Step By Step, Inc. v. City of Ogdensburg

Filing 22

MEMORANDUM-DECISION and ORDER. Plaintiff's 4 Motion for Preliminary Injunction is GRANTED; defendant's Cross-Motion to Dismiss 17 is DENIED in its entirety. Defendant shall approve plaintiff's application to establish a Planned Development District with regard to the property located at 1515 Knox St., Ogdensburg, New York and shall file evidence of such approval with the Clerk of the Court on or before 4/15/2016; defendant may require plaintiff to submit a final development plan to the City Planning Board. The Court shall retain jurisdiction to monitor implementation of and to enforce this Order. Signed by Judge David N. Hurd on 4/5/2016. (lah, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------STEP BY STEP, INC.,
Plaintiff,
-v-

7:15-CV-925

CITY OF OGDENSBURG,
Defendant.
----------------------------------APPEARANCES:

OF COUNSEL:

COOPER, ERVING LAW FIRM
Attorneys for Plaintiff
39 North Pearl Street, 4th Floor
Albany, NY 12207

CARLO ALEXANDRE C.
DE OLIVEIRA, ESQ.

SUGARMAN LAW FIRM LLP
Attorneys for Defendant
211 West Jefferson Street
Syracuse, NY 13202

PAUL V. MULLIN, ESQ.

DAVID N. HURD
United States District Judge
TABLE OF CONTENTS
I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

LEGAL STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Subject Matter Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Failure to State a Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Relevant Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

IV.

DISCUSSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A.
Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B.
The City's Motion to Dismiss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6
6
7
7
9

V.

1.
Disability Under the FHA and ADA. . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
FHA's Definition of "Dwelling".. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Substantial Likelihood of Success on the Merits. . . . . . . . . . . . . . . . .
a.
Disparate Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Supermajority Requirement. . . . . . . . . . . . . . . . . . . . . .
ii.
Other Applications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iii.
Delay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iv.
Amendment of the ARD Law. . . . . . . . . . . . . . . . . . . . .
v.
Local Opposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vi.
Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Disparate Impact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Balance of Hardships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Public Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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17
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21
23
27
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29
31
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33
34
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MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff Step by Step, Inc. ("SBS" or "plaintiff"), a New York not-for-profit corporation
that provides outpatient mental health support services, has filed this action against
defendant City of Ogdensburg (the "City" or "defendant"), located in Saint Lawrence County,
New York. Plaintiff brings claims pursuant to the Fair Housing Act, 42 U.S.C. § 3601, et seq.
(the "FHA") as well as the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the
"ADA") alleging that defendant's refusal to approve an application for a Planned
Development District ("PDD"), which would authorize plaintiff to establish a housing unit for
individuals with mental illnesses, constitutes unlawful discrimination on the basis of plaintiff's
clients' mental disabilities. Presently under consideration are (1) plaintiff's motion for a
preliminary injunction and (2) defendant's cross-motion to dismiss. Both motions were fully
briefed and oral argument was heard in Utica, New York. Decision was reserved.
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II. BACKGROUND1
SBS presently provides services to individuals with mental illnesses at its offices
located at 103 Ford Street in Ogdensburg, New York. In September 2014, plaintiff
purchased a former elementary school located at 1515 Knox Street in the City (the
"Site"). The Site is located in an area zoned for single family residential structures.
In April 2015, SBS filed an application with the City to rezone the Site from a single
family residential district to a PDD. Plaintiff planned to redevelop the Site into a combination
of supportive housing, respite / hospital diversion housing, rental office space, and mental
health support services for its mentally ill patients.
Pursuant to the Ogdensburg City Code, an applicant seeking to develop or redevelop
significant land areas must obtain the approval of the Ogdensburg City Council to amend the
zoning map and establish a PDD. As Article IX of the City Code explains, the purpose of a
PDD is to provide:
(a)

a means of developing or redeveloping significant land areas
considered appropriate for residential, recreational,
commercial or industrial use; or a combination of these uses
in a unified site design that allows economies of scale,
creative planning and design concepts to be used . . . .

(b)

to uphold the spirit and intent of this chapter to promote
orderly growth and sound development of the City and
ensure that the health, safety and general welfare of
prospective residents in the PDD and adjacent residents will
be protected.

See Smith Aff., Ex. A, § 221-29.

1

The following facts are taken from the operative complaint, or from documents integral to it, and will
be assumed true for purposes of resolving defendant's motion to dismiss. See, e.g., Krasner v. HSH
Nordbank AG, 680 F. Supp. 2d 502, 508 n. 2 (S.D.N.Y. 2010).
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To qualify as a PDD, an undeveloped parcel of land must be at least two acres in size
or be a developed parcel that has at least 40,000 square feet. Smith Aff., Ex. A, § 221-30.
The City Code also sets forth the criteria for evaluating an applicant's proposed PDD:
(a)

Conformance with the stated purposes of the PDD;

(b)

Consistency with the Comprehensive Development Plan;

(c)

Protection of established or permitted uses in the vicinity;

(d)

Provision for usable open space and recreational areas as
appropriate to the proposed use(s) and the surrounding
neighborhood;

(e)

Design and location so as to be safely and adequately
served by roads, water supply, sewage disposal,
stormwater drainage, snow removal, fire protection and
school buses;

(f)

Provision for advantages of flexible planned development
over conventional lot-by-lot development such as the
following:
(1)

Increased recreational areas and usable open
space;

(2)

Preservation of natural features of the site;

(3)

Increased affordable housing opportunities;

(4)

A compatible mix of housing types and/or uses;

(5)

Decreased street and utility costs resulting from
efficient design of the entire site and clustered
development; [and/or]

(6)

Provision of public waterfront access or other public
amenity.

See id. § 221-31(F)(2).

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At its April 13, 2015 meeting, the City Council referred SBS's application to both the
City Planning Board and the Saint Lawrence County Planning Board to obtain each board's
recommendation.
On May 11, 2015, while those referrals remained pending, the City Council conducted
a public hearing on SBS's application and proposed use of the Site. A number of local
residents attended, and both supporters and critics were heard on the issue.
On May 14, 2015, the County Planning Board considered SBS's application and voted
to recommend disapproval. The City's Planning Board reached a similarly unfavorable
conclusion four days later, voting 5-1 on May 18 to also recommend disapproval of plaintiff's
application.2
Notably however, on May 27, 2015, the Chairman of the County Planning Board
requested that the City Council resubmit SBS's application so that it could be
reconsidered. According to this request, the County Planning Board had incorrectly believed
the Site could be considered under the then-draf t Adaptive Reuse District ("ARD") law, which
modified the City's zoning code to create a new district for parcels generally associated with
public and quasi-public use, such as former schools and churches, and provided guidelines
and a process for their redevelopment. See City Code § 221-23. Nevertheless, on May 28,
2015, the City Council held a special meeting, where it voted 5-1 against plaintiff's PDD
application without the benefit of any reconsideration by the County Planning Board.

2

SBS submitted an amended application to the City Planning Board on May 15, 2015 to address
concerns raised at the Board's initial meeting, which involved questions regarding the proposed hours of
operation of plaintiff's facility as well as the number and types of housing plaintiff's facility would provide. At
the May 18, 2015 meeting, Chairman Redmond acknowledged that plaintiff's amended application addressed
these concerns. See Smith Aff., Ex. F, 1-4.
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Thereafter, on July 20, 2015, the City Council voted to approve the ARD law. Under
this new law, the standards for consideration of redevelopment applications are substantially
similar to those for a PDD application. However, the ARD law is limited to parcels that are
less than two acres. See City Code § 221-22. The new law also provides greater
opportunities for public input, since it requires both the City's Zoning Board of Appeals and
the City Council to conduct public hearings concerning applications for a permit under the
ARD law. See id. §§ 221-25, 221-28.
On July 30, 2015, SBS filed the complaint and its motion for a preliminary injunction
pursuant to Federal Rule of Civil Procedure ("Rule") 65, which seeks an order directing the
immediate approval of plaintiff's application to establish housing for people with disabilities at
the Site. The City opposed and filed a cross-motion to dismiss pursuant to Rule 12(b)(1) and
12(b)(6).
III. LEGAL STANDARDS
A. Subject Matter Jurisdiction
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it." Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000). " The plaintiff bears the burden of proving
subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). " In determining the existence of subject
matter jurisdiction, a district court may consider evidence outside the pleadings." Saleh v.
Holder, 84 F. Supp. 3d 135, 137-38 (E.D.N.Y. 2014) (citing Makarova, 201 F.3d at
113). "Subject matter jurisdiction is a threshold issue and, thus, when a party moves to

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dismiss under both Rules 12(b)(1) and 12(b)(6), the motion court must address the 12(b)(1)
motion first." Id. (citations omitted).
B. Failure to State a Claim
To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough
to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Although a complaint need only contain "a short and plain statement of the
claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), more than mere
conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
Dismissal is appropriate only where the plaintiff has failed to provide some basis for
the allegations that support the elements of her claims. See Twombly, 550 U.S. at 570
(requiring "only enough facts to state a claim to relief that is plausible on its face"). When
considering a motion to dismiss, the pleading is to be construed liberally, all factual
allegations are deemed to be true, and all reasonable inferences must be drawn in the
plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002).
C. Preliminary Injunction
"A preliminary injunction is an extraordinary remedy never awarded as of
right." Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Green,
553 U.S. 674, 689-90 (2008)). "The party seeking the injunction carries the burden of
persuasion to demonstrate, 'by a clear showing,' that the necessary elements are
satisfied." Reckitt Benckiser Inc. v. Motomco Ltd., 760 F. Supp. 2d 446, 452 (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
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Generally speaking, a party must establish four elements to prevail on a motion for a
preliminary injunction: (1) a likelihood of irreparable harm; (2) either a likelihood of success
on the merits or sufficiently serious questions as to the merits plus a balance of hardships
that tips decidedly in their favor; (3) that the balance of hardships tips in their favor regardless
of the likelihood of success; and (4) that an injunction is in the public interest. Chobani, LLC
v. Dannon Co., Inc., –F. Supp. 3d–, 2016 W L 369364, at *5 (N.D.N.Y. Jan. 29, 2016)
(surveying preliminary injunction case law post-Winter); see also Benihana, Inc. v. Benihana
of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015) (incorporating balance-of-hardships and
public interest factors); Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015)
(same).
Importantly, "[w]hen, as here, the moving party seeks a preliminary injunction that will
affect government action taken in the public interest pursuant to a statutory or regulatory
scheme, the injunction should be granted only if the moving party meets the more rigorous
likelihood-of-success standard." Sinisgallo v. Town of Islip Housing Auth., 865 F. Supp. 2d
307, 328 (E.D.N.Y. 2012) (citations omitted).
Equally important, this likelihood-of-success standard is slightly modified when the
preliminary injunctive relief the movant seeks would alter the status quo or provide the
moving party with substantially all the relief sought in the underlying case. Forest City Daly
Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 150 (2d Cir. 1999).
Therefore, in these cases, "the movant must show a substantial likelihood of success
on the merits, i.e. that [its] cause is considerably more likely to succeed than fail (together, of
course, with the requisite irreparable injury)." Eng v. Smith, 849 F.2d 80, 81 (2d Cir. 1988);
see also Chobani, LLC, 2016 W L 369364, at *7 ("[A] party seeking a "mandatory" preliminary
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injunction must demonstrate a "clear" or "substantial" likelihood of success on the merits in
addition to the other strictures imposed by the standard . . . ." (citing Tom Doherty Assocs.,
Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995))).
D. Relevant Statutes
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 renter because of a handicap." 42
U.S.C. § 3604(f)(1). The FHA further provides that it is unlawful to "discriminate against any
person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection with such dwelling, because of a
handicap." § 3604(f)(2).
Likewise, the ADA provides that "no qualified individual 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.
Both the FHA and the ADA apply to municipal zoning decisions. See, e.g., Forest City
Daly Hous., Inc., 175 F.3d at 151. "To establish discrimination under either the [FHA] or the
ADA, plaintiffs have three available theories: (1) intentional discrimination (disparate
treatment); (2) disparate impact; and (3) failure to make a reasonable
accommodation." Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 573 (2d Cir. 2003).

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IV. DISCUSSION
A. Standing3
The City contends that SBS has failed to establish standing because plaintiff failed to
allege any facts to support the conclusion that the prospective users or residents of the Site
qualify for protection under the relevant statutes. See Def.'s Mem. at 3-4.
"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). To establish
standing, a private plaintiff must show that it: (1) suffered an "injury in fact" that is concrete
and particularized, and actual or imminent, not conjectural or hypothetical; (2) that the injury
is fairly traceable to the challenged action; and (3) it is likely that the injury will be redressed
by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).
Additionally, an organization may assert standing "on behalf of its members under the
theory of organizational or associational standing." Human Res. Research & Mgmt. Grp.,
Inc. v. Cnty. of Suffolk, 687 F. Supp. 2d 237, 249 (E.D.N.Y. 2010) (citations omitted). This
theory of standing permits an entity to "file suit on its own behalf 'to seek judicial relief from
injury to itself and to vindicate whatever rights and immunities the association itself may
enjoy.'" Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (quoting
Warth v. Seldin, 422 U.S. 490, 511 (1975)).
Accordingly, an organization may bring suit on behalf of its members by demonstrating
that: "(a) its members would otherwise have standing to sue in their own right; (b) the

3

"To survive a defendant's Rule 12(b)(1) motion to dismiss for lack of standing, plaintiffs must allege
facts that affirmatively and plausibly suggest that [they have] standing to sue." Kiryas Joel Alliance v. Village
of Kiryas Joel, 495 F. App'x 183, 188 (2d Cir. 2012) (summary order).
- 10 -

interests it seeks to protect are germane to the organization's purpose; and (c) neither the
claim asserted nor the relief requested requires the participation of individual members in the
lawsuit." Giuliani, 143 F.3d at 649 (quoting Hunt v. Wash. State Apple Advert. Comm'n, 432
U.S. 333, 343-45 (1977)).
"Standing under the [FHA] is as broad as Article III permits." Mhany Mgmt., Inc. v.
Cty. of Nassau, –F.3d–, 2016 W L 1128424, at *13 (2d Cir. Mar. 23, 2016). T o that end, the
FHA confers standing to challenge discriminatory housing practices on any "aggrieved
person," defined as anyone who "(1) claims to have been injured by a discriminatory housing
practice; or (2) believes that such person will be injured by a discriminatory housing practice
that is about to occur." LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995) (citing
42 U.S.C. §§ 3602(l), 3613(a)(1)(A)).
Further, federal courts have held that a person who is not himself handicapped, but
who is prevented from providing housing for handicapped persons by a municipality's
discriminatory acts, has standing to sue under the FHA. See, e.g., Havens Realty Corp. v.
Coleman, 455 U.S. 363, 372 (1982); W arth, 422 U.S. at 505–06 (requiring for standing
purposes that zoning restrictions were applied to plaintiffs' particular projects that would
supply housing to protected class); Wis. Cmty. Servs. v. City of Milwaukee, 465 F.3d 737,
746–53 (7th Cir. 2006) (permitting operator of mental health clinic to sue municipality under
ADA for denial of permit to move clinic to new location); Baxter v. Belleville, 720 F. Supp.
720, 730–31 (S.D. Ill. 1989) (finding standing where plaintiff's claimed injury was loss of
income from tenants because municipality refused to approve plans for housing
development).

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In this case, SBS's complaint alleges that its PDD application was improperly denied
based upon discrimination directed towards the mental illnesses of its clients. Such a denial
constitutes an "injury in fact" that is "fairly traceable" to defendant's actions. Plaintiff is also
an "aggrieved person" under the FHA, as plaintiff claims to have been injured by a
discriminatory housing practice—the denial of the PDD application due to unlawful prejudice
against plaintiff's disabled clients. Consequently, plaintiff has demonstrated that it has
standing to bring this action on its own behalf under the FHA.
Furthermore, SBS also has organizational standing to bring this action on behalf of its
clients, since (1) it serves a class of individuals allegedly being discriminated
against—individuals with mental illness seeking housing; (2) the interests of these individuals
are germane to plaintiff, which is a non-profit seeking to provide services to such a class; and
(3) no individual participation of class members is necessary. See Human Res. Research,
687 F. Supp. 2d at 253. Accordingly, plaintiff has demonstrated that it has standing to
pursue this action.
B. The City's Motion to Dismiss
Next, the City argues that SBS has failed to properly plead that the individuals it seeks
to assist constitute "disabled" or "handicapped" individuals as defined in the relevant
statutes; alternatively, the City argues that the proposed housing plaintiff seeks to provide
those individuals does not constitute a "dwelling" under the FHA. See Def.'s Mem. at 1.
1. Disability Under the FHA and ADA
To demonstrate disability under these statutes, 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 they are regarded as having such an
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impairment. Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48
(2d Cir. 2002) ("RECAP"), superseded by statute on other grounds as recognized in
Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 46 (2d Cir. 2015); see also 42
U.S.C. § 12102(1) (defining "disability" under the ADA); 42 U.S.C. § 3602(h) (defining
"handicap" under FHA).
The FHA's definition of "handicapped" includes persons with a mental illness or
personality disorder, such as recovering alcoholics and drug addicts. See Valley Hous. LP v.
City of Derby, 802 F. Supp. 2d 359, 384 (D. Conn. 2011) (" Mental illness is also recognized
as a handicap and disability."); Oxford House, Inc. v. Twp. of Cherry Hill, 799 F. Supp. 450,
458-59 (D.N.J. 1992) (finding substantially same). In a similar vein, the inability to live
independently has been found to constitute a substantial limitation on one's ability to "care for
themselves." RECAP, 294 F.3d at 47-48; United States v. Borough of Audubon, N.J., 797 F.
Supp. 353, 359 (D.N.J. 1991).
In the complaint, SBS alleges that it is a not-for-profit corporation currently providing
outpatient mental health services to individuals with mental illness at its existing location, 103
Ford Street, in Ogdensburg. See Compl. ¶¶ 2, 3, 16, 20. It avers that the individuals that will
reside at the Site suffer from mental illness. Id. ¶¶ 5, 11, 23, 25, 62, 63, 65, 84, 113, 126-29,
138, 141, 144, 148.
Further, SBS's proposed facility will provide such individuals with mental health
supportive services, such as supportive housing and respite / hospital diversion housing, in a
safe and secure environment "where they could live independently and/or work toward
regaining optimal functioning as valued members of society." Compl. ¶¶ 5, 21, 22. Such
housing seeks to move these mentally ill individuals "from out of shelters, hotels/motels or off
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the street, where isolation and inconsistent care can hasten their dem ise." Id. ¶ 23. In sum,
the factual allegations contained in the complaint are sufficient to draw a reasonable
inference that SBS's clients have recorded, or are regarded as having, mental impairments
which substantially limit a major life activity; that is, that the mental illnesses of plaintiff's
clients limit their ability to live independently.
The City's contention that the complaint fails to state a claim rests on analyses of
SBS's claims that draw inferences adverse to plaintiff and thus are inappropriate bases for
dismissal at the pleading stage. Given these allegations, plaintiff should have the opportunity
to provide further evidence that the mental illnesses suffered by its clients meet the criteria of
the FHA and the ADA. Therefore, the complaint sufficiently alleges that the proposed
residents of the Site have a "handicap" under the FHA and "disability" under the ADA.
2. FHA's Definition of "Dwelling"
The City also contends that the complaint fails to properly allege that the facility
proposed by SBS constitutes a "dwelling" for purposes of the FHA and contends plaintiff's
proposed facility should instead be considered transient housing. See Def.'s Mem. at 1.
Pursuant to the FHA, a dwelling is "any building, structure, or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by one or more
families". 42 U.S.C. §3602(b). Courts have found that, for purposes of the FHA, a dwelling
includes a "'temporary or permanent dwelling place, abode or habitation to which one intends
to return as distinguished from the place of temporary sojourn or transient visit.'" Jenkins v.
N.Y.C. Dep't of Homeless Servs., 643 F. Supp. 2d 507, (S.D.N.Y. 2009) (quoting United
States v. Hughes Memorial Home, 396 F. Supp. 544, 548-9 (W .D. Va. 1975)).

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Both homeless shelters and treatment facilities have been found to constitute
dwellings under the FHA. See Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra
Twp., 455 F.3d 154. 159 (3d Cir. 2006); see also Cm ty. House, Inc. v. City of Boise, 490 F.3d
1041, 1044 n. 2 (9th Cir. 2007); Jenkins, 643 F. Supp. 2d at 518; W oods v. Foster, 884 F.
Supp. 1169, 1172 (N.D. Ill. 1995).
For example, in Lakeside, the Third Circuit applied a two-part test to determine
whether a drug and alcohol treatment center constituted a dwelling under the FHA:
First, we must decide whether the facility is intended or designed for
occupants who intend to remain in the facility for any significant
period of time. Second, we must determine whether those
occupants would view the facility as a place to return to during that
period.
Lakeside, 455 F.3d at 158.
In the complaint, SBS alleges that its proposed facility would provide "supportive
housing, respite / hospital diversion housing, rental office space and mental health support
services" to its mentally ill patients. See Compl. ¶ 22. It states that SBS's motive for moving
to the Site is to provide its patients suffering from mental illness with housing opportunities
and a "safe and secure environment" where they could "live independently." Id. ¶ 20-21.
The complaint notes that SBS seeks to move its mentally ill clients from "out of shelters,
hotels/motels or off the street." Id. ¶ 23.
While SBS's complaint does not delineate the exact amount of time it is seeking to
provide housing for its mentally ill clients, the complaint clearly contemplates providing
housing in order to divert these individuals from hospitals or homelessness. Such housing
would therefore be more similar to a homeless shelter or treatment facility, rather than a
motel or other transient establishment, in that SBS's clients would view such housing as "a
- 15 -

place to return to" during their period of stay. Accordingly, plaintiff has sufficiently pleaded
that the housing it proposes to provide its clients constitutes a dwelling under the FHA.
C. Preliminary Injunction
1. Substantial Likelihood of Success on the Merits
SBS contends that the City violated the FHA and ADA by (1) allowing the prejudices of
members of its community to influence its decisionmaking process and (2) applying different
procedural and substantive criteria to plaintiff's application than the criteria used to evaluate
other similarly situated PDD applications.
As discussed above, a plaintiff who alleges violations under the FHA and ADA may
proceed under three different theories: (a) disparate treatment; (b) disparate impact; and/or
(c) a failure to make reasonable accommodation. See Doe v. Pfrommer, 148 F.3d 73, 82 (2d
Cir. 1998). SBS alleges both disparate treatment and disparate impact.
a. Disparate Treatment
SBS alleges that the City denied its PDD application due to disparate treatm ent, or
intentional discrimination, against its disabled clients.
SBS's claims of intentional discrimination pursuant to the FHA and the ADA will be
analyzed using the McDonnell Douglas burden-shifting analysis. RECAP, 294 F.3d at 48;
Valley Hous. LP, 802 F. Supp. 2d at 386. Under this analysis, a plaintiff must first establish a
prima facie case of discrimination by presenting 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 decision-makers were knowingly
responsive." LeBlanc-Sternberg, 67 F.3d at 425.

- 16 -

If the plaintiff establishes this prima facie case, the burden of production shifts to the
defendant to provide a legitimate, nondiscriminatory reason for the decision. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Heyman v. Queens Vill. Comm.
for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.
1999). If the defendant meets that burden, the plaintiff must then prove that the defendant
intentionally discriminated on the basis of a prohibited ground. See Reeves, 530 U.S. at
143.
Courts consider the following factors when determining whether a municipal action
was undertaken with discriminatory intent: (1) the discriminatory impact of the action; (2) the
historical background of the action; (3) the sequence of events leading up to the challenged
action; (4) departures from normal procedural sequences; and (5) departures from normal
substantive criteria. LeBlanc, 67 F.3d at 425; Sunrise Dev., Inc. v. Town of Huntington, 62 F.
Supp. 2d 762, 774 (E.D.N.Y. 1999).
Importantly, "[a] plaintiff need not prove that discrimination was the sole motivating
factor in the challenged act; rather, a plaintiff need only show that discrimination was a
motivating factor." Sunrise Dev., 62 F. Supp. 2d at 774 (citing Arlington Heights v. Metro.
Housing Dev. Corp., 429 U.S. 252, 265–66 (1977)). (2d Cir. 1998).
SBS cites to a number of facts that it argues constitute evidence substantiating its
claim that the denial of its PDD application resulted, in significant part, from discriminatory
animus toward its mentally disabled clients.
i. Supermajority Requirement
Pursuant to New York State General Municipal Law 239-m, if a county planning
agency "recommends modification or disapproval of a proposed action, the referring
- 17 -

[municipality] shall not act contrary to such recommendation except by a vote of a majority
plus one of all the members thereof." See N.Y. GEN. MUN. LAW § 239-m(6).
In other words, if a qualifying municipal zoning action requires referral to a county
planning agency for review of inter-community or county-wide considerations and such
county planning agency recommends modification or disapproval, the municipality may only
then approve such action without modification by a supermajority vote.
In this case, SBS points to numerous comments by City Council members indicating
their desire to remove this supermajority requirement, even when the City's legal counsel
advised that such action would be contrary to state law and would likely invalidate portions of
the City Code. See, e.g., Bayne Aff., Ex. A, at 1:50:00 - 1:60:00; Bayne Aff., Ex. D, at
1:21:00 - 1:25:00. According to plaintiff, these comments evince a hostility toward plaintiff's
application and a desire to override state law to ensure the denial of plaintiff's application.
However, review of the video from both the April 13, 2015 and May 26, 2015 City
Council meetings shows that the comments concerning the supermajority requirements were
not directed specifically towards SBS's PDD application, but were directed more generally
toward any City zoning action that would require a supermajority vote by the City Council.
For instance, Councilor Morley specifically stated that his proposed amendment to a
supermajority requirement contained in the City's then-draft ARD law was done in hopes that
the New York State legislature would amend General Municipal Law 239-m. See Bayne Aff.,
Ex. D, at 1:23:00. Further, no action was actually taken to challenge § 239-m or otherwise
attempt to modify the supermajority requirement.
As both the City and County planning boards recommended disapproval of SBS's
application to the Council, the supermajority requirement was never at issue with respect to
- 18 -

plaintiff's application. As a result, the Councilors' statements do not provide evidence that
the City's denial of plaintiff's application was taken with discriminatory intent.
ii. Other Applications
SBS next alleges that two other projects were treated differently than plaintiff's
application and such differing treatment resulted from the general public's approval of such
projects. See Pl.'s Mem. at 24. One of these projects concerned the renovation of the
former Washington Elementary School into apartments; the other concerned an application
by the St. Vincent de Paul Church to rezone a parcel of land from single family residential to
a Residential / Business Mixed Use District for a clothing store.
Both projects were mentioned in various City Council meetings, but the specifics of
each project are vague and SBS has failed to demonstrate that either project's application for
a zoning action were similarly situated to plaintiff's application. As a result, at this point in the
proceedings, the potentially differing treatment of these projects does not evince an improper
motive for the City's denial of plaintiff's application.
iii. Delay
SBS contends that the City Council departed from its normal procedural and
substantive rules by attempting to place plaintiff's PDD application on hold until the City could
finalize and pass the ARD law. See Pl.'s Mem. at 7, 25.
However, the City is correct to argue that, in fact, the City Council did not depart from
its normal procedure, since SBS's PDD application was considered pursuant to the
procedure in place in the City Code. See Def.'s Mem. at 16.
Nevertheless, some aspects of the process employed by the City Council are certainly
questionable. For example, at the April 13, 2015 City Council meeting, the Council was
- 19 -

informed by the Director of Planning and Development that a PDD application had been
received from SBS. In the ordinary course of business, the application would need to be
referred to both the City and County Planning boards for review and recommendation and a
public hearing would need to be scheduled before the City Council. In fact, the City Code
considers these responsive actions to be a ministerial matter. See City Code § 221-40(C).
Despite this fact, the City Council spent approximately one hour debating whether a
public hearing should even be held, whether SBS should be required to reapply when and if
the ARD law was passed, or whether it was appropriate to perhaps table plaintiff's application
indefinitely until the ARD law was passed.4 See, e.g., Bayne Aff., Ex. A, 58:00 - 1:46:00.
The stated reasons given by council members in favor of delaying SBS's application
was their belief that the ARD law would provide "better protection" for the neighborhood and
permit the City Council to "control what happens to properties in single family residential
neighborhoods." Bayne Aff., Ex. A, at 1:00:00, 1:16:00. For instance, Councilor Morley
cautioned, "[w]e could be destroying the integrity of a single family residential neighborhood.
That is the thing that we have to be careful about. That is what we are here to protect." Id.
at 1:15:00. Likewise, Councilor Skamperle acknowledged that plaintiff's application had
stirred animosity in the neighborhood and that the application should m eet criteria that is
acceptable to the neighborhood. Id. at 1:16:00.
Importantly, however, the council members were advised by both Mayor Nelson and
City Attorney Andrew Silver that failure to consider a completed application under the
then-existing PDD law would deny the applicant due process and would likely result in a

4

Ultimately, a motion to table plaintiff's application was defeated 4-3 by the City Council at this
meeting. Bayne Aff., Ex. A, at 1:44:00.
- 20 -

lawsuit by SBS. Bayne Aff., Ex. A, at 1:11:00, 1:17:00, 1:19:00, 1:32:00, 1:34:00, 1:39:00,
1:42:00. In fact, Mayor Nelson even openly questioned whether an application by a different
entity, such as a car dealership, would face the same opposition and requested delay. Id. at
1:15:00.
While the conduct of the April 13, 2015 meeting does not in and of itself reveal an
unlawful discriminatory intent, it is certainly unusual. The opposition by some councilors to
even considering SBS's application in accordance with the clear requirements of the City
Code and their related attempt to delay plaintiff's application until an amendment to the ARD
law could be passed, which one could reasonably infer would be less advantageous to
plaintiff, informs the sequence of events that followed.
iv. Amendment of the ARD law
SBS also asserts that the ARD was later modified to limit its application to parcels that
were less than two (2) acres in size with full awareness that plaintiff's proposed PDD Site
was in excess of two (2) acres. See Pl.'s Mem. at 24. Plaintiff contends that this
modification was made to preclude plaintiff from applying under the ARD law and is further
evidence of animus against plaintiff and its clients.
However, through the affidavit of the director of the City's Planning Department, the
City has demonstrated that the modifications to the City's Zoning Code began in 2012 and
the creation of the ARD law was conceived in the summer of 2014, with four public meetings
being held before plaintiff's application was even received. See Smith Aff. at 9-10.
At the May 26, 2015 City Council meeting, the City Council considered adoption of the
ARD law. Members of the council expressed confusion as to what properties would be
included in the ARD district and therefore capable of applying for a permit under the new
- 21 -

ARD law. There also was confusion as to whether parcels like the Site, which were over two
acres in size and capable of applying for PDD status, should be eligible to apply under the
new ARD law.
As a result, Councilor Hosmer proposed an amendment to the ARD law to exclude
properties in excess of two acres from its purview, making it clear that parcels less than two
acres in size would be eligible to apply only for a permit under the ARD law and properties
two acres or larger would be eligible to apply for PDD status. See Bayne Aff., Ex. D, 1:35:00.
The motion to amend was passed by the City Council by a vote of four to three. Id. at
1:41:00.
There is no evidence contained in the City Council meeting to suggest that the
amendment to the ARD law to exclude parcels two acres or greater was passed as a result
of animosity towards SBS. The ARD law may have been crafted to assist in the
redevelopment of parcels that could not apply for PDD status due to their small size. If so, it
was reasonable to limit the ARD law to properties under two acres.
However, this amendment was contrary to the position conveyed at the April 13, 2015
meeting, where certain council members argued that it was important for SBS's application to
be considered under the criteria of the ARD law as such criteria would provide "better
protection" for the neighborhood. And by affirmatively choosing to omit parcels greater than
two acres, such as the Site, from the ARD law, its excludes such applications from the "better
protection" for which it was originally designed. These inconsistencies further undercut the
rationale for seeking to delay plaintiff's application at the April 13, 2015 meeting.

- 22 -

v. Local Opposition
SBS also asserts that the City Council permitted the public's prejudices concerning
plaintiff's mentally ill clients to become part of the decisionmaking process, even though such
concerns were unfounded and irrelevant to the zoning considerations. See Pl.'s Mem. at
21-22.
As discussed above, a public hearing was held on May 11, 2015 concerning SBS's
application. And as the City correctly notes, citizens spoke out both in favor of and in
opposition to plaintiff's application; each speaker was allotted five minutes to speak; all those
who wanted to speak were given an unobstructed opportunity to do so; and no City Council
member expressed approval or disapproval of any statement made by any citizen
speaker. See Def.'s Mem. at 13.
During this meeting, some citizen speakers raised concerns regarding the hours of
operation of SBS's facility and the "eyesore" nature of SBS's existing location. Others spoke
more generally about their concerns that mentally ill individuals living in plaintiff's facility
would pose a threat to the neighborhood, particularly young children. For example, one
resident stated that he was greatly concerned about the "safety of residents" and the
"potential physical and mental harm" exposure to plaintiff's mentally ill clients may have on
residents young and old. See Bayne Aff., Ex. C, at 9:00.
Another indicated that she was "extremely fearful" of living next to such a facility and
would cease sitting on her porch or working in her yard and that the neighborhood would be
an "unsafe zone" for walking due to presence of mentally ill individuals in the
neighborhood. Bayne Aff., Ex. C, 19:00.

- 23 -

Further, a petition signed by over four hundred residents and presented to the City
Council requested that the Council "keep our neighborhood safe for families and prevent
negative impact to our homes." Bayne Aff., Ex. C, at 30:00. A number of other residents
expressed concern that the value of their homes would decrease as a result of its proximity
to plaintiff's facility.
A review of the statements made by residents at the May 11, 2015 meeting reveal a
number of clearly stereotypical ideas about the mentally ill; indeed, exactly the kind of unfair
bias at which the FHA and ADA are aimed at preventing. To be sure, several citizens
expressed facially neutral concerns stemming from the fact that plaintiff's proposed use
would be inconsistent with the intent of the single family residential district. But it was
specifically plaintiff's proposal to provide housing and services to individuals with mental
illness—along with the perceived threat to resident safety and home equity—that resulted in
the objections of many of the residents.
"[A] decision made in the context of strong, discriminatory opposition becomes tainted
with discriminatory intent even if the decisionmakers personally have no strong views on the
matter." Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 49 (2d Cir.
1997). If the City decided to deny SBS's application because of the expressed bias of
residents, intentional discrimination would be shown. See Cmty. Hous. Trust v. Dep't of
Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 227 (D.D.C. 2003) ("[E]ven where
individual members of government are found not to be biased themselves, plaintiffs may
demonstrate a violation of the [FHA] if they can show that discriminatory governmental
actions are taken in response to a significant community bias."); Borough of Audubon, N.J.,
797 F. Supp. at 361 ("Discriminatory intent may be established where animus towards a
- 24 -

protected group is a significant factor in the community opposition to which the
commissioners are responding.").
But what affect, if any, community opposition had on the City Council's decision to
deny SBS's application is unknown. This is so because the City Council failed to articulate
any of their reasons for denying SBS's application. When taking their vote on May 28, 2015,
no member of the City Council stated on the record their reasons for voting against plaintiff's
application. See Bayne Aff., Ex. E, at 9:00.
Indeed, although "protection of established or permitted uses in the vicinity" is a
permissible consideration in the review of a PDD application, no Councilor made any attempt
to explain how the denial of SBS's application protected the single family residential district or
otherwise attempted to demonstrate that the reasons for their vote were independent of, and
not directly influenced by, the improper prejudices recently expressed by a significant portion
of the community opposition against plaintiff's mentally ill clients.
In fact, after a review of City Council meetings, it appears that no councilor ever
discussed the criteria for proper consideration of a PDD application pursuant to City
Code § 221-40(F)(2) with respect to plaintiff's application at any time during the application
process. Further, no written decision was ever prepared or issued concerning plaintiff's
application detailing the reasons for its denial.
Moreover, comments by councilors at the April 13, 2015 evidence that their desire to
analyze plaintiff's application under the ARD law resulted from their belief that the law
provided more public input and would ensure that a project "meets criteria that is acceptable
to the neighborhood." See Bayne Aff., Ex. A, at 1:09:00, 1:16:00.

- 25 -

While obtaining public comment on a matter of public concern is commendable, the
City Council may not cede its decisionmaking authority to the public, especially when a
significant portion of public opposition was based on improper biases towards SBS's clients.
It is the obligation of the City Council to properly consider an application according to the
criteria set forth in its City Code, independent of any prejudices toward the disabled. Plaintiff
has made a compelling showing to indicate that this obligation was breached in the present
case.
The City Council's failure to detail its reasoning for the denial of SBS's application is
additionally problematic when various details surrounding the City and County planning board
recommendations are considered. For example, staff at the County Planning Department
reviewed the plaintiff's application, determined that the application followed the appropriate
process, and that the proposed use was compatible with the surrounding residential
neighborhood. See Bayne Aff., Ex. D, at 29:00 -32:00. As a result, staff at the County
Planning Department recommended approval of plaintiff's application. Id.
Despite this review, the County Planning Board itself then voted to recommend
disapproval of SBS's application, citing its belief that plaintiff's application was better
reviewed under the ARD law. As presented to the City Council on May 26, 2015, the
disapproval recommendation from the County Planning Board was, on its face, not based
upon the criteria controlling the proper determination of a PDD application.
Further, on May 27, 2015, the Chairman of the County Planning Board requested that
the City Council resubmit SBS's application for reconsideration as the Board's disapproval
recommendation was based upon the incorrect assumption that plaintiff's application would
be considered under the ARD law. At the time, the Chairman further stated that plaintiff's
- 26 -

application was valid and consistent with the findings of staff of the County Planning
Department.
Given that the County Planning Board's recommendation of disapproval was clearly
not based upon proper consideration of the criteria for a PDD application and the underlying
staff report recommended approval, the obligation of the City Council to properly evaluate
plaintiff's application according to the criteria provided in the City Code was of utmost
importance. This was not done.
In its opposition to SBS's motion, the City notes various potentially non-discriminatory
reasons presented by residents at the May 11, 2015 public meeting, such as objections to
plaintiff's hours of operation. See Def.'s Mem. at 15. Again, none of these reasons were
adopted by the City Council or even contemporaneously utilized to demonstrate that denial of
plaintiff's application was not influenced by the opposition's discriminatory reasons.
vi. Analysis
By completely failing to describe the reasoning and logic behind the denial of SBS's
application, the City Council has effectively created a black box where any justifications are a
mystery. While at least a significant portion of the information placed into that box consisted
of community opposition based upon impermissible discrimination, the City has asked for a
ruling that the denial was free of any improper prejudices. This cannot be done!
The sequence of events, strong community opposition partially based upon improper
generalizations concerning SBS's mentally ill clients, and the City's failure to articulate any
rationale for its denial sufficiently demonstrate that improper animus against the disabled
individuals was a significant factor in the decision to deny plaintiff's application. As such,
plaintiff has established a prima facie case of intentional discrimination.
- 27 -

As discussed above, the City has failed to offer any legitimate, non-discriminatory
reason for its denial of SBS's application. Given this failure to provide any legitimate
non-discriminatory reasons, discriminatory animus must have been a significant factor behind
such denial. As a result, plaintiff has established a substantial likelihood of success on the
merits with respect to their discriminatory intent claim.
b. Disparate Impact
To establish a prima facie disparate impact case, a plaintiff "must provide evidence
showing (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." Quad Enters. Co., LLC v. Town of Southold,
369 F. App'x 202, 206 (2d Cir. 2010) (summary order). "Although the plaintiff need not show
discriminatory intent under this theory, it must prove that the practice actually or predictably
results in . . . discrimination." Id.
Generally, a plaintiff must offer statistical, quantitative evidence showing the disparity
between the two groups, or some other analytical mechanism to determine disproportionate
impact. Tsombanidis, 352 F.3d at 576. However, a plaintiff can also offer proof that allows
permits the court to make an assessment that there is a qualitatively disproportionate impact
on the members of the group at issue. Id. at 577.
In this case, SBS argues that the City Council crafted the ARD law in such a way as to
provide greater opportunity for the irrational fears and prejudices of the community to affect
the City's decisionmaking process. Further, plaintiff states that the new ARD law will prevent
the establishment of any facility providing services to the mentally ill in a residential
neighborhood.
- 28 -

This may be true. However, SBS has made no effort to make the necessary
quantitative or qualitative comparison to support its disparate impact claim and simply relies
on the argument that if they cannot utilize the Site for supportive housing, there must be a
disparate impact. At this point in the proceedings, plaintiff has failed to demonstrate a
substantial likelihood of success on the merits of its disparate impact claim.
2. Irreparable Harm
"Irreparable harm is injury that is neither remote nor speculative, but actual and
imminent and that cannot be remedied by an award of monetary damages." Forest City Daly
Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (internal quotation
omitted).
The Eleventh Circuit has taken the position that a showing of a substantial likelihood
that a defendant has violated the FHA is itself sufficient to create a presumption of
irreparable harm, which shifts the burden to defendant to prove that any injury that may occur
is not irreparable. See Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423–24 (11th
Cir.1984), cert. denied, 469 U.S. 882 (1984); see also Instant Air Freig ht Co. v. C.F. Air
Freight, Inc., 882 F.2d 797, 803 (3d Cir. 1989); Gov't of Virgin Islands Dep't of Conservation
& Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir. 1983).
The Second Circuit has not taken a position concerning this presumption. See Forest
City, 175 F.3d at 153 (finding that plaintiff did not establish a likelihood of success on the
merits and therefore the irreparable harm issue need not be decided). However, regardless
of whether the presumption applies, SBS has established irreparable harm through evidence
that, because SBS has been prevented from moving to the Site, it is being deprived of the
ability to provide shelter, programs, and services to its mentally ill clients.
- 29 -

SBS is a not-for-profit entity dedicated to providing services to assist individuals with
mental illness. It has purchased the Site in an attem pt to continue in its efforts to effect that
goal. As a result of the City's discriminatory actions, plaintiff's goal of providing housing and
services to those suffering from mental illness is "thwarted by each passing day." Stewart B.
McKinney Found., Inc. v. Town Planning & Zoning Comm'n, 790 F. Supp. 2d 1197, 1208 (D.
Conn. 1992).
The affidavits of SBS director David Bayne demonstrate that SBS's clients, including
those with schizophrenia and severe depression, are facing distinctive, immediate injuries if
the necessary supportive housing and services offered by SBS remain
unavailable. According to Bayne, these clients will end up "in the streets, hospitalized and/or
institutionalized." See Bayne Aff. ¶¶ 10-12.
Further, as a result of the financial constraint resulting from presently operating two
buildings, SBS has had to eliminate its breakfast program, which provides meals to its
mentally ill clients, and has had to eliminate a program coordinator position. See Reply
Affidavit of David Bayne ¶¶ 4, 9.
In essence, the discrimination against SBS yielded two separate and cognizable
injuries. The first injury, the monetary loss concerning operational expenses, was only
suffered by SBS itself, and dictates a remedy of monetary damages. The second injury, the
discrimination against SBS's mentally ill clients who are unable to obtain supportive housing
and services from the unopened facility, are suffered in part by SBS's clients, and in part by
SBS itself. This injury dictates an equitable remedy. See Stewart B. McKinney Found., Inc.,
790 F. Supp. at 1209 ("Monetary damages would not adequately compensate the plaintiff for
its inability to achieve its purpose of providing housing in the Oldfield property to needy
- 30 -

HIV-infected persons pending a final determination of this action. Therefore, the plaintiff
would suffer irreparable harm if a preliminary injunction did not issue.").
By hindering SBS's attempts to relocate to the Site, a location that perm its it to provide
supportive housing to at risk mentally ill individuals and would better accommodate the
programs SBS currently offers, the City is preventing SBS from housing and serving its
clients and diminishing the quality and variety of its programs, thereby undermining its
purpose. A monetary award would not adequately compensate plaintiff for these injuries.
Further, "[c]ourts have held that the deprivation of treatment needed to recover from
addiction or prevent relapse constitutes irreparable injury." Innovative Health Sys., Inc. v.
City of White Plains, 931 F. Supp. 222, 240 (S.D.N.Y. 1996). Irreparable injury exists where
there is a deprivation of housing or services that poses a serious risk of harm to vulnerable
individuals. See Easter Seal Soc'y v. Twp. of N. Bergen, 798 F. Supp. 228, 237 (D.N.J.
1992) ("[F]or each day that this project is delayed, eight protected individuals are forced to
move into other environments which endanger their recent recovery" constituting irreparable
harm); Oxford House–Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1345 (D.N.J. 1991)
(holding that closure of group home for substance abusers would cause irreparable harm
due to loss of home and supportive and stable environment).
The City's actions have deprived SBS of its ability to pursue its mission and to provide
housing and services to its mentally ill clients and this denial constitutes irreparable harm.
3. Balance of Hardships
As discussed above, SBS has demonstrated both a substantial likelihood of success
on the merits as well as irreparable harm in the absence of injunctive relief. Although the
City has an interest in maintaining the integrity of its City Code and zoning regulations, it
- 31 -

cannot assert an equitable interest in perpetuating discriminatory actions in the
administration and enforcement of either the City Code or those regulations. Further, the
City will suffer no damage in the entry of a preliminary injunction approving plaintiff's PDD
application. Accordingly, the balance of hardships favors plaintiff.
4. Public Interest
The FHA was "a clear pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the American mainstream." Bentley
v. Peace & Quiet Realty 2 LLC, 367 F. Supp. 2d 341, 345 (E.D.N.Y. 2005) (citations omitted);
see also 42 U.S.C. § 3601 (stating the FHA is intended to provide "fair housing throughout
the United States"). Indeed, the FHA "repudiates the use of stereotypes and ignorance, and
mandates that persons with handicaps be considered as individuals. Generalized
perceptions about disabilities and unfounded speculations about threats to saf ety are
specifically rejected as grounds to justify exclusion." Laflamme v. New Horizons, Inc., 605 F.
Supp. 2d 378, 386 (D. Conn. 2009) (citations om itted).
Although it has long been recognized that local governments have a substantial
interest in passing and enforcing ordinances to regulate land usage, it goes without saying
that such ordinances cannot be applied in an unlaw fully discriminatory manner. When
officials choose to do otherwise, federal and state interests transcend the def erence
ordinarily afforded to these local land use decisions. Accordingly, the public interest in this
case weighs in favor of granting the requested relief.

- 32 -

5. Summary
In sum, SBS has demonstrated, by a clear showing, the necessary elements required
for injunctive relief to be entered in its favor. As a result, equitable powers will be exercised
to prevent the City from continuing discriminatory action against SBS.
A court may affirmatively require a municipality to approve a plaintiff's zoning request
when the requirements for a preliminary injunction have been presented. See,
e.g., Innovative Health Sys., 931 F. Supp. at 245 (directing the City to issue a building permit
for plaintiff's substance abuse treatment facility); Cmty. Servs., Inc. v. Heidelberg Twp., 439
F. Supp. 2d 380, 400 (M.D. Pa. 2006) (ordering City to issue the necessary use and
occupancy permits for a home housing mentally challenged individuals); see also First Step,
Inc. v. City of New London, 247 F. Supp. 2d 135, 157 (D. Conn. 2003) (req uiring City to issue
a final special use permit for plaintiff's mental health facility subject to conditions).
Therefore, the City will be required to approve SBS's application to establish a PDD at
the Site in order to establish a mental health facility consistent with its application. However,
pursuant to the City Code, approval of a PDD application does not permit an approved use to
operate immediately. Pursuant to § 221-40(I) of the City Code, SBS is still required to submit
a final development plan to the City Planning Board for site plan review prior to issuance of a
building permit.
The City may still require such submissions, but is advised that such review shall be
consistent with the criteria delineated in the City Code, absent of any improper prejudices,
and without additional conditions, unreasonable or overly stringent interpretation of
provisions of the zoning regulations, or other undue delay.

- 33 -

6. Security
The only question remaining is whether, and for what value, SBS must post
security. See FED. R. CIV. P. 65(c) ("The court may issue a preliminary injunction . . . only if
the movant gives security in an amount that the court considers proper to pay the costs and
damages sustained by any party found to have been wrongfully enjoined or restrained.").
Although the requirements of Rule 65(c) are phrased in mandatory terms, "[t]he
Second Circuit has held that a district court may dispense with security where there has been
no proof of likelihood of harm to the party enjoined." Petrie Method, Inc. v. Petrie, 1988 WL
135375, at *3 (E.D.N.Y. Dec. 6, 1988) (citing Int'l. Controls Corp. v. Vesco, 490 F.2d 1134,
1356 (2d Cir. 1974); see also Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961); Bronson
v. Crestwood Lake Sect. 1 Hold. Corp., 724 F. Supp. 148, 159 (S.D.N.Y . 2006).
In the present case, there is no likelihood of harm to the City in ordering it to approve
SBS's application. Moreover, the City has not requested security in its opposition
papers. Accordingly, the posting of security is not necessary.
V. CONCLUSION
In sum, SBS has standing to pursue its FHA and ADA claims and its complaint states
plausible claims for relief. As such, the City's cross-motion to dismiss will be denied.
Further, plaintiff has established that it is substantially likely to succeed on the merits of its
intentional discrimination claim and that it will suffer irreparable harm if injunctive relief is not
granted. Accordingly, plaintiff's motion for a preliminary injunction will be granted.
Therefore, it is
ORDERED that
1. Plaintiff's motion for a preliminary injunction is GRANTED;
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2. Defendant shall approve plaintiff's application to establish a Planned Development
District with regard to the property located at 1515 Knox Street, Ogdensburg, New York to
permit plaintiff to operate a facility providing supportive housing, respite / hospital diversion
housing, rental office space, and mental health support services to individuals with mental
illnesses and shall file evidence of such approval with the Clerk of the Court on or before
April 15, 2016;
3. Defendant may require plaintiff to submit a final development plan to the City
Planning Board for site plan review pursuant to § 221-40(I) of the City Code, however, such
review shall be consistent with the criteria delineated for such review, and without additional
conditions, unreasonable or overly stringent interpretation of provisions of the zoning
regulations, or other undue delay;
4. The Court shall retain jurisdiction to monitor implementation of and to enforce this
order; and
5. Defendant's cross-motion to dismiss is DENIED in its entirety.
IT IS SO ORDERED.

Dated: April 5, 2016
Utica, New York.

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