Life Covenant Church, Inc. v. Town of Colonie et al

Filing 67

MEMORANDUM-DECISION AND ORDERED, that Defendants Motion to Dismiss (Dkt. No. 49) is GRANTED; and it is further ORDERED, that LifeChurchs Second Amended Complaint (Dkt. No. 48) is DISMISSED without prejudice to refiling after the Town renders a final decision; and it is further ORDERED, that LifeChurchs Motion to Strike (Dkt. No. 56) is DENIED as moot; and it is furtherORDERED, that Defendants Motion for Summary Judgment (Dkt. No. 58) is DENIED as moot; and it is further ORDERED, that LifeChurchs Motion to Exclude (Dkt. No. 59) is DENIED as moot; ORDERED, that LifeChurchs Motion for Summary Judgment (Dkt. No. 61) is DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on September 13, 2017. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LIFE COVENANT CHURCH, INC.,
Plaintiff,
-against-

1:14-CV-1530 (LEK/DJS)

TOWN OF COLONIE, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Life Covenant Church, Inc. (“LifeChurch”) commenced this lawsuit against

defendants Town of Colonie, the Town of Colonie Planning Board, Planning Board members
Peter Stuto, Timothy Lane, Louis Mion, Susan Milstein, Brian Austin, Craig Shamlian, Kathleen
Dalton, Planning Director Joseph LaCivita, Town Attorney Michael C. Magguilli, and Assistant
Town Attorney Rebekah Nellis Kennedy, asserting violations of the federal and New York state
constitutions, as well as the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
42 U.S.C. § 2000cc et seq. Dkt. Nos. 1 (“Complaint”), 48 (“Amended Complaint”). LifeChurch
also seeks an order of mandamus pursuant to New York Civil Practice Law and Rules (“CPLR”)
section 78 requiring Defendants to remove certain conditions placed on LifeChurch’s site plan.
Am. Compl. ¶¶ 122–23. Presently before the Court is Defendants’ motion to dismiss, Dkt. No. 49
(“Motion”), see also Dkt. Nos. 49-3 (“Memorandum”), 52 (“Opposition”), 54-2 (“Reply”), and
LifeChurch’s motion to strike a portion of the Reply, Dkt. No. 56 (“Motion to Strike”). Since
briefing the Motion, the parties each moved for summary judgment. Dkt. Nos. 58 (“Defendants’
Motion for Summary Judgment”), 61 (“LifeChurch’s Motion for Summary Judgment”).

LifeChurch also moved to exclude Defendants’ expert. Dkt. No. 59 (“Motion to Exclude”).
Because the Court lacks subject matter jurisdiction over LifeChurch’s claims, Defendants’
Motion is granted, and the remaining motions are denied as moot.
II.

BACKGROUND
A. Factual Background
LifeChurch is a religious organization that provides evangelical Christian faith services

and faith-oriented classes to residents of New York’s Capital District. Am. Compl. ¶ 23. In 2013,
LifeChurch began the process of constructing a new facility to accommodate its membership and
expand its faith and educational services. Id. ¶ 24. It purchased property in the Town
(“Property”), on which it planned to construct a new church facility (“Project”). Id. ¶ 26. The
Project would contain a 36,601 square foot facility for worship services, eight religious education
and training rooms, and 457 parking spaces. Id.
To begin development, LifeChurch commenced the Town’s site plan review and
subdivision process. Id. ¶ 28. On March 21, 2013, LifeChurch submitted a zoning verification to
the Town’s building department. Id. ¶ 29. Upon review of its application, the Town Building
Inspector notified LifeChurch’s project engineer, Brian Sipperly, of a concern regarding access to
the Property. Id. ¶ 30. The submitted plans proposed access by means of an existing easement
along a private road known as Moffat Lane. Id. The Town Building Inspector told LifeChurch
that Moffat Lane could be the Property’s point of access only if the plans were revised to include
construction of a cul-de-sac at the end of the road. Id. ¶ 31. LifeChurch revised its plans
accordingly, and the zoning verification was approved for the subdivision portion of the
application. Id. ¶ 32. But the zoning verification for the site plan was denied because the
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proposed building exceeded the allowable square footage. Id. On April 8, 2013, LifeChurch
applied for an area variance with the Town’s Zoning Board of Appeals (“ZBA”). Id. ¶ 33. After
an administrative error by the Town Attorney’s office delayed consideration at the June 6, 2013
ZBA meeting, the application was scheduled to be addressed at the August 15, 2013 meeting. Id.
On June 12, 2013, LifeChurch was informed that the Town would not approve access to
the Property via Moffat Lane unless it obtained an Open Development Area (“ODA”) pursuant to
New York Town Law section 280-a. Id. ¶ 34. On August 15, 2013, it requested an ODA. Id. ¶ 35.
Shortly thereafter, the Town Attorney questioned whether an ODA would be required because
the Property had frontage on a public street, Watervliet-Shaker Road. Id. ¶ 36. Defendants then
informed LifeChurch that the Town Planning Board would not consider an ODA for the
Property. Id. ¶ 37.
On October 13, 2013, a meeting was held with the New York State Department of
Transportation (“NYSDOT”) to discuss allowing access to the Property directly from WatervlietShaker Road. Id. A revised plan was submitted showing direct access from Watervliet-Shaker
Road. Id.
On December 19, 2013, the ZBA granted the area variance allowing the 36,601 square
foot building and Sipperly requested that the site plan application be placed on the Town
Planning Board’s January 21, 2014 agenda. Id. ¶ 38. However, on January 3, 2014, Sipperly was
told that the resubmitted site plan application, previously submitted on November 6, 2013, was
incomplete. Id.
The Town’s planning staff requested a meeting to discuss the proposed access via
Watervliet-Shaker Road. Id. ¶ 39. At a January 8, 2014 meeting, Town planning staff informed
3

LifeChurch that they preferred access from Moffat Lane rather than from Watervliet-Shaker
Road. Id. LifeChurch requested that this matter be placed on the January 21, 2014 Planning
Board agenda. Id. Sipperly submitted revised plans showing access from Moffat Lane. Id.
On January 17, 2014, the Planning Director informed LifeChurch that the Town Attorney
had pulled the matter from the January 21 agenda. Id. ¶ 40. LifeChurch contacted the Town
Attorney, who stated that he was unsure whether the proposed use constituted a church because it
appeared to be a “commercial television broadcast studio.” Id. LifeChurch submitted
documentation to the Town Attorney showing that the Project was intended to be a place of
worship. Id.
On March 10, 2014, following completion of additional traffic analysis, LifeChurch
submitted an updated complete application package to the Town. Id. ¶ 41. The application was
rejected because the title block on the plan provided the wrong location for the Project. Id. On
March 31, 2014, Sipperly was told that the application was complete and would be placed on the
Town Planning Board’s agenda for May 6, 2014. Id. ¶ 42. On May 1, the matter was rescheduled
for May 20, and on May 15, LifeChurch learned that it would not be heard on May 20. Id. ¶ 43.
Defendants offered several reasons for the delays: the Town had insufficient time to review
recently submitted traffic data, NYSDOT personnel preferred access from Moffat Lane instead of
the proposed new curb cut, and the Town’s designated engineer issued a memo recommending
that the Project be accessed via Moffat Lane. Id. LifeChurch then requested an immediate
meeting with all parties involved to resolve the conflicting requests. Id.
At a May 22, 2014 meeting, the Town Attorney asked Plaintiff to submit another request
for an ODA to use Moffat Lane as the access point. Id. ¶ 44. The Town, in effect, made the same
4

recommendation it had in August 2013, though it had failed to address the ODA issue for the
past year. Id. On June 19, 2014, the Assistant Town Attorney told the project engineers that the
Town Planning Board would not hear the ODA request. Id. ¶ 45. LifeChurch received no
explanation for this refusal, but was placed on the August 12, 2014 Town Planning Board agenda
after informing the Town’s Planning Director that it intended to pursue litigation to compel the
Town to place its application on the agenda. Id.
On August 12, 2014, LifeChurch appeared before the Town’s Planning Board for a
second sketch review. Id. ¶ 46. Its engineers demonstrated that the proposed driveway location
complied with NYSDOT’s regulations and standards. Id. Planning Board members raised three
new issues at this time, denying LifeChurch’s sketch plan to allow it to address these new issues.
Id.
LifeChurch was then placed on Planning Board’s agenda for September 23, 2014. Id.
¶ 47. On September 17, it was rescheduled to October 7. Id. In response, LifeChurch sent a
demand letter to Defendants asserting that Defendants’ repeated delays violated LifeChurch’s
constitutional rights and that if the matters were not placed on the October 7 agenda and
approved at that time, it would “consider any further efforts futile and would proceed
accordingly.” Id. Additionally, LifeChurch stated that “any further delays or requests for
additional information would further illustrate that the Town was merely seeking to delay
approvals indefinitely and that such actions would be treated as denials of [its] requests.” Id.
Defendants did not place LifeChurch’s application on the Town Planning Board’s agenda for the
October 7 meeting. Id.

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The Planning Board next considered LifeChurch’s application at its October 21, 2014
meeting. Id. ¶ 49. At the meeting, LifeChurch presented its application, and church attendees
addressed the Planning Board, explaining its role in their lives and the local community. Id.
Following the presentation and testimony, the Planning Board requested that Town staff and the
Town’s outside engineer meet with LifeChurch’s representatives to address any outstanding
issues in preparation for concept acceptance. Id. ¶ 50.
Two days later, LifeChurch’s representatives met with the Planning Director and
representatives from the Town’s outside engineering firm who told LifeChurch they planned to
meet with the Town Planning Board later that evening. Id. ¶ 51. After LifeChurch did not hear
back from the Town or engineering firm, it was told that the Town’s engineers had not been
working on the project because LifeChurch’s escrow account lacked necessary funds. Id.
¶¶ 52–53. LifeChurch replenished the account, but was told it was too late to be placed on the
next Town Planning Board agenda, and it would have to wait until December 16, 2014. Id.
In advance of the December meeting, LifeChurch contacted the Town’s engineer to ask if
any additional materials were needed to complete its application. Id. ¶ 54. The engineer stated
that only the environmental assessment form was needed, but LifeChurch had submitted that
document to Defendants the previous week. Id.
On November 25, 2014, LifeChurch met with the Town’s engineer and received a list of
conditions that he intended to recommend to the Town for any ODA approval. Id. ¶¶ 56–57.
These conditions “attempted to regulate critical aspects of Plaintiff’s worship services and
religious activities, including the number of worship services and the time for those worship
services.” Id. ¶ 57. The restrictive conditions included the following: “Service times shall be a
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minimum of 2 hours apart from start to start,” “Sunday service times shall be limited to up to
three services without additional Planning Board review,” and “Weekday service times shall start
no earlier than 6:30 PM.” Id., Ex. A. LifeChurch informed the outside engineer that “a number of
the conditions appeared to be unacceptable and would likely be rejected by. . . church
leadership.” Id.
Town officials told LifeChurch that it would not be placed upon the December 16, 2014
agenda unless it accepted the conditions recommended by the Town’s engineer. Id. ¶ 58.
LifeChurch later confirmed that the matter was not placed on the agenda. Id.
LifeChurch then filed this action on December 17, 2014. Compl. After commencing suit,
LifeChurch’s request for site plan approval was placed on the Planning Board’s agenda for
concept acceptance. Am. Compl. ¶ 60. On January 13, 2015, the Planning Board granted concept
acceptance, though approval was subject to the conditions proposed by the Town’s engineer. Id.
On February 10, 2015, the Planning Board granted a favorable recommendation for an ODA,
which was later approved by the Town Board on March 26, 2015. Id. ¶ 62–63.
On or about October 20, 2015, the Planning Board approved LifeChurch’s site plan,
subject to the conditions previously placed on the ODA. Id. ¶ 64. LifeChurch subsequently
received building permits and commenced construction. Mem. at 7.1
On or about June 8, 2016, LifeChurch asked the Planning Board and Town Board to
amend the approvals of the ODA and site plan to remove the conditions it now describes as
1

The page numbers for this document refer to those generated by the Court’s electronic
filing system (“ECF”). Despite the clear language of Local Rule 10.1(a)(7), Defendants failed to
paginate their Memorandum. Mem. The Court also notes that Defendants neglected to include a
table of contents in their Memorandum despite the requirements of Local Rule 7.1. Defendants
are encouraged to carefully review the Local Rules before submitting future filings.
7

“illegal and unconstitutional.” Am. Compl. ¶ 65. About a month later, the Town Board passed a
resolution requiring the Planning Board to recommend “whether or not the Town Board should
approve Plaintiff’s request to remove the conditions.” Id. ¶ 66.
The Town’s representatives told LifeChurch that it was on the Planning Board agenda for
August 23, 2016, but it was removed from the agenda when the Town requested additional
information. Id. ¶ 67. Further, “one or more representatives of” Defendants informed LifeChurch
that they objected to LifeChurch conducting weddings, banquets and funerals, which they viewed
as “external to church services.” Id. ¶ 68.
On October 18, 2016, the Planning Board placed LifeChurch on its agenda to consider
amending the conditions placed on the ODA permit and site approvals. Id. ¶ 69. But rather than
vote at the meeting, the Planning Board again requested additional documentation from
LifeChurch and “requested that the process return to the Town Board for a revised resolution.”
Id. LifeChurch was also informed that it would have to obtain an amended SEQR determination
by the Planning Board, a positive recommendation on the ODA by the Planning Board and Town
Board, approval of the amended ODA by the Town Board, and approval of the site plan
amendment by the Planning Board before the ODA and site plan could be amended. Id.
It appears that LifeChurch abandoned the ODA and site plan amendment process at this
point. The Amended Complaint does not allege that it submitted the materials requested by the
Planning Board in October 2016 or sought an additional hearing before the Town Board.
LifeChurch ultimately concluded that “continuation of proceedings before the Town Planning
Board [would] be interminable and futile.” Id. ¶ 70.

8

B. Procedural Background
LifeChurch filed its original complaint on December 17, 2014. Compl. It amended the
Complaint on October 15, 2015, Dkt. No. 33 (“First Amended Complaint”), and submitted a
further amended complaint on November 3, 2016. Am. Compl. Defendants moved to dismiss the
Amended Complaint on November 10, 2016. Mot. Defendants argue that the Court lacks subject
matter jurisdiction over LifeChurch’s claims because they are not ripe and it has not pursued an
Article 78 proceeding, and that the state constitutional claims are redundant. Mem. LifeChurch
filed its Motion to Strike on December 7, 2016, arguing that the Defendants attached additional
evidence in the form of affidavits and exceeded the maximum page limit allowed for a reply.
Mot. to Strike.
On July 31, 2017, while the Motion was pending before the Court, both parties moved for
summary judgment. Defs’ Mot. for Summary Judgment; LifeChurch’s Mot. for Summary
Judgment. LifeChurch also moved to exclude Defendants’ expert. Mot. to Exclude.
III.

LEGAL STANDARD

A fundamental predicate to judgment in the federal courts is the existence of subject
matter jurisdiction. “Dismissal of a case for lack of subject matter jurisdiction . . . is proper
‘when the district court lacks the statutory or constitutional power to adjudicate it.’” Ford v. D.C.
37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (per curiam) (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)). A lack of subject matter jurisdiction cannot be
waived, and may be raised by motion or sua sponte at any time. Transatlantic Marine Claims
Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 107–08 (2d Cir. 1997). “If [a] court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”
9

Fed. R. Civ. P. 12(h)(3). The party asserting subject matter jurisdiction carries the burden of
proving its existence by a preponderance of the evidence. E.g., Makarova, 201 F.3d at 113;
Augienello v. FDIC, 310 F. Supp. 2d 582, 587–88 (S.D.N.Y. 2004).
IV.

DISCUSSION
A. Ripeness

Defendants argue that LifeChurch’s claims are not ripe for review and should therefore be
dismissed under Rule 12(c) for lack of subject matter jurisdiction. Mem. at 8–9. “Ripeness is a
doctrine rooted in both Article III’s case or controversy requirement and prudential limitations on
the exercise of judicial authority.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347
(2d Cir. 2005). “Determining whether a case is ripe generally requires [a court] to ‘evaluate both
the fitness of the issues for judicial decision and the hardship to the parties of withholding court
consideration.’” Id. (quoting Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967)). “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.” Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002).
In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172
(1985), the Supreme Court established a two-prong test for determining whether land-use
disputes are ripe. Id. at 186–194. The second prong of the test applies only to Fifth Amendment
takings claims. Murphy, 402 F.3d at 349. Thus, only the first prong is relevant to this case, and it
requires a plaintiff to “obtain a final, definitive position as to how it could use the property from
the entity charged with implementing the zoning regulations” before commencing suit. Id. at 348.
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But “the first prong of the Williamson ripeness test . . . is not an exhaustion requirement.”
Roman Catholic Diocese of Rockville Ctr., N.Y. v. Inc. Village of Old Westbury,
No. 09-CV-5195, 2012 WL 1392365, at *6 (E.D.N.Y. Apr. 23, 2013). In Williamson, the
Supreme Court explained that
the finality requirement is concerned with whether the initial
decisionmaker has arrived at a definitive position on the issue that
inflicts an actual, concrete injury; the exhaustion requirement
generally refers to administrative and judicial procedures by which an
injured party may seek review of an adverse decision and obtain a
remedy if the decision is found to be unlawful or otherwise
inappropriate.
473 U.S. at 193. Thus, while a plaintiff in a land-use case must obtain a final decision before
commencing suit, she need not exhaust all potential state court remedies before seeking relief in
federal court. “In sum, absent a futility or remedial finding, prong-one ripeness reflects the
judicial insistence that a federal court know precisely how a property owner may use his land
before attempts are made to adjudicate the constitutionality of regulations purporting to limit
such use.” Murphy, 402 F.3d at 349.
1. LifeChurch’s Claims
LifeChurch alleges violations of its free exercise, assembly, due process, and equal
protection rights under the federal and New York state constitutions, as well as RLUIPA. Am.
Compl. ¶¶ 72–119.
The finality requirement applies “to zoning challenges based on the First Amendment
rights of assembly and free exercise,” as well as “claims alleging equal protection violations
arising from local zoning disputes.” Lang v. Town of Tusten, NY, No. 14-CV-4136, 2015 WL

11

5460110, at *4–5 (S.D.N.Y. Aug. 6, 2015). RLUIPA prohibits the government from “impos[ing]
or implement[ing] a land use regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or institution, unless the
government demonstrates that imposition of the burden” is “in furtherance of a compelling
governmental interest” and “is the least restrictive means of furthering that compelling
governmental interest.” § 2000cc(a)(1). It is not “necessary to distinguish the RLUIPA claim
from the First Amendment Free Exercise claim when it comes to our ripeness inquiry.” Murphy,
402 F.3d at 350. Similarly, due process and free exercise claims under the New York
Constitution are subject to the same ripeness analysis. Congregation Rabbinical Coll. of
Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 596 (S.D.N.Y. 2013). For these reasons,
the finality requirement applies to each of LifeChurch’s claims.
LifeChurch’s argument that its claims are a facial challenge to local zoning provisions
and thus exempt from the finality requirement, Opp’n at 11, is unavailing. It is true that “‘facial’
challenges to regulation[s] are generally ripe the moment the challenged regulation or ordinance
is passed.” Congregation Rabbinical Coll., 915 F. Supp. 2d at 595 (alteration in original)
(quoting Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 n.10 (1997)). But despite
LifeChurch’s assertions that its Amended Complaint is a “facial attack of the conditions” placed
on its site plan, Opp’n at 11, its claims are plainly an as-applied challenge. LifeChurch’s claims
are premised on Defendants’ alleged delay in approving its application and the conditions
imposed on its property. E.g., Am. Compl. ¶¶ 63–64, 71, 73, 75. These are textbook as-applied
challenges. E.g., Murphy, 402 F.3d at 348–49 (as-applied challenge to an order imposing
conditions on the use of plaintiff’s property); Dougherty, 282 F.3d at 89 (as-applied challenge
12

premised on defendants’ delay in issuing variance). Indeed, LifeChurch’s purported “facial attack
[on] the conditions” imposed on its property, Opp’n at 11, seems to reflect a misunderstanding of
what constitutes a “facial challenge.” LifeChurch does not allege that any local ordinance or
zoning rules burden religious expression in Colonie, but instead seeks relief from conditions that
affect only its property. Cf. Lamar Advert. of Penn, LLC v. Town of Orchard Park, N.Y., 356
F.3d 365, 369 (2d Cir. 2004) (noting that plaintiff “claim[ed] that [a local] sign ordinance was
facially unconstitutional,” in part because it “discriminated between and among signs bearing
commercial and non-commercial speech”); MacDonald v. Safir, 206 F.3d 183, 189 (2d Cir.
2000) (“[A] facial challenge lies whenever a licensing law gives a government official or agency
substantial power to discriminate based on the content or viewpoint of speech by suppressing
disfavored speech or disliked speakers.” (quoting City of Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750, 759 (1988))); Congregation Rabbinical Coll., 915 F. Supp. 2d at 595
(“Plaintiffs have raised facial challenges to the legality of certain portions of the Village’s Zoning
Code under the Equal Protection Clauses of both the Federal Constitution and the New York
Constitution.”). Merely reciting the phrase “facial challenge” does not transform LifeChurch’s
as-applied challenge into a facial one. Nor does it excuse LifeChurch from the finality
requirement.
LifeChurch argues that its claims are ripe because “[t]he ODA conditions became final on
March 26, 2015, when the Town Board passed a Resolution approving the ODA subject to
impermissible and unconstitutional conditions” and notes that “the Town Planning Board
approved the final site plan on October 20, 2015 with the same illegal conditions.” Opp’n at 9.
The relevant restrictive conditions include limiting the start times for religious services as well as
13

the number of daily services. Am. Compl., Ex. C. Defendants counter that the challenged
conditions are not a final decision because “LifeChurch alleges that it continues to seek final site
approval from the Town Planning Board but anticipates that such approval will be subject to the
same or substantially similar conditions that it claims burdens [sic] its practice of religion.”
Mem. at 10. Its claims, Defendants urge, are not ripe and subject to dismissal.
LifeChurch’s claims are not ripe for review in federal court because it has not received a
final decision from Defendants. In June 2016, after commencing this action, LifeChurch asked
Defendants to amend the approvals of the ODA and site plan to remove the conditions it
describes as “illegal and unconstitutional.” Am. Compl. ¶ 65. The Town Board instructed the
Planning Board to recommend “whether or not the Town Board should approve Plaintiff’s
request to remove the conditions.” Id. ¶ 66. As part of this review process, in August and October
2016, Defendants requested that LifeChurch provide additional information and documentation
to the Planning Board. Id. ¶¶ 67, 69. The Planning Board also identified several additional steps
LifeChurch would need to take to complete the review. Id. ¶ 69.
LifeChurch appears to have abandoned the amendment process in favor of seeking relief
in this Court. It does not allege to have complied with the Planning Board’s October 2016 request
or sought an additional hearing before the Town Board. LifeChurch ultimately concluded that
“continuation of proceedings before the Town Planning Board [would] be interminable and
futile.” Id. ¶ 70.
Failure to pursue a local zoning process to completion renders a challenge to that process
unripe for review in federal court. See, e.g., Sunrise Detox V, LLC v. City of White Plains, 769
F.3d 118, 124 (2d Cir. 2014) (“In light of [plaintiff’s] midstream abandonment of the zoning
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process, its claim is not yet ripe.”); Murphy, 402 F.3d at 352 (holding that plaintiffs who failed to
appeal a cease and desist order to the town zoning board of appeals “may not proceed in federal
court until they have obtained a final, definitive position from local authorities as to how their
property may be used”). It is clear from the Amended Complaint that Defendants offered
LifeChurch an opportunity to amend the approved site plan. Am. Compl. ¶¶ 65–69. LifeChurch
cannot short circuit that process by seeking premature relief in federal court. See, e.g., Donovan
Realty, LLC v. Davis, No. 07-CV-905, 2009 WL 1473479, at *3 (N.D.N.Y. May 27, 2009) (“In
this case, the record is clear that no application for modification was formally filed or decided.
Therefore, no final decision has been rendered.”).
“The types of injuries claimed by [LifeChurch]—delay and bad faith in the processing of
[its] application and loss of desired use of [its] property—are precisely the types of claimed
injuries that require a final decision to become potentially cognizable.” Osborne v. Fernandez,
No. 06-CV-4127, 2009 WL 884697, at *5 (S.D.N.Y. Mar. 31, 2009), aff’d, 414 F. App’x 350 (2d
Cir. 2011) (collecting cases). “By forgoing the avenues for relief outlined in the [amendment
process], [LifeChurch] deprived [Defendants] of the opportunity to issue a final decision. A
federal lawsuit at this stage would inhibit the kind of give-and-take negotiation that often
resolves land use problems, and would in that way impair or truncate a process that must be
allowed to run its course.” Sunrise Detox, 769 F.3d at 124.
Principles of federalism further support dismissal because issues of land use and zoning
are fundamentally local concerns. E.g., Murphy, 402 F.3d at 348 (“Requiring 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.”);
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Twersky v. Town of Hempstead, No. 10-CV-4573, 2012 WL 4928901, at *5 (E.D.N.Y. Oct. 16,
2012) (“Plaintiffs ask this Court to intervene and interpret the Town’s building code, but the
zoning board is in the best position to interpret the Town's building code.”); Grossi v. City of
New York, No. 08-CV-1083, 2009 WL 4456307, at *4 (E.D.N.Y. Nov. 30, 2009) (“[P]olicies of
federalism and judicial restraint require that plaintiffs seek relief from local authorities before
entering the federal courts.”).
2. Futility
A plaintiff is excused from the finality requirement when further action would be futile.
Murphy, 402 F.3d at 349 (citing Southview Assoc., Ltd. V. Bongartz, 980 F.2d 84, 99 n.8 (2d
Cir. 1992)). Though it does not expressly raise the argument, LifeChurch appears to suggest that
it satisfies the futility exception. Opp’n at 13–14. Life Church argues that its claims are ripe
because it has been “subjected to delays, hostility, and obstruction for over 20 months during the
land use approval process.” Id. at 13. It also claims that Defendants “provided LifeChurch with
numerous inconsistent and conflicting direction[s].” Id. at 14.
While the “Second Circuit has not determined ‘what the precise contours of the futility
exception are,’” Osborne, 2009 WL 884697, at *6 (quoting Homefront Org., Inc.v. Motz, 570 F.
Supp. 2d 398, 407 (E.D.N.Y. 2008)), a plaintiff can establish futility by demonstrating that a
defendant “has dug in its heels and made clear that all . . . applications will be denied,” Murphy,
402 F.3d at 349. Courts also consider defendants’ “hostility, delay and obstruction in application
of the futility exception.” Goldfine v. Kelly, 80 F. Supp. 2d 153, 160 (S.D.N.Y. 2000). “A
plaintiff fails to demonstrate futility if the plaintiff’s showing is limited to 1) allegations of
hostility to the plaintiff unless the prospect of refusal of the plaintiff’s application is certain, and
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2) conclusory allegations alleging bad faith and malicious intent.” Donovan, 2009 WL 1473479,
at *4 (citing Homefront Org., 570 F. Supp. 2d at 408).
LifeChurch has not established futility. As explained above, the Amended Complaint
makes clear that LifeChurch requested and received an opportunity to seek an amendment to the
conditions to which it now objects. Am. Compl. ¶¶ 65–70. The mere fact that Defendants
requested additional materials to consider LifeChurch’s proposed amendments, id. ¶ 69, does not
indicate the process is futile. LifeChurch’s allegations that Defendants have displayed “long
standing hostility and bias against LifeChurch” and that “continuation of proceedings before the
Town Planning Board w[ould] be interminable and futile,” id. ¶ 70, are merely “conclusory
allegations alleging bad faith and malicious intent” and cannot support a finding of futility,
Donovan, 2009 WL 1473479, at *4; see also Homefront Org., 570 F. Supp. 2d at 408 (“[C]ourts
in this Circuit have recognized that ‘mere allegations of open hostility [are] not sufficient to
invoke the futility exception.’” (second alteration in original) (quoting Goldfine, 80 F.Supp.2d
at 160–61)); Tri–State Video Corp. v. Town of Stephentown, No. 97-CV-965, 1998 WL 72331,
at *4 (N.D.N.Y. Feb. 13, 1998) (“[M]ere unsupported conclusory allegations that the [defendant]
is openly hostile to its position [are] not sufficient to invoke the futility exception.” (citing Xikis
v. City of New York, No. 89-CV-2000, 1990 WL 156155 (E.D.N.Y. Sept. 29, 1990)).
This case is unlike those where courts have applied the futility exception. E.g., Donovan,
2009 WL 1473479, at *4 (denying a motion to dismiss where plaintiffs submitted affidavits
stating that the defendant stated that “that under no circumstances would the Planning Board ever
consider granting the Plaintiffs’ request for a site plan amendment at their . . . property.”).
Indeed, LifeChurch offers no statements by Defendants revealing hostility to its religious purpose
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or prejudice against its application. LifeChurch’s claims that Defendants are hostile to its
application or that the outcome of its request for amendments is predetermined are “nothing more
than argument, and at best speculation.” Tri–State Video, 1998 WL 72331, at *4. Such
conclusory allegations do not meet the requirements of the futility exception.
Likewise, the fact that LifeChurch’s application has been pending for more than twenty
months, Opp’n at 13, does not render the unfinished zoning process futile. Courts have declined
to apply the futility exception where plaintiffs faced far longer delays. E.g., Williamson, 473 U.S.
at 177–81, 192–93 (claim not ripe after eight-year application process); Dougherty, 282 F.3d
at 89 (claim not ripe after five and-a-half-year delay); Goldfine, 80 F. Supp. 2d at 161 (claim not
ripe after three-year delay); see also Osborne, 2009 WL 884697, at *6 (“Nor does the fact that
Plaintiffs’ application was pending before the Planning Board for more than eighteen months at
the time of the Complaint excuse Plaintiffs’ case from the final decision requirement. Courts
have found claims asserting far longer delays to be unripe and ineligible for the futility
exception.”).
Because LifeChurch has not alleged facts showing that Defendants have “dug in [their]
heels and made clear that [its] applications will be denied,” Murphy, 402 F.3d at 349, the futility
exception does not apply, and its claims are unripe.
B. Remaining Motions
Four additional motions are before the Court: Defendants’ Motion for Summary
Judgment, and LifeChurch’s Motion to Strike, Motion for Summary Judgment, and Motion to
Exclude. Because the Court has dismissed this case for lack of subject matter jurisdiction, these
remaining motions are moot and also dismissed.
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V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 49) is GRANTED; and it is

further
ORDERED, that LifeChurch’s Second Amended Complaint (Dkt. No. 48) is
DISMISSED without prejudice to refiling after the Town renders a final decision; and it is
further
ORDERED, that LifeChurch’s Motion to Strike (Dkt. No. 56) is DENIED as moot; and
it is further
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 58) is DENIED
as moot; and it is further
ORDERED, that LifeChurch’s Motion to Exclude (Dkt. No. 59) is DENIED as moot;
ORDERED, that LifeChurch’s Motion for Summary Judgment (Dkt. No. 61) is
DENIED as moot; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties pursuant to the Local Rules.
IT IS SO ORDERED.

DATED:

September 13, 2017
Albany, New York

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