SEQRA, N.Y. Envtl. Conserv.Law §§ 8-0101 et seq. (McKinney
1997). Sunrise alleges that the Town "succumbed to and adopted
the most blatant and discriminatory stereotypes concerning
seniors and individuals with disabilities." Noone Aff. ¶ 32. The
Town's discriminatory conduct, the plaintiffs allege, includes
intentionally delaying the application process to enable it to
pass the Local Law which Sunrise contends prevents the
construction of not only the Sunrise CCF but all CCFs within the
borders of the Town. The plaintiffs rely on their FHA and ADA
claims to seek a preliminary injunction to enjoin the application
of the Local Law to their project, and to require instead that
the Town apply the old law to Sunrise's application. Such relief,
they maintain, is a "reasonable accommodation" as required by the
The defendants have countered by moving to dismiss the
plaintiffs' complaint pursuant to Rule 12(b)(6). They assert that
the federal claims are not ripe for adjudication because Sunrise
has not yet been denied permission to build its CCF, and because
Sunrise has not yet given the Town an opportunity to make a
reasonable accommodation. The defendants also argue that the
plaintiffs do not have standing to seek relief for the alleged
violations of SEQRA.
I. MOTION TO DISMISS
A. Ripeness of the Federal Claims
"In the area of land use, the doctrine of ripeness is intended
to avoid premature adjudication of administrative action."
Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir.
1988). Whether a matter is ripe for adjudication is a question of
law. Id. The Supreme Court has stated that two factors must be
considered in determining whether there is a ripe controversy:
the "fitness of issues for judicial decision" and the "hardship
to the parties of withholding court consideration." Abbott Labs.
v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681
(1967), overruled on other grounds by Califano v. Sanders,
430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The fitness
factor requires a finding that "the initial decision-maker [sic]
has arrived at a definitive position on the issue that inflicts
an actual, concrete injury," Williamson County Regional Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105
S.Ct. 3108, 87 L.Ed.2d 126 (1985), that is, the adverse
administrative action must be final. See, e.g., Southview
Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96 (2d Cir. 1992).
Although a plaintiff ordinarily-must submit at least one
meaningful application which is denied to meet the finality
requirement, see, e.g., Kinzli v. City of Santa Cruz,
818 F.2d 1449, 1454-55 (9th Cir. 1987) (citing MacDonald, Sommer & Frates
v. Yolo County, 477 U.S. 340, 351 n. 8, 106 S.Ct. 2561, 91
L.Ed.2d 285 (1986)), "litigants are not required to [engage in]
futile gestures to establish ripeness." Sammon v. New Jersey Bd.
of Med. Examiners, 66 F.3d 639, 643 (3d Cir. 1995); see
Southview Assocs., 980 F.2d at 98-99 & n. 8 (citing Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1012 n. 3, 112
S.Ct. 2886, 120 L.Ed.2d 798 (1992); Honess 52 Corp. v. Town of
Fishkill, 1 F. Supp.2d 294, 301 (S.D.N.Y. 1998)). The finality
requirement can be fulfilled by showing that "[a]ny further
efforts to work within administrative apparatus would be an
exercise in futility." Easter Seal of Society of New Jersey v.
Township of North Bergen, 798 F. Supp. 228, 236 (D.N.J. 1992);
see Doe v. Butler, 892 F.2d 315, 322 (3d Cir. 1989).
In this case, it is uncontested that the plaintiff had
submitted a fully conforming application as of February 9, 1998.
The Town Board, by enacting the Local Law, effectively denied
Sunrise's application for a special use permit, and significantly
changed the standards and procedures governing Sunrise's attempt
to obtain approval to build its CCF. The court finds that this
decision is final because the Town has made it clear that it
will not willingly "grandfather" Sunrise's application under the
old law and, therefore, the Board has taken final, definitive
action that prevents the issuance of a special use permit to
As to actual, concrete injury, the passage of the new Local Law
means that Sunrise will be forced to begin the application
process anew to seek a zoning change. All the time, legal fees,
and other expenses incurred in connection with the application
for a special use permit have therefore been lost, and Sunrise
will be required to face significant additional delay and
expense. Depending on the length of the delay, Sunrise could lose
its right to purchase the subject property, thus preventing it
from building its CCF altogether and causing it to lose the more
than $200,000 invested to date in the property's development as a
CCF. Indeed, this prospect appears imminent given that even a
grandfathered application took more than eight months after the
Local Law's enactment to gain BZA approval, see Noone Aff. ¶ 9 n.
1, and the plaintiffs' options on the property expire in less
than half that time. Further, Sunrise cannot meet the Local Law's
new requirements without modifications to its plans for the CCF.
These are all actual, concrete injuries that flow from the
allegedly discriminatory conduct of the defendants and are
therefore sufficient to establish finality.
Although it is true that Sunrise may apply to the Town for a
zoning change which would enable Sunrise to build its CCF, and
may ultimately receive permission to build its CCF, such action
by the Town would not eradicate the above injuries. The project
will have encountered delays and incurred expenses that it would
not have had to face but for the allegedly discriminatory conduct
of the defendants. If the defendants' conduct is found to be
discriminatory, the plaintiffs would be entitled to a judgment
against the defendants for the injuries suffered as a result of
such conduct regardless of whether the Town ultimately permits
the CCF to be built.
As to the hardship to the parties if court consideration is
withheld, each day that passes while the project is delayed means
delay for the plaintiffs in obtaining the housing the CCF would
afford. Moreover, delay could prevent the project from being
built and thus cause the loss of a considerable financial
investment to date. By contrast, there is nothing to be gained by
withholding judicial consideration of this controversy. The
allegedly discriminatory conduct has already occurred and its
effects are known. The court therefore concludes that the
plaintiffs will suffer hardship if the court does not promptly
adjudicate this controversy.
Accordingly, because the Town's enactment of the new Local Law
is tantamount to a final denial of the special use permit that
has caused actual, concrete injury to the plaintiffs, and because
the plaintiffs are likely to suffer substantial hardship if
judicial consideration of this controversy is withheld, the court
finds the defendants' conduct at issue here to be ripe for
adjudication. Therefore, the undersigned reports and recommends
that the defendants' motion to dismiss the federal claims be
B. Standing for the SEQRA Claim
The defendants argue that the plaintiffs lack standing to
assert their SEQRA claim and move to dismiss it on these grounds.
The plaintiffs do not oppose this motion. The New York courts
have determined that:
to qualify for standing to raise a SEQRA challenge, a
party must demonstrate (1) an injury in fact, i.e.,
an injury that is different from that of the public
at large, and (2) that the alleged injury falls
within the zone of interest sought to be promoted or
protected by the statute.
Stephens v. Gordon, 202 A.D.2d 437, 438, 610 N.Y.S.2d 531, 532
(2d Dep't 1994); see Duke & Benedict, Inc. v. Town of
Southeast, 253 A.D.2d 877, 678 N.Y.S.2d 343, 344 (2d Dep't
1998). To show an injury in fact,
a party seeking review under SEQRA "must specifically allege
facts which demonstrate some `special injury' beyond their bare
identities as voters, taxpayers, rate payers, property owners,
residents or citizens concerned about or involved in public
affairs." Montecalvo v. City of Utica, 170 Misc.2d 107, 116,
647 N.Y.S.2d 445, 452 (Oneida Sup.Ct. 1996) (citing Society of
the Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 778,
573 N.E.2d 1034, 1044, 570 N.Y.S.2d 778, 788 (1991)). To meet the
second requirement, the plaintiff must show that the alleged
injury is at least in part a "noneconomic environmental concern."
McGrath v. Town Bd. of North Greenbush, 254 A.D.2d 614,
678 N.Y.S.2d 834, 836 (3d Dep't 1998). Finally, "[t]he burden of
establishing standing to raise [a SEQRA] claim is on the party
seeking review." Society of the Plastics Indus., 77 N.Y.2d. at
769, 573 N.E.2d at 1038, 570 N.Y.S.2d at 782.
The plaintiffs have not established, nor have they attempted to
establish their standing to seek review under SEQRA and,
therefore, they have failed to meet their burden. Moreover, the
court's independent review of the facts presented here raises
some questions as to whether the plaintiffs could meet their
burden. The plaintiffs' alleged injuries do not appear to differ
from those suffered by any hopeful owner of property zoned R-40.
In addition, the alleged injuries do not appear to be
"environmental" in nature. Because the plaintiffs are seeking
review under SEQRA and have not established their standing to do
so, the undersigned reports and recommends that the motion to
dismiss the SEQRA claim be granted.
C. Jurisdiction for the Supplemental Claims
Where a court has subject matter jurisdiction based on a
federal statute, it may exercise supplemental jurisdiction over
related state law claims. See 28 U.S.C. § 1367. Because the
court reports and recommends against dismissal of the federal FHA
and ADA claims, it reports and recommends that, with the
exception of the SEQRA claim, the motion to dismiss the
supplemental state law claims be denied. With respect to the
SEQRA claim, however, the undersigned reports and recommends that
the motion to dismiss be granted.
II. PRELIMINARY INJUNCTION
As an initial matter, the court notes that the plaintiffs seek
to preserve the status of the parties prior to the contested
enactment of the Local Law. Accordingly, the preliminary
injunction sought is prohibitory, rather than mandatory, in
nature, because the plaintiffs seek to "maintain the status quo
ante pending a full hearing on the merits." Abdul Wali v.
Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). The "`status quo
to be preserved by a [prohibitory] preliminary injunction is the
last actual, peaceable uncontested status which preceded the
pending controversy.'" LaRouche v. Kezer, 20 F.3d 68, 74 n. 7
(2d Cir. 1994) (quoting Black's Law Dictionary 1410 (6th ed.
1990)). Generally, a party seeking a prohibitory preliminary
injunction must demonstrate (1) irreparable harm and (2) either
(a) a likelihood of success on the merits, or (b) sufficiently
serious questions going to the merits and a balance of hardships
tipping decidedly toward the party seeking injunctive relief.
See Innovative Health Sys., Inc. v. City of White Plains,
117 F.3d 37, 42-43 (2d Cir. 1997); Tom Doherty Assocs., Inc. v.
Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir. 1995);
Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.
1991); Abdul Wali, 754 F.2d at 1025.
Where the plaintiff alleges a violation of the ADA or of the
FHA, however, some courts have found that a rebuttable
presumption of irreparable harm arises if the plaintiff makes a
substantial showing of the likelihood of success on the merits of
its underlying claims. See Gresham v. Windrush Partners, Ltd.,
730 F.2d 1417, 1423 (11th Cir. 1984); Stewart B. McKinney
Found. v. Town Plan and Zoning Comm'n, 790 F. Supp. 1197, 1208
(D.Conn. 1992); Bronson v. Crestwood Lake Section 1 Holding
Corp., 724 F. Supp. 148, 153 (S.D.N.Y. 1989); see also Oxford
House, Inc. v. City of Albany, 819 F. Supp. 1168, 1173 (N.D.N Y
1993) (citing Gresham with approval); Innovative Health Sys.,
Inc. v. City of White Plains, 931 F. Supp. 222, 241 (S.D.N Y
1996) (discussing but not applying Gresham where plaintiff made
showing of irreparable harm independent of substantial likelihood
of success on merits); Laurenti v. Water's Edge Habitat, Inc.,
837 F. Supp. 507, 509 (E.D.N.Y. 1993) (same). A "substantial
showing" requires that the plaintiff meet the second prong of the
preliminary injunction test, that of likelihood of success on the
merits. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.,
596 F.2d 70, 72 (2d Cir. 1979); City of Albany, 819 F. Supp. at 1173
n. 2; see also Gresham, 730 F.2d at 1423. Under Gresham then,
the discrimination itself is presumed to cause irreparable harm
to its victim. See Gresham, 730 F.2d at 1423. This presumption
of irreparable harm may be rebutted "if the defendant can show
that . . . the violation won't occur." City of Albany, 819
F. Supp. at 1173 n. 2; see Stewart B. McKinney Found., 790
F. Supp. at 1208; see also Gresham, 730 F.2d at 1423. Finally,
although the parties appear to agree that Gresham applies here,
the Second Circuit has not yet adopted that view. For this
reason, the court analyzes the plaintiffs' motion under both the
Gresham holding and the generally applicable preliminary
A. Substantial Likelihood of Success on the Merits
1) The Applicable Law
Both the FHA and the ADA prohibit discrimination in housing
based upon an individual's "handicap" or "disability,"
respectively. 42 U.S.C. § 3604(f)(1)(FHA);
42 U.S.C. § 12132(ADA). A plaintiff can establish a violation of the FHA or
the ADA by proving that the challenged act was intentionally
discriminatory or by proving that the challenged act has a
disparate impact on the disabled. See Huntington Branch NAACP v.
Town of Huntington, 844 F.2d 926, 933 (2d Cir.), aff'd,
488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988) (FHA); Doe v.
Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998) (acknowledging
disparate treatment and impact under the ADA). Specifically,
under the FHA, a claim for disparate treatment arises where
defendants "discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter
because of a handicap." 42 U.S.C. § 3604(f)(1). Similarly, the
ADA provides that:
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. Zoning is "service" within the meaning of the
ADA. Innovative Health Sys., 117 F.3d at 44.