Full Opinion

26-638 Yeshiva Ohr Shraga Veretzky v. Town of Highland Zoning Board of Appeals UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of November, two thousand twenty-six. Present: SUSAN L. CARNEY, MICHAEL H. PARK, EUNICE C. LEE, Circuit Judges. ________________________________________ YESHIVA OHR SHRAGA VERETZKY, Plaintiff-Appellant, 26-638 v. TOWN OF HIGHLAND ZONING BOARD OF APPEALS, TOWN OF HIGHLAND, Defendants-Appellees. * ________________________________________ FOR PLAINTIFF-APPELLANT: STEVEN BARSHOV, SBarshov Law PLLC, Haverstraw, NY. FOR DEFENDANTS-APPELLEES: LEO DORFMAN, Sokoloff Stern LLP, Carle Place, NY. * The Clerk of Court is respectfully directed to amend the caption accordingly. 1 Appeal from a judgment of the United States District Court for the Southern District of New York (Seibel, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Yeshiva Ohr Shraga Veretzky is a New York religious corporation that provides Hasidic Orthodox Jewish religious education. The Yeshiva acquired property in Barryville, New York, within an R-2 Residential Agricultural zoning district, where “places of worship” are permitted by special use permit. The Yeshiva applied to the Town of Highland Planning Board for a special use permit to use the property for religious educational programming in the summer and for religious retreats during the rest of the year. The Planning Board referred to the Town of Highland Zoning Board of Appeals (“ZBA”) the question whether the proposed use qualified as a “place of worship” under the zoning code. The ZBA concluded in a written interpretation that the proposed use constituted a prohibited “children’s camp” rather than a permitted “place of worship.” Without first seeking a use variance from the ZBA, the Yeshiva brought this action, asserting claims under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Free Exercise and Equal Protection Clauses of the U.S. Constitution, and various provisions of the New York State Constitution. The Southern District of New York granted Defendants’ motion to dismiss on ripeness grounds because the Yeshiva had not sought a variance. See Yeshiva Ohr Shraga Veretzky v. Town of Highland Zoning Bd. of Appeals, No. 24-cv-8477, 2026 WL 621872, at *10–11 (S.D.N.Y. Mar. 5, 2026). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 2 “We review de novo the district court’s dismissal of a claim . . . as unripe.” BMG Monroe I, LLC v. Vill. of Monroe, 93 F.4th 595, 600 (2d Cir. 2024). “To be justiciable, a cause of action must be ripe—it must present a real, substantial controversy, not a mere hypothetical question.” Vill. Green at Sayville, LLC v. Town of Islip, 43 F.4th 287, 293 (2d Cir. 2022) (citation omitted). “Ripeness is a doctrine rooted in both Article III’s case or controversy requirement and prudential limitations on the exercise of judicial authority.” Id. (citation omitted). “At its heart is whether we would benefit from deferring initial review until the claims we are called on to consider have arisen in a more concrete and final form.” Id. (citation omitted). The Yeshiva’s claims are unripe because it has not pursued the variance process and it has made no argument under Circuit law that it was excused from doing so. In the land-use context, the Supreme Court has held that a takings 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.” Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). This Court has extended the final-decision requirement to other types of zoning challenges. See, e.g., BMG Monroe I, 93 F.4th 595 (Equal Protection Clause); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 352 (2d Cir. 2005) (Free Exercise Clause and RLUIPA). “[I]n order to satisfy the finality requirement under our ripeness doctrine, a [plaintiff] bringing a federal claim against a municipality . . . must . . . submit at least one meaningful application for a variance.” BMG Monroe I, 93 F.4th at 598 (emphasis added) (cleaned up). 1 But “a property owner is excused from obtaining a final decision if . . . seeking a 1 See also Vill. Green, 43 F.4th at 296 (same); Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 124 (2d Cir. 2014) (same); Murphy, 402 F.3d at 348 (same); Williamson Cnty., 473 U.S. at 200 (“No [final] decision had been made . . . because respondent failed to apply for variances from the regulations.”). 3 variance would be futile.” Id. at 601 (cleaned up). And “a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face,” Vill. Green, 43 F.4th at 294, or when it “can show that [it] suffered some injury independent of the challenged land-use decision,” Sunrise Detox v. City of White Plains, 769 F.3d 118, 123 (2d Cir. 2014) (citation omitted). The Yeshiva concedes that it has not sought a variance, even though the ZBA has the authority to grant one. It disclaims any futility argument, asserting that “[t]his is not a futility case,” Appellant’s Br. at 25, and concedes that it has alleged no harm independent of the interpretation it challenges, see id. 2 It also does not advance a facial-discrimination theory on appeal. See State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir. 2004) (“When a party fails adequately to present arguments in an appellant’s brief, we consider those arguments abandoned.”). The Yeshiva has therefore disclaimed, forfeited, or abandoned any argument that the one-meaningful-application requirement does not apply to it. Accordingly, the Yeshiva’s federal claims are not ripe under our settled law. 3 The Yeshiva responds that its claims are ripe because the ZBA’s interpretation of the zoning code cannot be altered by the Planning Board. It relies heavily on a New York state decision directly overturning a different zoning board’s interpretation of “place of worship,” under The Yeshiva does argue that requiring it to seek a variance would force it to abandon its property 2 and constitutional rights, but those injuries are not independent of the decision it challenges. And, in any event, the Yeshiva may be able to challenge that decision later, once it has availed itself of the variance process. 3 We need not decide whether the Yeshiva’s claim under the New York State Constitution is ripe because we decline to exercise supplemental jurisdiction over that claim. This is “‘the usual case in which all federal-law claims are eliminated before trial’ such that ‘the balance of factors to be considered . . . point toward declining to exercise jurisdiction over the remaining state-law claim[].’” Kolari v. N.Y.- Presbyterian Hosp., 455 F.3d 118, 119 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)); see also 28 U.S.C. § 1367(c)(3). 4 a different zoning code. See Yeshiva Talmud Torah Ohr Moshe v. Zoning Bd. of Appeals of Wawarsing, 170 A.D.3d 1488 (3d Dep’t 2019). But the finality of the ZBA’s interpretation is not the finality required for the Yeshiva’s federal claims here. In arguing otherwise, the Yeshiva does not cite a single Second Circuit case in its principal brief. It instead relies on three decisions from the District of New Jersey. 4 Those decisions do not control here and in any event did not consider our “one meaningful application” requirement. The district court did not err in dismissing the Yeshiva’s claims as unripe. * * * We have considered the Yeshiva’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 4 See Congregation Kollel, Inc. v. Twp. of Howell, No. 16-2457, 2017 WL 637689 (D.N.J. Feb. 16, 2017); Bais Brucha Inc. v. Twp. of Toms River, No. 21-3239, 2024 WL 863698 (D.N.J. Feb. 29, 2024); Khal Anshei Tallymawr, Inc. v. Twp. of Toms River, No. 21-2716, 2021 WL 5757404 (D.N.J. Dec. 3, 2021). 5