19-3353-cv

Village Green at Sayville, LLC v. Town of Islip et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

____________________

August Term, 2021

(Argued: January 14, 2022 Decided: August 5, 2022)

Docket No. 19-3353-cv

____________________

VILLAGE GREEN AT SAYVILLE, LLC,

Plaintiff-Appellant,

v.

TOWN OF ISLIP, THE TOWN BOARD OF THE TOWN OF ISLIP, THE 

PLANNING BOARD OF THE TOWN OF ISLIP, ANGIE M. CARPENTER, 

STEVEN J. FLOTTERON, TRISH BERGIN WEICHBRODT, JOHN C. 

COCHRANE, JR., MARY KATE MULLEN, INDIVIDUALLY AND IN THEIR 

OFFICIAL CAPACITY AS MEMBERS OF THE TOWN BOARD OF THE TOWN 

OF ISLIP, EDWARD FRIEDLAND, KEVIN BROWN, ANTHONY MUSUMECI, 

JOSEPH DEVINCENT, DONALD FIORE, DANIEL DELUCA, MICHAEL 

KENNEDY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS 

MEMBERS OF THE PLANNING BOARD OF THE TOWN OF ISLIP,

Defendants-Appellees.

____________________

Before: POOLER, CHIN, and CARNEY, Circuit Judges.
2

Village Green at Sayville, LLC sued the Town of Islip, its Town Board, its

Planning Board, and the members of the Town and Planning Boards, alleging 

that a pattern of racial, ethnic, and national origin discrimination by the 

defendants stifled Village Green’s effort to build an affordable apartment 

complex in Sayville, a hamlet in Islip. The United States District Court for the 

Eastern District of New York (Hurley, J.), dismissed the case for lack of subject 

matter jurisdiction, concluding that Village Green’s land-use claims were not ripe 

under the framework established by Williamson County Regional Planning 

Commission v. Hamilton Bank, 473 U.S. 172 (1985), overruled in part on other grounds 

by Knick v. Township of Scott, 139 S. Ct. 2162 (2019). We disagree.

Vacated and remanded.

____________________

MARK A. CUTHBERTSON, Huntington, N.Y., for 

Plaintiff-Appellant.

TIMOTHY F. HILL (Lisa A. Perillo, on the brief), Messina 

Perillo Hill, LLP, Sayville, N.Y., for Defendants-Appellees.

John R. DiCioccio, Islip Town Attorney’s Office (on the 

brief), Islip, N.Y., for Defendants-Appellees.

POOLER, Circuit Judge:

In 2006, the Town of Islip, New York rezoned a vacant plot of land to 

allow Village Green at Sayville, LLC, a real estate developer, to build a housing 

complex Village Green hoped would be accessible to low-income and minority 

populations. The project languished for the next eight years, however, as the 

developer struggled to comply with a pair of covenants and restrictions 

(“C&Rs”) that accompanied the rezoning. In 2014, Village Green petitioned the
3

Town Board to remove the C&Rs. In November 2016, after several contentious

public hearings and the completion of a number of planning studies, the town 

supervisor moved for the Town Board to approve the application. But the motion 

was not seconded, and no vote was held. A month later, a resolution filed with 

the town clerk deemed the motion to have “fail[ed] for lack of second,” App’x at 

317, and Islip’s town attorney told Village Green that “the Town is treating the 

failed motion to approve as a denial” of the application, such that “no further 

proceedings before the Town Board, Planning Board, or any other Town Agency 

would be held,” App’x at 32-33 ¶ 67. Village Green then brought this suit, 

alleging that the town stifled the project in an unlawful effort to exclude 

minorities from living in Sayville, the hamlet in Islip where the property is 

located.

We address today only the narrow issue of ripeness. Federal suits in the 

land-use context, like this one, are generally not ripe for adjudication until a 

landowner receives a final, definitive decision on a land-use application.

Williamson Cnty. Reg. Planning Bd. Comm’n v. Hamilton Bank of Johnson City, 473 

U.S. 172, 186 (1985), overruled in part on other grounds by Knick v. Township of Scott, 

139 S. Ct. 2162 (2019). The United States District Court for the Eastern District of 
4

New York (Hurley, J.) concluded that the Town Board had not yet reached a final 

decision on Village Green’s application to remove the C&Rs. We disagree.

Without taking a position on the merits of Village Green’s racial, ethnic, and 

national origin discrimination claims, we conclude that the dispute is ripe. We 

therefore vacate the dismissal of this action and remand to the district court for 

further proceedings consistent with this opinion.

BACKGROUND

I. Factual Background1

The property at issue is 7.29 acres. Around a thousand feet wide and 

generally level in grade, it has 590 feet of frontage on the south side of Long 

Island’s Sunrise Highway, a major east-west artery ten lanes wide where it abuts 

1 Although the town submitted evidence beyond the pleadings in support of its

motion to dismiss, the district court did not make findings of fact and looked

solely to the allegations in Village Green’s complaint in ruling on the motion.

This was appropriate because the evidence proffered by the town does not 

contradict the relevant allegations in the pleadings. See Carter v. HealthPort Techs., 

LLC, 822 F.3d 47, 57 (2d Cir. 2016). In reviewing this grant of a motion to dismiss 

for lack of subject matter jurisdiction, we therefore “accept as true all material 

facts alleged in the complaint and draw all reasonable inferences in the plaintiff’s 

favor.” Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (internal quotation 

marks omitted).
5

the property. Just north of the property sits the Sayville Motor Inn. To the 

southeast is a neighborhood of mainly single-family houses.

In February 2006, Islip’s Town Board granted Village Green’s application

to rezone the property from Business One to Residence CA, conditioned on a 

number of C&Rs, including two that proved controversial: first, that the 

development could consist only of condominiums owned by dwelling unit 

owners, not renters—even though a Residence CA zoning designation generally 

allows rental properties as a matter of right; and second, that the development 

must be connected to an off-site sanitary treatment plant (“STP”). In December 

2006, the town engineer authorized construction of 38 single-family attached

condominiums on the property.

For much of the next decade, Village Green struggled to obtain funding 

and comply with the C&Rs. Connection to an off-site STP proved especially 

onerous. Reaching the Sayville Commons STP, the only feasible option, would 

require Village Green to lay approximately 1.3 miles of sewer pipe, and several 

nearby landowners—including the Sayville Union Free School District and the 

Town of Islip itself—refused to grant the necessary easements. In the meantime, 

the town also allocated the Sayville Commons STP’s remaining capacity to 
6

another development, foreclosing, in Village Green’s view, its ability to comply

with the off-site STP requirement.

So Village Green began the process of removing the two C&Rs and 

clearing a path to development. In May 2014, following pre-submission meetings 

with the planning department, Village Green petitioned the Town Board to allow 

it to construct an apartment complex of 64 rental units, with twenty percent set 

aside as affordable units, with an on-site STP. The Town Board referred the 

application to the Planning Board, which held a public hearing on November 13, 

2014. Local opposition was strong. In addition to expressing concerns that 

apartments might increase traffic, harm the environment, and diminish property 

values, several residents questioned whether the development would come to 

resemble the Sayville Motor Inn, the nearby property—not owned or operated by 

Village Green—perceived by some as a hotbed of crime, drugs, and prostitution.

One resident told the Planning Board that “[w]hen you change the actual 

demographics of the area, you [degrade] everything that happens in an area with 

apartments as opposed to single family homes.” App’x at 27. Added another: 

“There are lots of apartments available that are affordable in Sayville. I really 

don’t know why we need any more.” App’x at 27. One resident asked, “[i]f they 
7

can’t rent out the apartments, what do you think is going to happen? They’ll go 

to Section 8.” App’x at 28.2 And another objected that Village Green “keep[s]

stressing how lovely the buildings are. . . . But we are not talking about what’s on 

the outside. We’re talking about what might be on the inside.” App’x at 27.

Eighteen months passed after this hearing before the Planning Board 

considered a motion to recommend that the Town Board approve Village 

Green’s application. In May 2016, the planning department reported that Village 

Green had undertaken studies satisfactorily addressing concerns about traffic 

impacts, wetlands, and property value diminution. Put to a vote, though, the 

seven-member Planning Board failed to pass the motion: After the vice chairman 

recused himself, the vote was 3-3 and deemed a “non-action.” App’x at 29 ¶ 53.

Village Green again modified its application, now seeking to build only 59

rental units, with half of those set aside for senior citizens. On June 30, 2016, the 

Town Board held a public hearing. Members of the public again made hostile 

comments, discussing “Section 8” and “transients,” and pledging that 

2 The Section 8 program provides federal housing assistance to low-income 

individuals. See Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 296 (2d 

Cir. 1998).
8

townspeople “will not forget if this project is approved.” App’x at 30-31. As one 

resident recounted:

As a child, I was born in Brooklyn. I lived in the projects. It was 

beautiful when we started living there. Gorgeous. But then Section 8 

came in. It went from a beautiful area to a war zone. It looked like 

Iraq. . . . We don’t know what type of element is going to be moving 

into these apartments and what they’re going to leave 

behind . . . [whether there is] going to be any drug activity, crime, 

prostitution, murder. . . . It’s going to be the murder capital of 

Suffolk [County].

App’x at 16 ¶ 7. The crowd was so vocal that the town supervisor several times 

admonished people for shouting and at one point threatened to suspend the 

meeting.

Four months later, on November 3, 2016, the renewed application was on 

the Planning Board’s agenda as a recommendation item; but the Planning Board

did not act that day, because, according to Village Green, one of the development 

project’s most outspoken opponents was out of town. Two weeks later—on 

November 17, 2016—the Town Board placed Village Green’s application on its

agenda for a vote. A large group of residents opposed to the development

attended, although they were not permitted to speak. After presentations by the

planning department and Village Green, the town supervisor moved for the 

Town Board to approve the application. No other Town Board member seconded 
9

the motion, however, and no vote was held. The same night, the Town Board 

unanimously approved an application by Renzon Concepcion, another 

developer, to modify a similar C&R that had required 30 condominium units to 

instead allow 44 rental apartments. Renzon’s development was located in the 

majority-minority hamlet of Brentwood.3

A resolution filed with the town clerk on December 8, 2016 deemed the 

motion to approve to have “fail[ed] for lack of second.” App’x at 317. A week 

later, Islip’s town attorney informed Village Green’s attorney that “the Town is 

treating the failed motion to approve as a denial of the Village Green 

Application, and that no further proceedings before the Town Board, Planning 

Board, or any other Town Agency would be held.” App’x at 32-33 ¶ 67. Village 

Green’s attorney sent the town attorney a letter the same day summarizing their 

conversation and asking for a written response if the town attorney disputed 

making those statements. No response came.

Neither the Town Board nor any other town agency has acted on Village 

Green’s application since 2016.

3 A “majority-minority” community is one “in which minorities make up a 

majority of the population.” Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 

588 (2d Cir. 2016).
10

II. Procedural Background

After receiving no response to its letter, Village Green filed two suits. First,

in December 2016, it filed an Article 78 action in New York Supreme Court, 

seeking a declaration that the contested C&Rs were illegal and unenforceable

and an order for the town to approve the application and issue the necessary 

building permits. See Village Green at Sayville v. Town of Islip, No. 011060/2016 

(N.Y. Sup. Ct.). That action is ongoing.

Village Green’s second case is the one before us. In December 2017 the 

developer filed, and in August 2018 it amended, a federal complaint alleging that 

the town blocked its housing project to exclude minorities from Sayville. Village 

Green contends that Islip is highly segregated by race and national origin, with 

its African-American and Hispanic populations overwhelmingly concentrated in 

the hamlets of Brentwood, Bay Shore, and Central Islip, while Sayville is over 

90% non-Hispanic white and has a much lower foreign-born population than 

Islip overall; that by requiring C&Rs that allow only owner-occupied 

condominiums in places like Sayville, the town has prevented construction of the 

type of affordable and market-rate rental apartments that minorities are 

disproportionately likely to occupy; that the Town Board frequently grants 
11

applications to modify C&Rs to permit rental apartments in majority-minority 

areas of town like Brentwood, while refusing to do so in predominantly white 

areas like Sayville; and that, in refusing to modify Village Green’s C&Rs, the 

town unlawfully limited housing opportunities for minorities and families with 

children, perpetuating ethnic and racial segregation.

Village Green’s complaint set forth causes of action under the Fair Housing 

Act (“FHA”), 42 U.S.C. § 3604(a) (Count One); 42 U.S.C. § 1981 (Count Two); 42 

U.S.C. § 1982 (Count Three); the equal protection clause of the Fourteenth 

Amendment and 42 U.S.C. § 1983 (Count Four); New York Executive 

Law § 296(5)—New York’s FHA equivalent—and § 296(6) (Count Five);

substantive due process under the Fourteenth Amendment (Count Six); and the 

takings clauses of the Fifth and Fourteenth Amendments (Count Seven). The 

complaint sought a declaratory judgment deeming the defendants’ acts 

unlawful, an injunction directing them to remedy the effects of their

discriminatory conduct, compensatory and punitive damages, and attorneys’ 

fees.

In two orders, the district court dismissed each claim for lack of subject 

matter jurisdiction. The district court principally concluded that Village Green’s 
12

claims were not yet ripe because it had not received a final decision on the

application to remove the C&Rs, as “the Town Board never voted . . . at the 

November 2016 meeting,” and “neither the Town Board, the Planning Board, nor 

any other Town agency has taken any action” since then. Village Green at Sayville, 

LLC v. Town of Islip, No. 2:17-cv-7391, 2019 WL 4737054, at *5 (E.D.N.Y. Sept. 27, 

2019) (“Village Green I”); id. at *11 (dismissing the first, fourth, sixth, and seventh 

causes of action); see also Village Green at Sayville, LLC v. Town of Islip, No. 2:17-cv7391, 2021 WL 230298, at *2, *10 (E.D.N.Y. Jan. 22, 2021) (“Village Green II”) 

(dismissing the second, third, and fifth causes of action). The district court also 

concluded that Village Green failed to satisfy the limited futility exception to the 

final-decision requirement, which applies if seeking a final decision on a land-use 

application would be futile. Id. at *9; see also Sherman v. Town of Chester, 752 F.3d 

554, 561-62 (2d Cir. 2014).

This appeal followed.

DISCUSSION

We are not asked at this stage to assess the merits of Village Green’s

discrimination claims. The only issue is whether they are ripe for adjudication.

“We review de novo a district court’s determination that it lacks subject-matter 
13

jurisdiction on ripeness grounds.” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 

682, 687 (2d Cir. 2013).

I. Ripeness in the Land-Use Context

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

substantial controversy, not a mere hypothetical question.” Kurtz v. Verizon New 

York, Inc., 758 F.3d 506, 511 (2d Cir. 2014) (quoting Walsh, 714 F.3d at 687). 

“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). “At its 

heart is whether we would benefit from deferring initial review until the claims 

we are called on to consider have arisen in a more concrete and final form.” Id.

That is, ripeness “is ‘peculiarly a question of timing’ as cases may later become 

ready for adjudication . . . .” Id. (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 

140 (1974)). Our goal is to avoid “entangling [ourselves] in abstract 

disagreements over matters that are premature for review because the injury is 

merely speculative and may never occur.” Dougherty v. Town of N. Hempstead Bd. 

of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002), abrogated on other grounds by

Knick, 139 S. Ct. 2162.
14

This concern about untimely adjudication is especially pronounced in the 

land-use context. Land-use controversies, despite their ability to generate federal 

suits like this one, are “matters of local concern more aptly suited for local 

resolution,” Murphy, 402 F.3d at 348, and “federal courts should not become 

zoning boards of appeal,” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 

(2d Cir. 2011). Accordingly, federal courts adhere to “specific ripeness 

requirements applicable to land use disputes.” Murphy, 402 F.3d at 347.

Williamson County is the foundational case. 473 U.S. 172. There, the Supreme 

Court held that a claim alleging a Fifth Amendment taking is not ripe until two 

prerequisites are met: first, that the “government entity charged with 

implementing the regulations has reached a final decision regarding the 

application of the regulations to the property at issue” (the final-decision 

requirement); and second, that the plaintiff has sought just compensation 

through an available state procedure (the exhaustion requirement). Id. at 186, 

194.

The Supreme Court has since overruled the exhaustion requirement on the 

ground that it “impose[d] an unjustifiable burden on takings plaintiffs [and] 

conflict[ed] with the rest of our takings jurisprudence.” Knick, 139 S. Ct. at 2167.
15

In contrast, the final-decision requirement not only remains good law but has 

been expanded, in this Circuit at least, to “zoning challenges based on 

substantive due process; First Amendment rights of assembly and free exercise; 

the Religious Land Use Institutionalized Persons Act of 2000; [] a state analogue 

to RLUIPA,” as well as to “zoning challenges under the [Americans with 

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.] based on allegations of 

intentional discrimination.” Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 

118, 122 (2d Cir. 2014) (citations omitted); see also Pakdel v. City & Cnty. of San 

Francisco, 141 S. Ct. 2226 (2021) (per curiam) (applying Williamson County’s finaldecision requirement after Knick).

Still, the final-decision requirement “is not mechanically applied.” Murphy, 

402 F.3d at 349. “A property owner, for example, will be excused from obtaining 

a final decision if pursuing an appeal to a zoning board of appeals or seeking a 

variance would be futile” or “when a zoning agency lacks discretion to grant 

variances or has dug in its heels and made clear that all such applications will be 

denied.” Id. Similarly, “a plaintiff need not await a final decision to challenge a 

zoning policy that is discriminatory on its face, or the manipulation of a zoning 
16

process out of discriminatory animus to avoid a final decision.” Sunrise Detox, 

769 F.3d at 123 (citations omitted).

II. All of Village Green’s Claims Require a Final Decision

Before assessing whether Village Green received a final decision on its 

application to remove the C&Rs, we must address which of its claims are in fact 

subject to the final-decision requirement. Cognizant that “[t]he Williamson County 

ripeness test is a fact-sensitive inquiry . . . applicable to various types of land use 

challenges,” Murphy, 402 F.3d at 350, we agree with the district court that the 

requirement applies to each claim.

Village Green’s takings, due process, and equal protection claims plainly 

must satisfy finality. See Williamson Cnty., 473 U.S. at 186 (takings); Southview 

Assocs. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir. 1992) (substantive due process); 

Dougherty, 282 F.3d at 88-89 (equal protection). We further conclude that a final 

decision is required for Village Green’s land-use claims under the FHA, 42 

U.S.C. §§ 1981 and 1982, and New York Executive Law § 296.4

4 The consensus among lower courts is that, at least for as-applied FHA claims in 

the land-use context, a final decision is required. See, e.g., Congregational 

Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 607 

(S.D.N.Y. 2013); Jenkins v. Eaton, No. 08-cv-0713, 2009 WL 811592, at *3 (E.D.N.Y. 
17

Sunrise Detox, our most recent case to address an extension of the finaldecision requirement, shows why this is so. Sunrise Detox—like Village Green, a 

developer—had sought a special permit to establish a drug and alcohol 

rehabilitation facility as a “community residence” in White Plains. 769 F.3d at 

119. After White Plains’ Department of Building advised that the proposed 

facility did not qualify as a community residence under the applicable 

regulations, meaning that Sunrise would have to “either appl[y] for a variance or 

appeal[] the determination,” Sunrise instead sued the city, alleging 

discrimination in violation of the ADA. Id. Sunrise argued that the final-decision 

requirement did not apply to “zoning challenges under the ADA based on 

allegations of intentional discrimination,” because intentional discrimination

“cause[s] a uniquely immediate injury rendering such claims ripe from the act of 

discrimination.” Id. at 121-22 (alterations and internal quotation marks omitted).

We disagreed. Because Sunrise principally sought “an injunction blocking the 

Mar. 27, 2009); S&R Dev. Estates, LLC v. Bass, 588 F. Supp. 2d 452, 460-61 

(S.D.N.Y. 2008). Other circuits have held the same. Lapid-Laurel, L.L.C. v. Zoning 

Bd. of Adjustment of Scotch Plains, 284 F.3d 442, 451 n.5 (3d Cir. 2002); Bryant 

Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997); Oxford 

House-A v. City of Univ. City, 87 F.3d 1022, 1024-25 (8th Cir. 1996); United States v. 

Vill. of Palatine, 37 F.3d 1230, 1233 (7th Cir. 1994).
18

disapproval and authorizing construction of its project,” we explained that 

“[r]egardless of the basis of the claim . . . the relief sought brings the case 

squarely within the compass of Williamson County and its progeny.” Id. at 123. As 

in those cases, the zoning review process had to play out before it could “be 

known whether the allegedly discriminatory [conduct] . . . had any effect at all on 

Sunrise’s application.” Id. Thus, we held, “a plaintiff alleging discrimination in 

the context of a land-use dispute is subject to the final-decision requirement 

unless he can show that he suffered some injury independent of the challenged 

land-use decision.” Id.

What we said of Sunrise’s ADA claim applies equally to each of Village 

Green’s claims. Village Green is, like Sunrise, “a plaintiff alleging discrimination 

in the context of a land-use dispute.” Id. And like Sunrise, Village Green 

principally seeks an injunction “directing Defendants to take all affirmative steps 

necessary to remedy the effects of the[ir] illegal, discriminatory conduct.” App’x 

at 44.5 Finally, once again like Sunrise, Village Green does not allege that it 

5 In Sunrise Detox, the plaintiff did not seek “compensatory damages from the 

official who it claims acted out of discriminatory motivation,” so we saw no need 

to address “whether a property owner who claimed that a local official vetoed 

his or her development project out of hostility based on the owner’s race, gender, 

disability, or the like, in violation of federal statutory or constitutional law, could 
19

suffered an injury independent of the land-use decision—for instance, that the 

town has any facially discriminatory policies.6 For each cause of action, Village 

Green alleges that its rights were violated when the town’s “denial of [its] 

application . . . resulted in dwellings in Sayville being made unavailable to 

Minorities in the Town.” App’x at 38 ¶ 98. It stands to reason that the developer 

must first prove that we can look to a “final, definitive position” from the town 

on that application. See Sunrise Detox, 769 F.3d at 124. Absent that showing, 

Village Green’s claims cannot be said to have “yet matured to a point that 

warrants decision.” 13B Charles A. Wright, Arthur R. Miller & Edward H. 

Cooper, Federal Practice & Procedure § 3532 (3d ed. 2022).

Village Green argues that this Court’s ruling in Mhany Management, Inc. v. 

County of Nassau demonstrates that a final decision is not required for its FHA 

seek immediate recompense in federal court from that official for . . . dignitary or 

emotional harm . . . even in the absence of a final decision on the development 

proposal.” 769 F.3d at 123. Here, unlike in Sunrise Detox, Village Green does seek 

damages in addition to an injunction. But we need not address the question left 

open in Sunrise Detox, because Village Green’s claim for monetary damages does 

not sound in dignitary or emotional harm and because, in any event, we 

conclude that Village Green has received a final decision.

6 See App’x at 37 ¶¶ 89-90 (acknowledging the town’s “facially-neutral custom, 

policy, or practice” of “refusing to modify C&Rs that limit development to 

owner-occupied condominiums or age-restricted rental apartments”).
20

claim. See 819 F.3d 581. We disagree. In Mhany, we held that developers had 

standing to pursue claims that Nassau County and the Incorporated Village of 

Garden City had discriminatorily rezoned parcels of county-owned land to 

prevent low- and middle-income housing from being built on those sites, in 

violation of the FHA. Id. at 598, 623. We focused on the second and third prongs 

of the three-part Lujan test for Article III standing: whether the injury is “fairly 

traceable to the challenged action of the defendant,” and whether it is “likely, as 

opposed to merely speculative, that the injury will be redressed by a favorable 

decision.” Id. at 600 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 

U.S. 167, 180-81 (2000)). We concluded that these requirements had been satisfied 

because the developers had shown that, absent the defendants’ challenged 

conduct, there was a “‘substantial probability’ that housing with greater minority 

occupancy would have been built.” Id. at 600-601 (quoting Fair Hous. in 

Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 363 (2d Cir. 2003)).

Our conclusion today is consistent with Mhany. The final-decision requirement, 

and constitutional ripeness generally, are “really just about the first Lujan

factor”—whether a plaintiff’s injury is concrete, particularized, and actual or 

imminent. Walsh, 714 F.3d at 688. Because there was no dispute in Mhany that the 
21

defendants had made the final decision to rezone the challenged parcels of land, 

see 819 F.3d at 606, that case simply did not address the contours of the finaldecision requirement.

III. This Dispute Is Ripe

Having concluded that Village Green’s claims are all subject to the finaldecision requirement, we turn to the central issue: Has Village Green received a 

“final, definitive decision” on its application to remove the C&Rs, or are further 

proceedings before town agencies necessary for the claims to “arise[] in a more 

concrete and final form?” Murphy, 402 F.3d at 347, 353. Here we part ways with 

the district court and conclude that this dispute is ripe.

We have characterized Williamson County’s “jurisdictional prerequisite” as 

“condition[ing] federal review on a property owner submitting at least one 

meaningful application” to the relevant municipal entity. Id. at 348. This is 

principally because it is “virtual[ly] impossib[le]” for us to determine “what 

development will be permitted on a particular lot of land when its use is subject 

to the decision of a regulatory body invested with great discretion, which it has 

not yet even been asked to exercise.” Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 

725, 739 (1997). Two of our cases make the point clearly. In Sunrise Detox, the 
22

decision not to pursue the “administrative avenues for relief outlined in the 

zoning ordinance”—and the fact that Sunrise was advised, in a letter from the 

Department of Building commissioner, to “either seek a variance or appeal the 

department’s determination to the Zoning Board of Appeals”—prevented us 

from being able to “‘look to a final, definitive position’ from the city regarding 

[Sunrise’s] application.” 769 F.3d at 121, 124 (quoting Murphy, 402 F.3d at 347). 

“A federal lawsuit at this stage,” we explained, “would inhibit the kind of giveand-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.” Id. “In 

light of Sunrise’s midstream abandonment of the zoning process . . . its claim 

[wa]s not yet ripe.” Id.

Landowner abandonment of the zoning process was even more 

pronounced in Murphy v. New Milford Zoning Commission. The dispute there 

stemmed from the Sunday afternoon prayer group meetings, often attended by 

between ten and sixty people, that Robert and Mary Murphy held weekly in 

their home on a seven-residence cul-de-sac in New Milford, Connecticut. 

Murphy, 402 F.3d at 344-45. After the neighbors complained of congestion and 

excessive noise, New Milford’s zoning commission directed its zoning 
23

enforcement officer (“ZEO”) to investigate. Id. at 345. The ZEO “visited the 

Murphys’ property on three Sundays and found that from thirteen to twenty cars 

lined the Murphys’ driveway, their rear yard and the cul-de-sac.” Id. The zoning 

commission issued an opinion concluding that “the weekly, sizable prayer 

meetings were not a customary accessory use in a single-family residential area.” 

Id. The commission sent the Murphys an informal letter so advising them. Id.

Two days later, the Murphys sued the zoning commission, to which the ZEO 

responded with a formal cease and desist order. Id. However, instead of 

“appeal[ing] the cease and desist order to the Zoning Board of Appeals, where 

they could have sought a variance,” the Murphys continued with their federal 

suit. Id. The dispute was not ripe because the Murphys’ “fail[ure] to submit a 

single variance application in this matter . . . depriv[ed] us of any certainty as to 

what use of the Murphys’ property would be permitted.” Id. at 353.

This case is a far cry from Sunrise Detox and Murphy. There is no question

that Village Green submitted a “meaningful application” to municipal agencies 

to address its land-use dilemma. Id. at 348. Certainly, Village Green did not shirk 

the “give-and-take negotiation that often resolves land use problems,” Sunrise 

Detox, 769 F.3d at 124—even if, in this case, negotiation was evidently fruitless. 
24

Village Green did not sue when, after seven years of trying to comply with the 

C&Rs, it came to believe that compliance had become impossible. Instead, the 

developer began the arduous process of modifying the C&Rs. That process began 

in 2013, with the pre-submission meetings with the planning department;

continued in 2014, when Village Green filed its formal application to modify the 

C&Rs and defended its project during public hearings; took shape over the next 

two years, when it worked with the planning department on a series of studies 

on traffic, property values, and wetland issues and modified its application 

several times to accommodate concerns from residents and the towns; and was 

set to culminate in November 2016, with a formal motion to approve before the 

Town Board. Through its compliance with all that the town asked of it, Village 

Green in no way “impair[ed] or truncate[d] a process that must be allowed to run 

its course.” Id.

Of course, submitting a meaningful application is only part of the 

equation. The municipal entity responsible for the relevant zoning laws must

also have an opportunity to commit to a position. See, e.g., Pakdel, 141 S. Ct. at 

2230 (“Once the government is committed to a position . . . the dispute is ripe for 

judicial resolution.”); Unity Ventures v. Lake Cnty., 841 F.2d 770, 775 (7th Cir. 1988)
25

(“A final decision must be demonstrated by a development plan submitted, 

considered, and rejected by the governmental entity.” (emphasis added)). It is at 

this stage that the district court concluded that Village Green’s claims were not 

ripe. The Town Board never took a definitive position, according to the district 

court, because it never voted at the November 2016 meeting and has not 

considered the application since then. See Village Green I, 2019 WL 4737054, at *5.

We see things differently. It would no doubt be easier for us to conclude 

that Village Green received a final decision had the Town Board done what the 

developer asked it to do: vote publicly, yes or no, on the application. The parties 

seem to agree a no-vote on November 17, 2016, would have ripened the dispute.

But because the Town Board declined to give its position this way, we must 

assess the more unusual route it did take: first, noting in an official resolution 

that the “motion to approve fails for lack of second,” App’x at 317; then

apparently choosing to “treat[] the failed motion to approve as a denial of the 

application” and promising that no town agency would hear anything further on 

the matter; App’x at 32-33 ¶ 67; and finally, true to that promise, scheduling no 

further proceedings on the application in the almost six years since.
26

We conclude that, through this sequence of events, the Town Board

demonstrated its “arriv[al] at a definitive position on the issue that inflict[ed] an 

actual, concrete injury” on Village Green. Williamson Cnty., 473 U.S. at 193.

Consider first the resolution filed with the town clerk on December 8, 2016. In 

full, it states:

WHEREAS, an application has been filed by Village Green at 

Sayville, LLC (“the applicant”) with respect to the property located 

at 0 Sunrise Highway, Sayville and referred to on the Suffolk County 

Tax Map as 0500-258.00-03.00-001.000); and

WHEREAS, the applicant seeks a modification of deed 

covenants and restrictions associated with TC 4726 in order to 

construct 59 apartment[s] (58 rental apartments and 1 

superintendent apartment) instead of 38 single family attached 

dwellings, and

WHEREAS, a public hearing was held before the Town Board 

on June 30, 2016, at which time decision was reserved; and

WHEREAS, the item was scheduled for a decision before the 

Town Board on November 17, 2016.

NOW, THEREFORE, on motion by Supervisor Angie 

Carpenter to grant the application, be it

RESOLVED, that the motion to approve fails for lack of 

second.

App’x at 317.
27

The resolution bears many indicia of finality. It acknowledges that, while 

the Town Board “reserved” its decision on the application on June 30, the 

application was “scheduled for a decision” on November 17. The 

“RESOL[UTION]” that follows—that the “motion to approve fails”—can 

naturally be read as constituting that decision. Unlike at the June 30 meeting, at 

which the Town Board passed a “motion to reserve decision and ask[ed] that the 

Planning Board review this application again,” App’x at 281, this resolution does 

not contemplate future proceedings. It does not reschedule the vote. It gives no 

further instructions to Village Green. In other words, it offers no indication that 

the Town Board intended its denial for lack of second to be any less final than a 

no-vote would have been.

Village Green’s conversation with the town attorney—who serves as “legal 

counsel to the Town of Islip [and] the Town Board”7—reaffirms these 

observations. The town attorney told Village Green that the failed motion was a 

7 See Town Attorney, Town of Islip, https://www.islipny.gov/departments/townattorney (last visited Aug. 4, 2022). A court may take “routine[]” judicial notice of 

“documents retrieved from official government websites.” Wells Fargo Bank, N.A. 

v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015); see 

Cangemi v. United States, 13 F.4th 115, 124 n.4 (2d Cir. 2021) (taking judicial notice 

of agency website).
28

denial of the application and that “no further proceedings . . . would be held.” 

App’x at 32-33 ¶ 67. The town attorney then failed to respond to a letter from 

Village Green asking if he disputed having said this. Taking these events 

together, it was far from “merely speculative” that Village Green’s application 

had failed. See Sunrise Detox, 769 F.3d at 122. To the contrary, other than by

simply voting—as Village Green repeatedly asked it to do—the Town Board

could not have made its position any clearer.

The district court faulted Village Green for citing no “relevant binding 

precedent suggesting that [the town attorney’s] utterance, such as it may be, 

constitutes a final decision, or is otherwise binding on the Town Board.” Village 

Green I, 2019 WL 4737054, at *5. This criticism misses the mark. It is true that, 

ordinarily, a town attorney will “not have the power to bind [a] Zoning Board 

with regard to” a land-use application. Carbone v. Town of Bedford, 534 N.Y.S.2d 

211, 212 (2d Dep’t 1988). But Village Green asserts not that the town attorney

denied its application on his own authority, but merely that he conveyed the 

Town Board’s position. We cannot fathom why Village Green should now be 

penalized for having believed him. Nor do we agree with the district court that 

the Town Board’s failure to act since November 2016 weighs in the defendants’ 
29

favor. The reason there would be “no further proceedings,” per the town 

attorney, was that the application had been denied. App’x at 32 ¶ 67. That the 

Town Board kept its word bolsters, not undermines, its decision’s finality.8

Ultimately, we need not speculate why the Town Board would decide to 

deny the application without a formal vote and forswear further public 

proceedings. It suffices to say that, taking as true the material factual allegations 

in the complaint—as at this stage we must—such a decision was made. If a 

dispute can ripen when a municipal entity uses “repetitive and unfair 

procedures” to avoid a final decision, see Sherman, 752 F.3d at 563, it surely ripens 

when, as here, the entity makes plain that it has reached a decision that, by all 

accounts, it intends to be final. Because the rejection of Village Green’s 

application inflicted “a ‘concrete and particularized’” injury, not one that is 

8 The town’s position on appeal further supports our conclusion that a failed 

motion to approve can serve as a final decision: the town maintains that the 

Town Board “has complete discretion in considering [Village Green’s] 

Application and may even refuse to consider it if it so chooses.” Appellees’ Br. at 7 

(emphasis added).
30

“merely speculative and may never occur,” Sunrise Detox, 769 F.3d at 122

(citations omitted), we conclude that Village Green’s claims are ripe.9

CONCLUSION

For the reasons above, we vacate the district court’s judgment and remand 

for further proceedings consistent with this opinion.

9 Because Village Green received a final decision on its application to remove the 

C&Rs, we need not address its alternative claim that “[s]eeking a final decision 

would [have been] futile.” Sherman, 752 F.3d at 563.