Posted by: Patricia Salkin | November 10, 2015

Second Circuit Court of Appeals Affirms Holding that Court Lacked Subject Matter Jurisdiction over ADA and FHA Claims

This appeal arose out of a land-use dispute between Safe Harbor, the owner and operator of an “executive retreat for individuals recovering from alcohol and drug addiction,” and the town and its zoning authority. Before Safe Harbor opened, East Hampton’s building inspector granted it a reasonable accommodation to operate in a residential area, as the functional equivalent of a family. However, the building inspector later determined that Safe Harbor needed to apply for a special permit because it was a semi-public facility, and not the functional equivalent of a family entitled to a reasonable accommodation. Safe Harbor appealed this decision to the Zoning Board, which affirmed. The Zoning Board concluded that Safe Harbor was not entitled to a reasonable accommodation and that it needed to apply for a special permit to operate its facility on its property. Safe Harbor then brought claims against East Hampton and the Zoning Board for violations of the Americans with Disabilities Act (“ADA”) and Fair Housing Act (“FHA”), but the district court concluded that it lacked subject matter jurisdiction over Safe Harbor’s claims because the claims were unripe.

On appeal, the court found that Safe Harbor’s claims were not ripe because it failed to apply for the special permit that both the building inspector and Zoning Board identified as the appropriate avenue for obtaining the town’s permission to operate its facility on its property. Even though the Zoning Board’s decision was final as to whether Safe Harbor is the functional equivalent of a family or a semi-public facility, it was not final as to whether it could operate at all at its chosen location. Safe Harbor failed to apply for the special permit as a semi-public facility, notwithstanding the building inspector’s and Zoning Board’s invitations that it do so.

The court next concluded that Safe Harbor’s intentional discrimination and retaliation claims were also unripe because it failed to plausibly allege that East Hampton’s zoning policies were discriminatory on their face or that East Hampton was manipulating its zoning process with a discriminatory animus to avoid rendering a final decision. Lastly, because both the building inspector and Zoning Board informed Safe Harbor of the alternative avenue of applying for a special permit as a semi-public facility to continue operating the facility on the current property, Safe Harbor’s futility argument also failed. The district court’s holding was therefore affirmed.

Safe Harbor Retreat, LLC v Town of East Hampton, 2015 WL 6405378 (2d Cir. CA 10/23/2015)


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