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 42 U.S.C. § 1983 and the Fair Housing Act (the “FHA”), 42 U.S.C. § 12101 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, 402 F.3d 342, 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 42 U.S.C. § 1983 and the Fair Housing Act (the “FHA”), 42 U.S.C.
§ 12101 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,
402 F.3d 342, 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., 113 F.3d 296, 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, 473 U.S. 172 (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, 752 F.3d 554, 560 (2d Cir. 2014), or for lack of
standing, see Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d
561, 566–67 (2d Cir. 2016). Although Williamson County’s prudential-ripeness
doctrine “is not, strictly speaking, jurisdictional,” Horne v. Dep't of Agric., 569 U.S.
513, 526 (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, 14 F.3d 160, 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,
538 U.S. 803, 807–08 (2003) (characterizing prudential ripeness as “a justiciability
doctrine”); Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (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, 43 F.4th 287, 294 (2d Cir. 2022) (quoting
Williamson Cnty., 473 U.S. at 186). 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., 473 U.S. at 190 (“[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, 473 U.S. at 186,
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, 769 F.3d 118, 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,” N.Y. Vill. Law § 7-712-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, 43 F.4th at 296 (“[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, 520 U.S. 725, 739 (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.”
Id.
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. Id. 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.” Id. 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, 980 F.2d 84,
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, 531 F.
App’x 82, 83 (2d Cir. 2013) (citing Manufactured Home Cmtys., Inc. v. City of San Jose,
18 420 F.3d 1022, 1035 (9th Cir. 2005); Gilbert v. City of Cambridge, 932 F.2d 51, 61
(1st Cir. 1991)). 6
Finally, BMG points to the Supreme Court’s recent decision in Pakdel v. City
& County of San Francisco, 141 S. Ct. 2226 (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. Id. 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.” Id. at 2230 (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. Id. 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.” Id. at 2231.
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.