Rehabilitation Support Services, Inc. v. Town of Esopus, New York et al
Filing
18
DECISION AND ORDER granting in part and denying in part # 13 Defendants' Motion to Dismiss. Plaintiff's claims that Defendants' classification determination regarding Plaintiff's proposed residence violates the FHA and ADA are dismissed without prejudice. Surviving Defendants' motion to dismiss are Plaintiff's claims that the Town's Code is facially discriminatory in violation of the FHA and ADA. Signed by Chief Judge Glenn T. Suddaby on 12/8/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
REHABILITATION SUPPORT SERVICES, INC.,
Plaintiff,
1:16-CV-0307 (GTS/DJS)
v.
TOWN OF ESOPUS, NEW YORK; and TOWN OF
ESOPUS ZONING BOARD OF APPEALS,
Defendants.
___________________________________________
APPEARANCES:
OF COUNSEL:
FREEMAN HOWARD, P.C.
Counsel for Plaintiff
441 East Allen Street
P.O. Box 1328
Hudson, New York 12534
PAUL M. FREEMAN, ESQ.
MATTHEW J. GRIESEMER, ESQ.
MORITT, HOCK & HAMROFF, LLP
Co-Counsel for Plaintiff
400 Garden City Plaza, Suite 202
Garden City, New York 11530
ROBERT L. SCHONFELD, ESQ.
LEMIRE, JOHNSON & HIGGINS, LLC
Counsel for Defendants
2534 Route 9
P.O. Box 2485
Malta, New York 12020
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this discrimination action filed by Rehabilitation Support
Services, Inc. (“Plaintiff”) against the Town of Esopus, New York, and the Town of Esopus
Zoning Board of Appeals (“Defendants”), is Defendants’ motion for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 13.) For the reasons set forth below, Defendants’
motion is granted in part and denied in part.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Complaint
Generally, liberally construed, Plaintiff’s Complaint alleges as follows.
Plaintiff’s Proposed Residence
Plaintiff is a not-for-profit mental health and rehabilitation agency whose mission is to
enrich and empower the lives of consumers by providing services and opportunities for
meaningful emotional, social, vocational and educational growth. (Dkt. No. 1, ¶ 7 [Pl.’s
Compl.].) Plaintiff seeks to establish a sober living residence for women recovering from
alcoholism and/or substance abuse at a two-acre property located at 141 Prospect Street in the
Town of Esopus, County of Ulster, State of New York. (Id., ¶ 1.) The proposed residence will
house 16 women in a two-story community residence and will provide safe, supervised,
congregate housing with the goal of maintaining an abstinent lifestyle. (Id., ¶¶ 10-11.) The
residence is not a detox facility, and no nursing or medical services will be provided there. (Id.,
¶ 11.) Residents will have already completed a long-term treatment program and will be
transitioning to a sober living environment before fully integrating back into society. (Id.) The
women at the residence will live together as a family and will cook together, maintain the
residence together, and assist each other in their recovery from alcoholism and/or substance
abuse. (Id., ¶ 13.) The proposed residence will serve people who have disabilities, that make it
difficult for them to socialize, hold employment and live with their families independently. (Id.,
¶ 14.)
-2-
Both the Ulster County Mental Health Department and the Substance Abuse
Subcommittee of the Community Services Board identified the need for a community residence
in Ulster County that would serve women exclusively and issued a Request for Proposal (“RFP”)
to develop a residence for women’s community residential services. (Id., ¶ 15.) In the RFP,
Ulster County noted that the “[l]ocation of [the] Residence will be important [sic] A populated
location or a site located between 2 populated areas will be considered more desirable than a
rural locale.” (Id., ¶ 16.) The site proposed by Plaintiff at 141 Prospect Street fits the
description of the type of site that Ulster County stated it desired in its RFP. (Id., ¶ 17.)
The Town’s Zoning Code
The Town has a zoning code that regulates where residences and facilities can be located.
(Id., ¶ 18.) Plaintiff’s proposed residence is located within the Town’s R-12 zoning district (“R12 District”). (Id., ¶ 19.) The R-12 District is described as a moderate-density zoning district
that allows, as of right, single-family dwellings on at least 1/3 of an acre. (Id., ¶ 20.) In the
previous version of the Town’s Code, which was filed with the New York State Department on
September 5, 1980, the Code defined “family” as follows:
One or more persons occupying a dwelling unit as a single-nonprofit 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.
(Id., ¶ 21.) Sometime between 1980 and 2012, the Town amended the Code to remove the
definition of “family.” (Id., ¶ 22.) Accordingly, the term “family” is purposefully not defined or
otherwise limited in the current version of the Town’s Code. (Id.)
Among the uses permitted in the R-12 District with a special use permit are multi-family
apartments and townhouses, two-family residences, alcoholism and other rehabilitation centers,
-3-
group homes, halfway houses, nursery schools, pre-school centers, and child day-care centers.
(Id., ¶ 23.) A “convalescent home” is not permitted in the R-12 District. (Id., ¶ 24.) A
“convalescent home” is defined in the Town’s Code as a facility that provides “nursing care.”
(Id., ¶ 25.) Plaintiff’s proposed residence will not provide nursing care. (Id., ¶ 26.)
Opposition to Plaintiff’s Proposed Residence
After Plaintiff informed the Town of its intentions to use the property located at 141
Prospect Street as a sober-living residence for women, the Town instructed Plaintiff to come to
an informal session of the Town’s Planning Board. (Id., ¶ 27.) At this informal session, Plaintiff
was instructed to submit an “informal application” to the Planning Board for its review and
Plaintiff did so. (Id., ¶ 28.) In a letter faxed to Plaintiff’s counsel on June 7, 2015, Timothy
Keefe, the Town’s Building Inspector and Zoning Enforcement Officer, stated that, “after careful
review of the information provided by the applicant, a review of the Building Code of NY and
the Town of Esopus Zoning 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.” (Id., ¶ 29.) However, after Mr. Keefe sent his letter to Plaintiff’s counsel,
community opposition to Plaintiff’s proposed residence arose. (Id., ¶ 30.) In response to this
opposition, Mr. Keefe sent another letter to Plaintiff’s counsel, dated June 15, 2015, and did an
“about-face” by stating that he needed to review Plaintiff’s application further and asked its
counsel to “please disregard my privious [sic] correspondence.” (Id., ¶ 31.)
On June 18, 2015, after publicly acknowledging that it “had no legal authority over
whether or not [the proposed residence] was permitted under the [Town’s] Code,” the Town
Board nonetheless proceeded to take public comments from members of the community opposed
-4-
to the proposed residence. (Id., ¶ 32.) On August 10, 2015, Mr. Keefe issued an opinion letter
finding that Plaintiff’s proposed residence was not a single-family dwelling but a “convalescent
home” under the Town’s Code and, therefore, was not permitted in the R-12 District. (Id., ¶ 33.)
Plaintiff did not provide Mr. Keefe with any new information from the time he issued his initial
determination to the time he issued his final determination. (Id., ¶ 34.) Similarly, at no time
during that period did Plaintiff provide Mr. Keefe with information that nursing care would be
provided at the residence. (Id., ¶ 35.) Accordingly, it is reasonable to believe that Mr. Keefe
changed his mind solely because of community opposition to Plaintiff’s proposed residence.
(Id., ¶ 37.)
After receiving Mr. Keefe’s final determination, Plaintiff appealed the decision to the
Town’s Zoning Board of Appeals (“ZBA”). (Id., ¶ 38.) Plaintiff’s appeal was considered at a
hearing held by the ZBA on October 20, 2015, where Plaintiff’s counsel explained the nature of
the proposed residence. (Id., ¶ 39.) At no time did Plaintiff provide any information to the ZBA
demonstrating that the proposed residence was going to be providing nursing care; indeed,
Plaintiff’s counsel advised the ZBA that the residence would not be providing either nursing care
or any type of medical care. (Id., ¶ 40.) Many neighboring residents came to the public hearing
and wrote letters to the ZBA to object to the proposed residence. (Id., ¶ 41.)
The ZBA’s Decision
The ZBA ultimately determined that the proposed residence is 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 to be provided, the residence is a “convalescent home” not permitted
-5-
in the R-12 District. (Id., ¶ 58.) The ZBA’s written determination also makes repeated reference
to the community’s opposition to the proposed residence. (Id., ¶ 42.) Specifically, the ZBA’s
determination discussed the following five complaints made by neighboring residents related to
the proposed residence: (1) the size of the proposed residence as well as the number of residents
who would live there; (2) the fact that residents of the proposed residence would pay rent and
allegedly would have some counseling and supervision; (3) speculation that the proposed
residence’s “no-smoking” policy “will cause program participants to congregate at the public
frontage of the site, adjacent to a narrow roadway, and is dangerous on that particular road”; (4)
the fact that residents of the proposed residence may reside there for only five months; and (5)
the neighboring residents expressed concern about (a) “a lack of any criminal background
check,” (b) that the proposed residence would be an “Open Campus,” and (c) that “participants
of unknown criminal background will be wandering through the surrounding neighborhood of
one family dwellings which is populated by many children.” (Id., ¶¶ 44, 47-49.)
None of the arguments raised by the neighboring residents are proper or usual
considerations made by a municipality in determining whether a residence is a “single family
dwelling” for the purpose of a zoning code. (Id., ¶ 52.) It is clear that the neighborhood
objections were based on a speculative, conclusory, and prejudicial view of the disabilities of the
people who will reside in Plaintiff’s proposed residence. (Id., ¶ 53.)
With regard to the remaining portions of the ZBA’s written determination, the ZBA, in a
section entitled “Other Considerations,” states that it is “not consistent with a one family
dwelling” for a residence to be owned by a not-for-profit organization like Plaintiff that will also
be seeking a tax exemption. (Id., ¶ 54.) Similarly, in another section of its determination, the
-6-
ZBA notes that, from its point of view, the structure of the proposed residence does not appear to
be a single-family dwelling despite the fact that the Town Code does not discuss how the
structure of a residence would transform a single-family dwelling into something else. (Id., ¶
55.) In reaching this conclusion, the ZBA notes that it considered that the proposed residence
will have a lounge and recreation room. (Id., ¶ 56.)
Finally, the ZBA notes in its determination that an Executive Summary prepared by the
New York State Office of Alcoholism and Substance Abuse Services (“OASAS”), which is the
agency that would license the proposed residence, states that the proposed residence is a “8361
Residential Care” use and that “would require approval of a special use permit.” (Id., ¶ 57.)
Indeed, under the Town’s 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. (Id.) An “8361
Residential Code” residence or facility refers to a code set by the United States Department of
Labor. (Id.)
Plaintiff’s Causes of Action
Based upon the foregoing allegations, the Complaint alleges that Defendants’ actions
violated the Fair Housing Act (“FHA”) and Title II of the Americans with Disabilities Act
(“ADA”) in that (a) Defendants improperly relied upon neighborhood opposition, which was
based on factually unfounded conclusions, speculations, stereotypes and prejudices regarding
people with disabilities, in making their determination, (b) Defendants deviated from the Town’s
Code and their usual practices in determining that the proposed residence is a not a single-family
dwelling, (c) Defendants improperly determined that the proposed residence is a “convalescent
home,” even though the Town’s Code defines such a home as one that provides nursing care and
-7-
the record before the ZBA established that nursing care would not be provided at the proposed
residence, (d) Defendants’ determination that the proposed residence is a “convalescent home”
and, therefore, 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 proposed residence is a “convalescent home,” the Complaint alleges
that the Town’s 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 proposed residence. (Id., ¶¶ 69-76.)
B.
Parties’ Briefing on Defendants’ Motion
1.
Defendants’ Memorandum of Law
Defendants assert three arguments in support of their motion to dismiss. (Dkt. No. 13,
Attach. 15 [Defs.’ Mem. of Law].)1
First, Defendants argue that the Complaint should be dismissed as premature because no
final determination has been made regarding Plaintiff’s proposed residence. (Id. at 17-18.)
More specifically, Defendants argue that, under Second Circuit precedent (including Sunrise
Detox V, LLC v. City of White Plains, 769 F.3d 118 [2d Cir. 2014]), Plaintiff must obtain a final
decision from the Town regarding its proposed residence or demonstrate that it would be futile to
do so before its claims are ripe for adjudication. (Id. at 18-19.) Defendants argue that, thus far,
Plaintiff has obtained only a classification determination from the ZBA and can still apply for a
1
Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ respective motion papers.
-8-
use variance,2 among other things, before any decision can be considered final. (Id. at 18-19, 2324.) Furthermore, Defendants argue that the futility exception is applicable only 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.” (Id. at 18-19.) Defendants argue that case precedent in this
District has 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.
(Id. at 19.)
Second, Defendants argue that the Court should abstain from deciding this case under the
Younger abstention doctrine because (a) Plaintiff has filed an Article 78 proceeding in New York
State Supreme Court seeking the same or similar relief, (b) the Article 78 proceeding implicates
compelling state interests because it involves the application of New York Town Law as well as
the local laws of the Town of Esopus in determining land use issues, and (c) Plaintiff’s federal
claims can be adequately addressed by the New York State Supreme Court. (Id. at 24-26.)
Third, and finally, Defendants argue that, alternatively, the Court should abstain from
deciding this case under the Colorado River abstention doctrine for the following seven reasons:
(1) the federal and state court actions are parallel because they both involve the same parties and
land use issues; (2) it is undisputed that the New York Supreme Court has jurisdiction of
Plaintiff’s land use claims; (3) the forum for the state court action in Albany County is more
2
“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 significance of this distinction is that 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.” Westchester Day
Sch. v. Vill. of Mamaroneck, 417 F. Supp. 2d 477, 561 (S.D.N.Y. 2006).
-9-
geographically convenient for the parties than this Court’s forum; (4) this Court should seek to
avoid piecemeal litigation because litigating both actions creates the potential for inconsistent
rulings; (5) 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; (6) abstention is appropriate because this Court would
have to first decide issues of state law before addressing Plaintiff’s federal claims; and (7) 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. (Id. at 27-29.)
2.
Plaintiff’s Opposition Memorandum of Law
In opposition to Defendants’ motion, Plaintiff asserts the following three arguments.
(Dkt. No. 14 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that this action is ripe for
adjudication. In so doing, Plaintiff distinguishes Sunrise Detox on the ground that the action was
not ripe because plaintiff neither appealed the zoning officer’s determination to the town’s ZBA
nor sought a variance while, in the present matter, Plaintiff did appeal Mr. Keefe’s determination
to the Town’s ZBA (and, therefore, did not need to seek a variance). (Id. at 7-8.)
In any event, Plaintiff argues that it would be futile to pursue other forms of relief from
the ZBA because (a) the ZBA found that the proposed residence “would not be compatible, in
terms of its size and operating characteristics, with the predominantly one family dwellings that
surround the Cole property,” (b) in seeking a use variance, Plaintiff would have to show that, if
granted, the proposed residence will not alter the essential character of the neighborhood, and (c)
in light of the ZBA’s finding, Plaintiff’s proposed residence would not be compatible, in terms of
-10-
size and operating characteristics, with the one-family dwellings that surround the property.
(Id. at 8-9.) Furthermore, Plaintiff argues that it does not have to exhaust any administrative
procedures before claiming that the Town’s Code is facially discriminatory. (Id. at 9.)
Second, Plaintiff argues that Defendants rely on an antiquated reading of the Younger
abstention doctrine, which was repudiated by this Court in Rehab. Support Servs., Inc. v. City of
Albany, 14-CV-0499, 2015 WL 4067066 (N.D.N.Y. July 2, 2015) (Kahn, J.). (Id.) Specifically,
Plaintiff argues that, under the more modern “categorical approach,” Younger abstention applies
to only three categories of cases: (a) state criminal prosecutions, (b) civil enforcement
proceedings, and (c) civil proceedings that implicate a State’s interest in enforcing the orders and
judgments of its courts. (Id.) Plaintiff further argues that, in City of Albany, Judge Kahn found
that a challenge to a municipal zoning ordinance under the FHA did not involve any of these
three categories. (Id. at 10.)
Third, and finally, Plaintiff argues that abstention under Colorado River is also
inappropriate because this action is not parallel to the state court action. (Id. at 10.) More
specifically, Plaintiff argues that this case involves claims that the ZBA’s determination and the
Town’s Code are discriminatory under federal law, warranting the annulment of the Town’s
Code and the recovery of compensatory damages and attorneys fees. (Id. at 11.) Conversely, the
state court action involves a challenge to the ZBA’s determination as being arbitrary and
capricious under state law and does not seek to annul the Town’s Code or to recover
compensatory damages and attorneys fees. (Id.)
In any event, Plaintiff argues, even if the two actions are parallel, Colorado River
abstention should not be applied for the following reasons: (a) this controversy does not involve
-11-
a res, (b) the two forums are located close together, (c) dismissing the federal claims would do
nothing to avoid piecemeal litigation because Defendants have not moved to dismiss Plaintiff’s
claims that the ZBA’s determination and the Town’s Code are discriminatory, (d) this action was
filed before the one in state court, (e) 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 and the constitutionality of the Town’s Code cannot be challenged in such
a proceeding, and (f) federal law controls Plaintiff’s causes of action because they are based on
federal statutes. (Id. at 12.)
3.
Defendants’ Reply Memorandum of Law
Generally, in reply to Plaintiff’s opposition memorandum of law, Defendants assert the
following three arguments. (Dkt. No. 16 [Defs.’ Reply Mem. of Law].)
First, Defendants repeat their argument that this action is not ripe for adjudication
because Plaintiff did not apply for a special use permit and/or use variance following the ZBA’s
determination and the Complaint does not allege facts plausibly suggesting that doing so would
be futile. (Id. at 5-9.) Furthermore, Defendants argue that Plaintiff’s tortured interpretation of
Sunrise Detox should be disregarded because it calls for the invention of facts that were not in
evidence before the Second Circuit and places hypothetical arguments before this Court in an
attempt to mitigate Plaintiff’s failure to pursue other forms of relief from the ZBA before
bringing this action. (Id. at 5-6.) Defendants also argue that Plaintiff has failed to address other
cases that Defendants have cited, including S&R Dev. Estates, LLC v. Bass, 588 F. Supp. 2d 452
(S.D.N.Y. 2008), which are analogous to this case and support their position that dismissal of the
Complaint is warranted under the law of this Circuit. (Id. at 5.)
-12-
With respect to Plaintiff’s claim that the Town’s Code is facially discriminatory,
Defendants argue that the Complaint does not allege facts plausibly suggesting an injury
independent of the challenged land-use decision as required by the Second Circuit in Safe
Harbor Retreat LLC v. Town of E. Hampton, 629 F. App’x 63, 64-66 (2d Cir. 2015). (Id. at 7-8.)
Second, Defendants argue that the Court should abstain from deciding this case under the
Younger abstention doctrine because (a) Plaintiff has brought an action in state court seeking the
same or similar relief, (b) Plaintiff’s claims implicate important state interests because they
address the constitutionality of state land use issues and zoning laws, (c) Plaintiff’s federal
claims can be adequately addressed by the state court, and (d) Plaintiff’s state court action falls
under the civil enforcement category of Younger abstention because Plaintiff seeks to prevent
Defendants from allegedly violating the constitutional rights of its proposed disabled tenants.
(Id. at 9-10.)
Third, and finally, Defendants repeat their argument that, should the Court find that the
Younger abstention doctrine does not apply, the Court should nevertheless find that abstention is
appropriate under Colorado River. (Id. at 10.) Defendants further argue that, in opposing their
motion, Plaintiff has confused the meaning of “parallel” with “identical.” (Id.) More
specifically, Defendants argue that the proper test is whether both actions are “substantially
similar,” and that abstention is appropriate where Plaintiff’s state and federal actions are asserted
against substantially similar parties, raise substantially similar issues, and the state proceeding
can dispose of all claims. (Id. at 11.) Applying that test here, Defendants argue that both actions
clearly involve substantially similar issues as evidenced by the allegations in Plaintiff’s Article
78 petition, which raises numerous constitutional objections to the Town’s Code for the
-13-
proposition that Defendants acted “arbitrary and capriciously” and violated the constitutional
rights of Plaintiff’s proposed disabled tenants. (Id.) Furthermore, Defendants argue that there is
a substantial likelihood that the state court action will fully dispose of the claims asserted in this
action because the state court cannot resolve Plaintiff’s state law claims without first answering
whether the Town Code and the ZBA’s determination are constitutionally sound. (Id.)
Consequently, Defendants argue, any finding by the state court regarding these issues would
render the present case moot or could potentially contradict any ruling made by this Court. (Id.
at 11-12.)
II.
RELEVANT LEGAL STANDARD
A.
Legal Standard Governing Motions for Judgment on the Pleadings
“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical
to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting cases). In evaluating such motions,
district courts must accept all allegations in the complaint as true and draw all reasonable
inferences in the Plaintiff’s favor. Patel, 259 F.3d at 126 (citing Irish Lesbian and Gay Org. v.
Giuliani, 143 F.3d 638, 644 [2d Cir. 1998]).
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
-14-
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
-15-
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
-16-
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.3
3
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
-17-
B.
Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
Jurisdiction
“A motion to dismiss based on the abstention doctrine is . . . considered as a motion made
pursuant to Rule 12(b)(1).” City of N.Y. v. Milhelm Attea & Bros., Inc., 550 F. Supp. 2d 332, 341
(E.D.N.Y. 2008). Similarly, “[r]ipeness of a claim implicates the Court’s subject matter
jurisdiction.” Komondy v. Gioco, 59 F. Supp. 3d 469, 475 (D. Conn. 2014).
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
-18-
2000). A district court may look to evidence outside of the pleadings when resolving a motion to
dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears
the burden of proving subject-matter jurisdiction by a preponderance of the evidence.
Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a
court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
III.
ANALYSIS
A.
Whether Plaintiff’s Claims Are Ripe for Adjudication
After carefully considering the matter, the Court answers this question in the negative
with respect to Plaintiff’s claims regarding the ZBA’s classification determination for the
reasons stated in Defendants’ memoranda of law. (Dkt. No. 13, Attach. 15, at 17-24 [Defs.’
Mem. of Law]; Dkt. No. 16, at 5-9 [Defs.’ Reply Mem. of Law].) However, the Court answers
this question in the affirmative with respect to Plaintiff’s claims that the challenged provisions of
the Town’s Code are facially discriminatory for the reasons stated in Plaintiff’s opposition
memorandum of law. (Dkt. No. 14, at 9 [Pl.’s Opp’n Mem. of Law].) To those reasons, the
Court adds the following analysis.
1.
Ripeness of Plaintiff’s FHA and ADA Claims Regarding the ZBA’s
Classification Determination
Although the Court is skeptical regarding how Plaintiff’s proposed residence could be
deemed to be a “convalescent home” without the provision of nursing care, the Court agrees with
Defendants that the ZBA’s classification determination does not constitute a final decision
regarding Plaintiff’s proposed residence. The Complaint does not allege that Plaintiff applied for
-19-
a building permit, a use variance, or any other form of relief before bringing this action. Such
actions are necessary before a decision can be considered final. See, e.g., Dean v. Town of
Hempstead, 163 F. Supp. 3d 59, 78 (E.D.N.Y. 2016) (“A plaintiff cannot have received a final
decision without submitting a plan for development of the property for its intended or another
use and seeking available variances or waivers of the requirements at issue.”); S&R Dev. Estates,
588 F. Supp. 2d at 462 (noting that, “[a]lthough plaintiffs are correct that the ZBA issued an
opinion as to the zoning classification of the Property, it has not issued a final decision as to S &
R’s development plan”); Goldfine v. Kelly, 80 F. Supp. 2d 153, 159 (S.D.N.Y. 2000) (“Even
where the plaintiff applies for approval of a subdivision plan and is rejected, a claim is not ripe
until the plaintiff also seeks variances that would allow it to develop the property.”); accord,
Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 598-99
(S.D.N.Y. 2013) (citing cases).
A similar version of Plaintiff’s argument that the ZBA’s classification determination
should be deemed an exhaustion of its administrative remedies was considered, and rejected, in
Safe Harbor Retreat, LLC v. Town of E. Hampton, N.Y., 14-CV-2017, 2015 WL 918771
(E.D.N.Y. Mar. 2, 2015), which was affirmed by the Second Circuit. In that case, the town’s
building inspector reversed his prior determination that a treatment center for alcoholism and
substance abuse could exist in a residentially zoned district. Safe Harbor, 2015 WL 918771, at
*2-3. Rather than seek a special use permit, as required by the town’s code, the plaintiff
appealed the building inspector’s determination, which was upheld by the town’s ZBA. Id. at
*3. The plaintiff then filed an action in federal court but it was found unripe for adjudication by
the United States District Court for the Eastern District of New York. The court found as
follows:
-20-
Safe Harbor has not applied for a special permit, let alone received
a final decision on that application. Rather, the Town upheld the
building inspector’s determination that Safe Harbor was operating
the Premises as an unauthorized semi-public facility and, as such,
needed to apply for a special permit. Given Safe Harbor’s failure
to seek a special permit, the Town has not rendered a final decision
regarding Safe Harbor’s use of its Premises; nor has the Town had
the opportunity to make an accommodation through the Town’s
“established procedures used to adjust the neutral policy in
question,” namely, special permit and variance procedures.
Id. at *6. The court then stated that “[t]his Court’s review of plaintiff’s FHA and ADA claims
without (1) resolution of whether a special permit or variance might provide the relief Safe
Harbor seeks, (2) precise demonstration of how the Town Code will be applied to Safe Harbor’s
Premises, and (3) development of a full record presents a very real risk of undue interference in
‘matters of local concern more aptly suited for local resolution.’” Id.
This Court shares the concerns expressed by the Safe Harbor court. Although Plaintiff
cannot apply for a special use permit because Defendants have determined that the proposed
residence is a convalescent home (which is not included in the Town’s Schedule of Permitted
Uses for the R-12 District), Plaintiff has not sought a use variance or any other forms of relief.
(Dkt. No. 13, Attach. 3, at 2 [Defs.’ Ex. B] [Keefe letter explaining that convalescent homes are
not permitted in the R-12 District].) See also Code of the Town of Esopus New York, Schedule of
Permitted Uses (updated Nov. 1, 2008), at 263,
http://www.esopus.com/building/esopuscodes.pdf. Therefore, the Court finds that Plaintiff’s
claims are not ripe for adjudication.
Similarly, the Court finds that Plaintiff has not demonstrated that it is entitled to the
futility exception. District courts “have found that[,] in order to invoke the futility exception, a
plaintiff must demonstrate: (1) the inevitability of refusal of their application, taking into
-21-
consideration factors such as the defendants’ hostility, delay and obstruction; and (2) that
plaintiff has filed at least one meaningful application.” Quick Cash of Westchester Ave. LLC v.
Vill. of Port Chester, 11-CV-5608, 2013 WL 135216, at *8 (S.D.N.Y. Jan. 10, 2013). Similarly,
futility in this context has been described by the Second Circuit as “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.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 349 (2d Cir. 2005). “It is
well established that the standard for finding futility is high.” In the Matter of the Application of
Hampshire Recreation, LLC v. Vill. of Mamaroneck, 14-CV-7228, 2016 WL 1181727, at *14
(S.D.N.Y. Mar. 25, 2016).
Here, Plaintiff’s argument that it would be futile to apply for a use variance based upon
the ZBA’s opinion that the proposed residence would not be compatible, in terms of its size and
operating characteristics in a predominantly single-family neighborhood, is speculative. Indeed,
there are no factual allegations in the Complaint, nor anything in the ZBA’s written decision
(Dkt. No. 13, Attach. 11), that plausibly suggest that Defendants would not be amenable to other
suggestions, alternative plans, and/or negotiations involving a way that the proposed residence
can exist that is satisfactory for all parties involved.4 See MacDonald, Sommer & Frates v. Cty.
of Yolo, 477 U.S. 340, 351-52 (1986) (finding, in the takings context of the Fifth Amendment,
that the agency did not render a final decision because the possibility remained that “some
4
The Court notes that it has reviewed the independent conclusions made by the
ZBA members regarding the classification determination of Plaintiff’s proposed residence and
notes that, although some of the ZBA members expressed their opinion that the proposed
residence “would not fit in with the neighborhood” and that “it does not fit with the character of
the neighborhood in any way[,]” these opinions do not preclude the possibility that a variance or
some other form of relief could be agreed upon by the parties. (Dkt. No. 13, Attach. 12, at 5-6
[Defs.’ Ex. K].)
-22-
development will be permitted”); Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 188 (1985) (finding plaintiff’s claims were premature, in part,
because “respondent did not . . . seek variances that would have allowed it to develop the
property according to its proposed plat, notwithstanding the Commission’s finding that the plat
did not comply with the zoning ordinance and subdivision regulations”); Safe Harbor Retreat,
629 F. App’x at 65 (“Safe Harbor’s failure to apply for the special permit prevents us from
determining whether East Hampton and, by extension, the Zoning Board ‘ha[ve] dug in [their]
heels and made clear that all such applications will be denied.’”); Goldfine, 80 F. Supp. 2d at 160
(“The Second Circuit has refused to apply the futility exception to the final decision requirement
where the plaintiff has submitted, and had denied, only one application for a land-use permit.”);
cf. Donovan Realty, LLC v. Davis, 07-CV-0905, 2009 WL 1473479, at *4 (N.D.N.Y. May 27,
2009) (Homer, M.J.) (finding futility exception applied where the planning board chairperson
indicated that “under no circumstances would the Planning Board ever consider granting the
Plaintiffs’ request for a site plan amendment at their . . . property”).
Finally, although the Complaint alleges that there was public hostility towards the
proposed residence, this in and of itself does not suffice to establish futility. See Dean, 163 F.
Supp. 3d at 88 (noting that “hostility does not necessarily mean that future applications will be
futile”) (citing cases); Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 111 F.
Supp. 3d 459, 479 (S.D.N.Y. 2015) (“Futility does not exist merely because public officials are
hostile to the proposal at issue.”); S&R Dev. Estates, LLC, 588 F. Supp. 2d at 463 (“The Town’s
alleged hostility and bias can not be imputed to the ZBA simply because the Town appoints the
ZBA members.”).
-23-
2.
Ripeness of Plaintiff’s Claim that the Town’s Code Is Facially
Discriminatory
Plaintiff correctly states in its opposition memorandum of law that “a plaintiff need not
await a final decision to challenge a zoning policy that is discriminatory on its face.” Sunrise
Detox V, LLC, 769 F.3d at 123; see also Lamar Advert. of Penn, LLC v. Town of Orchard Park,
N.Y., 356 F.3d 365, 374 (2d Cir. 2004) (explaining that “[the plaintiff] need not have first sought
and been denied any permit prior to filing a facial challenge”); MacDonald v. Safir, 206 F.3d
183, 189 (2d Cir. 2000) (“[T]here is no need for a party actually to apply or to request a permit in
order to bring a facial challenge to an ordinance (or parts of it). . . .”). Accordingly, the Court
finds that a claim of facial discrimination is ripe for adjudication. Furthermore, the Court finds
that the Complaint alleges facts plausibly suggesting that the relevant sections of the Town’s
Code are facially discriminatory for the reasons discussed below.
“Facial 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 Corp. v. Green, 411 U.S. 792 (1973).” Rehab. Support Servs., Inc., 2015
WL 4067066, at *9. “With regard to facially discriminatory housing policies . . . 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.” Id. (internal quotation marks omitted). “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.” Id.
In Rehab. Support Servs., the plaintiff alleged that “[c]ertain multi-unit residences, such
as dormitories, nursing homes, and bed and breakfasts, may obtain a special use permit to
-24-
operate in an R2A district.” Id. at *1. Meanwhile, “[o]ther multi-unit dwellings, including
Plaintiff’s planned residence, must obtain a use variance in order to establish a residence in an
R2A zone.” Id. The plaintiff alleged that “[t]he procedures for obtaining a use variance differ
from those required to obtain a special use permit” because, while “individuals seeking a special
use permit must . . . go through an application process, they need not show ‘unnecessary
hardship’ in order to obtain a permit.” Id. Judge Kahn concluded that these allegations were
sufficient to state a claim because “Plaintiff has alleged that multiple-person dwellings serving
people with disabilities are not allowed as of right in residential districts in the City, and that
other multiple-person dwellings such as dormitories and nursing homes are subject to a less
burdensome process to establish residences in the City than are homes serving people with
disabilities.” Id. at *11.
Similarly, in the present case, Plaintiff alleges that the Town’s Code is facially
discriminatory because it allows large residences and facilities for non-disabled people to exist in
the R-12 District but not dwellings such as Plaintiff’s proposed residence for people with
disabilities. More specifically, the Complaint alleges that “the Town’s Zoning Code is facially
discriminatory in violation of the [FHA] in that there are facilities for non-disabled people
allowed in the zone with a special permit such as apartment buildings, multi-family dwellings,
and child day-care centers that are far more intrusive and far less single family in nature than the
proposed RSS residence.” (Dkt. No. 1, ¶ 71 [Pl.’s Compl.].) The Complaint further alleges that,
“[i]n 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 Town’s
Zoning Code discriminates against people with disabilities on its face and is thus in violation of
the [FHA].” (Id., ¶ 72.)
-25-
Significantly, the Complaint alleges that these larger residences and facilities are allowed
in the R-12 District only after obtaining a special use permit. Although Defendants argue in
their reply memorandum of law that Plaintiff never applied for a special use permit (Dkt. No. 16,
at 8 [Defs.’ Reply Mem. of Law]), it appears that their determination that Plaintiff’s proposed
residence is a convalescent home precludes this avenue of relief for the reasons discussed above
in Part III.A.1. of this Decision and Order. Accordingly, Plaintiff will need to apply for a use
variance, which is a more burdensome process than applying for a special use permit. Compare
Town of Esopus Code § 123-44 (requiring, among other things, that an applicant demonstrate
“unnecessary hardship” in order to obtain a variance) with Town of Esopus Code § 123-13
(stating requirements for a special permit, which do not include “unnecessary hardship”) and
Town Code § 123-13(O) (stating requirements for a special permit for institutional uses, which
include, among other things, “nursing homes and personal care facilities, hospitals, elementary
and secondary schools, colleges and professional schools, child day-care centers and . . .
nonmedical residential care facilities”).5 Therefore, the Complaint alleges facts plausibly
suggesting that the Town’s Code treats Plaintiff differently than similarly situated individuals
without disabilities and that the Code is discriminatory on its face.6
5
The Court notes that it may properly consider the Town’s Code in its entirety on
their motion for judgment on the pleadings because the Town’s Code was incorporated by
reference in the Complaint and is material contained in the public record, of which the Court
may take judicial notice. See Missere v. Gross, 826 F. Supp. 2d 542, 553 (S.D.N.Y. 2011)
(stating that “[t]he Court may also take judicial notice of all documents in the public record,
including the decisions of the ZBA, the decisions of the Supreme Court in the Article 78
proceedings, and the provisions of the Village zoning code, that the Parties have submitted in
affidavits with their motion papers”).
6
The Court notes that, even if Defendants were to argue that the Town’s Code is
not discriminatory because the R-12 District allows (with a special use permit) group homes
operated for disabled persons not requiring nursing care, the Court would be suspicious of that
-26-
B.
Whether the Court Should Abstain from Deciding This Case
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Plaintiff in its opposition memorandum of law. (Dkt. No. 14, at 9-13 [Pl.’s
Opp’n Mem. of Law].) To those reasons, the Court adds the following two points.
First, Defendants’ argument that this matter falls under the “civil enforcement” category
for Younger abstention is unpersuasive. (Dkt. No. 16, at 10 [Defs.’ Reply Mem. of Law].) The
Supreme Court has stated that “[o]ur decisions applying Younger in instances of civil
enforcement have generally concerned state proceedings ‘akin to a criminal prosecution’ in
‘important respects.’. . . Such enforcement actions are characteristically initiated to sanction the
federal plaintiff, i.e., the party challenging the state action, for some wrongful act. . . . In cases of
this genre, a state actor is routinely a party to the state proceeding and often initiates the action.”
Sprint Commc’ns, Inc. v. Jacobs, 134 S.Ct. 584, 592 (2013). Defendants fail to articulate how
the Article 78 proceeding is “akin to a criminal prosecution.” Furthermore, the action was not
initiated by “the State in its sovereign capacity” but by Plaintiff, which is a private corporation.
Sprint, 134 S.Ct. at 592. Finally, no state authority conducted an investigation into Plaintiff’s
activities, and no state actor lodged a formal complaint against Plaintiff. Id.; see also Rehab.
Support Servs., 2015 WL 4067066, at *8 (finding Article 78 proceeding did not “fall within one
of the enumerated categories of cases that trigger Younger abstention”).
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. See
Messier v. Southbury Training Sch., 94-CV-1706, 1999 WL 20910, at *10 (D. Conn. Jan. 5,
1999) (“Courts hold repeatedly that the ADA . . . prohibit[s] discrimination on the basis of
severity of disability.”) (collecting cases).
-27-
Second, the Court is unpersuaded that it should abstain from deciding this case on the
ground that this action is substantially similar to the state court action. “As a general matter,
‘federal courts are obliged to decide cases within the scope of federal jurisdiction. Abstention is
not in order simply because a pending state-court proceeding involves the same subject matter.’”
Rehab. Support Servs., 2015 WL 4067066, at *8 (quoting Sprint, 134 S.Ct. at 588 [2013]).
Furthermore, the Court agrees with Plaintiff that the two actions are not parallel because (a) this
action involves a challenge to the Town’s Code as being facially discriminatory, and (b) the
Article 78 proceeding challenges the ZBA’s determination as being arbitrary and capricious
under state law. In addition, Plaintiff is seeking compensatory damages and attorneys fees in
this action, which it is not doing in the Article 78 proceeding. See Mclean-Katter, LLC v.
Keegan, 06-CV-1499, 2006 WL 3050878, at *2 (E.D.N.Y. Oct. 20, 2006) (declining to exercise
abstention under Colorado River because Article 78 proceeding was not “parallel” to federal
action where plaintiff sought vindication for defendants’ alleged discriminatory acts in federal
court while state proceeding involved narrow issue of whether Town’s resolution was arbitrary
and capricious). The Court likewise adopts Plaintiff’s arguments regarding the remaining
Colorado River factors. (Dkt. No. 13, at 11-13 [Pl.’s Opp’n Mem. of Law].)
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss the Complaint (Dkt. No. 13) is
GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s claims that Defendants’ classification determination
regarding Plaintiff’s proposed residence violates the FHA and ADA are DISMISSED without
prejudice; and it is further
-28-
ORDERED that SURVIVING Defendants’ motion are Plaintiff’s claims that the
Town’s Code is facially discriminatory in violation of the FHA and ADA.
Dated: December 8, 2016
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
-29-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?