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United States District Court, Southern District of New York

May 21, 2003


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge.


Plaintiffs Town & Country Adult Living, Inc. ("Plaintiff" or "Town & Country") and "John Does" Nos. 1 through 46 bring this action pursuant to 42 U.S.C. § 1983, the Federal Fair Housing Act (42 U.S.C. § 3601 et. seq.) ("FHA"), the Americans with Disabilities Act (42 U.S.C. § 12131 et. seq.) ("ADA") and New York State common law pertinent to zoning, seeking an injunction prohibiting defendants Village/Town of Mount Kisco ("Mount Kisco"), the Mount Kisco Planning Board ("Planning Board") and the Mount Kisco Zoning Board of Appeals ("Zoning Board" and, together with Mount Kisco and Planning Board, "Defendants") from blocking efforts of plaintiff Town & Country to expand its assisted living residence for senior citizens in the Village of Mount Kisco, New York. Plaintiff argues that Defendants' decision to deny Plaintiff's application for a variance to expand its housing capacity were not based upon facts in the record but were based on the animus of the community toward the inclusion of more disabled seniors and made housing unavailable to plaintiffs "John Does," intentionally discriminating against such persons in violation of the FHA and the ADA.

Before the Court are Defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Plaintiff's motion for a preliminary injunction.

The Court has considered thoroughly all of the submissions related to these motions. For the reasons set forth below, Defendants' motion to dismiss the complaint is denied. Plaintiff's motion for a preliminary injunction is also denied.

Defendants' Motion to Dismiss the Complaint

In evaluating a motion to dismiss, the Court is obliged to take as true the facts as alleged in the complaint and to draw all reasonable inferences in favor of the plaintiff. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998).

The following facts pertinent to the dismissal motion are alleged in the Amended Complaint, which is dated November 1, 2002. Plaintiff Town & Country operates a privately-owned assisted living residence that is currently licensed to accommodate 44 senior citizens with disabilities, at 53 Mountain Avenue, Mount Kisco, New York. The residence is located in a district of Mount Kisco that is home to many local government officials as well as wealthy and politically connected people. Am. Compl. ¶¶ 8-15. Plaintiff is seeking to house 46 more senior citizens with disabilities at the residence; fictitious plaintiffs John Does 1-46 represents the potential additional residents. Id. ¶¶ 5, 18-19. Town & Country needs to expand and upgrade its facility to remain viable economically. Id. ¶ 19. Town & Country's current facility, whose use as a senior facility predates local zoning codes, is a pre-existing permitted use under Mount Kisco's zoning codes. Id. ¶ 20.

Beginning in 1997, Town & Country approached the Town of Mount Kisco with a proposal for expansion of the facility to accommodate additional senior citizens; two trustees of the Town of Mount Kisco told Town & Country's owner that no expansion would ever be permitted, and Mount Kisco officials instructed Town & Country to seek a zoning variance. Id. ¶¶ 22-23. The Zoning Board designated the Planning Board as the lead agency for environmental review of the proposal pursuant to the State Environmental Quality Review Act (SEQRA). In the course of hearings, the Planning Board entertained opposition by residents of the area in which Town & Country's facility is located and did not give Town & Country's representatives comparable opportunities to be heard. Id. ¶¶ 24-38. On or about September 15, 2000, the Planning Board issued a set of negative findings regarding the proposal, which findings relied on partially inaccurate subjective perceptions of the aesthetic qualities of the proposal and contained inaccurate data regarding details of the proposal. Id. ¶¶ 40-44. The Planning Board refused to reconsider the negative findings when Town & Country thereafter scaled down its proposal. Id. ¶¶ 45-46. Another, more environmentally intrusive, proposal by another developer for a larger project for non-disabled senior citizens in another part of Mount Kisco, by contrast, attracted no community opposition and was treated favorably by the Planning Board. Id. ¶¶ 47-49.

Town & Country's revised proposal was ultimately submitted to the Zoning Board, which took the position that Town & Country requires a use variance rather than an area variance. Substantial community opposition was asserted before the Zoning Board. The Zoning Board applied the stricter use variance criteria based on the community opposition, denying Town & Country's application and thereby acting in an arbitrary and capricious manner. Animus of local residents toward senior citizens with disabilities was a significant factor in the decisions of the Planning Board and the Zoning Board rejecting Town & Country's proposals. Id. ¶¶ 63-70. Revenue that Town & Country would have obtained had it been permitted to expand, and housing for persons with disabilities, including the fictitious plaintiffs, has been rendered unavailable by reason of Defendants' actions. Id. ¶¶ 72-80.

Ripeness of the Federal Claims

Defendants argue that Plaintiff's ADA and FHA claims are not ripe because defendant Mount Kisco did not reach "a final decision regarding the application of the regulations to the property at issue." See Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 186 (1985). Specifically, Defendants argue that Plaintiff abandoned its application for a variance by not complying with the Appeal Board's requests to submit papers addressing Plaintiff's satisfaction of the criteria for a use variance — the only basis upon which the proposed development, according to the Zoning Board, would be permissible. See Zoning Board's Findings, dated November 14, 2002, at pp. 3-4, Ex. B to Def.'s Notice of Mot.

The ripeness argument implicates subject matter jurisdiction, which requires the Court to satisfy itself that such jurisdiction does exist and warrants examination of the decision itself, which is also referred to in the complaint. Such examination reveals that the Zoning Board denied the application on its merits. The decision does not on its face contemplate any further submissions or actions. Thus, the motion to dismiss is denied to the extent it is premised on an argument that the challenged Zoning Board action was not final.

Failure to State a Claim

Defendants further argue that Plaintiff has not alleged facts sufficient to make out a prima facie case of discrimination. The Supreme Court has held that, in complaints alleging prohibited discrimination, plaintiffs must merely comply with Rule 8 of the Federal Rules of Civil Procedure, giving defendants "fair notice of what [their] claims are and the grounds upon which they rest," and need not plead facts sufficient to make out a prima facie case of discrimination. Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 999 (2002); see also Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Under this standard, to survive a Rule 12(b)(6) motion to dismiss, a complaint need only provide a short and plain statement of the claim and the grounds on which it rests. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957).

Here, Defendants' contentions that the complaint fails to state a claim rest on analyses of Plaintiff's claims that draw inferences adverse to Plaintiff and thus are inappropriate as a basis of dismissal at the pleading stage. The complaint gives notice of Plaintiffs' discrimination claim, alleging that Defendants' negative actions on Town & Country's applications were "based to a significant degree upon the animus of the neighborhood toward having more people with disabilities live in the community" and that "those decisions [therefore] were based upon intentional discrimination towards people with disabilities." Am. Compl. ¶ 70, see also Am. Compl. ¶¶ 75, 80. Plaintiff alleges that Defendants took a number of adverse actions against it (and its potential residents) on the basis of disability. Plaintiff is not required to plead any additional facts giving rise to an inference of discriminatory intent. Having considered carefully all of the parties' arguments and the relevant pleadings, the Court cannot conclude that it appears beyond doubt that Plaintiff can prove no set of facts in support of its claims which would entitle it to relief. Defendants' motion to dismiss the complaint for failure to state a claim is, accordingly, denied.

Plaintiff's Motion for a Preliminary Injunction

Plaintiff seeks a preliminary injunction prohibiting Defendants from "continuing to impede Town & Country's attempt to provide housing for 46 more senior citizens with disability." Pl.'s Mem. of Law in Supp. of Preliminary Inj. at 11. The following discussion constitutes the Court's findings of fact and conclusions of law for purposes of Rule 52 of the Federal Rules of Civil Procedure.

In this Circuit, a grant of preliminary injunctive relief is generally appropriate only upon the movant's showing of (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor. Random House, Inc. v. Rosetta Books, LLC, 283 F.3d 490, 491 (2d Cir. 2002); Zervos v. Verizon New York, Inc., 252 F.3d 163, 172 (2d Cir. 2001). The moving party has the burden of establishing its entitlement to injunctive relief, including the prospect of irreparable harm. See International Brotherhood of Teamsters v. Local Union, No. 810, 19 F.3d 786, 789 (2d Cir. 1994). A preliminary injunction standard "requiring a clear or substantial showing of likelihood of success" applies where "[(1)] an injunction will alter, rather than maintain, the status quo, or [(2)] an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits." Forest City v. Town of North Hempstead, 175 F.3d 144, 150 (2d Cir. 1999). "[W]here a preliminary injunction is sought against a government action taken in the public interest pursuant to a statutory or regulatory scheme, the less-demanding `fair ground for litigation' standard is inapplicable, and therefore a `likelihood of success' must be shown." Id. at 149 (citation omitted). A preliminary injunction that has the effect of disturbing the status quo should be granted "only in those circumstances when the exigencies of the situation demand such relief." Massachusetts Coalition of Citizens v. Civil Defense Agency, 649 F.2d 71, 76 n. 7 (1st Cir. 1981).

Here, Plaintiff seeks the issuance of a preliminary injunction against government entities, effectively permitting it to raze its existing facility and build a substantially expanded facility. If granted, the injunction would afford Plaintiff substantially all of the relief sought in the action and would by no means merely preserve the status quo. A showing of likelihood of success on the merits of Plaintiff's claims would accordingly be required, in addition to the requisite showing of irreparable harm. Town of North Hempstead, 175 F.3d at 149-50. Plaintiff has failed to satisfy either criterion.

As to irreparable harm, Plaintiff has failed to proffer specific financial information establishing that Town & Country would be unable to operate its facility in the absence of permission to expand. Instead, Plaintiff has proffered vague and conclusory affidavits, and evidence of assertions before the Planning Board and Zoning Board, that larger facilities are more typical of the current market for assisted living facilities and that Town & Country's profits are substantially lower than those of its competitors due to its current size. Indeed, in a post-argument submission, Plaintiff conceded that Town & Country has recently secured a second mortgage, thereby obtaining additional operating cash flow. See letter dated April 14, 2003, at p. 2. Nor has Plaintiff shown irreparable harm on the part of the fictitious plaintiffs. Plaintiff represented at oral argument that the facility currently operates at less than full capacity, so there is no showing that any disabled senior citizen desiring to live at the Town & Country location has been denied that opportunity by reason of Defendants' actions.

Plaintiff has also failed to demonstrate a likelihood of success on the merits of its discrimination claims. Although Plaintiff contends that the neighborhood opposition was disability-based, it has not provided direct evidence of any such animus. The comments cited in the various hearing transcripts and minutes, and comments in an affidavit submitted by Defendants in opposition to the preliminary injunction motion, are specifically directed to concerns regarding the size of the proposed building in relation to the lot size and the single-family homes in the area, and to traffic relating to the expanded use. Although inferences can, of course, be argued, the record before the Court is insufficient to support a finding of a likelihood of success in establishing that Defendants' negative actions on Town & Country's proposals arose from intentional discrimination on the basis of the disabilities of the current and proposed senior citizen population rather than the aesthetic and zoning code considerations cited in the relevant decisions.

The cases principally relied on by Plaintiff to justify issuance of a preliminary injunction do not support grant of the requested relief on the current record. In Sunrise Development Inc. v. Town of Huntington, 62 F. Supp.2d 762 (E.D.N.Y. 1999), the court found express discrimination in the enactment of a zoning change specifically directed at thwarting the development at issue and irreparable harm on the part of the fictitious plaintiffs (although not the developer) based on a market study showing that there were actual potential customers for the facility. Further, in Sunrise Development Inc., the relief granted did not compel approval of the proposal. Rather, the zoning authorities were required to reconsider the proposal under the former, nondiscriminatory standard. In Hispanic Counseling Center, Inc. v. Village of Hempstead, 237 F. Supp.2d 284 (E.D.N.Y. 2002), the ordinance discriminated on its face on the basis of disability, prohibiting the type of use in the entire village, and an affidavit established to the satisfaction of the court that the plaintiff's facility was the only one of its type in the entire county and that expansion of the plaintiff facility was required to accommodate additional individuals who needed the services.

If and to the extent Plaintiff intends to press its state law claims that the Zoning Board applied the wrong standard and/or was arbitrary and capricious in determining that a use variance is necessary and that Town & Country failed to meet the criteria for such a variance, Plaintiff has similarly failed to demonstrate a likelihood of success on the merits. The zoning code provision cited by the Zoning Board on its face requires a variance in the event a building "containing a nonconforming use . . . [is to be] enlarged, altered, extended, reconstructed or restored or placed on a different portion of the lot or parcel of land occupied by such use . . ., nor shall any external evidence of such use be increased by any means whatsoever [absent a variance]." Comprehensive Zoning Law for the Village of Mount Kisco, Article VI, section 110-34.A (Ex. D to Notice of Mot. to Dismiss the Compl.). The minutes of the relevant Zoning Board proceedings, as well as the Zoning Board's written decision indicate, and Plaintiff does not contest, that Plaintiff declined to address the use variance criteria identified by the Board. See Zoning Board Findings, dated November 14, 2002, at pp. 3-5, Ex. B to Def.'s Notice of Mot.; Zoning Board Minutes of September 12, 2002 and October 15, 2002 meetings, Ex. C to Def.'s Notice of Mot. On this record, Plaintiff has failed to demonstrate a likelihood of success on the merits of its state and/or local law claims.

Accordingly, Plaintiff's motion for a preliminary injunction is denied.


For the reasons stated above, Defendants' motion to dismiss the complaint is denied. Plaintiff's motion for a preliminary injunction is also denied.

The parties are directed to meet promptly with Judge Yanthis for settlement purposes and entry of a scheduling order.



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