Highview Properties D.H.F. Inc. v. Town of Monroe

USDC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK ELECTROMEALLY EALED

DOC #:

HIGHVIEW PROPERTIES D.H.F. INC., DATE FILED: _ 06/09/2022

Plaintiff,

-against-

TOWN OF MONROE; TOWN OF MONROE

TOWN BOARD; HARLEY DOLES, as former

Town Supervisor in his official capacity;

ANTHONY CARDONE, as Town Supervisor and No. 18 Civ. 867 (NSR)

individually, MARY BINGHAM, as Monroe Town OPINION & ORDER

Boardmember; RICHARD COLON, as Monroe

Town Boardmember and individually; MICHAEL

MCGINN, as Monroe Town Boardmember and

individually, GERARD MCQUADE, JR., as

Monroe Town Boardmember and individually; and

AUDRA SCHWARTZ, as Town of Monroe

Planning Board Chairperson,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Highview Properties D.H.F. Inc., (“Highview”), the owner and developer of a

residential subdivision project called Henry Farms Realty Subdivision (the “Henry Farms

Project”), brings this action under 42 U.S.C. §§ 1983 and 1985, the Takings Clause, the Fair

Housing Act (“FHA”), 42 U.S.C. § 12101, et seg., and the New York State Constitution and

common law, against Defendants Town of Monroe (the “Town’”); the Town of Monroe Town

Board (the “Town Board”); Harley Doles, as former Town Supervisor in his official capacity;

Anthony Cardone, as Town Supervisor and individually; Mary Bingham, as Monroe Town

Boardmember; Richard Colon, as Monroe Town Boardmember and individually; Michael

McGinn, as a Monroe Town Boardmember and individually; Gerard McQuade, Jr., as Monroe

Town Boardmember and individually; and Audra Schwartz, as Town of Monroe Planning Board

Chairperson, (collectively, “Defendants”). (Compl. § 2, ECF No. 1.)

Highview alleges that Defendants—motivated by religious discrimination against Hasidic

Jews—deprived it of its due process rights by enacting legislation that prevents it from developing

a plot of land within the Town and making housing available to Hasidic Jews. (Id. ¶¶ 1–16.)

Specifically, Highview alleges that Defendants (i) adopted a temporary moratorium on all land

subdivisions that had already received conditional final approval; (ii) denied its

exemption/variance application from the moratorium; and (ii) enacted local laws targeting

Highview and the Hasidic Jewish community, such as a zoning law that significantly reduces the

permitted density in residential areas of the Town, as well as a law restricting accessory

apartments. (Id. ¶¶ 4–16.)

Presently pending before the Court are Defendants’ motions to dismiss Highview’s

Complaint under Federal Rules of Civil Procedure 12(b)(1) and (6). (ECF Nos. 85 and 88.) For

the following reasons, the Court GRANTS Defendants’ motions to dismiss.

BACKGROUND

I. Factual Background

The following facts are derived from the Complaint and the documents referenced therein

and are taken as true and constructed in the light most favorable to Highview for the purposes of

this motion.

Highview is a corporation organized and existing under the laws of the State of New York

that is the current owner and developer of the Henry Farms Project, a 134-acre tract of undeveloped

land located within the Town of Monroe. (Compl. ¶¶ 2, 33.) Henry Farms is the site of a

conditionally approved residential development, which resulted from the culmination of a sixteen-

year review process by Town officials. (Id. ¶¶ 5, 22.)

A. The Town of Monroe

The Town Board is the Town’s legislative body. (Id. ¶ 35.) New York Town Law vests in

the Town Board the authority to prepare, amend, and adopt the Town’s comprehensive plan. N.Y.

Town Law § 272-a(4), (7). “Among the most important powers and duties granted by the

legislature to a town government is the authority and responsibility to undertake town

comprehensive planning and to regulate land use for the purpose of protecting the public health,

safety and general welfare of its citizens.” N.Y. Town Law § 272-a(1)(b).

The law defines a town comprehensive plan as “the materials, written and/or graphic . . .

that identify the goals, objectives, principles, guidelines, policies, standards, devices and

instruments for the immediate and long-range protection, enhancement, growth and development

of the town located outside the limits of any incorporated” part of a town. N.Y. Town Law § 272-

a(2)(a). New York Town Law mandates that “[a]ll town land use regulations must be in accordance

with [the] comprehensive plan.” N.Y. Town Law § 272-a(11)(a).

B. SEQRA Review Process and Conditional Approval of the Henry Farms Project

“In May 2000, an application was made to the Town Board to subdivide the [Henry Farms

Project] site into a residential cluster subdivision.” (Compl. ¶ 48.) The Henry Farms Farm project

involves 65 single family lots, 50 multiple dwelling townhouse units, and a commercial lot. (Id. ¶

46.)

The application for the Henry Farms Project triggered the New York State Environmental

Quality Review Act (“SEQRA”). (Id. ¶ 49.) “SEQRA requires local planning boards to consider

the potential environmental impact of a proposed project before granting site plan approval.” Lucas

v. Plan. Bd. of Town of LaGrange, 7 F. Supp. 2d 310, 314–15 (S.D.N.Y. 1998) (citing 6

N.Y.C.R.R. § 617.1; ECL 8–0103, subd. 7). SEQRA’s statutory scheme “attempts to achieve this

substantive goal by designating the public agency most significantly involved in a particular

project as the ‘lead’ agency and by obliging that body to go through a series of procedures intended

to compel consideration of the environmental consequences of any determination which finally

approves the project.” Id. at 315.

The Town Board acted as the SEQRA Lead Agency for the project, which filed a Final

Environmental Impact Statement (“FEIS”)1 on February 13, 2004. (Compl. ¶ 49.) The SEQRA

review culminated on May 2, 2004, when the Town Board issued its Lead Agency SEQRA

Findings Statement. (Id. ¶ 50.)

C. Review of the Town’s Comprehensive Master Plan in 2005

In 2005, the Town Board established a committee to a review the Town’s Comprehensive

Master Plan (“CMP”), which had last been updated six years before in 1998. (See Dorfman Decl.,

Ex. A, “2005 CMP Update,” ECF No. 86-1.) In May 2008, the Town Board adopted an update to

the CMP, entitled “Master Plan – Comprehensive Update 2005” (the “2005 CMP Update”) based

on the results of such review. (Id.) The 2005 CMP Update provides:

As noted in Section II of this document, there should be regularly scheduled review

taking place typically on a five to ten year basis in order to reconsider this Plan and

determine whether it adequately address the Town’s needs. Given the development

potential and relatively limited availability of land in the Town of Monroe, this Plan

recommends that the next review should take place within a five year time frame.[2]

1 If an application will likely have a significant adverse impact on the environment, then an

“environmental assessment form” must be compiled, see 6 NYCRR 617.6, and a determination made as to

whether the action “may include the potential for at least one significant adverse environmental impact.”

Lucas, 7 F. Supp. 2d at 315 (citing 6 NYCRR 617.7(a)). In such case, the SEQRA lead agency issues a

“positive declaration” and either the agency or the applicant—at the latter's option—must prepare a DEIS.

Id. (citing ECL 8–0109, subds. 2, 4; 6 N.Y.C.R.R. §§ 617.7).

If the draft statement is accepted by the agency “as satisfactory with respect to scope, content and

adequacy,” it is then circulated to any other agencies having an interest in the proposal, and “interested

members of the public.” Id. (citing ECL 8–0109, subds. 4, 5; 6 NYCRR 617.8(b), 617.10). After allowing

a period for comment, the lead agency must prepare a FEIS and circulate it in the same manner as the draft

statement. Id. (citing ECL 8–0109, subds. 4, 5, 6; 6 NYCRR 617.10 (h)).

2 Under New York Town Law § 272-a(10), “[t]he town board shall provide, as a component of

such proposed comprehensive plan, the maximum intervals at which the adopted plan shall be

reviewed.”).

(Id., Ex. A at 131.)

D. United Monroe, its discriminatory animus against the Hasidic Jewish community,

and the November 2015 Town Board Election

In 2013, some residents of created a citizens’ opposition group called United Monroe.

(Compl. ¶ 68.) According to Highview, the purpose of United Monroe was to “prevent the Hasidic

Jewish community from purchasing housing in or moving to the Town, and to prevent the

development of housing that would accommodate the needs of the Hasidic Jewish community.”

(Id. ¶ 70.) Highview claims that United Monroe has “vexatiously opposed” residential projects in

the Town after learning that Mr. Ziggy Brach, a developer who United Monroe believed to be from

Kiryas Joel (an adjacent municipality inhabited predominantly by the Hassidic Jewish community)

had an interest in the project because it would make housing available to the Hasidic Jewish

community. (Id. ¶¶ 68–69, 71.) Highview claims that the comments from United Monroe’s leaders

and supporters reveal anti-Hasidic animus because the Henry Farms Project “could be purchased

by Orthodox Jewish families in need of housing in the region.” (Id. ¶ 84.)

Highview claims that United Monroe doubled down on its anti-Hasidic Jewish platform

for the November 2015 Town Board election. (Id. ¶ 85.) It claims that Defendants McGinn and

Cardone ran for the Town Board on the United Monroe party line and overly supported United

Monroe’s anti-Hasidic Jewish principles. (Id. ¶¶ 86–88.) Ultimately, McGinn and Cardone were

elected to the Town Board. (Id. ¶ 89.)

E. Henry Farms Project Receives a Conditional Final Subdivision Approval and the

Town’s Retention of a Planner

On April 14, 2015, the Town Board issued a Conditional Final Subdivision Approval for

the Henry Farms Project to Highview as set forth in the “Resolution of Final Subdivision, Site

Plan, Special Exception Use Permit, Local Wetlands Disturbance Permit for Henry Farms Realty

Subdivision [Highview Properties D.H.F., Inc.]” (the “Resolution”). (Id., Ex. 15, at 1 ¶ 3, ECF No.

1-15.)The Resolution approved a subdivision of the Henry Farms Project into 65 single family

detached residential dwelling lots and 50 townhouse units, once commercial lot (for future

development) and six lots to be dedicated to the Town. (Id., Ex. 15, at 2 ¶ 4.)

Almost a year later, in March 2016, the Town Board retained Nelson, Pope, and Voorhees,

LLC (the “Planner”), an environmental planning and consulting firm, to evaluate the 2005 CMP

Update and make recommendations as to the need for an update. (Dorfman Decl., Ex. B. at 3, ECF

No. 86-2.) The Planner recommended a review and potential update, as well as the adoption of a

moratorium pending that review. (Id., Ex. C at 3, ECF No. 86-3.)

F. The Town Board Adopts a Temporary Moratorium on all Residential

Development Ancillary to a CMP Review

The next month, in April 2016, the Town Board adopted Local Law No. 1 of 2016, entitled

“A Local Law Implementing a Moratorium on the Development of Residential Property of the

Unincorporated Town of Monroe, New York” (the “Moratorium Law”). (Compl., Ex. 8, ECF

No.1-8.) The Town Board adopted the Law to maintain the status quo during its review of the

CMP and to prevent interim development from frustrating the objectives of that review. (Id. at 5.)

The Town Board did not exempt any land subdivisions that had already previously received

conditional final approval. (Id. ¶ 187.)

The Moratorium Law authorized the Town Board to grant variances from the moratorium

in limited circumstances. (Id., Ex. 8 at 6–7 § 3(A).) Specifically, the law provided that “[u]pon a

showing of severe hardship (defined as no economic return on any land purchase), the Town Board

may vary from the moratorium . . . if it determines, in its absolute discretion, that granting such

relief is consistent with the health, safety and general welfare of its inhabitants of the Town and

their property and in harmony with the spirit and purpose of this Local Law.” (Id.)

G. Highview Applies for Exemption from the Moratorium Law

At the time the Town Board enacted the moratorium, Highview had not satisfied all of the

conditions of approval. At least five conditions remained outstanding, including (1) creation of a

drainage district, (2) entering into a Public Improvement Security Agreement (“PISA”) with the

Town Board, (3) posting financial security, (4) dedication of open space, and (5) obtaining

sidewalk waivers. (Id. ¶ 59.)

Under New York Town Law, the creation of a drainage district is a discretionary,

legislative act of the Town Board. See N.Y. Town Law § 190 (“Upon a petition . . . , the town

board of any town may establish or extend in said town a . . . drainage [district] . . . .”). It requires

a formal petition, a public hearing, and environmental review. See id. §§ 191, 193. In deciding

whether to grant a petition to create a drainage district, the Town Board must determine, inter alia,

“whether it is in the public interest to grant in whole or in part the relief sought.” Id. § 194(1)(d).

In May 2016, Highview applied for an exemption from the moratorium. (Compl. ¶ 158.)

Following its review of the application and a public hearing, the Town Board determined that

Highview did not show the required severe hardship and voted to deny the application in

September 2016. (Id. ¶ 179.) Defendant Colon was not present and did not vote on Highview’s

application. (Id. ¶ 177.)

H. Highview Files Suit in State Court to Challenge and Seek Exemption from the

Moratorium

In January 2017, Highview filed a hybrid Article 78 Petition/Verified Complaint

challenging the Town’s moratorium and seeking review of the Town Board’s denial of its

application for an exemption (the “State Action”). See Highview Properties D.H.F., Inc. v. Town

of Monroe, et al., Index No. 298/2017 (Sup. Ct. Orange Cnty.); (see also Dorfman Decl., Ex. D,

ECF No. 86-4.) In the State Action, Highview alleges that “the Moratorium is unconstitutional and

invalid on its face and as applied,” and it seeks a declaratory judgment to that effect. (Id., Ex. D ¶

2.) It alleges the Town Board’s denial of its exemption application was “arbitrary and capricious”

and seeks an order vacating the decision. (Id., Ex. D at 16.)

I. The Town Board Adopts Amendments to Certain Provisions of its Zoning Code;

The Moratorium Expires

In February 2017, the Town Board passed a local law amending the Town’s Accessory

Apartment law. (Compl. ¶ 199.) The law’s stated purpose is to

provide an opportunity for the development of small rental housing units designed

to meet the special housing needs of senior citizens, single persons and small

households; to ensure the retention of single-family neighborhood character; allow

the more efficient use of the Town's housing stock with minimal impact on

community character and resources; and provide economic support for existing

resident families.

(Id., Ex. 18 at 4 § 57-21.) Specifically, the revised Accessory Apartment law allows “any owner

occupying a single-family dwelling” to apply to the Town Board for approval to add an accessory

apartment to his or her home, provided the apartment is no more than 750 square feet or 30% of

the square footage of the original home, whichever is less. (Id. ¶ 199.)

Highview claims that the true purpose of the Accessory Apartment law is to “make housing

unavailable to the Hasidic Jewish community” by making “accessory apartments unavailable” to

them because, due to “their religious and cultural practices, Hasidic Jews generally have larger

families and require more housing space.” (Id. ¶ 200.) Highview claims that United Monroe had

promised that McGinn and Cardone “would address the accessory apartment problem,” a promise

which they followed throughout “less than two months” after they took their seats in the Town

Board. (Id. ¶ 204.)

On November 20, 2017, the Town Board adopted an update to its CMP and amendments

to its zoning code. (Id. ¶ 206.) As a direct effect of these legislative acts, the moratorium expired.

(See id., Ex. 14 at 9, ECF No. 1-14 (“Section 6. Expiration of moratorium. This Local Law shall

expire without further action of the Town Board upon adoption of a comprehensive plan update

and related zoning amendments, or three (3) months following the effective date hereof, whichever

shall occur first, and thereafter shall be of no force or effect.”)

J. Highview Amends its Pleadings in the State Action

In December 2017, Highview filed an amended pleading in the State Action to challenge

and seek exemption from the Accessory Apartment and amended zoning laws. (Dorfman Decl.,

Ex. F, ECF No. 86-6.) It seeks, in part, a judgment declaring it is entitled to a “Special Fact

Exception” for exemption from these laws. (Id., Ex. F ¶¶ 66–69.) The State Action remains

pending and is appears to be now on appeal. See In the Matter of Highview Properties, D.H.F.,

Inc., respondent, v. Town of Monroe, et al., appellants., No. 2021-04347, 298/2017, 2022 WL

537268 (N.Y. App. Div. Feb. 23, 2022).

II. Procedural Background

On January 31, 2018, Highview filed the instant lawsuit against Defendants. (Compl., ECF

No. 1.) On March 28, 2018, Defendants first sought leave to file motions to dismiss, which the

Court subsequently granted and issued a briefing schedule. (ECF Nos. 40 & 42.) Although the

parties filed their respective briefing in September 2018, they later informed the Court that they

had reached a settlement in principle on October 10, 2020. (See ECF No. 71.) Consequently, the

Court denied Defendants’ initial motions to dismiss without prejudice. (ECF No. 72.)

By January 2021, however, the parties were unable to consummate their settlement. (See

ECF No. 75.) Defendants then sought leave to file motions to dismiss a second time, which the

Court subsequently granted and issued a briefing schedule. (Id.; ECF No. 76.) After a series of

extensions, the parties filed their respective briefing on the instant motions in May 2021: the Town,

the Town Board, Doles, Cardone, Bingham, Colon, McGinn, and Schwartz their notice of motion

(ECF No. 85), memorandum in support (“Town Defendants’ Motion,” ECF No. 87), declaration

with accompanying exhibits (Dorfman Decl., ECF No. 86), and reply (“Town Defendants’ Reply”

ECF No. 92); McQuade his notice of motion (ECF No. 88), memorandum in support (“McQuade

Motion,” ECF No. 89), declaration with accompanying exhibits (Randazzo Decl., ECF No. 90),

and reply (“McQuade Reply” ECF No. 93); and Highview its response in opposition (“Response

in Opposition,” ECF No. 91).

LEGAL STANDARD

I. Federal Rule of Civil Procedure 12(b)(1)

“[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such

limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston,

Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation

omitted). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.

Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation omitted). The party invoking the

Court’s jurisdiction bears the burden of establishing jurisdiction exists. Conyers v. Rossides, 558

F.3d 137, 143 (2d Cir. 2009).

When, as here, the case is at the pleading stage, in deciding a motion to dismiss under Rule

12(b)(1), the Court “must accept as true all material facts alleged in the complaint and draw all

reasonable inferences in the plaintiff's favor.” Id. at 143. But “argumentative inferences favorable

to the party asserting jurisdiction should not be drawn.” Buday v. N.Y. Yankees P’ship, 486 F.

App’x 894, 895 (2d Cir. 2012) (summary order) (quoting Atl. Mut. Ins. Co. v. Balfour Maclaine

Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)).

II. Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s

favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to

dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic

recitation[s] of the elements of a cause of action will not do”; rather, the complaint’s “[f]actual

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555. In applying these principles, the Court may consider facts alleged in the complaint

and documents attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282

F.3d 147, 152–53 (2d Cir. 2002) (internal quotation marks and citation omitted).

DISCUSSION

In total, Highview seemingly asserts eleven causes of action against Defendants:

(1) 42 U.S.C. § 1983 claim for alleged due process violations challenging the Town’s

moratorium based on it exceeding its police powers and zoning authority, seeking

injunctive relief;

(2) New York Constitution and Common Law claim for alleged due process violations

challenging the Town’s moratorium based on it exceeding its police powers and zoning

authority, seeking declaratory and injunctive relief;

(3) 42 U.S.C. § 1983 claim for alleged violations of the Equal Protection Clause

challenging the Town’s moratorium and denial of Highview’s exemption/variance

application, seeking injunctive relief;

(4) FHA claim for alleged discrimination against Hassidic Jews for making housing

“unavailable” on the basis of religion, seeking injunctive relief;

(5) FHA claim for alleged retaliation against the Hasidic Jewish communities’ right to

available housing, seeking injunctive relief;

(6) Claim under the U.S. and New York Constitutions for alleged due process violations

resulting from deprivations of vested property interests by the Town’s moratorium and

zoning amendments, seeking declaratory and injunctive relief;

(7) 42 U.S.C. § 1983 claim for alleged due process violations resulting from deprivations

of vested property interests by the Town’s moratorium and denial of Highview’s

exemption/variance application, seeking monetary damages;

(8) Claim without specified legal basis alleging that the Accessory Apartment law is an

exclusionary zoning practice against Hasidic Jewish communities, seeking injunctive

relief;

(9) Claim without specified legal basis alleging that the zoning amendments are

exclusionary zoning practices against Hasidic Jewish communities, seeking injunctive

relief;

(10) 42 U.S.C. § 1983(3) claim for alleged conspiracy to deprive Highview of the equal

protection of laws on the basis of religion, seeking injunctive relief; and

(11) Takings Clause claim for alleged unconstitutional taking through the Accessory

Apartment law and zoning amendments, seeking monetary relief.

(Compl. at 49–72.) Highview bases its eleven causes of action on several alleged adverse actions

by Defendants, including the enactment of the moratorium, denial of its exemption/variance

application to the moratorium, the Accessory Apartment law, and the zoning amendments. (Id.)

Defendants seek to dismiss Highview’s claims for lack of subject matter jurisdiction based

on mootness, ripeness, and standing, as well as for failure to state a claim. (Town Defs.’ Mot. at

23–36; McQuade Mot. at 9–10.) Defendants also argue that the individual Defendants have both

absolute legislative immunity and qualified immunity. (Town Defs.’ Mot. at 18–20; McQuade

Mot. at 5–7.) Alternatively, Defendants argue that the Court should abstain from entertaining

Highview’s claims under Colorado River Water Conservation District v. United States, 424 U.S.

800 (1976), because the pending Article 78 action involves substantially the same legal issues

presented in the instant case. (Town Defs.’ Mot. at 20–23; McQuade Mot. at 7–9.)

Accordingly, the Court must first address Defendants’ challenge to subject matter

jurisdiction and will only analyze whether Highview fails to state a claim if the Court has subject

matter jurisdiction over this case. See Brokamp v. James, --- F. Supp. 3d ---, No. 21-CV-389, 2021

WL 5444277, at *2 (N.D.N.Y. Nov. 22, 2021) (“Subject matter jurisdiction is a threshold issue

and, thus, when a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the motion court

must address the 12(b)(1) motion first.” (citations omitted)).

I. Highview’s Causes of Action 8 and 9

Before addressing the Defendants’ arguments on subject matter jurisdiction, the Court first

notes that the Complaint fails to specify the legal basis for claims 8 and 9 (i.e., whether they are

federal or state claims, and whether they have a statutory or common law basis). These two claims

allege that the Town’s Accessory Apartment law and zoning amendments constitute exclusionary

zoning practices against Hasidic Jewish communities. (See Compl. ¶¶ 301–331.) Highview also

fails to clarify their legal basis in its response in opposition. For the Court to properly analyze the

merits of the parties’ arguments relevant to these asserted causes of action or claims, the Court

must necessarily determine the legal basis under which it will analyze them.

Under Federal Rule of Civil Procedure 8, a complaint must “give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (citation

omitted). The purpose of Rule 8(a) “is to provide fair notice of the claims and to enable the adverse

party to answer the complaint and prepare for trial.” Strunk v. U.S. House of Representatives, 68

F. App’x 233, 235 (2d Cir. 2003). “Dismissal . . . is usually reserved for those cases in which the

complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if

any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Here, throughout claims 8 and 9, Highview refers to the Town’s Accessory Apartment law

and zoning amendments as “exclusionary zoning” practices that Defendants allegedly designed to

exclude Hasidic Jewish communities. (See Compl. ¶¶ 301–331.) Generally, federal claims for

exclusionary or discriminatory zoning practices are asserted under the FHA. See Lynn v. Vill. of

Pomona, 373 F. Supp. 2d 418, 426 (S.D.N.Y. 2005) (“The phrase ‘otherwise make unavailable,’

as it is used within the FHA, has been interpreted to reach a wide variety of discriminatory housing

practices, including exclusionary or discriminatory zoning decisions. (quoting LeBlanc–Sternberg

v. Fletcher, 67 F.3d 412, 424–25 (2d Cir. 1995)), aff’d, 212 F. App’x 38 (2d Cir. 2007). That is

because, as the United States Supreme Court has previously explained, the FHA “was enacted to

eradicate discriminatory practices” within the housing sector, “includ[ing] zoning laws and other

housing restrictions that function unfairly to exclude minorities from certain neighborhoods

without any sufficient justification.” Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities

Project, Inc., 576 U.S. 519, 539 (2015).

In fact, “‘the prohibition against making a residence unavailable has been applied to

situations where government agencies take actions that prevent construction of housing when the

circumstances indicate a discriminatory intent or impact against anticipated future residents who

are members of a class protected’” under the FHA. Lopez v. City of Dallas, No. 3:03 Civ. 2223–

M, 2004 WL 2026804, *5–*6, (N.D. Tex. Sept. 9, 2004) (quoting Arbor Bend Villas Hous., L.P.

v. Tarrant County Hous. Fin. Corp., No. 4:02 Civ. 478–Y, 2002 WL 1285564, *3 (N.D. Tex. June

6, 2002)); see also Reg’l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 45–46

(2d Cir. 2002) (noting that the FHA applies to municipal zoning decisions); Comer v. Cisneros,

37 F.3d 775, 789 (2d Cir.1994) (noting that Congress intended § 3604 to reach a broad range of

activities that have the effect of denying housing opportunities to a member of a protected class,

including not only persons who are directly involved in the real estate business, but also those who

directly affect the availability of housing, such as state or local governments) (collecting cases).

Accordingly, the Court construes Highview to assert claims 8 and 9 under the FHA,

particularly 42 U.S.C. § 3604 based on the facts alleged. The Court finds that Highview’s

allegations and the language contained therein provide sufficient fair notice to Defendants with

respect to the legal basis of these claims such that the relevant allegations are not “so confused,

ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised,” so

as to warrant dismissal. Salahuddin, 861 F.2d at 42.

II. Standing

A. Standing to Rest Claims on Third Parties

The Court first addresses Defendants’ arguments concerning Highview’s standing to bring

this case on behalf of a third party. Defendants argue that Highview may not rest its claims on

what it speculates will be the effect of the challenged laws on the Hasidic Jewish community.

(Town Defs.’ Mot. at 27 (quoting Great Atl. & Pac. Tea Co. v. Town of E. Hampton, 997 F. Supp.

340, 349 (E.D.N.Y. 1998) (“As a rule, a party must assert his or her own legal rights and interests,

and cannot rest the claim to relief on the legal rights or interests of third parties. . . . There is no

reason that town residents aggrieved over a zoning law . . . cannot assert their own rights.”).) The

Court agrees.

A review of the Complaint reveals that the main premise behind Highview’s asserted

causes of action is that Defendants’ adverse actions against Highview were motivated by a

discriminatory animus against “the Hasidic Jewish community.” (See, e.g., Compl. ¶ 1 (“The Town

. . . is engaged in a long-standing campaign to exclude or substantially limit the Hasidic Jewish

community from seeking housing in the Town.); id. ¶ 8 (“The Town . . . persists in its

discriminatory campaign against [Highview] and the Hasidic Jewish community.”); id. ¶ 17

(“[This litigation challenges the Town’s use of the invalid Moratorium Law and adoption of the

Zoning Law Amendments to thwart [Highview’s] approved project, in all practical effect, and

make housing unavailable to the Hasidic Jewish community.”). In view of the above, the

Complaint is unclear whether Highview, a developer and limited liability corporation organized

and existing under the laws of New York with no religious affiliation, is asserting its claims on

behalf of a third party: a member of the Hasidic Jewish community.

Generally, a plaintiff may not rest his claims to vindicate the constitutional or statutory

rights of third parties. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955

(1984); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80, (1978); Singleton

v. Wulff, 428 U.S. 106, 113–14 (1976); Warth v. Seldin, 422 U.S. 490, 499 (1975); Kane v. Johns–

Manville Corp., 843 F.2d 636, 643–44 (2d Cir. 1988).

As the United States Supreme Court has explained:

Federal courts must hesitate before resolving a controversy, even one within their

constitutional powers to resolve, on the basis of the rights of third persons not

parties to the litigation. The reasons are two. First, the courts should not adjudicate

such rights unnecessarily, and it may be that in fact the holders of those rights either

do not wish to assert them, or will be able to enjoy them regardless of whether the

in-court litigant is successful or not. . . . Second, third parties themselves usually

will be the best proponents of their own rights. The courts depend on effective

advocacy, and therefore should prefer to construe legal rights only when the most

effective advocates of those rights are before them.

Singleton, 428 U.S. at 113–14 (internal citations omitted); accord Duke Power Co., 438 U.S. at

80.

Based on these considerations, the Supreme Court has “narrowly limited the circumstances

in which one party will be given standing to assert the legal rights of another.” Duke Power Co.,

438 U.S. at 80. A plaintiff may assert a claim on behalf of third parties only where (1) the third

parties have suffered an “injury in fact,” (2) the plaintiff has a “close relation” to the third parties

such that the plaintiff will effectively represent the third parties’ interests, and (3) the third parties

are hindered in their ability to protect their own interests. See Powers v. Ohio, 499 U.S. 400, 410–

11 (1991); Joseph H. Munson Co., 467 U.S. at 956; Singleton, 428 U.S. at 114–15; Kane, 843 F.2d

at 643–44.

Here, to the extent that Highview asserts claims seeking to assert the rights of “the Hasidic

Jewish community,” Highview lacks standing to bring such claims because nowhere in its

Complaint does it include allegations satisfying the three requirements outlined above. To begin,

even when construing the Complaint in the light most favorable to it, Highview fails to sufficiently

identify any members of “the Hasidic Jewish community” whom it seeks to assert their rights.

Consequently, Highview fails to allege in its Complaint which third parties from the Hasidic

Jewish community suffered an injury in fact, if any.

Even had the Court determined that the Complaint sufficiently identified the third parties,

the Complaint still fails to allege what is Highview’s “close relation” to those third parties such

that Highview will effectively represent their interests. “A close relation supporting third-party

standing exists when ‘the relationship between the litigant and the third party may be such that the

former is fully, or very nearly, as effective a proponent of the right as the latter.’” Fenstermaker v.

Obama, 354 F. App’x 452, 455 (2d Cir. 2009) (quoting Singleton v. Wulff, 428 U.S. 106, 115

(1976)); see also Eisenstadt v. Baird, 405 U.S. 438, 445 (1972) (“[T]he relationship between Baird

and those whose rights he seeks to assert is not simply that between a distributor and potential

distributees, but that between an advocate of the rights of persons to obtain contraceptives and

those desirous of doing so.”).

Here, nowhere in its Complaint does Highview allege, for example, that (1) it is developing

the Henry Farms Project exclusively for Hasidic Jewish communities; (2) the homes within the

Henry Farms Project are specifically advertised for Hasidic Jewish communities; or (3) people

who have purchased homes to be developed within the Henry Farms Project are members of the

Hasidic Jewish community. Additionally, insofar as Highview is alleging that members of the

Hasidic Jewish community could potentially purchase homes within the Henry Farms Project, such

allegation would still be insufficient because parties may not premise third-party standing “on

relationships with hypothetical future clients.” Fenstermaker, 354 F. App’x at 455 (citing Kowalski

v. Tesmer, 543 U.S. 125, 131 (2004) (“The attorneys before us do not have a ‘close relationship’

with their alleged ‘clients’; indeed, they have no relationship at all.”).

And finally, nowhere does Highview allege in its Complaint that these third parties from

the Hasidic Jewish community whom it seeks to assert their rights are “hindered in their ability to

protect their own interests.” Accordingly, Highview may not assert its claims in an attempt to

vindicate the constitutional or statutory rights of any third party.

B. Standing to Assert Any Claims Based on the Accessory Apartment Law

Further, the Court is of the view that Highview cannot assert any of its claims based on the

Town’s Accessory Apartment law because Highview fails to allege any injury in fact. A review of

the Complaint and the documents referenced therein indicate that the Town’s Accessory

Apartment law restricts the ability of property owners to add accessory apartments to their

residences “to meet the special housing needs of senior citizens, single persons and small

households,” among others. (Compl. ¶ 199.) Highview alleges that this law limits the size of an

accessory apartment to no more than 750 square feet or 30% of the square footage of the original

home, which ultimately “is designed to make accessory apartments to the Hasidic Jewish

community—as a result of their religious and cultural practices, [as] Hasidic Jews generally have

larger families and require more housing space[.]” (Id. ¶ 200.) However, by its terms, this law

applies only to owners occupying a single-family dwelling, and not to developers of contemplated

homes such as Highview. (Id., Ex. 18 at 4 § 57-21.) In other words, as the Accessory Apartment

law does not apply to it, logically it follows that Highview has not suffered any injury in fact and

therefore lacks standing to assert its claims based on that law.

Further, insofar as Highview argues that the Accessory Apartment law “denie[s] benefits

to entities such as [itself],” Highview would still lack standing because “[t]here is no redressability,

and thus no standing where (as in the case here) any prospective benefits depend on an independent

actor[—namely, a prospective homeowner—]who retains broad and legitimate discretion the

courts cannot pressure either to control or to predict.” Glanton ex rel. ALCOA Prescription Drug

Plan v. AdvancePCS Inc., 465 F.3d 1123, 1125 (9th Cir. 2006) (internal quotation marks omitted);

accord Butler v. Obama, 814 F. Supp. 2d 230, 241 (E.D.N.Y. 2011). And moreover, even

assuming that Highview sufficiently alleges that the Accessory Apartment law caused an injury in

fact to members of the Hasidic Jewish community, Highview would still not be able to rest its

claims on such law for failure to satisfy the elements required to assert claims on behalf of third

parties. Therefore, Highview may not assert any claims based on the Town’s Accessory Apartment

law for failure to allege any injury in fact.

Accordingly, the Court dismisses claims 3, 4, 5, 8, 9, and 10 in the Complaint. (See Compl.

¶¶ 249–50 (claim 3) (“Defendants have taken numerous unlawful actions to prevent final approval

and construction of the Project . . . based upon their discriminatory animus targeted against Hasidic

Jews.”); id. ¶¶ 260–61 (claim 4) (“Defendants, by their continuing conduct, acts, and legislative

enactments that prevent the final approval, construction, sale, and use of the [Highview’s] projects,

have intentionally discriminated against [Highview] by making housing ‘unavailable’ within the

Town . . . on the basis of religion in violation of 42 U.S.C. § 3604 [by] . . . preclud[ing] Hasidic

Jewish individuals from moving into the Town by virtue of preventing construction and

completion of the Project, and other projects in the Town.”); id. ¶ 277 (claim 5) (“As a direct result

of these unlawful actions by Defendants, even though the Henry Farms project received all of its

final land use approvals, except for those intentionally delayed by the Town Board as a part of its

discriminatory scheme, the Town has repeatedly discriminated against the development and

thereby has intentionally interfered with the Hasidic Jewish communities’ right to available

housing. Defendants have further sought to coerce and intimidate those who support the Hasidic

Jewish community in the hopes of preventing the development of appropriate housing for the

community.”); id. ¶¶ 302–03 (claim 8) (“The Accessory Apartments Law restricts the use of

accessory apartments in a manner that will disproportionately affect Hasidic Jews who live in the

Town. The Accessory Apartment Law is designed to exclude Hasidic Jews from the Town.”); id.

¶ 322 (claim 9) (“The Zoning Law Amendments are designed to exclude Hasidic Jews from the

Town.”); id. ¶ 334 (claim 10) (“Defendants have engaged in a concerted scheme carried out by

political allies, including but not limited to Defendants Cardone, McGinn, and Colon who are

alleged to be involved with or supported by United Monroe, and the Town Board under their

control to engage in a pervasive and wide-ranging scheme to keep the Hasidic Jewish community

out of the Town.”). The Court further dismisses claim 11 insofar as it asserts an unconstitutional

taking through the Accessory Apartment law. (See id. ¶¶ 345–47, 352–53.)

III. Ripeness

Defendants next contend that all of Highview’s claims based on the zoning amendments

are unripe for this Court to have subject matter jurisdiction over them. (Town Defs.’ Mot. at 25–

27.) Defendants argue that Highview’s challenges to these amendments are entirely speculative

and unripe because the Town has never applied these laws to Henry Farms Project, nor has

Highview ever sought a variance. (Id. at 25–26.) The Court agrees.

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

controversy, not a mere hypothetical question.’” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d

682, 687 (2d Cir. 2013) (quoting AMSAT Cable Ltd. v. Cablevision of Conn., 6 F.3d 867, 872 (2d

Cir. 1993)). “A claim is not ripe if it depends upon ‘contingent future events that may or may not

occur as anticipated, or indeed, may not occur at all.’” Id. (quoting Thomas v. Union Carbide Agr.

Prod. Co., 473 U.S. 568, 580–81 (1985)); see also Dougherty v. Town of N. Hempstead Bd. of

Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002) (“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, depending on the final

administrative resolution.”).

Claims involving a land use decision will be unripe “until the government charged with

implementing the regulations has reached a final decision regarding the application of the

regulations to the property at issue.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank

of Johnson City, 473 U.S. 172, 186 (1985), overruled on other grounds by Knick v. Twp. of Scott,

Pennsylvania, 139 S. Ct. 2162 (2019). That is because “[a] final decision is ‘a definitive position

on the issue that inflicts an actual, concrete injury.’” R-Goshen LLC v. Vill. of Goshen, 289 F.

Supp. 2d 441, 448 (S.D.N.Y. 2003), aff’d 115 F. App’x 465 (2d Cir. 2004) (quoting Williamson,

473 U.S at 193). “The ripeness requirement of Williamson, although announced in a takings

context, has been extended to equal protection and due process claims asserted in the context of

land use challenges.” Dougherty, 282 F.3d at 88 (collecting cases). “[C]ourts in this circuit have

also extended it to FHA claims.” Safe Harbor Retreat, LLC v. Town of E. Hampton, N.Y., No. CV

14-2017 LDW GRB, 2015 WL 918771, at *5 (E.D.N.Y. Mar. 2, 2015), aff’d, 629 F. App’x 63 (2d

Cir. 2015).

“A final decision exists when a development plan has been submitted, considered and

rejected by the governmental entity with the power to implement zoning regulations.” S & R Dev.

Estates, LLC v. Bass, 588 F. Supp. 2d 452, 461 (S.D.N.Y. 2008). Even if a plan has been submitted

and rejected, a claim is not ripe until the “property owner submit[s] at least one meaningful

application for a variance.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir.

2005). Four considerations undergird the requirement that plaintiffs seek a variance before

requesting relief from a federal court: (1) the need to develop a full record; (2) “only if a property

owner has exhausted the variance process will a court know precisely how a regulation will be

applied to a particular parcel;” (3) “a variance might provide the relief the property owner seeks

without requiring judicial entanglement in constitutional disputes,” thereby enforcing “the

longstanding principle that disputes should be decided on non-constitutional grounds wherever

possible;” and (4) “[r]equiring a property owner to obtain a final, definitive position from zoning

authorities evinces the judiciary’s appreciation that land use disputes are uniquely matters of local

concern more aptly suited for local resolution.” Id. (citations omitted).

Here, Defendants are correct that the Complaint and the documents referenced therein

indicate that the zoning amendments have not been applied to the Henry Farms Project and that

Highview has yet to apply for a variance. (Town Defs.’ Mot. at 26–27.) In fact, by raising the

futility exception in its response, Highview itself concedes that it has it has not sought a variance

from the zoning amendments. (See Resp. in Opp’n at 19–20.)

Courts recognize one exception permitting federal court review of a non-final decision—

“if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile.” Murphy,

402 F.3d at 349. This occurs 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. Courts have interpreted

this futility exception narrowly. Missere v. Gross, 826 F. Supp. 2d 542, 555 (S.D.N.Y. 2011).

“Although the precise contours of the futility exception are not well-defined, courts in the Second

Circuit have recognized that mere allegations of open hostility are not sufficient to invoke the

futility exception.” Norwood v. Salvatore, No. 12-cv-1025, 2015 WL 631960, at *5 (N.D.N.Y.

Feb. 13, 2015) (internal citations and quotations omitted); Osborne v. Fernandez, No. 06-cv-4127,

2009 WL 884697, at *6 (S.D.N.Y. Mar. 31, 2009), aff’d, 414 F. App’x 350 (2d Cir. 2011)

(rejecting futility argument based on allegations that “defendant decisionmakers were hostile to

plaintiffs’ proposed development or act[ed] in bad faith”). It is a “high standard” met only “when

the government’s actions are so unreasonable, duplicative, or unjust as to make the conduct

farcical.” Sherman v. Town of Chester, 752 F.3d 554, 563 (2d Cir. 2014).

Here, Highview contends that the zoning amendments require it to “resubmit for a new

subdivision approval[,]” which “is precisely the kind of repetitive and unfair procedural abuse”

that the futility exception seeks to prevent. (Resp. in Opp’n at 19.) Highview compares the instant

facts to those in Sherman v. Town of Chester, 752 F.3d 554, (2d Cir. 2014), in which the Second

Circuit found that the futility exception applied where the Town of Chester had “engaged in a war

of attrition” after “repeatedly chang[ing] the zoning laws and rejected [the] plaintiff’s proposal,

forcing [him] to spend millions of dollars over the course of 10 years.” (Resp. in Opp’n at 19

(citing Sherman, 752 F.3d at 562.).) But the Court disagrees with Highview because the facts in

Sherman and those at issue here are not comparable.

First, in Sherman, the Town of Chester enacted new zoning regulations five times over a

five-year period, which required the plaintiff to submit new development plans each time. Here,

in contrast, the Town only enacted zoning amendments once. See Sherman, 752 F.3d at 557.

Second, in Sherman, the Town of Chester announced a moratorium on development that applied

only to the plaintiff. Id. at 558. Unlike in Sherman, the moratorium implemented here did not

exclusively apply to just Highview. And third, in Sherman, the Town of Chester required the

plaintiff to resubmit studies that had already been completed and further required him to first pay

$25,000, and then later an extra $40,000, in fees before he could even obtain a hearing. Id. at 557.

Here, at best, Highview alleges that the zoning amendments “will require [it] to return to the [Town

Board] for new approvals, after having already received final [conditional] subdivision approval”

and “to prepare three separate subdivision plans,” including a “conservation plan, a conventional

subdivision plan, and a conceptual cluster plan[,]” all of which will be “time consuming and

expensive.” (Compl. ¶¶ 211–12.) However, as the Second Circuit itself noted in Sherman: “[e]very

delay in zoning approval does not ripen into a federal claim.” Sherman, 752 F.3d at 563.

Therefore, even when drawing all inferences in Highview’s favor, the Complaint fails to

allege that Defendants’ actions “are so unreasonable, duplicative, or unjust as to make the conduct

farcical.” Sherman, 752 F.3d at 563. As such, the Court is of the view that Highview has not met

its burden in establishing the “high standard” of the futility exception. Further, Highview’s own

allegations fail to show “that the [Town Board] lacks discretion to grant the relief it seeks.” Lost

Trail LLC v. Town of Weston, 289 F. App’x 443, 445 (2d Cir. 2008) (summary order). If anything,

the opposite is true. (See Compl. ¶¶ 214–15 (alleging that Zoning Law § 57-21.1(b)(1) gives the

Town Board “seemingly unbridled discretion” in evaluating the conservation, cluster, and

conventional plans[.]”).)

As a result, “[a]bsent such allegations, the noted disagreement [between Highview and the

Town] is not enough, by itself, to demonstrate futility.” Lost Trail, 289 F. App’x at 445. Thus, the

Court concludes that Highview’s claims based on the zoning amendments are unripe. Accordingly,

the Court dismisses claim 6 insofar as it alleges a due process violation resulting from the zoning

amendments (see Compl. ¶¶ 284–85, 290.), and the remainder of claim 11 that alleges an

unconstitutional taking through the zoning amendments (see id. ¶¶ 348–52, 354).

IV. Mootness

Defendants next contend that Highview’s claims based on the moratorium are moot

because the moratorium expired after the Town adopted the zoning amendments. (Town Defs.’

Mot. at 23–24.) The Court agrees.

“Mandated by Article III’s ‘case or controversy’ requirement, the mootness doctrine

prevents federal courts from hearing matters that no longer present an actual dispute between

parties.” Assoc. Gen. Contractors of Connecticut, Inc. v. City of New Haven, 41 F.3d 62, 65 (2d

Cir. 1994). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).

“Constitutional challenges to statutes are routinely found moot when a statute is amended” or

expires. Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 61 (2d Cir. 1992);

see also Assoc. Gen. Contractors, Inc., 41 F.3d at 65–66 (finding case mooted by expiration of the

statute). “[D]eference to the legislative body's decision to amend is the rule, not the exception. See

Harrison & Burrowes Bridge Constructors, 981 F.2d at 61; see also Lamar Advert. of Penn, LLC

v. Town of Orchard Park, New York, 356 F.3d 365, 377 (2d Cir. 2004) (“Mindful of the deference

due the legislative body, we are hesitant to hold that a significant amendment or repeal of a

challenged provision that obviates the plaintiff's claims does not moot a litigation, absent evidence

that the defendant intends to reinstate the challenged statute after the litigation is dismissed, or that

the municipality itself does not believe that the amendment renders the case moot.”); Catanzano

v. Wing, 277 F.3d 99, 107–08 (2d Cir.2001) (holding no error in district court’s issuance of an

injunction against law that already had expired where efforts were underway to reenact the

provision, but nevertheless finding case moot because efforts to reenact the law were abandoned

while case was on appeal).

Here, as Defendants correctly point out, the moratorium expired upon the adoption of the

updates to its CMP and the zoning amendments. (See Compl., Ex. 14 at 9 (“Section 6. Expiration

of moratorium. This Local Law shall expire without further action of the Town Board upon

adoption of a comprehensive plan update and related zoning amendments, or three (3) months

following the effective date hereof, whichever shall occur first, and thereafter shall be of no force

or effect.”).

Highview nonetheless contends that Defendants have not met their heavy burden in

establishing mootness here because they fail to demonstrate how there is no reasonable expectation

that the alleged violation will recur. (Resp. in Opp’n at 16–17.) In other words, Highview seems

to argue that the expiration of the moratorium was a “voluntary termination of allegedly illegal

conduct.” (Id.)

To be sure, when a challenged statute or regulation expires during litigation, “that does not

necessarily moot the case” when the plaintiffs can show that they “remain under a constant threat

that government officials will use their power to reinstate the challenged restrictions.” Tandon v.

Newsom, 141 S. Ct. 1294, 1297 (2021) (internal quotation marks omitted). But this is not a case

where the challenged conduct was voluntarily withdrawn or altered during litigation. See,

e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68–69 (2020) (holding that

challenge to executive order restricting attendance at religious services in “red” and “orange”

zones was not moot simply because subsequent executive order reclassified the areas as “yellow”).

Instead, this is a case where the challenged statutes or regulations expired by their own terms,

including the intervening passage of legislation. (See Compl., Ex. 14 at 9.) As such, the Court is

unpersuaded that there is “a reasonable expectation of recurrence” in this case. See 36 Apartment

Assocs., LLC v. Cuomo, 860 F. App’x 215, 217 (2d Cir. 2021) (summary order) (quoting Russman

v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 (2d Cir. 2001);

accord Lewis v. Cuomo, No. 20-CV-6316 CJS, 2021 WL 3163238, at *8 (W.D.N.Y. July 27,

2021).

Nonetheless, Highview seems to contend that its claims are not moot because it seeks not

only declaratory or injunctive relief, but also monetary damages. (See Resp. in Opp’n at 16–17;

see also id. at 15 (“Here, [Highview] seeks both injunctive relief and damages resulting from the

Town’s multiple violations of federal constitutional law and the [FHA].”); but see ECF No. 41 at.

3 (Highview’s response to Defendants’ request for pre-motion conference and leave to file first

motion to dismiss) (“[Highview]’s state law claims seek injunctive, not monetary relief . . . .”).)

It is true that “[c]laims for damages or other monetary relief automatically avoid mootness,

so long as the claim remains viable.” Dean v. Blumenthal, 577 F.3d 60, 66 (2d Cir. 2009); see also

Srabyan by Srabyan v. New York, No. 20CV3137NGGRML, 2022 WL 866851, at *2 (E.D.N.Y.

Mar. 23, 2022) (holding that claims seeking monetary relief survive and dismissing related claims

seeking declaratory and injunctive relief as moot). However, as Defendants correctly assert, failure

to comply with the notice of claim requirements under General Municipal Law 50-e and 50-h (and

New York Town Law § 67 (Presentation of claims for torts: actions against towns) for that matter),

“ordinarily requires a dismissal for failure to state a cause of action” of state law claims. Hardy v.

N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793–94 (2d Cir. 1999); see also Warner v. Vill. of

Goshen Police Dep’t, 256 F. Supp. 2d 171, 175 (S.D.N.Y.2003) (“The notice of claim

requirements apply equally to state tort claims brought as pendent claims in a federal civil rights

action.”).

Here, nowhere in the Complaint does Highview allege that it complied with the notice of

claim requirements such that it may assert state law claims seeking damages from Defendants. In

fact, Highview failed to respond to Defendants’ relevant arguments in its response in opposition.

See Williams v. Mirabal, No. 11 Civ. 336 (JMF), 2013 WL 174187, at *2 (S.D.N.Y. Jan. 16, 2013)

(“A court ‘may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a

defendant’s arguments that the claim should be dismissed.’”) (quoting Lipton v. Cnty. of Orange,

N.Y., 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004)).

Accordingly, the Court dismisses claims 1, 2, and 6, all claims based on the moratorium

for which Highview seeks declaratory or injunctive relief, or both. Thus, having determined

Defendants’ arguments regarding subject matter jurisdiction, Highview’s only surviving claim is

claim 7— a § 1983 claim for alleged due process violations resulting from deprivations of vested

property interests by the Town’s moratorium and denial of Highview’s exemption/variance

application, seeking monetary damages;

V. Individual Defendants Sued in Their Official Capacity

Next, before addressing Highview’s only surviving claim, the Court agrees with

Defendants that the Town Board and all individual Defendants in their official capacity must be

dismissed from this action. (Town Defs.’ Mot at 35.)

To begin, “agencies of a municipality are not suable entities because they are ‘merely

administrative arms of a municipality, [and] do not have a legal identity separate and apart from

the municipality.” MetroPCS New York LLC v. City of Mount Vernon, 739 F. Supp. 2d 409, 419

(S.D.N.Y. 2010); see also T-Mobile Northeast LLC v. Town of Ramapo, 701 F. Supp. 2d 446, 463

n. 5 (S.D.N.Y. 2009) (holding that Town Board is not an independent legal entity). Therefore, the

Court dismisses the Town Board from this action.

Further, official capacity claims against individual Town employees “represent only

another way of pleading an action against” the Town. Monell v. New York City Dept. of Social

Servs., 436 U.S. 658, 691 (1978); see also Malay v. City of Syracuse, 638 F. Supp. 2d 303, 311

(N.D.N.Y. 2009) (“[C]laims against a government employee in his official capacity are treated as

a claim against the municipality.”) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Therefore, the

Court dismisses Doles, Cardone, Bingham, Colon, McGinn, McQuade, and Schwartz in their

official capacity from this action.

VI. Individual Defendants Sued in Their Individual Capacity

Next, the Court agrees with Defendants that Cardone, McGinn, Colon, and McQuade in

their individual capacity must be dismissed because they are entitled to immunity from this suit.

(Town Defs.’ Mot. at 18–20; McQuade Mot. at 5–7.)

A. Legislative Acts

First, public servants acting in their legislative capacity are immune from civil liability. See

Rini v. Zwirn, 886 F. Supp. 270, 280 (E.D.N.Y. 1995); Star Distributors, Ltd. v. Marino, 613 F.2d

4, 6 (2d Cir. 1980). This immunity has been extended to local legislative boards. See Orange Lake

Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214, 1219 (2d Cir. 1994)); Goldberg v. Town of Rocky Hill,

973 F.2d 70, 73 (2d Cir. 1992). Absolute legislative immunity attaches to all actions taken “in the

sphere of legitimate legislative activity,” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998), regardless

of an official’s motive or intent. Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007).

Here, because enactment of the moratorium, the Accessory Apartment, and the zoning

amendments were purely legislative acts, Cardone, McGinn, Colon, and McQuade are absolutely

immune from suit. See Kirkpatrick, 21 F.3d at 1224 (legislative immunity attached to individual

members of local town board for their adoption of a master plan and zoning law amendments);

Bloomingburg Jewish Educ. Ctr. V. Vill. of Bloomingburg, 111 F. Supp. 3d 459, 492 (S.D.N.Y.

2015) (granting the individual Town Boardmembers’ motion to dismiss plaintiff’s equal protection

claims stemming from the Boardmembers’ votes in favor of a moratorium on the issuance of all

building permits within the Town as passage of the moratorium was a legislative act for which the

Boardmembers are absolutely immune from suit); Livant v. Clifton, 334 F. Supp. 2d 321, 326

(E.D.N.Y. 2004) (“Here, the Board’s actions in holding a hearing, voting, and approving a

resolution which authorized the removal of a nuisance . . . are clearly legislative in nature.”).

B. Non-Legislative Acts

However, absolute legislative immunity does not shield lawmakers acting in an

administrative or enforcement role. See Jessen v. Town of Eastchester, 114 F.3d 7 (2d Cir. 1997);

State Emples. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 84 (2d Cir. 2007).

Nonetheless, such lawmakers may still enjoy qualified immunity from suit under certain

circumstances.

Qualified immunity “is an entitlement not to stand trial under certain circumstances. Such

entitlement is an immunity from suit rather than a mere defense to liability . . . which ‘is effectively

lost if a case is erroneously permitted to go to trial.’” Mitchell v. Forsyth, 472 U.S. 511, 512 (1985)

(emphasis in original). “The Supreme Court ‘repeatedly [has] stressed the importance of resolving

immunity questions at the earliest possible stage in litigation.’” Chamberlain v. City of White

Plains, 12-CV-5142 CS, 2013 WL 6477334 (S.D.N.Y. Dec. 10, 2013) (quoting Pearson v.

Callahan, 555 U.S. 223, 232 (2009)). “The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Pearson, 555 U.S. at 231(internal quotation marks omitted). The scope of qualified immunity is

broad, and it protects “all but the plainly incompetent or those who knowingly violate the law.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (citation and internal quotation marks omitted).

“A Government official’s conduct violates clearly established law when, at the time of the

challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable

official would have understood that what he is doing violates that right.’” al-Kidd, 131 S. Ct. at

2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

“The Supreme Court’s recent repeated unanimous awards of qualified immunity emphasize

the narrow circumstances in which government officials may be held personally liable for their

actions in suits for money damages.” Turkmen v. Hasty, 789 F.3d 218, 281 n.26 (2d Cir. 2015).

“The dispositive question is whether the violative nature of particular conduct is clearly

established . . . [and] must be undertaken in light of the specific context of the case, not as a broad

general proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (emphasis

in original). “This ‘clearly established’ standard protects the balance between vindication of

constitutional rights and government officials’ effective performance of their duties by ensuring

that officials can ‘reasonably . . . anticipate when their conduct may give rise to liability for

damages.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Anderson, 483 U.S. at 639).

Here, it seems that the only other non-legislative act challenged in the Complaint is in

relation to the individual Defendants’ vote to deny Highview’s exemption/variance application

from the moratorium. (See Resp. in Opp’n at 31 (“[Highview] alleges that Cardone, McGinn, and

McQuade voted to deny [Highview’s] Exemption/Variance Application based upon religious

animus, violating [Highview’s] civil rights. . . .That is not legislative activity to which immunity

could attach.”).) However, because Colon did not participate in such vote (see Compl. ¶¶ 177,

179), then Highview cannot raise a claim against him in his individual capacity for lack of personal

involvement. See Whitton v. Williams, 90 F. Supp. 2d 420, 427 (S.D.N.Y. 2000) (“A defendant in

a § 1983 action may not be held responsible unless he was personally involved in the alleged

constitutional violations.”).

As to the remaining individual Defendants, the Court concludes that, even when construing

the Complaint in its favor, Highview fails to allege that either Cardone, McGinn, or McQuade

violated Highview’s “clearly established rights” in denying its application for exemption/variance

from the moratorium. Defendants are correct that insofar as Highview alleges that their voting to

deny its application was motivated by religious animus, such allegations fail because, as explained

in detail above, neither does Highview have any religious affiliation nor can it assert any claims

on behalf of third parties. (Town Defs.’ Mot at 20; McQuade Mot. at 6–7.)

But perhaps most fatally, Highview fails to cite to any binding legal authority establishing

that a lawmaker’s denial of an exemption/variance application to a developer could constitute the

violation of a “clearly established right” of that developer such that the lawmaker would

understand that what he or she is doing violates that right. See, e.g., 33 Seminary LLC v. City of

Binghamton, 120 F. Supp. 3d 223, 255 (N.D.N.Y. 2015) (“[E]ven assuming arguendo that

Plaintiffs had established that Defendants violated their constitutional rights, Plaintiffs have not

identified a clearly established right that Defendants are alleged to have violated. Their sole

conclusory statement that “the individual defendants’ actions were arbitrary and capricious . . . and

therefore violated plaintiffs’ rights to substantive and procedural process” is insufficient to

establish that Defendants unreasonably violated a clearly established right of Plaintiffs.”), aff’d

sub nom. 33 Seminary LLC v. The City of Binghamton, 670 F. App’x 727 (2d Cir. 2016).

Accordingly, the Court dismisses Colon in his individual capacity from this action due to

Highview’s failure to allege personal involvement, and also dismisses Cardone, McGinn, and

McQuade in their individual capacity from this action on qualified immunity grounds. As such,

Highview’s only surviving claim is solely against the Town.

VII. Abstention Under Colorado River

However, after reviewing the facts and legal issues raised by Highview’s only surviving

claim against the Town and the pending State Action, the Court agrees with Defendants that it

must abstain from entertaining such claim under Colorado River.

Abstention under Colorado River rests on “considerations of wise judicial administration,

giving regard to conservation of judicial resources and comprehensive disposition of litigation.”

Colorado River, 424 U.S. at 817. To determine whether abstention is warranted under Colorado

River, courts should consider:

(1) whether the controversy involves a res over which one of the courts has assumed

jurisdiction; (2) whether the federal forum is less inconvenient than the other for

the parties; (3) whether staying or dismissing the federal actions will avoid

piecemeal litigation; (4) the order in which the actions were filed, and whether

proceedings have advanced more in one forum than in the other; (5) whether federal

law provides the rule of decision; and (6) whether the state procedures are adequate

to protect the plaintiff’s federal rights.

Woodford v. Cmty. Action Agency of Greene Cnty., 239 F.3d 517, 522 (2d. Cir. 2001) (citations

omitted). “No one factor is necessarily determinative; a carefully considered judgment taking into

account both the obligation to exercise jurisdiction and the combination of factors counseling

against that exercise is required.” Colorado River, 424 U.S. at 818–19.

But before considering the Colorado River factors, courts must first determine “whether

the state and federal proceedings are indeed parallel, i.e., whether substantially the same parties

are litigating the same issues in a state forum.” Mouchantaf v. Int’l Modeling & Talent Ass’n, 368

F. Supp. 2d 303, 306 (S.D.N.Y. 2005). To be parallel, “federal and state suits need not be identical

in every aspect.” AMNEX, Inc. v. Rowland, 25 F. Supp. 2d 238, 244 (S.D.N.Y. 1998) (citing Weiser

v. Koch, 632 F. Supp. 1369, 1386 (S.D.N.Y. 1986) (cases parallel where “the crucial threshold

issue” of whether plaintiffs had a property interest under state law would be “decided

imminently.”)

Here, the Court is of the view that the parties in both the instant case and those in the State

Action are substantially the same because, in both actions, Highview is the plaintiff and the Town

is the defendant. (See Dorfman Decl., Ex. D at 2; id., Ex. F at 2.) Further, a review of Highview’s

amended petition in the State Action shows that “the crucial threshold issue” Highview raises in

the State Action is the same one it raises through claim 7: whether it has a vested property interest

and whether it should be exempt from the new zoning amendments. (Compare Compl. ¶ 294 (“The

denial of [Highview’s] Exemption/Variance Application was unconstitutional because

[Highview’s] property rights had vested and the deprivation of those rights through the denial of

[Highview’s] Exemption/Variance Application was arbitrary, capricious, and contrary to law.”);

with Dorfman Decl. Ex. F ¶¶ 59–65 (alleging that the Town Board arbitrarily and capriciously

enforced the moratorium and denied its exemption/variance application); and id., Ex. F ¶¶ 66–71

(“Based on the foregoing, [Highview] has established the bad faith and dilatory conduct of the

Town Board, and is entitled to a judgment declaring that [Highview] has vested rights under a

‘special facts exception’ for the Henry Farm subdivision approval, and that the Town Board and

other-municipal departments and agencies process that subdivision pursuant to the Resolution to

allow for the filing of the approved plat.”).)

Highview argues that the State Action and the instant case are not sufficiently parallel for

the Court to abstain from entertaining claim 7 under Colorado River because they involve different

rights and remedies. (Resp. in Opp’n at 15.) Specifically, Highview argues that while it seeks

monetary damages resulting from the Town’s violations of federal constitutional law through

claim 7, it only seeks an annulment of the Town’s denial of its application on state grounds in the

State Action. (Id.) But the Court disagrees. Colorado River does not require that the federal and

state suits be identical in every aspect; instead, all that is needed is that “substantially the same

parties are contemporaneously litigating substantially the same issue in another forum.” Dittmer

v. Cnty of Suffolk, 146 F.3d 113, 118 (2d Cir.1998) (quoting Day v. Union Mines Inc., 862 F.2d

652, 655 (7th Cir. 1998)).

Turning to Colorado River factors, after due consideration, the Court concludes that the

balance of the factors weighs in favor of abstention. “[T]he most important factor in [the Supreme

Court’s] decision to approve the dismissal [in Colorado River] was the ‘clear federal policy . . .

[of] avoidance of piecemeal adjudication.’” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,

460 U.S. 1, 16 (1983) (quoting Colorado River, 424 U.S. at 819). Indeed, “the predominant

concern expressed in Colorado River and its progeny is the avoidance of piecemeal or purely

duplicative litigation and the concomitant waste of judicial resources.” Mouchantaf, 368 F. Supp.

2d at 307.

Here, that factor—factor 3—weighs heavily in favor of abstention. As noted above, the

crucial threshold issue in both the State Action and claim 7 here is whether Highview has a vested

property interest and whether it should be exempt from the new zoning amendments. Hence, if the

Court proceed to determine the merits of claim 7, then “there is a strong likelihood of needless

duplication” of the ongoing State Action. Chu Trading Co. v. Sara Lee Corp., 810 F. Supp. 501,

508 (S.D.N.Y. 1998). And most notably, if the Court were to proceed to determine the crucial

threshold issue both here and in the State Action, then such situation would “pose a risk of

inconsistent and contradictory results” in both cases. Bull & Bear Group, Inc. v. Fuller, 786 F.

Supp. 388, 392–93 (S.D.N.Y. 1992) (abstention appropriate where “allowing [the] case to proceed

in federal court would pose a risk of inconsistent and contradictory results”).

Such risk is further exacerbated by the fact that the State Action is now on appeal before

the Appellate Division of the Supreme Court for the Second Department. See In the Matter of

Highview Properties, D.H.F., Inc., respondent, v. Town of Monroe, et al., appellants., No. 2021-

04347, 298/2017, 2022 WL 537268 (N.Y. App. Div. Feb. 23, 2022). Indeed, “[g]iven [this]

identity of issues in the state and federal actions, the existence of concurrent proceedings creates

the serious potential for spawning an unseemly and destructive race to see which forum can resolve

the same issues first, which would be prejudicial, to say the least, to the possibility of reasoned

decision making by either forum.” Mouchantaf, 368 F. Supp. 2d at 307.

Additionally, while factors 1 and 2 are neutral, factors 4, 5, and 6 all weigh in favor of

abstention. As to factor 4, it is undisputed that Highview filed the State Action first and that it has

advanced far ahead of the instant case. As discussed above, while this case is still at the pre-answer

stage, the State Action appears to be now on appeal. As such, factor 4 weighs in favor of abstention.

As to factor 5, while it is true that federal law provides the rule of decision on the Fourteenth

Amendment, state law still controls on the questions of whether Highview possesses a vested

property interest and whether the zoning amendments were reasonable and proper. Indeed,

Highview itself argued the same in its response in opposition. (See, e.g., Resp. in Opp’n at 22–23

(“In New York, a property right to a land use approval or vests when ‘the landowner demonstrates

a commitment to the purpose for which the permit was granted by effecting substantial changes

and incurring substantial expenses to further the development.” (quoting Town of Orangetown v.

Magee, 88 N.Y.2d 41, 47 (1996)).) Thus, factor 5 weighs in favor of abstention. And lastly, as to

factor 6, Highview provides no reason whatsoever for this Court to doubt whether the state

procedures are adequate to protect its federal rights.

In sum, after balancing the Colorado River factors, the Court concludes that the factors

weigh in favor of abstention with respect to claim 7. Therefore, the Court abstains from addressing

Highview’s only surviving claim and dismisses it accordingly.*

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss (ECF Nos.

85 and 88) and Highview’s Complaint is deemed DISMISSED without prejudice with leave to

refile consistent with this Opinion and Order. The Clerk of the Court is directed to terminate the

motion at ECF Nos. 85 and 88, and this action.

Dated: June 9, 2022 SO ORDERED:

White Plains, NY wi

eo fuk

i _ f □□□

NELSON S, ROMAN

United States District Judge

3 There is no substantive difference between a stay and dismissal under Colorado River. The

Supreme Court has noted that “a stay is as much a refusal to exercise federal jurisdiction as a dismissal.

When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the

parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the

issues between the parties.” Moses H. Cone Mem'! Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28

(1983); see also, e.g., Burnett v. Physician’s Online, Inc., 99 F.3d 72, 77 (2d Cir. 1996) (“There is no

difference between a stay and a dismissal for purposes of the Colorado River doctrine.”); Abe v. N.Y.

Univ., 14 Civ. 9323, 2016 WL 1275661 at *10 (S.D.N.Y. Mar. 30, 2016) (“ ‘[T]he Colorado River

exceptional circumstances test makes no distinction as to whether a dismissal or stay is more

appropriate.’”); Shields v. Murdoch, 891 F. Supp. 2d 567, 576 n.7 (S.D.N.Y. 2012) (“[T]the Second

Circuit has ‘rejected any distinction between a stay of federal litigation and an outright dismissal for the

purposes of the [Colorado River] exceptional circumstances test.’ ”’).

37