DECISION AND ORDER
INTRODUCTION
Plaintiffs, who operate a.restaurant in the City of Rochester, commenced this ¿ction pursuant to 42 U.S;C. § 1983 after the defendant City of Rochester Planning Commission restricted their ability to
BACKGROUND
At the outset the Court must determine what facts it may consider when ruling upon Defendants’ motion. It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited in what it can consider. See, e.g., Vasquez v. City of New York, No. 10 Civ. 6277(LBS),
the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.
Chambers v. Time Warner, Inc.,
In this action the Complaint references decisions by the City of Rochester’s Planning Commission, as well as portions of the City Code. These documents are integral to the Complaint, and accordingly, the' Court considers them in ruling upon Defendants’ motion. Plaintiffs also filed an unsuccessful Article 78 proceeding in New York State Supreme Court, Monroe County, concerning the same subject matter, and the Court takes judicial notice of Supreme Court’s Decision and Order dismissing that action, even though Plaintiffs omitted any reference to that lawsuit from their Complaint.
In 2004, Plaintiffs began operating the New Orleans: Louisiana Waterfront Barbeque, under the name Ñolas BBQ (“No-las”), in the City, of Rochester. Ñolas is located at 4769-4775 Lake Avenue, near Ontario Beach Park. Residential neighborhoods are located to the South and West of Ñolas. Between, 2004 and 2014, Ñolas has applied for and been granted several special use permits allowing outdoor musical performances. Such special use permits were granted by the City Planning Commission, pursuant to the Rochester City Zoning Code, § 120-192(B).
. Initially, beginning in 2005, the special use permits allowed Ñolas to have live outdoor amplified entertainment on any day of the week, until 10 pm. In 2007, the City issued Ñolas a special use permit that limited outdoor amplified entertainment to Wednesdays, Fridays and Saturdays until 10 pm, and Sundays until 9 pm. The 2007 permit also allowed Ñolas to have outdoor amplified entertainment on.five additional
When the aforementioned permit expired, Ñolas applied for a new five-year special use permit. However, by that time, the City had received “dozens of letters, emails, photos and videos” from citizens, complaining that “the outdoor music [at Ñolas] ha[d] become too loud.”
On June 20, 2013, the Planning Commission amended its decision, to clarify that on ■ Sundays and Wednesdays, when “acoustic music” was allowed, vocalists and instrumentalists- could-use-microphones attached to “small speakers/’
Plaintiffs subsequently challenged the Commission’s ruling'by filing an Article 78 proceeding in New York State Supreme Court, Monroe County. Specifically, Plaintiffs alleged that the Commission’s ruling was arbitrary, capricious and lacking a substantial basis. However, on January 23, 2014, Supreme Court denied, the application, finding that -the Commission’s decision was supported by substantial evidence and was not arbitrary, capricious or an abuse of discretion.
Plaintiffs, meanwhile, applied for a new special use permit. On January 24, 2014, the Commission issued Plaintiffs a three-year permit that further reduced Plaintiffs’ ability to present live outdoor amplified music: In that regard, the permit eliminated the ability to have amplified music on Fridays and Saturdays, and instead indicated that all music on Friday, Saturday^ Sunday-and Wednesday had to be acoustic music, though Plaintiffs could apply to have up to five outdoor amplified events on Fridays and/or Saturdays. Additionally, the permit indicated that music on Sundays and Wednesdays -had to end by 8 pm.
The Commission’s 2014 decision contained three references to the City’s noise ordinance. First, the decision noted that, “it is evident that the previous mitigation efforts' did not bring the use into compliance with the noise ordinance.”
Plaintiffs did not file an Article 78 proceeding concerning the‘2014 permit. Instead, on January 16, 2015, Plaintiffs commenced this action pursuant to § 1983, asserting the following six causes of action p: 1) “First Amendment Violation” concerning the City’s noise ordinance; 2) “[Fourteenth] Amendment Due Process Violation — 1”; 3) “[Fourteenth] Amendment Equal Protection Violation”; 4) “[Fourteenth] Amendment Due Process Violation — 2”; 5) “[Fourteenth] Amendment Due Process Violation — 3”; and 6) “Violation of the [Fifth] Amendment Takings Clause.” On April 17, 2015, Defendants filed the subject motion to dismiss. The motion was fully briefed, and on October 13, 2015, counsel for the parties appeared before the undersigned for oral argument.
DISCUSSION
Defendants have moved to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The legal principles applicable to such a motion are clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly,
Section 1983
“To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) “that some person has deprived him of a federal right,” and (2) “that the person who has deprived him of that right acted under color of state law.” Velez v. Levy,
Due Process
The Complaint alleges that Defendants violated 'Plaintiffs’ Fourteenth Amendment Due Process rights in several ways.' Specifically, Plaintiffs maintain that the Planning Commission’s decisions in 2013 and 2014 were “a denial of due process since the Commission exercised power without any reasonable justification in the service of a legitimate governmental objective” (Count II); the Commission violated due- process by' unreasonably suggesting that live amplified performances could comply with the Municipal Code’s Noise Ordinance (Count IV); and the Commission violated due process' by relying, in its decision, on the-City’s Noise Ordinance, which is vague and.-overbroad (Count V).
To state a' procedural or substantive8 due process claim based on the denial of a special use permit, plaintiffs must first establish they had a constitutionally pro-técted property interest in the permit. See Ciambriello v. Cnty. of Nassau,292 F.3d 307 , 313 (2d Cir.2002); Natole v. Town of Ridgefield,170 F.3d 258 , 263 (2d Cir.1999). The Second Circuit uses a “strict entitlement” test, to determine whether a plaintiff holds such an interest. Zahra v. Town of Southold,48 F.3d 674 , 681 (2d Cir.1995).9 Under this test,a plaintiff has a protected property interest in a permit if “the issuing authority lacks discretion to deny the permit, ie., is required to issue it upon ascertainment that certain objectively ascertainable criteria have been met,” Natale v. Town of Ridgefield, 170 F.3d at 263 , “or if the discretion of .the issuing agency was so narrowly circumscribed that approval of a proper application was virtually assured.” DLC Mgmt. Corp. v. Town of Hyde Park,163 F.3d 124 , 132 (2d Cir.1998) (internal citation omitted).
Michael’s Rest. & Sports Bar, Inc. v. Vill. of Fishkill, No. 13 CV 8392 VB,
In the instant case, the Complaint does not expressly claim that Plaintiffs had “a constitutionally protected property interest” in a permit allowing them to have outdoor amplified music, nor does it allege facts from which such an inference could be drawn. For example, the Complaint does not identify any section of the City’s Zoning Code indicating that the Commission was required to issue a permit allowing outdoor amplified music once Plaintiffs met specified objectively ascertainable criteria. To the contrary, the Zoning Code, § 120-192(B)(4)(d)[5][m], indicates that the Planning Commission may impose conditions on special use permits, including “noise limitations,” “as may be necessary to prevent or minimize adverse effects upon other property in the neighborhood.”
Although Defendants’ motion to dismiss argues that Plaintiffs lack a protected property interest,
Equal Protection Clause
The Complaint maintains that Defendants’ decision • restricting live outdoor amplified music at Ñolas violates equal protection, because other organizations, including two similar restaurants, are allowed to have live outdoor amplified music. (Count III). The Complaint does not offer any reason, such as personal animosity, for why Plaintiffs believe, they were treated less-favorably than owners of other establishments. Instead, Plaintiffs are apparently asserting a “class, of one” equal protection claim, by asserting that they are being treated differently than others similarly situated without a rational basis.
Although the Equal Protection Clause is most. commonly used to bring claims alleging discrimination based on membership -in a protected class, a plaintiff who does not allege membership in a protected class may, nonetheless, bring a “class of one” equal protection claim. A class-of-one claim exists where the plaintiff alleges that he has been intentionally treated differently .from others similarly situated and that there is no rational basis for the difference in treatment. To state a claim) a plaintiff must identify at least one individual with whom he can be compared.
There must be an extremely high degree of similarity between the proposed coht-parator and the plaintiff such that an inference can be dmwn'that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose — whether personal or otherwise — is all but certain. Accordingly, to succeed on a class-of-one claim, a plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the sirhilarity in circumstances and difference 'in treatment are sufficient to exclude the possibility that the defendants acted on- the basis of mistake. ' -•
Thus, to state a claim that will pass muster under Rule 12(b)(6), [plaintiffs] must plausibly allege that a property sufficiently similar to theirs was treated more favorably by the [municipality].
Abramson v. Gettel, No. 14-CV-2371 NSR,
Here, apart from asserting that the comparator business establishments have live outdoor amplified music and are located within the City of Rochester, Plaintiffs do not offer any facts, to explain how they are similarly situated. For example, Plaintiffs admit that the Planning Commission received complaints from neighbors about the noise from outdoor amplified concerts at Ñolas, but do not claim that the Commission received similar complaints about these other establishments.
Fifth Amendment Takings Clause
The Complaint contends that Defendants violated the Fifth Amendment’s “Takings Clause” by “eliminating” Plaintiffs’ “ability to present seasonal' live outdoor amplified music entertainment” at Ñolas, thereby reducing the value of the establishment ' without compensation. (Count VI):
The Takings Clause provides that no “private property [shall] be taken forpublic use, without just compensation.” ■ U.S. Const, amend. V. The clause applies to the states through the Fourteenth Amendment. Kelo v. City of New London, Conn., 545 U.S. 469 , 472 n. 1,125 S.Ct. 2655 ,162 L.Ed.2d 439 (2005).
1256 Hertel Ave. Associates, LLC v. Calloway,
Although initially the application of this rule was limited to instances where the government took physical control of another’s property, beginning with Pennylvania Coal Co. v. Mahon,260 U.S. 393 ,43 S.Ct. 158 ,67 L.Ed. 322 (1922), the Court recognized that government regulation of private property may] in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such ’regulatory takings’ may be compensable under the Fifth Amendment. Supreme Court precedent indicates that two categories of regulatory action will be deemed per se takings for Fifth Amendment purposes. First, where government requires an owner to suffer a permanent physical invasion of [his] property — however minor — it must provide just compensation. Second, regulations that completely deprive an owner of ’all economically beneficial uses’ of [his] property require just compensation. Outside of these two relatively narrow categories regulatory takings challenges are governed by the standards set forth in Penn Central Trans. Co. v. New York City,438 U.S. 104 ,98 S.Ct. 2646 ,57 L.Ed.2d 631 (1978).
Jado Associates, LLC v. Suffolk Cty. Sewer Dist. No. 4-Smithtown Galleria, No. CV-12-3011 DRH ARL,
In this case, Plaintiffs do-not claim that Defendants have physically invaded the property, or that they have deprived them of “all economically beneficial uses” of the property. Instead, Plaintiffs, in their own words, contend that Defendants have “deprived Plaintiffs of the most beneficial use of the property and [have] reduced the value of said property for the purpose to which it is suited.” PI. Memo of Law [#8-l] at p.,17. Accordingly, the Court views this as an alleged non-per se regulatory taking that must be.analyzed under Penn Central. In that regard, the Second Circuit, has indicated that
[t]he Penn Central analysis of a non-categorical taking requires an intensive ad hoc inquiry into the circumstances of each particular case. We weigh three factors to determine whether the interference with property rises to the level of a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.
Sherman v. Town of Chester,
With regard to the first Penn Central factor, the Complaint does not indicate the economic impact that the Defendants’ actions have had on the Plaintiff, except in vague and conclusory terms; For example, the pleading indicates only that having “seasonal live outdoor amplified music entertainment” had been “a fundamental part” of Ñolas’ business since 2005, and that since the City limited Ñolas’ abili
With regard to the second Penn Central factor, “the 'extent to which the regulation has interfered with distinct investment-backed expectations,” the pleading fails to explain how Defendants’ actions have interfered with Plaintiffs’ “reasonable investment-backed expectations.” In that regard, the pleading merely indicates that at the time Plaintiffs opened Ñolas in 2004, they “discuss[ed] with the City [their] plans for the operation of the restaurant after the closure of the often troubled Harbor Beach Club at the same location,” which discussions “included [Plaintiffs’] plans to present live outdoor amplified music entertainment at Ñolas.”
With regard to the third Penn Central factor, “the character of the governmental action,” the Second Circuit has indicated that “[a] ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Sherman v. Town of Chester,
Considering all of the foregoing factors, the Court finds that the Complaint fails to state a takings clause claim.
First Amendment
Lastly, Plaintiffs maintain that Defendants violated their First Amendment rights by limiting their ability to present live outdoor amplified music at Ñolas, based on the City’s Noise Ordinance (“Chapter 75 of the Municipal Code”), which they contend is unconstitutionally vague and overbroad. (Count I). Plaintiffs do not claim that thie portion of the City Zoning Code dealing with special use permits, § 120-192(B), is unconstitutional. Defendants respond that Plaintiffs lack standing to challenge the constitutionality of the City of Rochester’s noise ordinance, since such ordinance was not the basis for the limitations placed on their special use permit. Rather, Defendants point out that the subject special use permits were issued pursuant to § 120-192(B), though one’ of the Commission’s decisions referred to'the noise ordinance.
' It is evident from the record that Plaintiffs are incorrect in asserting that they were denied the ability to present live oütdoor amplified music based upon the City’s noise ordinance. Rather, ‘the subject decisions of the Planning Commission are replete with references to the fact that they were based upon “Section 120-192 of the 2003 Zoning Code.” In that regard, § 120492(B), entitled “Special Permit,” lists five “approval standards,” as follows:
[1] A special permit shall be approved only if evidence is presented which establishes that:
[a] The proposed application will be in harmony with the general purpose, goals, objectives, standards and implementation strategies of the Comprehensive Plan, this chapter and, where applicable, the Subdivision Code.
[b] The proposed application will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility, facilities and other matters affecting the public health, safety and general welfare.
[c] The proposed application will be constructed, arranged and operated so as not to dominate the immediate vicinity or to interfere with the development and use of neighboring properties in accordance with the applicable district regulations.
[d] The proposed application will be served adequately by essential public facilities and services, such as highways, streets, parking spaces, police and' fire protection, drainage structures, refuse disposal, water and sewers, and schools, or that the persons or agencies responsible for the establishment of the proposed use will provide adequately for such services.
[e] The proposed application will not result in the destruction, loss or damage of any natural, scenic, cultural or historic feature of significant importance.
§ 120492(B)(3)(a)[l][a]-[e]. These five factors are specifically referenced and discussed in the decisions by the Planning Commission, and form the basis for the Commissions’ decisions. See, Def. Affirma
It is true that the Commission’s 2014 decision indicated that if Plaintiffs wanted to have more than five outdoor amplified performances, they would need to provide “a mitigation plan that details all efforts to adhere to [the noise ordinance,] Chapter 75 of the Municipal Code.” However, the Commission did not state that actual compliance with Chapter 75 would be a condition. Rather, the aforementioned statement indicates that Plaintiffs would need to make “efforts” to comply with the statute as part of an overall effort to reduce noise, which is the common theme running through the Commission’s decisions inasmuch as § Í20-192(B) of the Zoning Code specifically requires the Commission to consider any adverse effects that issuance of the special use permit would have on neighboring properties.
In considering whether Plaintiffs have standing to-challenge the City’s noise ordinance, the applicable law is well settled:
A plaintiff has Article III standing to bring suit if (1) it has suffered an ’injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable' to' the challenged action'of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Int’l Action Ctr. v. City of New York,
Here, Defendants maintain that Plaintiffs lack standing to challenge the City’s noise ordinance, Chapter 75. Plaintiffs’ response fails to even mention standing, and dismissal of the First Amendment claim is warranted on-that basis alone. See, Bond v. City of New York, No. 14-CV-2431 RRM VVP,
Even if the Court were to construe Plaintiffs’ response liberally, as it would do for a pro se litigant, it appears that Plaintiffs’ strongest argument for standing is the following:
The City claims that its Noise Ordinance is not the reason for the [Commission’s] adverse actions towards Plaintiffs but has not attempted to explain why the Noise Ordinance is not relevant. Since the [Commission’s] adverse actions against Plaintiffs were based on complaints that music was too loud, the Noise Ordinance is involved since it is the local law that attempts to regulate sound, defined as ’excessive noise’ and defines what constitutes a prima facie violation of the ordinance.
PI. Memo of Law [#8-l] at pp. 7-8 (emphasis added). As an initial matter, Plaintiffs are incorrect in stating that Defendants failed to explain why the noise ordinance is not relevant here; in fact, Defendants explained exactly that in their moving papers. See, e.g., Def. Memo of Law [#6-33 at p. 7, n.l; pp. 13-15. Beyond that though, Plaintiffs’ argument boils down to this: The restrictions attached to the special use permits were related to excessive noise, and therefore Plaintiffs were injured by the noise ordinance.
The Court disagrees. On this point, the Court finds, first, that assuming that Plaintiffs have suffered an injury, they have not shown that it is “fairly traceable” to the noise ordinance. Instead, it appears clear that Plaintiffs’ alleged injury arises directly from the independent application of a completely different statute, Zoning Code § 120-192(B). As mentioned earlier, § 120-192(B)(4)(d)[5][m], indicates that the Planning Commission may impose conditions on special use permits, including “noise limitations,” “as may be necessary to prevent or minimize adverse effects upon other property in the neighborhood.” Although one of the Commission’s decisions referred to the separate noise ordinance, it did not deny Plaintiffs’ application based on the noise ordinance, and Plaintiffs therefore lack standing to challenge the noise ordinance.
For that same reason, the Court further finds that Plaintiffs have not shown that their alleged injury would likely be addressed by a ruling that the City’s noise
For all of the foregoing reasons, Plaintiffs’ First Amendment challenge to the City’s noise ordinance must be dismissed for lack of standing.
Amended Complaint
Plaintiffs’ response does not include an alternative request' to file an amended pleading. Instead, Plaintiffs’ counsel’s supporting .affirmation [#8] merely posits the belief that if the Court were to find that the Complaint is deficient, Plaintiffs’ would have the ability to. file an amended pleading “without leave of the court.”
CONCLUSION
Defendants’ motion [#6] is granted and this action is dismissed with prejudice.
SO ORDERED.
Notes
. See, e.g., Missere v. Gross,
. Campolieto Affirmation, Exhibit C, May 2013 Decision, at p. 3.
. Campolieto Affirmation Exhibit B, Judgment and Order.
.Campolieto Affirmation Exhibit E, January 2014 decision.
. Campolieto Affirmation Exhibit E, January 2014 decision, atp. 5.
. Campolieto Affirmation Exhibit E, January 2014 decision, atp. 6.
.Campolieto Affirmation Exhibit E, January 2014 decision, at p. 7.
. • “To succeed on - a procedural due process claim, a plaintiff must first establish a valid property interest within the meaning of the Constitution, and second demonstrate that the defendant acted in an arbitrary or irrational manner in depriving him or her of that property interest.” Salvador v. Adirondack Park Agency of State of New York,
. The “strict entitlement” or “clear entitlement” test “applies only to permits being sought,” and not to permits that have already been granted. Villager Pond, Inc. v. Town of Darien,
. Defendants' Memo of Law [#6-3] at pp. 19-21.
. Complaint at ¶ 152.
. ■ Plaintiffs contend that' the complaints about them were "unfounded,” but they do not dispute that the Planning -Commission actually received the complaints.
. In that regard, the Court takes judicial notice that two of the alleged comparator establishments that Plaintiffs identify,' Pelicans Nest Restaurant and Schooners Riverside Pub, are located at 566 River Street and 40 Marina Drive, respectively. Both are waterfront properties, unlike Ñolas, -and both are located much farther from residential areas than Ñolas;
., Complaint at ¶ 151.
. Complaint ¶ ¶ 23, 42.
. Complaint at ¶ 83.
. Complaint ¶,177.
. Complaint ¶¶ 21-22.
. See, e.g., Complaint ¶ ¶ 24-25.
. Def. Affirmation in support of motion, Exhibit E at pp. 4-5.
. See, Complaint ¶ 49 ("Ñolas has never been adjudicated as having violated the City’s Noise Ordinance.”); see also, id. at ¶ 56-57 (never been issued ticket for noise); id. at ¶ 72 (same); id. at ¶ 111 (same). Indeed, the Complaint does not even allege that Ñolas was ever issued a ticket for violating the noise ordinance. In opposition to Defendant’s, motion, Plaintiffs' counsel now indicates that "Plaintiffs have only been issued two tickets fer allegedly violating the Noise ■ Ordinance since 2005. All tickets were based on neighbor complaints and were dismissed as being unfounded, ( ¶ 61).” As support for this statement, Plaintiffs’ counsel cites to 161 of the Complaint, but that paragraph does not mention the issuance of two tickets, therefore the factual basis for such statement is unclear. In any event, there is no allegation in the plead- - ing that Plaintiffs were ever issued a, ticket for violating the noise ordinance.
. The 2013 decisions do not mention the noise ordinance, and the 2014 decision does not explicitly indicate that Ñolas must comply with the noise ordinance in order to have outdoor amplified music. In that regard, the 2014 decision states that Plaintiffs "shall be” allowed to have at least five amplified events on Fridays and Saturdays without regard to the noise ordinance, and that if Plaintiffs wanted to apply to have additional amplified events they would need only to demonstrate their "efforts to adhere” to the noise ordinance, to the Commission's satisfaction. Overall, the Commissions’ decisions clearly strike a conciliatory tone of wanting to reach a reasonable compromise between Plaintiffs and their neighbors under Zoning Code § 120-192(B), rather than demanding strict compliance with the noise ordinance.
. Goewey Affirmation [#8] at 11 ¶ 30-31.
. Any request by Plaintiffs to amend would not be made within 21 days after their service of the Complaint, or within 21 days after Defendants served their Rule 12(b) motion. Accordingly, in order to amend Plaintiffs would need either Defendants’ consent or the Court’s permission.