Scott E. Mollen
Scott E. Mollen ()

Land Use—Alcoholism and Substance Abuse Rehabilitation Home—Discrimination Suit Against a Town—Defendants Moved to Dismiss—Complaint Sufficiently Alleged That Zoning Code Was Discriminatory on Its Face—’Younger’ and ‘Colorado River’ Abstention Doctrines Inapplicable—Building Inspector Seemed to Change His Mind Solely Because of Community Opposition—Objections Based on Speculative, Conclusory and Prejudicial View of Proposed Residents’ Disabilities—Claim Based on Classification Determination, Not Ripe—Failure to Seek Use Variance or Other Form of Relief—Futility Exception Not Established—Facial Discrimination Claim Sufficiently Alleged—Applying for Use Variance More Burdensome Than Applying for Special Use Permit

The plaintiff, “a not-for-profit mental health and rehabilitation agency,” sought “to establish a sober living residence for women recovering from alcoholism and/or substance abuse [residence] at a two-acre property [site].” The two-story residence will house 16 women (residents). “The residence is not a detox facility, and no nursing or medical services will be provided there.” “Residents will have … completed a … treatment program and will be transitioning to a sober living environment before … integrating back into society.” The “residents will live together as a family … and assist each other in their recovery from alcoholism and/or substance abuse.” Their residents’ disabilities “make it difficult for them to socialize, hold employment and live with their families independently.”

The County Mental Health Department and a Substance Abuse Subcommittee of the Community Services Board had identified the need for the subject type of facility. The county advised that the residence should be located in “[a] populated location or a site located between 2 populated areas,” rather than in “a rural locale.” The site conforms with the county’s Request for Proposal.

The residence is located within the town’s R-12 zoning district. The R-12 District permits “as of right, single-family dwellings on at least 1/3 of an acre.” The town’s prior Zoning Code (Code) had defined “family” as “[o]ne or more persons occupying a dwelling unit as a single-non-profit housekeeping unit. More than five persons, exclusive of domestic servants, not related by blood, marriage or adoption, shall not be considered to constitute a family.” However, the town amended the Code to eliminate “the definition of ‘family.’” Thus, the term “family” was “purposefully not defined or otherwise limited in the current version of the … Code.”

The R-12 District permits with a special use permit, “multi-family apartments …, two-family residences, alcoholism and other rehabilitation centers, group homes, halfway houses, …, and child day-care centers. … A ‘convalescent home’ is not permitted in the R-12 District. … A ‘convalescent home’ is defined … as a facility that provides ‘nursing care.’” The residence will not provide nursing care.

On June 7, 2015, the town’s Building Inspector and Zoning Enforcement Officer (Building Inspector), stated that “after careful review of the information provided by the applicant, a review of the Building Code of NY and the … Code, the proposed construction of a single family dwelling for the purpose of Chemical Dependence Rehabilitation will not require a Special Use Permit or Site Plan approval.” However, after such letter had been sent, community opposition arose. The Building Inspector thereafter sent a June 15, 2015 letter, which “did an ‘about-face,’” by stating that further review of the plaintiff’s application was required and asked the plaintiff to “disregard my privious [sic] correspondence.” On June 18, 2015, “after publicly acknowledging that it ‘had no legal authority over whether or not [the residence] was permitted under the … Code,’ the Town Board … proceeded to take public comments” from members opposed to the residence. Thereafter, the Building Inspector determined that the “residence was not a single-family dwelling but a ‘convalescent home’ under the … Code and, therefore, was not permitted in the R-12 District.”

The plaintiff had not provided the Building Inspector with “any new information” between the time of the Building Inspector’s initial determination and his final determination. Moreover, the plaintiff had never indicated that “nursing care would be provided at the residence.” Thus, the court opined that it was “reasonable to believe that [the Building Inspector] changed his mind solely because of community opposition to [the] residence.”

The plaintiff thereafter appealed to the town’s Zoning Board of Appeals (ZBA). The ZBA was advised that the residence would not provide “nursing care or any type of medical care.” Many neighbors appeared at a public hearing and objected to the residence. The ZBA determined that the residence was “not a ‘single family dwelling’ because ‘it would not be compatible, in terms of its size and operating characteristics, with the predominantly one family dwellings that surround the … property’ and that, even though no nursing care was not to be provided, the residence is a ‘convalescent home’ not permitted in the R-12 District.”

The ZBA determination noted the community opposition and cited (a) the size of the residence and the number of proposed residents; (b) the residents’ plan to pay rent and receive counseling and supervision; (c) concern that the residence’s “‘no-smoking’ policy” would cause residents “to congregate at the public frontage of the site, adjacent to a narrow roadway, and it is dangerous on that particular road;” (d) the residents’ relatively short-term occupancy (five months); the “lack of any criminal background check” for residents; the residence’s “Open Campus” atmosphere and concern that “participants of unknown criminal background will be wandering through” a “neighborhood of one family dwellings which is populated by many children.”

The court found that none of the neighbors’ arguments “are proper or usual factors for a municipality to consider in determining whether a residence is a ‘single family dwelling’ for the purpose of a zoning code.” The court opined that “the neighborhood objections were based on a speculative, conclusory, and prejudicial view of the disabilities of the people who will reside in [the] residence.”

The ZBA had also found that the residence was “not consistent with a one-family dwelling,” because it would be owned by a not-for-profit organization that would seek a tax exemption. The ZBA further asserted that the proposed structure, which included a “lounge and recreation room,” did not appear to be a single-family dwelling, although “the … Code did not discuss how the structure of a residence would transform a single-family dwelling into something else.”

Additionally, the ZBA had noted that the NYS “Office of Alcoholism and Substance Abuse Services (‘OASAS’),” had stated that “the … residence is a ’8361 Residential Care’ use … that ‘would require approval of a special use permit.’” The court stated that “under the … Code, an ’8361 Residential Code’ residence is not prohibited from the R-12 District but instead would require a special use permit from the Town.” The court explained that “[a]n ’8361 Residential Code’ residence or facility refers to a code set by the [U.S. Dep't] of Labor.”

The complaint alleged violations of the Fair Housing Act (FHA) and Title II of the Americans with Disabilities Act (ADA) in that “(a) the Defendants improperly relied upon neighborhood opposition, which was based on … unfounded conclusions, speculations, stereotypes and prejudices regarding people with disabilities …, (b) Defendants deviated from the … Code and their usual practices in determining that the … residence is a not a single-family dwelling, (c) Defendants improperly determined that the … residence is a ‘convalescent home,’ even though the … Code defines such a home as one that provides nursing care and the record” established that nursing care would not be provided at the residence, “(d) Defendants’ determination that the … residence is a ‘convalescent home’ and, … not permitted in the R-12 District, is contrary to OASAS’ determination that the residence is a ’8361 Residential Care’ use and should be allowed in the zone with a special permit, and (e) even if the … residence is a ‘convalescent home,’ the Complaint alleges that the … Code is facially discriminatory in violation of the FHA because it excludes convalescent homes for people with disabilities from the R-12 District but allows larger residences and facilities to exist there with a special permit that are far more intrusive than Plaintiff’s … residence.”

In moving to dismiss pursuant to FRCP 12(c), the defendants argued that no final determination had been made as to the residence and the plaintiff could apply for a use variance, inter alia, before any decision would be final. The defendants also asserted that the “futility exception” only applies “when the relevant agency ‘lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.’” The defendants contended that decisional precedent “established that a plaintiff is not excused from seeking a use variance merely because a municipality and its officials were openly hostile to a proposed use of real property.”

Additionally, the defendants asserted that “the Court should abstain from deciding this case under the Younger abstention doctrine” (Younger), since the plaintiff filed an Art. 78 proceeding seeking the same or similar relief, such Art. 78 proceeding “implicates compelling state interests because it involves the application of New York Town Law as well as the local [town] laws … in determining land use issues,” and the plaintiff’s “federal claims can be adequately addressed by the New York State Supreme Court.”

The defendants further argued that, inter alia, “the Court should abstain … under the Colorado River abstention doctrine,” (Colorado) since the federal and state court actions “involve the same parties and land use issues,” “[t]he New York Supreme Court has jurisdiction of Plaintiff’s land use claims,” “the forum for the state court action … is more geographically convenient” than the federal forum, the court “should seek to avoid piecemeal litigation because litigating both actions creates the potential for inconsistent rulings,” “although both actions were filed on March 15, 2016, the verification attached to the state court complaint is dated March 14, 2016, and, therefore, the state court action should be considered to have proceeded this action.” Defendants also asserted that since the court “would have to first decide issues of state law before addressing [the] federal claims” “there is little concern that the state court will inadequately protect Plaintiff’s interests or that Plaintiff would be barred from seeking relief because the statute of limitations has not expired, nor is it in danger of expiring in the near future.”

The plaintiff countered that a variance could not be obtained since the ZBA already found that the residence “would not be compatible in terms of size and operating characteristics, with the predominantly one family dwellings that surround the … property.” Thus, it could not satisfy an essential element for a variance. The plaintiff also argued that the defendants relied “on an antiquated reading of the Younger … approach” and that Younger applies only to “state criminal prosecutions,” “civil enforcement proceedings” and “civil proceedings that implicate a State’s interest in enforcing the orders and judgments of its courts.”

Additionally, the plaintiff also argued that Colorado River doctrine is inapplicable since the subject action “is not parallel to the state court action,” i.e., this case involves claims that “the ZBA’s determination and the … Code are discriminatory under federal law,” whereas the state court action argues that the ZBA’s determination was arbitrary and capricious and did not seek annulment of the town’s Code or to recover special compensatory damages and attorneys’ fees. The plaintiff also argued that Colorado River is inapplicable because the controversy did not involve “a res,” “the two forums are located close together,” “dismissing the federal claims would do nothing to avoid piecemeal litigation,” since the defendants did not move to dismiss plaintiff’s claims that “the ZBA’s determination and the town’s Code are discriminatory,” “this action was filed before the one in state court,” “a determination in the state court action cannot fully compensate Plaintiff for past injuries because only ‘incidental’ damages are available in an Article 78 proceeding,” the constitutionality of the Code “cannot be challenged in such a proceeding,” and “federal law controls Plaintiff’s causes of action because they are based on federal statutes.”

The court found that defendant’s “classification determination” was not ripe for adjudication. However, the court held that plaintiff’s claim that the challenged provisions of the Code were facially discriminatory were ripe for determination.

The court was “skeptical” as to how the “residence could be deemed to be a ‘convalescent home’ without the provision of nursing care.” However, the court found that the ZBA’s classification determination did not constitute “a final decision regarding Plaintiff’s … residence.” The complaint did not allege that the plaintiff applied for “a building permit, a use variance, or any other form of relief before bringing this action” and “[s]uch actions are necessary before a decision can be considered final.” Although the plaintiff cannot apply for a special use permit, since the defendants had determined the residence is a convalescent home, the plaintiff had also not sought a use variance or any other form of relief. Thus, the court held that the plaintiff’s classification claim was not ripe for adjudication and further held that the plaintiff did not demonstrate that “it is entitled to the futility exception.”

The futility exception requires that a party demonstrate “the inevitability of refusal of their application, taking into consideration factors such as the defendants’ hostility, delay and obstruction” and “that plaintiff has filed at least one meaningful application.” Controlling case law explained that the futility exception applies “when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.” The court found that nothing in the complaint or in the ZBA’s decision “plausibly” suggested that “Defendants would not be amenable to other suggestions, alternative plans, and/or negotiations involving a way that the … residence can exist that is satisfactory for all parties involved.” Although the complaint alleged that “there was public hostility towards the … residence,” the court stated that this alone, “does not suffice to establish futility.”

That court further explained that “a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face” and that “a claim of facial discrimination is ripe for adjudication.” The court opined that the alleged facts plausibly suggested that “the relevant sections of the … Code are facially discriminatory … .”

The court then stated that “[f]acial challenges to statutes under the FHA and ADA are generally evaluated under the rubric of intentional discrimination … using the burden-shifting framework established in McDonnell Douglas v. Green, 411 U.S. 792 (1973).” “A plaintiff makes out a prima facie case of intentional discrimination under the [FHA] merely by showing that a protected group has been subjected to explicitly differential,” i.e., discriminatory treatment. “Though a plaintiff may eventually be required to show discriminatory animus in order to prevail on its claim, such a showing is not necessary to survive a motion to dismiss.”

Here, the Code “allows large residences and facilities for non-disabled people to exist in the R-12 District but not dwellings such as Plaintiff’s … residence for people with disabilities.” “Facilities for non-disabled people” are permitted “in the zone with a special permit such as apartment buildings, multi-family dwellings, … and child day-care centers” and these structures are “far more intrusive and far less single family in nature than the proposed … residence.” The complaint further alleged that by “excluding convalescent homes for people with disabilities from the zone but allowing with a special permit larger residences and facilities that are less residential in nature, the … Code discriminates against people with disabilities on its face and is thus in violation of the [FHA].”

The complaint alleged that “these larger residences and facilities are allowed in the R-12 District only after obtaining a special use permit.” Although the plaintiff had never applied for a special use permit, it appeared that the defendants’ “determination that Plaintiff’s … residence is a convalescent home precludes this avenue of relief … .” Thus, the plaintiff “will need to apply for a use variance, which is a more burdensome process than applying for a special use permit.”

Accordingly, the court found that the complaint alleged “facts plausibly suggesting that the … Code treats Plaintiff differently than similarly situated individuals without disabilities and that the Code is discriminatory on its face.”

The court declined to abstain from deciding this case. The court cited the plaintiff’s arguments, as well as the fact that the defendants failed to explain how the Art. 78 proceeding was “akin to a criminal prosecution.” “The action was not initiated by ‘the State in its sovereign capacity’ but by Plaintiff, which is a private corporation” and “no state authority conducted an investigation into Plaintiff’s activities, and no state actor lodged a formal complaint against Plaintiff.” Therefore, the court held that Younger was inapplicable.

The court also distinguished this action from the state court action. The court stated that generally, “‘federal courts are obliged to decide cases within the scope of federal jurisdiction’” and “[a]bstention is not in order simply because a pending state-court proceeding involves the same subject matter.’” The subject action involved “a challenge to the town’s Code as being facially discriminatory,” and the Art. 78 proceeding “challenges the ZBA’s determination as being arbitrary and capricious under state law.” Moreover, the plaintiff “is seeking compensatory damages and attorneys’ fees in this action, which it is not doing in the Article 78 proceeding.” The court adopted the plaintiff’s arguments as to the remaining Colorado River factors. Accordingly, the court dismissed the claims that the defendants’ classification determination violated the FHA and ADA without prejudice, but denied the defendants’ motion to dismiss the claims that the Code is facially discriminatory in violation of the FHA and ADA.

Comment: This decision illustrates how difficult it is to locate social service facilities, including alcohol and drug programs, in communities. Recently, Mayor Bill de Blasio announced a plan to establish 90 new homeless shelters. The City acknowledged that siting such facilities will be a challenge. As the subject case illustrates, communities often oppose such facilities by bringing political pressure upon public officials. Additionally, either the social services program or the community may occasionally resort to litigation.

The court had also explained that under New York law, “a special use permit, unlike a variance, authorizes the use of property in a manner expressly permitted by the zoning ordinance under stated conditions … .” “The inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood. … Thus, the burden of proof on an owner seeking a special use permit is lighter than on an owner seeking a variance.” Although some ZBA members stated that the residence “would not fit in with the neighborhood” and did “not fit with the character of the neighborhood in any way,” the court noted that those opinions did “not preclude the possibility that a variance or some other form of relief could be agreed upon by the parties.”

The court also stated that even if the defendants argued that the Code was not discriminatory, since the R-12 District permits, with a special use permit, “group homes operated for disabled persons not requiring nursing care, it would be suspicious of that argument because of the distinction between persons with a disability severe enough to require nursing care and persons with a disability not severe enough to require nursing care.” Courts have previously held that the ADA bars “discrimination on the basis of severity of disability.”

Rehabilitation Support Services v. Town of Esopus, New York, and Town of Esopus Zoning Board of Appeals, 1:16-CV-0307, NYLJ 1202775359625, at *1 (N.D.N.Y., Decided Dec. 8, 2016), Suddaby, J.