149 F. Supp. 3d 413
W.D.N.Y.2015Background
- Nolas BBQ operated since 2004 near Ontario Beach Park and obtained serial special-use permits for outdoor live amplified music; earlier permits allowed frequent amplified music through 2012.
- After neighbor complaints about loud outdoor music, the City Planning Commission issued restrictive short-term permits in 2013 requiring reduced hours, limits on amplification, and installation of sound panels; a 2014 three-year permit further limited amplified outdoor events and tied additional events to a mitigation plan addressing the City noise ordinance.
- Plaintiffs unsuccessfully challenged the 2013 decisions in state court (Article 78) and then sued under 42 U.S.C. § 1983 asserting First Amendment (vagueness/overbreadth of noise ordinance), multiple Due Process theories, an Equal Protection "class of one" claim, and a Fifth Amendment takings claim.
- Defendants moved to dismiss under Rule 12(b)(6); Court considered the zoning decisions, City Code, and the state court decision as integral/public records.
- The court treated plaintiffs as having abandoned arguments they did not oppose in briefing and found plaintiffs failed to plead essential elements of their constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due Process — property interest in permit | Nolas says Commission acted arbitrarily in restricting permits | Commission had discretion under zoning code to impose conditions | Dismissed — plaintiffs failed to plead a protected property interest and thus due process claims fail |
| Equal Protection — "class of one" | Nolas says other restaurants get amplified outdoor music while it was restricted | Commission points to complaints and differing locality/neighbor context | Dismissed — plaintiffs did not plausibly plead extreme similarity to comparators or intentional singling out |
| Takings Clause — regulatory taking | Nolas claims loss of most beneficial use and reduced value from limits on outdoor amplified music | Limits are regulatory, partial, time-limited, and aimed at noise mitigation; not a physical invasion or total deprivation | Dismissed — no per se taking; Penn Central factors not plausibly satisfied (insufficient economic impact, investment-backed expectations, and character favors regulation) |
| First Amendment — challenge to City noise ordinance | Nolas contends noise ordinance is vague/overbroad and caused restriction on music | Defendants: restrictions were imposed under zoning special-permit authority, not the noise ordinance; plaintiffs lack standing to challenge ordinance | Dismissed for lack of standing — injury not shown to be fairly traceable to the noise ordinance and relief would not redress injury because zoning code could still bar events |
Key Cases Cited
- Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002) (courts may consider documents integral to complaint on 12(b)(6) motion)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (Sup. Ct. 2007) (plausibility standard for pleading)
- Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002) (due process requires protected property interest for permit challenges)
- Zahra v. Town of Southold, 48 F.3d 674 (2d Cir. 1995) ("strict entitlement" test for permit-based property interests)
- DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124 (2d Cir. 1998) (property-interest analysis where agency discretion is narrowly circumscribed)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (Sup. Ct. 1978) (multi-factor regulatory takings test)
- Kelo v. City of New London, 545 U.S. 469 (Sup. Ct. 2005) (takings clause applies to states)
- Sherman v. Town of Chester, 752 F.3d 554 (2d Cir. 2014) (applying Penn Central factors at pleading stage)