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June 12, 1996

INNOVATIVE HEALTH SYSTEMS, INC., MARTIN A., MARIA B. and JOHN DOES NOS. 1-3, Plaintiffs, against THE CITY OF WHITE PLAINS, S.J. SCHULMAN, Mayor of the City of White Plains, the ZONING BOARD OF APPEALS OF WHITE PLAINS, TERRENCE GUERRIERE, Chair of the Zoning Board of Appeals of White Plains, WHITE PLAINS PLANNING BOARD, MARY CAVALLERO, Chair of the White Plains Planning Board, Defendants.

The opinion of the court was delivered by: PARKER

 Plaintiff Innovative Health Systems, Inc. ("IHS") is a certified New York State treatment program for individuals with alcohol and drug dependency. Plaintiffs Martin A. and Maria B. are current clients of IHS. Plaintiffs John Does 1-3 are yet-to-be-identified prospective clients of IHS.

 The plaintiffs commenced this action against defendants City of White Plains, New York, S.J. Schulman, Mayor of the City of White Plains, the Zoning Board of Appeals of White Plains ("ZBA"), Terrence Guerriere, the past Chair of the ZBA, the White Plains Planning Board, and Mary Cavallero, the Chair of the White Plains Planning Board, alleging that defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and § 504 or the Rehabilitation Act of 1973, 29 U.S.C. § 794, by refusing to permit IHS to operate its treatment program in downtown White Plains. Before this Court are plaintiffs' motion for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and defendants' motion to dismiss the complaint, pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. The United States Department of Justice filed a brief as amicus curiae in opposition to defendants' motion to dismiss. For the reasons set forth below, plaintiffs' motion for a preliminary injunction is granted. Defendants' motion to dismiss is granted in part and denied in part.


 The following facts are alleged in the complaint and therefore assumed to be true for purposes of defendants' motion to dismiss. Since 1985, IHS has operated at 7 Holland Avenue on the outskirts of White Plains. In January 1994, IHS leased the first floor of a building known as 33 South Broadway in downtown White Plains. A separate part of the building, with no shared space or common areas, is used for residential purposes and is known as Cameo House. The building is in a BR-4 zoning district, which is a high density, mixed use zone, permitting a combination of "retail, office, governmental, and service business uses appropriate for the role of the City as a regional center, in addition to encouraging high density housing in combination therewith." Zoning Ordinance §

 In April 1994, IHS filed an application with the White Plains Department of Building for a building permit to renovate the southerly portion of 33 South Broadway. Because the southerly portion had previously been used as a retail furniture store, the Planning Board's approval of IHS' change of use was required. Thus, the Commissioner of Building referred IHS' change of use application to the Planning Board for site plan approval as required by § 7.2.2 of the Zoning Ordinance. On May 3, 1994, the Deputy Commissioner of Building informed the Planning Board that the Commissioner had concluded that IHS' proposed use of the South Broadway site for its alcohol and drug treatment program was a permitted "office" use in that location.

 IHS' application precipitated opposition from Cameo House Owners, Inc., a co-operative association representing resident owners of Cameo House, from Fashion Mall Partners, L.P., the owner of "The Westchester," and from other members of the community (collectively "certain members of the community"). On May 11 and June 8, 1994, the Planning Board held public meetings about IHS' proposed use, at which certain members of the community objected to the "condition and appearance" of IHS' client base, and expressed concern that a treatment program would depress the market value of their apartments. In addition, they argued that a treatment program should not be considered a business/professional office but, rather, a "clinic" falling within the Zoning Ordinance's definition of "hospitals or sanitaria," which is not a permitted use in the BR-4 zoning district in which the building is located. Zoning Ordinance §

 The Planning Board requested the Commissioner of Building to reconsider his determination that IHS' proposed use was a permitted "office" use. On July 21, 1994, the Commissioner reaffirmed his previous determination. In August 1994, however, IHS withdrew its change of use application, because of the opposition from certain members of the community to its plans "and the delay and mounting costs resulting from the Planning Board's review of [its] . . . application."

 On August 9, 1994, IHS applied to the Commissioner of Building for a building permit to renovate the northerly portion of the leased premises, which had previously been used as offices, and thus, already had the necessary use approval from the Planning Board. In September and October 1994, the opponents submitted letters to the Commissioner of Building and to the Mayor opposing IHS' proposed use. On October 26, 1994, Mary Cavallero, Chair of the Planning Board wrote a memorandum to the Commissioner of Building expressing the Planning Board's opposition to locating IHS' treatment program in the building. The Commissioner of Building requested the White Plains Corporation Counsel to review IHS' proposal and the Commissioner's own conclusion that IHS' program was a permitted use. After being advised of the Corporation Counsel's legal opinion, the Commissioner of Building issued a determination, in a letter dated December 14, 1994, that IHS' proposed use "is considered an office use."

 On December 27, 1994, Cameo House Owners and Fashion Mall Partners appealed the Commissioner of Building's determination to the ZBA. From April 5 through May 3, 1995, the ZBA conducted a public hearing pursuant to § 10.4.3 of the Zoning Ordinance. The complaint alleges that the testimony and written statements from certain members of the community during this hearing reveal that the basis of their objections to the siting of the IHS treatment program was bias against, and hostility towards, IHS' clients, -- individuals seeking treatment for alcohol and drug dependency.

 On July 5, 1995, allegedly without legal explanation, the Zoning Board voted 4-1 to reverse the prior determinations of the Commissioner of Building that IHS' treatment program was a permitted "office" use. The record of the ZBA's vote contains ZBA members' statements that, because IHS provides outpatient counseling and related services, its treatment program is to be considered a "hospitals or sanitaria" use. The complaint alleges, however that other counseling services and outpatient medical care facilities are permitted to operate in the BR-4 zoning district, and have not been categorized as "hospitals or sanitaria."

 For example, counseling activities are conducted in psychiatrists and social workers' offices on the first residential floor of Cameo House. The Health Insurance Plan of Greater New York operates a medical facility at 15 North Broadway, a few blocks from IHS' new site and within the same BR-4 District. In addition, the complaint alleges that according to newspaper reports, defendants are permitting the Veterans Administration to site a satellite medical clinic in the same BR-4 district.

 Plaintiffs seek declaratory, injunctive and monetary relief under the ADA and the Rehabilitation Act for alleged discrimination and failure to make reasonable modification to policies and practices or to accommodate reasonably their disability.

 Defendants oppose plaintiffs' motion for a preliminary injunction and move to dismiss the complaint on the grounds that (1) plaintiffs' claim, based upon a zoning ordinance, is not within the scope of either the ADA or the Rehabilitation Act; (2) plaintiffs lack standing; (3) plaintiffs have not alleged any facts stating a claim against the City, Mayor Schulman, the Planning Board, or Mary Cavallero; (4) neither the ADA nor the Rehabilitation Act requires defendants to accord preferential treatment to plaintiffs; and (5) plaintiffs have failed to demonstrate a likelihood of success on the merits and irreparable harm.

 A. Defendants' motion to Dismiss

 1. Whether plaintiffs' claim, based upon a zoning ordinance, is within the scope of the ADA and the Rehabilitation Act

 a. "Services, programs or activities" under the ADA

 Section 12132 of the ADA provides,

subject to the provisions of this subchapter, no qualified, individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

 42 U.S.C. § 12132. *fn1" "Disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). Persons recovering from or receiving treatment for addiction to alcohol or drugs are disabled individuals for purposes of the ADA and § 504 of the Rehabilitation Act. 42 U.S.C. § 12210(b) and (c); 28 C.F.R. §§ 35.104, 35.131 (ADA); 29 U.S.C. § 706(8)(B) and (C) (Rehabilitation Act); Collings v. Longview Fibre Co., 63 F.3d 828, 831 (9th Cir. 1995), cert. denied, 133 L. Ed. 2d 666, 116 S. Ct. 711 (1996); Sullivan v. City of Pittsburgh, 811 F.2d 171, 182 (3d Cir.), cert. denied, 484 U.S. 849, 98 L. Ed. 2d 104, 108 S. Ct. 148 (1987); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 459 (D.N.J. 1992).

 Citing Burnham v. City of Rohnert Park, 1992 U.S. Dist. LEXIS 8540, 1992 WL 672965 (N.D.Cal.), Moyer v. Lower Oxford Township, 1993 U.S. Dist. LEXIS 144, 1993 WL 5489 (E.D.Pa.), Oxford House, Inc. v. City of Albany ("Oxford House II"), 155 F.R.D. 409 (N.D.N.Y. 1994), Kessler Inst. for Rehabilitation, Inc. v. Mayor and Council of Essex Fells, 876 F. Supp. 641 (D.N.J. 1995) and Robinson v. City of Friendswood, 890 F. Supp. 616 (S.D.Tex. 1995), defendants argue that zoning is not a service, program or activity provided by a public entity. Defendants additionally argue that because the ADA is similar to the Rehabilitation Act, see Doe v. Univ. of Maryland Medical Sys. Corp., 50 F.3d 1261, 1267 n. 9 (4th Cir. 1995), the same analysis precluding coverage in the context of zoning would apply to the Rehabilitation Act.

 This case law, however, is inconclusive on whether the ADA applies to zoning decisions. In most of the pertinent cases, as the courts expressly note, the issue was not adequately briefed. And, in resolving the issue, none of these courts analyzed the language of the ADA or its legislative history.

 In a footnote that was clearly dicta, Burnham set the precedent. In Burnham, the plaintiff sought a preliminary injunction requiring the defendant city to allow her to continue to live in a mobile home parked in a driveway in a residential district, in violation of local ordinances. The court denied the motion on the basis that the plaintiff had not demonstrated a likelihood that she would succeed in proving that the defendant had discriminated against her on the basis of her handicap and because she failed to demonstrate irreparable harm. In a footnote, the court, without analysis or citation to authority, also stated that the plaintiff's ADA claim had "other problems": "the ADA prohibits discrimination in the distribution of public services, programs, or activities. No such public programs are at issue here." Burnham, 1992 U.S. Dist. LEXIS 8540, 1992 WL 672965 at *5 n. 9.

 The first case in which the issue actually arose was Moyer. Moyer, however, relied exclusively on Burnham. Without analysis, it held that the ADA does not apply in the zoning context. It specifically noted, however, that the plaintiff did not cite any authority to the contrary. Moyer, 1993 U.S. Dist. LEXIS 144, 1993 WL 5489 at *2.

 That same year, Oxford House, Inc. v. City of Albany ("Oxford House I"), 819 F. Supp. 1168 (N.D.N.Y. 1993), granted the defendant city's motion to dismiss claims arising out of the ADA, on the grounds that zoning regulations were not covered by the ADA. In Oxford House II, however, the plaintiffs moved for reconsideration of the court's order. In ruling on the motion, the court noted that its determination was based upon Burnham and Moyer. It "highlighted" the fact that "plaintiffs, in their opposition papers to defendants' motion to dismiss, had completely failed to cite to any authority indicating that the ADA should be applied to a zoning context." Oxford House II, 155 F.R.D. at 410. In denying the motion for reconsideration, however, the court recognized that plaintiffs' arguments for reconsideration, based on the legislative history of the ADA and its interpretation by the Justice Department, were "legitimate," but were merely "brought forth too late." Oxford House II, 155 F.R.D. at 411.

 Next, Kessler, also without analysis or citation to any authority, dismissed an ADA claim, stating only that "[a] zoning amendment . . . is not a public service, program, or activity." Kessler, 876 F. Supp. at 655.

 Finally, Robinson specifically noted that "there is limited authority on the nature and extent of the applicability of the ADA, a recently enacted statute, to zoning." Robinson, 890 F. Supp. at 623. It thus relied upon Burnham, Moyer, and Oxford House to hold that the ADA did not apply to zoning, but rather was directed toward areas of employment and places of public accommodation. See Robinson, 890 F. Supp. at 619-20, 623.

 The most recent case relying upon this line of authority is United States v. City of Charlotte, 904 F. Supp. 482 (W.D.N.C. 1995). Citing Burnham, Moyer and Oxford House II, it held that zoning did not fall within the plain meaning of the terms "service," "program," or "activity," and thereby dismissed the plaintiff's ADA claims.

 I respectfully disagree with City of Charlotte and the cases upon which it relies. "Activity" is defined by Websters' Third New International Dictionary (1993) as a "natural or normal function or operation." Because zoning is a normal function or operation of a governmental entity, *fn2" the plain meaning of "activity" clearly encompasses zoning.

 Moreover, I find nothing in the text or legislative history of the ADA to suggest that zoning or any other governmental activity was excluded from its mandate. Congress enacted the ADA to eliminate pervasive discrimination against individuals with disabilities, having determined that "historically, society has tended to isolate and segregate individuals with disabilities." 42 U.S.C. § 12101(a)(1). The purpose of the ADA was to establish "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(1). "As a remedial statute, the ADA must be broadly construed to effectuate its purpose." Civic Ass'n of the Deaf v. Giuliani, et al., 915 F. Supp. 622, 1996 WL 61757 (S.D.N.Y. *12).

 Accordingly, the ADA'S language is broad: it protects individuals with disabilities from being "denied the benefits of the services, programs, or activities of a public entity, or [from] being subjected to discrimination by any such entity," 42 U.S.C. § 12132. There is no suggestion in the statute that zoning or any other type of public action is to be excluded from this broad mandate. Moreover, the last phrase of Title II's prohibition is even more expansive, stating simply that no individual with a disability may be "subjected to discrimination" by a public entity.

 The legislative history of the ADA confirms that it was intended to sweep widely. The House Report states that, in Title II,

the Committee has chosen not to list all the types of actions that are included within the term 'discrimination,' as was done in titles 1 and 111, because this title essentially simply extends the antidiscrimination prohibition embodied in section 504 [of the Rehabilitation Act] to all actions of state and local governments.

 H.R.Rep.No. 485 (II), 101st Cong., 2d Sess. 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. The House Report later emphasizes the broad coverage of Title II, stating: "Title II of the bill makes all activities of State and local governments subject to the types of prohibitions against discrimination against qualified individuals with a disability included in section 504 (nondiscrimination)." Id. at 151, reprinted in 1990 U.S.C.C.A.N. at 434. See also 134 Cong.Rec. 9606, E1308 (April 29, 1988)(Coelho).

 Consistent with Title II's broad language and its legislative history, the Department of Justice, in its Title II implementing regulations and other Title II analyses, has interpreted Title II to reach all actions by public entities, including zoning enforcement actions. *fn3" The regulations enumerate several categories of specific activities that constitute discrimination by public entities. 28 C.F.R. § 35.130. One of these specific provisions requires public entities to make reasonable modifications to their policies, practices, and procedures, where such modifications are necessary to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(7). Zoning enforcement actions, including the enactment of ordinances, and any administrative processes, hearings, and decisions by zoning boards, fall squarely within the category of "policies, practices, or procedures" mentioned in the regulations. *fn4"

 Section 504 of the Rehabilitation Act also contains expansive language prohibiting discrimination on the basis of disability in any "program or activity" of recipients of Federal financial assistance. 29 U.S.C. § 794 (1988 & Supp. IV 1992). The Civil Rights Restoration Act made clear that "the term 'program or activity' and 'program' means all of the operations of [a recipient of federal funding]." 29 U.S.C. § 794. Neither the Rehabilitation Act nor the Civil Rights Restoration Act, nor their legislative histories, contain any indication of a congressional desire to exempt zoning enforcement from their coverage. *fn5"

 Finally, in contrast to the cases relied upon by defendants, other courts have held that the ADA does apply to zoning, sometimes after relatively more extensive analysis. See, e.g., Musko v. McCeandless, 1995 WL 262520 (E.D.Pa. *6); Oak Ridge Care Ctr. v. Racine County, 896 F. Supp. 867 (E.D.Wis. 1995); Pack v. Clayton County, No. 1:93-CV-836-RHH (N.D.Ga., Aug. 27, 1993), aff'd, 47 F.3d 430 (11th Cir. 1995). In addition, the only case to address the question in terms of ...

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