17‐769‐cv Obsession Sports Bar & Grill, et al. v. City of Rochester

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 20th day of December, two thousand 4 seventeen. 5 6 PRESENT: GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges, 9 CHRISTINA REISS, 10 Chief District Judge.* 11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 12 OBSESSION SPORTS BAR & GRILL, INC., JOAN 13 C. ORTIZ, 14 15 Plaintiffs‐Appellants, 16 17 v. No. 17‐769‐cv 18 19 CITY OF ROCHESTER, 20 21 Defendant‐Appellee. 22 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 23

* Chief Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation. 1 2 FOR APPELLANTS: MICHAEL A. BURGER (Tina M. Foster, 3 New York, NY, on the brief), Santiago 4 Burger Annechino LLP, Pittsford, 5 NY. 6 7 FOR APPELLEE: John M. Campolieto, for Brian F. 8 Curran, Corporation Counsel of the 9 City of Rochester, Rochester, NY. 10 11 Appeal from a judgment of the United States District Court for the Western

12 District of New York (Charles J. Siragusa, Judge).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

14 AND DECREED that the judgment of the District Court is AFFIRMED.

15 Obsession Sports Bar & Grill, Inc. and its owner, Joan C. Ortiz (collectively,

16 “Obsession”), appeal from a judgment of the District Court (Siragusa, J.)

17 dismissing their first amended complaint (“FAC”) against the City of Rochester

18 (the “City”) for failure to state a claim. We assume the parties’ familiarity with

19 the facts and record of the prior proceedings, to which we refer only as necessary

20 to explain our decision to affirm.

21 Obsession argues that the District Court erred in dismissing its substantive

22 due process claim. To state a substantive due process claim, Obsession was

23 required to show that the City’s enactment of its zoning regulation, Rochester

24 Municipal Code § 120‐34(O), was “arbitrary, conscience‐shocking, or oppressive

2 1 in the constitutional sense, not merely incorrect or ill‐advised.” Ferran v. Town

2 of Nassau,

(2d Cir. 2006) (quotation marks omitted). The

3 enactment of zoning regulations, even those in contravention of State law, does

4 not violate substantive due process unless the defendant engages in conduct “so

5 outrageously arbitrary as to constitute a gross abuse of governmental

6 authority[.]” Natale v. Town of Ridgefield,

(2d Cir. 1999); see

7 also Cine SK8, Inc. v. Town of Henrietta,

(2d Cir. 2007)

8 (government conduct “tainted with racial animus or fundamental procedural

9 irregularity” violates substantive due process (quotation marks omitted)). The

10 FAC does not allege that the enactment of section 120‐34(O) was motivated by

11 animus or accomplished through procedural irregularity. Nor does it otherwise

12 plausibly allege that the City acted in a manner that is arbitrary,

13 conscience‐shocking, or oppressive. That section 120‐34(O) was ultimately

14 invalidated by the New York State courts is insufficient, standing alone, to state a

15 substantive due process claim. See Ferran,

; Natale,

263.

17 Obsession next argues that the District Court erred in dismissing its

18 procedural due process claim. We conclude that the procedural due process

3 1 claim was properly dismissed for substantially the reasons stated by the District

2 Court in that part of its opinion addressing the claim on the merits. See

3 Obsession Sports Bar & Grill, Inc. v. City of Rochester,

, 466–67

4 (W.D.N.Y. 2017). Obsession was not entitled to a pre‐deprivation hearing when

5 the City enacted and enforced section 120‐34(O), a “generally applicable zoning”

6 regulation. See Edelhertz v. City of Middletown,

(2d Cir. 2013).

7 We have considered Obsession’s remaining arguments and conclude that

8 they are without merit. For the foregoing reasons, the judgment of the District

9 Court is AFFIRMED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk of Court

4