22-1741 Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstoawn

In the United States Court of Appeals for the Second Circuit

August Term 2022 No. 22-1741-cv

ATERES BAIS YAAKOV ACADEMY OF ROCKLAND, Plaintiff-Appellant, v. TOWN OF CLARKSTOWN, GEORGE HOEHMANN, CUPON INC., CITIZENS UNITED TO PROTECT OUR NEIGHBORHOODS OF GREATER NANUET INC., Defendants-Appellees.

On Appeal from the United States District Court for the Southern District of New York

ARGUED: JUNE 14, 2023 DECIDED: DECEMBER 8, 2023 Before: PARKER, PARK, and NATHAN, Circuit Judges.

Appellant Ateres Bais Yaakov Academy of Rockland sued Appellees in the United States District Court for the Southern District of New York (Román, J.) asserting claims under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000c, et seq., under

and 1985, and under state law for tortious interference with contract. The Academy essentially alleged that Appellees blocked construction of a school in Clarkstown, New York intended to educate Orthodox Jewish girls. The district court dismissed the complaint for lack of subject matter jurisdiction.

On appeal, Appellant contends that the district court erred in holding that its religious discrimination and civil rights claims were not ripe and erroneously concluded that it failed to satisfy the traceability requirement for Article III standing as to its tortious interference claim. We agree. We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

JOSHUA HALPERN, (Yehudah L. Buchweitz, Kevin M. Simmons, David Yolkut, on the briefs), Weil, Gotshal & Manges LLP, Washington, DC, Dallas, TX & New York, NY, for Plaintiff-Appellant.

ELIZA M. SCHEIBEL, (John M. Flannery, on the brief), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for Defendants-Appellees.

2 PARKER, Circuit Judge:

In 2018 and 2019, Plaintiff-Appellant Ateres Bais Yaakov

Academy of Rockland (“ABY”) contracted to purchase property in

Clarkstown, New York owned by Grace Baptist Church to establish

an Orthodox Jewish school. ABY alleges that, in response, the Town

of Clarkstown, and Town Supervisor George Hoehmann (the “Town

Defendants”), along with local citizens who had formed a chapter of

an organization known as Citizens United to Protect Our

Neighborhood Inc. (“CUPON”), came together to keep the Orthodox

school out of the community. ABY alleges that, to achieve this result,

the Town Defendants and CUPON manipulated an ostensibly neutral

building permit application and zoning appeals process. Eventually,

ABY alleges, the Town’s efforts were successful, and Grace Church

refused to sell the property to ABY.

ABY then sued in the United States District Court for the

Southern District of New York, asserting claims under the Religious

Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000c, et seq.,

and 1985, and state law for tortious

interference with contract.

Appellees moved under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to

dismiss the complaint for lack of subject matter jurisdiction and for

failure to state claims. The district court (Román, J.) granted the

motion to dismiss for lack of subject matter jurisdiction. The court

reasoned that ABY failed to sufficiently establish that its civil rights

and religious discrimination claims based on the denial of a building

permit application were ripe because Clarkstown’s Zoning Board of

Appeals (the “Zoning Board” or “ZBA”) never issued a final decision

on the application. Second, the district court held that ABY failed to

plead adequately that the Town Defendants’ conduct caused ABY’s

lost-contract injury, as required for Article III standing. Having

dismissed on Rule 12(b)(1) grounds, the district court did not reach

Appellees’ arguments under Rule 12(b)(6).

ABY argues on appeal that its claims were ripe because nothing

more than de facto finality is required for us to review them, and that

4 such finality attached when the Zoning Board informed ABY that it

would not entertain its appeal. ABY also argues that the district court

erred in holding that ABY failed to satisfy the traceability requirement

of Article III standing as to its tortious interference claim because it

adequately pleaded that the Town Defendants’ conduct caused its

contractual injuries. We agree with ABY and, therefore, we

REVERSE the judgement of the district court and REMAND for

further proceedings consistent with this opinion.

BACKGROUND 1

ABY is a religious educational institution that provides secular

and Orthodox Jewish religious instruction to girls in grades pre-K

through 12. In October 2018, ABY entered into a contract with Grace

Church to purchase the property at issue to open an Orthodox Jewish

school. The property included a sanctuary, a nursery, and an

1Because the Amended Complaint was dismissed at the pleading stage, on this appeal, we accept its factual allegations as true and draw all reasonable inferences in plaintiff’s favor. Cayuga Nation v. Tanner,

(2d Cir. 2016).

5 educational wing of approximately fifty classrooms that had been in

use as a school for several decades. App’x at 23. The contract

contemplated a purchase price of $4.3 million and a closing date of

December 31, 2018 that could be extended by agreement.

After executing the contract, ABY sought the necessary

financing. ABY first applied for tax-exempt bonds from the Rockland

Economic Assistance Corporation (“REAC”), which is administered

by the Rockland County Industrial Development Agency (“IDA”).

Since the REAC had previously authorized the issuance of tax-exempt

bonds to ABY for construction at a different location, ABY asked the

REAC to repurpose its prior approval towards the Grace Church

project.

The REAC informally voted to approve the transfer of

approval, pending a public hearing scheduled to take place in mid-

January 2019. Separately, ABY also sought funding in the private

6 market, and, in December 2018, secured a $5 million loan

commitment from Investors Bank.

ABY alleges that its apparently imminent purchase of the

property quickly generated opposition from segments of the local

community. At a November 27, 2018 Town Board Meeting, according

to ABY, Defendant Hoehmann announced that the Town would

“strongly enforce” applicable zoning and building-code regulations

on the property. App’x at 32. In response to conversations about

potential building-code violations, Hoehmann stated that “all of our

building codes will be followed. We will issue search warrants if

necessary.” App’x at 122. At the meeting, ABY further asserts that

Hoehmann characterized Rabbi Aaron Fink, founder and Dean of

ABY, as having stated that ABY planned “to buy, close, move in and

operate” a school at the property. App’x at 285. Hoehmann stated in

response that “[t]his will not occur in the Town of Clarkstown

without all approvals.”

Hoehmann also told the audience that

7 “there is definitely an interest in this property for Town usage.” Id. at

32.

After Rabbi Fink disclosed ABY’s REAC funding and shared

that there would be an upcoming hearing on the issue, Hoehmann

allegedly told the audience to research the IDA to obtain more

information and the particulars of the upcoming meeting. Hoehmann

allegedly concluded the public portion of the Board Meeting by

reminding community members to “reach out to the IDA and the

County Legislature.” App’x at 123. In late 2018, members of the

community formed a local chapter of an organization known as

CUPON. CUPON operates in parts of New York and New Jersey and,

ABY alleges, is dedicated to opposing the growth of the Hasidic

community in those areas. Here, ABY alleges that CUPON’s objective

was to block the transaction and keep the school out of the

community.

On December 18, the IDA canceled the public hearing at which

the REAC was scheduled to formally approve the bond funding it had

8 previously approved informally. The IDA’s executive director

explained that holding a hearing before ABY had received

preliminary permits or approvals from the Town would be “putting

the cart before the horse.” App’x at 33-34. Accordingly, on December

26, ABY submitted a building-permit application to the Town’s

Building Department to make certain improvements to the property.

Town officials and CUPON leadership came together at

another meeting on January 10, 2019. In his remarks at this meeting,

Hoehmann allegedly assured the audience that ABY would need a

variance to use the property as a school, even though the Building

Inspector had yet to rule on its building permit application. The

Building Inspector formally denied ABY’s permit application the

following day. The Inspector’s denial letter explained that “the last

required NY State Fire Safety inspection for a school of general

instruction on this property was conducted on December 11, 1990.”

App’x at 221. The letter went on to say that because the property did

not satisfy local code requirements of a minimum frontage on

9 adjacent roads, a zoning variance would be required.

In response to the Building Inspector’s denial, ABY appealed to

the ZBA and argued that the Building Inspector misapplied the

relevant zoning laws. On March 19, the Building Inspector informed

ABY that the ZBA “requires a survey of the property to be submitted

as part of the application before it can be processed” even though,

according to ABY, nothing in the Town Code or ZBA rules required

such a survey, and the requirement served no practical purpose.

App’x at 223. Nevertheless, ABY obliged. Once the survey had been

completed, on May 7, ABY requested a hearing date for its appeal to

the ZBA. However, the ZBA failed to respond to this request, and the

project came to a standstill. Subsequently, Investors Bank revoked its

commitment to provide financing.

Under the contract, ABY was obliged to close on the property

on May 16, 2019. But by then, ABY had lost its financing and failed

to secure the required permits. And the ZBA still had yet to schedule

a hearing on ABY’s appeal. When ABY failed to close, Grace Church

10 notified ABY that it was terminating the contract to sell the property

and “revoking any consent to land use applications relating to the

property.” App’x at 242. Shortly thereafter, ABY formally objected

to Grace Church’s cancellation of the contract and urged the ZBA to

schedule a hearing on its appeal. On July 9, the Town’s counsel wrote

to ABY regarding the status of the appeal:

Please be advised that the Zoning Board of Appeals will not entertain any appeal by Ateres Bais Yaakov Academy of Rockland ("Ateres") with respect to the Grace Baptist Church property located at 20 Demarest Avenue, Nanuet, NY. Grace Baptist Church has specifically advised the Town that the contract for the sale of the property to Ateres has been terminated and Ateres' right to make any application to the Town concerning their property has been revoked.

Under separate cover, the Town will be refunding the fee submitted by Ateres for the appeal.

App’x at 267.

On October 3, the Town announced that it was purchasing the

11 property for itself. 2

ABY then sued the Town of Clarkstown, Supervisor

Hoehmann, and CUPON in district court asserting five claims: (1) a

RLUIPA claim against the Town; (2) a claim under

against the Town Defendants alleging violations of the First and

Fourteenth Amendments; (3) a conspiracy claim under

against all Defendants; (4) a claim under the New York

Constitution against the Town Defendants for alleged violations of

freedom of worship and assembly; and (5) a claim for tortious

2 In August 2019, ABY filed a state law Article 78 Petition against the Town, the Zoning Board, and the Building Department in the Supreme Court of New York, County of Rockland alleging religious discrimination and violations of the Town’s zoning and permitting laws and seeking to compel the ZBA to either hear its appeal or invalidate the Building Department’s denial of its permit. On December 23, the court dismissed the petition for lack of standing. The court reasoned that “although ABY was initially an ‘immediate party’ to the administrative proceedings [Grace’s] revocation of its consent terminated ABY’s interest in the Property,” and concluded that “the ZBA’s subsequent actions did not cause ABY to lose its access to financing the acquisition of the Property.” App’x at 336.

12 interference with a contract against all Defendants.

The Defendants moved under Rules 12(b)(1) and 12(b)(6) to

dismiss the complaint, and the court granted the motion (without

prejudice) on jurisdictional grounds. See Ateres Bais Yaakov Academy

of Rockland v. Town of Clarkstown, No. 20-cv-1399,

, at

*16 (S.D.N.Y. July 12, 2022). First, the court held that ABY’s religious

discrimination and civil rights claims were not ripe under Williamson

County Regional Planning Commission v. Hamilton Bank,

(1985), and Murphy v. New Milford Zoning Commission,

(2d Cir. 2005), because the Zoning Board of Appeals, the municipal

entity responsible for the administration of the zoning laws, never

issued a final decision on the merits of ABY’s application. The court

reasoned that Grace’s termination of the contract and revocation of its

permission for ABY to pursue land-use applications effectively

13 constituted a “voluntary dismissal” of the variance application.

Ateres,

, at *15.

Next, the court held that ABY’s tortious interference injury was

not traceable to the Town Defendants because: (1) ABY could have

prevented its injury by simply putting additional contingencies in its

contract with Grace Church; (2) the Town could not be blamed for the

independent decisions of the Church and potential financiers to

discontinue their dealings with ABY; and (3) only CUPON—not the

Town Defendants—was to blame for ABY’s loss of public bond

financing.

. The court granted ABY leave to replead its

tortious interference claim against CUPON in state court. This appeal

followed. We review a district court’s dismissal for lack of subject

matter jurisdiction de novo. Nat’l Org. for Marriage, Inc. v. Walsh,

(2d Cir. 2013).

DISCUSSION

ABY argues that the district court erred because its religious

discrimination and civil rights claims are ripe and because, for Article

14 III standing purposes, the lost-contract injury underpinning its

tortious interference claim is traceable to the Town Defendants. We

agree.

I. Ripeness

Ripeness is basic to Article III justiciability. The doctrine “is

drawn both from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.” Nat’l Park

Hospitality Ass’n v. Dep’t of Interior,

(2003). Our Court

has been clear that the “ripeness requirement 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.” Dougherty v. Town of N. Hempstead Bd. of Zoning

Appeals,

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

Knick v. Twp. of Scott,

(2019).

Generally, suits in the land-use context are not ripe until a

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

application. Vill. Green at Sayville, LLC v. Town of Islip,

,

15 290 (2d Cir. 2022); see Sunrise Detox V, LLC v. City of White Plains,

(2d Cir. 2014). As long as “avenues still remain for the

government to clarify or change its decision,” it is not final and

therefore not ripe for judicial review. Pakdel v. City & Cnty. of San

Francisco, California,

(2021). But once the

government is committed to a position, the landscape changes.

“Potential ambiguities evaporate and the dispute is ripe for judicial

resolution.”

.

In dismissing ABY’s religious discrimination and civil rights

claims as unripe, the district court concluded that ABY had not

suffered an “‘actual, concrete injury’ because the ZBA never issued a

final decision on ABY’s appeal and variance application” prior to

Grace terminating its contract with ABY. Ateres,

, at

*14 (quoting Williamson Cnty.,

). On this basis, the court

concluded that the “ZBA’s non-final decision here does not give rise

to an injury that is sufficiently concrete and particularized to satisfy

Article III” because Grace Church’s termination “ceased ABY’s

16 contract vendee status, through which ABY was entitled to submit

applications for building permits and variances.” Id. at *14-15

(quotations omitted).

No one doubts that the power of local governments to zone and

control land use is broad and its proper exercise is “an essential aspect

of achieving a satisfactory quality of life.” Schad v. Borough of Mount

Ephraim,

(1981). In this vein, a number of courts have

noted that “despite the temptation it is not the province of a federal

court to act as a super-zoning board.” Schenck v. City of Hudson,

(6th Cir. 1997); see Burns v. City of Des Peres,

(8th Cir. 1976); Steel Hill Dev., Inc. v. Town of Sanbornton,

(1st Cir. 1972).

At the same time, however, federal courts have an obligation to

adjudicate cases that invoke our jurisdiction, and we do not close our

doors to litigants properly seeking federal review simply because

their grievances touch on local zoning matters.

17 In striking this balance, we consider “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.” Murphy,

402 F.3d at 347. So long as a plaintiff has submitted a meaningful

application to municipal agencies to address its land-use controversy,

and the municipal entity responsible for the relevant zoning laws has

had an opportunity to commit to a position “that by all accounts, it

intends to be final,” the parties’ dispute is sufficiently final for

ripeness purposes. Vill. Green at Sayville,

-98 (quoting

Sunrise Detox,

); Williamson Cnty.,

. It is

important to bear in mind that “the finality requirement is relatively

modest,” and “nothing more than de facto finality is necessary.”

Pakdel,

.

Considering these factors, we conclude that, in declining

review of ABY’s application, the ZBA—representing the Town—

reached a decision that was sufficiently final for ripeness purposes.

18 Here, ABY plausibly alleges that it submitted a meaningful

application for a variance to the ZBA after its Building Permit

Application was denied on January 11, 2019. App’x at 34, 38, 47. ABY

also plausibly alleges that the ZBA issued a final decision by choosing

not to adjudicate ABY’s appeal of this denial. Following that denial,

the ZBA declined to respond to at least five letters urging it to

schedule a hearing. App’x at 49, 53, 55; see Appellees’ Br. at 16.

Further, ABY formally objected to Grace Church’s withdrawal from

the sales contract, contending to the ZBA “that the Town’s

interference was the direct cause of ABY losing its financing

resources.” App’x at 53. Finally, on July 9, 2019, Town counsel wrote

to ABY that the ZBA “will not entertain any appeal by [ABY] with

respect to the [property].” Id. at 55.

This letter made the ZBA’s position pellucid: it had reached a

decision to dismiss ABY’s appeal without revisiting the Building

Inspector’s decision, and it intended the decision to be final. At this

point, there was nothing more ABY could have done. Once Grace

19 Church terminated the contract and the Town stepped in and

purchased the property, ABY had no further avenues of review. At

that point, it was no longer possible that its claims could take on “a

more concrete and final form.” Murphy, 402 F.3d at 347. Because

these events amount at a minimum to de facto finality, which is all that

is required, we conclude that the district court improperly dismissed

ABY’s religious discrimination and civil rights claims.

II. Lost-Contract Injury Traceability

Next, ABY contends that there is Article III jurisdiction to

adjudicate its tortious interference claim against the Town

Defendants and CUPON because the Amended Complaint plausibly

alleged a causal connection between their conduct and the loss of the

Grace Church contract.

The district court disagreed. It concluded that because the loss

of the contract was not traceable to the Town Defendants, ABY lacked

standing to bring its tortious interference claim against them. But it

did grant leave for ABY to replead its tortious interference claim

20 against CUPON in state court. The court reasoned that under the

contract, ABY had agreed to pay Grace Church the full purchase price

in a single payment on the closing date, “regardless of whether ABY

needed financing to do so, or whether ABY would be unable to

operate the property for its intended purpose pending approval by

the Town.” Ateres,

, at *18. Accordingly, the court

concluded that ABY’s injuries were of its own making and that it

failed to allege “how the Town Defendants’ conduct had a

determinative or coercive effect on these third parties.”

(internal

quotation marks omitted). But this reasoning sounds in proximate

cause, which is the wrong standard, and, consequently, overstates the

showing that is required.

ABY alleges that through their oversight and participation in

the zoning process, the Town and Hoehmann worked together with

CUPON to prevent ABY from performing under its contract with

Grace Church by obstructing ABY’s attempts to secure financing,

denying its permit application, and refusing to consider its Zoning

21 Board appeal. ABY asserts that the Town Defendants signaled their

opposition to its acquisition of the property, encouraged residents to

voice their complaints, worked with CUPON to block the purchase,

and denied ABY’s initial permit application in an attempt to delay it.

These steps, ABY alleges, prevented it from fulfilling its contractual

obligations with Grace Church, who subsequently terminated the

contract. ABY goes on to allege that the tort injuries it suffered—

financial and dignitary—are directly traceable to the Town

Defendants’ conduct.

To satisfy Article III’s standing requirements,

there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Lujan v. Defenders of Wildlife,

(1992) (quoting Simon

v. E. Ky. Welfare Rts. Org.,

(1976)). Standing requires

more than “mere speculation about the decisions of third parties” and

must rely instead “on the predictable effect of Government action on

22 the decisions of third parties.” Dep't of Com. v. New York,

(2019).

We have been clear that the causal-connection element of

Article III standing, which is the requirement that the plaintiff’s injury

be fairly traceable to the challenged action of the defendant and not

the result of the independent action of some third party not before the

court, does not create an onerous standard. Carter v. HealthPort Techs.,

LLC,

(2d Cir. 2016) (“A defendant’s conduct that

injures a plaintiff but does so only indirectly, after intervening

conduct by another person, may suffice for Article III standing.”). It

requires no more than de facto causality, a standard that is, of course,

lower than for proximate causation. Dep't of Com., 139 S. Ct. at 2566;

see also Rothstein v. UBS AG,

(2d Cir. 2013) (“[F]or

purposes of satisfying Article III’s causation requirement, we are

concerned with something less than the concept of proximate cause.”

(citation omitted)). ABY passes this test. It plausibly alleges that the

Town Defendants took steps to frustrate its planned acquisition of the

23 Grace Church property—steps that predictably prevented ABY from

securing the regulatory approvals necessary to acquire the property,

cut off ABY’s access to public and private financing, and led to Grace

Church’s termination of the contract.

We conclude that these contentions plausibly allege that the

Town Defendants’ actions had a “predictable effect” on the decisions

of relevant third parties—namely, Grace Church, the REAC, and the

private financier, Investors Bank. Dep’t of Com., 139 S. Ct. at 2566. We

therefore conclude that the Amended Complaint plausibly alleged a

causal connection between the Town Defendants’ actions and injuries

that resulted from ABY’s lost contract. The district court therefore

had subject matter jurisdiction to adjudicate ABY’s tortious

interference claims against all Defendants on the merits.

CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the

district court and REMAND for further proceedings consistent with

this opinion.

24