13‐2911 Sunrise Detox v. City of White Plains 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2013 4 (Argued: May 8, 2014 Decided: October 2, 2014) 5 Docket No.13‐2911 7 Sunrise Detox V, LLC, 8 Plaintiff–Appellant, 9 v. 10 City of White Plains, City of While Plains Common Council, City of White Plains 11 Department of Building, 12 Defendants–Appellees.

14 Before: JACOBS, SACK, and LYNCH, Circuit Judges.

15 The plaintiff, a provider of medically supervised care for individuals 16 recovering from alcohol and drug abuse, sought permission to operate a 17 treatment facility in White Plains, New York. After a determination that the 18 facility did not meet applicable zoning regulations, the plaintiff brought this suit 19 under the Americans with Disabilities Act. The United States District Court for 20 the Southern District of New York (Vincent L. Briccetti, Judge) dismissed the 21 complaint for lack of subject‐matter jurisdiction, concluding that the plaintiff, by 22 declining to seek a variance or appeal the zoning decision, had failed to obtain a

1 final decision on its application. Because we reject the plaintiffʹs argument that its allegations of intentional discrimination relieve it from the final‐decision requirement, the judgment of the district court is 4 AFFIRMED.

5 JAMES K. GREEN, West Palm Beach, FL 6 (Robert L. Schonfeld, Moritt Hock & 7 Hamroff LLP, Garden City, NY, on the 8 brief), for Plaintiff–Appellant.

9 LALIT K. LOOMBA (Peter A. Meisels, John 10 M. Flannery, on the brief), Wilson, Elser, 11 Moskowitz, Edelman & Dicker LLP, White 12 Plains, NY, for Defendants–Appellees.

13 SACK, Circuit Judge: 14 Sunrise Detox V, LLC, applied for a special permit under the zoning 15 ordinance of White Plains, New York, to establish a facility for individuals 16 recovering from drug or alcohol addiction. In order to satisfy the zoning 17 regulations in force at its identified site, Sunrise sought to have its proposed 18 facility designated a ʺcommunity residence.ʺ The commissioner of the cityʹs 19 Department of Building determined that the facility did not qualify as a 20 community residence and that, as a result, the city could take no further action 21 on the application until Sunrise either applied for a variance or appealed the 22 determination. Instead, Sunrise brought this action alleging intentional 23 discrimination, disparate impact discrimination, and failure to grant a reasonable

1 accommodation in violation of the Americans with Disabilities Act (ʺADAʺ), 42 2 U.S.C. § 12101 et seq. Because we conclude that the dispute is not ripe, we affirm the judgment of the district court.

4 BACKGROUND 5 Sunrise wants to establish a facility for individuals recovering from addiction at 37 DeKalb Avenue, White Plains, New York, in a building that was formerly used as a nursing home. Because the site is located in the cityʹs R2‐2.5 zoning district, Sunriseʹs proposed facility would have to qualify as a ʺcommunity residenceʺ or a ʺdomiciliary care facilityʺ and be granted a special 10 permit from the cityʹs Common Council in order to operate within the cityʹs 11 zoning ordinance.1 The ordinance defines a ʺcommunity residenceʺ as 12 [a] residential facility for the mentally disabled operated 13 pursuant to the New York State Mental Hygiene Law 14 and regulations promulgated thereunder, including an 15 alcoholism facility, a hostel, a halfway house and any 16 other such facility as defined in such regulations, and 17 any similar facilities operated under the supervision of 18 federal departments and agencies.

19 City of White Plains, N.Y. Zoning Ordinance § 2.4 (1981) (hereinafter 20 ʺOrdinanceʺ), available at http://www.cityofwhiteplains.com/index.aspx?nid=120 21 (last visited Oct. 1, 2014).

The nursing homeʹs establishment predated the current ordinance, and it was granted a special permit to continue operation as a ʺdomiciliary care facility.ʺ 1 On June 15, 2012, Sunrise submitted its application for a special permit for its proposed facility, which it styled a ʺcommunity residence,ʺ to the city Department of Building. See Ordinance § 6.3. In a cover letter, Sunrise stated that the residence would ʺoperate as a short‐term, medically monitored facilityʺ treating ʺadults who have a primary substance use disorder which requires medical detoxification,ʺ with a maximum capacity of 33 beds and an average client stay of 5.7 days. J.A. 89, 90. Having ʺdetermined [the application] to be complete,ʺ Ordinance § 6.3, the commissioner of the Department of Building forwarded Sunriseʹs proposal to the Common Council.

10 The application was deemed ʺofficially submitted and receivedʺ at the 11 Common Councilʹs early July meeting and was then forwarded to the Planning 12 Board, in accordance with the procedures set out in the zoning ordinance.

13 Ordinance §§ 6.3, 6.4.1. The Planning Board unanimously recommended 14 approval ʺfor a period of one year,ʺ finding that ʺthe proposed community 15 residence meets the special permit requirements of the zoning ordinance.ʺ Letter 16 of Michael Quinn, Chairman, Planning Board, to Mayor and Common Council of 17 White Plains (July 27, 2012) (J.A. 177). The cityʹs Department of Law also 18 reviewed the application, and a public hearing was set for September 4, 2012.

1 As public opposition to the facility mounted through the summer of 2012, however, Sunrise sought to delay the hearing. After two adjournments and two open sessions, the Common Council ended public hearings on December 3, 2012.

4 Sunrise then changed tack, writing to the mayor of White Plains and the Common Council to ʺrequest[ ] a reasonable accommodation to treat Sunriseʹs proposed use as a ʹCommunity Residence.ʹʺ Letter of Sunrise to Mayor and Common Council of White Plains, at 1 (Dec. 19, 2012) (J.A. 119). At its next meeting, the Common Council adopted a resolution permitting the letter to be considered despite its late submission and allowing an additional two weeks for 10 public comment.

11 The Common Council also referred the application back to the Planning 12 Board for reconsideration in light of Sunriseʹs letter. The board reiterated its 13 view that Sunriseʹs proposal met the ordinanceʹs special permit requirements.

14 But local residents argued that the proposed facility did not qualify as a 15 ʺcommunity residence.ʺ They asserted in letters submitted during the extended 16 public comment period that the proposed number of beds and short client stays 17 made the facility a short‐term inpatient treatment facility rather than a 18 community residence under state law. See N.Y. Mental Hyg. Law § 1.03(28)

1 (stating that a ʺcommunity residenceʺ ʺprovides . . . a homelike environment and room, board and responsible supervision for the habilitation or rehabilitation of individuals with mental disabilities as part of an overall service delivery systemʺ but also ʺinclude[s] an intermediate care facility with fourteen or fewer residentsʺ).

6 On February 27, 2013, after reviewing Sunriseʹs supplemented application, the commissioner of the Department of Building issued a revised determination.

8 He noted that the department had ʺinitially concluded that the proposed facility most closely matched the ʹCommunity Residenceʹ definitionʺ in the zoning 10 ordinance, but explained that the newly submitted information had led it to 11 reconsider. Letter from Damon A. Amadio, Commʹr, Depʹt of Bldg., to Mayor 12 and Common Council of White Plains, at 1–2 (Feb. 27, 2013) (J.A. 129–31). The 13 department, he wrote, had now determined that the services provided by Sunrise 14 were properly classified as ʺCrisis Services,ʺ so that the ʺclosest appropriate 15 zoning ordinance classification . . . [wa]s Hospitals or Sanitariaʺ—a use not 16 permitted in the R2‐2.5 zone. Id. at 3 (J.A. 131). The commissioner informed 17 Sunrise that it would have to either seek a variance or appeal the departmentʹs

1 determination to the Zoning Board of Appeals in order to proceed with its application. Id.; see also Ordinance § 6.4.5.2.

3 Sunrise did not seek relief from the Board of Appeals. Instead, it filed this lawsuit on March 11, 2013, alleging that the city intentionally discriminated against it and its prospective clients; that the commissionerʹs interpretation of ʺcommunity residenceʺ disparately impacted Sunrise and its prospective clients; and that the city failed to offer a reasonable accommodation by allowing Sunriseʹs proposed use of the property.

9 Sunrise filed a motion for a preliminary injunction on March 20, 2013. On 10 April 30, 2013, the city cross‐moved to dismiss the complaint pursuant to Rule 11 12(b)(1). Oral argument was held on July 8, 2013. At the close of argument, the 12 district court (Vincent L. Briccetti, Judge) dismissed the case for lack of subject‐ 13 matter jurisdiction, concluding that Sunriseʹs claims were unripe for adjudication 14 by the court because they presented ʺa zoning dispute as to which there has been 15 no final determination.ʺ Tr. of Oral Argument at 63, Sunrise Detox V, LLC v. City 16 of White Plains, No. 13 Civ. 1614 (VB) (S.D.N.Y. July 8, 2013) (relying on Murphy v. 17 New Milford Zoning Commʹn, 402 F.3d 342 (2d Cir. 2005)). The district court also 18 concluded that the futility exception to the final determination requirement did

1 not apply because Sunrise had shown neither that the Board of Appeals lacked jurisdiction to grant a variance or to reverse the commissionerʹs determination, nor that the Board of Appeals had ʺdug in its heels and made clear that all such applications will be denied.ʺ Id. at 64. Judgment was entered on July 10, 2013.

5 Sunrise appeals, arguing that the dispute is ripe for adjudication and that the city violated the ADA by intentionally discriminating against its prospective clients and failing to make a reasonable accommodation.2 8 DISCUSSION 9 This Court reviews de novo the dismissal of a complaint under Rule 10 12(b)(1). Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013). The district courtʹs 11 determination that an issue is not ripe is also reviewed de novo. United States v. 12 Broadcast Music, Inc., 275 F.3d 168, 178 (2d Cir. 2001).

13 Because ʺ[r]ipeness is a jurisdictional inquiry,ʺ landowners bringing 14 zoning challenges must meet ʺthe ʹhigh burdenʹ of proving that we can look to a 15 final, definitive position from a local authority to assess precisely how they can 16 use their propertyʺ before this Court may entertain their claims. Murphy, 402 17 F.3d at 347. Sunrise argues that this final‐decision requirement does not apply to

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).

1 zoning challenges under the ADA based on allegations of intentional discrimination because those ʺcause[] a uniquely immediate injuryʺ rendering such claims ʺripe from the act of discrimination.ʺ Appellantʹs Br. 22. In the alternative, Sunrise contends that its suit is ripe either because the city constructively denied its application or because further pursuit of the application would have been futile. We conclude otherwise.

7 The Supreme Court has articulated ʺspecific ripeness requirements applicable to land use disputes,ʺ Murphy, 402 F.3d at 347, in particular holding that a takings claim ʺis not ripe until the government entity charged with 10 implementing the regulations has reached a final decision regarding the 11 application of the regulations to the property at issue,ʺ Williamson Cnty. Regʹl 12 Planning Commʹn v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985).

13 Although Williamson County involved a challenge to a regulatory taking, the 14 final‐decision requirement ʺhas not been so strictly confined.ʺ Murphy, 402 F.3d 15 at 349‐50 (citing opinions from the Third, Seventh, and Ninth Circuits). We have 16 previously extended the final‐decision requirement to zoning challenges based 17 on substantive due process; First Amendment rights of assembly and free 18 exercise; the Religious Land Use and Institutionalized Persons Act of 2000

1 (ʺRLUIPAʺ), 42 U.S.C. §§ 2000cc et seq.; and a state analogue to RLUIPA, the Connecticut Act Concerning Religious Freedom (ʺCACRFʺ), Conn. Gen. Stat. § 52‐571b. See Southview Assocs. v. Bongartz, 980 F.2d 84, 96–97 (2d Cir. 1992) (substantive due process); Murphy, 402 F.3d at 352 (First Amendment, RLUIPA, and CACRF). For the reasons that follow, we decline to adopt a categorical rule excepting from the final‐decision requirement any case in which a landowner alleges intentional discrimination.

8 We have previously characterized ʺ[t]he purpose of the ripeness requirementʺ as ʺensur[ing] that a dispute has generated injury significant 10 enough to satisfy the case or controversy requirement of Article III of the U.S. 11 Constitution.ʺ Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 12 83, 90 (2d Cir. 2002). Williamson Countyʹs final‐decision requirement helps 13 distinguish between those cases in which a plaintiff has suffered a ʺconcrete and 14 particularized,ʺ ʺactual or imminentʺ injury, Lujan v. Defenders of Wildlife, 504 U.S. 15 555, 560 (1992), and those in which the injury is ʺmerely speculative and may 16 never occur, depending on the final administrative resolution,ʺ Dougherty, 282 17 F.3d at 90; see Williamson Cnty., 473 U.S. at 191 (ʺ[T]he factors of particular 18 significance in the [takings] inquiry . . . . simply cannot be evaluated until the

1 administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.ʺ). In other words, a non‐final decision on how a parcel of land may be used does not ordinarily give rise to an injury that is sufficiently concrete and particularized to satisfy Article III.

6 Sunrise argues, however, that there are limits to the principle announced in Williamson County, and that distinctions between the rights at issue in that case and in this one illustrate those limits. Sunrise points out that Williamson County involved a claim of ʺregulatory takingʺ— that is, a claim that the denial of the 10 landownerʹs development proposal was tantamount to a taking of the ownerʹs 11 property for public purposes, that under the Constitution entitled the owner to 12 compensation. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1017 (1992); 13 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In such a case, Sunrise 14 argues, the landowner seeks compensation for a harm that is inherent in the 15 denial of the permit itself, which is not complete until the proposed land use is 16 finally and definitely forbidden. Here, in contrast, Sunrise claims that it was the 17 victim of an act of disability discrimination forbidden by federal law, and that

1 the injury from such discrimination is experienced as soon as the official acts with a discriminatory motivation.

3 The argument is not without appeal. Generally, 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. See Patsy v. Fla. Bd. Of Regents, 457 U.S. 496, 516 (1982); Doe v. Pfrommer, 148 F.3d 73, 78 (2d Cir. 1998). In such cases, however, the victim of discrimination normally seeks compensation, in the form of money damages, for the violation of his or her 10 rights.

11 We need not address here whether a property owner who claimed that a 12 local official vetoed his or her development project out of hostility based on the 13 ownerʹs race, gender, disability, or the like, in violation of federal statutory or 14 constitutional law, could seek immediate recompense in federal court from that 15 official for the dignitary or emotional harm inflicted by the official even in the 16 absence of a final decision on the development proposal or without pursuing an 17 administrative appeal of that action. That question is not presented in this case, 18 because Sunrise does not seek compensatory damages from the official who it

1 claims acted out of discriminatory motivation, but rather seeks an injunction blocking the disapproval and authorizing construction of its project. Regardless of the basis of the claim that the local action violated federal rights, the relief sought brings the case squarely within the compass of Williamson County and its progeny.

6 Even if it were true that the challenged rejection by the Building Department was the product of a discriminatory motivation on the part of the official who issued it, that illegal act would not necessarily require, as a remedy, the issuance of a permit to Sunrise. If Sunrise proceeds with its application, the 10 rejection may be reversed, and the project may be permitted to proceed—or the 11 application may be rejected on other, non‐discriminatory grounds. Only after 12 Sunrise completes the process will it be known whether the allegedly 13 discriminatory decision of the official had any effect at all on Sunriseʹs 14 application.

15 We think, therefore, that a plaintiff alleging discrimination in the context of 16 a land‐use dispute is subject to the final‐decision requirement unless he can show 17 that he suffered some injury independent of the challenged land‐use decision.

18 Thus, for example, a plaintiff need not await a final decision to challenge a

1 zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 2 F.3d 1531, 1541 (11th Cir. 1994), or the manipulation of a zoning process out of discriminatory animus to avoid a final decision, Groome Res. Ltd. v. Parish of 4 Jefferson, 234 F.3d 192, 199–200 (5th Cir. 2000). In those cases, ʺpursuit of a further administrative decision would do nothing to further define [the] injury,ʺ and the ʺclaim should not be subject to the application of the Williamson ripeness test.ʺ Dougherty, 282 F.3d at 90.

8 This is not such a case. Sunrise alleges that the commissionerʹs determination that its facility did not qualify as a ʺcommunity residenceʺ and the 10 Common Councilʹs failure to take further action on its application thereafter 11 caused it immediate injury. Appellantʹs Br. 24‐25. But in light of administrative 12 avenues for relief outlined in the zoning ordinance and the commissionerʹs letter, 13 we conclude that neither of these acts gave rise to an injury independent of the 14 cityʹs ultimate land‐use decision. Sunrise must therefore ʺprov[e] that we can 15 look to a final, definitive positionʺ from the city regarding its application before 16 we may entertain its claims. Murphy, 402 F.3d at 347.

17 That Sunrise has failed to do. We have previously interpreted Williamson 18 County as ʺcondition[ing] federal review on a property owner submitting at least

1 one meaningful application for a variance.ʺ Id. at 348. By forgoing the avenues for relief outlined in the commissionerʹs revised determination, Sunrise deprived the city of the opportunity to issue a final decision. See Ordinance § 6.4.5.2 (barring the city from taking any further action on an application until the applicant procures all required variances). A federal lawsuit at this stage would inhibit the kind of give‐and‐take negotiation that often resolves land use problems, and would in that way impair or truncate a process that must be allowed to run its course. In light of Sunriseʹs midstream abandonment of the zoning process, its claim is not yet ripe.

10 Nor can we excuse Sunriseʹs failure to comply with the final‐decision 11 requirement by characterizing the cityʹs response to its request for a reasonable 12 accommodation as ʺconstructively denyingʺ its application. First, because 13 Sunriseʹs request sought the same result as its special permit application, we do 14 not think that the city ignored the request by incorporating it into the 15 application. See Oxford House, Inc. v. City of Virginia Beach, 825 F. Supp. 1251, 1261 16 (E.D. Va. 1993) (stating that the ʺzoning process, including the hearings on 17 applications for conditional use permits, servesʺ Congressʹs purpose to provide 18 municipalities with ʺthe opportunity to adjust their generally applicable rules to

1 allow handicapped individuals equal access to housingʺ). Second, we have explained that to prevail on a reasonable accommodation claim, ʺplaintiffs must first provide the governmental entity an opportunity to accommodate them through the entityʹs established procedures used to adjust the neutral policy in question.ʺ Tsombanidis v. W. Haven Fire Depʹt, 352 F.3d 565, 578 (2d Cir. 2003).

6 Again, Sunriseʹs failure to pursue a variance or to appeal the commissionerʹs determination deprived the city of this opportunity.

8 Nor do we think that requiring Sunrise to pursue an administrative appeal or an application for a variance would necessarily be futile. The cityʹs Board of 10 Appeals does not ʺlack[ ] discretion to grant variances,ʺ Murphy, 402 F.3d at 349; 11 see also Ordinance § 10.3.5. And Sunriseʹs own failure to ʺsubmit[ ] at least one 12 meaningful application for a varianceʺ prevents us from determining whether 13 the board ʺhas dug in its heels and made clear that all such applications will be 14 denied,ʺ Murphy, 402 F.3d at 348, 349; see also Ordinance § 6.4.5.2, so as to permit 15 us to treat the matter appealed from as ripe for judicial consideration. We thus 16 see no basis in the record to apply the futility exception to the final‐decision 17 requirement in this case.

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