The defendant asserts that no violation of the FHA or any statute is made out. In this regard, the City argues that the Grouper Law does not prevent these handicapped individuals, or any individuals - handicapped or otherwise -, from obtaining housing in the City of Albany. The City maintains that handicapped individuals may obtain housing in the City of Albany and stay in compliance with the law provided no more than three such individuals who are not family members (or the functional equivalent thereof) reside in any one single-family residence.
In opposition, the plaintiffs assert that their handicap requires them to live in close proximity - in groups of six or more - to provide necessary moral support and counseling during their road to recovery. The defendant claims that the Grouper Law does not prevent this either. It argues that separate groups of three handicapped individuals can live side-by-side in duplexes or one-on-top-of-the-other in two family upstairs/downstairs homes. Further, the City maintains that the groups of three can live next door to each other. The City challenges the plaintiffs' professed need to live in six-person groups as merely a cost saving alternative not related to handicap but rather a universal concern common to many groups. In fact, the City notes that it is the large concentration of colleges in the City which promoted the City to enact the Grouper Law in order to prevent students, who are often living on meager incomes, from living in large numbers. The professed reasons for the enactment was not a disdain for students, but rather to alleviate health and safety problems which arise when large groups reside under one roof. Thus, the City maintains that application of the Grouper Law to these individuals is not a form of discrimination on account of handicap but simply universal enforcement of a constitutional and necessary law.
Further, the City maintains that any "reasonable accommodation" mandated by the statute must be to serve a purpose related to the handicap. In the case of the FHA, this reasonable accommodation must be to allow handicap individuals to access housing. But, because the Grouper Law does not prevent such access, the City argues that the FHA does not prohibit its application. In a sense, the City argues that no accommodation is required because no handicapped-related deprivation is worked upon the plaintiffs. Rather, their deprivation, if one can be said to exists, relates to their desire to save money - not because they are former drug or alcohol addicted individuals.
Of course, the question of what living conditions are necessary to a particular handicap (as opposed to the question of what accommodations are reasonable) is a factual determination which the court cannot make at this juncture. Rather, evidence must be presented by the parties which persuades the trier of fact that the living conditions proposed by the plaintiffs are required by their handicap. Because the court cannot begin to determine this question, it is incapable of assessing "likelihood of succus on the merits." Nonetheless, the existence of this question in the context of the instant case leads the court to conclude that there exist sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Therefore, on this ground alone the court finds sufficient reason to grant a preliminary injunction. However, the defendant has raised other challenges to plaintiffs' request.
ii. Do FHA exemptions apply?
As a separate basis for denying the requested injunctive relief, the defendant asserts that the FHA exempts enforcement of laws similar to Albany's Grouper Law. See 42 U.S.C. §§ 3604(f)(9) & 3607(b)(1). Section 3604(f)(9) states that "nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenency would result in substantial physical damage to the property of others." As stated, the defendant asserts that the Grouper Law serves the health and welfare of all citizens of Albany.
Section 3607(b)(1) provides that "nothing in this subchapter limits the applicability of any reasonable local, State, or Federal restriction regarding the maximum number of occupants permitted to occupy a dwelling." The defendant asserts that the Grouper Law is one such "reasonable . . . restriction regarding the maximum number of occupants."
Whether the occupancy of these Oxford House groups in the numbers they seek constitutes a "direct threat to the health and safety of other individuals" is not answered simply because it is proscribed by a local ordinance enacted pursuant to the City's police power. Rather, the court is again faced by a determination which will turn on the evidence and legal arguments produced by the parties during the litigation. Presumably, this will answer the dual question of whether the plaintiffs' desired occupancy will present a direct threat to the health and safety of others and whether the Grouper Law is a reasonable local ordinance addressing maximum occupancy of a dwelling. The court does find, nonetheless, that this matter presents sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Therefore, on this ground the court again finds sufficient reason to grant a preliminary injunction. Yet, there are still further objections presented by the defendant to the requested injunction.
iii - Accommodations - What's reasonable?
Assuming arguendo that a reasonable accommodation is required in the instant situation, (that is, assuming that the plaintiffs' handicap requires six or more individuals to live under one roof), and assuming that the Grouper Law is not exempted from the FHA, the question then becomes "what is a reasonable accommodation?" The defendant asserts that a request for a "reasonable accommodation" has not yet been made. The plaintiffs assert that it has. The issues turns on one's definition of a reasonable accommodation.
The plaintiff asserts that a "reasonable accommodation" would have been to classify the various groups as "functional equivalents" of families. However, because they received what they feel amounts to a pro forma denial, plaintiffs claim that no accommodation - reasonable or otherwise - was made by the City.
In opposition, the City defends the Building Department's determination both on the merits and the policy upon which it is based.
Irrespective of that decision, the defendant contends that an avenue for the plaintiffs' requested "accommodation" still exists. Defendant asserts that the plaintiff can seek a "use variance" from the city zoning law to allow their group homes in single family-zoned areas. By allowing plaintiff to seek a variance, defendant argues that a reasonable accommodation is accorded.
The plaintiff counters this "variance" argument with the New Jersey District Court case of Oxford House, Inc. v. Cherry Hill, 799 F. Supp. 450 (D.N.J. 1992). In this case, the district court stated in a footnote that it rejected the idea that requiring plaintiffs to apply to the zoning board for an interpretation of a variance constituted a reasonable accommodation. In reaching this conclusion, the district court stated:
"Reasonable accommodation" means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual. Thus, where everyone is provided with "equal access" to a building in the form of a staircase, reasonable accommodation to those in a wheelchair may require building a ramp. Here, defendant's suggestion that making the process of applying for a C.O. more onerous for plaintiffs than it is for the majority of applicants, somehow constitutes "reasonable accommodation," stands the concept on its head. It is analogous to arguing that a rule requiring only handicapped people to pay a special fee before entering a building constitutes a reasonable accommodation.
799 F. Supp. at 462, fn. 25.
However, the facts of Cherry Hill are quite different than the instant case. In Cherry Hill the township enforced a rule which required all groups of unrelated individuals wishing to live together to apply for a zoning variance prior to receiving a Certificate of Occupancy. 799 F. Supp. at 455. Such groups were presumed not to constitute a family and were required to show "permanency and stability" in order to obtain the C.O. while related individuals were automatically considered a "family" no matter how large or unstable. Id. However, the township had no written criteria by which to measure "permanency and stability" and there were indications in the record in Cherry Hill which lead the District of New Jersey to conclude that this standard was applied in a discriminatory fashion. Id.
Unlike in Cherry Hill, groups of unrelated people numbering three or less do not need prior approval to occupy a home in Albany. Unless the plaintiffs can establish that the need to reside in groups numbering four or more is handicap related, it is quite possible that the FHA would provide no basis for any "accommodation" in this regard and the "onus" of the zoning variance application would be academic. Further, the record is not sufficiently developed for the court to determine whether the application of the "functional equivalent of a family" criteria in the City of Albany provides the plaintiffs with a meaningful opportunity to qualify thereunder. Aside from the public statements of Mayor Whalen, which are ambiguous at best, there is no indication in the present record that the Grouper Law was applied with a discriminatory motive or in a discriminatory fashion.
Consequently, the court rejects reliance on the proffered footnote from the Cherry Hill decision at this time. Still further, the court is not persuaded by plaintiffs' argument that, even absent an attempt, they are sure to be denied a use variance. Such a position is premature and, because the possibility exists that they will be reasonably accommodated through the use variance mechanism, the present dispute is not fully ripe for adjudication. Nevertheless, because of the equities of this case as discussed throughout, the court chooses not to dismiss the matter pending exhaustion of the zoning process. Because of the probability of irreparable harm occurring if the status quo is altered, the court will retain jurisdiction of the matter in so much as a FHA, ADA, of Due Process claim may have already occurred and it will issue a conditional preliminary injunction. The injunction will prevent alteration of the status quo by either party pending the outcome of the litigation. The injunction will be conditioned on the plaintiffs applying for a use variance for each of the three OHI residences which are subject to prosecution and which house the individual plaintiffs. Such applications must be made within sixty (60) days of the signing of this order. If such applications are not made within sixty (60) days from the signing of this order, the injunction shall expire and the court shall entertain motions to dismiss the action. If, on the other hand, good faith applications are made, the injunction shall continue pending the outcome of the underlying claims.
If and when the use variance process has been attempted by the plaintiffs, and if the present controversy continues to exist, the parties shall report back to this court in letter briefs describing the proceedings at the Zoning board and advising the court of the posture of the litigation. At that time, the court shall issue an expedited discovery and motion schedule and the matter shall be set down for as early a trial date as the court's schedule shall allow.
For the reasons discussed here, it is hereby
ORDERED that the plaintiffs' motion for a preliminary injunction is granted and the parties are enjoined from altering the status quo by either prosecuting the alleged Grouper Law violations or by increasing the number of Oxford Houses or the size of any present Oxford House located within the City of Albany, New York. Further, it is hereby
ORDERED that the injunction shall expire within sixty (60) days from the date on which it is signed unless plaintiffs have, prior to the expiration of these sixty days, made application to the Albany zoning Board (or the appropriate governmental agency in the City of Albany) for a "use variance" for each of the three Oxford Houses in which the three individual plaintiffs reside. Further, it is hereby
ORDERED that if the plaintiffs make the application as describe in the preceding paragraph, the parties shall report back to this court in letter briefs describing the proceedings at the zoning board and advising the court of the posture of the litigation. At that time and if the present controversy still exists, the court shall issue an expedited discovery and motion schedule and the matter shall be set down for as early a trial date as the court's schedule shall allow. Further, it is hereby
ORDERED that the public file of this case shall contain only redacted documents which do not identify the individual plaintiffs other than by fictitious name and that all documents filled with the court which specifically identify the plaintiffs shall be sealed and shall remain under seal until further order of this court.
IT IS SO ORDERED.
Dated at Binghamton, New York
April 16, 1993
Thomas J. McAvoy