Dean v. Town of Hempstead

Full title: William Stephen DEAN, also known as Billy Dean, Rori Leigh Gordon, Green…

Court: United States District Court, E.D. New York.

Date published: Jan 4, 2021

527 F. Supp. 3d 347 (E.D.N.Y. 2021)

Opinion

14-CV-4951 (MKB)

2021-01-04

William Stephen DEAN, also known as Billy Dean, Rori Leigh Gordon, Green 2009 Inc., One55Day Inc., and Look Entertainment Ltd., Plaintiffs, v. The TOWN OF HEMPSTEAD, Kate Murray, individually and as the former Supervisor of the Town of Hempstead, John E. Rottkamp, individually and as the Commissioner of the Department of Buildings of the Town of Hempstead, David P. Weiss, individually and as the Chairman of the Town of Hempstead Board of Appeals, Gerald C. Marino, individually and as a former Member of the Town of Hempstead Board of Appeals, Katuria E. D'Amato, individually and as a Member of the Town of Hempstead Board of Appeals, John F. Ragano, individually and as a Member of the Town of Hempstead Board of Appeals, Frank A. Mistero, individually and as a Member of the Town of Hempstead Board of Appeals, Joseph F. Pellegrini, individually and as a Member of the Town of Hempstead Board of Appeals, Kimberly A. Perry, individually and as a Member of the Town of Hempstead Board of Appeals, Anthony J. Santino, individually and as the Supervisor of the Town of Hempstead, Gary Hudes, individually and as a member of the Town Board of the Town of Hempstead, Steven D. Rhoads, individually and as a member of the Nassau County Legislature, and Daniel M. Fisher, individually and as a Member of the Town of Hempstead Board of Appeals, Defendants.

Erica Tamar Dubno, Herald Price Fahringer, Herald Price Fahringer PLLC d/b/a Fahringer & Dubno, New York, NY, for Plaintiffs William Stephen Dean, Rori Leigh Gordon, Green 2009 Inc., One55Day Inc., Look Entertainment Ltd. Peter Sullivan, Donna A. Napolitano, Joseph E. Macy, Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY, for Defendants The Town of Hempstead, Kate Murray, John E. Rottkamp, David P. Weiss, Gerald C. Marino, Katuria E. D'Amato, John F. Ragano, Frank A. Mistero, Joseph F. Pellegrini, Kimberly A. Perry, Anthony J. Santino, Gary Hudes. Peter Sullivan, Joseph E. Macy, Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY, for Defendant Daniel M. Fisher.

MARGO K. BRODIE, United States District Judge

Erica Tamar Dubno, Herald Price Fahringer, Herald Price Fahringer PLLC d/b/a Fahringer & Dubno, New York, NY, for Plaintiffs William Stephen Dean, Rori Leigh Gordon, Green 2009 Inc., One55Day Inc., Look Entertainment Ltd.

Peter Sullivan, Donna A. Napolitano, Joseph E. Macy, Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY, for Defendants The Town of Hempstead, Kate Murray, John E. Rottkamp, David P. Weiss, Gerald C. Marino, Katuria E. D'Amato, John F. Ragano, Frank A. Mistero, Joseph F. Pellegrini, Kimberly A. Perry, Anthony J. Santino, Gary Hudes.

Peter Sullivan, Joseph E. Macy, Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY, for Defendant Daniel M. Fisher.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

I. Background...367

a. Factual background...367

i. The parties...367

ii. The Town's laws...367

iii. The Wantagh Property...369

iv. The Bellmore Property...379

b. Procedural background...384

II. Discussion...385

a. Standards of review...385

i. Rule 12(b)(1)...385

ii. Rule 12(b)(6)...386

iii. Rule 12(c)...386

b. Ripeness 42...387

i. The Wantagh Property...388

ii. The Bellmore Property...391

c. Standing...393

i. Standing for as-applied claims...395

ii. Standing for First Amendment facial challenges...408

d. Immunity...410

i. Absolute immunity...411

ii. Legislative immunity...412

iii. Qualified immunity...414

e. Claim preclusion...416

f. Substantive due process...422

i. Property rights...422

ii. Manner of conduct...425

g. Procedural due process...427 h. Equal protection...429

i. Conspiracy...434

j. First Amendment claims...438

i. Waiver...439

ii. Statute of limitations...441

iii. Facial overbreadth challenge: BZO Special Use Provision...442

iv. Facial vagueness challenge: BZO Temporal Limit Provision...450

k. Municipal liability...452

III. Conclusion...455

Plaintiffs William Stephen Dean, Rori Leigh Gordon, Green 2009 Inc. ("Green 2009"), One55Day Inc. ("One55Day"), and Look Entertainment, Ltd. ("Look Entertainment"), initiated this action on August 20, 2014, alleging that Defendants the Town of Hempstead (the "Town"), Anthony J. Santino, Kate Murray, John E. Rottkamp, David P. Weiss, Gerald C. Marino, Katuria E. D'Amato, John F. Ragano, Frank A. Mistero, Joseph F. Pellegrini, and Kimberly A. Perry violated their constitutional rights by refusing to approve permits and other authorizations required for Plaintiffs to operate two cabarets located in the Town.¹ (Compl., Docket Entry No. 1.) Plaintiffs subsequently filed an Amended Complaint on September 30, 2016, adding Gary Hudes as a defendant, (Am. Compl., Docket Entry No. 99), and a Second Amended Complaint (the "SAC") on February 7, 2017, adding Daniel M. Fisher and Steven D. Rhoads as defendants,² (SAC ¶ 29, Docket Entry No. 137). Plaintiffs bring claims under 42 U.S.C. §§ 1983 and 1985 alleging several violations of their civil and constitutional rights. (Id. ¶ 1.)

1 Plaintiffs originally brought suit against David G. McDonough, individually and as a member of the New York State Assembly, and Michael Venditto, individually and as a member of the New York State Senate. (Compl., Docket Entry No. 1.) By stipulation of dismissal, Plaintiffs dismissed the action against McDonough and Venditto on January 9, 2017. (Order Dismissing Parties dated Jan. 9, 2017, Docket Entry No. 136.)

2 The Court refers to Defendants the Town, Santino, Murray, Rottkamp, Weiss, Marino, D'Amato, Ragano, Misterio, Pellegrini, Perry, Hudes, and Fisher collectively as the "Town Defendants." Because Rhoads moves separately from Town Defendants, the Court refers to Rhoads individually.

Town Defendants and Rhoads separately move to dismiss the SAC and/or move for a judgment on the pleadings.³ Town Defendants move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.⁴ Rhoads separately moves to dismiss the SAC for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.⁵ For the reasons set forth below, the Court grants Town Defendants’ motion in part and denies it in part.⁶ The Court dismisses Plaintiffs’ claims based on their applications dated October 12, 2009, for the Wantagh Property, claims based on the Bellmore Property, and Plaintiffs’ facial challenge to section 302(Q) of the Hempstead, New York, Building Zone Ordinance (the "BZO") for lack of ripeness and standing. The Court denies Town Defendants’ motion to dismiss for lack of subject matter jurisdiction as to Plaintiffs’ claims based on the applications submitted on June 24, 2016, but dismisses Plaintiffs’ claims against Town Defendants for failure to state a claim under the Federal Constitution for substantive and procedural due process, equal protection, conspiracy, and Monell municipal liability violations. The Court grants Rhoads’ motion to dismiss and dismisses all claims against him. The Court denies Town Defendants’ motions with respect to Plaintiffs’ facial First Amendment challenges to sections 272(C)(6) and 267(D)(3) of the BZO.

3 Town Defendants characterize their motion as a "12(c) motion to dismiss." (Town Defs.’ Mem. in Supp. of Town Defs.’ Mot. ("Town Defs.’ Mem.") 1, Docket Entry No. 160.) However, because Town Defendants’ motion raises issues of subject matter jurisdiction and standing, and because Town Defendants’ motion to dismiss was filed after they filed an Answer, (see Answer to SAC ("SAC Answer"), Docket Entry No. 156), the Court construes this motion as both a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and a Rule 12(c) motion for judgment on the pleadings. See, e.g., All. for Env't Renewal, Inc. v. Pyramid Crossgates Co. , 436 F.3d 82, 88–89 n.6 (2d Cir. 2006) ("Although we have noted that standing challenges have sometimes been brought under Rule 12(b)(6), as well as Rule 12(b)(1), the proper procedural route is a motion under Rule 12(b)(1)." (citations omitted)).

4 (Town Defs.’ Mot. for J. on the Pleadings ("Town Defs.’ Mot."), Docket Entry No. 157; Town Defs.’ Mem.) Plaintiffs argue that Town Defendants’ motion should not be converted to a motion for summary judgment pursuant to Rule 12(d) of the Federal Rules of Civil Procedure. (Pls.’ Opp'n 24, Docket Entry No. 166.) Town Defendants do not request that their motion be converted to a summary judgment motion, although they attach numerous exhibits outside of the pleadings to their briefing. Because the Court only considers the pleadings and does not consider the attached exhibits except where appropriate pursuant to Town Defendants’ 12(b)(1) motion and where judicial notice applies, the Court declines to convert Town Defendants’ motion to a motion for summary judgment.

5 (Rhoads Mot. to Dismiss ("Rhoads Mot."), Docket Entry No. 161; Rhoads Mem. in Supp. of Rhoads Mot. ("Rhoads Mem."), Docket Entry No. 163.) The parties also filed two motions to strike. (Pls.’ Mot. to Strike Defs.’ Reply ("Pls.’ Strike Mot."), Docket Entry No. 174; Town Defs.’ Mot. to Strike Pls.’ Letter ("Town Defs.’ Strike Mot."), Docket Entry No. 177.) Plaintiffs move to strike Town Defendants’ reply on the ground that Town Defendants presented certain facts and arguments for the first time in their reply and, in the alternative, seek permission to file a sur-reply. (Pls.’ Strike Mot.) Plaintiffs then filed a letter to the Court providing an update on the status of the case, (Pls.’ Letter Updating Status of Case, Docket Entry No. 176), which Town Defendants moved to strike as an unauthorized sur-reply, (Town Defs.’ Strike Mot.). The Court construes Plaintiffs’ letter as a sur-reply and denies both Plaintiffs’ and Town Defendants’ motions to strike.

6 Plaintiffs bring their constitutional challenges pursuant to both the Federal Constitution and the New York State Constitution. (See SAC ¶¶ 448, 455, 465, 468, 477, 489, 498, 503.) Town Defendants only move for judgment on the pleadings and Rhoads only moves to dismiss Plaintiffs’ federal constitutional claims. Accordingly, because the New York State Constitution may offer more protection than the Federal Constitution for some of the rights asserted, see, e.g. , Clear Channel Outdoor, Inc. v. City of New York , 608 F. Supp. 2d 477, 508 (S.D.N.Y. 2009) ("The New York Court of Appeals has stated that the state constitution's free speech clause ‘contains language that is more expansive than its [f]ederal counterpart and we have at times interpreted it in a manner that is more protective of free expression than the First Amendment to the Federal Constitution.’ " (quoting Children of Bedford, Inc. v. Petromelis , 77 N.Y.2d 713, 731, 570 N.Y.S.2d 453, 573 N.E.2d 541 (1991) )), aff'd , 594 F.3d 94 (2d Cir. 2010), and because the parties have not briefed state constitutional claims, the Court only addresses the federal constitutional claims that Defendants specifically moved to address in their briefing, which are Plaintiffs’ substantive and procedural due process, equal protection, conspiracy, and facial First Amendment claims.
In addition, Town Defendants fail to adequately brief the issue of whether Plaintiffs state a claim for violation of section 272.1 of the BZO. Town Defendants make a conclusory statement that they are "entitled to dismissal of Cause of Action IX ... [because] there are no plausible allegations that the Town Defendants have not, in any event, scrupulously complied with [section] 272.1 of the BZO." (Town Defs.’ Mem. 50.) Similarly, although Town Defendants argue that Plaintiffs’ Takings Clause claims are unripe, (Town Defs.’ Mot. 4), they fail to brief the merits of the claim. Because both issues have not been fully briefed by the parties, the Court declines to address the substantive arguments of both claims.

I. Background

a. Factual background

The Court draws all facts from the SAC and all exhibits attached thereto, which facts the Court "assume[s] to be true unless contradicted by more specific allegations or documentary evidence." L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011) (first citing Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc. , 369 F.3d 212, 222 (2d Cir. 2004) ; and then citing Hirsch v. Arthur Andersen & Co. , 72 F.3d 1085, 1092 (2d Cir. 1995) ).

i. The parties

Plaintiffs Dean and Gordon are both residents of New York. (SAC ¶¶ 14–15.) Plaintiffs One55Day, Green 2009, and Look Entertainment are all U.S. corporations with their principal places of business in Hempstead, New York. (Id. ¶¶ 10–12.) Dean is the president and Gordon is the vice president of One55Day, which owns commercial property located at 3500 Sunrise Highway in Wantagh, New York, in the Town of Hempstead (the "Wantagh Property"). (Id. ¶¶ 10, 14–15.) Gordon is president of Green 2009 and Look Entertainment, while Dean is vice president of those corporations. (Id. ¶¶ 14–15.) Green 2009 leases the Wantagh Property. (Id. ¶ 11.) Look Entertainment is located at 1536-38 Newbridge Road, North Bellmore, New York, in the Town of Hempstead (the "Bellmore Property"). (Id. ¶ 12.) Look Entertainment has operated a commercial establishment known as "Billy Dean's Showtime Café" or "Showtime Café" at the Bellmore Property since 1998. (Id. )

The Town is a municipal corporation organized under the laws of New York and located within Nassau County, New York. (Id. ¶ 16.) The Town is comprised of twenty-two villages and thirty-five hamlets, including Wantagh and Bellmore, where the Wantagh Property and Bellmore Property are respectively located. (Id. ) With the exception of Rhoads, all Defendants are current or former Town officials who served as Supervisor of the Town or are connected to the Town's Board of Appeals (the "Board") and/or Department of Buildings. (Id. ¶¶ 17–28.) Rhoads is a member of the Nassau County Legislature. (Id. ¶ 29.)

ii. The Town's laws

The Town is responsible for the actions of its Board, formerly known as the Board of Zoning Appeals, and its Department of Buildings. (SAC ¶ 16.) The Board has appellate jurisdiction to review "any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law." N.Y. Town Law ("Town Law") § 267-a(4) (McKinney 2019). The Board is further empowered to authorize certain permissive uses for property because the Board has original jurisdiction over applications for special exceptions to certain uses so long as the use would not prevent orderly and reasonable use of adjacent properties or other established uses in the district where the proposed use is located; would not affect the Town's safety, health, welfare, comfort, convenience, and order; and would be "in harmony with and promote the general purposes and intent" of the zoning ordinance. BZO § 267(D)(2)(a)(4). The Board also has the power to grant use variances "in harmony with their general purpose and intent," Town Law § 261, when an applicant has shown that "applicable zoning regulations and restrictions have caused unnecessary hardship,"⁷ id. § 267-b(2)(b). The Department of Buildings — a separate entity from the Board — is charged with administering and enforcing rules regarding places of public assembly and other real property and buildings. (SAC ¶ 40 (quoting Hempstead, N.Y., Town Code ("Town Code") § 52-3).) To construct, substantially alter, or "change the nature of the occupancy" of a building in the Town, a business owner must obtain a building permit from the Department of Buildings, and to occupy a building in the Town, a business owner must obtain a Certificate of Occupancy or Certificate of Completion from the Department of Buildings. See Town Code §§ 86-9 (permits), -18 (certificates of occupancy), -19 (certificates of completion). Prior to the grant of a Certificate of Occupancy, a property must have first obtained a building permit, and a building inspector must have examined the site and work for which the application was filed. Id. §§ 86-18, -21. The Department of Buildings must issue the certificate "within a reasonable time" after receiving an application for a Certificate of Occupancy. Id. § 86-22.

7 Under N.Y. Town Law § 267, a "use variance" is defined as "authorization by the [Board] for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations." N.Y. Town Law § 267(1)(a). In contrast, an "area variance" is defined as "authorization by the [Board] for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations." Id. § 267(1)(b).

The Department of Buildings has the power to grant public assembly permits, which are renewed annually. Id. §§ 96-1 to -4. Cabarets and restaurants are included in the definition of "place of public assembly." Id. § 96-1(A). The Department of Buildings will issue a public assembly permit only after the premises to be licensed are inspected and the Department of Buildings is satisfied that the applicant has complied with "all other applicable laws, ordinances, codes, rules and regulations pertaining to fire and safety requirements" and finds "that the premises are a safe place in which to conduct, maintain or operate a place of public assembly and that a proper use has been established for the premises." (Answer to SAC ("SAC Answer") ¶ 250, Docket Entry No. 156 (quoting Town Code § 96-3(B)).)

The Town Code defines a cabaret as any "room, place or space wherein musical entertainment, singing, dancing in a designated area or other form of amusement or entertainment is permitted in conjunction with the sale or service of food or drink to the public." (SAC ¶ 38 (quoting Town Code § 96-1(A)).) To operate a cabaret in the Town, a business owner must apply for and obtain permission from the Board. (Id. ¶ 39 (quoting BZO § 272(C)(6)).) As amended in March of 1997, the statute states that "the grant of any cabaret use by the Board ... shall be limited to the specific cabaret use applied for and approved by the Board ... and no other cabaret use." (Id. ) The amended statute also states that it "shall apply to any cabaret use hereafter or previously granted by the Board." (Id. ) The Town's BZO defines an "adult entertainment cabaret" as a "public or private establishment which presents topless dancers, strippers, male or female impersonators or exotic dancers or other similar entertainments[,] and which establishment is customarily not open to the public generally but excludes any minor by reason of age." (Id. ¶ 43 (quoting BZO § 384).)

Pursuant to Town Law section 267-a(12), the Board has the power to hold a rehearing on any of its orders, decisions, or determinations not previously reheard. Town Law § 267-a(12). The Board may "reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the [B]oard finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby." Id. Appeals to the Board must be decided within sixty-two days of the hearing.⁸ Id. § 267-a(8).

8 New York courts have held that an applicant's sole remedy for the Board's failure to act within the prescribed sixty-two-day period is a mandamus proceeding to compel the board to act. See Terry Rice, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 61, Town Law § 267-a (2013) (citing Berka v. Seltzer , 170 A.D.2d 450, 565 N.Y.S.2d 234 (App. Div. 1991) ).

The BZO also governs parking regulations and requires that cabarets have one parking space for each three authorized occupants. BZO § 319(A)(7). Applications for parking variances are submitted to the Board. Id. § 319(C). The Board may grant such variances "in any case in which it shall find that compliance herewith is not necessary to prevent traffic congestion or undue on-street parking, or where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this section." Id.

iii. The Wantagh Property

The structures at the Wantagh Property, which include a one-story commercial building and a two-story residence, are covered under a single Certificate of Occupancy and share a Tax Lot. (SAC ¶¶ 46–47.) In 1969, the Town granted a permit to operate the Wantagh Property as a tavern and "place of cabaret." (Id. ¶ 48.) From 1969 through the 1980s, the Wantagh Property was operated as a cabaret. (Id. ¶¶ 50–51.) In the 1990s, after renovations, a kitchen was added to one of the structures at the Wantagh Property. (Id. ¶ 51.) In 1997, the Town amended the BZO to require that the "grant of any cabaret use by the Board ... shall be limited to the specific cabaret use applied for and approved by the Board." (Id. ¶ 52.) The Wantagh Property was operated as a "cabaret and tavern" known as the "Artanas Rock Saloon" through 2008, at which time it featured live stage performances by rock bands as well as dancing. (Id. ¶ 53.)

On or about February 10, 2009, One55Day bought the Wantagh Property for a sum of approximately $950,000 based on the knowledge that the property had previously been approved for cabaret permits and special exceptions. (Id. ¶ 54.) Plaintiffs paid a higher price for the Wantagh Property "because it came with a special exception for cabaret use, which runs with the land." (Id. ¶ 55.) On March 24, 2009, Green 2009 began to lease the Wantagh Property for $90,000 per year. (Id. ¶ 56.) Green 2009 based its decision to lease on the existing cabaret permit and intended to use the property to run a cabaret offering "non-adult expressive dancing, as well as other forms of entertainment." (Id. ¶¶ 56–57.)

The Wantagh Property is located in a business district and is near Sunrise Highway, "a [s]tate highway and one of the busiest roads on Long Island." (Id. ¶¶ 44–45.) Town Defendants characterize the area surrounding the Wantagh Property as "adjacent to[ ] a residential district and neighborhood[ ] that features many single family homes." (SAC Answer ¶ 440.) The Wantagh Property has thirteen parking spaces in a "narrow" parking lot. (Id. ¶ 441.) The BZO requires twenty-five spaces for a restaurant or cabaret unless a variance is granted. (Id. )

On or about May 8, 2009, Plaintiffs applied to the Department of Buildings for permission to "make certain alterations to the premises to improve [the Wantagh Property's] use as a cabaret while maintaining changes made by a prior owner." (SAC ¶ 59.) On February 9, 2010, the Department of Buildings denied the application and urged Plaintiffs to "obtain a special exception from the Board ... to use the premises for a place of public assembly and amusement." (Id. ¶ 63; SAC Answer ¶ 467.) Town Defendants allege that the Department of Buildings denied the applications because "the proposed use was significantly different from the use as a simple piano bar approved in 1969," because "Plaintiffs may not rely on the 1969 permit" pursuant to the 1997 code amendment and must apply for a new special exception, and because Plaintiffs "must ... obtain a variance from the [Board] from on-site parking requirements" for cabaret or restaurant use. (SAC Answer ¶ 467.)

Plaintiffs allege that other nearby businesses such as Anthony's Coal Fire Pizza, at the time "a brand new build-out and significantly larger" business, "were not required to obtain a Certificate of Occupancy," (SAC ¶ 60), and that the prior occupants of the Wantagh Property were not required to obtain a "special exception for a place of public assembly and amusement even though they featured rock bands performing on a stage," (id. ¶ 65).

1. The April of 2010 hearing and decision

Plaintiffs appealed to the Board the Department of Buildings’ decision denying permission to make alterations to the Wantagh Property to improve its use as a cabaret and urging them to apply for a special exception for place of public assembly and amusement. (Id. ¶ 67.) Defendants allege that the application (the "2010 Application") was dated October 12, 2009, but was received by the Department of Buildings on February 10, 2010. (SAC Answer ¶ 469.) In addition, Plaintiffs also applied, in the alternative, for a new special use permit and for a parking variance.⁹ (Id. )

9 The parties dispute Plaintiffs’ requests from the 2010 application. Plaintiffs argue that "like the 2016 Application, [it] was only for cabaret use ," (Pls.’ Opp'n 14 n.7), while Defendants argue that the 2010 Application was for cabaret use and restaurant use, (Town Defs.’ Mem. 7).

The Board held a public hearing on these matters on April 14, 2010 (the "April 2010 Hearing"). (SAC ¶ 67.) Dean testified at the hearing that he planned to use the Wantagh Property for a "variety of activities, [involving] interactive dinner theater, dancing, comedian[s], jugglers, contortionists, [and] sword swallowers," and that there would be "stage entertainment, live music and dancing." (Id. ) Defendants allege that Dean did not disclose whether minors would be admitted into the cabaret or whether the cabaret would be open to the general public. (SAC Answer ¶ 481.) A real estate expert testified that the Wantagh Property's cabaret opening would not adversely affect the neighborhood. (SAC ¶ 76.)

Dean also testified at the hearing about the Bellmore Property, on which he operates the Showtime Café, a "dancing and entertainment" business. (Id. ¶¶ 68–69.) Dean testified that the Showtime Café "features dancers who wear pasties and G-strings" but who do not remove their costumes while performing, do not strip, and "offer[ ] artistic — but not adult — dancing and entertainment." (Id. ¶ 69.) At the April 2010 Hearing, Dean also testified that the Showtime Café had been open for twelve years, and during that time the Town had always renewed its cabaret permit. (Id. ¶ 74.).

Town Defendants argue that, at the hearing, Dean was vague about what the use of the Wantagh Property would be but assured Defendants that it would not feature "adult entertainment," while simultaneously describing it as a "second location" of the Showtime Café, which Town Defendants assert is "advertised by ... Plaintiffs as Long Island's [n]umber [one] strip club." (SAC Answer ¶¶ 475–476, 478.)

On April 28, 2010, the Board granted Plaintiffs a temporary special use permit to operate a cabaret at the Wantagh Property subject to a number of conditions: The cabaret was prohibited from featuring "topless," "bottomless," or "nude entertainment." (SAC ¶ 77.) On June 2, 2010, the Town amended its decision and made the special use permit permanent, (id. ¶ 78), but informed Plaintiffs that if they failed to comply with any of the nine conditions enumerated in the decision, then the case could be re-opened, (id. ¶ 79). Town Defendants state that the Board also granted the parking variance. (SAC Answer ¶¶ 103, 149.)

After this decision, Plaintiffs "immediately began renovating the Wantagh [c]abaret." (SAC ¶ 80.) Plaintiffs "raised the height of the building's roof by [twenty-five] feet" and "spent a substantial sum of money on the renovations" in reliance on the Board's decision and permit issuance. (Id. ¶¶ 81–82.) During the renovations, the Wantagh Property was "designed ... to resemble an airplane hangar" and was built without windows, "which is customary [for] airplane hangars." (Id. ¶ 83.) Plaintiffs "passed all inspections conducted by the Town and other agencies" and obtained a liquor license from the New York State Liquor Authority. (Id. ¶¶ 84–85.)

2. The May 18, 2011 rehearing and August 25, 2011 decision

After the renovations to the Wantagh Property had begun but before they were complete, Plaintiffs posted an advertisement for a cabaret on the Wantagh Property on the website for the Showtime Café — the business on the Bellmore Property. (Id. ¶¶ 86, 116–117.) Town Defendants assert that the Showtime Café’s website proclaimed that the Bellmore Property was "Long Island's premier strip club," and that "Dean[’]s Entertainment has been providing Long Island with adult entertainment for years." (SAC Answer ¶ 499.) Plaintiffs maintain that there was no mention in the advertisement that promised "adult entertainment" at the Wantagh Property. (SAC ¶ 116.) The advertisement for the cabaret at the Wantagh Property said that Plaintiffs planned to open a "brand new entertainment concept featuring dinner and shows combining creative and unique acts found only at ... Dean[’]s brand new unnamed facility.... The new location will cater to anniversary, birthday, bachelorette and bachelor parties or groups of friends looking for a new twist for an exciting evening." (Id. ¶ 117.) Town Defendants assert that the advertisement was directly next to another advertisement for a " ‘Men of Color’ Male Dance Revue featur[ing] ... the sexiest black male exotic dancers on Long Island and in New York" and promising that strippers "are available at your location or ours for private parties." (SAC Answer ¶ 499.)

Before Plaintiffs completed renovations at the Wantagh Property, more than two hundred residents signed a petition to "Stop the Strip Club" and requested that the Town reject the already approved application for a special exception permit to operate the cabaret. (SAC ¶ 86.) In May of 2011, in response to "extreme community pressure," the Town "took the unprecedented action of unilaterally reopening the hearing relating to the grant of ... Plaintiffs’ [p]ermit." (Id. ¶ 87.) Murray, who was the Town Supervisor at the time, and Board member Angie Cullin sent a letter to Wantagh residents on Town letterhead "request[ing] that the Board ... reopen the case associated with approvals granted to Green 2009" and acknowledging that the request was in response to community pressure. (Id. ¶ 89 (emphasis omitted).) Town Defendants assert that the Board determined it had "misapprehended" the nature of Plaintiffs’ application because Dean "had not been fully candid as to his intended use ... and effectively misled the Board." (SAC Answer ¶¶ 501–502.) In addition, Town Defendants assert that the Board "had no authority — no jurisdiction — to grant a special exception for a cabaret that offers ‘adult’ entertainment as defined by the BZO ... located within [five hundred] feet of a residential district." (Id. ¶ 504.) The Board reopened its decisions on the Plaintiffs’ previous applications, pursuant to Town Law § 267-a(l2), vitiating its earlier April of 2010 approval of a temporary cabaret special use permit and its June of 2010 approval of Plaintiffs’ permanent cabaret special use permit and parking variance for a cabaret with a restaurant. (Id. ¶¶ 485, 488, 508–509.)

Nearly two hundred people attended the rehearing on May 18, 2011, where Dean gave further details about the type of entertainment he planned to offer at the Wantagh Property and insisted that "there would not be any adult entertainment." (SAC ¶ 106.) He described the entertainment to be offered as "similar to that of a Las Vegas style showroom," including performances by "dancers, aerial acts, jugglers, Brazilian shows, Hawaiian shows, knife throwers, Coney Island sideshows, as well as performances in the style of ‘America's Got Talent.’ " (Id. ¶ 107.) Town Defendants allege that Dean testified that minors would not be permitted in the proposed cabaret because of the nature of the proposed entertainment. (SAC Answer ¶ 517.)

Plaintiffs allege additional irregularities with the hearing: Murray presented "virtually unprecedented" testimony before Plaintiffs presented their case, (SAC ¶¶ 92–93), Councilman Hudes testified before Plaintiffs presented, (id. ¶ 94), and Deputy Town Attorney Charles Kovit, who represented the town and facilitated the meeting, "asked leading questions" and looked "beyond the face of the cabaret permit" to rely on a hearing transcript from 1969 for his testimony, (id. ¶¶ 98–104).

On August 25, 2011, in a one-page decision, the Board rescinded its previous approval of the special exception to operate the Wantagh Property as a cabaret. (Id. ¶ 108; SAC Answer ¶ 103.) Town Defendants allege that the Board also approved Plaintiff's application for a parking variance, but only for restaurant use. (SAC Answer ¶ 103.) On or about October 10, 2011, Plaintiffs challenged the Board's decision in an Article 78 proceeding pursuant to the New York Civil Practice Law and Rules. (SAC ¶ 111); see Green 2009, Inc. v. Weiss , 114 A.D.3d 788, 980 N.Y.S.2d 510, 511 (App. Div. 2014).

Approximately three months after the Board issued its decision regarding the Wantagh Property, the Board released findings of fact (the "2011 Findings") explaining the revocation of the Wantagh Property's cabaret permit. (SAC ¶ 112.) The 2011 Findings explained that the Board had rescinded the special exception for a cabaret permit because Plaintiffs had failed to prove that there would not be "adult entertainment" at the property, and adult entertainment was prohibited at that location. (Id. ¶ 114.) The 2011 Findings also indicated that the Board did not believe that Plaintiffs had been completely honest about the intended use of the premises at the April 2010 Hearing, citing the advertisement for the Wantagh Property's cabaret on the Showtime Café website. (Id. ¶¶ 117–118.) Defendants said the refusal was also based on Dean's "studied intent ... to be less than complete and candid in [his] description of [his] planned use and activities and of the nature of the so-called ‘Las Vegas style’ entertainment to be offered," adding that "Plaintiffs had not acted in good faith." (SAC Answer ¶ 545.) Defendants state that the Board did not have authority to authorize an "adult entertainment cabaret" at the Wantagh Property because it was immediately adjacent to a residential district. (Id. ¶ 547.)

The Board drew support for the 2011 Findings from the Wantagh Property's cabaret advertisement on the Showtime Café’s website, as well as from "Dean's strip club reputation, his original admission that ‘[t]his is [his] second location[,]’ the other being the strip club Showtime Café, ... and his utter and overt refusal to describe in detail the entertainment that he will actually offer in [the] Wantagh [Property]." (Id. ¶ 540 (first and second alterations in original).) The Board also stated that "the premises are not laid out in such a manner as to support a full[-]service restaurant and will not be entitled to a Certificate of Occupancy as so configured[,] ... observ[ing] notably, but without limitation, that there are no windows." (SAC ¶ 119.)

3. The restaurant permit denial

On or about August 1, 2012, after being denied a special exception permit to operate a cabaret at the Wantagh Property, Plaintiffs filed an application with the Town for a Certificate of Occupancy to operate the Wantagh Property as a restaurant only, with no live entertainment. (Id. ¶ 167; SAC Answer ¶ 585.) Within a business district, a restaurant is a "permitted use" under section 196 of the BZO. (SAC ¶ 169.) Plaintiffs believed they would be able to operate a restaurant on the Wantagh Property based "in large part" on the Board's August 25, 2011 decision to approve the variance for off-street parking at the Wantagh Property for restaurant use. (Id. ¶ 168.) In its 2011 Findings, the Board had written that "the premises are not laid out in such a manner as to support a full[-]service restaurant and will not be entitled to a Certificate of Occupancy as so configured.... [,] observ[ing] notably, but without limitation, that there are no windows." (Id. ¶ 119; SAC Answer ¶ 551.)

Plaintiffs believed they had completed "all required work" to obtain a building permit for a restaurant, including passing an inspection of the fire-extinguishing system by the Nassau County Fire Marshall and an electrical inspection by the Electrical Inspection Service, Inc., which found the Wantagh Property to be "in compliance with the Residential and Building Code of New York." (SAC ¶¶ 170–172.) Plaintiffs also received a letter dated January 6, 2012, from the New York State Department of Transportation indicating that the work at the Wantagh Property was "satisfactorily completed" and that the Department of Transportation had "no objection to the issuance of a Certificate of Occupancy" by the Town. (Id. ¶ 173.)

On August 17, 2012, a plan examiner representing the Department of Buildings informed Plaintiffs by telephone that the plans for the restaurant "had been approved and could be picked up." (Id. ¶ 174.) However, Plaintiffs allege that when they arrived at the Department of Buildings to pick up the plan, Town Defendants refused to deliver it. (Id. ¶ 175.) The file for the restaurant application at the Wantagh Property had been marked "approved" but the marking had been "crossed out" by the Department of Buildings’ Supervisor of Plan Examiners, "as directed by ... Kovit." (Id. ¶ 176.)

Plaintiffs received a letter from the Board on or around September 12, 2012, indicating that Plaintiffs would have to "go before the Board to obtain approval" to operate the Wantagh Property as a restaurant, despite Plaintiffs’ belief that they could operate a restaurant at the Wantagh Property "as of right" in that district pursuant to section 196 of the BZO.¹⁰ ( Id. ¶ 178.) On or about December 4, 2012, an attorney for Plaintiffs asked Town Defendants by letter why Plaintiffs had not yet received a Certificate of Occupancy for the Wantagh Property. (Id. ¶ 180.) Plaintiffs’ lawyer sent a follow-up letter making the same inquiry on or about August 16, 2013, but Plaintiffs did not receive a response. (Id. ¶¶ 181–182.)

10 Town Defendants dispute the content of the letter referenced by Plaintiffs, noting that Plaintiffs were not required to go before the Board to get approval to use the property as a restaurant. (SAC Answer ¶ 158.)

After Plaintiffs sent another inquiry, a plan examiner responded on or about February 6, 2014, stating that the file for their application to open a restaurant on the Wantagh Property was "missing" from both the Board and the Department of Buildings, and that earlier notations about the file, "including the initial approval[,] had been deleted from the file in the Town's computer system." (Id. ¶ 183.) The file "mysteriously surfaced" in 2016 during discovery, but no explanation was offered regarding its whereabouts from 2014 to 2016. (Id. ¶¶ 185–187.) Town Defendants concede that the file pertaining to the application for a building permit and Certificate of Occupancy for restaurant use was missing. (SAC Answer ¶ 162.) However, the Town Defendants allege that Plaintiffs’ "counsel was notified immediately, [and] with his assistance and documents, the entire file was re-created, and counsel prepared and submitted a duplicate original building permit application," resulting in "no impact on the then[-]pending review of the application." (Id. ) Plaintiffs allege that Town Defendants "never explained where this critical missing file was over a three[-]year period of time." (SAC ¶ 186.)

At the recommendation of the Town's plan examiner, Plaintiffs filed a second, "duplicate" restaurant-use application for the Wantagh Property on or about February 10, 2014. (Id. ¶ 184.) On or about February 20, 2014, the restaurant-use application was approved and the file indicated that a new Certificate of Occupancy was required for "restaurant use only" while denoting "no cabaret permitted." (Id. ¶ 187.) Town Defendants allege that this was a "provisional" approval of a building permit application — not a restaurant use application — and that the approval was made by a plan examiner "unaware of the earlier controlling determination of the [Board]" that windows were needed. (SAC Answer ¶ 591.) The file was then sent to the Board on or about February 27, 2014, for administrative review because of the Board's "earlier controlling determination" about the layout of the property and the need to submit revised building plans that added windows. (Id. ¶ 593; SAC ¶ 189.) According to Town Defendants, the referral was accompanied by the withdrawal of the earlier approval of the building permits. (SAC Answer ¶ 593.) The Board had not yet taken any action on the file as of August 20, 2014, when Plaintiffs filed this federal lawsuit against the Town and were unable to use the Wantagh Property as a restaurant. (SAC ¶ 190.)

On September 17, 2014, the Board issued a resolution recommending the denial of the application to operate a restaurant on the Wantagh Property, stating that:

(a) as this issue has once been before this Board the current request for a [b]uilding [p]ermit and Certificate of Occupancy is barred by administrative res judicata, and (b) as [Plaintiffs] ha[ve] not submitted revised building plans for the proposed restaurant use to meet the conditions and to alleviate the concerns expressed by the this [sic] Board, the request for a [b]uilding [p]ermit and Certificate of Occupancy for a restaurant use of the [Wantagh Property] is

referred back to the [Department of Buildings] with the recommendation of this Board that it be denied.

(Id. ¶ 192.) Plaintiffs allege that neither they nor their attorneys were notified of this recommendation and that they only learned of it on October 23, 2014, when it was submitted to the Court as an exhibit to an Answer.¹¹ (Id. ¶ 193.) Town Defendants allege that the Department of Buildings notified Plaintiffs of this resolution and of their need to submit revised building plans on September 18, 2014. (SAC Answer ¶ 597.) Plaintiffs did not appeal the decision or begin an Article 78 proceeding on the matter. (Id. ¶ 598.)

11 The SAC asserts that the Wantagh Property passed many inspections and that the Town conspired to keep it from opening as a restaurant. (SAC ¶¶ 194–195.) Plaintiffs do not state what happened to the application or whether they ever got final approval from the Department of Buildings.

4. The later-discovered zoning code violation

Plaintiffs allege that for forty years prior, a large sign at the Wantagh Property encroached "well into the required setback." (SAC ¶ 238.) On June 24, 2015, the issue was first raised during the deposition of the Town's Chief Plan Examiner Louis Carnovale. (Id. ¶ 241.) The Town's Supervisor of Inspection Services instructed Plaintiffs that they had to remove the sign to obtain their Certificate of Occupancy. (Id. ¶ 238.) However, "[m]any other properties located on Sunrise Highway in the vicinity of the Wantagh Property also have significant encroachments into the zoning setback without having to obtain variances," and during the "more than [thirty] inspections of the Wantagh Property[,] no one ever raised a claim that the building's portico extends less than two and a half feet into the setback." (Id. ¶¶ 239–240.)

Town Defendants state that while the plan examiner reviewing the supplement to the building plans "overlooked the fact that the reconstruction moved the front wall forward — and with it the front portico over to the east and forward — so as to encroach into the [ten-foot] zoning [setback]," such violation should have "been obvious" to the Plaintiffs’ architect. (SAC Answer ¶ 203.) Carnovale therefore did not review the document and identify the encroachment and zoning code violation until the deposition in June of 2015 because he was not required to sign off on the plan examiner's work. (Id. )

5. The Town's adoption of section 302(Q)

Plaintiffs assert that they were allowed to operate a restaurant on the Wantagh Property as of right because of its location in a business district. (SAC ¶ 203.) However, Defendants contend that the Wantagh Property was not authorized to operate as a restaurant because, inter alia , it lacked windows on any exterior walls. (Id. ¶ 204.) When Judge John Gleeson¹² heard oral arguments on Defendants’ motion to dismiss on December 11, 2015, he asked Defendants, "from whence does that requirement of [the] windows come? ... [W]hat do windows have to do with health and safety?" (Id. ¶¶ 205–206 (quoting Tr. of Proceedings before Judge Gleeson, dated Dec. 11, 2015 ("2015 Tr.") 9, Docket Entry No. 66).) Plaintiffs allege that in response, Defendants’ counsel "identified no public safety or health basis for the windows requirement" but claimed that the requirement originated with the Board and "has to do with whether [the Wantagh Property] is actually [to be used as] a restaurant or whether it's ... to be [used as] something else." (Id. ¶¶ 207–208 (quoting 2015 Tr. 12).) According to Plaintiffs, Defendants’ counsel held a series of meetings with various local officials and attorneys on January 12 and 13, 2016, to further a conspiracy against Plaintiffs, and at the January 12, 2016 meeting, Defendants’ attorney discussed the "need to amend ordinances" in the Town. (Id. ¶¶ 209–210.) Defendants subsequently "drafted a resolution to require all new restaurants in the Town that do not have Certificates of Occupancy to have windows," along with a separate resolution to give preference to "applications that impact constitutionally protected free expression" in order to amend the BZO. (Id. ¶¶ 211, 213.) At the next meeting of the Town Board¹³ on January 26, 2016, the Town Board scheduled a February 9, 2016 public hearing to discuss the draft resolutions. (Id. ¶ 213.)

12 On March 11, 2016, the case was reassigned from Judge Gleeson to the undersigned.

13 The Town Board oversees government policy and law, (see SAC Answer ¶ 341 nn.59–60) (first citing Commco, Inc. v. Amelkin , 62 N.Y.2d 260, 476 N.Y.S.2d 775, 465 N.E.2d 314 (1984) ; and then citing Emmett v. Town of Edmeston , 2 N.Y.3d 817, 781 N.Y.S.2d 260, 814 N.E.2d 430 (2004) ), while the Board of Appeals holds public hearings, reviews actions taken by the Department of Buildings, and renders decisions on permit applications, (id. ¶ 340 (citing Commco, Inc. , 62 N.Y.2d at 260, 476 N.Y.S.2d 775, 465 N.E.2d 314 )).

On February 9, 2016, the Town Board enacted new legislation requiring windows on the exterior walls of some restaurants despite Plaintiffs’ objections. (Id. ¶¶ 215–216.) The legislation was enshrined in an amendment to section 302 of Article XXXI of the BZO, which created subsection 302(Q). (Id. ¶ 216.) Section 302(Q), as enacted on that day, states in part, that no restaurant can be built or operated "unless each exterior wall of the building shall have a window or windows, to the extent that windows shall occupy not less than [twenty] percent of the surface area of each wall," and it indicated that the requirement applied to "all buildings to be constructed after the effective date hereof, and to any existing building which does not have a [C]ertificate of [O]ccupancy for restaurant use on the effective date hereof." (SAC ¶ 217.)

Plaintiffs allege that the amendment was enacted "without any legislative history or consultation with the restaurant industry," and that it was "tailored specifically to impose extremely costly and onerous burdens on ... Plaintiffs."¹⁴ (Id. ¶ 218.) Plaintiffs assert that the original version of section 302(Q) also "caused substantial problems for other restaurant owners in the Town" and, as a result, was amended on May 10, 2016. (Id. ¶¶ 231–232.) The amended section 302(Q) reduced the required percentage of surface areas that windows had to cover to fifteen percent, down from twenty percent, and provided exceptions for exterior walls adjacent to bathrooms. (Id. ¶¶ 232–233.) Despite those changes, Plaintiffs allege that section 302(Q) "still prevents ... Plaintiffs from operating a restaurant at the Wantagh Property even though such a use is otherwise permissible as of right at that location." (Id. ¶ 234.)

14 On January 13, 2016, the parties attended a settlement meeting, (SAC ¶ 228), and on February 8, 2016, the parties participated in a deposition, (id. ¶ 229). Plaintiffs allege that on both occasions, "no one from the Town or its counsel disclosed to the [them] that the Town was in the process of enacting a law requiring restaurant facilities to have windows on every external wall." (Id. ¶ 228.)

6. The Town's adoption of the preference resolution

The Town Board on February 9, 2016, added a new section to section 272.1 of Article XXVII of the BZO ("the Preference Resolution"), which states that the Town must give preference to certain applications before the Board and Departments of Buildings, Highways, and Engineering. (Id. ¶¶ 375–376.) Specifically, the resolution states that:

[a]ny application which the applicant asserts to impact constitutionally protected freedom of expression shall have a preference over all other cases before the Board ... in its review and scheduling of a public hearing, and the Department of Buildings, Department of Highways and Department of Engineering shall expedite all their ancillary functions with respect thereto, both prior to and after presentation to the Board .... The Board shall render its decision on a completed application in no more than [fifteen] days after the hearing record is closed, or at the next hearing scheduled, whichever time is shorter (or at such other time as the applicant and Board may agree to).

(Id. ¶ 376 (first alteration in original).)

Plaintiffs allege that despite the Preference Resolution, Defendants have not given preference to their applications, including that related to the cabaret at the Bellmore Property.¹⁵ (Id. ¶¶ 379–380.) To the contrary, when Plaintiffs sought expedited review of their applications under the Preference Resolution, they allege that Carnovale told them he had been instructed by Defendants’ counsel, Peter Sullivan, "that the preference only applies in consideration of similar types of applications and establishments." (Id. ¶ 381.) Plaintiffs ascribe this as a "defiance of the language" of the resolution. (Id. )

15 In Plaintiffs’ earlier action, commenced in August of 2015, the fifth stated cause of action was an allegation that "the Town Code's failure to require the Board and [Department of Buildings] to timely act on pending applications deprives the Plaintiffs of their constitutional rights." (Id. ¶ 373.) Plaintiffs allege they had included that cause of action mainly due to Defendants’ failure to act on Plaintiffs’ applications over a period of years. (Id. ¶ 374.) After the resolution was passed and in reliance on it, Plaintiffs removed the fifth cause of action from their amended complaint. (Id. ¶ 378.)

7. Plaintiffs’ latest applications

On or about June 24, 2016, Plaintiffs submitted several applications to the Town Board for a special exception for cabaret use and related variances (the "2016 Application"). (Id. ¶¶ 246–247.) Plaintiffs sought:

(1) a special exception to use the premises for a place of public assembly and amusement (cabaret permit); (2) a variance in off-street parking; (3) a variance to maintain the portico attached to the building that extends slightly into the front setback; (4) an appeal from the [Department of Buildings’] determination that a new special exception approval is required to operate a cabaret; (5) an appeal from the [Department of Buildings’] determination that a new parking variance approval is required to operate a cabaret; and (6) to maintain a fence required by the Town's [Department of Buildings].

(Id. ¶ 247.)

On October 13, 2016, a public hearing was held for Plaintiffs’ applications (the "2016 Hearing"). (Id. ¶ 248.) At the hearing, Plaintiffs presented "extensive evidence," "voluminous records," and "expert[ ] reports" in support of their applications, (id. ¶¶ 249–250, 261–262): An "acclaimed magician" and a professional knife thrower "testified about types of non-adult entertainment to be presented at the Wantagh [c]abaret," (id. ¶ 251), and a real estate expert testified that "a cabaret at the Wantagh Property will not alter or change the essential character of the neighborhood or change or depreciate property values," (id. ¶¶ 254, 257). In addition, an expert in "traffic and parking" testified that, based on an "extensive study, ... there is ample parking in the two municipal parking lots located across the street from the Wantagh Property" or on the adjacent highway; that Plaintiffs’ use of the Wantagh Property would "not result in adverse traffic impacts"; and that any likely impact "would be less than those resulting from uses permitted in the Town's Business Zoning District without the requirement of a special exception approval." (Id. ¶¶ 260–262.) Plaintiffs further detailed that, based on the "traffic and parking" expert's report, "the parking availability being considered in connection with [Plaintiffs’ request] for an off-street parking variance [was] identical to the parking availability previously considered by the [Board] — and found to be acceptable — when the Board granted the Plaintiffs’ off-street parking variances back in 2009 and again for a restaurant in 2010." (Id. ¶ 261.)

Finally, Dean testified "at length about ... the types of entertainment to be offered at the Wantagh [c]abaret and how he did extensive renovations of his building based upon the approvals he received from the Town ... in 2009." (Id. ¶ 252.) Plaintiffs further contend that:

[W]hen [Dean] testified before the Board ... back in 2009[,] he had no intention to offer the type of entertainment offered at his Bellmore cabaret in Wantagh. However, after spending millions of dollars on the Wantagh [P]roperty, construction and litigation, he is not precluding himself from offering any form of lawful entertainment in Wantagh, including Bellmore Entertainment, which has been found to fully comply with all laws and rules.

(Id. ¶ 253.) Rhoads of the Nassau County legislature spoke on behalf of the opponents to Plaintiffs’ application. (Id. ¶ 264.) A different real estate expert and traffic expert, both of whom Plaintiffs allege provided unqualified statements, testified against the Plaintiffs, (id. ¶¶ 264, 266), noting that Plaintiffs’ use of the Wantagh Property had contributed to an increase in traffic accidents in the adjacent intersection, (SAC Answer ¶ 618). Many community residents, as well as "concerned citizens, attorneys and others," also testified either for or against ... Plaintiffs, (SAC ¶ 267), including a resident of North Bellmore who lives adjacent to the Showtime Café and who explained that she had "never observed any incidents of problems involving the ... Bellmore Cabaret" and that she felt safe living in the area, (id. ¶ 268), and neighbors who testified that "the protruding portico is very dangerous when leaving their neighborhood ... [because it] partially blocks the view of oncoming traffic," (SAC Answer ¶ 621).

The Board's chairman, Weiss, stated more than once during the proceedings that the hearing would be closed "at the end of [that] day." (SAC ¶¶ 270–272.) However, Plaintiffs learned a few days later, on October 17, 2016, that the public could continue making submissions related to the case until the next Board meeting on October 19, 2016. (Id. ¶¶ 274–275, 278.) Defendants assert that at the October 19 Board meeting, "Plaintiffs and the public were given the opportunity to review the e-mail submissions received from the public." (SAC Answer ¶ 623.)

Plaintiffs objected to the undisclosed extended period for public submissions, partly because it limited their ability to supplement the record, (SAC ¶ 282), and delayed their application's decision, (id. ¶ 278). According to BZO § 272.1, the Board "shall render its decision on a completed application in no more than [fifteen] days after the hearing record is closed, or at the next hearing, whichever time is shorter." (Id. ¶ 277.) As such, Plaintiffs assumed that they would be provided a decision at the next Board meeting on October 19, 2016, but instead, they had to wait until November 2, 2016, for a decision. (Id. ¶ 278.) Consequently, Plaintiffs describe the proceedings as "fundamentally unfair and [with] a clear appearance of impropriety." (Id. ¶ 283.)

On November 2, 2016, the Board unanimously denied all permits and relief sought by Plaintiffs, with conditional approval that Plaintiffs could maintain a fence on the property. (Id. ¶ 284.) As such, Plaintiffs "obtained a final decision from the Town as to each of the permits and variances at issue regarding the Wantagh Property," (id. ¶ 290), which they assert makes their claim "ripe for federal review," (id. ¶ 291). Although the summary denials did not contain findings of fact or law, (id. ¶ 284), the Board filed those denials with the Town Clerk on December 28, 2016, (id. ¶ 295). On February 14, 2017, the Board issued findings of fact. (SAC Answer ¶ 627.)

8. Article 78 proceedings

Plaintiffs have commenced two separate Article 78 proceedings relating to the Wantagh Property permit applications. The first proceeding addressed the 2011 revocation of the Wantagh Property's cabaret permit, and the second proceeding (currently pending) challenges the Board's 2016 denial of Plaintiffs’ permits and variances.

The first proceeding was commenced on or about October 10, 2011 (the "2011 Article 78 Proceeding"). (SAC ¶ 111.) Plaintiffs filed a petition in the New York Supreme Court, Nassau County, pursuant to Article 78 of the New York Civil Practice Law and Rules, challenging the Board's decision to revoke the cabaret permit for the Wantagh Property. (Id. ) Plaintiffs contend that the "prejudic[ial]" 2011 Findings, (id. ¶ 120), drafted, "at least in large part, by the Town's outside counsel," (id. ¶ 113), "indicated that ... Plaintiffs failed to establish that the business would not present adult entertainment, which would be a prohibited use in the location," (id. ¶ 114). Plaintiffs allege that Defendants’ speculation was based on the mistaken belief that the Showtime Café "features striptease dancing," (id. ¶ 115), and Plaintiffs’ advertisement for the Wantagh Property's cabaret on the Showtime Café website, (id. ¶ 116).

On May 14, 2012, the New York Supreme Court, Nassau County, affirmed the Board's decision to revoke the Wantagh Property's cabaret permit, and on February 13, 2014, the New York Appellate Division, affirmed the lower court's ruling. (Id. ¶¶ 126–127); see also Green 2009 Inc. , 980 N.Y.S.2d at 510. The New York Court of Appeals denied leave to appeal. (SAC ¶ 128); see also Green 2009, Inc. v. Weiss , 23 N.Y.3d 903, 988 N.Y.S.2d 130, 11 N.E.3d 204 (2014).

The second proceeding was commenced on January 19, 2017 (the "2017 Article 78 Proceeding"). (SAC ¶ 295.) Plaintiffs, operating out of "an abundance of caution and to avoid Defendants claiming that any state review is time barred," filed an Article 78 Petition relating to the Board's decision to deny their permits and variances. (Id. ) The New York Supreme Court, Nassau County, stayed the 2017 Article 78 Proceeding pending resolution of this action. (See Supreme Ct. of New York Nassau County Decision and Order dated May 8, 2017 ("State Court Stay Order") 6–7, annexed to Letter Notifying Ct. of Recent Relevant Authority dated May 19, 2017, Docket Entry No. 170-1.)

iv. The Bellmore Property

1. The cabaret permit

For the past eighteen years, Plaintiffs have operated another business in the Town, a cabaret called the Showtime Café. (SAC ¶ 297.) Since 1998, Plaintiffs have operated the cabaret located at the Bellmore Property¹⁶ under an existing special permit. (Id. ¶ 298.) The permit mandates that Plaintiffs cannot offer entertainment at the property that involves costumes that are "bottomless," "topless," or "see-through." (Id. ) The 1998 permit, which was valid for five years, was renewed in 2003 and again in 2007, making it valid through March 28, 2012. (Id. ¶¶ 298–300.) In order to stay within the requirements of the cabaret permit, "[t]he dancers at Showtime Café cover their breasts with pasties and wear G-strings" while they perform "expressive, artistic non-adult dances for patrons" that do not involve stripping or the removal of clothing. (Id. ¶¶ 301–302.)

16 The Bellmore Property was previously owned and operated as a cabaret by nonparty Paan Pab, Inc. (SAC Answer ¶¶ 366–368.) In 1992, Paan Pab, Inc., was given a temporary cabaret permit and parking variance, which was renewed in 1994, 1995, and 1997. (Id. ¶¶ 370–374.)

Since 2003, the Department of Buildings has regularly inspected the Bellmore Property and found it to be in full compliance with "the conditions required for its permits." (Id. ¶¶ 303–304.)

Shortly before Plaintiffs’ cabaret permit expired in March of 2012, Murray sent a letter to North Bellmore residents dated March 27, 2012, informing them that Plaintiffs were seeking to renew their cabaret permit for the Bellmore Property and providing the date and time of a scheduled hearing on the matter. (Id. ¶ 305.) The letter indicated that some people had "expressed concern" that Plaintiffs were not complying with the terms of their permit and had speculated that illicit activities might be taking place at the Bellmore Property, but it noted that "[u]ndercover investigations by town [Department of Buildings] inspectors and independent investigations by law enforcement agencies have not uncovered violations of the law." (Id. ¶¶ 306–307 (first alteration in original).)

On May 23, 2012, the Board held a public hearing and discussed Plaintiffs’ application to renew their permits to operate the Bellmore Property as a cabaret and a place of public assembly and to renew their off-site parking variance. (Id. ¶ 308.) Citing a "highly publicized community uproar" against Plaintiffs’ efforts to open the Wantagh Property, Plaintiffs allege that they faced resistance getting renewals of their permits for the Bellmore Property for the first time. (Id. ¶ 309.) Approximately twenty-five people from Bellmore came to the hearing in support of Plaintiffs, "while nine [residents] — mostly from Wantagh" came to oppose Plaintiffs. (Id. ¶ 310.) Murray, through a representative, also requested that the Board deny Plaintiffs’ renewal application. (Id. ¶ 311.)

According to Plaintiffs, the Board "refused to act on the Plaintiffs’ pending application to renew the permit for the Bellmore Cabaret or for a variance for off-street parking" and still had not acted as of the filing of the SAC. (Id. ¶ 313.) Defendants deny this allegation, "noting that after the hearing, the Board discovered that there were multiple code violations in the [Bellmore Property] that ... Plaintiffs had not disclosed[,] ... [and that] the [b]uilding [p]ermit for the renovation of the premises (and for which a Certificate of Completion had never been issued) had been revoked for failure to cure an illegal use and occupation of the low[-]ceilinged basement, [which] ... Plaintiff[s] had ... for years ... not resolved." (SAC Answer ¶ 242.) Further, Defendants assert that the Board delayed in deciding Plaintiffs’ renewal application because they awaited the outcome from the Wantagh Property litigation, which was not resolved until May of 2014. (Town Defs.’ Mot. 5.) Plaintiffs did not commence a writ of mandamus proceeding for the Board to make a decision on the renewal application. (SAC Answer ¶ 243.) 2. The public assembly permit

Plaintiffs have renewed the public assembly permit for the Bellmore Property with the Town's Department of Buildings annually since they began operating the Showtime Café. (SAC ¶ 315.) On or about September 2, 2011, the public assembly permit expired, and at 12:05 AM on September 3, 2011, police officers from the Nassau County Police Department arrived at the Bellmore Property in response to a Wantagh resident's complaint that the Showtime Café was being operated without the proper permit. (Id. ¶¶ 316–317.) The officers "threatened to issue criminal summonses" to Plaintiffs if they did not close the Showtime Café, which led Plaintiffs to close the establishment the night of "a busy holiday weekend." (Id. ¶¶ 317–318.) Plaintiffs were "ultimately ... allowed to reopen and continue to operate," and the Town "eventually renewed the [p]ublic [a]ssembly permit" for the Bellmore Property.¹⁷ (Id. ¶¶ 318–319.)

17 Plaintiffs cite "a pattern of harassment by the Town in the operation of the Showtime Café," including when Plaintiffs received a ticket on May 15, 2010, related to a locked gate that obstructed an egress from the basement when the gate actually belonged to the landlord, not Plaintiffs. (SAC ¶ 390.) The landlord replaced the gate at issue on June 14, 2010, and Plaintiffs attended court to show that the violation had been cured on June 24, 2010, but were required to go to court eighteen more times before "that violation, and others, could be resolved." (Id. ¶ 391.)

On September 2, 2012, the permit expired again and the Department of Buildings declined to renew the public assembly permit "even though the Bellmore Cabaret passed all inspections" and the Department of Buildings had deemed the first floor "OK FOR USE" in late August of that year. (Id. ¶¶ 320–321.) On June 17, 2013, after the Bellmore Property passed another inspection by the Department of Buildings, Plaintiffs were notified that they "may appear at [the] office to obtain [a] Public Assembly License," but the Town still declined to renew the public assembly permit that year — and again, refused to do so in 2014. (Id. ¶¶ 323–325.)

Plaintiffs assert that they learned during the course of the federal litigation that the Town had not approved the public assembly permit for the Bellmore Property because the cabaret permit was pending and, in turn, that the cabaret permit could not be approved because the Bellmore Property had an outstanding building permit application, which related to the low ceiling height of its basement. (Id. ¶¶ 327–329.) Plaintiffs had applied to the New York State Department of State for a variance that would allow them to offer additional entertainment in the basement of the Bellmore Property despite its low ceiling.¹⁸ (Id. ¶¶ 329–330.) Plaintiffs assert that they also learned during the discovery phase of the federal litigation that Raymond Schwarz, a representative of the Department of Buildings, had sent a letter to New York State on the Town's behalf urging the state to reject the application for a variance at the Bellmore Property because of "suspicions and allegations that the space is being used as a ‘VIP’ lounge." (Id. ¶ 330.)

18 By letter dated November 9, 2009, Plaintiffs’ building permit was revoked due to the basement's seven-foot ceiling that violated the New York State Uniform Fire Prevention and Building Code (the "Building Code"). (SAC Answer ¶¶ 388–391.) Plaintiffs sought to legalize the basement in 2009 and again in 2010, thus requiring their application for a state variance. (Id. )

On March 21, 2016, the parties attended a pre-application meeting at Hempstead Town Hall where they discussed "the procedure regarding the renewal process for North Bellmore." (Id. ¶¶ 332–335.) At that meeting, Carnovale indicated that the Department of Buildings could not issue a Certificate of Completion for the Bellmore Property until after the Board issued a decision on the pending special permit application, (id. ¶ 335), and Schwarz indicated that the Department of Buildings could not issue an alteration permit until after the Board issued the same decision, (id. ¶ 336). Following the meeting, Plaintiffs "filed all of the documents and records sought by ... Defendants," (id. ¶ 337), and were nevertheless met with resistance, (id. ¶ 338). For example, Plaintiffs allege that Carnovale first made written objections to which Plaintiffs submitted corrected plans, then he made new objections that he had not brought up when reviewing the previous plans, (id. ¶¶ 338–339), and yet, Plaintiffs met with him again on September 7, 2016, (id. ¶ 340).

On October 27, 2016, the Department of Buildings sent a notice to the former owner of the Bellmore Property, Mark Siegel, informing him that the building permit Plaintiffs requested had been approved. (Id. ¶ 341.) Despite forwarding earlier correspondences about the permit to Plaintiffs’ counsel and not to Siegel, (id. ¶ 342), the notice was sent to Siegel's independent address, (id. ¶ 343). Accordingly, Plaintiffs allege that the Department of Buildings never notified them that they had been granted the building permit for the Bellmore Property. (Id. ) Instead, on December 1, 2016, Plaintiffs learned of the approval when Defendants’ counsel submitted a letter (the "Letter from Defendants’ Counsel") to Magistrate Judge Steven M. Gold claiming that Plaintiffs had been notified to "come in, pay the required fees, and to pick up their permit to start the corrective work." (Id. ¶ 344.) The Letter from Defendants’ Counsel asserted that upon completion of the corrective work, there would be an inspection, and "if all is in order, and the required fees are paid, a ‘Certificate of Completion’ will issue.... The [Board] will then revisit the Plaintiffs’ open 2012 applications for renewal of a variance and special use permit for the Bellmore [Property]." (Id. ¶ 345.)

On October 31, 2016, Plaintiffs’ counsel sent a letter to the Board providing the requested information with regard to the Bellmore Property applications and requesting that the Board render a decision. (Id. ¶ 346.) On December 7, 2016, after receiving no response, Plaintiffs’ counsel sent a second letter, (id. ¶¶ 346–347), and on January 9, 2017, again receiving no response, Plaintiffs’ counsel sent a third letter, which informed the Board that the Letter from Defendants’ Counsel to the Court contained erroneous information, (id. ¶ 348). According to the third letter Plaintiffs’ counsel sent to the Board, Plaintiffs’ submitted plans depicted changes that Plaintiffs sought to make to the Bellmore Property "in conjunction with the cabaret use," and those plans had been marked "approved" by Carnovale in compliance with the Town's building code. (Id. ¶ 349.) The third letter informed the Board that in order for Plaintiffs to begin work on the Bellmore Property, the permit for cabaret use had to be approved so that the Department of Buildings could legally authorize the building plans and issue a building permit. (Id. ) Once Plaintiffs received a building permit, they would then be able to complete the required repairs. (Id. ) The third letter asserted that an approval from the Board "authorizes issuance of the appropriate [b]uilding [p]ermit and ensuing work pursuant to the permit" and that "[t]here is no logical reason or legal basis for a different position to be taken in this case." (Id. ¶ 351.) The third letter further argued that, practically speaking, "no applicant would pay permit fees and expend costs on construction in the hope that an approval will then be issued by the Board after all such work is completed." (Id. ) Finally, Plaintiffs’ counsel asserted that he had never seen the Board take the position they were taking against Plaintiffs in his nearly thirty years of professional experience, (id. ¶ 350), and he then requested a "prompt response" to the third letter, (id. ¶ 352).

On January 26, 2017 — the same day as the deadline for the submission of Plaintiffs’ SAC — Defendants mailed a response to the letter. (Id. ¶ 353.) The Letter from Defendants’ Counsel stated that when faced with an " ‘application for a renewal where there has been discovered un-permitted renovations,’ the [Board] ‘will not render a decision ([i]ndeed, not hold a hearing) until the [c]ode violations are cured.’ " (Id. ¶ 354.) The Town's counsel stated that the work that the Department of Buildings required Plaintiffs to complete at the Bellmore Property was "to cure fundamental building code violations no matter what the intended use." (Id. ¶ 365 (emphasis omitted).) However, Plaintiffs argue that the work was unrelated to public safety, (id. ¶ 364), and "much of the work demanded ... — including, for example, the installation of handicap[-]accessible space in the performance area — would not be necessary ... [at] a retail store," (id. ¶¶ 365–366). As such, "Plaintiffs have not paid the required fee, picked up the building permit, or commenced the required renovations to cure the code violations." (SAC Answer ¶ 261.)

Plaintiffs assert that the Board's decision to hold a hearing on the renewal of the cabaret permit for the Bellmore Property on May 23, 2012, directly contradicts Defendants’ claim that a hearing is precluded when there are code violations. (SAC ¶ 355.) Plaintiffs argue that the Letter from Defendants’ Counsel indicates that, as of 2009, the Town's building inspectors knew about the code violations in the basement of the Bellmore Property, including the unapproved walls and the low ceiling, and that the Town was aware that Plaintiffs had applied to "legalize the renovations in the basement." (Id. ¶¶ 356–357.) In support, Plaintiffs assert that the Town was aware that Plaintiffs had applied for a variance with the New York State Department of State to allow Plaintiffs to use the basement as a place of public assembly despite its low ceilings, as evidenced by Schwarz's letter to the Department of State, which opposed Plaintiffs’ variance application, (id. ¶¶ 357–358), and that the Board is "fully capable of holding hearings and entertaining applications for special exceptions even where renovations allegedly need to be conducted," (id. ¶ 359). As such, Plaintiffs conclude that it is the Town's practice to renew special permits on the condition that the applicant completes certain work on the property. (Id. ¶ 363.) For example, in both 2003 and 2007, hearings were held on renewing the special permit and off-site parking variance for the Bellmore Property, despite Plaintiffs’ open permit applications with the Department of Buildings for proposed alterations to the basement. (Id. ¶ 360.)

Defendants argue that, to the contrary, "the Board scheduled the public hearing for the renewal application based on the false certification from a code enforcement officer that there were no code violations," (SAC Answer ¶ 262), because "it is the established rational policy of the [Board] not to schedule a hearing on a renewal of a [special permit] when the Board is aware that there are open and unresolved building and/or zoning code violations; [and] the Board was not aware of violations in 2003 and 2007," (id. ¶ 263).

Plaintiffs allege that although the Board had the opportunity to issue final decisions on Plaintiffs’ pending applications related to the Bellmore Property at no less than six separate hearing dates, (SAC ¶ 382), the Board had still not issued a final decision at the time Plaintiffs filed the SAC, (id. ¶ 383). Plaintiffs maintain that any additional attempts to "exhaust their administrative remedies" on the applications for permits would be futile. (Id. ¶¶ 385–386.) Defendants assert that a final determination is pending, at least in part, due to Plaintiffs’ failure to cure. (SAC Answer ¶¶ 423–424.)

Irrespective of the pending permits, "in deference to their First Amendment rights," (id. ¶ 274), Defendants have allowed Plaintiffs to operate the Showtime Café at the Bellmore Property, (SAC ¶ 388). Plaintiffs argue otherwise and state that they live in "constant fear and apprehension" that they may be shut down or criminally charged. (Id. ¶¶ 387–389.) Plaintiffs also assert that the lack of permits would make it difficult for them to sell the Showtime Café if they wished to do so. (Id. ¶ 389.)

b. Procedural background

On August 20, 2014, Plaintiffs commenced this federal action. (Compl.) On September 24, 2015, Defendants moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure asserting, inter alia , lack of subject matter jurisdiction, issue and claim preclusion, and lack of selective enforcement. (Defs.’ Mot. for J. on the Pleadings, Docket Entry No. 43.)

By Memorandum and Order dated February 18, 2016, Judge Gleeson granted in part and denied in part Defendants’ motion. (Mem. and Order dated Feb. 18, 2016 ("2016 Order"), Docket Entry No. 65.) Citing Williamson County Regional Planning Commission v. Hamilton Bank , 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985),¹⁹ Judge Gleeson found that Plaintiffs’ "as-applied challenges brought under the First, Fifth, and Fourteenth Amendments — relating to both the Wantagh and the Bellmore Properties — [we]re not ripe because ... [P]laintiffs ... failed to obtain a final decision from the Town."²⁰ (Id. at 26–27.) However, Judge Gleeson declined to dismiss Plaintiffs’ facial constitutional claims because they were not fully briefed. (Id. at 45.)

19 In Williamson , the Supreme Court held that a takings dispute is not ripe unless (1) the state regulatory entity has rendered a "final decision regarding the application of the regulations to the property at issue," and (2) the plaintiff has sought compensation by means of available state proceedings. Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank , 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

20 Judge Gleeson also concluded that these claims were not subject to the futility exception of the "final decision" requirement. (2016 Order 44–45.)

On March 17, 2016, Plaintiffs filed a motion for reconsideration of the dismissal of the as-applied claims. (See Pls.’ Mot. for Recons., Docket Entry No. 71; Pls.’ Mem. in Supp. of Pls.’ Mot. for Recons., Docket Entry No. 71-1.) On July 20, 2016, the Court denied Plaintiffs’ motion for reconsideration and granted Plaintiffs permission to file an amended complaint. (Min. Order dated July 20, 2016.) By Memorandum and Order dated August 17, 2016, the Court denied Plaintiffs’ request to hold the dismissed claims in abeyance. (Mem. and Order dated Aug. 17, 2016, Docket Entry No. 95.) On September 30, 2016, Plaintiffs filed the Amended Complaint, (Am. Compl.), and on February 7, 2017, Plaintiffs filed the SAC, (SAC).

The SAC asserts the following claims pursuant to 42 U.S.C. § 1983 : (1) "imposing a prior restraint and interfering with constitutionally protected expression at the Wantagh Property," (2) "conspiring to deprive [Plaintiffs] of their constitutional rights and civil rights," (3) "restricting and depriving [Plaintiffs] of their property rights at the Wantagh Property," (4) "discriminating against [Plaintiff's] and continuing to deprive them of their cabaret permit, public assembly permit and off-parking variance at the Bellmore [Property]," (5) "requiring restaurants to have windows" under section 302(Q) of the BZO, (6) "imposing a temporal restriction on the issuance of permissive uses[,] including cabaret permits," (7) "requiring a special exemption to use the premises for a place of public assembly and amusement" under section 267(D)(3) of the BZO, (8) engaging in "selective enforcement," (9) "fail[ing] to comply with the Town's newly enacted preference statute which requires the Board ... and [Department of Buildings] to timely act on pending applications" in violation of Plaintiffs’ constitutional rights, (10) causing "Plaintiffs ... significant damages," and (11) individually "violat[ing] clearly established constitutional rights." (SAC ¶¶ 447–513.)

Plaintiffs seek injunctive and declaratory relief (i.e. , compelling Defendants to issue a cabaret permit and/or Certificate of Occupancy for the Wantagh Property, and a cabaret permit, public assembly permit, and off-premises parking variance for the Bellmore Property), judgments enjoining and voiding sections 302(Q), 272(C)(6), and 267(D)(3) of the BZO, actual and punitive damages, and costs in connection with litigating this action. (Id. at 137–139.)

On March 7, 2017, Town Defendants moved to dismiss for lack of subject matter jurisdiction and standing pursuant to Rule 12(b)(1) and for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.²¹ (Town Defs.’ Mot.; Town Defs.’ Mem.) Rhoads, separately from Town Defendants, brings a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.²² (Rhoads Mot.; Rhoads Mem.)

21 As discussed supra note 3, although Town Defendants characterize their motion as a "12(c) motion to dismiss," (see Town Defs.’ Mem. 1), the Court construes this motion as both a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and a 12(c) motion for judgment on the pleadings. See, e.g., All. for Env't Renewal, Inc. , 436 F.3d at 88–89 n.6 ("Although we have noted that standing challenges have sometimes been brought under Rule 12(b)(6), as well as Rule 12(b)(1), the proper procedural route is a motion under Rule 12(b)(1)." (citations omitted)).

22 Rhoads argues, and the Court agrees, that although the SAC states all claims against Defendants broadly, Rhoads "is mentioned or referred to in relatively few paragraphs and only two ... of the causes of action could arguably be applicable to him." (Rhoads Mem. 2–3.) Thus, the Court reads the SAC as asserting claims only for conspiracy against Rhoads.

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court "lacks the statutory or constitutional power to adjudicate it." Huntress v. United States , 810 F. App'x 74, 75 (2d Cir. 2020) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova , 201 F.3d at 113 ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (per curiam) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ). " ‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (first quoting Nat. Res. Def. Council v. Johnson , 461 F.3d 164, 171 (2d Cir. 2006) ; and then quoting APWU v. Potter , 343 F.3d 619, 623 (2d Cir. 2003) ), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Ultimately, "the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. US Operating Co. , 720 F. App'x 52, 53 (2d Cir. 2018) (citing Morrison , 547 F.3d at 170 ); Clayton v. United States , No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon , 752 F.3d at 243 ); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon , 369 F. Supp. 3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon , 752 F.3d at 243 ).

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Kim v. Kimm , 884 F.3d 98, 103 (2d Cir. 2018) (quoting Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002) ); see also Tsirelman v. Daines , 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ. , 131 F.3d 326, 329 (2d Cir. 1997) ). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

iii. Rule 12(c)

In deciding a Rule 12(c) motion, courts apply "the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Pourkavoos v. Town of Avon , 823 F. App'x 53, 59 (2d Cir. 2020) (quoting Kass v. City of New York , 864 F.3d 200, 206 (2d Cir. 2017) ); see also Ezra v. Bristol-Myers Squibb Co. , 784 F. App'x 48, 49 (2d Cir. 2019) ("The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." (alteration omitted) (quoting Cleveland v. Caplaw Enters. , 448 F.3d 518, 521 (2d Cir. 2006) )); Lanning v. City of Glens Falls , 908 F.3d 19, 22 (2d Cir. 2018) ("We construe the factual allegations in the light most favorable to ... the losing party."). "In determining a Rule 12(c) motion, the district court may consider ‘any written documents attached to’ the pleadings, ‘materials incorporated in [the complaint] by reference,’ and ‘documents that, although not incorporated by reference, are integral to the complaint.’ " 28th Highline Assocs., L.L.C. v. Roache , 826 F. App'x 70, 72 (2d Cir. 2020) (alteration in original) (quoting L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011) ). "To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’ " Graziano v. Pataki , 689 F.3d 110, 114 (2d Cir. 2012) (per curiam) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim is plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Matson , 631 F.3d at 63 (discussing Rule 12(b)(6) ) (quoting Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 ). However, the court need not accord "a legal conclusion couched as a factual allegation" the same presumption of truthfulness. N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC , 709 F.3d 109, 120 (2d Cir. 2013) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

b. Ripeness

Town Defendants argue that Plaintiffs’ First Amendment claims are subject to a ripeness inquiry, (Town Defs.’ Mem. 5), because Plaintiffs do not have an immediate threat of injury and face unresolved building and zoning code violations, (id. at 6).

Plaintiffs argue that Town Defendants have proceeded in "bad faith" and that "the Town's procedures have become so obstructive that this dispute is ripe for review without a final decision on the merits." (Pls.’ Opp'n 15.) According to Plaintiffs, there is no "dispute over building codes or zoning setbacks," and Town Defendants are "manufacturing [these] issues as a pretext to prevent this Court from" exercising jurisdiction over their claims. (Id. )

Ripeness is a jurisdictional inquiry, and courts are obliged to consider ripeness before addressing the merits of a claim. See Islamic Cmty. Ctr. for Mid Westchester v. City of Yonkers Landmark Pres. Bd. , 742 F. App'x 521, 523 (2d Cir. 2018) (stating that "ripeness is a jurisdictional inquiry," such that a court cannot entertain a plaintiff's claims unless an issue is ripe (quoting Murphy v. New Milford Zoning Comm'n , 402 F.3d 342, 347 (2d Cir. 2005) )). The court "must presume that [it] cannot entertain [a plaintiff's] claims ‘unless the contrary appears affirmatively from the record.’ " Murphy , 402 F.3d at 347 (quoting Renne v. Geary , 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) ).

The Supreme Court has held that a Takings Clause claim relating to land use is not ripe unless a local regulatory agency has rendered a final decision regarding the use of the property at issue. Knick v. Township of Scott , 588 U.S. ––––, ––––, 139 S. Ct. 2162, 2177, 204 L.Ed.2d 558 (2019) (holding, in contrast to Williamson , that a plaintiff asserting a Takings Clause claim need not seek relief in state courts before bringing a claim in federal court); Williamson Cnty. Reg'l Planning Comm'n , 473 U.S. at 186, 105 S.Ct. 3108 (reiterating that a Takings Clause claim "is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue"), overruled on other grounds by Knick , 139 S. Ct. at 2169–70 ; Morabito v. New York , 803 F. App'x 463, 468 (2d Cir. 2020), as amended , (Feb. 27, 2020) ("[T]he Supreme Court recently overturned the portion of its Williamson decision that required exhaustion of remedies in state court."); Sagaponack Realty, LLC v. Village of Sagaponack , 778 F. App'x 63, 64 (2d Cir. 2019) (applying the finality requirement but not the state-litigation requirement from Williamson because "the validity of th[e] finality requirement" was not at issue in Knick (quoting Knick 139 S. Ct. at 2169 )).

"The final decision requirement ‘conditions federal review on a property owner submitting at least one meaningful application for a variance.’ " Thomas v. Town of Mamakating , 792 F. App'x 24, 27 (2d Cir. 2019) (quoting Murphy , 402 F.3d at 348 ); see also Williamson , 473 U.S. at 190, 105 S.Ct. 3108 (holding that developer's claim was unripe because of developer's failure to obtain a final decision by requesting a variance). "In determining whether a decision is final, a court must determine whether a plaintiff has pursued all local administrative remedies available to him or her." Javino v. N.Y. State Dep't of Env't Conservation , No. 07-CV-574, 2013 WL 1946211, at *4 (E.D.N.Y. May 10, 2013) (citing Goldfine v. Kelly , 80 F. Supp. 2d 153, 159 (S.D.N.Y. 2000) ).

"A property owner will be excused from seeking a variance, however, if doing so would be futile." Thomas , 792 F. App'x at 27 (concluding that a town's actions in a case involving various delays, skepticism from the chairman of the zoning board, and interference from the building inspector did "not warrant application of the futility exception" because " ‘it d[id] not "ma[k]e clear that all [variance] applications will be denied" ’ " (second and third alterations in original) (quoting Murphy , 402 F.3d at 349 )). Futility occurs "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." Murphy , 402 F.3d at 349 ; see also id. at 352 (dismissing for lack of jurisdiction where the plaintiffs had not "obtained a final, definitive position from local authorities as to how their property may be used"). An appeal is also futile when the agency's appellate body "sits purely as a remedial body." Id. at 349. A "purely ... remedial body" is one that is "empowered, at most, to review [a] rejection, not to participate in the ... decisionmaking." Id. (alteration in original) (quoting Williamson , 473 U.S. at 193, 105 S.Ct. 3108 ).

The futility exception is also applied when there are "repetitive and unfair procedures." Thomas , 792 F. App'x at 28 (quoting Sherman v. Town of Chester , 752 F.3d 554, 561 (2d Cir. 2014) (applying the futility exception where a town enacted new zoning regulations five times over a five-year period, requiring the plaintiff to submit new development plans each time; announced a moratorium on development that applied only to the plaintiff; replaced its officials; required the plaintiff to resubmit studies already completed; and required the plaintiff to pay $65,000 in fees before he could obtain a hearing)). "That [a] zoning board may have delayed several unnecessary months at various points in [an application] process does not warrant application of the futility exception." Id. ; see also Sagaponack Realty, LLC , 778 F. App'x at 64 (affirming that waiting for a final decision was not futile when a village withheld its final decision "pending a decision by the state courts as to which party has the authority to proceed"); Sherman , 752 F.3d at 563 ("Every delay in zoning approval does not ripen into a federal claim.").

For the reasons set forth below, the Court finds that Plaintiffs’ claims related to the 2016 Application at the Wantagh Property are ripe, but the claims related to the 2010 Application at the Wantagh Property and applications at the Bellmore Property are not ripe.

i. The Wantagh Property

Town Defendants argue that Plaintiffs’ 2010 Application for the Wantagh Property did not yield a final determination, (Town Defs.’ Mem. 7), as it was based on a lack of credibility, (Town Defs.’ Reply 11, Docket Entry No. 171). With regards to Plaintiffs’ "new and different" cabaret-only 2016 Application that was denied in October of 2016, (Town Defs.’ Mem. 7), Town Defendants argue that because the Wantagh Property's proposed use did not comply with the parking requirements or "front yard [setback]" regulations, Plaintiffs were "not entitled to a special exception for cabaret, not as a matter of discretion, but as a matter of law," (id. at 7 (emphasis omitted)). Town Defendants argue that Plaintiffs have not submitted a meaningful application because Plaintiffs have failed to cure the underlying code violations that give the Board jurisdiction to entertain the cabaret permit applications on the merits. Further, Town Defendants contend that the Court does not have jurisdiction over the Board's decision on the 2016 Application because Plaintiffs commenced an Article 78 proceeding in state court on the matter — "an adequate state postdeprivation ... remedy" — which "precludes a successful claim under section 1983." (Letter dated July 22, 2019, at 5, Docket Entry No. 210 (quoting Pierre v. N.Y.C. Taxi & Limousine Comm'n , No. 17-CV-973, 2017 WL 1417257, at *1 (E.D.N.Y. Apr. 19, 2017) ).) Town Defendants assert that the denial of the 2016 Application did not render the denial of the 2010 Application final for federal jurisdictional purposes because the Board only renders decisions for current applications and, as such, both applications necessitate different determinations. (Town Defs.’ Mem. 8–9.) Town Defendants argue that the decision by the Board is not final for the purpose of jurisdictional ripeness. (Town Defs.’ Reply 11.)

Town Defendants also argue that the denial of a parking variance was reasonable because unlike the prior approval for a parking variance for Plaintiffs’ cabaret-only use — where patrons are "coming and going" — a cabaret-with-restaurant use yields large single groups using the "small parking lot" that boarders a now more dangerous Sunrise Highway. (Id. at 8–9.) Town Defendants argue that, even if they had merit, Plaintiffs claims are insufficient to invoke the futility exception. (Id. at 8.)

Plaintiffs allege instances where they "have repeatedly taken extensive steps to ripen their constitutional claims but have been thwarted by ... Defendants’ gamesmanship at every turn." (Pls.’ Opp'n 13.) Plaintiffs argue that they followed all the instructions given by Defendants, requested that the Board or Town inform them of any further administrative steps required to obtain a final determination, and heard Defendants’ counsel represent to Judge Gold and all parties that the Board had rendered a "final decision" on the 2016 Application. (Id. at 15–16.) Further, Plaintiffs argue that Town Defendants never put Plaintiffs on notice that the alleged defects of the parking lot and the encroachment into the zoning setback could provide a basis for the failure to provide a final determination on the cabaret permit. (Id. at 16–17.)

With regard to the cabaret permit, Plaintiffs argue first that Town Defendants "intentionally crafted the findings of fact" to suggest that it was rescinded due to failure of proof, rather than on the merits, in order to limit judicial review. (Id. at 13–14.) Second, for four years, Town Defendants failed to approve Plaintiffs’ application to use the Wantagh Property for restaurant use and, instead, instructed Plaintiffs to withdraw the restaurant-only application in order to attain the cabaret permit. (Id. at 14.) Third, Town Defendants enacted a new law with "no rational basis," which required restaurants to have windows. (Id. )

As for the portico setback, Plaintiffs insist that the Town's Chief Plan Examiner first noticed a "relatively minor"²³ encroachment that defied the zoning regulations during a 2015 deposition. (Id. at 17.) Minor encroachments such as this, Plaintiffs argue, do not yield a denial of variance in the Town as there are "numerous properties on Sunrise Highway and elsewhere within the Town of Hempstead where no variance was required despite substantially greater encroachments into the [portico] setback." (Id. (quoting Kuehn Decl. ¶ 16).)

23 Contrary to Defendants’ assertions, Plaintiffs argue that the encroachment is de minimis given that the "portico is [seventeen] feet from Sunrise Highway and extends a mere [twenty-eight] inches into the setback." (Pls.’ Opp'n 17 n.9 (quoting Decl. of Charles Kuehn (Architect) ¶ 15, Docket Entry No. 168).)

With regard to the parking lot, Plaintiffs contend that when this federal action commenced in 2014, there was "no issue ... as to whether the Wantagh Property had a variance for off-street parking." (Id. at 15 (emphasis omitted).) Plaintiffs highlight that for nearly fifty years, the parking lot has had the same number of parking spots, including when it was approved for variances in 2010 and 2011. (Id. at 16.) As such, Plaintiffs argue that Town Defendants’ claim regarding the parking requirements is "precisely the type of ‘roadblock[ ]’ condemned by the Second Circuit." (Id. (quoting Sherman , 752 F.3d at 562 ).)

Plaintiffs fail to show that the 2010 Application had a final determination. In the 2016 Order, the Court held that even if the 2010 Application's denial was not "final" because it was based on a lack of credibility and not on the merits, it was not futile for Plaintiffs to remedy the building deficiencies and therefore "avail themselves of the procedures set forth by the Town's laws." (2016 Order 38.) Plaintiffs have not alleged that they have made any necessary alterations to the building or renewed their 2010 Application to the Board. As such, the Court finds that Plaintiffs have neither attained a final decision nor availed themselves of the futility exception for the 2010 Applications.

As for the 2016 Application, Plaintiffs submitted a building plan for the development of the Wantagh Property and applied for "at least one meaningful application for a variance" — parking and encroachment variances — both of which were denied. Thomas , 792 F. App'x at 27 ; (SAC ¶ 284). The Board denied the requested permits following a hearing where Plaintiffs presented "extensive evidence," (id. ¶¶ 249–250, 261–262), Defendants presented testimony, (id. ¶ 264), and members of the public submitted comments, (id. ¶¶ 274–275, 278). Subsequently, Plaintiffs filed an Article 78 proceeding. (Pls.’ Opp'n 11; SAC ¶¶ 278, 295.) Thus, Plaintiffs attained a final decision on the 2016 Application. (See 2016 Order 28 ("A plaintiff cannot have received a final decision without submitting a plan for development of the property for its intended or another use and seeking available variances or waivers of the requirements at issue.").)

Even if the Board's decision is not considered a final decision on the merits because Plaintiffs had outstanding building code violations, (Town Defs.’ Mem. 11), Plaintiffs’ 2016 Application is subject to the futility exception as Plaintiffs face "roadblocks" in attaining the variances. Sherman , 752 F.3d at 562 ; see also Thomas , 792 F. App'x at 27. In Martin , the Second Circuit held that the plaintiff's claim was ripe because he had appealed his decision and applied for a variance. Martin v. Town of Simsbury , 735 F. App'x 750, 752 (2d Cir. 2018). The court stated that requiring the plaintiff to exhaust planning options when submitting permit applications would require the plaintiff to prove the merits of the case and not simply that the case is ripe for litigation. Id. Similar to Martin , Plaintiffs submitted a building plan with the Department of Buildings, which was denied, (SAC ¶ 246), and Plaintiffs unsuccessfully appealed that decision and sought variances from the Board, (id. ¶ 247). It is unlikely that Plaintiffs can gain approval for a cabaret permit given the denial of both the parking and encroachment variances.²⁴

24 The Court does not address the merits of Plaintiffs’ variance applications but only whether further administrative process would be futile.

Accordingly, the Court finds that Plaintiffs’ claims related to the 2010 Application are unripe, but Plaintiffs’ claims related to the 2016 Application are ripe and subject to judicial review.

ii. The Bellmore Property

Town Defendants argue that Plaintiffs’ application for renewal of the cabaret permit and public assembly license for the Bellmore Property also did not yield a final determination and that the futility exception should not be applied to Plaintiffs’ claims. (Town Defs.’ Mem. 7–8.) Town Defendants argue that the Board cannot rule on the cabaret permit²⁵ "until the building code violations are cured," (id. at 8), and Plaintiffs have yet to "commence[ ] the necessary work, let alone pass[ ] inspection and receive[ ] [the] Certificate of Completion" required to prompt a determination, (id. ). Town Defendants assert that Plaintiffs are "simply wrong" that Town Defendants represented that approving a renewal of the cabaret permit was a prerequisite to approving the building alterations, (Town Defs.’ Reply 5), because the rules are clear that on original application for a special use permit, a special use permit is granted prior to the grant of a building alteration permit, while on an application for renewal , an inspection will precede a hearing and code violations must be cured before the issuance of any Certificate of Completion, (id. at 5–6).²⁶ According to Town Defendants, they only learned about the building and zoning code violations at the Bellmore Property after the 2012 hearing for the cabaret permit. (Id. at 5.) Irrespective, Town Defendants assert that Plaintiffs have "suffer[ed] virtually no loss, let alone a threat of immediate injury," because the Town has permitted the Bellmore Property to continue operating, (Town Defs.’ Mem. 7–8), as evidenced by the fact that Plaintiffs failed to timely bring an Article 78 proceeding, (Town Defs.’ Reply 5).

25 The public assembly permit for the Bellmore Property was not approved because the cabaret permit was pending. (SAC ¶¶ 327–329.)

26 Defendants cite to the standard as articulated in their declarations. (Town Defs.’ Mem. 5–6; Decl. of Louis Carnovale ¶ 44, annexed to Defs.’ Mot. to Dismiss as Ex. 2; Decl. of Richard Regina ¶ 22, annexed to Defs.’ Mot. to Dismiss as Ex. 3.) Defendants assert that the Department of Buildings informed Plaintiffs that according to Town Code § 96-3 (B):

[A]n approved license shall be issued for a place of public assembly only after the Commissioner shall have caused an inspection to be made of the premises to be licensed and is satisfied that the provisions of this chapter and all other applicable laws, ordinances, codes, rules and regulations pertaining to fire and safety requirements contained therein have been complied with, together with all fees provided for herein being paid, and that the premises are a safe place in which to conduct, maintain or operate a place of public assembly and that a proper use has been established for the premises.

(SAC Answer ¶ 250 (emphasis omitted) (quoting Town Code § 96-3(B)).)

Plaintiffs concede that the Board has yet to render a final determination on the Bellmore Property cabaret permit application, (Pls.’ Opp'n 2), but argue that contrary to Town Defendants’ assertions, the Board is fully capable of holding hearings and entertaining applications for special exceptions even when renovations need to be conducted, (id. at 18). Plaintiffs argue that "the Board ... held hearings and renewed ... Plaintiffs’ cabaret permit and off-street parking variances in 2003 and 2007 even though ... Plaintiffs had open building permit applications for alterations to the basement," and that since 2009, the Town's building inspectors knew that the basement contained unapproved walls and low ceilings but still ordered a 2012 hearing for the cabaret permit. (Id. ) Plaintiffs contend that there is "no provision of the law or code, or any internal manuals or guidelines" that support Town Defendants’ claim that they cannot issue a final determination when there are open and unresolved building and zoning code violations. (Id. )

As such, Plaintiffs request that the Court apply the futility exception to this case because "Plaintiffs jumped through all of the hoops and obstacles erected by [Town] Defendant[s] to obtain final review," (id. at 21), including filing "all of the documents and records sought by [Town] Defendants, (id. ), and passing all inspections for fire and life safety codes, (id. at 22 n.14). Plaintiffs highlight that in two pre-application meetings, "[Town] Defendants represented that the Board ... had to approve the cabaret use before the [Department of Buildings] could certify an alteration permit or issue a Certificate of Completion"²⁷ and yet, "[Town] Defendants ... now tak[e] the position that the Board ... will only ‘revisit the Plaintiffs’ open 2012 applications’ after ... Plaintiffs perform all of the expensive work demanded by the Town's [Department of Buildings]." (Id. at 21–22 (quoting Decl. of Howard Avrutine (Zoning Lawyer) ¶ 5, Docket Entry No. 169).) Plaintiffs contend that Town Defendants’ claims are a "sham," as further "evidenced by the fact that on November 17, 2011, Building Commissioner ... Rottkamp confirmed that a ‘comprehensive inspection of the facility determined that all applicable criteria [including compliance with the state fire code and remediation of any outstanding zoning and code violations] have been met and that no grounds existed for the denial of a public assembly license’ for the Bellmore [Property's cabaret]." (Id. at 21 n.12 (first alteration in original) (quoting Decl. of William Stephen Dean ¶ 5, Docket Entry No. 167).)

27 Plaintiffs cite BZO § 256(B), which states that "[n]o building permit shall be issued until the Building Inspector has certified that the proposed building or alteration complies with all the provisions of [the Building Zone Ordinance] and the [b]uilding [c]ode." BZO § 256(B).

Similar to Plaintiffs’ permit applications for the Wantagh Property, there has been no final adjudication of the Bellmore Property permit applications. (Id. ) However, the futility exception does not apply to the Bellmore Property applications. Although there has been delay in the approval process, because Plaintiffs seek a renewal of permits for the Bellmore Property, they are required to cure building code violations, pass the building inspection, and receive a Certificate of Completion prior to receiving a final decision on their applications. (Town Defs.’ Mem. 7–8.)

Regardless of whether Plaintiffs improperly construed Town Defendants’ statements to mean that the building violations could be cured after they received a permit, and irrespective of whether Town Defendants had knowledge of the building violations prior to the 2012 hearing, the Town's rules establish a procedure that Plaintiffs are required to follow in order to receive a final decision on a renewal application: cure building code violations and then bring suit. (Id. at 5–6.) Prior to filing the SAC, Plaintiffs were on notice of this requirement. In the 2016 Order, the Court informed Plaintiffs of the "need to [first] resolve their open building permit issues, which entails applying to New York State for a variance, and receiving the same." (2016 Order 38.) While Plaintiffs argue that they filed "all of the documents and records sought by ... Defendants," (Pls.’ Opp'n 21), and passed all inspections for fire and life safety codes, (id. at 22 n.14), Plaintiffs concede that they have not cured the building code violations because it would be expensive and cost inefficient, (id. at 22). In support of their failure to cure, Plaintiffs allege that, "no applicant would pay permit fees and expend costs on construction in the hope that an approval will then be issued by the Board after all such work is completed." (SAC ¶ 351.) Plaintiffs must remedy the outstanding violations — pass an inspection and receive a Certificate of Completion — in order for their Bellmore Property claims to be subject to judicial review. See, e.g., Nenninger v. Village of Port Jefferson , 509 F. App'x 36, 39 (2d Cir. 2013) (holding that the refusal to renew the plaintiff's special zoning permit did not qualify for the futility exception even though the plaintiff's application would "not be calendared until [they] cleared debris from [the requested property]"); Southview Assocs., Ltd. v. Bongartz , 980 F.2d 84, 99 (2d Cir. 1992) (denying futility exception where environmental board's initial decision left open possibility that "it would be receptive to a[nother] subdivision proposal").

Given their failure to cure, Plaintiffs fail to show that Town Defendants "dug in [their] heels and made clear that all applications will be denied." Ferncliff Cemetery Ass'n v. Town of Greenburgh , No. 18-CV-641, 2019 WL 6878560, at *7 (S.D.N.Y. Dec. 17, 2019) (quoting Osborne v. Fernandez , No. 06-CV-4127, 2009 WL 884697, at * 6 (S.D.N.Y. Mar. 31, 2009)). Accordingly, the Court grants Town Defendants’ motion to dismiss Plaintiffs’ Bellmore Property claims for lack of ripeness.

c. Standing

Town Defendants argue that Plaintiffs lack standing under Article III of the Constitution because, in the face of unresolved building and zoning code violations, Plaintiffs fail to present an injury in fact that was caused by Town Defendants’ conduct instead of their own failure to remedy violations, and therefore this injury cannot be redressed by a favorable decision. (Town Defs.’ Mem. 9.) In addition, Town Defendants assert that Plaintiffs do not have standing to bring their facial challenges because Plaintiffs’ "inability to operate a cabaret is not attributable to the requirement of a special use permit, but [to] building and zoning code violations." (Id. at 34–35.)

Plaintiffs contend that Town Defendants’ argument fails as to the Wantagh Property for several reasons. First, because Plaintiffs "obtained a permanent permit to operate the cabaret" and "spent a substantial amount of money to renovate their building for the cabaret use" and Town Defendants "revoked the approval based upon unfounded suspicions," Town Defendants’ have "caus[ed] Plaintiffs to suffer irreparable harm through the silencing of their expression," making standing proper. (Pls.’ Opp'n 32–33.) Second, as to the Bellmore Property, Plaintiffs contend that Town Defendants’ argument fails because "[Town] Defendants are jeopardizing free expression and ... Plaintiff's property rights in Bellmore" and because "Plaintiffs have been and are suffering grave injury directly traceable to [Town] Defendants’ unconstitutional and improper actions in Bellmore." (Id. ) With respect to both properties, Plaintiffs contend that the "unresolved building and zoning code violations" that Town Defendants argue make Plaintiffs’ claims unredressable are "contrived in an effort to preclude this Court from finally resolving the ... issues presented." (Id. at 2.)

To show standing, a plaintiff must establish three things: (1) an "injury in fact — an invasion of a legally protected interest which is ... concrete and particularized and ... actual or imminent, not conjectural or hypothetical," (2) "a causal connection between the injury and the conduct complained of," and (3) redressability of the injury "by a favorable decision." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted); see also Pincus v. Nat'l R.R. Passenger Corp. , 581 F. App'x 88, 89 (2d Cir. 2014) (citing City of Los Angeles v. Lyons , 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ) (describing the three elements of standing); Cacchillo v. Insmed, Inc. , 638 F.3d 401, 404 (2d Cir. 2011) ("[A] plaintiff must show the three familiar elements of standing: injury in fact, causation, and redressability." (citing Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) )). "If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim." Mahon v. Ticor Title Ins. Co. , 683 F.3d 59, 62 (2d Cir. 2012) (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, L.L.C. , 433 F.3d 181, 198 (2d Cir. 2005) ).

Because the three elements of Article III standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ; see also Carter v. HealthPort Techs., LLC , 822 F.3d 47, 56 (2d Cir. 2016). "Thus, ‘[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss [a court will] presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ " Osborn v. Visa Inc. , 797 F.3d 1057, 1063–64 (D.C. Cir. 2015) (first and third alterations in original) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ) ("A plaintiff's burden to demonstrate standing grows heavier at each stage of the litigation." (citing Lujan , 504 U.S. at 561, 112 S.Ct. 2130 )); see also Liu v. U.S. Congress , 834 Fed.Appx. 600, 602 (2d Cir. 2020) ("To evaluate a motion to dismiss for lack of standing, we ask whether the plaintiff plausibly alleged the existence of each of the three elements."); Hassan v. City of New York , 804 F.3d 277, 289 (3d Cir. 2015), as amended , (Feb. 2, 2016) ("[T]o withstand a ‘facial attack’ at the motion-to-dismiss stage, a plaintiff need only plausibly allege facts establishing each constitutional requirement." (citing Lewis v. Casey , 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) )); Pub. Citizen Health Rsch. Grp. v. Acosta , 363 F. Supp. 3d 1, 11 (D.D.C. 2018) ("[T]o survive a motion to dismiss, [p]laintiffs ‘must state a plausible claim that [they have] suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.’ " (third alteration in original) (quoting Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015), aff'd , 808 F.3d 905 (D.C. Cir. 2015) )); cf. Knight First Amend. Inst. at Columbia Univ. v. Trump , 302 F. Supp. 3d 541, 556 (S.D.N.Y. 2018) ("Conversely, in order to grant summary judgment in a plaintiff's favor, there must be no genuine issue of material fact as to that plaintiff's standing.").

"In evaluating constitutional standing, courts ‘must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’ " In re Commodity Exch., Inc. , 213 F. Supp. 3d 631, 650 (S.D.N.Y. 2016) (quoting Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ); see also Citizens for Responsibility & Ethics in Washington v. Trump , 971 F.3d 102, 133 (2d Cir. 2020) ("[I]t is the obligation of courts in assessing the legal sufficiency of a complaint to construe ambiguities in the manner most favorable to the plaintiff."); Bank v. Wolfe , No. 19-CV-441, 2020 WL 4748320, at *1 (E.D.N.Y. Aug. 17, 2020) ("[W]hen standing is challenged on the basis of the pleadings, we ‘accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’ " (quoting United States v. Vazquez , 145 F.3d 74, 81 (2d Cir. 1998) )). In addition, when evaluating standing, courts "must assume that the party asserting federal jurisdiction is correct on the legal merits of his claim, ‘that a decision on the merits would be favorable and that the requested relief would be granted.’ " Cutler v. U.S. Dep't of Health & Hum. Servs. , 797 F.3d 1173, 1179–80 (D.C. Cir. 2015) (quoting In re Thornburgh , 869 F.2d 1503, 1522 (D.C. Cir. 1989) ); see also Hassan , 804 F.3d at 289 (same). "[B]ecause Article III does not ‘permit[ ] suits against non-injurious defendants as long as one of the defendants in the suit injured the plaintiff,’ standing must also be assessed as against each defendant." Knight First Amend. Inst. , 302 F. Supp. 3d at 556 (second alteration in original) (quoting Mahon , 683 F.3d at 62 ).

Town Defendants argue that Plaintiffs’ standing fails for both their as-applied and facial challenge claims. The Court discusses each of these claims in turn below.

i. Standing for as-applied claims

For the reasons forth below, the Court finds that Plaintiffs have standing to bring their claims as they pertain to the Wantagh Property but they do not have standing to bring their claims as to the Bellmore Property.

1. Injury in fact

As noted supra , to show Article III standing, a plaintiff must establish three things, one of which is "injury in fact — an invasion of a legally protected interest which is ... concrete and particularized and ... actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted). "In seeking prospective relief like an injunction, ‘a plaintiff must show that he can reasonably expect to encounter the same injury again in the future — otherwise there is no remedial benefit that he can derive from such judicial decree.’ " Leder v. Am. Traffic Sols., Inc. , 81 F. Supp. 3d 211, 222 (E.D.N.Y. 2015), aff'd , 630 F. App'x 61 (2d Cir. 2015) (quoting MacIssac v. Town of Poughkeepsie , 770 F. Supp. 2d 587, 593 (S.D.N.Y. 2011) ); see also Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 109, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Because respondent alleges only past infractions ..., and not a continuing violation or the likelihood of a future violation, injunctive relief will not redress its injury."); Salu v. Miranda , 830 Fed.Appx. 341, 347 n.2 (2d Cir. Oct. 8, 2020) (finding injunctive relief not warranted when plaintiffs "allege no probable threat that they will again face" their asserted cause of injury); Liberian Cmty. Ass'n of Conn. v. Lamont , 970 F.3d 174, 184 (2d Cir. 2020) ("Appellants failed to plead a sufficient likelihood that, under the revised policy, any of them faces a substantial risk of suffering a future injury."); Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 239 (2d Cir. 2016) ("[The plaintiffs] lack standing to pursue injunctive relief where they are unable to establish a ‘real or immediate threat’ of injury." (quoting Lyons , 461 U.S. at 111–12, 103 S.Ct. 1660 ) (citing Shain v. Ellison , 356 F.3d 211, 215–16 (2d Cir. 2004) )); Pungitore v. Barbera , 506 F. App'x 40, 41 (2d Cir. 2012) ("[W]hen seeking prospective injunctive relief, the plaintiff must prove the likelihood of future or continuing harm."); Riley v. Cuomo , No. 17-CV-1631, 2018 WL 1832929, at *5 (E.D.N.Y. Apr. 16, 2018). The alleged injury "must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Knife Rights, Inc. v. Vance , 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) ); see also Holcombe v. Ingredients Sols., Inc. , 797 F. App'x 630, 632 (2d Cir. 2020) ("[A] plaintiff must show that ... she suffered an ‘injury in fact’ that is concrete and particularized ...." (quoting Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 )); Am. Civil Liberties Union v. Clapper , 785 F.3d 787, 800 (2d Cir. 2015) ("The Supreme Court has ‘repeatedly reiterated that "threatened injury must be certainly impending to constitute injury in fact," and that "[a]llegations of possible future injury" are not sufficient.’ " (alteration in original) (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) )).

Plaintiffs’ claims fall into two distinct groups, each of which asserts a different alleged injury. (See 2016 Order 27 (separating Plaintiffs’ as-applied takings, equal protection, and due process claims from Plaintiffs’ First Amendment claims for purposes of a ripeness inquiry and noting that the harm asserted differs)); see also Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona , 945 F.3d 83, 109 (2d Cir. 2019) (dividing the plaintiff's injury into two groups when the plaintiff brought equal protection and First Amendment claims); Liberty Sackets Harbor, LLC v. Village of Sackets Harbor , No. 18-CV-242, 2018 WL 4609129, at *10 (N.D.N.Y. Sept. 25, 2018) (assessing the plaintiffs’ claims under the Takings Clause, Due Process Clause, and Equal Protection Clause separately from the plaintiffs’ claims under the First Amendment for standing purposes), aff'd , 776 F. App'x 1 (2d Cir. 2019). The first group of claims consists of Plaintiff's as-applied takings, due process, and equal protection claims arising out of Town Defendants’ denial of, or failure to act upon, their applications for a cabaret permit, parking and portico setback variances, and appeal from the Department of Buildings’ determinations at the Wantagh Property, as well as their applications for a cabaret permit, public assembly permit, and parking variance to operate at the Showtime Café at the Bellmore Property.²⁸ This group of claims is based on the alleged invasion of Plaintiffs’ property-based rights and their right to be free from state discrimination and unequal treatment under the law. The second group of claims consists of Plaintiffs’ First Amendment claims alleging that Town Defendants’ actions have amounted to a "prior restraint and interference with expression and entertainment at the Wantagh Property," that Town defendants have conspired to "suppress the exhibition of dancing and other entertainment ... by engaging in a pattern of harassment," and that Town Defendants seek to "suppress the exhibition of entertainment" at both properties "pursuant to unconstitutional provisions — and [the] unconstitutional application" — of the Town's statutes. (SAC ¶¶ 119, 121.) This group of claims is rooted in Town Defendants’ regulation of the use of property and the expression that can occur at the property as a result of the regulation, such as whether Plaintiffs can use the property as a cabaret to put on dance shows and other forms of live entertainment. Whether Plaintiffs have standing to pursue each group of claims turns on whether the alleged injury is an injury in fact for Article III purposes.

28 Earlier in this proceeding, Judge Gleeson noted that despite the various causes of action pled by Plaintiffs, the as-applied claims are all of a "similar nature," which is demonstrated by the relief sought. (2016 Order 35 n.19.) Judge Gleeson noted that Plaintiffs state that they have " ‘sustained considerable costs through the continued closure of the Wantagh [Property], and their inability to use that valuable commercial property,’ and that they have ‘sustained considerable costs through the [Town] Defendants’ continued harassment of and refusal to issue the necessary permits to operate the Bellmore Cabaret.’ " (Id. ) Plaintiffs reallege these claims in the SAC. (SAC ¶¶ 505–506.) Because, as Judge Gleeson noted, "[t]hese claims for damages are not ‘distinguishable based on whether the claim is styled as a First Amendment violation or a Fifth Amendment regulatory takings claim,’ " (id. (quoting Tini Bikinis–Saginaw, LLC v. Saginaw Charter Township , 836 F. Supp. 2d 504, 519 n.7 (E.D. Mich. Dec. 22, 2011) )), and because the "alleged harm stems from the same actions (or non-actions) on the part of ... [D]efendants," the Court analyzes all of these claims, with the exception of the First Amendment claims, together for standing purposes. (Id. ) In addition, Plaintiffs make claims for preliminary and permanent injunctions restraining Town Defendants from further interference "with the Plaintiffs’ exercise of their right to freedom of speech, property rights, and right to operate their establishments," as well as from enforcing BZO § 267(D)(3) in connection with the applications to renew their cabaret permits and obtain a public assembly permit. (SAC 137–38.) Plaintiffs also seek declaratory judgment compelling Defendants to issue them cabaret permits, a public assembly permit, an off-premises parking variance, and/or a Certificate of Occupancy. (Id. ) As with the damages claims, these claims for relief center on the same factual issues and are analyzed together for standing purposes. See Kowalczyk v. Barbarite , 594 F. App'x 690, 692 (2d Cir. 2014) (grouping procedural due process, substantive due process, and equal protection claims together to analyze injury and noting "[the plaintiff's] procedural due process claims are unripe to the extent that they seek either to collect damages based on or to challenge the same land-use decisions as his substantive due process and equal protection claims do").

A. As-applied taking, due process, and equal protection claims

When a plaintiff challenges the legality of government action or inaction and "is himself an object of the action (or forgone action) at issue ..., there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Lujan , 504 U.S. at 561–62, 112 S.Ct. 2130. In Warth v. Seldin , the Supreme Court found that there was no standing to challenge a zoning ordinance as discriminatory because none of the plaintiffs ever resided in the town or had been "subject to the ordinance's strictures" or denied a variance or permit. 422 U.S. at 508, 95 S.Ct. 2197 ("We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention."). The Supreme Court further instructed that in such a case in which a zoning ordinance or the government unlawfully blocked a current construction project, "there would be a further question as to whether [the plaintiff] had employed available administrative remedies, and whether it should be required to do so before a federal court can intervene." Id. at 517, 95 S.Ct. 2197 n.23.

The Second Circuit has held that in the land-use context, the injury-in-fact inquiry is similar to the ripeness inquiry: when considering whether plaintiff has pled an injury in fact, courts must consider whether there has been a final decision on how a parcel of land may be used. See Sunrise Detox V, LLC v. City of White Plains , 769 F.3d 118, 122 (2d Cir. 2014) ("[A] non-final decision on how a parcel of land may be used does not ordinarily give rise to an injury that is sufficiently concrete and particularized to satisfy Article III."); Nat'l Org. for Marriage, Inc. v. Walsh , 714 F.3d 682, 688 (2d Cir. 2013) ("Constitutional ripeness, in other words, is really just about the first Lujan factor — to say a plaintiff's claim is constitutionally unripe is to say the plaintiff's claimed injury, if any, is not "actual or imminent," but instead "conjectural or hypothetical." (internal quotation marks omitted) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 )); see also Vill. Green at Sayville, LLC v. Town of Islip , No. 17-CV-7391, 2019 WL 4737054, at *5 (E.D.N.Y. Sept. 27, 2019) (considering a nondecision on the plaintiff's application for both standing and ripeness purposes). "[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 ... [such as] the manipulation of a zoning process out of discriminatory animus to avoid a final decision." Sunrise Detox V, LLC , 769 F.3d at 123.

(1) Wantagh Property

Town Defendants argue that Plaintiffs lack standing because they have not "plausibly alleged ... that they have suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." (Town Defs.’ Mem. 9–10 (quoting M.J. Entm't Enters., Inc. v. City of Mount Vernon , 234 F. Supp. 2d 306, 309 (S.D.N.Y. 2002) ) (citing Vt. Agency of Nat. Res. v. United States ex rel. Stevens , 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) ).) Town Defendants do not specifically state why they believe Plaintiffs’ injury with respect to the Wantagh Property is not sufficient for standing.

Plaintiffs contend that the SAC establishes an injury in fact because the Wantagh Property was not allowed to open after Plaintiffs "spent a substantial amount of money to renovate their building for the cabaret use" in reliance on Defendants’ approval and because Defendants "revoked the approval based on unfounded suspicions." (Pls.’ Opp'n 5, 32.)

Because Plaintiffs are the direct subjects of the government action denying the use permits and variances, Plaintiffs have plausibly alleged the existence of sufficient injury to warrant judicial intervention. Compare Tweed-New Haven Airport Auth. v. Tong , 930 F.3d 65, 70 (2d Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 2508, 206 L.Ed.2d 463 (2020) (holding that injury in fact existed when plaintiff airport sued over statute preventing extension of runway because the statute "directly targets [plaintiff] and prevents it from extending its runway"), with Warth , 422 U.S. at 516, 95 S.Ct. 2197 (finding no standing when the complaint failed to show "preclu[sion] either by the ordinance or by respondents’ action in enforcing it" when there was "no averment that any member has applied to respondents for a building permit or variance"). In 2016, Plaintiffs sought and were denied a cabaret-use permit, a parking variance, and a portico setback variance. (SAC ¶¶ 247, 284.) Although Town Defendants contend that the most recent application was not a final decision on the special use permit because "the Board has no authority to grant a special use permit where, as here, [Plaintiffs’] building violates other provisions of the zoning code," Town Defendants did make a final decision with respect to the parking, portico setback, and fence variance applications. (SAC Answer ¶ 625.)

In addition, for the reasons stated above, Town Defendants’ decision on the special use permit was a final decision and in the alternative is subject to the futility exception to ripeness. The Second Circuit has recognized that denial of a special use permit constitutes an injury in fact. See Anderson Grp., LLC v. City of Saratoga Springs , 805 F.3d 34, 46 (2d Cir. 2015) ("[D]enial of an entity's special use permit application ... is an injury sufficient in itself to confer standing."); Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown , 294 F.3d 35, 46 n.2 (2d Cir. 2002) ("[The plaintiff] suffered an injury through the denial of its special-use permit application; it therefore has individual standing." (first citing Havens Realty Corp. v. Coleman , 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) ; and then citing Ragin v. Harry Macklowe Real Estate Co. , 6 F.3d 898, 905 (2d Cir. 1993) )); Soundview Assocs. v. Town of Riverhead , 725 F. Supp. 2d 320, 332 (E.D.N.Y. 2010) (finding standing at the motion-to-dismiss stage when the plaintiff alleged that its permit to construct a health spa was wrongly denied). Accordingly, Town Defendants’ denial of the special use permit for cabaret use is sufficient to confer standing.

Furthermore, Plaintiffs’ claims for "sustained considerable costs through the closure of the Wantagh [Property]," (SAC ¶¶ 506–507), also serve to satisfy the injury-in-fact requirement. See Nat. Res. Def. Council, Inc. v. U.S. Food & Drug Admin. , 710 F.3d 71, 85 (2d Cir. 2013) ("Even a small financial loss is an injury for purposes of Article III standing."); Anderson Grp., LLC , 805 F.3d at 46 (holding that "lost up-front economic expenditures on a detailed development proposal for a specific piece of property, coupled with the denial of a necessary special use permit, constitute injuries-in-fact that are fairly traceable to the [defendant's] actions"); Miller v. Wells Fargo Bank, N.A. , 994 F. Supp. 2d 542, 550 (S.D.N.Y. 2014) ("[E]conomic injuries ... are judicially cognizable."); Cunney v. Bd. of Trs. of Grand View , 56 F. Supp. 3d 470, 490 (S.D.N.Y. 2014) (finding injury in fact when the plaintiff "personally suffered various forms of ‘financial loss,’ " including loss in value, profits, use, carrying costs on the property, and attorney and professional fees "in the underlying [zoning board appeals] and state court challenges").

In addition, Plaintiffs’ allegations establish standing for their injunctive and declaratory relief claims. Plaintiffs’ allege that despite their "best interests, [Town] Defendants continue to change the rules of the game and move the goal posts far afield." (Pls.’ Opp'n at 3.) The injury alleged and the likelihood of continuing and future harm in this case are realistically a threat, in contrast to those cases where no standing was found due to the distant possibility of a future threat. In Lyons , for example, the Supreme Court found that a plaintiff did not have proper standing to seek an injunction against police chokeholds because the plaintiff did not face a reasonable threat of reoccurrence. Lyons , 461 U.S. at 105, 103 S.Ct. 1660 ("That [the plaintiff] may have been illegally choked by the police ... does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness ...."); see also id. at 106 n.7, 103 S.Ct. 1660 (noting that the plaintiff "would have to credibly allege that he faced a realistic threat from the future application of the [c]ity's policy"); see also Leder , 81 F. Supp. 3d at 221–23 (finding that the plaintiff lacked standing regarding her equitable relief claims due to a "too speculative" chance of reoccurrence where she did "not allege any facts suggesting that she will be subject to additional tickets if the [c]ourt does not grant the injunctive relief she requests").

In contrast, Plaintiffs will face the same alleged injury in the future. (See, e.g. , Pls.’ Opp'n 8 (alleging that Plaintiffs consistently renew the public assembly permit each year); Town Code § 96-4 (providing for annual renewals of public assembly permit each year).) Plaintiffs’ injury stems from Town Defendants’ regulation of the Wantagh Property, which will always be located in a jurisdiction subject to Town Defendants’ regulation. Given the lengthy history of the contentious relationship between Plaintiffs and Town Defendants, the continuing financial injury suffered by Plaintiffs for as long as the Wantagh Property is closed, and the construction that would still be required at the Wantagh Property to satisfy all town regulations even if the special use permit were granted, Plaintiffs plausibly suggest that the same alleged injury will continue to occur. See Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. , 528 U.S. 167, 184, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("Here, in contrast [to Lyons ], it is undisputed that [the] unlawful conduct — discharging pollutants in excess of permit limits — was occurring at the time the complaint was filed."); id. at 190, 120 S.Ct. 693 ("[I]n [ Lyons ,] ... we noted that a citywide moratorium on police chokeholds ... would not have mooted an otherwise valid claim for injunctive relief, because the moratorium by its terms was not permanent.").

Because Plaintiffs plausibly establish several "concrete and particularized and actual or imminent, not conjectural or hypothetical" injuries, see Lujan , 504 U.S. at 560, 112 S.Ct. 2130, the Court finds that Plaintiffs satisfy the injury-in-fact prong of standing with respect to the as-applied challenges at the Wantagh Property.

(2) Bellmore Property

Town Defendants argue that Plaintiffs lack standing because they have not "plausibly alleged ... that they have suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." (Town Defs.’ Mem. 9–10 (quoting Vt. Agency of Nat. Res. , 529 U.S. at 771, 120 S.Ct. 1858 ).) Town Defendants argue that Plaintiffs’ injury with respect to the Bellmore Property is not actual or imminent because the Town has "permitted the Plaintiffs to remain open and operating without any restraint." (Id. at 7–8; Pls.’ Opp'n 34 (noting the "continued operation of their business").)

Plaintiffs argue that they suffered an injury in fact to their property rights because their cabaret renewal application will not be considered unless they make "costly renovations to the building." (Pls.’ Opp'n 2.) Plaintiffs argue that M.J. Entertainment Enterprises, Inc. , 234 F. Supp. 2d at 306 — which is cited by Town Defendants — is inapposite to the case here because, in that case, the plaintiffs "lacked standing to challenge the special permit requirements of the law because the plaintiff was not subject to those requirements."²⁹ ( Id. at 34.)

29 Town Defendants cite to M.J. Entertainment Enterprises, Inc. , to argue that standing is not appropriate because Plaintiffs’ claims are not properly redressable. (Town Defs.’ Mem. 10.) Town Defendants’ argument is addressed infra in discussing the redressability requirement.

Plaintiffs have not pled sufficient facts to suggest that they have suffered an injury in fact with respect to the Bellmore Property. As explained above, the claims regarding the Bellmore Property are not ripe. Plaintiffs have not received a final decision with respect to the Bellmore Property. (Town Defs.’ Mem. 27 ("In Bellmore, the [Board] has not determined the application for renewal of the special use permit, and the [Department of Buildings] is a public assembly license."); Pls.’ Opp'n 3 (conceding that while "Plaintiffs have worked tirelessly — at great expense — to obtain final determinations that this Court could review on the merits," there is still no final decision)); cf. Anderson Grp., LLC , 805 F.3d at 46. Even if Plaintiffs did obtain a final decision for the Bellmore Property applications, Plaintiffs do not have standing because Town Defendants have allowed the Showtime Café to remain open and operating. (Town Defs.’ Mem. 7–8 ("[T]he Town has nonetheless permitted [Plaintiffs] to remain open and operating without any restraint ....")); cf. Cunney , 56 F. Supp. 3d at 490 (finding injury in fact when the plaintiff "personally suffered various forms of ‘financial loss’ "). Therefore, Plaintiffs have not suffered a financial injury from the closure, as they have with respect to the Wantagh Property. Because Plaintiffs have failed to plead a concrete, particularized, actual or imminent injury with respect to their as-applied takings, due process, and equal protection claims relating to the Bellmore Property, Plaintiffs have not adequately demonstrated that an injury in fact exists sufficient to confer standing at the motion-to-dismiss stage.

B. As-applied First Amendment claims

Town Defendants argue that Plaintiffs "have no standing to argue ... First Amendment rights." (Town Defs.’ Reply 1; see also Town Defs.’ Mem. 50 (stating that Plaintiffs have "no standing to claim a redressable loss of First Amendment rights").) Town Defendants assert that Plaintiffs do not show that "the challenged regulation granting discretion ... [is] expressly directed at protected speech or expressive conduct" or that there is a "close enough nexus to expression" to First Amendment freedoms.³⁰ (Town Defs.’ Mem. 16, 40–41 (quoting City of Lakewood v. Plain Dealer Publ'g Co. , 486 U.S. 750, 755–56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ).) Town Defendants also argue that Plaintiffs do not have standing because Plaintiffs’ claims do not "aris[e] under the First Amendment," as Plaintiffs do not demonstrate or plead that "the regulation being challenged ‘gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech.’ " (Id. at 41 (quoting City of Lakewood , 486 U.S. at 755–56, 108 S.Ct. 2138 ).)

30 Town Defendants’ arguments on First Amendment standing are intermingled with their arguments relating to ripeness. Because the Second Circuit has stated that the ripeness and standing doctrines are related, see Sunrise Detox V, LLC v. City of White Plains , 769 F.3d 118, 122 (2d Cir. 2014) ("[A] non-final decision on how a parcel of land may be used does not ordinarily give rise to an injury that is sufficiently concrete and particularized to satisfy Article III."); Nat'l Org. for Marriage, Inc. v. Walsh , 714 F.3d 682, 688 (2d Cir. 2013) ("Constitutional ripeness, in other words, is really just about the first Lujan factor — to say a plaintiff's claim is constitutionally unripe is to say the plaintiff's claimed injury, if any, is not "actual or imminent," but instead "conjectural or hypothetical." "), in the absence of standing-specific arguments on injury in fact, the Court considers Town Defendants’ arguments regarding ripeness when appropriate for the standing inquiry.

Plaintiffs assert that they have suffered a First Amendment injury because Town Defendants "imposed an impermissible prior restraint and interference with expression and entertainment at the Wantagh Property," (SAC ¶ 119), conspired to "suppress the exhibition of dancing and other entertainment ... by engaging in a pattern of harassment," (id. ¶ 453), sought to "suppress the exhibition of entertainment at the Wantagh Property and the Bellmore [Property] pursuant to unconstitutional provisions — and [the] unconstitutional application of" — the Town's statutes, (id. ¶ 455), and selectively enforced Town and state laws in violation of the First Amendment, (id. ¶ 498). Plaintiffs argue that they have suffered "irreparable injury" because their "expression has been silenced[ ] and continues to be silenced" and because "the chill to free expression is manifest and continuing." (Pls.’ Opp'n 20.) Plaintiffs argue that the Supreme Court has recognized that "impairment or loss of free speech ‘freedoms for even minimal periods of time, unquestionably constitutes irreparable injury’ " and that "the special protection accorded to First Amendment claims includes the ‘fear of irretrievable loss’ " resulting from an incursion on free speech. (Id. (first quoting Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ; and then quoting Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 90 (2d Cir. 2002) ).)

To establish First Amendment standing, the Supreme Court has held that a plaintiff must show injury to constitutionally protected expression; "[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum , 408 U.S. 1, 13–14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ("[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions." (quoting United Pub. Workers of Am. (C.I.O.) v. Mitchell , 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947) )). "Entertainment, as well as political and ideological speech, is protected" under the First Amendment. Schad v. Borough of Mount Ephraim , 452 U.S. 61, 65–66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("[M]otion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works [all] fall within the First Amendment guarantee." (first citing Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) ; then citing Schacht v. United States , 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970) ; then citing Jenkins v. Georgia , 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974) ; then citing Se. Promotions, Ltd. v. Conrad , 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) ; then citing Erznoznik v. City of Jacksonville , 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) ; and then citing Doran v. Salem Inn, Inc. , 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) )); Muchmore's Cafe, LLC v. City of New York , No. 14-CV-5668, 2016 WL 11469539, at *5 (E.D.N.Y. Sept. 29, 2016) (holding that cabaret had standing to challenge city's cabaret law, which required a license for dancing in bars, restaurants, and, subject to certain exceptions, any other room, space, or place in the city that is open to the public where dancing occurs).³¹ Plaintiffs allege a First Amendment injury sufficient to confer standing with respect to the Wantagh Property because they argue that Defendants have prohibited their constitutionally protected expression. (SAC ¶¶ 251–252, 453 (noting that dancing and other forms of entertainment such as magic shows and talent contests are not occurring at the Wantagh Property due to its closure).) However, with respect to the Bellmore Property, Plaintiffs have not established standing for their First Amendment as-applied claims. Although Plaintiffs alleged several ways in which Town Defendants have harmed their First Amendment interests, neither in the SAC nor in their briefing have Plaintiffs explained how the alleged infringement of their right to expression has manifested while the Bellmore Café remains open and while performances are permitted to continue. Plaintiffs have not established that they have been forced to refrain from any constitutionally protected expression, and mere allegations of "potential ‘chill’ " alone are insufficient. See Keepers, Inc. v. City of Milford , 807 F.3d 24, 43 (2d Cir. 2015) (finding no First Amendment injury when plaintiff offered no "objective evidence to substantiate [its] claim that the challenged regulation has deterred [it] from engaging in protected activity" (alterations in original)).

31 Town Defendants contend that Plaintiffs were disingenuous as to their intended use of the Wantagh Property and suggest that Plaintiffs intend to offer adult cabaret entertainment. (SAC Answer ¶¶ 501–504.) Because the Court accepts all the facts in the SAC as true at the motion-to-dismiss stage, see Lujan , 504 U.S. at 561, 112 S.Ct. 2130, the Court accepts Plaintiffs’ assertion that they did not intend to offer adult entertainment at the Wantagh Property. However, while Defendants do not argue that such adult cabaret activity would deprive Plaintiffs of First Amendment protection for their expression, the Court notes that even if Plaintiffs did intend to offer adult entertainment, Plaintiffs would still be entitled to First Amendment protection — albeit to a lesser extent. See Young v. Am. Mini-Theaters, Inc. , 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (noting that while sexually explicit material should be regarded as low-value speech that is more susceptible to government regulation, the First Amendment protects communication in this area from total suppression); see also City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (holding that municipal ordinances designed to restrict the use of land for the purposes of adult entertainment must "not unreasonably limit alternative avenues of communication"); Schad v. Borough of Mount Ephraim , 452 U.S. 61, 65–66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (suggesting that nude dancing is protected by the First Amendment); TJS of N.Y., Inc. v. Town of Smithtown , 598 F.3d 17, 20–21 (2d Cir. 2010) ("Adult entertainment, unlike obscenity, has been held by the Supreme Court to be protected by the First Amendment." (citation omitted)).

Accordingly, the Court finds that Plaintiffs have established injury in fact for their First Amendment claims as to the Wantagh Property but not as to the Bellmore Property.

2. Causation

Town Defendants argue that Plaintiffs have not "plausibly alleged, nor can they demonstrate ... ‘causation’ " because they have not established that their injury in fact can be "fairly ... traced to the procedures required to obtain those permits." (Town Defs.’ Mem. 11.) Town Defendants assert that Plaintiffs’ injury with respect to both the Wantagh and Bellmore properties were the result of Plaintiffs’ own conduct because Plaintiffs have not cured "zoning off-street parking and [setback] violation[s] posed by the front portico" for the Wantagh Property and have not cured "the building and fire code violations, and obtained a Certificate of Completion" for the Bellmore Property. (Id. )

Plaintiffs allege that they have established a "causal connection between the injury and the Defendants’ conduct" because "[Town] Defendants never employed less restrictive measures" with respect to their regulation of the properties. (Pls.’ Opp'n 32–33.)

"[A] plaintiff may not establish injury for standing purposes based on a ‘self-inflicted’ injury." Nat. Res. Def. Council, Inc. , 710 F.3d at 85 (citing St. Pierre v. Dyer , 208 F.3d 394, 403 (2d Cir. 2000) ). "An injury is ‘self-inflicted’ so as to defeat standing only if ‘the injury is so completely due to the plaintiff's own fault as to break the causal chain.’ " Backer ex rel. Freedman v. Shah , 788 F.3d 341, 344 (2d Cir. 2015) (quoting St. Pierre , 208 F.3d at 402 ); see also Bandler v. Town of Woodstock , 832 Fed.Appx. 733, 734 (2d Cir. 2020) ("To establish the traceability requirement of standing, a plaintiff must establish that the injury was not ‘self-inflicted’ or ‘so completely due to the plaintiff's own fault as to break the causal chain.’ " (quoting St. Pierre , 208 F.3d at 402 )). However, "[s]o long as the defendants have engaged in conduct that may have contributed to causing the injury, it would be better to recognize standing." St. Pierre , 208 F.3d at 402 (quoting 13 Charles A. Wright et al., Federal Practice and Procedure § 3531.5, at 461 (2d ed. 1984) ); see also Taylor v. Bernanke , No. 13-CV-1013, 2013 WL 4811222, at *10 n.5 (E.D.N.Y. Sept. 9, 2013) ("Self-inflicted injury that results from a plaintiff's personal choices rather than a defendant's conduct will not confer standing." (citing McConnell v. F.E.C. , 540 U.S. 93, 228, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled on other grounds by Citizens United v. F.E.C. , 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) )); Union Cosmetic Castle, Inc. v. Amorepacific Cosmetics USA, Inc. , 454 F. Supp. 2d 62, 71 (E.D.N.Y. 2006) ("A plaintiff cannot establish Article III standing to pursue a cause of action where that plaintiff is the primary cause of its own alleged injury.").

"For standing purposes, a plaintiff is required only to show that the injury ‘is fairly traceable to the challenged conduct of the defendant.’ " Tweed-New Haven Airport Auth. , 930 F.3d at 71 (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 338, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) ). "Where, as here, a plaintiff is threatened by the enforcement of a statute that specifically targets the plaintiff, the requirement is met." Id. (citing Lujan , 504 U.S. at 561–62, 112 S.Ct. 2130.) "A plaintiff is not required to show that a statute is the sole or the but-for cause of an injury." Id. ("An injury can be ‘fairly traceable’ even when future contingencies of one kind or another might disrupt or derail a project."); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 261, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (noting that while an injunction in a challenge to zoning restrictions as racially discriminatory would not guarantee the development of the housing corporation, the injunction would nonetheless remove an absolute barrier to construction); NAACP v. Town of Huntington , 689 F.2d 391, 394 (2d Cir. 1982) (finding causation when group showed "diligent efforts to secure funding" and obtain governmental approvals if the challenged statute was invalidated). In Tweed-New Haven Airport Authority , the Second Circuit found causation when a plaintiff's asserted injury — the inability to extend its runway due to a state law — was uncertain because the plaintiff was required to "undertake additional steps, such as obtaining funding, environmental permits, or additional carriers." 930 F.3d at 71 ("Nearly every project of any complexity involves contingencies or uncertainties of some sort. The point of a standing inquiry is not to figure out whether a plaintiff will likely achieve a desired result."). The Second Circuit noted that the purpose of the standing inquiry is to "ensure that a plaintiff has a sufficient nexus to the challenged action in the form of a personal stake in the litigation so that the case or controversy requirements of Article III are met." Id. (citing Chevron Corp. v. Donziger , 833 F.3d 74, 121 (2d Cir. 2016) ).

With respect to the Wantagh Property, Plaintiffs have established that they have suffered an injury in fact both as to their property rights and as to their First Amendment rights. Although these constitute separate interests for the purposes of injury, the Court considers them together as their injuries arise out of the same factual conduct — Defendants’ denial of the 2016 Application.

The circumstances in Wantagh are analogous to the circumstances in Tweed-New Haven Airport Authority . Although there are multiple barriers to the proposed use of the cabaret, such as making the required changes to the portico setback and parking lot, Plaintiffs allege that they have taken extensive steps to attempt to avoid such an outcome, including "extensive meetings, plan modifications, submissions[,] and other steps explicitly detailed by the Town [Defendants]." (Pls.’ Opp'n 2.) In addition, as in Tweed-New Haven Airport Authority , Town Defendants’ action — denial of the special use permit — is an absolute barrier to use of the Wantagh Property as a cabaret, regardless of the additional actions Plaintiffs may need to take for the cabaret to be operable. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 668, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) ("Furthermore, we did not hold in Warth ... that the association was required to allege that but for a discriminatory policy, variances or permits would have been awarded to its members. An allegation that a ‘specific project’ was ‘precluded’ by the existence or administration of the zoning ordinance would certainly have been sufficient to establish standing." (citation omitted)). In addition, Plaintiffs allege that the Board is "fully capable of holding hearings and entertaining applications for special exceptions even [when] renovations allegedly need to be conducted." (Pls.’ Opp'n 18; SAC ¶¶ 356–359.)

With respect to the Bellmore Property, on the other hand, Plaintiffs have not been forced to close the Showtime Café or abstain from any constitutionally protected expression that would constitute an injury in fact. (Town Defs.’ Mem. 7–8 ("[T]he Town has nonetheless permitted the Plaintiffs to remain open and operating without any restraint ....").) Even if an injury did exist, the injury would not have been caused by Town Defendants because ceasing operations and expression at the Bellmore Property would have been solely Plaintiffs’ decision. See Union Cosmetic Castle, Inc. , 454 F. Supp. 2d at 71 ("A plaintiff cannot establish Article III standing to pursue a cause of action where that plaintiff is the primary cause of its own alleged injury.").

Accordingly, at this stage of the proceedings and on the current record, the Court cannot conclude that Plaintiffs’ injury with respect to the Wantagh Property is "so completely due to [their] ... own fault as to break the causal chain." Pierre , 208 F.3d at 402. However, any injury with respect to the Bellmore Property is the result of Plaintiffs’ own conduct.

3. Redressability

Town Defendants argue that Plaintiffs’ claims are not redressable "in the face of unresolved building and zoning code violations." (Town Defs.’ Mem. 6.) Town Defendants argue that M.J. Entertainment Enterprises, Inc. , is illustrative because the court in that case found that the redressability prong is not met when a plaintiff's proposed use is barred by another ordinance. 234 F. Supp. 2d at 308–09. Town Defendants argue that the claims before the Court are analogous because Plaintiffs’ inability to open a cabaret at the Wantagh Property would not be "redressed by a favorable decision" given the ongoing zoning and building code violations, which "prohibit[ ] occupation for any purpose until the violations are cured." (Town Defs.’ Mem. 10 (emphasis omitted).)

Plaintiffs argue that they have "redressable constitutional claims" because, if they "are allowed to open and operate the Wantagh [c]abaret[,] they can provide constitutionally protected expression and entertainment to the public." (Pls.’ Opp'n 33.) Plaintiffs also argue that with respect to the Bellmore Property, receiving their long-delayed cabaret and public assembly permits will mean that they will "not have to live with the specter of possible criminal charges and other violations hanging over their heads through the continued operation of their business." ( Id. at 34.) In addition, Plaintiffs assert that "[Town] Defendants’ reliance on M.J. Entertainment Enterprises, Inc. ... is misplaced" because the plaintiff in that case "had standing to challenge the [c]ity's ordinance that restricted where adult businesses could be located" and standing was not found only as to the plaintiff's challenge of the special permit requirements of the law because the plaintiff "was not subject to those requirements." ( Id. (emphasis omitted).) Plaintiffs assert that this is "markedly different from the current case where ... Plaintiffs are directly impacted and harmed by each of the causes of action presented in the [SAC]." ( Id. )

The nature of a redressability inquiry "focuses ... on whether the injury that a plaintiff alleges is likely to be redressed through the litigation." Sprint Commc'ns Co., L.P. v. APCC Servs., Inc. , 554 U.S. 269, 287, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). To satisfy the redressability requirement, a plaintiff must establish that "it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit." Id. at 273–74, 128 S.Ct. 2531 (internal quotation marks omitted) (quoting Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ); see also Nat'l Org. for Marriage, Inc. , 714 F.3d at 688 (noting that "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision") (quoting Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ); M.S. v. Brown , 902 F.3d 1076, 1083 (9th Cir. 2018) ("A plaintiff's burden to demonstrate redressability is relatively modest. She need not demonstrate that there is a guarantee that [her] injuries will be redressed by a favorable decision; rather, a plaintiff need only show a substantial likelihood that the relief sought would redress the injury." (alteration in original) (internal quotation marks omitted) (first quoting Renee v. Duncan , 686 F.3d 1002, 1013 (9th Cir. 2012) ; and then quoting Mayfield v. United States , 599 F.3d 964, 971 (9th Cir. 2010) )); Mhany Mgmt., Inc. v. County of Nassau , 819 F.3d 581, 602 (2d Cir. 2016) ("Redressability is not a demand for mathematical certainty.") (quoting Toll Bros. v. Township of Readington , 555 F.3d 131, 143 (3d Cir. 2009) ); Toll Bros. , 555 F.3d at 143 ("Redressability is not a demand for mathematical certainty. It is sufficient for the plaintiff to establish a ‘substantial likelihood that the requested relief will remedy the alleged injury in fact.’ " (quoting Vt. Agency of Nat. Res. , 529 U.S. at 771, 120 S.Ct. 1858 )). The redressability prong does not demand that court-ordered relief completely redress all injury. Larson v. Valente , 456 U.S. 228, 244 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ("[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury."); see also Knight First Amend. Inst. , 302 F. Supp. 3d at 561 (finding the redressability prong to be met and noting that "any relief provided need not be complete").

Plaintiffs have pled sufficient facts to suggest that it is likely, and not merely speculative, that relief from the Court against Defendants could partially redress their alleged injury with respect to the Wantagh Property. If Plaintiffs were to succeed on the merits in this action, Town Defendants could be found liable and subject to monetary damages and equitable relief in the form of an order enjoining their alleged unconstitutional interference with the Plaintiffs’ property as well as declaratory relief compelling them to issue to Plaintiffs a cabaret permit and Certificate of Occupancy to operate a cabaret at the Wantagh Property. (SAC ¶ 137.) Plaintiffs have demonstrated standing as to both of these forms of relief. See Leder , 81 F. Supp. 3d at 211 (citing MacIssac , 770 F. Supp. 2d at 593 ("[A] plaintiff must demonstrate standing separately for each form of relief sought." (quoting Friends of the Earth, Inc. , 528 U.S. at 180–81, 120 S.Ct. 693 ))).

Where, as here, a plaintiff seeks compensatory damages under section 1983 for economic injuries sustained as a result of the defendants’ alleged constitutional violations, an order from the Court awarding monetary damages will redress the injury. See id. (holding that a plaintiff had standing to seek compensatory damages for allegedly unconstitutional fine); Cunney , 56 F. Supp. 3d at 491 ("[W]here [the plaintiff] seeks compensatory damages under [ section] 1983 for economic injuries sustained as a result of these constitutional violations, an order from the [c]ourt awarding [the plaintiff] monetary relief will redress his injury."); Maxineau v. City of New York , 2013 WL 3093912, at *11 (E.D.N.Y. 2013) ("Because [the plaintiff] alleges constitutional violations, a successful outcome in litigation would entitled him to, at the very least, nominal damages. This is sufficient availability of redress for the purposes of Article III standing." (citation omitted)).

In addition, Plaintiffs’ claims for injunctive and declaratory relief with respect to their as-applied constitutional challenges arising out of Town Defendants’ denial of or failure to act upon their applications for a cabaret permit and a Certificate of Occupancy for the Wantagh Property are likely to redress their alleged constitutional injuries as well. See, e.g., Congregation Rabbinical Coll. of Tartikov, Inc. , 945 F.3d at 110 (" ‘[S]tigmatizing members of [a] disfavored group as innately inferior and therefore as less worthy participants in the political community’ — i.e. , discrimination — is an actual and concrete injury sufficient to confer standing. The " ‘right invoked is that of equal treatment," [and] the appropriate remedy is a mandate of equal treatment.’ " (alterations in original) (footnote omitted) (quoting Heckler v. Mathews , 465 U.S. 728, 739–40, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) )). As established supra , Plaintiffs have alleged that they will be subject to a continuing threat of harm. (See, e.g. , Pls.’ Opp'n 8 (alleging that Plaintiffs consistently renew the public assembly permit each year); SAC ¶ 480 (citing section 267(D)(3) of the BZO, which provides that the Board can require "renewals as the Board may deem appropriate").)

The Court finds unpersuasive Town Defendants’ argument that Plaintiffs’ claims with respect to the Wantagh Property are unredressable under M.J. Entertainment Enterprises, Inc . In M.J. Entertainment Enterprises, Inc. , a bar owner brought an action alleging that the city's denial of its application to provide live adult entertainment violated its First Amendment rights. M.J. Ent. Enters., Inc. , 234 F. Supp. 2d at 307–08. The bar at issue was located in an area where the city's zoning code prohibited land use for the purpose of adult entertainment. Id. The court found that the plaintiff had standing to challenge the constitutionality of the zoning code but lacked standing to challenge the procedures for granting the special permit. Id. at 310–12. The bar lacked standing to bring a facial challenge to the defendant's licensing scheme because the challenged "procedures d[ id] not apply to the ... [z]oning [d]istrict where [the plaintiff's cabaret] [wa]s located." Id. at 311. The issue was not that the bar owner's proposed use was barred by another ordinance, as the court found redressability to challenge the zoning scheme that barred the proposed use. Id. at 310. Therefore, the claims regarding the Wantagh Property are more similar to the First Amendment challenge in M.J. Entertainment Enterprises, Inc. for which the court found redressability. Plaintiffs bring a facial First Amendment challenge claiming that government zoning ordinances impermissibly prohibit protected speech. These challenges are redressable by injunctive relief mandating that the city or town amend its zoning code to allow the prohibited expression in a manner that comports with the First Amendment. See id. at 310 ("[A] decision in [the plaintiff's] favor would redress its injury. If this [c]ourt were to find that the [city's] [z]oning [c]ode does not provide for alternative avenues of communication, [the city] would have to amend its [z]oning [c]ode to do just that — provide for alternative avenues of communication.").

Despite multiple barriers to the proposed use of the cabaret, Plaintiffs allege that Defendants’ conduct stands in the way of their use of the Wantagh Property and their protected expression, and therefore their injury would be redressed in part by injunctive or declaratory relief. See Tweed-New Haven Airport Auth. , 930 F.3d at 72 ("A favorable decision will also likely redress [the plaintiff]’s current inability to move forward with the runway extension and will remove the absolute barrier the [s]tatute imposes.").

As established supra , Plaintiffs do not allege a fairly traceable injury in fact with respect to the Bellmore Property because Town Defendants have permitted the property to remain open and operating, and mere allegations of a chilling effect alone do not suffice to confer standing. Laird , 408 U.S. at 13–14, 92 S.Ct. 2318 ("Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm."). Plaintiffs have not suffered a redressable injury because they have been able to keep the Showtime Café open and operating. (Town Defs.’ Mem. 7–8 ("[T]he Town has nonetheless permitted the Plaintiffs to remain open and operating without any restraint ....").) Therefore, there is no injury that can be redressed by financial, injunctive, or declaratory relief.

Accordingly, the Court finds that Plaintiffs have established redressability for their as-applied claims as to the Wantagh Property but not as to the Bellmore Property.

ii. Standing for First Amendment facial challenges

In addition to their as-applied claims, Plaintiffs bring three First Amendment facial challenges to the Town's laws: (1) a facial challenge to the Town's requirement that restaurants have windows, (SAC ¶ 476 (asserting that BZO § 302(Q) is "fatally vague and overbroad")); (2) a facial challenge to BZO § 267(D)(3) (the "BZO Temporal Limit Provision"), which authorizes the imposition of temporal limits on the grant of a cabaret permit and other special uses, (id. ¶¶ 487–489 (arguing that the temporal renewal requirement as a condition pursuant to BZO § 267(D)(3) is "unconstitutional on its face" because it is impermissibly vague)); and (3) a facial challenge to BZO § 272(C)(6) (the "BZO Special Use Provision"), which requires a special exemption to use the premises for a place of public assembly and amusement to be issued by the Board, (id. ¶ 491).³²

32 In the brief supporting their motion to dismiss, Town Defendants only address Plaintiffs’ First Amendment facial challenges for lack of standing. Although Plaintiffs bring facial challenges premised on other grounds such as the Fourteenth Amendment, the Court declines to address these other claims at this time as the parties did not brief the issue of Plaintiffs’ standing with respect to non-First Amendment facial challenges. (See 2016 Order 45 (declining to address facial claims when parties did not brief this issue).)

Town Defendants argue that Plaintiffs do not show that "the challenged regulation[s] granting discretion ... [are] expressly directed at protected speech or expressive conduct" or that there is a "close enough nexus to expression" to First Amendment freedoms. (Town Defs.’ Mem. 16, 40–41 (quoting City of Lakewood , 486 U.S. at 755–56, 108 S.Ct. 2138 ).) Because Plaintiffs’ claims do not "aris[e] under the First Amendment" and because Plaintiffs do not demonstrate or plead that "the regulation being challenged ‘gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech,’ " Town Defendants argue that Plaintiffs do not have standing. (Id. at 41 (quoting City of Lakewood , 486 U.S. at 755–56, 108 S.Ct. 2138 ).)

Plaintiffs argue that they have standing to bring their facial challenges because the Complaint satisfies the three Lujan requirements for standing. (Pls.’ Opp'n 32.) Plaintiffs also assert that standing weighs in their favor because "general standing requirements are relaxed in the context of First Amendment overbreadth claims and in facial challenges to licensing and permit schemes." (Id. (first citing Forsyth County v. Nationalist Movement , 505 U.S. 123, 129–30, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ; and then citing City of Lakewood , 486 U.S. at 755–56, 108 S.Ct. 2138 ).)

"[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." City of Lakewood , 486 U.S. at 759, 108 S.Ct. 2138. "[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." Field Day, LLC v. County of Suffolk , 463 F.3d 167, 176 (2d Cir. 2006) (quoting City of Lakewood , 486 U.S. at 755–56, 108 S.Ct. 2138 ). "This does not mean that a facial challenge will always lie, for ‘[t]he law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.’ " MacDonald v. Safir , 206 F.3d 183, 189 (2d Cir. 2000) (alteration in original) (quoting City of Lakewood , 486 U.S. at 759, 108 S.Ct. 2138 ).

"Although facial challenges are generally disfavored, they are more readily accepted in the First Amendment context." Beal v. Stern , 184 F.3d 117, 125 (2d Cir. 1999) (citing Forsyth County , 505 U.S. at 129, 112 S.Ct. 2395 ("It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation ....")); see also Lebron v. National R.R. Passenger Corp. (Amtrak) , 69 F.3d 650, 659 (2d Cir. 1995) ("[T]he [c]ourt has altered its traditional rules of standing to permit [facial attacks] in the First Amendment area ...." (quoting Broadrick v. Oklahoma , 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) )). " ‘This exception ... is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court,’ and ‘the difficulty of effectively detecting, reviewing, and correcting content-based censorship "as applied" without standards by which to measure the licensor's action.’ " Beal , 184 F.3d at 125–26 (first quoting Forsyth County , 505 U.S. at 129, 112 S.Ct. 2395 ; and then quoting City of Lakewood , 486 U.S. at 759, 108 S.Ct. 2138 ). "Thus, where a law's ‘nexus to expression’ is such that discretion in its application will ‘pose a real and substantial threat’ of censorship, courts ‘must entertain an immediate facial attack." Id. (quoting City of Lakewood , 486 U.S. at 759, 108 S.Ct. 2138 ).

Plaintiffs’ facial challenges to the provisions of the BZO that require a special exemption to use the premises for a place of public assembly and amusement, as well as Plaintiffs’ facial challenge to the BZO Temporal Limit Provision, both necessarily implicate the First Amendment because these licensing and permitting schemes are related to First Amendment protected rights of assembly and expressive speech for the purpose of entertainment. See Johnson v. Perry , 859 F.3d 156, 171 (2d Cir. 2017) ("The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." (quoting De Jonge v. Oregon , 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937) )). As established supra , "[e]ntertainment, as well as political and ideological speech, is protected" under the First Amendment. Schad , 452 U.S. at 65–66, 101 S.Ct. 2176 ; see also Jenkins , 418 U.S. at 153, 94 S.Ct. 2750 ; Muchmore's Cafe, LLC , 2016 WL 11469539, at *5.

While the Second Circuit has held that facial challenges to facially neutral licensing regulations may be permitted, the statute must "vest[ ] unbridled discretion in a government official over whether to permit or deny expressive activity." City of Lakewood , 486 U.S. at 755, 108 S.Ct. 2138 ; see also Field Day, LLC , 463 F.3d at 193 ("[T]he concern that the government may use facially neutral licensing regulations to engage in content discrimination is the very thing that animates courts to entertain facial challenges to licensing regulations." (citing City of Lakewood , 486 U.S. at 759, 108 S.Ct. 2138 )).

Plaintiffs’ facial challenge regarding the windows requirement set forth in BZO § 302(Q) is more tenuous. Section 302(Q) does not explicitly apply to places of assembly or to places where expressive activity necessarily occurs. Instead, it applies to all buildings "the principal use of which is to serve food to patrons for on-site consumption." (SAC ¶ 217 (quoting BZO § 302(Q)).) Plaintiffs do not allege that section 302(Q) gives the Town "unbridled discretion." City of Lakewood , 486 U.S. at 757, 108 S.Ct. 2138. The text of the legislation specifies that "windows shall occupy not less than [twenty] percent of the surface area of each wall." (SAC ¶ 217 (quoting BZO § 302(Q)).) This constitutes a manageable standard, not unbridled discretion. Cf. Field Day, LLC , 463 F.3d at 176 (adjudicating First Amendment facial challenge to statutory scheme regulating mass gatherings when plaintiffs argued that the catch-all provisions are "untethered to any standards for determination, effectively [giving] the permit-issuing officials unconstitutionally unbridled discretion to deny a permit for any reason they see fit"). Plaintiffs’ main contention with respect to the windows requirement is that it was enacted arbitrarily and to impose "costly and onerous burdens on ... Plaintiffs." (SAC ¶ 218.) While Plaintiffs may have standing to challenge the ordinance under another constitutional provision, they do not have standing to bring a facial challenge under the First Amendment.

In addition, while Plaintiffs need not have applied for permits under the three challenged laws to satisfy the requirements of Lakewood , the fact that they have done so demonstrates that Plaintiffs have been and will continue to be subject to these ordinances. As a result, Plaintiffs are injured if the laws violate the First Amendment. Furthermore, the injury claimed by Plaintiffs is traceable to Town Defendants’ conduct under the laws, and it could be redressed should the Court find the laws unconstitutional. See Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130.

Accordingly, the Court finds that Plaintiffs have standing to bring their First Amendment facial challenges to the provisions of the BZO that require a special exemption to use the premises for a place of public assembly and amusement as well as to bring their facial challenge to the BZO Temporal Limit Provision. However, Plaintiffs do not have standing to bring their First Amendment facial challenge to the windows requirement set forth in BZO § 302(Q).

d. Immunity

Town Defendants argue that Plaintiffs’ claims against the Board and Board members Rottkamp, Murray, and Santino are barred by absolute and qualified immunity. (Town Defs.’ Mem. 49–50.) Rhoads argues that the claims against him are barred by legislative immunity. (Rhoads Mem. 11.)

i. Absolute immunity

Town Defendants argue that Plaintiffs’ claims against Rottkamp, Murray, and Santino are barred by absolute immunity and that their publicly expressed statements regarding Plaintiffs’ permits are subject to First Amendment privilege. (Town Defs.’ Mem. 49; Town Defs.’ Reply 20.)

Plaintiffs argue that Town Defendants are not entitled to absolute immunity because Murray's actions "were not solely in her capacity of Town Supervisor ... [and] the evidence at trial will establish that [her] campaign against ... Plaintiffs was also politically motivated" and that the Board members’ liability is based on "their failure to act on ... Plaintiffs’ pending applications and questionable losing of ... Plaintiffs’ original restaurant application." (Pls.’ Opp'n 43.)

The New York Court of Appeals has expressly stated that "a zoning board of appeals performs a quasi-judicial function when considering applications for variances and special exceptions." Knight v. Amelkin , 68 N.Y.2d 975, 977, 510 N.Y.S.2d 550, 503 N.E.2d 106 (1986) ; see also Affrunti v. Zwirn , 892 F. Supp. 451, 453, 456 (E.D.N.Y. 1995) (concluding that the North Hempstead Town Board of Zoning Appeals is a "quasi-judicial, autonomous body" and that Board membership is a "quasi-judicial, policymaking position"), aff'd , 100 F.3d 943, 1996 WL 53625 (2d Cir. 1996) (unpublished table decision); Levine v. McCabe , No. 03-CV-6420, 2007 WL 4441226, at *8 (E.D.N.Y. Dec. 17, 2007) (concluding that judicial hearing officers are policymakers) (citing Affrunti , 892 F. Supp. at 451 ), aff'd , 327 F. App'x 315 (2d Cir. 2009) ; Real Holding Corp. v. Lehigh , 2 N.Y.3d 297, 301–02, 778 N.Y.S.2d 438, 810 N.E.2d 890 (2004) (noting that statutes and case law emphasize that zoning boards are vested with the exclusive power to grant variances from zoning ordinances) (citing Jewish Reconstructionist Synagogue of N. Shore v. Inc. Village of Roslyn Harbor , 40 N.Y.2d 158, 162, 386 N.Y.S.2d 198, 352 N.E.2d 115 (1976) ("[T]he board of zoning appeals is a quasi-judicial body created by [s]tate law.")); Moundroukas v. Foley , 99 A.D.2d 784, 472 N.Y.S.2d 32, 33 (App. Div. 1984) ("We agree with [the lower court] that the challenged actions of the respondents in connection with the denial of [the] petitioner's application for a zoning variance were discretionary and quasi-judicial in nature ....").

Because a zoning board is tasked with "guarding against the growth of undesirable and destructive uses of property[,] ... [the] power to issue a building permit should not be hampered ... by the threat of suit for damages on behalf of an applicant." Rottkamp v. Young , 21 A.D.2d 373, 249 N.Y.S.2d 330, 335 (App. Div. 1964), aff'd , 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866 (1965). Consequently, the "deliberative proceedings of a zoning board regarding a variance application [a]re quasi-judicial ... [and] statements made during the course of the proceedings and which were material and relevant to the proceedings" are shielded by absolute immunity. Allan & Allan Arts Ltd. v. Rosenblum , 201 A.D.2d 136, 615 N.Y.S.2d 410, 413–14 (App. Div. 1994). "If the official acts adjudicatively, the official probably has absolute immunity. If the official acts executively, the official probably has qualified, good-faith immunity." Stewart v. Lattanzi , 832 F.2d 12, 13 (2d Cir. 1987) (per curiam); see also Parent v. New York , 786 F. Supp. 2d 516, 537 (N.D.N.Y. 2011) (holding that commissioner of the Department of Social Services was not entitled to absolute immunity because his "responsibilities [we]re not closely associated with the judicial process nor is their agency a quasi-judicial body"), aff'd , 485 F. App'x 500 (2d Cir. 2012).

The Board is quasi-judicial in character and is entitled to absolute immunity. To the extent that the members of the Board acted in their official capacity and are sued based on their quasi-judicial functions, they are also entitled to absolute immunity. Rottkamp's actions based on his capacity as commissioner of the Department of Buildings are also quasi-judicial in nature and subject to absolute immunity because his determinations on Plaintiffs’ applications "necessarily involved ... a consideration of the facts before him — an act which a building inspector must perform as part of his responsibilities." Rottkamp , 249 N.Y.S.2d at 334–35 (holding that the erroneous decision of a building inspector that "the plaintiffs were not entitled to a building permit for the erection of a diner, was discretionary and quasi-judicial in character"). However, the Court cannot determine that Murray's action based on her role as Town Supervisor was quasi-judicial because her submissions are "devoid of any comparative discussion of her role in reviewing an administrative appeal such as Plaintiff[s’] and the functional role of judges." Marshall v. N.Y. State Pub. High Sch. Athletic Ass'n, Inc. , 374 F. Supp. 3d 276, 289 (W.D.N.Y. 2019) ; see also Victory v. Pataki , 814 F.3d 47, 65–66 (2d Cir. 2016), as amended , (Feb. 24, 2016) ("Most executive officials receive only qualified immunity, and ‘the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." (citation omitted) (quoting Burns v. Reed , 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) )).

Accordingly, the Court finds that the claims against Rottkamp, the Board, and the Board's members, to the extent they are being sued in their official capacity, are barred by absolute immunity. However, based on the allegations in the SAC, the Court cannot conclude that Murray is entitled to absolute immunity.

ii. Legislative immunity

Rhoads argues that his "actions are protected by legislative immunity and/or his First Amendment Right to speak out on matters of public concern" on behalf of his constituents. (Rhoads Mem. 11.)

Plaintiffs argue that Rhoads acted in an administrative capacity as an advocate and not in a legislative capacity. (SAC ¶ 433.)

Legislative immunity shields an official from liability if the act in question was undertaken "in the sphere of legitimate legislative activity." Harhay v. Town of Ellington Bd. of Educ. , 323 F.3d 206, 210 (2d Cir. 2003) (quoting Bogan v. Scott–Harris , 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) ). The Supreme Court has established that under the functional test of absolute legislative immunity, "whether immunity attaches turns not on the official's identity, or even on the official's motive or intent, but on the nature of the act in question." Olma v. Collins , 499 F. App'x 98, 99–100 (2d Cir. 2012) (quoting Almonte v. City of Long Beach , 478 F.3d 100, 106 (2d Cir. 2007) ) (citing Harhay , 323 F.3d at 210 ); see also S. Lyme Prop. Owners Ass'n, Inc. v. Town of Old Lyme , 539 F. Supp. 2d 547, 559 (D. Conn. 2008) ("The enforcement policies may have been flawed, and the [d]efendant [c]ommissioners may have acted in bad faith, as is alleged by the [p]laintiffs, but legislative immunity is absolute and does not depend on these considerations.").

Legislative immunity covers all aspects of the legislative process: including "casting of a vote on a resolution or bill," discussing and forming alliances "regarding a legislative matter in anticipation of a formal vote," "[m]eeting with persons outside the legislature — such as executive officers, partisans, political interest groups, or constituents — to discuss issues that bear on potential legislation, ... participating in party caucuses to form a united position on matters of legislative policy, [and] assist[ing] legislators in the discharge of their legislative duty." Almonte , 478 F.3d at 107 (concluding that "legislative immunity cloaks not only the vote on the budgetary resolutions, but also any [secret] discussions the [c]ouncil members may have held, and any agreements they may have made, regarding the new budget in the months preceding the actual vote"); see also Bogan , 523 U.S. at 55, 118 S.Ct. 966 (finding that mayor's introduction of budget was legislative even though mayor was an executive official); Olma , 499 F. App'x at 100 (holding that the appellants acted in an legislative capacity "when they prepared and submitted to the [c]ity [c]ouncil the proposed budget amendment and accompanying memo suggesting elimination of the position filled by [the appellee]"); Anderson Grp., LLC v. City of Saratoga Springs , 557 F. Supp. 2d 332, 342 (N.D.N.Y. 2008) ("[T]o the extent the board defendants partook in the [c]ouncil's zoning decisions by voting on and issuing zoning recommendations to the [c]ouncil, they are also entitled to legislative immunity."), aff'd in part sub nom. Anderson Grp., LLC v. Lenz , 336 F. App'x 21 (2d Cir. 2009).

Legislators are not immune from suit for administrative acts. See Manzi v. DiCarlo , 982 F. Supp. 125, 129 (E.D.N.Y. 1997). Acts are administrative if they " ‘impact ... particular individuals rather than on a community,’ or [if] ‘the factors considered in adopting the legislation relate to specific individuals, instead of general policy implications.’ " Orange Lake Assocs., Inc. v. Kirkpatrick , 21 F.3d 1214, 1219–20 (2d Cir. 1994) (quoting Orange Lake Assocs., Inc. v. Kirkpatrick , 825 F. Supp. 1169, 1174 (S.D.N.Y. 1993) ); Anderson Grp., LLC , 557 F. Supp. 2d at 342, 345 (holding that downzoning of a region "was a purely legislative act" but that "action[s] taken on the [plaintiff's] special use permit by the [b]oard [were] administrative in nature ... [even though they] had implications for the public at large").

As the Supreme Court has explained, the purpose of legislative immunity is to protect legislators from "deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good." Tenney v. Brandhove , 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Consequently, when sued in their personal capacity, "[l]ocal legislators, like their counterparts on the state and regional levels, are entitled to absolute immunity for their legislative activities." Almonte , 478 F.3d at 106. However, local governments, municipalities, or officials sued in their official capacity are not entitled to legislative immunity. See Olma , 499 F. App'x at 100 ; Almonte , 478 F.3d at 106 ("Immunity, either absolute or qualified, is a personal defense that is available only when officials are sued in their individual capacities; ‘[t]he immunities [officials] enjoy when sued personally do not extend to instances where they are sued in their official capacities.’ " (alterations in original) (quoting Morris v. Lindau , 196 F.3d 102, 111 (2d Cir. 1999), abrogated on other grounds by Lore v. City of Syracuse , 670 F.3d 127 (2d Cir. 2012) )); Goldberg v. Town of Rocky Hill , 973 F.2d 70, 73–74 (2d Cir. 1992) (explaining that an official-capacity claim is in substance a claim against the municipality, which cannot assert immunity, either absolute or qualified, as a defense to liability under section 1983 ); Cincotta v. Hempstead Union Free Sch. Dist. , 313 F. Supp. 3d 386, 403 (E.D.N.Y. 2018) (stating that legislative immunity is limited to personal suits based on legislative acts). Although he is a local legislator, (SAC ¶ 29), Rhoads’ actions as alleged in the SAC were administrative in nature. Rhoads "posted on his official Facebook page about a ‘[c]ommunity [r]ally against ... [Dean's ] proposal in Wantagh," which "encouraged people to "appear at the Wantagh Property to ‘demonstrate the strong feeling of our community that this proposal will create an unacceptable and potentially dangerous nuisance that will damage the character of this neighborhood,’ " (id. ¶ 425 (first emphasis added)) — actions which suggest the intent to "form a united position on matters of legislative policy," Almonte , 478 F.3d at 107. However, the totality of Rhoads’ actions were not quintessentially legislative but were instead geared towards preventing the approval of Plaintiffs’ permit applications. In addition to advocating against Plaintiffs’ proposal in particular, Rhoads "represented the opponents to the [Bellmore Property] application during the hearing," (SAC ¶ 264): he called witnesses, cross-examined [P]laintiffs, and made a "lengthy summation," (id. ¶¶ 428–429, 269). See Harhay , 323 F.3d at 211 ("The [b]oard members are not entitled to absolute legislative immunity because their acts were not quintessentially legislative, but rather were part of a process by which an employment situation regarding a single individual was involved." (emphasis added)); Marshall , 374 F. Supp. 3d at 295 (holding that the defendant's decision to decline the plaintiff's accommodation was not subject to legislative immunity); Roman Cath. Diocese of Rockville Ctr. v. Inc. Village of Old Westbury , No. 09-CV-5195, 2012 WL 1392365, at *16 (E.D.N.Y. Apr. 23, 2012) (determining that an "individual assessment" of a single application for a special use permit was not legislative in nature); Schubert v. City of Rye , 775 F. Supp. 2d 689, 701 (S.D.N.Y. 2011) (noting that the defendants "did not engage in some broad policy debate about changing or enacting " regulations, and instead their "alleged actions involved existing land-use policies as applied to a single resident " (emphases added)); Ruston v. Town Bd. for Town of Skaneateles , No. 06-CV-927, 2009 WL 3199194, at *4 (N.D.N.Y. Sept. 30, 2009) (stating that "courts have distinguished between situations where a single issue relevant to a single individual is resolved and a ‘broad, prospective policymaking that is characteristic of legislative action’ " (quoting Almonte , 478 F.3d at 108 )), aff'd , 610 F.3d 55 (2d Cir. 2010) ; Massaro v. Allingtown Fire Dist. , No. 02-CV-537, 2002 WL 32500871, at *3 (D. Conn. Nov. 22, 2002) ("[A]s a general proposition[,] decisions limited to one individual are characterized as administrative rather than legislative.").

Accordingly, the Court finds that Rhoads is not entitled to legislative immunity.

iii. Qualified immunity

Town Defendants argue in the alternative that the individual defendants are insulated from liability based on qualified immunity because "it was ‘objectively reasonable’ for them to believe that their actions did not violate ‘clearly established’ rights," (Town Defs.’ Mem. 50), when fulfilling their municipal responsibilities in response to Plaintiffs’ "admitted code violations," (Town Defs.’ Reply 20).

Plaintiffs argue that Defendants, including Rhoads, fail to meet their burden to establish qualified immunity because their conduct fell outside the scope of their official duties and Defendants’ actions were not objectively reasonable. (Pls.’ Opp'n 40–41.) With regard to nonofficial acts, Plaintiffs argue that Murray instigated the rehearing of Plaintiffs’ permit application for the Wantagh Property and circulated speech that "played an extremely active role in this conspiracy," (id. at 40), and Rhoads posted on Facebook advocating against the Wantagh Property permit applications, trespassed on Plaintiffs’ property, participated "as the prosecutor" in Plaintiffs’ hearing, and engaged in ex parte communications with a member of the Board, (id. ). Plaintiffs argue that Defendants failed to act objectively reasonably based on their (1) reopening of the hearing and delay in issuing findings of fact — and thereafter posting them on the Board's website, (2) rescission of the Department of Buildings’ initial approval of Plaintiffs’ restaurant application and delay in providing a subsequent determination, (3) loss of computer files pertaining to the restaurant application, (4) conducting "at least [thirty-four] inspections" of the Wantagh Property when only three to four are usually conducted in similar circumstances, (5) changing the procedure for obtaining final determinations on the Wantagh Property and Bellmore Property cabaret permits, (6) failing to renew the cabaret, parking, and public assembly permits, and (7) failing to timely notify Plaintiffs of objections to a building survey so the matter could be speedily addressed. (Id. at 42.)

"Qualified immunity protects government officials from civil damages liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Jones v. Treubig , 963 F.3d 214, 224 (2d Cir. 2020) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). "Thus, pursuant to the two-step framework articulated by the Supreme Court in Saucier v. Katz , 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), when an official raises qualified immunity as a defense, the court must consider whether: ‘(1) ... the official violated a statutory or constitutional right, and (2) ... the right was "clearly established" at the time of the challenged conduct.’ " Id. (quoting Ricciuti v. Gyzenis , 834 F.3d 162, 167 (2d Cir. 2016) ); see also Chamberlain ex rel. Estate of Chamberlain v. City of White Plains , 960 F.3d 100, 110 (2d Cir. 2020) ("Qualified immunity is available to officials so long as their actions do not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ " (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) )); Garcia v. Does , 779 F.3d 84, 92 (2d Cir. 2014) (same).

"To determine whether defendants enjoy qualified immunity, ‘[the court] consider[s] the specificity with which a right is defined, the existence of Supreme Court or Court of Appeals case law on the subject, and the understanding of a reasonable officer in light of preexisting law.’ " Chamberlain , 960 F.3d at 110 (quoting Terebesi v. Torreso , 764 F.3d 217, 231 (2d Cir. 2014) ). "It is well settled that enforcement of an otherwise valid zoning ordinance violates the Constitution ... if ... the decision of the particular zoning body is arbitrary, ... or if the ordinance is applied or enforced with a discriminatory intent or purpose." Brady v. Town of Colchester , 863 F.2d 205, 217 (2d Cir. 1988) (citing Scudder v. Town of Greendale , 704 F.2d 999, 1002 (1983) ). "The threshold issue in determining the applicability of [a defendant's] qualified immunity defense [in a zoning context] is whether the [the plaintiff] had a ‘clearly established right’ to the permits at issue." Natale v. Town of Ridgefield , 927 F.2d 101, 105 (2d Cir. 1991) ; see also Acquest Wehrle, LLC v. Town of Amherst, 129 A.D.3d 1644, 11 N.Y.S.3d 772, 777 (App. Div. 2015) (holding that the defendants failed to establish that it was objectively reasonable to withdraw the plaintiff's waiver request without knowing the history of the project and thus, they were not entitled to absolute immunity). "In deciding whether a claim of entitlement to requested permits exists, the proper inquiry is ‘whether, absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the [permit] application would have been granted.’ " Natale , 927 F.2d at 105 (alteration in original) (quoting Yale Auto Parts, Inc. v. Johnson , 758 F.2d 54, 59 (2d Cir. 1985) ). Thus, members of a board of zoning appeals being sued in their individual capacities are not entitled to qualified immunity "in the event that they are found to have violated the appellants’ [F]ourteenth [A]mendment rights." Brady , 863 F.2d at 217.

For reasons explained below, Defendants did not violate Plaintiffs’ Fourteenth Amendment rights, see infra section II.f.i, and Plaintiffs did not have a clearly established right to the permits sought in the 2016 Application as they failed to cure code violations, see infra section II.f.ii. Accordingly, Defendants are entitled to qualified immunity with respect to Plaintiffs’ Fourteenth Amendment claims based on procedural due process, substantive due process, and equal protection. See Natale , 927 F.2d at 105 ("Because ... there was a legitimate dispute as to whether the permit applications should have been granted, we find that [the defendant] acted reasonably ... [and] is entitled to qualified immunity."). Because the Court does not decide Plaintiffs’ First Amendment claims at this stage of the litigation, see infra section II.j, the Court does not yet reach the issue of Plaintiffs’ qualified immunity with respect to these claims. See Puckett v. City of Glen Cove , 631 F. Supp. 2d 226, 241 (E.D.N.Y. 2009) (deferring decision as to the issue of qualified immunity on remaining First Amendment claim because "[the plaintiff] ... [is] required to show the violation of clearly established law" in subsequent briefing); see also Connell v. Signoracci , 153 F.3d 74, 80 (2d Cir. 1998) ("The Supreme Court has expressed the preference that in evaluating a qualified immunity defense, we ‘determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.’ " (quoting County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) )).

e. Claim preclusion

Town Defendants argue that Plaintiffs’ claims of unconstitutional "prior restraints, interference with [c]onstitutionally protected freedoms of expression, and arbitrary interference with property rights" are precluded because they were "all raised and rejected in Plaintiffs’ prior Article 78 proceeding."³³ (Town Defs.’ Mem. 47.) Town Defendants contend that Plaintiffs "formally admitted in their application for leave to appeal to the New York State Court of Appeals" that the state courts "have already rejected the Plaintiffs’ claims that, as to the Wantagh Property, the Board acted in an arbitrary manner or with an intent to cause a prior restraint on constitutionally protected freedoms of expression." (Id. ) In addition, Town Defendants assert that "[t]he question of whether a statute, ordinance, or regulation has been applied in an unconstitutional manner may be raised in an Article 78 proceeding" and, therefore, the Court is precluded from hearing Plaintiffs as-applied claims because these claims "could have been, but [were] not[ ] raised in a prior state court proceeding."³⁴ (Id. at 46 (citing Collard v. Inc. Village of Flower Hill , 759 F.2d 205, 207 (2d Cir. 1985) ).)

33 As discussed supra , Plaintiffs have brought two separate Article 78 proceedings relating to the Wantagh Property — the 2011 Article 78 Proceeding in which Plaintiffs sought review of the Board's 2011 revocation of the Wantagh Property's cabaret permit, and the 2017 Article 78 Proceeding in which Plaintiffs sought review of the Board's denial of the 2016 Application. (See SAC ¶¶ 111, 295.) Town Defendants do not state which proceeding they believe precludes Plaintiffs’ claims; they generally reference "Plaintiffs’ prior Article 78 proceeding" to argue that Plaintiffs’ claims of unconstitutional "prior restraints, interference with [c]onstitutionally protected freedoms of expression, and arbitrary interference with property rights" are precluded. (Town Defs.’ Mem. 47.) Because the Nassau County Supreme Court stayed the 2017 Article 78 Proceeding pending resolution of this federal action, (see Supreme Ct. of the State of New York Nassau County Decision and Order dated May 8, 2017 ("State Court Stay Order") 6–7, annexed to Letter Notifying Ct. of Recent Relevant Authority dated May 19, 2017, Docket Entry No. 170-1), the Court construes Town Defendants’ argument to be that the 2011 Article 78 Proceeding precludes Plaintiffs’ claims.

34 Town Defendants do not allege that Plaintiffs’ facial challenges are precluded by the Article 78 proceeding. Nevertheless, the Court notes that New York State courts have "consistently held that a proceeding under [A]rticle 78 is not the proper vehicle to test the constitutionality of legislative enactments." Kovarsky v. Hous. & Dev. Admin. of City of N.Y. , 31 N.Y.2d 184, 191, 335 N.Y.S.2d 383, 286 N.E.2d 882 (1972) (collecting cases); see also Carney v. N.Y. State Dep't of Motor Vehicles, 133 A.D.3d 1150, 20 N.Y.S.3d 467, 469 n.1 (App. Div. 2015), aff'd sub nom. Acevedo v. N.Y. State Dep't of Motor Vehicles , 29 N.Y.3d 202, 54 N.Y.S.3d 614, 77 N.E.3d 331 (2017). Accordingly, Plaintiffs’ facial challenges are not precluded.

Plaintiffs argue that their claims are not precluded because "most of the Defendants’ misconduct in this case occurred well after the Article 78 proceeding" that was filed on October 10, 2011, and therefore the claims "could not have been brought in that limited proceeding." (Pls.’ Opp'n 46.) However, Plaintiffs also assert that the facts and allegations preceding the Article 78 proceeding are "still relevant and admissible in this [ section] 1983 action in light of the Defendants’ overarching conspiracy" and are relevant for the purposes of damages calculations for their civil rights violations. (Id. (citing Davidson v. Capuano , 792 F.2d 275, 278–79 (2d Cir. 1986) ).) Plaintiffs also contend that they did not "formally admit[ ] in their application for leave to appeal to the New York Court of Appeals" that claims regarding prior restraint of their First Amendment rights were not raised below. (Id. at 47 (quoting Town Defs.’ Mem. 67).) Instead, Plaintiffs assert that Defendants "vigorously opposed ... [Plaintiffs’] application for leave" on the basis that their First Amendment rights were not raised below and therefore may not be heard by the New York Court of Appeals. (Id. )

"The federal courts generally have ... consistently accorded preclusive effect to issues decided by state courts." Allen v. McCurry , 449 U.S. 90, 95, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). State court judgments may preclude a federal action under two related but distinct doctrines. Proctor v. LeClaire , 715 F.3d 402, 411 (2d Cir. 2013). "Under the doctrine of res judicata, or claim preclusion, "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in [the previous] action ...." Id. (first alteration in original) (quoting SEC v. First Jersey Secs., Inc. , 101 F.3d 1450, 1463 (2d Cir. 1996) ); see also Brown Media Corp. v. K&L Gates, LLP , 854 F.3d 150, 157 (2d Cir. 2017). "Issue preclusion, or collateral estoppel, ... applies not to claims or to causes of action as a whole but to issues." Proctor , 715 F.3d at 414 (citing Ball v. A.O. Smith Corp. , 451 F.3d 66, 69 (2d Cir. 2006) ; see also Abdelal v. Kelly , 726 F. App'x 8, 11 (2d Cir. 2018) (distinguishing issue preclusion from claim preclusion)). A court can take judicial notice of state court decisions on a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. See Rates Tech. Inc. v. Speakeasy, Inc. , 685 F.3d 163, 166 n.3 (2d Cir. 2012) ("We may ‘take judicial notice of a document filed in another court ... to establish the fact of such litigation and related filings.’ " (quoting Glob. Network Commc'ns, Inc. v. City of New York , 458 F.3d 150, 157 (2d Cir. 2006))); see also Worthy-Pugh v. Deutsche Bank Nat'l Tr. Co. , 664 F. App'x 20, 22 (2d Cir. 2016) (affirming a district court's decision granting a defendant's motion to dismiss where the district court found that the plaintiff's action was precluded by a prior state court foreclosure action); Graham v. Select Portfolio Servicing, Inc. , 156 F. Supp. 3d 491, 509 (S.D.N.Y. 2016) (dismissing federal complaint on a motion to dismiss where preclusion was found based on a state court judgment of foreclosure and sale); Swiatkowski v. Citibank , 745 F. Supp. 2d 150, 171 (E.D.N.Y. 2010) (same), aff'd , 446 F. App'x 360 (2d Cir. 2011).

"Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the [s]tate from which the judgments emerged would do so ...." Allen , 449 U.S. at 96, 101 S.Ct. 411 ; see also Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 191 (2d Cir. 2012) ("[I]n order to determine the preclusive effect of a state-court decision, a federal court must look to the law of that state and should not give the state-court decision any greater preclusive effect than the courts of that state would give it ...."). Thus, the Court must apply New York law to determine whether Plaintiffs’ claims are barred by the doctrine of claim preclusion.³⁵ New York law dictates that in deciding whether a claim is one that was or could have been raised in a prior action, the question is whether the claim "aris[es] out of the same transaction or series of transactions" involved in the prior action. Hameed v. Aldana , 296 F. App'x 154, 155 (2d Cir. 2008) (quoting O'Brien v. City of Syracuse , 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981) ); see also Borrani v. Nationstar Mortg. LLC , 820 F. App'x 20, 22 (2d Cir. 2020) (explaining that claims that arise out of the same factual grouping are "deemed to be part of the same cause of action"); Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994) (explaining that New York's approach provides that a later claim could have been raised in a prior action if it "aris[es] out of the same factual grouping as [the] earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief").

35 Town Defendants do not argue that the Plaintiffs claims are issue precluded. However, the Court notes that issue preclusion is not applicable here because none of Plaintiffs’ claims regarding the 2016 Application were "actually litigated" in the Article 78 proceeding since that proceeding was stayed pending the outcome of the action before the Court. (State Court Stay Order 6–7); see Glob. Gold Mining, LLC v. Ayvazian , 612 F. App'x 11, 15 (2d Cir. 2015) (holding that a defendant's "argument that [a] [d]efault [j]udgment had preclusive effect [was] meritless[,] [because] [i]ssue preclusion applies only where the issue was ‘actually litigated’ in the prior proceedings" (quoting Wyly v. Weiss , 697 F.3d 131, 141 (2d Cir. 2012) )).

A defendant moving to dismiss an action on the basis of claim preclusion must show "(1) the previous action involved an adjudication on the merits; (2) the previous action involved the [same adverse parties] or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been raised, in the prior action." Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc. , 779 F.3d 102, 108 (2d Cir. 2015) (alteration in original) (quoting TechnoMarine SA v. Giftports, Inc. , 758 F.3d 493, 499 (2d Cir. 2014) ); see also Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co. , 600 F.3d 190, 195 (2d Cir. 2010) ("Under both New York law and federal law, the doctrine of ... claim preclusion, provides that ‘[a] final judgment on the merits of an action precludes the parties ... from relitigating issues that were or could have been raised in that action.’ ") (alteration in original) (quoting Maharaj v. Bankamerica Corp. , 128 F.3d 94, 97 (2d Cir. 1997) ).

Plaintiffs’ claims are not precluded because the elements of claim preclusion are not satisfied. First, the 2011 Article 78 Proceeding resulted in a decision on the merits because it held that the Board reasonably interpreted its zoning code provision and that the Board acted within its discretion by reopening, rehearing, and denying Plaintiffs’ application for a special use permit. See Green 2009 Inc. , 980 N.Y.S.2d at 512–13. Courts have held that adjudications of Article 78 proceedings constitute final decisions on the merits sufficient to preclude re-litigation of the issues presented. See Merced v. Ponte , No. 17-CV-4918, 2019 WL 1208791, at *7 (E.D.N.Y. Mar. 13, 2019) (holding that an Article 78 proceeding in which the court "reviewed plaintiff's petition on the merits and denied plaintiff relief" is a "clear adjudication on the merits" (citing Bray v. N.Y. Life Ins. , 851 F.2d 60, 63–64 (2d Cir. 1988) )), aff'd , 807 F. App'x 127 (2d Cir. 2020) ; see also Miller v. City of New York , No. 17-CV-4198, 2019 WL 2164100, at *2 (E.D.N.Y. May 10, 2019) ("It is well-settled that Article 78 proceedings constitute ‘an adjudication on the merits’ for purposes of a res judicata analysis." (quoting Merced , 2019 WL 1208791, at *7)); Rochester v. Fortune Soc'y , No. 16-CV-9423, 2018 WL 4574886, at *6 (S.D.N.Y. Sept. 4, 2018) (holding that "[t]he New York Supreme Court's rejection of [p]laintiff's Article 78 petition is a final decision on the merits sufficient to preclude re-litigation of the issues presented").

Second, while this action involves parties who were either parties in the prior Article 78 proceedings or were privies to those parties, it also includes parties who were not included in the prior Article 78 proceedings or their privies. The privity inquiry turns on "whether, under the circumstances, the interests of the [defendant] were adequately represented in [the earlier action]." Akhenaten v. Najee, LLC , 544 F. Supp. 2d 320, 328 (S.D.N.Y. 2008) (alterations in original) (quoting Amalgamated Sugar Co. v. NL Indus., Inc. , 825 F.2d 634, 640 (2d Cir. 1987) ). New York law provides that privity extends to parties "who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action." Yeiser v. GMAC Mortg. Corp. , 535 F. Supp. 2d 413, 423 (S.D.N.Y. 2008) (quoting Watts v. Swiss Bank Corp. , 27 N.Y.2d 270, 277, 317 N.Y.S.2d 315, 265 N.E.2d 739 (1970) ); see also Fequiere v. Tribeca Lending , No. 14-CV-812, 2016 WL 1057000, at *6 (E.D.N.Y. Mar. 11, 2016) (finding that the defendants, who were not named in a state court foreclosure action, were in privity with the state-court plaintiff because of their alleged interests in the federal plaintiff's/state-court defendant's mortgage); Graham , 156 F. Supp. 3d at 509 (same); Swiatkowski , 745 F. Supp. 2d at 171 & n.11 (same).

Plaintiffs in this action are Dean, Gordon, Green 2009, One55Day, and Look Entertainment. (SAC ¶¶ 12–15.) The 2011 Article 78 Proceeding was brought by Green 2009 as petitioner. (State Court Stay Order 1.) Although Dean and Gordon were not parties to the 2011 Article 78 Proceeding, the Court finds that, as corporate officers, they were in privity with parties to the action because their interests in securing the special use permit for cabaret use and related variances were represented by Green 2009. See Hellman v. Hoenig , 989 F. Supp. 532, 537 (S.D.N.Y. 1998) (finding privity between officer and corporation where their interests were identical and where the officer exercised control over the prior litigation by virtue of his role as CEO, Chairman of the Board, and majority shareholder); Sterling Doubleday Enters., L.P. v. Marro , 238 A.D.2d 502, 656 N.Y.S.2d 676, 677 (App. Div. 1997) (finding default judgment against corporation had res judicata effect on shareholders and officers because individual defendants together held offices of president, vice president, secretary, and treasurer of the corporation, constituted a majority of the shareholders and directors of the corporation, and had control of the litigation in the default judgment). In addition, although One55Day and Look Entertainment are separate entities, they are managed by the same leaders as Green 2009. Gordon serves as president of both Look Entertainment and Green 2009 and is vice president of One55Day, and Dean serves as vice president of both Look Entertainment and Green 2009 and is president of Look Entertainment. (See SAC ¶¶ 10–15.) That these three companies share corporate officers is sufficient to create a privity relationship. See Karali v. Araujo , 11 N.Y.S.3d 823, 826 (Sup. Ct. 2015) (finding that, under New York law, "[c]ontrolling status over a corporation constitutes privity with it as a matter of law"); see also Melwani v. Jain , No. 02-CV-1224, 2004 WL 1900356, at *2 (S.D.N.Y. Aug. 24, 2004) (applying res judicata even when two companies were separate entities, because they had overlapping shareholders, officers, and directors).

With respect to privity of Defendants, the Court notes that this action consists of six distinct groups of defendants: (1) the Town itself; (2) members of the Department of Buildings, including Rottkamp who is the Commissioner; (3) members of the Board, including Weiss who is the chairman, Marino, who is a former member, and D'Amato, Misterio, Pellegrini, Perry, Fisher, and Ragano, who are current members; (4) members of the Town Board, including Hudes; (5) the Supervisor of the Town, including former Supervisor Murray and current Supervisor Santino; and (6) Rhoads, a member of the Nassau County Legislature. (SAC ¶¶ 16–29.) Several of the defendants in this federal action were included as parties in the 2011 Article 78 Proceeding as defendants, including Weiss, D'Amato, Ragano, and Perry, as "the members of the Town of Hempstead Board of Zoning Appeals." (N.Y. Supreme Ct. Short Form Order 3, annexed to Town Defs.’ Mot. as Ex. X, Docket Entry No. 159.)³⁶ Therefore, the only defendants that must be found in privity are the Town; the members of the Department of Buildings, including Rottkamp, who is the Commissioner; remaining members of the Board, including Marino, Misterio, Pellegrini, and Fisher; members of the Town Board, including Hudes; the Supervisor of the Town, including former Supervisor Murray and current Supervisor Santino; and Rhoads as a member of the Nassau County Legislature.

36 Because the attachments to Town Defendants’ motion are not consecutively paginated, the Court refers to the page numbers assigned by the electronic case filing system.

It is well established that government officials sued "in their official capacities are generally considered to be in privity with the government entity that they serve." Johnson v. County of Nassau , 480 F. Supp. 2d 581, 607 (E.D.N.Y. 2007), aff'd , 664 F. App'x 45 (2d Cir. 2016) ; see also Peros v. Castano , No. 01-CV-4457, 2002 WL 603042, at *3 (E.D.N.Y. Mar. 22, 2002) (explaining "a prior judgment involving the government will bar an action against individual officials of the government in their official capacity for the same claim" (quoting Moore's Federal Practice § 131.40[3][e][ii][A] (3d ed. 1998))). However, "[a] government official sued in his or her personal capacity ... is not considered in privity with the government." Johnson , 480 F. Supp. 2d at 607 (citing Peros , 2002 WL 603042, at *3); see also Fabian v. Pappalardo , 395 F. Supp. 3d 257, 264 (S.D.N.Y. 2019) (allowing section 1983 claim to proceed against official sued in individual capacity). With respect to the remaining members of the Board — Marino, Misterio, Pellegrini, and Fisher — as discussed supra , the Court has found that Plaintiffs’ claims may only proceed against them in their personal capacity. Accordingly, the Court finds that Marino, Misterio, Pellegrini, and Fisher are not in privity with the defendants in Plaintiffs’ 2011 Article 78 Proceeding because that suit was against individuals in their official capacity as members of the Board. In addition, the Court finds that the remaining Defendants — Rottkamp, Hudes, Murray, Santino, and Rhoads — are not in privity with the defendants in Plaintiffs’ 2011 Article 78 Proceeding because they were members of entirely different government entities. See Johnson , 480 F. Supp. 2d at 607 ("Government officials sued in their official capacities are generally considered to be in privity with the government entity that they serve. " (emphasis added)); Fabian , 395 F. Supp. 3d at 264 ("Government officials sued in their official capacities are generally considered to be in privity with the government entity that they serve." (quoting Smith v. City of New York , 130 F. Supp. 3d 819, 828 (S.D.N.Y. 2015) )); Reeves v. City of Yonkers , No. 17-CV-5341, 2019 WL 2602897, at *5 n.1 (S.D.N.Y. June 25, 2019) (citing Johnson , 480 F. Supp. 2d at 607 ); Waldman v. Village of Kiryas Joel , 39 F. Supp. 2d 370, 382 (S.D.N.Y. 1999), aff'd , 207 F.3d 105 (2d Cir. 2000).

Third, the final element of claim preclusion is not satisfied because the claims asserted in this action could not have been raised in Plaintiffs’ 2011 Article 78 Proceeding. Both federal and New York state courts have held that res judicata does not apply when there has been a significant change of circumstances since the time of the first adjudication or when events occur that postdate the first action. See Bank of N.Y. v. First Millennium, Inc. , 607 F.3d 905, 919 (2d Cir. 2010) ("Claim preclusion does not bar claims, even between identical parties, that arise after the commencement of the prior action."); Legnani v. Alitalia Linee Aeree Italiane, S.p.A. , 400 F.3d 139, 141 (2d Cir. 2005) ("[A]s a matter of logic, when the second action concerns a transaction occurring after the commencement of the prior litigation, claim preclusion generally does not come into play." (alteration in original) (quoting Maharaj , 128 F.3d at 97 )); Storey v. Cello Holdings, L.L.C. , 347 F.3d 370, 383 (2d Cir. 2003) ("Claims arising subsequent to a prior action need not, and often perhaps could not, have been brought in that prior action; accordingly, they are not barred by res judicata ...."); Booke v. Joy , 79 A.D.2d 903, 434 N.Y.S.2d 243, 244 (App. Div. 1981) ("Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first ...." (quoting Restatement (Second) of Judgments § 61 cmt. f (Am. L. Inst., Tentative Draft No. 5, 1982))).

Plaintiffs’ federal claims relate to their 2016 Application, which occurred years after the 2011 revocation of the Wantagh Property's cabaret permit that served as the basis for its 2011 Article 78 Proceeding. (See SAC ¶ 111 (describing the reason for Plaintiffs’ 2011 Article 78 Proceeding)); Green 2009, Inc. , 980 N.Y.S.2d at 512–13 (holding that the Nassau County Supreme Court correctly determined that the board acted within its discretion by reopening and rehearing application for special exception permit and that the denial was supported by evidence in the record). While Plaintiffs’ federal claims describe some antecedent facts, including the revocation of Plaintiffs’ 2011 cabaret permit for the Wantagh Property, these facts merely lend significance to Defendants’ later acts and do not form the basis of Plaintiffs’ current claims — which focus on Plaintiffs’ 2016 Application — such that res judicata applies. See Gowanus Indus. Park, Inc. v. Hess Corp. , No. 10-CV-5522, 2011 WL 1841132, at *2 (E.D.N.Y. May 13, 2011) ("[T]he circumstances that several operative facts may be common to successive actions between the same parties does not mean that the claim asserted in the second is the same claim that was litigated in the first, and that litigation of the second is therefore precluded by the judgment in the first." (quoting NLRB v. United Techs. Corp. , 706 F.2d 1254, 1259–60 (2d Cir. 1983) )).

Accordingly, because Defendants have not established that all three elements of claim preclusion are satisfied as to any claim, the Court finds that Plaintiffs’ claims in this action are not precluded by the 2011 Article 78 Proceeding.

f. Substantive due process

Town Defendants argue that Plaintiffs were not denied property rights without substantive due process because they did not have a "legitimate claim of entitlement" to constitutionally protected property rights in the requested permits and variances for the Wantagh Property, and the Board did not act arbitrarily in exercising its discretion to deny the 2016 Applications. (Town Defs.’ Mem. 11, 14 (quoting Soundview Assoc. v. Town of Riverhead , 893 F. Supp. 2d 416, 431 (E.D.N.Y. 2012) ).)

Plaintiffs argue that they "have valid interests in their ability to use their [Wantagh] [P]roperty[,] ... and the Town continues to infringe on those property rights in an arbitrary and irrational manner." (Pls.’ Opp'n 34.)

To state a claim for substantive due process, a plaintiff must allege that: (1) he had a valid property interest and (2) the "defendants infringed on that property right in an arbitrary or irrational manner." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of City of N.Y. , 746 F.3d 538, 545 (2d Cir. 2014) (quoting Cine SK8, Inc. v. Town of Henrietta , 507 F.3d 778, 784 (2d Cir. 2007) ); see also Leder , 630 F. App'x at 62 (same). A government employer's conduct violates substantive due process "only if the employer ‘abuses some power unique to its role as a government entity.’ " Thomas v. N.Y.C. Dep't of Educ. , 938 F. Supp. 2d 334, 353 (E.D.N.Y. 2013) (quoting Perfetto v. Erie Cnty. Water Auth. , No. 03-CV-439E( ), 2006 WL 1888556, at *10 (W.D.N.Y. July 7, 2006)); see also McClary v. O'Hare , 786 F.2d 83, 89 (2d Cir. 1986) ("We do not think that improper actions taken by employers violate an employee's substantive due process rights simply because that employer is a government official."); Sussman v. N.Y.C. Health & Hosps. Corp. , No. 94-CV-8461, 1997 WL 334964, at *12 (S.D.N.Y. June 16, 1997) (noting that "the greater weight of authority in [the Second] Circuit indicates that a [substantive due process] claim is stated only when a governmental employer abuses some power unique to its role as a governmental entity").

For the reasons stated below, the Court finds that Plaintiffs fail to state a substantive due process claim.

i. Property rights

Plaintiffs argue that they have a cognizable property right in the Wantagh Property, and their property rights are not speculative because they "(1) were granted a permanent permit to operate the cabaret and an off-street parking variance in Wantagh; [and] (2) [they] can operate a restaurant at that location as of right." (Pls.’ Opp'n 34–35 (emphasis omitted).) Plaintiffs assert that they primarily purchased the Wantagh Property "because it came with permits and variances that run with the land." (Id. at 35 (emphasis omitted).)

Town Defendants argue that the issue is not whether Plaintiffs have a property right in the Wantagh Property, but whether they have property rights in the permits and variances sought for the Wantagh Property, (Town Defs.’ Reply 13), and they do not, (Town Defs.’ Mem. 13 (quoting Clubside, Inc. v. Valentin , 468 F.3d 144, 152 (2d Cir. 2006) )), because "the Board retains discretion to grant or deny the requested special use permits and the [Department of Buildings] had discretion in granting or denying the request for a building permit and [Certificate of Occupancy] for restaurant use only," (Town Defs.’ Mem. 15). Defendants contend that the "application for a [Certificate of Occupancy] for restaurant use in Wantagh fails for, with or without windows, the building violates the ‘[setback]’ requirements of the [BZO]." (Id. )

"Before a plaintiff seeks to prove that a state official's denial of a permit deprived him of a property right in the permit in violation of the standards of substantive due process, ... he must first establish that he has a federally protectable property right in the permit." Natale v. Town of Ridgefield , 170 F.3d 258, 263 (2d Cir. 1999). The Second Circuit uses a "strict entitlement test to determine whether a party's interest in land-use regulation is protectible under the Fourteenth Amendment." Cine SK8, Inc. , 507 F.3d at 784–85 (quoting Zahra v. Town of Southold , 48 F.3d 674, 680 (2d Cir. 1995) ); see also Harlen Assocs. v. Inc. Village of Mineola , 273 F.3d 494, 503–04 (2d Cir. 2001) (applying strict entitlement test in land use regulation case).

To determine whether an administrative framework yields a "legitimate claim of entitlement" to benefits, courts consider "whether the statutes and regulations governing the distribution of benefits ‘meaningfully channel[ ] official discretion by mandating a defined administrative outcome.’ " Barrows v. Burwell , 777 F.3d 106, 113 (2d Cir. 2015) (quoting Kapps v. Wing , 404 F.3d 105, 113 (2d Cir. 2005) ); see also Harlen Assocs. , 273 F.3d at 503–04 (holding that because "the [v]illage [b]oard is vested with significant discretion to deny applications even after proper filings have been made[,] [t]he presence of that discretion precludes any legitimate claim of entitlement by [the plaintiff]"); Natale , 170 F.3d at 263 (explaining that "entitlement turns on whether the issuing authority lacks discretion to deny the permit, i.e. , is required to issue it upon ascertainment that certain objectively ascertainable criteria have been met"); Walz v. Town of Smithtown , 46 F.3d 162, 168 (2d Cir. 1995) (explaining that a " ‘legitimate claim of entitlement’ exists where, ‘absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted’ " (quoting Yale Auto Parts , 758 F.2d at 59 )).

If the statutory or regulatory scheme "sets fixed eligibility criteria for the receipt of ... benefits," a property interest often will be found. Kapps , 404 F.3d at 113–14 ; see also Town of Castle Rock v. Gonzales , 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) ("[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion."). By contrast, where "the statute, regulation or contract in issue vests in the [government] significant discretion over the continued conferral of [a] benefit, it will be the rare case that the recipient will be able to establish an entitlement to that benefit." Kelly Kare, Ltd. v. O'Rourke , 930 F.2d 170, 175 (2d Cir. 1991). Thus, "[w]here the administrative scheme does not require a certain outcome, but merely authorizes particular actions and remedies, the scheme does not create ‘entitlements’ that receive constitutional protection" under the Due Process Clause. Sealed v. Sealed , 332 F.3d 51, 56 (2d Cir. 2003) (emphasis omitted); see also Singer v. City of New York , 417 F. Supp. 3d 297, 322–23 (S.D.N.Y. 2019) (concluding "that an agency charged with issuing permits has discretion sufficient to deny a claim of entitlement to a permit where the agency is tasked with determining an application's compliance with applicable laws and regulations — even where, upon a showing of compliance, issuance of the permit is mandatory"); Rankel v. Town of Somers , 999 F. Supp. 2d 527, 546–47 (S.D.N.Y. 2014) (holding that the plaintiff had no protected interest because the town had no obligation to enforce its discretionary codes); Christian v. Town of Riga , 649 F. Supp. 2d 84, 97–98 (W.D.N.Y. 2009) (holding that the plaintiff lacked property interest in building permit because town building inspector had discretion to decide whether application conformed to general standards in town code); Donovan Realty, LLC v. Davis , No. 07-CV-905, 2009 WL 1473479, at *5 (N.D.N.Y. May 27, 2009) (holding that property owner failed to prove the existence of constitutionally protected property interest in modification to site plan because two authorities had "vast discretion" in approving such modifications).

In Harlen Associates , a village's zoning law vested "considerable discretion in the [b]oard with respect to granting special use permits." Harlen Assocs. , 273 F.3d at 504. Specifically, it provided that the board, "after notice and public hearing, may issue special use permits ... after considering the ... [enumerated] general standards as applied to a specific application." Id. (alteration in original) (quoting Mineola, N.Y., Zoning Law § 30.104(A)). Although the village law "require[d] that the [b]oard consider certain standards, the ultimate decision as to whether to grant a special use permit conclusively lies with the [b]oard." Id. The Second Circuit held that interpreting the discretion to mean that the board must grant every valid application that has been filed "would make the [b]oard nothing more than a rubber stamp and reduce its role in the process to a rote check of whether the proper filings had been made," and antithetical to the village's intent in drafting its zoning law. Id. ; see also Crowley v. Courville , 76 F.3d 47, 52 (2d Cir. 1996) (holding no property right existed where the board had discretion to issue special permit).

Similarly, in Cunney , the village zoning law required the building inspector to issue a Certificate of Occupancy upon finding compliance with zoning laws. The court held that the plaintiff's claims failed because even though the law seemed to limit discretion upon finding of compliance, the board had "discretion to make a determination of conformity or non-conformity." Cunney , 56 F. Supp. 3d at 497 ; see also C.C.S.com USA, Inc. v. Gerhauser , 518 F. App'x 1, 3 (2d Cir. 2013) (holding that the plaintiff did not have a property interest in an unissued permit where, "before issuing a building permit, Brookhaven's chief building inspector ... was required to determine whether any code violations existed on the property in question" and the plaintiff "had to demonstrate to the [b]uilding [d]ivision that no violations existed on its property").

As Defendants assert, the issue is whether Plaintiffs had property rights to the permits and variances, and not whether they have property rights in the Wantagh Property. Plaintiffs were not constitutionally deprived of the variances and permits because they did not meet the Town's requirements for receiving approvals and, even if they did, the Board and Department of Buildings have discretion to deny Plaintiffs’ applications. Similar to Harlen Associates , where the town laws stated that the board may issue special use permits, 273 F.3d at 503–04, the BZO states that the Board may grant parking variances "in any case in which it shall find that compliance herewith is not necessary to prevent traffic congestion or undue on-street parking, or where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this section," BZO § 319(C). The Board also has discretion to approve or deny the variance for the encroachment because the Town laws state that the Board has the power to grant use variances "in harmony with their general purpose and intent" when an applicant has shown that "applicable zoning regulations and restrictions have caused unnecessary hardship." Town Law § 267-b(2)(b) ; see also Gagliardi v. Village of Pawling , 18 F.3d 188, 192–93 & n.2 (2d Cir. 1994) (noting that town code provision requiring site plans to take into account "public health, safety and general welfare, the impact of the proposed use on adjacent land uses, the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular" afforded the town "broad discretion" in granting site plan applications); Missere v. Gross , 826 F. Supp. 2d 542, 558–59 (S.D.N.Y. 2011) (holding that the plaintiff failed to demonstrate an entitlement to use their property as a restaurant); Tara Circle, Inc. v. Bifano , No. 95-CV-6522, 1997 WL 399683, at *10 n.3 (S.D.N.Y. July 15, 1997) (noting that the plaintiffs lacked property interest in special permit where village board could authorize their issuance according to conditions and standards set forth in village code), aff'd , 173 F.3d 846 (2d Cir. 1999).

Analogous to Cunney , where the building inspector had discretion to determine whether there were code violations at a property, the Department of Buildings also has discretion to issue a public assembly permit because they must first find that the applicant has complied with "all other applicable laws, ordinances, codes, rules[,] and regulations pertaining to fire and safety requirements" and then decide "that the premises are a safe place in which to conduct, maintain or operate a place of public assembly and that a proper use has been established for the premises." (SAC Answer ¶ 250 (emphasis omitted) (quoting Town Code § 96-3(B))); see also Nardiello v. Town of Oyster Bay , No. 15-CV-292, 2016 WL 1464557, at *5 (E.D.N.Y. Apr. 12, 2016) (disagreeing that the plaintiffs were entitled to permit because "[w]hile the language [in the town's code] does state that the application ‘will be approved,’ such approval is based on a determination that ‘the proposed work will be in compliance’ and ‘safe’ ").

Accordingly, the Court finds that Plaintiffs did not have cognizable property rights in the permits and variances sought in the 2016 Application and thus fail to state a substantive due process claim.

ii. Manner of conduct

Town Defendants argue that "there is no evidence plead[ ], or shown, of any conduct by the [Board] or the [Department of Building] so outrageously arbitrary as to constitute a gross abuse of governmental authority." (Town Defs.’ Mem. 16.) Town Defendants also assert that Plaintiffs commenced a pending Article 78 proceeding with regards to the 2016 Application, an adequate avenue to remedy any alleged due process violation. (Id. )

Plaintiffs contend that but for the denial of due process, "there is a very strong likelihood that the applications would have been granted." (Pls.’ Opp'n 35.)

Substantive due process "does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit.... [substantive due process] standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority." Harlen Assocs. , 273 F.3d at 503 (quoting Natale , 170 F.3d at 263 ); see also id. at 505 (holding that the board did not arbitrarily deprive the plaintiff of substantive due process as the board "had legitimate interests which could rationally be furthered through the denial of [the plaintiff's] application"); Natale , 170 F.3d at 262 ("For state action to be taken in violation of the requirements of substantive due process, the denial must have occurred under circumstances warranting the labels ‘arbitrary’ and ‘outrageous.’ "); Phillips v. County of Orange , 894 F. Supp. 2d 345, 381 (S.D.N.Y. 2012) ("At most, [the plaintiffs] have claimed that [d]efendants were negligent in their handling of the abuse investigation, but they have not alleged sufficient facts to support an inference that [the defendants’] acts were malicious, such that their actions could ‘shock the conscience.’ ") (quoting Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 275 (2d Cir. 2011) ).

A defendant's decision to deprive a plaintiff of his or her property interest because of an illegal or unconstitutional motive is irrational and gives rise to a substantive due process claim. Natale , 170 F.3d at 263 ; see also Cine SK8, Inc. , 507 F.3d at 788 ("[The] plaintiffs have sufficiently raised a genuine issue of material fact as to whether the [t]own's amendment of the special use permit was tainted by racial animus and hence was irrational."); Royal Crown Day Care LLC v. Department of Health and Mental Hygiene of City of New York , 2012 WL 2992124, at *3 (E.D.N.Y. July 20, 2012) (denying summary judgment where "a jury could reasonably find that [the defendants’] decision to suspend [the plaintiffs’] permit was motivated by retaliatory animus and was therefore irrational"); see also Jordan v. N.Y.C. Bd. of Elections , 816 F. App'x 599, 603 (2d Cir. 2020) (dismissing the plaintiff's substantive due process claims because he "alleged no facts to support his conclusion that the [b]oard's staff had any improper motive or that they intentionally misled him about the filing deadline"); Cathedral Church of the Intercessor v. Inc. Village of Malverne , No. 02-CV-2989, 2006 WL 572855, at *6 (E.D.N.Y. Mar. 6, 2006) (finding that tactics, disparate treatment, and delay in approving a church's expansion suggested an improper motive and rose to the level of " ‘shocking, abusive, capricious, or arbitrary’ behavior so as to make out a constitutional violation").

Defendants did not act in an arbitrary or irrational manner in denying Plaintiffs’ 2016 Application. To the contrary, Defendants held a hearing where experts testified against Plaintiffs’ application, (SAC ¶¶ 264, 266), noting that Plaintiffs’ use of the Wantagh Property had contributed to an increase in traffic accidents in the adjacent intersection, (SAC Answer ¶ 618). At the hearing, neighbors also testified that "the protruding portico is very dangerous when leaving their neighborhood ... [because it] partially blocks the view of oncoming traffic." (Id. ¶ 621.) As a result, the application for the cabaret permit "was denied, principally, because the Board has no authority to grant a special use permit where, as here, [the Wantagh Property] violates other provisions of the zoning code — here the front portico violates the [ten-]foot front yard [setback], and there are insufficient off-street parking spaces on site for the proposed use." (Id. ¶ 626); see Lilakos v. New York City , 808 F. App'x 4, 11 (2d Cir. 2020) ("Nothing about the options available to [the plaintiffs] shocks the conscience, including that one way to expedite their desired result was to admit to the violations and cure them." (citation omitted)); Thomas , 938 F. Supp. 2d at 354 (holding that even if the government's actions may have been discriminatory, "the[ ] alleged actions do not shock the conscience or interfere with rights implicit in the concept of ordered liberty" and therefore do not implicate substantive due process).

Because Plaintiffs did not have a constitutionally cognizable property interest in the permits and variances requested for the Wantagh Property and, even if they did, Defendants did not infringe on Plaintiffs’ property rights in an arbitrary or irrational manner, the Court finds that Plaintiffs fails to state a claim for a violation of substantive due process.

g. Procedural due process

Defendants argue that Plaintiffs were afforded procedural due process because the 2016 Application was denied due to "a lack of provision for safe parking, and the front portico violates the zoning setback regulations for this corner lot, causing a line of sight hazard for motorists entering onto Sunrise Highway from Oakland Avenue." (Town Defs.’ Mem. 18.) Defendants further assert that procedural due process is satisfied by an Article 78 proceeding, (Town Defs.’ Reply 14), and there is a pending Article 78 proceeding for judicial review of the denied variances and permits, (Town Defs.’ Mem. 19).

Plaintiffs first assert that the SAC details a "pernicious pattern of procedural irregularities in a politically fueled vendetta against ... Plaintiffs." (Pls.’ Opp'n 35.) In support, they state that (1) "the Town Supervisor, for the first time ever, personally appeared at an unprecedented hearing and testified against ... Plaintiffs’ application; [(2)] the Supervisor and other government officials trespassed on ... Plaintiffs’ property and held press conferences against their applications; [(3)] a Nassau County Legislator, who set up a Nassau County podium on ... Plaintiffs’ property, dedicated most of a day, when he should have been at budget hearings, to prosecuting the hearing against ... Plaintiffs; [and (4)] the Nassau County Legislator engaged in ex parte communications during the hearing with a Board member who participated extensively in the hearing and the Board left the hearing open to receive additional public comments after specifically notifying ... Plaintiffs that the record would be closed." (Id. at 35–36.)

Second, Plaintiffs argue that contrary to Defendants’ assertions, these "egregious and politically-influenced procedural[ ] irregularities," (id. at 36), were confirmed by a former Board member's concession that Plaintiffs " ‘can establish a clear pattern’ on the part of Town officials and the Board ... ‘to get’ them," (id. (quoting SAC ¶ 393)), and by a former Chief of Public Assembly's statement under oath that the denial of the public assembly license was "political," (id. (quoting SAC ¶ 395).) Third, Plaintiffs assert that an Article 78 proceeding is inadequate because "the [SAC] alleges ‘intentional conspiratorial conduct under color of state law.’ " (Id. at 36– 37 (quoting Koncelik v. Town of East Hampton , 781 F. Supp. 152, 158 (E.D.N.Y. 1991) ).)

The Constitution imposes "constraints," ordinarily in the form of notice and a pre-deprivation hearing, on "governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; see also Liberian Cmty. Ass'n of Conn. v. Lamont , 970 F.3d 174, 196 (2d Cir. 2020) (Chin, J., concurring in part and dissenting in part) (citing Mathews , 424 U.S. at 335, 96 S.Ct. 893 ). The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property without due process of law, and "those who seek to invoke its procedural protection must establish that one of these interests is at stake." Victory , 814 F.3d at 59 (quoting Graziano , 689 F.3d at 114 ). A court first asks "whether there exists a liberty or property interest of which a person has been deprived," and if so, "whether the procedures followed by the State were constitutionally sufficient." Id. (quoting Swarthout v. Cooke , 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) ). "In evaluating what process satisfies the Due Process Clause, ‘the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.’ " Rivera-Powell v. N.Y.C. Bd. of Elections , 470 F.3d 458, 465 (2d Cir. 2006) (quoting Hellenic Am. Neighborhood Action Comm. v. City of New York , 101 F.3d 877, 880 (2d Cir. 1996) ). "When the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides [a] meaningful post-deprivation remedy." Id.

The Second Circuit has " ‘held on numerous occasions that an Article 78 proceeding is a perfectly adequate post-deprivation remedy’ [and] has expressed concern only where there is a lengthy deprivation." Lilakos , 808 F. App'x at 10 (quoting Hellenic Am. Neighborhood Action Comm. , 101 F.3d at 881 ) (citing Panzella v. Sposato , 863 F.3d 210, 218 (2d Cir. 2017) ); see also Grillo v. N.Y.C. Transit Auth. , 291 F.3d 231, 234 (2d Cir. 2002) ("This court has ‘held on numerous occasions’ that where, as here, a party sues the state and its officials and employees for the arbitrary and random deprivation of a property or liberty interest, ‘an Article 78 proceeding is a perfectly adequate post[-]deprivation remedy.’ " (quoting Hellenic Am. Neighborhood Action Comm. , 101 F.3d at 880–81 )); Campo v. N.Y.C. Emps.’ Ret. Sys. , 843 F.2d 96, 102 (2d Cir. 1988) (holding that the unavailability of Article 78 proceeding due to statute of limitations bar did not permit suit for due process violation); Giglio v. Dunn , 732 F.2d 1133, 1135 (2d Cir. 1984) ("Where, as here, Article 78 gave the employee a meaningful opportunity to challenge the voluntariness of his resignation, he was not deprived of due process simply because he failed to avail himself of the opportunity."); Williams v. N.Y.C. Dep't of Educ. , No. 12-CV-8518, 2013 WL 5226564, at *10 (S.D.N.Y. Sept. 17, 2013) ("That [the plaintiff] was unable to have her claims heard on the merits through an Article 75 proceeding because of her failure to file an action in a timely manner does not change this outcome."), report and recommendation adopted in part sub nom. Williams v. City of New York , 2014 WL 1383661, (S.D.N.Y. Mar 26, 2014), aff'd , 602 F. App'x 28 (2d Cir. 20215) ; Myers v. Camden Cent. Sch. Dist. , No. 10-CV-1167, 2012 WL 2921574, at *11 (N.D.N.Y. July 17, 2012) ("[E]ven if there has been a violation of New York Education Law [section] 3020–a, there has been no violation of the Fourteenth Amendment's Due Process Clause if sufficient post-deprivation process is given within a reasonable time period."); Rausa v. Bd. of Educ. of the N. Syracuse Cent. Sch. Dist. , No. 11-CV-1152, 2012 WL 967052, at *10 (N.D.N.Y. Mar. 21, 2012) ("The failure to follow the procedures of [ section] 3020–a [is] remediable by an Article 78 proceeding."); Arredondo v. Conuty of Nassau , No. 11-CV-710, 2012 WL 910077, at *10 (E.D.N.Y. Mar. 16, 2012) (dismissing a plaintiff's procedural due process claim for failure to utilize available Article 75 and 78 proceedings); Farraj v. Metro. Transit Auth. , No. 11-CV-574, 2011 WL 2580198, at *2 (E.D.N.Y. June 28, 2011) (same), aff'd sub nom. Farraj v. Metro. Transit Auth. of N.Y. , 501 F. App'x 10 (2d Cir. 2012) ; Pabon v. N.Y.C. Transit Auth. , 703 F. Supp. 2d 188, 199 (E.D.N.Y. 2010) ("This [c]ourt is persuaded that the constitutionally sufficient remedies available to rectify any technical or procedural errors in the Transit Authority's robust grievance process, including resort to an Article 78 appeal proceeding, preclude a due process claim here.").

Plaintiffs were party to a hearing where they presented extensive evidence in support of their applications. (SAC ¶¶ 249–250, 261–262.) In reaching their decision to deny the 2016 Application, "[t]he Board members each made their own site inspection and agreed with the opposition on these matters." (SAC Answer ¶ 622); see Gregory v. Inc. Village of Center Island , No. 14-CV-2889, 2015 WL 5093623, at *8 (E.D.N.Y. Aug. 28, 2015) (finding that the plaintiff was provided with adequate process because he "received several hearings on his variance application before the zoning board" and could have challenged the denial of his applications through an Article 78 provision). Even if the process employed in deciding to deny the 2016 Application was procedurally insufficient, an Article 78 proceeding, which Plaintiffs commenced and is stayed pending resolution of this case, (SAC ¶ 295), is adequate to cure any alleged violations of due process. See Pabon , 703 F. Supp. 2d at 199.

Plaintiffs cite Koncelik for the proposition that their claims cannot adequately be redressed by an Article 78 proceeding because Defendants’ conduct is not "random and unauthorized." 781 F. Supp. at 158. In Koncelik , the district court declined to characterize the defendants’ conduct as unauthorized because the defendants charged with violating the plaintiffs’ procedural due process rights were also charged with protecting those rights, and consequently the court denied a motion to dismiss because "although [the] plaintiffs timely and successfully availed themselves of the Article 78 proceeding ..., their plans to develop their property [we]re still being delayed by the [zoning board]." Id. (emphasis added).

Unlike Koncelik and other cases where courts have denied motions to dismiss procedural due process claims, Plaintiffs have neither attained an outcome from their pending, currently stayed Article 78 proceeding nor sufficiently stated why an Article 78 proceeding is inadequate to remedy the alleged violations. See Gregory , 2015 WL 5093623, at *8 (denying procedural due process claim where the plaintiff "did not seek review in an Article 78 proceeding ... [and so] cannot claim that an Article 78 proceeding would have been inadequate process because it delayed review of his claims"); Ahmed v. Town of Oyster Bay , 7 F. Supp. 3d 245, 255 (E.D.N.Y. 2014) (granting motion to dismiss procedural due process claim because the plaintiffs failed to state how Article 78 proceedings were inadequate); Acorn Ponds at North Hills v. Village of North Hills , 623 F. Supp. 688, 690–91 (E.D.N.Y. 1985) (denying motion to dismiss procedural due process claim related to zoning decision, despite fact that the plaintiff was able to obtain orders in Article 78 proceeding, because such remedies were inadequate given the delay in obtaining the certificates of occupancy). Accordingly, an Article 78 proceeding is best suited to address Plaintiffs’ procedural due process claim.

For the reasons set forth above, the Court finds that Plaintiffs fail to state a claim for a violation of procedural due process.

h. Equal protection

Town Defendants argue that Plaintiffs fail to plead facts to plausibly demonstrate that (1) "Town Defendants have by their actions burdened a fundamental right or targeted a suspect class" or that, (2) under a class-of-one theory, any "rational person could regard [Plaintiffs’] circumstances ... [as differing] from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy." (Town Defs.’ Mem. 20.) Town Defendants assert that Plaintiffs have failed to plausibly allege that an "extremely high degree of similarity [exists] between themselves and the persons to whom they compare themselves." (Town Defs.’ Mem. 20.)

Town Defendants assert that Plaintiffs’ claims fail on both a selective enforcement or class-of-one theory because "Plaintiffs’ self-created problems are unique" and nonequivalent to "any other entity making similar applications to the Town," (id. at 21–22), and because the code violations are "on their face a legitimate reason" for the Board's denial of Plaintiffs’ application and "Plaintiffs fail to identify any ‘comparable’ applicants which present the same circumstances and were treated differently," (id. at 16). In support, Town Defendants state that "Plaintiffs do not plead, and ... [Town] Defendants are unaware of, the existence of any other even remotely similar applications for a cabaret special use permit[ ] with outstanding and unresolved code violation[s], ‘[setback]’ violations ... [,] insufficient off-street parking, ... illegal occupation of the basement, ... and ... the applicant took no action under its [s]tate remedies to compel a determination," by the Board. (Id. at 21.)

Plaintiffs contend that they have been treated differently — based on "malicious and bad faith intent to injure," (Pls.’ Opp'n 45 (quoting SAC ¶ 499)) — from others similarly situated because of "who [they] are and the Town's suppositions about how the premises would be used," (id. (quoting SAC ¶ 64).) In support, Plaintiffs assert that (1) despite "substantially the same" configuration, prior owners of the Wantagh Property were permitted to operate the site as a cabaret and restaurant with live entertainment without a special exception, (2) compared to an average of three to four inspections usually conducted by the Department of Buildings before a new use is permitted, "the Town conducted at least [thirty-four] inspections of the Wantagh [P]roperty," and (3) while other businesses in the same area, including Anthony's Coal Fire Pizza and the Treehouse Sports Café, had more extensive renovations than Plaintiffs, they were not required to attain a new Certificate of Occupancy. (Id. at 44–45.)

"The Fourteenth Amendment to the United States Constitution declares that ‘[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ " Brown v. City of Oneonta , 221 F.3d 329, 336–37 (2d Cir. 2000) (alteration in original) (quoting U.S. Const. amend. XIV, § 1 ). The Equal Protection Clause prohibits government officials from intentionally discriminating against individuals based on their race, ethnicity, gender or national origin. See Ross v. New Canaan Env't Comm'n , 532 F. App'x 12, 13 (2d Cir. 2013) ("To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender." (quoting Hayden v. County of Nassau , 180 F.3d 42, 48 (2d Cir. 1999) )); Hayden v. Paterson , 594 F.3d 150, 162 (2d Cir. 2010) ("The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race." (quoting Washington v. Davis , 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) )).

To state a claim for equal protection, a plaintiff can proceed on both a selective enforcement and a class-of-one theory. See Jordan , 816 F. App'x at 603–04. Where a plaintiff is treated unequally compared with others similarly situated, and when such treatment is based on "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person," the facts give rise to a claim of selective enforcement.³⁷ LaTrieste Rest. & Cabaret Inc. v. Village of Port Chester , 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair v. Saunders , 627 F.2d 606, 608 (2d Cir. 1980) ); see also Martine's Serv. Ctr., Inc. v. Town of Wallkill , 554 F. App'x 32, 35 (2d Cir. 2014). Similarly, equal protection claims based on a so-called "class of one" theory involve claims "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech , 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (first citing Sioux City Bridge Co. v. Dakota County , 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923) ; and then citing Allegheny Pittsburgh Coal Co. v. Comm'n of Webster Cnty. , 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989) ). A plaintiff asserting a selective enforcement or class-of-one claim must present evidence of similarly situated comparators. Church of Am. Knights of the Ku Klux Klan v. Kerik , 356 F.3d 197, 210 (2d Cir. 2004) ("A selective enforcement claim requires, as a threshold matter, a showing that the plaintiff was treated differently compared to others similarly situated." (citing Giordano v. City of New York, 274 F.3d 740, 750–51 (2d Cir. 2001) )); see also Gray v. Town of Easton , 115 F. Supp. 3d 312, 319–20 (D. Conn. 2015) ("[B]ecause the two theories themselves are so similar, there is little reason to suppose why a selective-enforcement claim should not require the same high degree of similarity between comparators as the Second Circuit requires for a class-of-one claim."), aff'd sub nom. Gray v. Maquat , 669 F. App'x 4 (2d Cir. 2016). "Where a plaintiff challenges a zoning decision, that standard requires her to identify comparators who are similarly situated to her with regard to the zoning board's ‘principal reasons’ for denying the application." Pappas v. Town of Enfield , 602 F. App'x 35, 36 (2d Cir. 2015) (quoting Fortress Bible Church v. Feiner , 694 F.3d 208, 223–24 (2d Cir. 2012) ); see also Lilakos , 808 F. App'x at 8–9 ("Although [the plaintiffs] include dozens of allegations about the existence of other illegal hostels, [they] fail to explain how those residences are like theirs .... [T]hey share only one thing in common — the same alleged violation of law. That is insufficient to state an equal protection claim ...."); King v. N.Y. State Div. of Parole , 260 F. App'x 375, 380 (2d Cir. 2008) (affirming dismissal of class of one claim because the plaintiff "failed to identify a single individual with whom he can be compared for [e]qual [p]rotection purposes").

37 In addition to selective enforcement and class-of-one claims, "[t]here are several ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause." Brown v. City of Oneonta , 221 F.3d 329, 337 (2d Cir. 2000). To sustain an equal protection claim, a plaintiff may also rely on (1) a law that makes classifications specifically based on a protected class, including race, (2) a facially neutral law or policy that has been applied in a discriminatory manner, or (3) a facially neutral policy that has an adverse effect and was motivated by discriminatory animus. See Pyke ex rel. Estate of Pyke v. Cuomo , 258 F.3d 107, 110 (2d Cir. 2001). Given the overlap between cases where the law has been selectively enforced (a theory which requires a plaintiff to present comparator evidence), and cases where a facially neutral law has been applied in a discriminatory manner (a theory that does not require comparator evidence), the Second Circuit has expressly stated that a plaintiff may pursue both theories in the alternative, further suggesting that facts giving rise to a selective enforcement theory do not preclude consideration of the theory that a "facially neutral law was applied in a discriminatory manner." See Rodriguez v. Clinton , 357 F. App'x 355, 357 (2d Cir. 2009) (noting that the plaintiff may pursue an equal protection claim on a theory of selective enforcement, or "[i]n the alternative, he could pursue an ‘equal protection claim under a theory of discriminatory application of the law’ " (quoting Pyke , 258 F.3d at 108–09 )).
Because Plaintiffs do not allege that they are a protected class, that "a facially neutral law or policy was applied in a discriminatory manner," or that "a facially neutral policy that has an adverse effect and was motivated by discriminatory animus," Pyke , 258 F.3d at 110, and because Plaintiffs challenge Defendants’ application of the law as enforced against Plaintiff , as opposed to a "discriminatory application" case, where the law is applied in some other discriminatory manner, the Court analyzes Plaintiffs’ equal protection claims based on selective enforcement and a class-of-one theory. See Patterson v. City of New York , No. 16-CV-3525, 2017 WL 3432718, at *9 (E.D.N.Y. Aug. 9, 2017) (differentiating between selective prosecution claims and claims implicating "the more general framework for discriminatory application of the law"), appeal dismissed , No. 17-2586, 2017 WL 7734129 (2d Cir. Nov. 21, 2017) ; White v. City of New York , 206 F. Supp. 3d 920, 930–31 (S.D.N.Y. 2016) (finding that "[t]he plaintiff's claim is not that he was singled out as a target against whom the law was enforced" and the plaintiff was therefore not pursuing a theory of selective enforcement, "obviat[ing] the need for [him] to plead similarly situated comparators"); Savino v. Town of Southeast , 983 F. Supp. 2d 293, 302 (S.D.N.Y. 2013) (considering alternative theories of discriminatory application of a facially neutral law and selective enforcement based on the defendants’ enforcement of zoning laws against the plaintiff where the plaintiff alleged an equal protection claim under both theories), aff'd , 572 F. App'x 15 (2d Cir. 2014).

Plaintiffs have not met their burden of showing that they were treated differently compared to others similarly situated and that there is no rational basis for the difference in treatment as Plaintiffs fail to present evidence of similarly situated comparators. Although Plaintiffs mention two businesses located in the same area as the Wantagh Property — Anthony's Coal Fire Pizza and the Treehouse Sports Café — that had more "extensive renovations" and "significant encroachments into the zoning setback" and were not required to attain a new Certificate of Occupancy, (SAC ¶¶ 239–240), Plaintiffs do not provide more than conclusory statements that either business had building code violations, setback violations, or parking safety hazards. See Pappas , 602 F. App'x at 36 (concluding that although other businesses that complied with technical requirements won approval, "[a]bsent any evidence that those other projects raised any of the same concerns cited by the [c]ommission to explain its denial of [the plaintiff's] application, [including concerns about traffic safety and community opposition, the plaintiff] cannot carry her burden of establishing that they were comparators"); Missere , 826 F. Supp. 2d at 564 (finding that the plaintiff did not show a similarly situated business because while the plaintiff sought approval to construct a patio for outside dining, the other business did not seek anything similar and the plaintiff "cannot make out an [e]qual [p]rotection claim, either on a selective enforcement or class-of-one theory, based merely on favorable treatment of another, because that does not establish that he also suffered any differential treatment"); cf. LaTrieste Rest. v. Village of Port Chester , 188 F.3d 65, 70 (2d Cir. 1999) ("[M]ere failure to prosecute other offenders is not a basis for a finding of denial of equal protection."); Bower Assocs. v. Town of Pleasant Valley , 2 N.Y.3d 617, 631–32, 781 N.Y.S.2d 240, 814 N.E.2d 410 (2004) (dismissing equal protection claims where signature was not provided for a permit, "despite having executed other contemporaneous applications within hours or days," because there was "no proof ... that other entities were similarly situated to" the plaintiff and "other allegedly comparable situations — permits for road work ..., a curb cut, digging up pavement to install a domestic water service, closing the entrance of a driveway and installing a water service pipe — were not ... comparable to widening a county road for a traffic influx").

Although prior owners of the Wantagh Property operated the site as a cabaret and restaurant with live entertainment without a special exception, BZO § 272(C)(6) as amended in March of 1997 limited cabaret special exception permits to the express use applied for and granted, and Plaintiffs’ permit applications sought to use the property in a significantly different way, incorporating a "variety of activities, interactive dinner theater, dancing, comedian[s], jugglers, contortionists [and] sword swallowers [with] ... stage entertainment, live music and dancing." (SAC ¶ 23); see also LaTrieste Rest. , 188 F.3d at 69 ("While ... the previous occupants of the premises violated the zoning restriction and ... the [v]illage did not enforce the restriction against them, [the plaintiff] failed to show that the [v]illage knew about these violations. Absent such proof, [the plaintiff] would be hard-pressed to show that it was singled out for selective treatment."); Crowley , 76 F.3d at 53 (finding no valid comparisons between a zoning board approving variance applications "after an exercise of its discretion, ... [and the plaintiff's] effort ... to apply a stale variance to a revised use without any discretionary deliberation concerning the normally applicable considerations"); Merry Charters, LLC v. Town of Stonington , 342 F. Supp. 2d 69, 69–70, 76 (D. Conn. 2004) (holding that two properties that were governed by different preexisting rules regarding their use were not similarly situated for equal protection purposes).

Even if Plaintiffs were treated differently from other similarly situated businesses, Plaintiffs fail to state a claim under the class-of-one theory because code violations, setback violations, and parking safety hazards at the Wantagh Property provide a rational basis for the Board's denial of Plaintiffs’ application. Given the multiple violations at the Wantagh Property, there was a rational basis for "at least [thirty-four] inspections" on the site compared to the average of three to four inspections. See Crowley , 76 F.3d at 53 (finding that it was rational to deny the plaintiff's variance applications because the parking situation in the plaintiff's property had worsened); Harlen Assocs. , 273 F.3d at 501 ("[T]he [b]oard had a reasonable basis for its belief that placing a convenience store on [the plaintiff's] property posed unique problems and hazards to the community not posed by other similar stores in the area.... Even if the [b]oard's action were based solely on community opposition, such action would not be unconstitutionally arbitrary ...."); Marom v. Town of Greenburgh , No. 18-CV-7637, 2020 WL 4891339, at *8 (S.D.N.Y. Aug. 19, 2020) (finding that the plaintiff's attempt to cure code violations supported the notion that the town was motivated by legitimate interests).

For similar reasons, Plaintiffs have not shown that ill will or malice motivated Defendants to discriminate against them, and thus Plaintiffs also fail on their selective enforcement claim. See Marom , 2020 WL 4891339, at *7 (concluding that favorable treatment of another constituent does not demonstrate malice); Bonadies v. Town of Amenia , No. 19-CV-10890, 2020 WL 5209510, at *6 (S.D.N.Y. Aug. 31, 2020) (concluding that the plaintiff failed to show that the defendants had malicious or bad faith intent to injure him in issuing code and zoning citations despite the defendants exchanging unpleasantries and making "disparaging comments about [the] plaintiff's ethnicity"); Laidlaw Energy and Env't, Inc. v. Town of Ellicottville , No. 08-CV-32, 2011 WL 4954881, at *11 (W.D.N.Y. Oct. 18, 2011) (finding that although the town's acts may have been "compatible with acts intended to injure [the plaintiff]," they were not malicious because they were not coupled with allegations of personal animus and thus could not serve as the predicate for a selective enforcement claim); see also Lisa's Party City, Inc. v. Town of Henrietta , 185 F.3d 12, 17 (2d Cir. 1999) ("[E]vidence of impermissible motive was very weak, consisting entirely of evidence that one town official, who was not a member of the zoning board that denied the variance, was annoyed by [the plaintiff's] owners."); Bower Assocs. , 2 N.Y.3d at 632, 781 N.Y.S.2d 240, 814 N.E.2d 410 ("Even the community's ‘political’ opposition to the high-traffic superstore at the [c]ity's border is not the equivalent of the ‘evil eye and an unequal hand’ for constitutional equal protection purposes" (quoting Masi Mgmt., Inc. v. Town of Ogden , 273 A.D.2d 837, 709 N.Y.S.2d 734, 736 (App. Div. 2000) )).

Accordingly, the Court dismisses Plaintiffs’ equal protection claims.

i. Conspiracy

Defendants argue that Plaintiffs merely state "bald and conclusory" allegations of conspiracy. (Rhoads Mem. 6; Town Defs.’ Mem. 16.) Town Defendants argue that they are incapable of conspiring because they performed a single act and there was no "meeting of the minds [between] the Town and the only non-Town employee, Rhoads[,] ... [who] was merely representing his constituents." (Town Defs.’ Mem. 23, 26.) Town Defendants further assert that Plaintiffs fail to allege the individual defendants’ personal involvements in the alleged conspiracy and fail to proffer evidence "beyond parallel conduct." (Id. at 23, 25.) Town Defendants state that the "repudiated" statement by former Board member Christian Browne, (Town Defs.’ Reply 17),³⁸ is irrelevant because "[i]t is the motive of the Board, and not [of] an individual member[,] that is controlling," (id. (first citing Stringfellow's of N.Y., Ltd. v. City of New York , 91 N.Y.2d 382, 399, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998) (considering the motive of the legislature and not its individual members when deciding "whether the [c]ity's zoning amendments are purposefully directed at controlling the content of the message conveyed through adult businesses or are instead aimed at an entirely separate societal goal"); and then citing Town of Islip v. Caviglia , 73 N.Y.2d 544, 553, 542 N.Y.S.2d 139, 540 N.E.2d 215 (1989) (noting that in evaluating whether an ordinance violates the First Amendment, "it is the motive of the [l]egislature, not individual legislators, that is controlling")).)

38 On or about June 19, 2012, Browne "revealed in a recording that ... Plaintiffs can establish a clear pattern of behavior" by Defendants. (SAC ¶ 393.) This statement was made prior to August 20, 2014, when Plaintiffs commenced this federal action. (Compl.)

Town Defendants assert that Plaintiffs’ argument that the question of whether the Town and its employees can conspire with themselves is a factual question not properly addressed on a motion to dismiss, (Pls.’ Opp'n 28), fails because the Board grants or denies special use permits in accordance with the Town Board's adopted and controlling ordinance. (Town Defs.’ Reply 17 (citing Turkmen v. Hasty , 789 F.3d 218, 262 (2d Cir. 2015), cert. granted on other grounds , Hasty v. Turkmen , ––– U.S. ––––, 137 S. Ct. 293, 196 L.Ed.2d 211 (2016)).) Town Defendants also assert that Plaintiffs’ reliance on Koncelik fails because that case involved a protected nondiscretionary property interest unlike the present case. (Id. (citing Koncelik , 781 F. Supp. at 152 ).)

Rhoads asserts that in response "to the concerns of his constituents — a community that had voiced a strong stance about Plaintiffs’ applications," he signed a petition against the use of the Wantagh Property for a cabaret and requested to adjourn the 2016 Hearing by a month. (Rhoads Mem. 11.) Rhoads argues that his actions at the 2016 Hearing were in the public interest and "were an exercise of the First Amendment rights of [him and his] community members." (Id. ) Further, Rhoads asserts that a photograph taken of him and a member of the Board "during a recess in the [p]ublic [h]earing ... does not establish an impermissible ex parte communication and ... does not demonstrate any overt act in furtherance of a conspiracy" as Plaintiffs fail to "specify the nature of the communication, the length of the communication, what, if any effect, it had on the Board member or how, if at all, the communication harmed ... Plaintiffs." (Id. at 7–8.)

Plaintiffs argue that they have sufficiently pled conspiracy and "Town Defendants cannot have it both ways" by claiming that the Town has no control of the Board's actions and simultaneously using the connection between the Town and the Board to dismiss Plaintiffs’ conspiracy claim. (Pls.’ Opp'n 28; id. at 27 (citing SAC ¶¶ 411–438).) Plaintiffs argue that first, there was an agreement between two or more state actors as detailed in the SAC. (Id. at 28 (citing SAC ¶¶ 120–123, 199, 209–210, 451–457, 459–462).) Second, the agreement was entered into to inflict an unconstitutional injury as exemplified by the fact that (1) Hudes, Murray and State Senator Venditto trespassed onto "Plaintiffs’ property and conducted a press conference where [Murray] publicly stated that ‘we will continue to fight this latest effort to open a cabaret at this location,’ " (2) the Town provided Venditto with access to the email addresses of Wantagh residents, and (3) "Browne revealed in a recording that ... Plaintiffs can ‘establish a clear pattern [of behavior] on the part of the Town officials’ and ‘on the part of the Board ...’ to get them." (Id. at 26; SAC ¶¶ 393, 413.) Third, Defendants acted in furtherance of the conspiracy by:

enacting specific litigation to target [Plaintiffs]; waiting until after litigation is commenced to craft, and issue [f]indings, resolutions and decisions; using public resources to destroy private businesses; harassing citizens with criminal summonses and then requiring them to make repeated — and unnecessary — court appearances; ‘losing’ or ‘misplacing’ necessary files to delay proceedings or determinations; disseminating false information to the public to galvanize opposition and antagonism to private businesses; and failing to provide proper notice to interested parties when enacting legislation.

(Pls.’ Opp'n 26–27.) Plaintiffs argue that "even though they were acting under color of law, ... Defendants were not always acting within the scope of their employment," as exemplified by D'Amato’s ex parte communications with Rhoads during a recess in a Board hearing and Rhoads’ actions "as a prosecutor" during the Board hearing. (Id. at 28 (citing SAC ¶¶ 431–434).)

Plaintiffs also contend that the conspiracy claim is not barred because "Defendants actions are not a single act [but] ... a detailed pattern and course of conduct — spanning more than five years — of discrete actions," (id. at 27 (citing Yeadon v. NYC Transit Auth. , 719 F. Supp. 204, 212 (S.D.N.Y. 1989) )), and "any inquiry as to whether the Town and its various employees can conspire with themselves is a factual question which cannot be resolved on these motions to dismiss," (id. at 28 (emphasis omitted)).

To state a claim for conspiracy under section 1983,³⁹ a "plaintiff must plausibly allege (1) an agreement between a state actor and a private party (2) to act in concert to inflict unconstitutional injury, and (3) an overt act furthering that goal and causing damages." Corsini v. Brodsky , 731 F. App'x 15, 19 (2d. Cir. 2018) (citing Ciambriello v. County of Nassau , 292 F.3d 307, 324–25 (2d Cir. 2002) ); see also Bukowski v. Spinner , 709 F. App'x 87, 89 (2d Cir. 2018) (dismissing the plaintiff's section 1983 conspiracy claim because "oblique reference to those private actors conspiring with [the defendant] to deprive her of her child is fatally conclusory or otherwise unsupported"); Gallop v. Cheney , 642 F.3d 364, 369 (2d Cir. 2011) (dismissing the plaintiff's section 1983 conspiracy claim where "not a single fact ... corroborate[d] her allegation of a ‘meeting of the minds’ among the conspirators"); Ciambriello , 292 F.3d at 325 ("[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed ...."); White v. Abney , No. 17-CV-4286, 2019 WL 1298452, at *6–7 (E.D.N.Y. Mar. 21, 2019) (dismissing complaint where the plaintiff did not allege facts to support section 1983 conspiracy claim that the defendants sought to have him arrested based on false information).⁴⁰

39 Although the SAC alleges conspiracy under 42 U.S.C. §§ 1983 and 1985, (SAC ¶ 450), Plaintiffs’ opposition brief does not refer to section 1985 but rather cites to the test for conspiracy under section 1983 articulated in Pangburn v. Culbertson , 200 F.3d 65, 72 (2d Cir. 1999), (Pls.’ Opp'n 26). As argued by Defendants, "to the extent Plaintiffs[ ] ... assert[ ] a claim of conspiracy under 42 U.S.C. [§] 1985, it fails as a matter of law under ... Rule 8 [of the Federal Rules of Civil Procedure] and Iqbal , for such requires factual allegations of racial animus or a suspect classification ... [and] Plaintiffs make no such allegations." (Town Defs.’ Mem. 23); see Mian v. Donaldson, Lufkin & Jenrette Sec. Corp. , 7 F.3d 1085, 1087 (2d Cir. 1993) ("[Under section 1985,] the conspiracy must ... be motivated ‘by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators’ action.’ " (quoting United Bhd. of Carpenters, Local 610 v. Scott , 463 U.S. 825, 828–29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) )); White v. Abney , No. 17-CV-4286, 2019 WL 1298452, at *6 (E.D.N.Y. Mar. 21, 2019) (dismissing section 1985 conspiracy claim where the plaintiff did "not plausibly allege[ ] that [the defendants] acted with discriminatory motivation").

40 The Court agrees with Defendants that "Plaintiffs’ reliance on Yeadon v. N.Y.C. Transit Auth. , 719 F. Supp. 204, 211 (S.D.N.Y. 1989), is misplaced for it addressed claims of conspiracy under [section] 1985, which [are] limited to claims of conspiracy based on sex, race or religion — claims not raised here." (Town Defs.’ Reply 16–17.)

"[U]nder the intracorporate conspiracy doctrine, the ‘officers, agents, and employees of a single corporate entity are legally incapable of conspiring together.’ " Murphy v. City of Stamford , 634 F. App'x 804, 805 (2d Cir. 2015) (quoting Hartline v. Gallo , 546 F.3d 95, 99 n.3 (2d Cir. 2008) ) (barring the plaintiff's conspiracy claims because under "the intracorporate conspiracy doctrine: the defendants were employees or agents of Stamford, the alleged conspiratorial activities pertained to and were motivated by the defendants’ respective public duties, and all of the alleged discriminatory conduct pertains to a single act (the wrongful property assessment)"); see also Herrmann v. Moore , 576 F.2d 453, 459 (2d Cir. 1978) (noting legal impossibility of pleading conspiracy by exclusive reference to actions of employees of a single corporation). An exception to the intracorporate conspiracy doctrine exists where the individuals are "motivated by an independent personal stake in achieving the corporation's objective." Salgado v. City of New York , No. 00-CV-3667, 2001 WL 290051, at *8 (S.D.N.Y. Mar. 26, 2001) (quoting Girard v. 94th St. and Fifth Ave. Corp. , 530 F.2d 66, 72 (2d Cir. 1976) ); see also Little v. City of New York , 487 F. Supp. 2d 426, 441–42 (S.D.N.Y. 2007) (quoting Salgado , 2001 WL 290051, at *8). Plaintiffs have not alleged any facts to support a meeting of the minds or an agreement between Defendants. Plaintiffs repeatedly offer conclusory statements that Defendants, inter alia , "conspired and agreed to draft the [f]indings of [f]act," (SAC ¶¶ 120–123), "conspired and agreed that they will never allow a Certificate of Occupancy for the Wantagh Property," (id. ¶ 199), "conspired and reached an agreement to prevent ... Plaintiffs from ever opening the Wantagh [Property's]" cabaret, (id. ¶ 451), "conspired to prevent ... Plaintiffs from mitigating their damages by opening a restaurant at the Wantagh Property as it is configured," (id. ¶ 452), and "conspired to deprive ... Plaintiffs of equal protection" and due process, (id. ¶¶ 459–460). These threadbare and conclusory assertions are plainly insufficient to show an agreement, which is necessary to maintain a section 1983 conspiracy claim. See Corsini , 731 F. App'x at 18 (affirming dismissal of the plaintiff's section 1983 conspiracy claim because the plaintiff made only threadbare recitals of the elements of the claim); Robbins v. Cloutier , 121 F. App'x 423, 425 (2d Cir. 2005) (finding allegations that the defendants " ‘acted in a concerted effort, ... agreed to not hire [the plaintiff] and to inform other ... entities to refrain from hiring [the plaintiff’] and ‘... [did] overt acts in order to effectuate their common plan’ " to be conclusory and insufficient to maintain a section 1983 conspiracy claim); Scalpi v. Town of East Fishkill , No. 14-CV-2126, 2016 WL 858925, at *5 (S.D.N.Y. Feb. 29, 2016) ("Allegations of a conspiracy to violate civil rights must be plead[ ] with specificity, and ‘[a]n otherwise invalid [ section] 1983 claim cannot survive a motion to dismiss merely by mentioning the word "conspiracy." ’ " (first alteration in original) (quoting Brewster v. Nassau County , 349 F. Supp. 2d 540, 547 (E.D.N.Y. 2004) )); Arredondo , 2012 WL 910077, at *6 (dismissing complaint where the plaintiff had only made general allegations that the defendants had an understanding without any facts to support the claim).

Plaintiffs also fail to show that Defendants acted in concert to inflict unconstitutional injury. See Marshall v. Griffin , No. 18-CV-6673, 2020 WL 1244367, at *10 (S.D.N.Y. Mar. 16, 2020) ("[The plaintiff] repeatedly refers to a ‘conspiracy’ between various [d]efendants .... But other than the fact that [the defendants] all work at Green Haven, [the p]laintiff alleges no facts to support an inference that [the defendants] were acting in concert in furtherance of a conspiracy ...."). While the Court views Browne's statement in the light most favorable to Plaintiffs, the statement is merely conclusory and does not specify how or what evidences a "clear pattern" by the Town to "get" Plaintiffs. (See SAC ¶ 413); see also Thomas v. Demeo , No. 15-CV-9559, 2017 WL 3726759, at *12 (S.D.N.Y. Aug. 28, 2017) (dismissing a section 1983 conspiracy claim because the complaint did not "provide even circumstantial allegations that the alleged conspiracy existed, much less any details as to the extent of the alleged agreement or how [the defendants] collectively carried it out"). Cf. Chamberlain v. City of White Plains , 986 F. Supp. 2d 363, 389 (S.D.N.Y. 2013) ("Reprehensible as it is, a single use of a racial epithet by a single officer does not, as noted above, plausibly indicate that the eight individual [d]efendant officers (or even a subset of them) entered into any sort of agreement to deprive [the plaintiff] of constitutionally protected rights [under section 1983 ].").

Similarly, as an elected legislator, Murray's statements about preventing the opening of a cabaret were a result of public outcry and do not suggest that the individuals acted in concert but rather that they were independently expressing the will of constituents. As stated in the SAC, Murray acted in response to "extreme community pressure." (SAC ¶¶ 87, 89.) Rhoads’ "speak[ing] out on matters of public concern" also does not suggest that the individuals acted in concert. (Rhoads Mem. 12.) Further, there is nothing to suggest that the Town provided Venditto with access to the email addresses of Wantagh residents in order to inflict unconstitutional injury.

Finally, what Plaintiffs assert as actions "in furtherance of the conspiracy" are generally independent actions. Delayed response, litigation, and public discourse surrounding Plaintiffs’ applications are insufficient to sustain a cause of action for conspiracy under section 1983. See Christian v. Town of Riga , 649 F. Supp. 2d 84, 100 (W.D.N.Y. 2009) (finding no conspiracy under section 1983 where the plaintiff alleged that the chairperson of a planning board convinced a building inspector to deny the plaintiff's applications for building permits, the town instituted a moratorium effective on the filing or issuance of such permits, and response to the plaintiff's application was delayed). Furthermore, Rhoads’ role in the Board hearing and his communication with D'Amato during a recess in the Board hearing are neither prohibited actions nor a signal of conspiracy. See Manbeck v. Micka , 640 F. Supp. 2d 351, 379 (S.D.N.Y. 2009) (agreeing with magistrate's reasoning that "[e]vidence that [the] defendants spoke with [t]own officials and complained about [the] plaintiff's conduct to [t]own officials is not by itself adequate evidence of a conspiracy" (first alteration in original) (quoting report and recommendation)), adopting in part and modifying in part report and recommendation , 2009 U.S. Dist. LEXIS 105922 (S.D.N.Y. Mar. 5, 2009).

Irrespective of whether there was an agreement, actions in concert, or furtherance of a conspiracy — and the Court finds none with respect to the as-applied constitutional challenges before the Court in this motion — there was no constitutional injury and, thus, Plaintiffs have failed to allege a conspiracy claim.⁴¹ See Dean Tarry Corp. v. Friedlander , 826 F.2d 210, 213–14 (2d Cir. 1987) (dismissing section 1983 conspiracy claim where the plaintiff did not have a property right in an approved sit plan and pointed to no "actual deprivation of a constitutional right" (quoting Villanueva v. McInnis , 723 F.2d 414, 418 (5th Cir. 1984) )); Dells, Inc. v. Mundt , 400 F. Supp. 1293, 1298 (S.D.N.Y. 1975) (finding that the plaintiff "can show no success for the conspiracy because the state court decided that the zoning classification did not violate any constitutional rights of [the] plaintiff").

41 As discussed infra , Defendants do not argue that Plaintiffs fail to state a claim as to their as-applied First Amendment challenges. See infra note 44 (noting that Defendants’ only argument concerning Plaintiffs’ as-applied First Amendment claims is regarding standing).

For the reasons stated above, the Court dismisses Plaintiffs’ claims for conspiracy against all Defendants.⁴²

42 Because the Court finds that Plaintiffs have not pled more than conclusory statements to support their claim of conspiracy, the Court declines to address whether Defendants’ actions constituted a single act. See L.K. v. Sewanhaka Cent. High Sch. Dist. , 641 F. App'x 56, 59 (2d Cir. 2016) (declining to decide whether the intracorporate conspiracy doctrine applied where the plaintiffs failed to plead "facts supporting their conclusory assertion that [the] defendants had an ‘express understanding or tacit agreement’ ").

j. First Amendment claims

As discussed supra , Plaintiffs have standing to bring two First Amendment facial challenges to the Town's laws: (1) a facial challenge to the BZO Special Use Provision (SAC ¶ 491), and (2) a facial challenge to the BZO Temporal Limit Provision, (id. ¶¶ 487–489 (arguing that the BZO Temporal Limit Provision is "unconstitutional on its face" because it is impermissibly vague)).⁴³

43 Other than BZO § 272(C)(6), Plaintiffs do not specify which provisions of the BZO they intend to challenge as facially invalid. (See SAC ¶ 491 (noting generally that "the provisions requiring a special exemption to use premises for a place of public assembly and amusement to be issued by the [Board] — including [272(C)(6)] of the [BZO] — are unconstitutional on their face").) There are multiple provisions scattered throughout the BZO regarding places of public assembly. (See, e.g. , Town Code §§ 96-1–4.) As Town Defendants argue, facial challenges are "disfavored" because they "run contrary to the fundamental principle of judicial restraint that courts should neither ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ " Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)). Accordingly, the Court will not speculate as to which other provisions of the BZO Plaintiffs intend to challenge. The Court therefore construes Plaintiffs’ facial challenge to "provisions of the [BZO] that require a special exemption to use [the] premises for a place of public assembly and amusement" as a challenge to BZO § 272(C)(6) — the only provision specifically referenced in the SAC and in the parties’ briefing. (See Pls.’ Opp'n 47–48; SAC ¶¶ 490–494.)

Town Defendants argue that they are entitled to an order dismissing both of Plaintiffs’ First Amendment facial challenges.⁴⁴ (See Town Defs.’ Mem. 29, 45.) The Court addresses each of these arguments and facial challenges in turn below. For the reasons stated below, the Court denies Town Defendants’ motion for judgment on the pleadings with respect to both facial challenges.

44 Town Defendants’ briefing does not argue that Plaintiffs fail to state a claim on their as-applied First Amendment challenges. Town Defendants’ arguments regarding Plaintiffs’ as-applied First Amendment challenges solely concern the ripeness and standing issues addressed supra. (See Town Defs.’ Mem. 4–7 (arguing that Williamson ’s ripeness requirement applies to Plaintiffs’ First Amendment claims and that Plaintiffs’ as-applied First Amendment claims are not redressable).) Courts addressing both facial and as-applied First Amendment claims analyze these issues separately. See, e.g., Field Day, LLC v. County of Suffolk , 463 F.3d 167, 174–75 (2d Cir. 2006) (analyzing plaintiff's facial and as-applied challenges separately and noting that while facial challenges "consider[ ] only the text of the statute itself," as-applied challenges "require[ ] an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right"). Accordingly, the Court does not construe Town Defendants’ arguments that Plaintiffs failed to state a claim with respect to their First Amendment facial challenges to also incorporate the argument that Plaintiffs fail to state a claim with respect to their as-applied First Amendment claims. Because the parties’ briefing does not address whether Plaintiffs fail to state a claim with respect to their as-applied First Amendment claims, the Court declines to rule on these claims.

i. Waiver

Town Defendants argue that Plaintiffs waived both of their facial challenges. Town Defendants argue that Plaintiffs’ challenge to the BZO provisions that require a special exemption to use the premises for a place of public assembly and amusement to be issued by the Board is waived because Plaintiffs availed themselves of the benefits of the law. (Id. at 36.) In support, Town Defendants cite several United States Supreme Court cases from the late 1800s and early 1900s, which they argue demonstrate that "[a] party cannot, in the same proceeding, rely upon a statute or retain benefits thereunder and attack its constitutionality." (Id. ) Town Defendants argue that Plaintiffs availed themselves of "the benefits of the ordinances" with respect to the Wantagh Property because "Plaintiffs requested and were initially granted benefits under the same ordinance in 2010." (Id. at 36–37.) Town Defendants state without any explanation that Plaintiffs also waived their challenge to BZO Temporal Limit Provision. (Id. at 45.)

Plaintiffs argue that neither challenge is waived because Plaintiffs "did not ‘avail’ themselves of any ‘benefit’ of the restrictions on their permits." (Pls.’ Opp'n 50.) In support, Plaintiffs rely on Surmeli v. New York , in which the court "rejected the notion that a party cannot challenge a statute if they have availed themselves of its benefits." (Id. ) (citing 412 F. Supp. 394, 396 (S.D.N.Y. 1976), aff'd , 556 F.2d 560 (2d Cir. 1976).)

Constitutional estoppel applies to prevent a party from enjoying the benefits of a government action while simultaneously challenging the constitutionality of that government action. Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (stating that the Supreme Court "will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits"); Fahey v. Mallonee , 332 U.S. 245, 255, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947) ("It is an elementary rule of constitutional law that one may not ‘retain the benefits of [an act] while attacking the constitutionality of one of its important conditions.’ " (quoting United States v. City and County of San Francisco , 310 U.S. 16, 29, 60 S.Ct. 749, 84 L.Ed. 1050 (1940) )). However, the Supreme Court has expressed "doubt that plaintiffs are generally forbidden to challenge a statute simply because they are deriving some benefit from it." Kadrmas v. Dickinson Pub. Sch. , 487 U.S. 450, 456–57, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). In addition, the Supreme Court has noted that the "doctrine has unquestionably been applied unevenly in the past, and observed as often as not in the breach." Arnett v. Kennedy , 416 U.S. 134, 153, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) ; accord Brockert v. Skornicka , 711 F.2d 1376, 1380 (7th Cir. 1983). Although the parties do not cite any Second Circuit cases — and this Court is aware of none — that address the doctrine of constitutional estoppel in the zoning context, the Second Circuit has affirmed a case holding that a plaintiff is not estopped from challenging a licensing statute's constitutionality when the plaintiff accepted the license. See Surmeli , 412 F. Supp. at 396 (noting that "this doctrine of estoppel is a slender reed for defendants to rely on in their attempt to foreclose plaintiffs’ constitutional attack" and holding that the "acceptance of the license did not deprive them of the right to challenge the constitutional validity of the ten-year restriction").

Plaintiffs in this case have not received the benefit of any permit or variance from the challenged ordinances because the 2016 Application was denied. (Town Defs.’ Mem. 11.) This situation is distinguishable from other cases in which constitutional estoppel has applied, such as when plaintiffs who sought to retain federal funds awarded by an agency also challenged the existence or composition of that agency as unconstitutional. Cf. Robertson v. F.E.C. , 45 F.3d 486, 488–89 (D.C. Cir. 1995) (finding that plaintiff cannot challenge the "very statutory instrumentality by which the funds are dispensed" after plaintiff "voluntarily accepted over $10 million in public funds" in an effort to avoid repayment); Fahey , 332 U.S. at 245, 67 S.Ct. 1552 (holding that plaintiff cannot take advantage of federally authorized banking privilege and simultaneously challenge limitations imposed for public protection). Indeed, the Seventh Circuit has noted that "the doctrine is most appropriate when a party seeks to retain the benefits of a governmental act while attempting to invalidate its burdens." Brockert , 711 F.2d at 1380 ; see also City & County of San Francisco , 310 U.S. at 16, 60 S.Ct. 749 (holding that city cannot retain federal land grant and attempt to invalidate restrictions under which it accepted the land). Accordingly, the Court finds that Plaintiffs’ claims are not estopped.

ii. Statute of limitations

Town Defendants argue that Plaintiffs’ facial challenges are "time-barred under the applicable three-year [s]tatute of [l]imitations." (Town Defs.’ Mem. 37.) Town Defendants argue that "accrual occurs under section 1983 ‘when the plaintiff knows or has reason to know of the injury which is the basis of his action.’ " (Id. (quoting White-Ruiz v. City of New York , 983 F. Supp. 365, 392–93 (S.D.N.Y. 1997) ).) Town Defendants assert that Plaintiffs could have challenged both the alleged First Amendment deficiencies of the Special Use Ordinance "as applied to ... the Wantagh [Property] ... and the [five-year] temporal limitation ... in 2009 ... when Plaintiffs first purchased the property with the intent to operate a cabaret, and when their application for a building permit was denied for need of a special use permit, and in 2010 when the [s]pecial use ordinance was actually applied to Plaintiffs’ Wantagh [Property]." (Id. at 38.)

Plaintiffs argue that their claims are not time-barred. With respect to their challenge of the BZO Temporal Limit Provision, which imposes temporal limits on the grant of a cabaret permit and other special uses, Plaintiffs argue that because the statute was adopted on December 9, 2014, they are "well within the [six-year] statute of limitations." (Pls.’ Opp'n 49.) With respect to their challenge to the BZO Special Use Provision, which requires a special exception to use premises for a place of public assembly and amusement, Plaintiffs argue that because their "constitutional challenge is the proper subject of an action for declaratory judgment," it is subject to a six-year statute of limitations. (Id. ) Plaintiffs assert that their challenge is not time-barred since they "purchased the Wantagh [Property] in 2009" and their "original complaint presented this issue back in August of 2014," within the statute of limitations period ending in 2015. (Id. )

The statute of limitations for claims brought pursuant to section 1983 is determined by state law, and in New York State, the statute of limitations for actions brought pursuant to section 1983 is three years. See Owens v. Okure , 488 U.S. 235, 249–51, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (holding that the most appropriate statute of limitations in a section 1983 action is found in the "general or residual [state] statute [of limitations] for personal injury actions"); Shomo v. City of New York , 579 F.3d 176, 181 (2d Cir. 2009) ("The statute of limitations for claims brought under [s]ection 1983 is governed by state law, and in this case is the three-year period for personal injury actions under New York State law."). "While state law supplies the statute of limitations for claims under [ section] 1983, federal law determines when a federal claim accrues. The claim accrues when the plaintiff knows or has reason to know of the harm." Connolly v. McCall , 254 F.3d 36, 41 (2d Cir. 2001) (quoting Eagleston v. Guido , 41 F.3d 865, 871 (2d Cir. 1994) ); see also Shomo , 579 F.3d at 181 ("A [s]ection 1983 claim ordinarily ‘accrues when the plaintiff knows or has reason to know of the harm.’ " (quoting Eagleston , 41 F.3d at 871 )).

Neither the Second Circuit nor any other circuit court has resolved the issue of whether the statute of limitations for a section 1983 claim can bar a facial challenge to legislation brought under the First Amendment. See Nat'l Advert. Co. v. City of Raleigh , 947 F.2d 1158, 1168 (4th Cir. 1991) ("[I]t is doubtful that an ordinance facially offensive to the First Amendment can be insulated from challenge by a statutory limitations period."); Maldonado v. Harris , 370 F.3d 945, 955 (9th Cir. 2004) ("We join the Fourth Circuit in expressing serious doubts that a facial challenge under the First Amendment can ever be barred by a statute of limitations ...." (citing Nat'l Advert. Co. , 947 F.2d at 1168 )); EklecCo NewCo LLC v. Town of Clarkstown , No. 16-CV-6492, 2019 WL 2210798, at *7 (S.D.N.Y. May 21, 2019) ("The Second Circuit has not yet directly addressed whether the statute of limitations for a [ section] 1983 claim can bar a facial challenge to legislation brought under the First Amendment, and the issue has not been resolved by other circuit courts.").

In EklecCo NewCo LLC , the Southern District of New York contemplated a situation similar to this case in which the defendants alleged that the plaintiffs’ First Amendment facial challenge to a town ordinance brought under section 1983 was time-barred. See EklecCo NewCo LLC , 2019 WL 2210798, at *7. In that case, the court noted that the harm resulting from the plaintiffs’ First Amendment claims "occurs as long as the [t]own enactments allegedly limit [p]laintiffs’ exercise of their First Amendment rights," unlike the harm from a facial challenge based on the Fifth Amendment, which accrues upon adoption. Id. Because of the "ongoing nature of the harm caused by such legislation," the court held that "the statute of limitations for facial challenges to legislation based on the First Amendment does not accrue until the statute is repealed or otherwise invalidated." Id. Compare JCG v. Ercole , No. 11-CV-6844, 2014 WL 1630815, at *10 (S.D.N.Y. Apr. 24, 2014) (citing cases in which courts in the Second Circuit found the continuing violations doctrine to apply to alleged violations of the First Amendment), and Summit Media LLC v. City of Los Angeles , 530 F. Supp. 2d 1084, 1090 (C.D. Cal. 2008) ("The statute of limitations does not apply to the facial challenge of a statute that infringes First Amendment freedoms as such a statute inflicts a continuing harm."), with Smith v. N.Y.C. Dep't of Educ. , 524 F. App'x 730, 732 (2d Cir. 2013) (holding that the plaintiff could not rely on the continuing violation doctrine for his First Amendment retaliation claims because each alleged retaliatory act was a discrete act and not an "ongoing policy of retaliation"). In addition, as the Ninth Circuit noted in Maldonado , "a significant number of district courts have held that facial challenges under the First Amendment are not subject to the statutes of limitation applicable to [ section] 1983 actions." 370 F.3d at 955 n.6 (collecting cases).

The Court declines to diverge from the district courts and circuit courts that have contemplated this issue and finds that the statute of limitations for section 1983 claims does not apply to facial First Amendment challenges when the ordinance causing harm continues to be in effect. The harm Plaintiffs allege in their First Amendment facial claims occurs as long as the Town enactments allegedly limit Plaintiffs’ exercise of their First Amendment rights. (SAC ¶¶ 251–252, 453 (noting that dancing and other forms of entertainment such as magic shows and talent contests are not occurring at the Wantagh Property due to its closure).) Accordingly, Plaintiffs’ First Amendment claims are not barred by the three-year statute of limitations.

iii. Facial overbreadth challenge: BZO Special Use Provision

Town Defendants argue that Plaintiffs’ facial challenge⁴⁵ to the provisions of the BZO that require a special exemption to use the premises for a place of public assembly and amusement to be issued by the Board either should not be considered by the Court under the doctrine of constitutional avoidance or, if considered by the Court, should be dismissed for failure to state a claim.⁴⁶ First, Town Defendants argue that the Court should "avoid reaching the constitutional issue" because Plaintiffs’ arguments fail on nonconstitutional grounds such as standing, waiver, and statute of limitations. (Town Defs.’ Mem. 30 (quoting Pugh v. Goord , 571 F. Supp. 2d 477, 509 (S.D.N.Y. 2008) ).) Next, Town Defendants argue that special exception use permits "may be completely appropriate when applied to businesses which do not involve protected speech" and that the special use ordinance at issue here is not a substantial burden on free speech just because it imposes costs, procedural requirements, and has "inherent political aspects." (Id. at 39–40 (first quoting 801 Conklin St. Ltd. v. Town of Babylon , 38 F. Supp. 2d 228, 245 (E.D.N.Y. 1999) ; and then quoting Roman Cath. Bishop v. City of Springfield , 760 F. Supp. 2d 172, 187 (D. Mass. 2011) ).) Last, Town Defendants assert that the ordinances do "not regulate conduct commonly associated with expression" but instead regulate "where certain types of buildings, regardless of what expression happens inside them, may be located." (Id. at 44.) Town Defendants argue that because the special use ordinance is "generally applicable to all sorts of businesses that seek to locate in Hempstead ... and is not based on, nor triggered at all by, the content or viewpoint of speech or other expressive conduct[,] the ordinances are entirely content neutral" and as such do not merit a heightened standard of review. (Id. at 43.)

45 Plaintiffs do not state whether they intend to challenge the ordinance on overbreadth grounds but assert that there is no basis to allow the Board to "dictate the type of lawful entertainment that can be conducted within a commercial establishment located within a [b]usiness [d]istrict pursuant to a cabaret use permit." (SAC ¶¶ 491–492.) In addition, Plaintiffs argue that the BZO "can only properly regulate the use of land and not the operation of businesses." (Pls.’ Opp'n 48.) In substance, it appears that Plaintiffs are making an overbreadth claim because they argue that the ordinance regulates more conduct than is constitutionally permissible. Accordingly, the Court construes Plaintiffs’ First Amendment facial challenges as overbreadth claims.

46 Town Defendants argue that Plaintiffs’ facial challenges fail because they "failed to give the mandatory notice to the [Attorney General] on all challenges to Town ordinances" pursuant to N.Y. C.P.L.R. § 1012. (Town Defs.’ Mem. 32.) Plaintiffs do not address this argument in their briefing. However, the Court finds this section inapplicable to the instant case. New York Civil Practice Law and Rules (the "N.Y. C.P.L.R.") § 1012 states that notice must be provided to the state attorney general "[w]hen the constitutionality of a statute of the state, or a rule and regulation adopted pursuant thereto is involved in an action to which the state is not a party." N.Y. C.P.L.R. § 1012(b)(1). The N.Y. C.P.L.R. further provides that a "city, county, town, or village shall be notified and permitted to intervene in support of its constitutionality" when that "city, county, town, or village is involved in an action to which the city, county, town or village that enacted the provision is not a party." Id. § 1012(b)(2). Both of Plaintiffs’ facial challenges are to provisions of the BZO and Town Code, which are local Town of Hempstead laws and ordinances — not state laws — in a litigation in which the Town itself is a party. (See SAC ¶¶ 487–491 (challenging sections 267(D)(3) and 272(C)(6) of the BZO).) Accordingly, Plaintiffs are not required to provide notice to the New York State Attorney General. Cf. Levine v. Traffic & Parking Violation Agency for Nassau Cnty. , 29 Misc.3d 1205A, 958 N.Y.S.2d 308 (Sup. Ct. 2010) (finding that notice is required to the county when challenging county law and that "[c]ounty agencies are parties here is no substitute for compliance with the statutory requirement that notice be given to the [c]ounty").

Plaintiffs argue that the Court should not avoid deciding the constitutional issues at hand "because this unconstitutional statute plays such an important role in this case." (Pls.’ Opp'n 49.) Plaintiffs argue that the BZO Special Use Provision requires a special exception to use premises for a place of public assembly and amusement is unconstitutional on its face. (Id. at 47.) Plaintiffs assert that the rules "affect[ ] free speech at cabarets" and therefore are "subjected to heightened scrutiny — not the mere rational basis test." (Id. ) Plaintiffs argue that "the Board ... should not dictate the type of lawful entertainment that can be conducted within a commercial establishment located within a Business District pursuant to a cabaret use permit." (Id. at 47–48.) In addition, Plaintiffs argue that the BZO "can only properly regulate the use of land and not the operation of businesses" because New York courts have found invalid "zoning laws ... that seek to address how businesses operate" since they are not within the scope of the Board's safety and health powers. (Id. at 48.)

"A law is unconstitutionally overbroad if it punishes a substantial amount of protected free speech, judged in relation to its plainly legitimate sweep." Vt. Right to Life Comm., Inc. v. Sorrell , 758 F.3d 118, 127 n.8 (2d Cir. 2014) (quoting United States v. Farhane , 634 F.3d 127, 136 (2d Cir. 2011) ); United States v. Thompson , 896 F.3d 155, 163 (2d Cir. 2018) ("[T]o be struck as overbroad, the statute must be overbroad ‘not only in an absolute sense, but also relative to the statute's plainly legitimate sweep.’ " (quoting United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) )), cert. denied , ––– U.S. ––––, 139 S. Ct. 2715, 204 L.Ed.2d 1113 (2019) ; Adams v. Zenas Zelotes , 606 F.3d 34, 38 (2d Cir. 2010) ; see also Members of City Council of L.A. v. Taxpayers for Vincent , 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ("There are two quite different ways in which a statute may be considered invalid ‘on its face’ — either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.’ "); Sorrell , 758 F.3d at 127 (describing the two "different ways in which a statute may be considered invalid ‘on its face’ " (quoting Taxpayers for Vincent , 466 U.S. at 796, 104 S.Ct. 2118 )). The Supreme Court has described an overbreadth challenge as "limited" and has noted that its force weakens as the regulated behavior at issue "moves from ‘pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws." Broadrick , 413 U.S. at 615, 93 S.Ct. 2908 ; Farhane , 634 F.3d at 136–37 (noting that "invalidat[ing] all enforcement of a challenged law ... is ‘strong medicine’ " (quoting Williams , 553 U.S. at 292, 128 S.Ct. 1830 )); see also Gospel Missions of Am. v. City of Los Angeles , 419 F.3d 1042, 1050 (9th Cir. 2005) ("[T]he overbreadth doctrine's concern with ‘chilling’ protected speech attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct." (alteration in original) (quoting Virginia v. Hicks , 539 U.S. 113, 124, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) )); United States v. Richards , No. 13-CR-818, 2014 WL 3765712, at *3 (S.D.N.Y. July 29, 2014) (quoting Broadrick , 413 U.S. at 615, 93 S.Ct. 2908 ).

"[T]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." United States v. Stevens , 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Williams , 553 U.S. at 293, 128 S.Ct. 1830 ). The second step is to determine whether the statute, as construed by the court, "prohibits a substantial amount of protected speech." Williams , 553 U.S. at 292, 128 S.Ct. 1830 ; see also Adams , 606 F.3d at 38 (noting that determining whether the statute as construed "reach[es] ‘a substantial amount of protected expressive activity’ " ... is the "second step in an overbreadth analysis" (quoting Williams , 553 U.S. at 297, 128 S.Ct. 1830 )). "[I]n considering facial challenges we must ‘vigorously enforce[ ] the requirement that a statute's overbreadth be substantial , not only in an absolute sense, but also relative to the statute's plainly legitimate sweep.’ " Adams , 606 F.3d at 38 (quoting Williams , 553 U.S. at 292, 128 S.Ct. 1830 ). The Court addresses each step of the analysis in turn below.

1. Construction of the BZO Special Use Provision

On this motion, the Court cannot embrace either Plaintiffs’ or Town Defendants’ arguments. Town Defendants would have the Court construe the BZO Special Use Provision as a mere routine building- and business-regulating law that does not implicate protected First Amendment activity. (Town Defs.’ Mem. 43–44.) Plaintiffs’ central argument is that the BZO Special Use Provision is unconstitutional because it burdens protected expression under the First Amendment and, as such, the ordinance's breadth is unconstitutional. (Pls.’ Opp'n 49.) However, the Court is not willing to adopt Town Defendants’ narrow reading of the BZO that excludes potential protected First Amendment activity from its ambit, at least without a meaningful construction of the statute — something that the parties have not undertaken on this motion.

In construing whether First Amendment protected activity is covered by the BZO, "[t]he language of the [l]aw itself is ... the proper starting point." Muchmore's Cafe, LLC , 2016 WL 11468539, at *8 ; see also New York v. Mountain Tobacco Co. , 942 F.3d 536, 546 (2d Cir. 2019) ("The plain meaning [of a statute] is best discerned by ‘looking to the statutory scheme as a whole and placing the particular provision within the context of that statute.’ " (quoting Saks v. Franklin Covey Co. , 316 F.3d 337, 345 (2d Cir. 2003) )); Mary Jo C. v. N.Y. State & Local Ret. Sys. , 707 F.3d 144, 155 (2d Cir. 2013) (stating that statutory analysis begins with a "review [of] the statutory text, considering ... the placement and purpose of those words in the statutory scheme") (quoting United States v. Aguilar , 585 F.3d 652, 657 (2d Cir. 2009) ), cert. dismissed , 569 U.S. 1040, 133 S.Ct. 2823, 186 L.Ed.2d 881 (2013).

Section 272 of the BZO regulates special permits that can be issued by the Board. BZO § 272. Under section 272, the Board may, after public notice and hearing, permit uses listed in the ordinance based on how the district in which the use is to occur is categorized. Id. Pursuant to the BZO Special Use Provision, in a business district, places of amusement and public assembly are subject to a special use permit requirement. Id. § 272(C)(6). The ordinance requires that "the grant of any cabaret use by the Board ... shall be limited to the specific cabaret use applied for and approved by the Board ... and no other cabaret use." Id. The Town Code defines a "cabaret" as:

[a]ny room, place or space wherein musical entertainment, singing, dancing in a designated area or other form of amusement or entertainment is permitted in conjunction with the sale or service of food or drink to the public, except such places providing musical entertainment by mechanical means without dancing or by having musical entertainment of not more than three musical instruments, consisting of a piano, organ, accordion, string instrument or any combination thereof, without any means of electrical

or electronic amplification connected directly thereto.

Town Code § 96-1(A). The language of the BZO Special Use Provision seems to directly implicate public assembly for all sorts of purposes, including cabarets, nightclubs, civic engagement, and recreational purposes. See BZO § 272(C)(6); Town Code § 96-1(A) (defining place of public assembly).

In addition, dancing, singing, and other forms of musical entertainment may be implicated because the provision states that it applies to cabarets, see BZO § 272(C)(6) ("For purposes of this section, the term ‘cabaret’ shall be the same as defined in Chapter 96 of the [Town Code]."), and the language in the provision of the Town Code defining "cabaret" is broad, describing the forms of amusement as "musical entertainment, singing, dancing in a designated area or other form of amusement or entertainment." Town Code § 96-1(A). The BZO Special Use Provision generally describes "cabaret use" to define the parameters of the conduct prohibited absent license. BZO § 272(C)(6). The ordinance does not distinguish between performative conduct by performers or participatory conduct by patrons, though other provisions of the Town Code seem to classify venues with participatory conduct by patrons differently. See, e.g. , Town Code § 96-1(A) (defining dance hall as "[a]ny room, place or space in which dancing is carried on and to which the public may gain admission"). Musical entertainment plainly suggests the performance of music, and singing seems to suggest singing as a performance — though singing could theoretically include participatory singing such as karaoke. The term "other form of amusement or entertainment" is similarly broad and provides little guidance since "nearly anything could be considered amusing to someone." Muchmore's Cafe, LLC , 2016 WL 11469539, at *9 (construing a similar cabaret licensing provision); see also People v. Walter , 106 Misc.2d 359, 431 N.Y.S.2d 776, 778 (Crim. Ct. 1980) (finding that the phrase "any musical entertainment[,] singing, dancing or other form of amusement" in a similar cabaret law "may include activities such as the playing of backgammon, chess or any electronic game").

Neither Plaintiffs nor Town Defendants cite any decisions of other courts that have examined the BZO Special Use Provision in an effort to determine its scope and sweep, and the Court is not aware of any. However, courts have contemplated similar cabaret laws with similar language as the BZO Special Use Provision and found that the law in question implicates protected expression in the form of dance, musical performance, and other forms of entertainment. For example, New York City's recently repealed cabaret law contained similar provisions to the BZO Special Use Provision and required licenses for "any person to conduct, maintain or operate, or engage in the business of conducting, maintaining or operating, a public dance hall, cabaret or catering establishment." Muchmore's Cafe, LLC , 2016 WL 11469539, at *1 (quoting N.Y.C. Admin. Code § 20-360 (repealed 2018)). Under that law, "cabaret" was defined as "[a]ny room, place or space in the city in which any musical entertainment, singing, dancing or other form of amusement is permitted in connection with the restaurant business or the business of directly or indirectly selling to the public food or drink, except eating or drinking places, which provide incidental musical entertainment, without dancing, either by mechanical devices, or by not more than three persons." Id. (quoting N.Y.C. Admin. Code § 20-359 ).

Courts construing the New York City statute "have clearly found that the statute covers dance and other forms of entertainment and amusement that implicate protected expression." Id. at *10 ; see also Merco Props., Inc. v. Guggenheimer , 395 F. Supp. 1322, 1328 (S.D.N.Y. 1975) (addressing a constitutional challenge to the New York City cabaret law and finding that it "implicates [F]irst [A]mendment rights to the extent that musical entertainment, singing, and dancing are considered communicative forms of expression"); People v. Caroline's for Comedy, Inc. , 141 Misc.2d 1061, 535 N.Y.S.2d 904, 906 (Crim. Ct. 1988) (finding that the "defendant's assertion that [stand-up] comedy cannot fit within the definition of a cabaret because it is not amusement similar to singing or dancing is clearly specious" and rejecting the defendant's argument that stand-up comedy should be excluded from the definition of "similar amusement" because the term was overbroad and should not be construed to include a form of protected speech); Club Winks v. City of New York , 99 Misc.2d 787, 417 N.Y.S.2d 178, 179–81 (Sup. Ct. 1979) (considering cases of plaintiff lessees and operators of establishments "offering live dance entertainment as well as food and drink" who were served summonses by inspectors of the New York City Department of Consumer Affairs for operating unlicensed cabarets and finding that "live dance entertainment ... clearly is included within the protective umbrella of the First Amendment"); Chiasson v. N.Y.C. Dep't of Consumer Affs. (Chiasson I ), 132 Misc.2d 640, 505 N.Y.S.2d 499, 504 (Sup. Ct. 1986) (holding that New York City's cabaret law's prohibition on percussion, wind, and brass instruments being used to play incidental music in unlicensed clubs "implicates First Amendment rights to the extent that musical entertainment, singing and dancing are considered communicative forms of expression").

Similarly, the Town requires a special use permit for all types of performance and expressive activity occurring in cabarets. Accordingly, given the similarities to New York City's cabaret law, it is possible that the BZO Special Use Provision also implicates protected expression in the form of dance, musical performance, and other forms of entertainment. However, despite the importance of construing the statute and explaining the rights that may be implicated by the BZO Special Use Provision, the parties do not endeavor to analyze the ordinance as it relates to expressive conduct. Town Defendants assert that the ordinances do "not regulate conduct commonly associated with expression" but instead regulate "where certain types of buildings, regardless of what expression happens inside them, may be located." (Town Defs.’ Mem. 44.) Similarly, while Plaintiffs assert that the ordinance implicates "free speech at cabarets," (Pls.’ Opp'n 47), they do not attempt to construe the statute or state which forms of protective activity it implicates. In addition, to the extent that the BZO implicates protected expression, the Court must determine whether the ordinance can be construed such that the constitutional question may be avoided. Vermont Right to Life Committee, Inc. v. Sorrell , 221 F.3d 376, 386 (2d Cir. 2000) ("The question, then, is whether a narrowing construction can be applied to either set of provisions to rescue it from facial invalidity on ... First Amendment grounds ...."). Until the parties fully address the scope of the statute, the Court cannot reach this issue. Given that the BZO covers all forms of dancing and entertainment, such a narrowing interpretation may not be possible.

2. Substantial burden

Once the Court has determined whether the BZO implicates protected expression and whether the ordinance can be construed such that the constitutional question may be avoided, the Court must determine whether the BZO Special Use Provision substantially burdens protected speech.⁴⁷

47 Town Defendants and Plaintiffs dispute which scrutiny level should be applied to determine the constitutionality of the BZO Special Use Provision. Town Defendants argue that because the special use ordinance is "generally applicable to all sorts of businesses that seek to locate in Hempstead ... and is not based on, nor triggered at all by, the content or viewpoint of speech or other expressive conduct[,] the ordinances are entirely content neutral" and as such do not merit a heightened standard of review. (Town Defs.’ Mem. 43.) Plaintiffs argue that the "rule affects free speech at cabarets" and as such "it is subjected to heightened scrutiny — not the mere rational basis test." (Pls.’ Opp'n 47.) However, the test to determine whether the BZO Special Use Provision is facially invalid on overbreadth grounds is whether "it prohibits a substantial amount of protected speech." United States v. Williams , 553 U.S. 285, 292–93, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ; see also Golb v. Attorney Gen. of the State of New York , 870 F.3d 89, 102 (2d Cir. 2017) ("[A]n overbreadth challenge succeeds only if a statute ‘prohibits a substantial amount of protected speech.’ " (quoting Williams , 553 U.S. at 292, 128 S.Ct. 1830 )); Sibley v. Watches , 501 F.Supp.3d 210, 223–24, (W.D.N.Y. 2020) (quoting the "substantial amount of protected speech" test in Williams and holding that "[a]n overbreadth challenger ‘must demonstrate from the text of [the law] and from actual fact that a substantial number of instances exist in which the [l]aw cannot be applied constitutionally’ " (second and third alterations in original) (quoting United States v. Thompson , 896 F.3d 155, 163 (2d Cir. 2018) )); D.H. v. City of New York , 309 F. Supp. 3d 52, 73 (S.D.N.Y. 2018) ("[A] statute is facially invalid for overbreadth ‘if it prohibits a substantial amount of protected speech’ " (quoting Williams , 553 U.S. at 292, 128 S.Ct. 1830 )). The issue of whether an ordinance is a prior restraint subject to strict scrutiny or a content-neutral time, place, and manner restriction subject to a form of intermediate scrutiny is inapplicable to Town Defendants’ motion regarding Plaintiffs’ overbreadth claim. See Beal v. Stern , 184 F.3d 117 (2d Cir. 1999) (holding that in disputes concerning licensing and permitting regulations, to determine which scrutiny level applies, a court must determine whether the government action at issue amounts to a prior restraint on speech or if they are a content-neutral time, place and manner restriction). As discussed supra note 44, Town Defendants do not purport to challenge Plaintiffs’ as-applied challenges, including Plaintiffs’ prior restraint claim, and as a result, such law is inapplicable to this discussion.

"The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech." Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citing R.A.V. v. City of St. Paul , 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ). "To determine whether conduct is expressive and entitled to constitutional protection requires an inquiry into whether activity is ‘sufficiently imbued with the elements of communication to fall within the scope of the First ... Amendment.’ " Muchmore's Cafe, LLC , 2016 WL 11469539, at *11 (quoting Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (holding that burning flag in protest is expressive conduct protected under the First Amendment)). To determine "whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play," a court must analyze "whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ " Id. (alterations in original) (quoting Johnson , 491 U.S. at 404, 109 S.Ct. 2533 ). "[A]n activity need not necessarily embody ‘a narrow, succinctly articulable message,’ but the reviewing court must find, at the very least, an intent to convey ‘a particularized message’ along with a great likelihood that the message will be understood by those viewing it." Zalewska v. County of Sullivan , 316 F.3d 314, 319 (2d Cir. 2003) (citation omitted) (first quoting Hurley v. Irish Am. Gay, Lesbian & Bisexual Grp. of Bos. , 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ; and then quoting Johnson , 491 U.S. at 404, 109 S.Ct. 2533 ).

However, that "something is in some way communicative does not automatically afford it constitutional protection. For purposes of the First Amendment, the Supreme Court has repeatedly rejected the view that ‘an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends ... to express an idea.’ " Muchmore's Cafe, LLC , 2016 WL 11469539, at *11 (quoting Zalewska , 316 F.3d at 319 ); see also Stevens , 559 U.S. at 468, 130 S.Ct. 1577 (stating that the First Amendment "permit[s] restrictions" on some types of speech, including obscenity, defamation, fraud, incitement, and "speech integral to criminal conduct"). "Therefore, a court determining whether ‘an activity [i]s sufficiently imbued with elements of communication to fall within the scope of the First ... Amendment[ ],’ must examine the ‘nature’ of the activity ‘combined with the factual context and environment in which it was undertaken.’ " Muchmore's Cafe, LLC , 2016 WL 11469539, at *11 (alterations in original) (quoting Spence , 418 U.S. at 409–10, 94 S.Ct. 2727 ); see also Lebowitz v. City of New York , 606 F. App'x 17, 17 (2d Cir. 2015) ("We agree with the [Occupy Wall Street] plaintiffs that their act of lying down in Zuccotti Park under the circumstances presented likely demonstrated ‘[a]n intent to convey a particularized message ... [and] the likelihood was great that the message would be understood by those who viewed it,’ such that they engaged in protected expressive conduct." (second alteration in original) (quoting Johnson , 491 U.S. at 404, 109 S.Ct. 2533 )); Zalewska , 316 F.3d at 320 ("The Supreme Court has been careful to distinguish between communicative activity with a clear contextual message, such as the wearing of a black armband in protest during the Vietnam [w]ar, compared with other types of activity, like choosing what to wear in the ordinary course of employment.").

As discussed supra , the BZO Special Use Provision may implicate several forms of conduct recognized as protected under the First Amendment, including public assembly, dance performance, musical performance, and entertainment generally. See Schad , 452 U.S. at 65–66, 101 S.Ct. 2176 ("[M]otion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works [all] fall within the First Amendment guarantee." (citing Joseph Burstyn, Inc. , 343 U.S. at 495, 72 S.Ct. 777 )); Doran , 422 U.S. at 933, 95 S.Ct. 2561 (noting that some dancing is "of unquestionable artistic and socially redeeming significance" (quoting Salem Inn, Inc. v. Frank , 364 F. Supp. 478, 483 (E.D.N.Y. 1973) )); Johnson v. Perry , 859 F.3d 156, 171 (2d Cir. 2017) ("The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." (quoting De Jonge , 299 U.S. at 364, 57 S.Ct. 255 )); Willis v. Town of Marshall , 426 F.3d 251, 257 (4th Cir. 2005) ("There is no doubt that, under some circumstances, dancing will amount to expressive conduct protected by the First Amendment. For example, most forms of dance, whether ballet or striptease, when performed for the benefit of an audience, are considered expressive conduct protected by the First Amendment."); Muchmore's Cafe, LLC , 2016 WL 11469539, at *12 ("Dance performance has been recognized as conduct that is protected under the First Amendment."); Club Winks , 417 N.Y.S.2d at 181 (holding that live dance entertainment "clearly is included within the protective umbrella of the First Amendment" and a statute that "provides for prior restraint ... is subject to a strong presumption that it is constitutionally invalid").

However, the BZO Special Use Provision may also include reference to unprotected First Amendment activity. For example, courts have not conclusively addressed whether the First Amendment protects participatory dance activity. See City of Dallas v. Stanglin , 490 U.S. 19, 20–21, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (holding that city ordinance restricting admission to certain dance halls to persons between ages of fourteen and eighteen did not infringe on First Amendment right of association because dance hall patrons were not engaged in any form of intimate or expressive association); Muchmore's Cafe, LLC , 2016 WL 11469539, at *13 (noting that some courts have held that social dancing enjoys no First Amendment protection while others have focused on the issue of associational rights between minors and adults). Whether the BZO Special Use Provision substantially burdens protected speech turns on the speech implicated by the statute. Compare Festa v. N.Y.C. Dep't of Consumer Affs. , 12 Misc.3d 466, 820 N.Y.S.2d 452, 468 (Sup. Ct. 2006) (finding the New York City cabaret law constitutional when applied to "uncompensated participatory social dancing by adults" as distinguished from "any type of performance, instruction, or remuneration"), aff'd in part and modified in part , 37 A.D.3d 343, 830 N.Y.S.2d 133 (App. Div. 2007), appeal dismissed , 9 N.Y.3d 858, 840 N.Y.S.2d 757, 872 N.E.2d 870 (2007), and Kent's Lounge, Inc. v. City of New York , 104 A.D.2d 397, 478 N.Y.S.2d 928, 929 (App. Div. 1984) (finding New York City cabaret law constitutional when applied to "recreational" dancing), with Chiasson I , 505 N.Y.S.2d at 504 (striking down the New York City cabaret law's prohibition on percussion, wind, and brass instruments being used to play incidental music in unlicensed clubs), and Chiasson v. N.Y.C. Dep't of Consumer Affs. (Chiasson II) , 138 Misc.2d 394, 524 N.Y.S.2d 649, 652 (Sup. Ct. 1988) (striking down the New York City cabaret law's provision that limits the number of musicians to three).

The Court cannot make a determination as to whether the BZO Special Use Provision substantially burdens protected speech because the parties have not engaged in the required analysis to construe the statute, addressed the legislature's interest in regulating protected expressive conduct, explained the rights implicated by the BZO Special Use Provision, and assessed whether a limiting construction can avoid the constitutional issues at hand. Because the overbreadth doctrine is " ‘strong medicine’ that is to be used ‘sparingly and only as a last resort,’ " the Court cannot resolve the constitutionality of the ordinance without additional development of the record and further briefing on the issues raised in this Memorandum and Order. See Muchmore's Cafe, LLC , 2016 WL 11469539, at *8 (quoting Broadrick , 413 U.S. at 613, 93 S.Ct. 2908 ) (finding judgment on the pleadings inappropriate when the parties did not engage in the requisite analysis).

iv. Facial vagueness challenge: BZO Temporal Limit Provision

Town Defendants argue that Plaintiffs’ facial challenge to the BZO Temporal Limit Provision "fails as a matter of law under City of Lakewood " because "it is applicable to all sorts of uses." (Town Defs.’ Mem. 45.) Town Defendants assert that the ordinance "handily meets the rational basis test" because it is not uncommon for boards to limit the duration of a special use permit in order to "periodically reevaluate the impacts of a special permit use and to compare the experience generated by a particular use." (Id. (quoting Dil-Hill Realty Corp. v. Schultz , 53 A.D.2d 263, 385 N.Y.S.2d 324, 327 (App. Div. 1976) ).)

Plaintiffs challenge the validity of the BZO Temporal Limit Provision. (SAC ¶¶ 487–489.) Plaintiffs argue that there is no basis to dismiss their facial challenge because the current ordinance "deprives the Plaintiffs and public of notice of how long a permit may last." (Pls.’ Opp'n 49.) Plaintiffs assert that such notice is important because of the expenses associated with opening a cabaret, which can "impose[ ] a considerable burden on business owners’ right to be secure in their ability to use their property and to continue to operate a business in which they have made a considerable investment." (Id. ) Plaintiffs also assert that their ability to provide constitutionally protected expression to the public has been hindered by this provision. (Id. )

"A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Muchmore's Cafe, LLC , 2016 WL 11469539, at *17 (quoting Farrell v. Burke , 449 F.3d 470, 485 (2d Cir. 2006) ). "As with a facial challenge for overbreadth, ‘[w]hen considering a facial challenge to the ... vagueness of a statute as measured against the First Amendment, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.’ " Id. (quoting Dorman v. Satti , 862 F.2d 432, 436 (2d Cir. 1988) ); see also Farrell , 449 F.3d at 496.

The BZO Temporal Limit Provision was amended on or about December 9, 2014, to provide, in part, that:

The [Board] shall, in authorizing such permissive uses, impose such conditions and safeguards as it may deem appropriate, necessary or desirable to preserve and protect the spirit and objectives of this ordinance. Where the [Board] deems it appropriate under all of the circumstances of a case, it may impose a condition of a grant which shall make the grant temporary in nature, for a duration of time to be fixed by the Board, subject to renewals as the Board may deem appropriate. Any renewals shall be granted only if the Board shall find that the grant has not had an unreasonably deleterious effect on surrounding area character and property values, and/or the use and enjoyment of neighboring properties, during the temporary period, or the most recent temporary renewal period. The Board shall have authority to make any temporary grant permanent, upon the expiration of a temporary period.

BZO § 267(D)(3).

As with the facial challenge to the BZO Special Use Provision, the parties do not meaningfully attempt to construe the relevant ordinance, which is an essential first step in resolving Plaintiffs’ facial challenge. See Dorman , 862 F.2d at 436 ("When considering a facial challenge to the overbreadth and vagueness of a statute as measured against the [F]irst [A]mendment, ‘a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.’ " (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) )); Farrell , 449 F.3d at 496 ("Facial vagueness challenges may go forward only if the challenged regulation ‘reaches a substantial amount of constitutionally protected conduct.’ " (quoting Kolender v. Lawson , 461 U.S. 352, 358 n.8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) )); Helms Realty Corp. v. City of New York , 320 F. Supp. 3d 526, 533 (S.D.N.Y. 2018) (finding that "[w]hether [the plaintiff] can mount a facial challenge to [the challenged law] depends ... on whether it reaches constitutionally protected speech, which in turn requires a [c]ourt to examine the (ambiguous and unambiguous) scope of the statute").

Town Defendants argue in a conclusory manner that the BZO Temporal Limit Provision is applicable to "all sorts of uses" without addressing why the Court should not construe the ordinance to implicate constitutionally protected conduct given the ordinance's applicability to cabarets. (Town Defs.’ Mem. 45.) While Plaintiffs allege that their ability to provide constitutionally protected expression to the public has been hindered by this provision, (see Pls.’ Opp'n 49), they do not specify which forms of expression are impacted by this provision and whether the provision should be analyzed in concert with the definition of cabaret. As discussed in the context of Plaintiffs’ overbreadth challenge, although the Court finds that the BZO Temporal Limit Provision may implicate protected expression when analyzed in conjunction with the definition of cabaret, a more thorough analysis "of the language and legislative history of the statute are necessary in order to determine whether the [challenged law] reaches constitutionally protected conduct." Muchmore's Cafe, LLC , 2016 WL 11469539, at *17. Accordingly, the Court denies Town Defendants’ motion for judgment on the pleadings as the Court cannot resolve the issue of the BZO Temporal Limit Provision's constitutionality at this stage of the litigation.

k. Municipal liability

Although Plaintiffs do not specifically assert Monell liability claims in the SAC, Town Defendants move to dismiss Plaintiffs’ municipal liability claims, arguing that "a suit against a town official in his or her official capacity is essentially a suit against the Town." (Town Defs.’ Mem. 47.) Town Defendants argue that there is "no municipal policy other than to apply the law and discretion to the facts of zoning applications." (Id. ) Town Defendants also assert that the Town is "not responsible for the actions of [the Board] because a town and a zoning board of appeals are independent of each other." (Id. at 47–48.) Because the Board is "acting in its ‘administrative capacity independent from the Town Board,’ " Town Defendants argue that "[t]here can be no Monel [sic] liability." (Id. at 48 (quoting Matter of Commco, Inc. v. Amelkin , 62 N.Y.2d 260, 266, 476 N.Y.S.2d 775, 465 N.E.2d 314 (1984) ).)

Plaintiffs argue that the SAC "fully satisfies the test to impose municipal liability for civil rights violations" under Monell because the SAC "develops that actions were taken and decisions were made by government officials responsible for establishing municipal policies that caused the violations of ... Plaintiffs’ civil rights." (Pls.’ Opp'n 37 (citing Pembaur v. City of Cincinnati , 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ).) In support, Plaintiffs point to the allegations in the SAC that Supervisor Murray is the "Chief Executive Officer of the Town and oversees all the operations within the Town, including establishing municipal policies" and that Murray "wrote to community residents on Town of Hempstead letterhead" that the Town requested that the Board reopen the case associated with Plaintiffs’ special use permit in 2011. (Id. at 37 (citation omitted).) Plaintiffs also argue that the SAC "further establishes that the Town and other Defendants have repeatedly taken steps to suppress the exhibition of dancing and other entertainment protected by the federal and state constitutions, by engaging in a pattern of harassment of the Plaintiffs." (Id. at 38.)

In support, Plaintiffs allege that Town Defendants conspired "to prevent ... Plaintiffs from ever opening the Wantagh [Property's cabaret]," "to prevent ... Plaintiffs from mitigating their damages by opening a restaurant at the Wantagh [P]roperty," and to "suppress the exhibition of entertainment at the Wantagh [P]roperty." (Id. ) Plaintiffs also assert that the SAC "establishes enough interrelatedness between the Town and its Board" because the attorney who represents the Town has been involved with Plaintiffs’ Wantagh Property special use permit on multiple instances, including "facilitat[ing] the [2011] rehearing," directing the Department of Buildings "not to sign off" on the Plaintiffs’ construction application, "direct[ing] the Supervisor of Plan Examiners to cross out ‘APPROVED’ on the Plaintiffs’ restaurant file in 2012," and drafting the Board's 2011 Findings explaining the revocation of the Wantagh Property's special use permit. (Id. at 38–39.)

To establish a municipal liability claim, "a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Lucente v. County of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (quoting Wray v. City of New York , 490 F.3d 189, 195 (2d Cir. 2007) ); see also Frost v. N.Y.C. Police Dep't, 980 F.3d 231, 257 (2d Cir. 2020) ("To establish liability under Monell , a plaintiff must show that he suffered the denial of a constitutional right that was caused by an official municipal policy or custom." (quoting Bellamy v. City of New York , 914 F.3d 727, 756 (2d Cir. 2019) )). A plaintiff can establish an official policy or custom by showing any of the following: (1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials with decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom of which policymakers must have been aware; or (4) a failure by policymakers to properly train or supervise their subordinates, such that the policymakers exercised "deliberate indifference" to the rights of the plaintiff and others encountering those subordinates. See Iacovangelo v. Corr. Med. Care, Inc. , 624 F. App'x 10, 13–14 (2d Cir. 2015) (formal policy officially endorsed by the municipality); Matusick v. Erie Cnty. Water Auth. , 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Carter v. Inc. Village of Ocean Beach , 759 F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to deliberate indifference); Jones v. Town of East Haven , 691 F.3d 72, 81 (2d Cir. 2012) (policymaking official's "express" or "tacit" ratification of low-level employee's actions); see also Hansen v. Watkins Glen Cent. Sch. Dist. , 832 Fed.Appx. 709, 715 (2d Cir. 2020) (affirming district court's finding that the defendant's "restricted access to school property on only four other occasions in the more than ten years he served as a [s]uperintendent" did not amount to a custom or policy). "Deliberate indifference is not demonstrated on every occasion that a plaintiff has reported potential rights violations to a policymaker ...." O'Kane v. Plainedge Union Free Sch. Dist. , 827 F. App'x 141, 143 (2d Cir. 2020).

"[U]nder Monell municipal liability for constitutional injuries may be found to exist even in the absence of individual liability, at least so long as the injuries complained of are not solely attributable to the actions of named individual defendants." Barrett v. Orange Cnty. Hum. Rights Comm'n , 194 F.3d 341, 350 (2d Cir. 1999) ; see also Rutigliano v. City of New York , 326 F. App'x 5, 9 (2d Cir. 2009) (affirming that a " ‘municipality may be found liable under [ section] 1983 even in the absence of individual liability’ ... only in very special circumstances" (quoting Barrett , 194 F.3d at 350 )); Haslinger v. Westchester County , No. 18-CV-5619, 2020 WL 2061540, at *8 (S.D.N.Y. Apr. 29, 2020) (dismissing claim against individual defendants but denying dismissal against county because the plaintiff "plausibly alleged all three prongs of a Monell municipal liability claim"); Cartelli v. County of Suffolk , No. 15-CV-6890, 2019 WL 6875376, at *9 (E.D.N.Y. Dec. 17, 2019) ("Courts may find Monell liability for constitutional injuries even in the absence of individual liability." (quoting Barrett , 194 F.3d at 350 )). "[E]ven in situations where the acts or omissions of individual employees do not violate an individual's constitutional rights, ‘the combined acts or omissions of several employees acting under a governmental policy or custom may violate’ those rights." Barrett , 194 F.3d at 350 (first quoting Anderson v. City of Atlanta , 778 F.2d 678, 686 (11th Cir. 1985) ; and then quoting Garcia v. Salt Lake County , 768 F.2d 303, 310 (10th Cir. 1985) ); see also Rutigliano , 326 F. App'x at 9 ("The rule [the Second Circuit] articulated in Barrett applies where ‘the combined acts or omissions of several employees acting under a governmental policy or custom may violate [constitutional] rights.’ " (quoting Barrett , 194 F.3d at 350 )). In addition, where "the individual defendants violated plaintiff's rights but nonetheless enjoy qualified immunity," a plaintiff can pursue a Monell claim. Bonilla v. Jaronczyk , 354 F. App'x 579, 582 (2d Cir. 2009) (citing Curley v. Village of Suffern , 268 F.3d 65, 71 (2d Cir. 2001) ); cf. Curley , 268 F.3d at 71 (affirming the district court's grant of summary judgment as to the plaintiff's Monell claim where the municipality was "implicated in plaintiff's amended complaint only by way of the individual defendants’ conduct" and the plaintiff alleged that the "policies and/or customs of [the municipality] were the moving force behind the actions of the individual [d]efendant police officers, resulting in the injuries to the [p]laintiff").

Although a finding of municipal liability is not contingent on a finding that the individual defendants are liable, the Second Circuit has held that when a plaintiff sues both municipal actors and the municipality "that promulgated the offensive policy, the plaintiff's failure to secure a judgment against the individual actors would ... preclude a judgment against the municipality if the ruling in favor of the individual defendants resulted from the plaintiff's failure to show that they committed the alleged [violation]." Askins v. Doe No. 1 , 727 F.3d 248, 253–54 (2d Cir. 2013) ; see also Demosthene v. City of New York , 831 Fed.Appx. 530, 534 n.3 (2d Cir. Oct. 9, 2020) ("[I]n light of the absence of an underlying constitutional violation, the district court correctly dismissed the claim against the [c]ity pursuant to Monell. "); Morales v. City of New York , 752 F.3d 234, 238 (2d Cir. 2014) ("[H]aving properly dismissed [the plaintiff's] underlying constitutional claims against the individual ... defendants, the [d]istrict [c]ourt also properly dismissed his claim against the [c]ity ... for municipal liability under Monell. ").

Plaintiffs have failed to state a claim as to their substantive due process, procedural due process, equal protection, and conspiracy claims under the Federal Constitution against the individual defendants concerning the Wantagh Property. Plaintiffs’ arguments for a finding of municipal liability hinge on establishing that an official policy or custom that deprived Plaintiffs’ of their constitutional rights existed because there were "actions or decisions made by municipal officials with decision-making authority." Iacovangelo , 624 F. App'x at 13–14. However, because Plaintiffs failed to establish a violation of their constitutional rights by these alleged municipal officials with decision-making authority, Plaintiffs’ Monell claims must likewise be dismissed. See Bennett v. Dutchess County , 832 Fed.Appx. 58, 61 (2d Cir. 2020) ("And without an underlying constitutional violation, [the plaintiff's] Monell claim ... likewise fails."); Hirsch v. New York , 751 F. App'x 111, 116 (2d Cir. 2018) ("Because the district court properly found no underlying constitutional violation, its decision to not address the municipal defendants’ liability under Monell was entirely correct." (citing Segal v. City of New York , 459 F.3d 207, 219 (2d Cir. 2006) )); Tortora v. City of New York , No. 15-CV-3717, 2019 WL 9100369, at *24 n.26 (E.D.N.Y. Mar. 30, 2019) ("[B]ecause none of [the plaintiff's] underlying constitutional claims survive, the Court dismisses [the plaintiff's] Monell claims."), aff'd , 804 F. App'x 35 (2d Cir. 2020).

The remaining claims before the Court are Plaintiffs’ First Amendment facial challenges. The Second Circuit has held that the policy requirement for Monell is satisfied if a challenged statute is found unconstitutional. See Amnesty Am. v. Town of West Hartford , 361 F.3d 113, 125 (2d Cir. 2004) ("Monell established that alleging that a municipal policy or ordinance is itself unconstitutional is always sufficient to establish the necessary causal connection between the municipality and the constitutional deprivation, because an employee's act of enforcing an unconstitutional municipal policy may be considered the act of the municipality itself."); Gem Fin. Serv., Inc. v. City of New York , 298 F. Supp. 3d 464, 492 n.25 (E.D.N.Y. 2018) (citing Amnesty Am. , 361 F.3d at 125 ). However, as discussed supra , the Court declines to reach the issue of the challenged ordinances’ constitutionality at this stage of the litigation. Accordingly, the Court declines to address the Town's municipal liability with respect to Plaintiffs’ First Amendment challenges.

III. Conclusion

For the foregoing reasons, the Court dismisses Plaintiffs’ claims based on the 2010 Application for the Wantagh Property, claims based on the Bellmore Property, and claims based on the facial challenge to section 302(Q) of the BZO for lack of ripeness and standing. The Court denies Town Defendants’ motion to dismiss for lack of subject matter jurisdiction as to Plaintiffs’ claims based on the applications submitted on June 24, 2016, but dismisses Plaintiffs’ claims against Town Defendants for failure to state a claim under the Federal Constitution for substantive and procedural due process, equal protection, conspiracy, and Monell municipal liability violations. The Court grants Rhoads’ motion to dismiss and dismisses all claims against him. The Court denies Defendants’ motions with respect to Plaintiffs’ facial First Amendment challenges to the BZO Special Use Provision and the BZO Temporal Limit Provision.

SO ORDERED.