19-3353-cv Village Green at Sayville, LLC v. Town of Islip et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________

August Term, 2021

(Argued: January 14, 2022 Decided: August 5, 2022)

Docket No. 19-3353-cv

____________________

VILLAGE GREEN AT SAYVILLE, LLC,

Plaintiff-Appellant,

v.

TOWN OF ISLIP, THE TOWN BOARD OF THE TOWN OF ISLIP, THE PLANNING BOARD OF THE TOWN OF ISLIP, ANGIE M. CARPENTER, STEVEN J. FLOTTERON, TRISH BERGIN WEICHBRODT, JOHN C. COCHRANE, JR., MARY KATE MULLEN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS MEMBERS OF THE TOWN BOARD OF THE TOWN OF ISLIP, EDWARD FRIEDLAND, KEVIN BROWN, ANTHONY MUSUMECI, JOSEPH DEVINCENT, DONALD FIORE, DANIEL DELUCA, MICHAEL KENNEDY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS MEMBERS OF THE PLANNING BOARD OF THE TOWN OF ISLIP,

Defendants-Appellees. ____________________

Before: POOLER, CHIN, and CARNEY, Circuit Judges. Village Green at Sayville, LLC sued the Town of Islip, its Town Board, its Planning Board, and the members of the Town and Planning Boards, alleging that a pattern of racial, ethnic, and national origin discrimination by the defendants stifled Village Green’s effort to build an affordable apartment complex in Sayville, a hamlet in Islip. The United States District Court for the Eastern District of New York (Hurley, J.), dismissed the case for lack of subject matter jurisdiction, concluding that Village Green’s land-use claims were not ripe under the framework established by Williamson County Regional Planning Commission v. Hamilton Bank,

(1985), overruled in part on other grounds by Knick v. Township of Scott,

(2019). We disagree.

Vacated and remanded. ____________________

MARK A. CUTHBERTSON, Huntington, N.Y., for Plaintiff-Appellant.

TIMOTHY F. HILL (Lisa A. Perillo, on the brief), Messina Perillo Hill, LLP, Sayville, N.Y., for Defendants-Appellees.

John R. DiCioccio, Islip Town Attorney’s Office (on the brief), Islip, N.Y., for Defendants-Appellees.

POOLER, Circuit Judge:

In 2006, the Town of Islip, New York rezoned a vacant plot of land to

allow Village Green at Sayville, LLC, a real estate developer, to build a housing

complex Village Green hoped would be accessible to low-income and minority

populations. The project languished for the next eight years, however, as the

developer struggled to comply with a pair of covenants and restrictions

(“C&Rs”) that accompanied the rezoning. In 2014, Village Green petitioned the

2 Town Board to remove the C&Rs. In November 2016, after several contentious

public hearings and the completion of a number of planning studies, the town

supervisor moved for the Town Board to approve the application. But the motion

was not seconded, and no vote was held. A month later, a resolution filed with

the town clerk deemed the motion to have “fail[ed] for lack of second,” App’x at

317, and Islip’s town attorney told Village Green that “the Town is treating the

failed motion to approve as a denial” of the application, such that “no further

proceedings before the Town Board, Planning Board, or any other Town Agency

would be held,” App’x at 32-33 ¶ 67. Village Green then brought this suit,

alleging that the town stifled the project in an unlawful effort to exclude

minorities from living in Sayville, the hamlet in Islip where the property is

located.

We address today only the narrow issue of ripeness. Federal suits in the

land-use context, like this one, are generally not ripe for adjudication until a

landowner receives a final, definitive decision on a land-use application.

Williamson Cnty. Reg. Planning Bd. Comm’n v. Hamilton Bank of Johnson City,

(1985), overruled in part on other grounds by Knick v. Township of Scott,

(2019). The United States District Court for the Eastern District of

3 New York (Hurley, J.) concluded that the Town Board had not yet reached a final

decision on Village Green’s application to remove the C&Rs. We disagree.

Without taking a position on the merits of Village Green’s racial, ethnic, and

national origin discrimination claims, we conclude that the dispute is ripe. We

therefore vacate the dismissal of this action and remand to the district court for

further proceedings consistent with this opinion.

BACKGROUND

I. Factual Background 1

The property at issue is 7.29 acres. Around a thousand feet wide and

generally level in grade, it has 590 feet of frontage on the south side of Long

Island’s Sunrise Highway, a major east-west artery ten lanes wide where it abuts

1 Although the town submitted evidence beyond the pleadings in support of its motion to dismiss, the district court did not make findings of fact and looked solely to the allegations in Village Green’s complaint in ruling on the motion. This was appropriate because the evidence proffered by the town does not contradict the relevant allegations in the pleadings. See Carter v. HealthPort Techs., LLC,

(2d Cir. 2016). In reviewing this grant of a motion to dismiss for lack of subject matter jurisdiction, we therefore “accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff’s favor.” Sharkey v. Quarantillo,

(2d Cir. 2008) (internal quotation marks omitted).

4 the property. Just north of the property sits the Sayville Motor Inn. To the

southeast is a neighborhood of mainly single-family houses.

In February 2006, Islip’s Town Board granted Village Green’s application

to rezone the property from Business One to Residence CA, conditioned on a

number of C&Rs, including two that proved controversial: first, that the

development could consist only of condominiums owned by dwelling unit

owners, not renters—even though a Residence CA zoning designation generally

allows rental properties as a matter of right; and second, that the development

must be connected to an off-site sanitary treatment plant (“STP”). In December

2006, the town engineer authorized construction of 38 single-family attached

condominiums on the property.

For much of the next decade, Village Green struggled to obtain funding

and comply with the C&Rs. Connection to an off-site STP proved especially

onerous. Reaching the Sayville Commons STP, the only feasible option, would

require Village Green to lay approximately 1.3 miles of sewer pipe, and several

nearby landowners—including the Sayville Union Free School District and the

Town of Islip itself—refused to grant the necessary easements. In the meantime,

the town also allocated the Sayville Commons STP’s remaining capacity to

5 another development, foreclosing, in Village Green’s view, its ability to comply

with the off-site STP requirement.

So Village Green began the process of removing the two C&Rs and

clearing a path to development. In May 2014, following pre-submission meetings

with the planning department, Village Green petitioned the Town Board to allow

it to construct an apartment complex of 64 rental units, with twenty percent set

aside as affordable units, with an on-site STP. The Town Board referred the

application to the Planning Board, which held a public hearing on November 13,

2014. Local opposition was strong. In addition to expressing concerns that

apartments might increase traffic, harm the environment, and diminish property

values, several residents questioned whether the development would come to

resemble the Sayville Motor Inn, the nearby property—not owned or operated by

Village Green—perceived by some as a hotbed of crime, drugs, and prostitution.

One resident told the Planning Board that “[w]hen you change the actual

demographics of the area, you [degrade] everything that happens in an area with

apartments as opposed to single family homes.” App’x at 27. Added another:

“There are lots of apartments available that are affordable in Sayville. I really

don’t know why we need any more.” App’x at 27. One resident asked, “[i]f they

6 can’t rent out the apartments, what do you think is going to happen? They’ll go

to Section 8.” App’x at 28. 2 And another objected that Village Green “keep[s]

stressing how lovely the buildings are. . . . But we are not talking about what’s on

the outside. We’re talking about what might be on the inside.” App’x at 27.

Eighteen months passed after this hearing before the Planning Board

considered a motion to recommend that the Town Board approve Village

Green’s application. In May 2016, the planning department reported that Village

Green had undertaken studies satisfactorily addressing concerns about traffic

impacts, wetlands, and property value diminution. Put to a vote, though, the

seven-member Planning Board failed to pass the motion: After the vice chairman

recused himself, the vote was 3-3 and deemed a “non-action.” App’x at 29 ¶ 53.

Village Green again modified its application, now seeking to build only 59

rental units, with half of those set aside for senior citizens. On June 30, 2016, the

Town Board held a public hearing. Members of the public again made hostile

comments, discussing “Section 8” and “transients,” and pledging that

2 The Section 8 program provides federal housing assistance to low-income individuals. See Salute v. Stratford Greens Garden Apartments,

(2d Cir. 1998).

7 townspeople “will not forget if this project is approved.” App’x at 30-31. As one

resident recounted:

As a child, I was born in Brooklyn. I lived in the projects. It was beautiful when we started living there. Gorgeous. But then Section 8 came in. It went from a beautiful area to a war zone. It looked like Iraq. . . . We don’t know what type of element is going to be moving into these apartments and what they’re going to leave behind . . . [whether there is] going to be any drug activity, crime, prostitution, murder. . . . It’s going to be the murder capital of Suffolk [County].

App’x at 16 ¶ 7. The crowd was so vocal that the town supervisor several times

admonished people for shouting and at one point threatened to suspend the

meeting.

Four months later, on November 3, 2016, the renewed application was on

the Planning Board’s agenda as a recommendation item; but the Planning Board

did not act that day, because, according to Village Green, one of the development

project’s most outspoken opponents was out of town. Two weeks later—on

November 17, 2016—the Town Board placed Village Green’s application on its

agenda for a vote. A large group of residents opposed to the development

attended, although they were not permitted to speak. After presentations by the

planning department and Village Green, the town supervisor moved for the

Town Board to approve the application. No other Town Board member seconded 8 the motion, however, and no vote was held. The same night, the Town Board

unanimously approved an application by Renzon Concepcion, another

developer, to modify a similar C&R that had required 30 condominium units to

instead allow 44 rental apartments. Renzon’s development was located in the

majority-minority hamlet of Brentwood.3

A resolution filed with the town clerk on December 8, 2016 deemed the

motion to approve to have “fail[ed] for lack of second.” App’x at 317. A week

later, Islip’s town attorney informed Village Green’s attorney that “the Town is

treating the failed motion to approve as a denial of the Village Green

Application, and that no further proceedings before the Town Board, Planning

Board, or any other Town Agency would be held.” App’x at 32-33 ¶ 67. Village

Green’s attorney sent the town attorney a letter the same day summarizing their

conversation and asking for a written response if the town attorney disputed

making those statements. No response came.

Neither the Town Board nor any other town agency has acted on Village

Green’s application since 2016.

3A “majority-minority” community is one “in which minorities make up a majority of the population.” Mhany Mgmt., Inc. v. Cnty. of Nassau,

(2d Cir. 2016).

9 II. Procedural Background

After receiving no response to its letter, Village Green filed two suits. First,

in December 2016, it filed an Article 78 action in New York Supreme Court,

seeking a declaration that the contested C&Rs were illegal and unenforceable

and an order for the town to approve the application and issue the necessary

building permits. See Village Green at Sayville v. Town of Islip, No. 011060/2016

(N.Y. Sup. Ct.). That action is ongoing.

Village Green’s second case is the one before us. In December 2017 the

developer filed, and in August 2018 it amended, a federal complaint alleging that

the town blocked its housing project to exclude minorities from Sayville. Village

Green contends that Islip is highly segregated by race and national origin, with

its African-American and Hispanic populations overwhelmingly concentrated in

the hamlets of Brentwood, Bay Shore, and Central Islip, while Sayville is over

90% non-Hispanic white and has a much lower foreign-born population than

Islip overall; that by requiring C&Rs that allow only owner-occupied

condominiums in places like Sayville, the town has prevented construction of the

type of affordable and market-rate rental apartments that minorities are

disproportionately likely to occupy; that the Town Board frequently grants

10 applications to modify C&Rs to permit rental apartments in majority-minority

areas of town like Brentwood, while refusing to do so in predominantly white

areas like Sayville; and that, in refusing to modify Village Green’s C&Rs, the

town unlawfully limited housing opportunities for minorities and families with

children, perpetuating ethnic and racial segregation.

Village Green’s complaint set forth causes of action under the Fair Housing

Act (“FHA”),

(a) (Count One);

(Count Two);

(Count Three); the equal protection clause of the Fourteenth

Amendment and

(Count Four); New York Executive

Law § 296(5)—New York’s FHA equivalent—and § 296(6) (Count Five);

substantive due process under the Fourteenth Amendment (Count Six); and the

takings clauses of the Fifth and Fourteenth Amendments (Count Seven). The

complaint sought a declaratory judgment deeming the defendants’ acts

unlawful, an injunction directing them to remedy the effects of their

discriminatory conduct, compensatory and punitive damages, and attorneys’

fees.

In two orders, the district court dismissed each claim for lack of subject

matter jurisdiction. The district court principally concluded that Village Green’s

11 claims were not yet ripe because it had not received a final decision on the

application to remove the C&Rs, as “the Town Board never voted . . . at the

November 2016 meeting,” and “neither the Town Board, the Planning Board, nor

any other Town agency has taken any action” since then. Village Green at Sayville,

LLC v. Town of Islip, No. 2:17-cv-7391,

, at *5 (E.D.N.Y. Sept. 27,

2019) (“Village Green I”);

(dismissing the first, fourth, sixth, and seventh

causes of action); see also Village Green at Sayville, LLC v. Town of Islip, No. 2:17-cv-

7391,

, at *2, *10 (E.D.N.Y. Jan. 22, 2021) (“Village Green II”)

(dismissing the second, third, and fifth causes of action). The district court also

concluded that Village Green failed to satisfy the limited futility exception to the

final-decision requirement, which applies if seeking a final decision on a land-use

application would be futile.

; see also Sherman v. Town of Chester,

(2d Cir. 2014).

This appeal followed.

DISCUSSION

We are not asked at this stage to assess the merits of Village Green’s

discrimination claims. The only issue is whether they are ripe for adjudication.

“We review de novo a district court’s determination that it lacks subject-matter

12 jurisdiction on ripeness grounds.” Nat’l Org. for Marriage, Inc. v. Walsh,

(2d Cir. 2013).

I. Ripeness in the Land-Use Context

“To be justiciable, a cause of action must be ripe—it must present a real,

substantial controversy, not a mere hypothetical question.” Kurtz v. Verizon New

York, Inc.,

(2d Cir. 2014) (quoting Walsh,

).

“Ripeness is a doctrine rooted in both Article III’s case or controversy

requirement and prudential limitations on the exercise of judicial authority.”

Murphy v. New Milford Zoning Comm’n,

(2d Cir. 2005). “At its

heart is whether we would benefit from deferring initial review until the claims

we are called on to consider have arisen in a more concrete and final form.”

That is, ripeness “is ‘peculiarly a question of timing’ as cases may later become

ready for adjudication . . . .”

(quoting Reg’l Rail Reorg. Act Cases,

(1974)). Our goal is to avoid “entangling [ourselves] in abstract

disagreements over matters that are premature for review because the injury is

merely speculative and may never occur.” Dougherty v. Town of N. Hempstead Bd.

of Zoning Appeals,

, 90 (2d Cir. 2002), abrogated on other grounds by

Knick,

.

13 This concern about untimely adjudication is especially pronounced in the

land-use context. Land-use controversies, despite their ability to generate federal

suits like this one, are “matters of local concern more aptly suited for local

resolution,” Murphy,

, and “federal courts should not become

zoning boards of appeal,” Harlen Assocs. v. Inc. Vill. of Mineola,

(2d Cir. 2011). Accordingly, federal courts adhere to “specific ripeness

requirements applicable to land use disputes.” Murphy,

.

Williamson County is the foundational case.

. There, the Supreme

Court held that a claim alleging a Fifth Amendment taking is not ripe until two

prerequisites are met: first, that the “government entity charged with

implementing the regulations has reached a final decision regarding the

application of the regulations to the property at issue” (the final-decision

requirement); and second, that the plaintiff has sought just compensation

through an available state procedure (the exhaustion requirement).

.

The Supreme Court has since overruled the exhaustion requirement on the

ground that it “impose[d] an unjustifiable burden on takings plaintiffs [and]

conflict[ed] with the rest of our takings jurisprudence.” Knick,

.

14 In contrast, the final-decision requirement not only remains good law but has

been expanded, in this Circuit at least, to “zoning challenges based on

substantive due process; First Amendment rights of assembly and free exercise;

the Religious Land Use Institutionalized Persons Act of 2000; [] a state analogue

to RLUIPA,” as well as to “zoning challenges under the [Americans with

Disabilities Act (“ADA”),

et seq.] based on allegations of

intentional discrimination.” Sunrise Detox V, LLC v. City of White Plains,

(2d Cir. 2014) (citations omitted); see also Pakdel v. City & Cnty. of San

Francisco,

(2021) (per curiam) (applying Williamson County’s final-

decision requirement after Knick).

Still, the final-decision requirement “is not mechanically applied.” Murphy,

. “A property owner, for example, will be excused from obtaining

a final decision if pursuing an appeal to a zoning board of appeals or seeking a

variance would be futile” or “when a zoning agency lacks discretion to grant

variances or has dug in its heels and made clear that all such applications will be

denied.”

Similarly, “a plaintiff need not await a final decision to challenge a

zoning policy that is discriminatory on its face, or the manipulation of a zoning

15 process out of discriminatory animus to avoid a final decision.” Sunrise Detox,

(citations omitted).

II. All of Village Green’s Claims Require a Final Decision

Before assessing whether Village Green received a final decision on its

application to remove the C&Rs, we must address which of its claims are in fact

subject to the final-decision requirement. Cognizant that “[t]he Williamson County

ripeness test is a fact-sensitive inquiry . . . applicable to various types of land use

challenges,” Murphy,

, we agree with the district court that the

requirement applies to each claim.

Village Green’s takings, due process, and equal protection claims plainly

must satisfy finality. See Williamson Cnty.,

(takings); Southview

Assocs. v. Bongartz,

, 96-97 (2d Cir. 1992) (substantive due process);

Dougherty, 282 F.3d at 88-89 (equal protection). We further conclude that a final

decision is required for Village Green’s land-use claims under the FHA,

and 1982, and New York Executive Law § 296. 4

4The consensus among lower courts is that, at least for as-applied FHA claims in the land-use context, a final decision is required. See, e.g., Congregational Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,

(S.D.N.Y. 2013); Jenkins v. Eaton, No. 08-cv-0713,

, at *3 (E.D.N.Y. 16 Sunrise Detox, our most recent case to address an extension of the final-

decision requirement, shows why this is so. Sunrise Detox—like Village Green, a

developer—had sought a special permit to establish a drug and alcohol

rehabilitation facility as a “community residence” in White Plains.

. After White Plains’ Department of Building advised that the proposed

facility did not qualify as a community residence under the applicable

regulations, meaning that Sunrise would have to “either appl[y] for a variance or

appeal[] the determination,” Sunrise instead sued the city, alleging

discrimination in violation of the ADA.

Sunrise argued that the final-decision

requirement did not apply to “zoning challenges under the ADA based on

allegations of intentional discrimination,” because intentional discrimination

“cause[s] a uniquely immediate injury rendering such claims ripe from the act of

discrimination.”

(alterations and internal quotation marks omitted).

We disagreed. Because Sunrise principally sought “an injunction blocking the

Mar. 27, 2009); S&R Dev. Estates, LLC v. Bass,

(S.D.N.Y. 2008). Other circuits have held the same. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Scotch Plains,

, 451 n.5 (3d Cir. 2002); Bryant Woods Inn, Inc. v. Howard Cnty., Md.,

, 602 (4th Cir. 1997); Oxford House-A v. City of Univ. City,

(8th Cir. 1996); United States v. Vill. of Palatine,

(7th Cir. 1994). 17 disapproval and authorizing construction of its project,” we explained that

“[r]egardless of the basis of the claim . . . the relief sought brings the case

squarely within the compass of Williamson County and its progeny.” Id. at 123. As

in those cases, the zoning review process had to play out before it could “be

known whether the allegedly discriminatory [conduct] . . . had any effect at all on

Sunrise’s application.” Id. Thus, we held, “a plaintiff alleging discrimination in

the context of a land-use dispute is subject to the final-decision requirement

unless he can show that he suffered some injury independent of the challenged

land-use decision.” Id.

What we said of Sunrise’s ADA claim applies equally to each of Village

Green’s claims. Village Green is, like Sunrise, “a plaintiff alleging discrimination

in the context of a land-use dispute.” Id. And like Sunrise, Village Green

principally seeks an injunction “directing Defendants to take all affirmative steps

necessary to remedy the effects of the[ir] illegal, discriminatory conduct.” App’x

at 44. 5 Finally, once again like Sunrise, Village Green does not allege that it

5In Sunrise Detox, the plaintiff did not seek “compensatory damages from the official who it claims acted out of discriminatory motivation,” so we saw no need to address “whether a property owner who claimed that a local official vetoed his or her development project out of hostility based on the owner’s race, gender, disability, or the like, in violation of federal statutory or constitutional law, could 18 suffered an injury independent of the land-use decision—for instance, that the

town has any facially discriminatory policies. 6 For each cause of action, Village

Green alleges that its rights were violated when the town’s “denial of [its]

application . . . resulted in dwellings in Sayville being made unavailable to

Minorities in the Town.” App’x at 38 ¶ 98. It stands to reason that the developer

must first prove that we can look to a “final, definitive position” from the town

on that application. See Sunrise Detox,

. Absent that showing,

Village Green’s claims cannot be said to have “yet matured to a point that

warrants decision.” 13B Charles A. Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice & Procedure § 3532 (3d ed. 2022).

Village Green argues that this Court’s ruling in Mhany Management, Inc. v.

County of Nassau demonstrates that a final decision is not required for its FHA

seek immediate recompense in federal court from that official for . . . dignitary or emotional harm . . . even in the absence of a final decision on the development proposal.”

. Here, unlike in Sunrise Detox, Village Green does seek damages in addition to an injunction. But we need not address the question left open in Sunrise Detox, because Village Green’s claim for monetary damages does not sound in dignitary or emotional harm and because, in any event, we conclude that Village Green has received a final decision. 6 See App’x at 37 ¶¶ 89-90 (acknowledging the town’s “facially-neutral custom, policy, or practice” of “refusing to modify C&Rs that limit development to owner-occupied condominiums or age-restricted rental apartments”).

19 claim. See

. We disagree. In Mhany, we held that developers had

standing to pursue claims that Nassau County and the Incorporated Village of

Garden City had discriminatorily rezoned parcels of county-owned land to

prevent low- and middle-income housing from being built on those sites, in

violation of the FHA.

. We focused on the second and third prongs

of the three-part Lujan test for Article III standing: whether the injury is “fairly

traceable to the challenged action of the defendant,” and whether it is “likely, as

opposed to merely speculative, that the injury will be redressed by a favorable

decision.”

at 600 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs.,

(2000)). We concluded that these requirements had been satisfied

because the developers had shown that, absent the defendants’ challenged

conduct, there was a “‘substantial probability’ that housing with greater minority

occupancy would have been built.”

at 600-601 (quoting Fair Hous. in

Huntington Comm. Inc. v. Town of Huntington,

, 363 (2d Cir. 2003)).

Our conclusion today is consistent with Mhany. The final-decision requirement,

and constitutional ripeness generally, are “really just about the first Lujan

factor”—whether a plaintiff’s injury is concrete, particularized, and actual or

imminent. Walsh,

. Because there was no dispute in Mhany that the

20 defendants had made the final decision to rezone the challenged parcels of land,

see

, that case simply did not address the contours of the final-

decision requirement.

III. This Dispute Is Ripe

Having concluded that Village Green’s claims are all subject to the final-

decision requirement, we turn to the central issue: Has Village Green received a

“final, definitive decision” on its application to remove the C&Rs, or are further

proceedings before town agencies necessary for the claims to “arise[] in a more

concrete and final form?” Murphy,

. Here we part ways with

the district court and conclude that this dispute is ripe.

We have characterized Williamson County’s “jurisdictional prerequisite” as

“condition[ing] federal review on a property owner submitting at least one

meaningful application” to the relevant municipal entity.

. This is

principally because it is “virtual[ly] impossib[le]” for us to determine “what

development will be permitted on a particular lot of land when its use is subject

to the decision of a regulatory body invested with great discretion, which it has

not yet even been asked to exercise.” Suitum v. Tahoe Reg’l Plan. Agency,

(1997). Two of our cases make the point clearly. In Sunrise Detox, the

21 decision not to pursue the “administrative avenues for relief outlined in the

zoning ordinance”—and the fact that Sunrise was advised, in a letter from the

Department of Building commissioner, to “either seek a variance or appeal the

department’s determination to the Zoning Board of Appeals”—prevented us

from being able to “‘look to a final, definitive position’ from the city regarding

[Sunrise’s] application.”

, 124 (quoting Murphy,

).

“A federal lawsuit at this stage,” we explained, “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 Sunrise’s midstream abandonment of the zoning process . . . its claim

[wa]s not yet ripe.”

Landowner abandonment of the zoning process was even more

pronounced in Murphy v. New Milford Zoning Commission. The dispute there

stemmed from the Sunday afternoon prayer group meetings, often attended by

between ten and sixty people, that Robert and Mary Murphy held weekly in

their home on a seven-residence cul-de-sac in New Milford, Connecticut.

Murphy,

. After the neighbors complained of congestion and

excessive noise, New Milford’s zoning commission directed its zoning

22 enforcement officer (“ZEO”) to investigate.

. The ZEO “visited the

Murphys’ property on three Sundays and found that from thirteen to twenty cars

lined the Murphys’ driveway, their rear yard and the cul-de-sac.”

The zoning

commission issued an opinion concluding that “the weekly, sizable prayer

meetings were not a customary accessory use in a single-family residential area.”

The commission sent the Murphys an informal letter so advising them.

Two days later, the Murphys sued the zoning commission, to which the ZEO

responded with a formal cease and desist order.

However, instead of

“appeal[ing] the cease and desist order to the Zoning Board of Appeals, where

they could have sought a variance,” the Murphys continued with their federal

suit.

The dispute was not ripe because the Murphys’ “fail[ure] to submit a

single variance application in this matter . . . depriv[ed] us of any certainty as to

what use of the Murphys’ property would be permitted.”

.

This case is a far cry from Sunrise Detox and Murphy. There is no question

that Village Green submitted a “meaningful application” to municipal agencies

to address its land-use dilemma.

. Certainly, Village Green did not shirk

the “give-and-take negotiation that often resolves land use problems,” Sunrise

Detox, 769 F.3d at 124—even if, in this case, negotiation was evidently fruitless.

23 Village Green did not sue when, after seven years of trying to comply with the

C&Rs, it came to believe that compliance had become impossible. Instead, the

developer began the arduous process of modifying the C&Rs. That process began

in 2013, with the pre-submission meetings with the planning department;

continued in 2014, when Village Green filed its formal application to modify the

C&Rs and defended its project during public hearings; took shape over the next

two years, when it worked with the planning department on a series of studies

on traffic, property values, and wetland issues and modified its application

several times to accommodate concerns from residents and the towns; and was

set to culminate in November 2016, with a formal motion to approve before the

Town Board. Through its compliance with all that the town asked of it, Village

Green in no way “impair[ed] or truncate[d] a process that must be allowed to run

its course.”

Of course, submitting a meaningful application is only part of the

equation. The municipal entity responsible for the relevant zoning laws must

also have an opportunity to commit to a position. See, e.g., Pakdel,

(“Once the government is committed to a position . . . the dispute is ripe for

judicial resolution.”); Unity Ventures v. Lake Cnty.,

, 775 (7th Cir. 1988)

24 (“A final decision must be demonstrated by a development plan submitted,

considered, and rejected by the governmental entity.” (emphasis added)). It is at

this stage that the district court concluded that Village Green’s claims were not

ripe. The Town Board never took a definitive position, according to the district

court, because it never voted at the November 2016 meeting and has not

considered the application since then. See Village Green I,

, at *5.

We see things differently. It would no doubt be easier for us to conclude

that Village Green received a final decision had the Town Board done what the

developer asked it to do: vote publicly, yes or no, on the application. The parties

seem to agree a no-vote on November 17, 2016, would have ripened the dispute.

But because the Town Board declined to give its position this way, we must

assess the more unusual route it did take: first, noting in an official resolution

that the “motion to approve fails for lack of second,” App’x at 317; then

apparently choosing to “treat[] the failed motion to approve as a denial of the

application” and promising that no town agency would hear anything further on

the matter; App’x at 32-33 ¶ 67; and finally, true to that promise, scheduling no

further proceedings on the application in the almost six years since.

25 We conclude that, through this sequence of events, the Town Board

demonstrated its “arriv[al] at a definitive position on the issue that inflict[ed] an

actual, concrete injury” on Village Green. Williamson Cnty.,

.

Consider first the resolution filed with the town clerk on December 8, 2016. In

full, it states:

WHEREAS, an application has been filed by Village Green at Sayville, LLC (“the applicant”) with respect to the property located at 0 Sunrise Highway, Sayville and referred to on the Suffolk County Tax Map as 0500-258.00-03.00-001.000); and

WHEREAS, the applicant seeks a modification of deed covenants and restrictions associated with TC 4726 in order to construct 59 apartment[s] (58 rental apartments and 1 superintendent apartment) instead of 38 single family attached dwellings, and

WHEREAS, a public hearing was held before the Town Board on June 30, 2016, at which time decision was reserved; and

WHEREAS, the item was scheduled for a decision before the Town Board on November 17, 2016.

NOW, THEREFORE, on motion by Supervisor Angie Carpenter to grant the application, be it

RESOLVED, that the motion to approve fails for lack of second.

App’x at 317.

26 The resolution bears many indicia of finality. It acknowledges that, while

the Town Board “reserved” its decision on the application on June 30, the

application was “scheduled for a decision” on November 17. The

“RESOL[UTION]” that follows—that the “motion to approve fails”—can

naturally be read as constituting that decision. Unlike at the June 30 meeting, at

which the Town Board passed a “motion to reserve decision and ask[ed] that the

Planning Board review this application again,” App’x at 281, this resolution does

not contemplate future proceedings. It does not reschedule the vote. It gives no

further instructions to Village Green. In other words, it offers no indication that

the Town Board intended its denial for lack of second to be any less final than a

no-vote would have been.

Village Green’s conversation with the town attorney—who serves as “legal

counsel to the Town of Islip [and] the Town Board” 7—reaffirms these

observations. The town attorney told Village Green that the failed motion was a

7See Town Attorney, Town of Islip, https://www.islipny.gov/departments/town- attorney (last visited Aug. 4, 2022). A court may take “routine[]” judicial notice of “documents retrieved from official government websites.” Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC,

(S.D.N.Y. 2015); see Cangemi v. United States,

, 124 n.4 (2d Cir. 2021) (taking judicial notice of agency website).

27 denial of the application and that “no further proceedings . . . would be held.”

App’x at 32-33 ¶ 67. The town attorney then failed to respond to a letter from

Village Green asking if he disputed having said this. Taking these events

together, it was far from “merely speculative” that Village Green’s application

had failed. See Sunrise Detox,

. To the contrary, other than by

simply voting—as Village Green repeatedly asked it to do—the Town Board

could not have made its position any clearer.

The district court faulted Village Green for citing no “relevant binding

precedent suggesting that [the town attorney’s] utterance, such as it may be,

constitutes a final decision, or is otherwise binding on the Town Board.” Village

Green I,

, at *5. This criticism misses the mark. It is true that,

ordinarily, a town attorney will “not have the power to bind [a] Zoning Board

with regard to” a land-use application. Carbone v. Town of Bedford,

(2d Dep’t 1988). But Village Green asserts not that the town attorney

denied its application on his own authority, but merely that he conveyed the

Town Board’s position. We cannot fathom why Village Green should now be

penalized for having believed him. Nor do we agree with the district court that

the Town Board’s failure to act since November 2016 weighs in the defendants’

28 favor. The reason there would be “no further proceedings,” per the town

attorney, was that the application had been denied. App’x at 32 ¶ 67. That the

Town Board kept its word bolsters, not undermines, its decision’s finality. 8

Ultimately, we need not speculate why the Town Board would decide to

deny the application without a formal vote and forswear further public

proceedings. It suffices to say that, taking as true the material factual allegations

in the complaint—as at this stage we must—such a decision was made. If a

dispute can ripen when a municipal entity uses “repetitive and unfair

procedures” to avoid a final decision, see Sherman,

, it surely ripens

when, as here, the entity makes plain that it has reached a decision that, by all

accounts, it intends to be final. Because the rejection of Village Green’s

application inflicted “a ‘concrete and particularized’” injury, not one that is

8The town’s position on appeal further supports our conclusion that a failed motion to approve can serve as a final decision: the town maintains that the Town Board “has complete discretion in considering [Village Green’s] Application and may even refuse to consider it if it so chooses.” Appellees’ Br. at 7 (emphasis added). 29 “merely speculative and may never occur,” Sunrise Detox,

(citations omitted), we conclude that Village Green’s claims are ripe. 9

CONCLUSION

For the reasons above, we vacate the district court’s judgment and remand

for further proceedings consistent with this opinion.

9Because Village Green received a final decision on its application to remove the C&Rs, we need not address its alternative claim that “[s]eeking a final decision would [have been] futile.” Sherman,

.

30