Innovative Health Systems, Inc. v. City of White Plains

• Decision Date: 26 June 1997
• Docket Number: P,Nos. 1-3,No. 1032,D,s. 1-3,1032
• Citation: 117 F.3d 37
• Parties: 7 A.D. Cases 1284, 23 A.D.D. 197, 10 NDLR P 154 INNOVATIVE HEALTH SYSTEMS, INC., Martin A., Maria B., Sophie C., and John Does,laintiffs-Appellees, v. CITY OF WHITE PLAINS, The Zoning Board of Appeals of White Plains, Terrence Guerrier, Chair of the Zoning Board of Appeals of White Plains, White Plains Planning Board, and Mary Cavallero, Chair of the White Plains Planning Board, Defendants-Appellants, S.J. Schulmann, Mayor of the City of White Plains, Defendants. ocket 96-7797.
• Court: U.S. Court of Appeals — Second Circuit

Page 37

117 F.3d 37

7 A.D. Cases 1284, 23 A.D.D. 197, 10

NDLR P 154

INNOVATIVE HEALTH SYSTEMS, INC., Martin A., Maria B., Sophie C., and John Does, Nos. 1-3, Plaintiffs-Appellees, v. CITY OF WHITE PLAINS, The Zoning Board of Appeals of White Plains, Terrence Guerrier, Chair of the Zoning Board of Appeals of White Plains, White Plains Planning Board, and Mary Cavallero, Chair of the White Plains Planning Board Defendants-Appellants S.J. Schulmann, Mayor of the City of White Plains, Defendants.

No. 1032, Docket 96-7797.

United States Court of Appeals Second Circuit.

Argued Jan. 27, 1997.

Decided June 26, 1997.

Sally Friedman, Ellen M. Weber, Susan L. Jacobs, Paul N. Samuels, Legal Action Center of the City of New York, Inc., New York City, for Defendants-Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Stephen M. Marcellino, Richard S. Oelsner, Richard L. Elbert, and Guy J. Levasseur, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, of counsel) for Plaintiffs-Appellees.

Mary Jo White, United States Attorney for the Southern District of New York, New York City (Maya Wiley and James L. Cott, Assistant United States Attorneys for the Southern District of New York, New York City, of counsel), for Amicus Curiae United States of America.

McCullough, Goldberger & Staudt, White Plains, NY, for Amicus Curiae Cameo House Owners, Inc.

Before: WALKER, PARKER, and HEANEY, ^* Circuit Judges.

HEANEY, Senior Circuit Judge:

In December 1992, plaintiff-appellee Innovative Health Systems, Inc. ("IHS"), an outpatient drug- and alcohol-rehabilitation treatment center, began efforts to relocate to a building in downtown White Plains. After over a year of seeking permission from the city, IHS was ultimately denied the necessary building permit by the White Plains Zoning Board of Appeals ("ZBA"). On November 14, 1995, plaintiffs-appellees, IHS and five individual clients, initiated this action against the City of White Plains; Mayor S.J. Schulmann; the ZBA; Chair of the ZBA, Terrence Guerrier; the White Plains Planning Board; and Chair of the Planning Board, Mary Cavallero, (collectively, "the City"), alleging that the ZBA's zoning decision violated both Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 (1994), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994). The plaintiffs-appellees moved for a preliminary injunction to prevent the City from interfering with IHS's occupation of the new site. The City cross-moved to dismiss the complaint. In a detailed and thorough opinion, the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., Judge) granted the preliminary injunction and denied the motion to dismiss, except with respect to Mayor Schulmann. Innovative Health Sys. v. City of White Plains, 931 F.Supp. 222 (S.D.N.Y.1996). The remaining defendants appeal. We affirm except with respect to one individual client, Martin A.

I. Background

In 1992, Dr. Ross Fishman, Executive Director of IHS, decided that the program should move from its current facility to a building located in downtown White Plains. The new site was more than five times as large as the current site and was closer to a bus line and to other service providers that IHS clients frequently visit. Dr. Fishman planned to expand the services offered by IHS at the new site to include a program for children of chemically dependent persons. Therefore, IHS predicted an increase in the number of clients it would serve.

In December 1992, the Deputy Commissioner of Building for the City of White Plains informed IHS that its proposed use of the downtown site--counseling offices with no physicians on staff for physical examinations or dispensing of medication--qualified as a business or professional office under White Plains' zoning ordinance and thus would be permissible in the zoning district. In January 1994, Dr. Fishman signed a lease for the new space. IHS paid a monthly rent of $8,500 from July 1, 1994 to June 30, 1995 and has paid $6,000 per month since July 1995. The leased space includes a section that formerly had been used as retail space. Dr. Fishman initially intended to renovate the former retail space for the treatment program and sub-lease the remaining space, which had previously been used as an office. In April 1994, IHS filed an application with the White Plains Department of Building for a building permit. Because the application requested a change of use from "retail" to "office," the Commissioner of Building ("Commissioner") referred it to the Planning Board for approval as required by the local zoning ordinance.

The application provoked tremendous opposition from the surrounding community, including Cameo House Owners, Inc. ("Cameo House"), a co-operative association representing resident-owners who lived in the remainder of the downtown building in which IHS sought to relocate, and Fashion Mall Partners, L.P. ("Fashion Mall"), the owner of a shopping mall located near the proposed IHS site. The Planning Board held two public meetings on the proposed use at which the opponents expressed their concern about the condition and appearance of people who attend alcohol- and drug-dependence treatment programs and the effect such a program would have on property values. Opponents also argued that the proposed use constituted a "clinic" and that, therefore, under the zoning ordinance, the use was a "hospital or sanitarium," an impermissible use in the zoning district. In response to this argument, at the Planning Board's request, the Commissioner reconsidered and reaffirmed his previous determination that the proposed site constituted permitted "office" use.

Because continued opposition caused delay and additional costs, IHS withdrew its application from the Planning Board. It instead applied to the Commissioner for a permit to renovate the former retail section of the downtown site, which did not involve a change of use or the Planning Board's approval. Again, however, the application was vehemently opposed by members of the surrounding community. ¹

To resolve the dispute, the Commissioner sought review of his decision by the White Plains Corporation Counsel. In his written opinion, the Corporation Counsel stated that, absent compelling authority to the contrary, the Commissioner's decision should stand. The Corporation Counsel considered the opponents' argument under the zoning ordinance and concluded that the Commissioner's interpretation was correct. ² Accordingly, the Commissioner issued his final determination that the use was permitted and the Department of Building issued the building permit to IHS.

Cameo House and Fashion Mall immediately appealed the Commissioner's decision to the ZBA, requesting an interpretation of the zoning ordinance that an alcohol-treatment facility is not permitted in the relevant zoning district. The ZBA conducted a two-day public hearing on the matter, at which community members continued to voice strong opposition to having a drug- and alcohol-dependency treatment center in the downtown location. They again focused largely on fears of jeopardized safety and falling property values. ³ The opposition also pressed the same zoning arguments rejected by the Commissioner and the Corporation Counsel. IHS relied on the reasoning of the previous decisions and urged the ZBA to consider their consistency with already-permitted uses in the same zoning district. Specifically, IHS reminded the board that the zoning district of its former location also excludes "hospitals and sanitaria" and that several other mental health professionals and social workers practiced in the district of the proposed site.

On July 5, 1995, the ZBA voted four-to-one to reverse the Commissioner's decision. The Board did not issue a written resolution, as required by the zoning ordinance, ⁴ but rather stated on the record that, based on its understanding of the services IHS provides, it is better classified as a clinic than an office. Absent in their discussion, however, was any reference to the zoning ordinance or the Commissioner's interpretation.

IHS and five individual clients initiated this action against the City, alleging that the revocation of the building permit constituted discrimination and differential treatment based on a disability as against both the individual clients and the program that assisted them. They also claimed that even if the zoning decision was not discriminatory, the City should have permitted the relocation as a reasonable accommodation. In February 1996, they moved for a preliminary injunction against the City to prevent it from interfering with the occupation of the downtown site.

The City opposed the motion and moved for dismissal, arguing: (1) zoning decisions do not fall within the scope of the ADA or the Rehabilitation Act, (2) the appellees lack standing under the ADA, (3) the federal statutes do not accord preferential treatment to persons with disabilities, and (4) neither IHS nor the individual clients have demonstrated irreparable harm or a likelihood of success on the merits. The district court granted the preliminary injunction and denied the motion to dismiss, except as against the Mayor. The City now appeals, raising essentially the same arguments.

II. Preliminary Injunction

We have jurisdiction to consider an appeal from the grant of a preliminary injunction as an appeal as of right under 28 U.S.C. § 1292(a). The district court found, as is required for the grant of a preliminary injunction, that the appellees demonstrated that they would suffer irreparable harm absent the injunction and that they are likely to succeed on the merits of their discrimination claim. ⁵ See Shapiro v. Cadman Towers Inc., 51 F.3d 328, 332 (2d Cir.1995). Although generally we review the grant of preliminary injunction for an abuse of discretion, id., where, as here, the district court made the requisite...