22-1047 BMG Monroe I, LLC v. Village of Monroe

United States Court of Appeals For the Second Circuit

August Term 2022

Argued: February 6, 2023 Decided: February 16, 2024

No. 22-1047

BMG MONROE I, LLC,

Plaintiff-Appellant,

v.

VILLAGE OF MONROE,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of New York No. 20-cv-1357, Nelson S. Román, Judge.

Before: PARKER, SULLIVAN, and LEE, Circuit Judges.

BMG Monroe I, LLC (“BMG”), the developer of a residential subdivision known as the “Smith Farm Project” in the Village of Monroe, New York (the “Village”), appeals from a judgment of the United States District Court for the Southern District of New York (Román, J.) dismissing BMG’s claims against the Village under

and the Fair Housing Act (the “FHA”),

et seq. In its complaint, BMG challenged the Village’s denials of its applications for building permits on five lots that BMG sought to use for the 181-unit Smith Farm Project, alleging that the Village was motivated by discriminatory animus toward the Hasidic Jewish community, to which BMG intended to market the residential development, in violation of the Equal Protection Clause, U.S. Const. amend. XIV, § 1, cl. 4, and the FHA. The district court dismissed BMG’s claims as unripe and, in the alternative, for lack of standing.

We agree with the district court that, in order to satisfy the finality requirement under our ripeness doctrine, a developer bringing a federal claim against a municipality for denying a building permit must first appeal an adverse planning-board decision to a zoning board of appeals and “submit[] at least one meaningful application for a variance,” Murphy v. New Milford Zoning Comm’n,

, 348 (2d Cir. 2005). We also agree that BMG was not excused from these requirements on the grounds of futility simply because the Village indicated that it would likely not be receptive to a variance request that had yet to be made. Accordingly, we AFFIRM the judgment of the district court.

AFFIRMED.

ROBERT S. ROSBOROUGH IV (Gabriella R. Levine, on the brief), Whiteman Osterman & Hanna LLP, Albany, NY, for Plaintiff-Appellant.

LEO DORFMAN (Brian S. Sokoloff, on the brief), Sokoloff Stern LLP, Carle Place, NY, for Defendant-Appellee.

RICHARD J. SULLIVAN, Circuit Judge:

BMG Monroe I, LLC (“BMG”), the developer of a residential subdivision

known as the “Smith Farm Project” in the Village of Monroe, New York

2 (the “Village”), appeals from a judgment of the United States District Court for the

Southern District of New York (Román, J.) dismissing BMG’s claims against the

Village under

and the Fair Housing Act (the “FHA”),

et seq. In its complaint, BMG challenged the Village’s denials of its

applications for building permits on five lots that BMG sought to use for the

181-unit Smith Farm Project, alleging that the Village was motivated by

discriminatory animus toward the Hasidic Jewish community, to which BMG

intended to market the residential development, in violation of the Equal

Protection Clause, U.S. Const. amend. XIV, § 1, cl. 4, and the FHA. The district

court dismissed BMG’s claims as unripe and, in the alternative, for lack of

standing.

We agree with the district court that, in order to satisfy the finality

requirement under our ripeness doctrine, a developer bringing a federal claim

against a municipality for denying a building permit must first appeal an adverse

planning-board decision to a zoning board of appeals and “submit[] at least one

meaningful application for a variance,” Murphy v. New Milford Zoning Comm’n,

, 348 (2d Cir. 2005). We also agree that BMG was not excused from

3 these requirements on the grounds of futility simply because the Village indicated

that it would likely not be receptive to a variance request that had yet to be made.

Accordingly, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Facts

In 2001, BMG proposed a residential development plan, which it dubbed

the Smith Farm Project, to the Village and the Town of Monroe, New York (the

“Town”). 1 Specifically, BMG sought permission to build a “large-scale

residential cluster subdivision” featuring 181 homes and other recreational

amenities. J. App’x at 34. According to its proposed plan, BMG would construct

twelve single-family detached units, thirty-two duplex units, a community center,

outdoor recreation areas, roads, and management facilities in the Village.

1 As the district court noted, the developer that filed the 2001 application to the Village Planning Board was not BMG, but BMG’s predecessor in interest. The record does not make clear, however, when or how that entity’s interest in the Smith Farm Project was transferred to BMG. Accordingly, we refer to both entities interchangeably as “BMG.” See, e.g., Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc.,

, 297 n.1 (2d Cir. 1997) (noting that, since “successors in interest . . . stand in the shoes of their predecessors,” they may appropriately be “referred to in [judicial] opinion[s] as if they were parties to the original [agreements and actions of their predecessors]”).

4 Notably, BMG’s proposed design features did not conform to the zoning

codes of the Village and Town. For starters, parts of the Smith Farm Project

would be located in the Village’s “multi-family zoning district,” which only

“allow[ed] for . . . either row-house or multi[-]family residential [housing], by

conditional use permit[s].” Id. at 150. Likewise, most of the other portions of the

Smith Farm Project would be located in the Town’s “multiple[-]dwelling” areas,

in which developers would need “special exception use permit[s]” to build

“semi-attached single family units,” “townhouses,” “row houses,” and “duplex

buildings.” Id. at 151 (internal quotation marks omitted). 2 But “[i]nstead of

designing the units in row houses or town houses, as would be required within

the Village of Monroe[] and . . . within the Town of Monroe, [BMG] wished to

create a more traditional layout of detached and semi-detached units [by] relying

on specific traditional architectural designs.” Id. at 153. In essence, BMG hoped

to construct “[c]luster developments” as an “alternative permitted method for

2 Roughly 10 out of the 79.2 acres of BMG’s proposed development would be located in the Town’s “Rural Residential” zone, which only permitted “single[-]family detached units.” J. App’x at 151.

5 designing and configuring lots, buildings[,] and structures to preserve the natural

qualities of open lands.” Id. at 153 (internal quotation marks omitted).

The Village and Town reviewed BMG’s application pursuant to mandatory

procedures established by the New York State Environmental Quality Review Act

(“SEQRA”), and ultimately allowed BMG to depart from their multi-family

regulations so long as BMG satisfied certain conditions. On June 19, 2006, the

Village and Town Planning Boards issued a joint Findings Statement (the “SEQRA

Findings”), concluding that “all [statutory] requirements . . . ha[d] been met” and

that the project “minimize[d] or avoid[ed] adverse environmental effects to the

maximum extent practicable . . . by incorporating as conditions [specific]

mitigation measures.” J. App’x at 148. The SEQRA Findings expressly stated

that approvals depended “on the incorporation of the housing styles, finishes, and

the streetscape . . . attached to the[] [SEQRA] Findings,” id. at 148 n.1, stressing

that “the importance of that design integrity to the acceptability of the cluster

[could not] be over-emphasized,” id. at 153. They also included drawings

depicting requirements for “architectural styling,” id. at 164–65, and emphasized

that construction had to abide by “a strict architectural code” and “critical

6 architectural criteria” concerning rear elevation, roof pitch, and siding materials,

id. at 164–65.

On August 21, 2006, the Village Planning Board granted “preliminary

conditional use approval” for the Smith Farm Project, J. App’x at 176 (emphasis

omitted), while stressing again that its “approval[] . . . rel[ied] on and therefore

[was] conditioned on [BMG’s] incorporation of the housing styles, finishes, and

the streetscape” presented in BMG’s environmental-impact statements and

attached to the SEQRA Findings, id. at 182. The Town Planning Board also

granted preliminary conditional use approval of BMG’s proposal on September

14, 2006.

In 2014, BMG prepared a revised site plan and applied for final project

approvals from the Town and Village Planning Boards. And on August 10, 2015,

the Town and Village Planning Boards issued an “Amended Lead Agency

Findings Statement,” id. at 197–209 (capitalization standardized), which

“clarif[ied]” and “modif[ied]” certain conditions set forth in the SEQRA Findings,

but otherwise left them “in full force and effect,” id. at 198, 207. That same day,

the Village and Town granted conditional final approvals for the Smith Farm

7 Project, while reiterating that the “conditions” of the final approval, J. App’x at

207, included BMG’s “[f]ull compliance,” id. at 126, with the “critical architectural

criteria” from the Village’s and Town’s preliminary conditional approvals in 2006,

id. at 165.

Between October 2017 and April 2018, BMG submitted applications to the

Village’s Building Inspector for permits to construct homes on the five Smith Farm

Project lots at issue in this case: Lots 1, 2, 3, 45, and 46. Citing the failure of

BMG’s proposed construction plans to comply with the architectural criteria upon

which the Village Planning Board had conditioned its approvals in 2006 and 2015,

the Building Inspector denied each of the five applications.

BMG appealed the Building Inspector’s denials of its applications for

Lots 45 and 46 to the Village’s Zoning Board of Appeals (the “ZBA”), but never

appealed with respect to Lots 1, 2, and 3. The ZBA denied BMG’s appeal on

November 13, 2018, upholding the Building Inspector’s determination that BMG’s

proposed construction plans for Lots 45 and 46 were “not in accordance with” the

“strict architectural code” approved by the Village Planning Board. Id. at 358

(internal quotation marks omitted). Finally, on December 11, 2018, the ZBA

8 issued a written decision that denied BMG’s application based on BMG’s

nonconformance with the rear-elevation, siding-materials, and roof-pitch

conditions outlined in the SEQRA Findings. 3

B. Procedural History

In February 2020, BMG commenced this action in the district court,

challenging the Building Inspector’s denials of building permits for Lots 1, 2, and

3 and the ZBA’s denial of its appeal as to Lots 45 and 46. 4 In April 2022, the

district court dismissed the action without prejudice, finding that BMG’s claims

were unripe for judicial determination under Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City,

(1985), and that, in any

event, BMG had failed to establish standing to bring “claims seeking to assert the

rights of ‘the Hasidic Jewish community.’” Sp. App’x at 15–22. This appeal

followed.

3 Between December 2018 and November 2019, the Building Inspector and Village approved BMG’s applications for building permits for twenty-nine homes, including ones on Lots 45 and 46. 4 Prior to bringing its federal action, BMG challenged the ZBA’s decision in an Article 78 proceeding in state court. The state court declined to grant relief on the basis that the ZBA’s decision was not “illegal, arbitrary or capricious, or an abuse of discretion.” Dist. Ct. Doc. No. 30-12 at 5–6.

9 II. STANDARD OF REVIEW

We review de novo the district court’s dismissal of a claim either as unripe,

see Sherman v. Town of Chester,

(2d Cir. 2014), or for lack of

standing, see Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt.,

, 566–67 (2d Cir. 2016). Although Williamson County’s prudential-ripeness

doctrine “is not, strictly speaking, jurisdictional,” Horne v. Dep't of Agric.,

(2013), we are free to affirm the district court’s dismissal of a case on

prudential-ripeness grounds without first addressing jurisdictional issues such as

standing, see Can v. United States,

, 162 n.1 (2d Cir. 1994) (“[J]usticiability

is . . . a ‘threshold’ question” that we may address “in advance of consideration of

subject-matter jurisdiction.”); see also Nat’l Park Hospitality Ass’n v. Dep’t of Interior,

, 807–08 (2003) (characterizing prudential ripeness as “a justiciability

doctrine”); Cacchillo v. Insmed, Inc.,

(2d Cir. 2011) (characterizing

standing as jurisdictional).

III. DISCUSSION

“[I]n the land-use context,” an equal-protection or FHA claim alleging

discriminatory enforcement of zoning regulations “is not ripe until . . . the

10 ‘government entity charged with implementing the regulations has reached a final

decision regarding the application of the regulations to the property at issue.’”

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

(2d Cir. 2022) (quoting

Williamson Cnty.,

). We have made clear that “appeal[ing] . . . to the

Zoning Board of Appeals and request[ing] variance relief” are both necessary

prerequisites to ripeness. Murphy, 402 F.3d at 352 (emphasis added). Under the

law of this Circuit, ripeness is “condition[ed] . . . on a property owner submitting

at least one meaningful application for a variance.” Id. at 348; see also id. at 353

(“[F]ailure to pursue a variance prevents a federal challenge to a local land[-]use

decision from becoming ripe.”); Williamson Cnty.,

(“[I]n the face of

[a developer’s] refusal to follow the procedures for requesting a variance,” the

developer had “not yet obtained a final decision regarding how it [would] be

allowed to develop its property.”).

At the same time, Murphy provides that, under its futility exception,

“[a] property owner [is] excused from obtaining a final decision if pursuing an

appeal to a zoning board of appeals or seeking a variance would be futile.”

402 F.3d at 349. A property owner is not required to pursue applications, for

11 example, “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.” Id.

Additionally, “a property owner [is] not . . . required to litigate a dispute before a

zoning board of appeals if it sits purely as a remedial body.” Id.

Here, the ripeness of BMG’s action therefore turns on whether (1) the

Village’s denials of BMG’s applications for building permits on each of the five

lots at issue constitute “final decision[s]” under Williamson County,

,

and (2) BMG’s failure to seek a second variance after it sought to depart from the

terms of the SEQRA Findings, i.e., the initial variance, is excused under our futility

doctrine. We answer both questions in the negative.

As to Lots 1, 2, and 3, BMG’s “failure” to pursue “[a]n appeal to the [ZBA]”

would typically be “fatal” to its claims vis-à-vis those lots. Murphy, 402 F.3d at

352–53; see also, e.g., Sunrise Detox V, LLC v. City of White Plains,

, 121–

24 (2d Cir. 2014) (holding that “failure to . . . appeal [building] commissioner’s”

denial of building permit to “[z]oning [b]oard of [a]ppeals” rendered developer’s

claim “[un]ripe for judicial consideration”). Since New York law furnishes the

ZBA with plenary authority to “reverse” or “modify” the Building Inspector’s

12 decision and to “make such . . . determination as in its opinion ought to have been

made,”

-b(1) (emphasis added), BMG’s failure to obtain a

decision from the ZBA “leaves undetermined the permitted use of the property in

question,” Murphy, 402 F.3d at 353; see also Vill. Green,

(“[I]t is

‘virtually impossible’ 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.’”

(quoting Suitum v. Tahoe Reg'l Plan. Agency,

(1997) (alterations

omitted))).

BMG resists this conclusion by arguing that “an appeal to the ZBA from the

denial of the permits for Lots 1, 2, and 3 would have been futile.” BMG Br. at 25

(capitalization standardized). BMG contends that “[b]ecause Lots 1, 2, and 3

proposed the same construction and building design elements as Lots 45 and 46,”

the ZBA’s “review of BMG’s appeal for Lots 45 and 46” was “conclusive[]” as to

“all lots.” BMG Br. at 25–26. In essence, BMG argues that its otherwise-unripe

claims relating to Lots 1, 2, and 3 can hitch a ride on the ripeness of its claims

relating to Lots 45 and 46. As explained below, however, BMG’s claims as to

13 Lots 45 and 46 turn out to be unripe because BMG never sought a variance for

those lots based on the new building specifications it wished to implement, which

did not conform to the requirements under the SEQRA Findings. Accordingly,

BMG’s claims as to Lots 1, 2, and 3 would not be ripe for the same reason, even if

we accepted that BMG could invoke futility to excuse its failure to file an appeal

to the ZBA on Lots 1, 2, and 3.

With regard to Lots 45 and 46, we first observe that BMG requested – and

was granted – an initial variance from the zoning laws of the Village and Town so

long as it abided by the conditions set forth in the SEQRA Findings. Specifically,

BMG sought this conditional variance from the Village’s multi-family zoning rules

to create “[c]luster developments” – i.e., “a more traditional layout of detached

and semi-detached units” – “[i]nstead of designing the units in row houses or town

houses, as would be required within the Village of Monroe.” J. App’x at 153 (emphasis

added). To allay the Village’s concerns over environmental impact and village

aesthetics, BMG indicated that although it would “rely[] on specific traditional

architectural designs,” it would also employ alternative methods to “configur[e]

14 lots, buildings[,] and structures to preserve the natural qualities of open lands.”

At the time, however, “only the Town’s zoning law permitted clustering,”

and so the Village had to consider whether it should allow for clustering under its

zoning regulations.

The Village eventually decided to permit clustering – an

action that was not normally allowed – provided that BMG comply with specified

architectural requirements. In granting this variance, “the Village Board . . .

adopt[ed] enabling legislation permitting the Village Planning Board to cluster”

and the “Village and Town Planning Board attorneys . . . agreed to provide for . . .

[a] preliminary special exception use permit . . . coupled with the cluster

authorizations.”

On these facts, we agree with the district court that the

Village, through its Board and Planning Board, agreed to grant a conditional

variance to BMG by permitting a departure from the zoning regulations that

typically applied to the “true multi-family zoning district,” so long as BMG

implemented design features that would preserve the natural qualities of the land.

See Sp. App’x at 3 (“For the Smith Farm Project, the developer proposed – and the

Village agreed to allow – specific design features that did not conform to the Village’s

15 zoning code.” (emphasis added)); Murphy, 402 F.3d at 345 n.1 (“A variance is

authority to an owner to use [its] property in a manner forbidden by the zoning

regulations.” (alterations and internal quotation marks omitted)); Variance, Black’s

Law Dictionary (11th ed. 2019) (defining “variance” as “official permission to do

something other than what is normally allowed” and “official authorization to

depart from a zoning law”).

It naturally follows that, when BMG departed from the proposed layout and

architectural designs attached to the SEQRA Findings, it was required to seek a

second variance from the Village’s zoning restrictions before proceeding to federal

court. But BMG withdrew its application for a second variance after attending a

single “workshop meeting” with the Village Planning Board – without providing

it with an opportunity to vote or render its decision. J. App’x at 653

(capitalization standardized); see id. at 657 (Village Planning Board minutes

reflecting BMG’s statement that it was “going to withdraw the application and rely

on the judicial determination of the courts”). Without question, a prematurely

withdrawn application for a variance is not a “meaningful application for a

variance.” Murphy, 402 F.3d at 348.

16 We conclude that after the ZBA affirmed the Village Planning Board’s

finding that BMG’s construction plans did not comply with previously agreed-

upon conditions, BMG was then required to “submit[] at least one meaningful

application for a variance” to the Village Planning Board or ZBA to see whether it

could apply clustering techniques in the multi-family district while using the new

rear elevation, roof pitch, and siding materials. 5 See id. Put simply, the SEQRA

Findings provided the terms BMG had to abide by in order to depart from the

normally applicable land-use restrictions in the Town and Village. As a result, if

BMG wished to alter those conditions, it first had to seek another variance before

proceeding to federal court. Cf. Southview Assocs., Ltd. v. Bongartz,

,

98–99 (2d Cir. 1992) (holding that, even where “the Board ha[d] denied[] . . . one

application,” developer still faced burden of establishing that “submission of

another application would be futile” (emphasis added)).

Once again, BMG invokes futility, arguing that the Village Planning Board

“made clear” that it would “refuse[] to consider any amendment to [its conditions

5 It bears noting that BMG only asked the ZBA to decide whether its proposed construction plans for Lots 45 and 46 complied with the conditions of the Village Planning Board’s approval of the Smith Farm Project. It never asked the ZBA to grant a variance from those conditions.

17 on] the Smith Farm Project’s approvals.” BMG Br. at 28, 32–33 (citation omitted).

But BMG’s assertions that the Village Planning Board “refused to entertain the

application [for a variance]” or “to consider any amendment to [the conditions it

had originally imposed on] the Smith Farm Project’s approvals,” id. at 32–33, are

belied by the record. Indeed, the minutes of the Village Planning Board

workshop demonstrate that its members were actively considering BMG’s request

for a variance, albeit with some initial skepticism. For example, one member

stated that he “d[id] not feel the [Planning] [B]oard should depart from the

[conditions of the] original approvals,” while others stated that they “did not want

to change what was approved.” J. App’x at 656–57. We do not read these

statements as the Village Planning Board “d[igging] in its heels and ma[king] clear

that all [variance] applications w[ould] be denied.” Murphy, 402 F.3d at 349.

While the Village Planning Board might have expressed doubts about BMG’s

prospects for receiving a variance, “mere doubt that [a variance] application

would be [granted] is insufficient to establish futility.” Dreher v. Doherty,

(2d Cir. 2013) (citing Manufactured Home Cmtys., Inc. v. City of San Jose,

18

, 1035 (9th Cir. 2005); Gilbert v. City of Cambridge,

(1st Cir. 1991)). 6

Finally, BMG points to the Supreme Court’s recent decision in Pakdel v. City

& County of San Francisco,

(2021), to argue that the law with respect

to futility has changed. We disagree. Although the Supreme Court in Pakdel

held that “[o]nce the government is committed to a position, . . . the dispute is ripe

for judicial resolution,” the property owners in that case had made at least one

request for a variance, and “the relevant zoning agency could no longer grant

relief” since the applicable statute of limitations had expired.

at 2229–31

(alterations and internal quotation marks omitted). Under those circumstances,

the Court found “no question about how the regulations at issue appl[ied] to the

particular land in question.”

(alterations and internal quotation marks

omitted).

6 Alternatively, BMG contends that the ZBA had no power to grant variances from subdivision-plan conditions imposed by the Village Planning Board. BMG Br. at 28 (“[T]he ZBA lacks any jurisdiction” to “vary the conditions of [the] Planning Board’s site plan approval.”) In response, the Village appears to suggest that this argument was abandoned by BMG. We need not resolve this issue, however, because even if futility excused BMG’s failure to seek a variance from the ZBA, it would not excuse BMG’s failure to seek a second variance from the Village Planning Board.

19 Here, in sharp contrast, the Village has never denied a single request for a

variance from the Village’s and Town’s multi-family zoning regulations based on

the updated building specifications that BMG sought to use. Likewise, it is

undisputed that the Village Planning Board retains jurisdiction – to this day – to

grant such a variance. Thus, it cannot be said that the Village “is committed to a

position” that resembles that of the defendant in Pakdel.

To the contrary,

because “avenues still remain for the [Village] to clarify or change its decision,”

this is a case where BMG’s “failure to properly pursue administrative procedures”

does “render [its] claim unripe.”

.

IV. CONCLUSION

In its original proposal for the Smith Farm Project, BMG requested a

variance from the zoning codes of the Village and Town to allow it to create

“cluster developments” in a multi-family zoning area. The Village and Town

granted this conditional variance, but later ruled that BMG had not complied with

the terms set forth in the SEQRA Findings. At that point, since BMG wished to

alter the conditions of its initial variance, it needed to do more than appeal the

Village Planning Board’s finding that it was not in compliance with the terms

20 presented in the SEQRA Findings; it needed to apply for a second variance from

the zoning regulations based on the updated rear elevation, roof pitch, and siding

materials in order to secure a Village Planning Board decision that was final.

BMG cannot sidestep that requirement merely by asserting that the Village

Planning Board did not appear to be receptive to granting another variance.

Faithful application of the “meaningful variance” requirement not only comports

with our settled law, see Murphy, 402 F.3d at 348, but also furthers sound policy in

light of the oft-stated concern that federal courts might be transformed into “the

Grand Mufti of local zoning boards,” id. at 348–49 (internal quotation marks

omitted) (collecting cases).

For all these reasons, we AFFIRM the judgment of the district court.

21