#### OBSESSION SPORTS BAR & GRILL, INC., Joan C. Ortiz, Plaintiffs-Appellants, v. CITY OF ROCHESTER, Defendant-Appellee.

No. 17-769-cv

United States Court of Appeals, Second Circuit.

December 20, 2017

FOR APPELLANTS: Michael A. Burg-ee (Tina M. Foster, New York, NY, on the brief), Santiago Burger Annechino LLP, Pittsford, NY.

FOR APPELLEE: John M. Campolieto, for Brian F. Curran, Corporation Counsel of the City of Rochester, Rochester, NY.

PRESENT: GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges, CHRISTINA REISS, Chief District Judge.*

*

 Chief Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation.

SUMMARY ORDER

Obsession Sports Bar & Grill, Inc, and its owner, Joan C. Ortiz (collectively, “Obsession”), appeal from a judgment of the District Court (Siragusa, J.) dismissing their first amended complaint (“FAC”) against "the City of Rochester (the “City”) for failure to state a claim. We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.

Obsession argues that the District Court erred in dismissing its substantive due process claim. To state a substantive due process claim, Obsession was required to show that the City’s enactment of its zoning regulation, Rochester Municipal Code § 120-34(0), was “arbitrary, conscience-shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised.” Ferran v. Town of Nassau, 471 F.3d 363, 370 (2d Cir. 2006) (quotation marks omitted). The enactment of zoning regulations, even those in contravention of State law, does not violate substantive due process unless the defendant engages in conduct “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); see also Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 785 (2d Cir. 2007) (government conduct “tainted with racial animus or fun*54damental procedural irregularity5’ violates substantive due process • (quotation marks omitted)). The FAC does not allege that the enactment of section 120-34(0) was motivated by animus " or accomplished through procedural irregularity. Nor does it otherwise plausibly allege that the City acted in a manner that is arbitrary, conscience-shocking, or oppressive. That section 120-34(0) was ultimately invalidated by the New York State courts is insufficient, standing alone, to state a substantive due process claim. See Ferran, 471 F.3d at 370; Natale, 170 F.3d at 263.

Obsession next argues that the District Court erred in dismissing its procedural due process claim. We conclude that the procedural due process claim was properly dismissed for substantially the reasons stated by the District Court in that part of its opinion addressing the claim on the merits. See Obsession Sports Bar & Grill, Inc. v. City of Rochester, 235 F.Supp.3d 461, 466-67 (W.D.N.Y. 2017), Obsession was not entitled to a pre-deprivation hearing when the City enacted and enforced section 120-34(0), a “generally applicable zoning” regulation. See Edelhertz v. City of Middletown, 714 F.3d 749, 750 (2d Cir. 2013).

We have considered Obsession’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED,