Candlehouse Teen Challenge v. Town of Vestal, New York

Filing 93

DECISION AND ORDER granting in part Deft's 59 Motion for Summary Judgment;Dismissing Pltf's claim of discrimination based upon a disparate impact theory under the FHA and ADA. Dismissing Pltf's claim of a substantial burden on the f ree religious exercise rights in violation of the RLUIPA. Denying Pltf's 68 Second Motion for Summary Judgment. Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure and the stipulation of the parties, Counts IV, V, and VI are dism issed. Denying Pltf's 64 Motion for Sanctions. Granting in part Pltf's 66 Motion to strike deft's expert report. A final pretrial conference will be held by telephone on 5/14/13 at 3:00 PM. Signed by Magistrate Judge David E. Peebles on 5/3/13. (sfp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
___________________________
CANDLEHOUSE, INC.,
Plaintiff,

Civil Action No.
3:11-CV-0093 (DEP)

v.
TOWN OF VESTAL, NEW YORK,
Defendant.
____________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
AMERICAN CENTER FOR LAW AND
JUSTICE
5214 Maryland Way, Suite 402
Brentwood, TN 37027

ABIGAIL SOUTHERLAND, ESQ.
LARRY L. CRAIN, ESQ.
CARLY F. GAMMILL, ESQ.
DAVID A. FRENCH, ESQ.

HINMAN, HOWARD & KATELL, LLP
P.O. Box 5250
80 Exchange Street
700 Security Mutual Building
Binghamton, NY 13902-5250

DAWN J. LANOUETTE, ESQ.
SARAH G. CAMPBELL, ESQ.

FOR DEFENDANT:
AHMUTY, DEMERS & McMANUS
750 Roanoke Avenue
Riverhead, NY 11901
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

ROBERT J. HINDMAN, ESQ.
AGNIESZKA A. WILEWICZ, ESQ.
DAVID S. BERGER, ESQ.

DECISION AND ORDER
Plaintiff Candlehouse, Inc. (“Candlehouse”), the owner of
residentially zoned property located in the Town of Vestal, New York
(“Town”), has commenced this action against the Town based upon the
refusal of the its Code Enforcement Officer and Zoning Board of Appeals
to find that plaintiff’s anticipated use of the property, as a Christian faithbased residential treatment facility for young women struggling with
addiction or emotional disorders, is a permitted use of the property under
the Town’s zoning ordinances.1 In its complaint, Candlehouse asserts
that the Town’s refusal to allow its intended use of the property violated
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, and the
Fair Housing Act (“FHA”), 42 U.S.C. § 3601. Plaintiff also alleges that the
Town’s restriction on its use of the premises constitutes an unlawful
burden on its residents’ religious exercise, in violation of the Religious
Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C.
§ 2000cc(a).
Currently pending before the court are the parties’ cross motions for
summary judgment. In addition, plaintiff has applied for the issuance of
1

This action is before me based upon consent of the parties, pursuant to
28 U.S.C. § 636(c). Dkt. No. 20.
2

sanctions based upon defendant’s alleged destruction of or failure to
produce relevant evidence, and to strike the report of defendant’s retained
expert and preclude her from testifying at trial. For the reasons set forth
below, I conclude that the defendant is entitled to the entry of summary
judgment dismissing plaintiff’s disparate impact claim under the ADA and
the FHA, and its RLUIPA cause of action, but that the existence of
material disputes of fact preclude the entry of summary judgment in either
party’s favor with regard to plaintiff’s intentional discrimination and
reasonable accommodation claims under the ADA and FHA. In addition, I
conclude that plaintiff’s application for the issuance of sanctions is not yet
ripe for determination, and that defendant’s expert is precluded from
testifying at trial with regard to several of the conclusions included in her
report.
I.

BACKGROUND
Plaintiff, which operates as Candlehouse Teen Challenge, is a

Christian non-profit organization whose avowed function is “to restore
individuals who struggle with life controlling problems such as alcohol
abuse and/or who struggle with emotional disorders.” Dkt. No. 70 at ¶ 3.
According to its mission statement, Candlehouse’s purpose is to permit its

3

residents “to live life together with freedom, peace and joy.” Dkt. No. 70-2
at 1. Candlehouse is one of 234 accredited Teen Challenge programs
operating nationwide, utilizing a program pioneered in 1958 by Rev. David
Wilkerson. Dkt. No. 68-2 at ¶¶ 3,5. Candlehouse has operated as a Teen
Challenge-affiliated residential center in New York for more than
seventeen years, and for eight years prior to that as a non-affiliated
center, assisting women to recover from the negative impacts of
substance abuse and emotional disabilities. Dkt. No. 70 at ¶ 5. While
students eligible for participation in the Candlehouse program who
struggle with substance abuse are no longer chemically dependent, “they
have demonstrated an inability to live independently and abstain from
addiction in the long-term and/or live without support as a result of an
emotional disability or illness.” Id. at ¶ 12.
Students who enroll in the program typically reside at a
Candlehouse facility between twelve and thirty-six months, depending
upon their needs. Dkt. No. 70 at ¶ 9. During their stay, the students live
in a family-like environment, in which they experience a daily regimen of
activities that include Bible study, life skills classes, work assignments,
community projects, religious worship, and free time. Id. at ¶¶ 10, 15.

4

The goal of the Candlehouse program is to restore students suffering from
the disabling affects of addiction or mental health issues to a point where
they are capable of living independently, finding and maintaining
employment, mending relationships with family members, and caring for
themselves. Id. at ¶ 7.
Students enrolled in the Candlehouse program live, sleep, cook and
eat together, and spend much of their days interacting with other students.
Dkt. No. 70 at ¶ 17. The operators of Candlehouse prefer to locate the
program’s facilities in residential neighborhoods. Id. at ¶ 18. According to
Candlehouse’s director, Richard Mecklenborg, being situated in a
residential neighborhood allows participating students to go outdoors, and
motivates them to abstain from drug or alcohol abuse. Id. at ¶¶ 19, 20.
In or about September 2008, Candlehouse purchased from the
Episcopal Diocese of Syracuse two properties located at 400 Mirador
Drive and 401 Mirador Drive, Vestal, New York (“Mirador property”). For
the last fifty years, the Mirador property had been utilized as a church and
accompanying church campus. Dkt. No. 70 at ¶ 24. Candlehouse’s intent
in acquiring the Mirador property was to combine its residential campus
and work training programs with the religious component of the Teen

5

Challenge programs, which includes Bible study and other classes. Id. at
¶ 22. It was contemplated that the residential program would support up
to twelve students, plus two staff employees and a housemother. Id. at ¶
25.
The Mirador property is located in a portion of the Town of Vestal
designated as RA-1 residential district for zoning purposes. Dkt. No. 61 at
¶ 12. In pertinent part, Article IV, Section 25-151 of the Town’s Zoning
Code permits the following uses for such properties:
Boarding and/or rooming house providing
accommodations, for not more than two (2) transient
roomers, provided that off-street parking
requirements can be met . . .
Church and other place of worship, including Sunday
school building and rectory, provided said lot has a
minimum frontage of one hundred fifty (150) feet, a
minimum depth of one hundred fifty (150) feet, and
contains a minimum of twenty-two thousand five
hundred (22,500) square feet . . .
Cultivation of plants and plantings when conducted
by the occupants of the premises and incidental to
the principal use . . .
One-family detached dwelling . . .
One-family detached modular home . . .
Park, playground and other open recreational area
when operated by the town . . .
6

Public elementary or secondary school; parochial
school . . .
Temporary structure incidental to the development of
land or to the erection of a permanent structure[.]
Dkt. No. 60-1 at 10. That same provision prohibits, inter alia, the following
uses in RA-1 residential districts:
Boarding house or rooming house . . .
Boarding and/or rooming house providing
accommodations for not more than four (4)
nontransient roomers and provided that off-street
parking requirements are met . . .
Eleemosynary institution . . .
Multiple family dwelling . . .
Nursing or convalescent home or sanitarium . . .
Two-family dwelling or modular home[.]
Id.
On September 23, 2008, Mecklenborg approached Mark Dedrick,
the Town’s Code Enforcement Officer (“CEO”), to discuss Candlehouse’s
interest in the Mirador property, and inquire as to whether it would be
permitted to use the property as a church and residence for its students in
light of the fact that the property is zoned as RA-1 residential. Dkt. No.

7

70-1. The next day, Mecklenborg sent a letter to Dedrick indicating that
the proposed use of the property was “to continue to use it as a church,”
and that Candlehouse’s “regular services . . . offer women a temporary
residence with counseling.” Dkt. No. 70-1. In response, Dedrick wrote
Mecklenborg a letter dated September 30, 2008, requesting additional
information and advising Mecklenborg that temporary housing is not
permitted in an RA-1 zoned district. Dkt. No. 61-2 at 2.
On October 12, 2008, Mecklenborg again wrote a letter to Dedrick
providing the requested details concerning Candlehouse’s proposed use
of the Mirador property. Dkt. No. 61-3 at 2. More specifically,
Mecklenborg explained that “temporary residents” could be anticipated to
stay an average of thirteen months, and live together with three or more
assigned to each bedroom. Id. at 2, 5.
On December 17, 2008, the Vestal Town Board discussed the
proposed use of the Mirador property by Candlehouse during a public
meeting. Dkt. No. 69-7. In that meeting, the Town’s attorney stated that
Candlehouse’s proposed dormitory living quarters would be inconsistent
with the RA-1 zoning regulation. Id. at 3. Following that meeting,
residents in the neighborhood surrounding the Mirador property began to

8

voice their concerns over Candlehouse’s proposed use. Dkt. No. 70 at ¶
28; Dkt. No. 70-3. In an effort to assuage those concerns, Candlehouse
held a neighborhood meeting on December 22, 2008, for the purpose of
providing attendees with information concerning the contemplated use.
Dkt. No. 70 at ¶ 29; Dkt. No. 70 Exh. E (traditionally filed, not electronically
filed). At that meeting, both supporters and opponents to the proposed
use spoke, although there was significantly more opposition than support
voiced for the program. Dkt. No. 70 Exh. E (traditionally filed, not
electronically filed). Four members of the Vestal Town Board attended
that neighborhood meeting. Dkt. No. 69-3 at 5.
The topic of Candlehouse’s plans for the Mirador property arose
again during a Vestal Town Board meeting, held on January 14, 2009.
Dkt. No. 69-8. At that meeting, five Town residents spoke out against the
proposed use. Id.
On January 21, 2009, Sara G. Campbell, Esq., an attorney for
Candlehouse, wrote to CEO Dedrick, stating that her client proposed to
use the Mirador property as a church and rectory only, defining rectory as
“a residence for church personnel.” Dkt. No. 61-4 at 2. By letter dated
February 5, 2009, Dedrick responded to Attorney Campbell by indicating

9

that, while use as a church was consistent with the property’s RA-1
residential district zoning, the proposed use as a residence with twentyfour hour, supervised, community-living accommodations and parentalstyle leadership for students, did not qualify as a rectory. Dkt. No. 61-5.
On February 6, 2009, Attorney Campbell again wrote to Dedrick,
claiming that Candlehouse’s proposed use of the Mirador property
constituted a “family/functional equivalent of a family under the Town of
Vestal Code.”2 Dkt. No. 69-2.

2

Section 24-1 of the Town’s zoning code defines “family” as follows:
Family means:
(1)

Any number of persons occupying a single dwelling
single dwelling unit, related by blood, marriage or legal
adoption, living and cooking together as a single
housekeeping unit.

(2)

Any number of persons occupying a single dwelling
unit, not exceeding five (5) adults living and cooking
together as a single housekeeping unit where all were
not related by blood, marriage or legal adoption.

(3)

Notwithstanding the provisions of subsection (2) of this
definition, a group of unrelated persons numbering
more than five (5) shall be considered a "family[“]: upon
a determination by the zoning board of appeals that the
group is the functional equivalent of a family pursuant
to the standards enumerated in subsection (1) herein.
Thia presumption may be rebutted and the non-related
individuals may be considered the functional equivalent
of a "family" for the purposes of this article by the
zoning board of appeals if such group of individuals
exhibits one (1) or more characteristics consistent with
10

the purposes of zoning restrictions in residential
districts.
(4)

In determining whether a group of more than five (5)
unrelated persons constitutes a "family" for the purpose
of occupying a dwelling unit, as provided for in
subsection (3) of this definition, the zoning board of
appeals shall utilize the standards enumerated in
subsection (1) in making said determination. Before
making a determination under this subsection, the
zoning board of appeals shall hold a public hearing,
after public notice. Said application shall be on a form
provided by the zoning board of appeals accompanied
by the required fee.

(5)

In making a determination under subsection (4), the
zoning board of appeals shall find that:
a.

The group is one which in theory, size,
appearance and structure resembles a
traditional "family” unit.

b.

The group is one which will live and cook
together as a single housekeeping unit.

c.

The group is of a permanent nature and is
neither a framework for transient or seasonal
living nor merely an association or relationship
which is transient.

d.

In no case shall a dwelling be occupied by more
than two (2) adults to a conventional bedroom.

e.

All other requirements of this local law regarding
the use and occupancy of dwelling units shaIl be
complied with.

f.

Any determination under this subsection shall be
limited to the status of a particular group as a
family and shall not he interpreted as authorizing
any other use, occupancy or activity.

g.

In making any such determination, the board of
11

Dedrick responded by letter dated February 11, 2009, explaining
that how, in his view, Candlehouse’s proposed use does not comport with
any of the seven definitional paragraphs provided for in the Town’s zoning
Code related to family. Dkt. No. 61-7. He concluded by stating that “the
definition within the context of the Code of the Town of Vestal does not
allow me to affirm that the Candlehouse use, as presented in written and
oral information meets the criterial of a family.” Id. at 3.
On March 25, 2010, the Town’s Zoning Board of Appeals (“ZBA”)
entertained an appeal by Candlehouse concerning its proposed use of the
Mirador property.3 Dkt. No. 78-4. During the ZBA hearing, Candlehouse

appeals may impose such conditions and
safeguards as the board of appeals shall deem
necessary or advisable in order to maintain the
stability and character of the neighborhood and
protect the public health, safety and welfare,
including but not limited to ingress, egress.
lighting, off-street parking and screening.
(6)

Persons occupying group quarters such as a dormitory,
fraternity or sorority house or a seminary shall not·be
considered a “family”.

(7)

Occupancy by two (2) or more illegal aliens shall be
prescriptive evidence of a violation at this section.

Dkt. No. 60-1 at 7-8.
3

The ZBA is comprised of appointed members who receive no
compensation for their service; its function is to decide appeals from, and review
decisions of, the Town’s administrative officials related to zoning. Dkt. No. 60 at ¶ 8.
12

representatives made a presentation concerning their proposed use of the
Mirador property and were questioned by ZBA members regarding
Candlehouse’s program. Dkt. No. 78-4 at 5-53. Time was then allotted
for public comments, of which there were many. Id. at 55-70. Following
that hearing, the ZBA issued a decision, dated May 10, 2010,
unanimously concluding that Candlehouse does not meet the definition of
the functional equivalent of a family, and setting out the reasoning for the
its determination. Dkt. No. 70-5. In its decision, the ZBA considered and
applied the attributes of a family as set out in the governing ordinance,
concluding that (1) the proposed assembly of students does not resemble
a traditional family unit; (2) it is anticipated that the group will live and cook
together as a single housekeeping unit; (3) Candlehouse students are
anticipated to be transient in nature, rather than permanent, entering and
leaving as they are either rehabilitated or expelled; and (4) the proposed
bedroom would not be a “conventional” bedroom but instead would
contain rows of bunks for all students in one large room. Id. at 5-6.
On May 5, 2010, through counsel, Candlehouse argued to the Town
Board that its program is protected by the FHA and ADA, and formally
requested that the Town make a reasonable accommodation to its zoning

13

rules and policies in the form of either a waiver of the family requirement,
or, alternatively, an amendment of the Town’s zoning ordinance to permit
the desired use. Dkt. No. 69-11. The parties dispute whether, and when,
the Town Board decided Candlehouse’s reasonable accommodation
request.4
During the pendency of this action, Candlehouse has utilized the
Mirador property for various church related uses. However, it has had to
carry out the residential portion of its program elsewhere, requiring that its
students be transported on a daily basis to the Mirador property for
programming.
II.

PROCEDURAL HISTORY
Plaintiff commenced this action on January 26, 2011, asserting six

separate causes of action. Dkt. No. 1. Because plaintiff has voluntarily
dismissed three of those claims, only three remain, including (1)
discrimination on the basis of handicap, in violation of the FHA; (2)
discrimination based upon disability, in violation of the ADA; and (3) a

4

Although plaintiff argues that, when considered together, two letters from
defendant’s attorney (dated December 14, 2010, Dkt. No. 69-13, and May 10, 2012,
Dkt. No. 69-20) are tantamount to a denial, defendant argues that neither letter was a
denial of plaintiff’s request for a reasonable accommodation.
14

substantial burden on religious exercise, in violation of the RLUIPA.5 Dkt.
No. 1 at 7-11. As relief, plaintiff’s complaint seeks declaratory and
injunctive relief, as well as damages, costs, and attorney’s fees. Id. at 1112. On February 28, 2011, issue was joined by the filing of defendant’s
answer, in which it generally denied plaintiff’s allegations and asserted
various affirmative defenses. Dkt. No. 7.
Now that discovery has closed, both parties have filed motions for
summary judgment. Dkt. Nos. 59, 68. Defendant’s motion seeks
dismissal of all of plaintiff’s claims. Dkt. No. 59. Candlehouse requests
entry of partial summary judgment only with regard to its intentional
discrimination and reasonable accommodation claims under the FHA and
ADA. Dkt. No. 68-4 at 3. In addition, plaintiff has filed a motion to strike
defendant’s expert report and preclude her from testifying at trial. Dkt. No.
66. Plaintiff also seeks sanctions based upon the Town’s alleged failure
to produce and/or destruction of relevant evidence. Dkt. No. 64. Oral
argument was conducted in connection with the parties’ motions on

5

In response to defendant’s motion for summary judgment, plaintiff
“agree[d] to a voluntary nonsuit of its claims against Defendant under the First and
Fourteenth Amendment (Counts V and VI), and the Equal Terms Provision of the
[RLUIPA] (Count IV).” Dkt. No. 79 at 3. At oral argument, held on February 15, 2013,
the court dismissed those claims based upon plaintiff’s agreement.
15

February 14, 2013, at which time the court reserved decision on all of the
motions, with the exception of defendant’s motion for summary judgment
on the claims voluntarily dismissed by plaintiff. Text Minute Entry Dated
February 15, 2013.
III.

DISCUSSION
A.

Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal
Rules of Civil Procedure. Under that provision, the entry of summary
judgment is warranted “if the movant shows that there is no genuine
dispute as to any material facts and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391
F.3d 77, 82-83 (2d Cir. 2004). A fact is “material” for purposes of this
inquiry, if it “might affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426
F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is
genuinely in dispute “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

16

A party moving for summary judgment bears an initial burden of
demonstrating that there is no genuine dispute of material fact to be
decided with respect to any essential element of the claim in issue; the
failure to meet this burden warrants denial of the motion. Anderson, 477
U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial
burden is met, the opposing party must show, through affidavits or
otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P.
56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve
any ambiguities, and draw all inferences, in a light most favorable to the
nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d
133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified
only in the event of a finding that no reasonable trier of fact could rule in
favor of the non-moving party. Bldg. Trades Employers’ Educ. Ass’n v.
McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477
U.S. at 250 (finding summary judgment appropriate only when “there can
be but one reasonable conclusion as to the verdict”). In a case such as
this, where parties have interposed cross-motions for summary judgment,
each motion must be independently assessed, using this standard as a

17

backdrop. See Light Sources, Inc. v. Cosmedico Light, Inc., 360 F.
Supp.2d 432, 434 (D. Conn. 2005).
B.

Overview of Plaintiff’s Remaining Claims: The Statutory
Framework

The claims remaining in this case allege violations of three statutory
provisions. Specifically, Candlehouse alleges that the Town’s actions
violate the FHA and ADA, both of which prohibit discrimination in housing
based upon handicap or disability. In addition, Candlehouse alleges that
the Town’s actions have unreasonably burdened its exercise of religion,
in violation of the RLUIPA.
Under the FHA, it is unlawful “[t]o discriminate in the sale or rental,
or to otherwise make unavailable or deny, a dwelling to any buyer or enter
because of a handicap[.]” 42 U.S.C. § 3604(f)(1). Discrimination is
defined to include “a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such accommodations may be
necessary to afford [a handicapped] person equal opportunity to use and
enjoy a dwelling[.]” 42 U.S.C. § 3604(f)(3)(b); Reg’l Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 45 (2d Cir. 2002)
(“RECAP”). Similarly, Title II of the ADA prohibits discrimination on the
basis of disability by public entities, providing that “no qualified individual
18

with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132; RECAP, 294 F.3d at 45. Both the ADA and
FHA apply to municipal zoning determinations. RECAP, 294 F.3d at 4546. Discrimination is actionable under the ADA and FHA pursuant to one
of three distinct theories, including (1) intentional discrimination, or
disparate treatment; (2) disparate impact; and (3) failure to make a
reasonable accommodation. Tsombanidis v. W. Haven Fire Dep’t, 352
F.3d 565, 574 (2d Cir. 2003).
Plaintiff’s third remaining claim arises under the RLUIPA, which
provides, in pertinent part, that
[n]o government shall impose or implement a land
use regulation in a manner that imposes a substantial
burden on a religious exercise of a person, including
a religious assembly or institution, unless the
government demonstrates that imposition of the
burden on that . . . institution –
(A)

is in furtherance of a compelling governmental
interest; and

(B)

is the least restrictive means of furthering that
compelling governmental interest.

42 U.S.C. § 2000cc(a)(1). In a land-use context, a substantial burden is
19

interposed when “government action . . . coerces the religious institution
to change its behavior[.]” Westchester Day Sch. v. Vill. of Mamaroneck,
504 F.3d 338, 349 (2d Cir. 2007) (emphasis in original).
C.

Standing

“In every federal case, the party bringing the suit must establish
standing to prosecute the action.” Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 11 (2004). Arising from the case and controversy
requirement of Article III of the Constitution, “[i]n essence the question of
standing is whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S.
490, 498 (1975); see also Clapper v. Amnesty Int’l, 133 S. Ct. 1138,
(2013). The standing requirement is reflective of “an idea, which is more
than an intuition but less than a rigorous and explicit theory, about the
constitutional and prudential limits to the powers of an unelected,
unrepresentative judiciary in our kind of government.” Allen v. Wright, 468
U.S. 737, 750 (1984) (internal quotation marks omitted). To establish
standing for purposes of the constitutional “case or controversy”
requirement, a plaintiff must show that he personally has suffered an
injury that is “concrete, particularized, and actual or imminent; fairly

20

traceable to the challenged action; and redressable by a favorable ruling.”
Clapper, 133 S. Ct. at 1147 (internal quotation marks omitted). Before
proceeding to the merits of the pending motions, I must first determine
sua sponte whether plaintiff has standing to litigate the claims asserted in
its complaint.6
For two reasons, I find that Candlehouse possesses the requisite
standing necessary to pursue its claims. First, Candlehouse suffered a
concrete injury when the ZBA decided that its program failed to qualify as
the “functional equivalent of a family” under the relevant zoning provisions.
RECAP, 294 F.3d at 45, n.2. In addition, because Candlehouse’s
students comprise a class of individuals, all or some of whom possess
discrimination claims of their own right, and those interests are closely
aligned with those of Candlehouse, plaintiff also meets the requirements
for organizational standing. See id. (“[Plaintiff] serves a class of
individuals with discrimination claims; the interests at issue are germane
to [the plaintiff]’s purpose; and no individual participation is required under
these circumstances.”). I therefore find that plaintiff has standing to
litigate the claims asserted in its complaint. Id.; see also McKivitz v. Twp.

6

Defendant has not challenged plaintiff’s standing in this action.
21

of Stow, 769 F. Supp. 2d 803, 817-18 (W.D. Pa. 2010); First Step, Inc. v.
City of New London, 247 F. Supp. 2d 135, 148 (D. Conn. 2003).
D.

Disability/Handicap

In order to succeed under its FHA and ADA claims, plaintiff must
establish that its students are “handicapped” under the FHA, or “disabled”
as defined in the ADA. “To demonstrate a disability under [the FHA and
ADA], a plaintiff must show: (1) a physical or mental impairment which
substantially limits one or more major life activities; (2) a record of having
such an impairment; or (3) that [he is] regarded as having such an
impairment.”7 RECAP, 294 F.3d at 46; see also Bragdon v. Abbott, 524

7

More specifically, the term “handicap” under the FHA is defined as the

following:
[W]ith respect to a person–
(1)
a physical or mental impairment with substantially limits
one or more of such person’s major life activities,
(2)
a record of having such an impairment, or
(3)
being regarded as having such an impairment,
but such term does not include current, illegal use of or
addiction to a controlled substance[.]
42 U.S.C. § 3602(h). The ADA defines the term “disability” as follows:
[W]ith respect to an individual–
(A)
a physical impairment that substantially limits one or
more major life activities of such individual;
(B)
a record of such impairment; or
(C)
being regarded as having such an impairment[.]
42 U.S.C. § 12102(1).
22

U.S. 624, 631 (1998) (finding that “[t]he ADA’s definition of disability is
drawn almost verbatim from . . . the definition of ‘handicap’ contained in
the [FHA]”).
The Supreme Court has articulated a three-step test for determining
whether an individual’s alleged impairment constitutes a disability or
handicap under the ADA and FHA. Bragdon, 524 U.S. at 631;8 see also
Colwell v. Suffolk Cnty. Police Dep’t, 158 F.3d 635, 641 (2d Cir. 1998),
superseded by statute on other grounds by 42 U.S.C. § 12102(3)(A). The
first inquiry focuses upon whether the plaintiff suffers from an impairment.
Bragdon, 524 U.S. at 631. If so, then the court must next identify any
major life activity potentially limited by the impairment. Id. In the third
step, “tying the two statutory phrases together, [the court] ask[s] whether
the impairment substantially limit[s] the major life activity.” Id.
The question of whether Candlehouse can satisfy the
disability/handicap requirements of the FHA and ADA is fiercely contested
between the parties. Candlehouse director Mecklenborg notes that

8

Although the three-part test enunciated in Bragdon pertained to claims
under the ADA, in its analysis, the Supreme Court determined that the ADA is to “be
construed in accordance with pre-existing regulatory interpretations,” including the
FHA. Bragdon, 524 U.S. at 631. For this reason, I have extended the test to claims of
discrimination arising under the FHA.
23

among those served by Candlehouse are recovering drug and alcohol
addicts.9 Dkt. No. 70 at ¶ 8; Dkt. No. 70-2 at 1 (explaining that
Candlehouse has assisted “hundreds of women . . . to overcome
emotional problems, such as anxiety and depression, and additions to
drugs[,] alcohol and behaviors”). The Second Circuit has held that, while
“[a]lcoholism, like drug addiction, is an ‘impairment’ under the definitions
of a disability set forth in the FHA, [and] the ADA, . . . mere status as an
alcoholic or substance abuser does not necessarily imply a ‘limitation’
under the second part of that definition.”10 RECAP, 294 F.3d at 46-47
(citations omitted). “To prevail, a recovering drug addict or alcoholic must

9

According to plaintiff’s submissions, at the time of admission into the
Candlehouse program, a student must be drug and alcohol free. Dkt. No. 70 at ¶ 12.
10

In its motion for summary judgment, plaintiff argues that RECAP holds,
unequivocally, that alcoholics are disabled. Dkt. No. 68-4 at 8. This argument,
however, misconstrues the court’s holding in RECAP. RECAP actually held that,
because one of the plaintiff’s “baseline prerequisite[s] for admittance” to its facility is
the “inability to live independently without suffering a relapse,” then by definition
plaintiff’s residents were disabled. RECAP, 294 F.3d at 47-48. Here, Candlehouse’s
admission requirements do not mandate that a potential student suffer from any per se
impairment under an FHA/ADA disability analysis, or, importantly, that a potential
student demonstrate that her impairment limits a major life activity as required under
the FHA and ADA. While the record appears to suggest that plaintiff requires a
prospective student to suffer from “life controlling issues,” a term that seems to only
imply a limitation to a major life activity, the only record evidence that supports this
implication is Mecklenborg’s affidavit, in which he states, in conclusory fashion, “I have
personally witnessed each and every resident of Candlehouse struggle in a significant
manner with at least one major life activity at the time of enrolling in Candlehouse[.]”
Dkt. No. 70 at ¶ 14.
24

[also] demonstrate . . . that this addiction substantially limit[s] one or more
of his major life activities.” Buckley v. Consol. Edison Co. of New York,
Inc., 127 F.3d 270, 274 (2d Cir. 1997); see also RECAP, 294 F.3d at 48.
As a result, plaintiff in this case is not relieved of its burden to prove each
of the three elements under the ADA/FHA-disability analysis, including to
(1) demonstrate that its students suffer from a mental or physical
impairment, (2) identify the major life activity that has allegedly been
limited by the impairment, and (3) prove that the impairment caused the
limitation in the previously identified major life activity.
This action presents a situation that is distinct from that presented in
Oxford House, Inc. v. Town of Babylon, 819 F. Supp. 1179 (E.D.N.Y.
1993), and similar cases, involving programs whose constituents all suffer
from the same impairment, like alcoholism or drug addiction. In this case,
Candlehouse serves women struggling with a variety of impairments.
Indeed, it is abundantly clear from the record that a potential Candlehouse
student need not suffer from alcoholism or drug addiction in order to
qualify for admission. See Dkt. No. 70 at ¶ 8 (“A few students at
Candlehouse are admitted because of their struggle with a mental illness
or diagnosis[.]”); Dkt. No. 70-2 at 1 (“[Since its inception,] hundreds of

25

women have been helped to overcome emotional problems, such as
anxiety and depression, and addictions to drugs[,] alcohol and
behaviors.”). Instead, the record now before the court suggests that
admission into Candlehouse depends only on whether a candidate suffers
from a “life controlling issue,” a phrase that is not explicitly defined
anywhere in the record. See Dkt. No. 68-2 at ¶¶ 4, 10 (explaining that
Candlehouse is an accredited Teen Challenge program, and that Teen
Challenge “provides support for individuals struggling with life-controlling
problems”); Dkt. No. 70 at ¶ 3 (Mecklenborg averring that “Candlehouse . .
. is a[n] . . . organization which . . . restore[s] individuals who struggle with
life controlling problems such as alcohol abuse and/or who struggle with
emotional disorders”); Dkt. No. 70-2 at 2 (explaining that the profile of a
Candlehouse student is one who is “unable to do normal life activities”).
Accordingly, by virtue of their pending motions, the parties in
essence have asked the court to determine how many of Candlehouse’s
students must be found “disabled” or “handicapped” under the ADA and
FHA in order for Candlehouse to seek relief under those statutes.11
Plaintiff contends that the inclusion of some non-disabled students into its
11

Defendants do not appear to dispute that at least some of plaintiff’s
students may qualify as disabled under the FHA and ADA.
26

program does not preclude it from seeking the protections offered by the
FHA and ADA. Dkt. No. 79 at 10-11 (citing Innovative Health Sys., Inc. v.
City of White Plains, 117 F.3d 37, 48 (2d Cir. 1997); Valley Housing LP v.
City of Derby, 802 F. Supp. 2d. 359, 384 (D. Conn. 2011) (citing
Innovative Health Sys., Inc.). The primary case offered by Candlehouse
in support of this argument, however, is not directly on point.
In Innovative Health Sys., Inc., the Second Circuit considered
whether a drug rehabilitation program is protected by the ADA when some
of its clients are not drug-free and, therefore, are excluded from the
definition of “disability” under the ADA based upon their unlawful use of
drugs. Innovative Health Sys., Inc., 117 F.3d at 48-49. The court held
that “[a]n inevitable, small percentage of failures should not defeat the
rights of the majority of participants in the rehabilitation program who are
drug-free and therefore disabled under both statutes.” Id. at 48. In this
case, however, Candlehouse assists women with “life controlling issues,”
a term that is not defined in the record, but does not exclusively require a
woman to be suffering from a condition recognized as a per se impairment
under the definition of disability.12 See Dkt. No. 70 at ¶ 8 (“A few students
12

Innovative Health Sys., Inc.’s procedural posture also distinguishes it
from this case. That matter was decided on appeal from the issuance of a preliminary
27

at Candlehouse are admitted because of their struggle with a mental
illness or diagnosis[.]”)
In any event, even assuming that Innovative Health Sys., Inc. stands
for the proposition that a mixed-population of disabled and non-disabled
students would not necessarily disqualify a program sponsor from the
protections of the FHA and ADA, that case held only that a “small
percentage” of non-disabled participants would not deprive the
organization from the benefit of those protections. Innovative Health Sys.,
Inc., 117 F.3d at 49. The question of what constitutes a “small
percentage,” however, is left unanswered by the Second Circuit’s
decision.13 See generally id.
Without further guidance from controlling authority, and in
consideration of the broad remedial purposes to be achieved by the ADA
and FHA, I find that, to succeed in any of its claims under those statutes,

injunction, and the court discussed the nature of the plaintiff’s residents’ impairments
when inquiring into the likelihood-of-the-success prong of the preliminary injunction
analysis. Innovative Health Sys., Inc., 117 F.3d at 48. In addition, the Second Circuit
appears to have assumed that a drug addict is disabled by virtue of his diagnosis
without, for example, inquiring into whether his addiction actually limits a major life
activity. Id.
13

Interestingly, the Second Circuit expressed its doubt that any of the
plaintiff’s participants actually used drugs because, inter alia, the program did not
permit drug use.
28

Candlehouse must establish that a majority of its students are disabled.
This finding is consistent with the sparse case law that has addressed
whether an organization that serves a mixed group of disabled and nondisabled participants is protected by the FHA and ADA. See Innovative
Health Sys., Inc., 117 F.3d at 49 (holding that, to the extent that “a small
percentage” of residents at a drug rehabilitation program were not drugfree, the program was not precluded from the protections of the ADA and
Rehabilitation Act); Valley Housing LP v. City of Derby, 802 F. Supp. 2d.
359, 384 (D. Conn. 2011) (finding that the plaintiff was protected by the
FHA, ADA, and Rehabilitation Act where it served relapsed alcoholics);
Keys Youth Svcs. v. City of Olathe, Kan., 52 F. Supp. 2d 1284, 1297-1300
(D. Kan. 1999) (holding that, because the potential residents’ impairments
will substantially limit one or more major life activity in “at least some” of
the individuals, the plaintiff was protected by the FHA).
Having determined the threshold question of how many of
Candlehouse’s residents must be found disabled for it to seek protection
under the ADA and FHA, the next question is whether the record evidence
supports a finding that the majority of Candlehouse’s residents are
disabled. In connection with the pending motions, the parties collectively

29

have submitted only partial information concerning eleven of the 110
students that have participated in Candlehouse’s program.14 Dkt. No. 71
(sealed). Clearly, eleven of 110 is not a majority, and thus, even
assuming that all eleven case files demonstrate that those students have
a disability, I am unable to conclude at this juncture that the majority of
plaintiff’s students are disabled.
In summary, based on the record now before me, I find that there
remain genuine disputes of material fact to be resolved in connection with
whether Candlehouse serves a sufficient number of disabled students to
extend the protections of the ADA and FHA to its program. As a result,
this material threshold issue thus precludes the entry of summary
judgment in favor of plaintiff on any of its ADA and FHA claims.15
D.

Intentional Discrimination

One of the theories of discrimination advanced by Candlehouse
under the ADA and FHA is the claim that the Town engaged in intentional
discrimination by denying the application to have its proposed use of the
14

Only one full student file is on record with the court. Dkt. No. 85 (sealed).

15

Of course, this finding does not preclude the entry of summary judgment
in favor of defendant because it is possible that, even assuming plaintiff can meet the
threshold requirement of demonstrating it serves a disabled population, there is
insufficient record evidence to give rise to a dispute of material fact as to the other
elements of its various discrimination claims.
30

Mirador property be considered the functional equivalent of a family under
the Town’s relevant zoning laws. Both parties seek the entry of summary
judgment with respect to this claim.
Claims of intentional discrimination under the ADA and FHA are
properly analyzed utilizing the familiar, burden-shifting model developed
by the courts for use in employment discrimination settings dating back to
the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). RECAP, 294 F.3d at 48-49. Under that analysis, a
plaintiff must first establish a prima facie case of intentional discrimination
under the FHA and ADA by “present[ing] evidence that animus against the
protected group was a significant factor in the position taken by the
municipal decision-makers themselves or by those to whom the decisionmakers were knowingly responsive.” RECAP, 294 F.3d at 49 (internal
quotation marks omitted, emphasis in original). Once a plaintiff makes out
its prima facie case, “the burden of production shifts to the defendants to
provide a legitimate, nondiscriminatory reason for their decision.” RECAP,
294 F.3d at 49. “The plaintiff must then prove that the defendants
intentionally discriminated against them on a prohibited ground.” Id. The
factfinder is permitted “to infer the ultimate fact of discrimination” if the

31

plaintiff has made “a substantial showing that the defendants’ proffered
explanation was false.” Id. (internal quotation marks omitted).
The key inquiry in the intentional discrimination analysis is whether
discriminatory animus was a motivating factor behind the decision at
issue. Tsombandis, 352 F.3d at 579. The Second Circuit has identified
the following five factors a factfinder may consider in evaluating a claim of
intentional discrimination:
(1) the discriminatory impact of the governmental
decision; (2) the decision’s historical background; (3)
the specific sequence of events leading up to the
challenged decision; (4) departures from the normal
procedural sequences; and (5) departures from
normal substantive criteria.
Tsombanidis, 352 F.3d at 580 (internal quotation marks omitted).
In this case, there is considerable record evidence reflecting that
many Town residents, including members of the Town Board, were
unsupportive of the prospect of Candlehouse moving into the Mirador
property.16 While potentially relevant, the intent of the Town residents is
16

Indeed, the record evidence establishes that many Town residents
demonstrably opposed Candlehouse’s proposed use of the Mirador property. See,
e.g., Dkt. No. 70 Exh. E (DVD) (traditionally filed, not electronically filed); Dkt. No. 70-3.
A videotape recording of the neighborhood meeting held on December 22, 2008, to
discuss the proposal reveals that many community members openly expressed
displeasure against the prospect of Candlehouse moving into the neighborhood. Dkt.
No. 70 Exh. E (DVD) (traditionally filed, not electronically filed). For example, one or
more of the community residents compared plaintiff’s students that are recovering
32

not the focus of the intentional discrimination inquiry, nor is the motivation
of the Town Board, as an entity distinct from the ZBA.17 Instead, to
prevail, plaintiff must demonstrate that the decisions by the Town’s CEO,
Dedrick, and ZBA were discriminatorily motivated.
The record evidence now before the court discloses the existence of
a sharp dispute as to whether the CEO Dedrick and ZBA were, in fact,
influenced by community animus in their decisionmaking. The record
does not definitively reveal the extent of interaction between members of
the Town Board, some of whom were clearly opposed to the project, and
CEO Dedrick, who made the initial decision to deny Candlehouse’s
proposal for use of the Mirador property. Town Board member Bielecki
testified during his deposition that he spoke with Dedrick regarding
Candlehouse on different occasions, including prior to the board meeting
on December 17, 2008, and after the neighborhood meeting held on
December 22, 2008. Dkt. No. 69-16 at 3, 6-7. In contrast, Dedrick denies

alcoholics and drug addicts to sex offenders and felons. Id. At least two Town Board
members in attendance spoke out against Candlehouse moving into the area. Id.
One of those Town Board members even appeared to threaten to have the district
rezoned so that Candlehouse could not move in. Id. In total, four Town Board
members attended this community meeting. Dkt. No. 69-3 at 5.
17

As is discussed more below, the intent and motivation of the Town Board
is, however, relevant to plaintiff’s request for a reasonable accommodation.
33

speaking with any Town officials regarding the Candlehouse matter
between at least October 12, 2008, and January 1, 2009. Dkt. No. 69-18
at 8-9; Dkt. No. 61 at ¶ 32.
Turning to the ZBA’s motivation, in his affidavit Acting ZBA
Chairman Mark Tomko states that the packet of information received by
the ZBA when a party appeals a decision by CEO Dedrick typically
contains only the appellant’s submissions, as well as any responses to
those submissions from Town officials. Dkt. No. 60 at ¶ 18. He also
states that “[t]his packet does not contain any letters or correspondence
from town officials regarding their feelings or interpretations of the Zoning
Code.” Id. at ¶ 9. Moreover, the transcript of the ZBA’s hearing on
Candlehouse’s appeal does not reflect that any of the ZBA board
members engaged in discriminatory questioning, or were influenced by the
public comments that followed the formal presentation by plaintiff and the
question-and-answer period from the ZBA board members. See generally
Dkt. No. 60-3. The ZBA board members’ questions were objective in
nature, and focused on the question of whether plaintiff’s organization
operates as the functional equivalent of a family. Id. at 17-54. The ZBA’s
written decision is facially neutral, and focuses on the zoning ordinance’s

34

definition of family. Dkt. No. 60-4. All of this evidence suggests that the
ZBA was not influenced by discriminatory intent in denying plaintiff’s
appeal.
As a counterweight to this evidence, the record discloses that,
before accepting any public comment at the ZBA hearing, Chairman
Tomko acknowledged that whether plaintiff may establish itself in the area
has created some “a lot of issues” for the community. Dkt. No. 60-3 at 54.
Although in his affidavit Tomko attempts to distance himself and the ZBA
from the community’s outcry, this acknowledgment at the hearing
indicates that he possessed at least some awareness of the community
sentiment opposed to Candlehouse’s program. The fact that the ZBA
heard public comment and received letters from the public in lieu of live
testimony at the ZBA hearing, and made a record of the proceeding,
further suggests that the ZBA was not entirely insulated from the
community’s disapproval of Candlehouse.18
For all of these reasons, I conclude that there remain genuine

18

Although the court acknowledges that, even assuming Dedrick and the
ZBA were aware of the community’s disapproval of Candlehouse, such awareness
does not necessarily mean that Dedrick and the ZBA’s decisions were motivated by
discrimination. However, plaintiff has at least submitted sufficient evidence to give rise
to a dispute of fact as it relates to this issue.
35

disputes of material fact as to whether CEO Dedrick or the ZBA were
motivated by discriminatory intent in denying Candlehouse’s request to
find that its program meets the functional equivalent of a family under the
Town’s zoning laws. As a result, the parties’ motions for summary
judgment, as they relate to plaintiff’s intentional discrimination claim, are
denied.
E.

Disparate Impact

Candlehouse also claims that the Town’s application of its zoning
ordinance and decision not to find that its proposed use of the Mirador
property constitutes the functional equivalent of a family resulted in a
disparate impact upon Candlehouse’s disabled residents. Only defendant
has moved for summary judgment with respect to this claim.
“To establish a prima facie case under this theory, the plaintiff must
show: (1) the occurrence of certain outwardly neutral practices, and (2) a
significantly adverse or disproportionate impact on persons of a particular
type produced by the defendant’s facially neutral acts or practices.”
RECAP, 294 F.3d at 52-53 (internal quotation marks omitted). “A plaintiff
need not show the defendant’s action was based on any discriminatory
intent.” Tsombanidis, 352 F.3d at 575. To prove that a neutral practice

36

has a significantly adverse or disproportionate impact “on a protected
group, a plaintiff must prove the practice actually or predictably results in
discrimination.” Tsombanidis, 352 F.3d at 575 (internal quotation marks
and alterations omitted). In addition, a plaintiff must prove “a causal
connection between the facially neutral policy and the alleged
discriminatory effect.” Id. Once a plaintiff establishes its prima facie case,
“the burden shifts to the defendant to prove that its actions furthered, in
theory and in practice, a legitimate, bona fide governmental interest and
that no alternative would serve that interest with less discriminatory
effect.” Id. (internal quotation marks omitted).
“The basis for a successful disparate impact claim involves a
comparison between two groups – those affected and those unaffected by
the facially neutral policy. This comparison must reveal that although
neutral, the policy in question imposes a significantly adverse or
disproportionate impact on a protected group of individuals.”
Tsombanidis, 352 F.3d at 575.
“Statistical evidence is . . . normally used in cases involving fair
housing disparate impact claims.” Tsombanidis, 352 F.3d at 575-76.
“Although there may be cases where statistics are not necessary, there

37

must be some analytical mechanism to determine disproportionate
impact.” Id. at 576 (emphasis added). A plaintiff may choose to
undertake a “qualitative comparison” to demonstrate adverse or
disproportionate impact. Id. at 577. This type of comparison was
described in Tsombanidis in the following way:
In such a comparison, plaintiffs would have to show
that the average recovering in West Haven has a
greater need – qualitatively – for group living than
does the average non-recovering in West Haven.
This would likely require some quantification of what
each group ‘needs’ from a living arrangement
standpoint. A court could then conclude that, despite
whether the quantitative test is met, there is a
qualitatively disproportionate impact on recoverings
in West Haven.
Id.
In this case, to prevail on its disparate impact claim, Candlehouse
must do more than merely show that the Town’s enforcement of its facially
neutral zoning provisions has adversely affected its students. It must also
establish, through statistics or some other reliable analytical mechanism,
that defendant’s neutral policy actually or predictably created a shortage
of housing for the individuals served by Candlehouse’s program. See
Tsombanidis, 352 F.3d at 576 (reversing district court where the plaintiff
could not show that the defendant’s fire code “actually or predictably

38

created a shortage of housing for recovering alcoholics in the
community”); see also Hack v. President & Fellows of Yale Coll., 237 F.3d
81, 91 (2d Cir. 2000) (finding no disparate impact where “[t]he [plaintiffs]
do not allege that [the defendant’s] policy has resulted in or predictably will
result in under-representation of Orthodox Jews in [university] housing”);
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 933 (2d
Cir. 1988) (“To establish a prima facie case under the disparate impact
analysis, a plaintiff must prove that the challenged practice ‘actually or
predictably’ results in discrimination.”).
Here, the parties agree that the zoning ordinance at issue is facially
neutral. Compare Dkt. No. 65 at 24 (“It is undisputed that the Town of
Vestal Zoning Code provisions at issue are facially neutral[.]”) with Dkt.
No. 79 at 16 (“Here, neither party seems to dispute that Defendant’s
zoning ordinance defining ‘family’ and/or ‘functional equivalent of family’
appears to be an outwardly neutral law.”). They are at odds, however,
over whether it disproportionally affects the group of individuals served by
Candlehouse. Plaintiff has not provided any statistical evidence
demonstrating that potential candidates for its program suffer from a
shortage of housing as a result of defendant’s policies. Nor has plaintiff

39

undergone a qualitative comparison between that group and one that
does not suffer from any of the same impairments, and evaluated whether
there is a greater need of residential housing for its group of students.
Candlehouse argues that, because a district court in New Jersey
found that “‘people who are handicapped by alcoholism or drug abuse are
more likely to need a living arrangement . . . in which groups of unrelated
individuals reside together in residential neighborhoods,’” this gives the
court license to find that plaintiff has met its burden of demonstrating the
requisite disparate impact caused by application of the Town’s zoning
laws. Dkt. No. 79 at 17 (quoting Oxford House, Inc. v. Twp. of Cherry Hill,
799 F. Supp. 450, 461 (D. N.J. 1992)). Plaintiff has conceded, however,
that not all of its students are recovering alcoholics or drug addicts.
Instead, the record is clear that Candlehouse serves a mixed group of
women who suffer from “life controlling issues” (which, again, is not
defined), including, inter alia, emotional distress unrelated to drugs or
alcohol use. Dkt. No. 76 at ¶¶ 9, 10; Dkt. No. 68-1 at ¶ 11. A comparison
between a group of only alcoholics or only drug addicts and plaintiff’s
mixed population is therefore inappropriate.
Plaintiff has failed to cite, and the court has been unable to locate,

40

any cases finding that a facially neutral ordinance has adversely or
disproportionately impacted a group of individuals with varying
impairments. In any event, plaintiff’s complaint alleges that “several nonreligious residential treatment homes and/or group homes similar to the
use proposed by [plaintiff] are located in the RA1[,] including a home for
the mentally disabled.” Dkt. No. 1 at ¶ 15. Although not conclusive, this
allegation suggests that there are available group homes in the relevant
residential areas, in which at least some of plaintiff’s students could
reside. The existence of other group homes in residential areas also
suggests that the facially neutral ordinance does not actually or
predictably discriminate against at least some, depending on their
impairment, of plaintiff’s students.
I note, moreover, that plaintiff’s only proof the students are in need
of a “family-style residential living arrangement” to assist in “the recovery
process” is the affidavit of plaintiff’s director, Richard Mecklenborg. Dkt.
No. 70 at ¶¶ 16, 21. That affidavit conclusorily states that a residential
neighborhood allows students to spend much of their time outside,
thereby providing “incentive” and “motivation” for its residents. Id. at ¶ 19.
Importantly, however, Mecklenborg does not explain how a location in a

41

non-residential area precludes the students from spending the same
amount of time outdoors, nor does he articulate a basis for his belief that
access to the outdoors provides an incentive or motivation for
Candlehouse students. See generally Dkt. No. 70. Indeed, there is
record evidence that students are tightly restricted in their ability to go
outside of the residence into the community, particularly in the beginning
months after arriving. Dkt. No. 70 Exh. E (traditionally filed, not
electronically filed); Dkt. No. 68-1 at ¶ 13 (explaining that students go
outdoors with supervision).
Finally, to prevail on a disparate impact claim, plaintiff must show
that defendant’s admittedly facially neutral ordinances predictably
discriminates against plaintiff’s students as a whole, and not a group of,
for instance, only alcoholics or only drug addicts. Because it serves a
mixed population of students, suffering from potentially diverse
impairments, Candlehouse cannot establish that the facially neutral
ordinance will predictably discriminate against that group, comprised of
students with varying needs.
In light of the lack of statistical or other evidence reliably
demonstrating a dispute of material fact regarding the existence of the

42

required disparate impact as a result of the Town’s facially neutral zoning
ordinance and its application, I conclude that no reasonable factfinder
could rule in favor of the plaintiff with respect to plaintiff’s disparate impact
cause of action.19 Accordingly, summary judgment is granted in the
Town’s favor dismissing this claim.
G.

Reasonable Accommodation

Plaintiff has also asserted a reasonable accommodation claim under
the FHA and ADA against the Town. Both parties seek the entry of
summary judgment on this cause of action.
Under the FHA and ADA, “a governmental entity engages in a
discriminatory practice if it refuses to make a ‘reasonable accommodation’
to ‘rules, policies, practices or services when such accommodation may
be necessary to afford a handicapped person equal opportunity to use
and enjoy a dwelling.’” Tsombanidis, 352 F.3d at 578 (quoting 42 U.S.C.
§ 3604(f)(3)(B)) (alternation omitted). “Thus, these statutes require that

19

This is true notwithstanding whether plaintiff is able to prove that the
majority of its students are disabled under the ADA and FHA. More specifically, even
assuming that plaintiff could prove that its student population is comprised of a
sufficient number of disabled persons thereby establishing that Candlehouse is
protected by the ADA and FHA, it has failed to come forward with specific facts
showing a genuine dispute of material fact for trial as to whether defendant’s zoning
ordinance actually or predictably discriminates against its students.
43

changes be made to such traditional practices if necessary to permit a
person with handicaps an equal opportunity to use and enjoy a dwelling.”
Tsombanidis, 352 F.3d at 578 (internal quotation marks omitted); see also
Millington v. Temple Univ. Sch. of Dentistry, 261 F. App’x 363, 367, n.5
(3d Cir. 2008) (“To show discrimination based on a failure to provide
reasonable accommodations the requested accommodation not only must
be reasonable; it must also be necessary, and it must not fundamentally
alter the nature of the program.” (citing PGA Tour, Inc. v. Martin, 532 U.S.
661, 681-83 (2001)). “Whether or not something constitutes a reasonable
accommodation is necessarily fact-specific.” Wernick v. Fed. Reserve
Bank, 91 F.3d 379, 384 (2d Cir. 1996).
To prevail under a reasonable accommodation theory in this type of
case, a plaintiff “must show that, but for the accommodation, [its residents]
likely will be denied an equal opportunity to enjoy the housing of their
choice.” Tsombanidis, 352 F.3d at 578 (internal quotation marks omitted).
“A defendant must incur reasonable costs and take modest, affirmative
steps to accommodate the handicapped as long as the accommodations
sought do not pose an undue hardship or a substantial burden.” Id. In
addition, “[t]he [defendant] is not required to grant an exception for a

44

group of people to live as a single family, but it cannot deny the variance
request based solely on plaintiffs’ handicap where the requested
accommodation is reasonable.” Id. at 580.
In this instance, there is a dispute of material fact as to whether
defendant’s denial of plaintiff’s request for a reasonable accommodation
was based on the impairments of its students. Specifically, plaintiff
alleges that, in its letter dated December 14, 2010, responding to plaintiff’s
request for a reasonable accommodation, defendant stated that it “was
not agreeable at this time to [plaintiff’s] demand.” Dkt. No. 68-3 at ¶ 78.
However, defendant disputes that this letter actually responded to
plaintiff’s request for a reasonable accommodation.20 Dkt. No. 74 at ¶ 78.
According to a letter from defendant’s counsel dated May 10, 2012, it
appears that defendant formally denied plaintiff’s request for a reasonable
accommodation in a private executive session of the Town Board. Dkt.
No. 69-20 at 1. As a result, there is no direct evidence upon which I may
rely in determining the motivation for the Town Board’s decision to deny
the requested accommodation.
20

Significantly, defendant’s counsel, in a later letter to plaintiff’s attorney,
indicated that, when he stated that the Town was not agreeable to plaintiff’s request,
he was, in fact, referring to plaintiff’s request for a reasonable accommodation. Dkt.
No. 69-20 at 1.
45

In response to an interrogatory, the Town has offered the following
explanation for its decision to deny plaintiff’s request for an
accommodation:
The defendant has a legitimate interest in creating
single-family neighborhoods comprised of singlefamily residences. The plaintiff’s proposed use of a
nonconforming structure as a one family residence
would cause a fundamental alteration in the zoning
scheme of the town. Furthermore, the proposed use
and the proposed density of such use also seems
contrary to the long-standing zoning scheme involved
herein. record is not clear why defendant denied
plaintiff’s request for a reasonable accommodation.
Dkt. No. 69-3 at ¶ 11. This rationale does not implicate the impairments of
Candlehouse students as the basis for defendant’s denial of the
reasonable accommodation.
In contrast to this evidence, however, there is evidence that at least
some of the Town Board members were biased against Candlehouse and
its proposal. For example, a review of the recording of the neighborhood
meeting held on December 22, 2008, demonstrates that at least two of the
Town Board members spoke out against the prospect of Candlehouse
moving into the neighborhood. Dkt. No. 7 Exh. E (traditionally filed, not
electronically filed). Indeed, as was previously noted, one Town Board
member went so far as to seemingly threaten to have the area rezoned so
46

that Candlehouse could not move into the Mirador property. Id. Because
there is conflicting evidence as to the basis for the Town Board’s denial of
plaintiff’s reasonable accommodation, defendant’s motion for summary
judgment, as it relates to this claim, is denied.21
H.

Plaintiff’s RLUIPA Substantial Burden Claim

In its sole remaining non-ADA/FHA claim, plaintiff alleges that,
through its conduct, the Town has placed an undue substantial burden on
its religious exercise rights guaranteed under the RLUIPA. Only
defendant has moved for summary judgment on this claim.
Section 2000cc(a)(1) of the RLUIPA provides, in pertinent part, as
follows:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial
burden on the religious exercise of a person,

21

The entry of summary judgment concerning this cause of action is also
precluded by the existence of an existing dispute of fact as to whether the
accommodation sought by Candlehouse is necessary to serve its students’
impairments. As was already discussed, those impairments vary, and there is no
record evidence, aside from Mecklenborg’s affidavit and deposition testimony, that the
students’ impairments require a residential neighborhood for rehabilitation. The nature
of the Candlehouse program, however, is such that the students are strictly managed
in virtually all of their daily activities, and do not go out into the community until they
have completed at least three to five months of the program. When they are allowed
out into the community, the students are supervised. Given these program
characteristics, it is not at all clear what a residential neighborhood offers the students
that a non-residential neighborhood could not, or that the program could not exist or be
successful in a non-residential neighborhood.
47

including a religious assembly or institution, unless
the . . . imposition of the burden . . . is in furtherance
of a compelling governmental interest; and . . . is the
least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. 2000cc(a)(1). In land-use contexts, the Second Circuit has held
that a “substantial burden” occurs when “a government action . . . coerces
the religious institution to change its behavior.” Westchester Day Sch.,
504 F.3d at 349 (emphasis in original). “[A] burden need not be found
insuperable to be held substantial.” Id.
“[T]o establish a prima facie violation of RLUIPA, a plaintiff must
show that the land use regulation at issue as implemented: (1) imposes a
substantial burden, (2) on the religious exercise, (3) of a person,
institution, or assembly.” Roman Catholic Diocese of Rockville Ctr., N.Y.
v. Inc. Vill. of Old Westbury, No. 09-CV-5195, 2012 WL 1392365, at *7
(E.D.N.Y. Apr. 23, 2012) (internal quotation marks omitted). Once a
plaintiff has established a prima facie case, “the burden shifts to the
government to demonstrate that the regulation furthers a compelling
governmental interest and is the least restrictive means of furthering that
compelling interest.” Roman Catholic Diocese, 2012 WL 1392365, at *7.
While the RLUIPA generally forbids governmental action that

48

substantially burdens religious exercise and lacks a compelling interest, “a
law that is neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the incidental effect
of burdening a particular religious practice.” Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); accord, Chabad
Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfiled, C.T., 853 F.
Supp. 2d 214, 221-22 (D. Conn. 2012). “[E]ven if the [neutral and
generally applicable] statute has the effect of incidentally burdening [the
plaintiff’s] religious exercise, the statute is constitutional so long as it
satisfies a rational basis review.” Chabad, 853 F. Supp. 2d at 225.
“Under rational basis review, the statute must be reasonable and not
arbitrary, and it must bear a rational relationship to a permissible state
objective.” Id. (internal quotation marks and alterations omitted).
In this case, Candlehouse argues that, because the Town’s
ordinance defining family and its functional equivalent restricts its full use
of the Mirador property by precluding it from operating a residence with
twelve students, the Town has placed a substantial burden on its religious
exercise. Dkt. No. 79 at 25. This argument, however, ignores the Second
Circuit’s requirement that “[t]here must exist a close nexus between the

49

coerced or impeded conduct and the institution’s religious exercise for
such conduct to be a substantial burden on that religion.” Westchester
Day Sch., 504 F.3d at 349. Accordingly, for its RLUIPA claim to survive
defendant’s motion for summary judgment, Candlehouse must
demonstrate the existence of a genuine dispute of material fact as to
whether there is a close nexus between the Town’s decision to deny its
proposed use of the Mirador property as a residence for more than five
unrelated people (“the coerced or impeded conduct”) and its religious
exercise. A careful review of the record reflects that plaintiff has satisfied
this burden.
The record reveals that Candlehouse is a Teen Challenge-affiliated
program; Teen Challenge operates as a Christian faith-based program
that offers “a balance of Bible classes, work assignments, and recreation.”
Dkt. No. 68-2 at ¶¶ 3, 4; Dkt. No. 70 at ¶ 3. There is evidence that the
Christian faith-based program is separate from the residential program.
See Dkt. No. 68-2 at ¶ 10 (“Along with the Christian faith-based program,
the other important component of Teen Challenge’s program is the familylike residential living arrangement each center provides to its students[.]”);
Dkt. No. 70 at ¶¶ 26, 27 (explaining that the church located on the Mirador

50

property is used for Teen Challenge classes and the print shop); see also
Dkt. No. 70 at ¶ 22 (“In September 2008, Candlehouse began considering
the purchase of [the Mirador property] for the purposes of combining its
residential campus and work training programs with the religious
component of the Teen Challenge program[,] which includes Bible study
and classes”). Although Mecklenborg states that Candlehouse’s inability
to operate a residence at the Mirador property precludes students from
participating in evening activities, he does not include any support for a
finding that these evening activities implement or incorporate religious
teachings. Dkt. No. 76 at ¶ 1. In addition, Mecklenborg and Cheryl
Clever, a former student and graduate of Candlehouse, explain that
having a residence on the Mirador property, which is located in a
residential neighborhood, provides students a “unique opportunity to
bond,” allows them to “develop and maintain relationships,” provides a
safe environment with access to the outdoors, and “enhances the spiritual
element of the program.” Dkt. No. 70 at 8-10, 18-19; Dkt. No. 68-1 at ¶
13. These explanations, however, provide the court with little guidance as
to what types of, if any, religious activity occurs at the residence, as
distinct from the church property, which plaintiff is permitted to utilize for

51

religious purposes.
At the ZBA hearing, however, counsel for plaintiff stated that “the
emphasis through [the] program is . . . to increase their faith and their
intimacy with God through a disciplined Christ-centered approach to a
family living experience[.]” Dkt. No. 60-3 at 7. In addition, counsel
explained that the daily routine for Candlehouse students includes periods
for worship, chapel, and devotional time interspersed throughout the day.
Id. at 13-14. The New York General Assemblies of God oversees the
Candlehouse program, and Candlehouse is an accredited Teen Challenge
program. Id. at 15; Dkt. No. 68-2 at ¶ 8. All of this evidence suggests that
the Candlehouse program incorporates religious components in every
aspect of a student’s experience. As a result, I find that there is a dispute
of fact as to whether the Town’s denial of its proposed use of the Mirador
property has affected Candlehouse’s religious exercise.
Notwithstanding whether there is a nexus between Town’s conduct
and Candlehouse’s religious exercise, there is nothing in the record to
support a finding that the Town’s conduct substantially burdened its
religious exercise. See Westchester Day Sch., 504 F.3d at 349 (finding
that, in land-use contexts, the relevant inquiry is whether “government

52

action . . . directly coerces the religious institution to change its behavior”).
First, under the Town’s ordinances, Candlehouse is permitted to operate a
residential facility for up to five unrelated persons. Candlehouse has not
set forth any reason how precluding it from housing an additional seven
students coerces it to change how it operates its program in relation to its
religious exercise. See Guru Nanak Sikh Society of Yuba City v. County
of Sutter, 326 F. Supp. 2d 1140, 1152 (E.D. Ca. 2003) (finding that for a
burden to be substantial, “the governmental regulation must compel action
or inaction with respect to the sincerely held belief; mere inconvenience to
the religious institution or adherent is insufficient” (citing Jolly v. Coughlin,
76 F.3d 468, 477 (2d Cir. 1996)). Second, Candlehouse’s argument that it
is financially burdened by operating two separate facilities is unpersuasive
because it ignores that it will have to operate two separate properties even
if it is permitted its desired use of the Mirador property because the
Mirador property is comprised of two separate properties – 400 and 401
Mirador Drive. See World Outreach Conf. Ctr. v. City of Chicago, 591
F.3d 531 (7th Cir. 2009) (finding no substantial burden on the plaintiff
where city denied it permission to demolish a building owned by plaintiff
because, inter alia, there was no record support for the alleged money lost

53

by the plaintiff, and the organization had suitable alternative site).
Accordingly, because plaintiff has failed to submit evidence giving rise to a
dispute of fact as to whether its religious exercise has been substantially
burdened, defendant’s motion for summary judgment on this claim is
granted.
I.

Plaintiff’s Motion to Preclude Defendant’s Expert Testimony

The Town has engaged Cassandra L. Bransford, Ph.D., LCSW-R, to
serve as an expert at trial. Dkt. No. 66-2. Dr. Bransford has a Bachelor’s
degree in English, Master’s degree in Social Work, and doctorate in Social
Work/Advanced Practice, and for the past eight years has served as an
Associate Professor of Social Work at Binghamton University. Id. at 1617.
In anticipation of testifying at trial, Dr. Bransford authored a report
dated July 31, 2012, in which she rendered and offered a basis for the
following seven opinions: (1) “Candlehouse does not meet the sociological
criteria for a functional family”; (2) “Candlehouse is a Therapeutic
Community, not an adult group home/halfway house”; (3) “Candlehouse
doesn’t need to be located in a residential zone”; (4) “There is no solid
research evidence to corroborate Candlehouse’s claims to effectiveness”;

54

(5) “Candlehouse does not follow evidence-based protocols for treating
individuals with co-occurring disorders”; (6) “There is no evidence to
support that Candlehouse residents are disabled or impaired”; and (7)
“There is documentation as to the transience of Candlehouse residents.”
Dkt. No. 66 at 12-13. Plaintiff now seeks an order striking Dr. Bransford’s
report and precluding her from testifying at trial. See generally Dkt. No.
66. Defendant has opposed plaintiff’s motion. See generally Dkt. No. 83.
1.

Governing Legal Principles

The admission of expert testimony in an action pending in a federal
court is governed by Rule 702 of the Federal Rules of Evidence, which
provides that
[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion
or otherwise if:
(a)

the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence to determine a fact
in issue;

(b)

the testimony is based on sufficient facts or
data;

(c)

the testimony is the product of reliable
principles and methods; and

55

(d)

the expert has reliably applied the principles
and methods to the facts of the case.

Fed. R. Evid. 702. When applying this standard to expert testimony
proffered by a party, a trial court is required to perform a gatekeeping
function to ensure “that the expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert v. Merrell Down
Pharms, Inc., 509 U.S. 579, 597 (1993).
As a threshold matter, the trial court must examine the question of
whether the challenged opinion evidence can satisfy the requirement of
Federal Rule of Evidence 401 that evidence offered at trial be relevant to a
controverted claim or defense in the case. Amorgianos v. National R.R.
Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002). If the requisite
degree of relevance is found, the court must then proceed to determine
whether the expert opinion sought to be admitted has a sufficiently reliable
foundation to allow its consideration by the factfinder. Amorgianos, 303
F.3d at 265. This latter inquiry is informed by various relevant factors,
including whether (1) the theory or technique can be (and has been)
tested; (2) it has been subjected to peer review and publication; (3) there
is a known or potential rate of error; and (4) the theory or technique has
gained a “degree of acceptance within” the pertinent scientific or technical
56

community. Daubert, 509 U.S. at 592-94. “‘General acceptance[,]’
[however,] is not a necessary precondition to the admissibility of scientific
evidence under the Federal Rules of Evidence, but . . . the trial judge [has]
the task of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Id. at 587. Importantly,
while both Rule 702 and the Supreme Court’s decisions in Daubert, and
later in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), identify
specific factors bearing on the question of reliability, courts have stressed
that “the Daubert inquiry is fluid and will necessarily vary from case to
case. Amorgianos, 303 F.3d. at 266; see also Daubert, 509 U.S. at 594.
Rule 702 does not require rejection of opinions based solely upon
the court’s disagreement with the conclusions reached or the correctness
of the opinions offered. Daubert, 509 U.S. at 595. Moreover, although in
the first instance the burden of establishing the admissibility of expert
testimony in question rests with the proponent, any doubts as to whether
the expert’s testimony will be useful should be resolved in favor of
admissibility. Lappe v. Am. Honda Motor Co., Inc., 857 F. Supp. 222, 226
(N.D.N.Y. 1994) (Hurd, M.J.).

57

2.

Application of Legal Principles

When analyzed against the backdrop of the foregoing principles,
only three of Dr. Bransford’s seven opinions listed in her report satisfy the
criteria for admission at trial. I address each of the opinions below.
a.

Functional Family

One of the opinions offered by Dr. Bransford concerns whether
Candlehouse meets the sociological criteria for a functional family. Dkt.
No. 66-2 at 12. Dr. Bransford begins her recitation concerning this topic
by stating “it may be useful first to identify what sociologists and the
sociologlical literature have to say about what constitutes a functioning
family.” Id. at 2. Conspicuously absent from Dr. Bransford’s analysis,
however, is any reference to the criteria set out in the Town’s zoning
ordinance defining family and its functional equivalent. Dr. Bransford does
not disclose the basis for correlating the sociological criteria for defining
“family” or its functional equivalent and the definitions provided in the
Town’s ordinance.22 Similarly, the relevant zoning provision is completely

22

Indeed, based upon the recitation of the materials she was provided in
preparation for her report, it appears that Dr. Bransford never actually reviewed any of
the Town’s zoning code, including the relevant provisions at issue in this case. See
Dkt. No. 66-2 at 2 (listing fourteen items that “were provided to [her] by defendant’s
attorney’s office”).
58

devoid of any reference to the sociological criteria listed by Dr. Bransford
in her report. Dkt. No. 60-1 at 8 (Town of Vestal Zoning Article I, Section
24-1). For these reasons, I find that Dr. Bransford’s opinions on this
subject demonstrate a lack of the reliability required for admission under
Rule 702.
In addition, notwithstanding Rule 702, Dr. Bransford’s opinions
regarding whether Candlehouse’s students operate as a family or the
functional equivalent thereof are lacking in probative value because they
do not relate to the Town’s zoning code. For example, whether
Candlehouse’s students operate as a family when considered in light of
the sociological criteria cited by Dr. Bransford does not make it more or
less likely that the Town discriminated against plaintiff under the ADA or
FHA in deciding whether Candlehouse satisfies the criteria set forth in the
relevant zoning provision. For this reason, the expert’s opinions regarding
this matter are inadmissible pursuant to Rule 401 and 402 of the Federal
Rules of Evidence. See Fed. R. Evid. 401(a) (“Evidence is relevant if . . .
it has any tendency to make a fact more or less probable than it would be
without the evidence[.]”); Fed. R. Evid. 402 (“Relevant evidence is
admissible[.]”). In any event, however, whatever minimal relevance Dr.

59

Bransford’s opinions regarding the definitions of family and the functional
equivalent of a family using sociological criteria may carry, that probative
value is substantially outweighed by the risk of confusion to the jury when
considering her opinions, and attempting to reconcile them with the facts
of this case, which relate only to a municipality’s zoning code and the
intent of that municipality’s officials in interpreting that zoning code. See
Fed. R. Evid. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . confusing
the issues[.]”). For all of these reasons, this portion of Dr. Bransford’s
report is stricken, and she is precluded from testifying on this matter at
trial.
b.

Disability

In her report, Dr. Bransford also offers her opinion concerning
whether Candlehouse residents are “disabled or impaired.” Dkt. No. 66-2
at 11, 12-13. This portion of the expert’s report is equally problematic. Dr.
Bransford did not address the question of disability in the context of the
ADA and FHA, neither of which is even referenced in the report.
Moreover, the title of this section of her report, “Are Candlehouse
Residents Disabled or Impaired?,” signals a critical misconception of how

60

the trier of fact is required to determine disability. Dkt. No. 66-2 at 11.
Under the ADA and FHA, “disabled” and “impaired” are not co-extensive.
Instead, one of the ways to find that a person is disabled under the ADA
and FHA is for the factfinder to first determine whether a person at issue
suffers from an impairment. 42 U.S. C. §§ 3602(h), 12102(1). If an
impairment is discerned, then the factfinder must determine whether that
impairment substantially limits a major life activity. Id. Dr. Bransford’s
report, in contrast, does not undergo this analysis, and instead suggests
that the terms are interchangeable, which is not correct under the ADA
and FHA.
Additionally, I note that the question of whether Candlehouse serves
a disabled population can only be determined by the factfinder after
applying the law set forth under the ADA and FHA. While it is true that
Rule 704 of the Federal Rules of Evidence does not automatically
preclude testimony from an expert on an ultimate issue such as this, the
Second Circuit has unequivocally held that, despite Rule 704, trial experts
may not opine on such an ultimate issue. Hygh v. Jacobs, 961 F. 2d 359,
363 (2d Cir. 1992). Specifically, the Second Circuit has held that,
[w]hile Rule 704 has abolished the common law
‘ultimate issue’ rule, however, it has not ‘lowered the
61

bars so as to admit all opinions.’ This circuit is in
accord with other circuits in requiring exclusion of
expert testimony that expresses a legal conclusion. .
. . Even if a jury were not misled into adopting
outright a legal conclusion proffered by an expert
witness, the testimony would remain objectionable by
communicating a legal standard – explicit or implicit –
to the jury. Whereas an expert may be uniquely
qualified by experience to assist the trier of fact, he is
not qualified to compete with the judge in the function
of instructing the jury.
Hygh, 961 F.2d at 363 (internal citations and alterations omitted)). For
this reason, Dr. Bransford is precluded from testifying as to whether
Candlehouse serves a disabled or handicapped population, and that
portion of her report is stricken.23
c.

Candlehouse’s Effectiveness; Following EvidenceBased Protocols

Dr. Bransford’s report also evaluates whether the Candlehouse
program effectively addresses its students’ various disorders. Dkt. No. 662 at 7-8. Specifically, Dr. Bransford observes that the agency’s claims of
success “have been widely refuted in the scientific literature.”24 Id. at 8.
23

I further find that, to the extent that Dr. Bransford has analyzed whether a
random sampling of Candlehouse’s students are disabled by using sociological
criteria, her conclusion on the matter is substantially outweighed by the risk of
confusion by the jury in distinguishing between the criteria relied on by Dr. Bransford,
and the criteria it is required to consider under the ADA and FHA. Fed. R. Evid. 403.
24

The portion of Dr. Bransford’s report addressing this issue is
provocatively entitled “Candlehouse’s Effectiveness: Myth or Fact.” Dkt. No. 66-2 at 7.
62

She also concludes that “Candlehouse does not follow an evidence-based
protocol for treating individuals with co-occurring disorders.” Id. at 12.
Neither of these inquiries, however, bear relevance on any of the claims or
defenses in this action. Whether Candlehouse’s program is successful
does not make it more or less likely that the Town discriminated against
Candlehouse under the ADA, FHA, or RLUIPA. Fed. R. Evid. 402.
Similarly, whether Candlehouse uses a certain methodologies (scientific or
otherwise) to implement its program is irrelevant to the question of
discrimination based on disability or religion. Id. In addition, whatever
relevance these opinions do have is substantially outweighed by the risks
of unfair prejudice and confusion of the issues to a jury because plaintiff’s
claims do not relate at all to whether Candlehouse’s program meets the
criteria set forth by Dr. Bransforth. Accordingly, the portion of Dr.
Bransford’s report opining on these two issues is stricken, and she is
precluded from testifying about them at trial.
d.

Dr. Bransford’s Other Opinions

The remaining opinions set forth in Dr. Bransford’s report, while of
marginal relevance, appear to be supported and within her range of
expertise. Accordingly, while the portions of her report identified above

63

are stricken, and she is precluded from testifying about them at trial, I will
permit her to testify concerning the remaining opinions, including whether
(1) Candlehouse is a therapeutic community or instead and adult
home/halfway house; (2) Candlehouse needs to be located in a residential
zone; and (3) there is documentation concerning the transience of
Candlehouse residents.
J.

Sanctions/Spoliation

The final pending motion to be addressed is plaintiff’s request for
sanctions based upon the Town’s alleged destruction of, or failure to
produce, relevant information that was requested during discovery. Dkt.
No. 64. Plaintiff argues that (1) the Town failed to take the requisite
actions to preserve evidence and notify Town Board members and other
Town officials of the duty of preservation; (2) the Town failed to collect and
produce relevant documents and records from all Town officials in
response to plaintiff’s discovery demands, as revealed during the
depositions of various Town officials; and (3) regularly deleted e-mails and
other documents involving claims and defenses in this case, both prior to
and during the course of this litigation. See generally Dkt. No. 64-10. As
relief, plaintiff asks the court to issue an adverse inference instruction, as

64

well as to preclude Town officials from testifying that (1) they were not
motivated by any discriminatory bias, (2) they themselves did not maintain
any discriminatory bias against plaintiff, and (3) they were not persuaded
or influenced by the neighborhood opposition. Id. at 14-15. Plaintiff also
moves for attorney’s fees incurred in bringing its motion. Dkt. No. 89 at
12. Defendant opposes the motion and requests sanctions against
plaintiff for filing a “frivolous” motion. See generally Dkt. No. 80.
Although plaintiff’s allegations are troubling, it was obligated to
confer in good faith with opposing counsel, and to thereafter seek an order
compelling discovery if counsel could not agree on a course of action.
Fed. R. Civ. P. 37(a)(1) (“[A] party may move for an order compelling
disclosure or discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with the person
or party failing to make disclosure[.]”). Had plaintiff followed that course of
action, and the Town continued to neglect its discovery obligations, the
court would then have been positioned to issue the sanctions requested
by plaintiff and listed in Rule 37(b) as a result of the Town’s failure to obey
the order.25 See Pro Bono Invs., Inc. v. Gerry, No. 03-CV-4347, 2005 WL
25

Among the sanctions available under that section are the following:
65

2429767, at *1 (S.D.N.Y. Sept. 30, 2005) (“By its terms, Rule 37 requires
a meet-and-confer conference and authorizes sanctions only after a
motion is granted for discovery is made after a motion is filed.”). Because
plaintiff instead has attempted to bypass these meaningful preliminary
requirements by requesting the equivalent of sanctions available under
Rule 37(b), I do not find it appropriate to award such relief. In order to
avoid unfair prejudice to plaintiff, however, and because the court retains
the discretion to impose sanctions on a party for misconduct in discovery

(i)

directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;

(ii)

prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;

(iii)

striking pleadings in whole or in part;

(iv)

staying further proceedings until the order
is obeyed;

(v)

dismissing the action or proceeding in
whole or in part;

(vi)

rendering a default judgment against the
disobedient party; or

(vii)

treating as contempt of court the failure to
obey any order except an order to submit
to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A).
66

absent a discovery order, Residential Funding Corp. v. DeGeorge Fin.
Corp., 306 F.3d 99, 106-07 (2d Cir. 2002), the court will permit plaintiff to
submit a limited document discovery request to defendant seeking
additional evidence that it reasonably believes is still available and
relevant to the claims and defenses in this action, as revealed by the
deposition testimony of Town officials.
The question of the destruction or non-preservation of evidence,
which amounts to an allegation of spoilation, is equally, if not more,
troublesome. Spoliation is defined as “the destruction or significant
alteration of evidence, or the failure to preserve property for another’s use
as evidence in pending or reasonably foreseeable litigation.” West v.
Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (citing
Black’s Law Dictionary 1401 (6th ed. 1990)). For obvious reasons, one
who engages in spoliation should not be permitted to benefit from such
wrongdoing. West, 167 F.3d at 779.
Courts are invested with broad discretion in determining an
appropriate sanction to be imposed in the event it finds spoliation. West,
167 F.3d at 779. The sanctions available to a court can range in severity
from dismissal to an adverse inference jury instruction. Wade v. Tiffin

67

Motorhomes, Inc., 686 F. Supp. 2d 174, 196 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Allstate Ins. Co. ex rel. Lothridge v. Gonyo, No. 07-CV-1011,
2009 WL 962698, at * 8 (N.D.N.Y. Apr. 8, 2009) (Treece, M.J.)).

The

Second Circuit has noted that any sanction imposed “should be molded to
serve the prophylactic, punitive, and remedial rationales underlying the
spoliation doctrine.” West, 167 F.3d at 779. When applying this principle,
a court should impose a sanction designed to
(1) deter parties from engaging in spoliation; (2)
place the risk of an erroneous judgment on the party
who wrongfully created the risk; and (3) restore ‘the
prejudiced party to the same position he would have
been in absent the wrongful destruction of evidence
by the opposing party.’
Id. (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)).
A common sanction imposed by the court to punish a party’s
spoliation is a spoliation jury charge, in which the jury is instructed that it
may draw an adverse inference based upon the destruction. Chin v. Port
Auth. of New York and New Jersey, 685 F.3d 135, 162 (2d Cir. 2012). To
warrant the issuance of such an instruction, the moving party must
demonstrate that (1) the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) the evidence was
destroyed with a culpable state of mind; and (3) the destroyed evidence
68

was relevant to an adverse party’s claim or defense such that a
reasonable trier of fact could find that it would support the claim or
defense. Chin, 685 F.3d at 162; Wade, 686 F. Supp. 2d at 193. The
decision of whether to issue an adverse inference instruction based upon
lost evidence rests within the discretion of the trial court. Chin, 685 F.3d
at 162.
In many instances, a spoliation claim arises out of an alleged failure
of a party to implement a “litigation hold” based upon an existing or
pending suit. A party’s failure to implement a “litigation hold,” in the face
of impending litigation, does not constitute per se gross negligence
warranting an adverse inference instruction. Chin, 685 F.3d at 162.
Rather, that failure is but one of several relevant factors to consider in
determining whether such a sanction is warranted. Id. Moreover, while a
finding of gross negligence in failing to preserve evidence may provide a
basis for an adverse inference, such a finding does not require the trial
court to provide such an instruction. Id.; Residential Funding Corp., 306
F.3d at 109.
Here, as a threshold matter, plaintiff’s motion requires the court to
determine whether the Town’s “duty to preserve” attached in January

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2011, when this action was filed, or on May 5, 2010, when plaintiff sent its
letter to defendant notifying the Town of Candlehouse’s position that the
Town’s determination violated federal laws. Compare Dkt. No. 80 at 9
with Dkt. No. 89 at 6. “The obligation to preserve evidence arises when
the party has notice that the evidence is relevant to litigation or when a
party should have known that the evidence may be relevant to future
litigation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423 (2d Cir. 2001).
Because defendant in this case has been involved in a dispute with
plaintiff since at least September 2008, it is not unreasonable to find that
the Town “should have known that the evidence [sought by plaintiff] may
be relevant to future litigation” by May 5, 2010, thereby triggering a duty to
preserve relevant evidence. West, 167 F.3d at 779.
Next, I must decide whether evidence at issue was intentionally
destroyed. See Fujitsu Ltd., 247 F.3d at 436; Residential Funding Corp.,
306 F.3d at 108 (“[T]he culpable state of mind factor is satisfied by a
showing that the evidence was destroyed knowingly, even if without intent
to breach a duty to preserve it, or negligently.” (internal quotation marks,
alterations, and emphasis omitted)). If defendant did not notify the
relevant Town officials of their duty to preserve evidence, at a minimum,

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this is sufficient to establish negligence. Notably, defendant does not
argue that its attorneys notified the relevant Town officials, whose e-mails
were allegedly deleted, to search for information requested by plaintiff.
See generally Dkt. Nos. 80, 81.
The third consideration is whether the evidence alleged to have
been destroyed is relevant to any of plaintiff’s claims. Residential Funding
Corp., 306 F.3d at 107. In this instance, the evidence alleged to have
been destroyed consists of e-mails to and from Town officials, and
specifically Town Board members, regarding the Candlehouse matter.
Those e-mails are alleged to include those between Town Board members
and residents, as well as among Town Board members themselves.
Those communications are potentially relevant to plaintiff’s intentional
discrimination claim because the surrounding circumstances and history
leading up to the ZBA’s decision that plaintiff’s program does not
constitute the functional equivalent of a family are relevant considerations
when determining whether the ZBA was motivated by discriminatory
intent.26 In any event, the e-mails could also be relevant to plaintiff’s
26

In addition, although it is not alleged, it is possible that some of the
discarded e-mails were between Town Board members and ZBA members, and that
those lost e-mails may have disclosed the Town Board members’ feelings regarding
the Candlehouse matter.
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reasonable accommodation claim because it was the Town Board that
made the decision to deny the request for a reasonable accommodation.
If the e-mails now sought by plaintiff demonstrate discriminatory bias, then
they could tend to show that the Town Board denied the reasonable
accommodation on the basis of discrimination.
Despite all of these findings, I am not inclined, at this juncture, to
impose the sanctions sought by plaintiff, primarily because I do not find
that the record has been sufficiently developed to determine what led to
the destruction, if any, of relevant emails by Town officials. Accordingly,
plaintiff’s motion for sanctions is denied, without prejudice to renewal at
trial. Based upon the testimony adduced at trial, the court reserves the
right to include an adverse inference charge in its jury instructions based
upon the allegation of spoliation.
IV.

SUMMARY AND RECOMMENDATION
Based upon the record now before the court, I conclude that there

remains a genuine dispute of material fact as to whether Candlehouse
serves a disabled or handicapped population under the ADA and FHA, a
threshold determination that must be made in order to resolve any claim of
discrimination under those provisions. Similarly, issues of fact preclude a

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finding as a matter of law that defendant intentionally discriminated
against the plaintiff and its students, and in denying plaintiff’s request for a
reasonable accommodation. I do, however, find that no reasonable
factfinder could conclude, based upon the existing record, that the
requirements to establish a disparate impact claim under the FHA and the
ADA have been satisfied. For this reason, defendant’s motion for
summary judgment on that claim is granted. Similarly, I conclude that
plaintiff has failed to demonstrate that a reasonable factfinder could find
the requisite burden upon plaintiff and its students in their religious
exercise, sufficient to support a claim under the RLUIPA.
Turning to plaintiff’s non-dispositive motions, I find that substantial
portions of the report of defendant’s expert fails to meet the criteria of
Federal Rule of Evidence 702 and Daubert, and in any event are
excludable under Rules 401, 402 and 403. For those reasons, I will strike
those portions of the expert report and preclude the expert from testifying
on those subjects at trial. Additionally, I conclude that, having failed to
avail itself of the remedies afforded under Rule 37(a) of the Federal Rules
of Civil Procedure and to confer with defendant’s counsel before bringing
the instant motion, Candlehouse is not positioned to seek sanctions under

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Rule 37(b). As to plaintiff’s allegation of spoliation, I find that the record is
not sufficiently developed as to the factors necessary to inform the court’s
decision, and will therefore deny plaintiff’s motion without prejudice to
renewal at trial, and, if appropriate, will administer a spoliation instruction
to the jury at the close of the case.
Based upon the foregoing it is hereby
ORDERED as follows:
(1)

Defendant’s motion for summary judgment (Dkt. No. 59) is

GRANTED, in part.
(2)

Plaintiff’s claim of discrimination based upon a disparate

impact theory under the FHA and ADA is hereby DISMISSED.
(3)

Plaintiff’s claim of a substantial burden on the free religious

exercise rights in violation of the RLUIPA, is DISMISSED.
(4)

Plaintiff’s second motion for summary judgment (Dkt. No. 68)

is DENIED.
(5)

Pursuant to Rule 41(a)(2) of the Federal Rules of Civil

Procedure and the stipulation of the parties, Counts IV (denial of equal
terms under the RLUIPA), Count V (free exercise of religion under the
First and Fourteenth Amendments) and Count VI (denial of equal

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protection under the Fourteenth Amendment) are hereby dismissed, with
prejudice.
(6)

Plaintiff’s motion for sanctions (Dkt. No. 64) is DENIED without

prejudice to its right to renew that application during the trial in this matter.
(7)

Plaintiff’s motion to strike defendant’s expert report and to

preclude her from testifying at trial (Dkt. No. 66) is GRANTED, in part.
Defendant’s expert shall be precluded from giving testimony at trial
concerning the following topics, as reflected in her expert report :
a.

b.

“There is no solid research evidence to
corroborate Candlehouse’s claims to effectiveness.”

c.

“Candlehouse does not follow evidence-based protocols
for treating individuals with co-occurring disorders.”

d.

(8)

“Candlehouse does not meet the sociological
criteria for a functional family.”

“There is no evidence to support that Candlehouse
residents are disabled or impaired.”

No costs or attorneys’ fees are awarded to any party in

connection with the pending motions.
(9)

A final pretrial conference will be held in this matter, by

telephone, on May 14, 2013, at 3:00pm. During that conference, the
parties should be prepared to discuss the appropriate timing and location

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of the trial in this matter. Plaintiff’s counsel is directed to make
appropriate arrangements for placing the call.
Dated:

May 3, 2013
Syracuse, New York

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