Forest City Daly Housing, Inc. v. Town of North Hempstead

• Decision Date: 16 April 1999
• Docket Number: Docket No. 98-7881
• Citation: 175 F.3d 144
• Parties: 15 NDLR P 85 FOREST CITY DALY HOUSING, INC., d/b/a Four Corners Development, and "John Does," Plaintiffs-Appellants, v. TOWN OF NORTH HEMPSTEAD, Town of North Hempstead Building Department, Donald Alberto, Commissioner of Buildings, and Town of North Hempstead Board of Zoning Appeals, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 144

175 F.3d 144

15 NDLR P 85

FOREST CITY DALY HOUSING, INC., d/b/a Four Corners Development, and "John Does," Plaintiffs-Appellants, v. TOWN OF NORTH HEMPSTEAD, Town of North Hempstead Building Department, Donald Alberto, Commissioner of Buildings, and Town of North Hempstead Board of Zoning Appeals Defendants-Appellees.

Docket No. 98-7881

United States Court of Appeals Second Circuit.

Argued March 15, 1999.

Decided April 16, 1999.

Robert B. Hirsch, Arent Fox Kintner Plotkin & Kahn, New York, N.Y. (David N. Wynn and Michael S. Cryan, of counsel), for Plaintiffs-Appellants.

Robert S. Smith, Paul, Weiss, Rifkind, Wharton & Garrison, New York, N.Y. (Holly D. Jarmul, Paul, Weiss, Rifkind, Wharton & Garrison, and Howard S. Miller, Town Attorney for Town of North Hempstead, of Counsel), for Defendants-Appellees.

Before: WALKER and CABRANES, Circuit Judges, and TSOUCALAS, ^* Judge, Court of Int'l Trade.

JOSE A. CABRANES, Circuit Judge:

We consider here whether, in the circumstances presented, federal antidiscrimination statutes require a municipality to make accommodations in order to permit construction of an "assisted living facility"--a facility designed to provide care, in a residential environment, for individuals with certain disabilities--on land zoned for commercial uses only. We conclude that such accommodations are not required unless it can be shown that, notwithstanding the commercial zoning, building permits would be granted for comparable "traditional" residences--that is, residences in which persons without disabilities can live--in the relevant area. Because plaintiffs in this case have not demonstrated that they are likely to make such a showing, we affirm the order of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge ) denying their motion for a preliminary injunction against the municipality's interference with construction of their assisted living facility.

I. BACKGROUND

Plaintiff Forest City Daly Housing, Inc., doing business as Four Corners Development ("Four Corners") is the developer of the proposed assisted living facility (the "Facility"), which is designed for individuals--primarily the aged--who require regular assistance with daily activities, but not skilled nursing care. The Facility would consist of 72 individual units, which are designed to create a home-like atmosphere but differ from traditional apartments or condominium units in that they are relatively small (300 to 600 square feet) and lack full kitchens. The Facility also would include a commercial kitchen for preparation of three daily meals, and common areas that are more expansive than those in most residential buildings. The exterior of the Facility is designed to appear residential, but the proposal calls for only one off-street parking space for every two units. A full-time staff would provide around-the-clock assistance with activities such as bathing, dressing, toileting, and eating, but skilled nursing care would not be provided. Although the Facility would impose no age or disability restrictions, studies in the record show that the "typical" resident of an assisted living facility is over 80 years old and requires assistance in one or more of these activities.

Four Corners seeks to build the Facility on a site at 320-334 Main Street in Port Washington, New York (the "Site"), which is within the Town of North Hempstead (the "Town"). Across Main Street from the Site is Long Island Sound, the town dock, and Sunset Park, which is a waterfront recreation area with ballfields and a concert shell. Four Corners obtained options to purchase the six parcels of real property that comprise the Site. The existing buildings on those parcels currently are used by various businesses, including an insurance office, a consignment shop, a cabinetmaker, a towing service, and an automobile repair shop.

Under the Town's zoning ordinance, enacted by the Town Board pursuant to N.Y. Town Law § 261, the front of the Site is zoned "Business B" from Main Street back to a depth of 100 feet, and the rear of the Site is zoned "Residence C." Nursing homes, but not ordinary residences, are among the uses specifically permitted in Business B zones. Throughout these proceedings, the parties appear to have agreed that the Facility is permissible in the Residence C zone, but that it is neither a "nursing home" (which is characterized primarily by the availability of skilled nursing care) nor any other type of use permitted in the Business B zone.

At least two procedures exist through which a use might be permitted in a given area despite the fact that it is not among those uses listed by the zoning ordinance for the applicable zone. First, the Town's Board of Zoning and Appeals (the "BZA"), which was established by the Town Board ¹ pursuant to the requirements of N.Y. Town Law § 267, may "vary the application of th[e zoning] ordinance and authorize the issuance of permits in harmony with the general purpose and intent" thereof. North Hempstead Code § 70-225.A. In particular, "[a]ny use of the same general character as any of the uses ... specifically permitted may be authorized by the Board of Zoning and Appeals after a public hearing." Id. § 70-140. Second, the Town Board itself may, by adopting an amendment to the zoning ordinance, rezone a certain parcel to a zoning classification in which the requested use is specifically permitted. See N.Y. Town Law § 264 (governing the procedures for adoption of zoning ordinances and amendments thereto).

The record reflects that the latter procedure--for rezoning--has been followed on several occasions. Most importantly, the Town Board in 1980 rezoned a parcel at 372 Main Street, within 500 feet of the Site, from Business B and Residence C to "Golden Age Residence District." Permitted uses in the Golden Age Residence District are limited to "[a] multiple-residence dwelling or dwellings specifically designed for use and tenancy by senior citizens," and "[a]ccessory buildings" serving such dwellings. North Hempstead Code § 70-90. Similar rezonings allowed residential uses on two parcels in Albertson and Manhasset, which--like Port Washington--are unincorporated areas within the Town of North Hempstead. By contrast to these examples of rezoning, there is no evidence that the mechanism of a special use permit has ever been used to authorize residential uses in a Business B zone.

Nevertheless, rather than seek rezoning by the Town Board, Four Corners applied for a special use permit from the BZA on the theory that the Facility would be "of the same general character," North Hempstead Code § 70-140, as a nursing home, which--as noted above--is a permitted use in the Business B zone. During the spring of 1997, Town officials held an introductory meeting with representatives of Four Corners for the purpose of discussing the various options for seeking a building permit. According to the preliminary injunction hearing testimony of Michael Levine, who at the time of the meeting was an assistant to the Town's Commissioner of Planning and Economic Development, the zoning counsel for Four Corners indicated that the choice to seek a special use permit was based on a desire to avoid the unit-per-acre density limitations for Golden Age Residence Districts and other residential zones. ²

In April 1997, Four Corners filed an application for a building permit with the Town of North Hempstead Building Department, which is responsible for determining whether or not a proposed building plan is permissible within the existing zoning code. The Building Department's Notice of Disapproval, as amended on June 25, 1997, stated that the building plan failed to comply with the Town's zoning ordinance in five areas, only two of which are at issue in this case. First, the Building Department determined that, of the uses permitted within a Business B zone, the Facility was most similar to a nursing home. The Building Department concluded that the Facility was not actually a nursing home, and thus that a permit could not be granted; however, the Facility "appeared similar enough [to a nursing home] to send [the application] to the Zoning Board" for consideration of whether a special use permit should be granted. Second, the building plan for the Facility included only 36 parking spaces, rather than the 56 spaces required for a nursing home with the same number of beds.

Four Corners appealed to the BZA, seeking, inter alia, a special use permit and a parking variance. ³ After the required public hearing, the BZA denied the requested relief in a 26 page written decision. With respect to the special use permit, the BZA reasoned that, in light of the absence of skilled nursing care, the residential character of the individual units, and the potential for relatively healthy residents, the Facility would not be "of the same general character as" a nursing home. Instead, the BZA concluded that "[t]he structure of the proposed facility ... is that of an apartment house with specialized services, not a nursing home." With respect to the parking variance, the BZA found that 36 spaces would be inadequate to support automobiles parked by Facility employees, any privately employed aides, and the residents themselves because the Facility did not intend to restrict automobile ownership by residents, the BZA rejected the developer's assertion that few or no residents would use the spaces provided.

In March 1998, Four Corners--acting on behalf of itself and an undefined number of "John Does," described as unidentified future residents of the Facility--filed suit against the Town, the Building Department, Buildings Commissioner Donald Alberto, and the BZA. The complaint alleges that defendants violated the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Fair Housing Act (the "FHA"), as amended by the Fair...