions “shall be brought” in state courts has “nothing to do with whether the proceeding
falls within a federal jurisdictional statute.” Garofalo, 2023 WL 3792514, at *5 (quoting Casale,
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2005 WL 3466405, at *6). As the Garofolo court explained, such an interpretation would enable
“state legislatures” and “not Congress” to “control the power of the federal judiciary.” Id.
(quoting Residents & Fams., 2017 WL 5496277, at *13). Yet state courts “have no power to
enlarge or to contract the federal jurisdiction.” Grand Bahama Petrol. Co. v. Asiatic Petrol.
Corp., 550 F.2d 1320, 1325 (2d Cir. 1977) (citation omitted); see also Anthology, Inc. v. Tarrant
Cnty. Coll. Dist., 136 F.4th 549, 553 (5th Cir. 2025). Because only Congress and the
Constitution may delimit the Court’s jurisdiction, Article 78 cannot divest it of the power to hear
Concern’s Article 78 claim.
B. The Court chooses to exercise supplemental jurisdiction over Concern’s
Article 78 proceedings here.
As noted, in 28 U.S.C. § 1367(a), Congress provided that where a federal court has
original jurisdiction over claims in an action, the court “shall have supplemental jurisdiction over
all other” related claims that are part of the same case or controversy. Id. (emphasis added).
However, just because one can do something does not mean one should. So, Congress provided
that even where a federal court has supplemental jurisdiction over a claim under Section 1367(a),
it “may decline to exercise supplemental jurisdiction over [that] claim” if:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially
predominates over the claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis added). Balancing these factors, a court must also weigh the
values of “judicial economy, convenience, fairness, and comity.” Klein & Co. Futures, Inc. v.
Bd. of Trade of City of N.Y., 464 F.3d 255, 262 (2d Cir. 2006).
Federal courts disagree over whether they should, as a matter of discretion, exercise
supplemental jurisdiction over an Article 78 claim under 28 U.S.C. § 1367(c). Some federal
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courts decline jurisdiction on grounds that New York has expressed a “preference for” a mode of
procedure that “is designed to facilitate a summary disposition of the issues presented.” Carver,
730 F.3d at 155; see, e.g., Camacho v. Brandon, 56 F. Supp. 2d 370, 380 (S.D.N.Y. 1999)
(declining to litigate Article 78 arbitrariness claim in federal court to preserve state procedural
rules in that scheme). Others disagree, reasoning that severing Article 78 claims from claims
over which there is original jurisdiction “would run contrary to the interests of judicial economy”
and risk “duplicative litigation.” Garofalo, 2023 WL 3792514, at *6 (doing so where plaintiff
raised Article 78 claim to present federal constitutional claims); Residents & Fams., 2017 WL
5496277, at *13 (exercising supplemental jurisdiction over Article 78 claim containing federal
claims as well as state-law claims derived from common nucleus of operative fact).
Here, the Section 1367(c) factors weigh strongly in favor of this Court’s exercise of
supplemental jurisdiction over Concern’s Article 78 claim pursuant to Section 1367(a). With
respect to the third Section 1367(c) factor, none of the claims over which this Court has original
jurisdiction are dismissed; rather, the federal claims survive Defendants’ Rule 12(b)(6) motion
for the reasons already explained.
Moreover, with respect to the first Section 1367(c) factor, it does not appear, and
Defendants do not suggest, that Concern’s challenge to the Town Board’s Findings Statement as
arbitrary and capricious would present novel or complex issues of state law. The claim focuses
on whether the Findings Statement contradicts Concern’s Final EIS (Compl. ¶ 173), a primarily
factual assessment of the magnitude of the adverse environmental impacts presented on the
record. And that question requires the Court to assess whether the Town Board made a decision
“without sound basis in reason” or “without regard to the facts.” Pell v. Bd. of Educ. of Union
Free Sch. Dist. No. 1, 34 N.Y.2d 222, 231 (1974). Answering that question does not disturb
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unexplored areas of state law, as far as the Court can tell. See Johnson v. Carlo Lizza & Sons
Paving, Inc., 160 F. Supp. 3d 605, 616 (S.D.N.Y. 2016) (finding factual question of whether
plaintiffs fell within class definition “more factual than legal” and therefore favoring exercise of
supplemental jurisdiction).
Nor would the Article 78 claim predominate over Concern’s federal claims—the second
Section 1367(c) factor. The claims cohere: the legitimacy of the Findings Statement informs
whether Defendants acted based on environmental concern rather than discriminatory animus.
See, e.g., Chestnut Hill NY, Inc. v. City of Kingston, No. 23-cv-1024, 2024 WL 3415116, at *10
(N.D.N.Y. July 15, 2024) (collecting cases that looked to credibility of municipality’s decision in
inferring discriminatory intent). The converse is also true: whether Defendants made housing
unavailable on the basis of disability in violation of the FHA, for instance, may require the Court
to judge the “pretextual nature of the[ Town Board’s] environmental findings.” (Compl. ¶ 107.)
The shared locus between Concern’s federal claims and its Article 78 claims suggests that
severing the Article 78 claims from this action would “run contrary to the interests of judicial
economy” by requiring two similar, if not identical, assessments of a complex administrative
record. Garofalo, 2023 WL 3792514, at *6.
Finally, Defendants contend that exceptional circumstances counsel against the exercise
of supplemental jurisdiction over the Article 78 claims because such claims are normally handled
under “specific procedure[s] for” special “summary proceeding[s]” in state court. (See Mot. to
Dismiss at 11 n.9.) Defendants do not explain why it would be difficult for this Court to
implement such summary procedures. Nor do they address whether the Rules Enabling Act, 28
U.S.C. § 2072, would preempt any state rules setting forth the summary procedures used to
adjudicate Article 78 claims. Nevertheless, even assuming that this fourth Section 1367(c) factor
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disfavors Concern, it does not mandate dismissal of the Article 78 claims from this action. The
Court recognizes that Article 78 “reflects a state preference for a state mode of procedure”
offering plaintiffs “a fast and cheap way to implement a right.” Carver, 730 F.3d at 155. But
Carver clarified that such an interest bears on “whether the district court abused its discretion in
deciding” to exercise supplemental jurisdiction “where other factors, too, strongly support
declining that jurisdiction.” Id. (emphasis added). Here, all three of the remaining Section
1367(c) factors weigh strongly in favor of this Court’s exercise of supplemental jurisdiction over
the Article 78 claims under Section 1367(a) because federal claims remain in this action,
Concern’s state and federal claims implicate overlapping questions of law, and Defendants fail to
identify any novel state law issue implicated by the state law claims. See Residents & Fams.,
2017 WL 5496277, at *13 (choosing to exercise jurisdiction because federal and state claims
derived from common facts); Cedar Dev. E., LLC v. Town Bd. of Hurley, No. 21-cv-289, 2021
WL 3422342, at *7–8 (N.D.N.Y. Aug. 5, 2021) (same).
III. 	Concern’s Claims against the Town Board are dismissed.
Under Federal Rule of Civil Procedure 17(b), “an entity is suable in federal court only if
it would be suable under the laws of the state where it was created.” Omnipoint Commc’ns, Inc.
v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009); MetroPCS N.Y., LLC v. City of
Mount Vernon, 739 F. Supp. 2d 409, 419 (S.D.N.Y. 2010). Defendants contend that the Town
Board lacks a separate legal entity from the Town of Southampton itself, so it may not be sued in
its separate capacity. Mot. to Dismiss at 20; Town & Country Adult Living, Inc. v. Vill./Town of
Mount Kisco, No. 17-cv-8586, 2019 WL 1368560, at *13 (S.D.N.Y. Mar. 26, 2019) (collecting
cases); Soundview Assocs. v. Town of Riverhead, 725 F. Supp. 2d 320, 343–44 (E.D.N.Y. 2010)
(same). Concern responds that the Town Board is a separate suable entity because Defendants
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have not offered evidence that the Town Board lacks “the capacity to be sued under its municipal
charter.” Edwards v. Arocho, 125 F.4th 336, 354 (2d Cir. 2024); Opp’n Mot. to Dismiss at 29.
Defendants have the better argument. As an initial matter, Concern brought this action
against the Town Board out of apprehension that any discovery requests or awards of relief
against the Town of Southampton “would not bind the Town Board.” (Hr’g Tr. at 47:17–25.) But
Defendants conceded at oral argument that such requests against the Town of Southampton
would bind the Town Board, mitigating any prejudice from dismissing the claims against it. (Id.
at 28:9–29:5.) In any case, the Court declines to read Edwards—a suit against a municipal
department of corrections—to overturn the long-recognized principle in New York Law that
town boards—vested with “all the powers” and subject to “all the duties” of a town, N.Y. Town
Law § 60—are legally indistinct from the towns they serve. See, e.g., Town & Country, 2019 WL
1368560, at *13; Soundview, 725 F. Supp. 2d at 343–44; Lopiccolo v. Holtsville Fire Dist., 244
N.Y.S.3d 163, 167 (App. Div. 2025) (citing Dish Realty, LLC v. Town of Huntington, 996
N.Y.S.2d 335, 336 (App. Div. 2014)); Berean v. Town of Lloyd, 162 N.Y.S.2d 534, 538–39
(App. Div. 1957).
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted in part and denied in part.
The Complaint’s NYSHRL claims and claims against the Town Board are dismissed, but all
remaining claims may proceed as ripe, including Concern’s Fair Housing Act, Americans with
Disabilities Act, Rehabilitation Act, and Article 78 claims.6 Finally, the Court exercises
6 Concern’s NYSHRL claims are dismissed pursuant to the parties’ agreement. (Opp’n Mot. to
Dismiss at 16–17.)
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jurisdiction over Concern’s Article 78 claims under its independent grant of supplemental
jurisdiction under 28 U.S.C. § 1367.
In resolving the motion to dismiss, the Court also lifts the stay of discovery. The parties
shall contact the assigned magistrate judge for a discovery schedule by March 19, 2026.
Dated: Central Islip, New York
March 12, 2026
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge
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