Opinion
21-2822
05-27-2022
Congregation Rabbinical College of Tartikov, Inc., Rabbi Mordechai Babad, Rabbi Meilech Menczer, Rabbi Chaim Rosenberg, Rabbi Jacob Hershkowitz, Plaintiffs-Appellants, v. Village of Pomona, NY, Board of Trustees of the Village of Pomona, NY, Defendants-Appellees.
ROMAN P. STORZER, Storzer & Associates, P.C., Washington, DC (Joseph A. Churgin, Donna C. Sobel, Savad Churgin, LLP, Nanuet, NY; John G. Stepanovich, Stepanovich Law, PLC, Virginia Beach, VA, on the brief). BRIAN D. NUGENT (Donald J. Feerick, Jr., Matthew W. Lizotte, Patrick J. McGorman, Robert C. Zitt, on the brief), Feerick Nugent MacCartney PLLC, Nyack, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of May, two thousand twenty-two.
Appeal from an order and judgment of the United States District Court for the Southern District of New York (Karas, J.).
FOR APPELLANTS:
ROMAN P. STORZER, Storzer & Associates, P.C., Washington, DC (Joseph A. Churgin, Donna C. Sobel, Savad Churgin, LLP, Nanuet, NY; John G.
FOR APPELLEES:
Stepanovich, Stepanovich Law, PLC, Virginia Beach, VA, on the brief).
BRIAN D. NUGENT (Donald J. Feerick, Jr., Matthew W. Lizotte, Patrick J. McGorman, Robert C. Zitt, on the brief), Feerick Nugent MacCartney PLLC, Nyack, NY.
PRESENT: Amalya L. Kearse, Susan L. Carney, Eunice C. Lee, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order entered on September 24, 2021, and judgment entered on October 27, 2021, are AFFIRMED.
Plaintiff-Appellant Congregation Rabbinical College of Tartikov, Inc. ("Tartikov") is the owner of a 100-acre property in the Village of Pomona, New York. Tartikov wishes to build a rabbinical college on its property, planning to train rabbinical judges. In this long-pending litigation against the Village and its Board of Trustees, Tartikov challenges two Village zoning laws-Local Law No. 1 of 2001 and Local Law No. 5 of 2004-which, it contends, prevent it from building the rabbinical college. It asserts free exercise and free association claims under the U.S. Constitution and New York Constitution; a substantial burden claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq.; a discrimination claim under the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 et seq.; and a New York common law claim, see Cornell University v. Bagnardi, 68 N.Y.2d 583 (1986). The district court denied Tartikov's request for a preliminary injunction and dismissed its claims for lack of subject-matter jurisdiction. We assume the parties' familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to affirm.
The remaining plaintiffs-appellants are the academic head of the proposed rabbinical college and individuals who plan to matriculate at the college. For convenience, we here refer to all plaintiffs-appellants as "Tartikov."
This is the second time that Tartikov has challenged the 2001 and 2004 laws in federal court, and all of the claims now before us were also raised in its first suit against the Village. When Tartikov's previous suit reached this Court on appeal, we found that the federal courts lacked jurisdiction over all the claims Tartikov raises again here. In relevant part, we stated:
The complaint in the 2007 action asserted a common law claim relying on Berenson v . Town of New Castle, 38 N.Y.2d 102 (1975), which held that zoning authorities must balance local and regional needs when adopting restrictions on multifamily housing. The present complaint instead relies on Bagnardi, which held that zoning restrictions on educational uses must be reasonably related to the morals, health, safety, and welfare of the community. See 68 N.Y.2d at 589. The difference is immaterial for purposes of our analysis of federal subject-matter jurisdiction.
Tartikov . . . never submitted a formal proposal for the building project, applied for a permit, or engaged in any other conduct that would implicate or invoke the operation of the challenged zoning laws. Whatever harm may arise from the application of the zoning laws to [Tartikov's] property is merely conjectural at this time. "Conjectural" injuries do not suffice under Article III. We therefore lack jurisdiction over Tartikov's free exercise, free speech, and free association claims under the federal and New York constitutions, RLUIPA substantial burden and exclusion and limits claims, FHA claims, and common law claims related to the Berenson doctrine.Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 945 F.3d 83, 110 (2d Cir. 2019) ("Tartikov IV"). In other words, Tartikov's claims were not ripe because it had not yet suffered an injury in fact. See generally Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) ("Often, the best way to think of constitutional ripeness is as a specific application of the actual injury aspect of Article III standing.").
In quotations from caselaw and the parties' briefing, this order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.
The district court dismissed Tartikov's complaint in this second suit on the ground that Tartikov has still failed to take any action that would ripen its claims and comply with that "clear edict" of this Court. Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 20-cv-6158, 2021 WL 4392489, at *7 (S.D.N.Y. Sept. 24, 2021) ("Tartikov V"). On de novo review, we identify no error. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).
In contending that its claims are now ripe, Tartikov urges us to consider two developments that have occurred since its last appeal. First, it points to a February 2020 petition that it filed with the Village Board of Trustees, seeking a text amendment to the Village Code. Rather than seek particular changes to the language of the 2001 and 2004 laws that would allow its building project to proceed, its petition sought their wholesale repeal. The petition said nothing at all about Tartikov's desired land use. For this reason, the Board's decision not to consider the petition cannot be considered its final decision on Tartikov's particular development plans. See Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 194 (1985) (holding that, for a court to exercise jurisdiction, "the government entity charged with implementing the [challenged] regulations" must have "reached a final decision regarding the application of the regulations to the property at issue"), overruled in other part by Knick v. Twp. of Scott, 139 S.Ct. 2162 (2019). In no way did the petition "invoke the operation of the challenged zoning laws" as to Tartikov's plan for a college. Tartikov IV, 945 F.3d at 110.
Indeed, if the Board of Trustees had decided to grant Tartikov's petition, Tartikov still would not be permitted to build a rabbinical college, because the repeal of the 2001 and 2004 laws would effectively prohibit the development of any educational institutions on property in the Village.
The second development that Tartikov raises is not factual but legal: the issuance of the Supreme Court's decision in Pakdel v. City and County of San Francisco, 141 S.Ct. 2226 (2021). Tartikov contends that Pakdel changed the law regarding ripeness in the context of challenges to land-use regulations. Pakdel, it argues, eliminated the requirement that plaintiffs file at least one "meaningful application" and receive a final decision on that application from the zoning authority before bringing suit. In its view, Pakdel thus relieved Tartikov of the obligation to submit a formal proposal or other application to the Village of the kind that this Court determined in Tartikov IV was necessary to create an injury-in-fact.
We are not persuaded. Pakdel reiterated, rather, that the zoning authority must have reached a final decision on a plaintiff's land-use application for the claims to be sufficiently ripe to support a court's exercise of jurisdiction. See 141 S.Ct. at 2228. There, the city had "refused" specific requests by the plaintiffs to excuse them from (or compensate them for) compliance with a certain land-use regulatory provision. Id. The city had thus "committed to a position" on the plaintiffs' desired land use, and the plaintiffs were "injured by the [city's] action" when the city rejected their requests. Id. at 2230. Here, by contrast, the Village has not committed to any position regarding Tartikov's desired land use, because Tartikov has not given the Village the opportunity to consider any request relating to the planned rabbinical college. Pakdel thus says nothing to undermine this Court's previous determination that it lacks jurisdiction over Tartikov's claims absent a final decision by the Village Board on some kind of meaningful application.
Separately, Pakdel reaffirmed the "settled rule"-not at issue in this case-that exhaustion of state remedies is not a prerequisite to such land-use suits. 141 S.Ct. at 2228 (quoting Knick, 139 S.Ct. at 2167).
Tartikov has still failed to engage in any "conduct that would implicate or invoke the operation of the challenged zoning laws." Tartikov IV, 945 F.3d at 110. The Board of Trustees has had no opportunity to consider and rule on any concrete proposal. Tartikov's alleged harm thus remains conjectural and its claims remain unripe.
We have considered Tartikov's remaining arguments and find in them no basis for reversal. The order and judgment of the district court dismissing the suit are AFFIRMED.