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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 ...

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