Innovative Health Systems v. City of White Plains, 95 CV 9642 (BDP).
| Decision Date | 12 June 1996 |
| Docket Number | No. 95 CV 9642 (BDP).,95 CV 9642 (BDP). |
| Citation | 931 F. Supp. 222 |
| Parties | INNOVATIVE HEALTH SYSTEMS, INC., Martin A., Maria B. and John Does Nos. 1-3, Plaintiffs, v. The CITY OF WHITE PLAINS, S.J. Schulman, Mayor of the City of White Plains, the Zoning Board of Appeals of White Plains, Terrence Guerriere, Chair of the Zoning Board of Appeals of White Plains, White Plains Planning Board, Mary Cavallero, Chair of the White Plains Planning Board, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Susan L. Jacobs, Sally Friedman, Legal Action Center of the City of New York, New York City, for Plaintiff.
Maya Wiley, James Cott, Asst. U.S. Attys., New York City, for U.S.
Richard S. Oelsner, Richard Elbert, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, John G. Callahan, Corporation Counsel's Office, City of White Plains, White Plains, NY, for Defendants.
Plaintiff Innovative Health Systems, Inc. ("IHS") is a certified New York State treatment program for individuals with alcohol and drug dependency. Plaintiffs Martin A. and Maria B. are current clients of IHS. Plaintiffs John Does 1-3 are yet-to-be-identified prospective clients of IHS.
The plaintiffs commenced this action against defendants City of White Plains, New York, S.J. Schulman, Mayor of the City of White Plains, the Zoning Board of Appeals of White Plains ("ZBA"), Terrence Guerriere, the past Chair of the ZBA, the White Plains Planning Board, and Mary Cavallero, the Chair of the White Plains Planning Board, alleging that defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by refusing to permit IHS to operate its treatment program in downtown White Plains. Before this Court are plaintiffs' motion for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and defendants' motion to dismiss the complaint, pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. The United States Department of Justice filed a brief as amicus curiae in opposition to defendants' motion to dismiss. For the reasons set forth below, plaintiffs' motion for a preliminary injunction is granted. Defendants' motion to dismiss is granted in part and denied in part.
The following facts are alleged in the complaint and therefore assumed to be true for purposes of defendants' motion to dismiss. Since 1985, IHS has operated at 7 Holland Avenue on the outskirts of White Plains. In January 1994, IHS leased the first floor of a building known as 33 South Broadway in downtown White Plains. A separate part of the building, with no shared space or common areas, is used for residential purposes and is known as Cameo House. The building is in a BR-4 zoning district, which is a high density, mixed use zone, permitting a combination of "retail, office, governmental, and service business uses appropriate for the role of the City as a regional center, in addition to encouraging high density housing in combination therewith." Zoning Ordinance § 5.5.1.9.
In April 1994, IHS filed an application with the White Plains Department of Building for a building permit to renovate the southerly portion of 33 South Broadway. Because the southerly portion had previously been used as a retail furniture store, the Planning Board's approval of IHS' change of use was required. Thus, the Commissioner of Building referred IHS' change of use application to the Planning Board for site plan approval as required by § 7.2.2 of the Zoning Ordinance. On May 3, 1994, the Deputy Commissioner of Building informed the Planning Board that the Commissioner had concluded that IHS' proposed use of the South Broadway site for its alcohol and drug treatment program was a permitted "office" use in that location.
IHS' application precipitated opposition from Cameo House Owners, Inc., a co-operative association representing resident owners of Cameo House, from Fashion Mall Partners, L.P., the owner of "The Westchester," and from other members of the community (collectively "certain members of the community"). On May 11 and June 8, 1994, the Planning Board held public meetings about IHS' proposed use, at which certain members of the community objected to the "condition and appearance" of IHS' client base, and expressed concern that a treatment program would depress the market value of their apartments. In addition, they argued that a treatment program should not be considered a business/professional office but, rather, a "clinic" falling within the Zoning Ordinance's definition of "hospitals or sanitaria," which is not a permitted use in the BR-4 zoning district in which the building is located. Zoning Ordinance § 6.7.5.1.
The Planning Board requested the Commissioner of Building to reconsider his determination that IHS' proposed use was a permitted "office" use. On July 21, 1994, the Commissioner reaffirmed his previous determination. In August 1994, however, IHS withdrew its change of use application, because of the opposition from certain members of the community to its plans "and the delay and mounting costs resulting from the Planning Board's review of its ... application."
On August 9, 1994, IHS applied to the Commissioner of Building for a building permit to renovate the northerly portion of the leased premises, which had previously been used as offices, and thus, already had the necessary use approval from the Planning Board. In September and October 1994, the opponents submitted letters to the Commissioner of Building and to the Mayor opposing IHS' proposed use. On October 26, 1994, Mary Cavallero, Chair of the Planning Board wrote a memorandum to the Commissioner of Building expressing the Planning Board's opposition to locating IHS' treatment program in the building. The Commissioner of Building requested the White Plains Corporation Counsel to review IHS' proposal and the Commissioner's own conclusion that IHS' program was a permitted use. After being advised of the Corporation Counsel's legal opinion, the Commissioner of Building issued a determination, in a letter dated December 14, 1994, that IHS' proposed use "is considered an office use."
On December 19, 1994, the Corporation Counsel issued a written legal opinion to the Commissioner of Building. The opinion concluded that "it is our opinion that your interpretation is correct and that the proposed use may be permitted in the chosen location." The Corporation Counsel rejected the argument of certain members of the community that the treatment program should be deemed a "clinic" as unpersuasive: "opponents have fixated on the word `clinic,' but have ignored the initial part of the definition." On January 23, 1995, the Department of Building issued a building permit for IHS to renovate the space.
On December 27, 1994, Cameo House Owners and Fashion Mall Partners appealed the Commissioner of Building's determination to the ZBA. From April 5 through May 3, 1995, the ZBA conducted a public hearing pursuant to § 10.4.3 of the Zoning Ordinance. The complaint alleges that the testimony and written statements from certain members of the community during this hearing reveal that the basis of their objections to the siting of the IHS treatment program was bias against, and hostility towards, IHS' clients, — individuals seeking treatment for alcohol and drug dependency.
On July 5, 1995, allegedly without legal explanation, the Zoning Board voted 4-1 to reverse the prior determinations of the Commissioner of Building that IHS' treatment program was a permitted "office" use. The record of the ZBA's vote contains ZBA members' statements that, because IHS provides outpatient counseling and related services, its treatment program is to be considered a "hospitals or sanitaria" use. The complaint alleges, however that other counseling services and outpatient medical care facilities are permitted to operate in the BR-4 zoning district, and have not been categorized as "hospitals or sanitaria."
For example, counseling activities are conducted in psychiatrists and social workers' offices on the first residential floor of Cameo House. The Health Insurance Plan of Greater New York operates a medical facility at 15 North Broadway, a few blocks from IHS' new site and within the same BR-4 District. In addition, the complaint alleges that according to newspaper reports, defendants are permitting the Veterans Administration to site a satellite medical clinic in the same BR-4 district.
Plaintiffs seek declaratory, injunctive and monetary relief under the ADA and the Rehabilitation Act for alleged discrimination and failure to make reasonable modification to policies and practices or to accommodate reasonably their disability.
Defendants oppose plaintiffs' motion for a preliminary injunction and move to dismiss the complaint on the grounds that (1) plaintiffs' claim, based upon a zoning ordinance, is not within the scope of either the ADA or the Rehabilitation Act; (2) plaintiffs lack standing; (3) plaintiffs have not alleged any facts stating a claim against the City, Mayor Schulman, the Planning Board, or Mary Cavallero; (4) neither the ADA nor the Rehabilitation Act requires defendants to accord preferential treatment to plaintiffs; and (5) plaintiffs have failed to demonstrate a likelihood of success on the merits and irreparable harm.
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