The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
By an Order dated October 8, 1998, this Court referred the
following motions to United States Magistrate Judge Victor V.
Pohorelsky pursuant to 28 U.S.C. § 636(b)(1) for a report and
recommendation: the plaintiffs' motion for a preliminary
injunction; the defendants' cross-motion to dismiss the
complaint; and the plaintiffs' request for attorneys' fees.
The plaintiffs moved for a preliminary injunction pursuant to
Rule 65 of the Federal Rules of Civil Procedure ("Fed.R.Civ.
P."), and requested that the defendants be prohibited from
subjecting the plaintiffs' real estate development project to the
provisions of a recently enacted amendment to the zoning law of
the Town of Huntington. The plaintiffs also moved for attorneys'
fees incurred in connection with their motion for a preliminary
injunction under the provisions of 42 U.S.C. § 1988. In addition,
the defendants made a cross-motion to dismiss pursuant to Rule
12(b)(6) based on their contentions that the plaintiffs'
complaint was not ripe for adjudication and that the plaintiffs
lacked standing under their New York State Quality Review Act
claim. N.Y. Envtl. Conserv.Law § 8-0101 et seq. ("SEQRA").
On January 7, 1999, Judge Pohoreslky issued a Report
recommending: (1) that the preliminary injunction motion should
be granted because the plaintiffs met their burden of
demonstrating irreparable harm and substantial likelihood of
success on the merits of their claims; (2) that the defendants'
motion to dismiss on ripeness grounds should be denied; (3) that
the defendants' unopposed motion to dismiss the SEQRA claim for
lack of standing should be granted; and (4) that the plaintiffs'
motion for attorneys' fees should be denied as premature because
there has been no final determination on the merits.
On January 18, 1999, the plaintiffs filed a limited objection
to the Report and Recommendation contending that the Magistrate
Judge incorrectly ruled that the plaintiffs, Sunrise Development
and XYZ, Inc., as distinct from the John Doe plaintiffs, did not
suffer irreparable harm. In addition, the plaintiffs claim that
they should have been awarded attorneys fees in connection with
the preliminary injunction. The defendants filed their objections
to the Report and Recommendation on January 25, 1999. The
defendants argue that the Magistrate Judge erred when he
recommended that the Court grant the plaintiffs' motion for
preliminary injunction and when he failed to recommend that their
motion to dismiss be granted.
Pursuant to 28 U.S.C. § 636(b)(1), any party may file written
objections to the Report and Recommendation of the Magistrate
Judge within ten days after being served with a copy. See also
Fed. R.Civ.P. 72(a). Once objections are filed the district court
is required to make a de novo determination as to those portions
of the Report and Recommendation to which objections were made.
see 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19
(2d Cir. 1989). Although the district court may "receive further
evidence or recommit the matter to the magistrate with
instructions" (28 U.S.C. § 636[b]), a de novo determination
does not require the recalling of witnesses. See United States
v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d
424 (1980). Rather, in making such a determination, the district
court may, in its discretion, review the record and hear oral
argument on the matter. See Pan Am. World Airways, Inc. v.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of Am., 894 F.2d 36, 40 n. 3 (2d Cir. 1990).
The Court has carefully reviewed Judge Pohorelsky's thoughtful,
detailed and thorough Report and Recommendation, as well as all
of the submissions and objections by the parties, and concurs
with Judge Pohorelsky's recommendations for the reasons set-forth
in his well-reasoned report.
Accordingly, it is hereby
ORDERED, that the defendants' motion to dismiss the entire
complaint pursuant to Rule 12 of the Federal Rules of Civil
Procedure is DENIED; but that the motion to dismiss the SEQRA
claim on the grounds that the plaintiffs lack standing is
GRANTED; and it is further
ORDERED, that the plaintiffs' motion for a preliminary
injunction pursuant to Rule 65 of the Federal Rules of Civil
Procedure is GRANTED to the extent that Town of Huntington is
hereby ordered (1) to reinstate the plaintiffs' application to
the Town's Board of Appeals for Zoning; (2) to schedule a public
hearing on the application as soon as its feasible; and (3) to
render a decision on the plaintiffs' application for a special
use permit under the law that existed prior to March 3, 1998. In
addition, the Town's Board of Appeals for Zoning decision on the
application must be published to the parties but it is ordered
that the decision not be considered "final and binding" upon the
plaintiffs, for the purposes of triggering limitations of time
applicable to commencement of an Article 78 proceeding under New
York Law, until this Court renders a final decision in this
action; and it is further
ORDERED, that the plaintiffs' motion for attorneys' fees
pursuant to 42 U.S.C. § 1988 is DENIED; and it is further
ORDERED, that the plaintiffs' attorney shall serve copies of
this Order on all counsel of record by certified mail, return
receipt, within five (5) days of the date of this Order.
REPORT AND RECOMMENDATION
Pending before the court is the plaintiffs' motion for a
preliminary injunction pursuant to Rule 65 of the Federal Rules
of Civil Procedure to bar the defendants from subjecting the
plaintiffs' real estate development project to the provisions of
a recently enacted amendment to the zoning law of the Town of
Huntington. Also pending before the court is the defendants'
cross-motion to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Finally, the plaintiffs seek an award
of attorneys' fees if they prevail on their motion. These motions
have been referred to the undersigned magistrate judge pursuant
to Title 28, Section 636(b)(1) of the United States Code for a
report and recommendation. For the reasons that follow, the
undersigned REPORTS and RECOMMENDS that the plaintiffs' motion
for a preliminary injunction be granted, that their application
for an award of attorneys' fees be denied with leave to renew
upon a final disposition of this case, and that the defendants'
motion to dismiss be granted in part and denied in part.
The plaintiff Sunrise Development, Inc. is a Virginia
corporation authorized to do business in New York and engaged in
the purchase and development of land on which it builds
congregate care facilities ("CCFs"). A CCF is a housing facility
which provides daily living assistance to its residents, most of
whom are senior citizens and many of whom are disabled.*fn1 A
CCF is typically operated by a licensed home health care services
agency which provides such services as assistance with bathing,
dressing, bathroom usage, taking medicine and other similar daily
living activities. Noone Aff. ¶ 6. Residents are provided three
cooked meals and snacks each day. Id. Recreational and
therapeutic programs are also included in the CCF's services.
The plaintiff Sunrise has proposed to build a CCF on Deer Park
Avenue within the defendant Town of Huntington. The plaintiff
John Does # 1-76 are the unnamed future residents of the CCF. The
plaintiff XYZ, Inc. is an as-yet unnamed licensed home health
care services agency which will operate the CCF. The defendant
Frank Petrone is the Town Supervisor and a Town Board Member. The
remaining defendants — Steven Israel, Mark Cuthbertson, Marlene
Budd, and Susan Scarpatti Reilly — represent the balance of the
Town Board members.
Senior housing, the issue at the root of the present
controversy, is and has been a matter of some concern to the
Town. In November 1996, the Town established a Citizen's Advisory
Committee ("CAC") which conducted a study and in 1997 made
specific recommendations concerning housing for the elderly and
disabled on Deer Park Avenue. At around the same time, in
December 1996, Sunrise conducted extensive market research to
determine whether there was a need for senior and handicapped
housing in the Town and concluded that a shortage of this housing
existed. Sunrise's research revealed a five-acre parcel of land
on Deer Park Avenue in an R-40 zone within the Town as a suitable
location for its proposed CCF. At that time, the Town Zoning Code
(the "Code") permitted a CCF as an "as of right" use in an R-40
zoning district upon the issuance of a special use permit by the
Town's Board of Appeals for Zoning ("BZA"). See Bert Aff. ¶ 2.
The Code requires the BZA to issue the special use permit upon an
applicant's compliance with certain requirements.
Sunrise issued a letter of intent to the property's owner
expressing its intention to purchase the Deer Park Avenue
property, and in April 1997 the property owner and Sunrise signed
a Purchase Agreement. Sunrise then retained experts to assist it
with the process of obtaining the special use permit required
before a CCF could be built on the parcel. In July or August
1997, Sunrise submitted its initial application for the special
use permit to the Town.
From the time of submission until September 1997, the Town
conducted the required review process and Sunrise submitted plans
and various documents as periodically requested by the Town.
During this review period, the Town advised Sunrise to meet with
a neighborhood association to discuss the proposed CCF. According
to Sunrise, it was with some difficulty that it arranged a
meeting for November 24, 1997. During the meeting, the
association's president was openly hostile to, and the
association expressed contempt for, the proposed CCF. After the
meeting, the association voted to oppose construction of the
In addition to the application, the Code requires that a public
hearing be held on the proposed project prior to the issuance of
a special use permit. Such a hearing on Sunrise's proposed CCF
was initially scheduled for November 20, 1997. Sunrise contends,
and the Town disputes, that on October 15, 1997, Richard Machtay,
Planning Director of the Town, requested that Sunrise adjourn its
public hearing to give him time to complete his review of the
additional information. Noone Aff. ¶ 16. Although it believed its
application to be complete, Sunrise agreed to this adjournment
because, in general, it tries to accommodate local zoning
officials and because, in particular, it wanted a negative
declaration under New York State's Quality Review Act
("SEQRA").*fn2 N.Y. Envtl. Conserv.Law, § 8-0100 et seq.
Machtay had informed Sunrise that he was considering recommending
a positive declaration to the BZA, which would add significant
expense and approximately six months to the application process.
Sunrise hoped that upon reflection Machtay would recommend a
negative declaration.*fn3 Noone Aff. ¶ 16. After Sunrise
requested the adjournment, the BZA set a new date of February 5,
1998 for the public hearing on Sunrise's application, presumably
the next available date.
Meanwhile, in November 1997, the CAC submitted its report to
the Town concerning its study of land use on Deer Park Avenue.
The report recommended only limited regulation of CCFs, nursing
homes, sanatoriums, and convalescent homes on Deer Park Avenue.
In December 1997, shortly after the CAC report was issued, Town
employees again asked Sunrise for additional information and,
according to Sunrise, advised it to seek an adjournment of the
hearing because review of the information was expected to require
thirty days after its submission to the Town. Noone Aff. ¶ 17.
Sunrise again agreed to this adjournment because it hoped to
resolve the outstanding issues on the application before the
public hearing. Id. A new hearing date was set for April 2,
1997. The defendants admit that Sunrise's "application to build a
conforming [CCF] was . . . fully submitted [by] February 27,
1998," Def's. Mem. Opp'n at 4-5, and they do not contest the
plaintiffs' contention that as early as February 9, 1998, an
application was submitted that met "every provision of the
then-existing Zoning Code and requirements for issuance of a
special permit." Noone Aff. ¶ 21; see Noone Reply Aff. ¶ 5;
Machtay Reply Aff. ¶¶ 7-8.
On February 10, 1998, the Town adopted a resolution which
scheduled a public hearing on a proposed Local Law entitled "A
Local Law to Consolidate Certain Senior Citizen Uses" ("Local
Law"). On March 3, 1997, before the public hearing on Sunrise's
CCF could be held and before the BZA had reached a determination
on Sunrise's application, the Town held the required public
hearing on the proposed Local Law. The Town asserts that it
sought to enact the Local Law merely to consolidate land uses in
fewer zoning districts in conformity with the "1993 Comprehensive
Plan Update" (the "Comprehensive Plan") for the Town. Machtay
Aff. ¶ 26. The proposed law eliminated CCFs as an "as of right"
use in all zoning districts within the Town except in R-RM zoning
districts; vested approval of CCFs with the Town Board, versus
the old law which vested this authority with the BZA; and imposed
certain new dimensional requirements which, according to the
plaintiffs, were more rigorous than the old law and which the
Town knew Sunrise could not satisfy. Noone Aff. ¶ 18. Finally,
and at the heart of the dispute here, the new law grandfathered
(i.e., left the old law applicable to) only those special use
permit applications that were pending when the new law was
enacted and on which a public hearing had already been held.
At the public hearing on the Local Law, Town residents
expressed what the plaintiffs contend are discriminatory views of
the elderly and disabled. For example, one resident who would
live near the proposed facility expressed her concern for her
home's "value decrease" if the Sunrise CCF was permitted. Hearing
Tr. at 45:11.*fn4 Another resident stated that the Local Law was
"to prevent inundation by congregate care facilities whose
appearance and activity would alter the residential character of
Dix Hills." Id. at 47:10-14. One resident read from an
editorial appearing in a local newspaper which referred to Deer
Park Avenue as "Senior Alley." Id. at 51:9. In addition, a
general view was expressed at the meeting that the CCF would be a
drain on community resources such as fire and rescue services.
Id. at 51-52.
Residents who spoke in favor of the CCF were cut short in their
remarks with defendant Petrone telling one resident to "think of
one more thing and then give up," id. at 97:22-23, because he
would "be ready for congregate care" soon. Id. at 98:2-3. The
meeting also included a somewhat heated interchange between the
Board members and John Noone, the vice president of Sunrise. When
Noone suggested that the decision to pass the Local Law had been
made before the hearing, the defendant Israel informed Noone that
"you are not coming before us to question our motives." ...