Kabrovski, et al v. City of Rochester, et al

Filing 15

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Defendants motion [#6] is granted and this action is dismissed with prejudice.Signed by Hon. Charles J. Siragusa on 12/3/15. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN KABROVSKI and MICHELLE
McQUAY,
Plaintiffs,

DECISION AND ORDER
15-CV-6030 CJS

-vCITY OF ROCHESTER, NEW YORK, HEIDI
ZIMMER-MEYER, EUGENIO MARLIN,
DAVID L. WATSON, STEVEN B. REBHOLZ,
HELEN B. HOGAN, CITY OF ROCHESTER
PLANNING COMMISSION,
Defendants.

APPEARANCES
For Plaintiffs:

R. Brian Goewey, Esq.
45 Exchange Boulevard, Suite 716
Rochester, New York 14614

For Defendants:

John M. Campolieto, Esq.
City of Rochester Law Department
City Hall, Room 400-A
30 Church Street
Rochester, New York 14614-1295

INTRODUCTION
Plaintiffs, who operate a restaurant in the City of Rochester, commenced this action
pursuant to 42 U.S.C. § 1983 after the defendant City of Rochester Planning Commission
restricted their ability to present live outdoor amplified music. Now before the Court is
Defendants’ motion (Docket No. [#6]) to dismiss the action pursuant to Federal Rule of Civil
Procedure 12(b)(6). The application is granted.

BACKGROUND
At the outset the Court must determine what facts it may consider when ruling upon
Defendants’ motion. It is of course well-settled that in resolving a 12(b)(6) motion, the Court
is limited in what it can consider. See, e.g.,Vasquez v. City of New York, No. 10 Civ.
6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y.Sep. 24, 2012) (“[T]he [general] rule [is] that
documents outside the pleadings cannot be considered in a 12(b)(6) motion.”). On a
12(b)(6) motion,
the complaint is deemed to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by reference. Even
where a document is not incorporated by reference, the court may
nevertheless consider it where the complaint relies heavily upon its terms and
effect, which renders the document integral to the complaint.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir.2002) (citations omitted).
In determining whether a document is “integral” to the complaint, “a plaintiff's reliance on the
terms and effect of a document in drafting the complaint is a necessary prerequisite to the
court's consideration of the document on a dismissal motion; mere notice or possession is
not enough.” Id., 282 F.3d at 153 (citation and footnote omitted).
In this action the Complaint references decisions by the City of Rochester’s Planning
Commission, as well as portions of the City Code. These documents are integral to the
Complaint, and accordingly, the Court considers them in ruling upon Defendants’ motion.
Plaintiffs also filed an unsuccessful Article 78 proceeding in New York State Supreme
Court, Monroe County, concerning the same subject matter, and the Court takes judicial

2

notice of Supreme Court’s Decision and Order dismissing that action, even though Plaintiffs
omitted any reference to that lawsuit from their Complaint.1
In 2004, Plaintiffs began operating the New Orleans Louisiana Waterfront Barbeque,
under the name Nolas BBQ (“Nolas”), in the City of Rochester. Nolas is located at 47694775 Lake Avenue, near Ontario Beach Park. Residential neighborhoods are located to the
South and West of Nolas. Between 2004 and 2014, Nolas has applied for and been granted
several special use permits allowing outdoor musical performances. Such special use
permits were granted by the City Planning Commission, pursuant to the Rochester City
Zoning Code, § 120-192(B).
Initially, beginning in 2005, the special use permits allowed Nolas to have live outdoor
amplified entertainment on any day of the week, until 10 pm. In 2007, the City issued Nolas
a special use permit that limited outdoor amplified entertainment to Wednesdays, Fridays
and Saturdays until 10 pm, and Sundays until 9 pm. The 2007 permit also allowed Nolas
to have outdoor amplified entertainment on five additional days (Monday, Tuesday or
Thursday) until 10 pm. The 2007 permit was for a term of five years, and expired at the end
of 2012. During that five-year period, Plaintiffs made certain improvements to Nolas,
including adding a patio, outdoor stage and a deck overlooking the stage.

These

improvements were financed, in part, by a $15,000 grant from the City of Rochester.

1

See, e.g., Missere v. Gross, 826 F. Supp. 2d 542, 553 (S.D.N.Y. 2011) (“The Court may also take
judicial notice of all documents in the public record, including the decisions of the ZBA, the decisions of the
Supreme Court in the Article 78 proceedings, and the provisions of the Village zoning code, that the Parties
have submitted in affidavits with their motion papers. ‘It is well established that a district court may rely on
matters of public record in deciding a motion to dismiss under Rule 12(b)(6).’ Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 75 (2d Cir.1998).”) (other citations omitted).

3

When the aforementioned permit expired, Nolas applied for a new five-year special
use permit. However, by that time, the City had received “dozens of letters, emails, photos
and videos” from citizens, complaining that “the outdoor music [at Nolas] ha[d] become too
loud.”2 The record indicates that in response to such complaints, Nolas “offered to limit the
hours of its outdoor music and to install sound panels on the west and south side[s] of the
property.” On May 2, 2013, the City issued a four-month permit, which reduced Nolas’ ability
to provide outdoor amplified musical entertainment. Specifically, the permit provided, in
pertinent part, that Nolas could have “acoustic music only (no amplification)” on Sundays
and Wednesdays between 3 pm and 10 pm, and “amplified music” on Fridays and
Saturdays between 3 pm and 10 pm. The permit prohibited “outdoor music” on Mondays,
Tuesdays and Thursdays. The permit further required Nolas to “install sound panels” on the
South and West sides of the property. The Commission indicated that Nolas would need
to return to the Commission in October 2013, “to assess the impacts of the live
entertainment with the new mitigation measures.”
On June 20, 2013, the Planning Commission amended its decision, to clarify that on
Sundays and Wednesdays, when “acoustic music” was allowed, vocalists and
instrumentalists could use microphones attached to “small speakers,” but instruments could
not be plugged directly into amplifiers. Neither the May 2013 decision nor the amended
June 2013 decision mentioned the City’s noise ordinance.
Plaintiffs subsequently challenged the Commission’s ruling by filing an Article 78
proceeding in New York State Supreme Court, Monroe County. Specifically, Plaintiffs
alleged that the Commission’s ruling was arbitrary, capricious and lacking a substantial
2

Campolieto Affirmation, Exhibit C, May 2013 Decision, at p. 3.

4

basis. However, on January 23, 2014, Supreme Court denied the application, finding that
the Commission’s decision was supported by substantial evidence and was not arbitrary,
capricious or an abuse of discretion.3
Plaintiffs, meanwhile, applied for a new special use permit. On January 24, 2014, the
Commission issued Plaintiffs a three-year permit that further reduced Plaintiffs’ ability to
present live outdoor amplified music. In that regard, the permit eliminated the ability to have
amplified music on Fridays and Saturdays, and instead indicated that all music on Friday,
Saturday, Sunday and Wednesday had to be acoustic music, though Plaintiffs could apply
to have up to five outdoor amplified events on Fridays and/or Saturdays. Additionally, the
permit indicated that music on Sundays and Wednesdays had to end by 8 pm.4 As part of
its decision, the Planning Commission reiterated that it had received “numerous complaints”
about outdoor amplified music at Nolas, including some from neighbors who indicated that
music from Nolas caused their homes to shake and prevented them from sleeping even
when their windows were closed. The Commission further indicated that Plaintiffs had
completed only “some of the mitigation measures” that had been required in the earlier
permit (emphasis in original), and that Plaintiffs had also violated the earlier permit on some
occasions by allowing musicians to plug their instruments into amplifiers on nights that were
supposed to have only acoustic music.
The Commission’s 2014 decision contained three references to the City’s noise
ordinance. First, the decision noted that, “it is evident that the previous mitigation efforts did

3

Campolieto Affirmation Exhibit B, Judgment and Order.

4

Campolieto Affirmation Exhibit E, January 2014 decision.

5

not bring the use into compliance with the noise ordinance.”5

Second, the decision

indicated that if Plaintiffs wanted to apply for additional permits for amplified music on Friday
or Saturday nights, they would have to present to the Commission, “with adequate time for
review by an expert, a mitigation plan that details all efforts to adhere to Chapter 75 of the
Municipal Code.”6

Lastly, the decision’s closing paragraph, which summarized the

Commission’s ruling, reiterated that if Plaintiffs wanted to have more than five amplified
events they would need to submit a mitigation plan detailing their “efforts to adhere to [the
noise ordinance].”7
Plaintiffs did not file an Article 78 proceeding concerning the 2014 permit. Instead,
on January 16, 2015, Plaintiffs commenced this action pursuant to § 1983, asserting the
following six causes of action p: 1) “First Amendment Violation” concerning the City’s noise
ordinance; 2) “[Fourteenth] Amendment Due Process Violation - 1"; 3) “[Fourteenth]
Amendment Equal Protection Violation”; 4) “[Fourteenth] Amendment Due Process Violation
-2"; 5) “[Fourteenth] Amendment Due Process Violation -3"; and 6) “Violation of the [Fifth]
Amendment Takings Clause.” On April 17, 2015, Defendants filed the subject motion to
dismiss. The motion was fully briefed, and on October 13, 2015, counsel for the parties
appeared before the undersigned for oral argument.
DISCUSSION
Defendants have moved to dismiss this action pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The legal principles applicable to such a motion are clear:

5

Campolieto Affirmation Exhibit E, January 2014 decision, at p. 5.

6

Campolieto Affirmation Exhibit E, January 2014 decision, at p. 6.

7

Campolieto Affirmation Exhibit E, January 2014 decision, at p. 7.

6

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007 ) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted). When applying this
standard, a district court must accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir.1999), cert. denied, 531 U.S. 1052, 121 S.Ct. 657 (2000).
Section 1983
“To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) “that some
person has deprived him of a federal right,” and (2) “that the person who has deprived him
of that right acted under color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)
(citation and internal quotation marks omitted). Here, there is no dispute that Defendants
acted under color of state law, and therefore, the issue is whether Plaintiffs have plausibly
pleaded that they were “deprived of the constitutional rights identified in [their] complaint.”
Id.

7

Due Process
The Complaint alleges that Defendants violated Plaintiffs’ Fourteenth Amendment
Due Process rights in several ways. Specifically, Plaintiffs maintain that the Planning
Commission’s decisions in 2013 and 2014 were “a denial of due process since the
Commission exercised power without any reasonable justification in the service of a
legitimate governmental objective” (Count II); the Commission violated due process by
unreasonably suggesting that live amplified performances could comply with the Municipal
Code’s Noise Ordinance (Count IV); and the Commission violated due process by relying,
in its decision, on the City’s Noise Ordinance, which is vague and overbroad (Count V).
To state a procedural or substantive8 due process claim based on the denial
of a special use permit, plaintiffs must first establish they had a constitutionally
protected property interest in the permit. See Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 313 (2d Cir.2002); Natale v. Town of Ridgefield, 170 F.3d 258,
263 (2d Cir.1999). The Second Circuit uses a “strict entitlement” test to
determine whether a plaintiff holds such an interest. Zahra v. Town of
Southold, 48 F.3d 674, 681 (2d Cir.1995).9 Under this test, a plaintiff has a

8

“To succeed on a procedural due process claim, a plaintiff must first establish a valid property interest
within the meaning of the Constitution, and second demonstrate that the defendant acted in an arbitrary or
irrational manner in depriving him or her of that property interest.” Salvador v. Adirondack Park Agency of
State of New York, 35 Fed. Appx. 7, 12 (2d Cir. Apr. 26, 2002) (citation and internal quotation marks omitted).
On the other hand, “[s]ubstantive due process is an outer limit on the legitimacy of governmental action. It
does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason
correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards
are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental
authority.” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999) (emphasis added, citations omitted).
9

The “strict entitlement” or “clear entitlement” test “applies only to permits being sought,” and not to
permits that have already been granted. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379 (2d Cir.
1995). Here, Plaintiffs were seeking new permits, and have not argued, or plausibly asserted, that they had
any continuing property right arising from the previously-issued expired permits. See, 33 Seminary LLC v.
City of Binghamton, No. 3:11-CV- 1300 MAD, — F.Supp.3d — , 2015 WL 4546272, at *18 (N.D.N.Y. July 28,
2015) (“Any constitutionally protected property interest 26 Seminary may have had in the building permits
expired when the term of the permit expired[.]”); see also, Salvador v. Adirondack Park Agency, 35 Fed.Appx.
at **3 (No property interest in an expired permit).

8

protected property interest in a permit if “the issuing authority lacks discretion
to deny the permit, i.e., is required to issue it upon ascertainment that certain
objectively ascertainable criteria have been met,” Natale v. Town of Ridgefield,
170 F.3d at 263, “or if the discretion of the issuing agency was so narrowly
circumscribed that approval of a proper application was virtually assured.”
DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 132 (2d Cir.1998)
(internal citation omitted).
Michael's Rest. & Sports Bar, Inc. v. Vill. of Fishkill, No. 13 CV 8392 VB, 2014 WL 3887200,
at *2 (S.D.N.Y. June 16, 2014).
In the instant case, the Complaint does not expressly claim that Plaintiffs had “a
constitutionally protected property interest” in a permit allowing them to have outdoor
amplified music, nor does it allege facts from which such an inference could be drawn. For
example, the Complaint does not identify any section of the City’s Zoning Code indicating
that the Commission was required to issue a permit allowing outdoor amplified music once
Plaintiffs met specified objectively ascertainable criteria. To the contrary, the Zoning Code,
§ 120-192(B)(4)(d)[5][m], indicates that the Planning Commission may impose conditions
on special use permits, including “noise limitations,” “as may be necessary to prevent or
minimize adverse effects upon other property in the neighborhood.”
Although Defendants’ motion to dismiss argues that Plaintiffs lack a protected
property interest,10 Plaintiffs’ responding papers fail to address that issue. Consequently,
Plaintiffs are deemed to have conceded the point. See, Rubin v. Abbott Labs., No. 13 CIV.
8667 CM, 2015 WL 5679644, at *7 (S.D.N.Y. Sept. 23, 2015) (“This 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.”) (citation omitted). Essentially, Plaintiffs’

10

Defendants’ Memo of Law [#6-3] at pp. 19-21.

9

due process arguments focus entirely on the alleged unreasonable nature of the
Commission’s decision, without first establishing that they had protected property interest
in the permit that they sought. Since Plaintiffs have not plausibly pleaded that they had such
an interest, their due process claims must be dismissed.
Equal Protection Clause
The Complaint maintains that Defendants’ decision restricting live outdoor amplified
music at Nolas violates equal protection, because other organizations, including two similar
restaurants, are allowed to have live outdoor amplified music. (Count III). The Complaint
does not offer any reason, such as personal animosity, for why Plaintiffs believe they were
treated less-favorably than owners of other establishments.

Instead, Plaintiffs are

apparently asserting a “class of one” equal protection claim, by asserting that they are being
treated differently than others similarly situated without a rational basis.11 However, a “class
of one” equal protection claim requires a very high level of similarity between the plaintiff and
the alleged similarly-situated entities:
Although the Equal Protection Clause is most commonly used to bring claims
alleging discrimination based on membership in a protected class, a plaintiff
who does not allege membership in a protected class may, nonetheless, bring
a “class of one” equal protection claim. A class-of-one claim exists where the
plaintiff alleges that he has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in
treatment. To state a claim, a plaintiff must identify at least one individual with
whom he can be compared.
There must be an extremely high degree of similarity between the proposed
comparator and the plaintiff such that an inference can be drawn that the
plaintiff was intentionally singled out for reasons that so lack any reasonable

Complaint at ¶ 152.

11

10

nexus with a legitimate governmental policy that an improper
purpose—whether personal or otherwise—is all but certain. Accordingly, to
succeed on a class-of-one claim, a plaintiff must establish that (i) no rational
person could regard the circumstances of the plaintiff to differ from those of
a comparator to a degree that would justify the differential treatment on the
basis of a legitimate government policy; and (ii) the similarity in circumstances
and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of mistake.
Thus, to state a claim that will pass muster under Rule 12(b)(6), [plaintiffs]
must plausibly allege that a property sufficiently similar to theirs was treated
more favorably by the [municipality].
Abramson v. Gettel, No. 14-CV-2371 NSR, 2014 WL 6694505 at *5 (S.D.N.Y. Nov. 25,
2014) aff'd, 607 F. App'x 101 (2d Cir. 2015) (emphasis added, citations and internal
quotation marks omitted).
Here, apart from asserting that the comparator business establishments have live
outdoor amplified music and are located within the City of Rochester, Plaintiffs do not offer
any facts to explain how they are similarly situated. For example, Plaintiffs admit that the
Planning Commission received complaints from neighbors about the noise from outdoor
amplified concerts at Nolas, but do not claim that the Commission received similar
complaints about these other establishments.12 Nor does the Complaint indicate that those
other establishments are located adjacent to residential areas, as is Nolas.13 Instead, the
Complaint simply asserts that “plaintiffs are being treated differently than similarly situated

12

Plaintiffs contend that the complaints about them were “unfounded,” but they do not dispute that the
Planning Commission actually received the complaints.
13

In that regard, the Court takes judicial notice that two of the alleged comparator establishments that
Plaintiffs identify, Pelicans Nest Restaurant and Schooners Riverside Pub, are located at 566 River Street and
40 Marina Drive, respectively. Both are waterfront properties, unlike Nolas, and both are located much farther
from residential areas than Nolas.

11

businesses in an adverse manner,”14 which is a conclusion and not a statement of fact.
Consequently, the Complaint fails to state a plausible equal protection claim.
Fifth Amendment Takings Clause
The Complaint contends that Defendants violated the Fifth Amendment’s “Takings
Clause” by “eliminating” Plaintiffs’ “ability to present seasonal live outdoor amplified music
entertainment” at Nolas, thereby reducing the value of the establishment without
compensation. (Count VI).
The Takings Clause provides that no “private property [shall] be taken for
public use, without just compensation.” U.S. Const. amend. V. The clause
applies to the states through the Fourteenth Amendment. Kelo v. City of New
London, Conn., 545 U.S. 469, 472 n. 1, 125 S.Ct. 2655, 162 L.Ed.2d 439
(2005).
1256 Hertel Ave. Associates, LLC v. Calloway, 761 F.3d 252, 261 (2d Cir. 2014).
Although initially the application of this rule was limited to instances where the
government took physical control of another's property, beginning with
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), the Court recognized
that government regulation of private property may, in some instances, be so
onerous that its effect is tantamount to a direct appropriation or ouster—and
that such ‘regulatory takings' may be compensable under the Fifth
Amendment. Supreme Court precedent indicates that two categories of
regulatory action will be deemed per se takings for Fifth Amendment
purposes. First, where government requires an owner to suffer a permanent
physical invasion of [his] property—however minor—it must provide just
compensation. Second, regulations that completely deprive an owner of ‘all
economically beneficial uses’ of [his] property require just compensation.
Outside of these two relatively narrow categories regulatory takings challenges
are governed by the standards set forth in Penn Central Trans. Co. v. New
York City, 438 U.S. 104 (1978).

Complaint at ¶ 151.

14

12

Jado Associates, LLC

v. Suffolk Cty. Sewer Dist. No. 4- Smithtown Galleria, No.

CV-12-3011 DRH ARL, 2014 WL 2944086 at *6 (E.D.N.Y. Jun. 30, 2014) (citations and
internal quotation marks omitted); see also, Sherman v. Town of Chester, 752 F.3d 554, 564
(2d Cir. 2014) (“Anything less than a complete elimination of value, or a total loss, is a
non-categorical [regulatory] taking, which is analyzed under the framework created in Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631
(1978).”).
In this case, Plaintiffs do not claim that Defendants have physically invaded the
property, or that they have deprived them of “all economically beneficial uses” of the
property. Instead, Plaintiffs, in their own words, contend that Defendants have “deprived
Plaintiffs of the most beneficial use of the property and [have] reduced the value of said
property for the purpose to which it is suited.” Pl. Memo of Law [#8-1] at p. 17. Accordingly,
the Court views this as an alleged non-per se regulatory taking that must be analyzed under
Penn Central. In that regard, the Second Circuit has indicated that
[t]he Penn Central analysis of a non-categorical taking requires an intensive
ad hoc inquiry into the circumstances of each particular case. We weigh three
factors to determine whether the interference with property rises to the level
of a taking: (1) the economic impact of the regulation on the claimant; (2) the
extent to which the regulation has interfered with distinct investment-backed
expectations; and (3) the character of the governmental action.
Sherman v. Town of Chester, 752 F.3d at 565 (Applying the Penn Central factors to a
12(b)(6) motion; citation and internal quotation marks omitted).
With regard to the first Penn Central factor, the Complaint does not indicate the
economic impact that the Defendants’ actions have had on the Plaintiff, except in vague and
conclusory terms. For example, the pleading indicates only that having “seasonal live
13

outdoor amplified music entertainment” had been “a fundamental part” of Nolas’ business
since 2005, and that since the City limited Nolas’ ability to have outdoor amplified music,
“Nolas has experienced reduced business and lost revenues.”15 The pleading also vaguely
states that “Nolas has suffered a substantial reduction in business and revenue as amplified
live music is a major drawing card that generates business,”16 though the Court observes
that Nolas is not prevented from having “amplified live music” generally, but rather, is
prohibited only from having outdoor live amplified music. Further, and as already noted, the
pleading indicates that Defendants have “deprived Plaintiffs of the most beneficial used of
the property and [have] reduced the value of said property.”17 However, it is well settled that
a “taking” does not occur merely because a property owner is prevented from making the
most financially beneficial use of a property. See, Tirolerland, Inc. v. Lake Placid 1980
Olympic Games, Inc., 592 F. Supp. 304, 313 (N.D.N.Y. 1984) (“It is clear, however, that
prohibition of the most profitable or beneficial use of a property will not necessitate a finding
that a taking has occurred.”) (citations and internal quotation marks omitted). Overall, the
pleading fails to plausibly allege an economic impact that rises to the level of a taking.
With regard to the second Penn Central factor, “the extent to which the regulation
has interfered with distinct investment-backed expectations,” the pleading fails to explain
how Defendants’ actions have interfered with Plaintiffs’ ”reasonable investment-backed
expectations.” In that regard, the pleading merely indicates that at the time Plaintiffs opened
Nolas in 2004, they “discuss[ed] with the City [their] plans for the operation of the restaurant
15

Complaint ¶ ¶ 23, 42.
Complaint at ¶ 83.

16

17

Complaint ¶ 177.

14

after the closure of the often troubled Harbor Beach Club at the same location,” which
discussions “included [Plaintiffs’] plans to present live outdoor amplified music entertainment
at Nolas.”18 The pleading does not allege that Plaintiffs had any reasonable expectation that
they would be able to have unrestricted live outdoor amplified music under the zoning code
as it existed at that time, nor does it claim that Defendants, or anyone from the City of
Rochester, gave Plaintiffs any assurances about their ability to have such entertainment.
Instead, the pleading suggests that when Plaintiffs began operating Nolas, they understood
that their ability to present outdoor amplified music would depend upon their ability to obtain
special use permits, which could be denied, or which could contain limitations and
restrictions.19 Furthermore, Plaintiffs obviously should have realized that Nolas was located
adjacent to a residential neighborhood, and that excessive noise from outdoor performances
would likely be restricted or prohibited altogether if neighbors complained, which is what
eventually happened. In short, the pleading fails to plausibly allege a taking under this
factor.
With regard to the third Penn Central factor, “the character of the governmental
action,” the Second Circuit has indicated that “[a] ‘taking’ may more readily be found when
the interference with property can be characterized as a physical invasion by government
than when interference arises from some public program adjusting the benefits and burdens
of economic life to promote the common good.” Sherman v. Town of Chester, 752 F.3d at
565 (citation omitted). In this case, the restriction on Plaintiffs’ use of their property clearly

18

Complaint ¶ ¶ 21-22.

19

See, e.g., Complaint ¶ ¶ 24-25.

15

falls into the latter category, since it involves no physical invasion, and since it is designed
to ensure that city residents living near Nolas can enjoy their property without being
disturbed by excessive noise from outdoor amplified concerts. Moreover, the restriction is
neither complete nor permanent, since the special use permit is limited in duration, allows
Plaintiffs to have five outdoor amplified concerts, and leaves the door open for further
concerts if Plaintiffs can demonstrate a plan to control noise.
Considering all of the foregoing factors, the Court finds that the Complaint fails to
state a takings clause claim.
First Amendment
Lastly, Plaintiffs maintain that Defendants violated their First Amendment rights by
limiting their ability to present live outdoor amplified music at Nolas, based on the City’s
Noise Ordinance (“Chapter 75 of the Municipal Code”), which they contend is
unconstitutionally vague and overbroad. (Count I). Plaintiffs do not claim that the portion of
the City Zoning Code dealing with special use permits, § 120-192(B), is unconstitutional.
Defendants respond that Plaintiffs lack standing to challenge the constitutionality of the City
of Rochester’s noise ordinance, since such ordinance was not the basis for the limitations
placed on their special use permit. Rather, Defendants point out that the subject special use
permits were issued pursuant to § 120-192(B), though one of the Commission’s decisions
referred to the noise ordinance.
It is evident from the record that Plaintiffs are incorrect in asserting that they were
denied the ability to present live outdoor amplified music based upon the City’s noise
ordinance. Rather, the subject decisions of the Planning Commission are replete with
references to the fact that they were based upon “Section 120-192 of the 2003 Zoning
16

Code.” In that regard, § 120-192(B), entitled “Special Permit,” lists five “approval standards,”
as follows:
[1] A special permit shall be approved only if evidence is presented which
establishes that:
[a] The proposed application will be in harmony with the general
purpose, goals, objectives, standards and implementation strategies of
the Comprehensive Plan, this chapter and, where applicable, the
Subdivision Code.
[b] The proposed application will not have a substantial or undue
adverse effect upon adjacent property, the character of the
neighborhood, traffic conditions, parking, utility facilities and other
matters affecting the public health, safety and general welfare.
[c] The proposed application will be constructed, arranged and
operated so as not to dominate the immediate vicinity or to interfere
with the development and use of neighboring properties in accordance
with the applicable district regulations.
[d] The proposed application will be served adequately by essential
public facilities and services, such as highways, streets, parking
spaces, police and fire protection, drainage structures, refuse disposal,
water and sewers, and schools, or that the persons or agencies
responsible for the establishment of the proposed use will provide
adequately for such services.
[e] The proposed application will not result in the destruction, loss or
damage of any natural, scenic, cultural or historic feature of significant
importance.
§ 120-192(B)(3)(a)[1][a]-[e]. These five factors are specifically referenced and discussed
in the decisions by the Planning Commission, and form the basis for the Commissions’
decisions. See, Def. Affirmation in Support of Motion, Exhibits C-E. For example, in the

17

Commission’s 2014 decision, when considering whether the requested permit would “have
a substantial or undue adverse effect upon adjacent property,” the Commission discussed
how it had received “numerous” complaints about outdoor amplified music at Nolas, and how
Plaintiffs’ purported attempts to reduce the noise had been ineffective.20 Notably, though,
the Commission’s decisions do not indicate that Plaintiffs violated the City’s noise ordinance.
And in fact, Plaintiffs acknowledge that they have never been found guilty of violating the
noise ordinance.21
It is true that the Commission’s 2014 decision indicated that if Plaintiffs wanted to
have more than five outdoor amplified performances, they would need to provide “a
mitigation plan that details all efforts to adhere to [the noise ordinance,] Chapter 75 of the
Municipal Code.” However, the Commission did not state that actual compliance with
Chapter 75 would be a condition. Rather, the aforementioned statement indicates that
Plaintiffs would need to make “efforts” to comply with the statute as part of an overall effort
to reduce noise, which is the common theme running through the Commission’s decisions
inasmuch as § 120-192(B) of the Zoning Code specifically requires the Commission to
consider any adverse effects that issuance of the special use permit would have on
neighboring properties.

20

Def. Affirmation in support of motion, Exhibit E at pp. 4-5.

See, Complaint ¶ 49 (“Nolas has never been adjudicated as having violated the City’s Noise
Ordinance.”); see also, id. at ¶ 56-57 (never been issued ticket for noise); id. at ¶ 72 (same); id. at ¶ 111
(same). Indeed, the Complaint does not even allege that Nolas was ever issued a ticket for violating the noise
ordinance. In opposition to Defendant’s motion, Plaintiffs’ counsel now indicates that “Plaintiffs have only been
issued two tickets for allegedly violating the Noise Ordinance since 2005. All tickets were based on neighbor
complaints and were dismissed as being unfounded. ( ¶ 61).” As support for this statement, Plaintiffs’ counsel
cites to ¶ 61 of the Complaint, but that paragraph does not mention the issuance of two tickets, therefore the
factual basis for such statement is unclear. In any event, there is no allegation in the pleading that Plaintiffs
were ever issued a ticket for violating the noise ordinance.
21

18

In considering whether Plaintiffs have standing to challenge the City’s noise
ordinance, the applicable law is well settled:
A plaintiff has Article III standing to bring suit if (1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
Int'l Action Ctr. v. City of New York, 587 F.3d 521, 529 (2d Cir. 2009) (citation omitted). “It
is the burden of the party invoking federal jurisdiction to establish standing,” but, “at the
pleading stage, standing allegations need not be crafted with precise detail.” Congregation
Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 589 (S.D.N.Y.
2013) (citations omitted).
Here, Defendants maintain that Plaintiffs lack standing to challenge the City’s noise
ordinance, Chapter 75. Plaintiffs’ response fails to even mention standing, and dismissal
of the First Amendment claim is warranted on that basis alone. See, Bond v. City of New
York, No. 14-CV-2431 RRM VVP, 2015 WL 5719706, at *8 (E.D.N.Y. Sept. 28, 2015)
(“[C]ourts in this circuit have held that a plaintiff's failure to respond to contentions raised in
a motion to dismiss constitutes an abandonment of the applicable claims.”) (citation
omitted); see also, Rubin v. Abbott Labs., 2015 WL 5679644 at *7 (“This 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.”) (citation omitted).
Even if the Court were to construe Plaintiffs’ response liberally, as it would do for a
pro se litigant, it appears that Plaintiffs’ strongest argument for standing is the following:
The City claims that its Noise Ordinance is not the reason for the
[Commission’s] adverse actions towards Plaintiffs but has not attempted to
19

explain why the Noise Ordinance is not relevant. Since the [Commission’s]
adverse actions against Plaintiffs were based on complaints that music was
too loud, the Noise Ordinance is involved since it is the local law that attempts
to regulate sound, defined as ‘excessive noise’ and defines what constitutes
a prima facie violation of the ordinance.
Pl. Memo of Law [#8-1] at pp. 7-8 (emphasis added). As an initial matter, Plaintiffs are
incorrect in stating that Defendants failed to explain why the noise ordinance is not relevant
here; in fact, Defendants explained exactly that in their moving papers. See, e.g., Def. Memo
of Law [#6-3] at p. 7, n.1; pp. 13-15. Beyond that though, Plaintiffs’ argument boils down
to this: The restrictions attached to the special use permits were related to excessive noise,
and therefore Plaintiff’s were injured by the noise ordinance.
The Court disagrees. On this point, the Court finds, first, that assuming that Plaintiffs
have suffered an injury, they have not shown that it is “fairly traceable” to the noise
ordinance. Instead, it appears clear that Plaintiffs’ alleged injury arises directly from the
independent application of a completely different statute, Zoning Code § 120-192(B). As
mentioned earlier, § 120-192(B)(4)(d)[5][m], indicates that the Planning Commission may
impose conditions on special use permits, including “noise limitations,” “as may be
necessary to prevent or minimize adverse effects upon other property in the neighborhood.”
Although one of the Commission’s decisions referred to the separate noise ordinance, it did
not deny Plaintiffs’ application based on the noise ordinance, and Plaintiffs therefore lack
standing to challenge the noise ordinance.22 See, Advantage Media, LLC v. City of Eden

22

The 2013 decisions do not mention the noise ordinance, and the 2014 decision does not explicitly
indicate that Nolas must comply with the noise ordinance in order to have outdoor amplified music. In that
regard, the 2014 decision states that Plaintiffs “shall be” allowed to have at least five amplified events on
Fridays and Saturdays without regard to the noise ordinance, and that if Plaintiffs wanted to apply to have
additional amplified events they would need only to demonstrate their “efforts to adhere” to the noise
ordinance, to the Commission’s satisfaction. Overall, the Commissions’ decisions clearly strike a conciliatory

20

Prairie, 405 F. Supp. 2d 1037, 1041 (D. Minn. 2005) (“In First Amendment cases, the fairly
traceable prong of standing requires a plaintiff to challenge the statutory provisions upon
which the restriction on speech was based.”) (citation omitted), aff'd sub nom. Advantage
Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006).
For that same reason, the Court further finds that Plaintiffs have not shown that their
alleged injury would likely be addressed by a ruling that the City’s noise ordinance is
unconstitutional. That is, even if the noise ordinance were struck down, the Planning
Commission could still limit Nolas’ ability to have amplified outdoor music, as it already has,
by finding that Nolas’ excessive noise would have an “undue adverse effect” on the
neighbors, pursuant to Zoning Code § 120-192(B)(3)(a)[1][b]. Plaintiffs’ First Amendment
challenge is directed only at the noise ordinance, not § 192(B) of the zoning code, and
therefore they cannot avoid § 120-192(B) even if they could show that the noise ordinance
was unconstitutional. See, Harp Advert. Illinois, Inc. v. Vill. of Chicago Ridge, Ill., 9 F.3d
1290, 1292 (7th Cir. 1993) (Plaintiff which brought First Amendment challenge to village’s
sign code and zoning code after it was denied permit to erect billboard lacked standing,
since “the village could block the sign simply by enforcing another, valid, ordinance already
on the books.”); see also, KH Outdoor, L.L.C. v. Fulton Cty., Ga., 587 Fed.Appx. 608, 611
(11th Cir. 2014) (Recognizing that a plaintiff lacks standing to challenge an aspect of a
zoning code if another, unchallenged portion of the same code would still deny plaintiff the
relief he is seeking) (collecting cases from other circuits); accord, Lamar Advert. of Penn,
LLC v. Pitman, 573 F. Supp. 2d 700, 710 (N.D.N.Y. 2008) (Plaintiff lacked standing to bring

tone of wanting to reach a reasonable compromise between Plaintiffs and their neighbors under Zoning Code
§ 120-192(B), rather than demanding strict compliance with the noise ordinance.

21

First Amendment challenge to section of village zoning ordinance prohibiting off-premises
billboards, since a different section of the code, which Plaintiff did not challenge, would have
independently prohibited the sign which Plaintiff sought to erect.).
For all of the foregoing reasons, Plaintiffs’ First Amendment challenge to the City’s
noise ordinance must be dismissed for lack of standing.
Amended Complaint
Plaintiffs’ response does not include an alternative request to file an amended
pleading. Instead, Plaintiffs’ counsel’s supporting affirmation [#8] merely posits the belief
that if the Court were to find that the Complaint is deficient, Plaintiffs’ would have the ability
to file an amended pleading “without leave of the court.”23 The Court does not agree. See,
Fed.R.Civ.P. 15(a)(1)&(2).24 Further, the Court finds that, for the reasons already discussed,
any attempt to amend would be futile. Accordingly, to the extent that Plaintiffs might want
the opportunity to amend, such application is denied.
CONCLUSION
Defendants’ motion [#6] is granted and this action is dismissed with prejudice.
SO ORDERED.
Dated:

December 3, 2015
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

23

Goewey Affirmation [#8] at ¶ ¶ 30-31.

24

Any request by Plaintiffs to amend would not be made within 21 days after their service of the
Complaint, or within 21 days after Defendants served their Rule 12(b) motion. Accordingly, in order to amend
Plaintiffs would need either Defendants’ consent or the Court’s permission.

22