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December 4, 1992

VILLAGE OF WATERFORD, NEW YORK, FRANCIS FALCONE, Mayor, ANNE MORRISSEY, Trustee, MERLE DOUD, Trustee, and TERRY COLONEY, Trustee, as the Village Board of the Village of Waterford, and KENNETH H. SMITH, MARY ANN KELTS, WILLIAM COFFEY, and MARGE ARTT, as the Zoning Board of Appeals of the Village of Waterford, Defendants.

The opinion of the court was delivered by: RALPH W. SMITH, JR.

RALPH W. SMITH, JR., United States Magistrate Judge


 Plaintiffs bring this action pursuant to 42 U.S.C. §§ 1983 and 3601 et seq. *fn1" They seek declaratory, injunctive, and monetary relief to redress alleged arbitrary and unlawful discrimination by defendants on the basis of handicap as defendants have refused to allow plaintiff Support Ministries for Persons With AIDS, Inc. (hereinafter "Support Ministries"), to open a residence for homeless persons with AIDS (hereinafter "PWAs") *fn2" and thus have allegedly violated the rights of handicapped persons under the Federal Fair Housing Act (hereinafter "FHA"), 42 U.S.C. § 3601 et. seq., and the Fourteenth Amendment.

 This matter was referred to the undersigned on June 23, 1992, by the Honorable Frederick J. Scullin, Jr., United States District Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c) and upon consent of the parties.

 This court previously found that the state plaintiffs have standing to sue due to the State's proprietary interest in reducing or maintaining the costs of providing care to PWAs and its quasi-sovereign interest in protecting the health and welfare of its citizens. Support Ministries for Persons With Aids, Inc. v. Village of Waterford, 799 F. Supp. 272 (N.D.N.Y. 1992).

 A bench trial was held before this court on October 26 through 29, 1992. After very careful consideration of the trial transcript, the evidence produced at trial, the pre- and post-trial submissions of the parties, and the amicus curiae briefs submitted by the New York Civil Liberties Union and the United States, this court makes the following findings of fact and conclusions of law.


 Support Ministries is a New York non-profit corporation with a Board of Directors comprised of representatives from numerous religious denominations throughout the Capital District region and concerned individuals in the community. This plaintiff currently operates a residence for homeless PWAs in the City of Albany and has submitted an application to the Department of Social Services (hereinafter "DSS") for an operating certificate to establish and operate an adult care facility for homeless PWAs at 31 Sixth Street, Waterford, New York (hereinafter the "Sixth Street house").

 According to a Program Document issued by Support Ministries, their mission

 The Sixth Street house would not be a medical facility, and Support Ministries would not be providing medical care to the residents.

 In late spring or early summer 1990, after an extensive search, Support Ministries located the Sixth Street house, which was constructed in 1880 as a residence for Roman Catholic priests and was later occupied commencing in 1953 by the Sisters of Mercy. Around 1960 an addition was put onto the building which created a total of fifteen bedrooms. The property was purchased in 1984 by the Holy Cross Fathers and was utilized not as a convent but as a novitiate for the training of incoming novices. From that time until 1990 as many as fifteen people were housed in the building at a given time.

 The Sixth Street house is virtually perfectly suited for Support Ministries' purpose to operate an adult home for as many as fifteen PWAs. The building contains fifteen separate bedrooms and several community living areas. In addition, it is located near the geographic center of the Capital District. Limited alterations would be necessary, such as the addition of an elevator, a ramp, and a couple of bathrooms.

 Support Ministries entered into negotiations with the Holy Cross Novitiate, Inc., in July 1990 to purchase the property. Support Ministries did not hide its intentions with respect to that property from the community. Rather, in the fall of 1990 Support Ministries commendably contacted Village Mayor Francis Falcone and other members of the community and began holding a series of informational meetings.

 On September 25, 1990, at the request of church and community leaders, Support Ministries held a public informational meeting at the United Church in Waterford to explain its proposed use of the building. Mayor Falcone attended along with several residents who expressed strong "moral opposition" to PWAs and the establishment of a residence in the village for PWAs. Support Ministries' Executive Director Nancie Northrup Williams testified that these residents had very bad information about the project and "spent a great deal of time talking about the fact that HIV and AIDS was an illness that people brought on themselves and it was a punishment from God and we had no obligation to respond compassionately to these people."

 At the request of Mayor Falcone, Support Ministries held another public informational meeting at the Waterford Rescue Squad building on September 26, 1990 (hereinafter "the rescue squad meeting"). This meeting was attended by the members of the Waterford Board of Trustees (hereinafter "the board"), several members of the Zoning Board of Appeals (hereinafter the "ZBA"), most of the members of the Support Ministries Board of Directors, and between 200 and 250 other people. Support Ministries asked Dr. Stephen Szebenyi, the Medical Director of the AIDS Treatment Center at Albany Medical Center, to make a presentation. Likewise, they asked Margaret Irwin, Executive Director of Joseph House, a homeless shelter, to talk about homelessness and the impact of AIDS on homelessness in the communities. Finally, Support Ministries asked a member of the League of Women Voters to act as the facilitator of the meeting.

 At the rescue squad meeting numerous citizens strongly expressed their opposition to the opening of a facility for PWAs in Waterford. Their objections included the fact that the property is located close to a school and a playground as well as fear of AIDS and drugs. Opposition was so strong that the audience grew extremely hostile, so much so that the "heckled" League of Women Voters moderator left, and Mayor Falcone took over the meeting. (At a subsequent board meeting Falcone expressed his pleasure that the woman from the League did not last too long.). At one point, even before there was a complete presentation of the proposed project, he asked everyone who opposed the project to stand. About eighty-five percent of the audience did so.

 At approximately the same time as the informational meetings were being held, some village residents began circulating a petition that was captioned: "We, the undersigned residents of Waterford, hereby petition the village zoning board to DENY the varience [sic] requested by the Support Ministries For Persons With Aids, Inc. to change the zoning at 31 Sixth Street. The purpose requested is to accomodate [sic] a shelter for the homless [sic] people infected with aids." (hereinafter "the Petition"). Over 400 village residents signed the Petition, which represented more than half of the village voters in 1991. Among the signatories were Millie Van Buskirk and George Bush. Although neither was a village official at the time the Petition was signed, George Bush was later appointed on November 14, 1990, as Zoning Commissioner, upon nomination by Falcone, and Millie Van Buskirk was appointed to the ZBA, also at the suggestion of Falcone, in September 1991. Several pages of the Petition stated that they should be returned to Ben Kelts, who is the husband of defendant ZBA member Mary Ann Kelts. Family members of other board members also signed the Petition.

 On October 10, 1990, the board, which consisted of Mayor Falcone and Trustees Terry Stoliker, Merle Doud, Timothy Breen, and Ernie Bariteau, Jr., conducted its regularly scheduled monthly meeting. During the course of the meeting village residents presented the Petition to the board. Mayor Falcone indicated that he would turn it over to the ZBA.

 Also during this meeting one of the village residents asked what stand the board was taking with respect to Support Ministries' proposal to open a home for PWAs. All of the board members indicated that they opposed the opening of such a facility in Waterford. One board member, Terry Stoliker, asked how many signatures were on the Petition. After being told by Falcone that 430 names had been collected in one week, Stoliker stated, "It seems to me that with over 400 people voicing their opinion against this, we were elected to represent them, I think that's pretty much an indication of how they feel and knowing that, then I'm not in favor of this AIDS building coming to Waterford." (emphasis added). Another board member, Merle Doud, stated,

 I don't like the idea of an AIDS building in our community. On the other hand, we do have a moral obligation in some sense to people who are homeless and why this building was picked, it would be nice if it wasn't in our community. We wouldn't have to worry about it. I do feel that with a petition of 400 people with names on it, that you would have to take that into consideration. . . . There is definitely a need for this type of thing, but whether it should be in our community or not, the building becomes available with IS small rooms, with a dining room and living room in the building which apparently is the sort of thing that they are looking for. It's a tough question morally, if you think about it. Again, as I said, you've got 400 signatures of our electorate, that does make a difference.

 (emphasis added). Mayor Falcone also voiced his opposition, stating, "My personal feelings [sic] is I do not want it in the Village of Waterford. That's all I'm going to say."

 A discussion of how the zoning laws could be changed to prevent Support Ministries from using the Sixth Street house also took place during the meeting. One member of the audience suggested a density law directed solely at the Sixth Street house. Another resident stated, "Why don't you just work on the grouper law and just put another block that [they'll] have to move. This will be another lag, you know, force enough time, maybe they'll just give up. . . . another stop gap." Another member of the audience told the board, "So, some activity should take place now if you're looking at preventing it based on what [the] population in this community wants right now. You still have to make the decision." Mayor Falcone responded, "When we get finished with this meeting, the Board, myself and Mr. Varley will sit down and we will see what our options are." Someone from the audience later asked, "How can the citizens persuade you to initiate this process?" Mayor Falcone answered, "I really don't feel that you're going to have to persuade."

 At this same meeting the board convened an executive session. Although the board did not declare its purpose for this session as required by the Open Meetings Law, N.Y. Public Officers Law § 105(1) (McKinney 1988), it is clear that it was to devise a change to the village's zoning laws that would prevent Support Ministries from opening a residence for PWAs in Waterford. During this executive session, the Village Attorney acknowledged that if Support Ministries applied for a special use permit to use the property as a rooming and boarding house, "you pretty much have to give it to them." As a result, the board discussed amending the definition of "boarding and rooming houses" in the village's zoning ordinance. In considering possible amendments to the zoning law, the Village Attorney stated:

 . . . You might get away with say, coming up with some definition which would seem to apply to this, to make sure it would apply to this particular use. You could argue that you already exclude nursing and convalescent homes. If you wanted to beef up that definition to a slightly different definition . . . because it already excludes nursing and convalescent homes in a residential district. That would involve doing something with the definition of boarding house to make sure that includes people suffering from or recuperating from illnesses that require medical attention to make sure that when it comes to deciding what types of facility this is, it's something that doesn't fall into the boarding house.

 (emphasis added). As a result of this session, Local Law No. 2 of 1990 was drafted.

 On November 14, 1990, before Support Ministries completed its purchase of the property, the board had its next meeting at which Mayor Falcone introduced Local Law No. 2 of 1990, which amended the definition of the term "boarding house" contained in the village's zoning ordinance to read as follows:

 BOARDING HOUSE AND ROOMING HOUSE: A private dwelling in which at least four but not more than six sleeping rooms are offered for rent and board may be furnished to roomers, and in which no transients are accommodated. A boarding or rooming house shall not include a nursing home, convalescent home, hospice, or other building which is primarily intended to provide accommodation for persons suffering from or recovering from or recuperating from any illness or disease or whose occupants regularly receive any medical or nursing care or treatment.

 (Local Law No. 2 of 1990).

 Since September 7, 1965, rooming and boarding houses had been listed as special permitted uses in residence districts. The term "boarding house" was defined as "a private dwelling in which at least four but not more than ten sleeping rooms are offered for rent and table board may be furnished to roomers, and in which no transients are accommodated." Prior to the announcement of Support Ministries' intention to open an adult home for PWAs, no citizen of Waterford had ever expressed a need to amend this definition, including the number of rooms that may be furnished.

 On November 28, 1990, over 200 village residents attended a public hearing to consider the adoption of Local Law No. 2 of 1990. Most of them expressed opposition to the Support Ministries' facility, and many expressed their fears about AIDS. As board member Doud stated at his deposition, they were against the building being used as an AIDS house. At the conclusion of the meeting, the board unanimously adopted Local Law No. 2 of 1990.

 Nancie Northrup Williams was not invited to attend the board meetings on October 10, November 14, or November 28, nor was she apprised by any village official that Support Ministries would be discussed at those meetings.

 Prior to its purchase of the Sixth Street house, Support Ministries applied to the New York State Homeless Housing and Assistance Corporation, which is administered by DSS, for funding assistance for the Waterford project. DSS made a conditional reservation of funds under the Homeless Housing and Assistance Program to establish the proposed facility and notified Support Ministries on January 7, 1991, of the conditional award of $ 530,000 to be used toward the cost of acquisition and rehabilitation. Support Ministries, however, could not access this money because in the wake of Local Law No. 2 of 1990, the issue of zoning approval remained unresolved. As a result, when they purchased the Sixth Street house on May 29, 1991, for $ 165,000, they were required to finance the purchase with mortgage loans and other unsecured loans, which must be repaid and are currently bearing interest. Up to the time of trial they incurred interest costs in the amount of $ 16,473.24, and they continue to incur monthly interest costs of approximately $ 900.

 In April 1991 the New York State Office of Parks, Recreation and Historic Preservation determined that the project would have no adverse impact upon 31 Sixth Street. On November 6, 1991, the New York State Homeless Housing Assistance Corporation determined that the proposed use of the facility would have no significant adverse environmental impact.

 In early October 1991, Steve Brown, the village Building Inspector, refused Support Ministries' request for a certificate of occupancy (hereinafter "CO"), stating that zoning approvals would be needed before the building could be occupied.

 As a result of the passage of Local Law No. 2 of 1990, and due to the relationship between the village and Support Ministries, Support Ministries retained counsel to work with the ZBA. Nancie Northrup Williams had previously done a number of zoning applications and felt qualified to handle the process in this case had Support Ministries not encountered problems with the village.

 On October 31, 1991, Support Ministries applied to the ZBA seeking two alternative forms of administrative relief. First, they sought a determination that the proposed use constituted a continuation of a pre-existing non-conforming use. Second, they sought a special use permit for a boarding house as defined prior to its recent amendment. Significantly, Support Ministries "respectfully submitted that Local Law No. 2 of 1990, which purport's to limit the longstanding definition of a 'Boarding House,' is violative of the Fair Housing Act and therefore is null and void as it applies to this project." In connection with this second application, Support Ministries sought a variance from thin former definition of boarding house and rooming house to permit the use of the premises for the housing of up to fifteen unrelated persons. They also sought a variance from the requirement of one parking space for each facility resident, asking that they be allowed to operate with just four parking spaces because it is anticipated that few, if any, of the project residents will have cars and a need for parking. It was also noted that the Novitiate operated with only one parking space.

 The ZBA referred the matter to the Saratoga County Planning Board, which on December 19, 1991, voted to return the matter for local consideration, finding that there would be no adverse county-wide impact.

 Evidence was also introduced concerning the staffing of the facility and the manner in which it would operate. Among other things, Support Ministries disclosed that upon zoning approval, it would be seeking to operate the facility as an adult care facility subject to DSS regulations. Testimony also disclosed that Support Ministries would not provide medical care or operate the house as a medical facility and that very few residents, if any, would have cars.

 During the course of the hearings, two members of the board, Terry Stoliker and Ernie Bariteau, appeared before the ZBA seeking to persuade them to deny the application. In addition, Mayor Falcone presented the Petition to the ZBA. In the five years the current ZBA Chairman has been on the ZBA, a board member had never addressed the ZBA on a specific matter.

 In March 1992, while Support Ministries' application was pending before the ZBA, Mayor Falcone proposed holding a referendum in which the village residents would be asked whether they favored or opposed the establishment of an adult care facility for PWAs at the Sixth Street house. In his 27 years as a Waterford resident, there had never been a referendum on zoning board matters such as the one he proposed.

 On March 26, 1992, the ZBA met and unanimously denied Support Ministries' application in its entirety. Ken Smith, ZBA Chairman, based his vote on the requirements of Local Law No. 2 of 1990, on the status of the intended residents of the project as former users of drugs or alcohol, and on the community opposition to the project, including the Petition. William Coffey based his negative vote on the requirements of Local Law No. 2 of 1990 and the fact that the majority of the Waterford residents were opposed to the project, which he understood to be based on the fact that it was to be used as a home for PWAs. Mary Ann Kelts based her opposition vote on the requirements of Local Law No. 2 of 1990, which do not permit the proposed project to qualify as a boarding house.

 Prior to taking the vote, Kelts read a letter from defendant Marge Artt, a ZBA member who was not present that evening and therefore did not cast a vote. As read at the hearing, Artt stated in her letter:

 As a member of the [ZBA] I feel that along with the other members we have been put in a very difficult position. Our 'job' was to consider a variance for the building located at 31 Sixth Street, also a variance on the parking. That building is now known as the AIDS House and it appears that our vote or my vote is to be contingent on the AIDS issue.

 In my opinion the variances on the property have become secondary to what the Support Ministries for Persons with AIDS, Inc. want to use the building. Perhaps because of ignorance (of which the people of the Village have been accused) they, the Villagers, are divided in their opinions.

 I feel that I can look at this objectively, but too many people are involved that don't have the Village at heart. Persons with a contagious disease are being placed in the middle of a residential area. I know they are not going to try to infect those in the village but among many of the villagers there is fear -- for themselves, their children and their relatives because the inhabitants of 31 Sixth Street will have the run of the village, parks, swimming pool, etc. They cannot be prohibited from any of these facilities.

 Somehow I and everyone concerned must get back to the original issues. It is too bad that the people of Waterford have had to be a part ...

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