1 15-1192-cv (L) Bernstein v. Village of Wesley Hills



### UNITED STATES COURT OF APPEALS

**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**

**FILED ON OR AFTER J**  **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF** 

**A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  = **S L**  **OCAL R**  **ULE 32.1.1.**  **W HEN CITING A SUMMARY** 

**ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT**  **, A**  **PARTY MUST**  **CITE EITHER**  **THE F**  **EDERAL A**  **PPENDIX**

**OR AN**  **ELECTRONIC DATABASE**  **( WITH**  **THE NOTATION**  A **SUMMARY ORDER**  @ **). A**  **PARTY CITING**  **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** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3
**23 rd** **day of March, two thousand sixteen.** 4

5
**PRESENT: DENNIS JACOBS,** 6
**PETER W. HALL,** 7 **Circuit Judges** 8
**JANE A. RESTANI, 1**  9 **Judge.** 10

11

- - - - - - - - - - - - - - - - - - - -X 12 **RABBI JAMES BERNSTEIN, MOSHE AMBERS,** 13
**BEATRICE ZAKS, SIMA ZAKS, NAFTOLI** 14
**TESHER, MOSDOS CHOFETZ CHAIM, INC.,** 15 **Plaintiffs-Appellants,** 16

17
**YESHIVA CHOFETZ CHAIM, INC., RABBI** 18
**MAYER ZAKS, RABBI ARYEH ZAKS, RABBI** 19
**NAFTOLI SOFER, MILTON B. SHAPIRO, SONYA** 20
**SHAPIRO, THE TOWN BOARD OF THE TOWN OF** 21
**RAMAPO,** 22 **Plaintiffs,** 23

24

1 Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.2 **-v.- 15-1192 (Lead)** 1 **15-1195 (Con)** 2

3
**THE VILLAGE OF WESLEY HILLS, THE MAYOR** 4

**AND BOARD OF TRUSTEES OF THE VILLAGE OF** 5 **WESLEY HILLS, ROBERT H. FRANKL, in his** 6 **official capacity, DAVID A GOLDSMITH,** 7 **in his official capacity, ROBERT I.** 8 **RHODES, in his former official** 9 **capacity, JAY B. ROSENSTEIN, in his** 10 **former official capacity, EDWARD B.** 11 **MCPHERSON, in his official capacity,** 12
**THE VILLAGE OF POMONA, THE MAYOR AND** 13

**BOARD OF TRUSTEES OF THE VILLAGE OF** 14
**POMONA, THE VILLAGE OF CHESTNUT RIDGE,** 15

**THE MAYOR AND BOARD OF TRUSTEES OF THE** 16
**VILLAGE OF CHESTNUT RIDGE, THE VILLAGE** 17
**OF MONTEBELLO, THE MAYOR AND BOARD OF** 18
**TRUSTEES OF THE VILLAGE OF MONTEBELLO,** 19 **Defendants-Appellees.** 20

21
**THE VILLAGE OF NEW HEMPSTEAD, THE MAYOR** 22

**AND BOARD OF TRUSTEES OF THE VILLAGE OF** 23
**NEW HEMPSTEAD, ROBERT A. MOSKOWITZ,** 24

**TRSUTEE OF THE VILLAGE OF NEW** 25 **HEMPSTEAD, in his individual and former** 26 **official capacity, FORMER MAYOR** 27 **HERBERT I. MARSHALL, in his individual** 28 **and former official capacity, MAYOR OF** 29 **POMONA NICHOLAS L. SANDERSON, in his** 30 **individual and official capacity, JOHN** 31 **DOE 1-37, JEROME KOBRE, MAYOR OF THE** 32 **VILLAGE OF CHESTNUT RIDGE, in his** 33 **individual and official capacity,** 34 **TRUSTEE HOWARD L. COHEN, in his** 35 **individual and official capacity,** 36
**KATHRYN ELLSWORTH, FORMER MAYOR OF** 37 **MONTEBELLO, in her individual and** 38 **former official capacity, MAYOR OF** 39 **MONTEBELLO JEFFREY OPPENHEIM, in his** 40 **individual and official capacity,** 41
**SCENIC DEVELOPMENT, LLC, TOWN OF** 423 **RAMAPO, THE PLANNING BOARD OF THE TOWN** 1
**OF RAMAPO, THE BOARD OF APPEALS OF THE** 2
**TOWN OF RAMAPO,** 3
**Defendants.** 4

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- - - - - - - - - - - - - - - - - - - -X 6

7

**FOR APPELLANTS:** JOSEPH J. HASPEL, Goshen, NY. 8

9

**FOR VILLAGES APPELLEES:** MICHAEL D. ZARIN (Jody T. Cross, on 10 the brief), Zarin & Steinmetz, 11 White Plains, NY. 12

13

**FOR POMONA APPELLEES:** GREGORY R. SARACINO, Milber Makris 14 Plousadis & Seiden, LLP, White 15 Plains, NY. 16

17 Appeal from a judgment of the United States District Court 18 for the Southern District of New York (Karas, J.). 19

20
**UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND** 21

**DECREED** that the judgment of the district court be **AFFIRMED**

. 22

23 Plaintiffs-appellants, religious organizations and 24 affiliated individuals (collectively, the “Mosdos 25 Plaintiffs”), appeal from the judgment of the United States 26 District Court for the Southern District of New York (Karas, 27 J.) granting summary judgment dismissing their discrimination 28 complaint against villages and current and former officials for 29 those villages (collectively, the “Villages Defendants”). We 30 assume the parties’ familiarity with the underlying facts, the 31 procedural history, and the issues presented for review. 32

The Mosdos Plaintiffs are affiliated with the Chofetz Chaim 33 sect of Orthodox Judaism and reside in the Town of Ramapo, New 34 York (the “Town”). The Villages Defendants are incorporated 35 villages located within the Town, and various associated 36 officials. In 2001, the Town initiated a review of its local 37 zoning laws, and in 2004, passed the Adult Student Housing Law 38 (“ASHL”) to permit the construction and operation of adult 39 student living facilities in certain residential zones. 40 Pursuant to the ASHL, predecessors to the Mosdos Plaintiffs 414 applied for site plan approval for the construction of an adult 1 student housing facility (“Kiryas Radin”) on a property (the 2 “Nike Site”) located near the Villages Defendants. As was 3 required by New York’s State Environmental Quality Review Act 4 (“SEQRA”), the Town’s Planning Board conducted an analysis on 5 the impact the construction of Kiryas Radin would have on the 6 environment and concluded that it would not be significantly 7 adverse. Accordingly, the Town’s Planning Board cleared the 8 Mosdos Plaintiffs to build Kiryas Radin on the Nike Site. 9

As the Town’s Planning Board finished its SEQRA review, a 10 subset of the Villages Defendants filed a lawsuit in New York 11 state court to challenge the ASHL and the Town Planning Board’s 12 SEQRA analysis (the “SEQRA Action”). In response, the Mosdos 13 Plaintiffs filed counterclaims under 42 U.S.C. § 1983 alleging 14 violations of the Free Exercise and Free Speech clauses of the 15 First and Fourteenth Amendments, the Fair Housing Act, and the 16 Religious Land Use and Institutionalized Persons Act. 17

While the parties litigated the SEQRA Action, the Mosdos 18 Plaintiffs also filed a new action in federal court against the 19 Villages Defendants, bringing claims under 42 U.S.C. §§ 1981, 20 1982, 1983, and 1985(3) alleging violations of the Free 21 Exercise, Establishment, and Free Association clauses of the 22 First and Fourteenth Amendments, the Equal Protection Clause 23 of the Fourteenth Amendment, the Fair Housing Act, and various 24 state laws (the “Equal Protection Action”). The core 25 allegation in the Equal Protection Action was that the Villages 26 Defendants filed the SEQRA Action for discriminatory reasons. 27

On March 31, 2010, the district court dismissed all of the 28 Mosdos Plaintiffs’ claims in the Equal Protection Action on the 29 ground that the Villages Defendants were entitled to qualified 30 immunity. Mosdos Chofetz Chaim, Inc. v. Village of Wesley 31 Hills, 701 F. Supp. 2d 568, 604 (S.D.N.Y. 2010) (Mosdos I). The 32 district court’s analysis turned on applying the 33 Noerr-Pennington doctrine 2 to the Mosdos Plaintiffs’ civil 34 rights claims. The district court held that for the Mosdos 35

2 The name derives from two cases from the 1960s in which the Supreme Court applied the First Amendment in the antitrust context. See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).5 Plaintiffs to make out a discrimination claim based on the 1 filing of the SEQRA Action, they had to allege that (i) they 2 were selectively treated compared with others similarly 3 situated, and (ii) the selective treatment was motivated by an 4 intention to discriminate on the basis of, inter alia, religion. 5 Id. at 603. Because the initial complaint failed to allege 6 facts to show that similarly situated properties were treated 7 differently, the district court dismissed the complaint without 8 prejudice. 9

On September 26, 2011, the district court granted in part 10 and denied in part the Villages Defendants’ motion to dismiss 11 the amended complaint in the Equal Protection Action. Mosdos 12 Chofetz Chaim Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 13 679, 683 (S.D.N.Y. 2011) (Mosdos II). The district court 14 concluded that the Mosdos Plaintiffs had adequately specified 15 six similarly situated sites that the Villages Defendants did 16 not treat the same as the Nike Site, that is, the Villages 17 Defendants did not file a lawsuit to block the development on 18 those sites. Id. at 700-04. Accordingly, discrimination 19 claims against the Villages Defendants proceeded to discovery. 20

Meanwhile, the SEQRA Action continued. Though the subset 21 of the Villages Defendants litigating the SEQRA Action 22 persuaded a state court to grant them a preliminary injunction 23 and temporary restraining order against the Kiryas Radin 24 construction, their claims were eventually dismissed on the 25 merits. As a result, on December 5, 2012, the Mosdos Plaintiffs 26 removed the SEQRA Action to federal court to pursue their 27 counterclaims; there, it was consolidated with the Equal 28 Protection Action. 29

On March 27, 2015, the district court granted summary 30 judgment to the Villages Defendants on the Mosdos Plaintiffs’ 31 claims in the Equal Protection Action and their counterclaims 32 in the SEQRA Action. Bernstein v. Village of Wesley Hills, 95 33

F. Supp. 3d 547, 551 (S.D.N.Y. 2015) (Mosdos III). The district 34 court concluded that the Mosdos Plaintiffs failed to produce 35 evidence sufficient to raise a genui ne issue of material fact 36 as to similarly situated sites that were treated differently 37 or as to whether the Villages Defendants acted out of 38 discriminatory animus. The district court also rejected the 396 Mosdos Plaintiffs’ argument that they had a valid RLUIPA claim 1 based on this Court’s opinion in Fortress Bible Church v. 2 Feiner, 694 F.3d 208 (2d Cir. 2012). In this appeal, the Mosdos 3 Plaintiffs challenge only the determination that they failed 4 to present sufficient evidence to sustain their discrimination 5 claims against the Villages Defendants. 6

We review de novo a district court’s grant of summary 7 judgment. Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89, 93 (2d 8 Cir. 2015). Summary judgment must be granted if “there is no 9 genuine dispute as to any material fact and the movant is 10 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 11 “In assessing the record to determine whether there is a genuine 12 issue as to any material fact, the court is required to resolve 13 all ambiguities and draw all factual inferences in favor of the 14 party against whom summary judgment is sought.” Noll, 787 F.3d 15 at 94 (internal brackets and citation omitted). A genuine 16 issue of material fact is one that “might affect the outcome 17 of the suit under the governing law” and as to which “a 18
reasonable jury could return a verdict for the nonmoving party.” 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 20

**1.** As an initial matter, the Mosdos Plaintiffs do not 21 appeal from Mosdos I or Mosdos II. Their Pre-Argument 22 Statement (Form C) states that they are only appealing from a 23 summary judgment order and that the only issues raised on appeal 24 are those that concern the summary judgment opinion in Mosdos 25 III. The Mosdos Plaintiffs’ brief represents that the only 26 issue presented is whether the district court properly granted 27 summary judgment for the Villages Defendants, and the only 28 opinion included in the Mosdos Plaintiffs’ Special Appendix is 29 Mosdos III. The Villages Defendants argue at length in their 30 brief that the Mosdos Plaintiffs are not appealing from Mosdos 31 I or Mosdos II and the Mosdos Plaintiffs do not rebut this 32 contention in their reply. Accordingly, we lack jurisdiction 33 to review the district court’s opinions in Mosdos I and Mosdos 34 II. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 35 1995). The remaining issue before us is whether the district 36 court properly granted summary judgment for the Villages 37 Defendants. We assume without deciding that the district 38 court’s Noerr-Pennington-based analysis for determining 397 whether the Villages Defendants are entitled to qualified 1 immunity, detailed in Mosdos I and Mosdos II, is correct. 2

**2.** Turning to Mosdos III, the district court’s thorough 3 and well-reasoned opinion demonstrated that the Mosdos 4 Plaintiffs failed to produce evidence sufficient for a jury 5 finding either that (i) there were similarly situated sites or 6 (ii) the Villages Defendants acted out of discriminatory 7 animus. Kiryas Radin is a residential complex containing sixty 8 residential units at a density of 12.8 units per acre and a 9 number of non-residential buildings. The Nike Site sits on a 10 two-lane road of low-to-moderate capacity, is surrounded by a 11 low-density residential district that contains mostly single 12 family homes, and is approximately one mile from the nearest 13 commercial development. The Mosdos Plaintiffs failed to 14 provide credible evidence that any of the purported comparable 15 sites were similarly situated, e.g., that they had a similar 16 impact on traffic and community character, or that the Villages 17 Defendants knew of the comparable sites before they were built. 18 The Mosdos Plaintiffs also failed to offer evidence that the 19 Villages Defendants were driven by discriminatory animus in 20 bringing the SEQRA Action. Rather, there is no real dispute 21
that the Villages Defendants were motivated by a genuine concern 22 that the ASHL and Town’s SEQRA analysis would result in adverse 23 effects on the environment. Accordingly, we conclude that the 24 Villages Defendants are entitled to qualified immunity on the 25 Mosdos Plaintiffs’ claims and counterclaims. 26

The Mosdos Plaintiffs raise one additional issue. They 27 assert that Fortress Bible provides them with either a cause 28 of action or a theory of discrimination that sustains their 29 claims. It does neither. Fortress Bible concerned a 30 municipality abusing the SEQRA review process as a vehicle for 31 executing its zoning regulations in connection with a church’s 32 land use proposal for a site located within that municipality’s 33 jurisdiction. Here, the Villages Defendants – none of which 34 had jurisdiction over the Nike Site or Kiryas Radin project – 35 filed a lawsuit to challenge some other municipality’s SEQRA 36 review. Fortress Bible is inapposite. 378 Accordingly, and finding no merit in Mosdos Plaintiffs’ 1 other arguments, we hereby **AFFIRM** the judgment of the district 2

court. 3

FOR THE COURT: 4
CATHERINE O’HAGAN WOLFE, CLERK 5