Petition for Writ of Certiorari — City of Middletown v. Regional Economic Community Action Program, Inc.
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
Oo
011624 May -3 2002
No. OFFIOE OF THE CLERK
IN THE
Supreme Court of the United States
CITY OF MIDDLETOWN, CITY OF MIDDLETOWN
PLANNING BOARD and JOSEPH DeSTEFANO,
Petitioners,
REGIONAL ECONOMIC COMMUNITY ACTION PROGRAM,
INC., and UNITED STATES OF AMERICA,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ALEX SMITH
Assistant Corporation Counsel
of the City of Middletown BRIAN SOKOLOFF, ESQ.
Counsel of Record MIRANDA & SOKOLOFF, LLP
ROBERT N. ISSEKS 240 Mineola Boulevard
6 North Street The Esposito Boulevard
Middletown, New York 10940 Mineola, New York 11501
(845) 344-4322 (516) 741-7676
Attorneys for Petitioners
THE REPORTER COMPANY, Printers and Publishers, Inc.
18! Delaware Street, Walton, NY 13856—800-252-7181
(4019 — 2002)
Printed on Recycled Paper
QUESTIONS PRESENTED
1. Whether a healthy and productive individual, who has
been treated and alcohol-free for at least 30 days, may be
deemed “disabled” by virtue of his or her status as a
“recovering alcoholic”?
2. Whether a challenge under the disability statutes to a
planning board’s decision denying a special use permit to
construct 2 large residential facilities for recovering alcoholics
in an industrially-zoned district right next to an active rail line
in the middle of a small city’s last industrially developable
corridor — when the city and planning board rejected all other
residential proposals, save one, in the industrial districts of that
rail corridor in the past 20 years, and where that city has
demonstrated substantial and undisputed commitment to
residential facilities for the disabled — warrants a trial due to (1)
a discussion during the planning board hearings, mostly by
non-planning-board members, concerning the city’s and
neighboring towns’ fair share obligations in providing services
to special needs populations, and (2) the planning board’s
approval of a nearby office and warehouse complex that
included a Head Start program for children?
3. Whether a claim for retaliation lies under the disability
statutes for not providing loan monies when it is undisputed
that provision of those monies would have violated federal
regulations?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRRRIOTES RD vk vc ccau 6c etbubecduccssens i
TABLE OF CONTEC O sick ka cna wads bebe eeeedesuccaess ii
TABLE OF ALSEPALIINGe 655 26s Cees Pa veKdechopeaunens Vv
PETITION FOR A WRIT OF CERTIORARI .............. 1
OPINIONS BELOW 2. iccseuuceses PobUN Abs eeasaseees 1
STATEMENT OF JURISDICTION ................00000- 1
STATEMENT OF NOTIFICATIONS ................445: 1
STATUTORY PROVISIONS INVOLVED ................ 1
STATEMENT OF ‘THIER CAME. cs k505040550uueteeseteas 2
REASONS FOR GRANTING THE WRIT ................ 3
POINT 1
The recovering alcoholics who would have resided at
RECAP's facilities were not "disabled" ................ 3
A. Determining whether the "impairment" of
alcoholism constitutes a "disability" ............... 3
B. The proposed RECAP clients .......cccccccccceee 4
C. "Substantial limitation" versus “mitigating
MrT r rr rer rr Te tir ye ee 5
Pro ee el
Page
D. "Impairment" as "physical or mental" ............. 6
E. The “impairment-substantial limitation"
PI a a ndd-c-0 5.06 05005040 80506 cessacesenesa 8
F. The “individualized assessment" requirement
Se TT. PPT Teer rerereeeirereerrere 9
POINT 2
The Planning Board's denial of the Special Use Permit
did not violate the FHA, ADA or Rehabilitation Act asa
SE COU oc accvcccccewnnspedcvecccsesenseccecs 10
PE seid db ek WNekeneadeenuccedsusrincesese 10
The Middletown Zoning Ordinance ................. 11
The 1994 Planning Board hearings .................. 12
POT oo nv cccccccccecccnsncccccccscccececcecs 18
A. The disparate treatment prima facie case ...... 19
B. Legitimate justification ................e002- 20
ae NS Sw 04s CR 6DLS s56 400s case nc chdesoccace 22
ae: fF PPO UTTTETITLEReT Tere 22
1-a. The debate between the Mayor
GUN TARE GAINED ccc ccicccccececses 22
1-b. Isolated comments ................e0005 23
iV
Page
1-c. The Novesky comment ................. 24
1-d. Chairman Arluck's summary ............ 24
1-e. The Swierski statement ................. 25
1-f. Miner'scomments ..................00. 26
2. Differential treatment iebedeteawaaee bees 26
POINT 3
The retaliation claim was correctly dismissed as a matter
Vv
TABLE OF CONTENTS TO APPENDICES
Page
Appendix A - Opinion of Hon. Charles L.
Brieant, USDJ, dated September 25, 2000 ............. la
Appendix B - Final Opinion of Hon. Robert
Sack, USC], entered February 19, 2002 .............. 22a
Appendix C - Fair Housing Act (FHA), 42 U.S.C.
Ke f) MPPrrrerrrrrrrrerrr rr re eee 49a
Appendix D - Americans With Disabilities Act
(ADA), 42 USK. G TZ0R naka cb ieannanssises 58a
Appendix E - Rehabilitation Act, 29 U.S.C.
SP OO, oa cccccnaxasacncaaesénscdesseauansaes 61a
vi
TABLE OF AUTHORITIES
Cases: Page
Albertsons, Inc. v Kirkingburg, 527 US 555 (1999) .......-+-- 9
Bragdon v Abbott, 524 US 624 (1998) ......--.+.0eee0es 3, 10
Brandt v Village of Chebanse, 82 F.3d 172 (7th Cir.
OOD... occcccdvecccsocescenasccusnesveaneneennuaes 21
Bryant Woods v Howard County, 911 F.Supp. 918
(D.Md. 1996), aff'd 124 F.3d 597 (4th Cir. 1997) .. 19, 20, 21
Buckley v Consolidated Edison Co., 127 F.3d 270
(Qn Cir. 1997) ...cccccccccccccccccccscsccccccceces 4
Burch v Coca-Cela Co., 119 F.3d 305, 316 n.9
(Bin Cie, TOTP) occ ccccccccnsccccscssceesescestnesees 4
Gamble v City of Escondido, 104 F.3d 300 (9th Cir.
BOOT) . oc vncccncccceccccccceseccesasuaesscsuseneas 20
Groome Resources v Parish of Jefferson, 234 F.3d 192
(Sth Cir. DOOD) 2. cccccccccccccccccccccccccccsscess 20
Hemisphere Building Co. v Village of Richton, 171
F.3d 437 (7th Cir. 1999) 2.0.2... ccc cece eee e ee eeeee 21
Jackson v City of Auburn, 41 F.Supp.2d 1300
(M.D. Alla. 1999) .......cccccccccccccccccccccccces 21
Johnson v St. Clare's Hospital & Health Center,
1998 WL 236235, *7-8 (SDNY 1998), aff'd 175
F.5d 1008 Cindi Cie. 20000 ..c.cccccaccescassennwenes 4
Vil
Page
Keys v City of Olathe, 75 F.Supp.2d 1235 (D.Kan.
1999), rev'd in part on other grounds, 248 F.3d
See GU UE bbc uannecessaenedsaauvacsedcde 23
LeBlanc-Sternberg v Fletcher, 67 F.3d 412 (2nd Cir
SOOT 55450 400640900000 000 ubSddKEe bE ea des ckeenvei 19
Mountain Side Mobile Estates v HUD, 56 F.3d
PT EY aacpuscwleskennbeuddaucokounas 21
Oxford House v City of St. Louis, 77 F.3d 249
SY CE 0 600s kek ceccdnendendwinnckne¥bowes 23
Roberts v New York State Dept. of Correctional
Services, 63 F Supp.2d 272 (WDNY 1999) .............. 4
St. Mary’s Honor Center v Hicks, 509 US 502 (1993) ....... 27
Sutton v United Air Lines, 527 US 471 (1999) .......... 3,5,6
Texas Dept. of Community Affairs v Burdine, 450 US
| Perr rey “adisthseddndectsseeesannenaws 22
Toyota Motor v Williams, 122 S.Ct. 681 (2002) ...... 3, 8, 9, 10
White v Lee, 227 F.3d 1214 (9th Cir. 2000) ................ 24
Federal Statutes:
PD 4h b00 bbs deennaseuaeekenndwiseveesss 1
42 US.C::
SD +2 0b wan wi Neaweenedeeakedenecddcaubbaces 8
SE 24 Adn aN eeakbdonsNeeeed oaewdoescateunedess 23
Vill
Page
Americans with Disabilities Act (ADA),
Oe GeO OUD, 5 5 ho beak kc ds ddd cée0dcescdasas 1
Fair Housing Act (FHA), 42 U.S.C. §3601, et seq. .......... 1
Rehabilitation Act, 29 U.S.C. §701, et seq. .......... 0c cee 1
Federal Regulations:
poe oe | PPPPTETETETOPTTTTeerreiTe 29
29 C.F.R.:
PE SceueNakventheesbessnaacededwasdees cieave
SE crisccaekeskssdnenieenedatscsanann 8
New York Regulations:
EE oie cin yeas detcddnitakeenneednieneant 6
PD cstcsccbincdateosseavedencecanenesans 8
Other Authority:
New York General City Law, Article 3,
Ae ee PUY TET EL TTETETOPTTe rire re 23
l
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari to
review the judgment of the United States Court of Appeals for
the Second Circuit in this case.
OPINIONS BELOW
The District Court's opinion (Hon. Charles L. Brieant, USDJ)
granting Petitioners’ motion for summary judgment is
unpublished and is annexed as Appendix A. The Second
Circuit's original opinion (Hon. Robert Sack, USCJ), affirming
in part and reversing in part, is published at 281 F.3d 333. The
Second Circuit's final opinion is unpublished (2002 WL 449493
(2™.Cir.)) and is annexed as Appendix B.
STATEMENT OF JURISDICTION
The Second Circuit entered its final opinion on February 19,
2002. Petitioners invoke this Court's jurisdiction under 28
U.S.C. § 1254(1).
STATEMENT OF NOTIFICATIONS
As required by this Court’s Rule 29(4), the Solicitor General
of the United States and the United States Attorney for the
Southern District of New York have each been served with 3
copies of this Petition for a Writ of Certiorari.
STATUTORY PROVISIONS INVOLVED
The provisions of the Fair Housing Act (FHA), 42 U.S.C. §
3601, et seg., Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et
seq., relevant to this Petition are annexed, respectively, as
Appendices C, D and E.
2
STATEMENT OF THE CASE
In mid-1994, the Regional Economic Community Action
Program (RECAP) sought special use permits from the
Middletown Planning Board to operate service facilities on 2
contiguous parcels of land. On one parcel, owned by Richard
Rowley, RECAP sought to operate a Head Start facility,
together with day care services, various offices and a
warehouse. On the other parcel, owned by the Formisano
brothers, RECAP sought to construct and operate two
residential facilities: a halfvvay house for recovering male
alcoholics and a family support center for recovering female
alcoholics with children.
After two public hearings, in September 1994, the Board
unanimously granted a special use permit for the Rowley
projects. After five public hearings, in December 1994, the
Board, by a 4-2 vote, denied the special use permit for the
Formisano facilities.
RECAP and the Government contend the Formisano
decision violates the FHA, the ADA, and the Rehabilitation
Act. RECAP also alleges that Middletown retaliated against
RECAP for filing a January 1995 HUD complaint by reneging
on a funding commitment of approximately $53,000 for a
RECAP project at 208 North Street in Middletown.
Each of the above three Questions Presented has its own
separate and distinct set of relevant facts. Therefore, inan effort
to present with these questions with the “clarity” which is
“essential to ready and adequate understanding” (Rule 14(4) of
the Rules of the Supreme Court), each set of facts is contained
in the specific Reason for Granting the Writ to which it is
relevant.
3
REASONS FOR GRANTING THE WRIT
Point 1
The Recovering Alcoholics Who Would Have Resided at
RECAP’s Facilities Were Not “Disabled”
A. Determining Whether the “Impairment” of Alcoholism
Constitutes a “Disability”
This Court has outlined a_ three-step process for
determining whether an individual hasa “disability” under the
subject federal statutes: (1) whether she has a physical or
mental impairment; (2) whether the activity allegedly limited
by the impairment is a major life activity'; and (3) whether the
impairment substantially limits that major life activity.’ Bragdon
v Abbott, 524 US 624, 630 (1998). “[T]hese terms need to be
interpreted strictly to create a demanding standard for
qualifying as disabled”. Toyota Motor v Williams, 122 S.Ct. 681,
691 (2002)
Assuming that alcoholism is an “impairment” and thus
passes the first step of the Bragdon inquiry, the question
presented by this Petition is whether this impairment, as
experienced by the “recovering alcoholic” who has already
undergone treatment and who remains alcohol-free after at
'“[T]he touchstone for determining” whether an activity is a “major life
activity” is its “significance.” Bragdon, 524 US at 638. “[Slignificant” life
activities are those that are “central to the life process itself”, Id., and include
such functions as “caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §
1630.2(I).
? “[S]ubstantially limits” suggests “considerable” or “specified to a large
degree”. Sutton v United Air Lines, 527 US 471, 491 (1999)
4
least 30 continuous days of abstinence, can qualify as
“disabled” under either the second or third step.’
B. The Proposed RECAP Clients
According to Peter Quinlan, RECAP’s former Director of
Chemical Dependency Services, the recovering alcoholics who
were to reside at RECAP’s proposed facilities were “healthy
and productive people.” They would have “already been
detoxed” by having gone through thirty days of treatment in
an “intensive setting” just prior to admission, and they no
longer would be drinking. The prospective RECAP residents
“are functional people” and “often when they’re in the
program they go to work... [and to | college”.
Quinlan explained that the RECAP clients “suffered from
poverty by and large,” and that part of the criteria for their
admission was “whether or not they had a functional disability
. . . [or] some other limitation other than their chemical
dependency,” such as a co-existing health problem (like being
HIV positive or having poor vision), a housing problem, a
“mental health” problem, or an “intellectual limitation,” and
perhaps another issue, such as “personal trauma from
childhood or relationships.’ The fact that a client is a
> See, Buckley v Consolidated Edison Co., 127 F.3d 270, 273 (2™ Cir.1997)
(“mere status of being a recovering alcoholic . . . does not, on its face, appear
to amount to a [substantial limitation on a major life activity].”); Burch v
Coca-Cola Co., 119 F.3d 305, 316 n.9 (5™ Cir.1997) (while alcoholism may “rise
to the level of a disability” in some circumstances, it is insufficient for plaintiff
to merely state that he is an alcoholic); Roberts v New York State Dept. of
Correctional Services, 63 F.Supp.2d 272, 285 (WDNY 1999) (alcoholism “is not
a disability per se under the ADA”); Johnson v St. Clare's Hospital & Health
Center, 1998 WL 236235, *7-8 (SDNY 1998), aff'd 175 F.3d 1008 (2™ Cir. 1999)
(recovering alcoholic failed to provide medical evidence suggesting that his
alcoholism substantially interfered with a major life activity, and therefore
failed to establish a prima facie case of discrimination under the ADA).
5
recovering alcoholic, “in and of itself” is not the reason that he
would benefit from a stay in the halfway house.
Dr. Barry Hawkins, Orange County Director of Chemical
Dependency Services, confirmed that “[t]he typical [RECAP]
resident is a working person wno has a job in the community”
and is part of “the work force.” According to Hawkins, the
recovering alcoholic is not the type of alcoholic “you're most
familiar with,” the type you see “laying around the streets, or
vomiting, or stumbling out of bars.” Rather the RECAP
resident would be “invisible,” “someone who doesn’t
drink”and “doesn’t act out,” “a contributing member of
society;” “there’s absolutely no distinction between them and
other citizens.” “The typical resident is a working person who
has a job in the community.” Being a recovering alcoholic’ is a
permanent status which “has nothing to do with [the] ability to
perform or not perform anything.”
_C. “Substantial Limitation” versus “Mitigating Measure”
This Court has made it clear that individuals, such as
RECAP’s proposed residents, must not “be evaluated in their
hypothetical uncorrected state.” Sutton, 527 US at 482. The
effects of “measures to correct for, or mitigate, a physical or
* Hawkins used the term “recovered alcoholic” to refer to “that type of
person who was eligible for admission to the men’s halfway house that
RECAP was proposing” as well as RECAP’s proposed “family support
center.”
> Besides providing the clients with shelter and meals, the very function
of the halfway house is to train the client in “independent living skills,” such
as how to apply for a job, to dress for a job interview, to shop, cook, clean
house and get through life without drinking, thus belying any claim that the
clients are “disabled” from performing them. The clients’ needs for such
training might not necessarily be attributed to their alcohol problem; “[iJt
could have been a number of things” such as a lack of education, or perhaps
that “[t]hey were abused physically or sexually.”
6
mental impairment . . . must be taken into account when
judging whether that person is ‘substantially limited’ in a
major life activity and thus ‘disabled’ under the Act.” Sutton,
527 US at 482. “A ‘disability’ exists only where an impairment
‘substantially limits’ a major life activity, not where it ‘might,’
‘could,’ or ‘would’ be substantially limiting if mitigating
measures were not taken.” Sutton, 527 US at 482.
Any “substantial limitation” the RECAP client might have
experienced as a result of her alcoholism would be either past
experience (from before she entered the facility) or “potentially
or hypothetically,” Sutton, 527 US at 482, experienced (in the
event she should fall off the wagon). Throughout a client's
residence at the RECAP facilities her drinking impairment
would not “presently”, Sutton, 527 US at 482, constitute a
substantial limitation on a life activity.
Since it was not Congress’ intent “to bring under the
[ADA’s] protection all those whose uncorrected conditions
amount to disabilities,” Sutton, 527 US at 484, it could not have
been Congress’ intent to brand these non-drinking
“recovering” alcoholics as permanently disabled. The
structured environment provided toa recovering alcoholic who
has just come. out of treatment (but who, by RECAP’s
admission, is not thereby unable to be a “productive citizen”)
is nothing more than a “mitigating measure”. The RECAP’s
clients’ need for such an environment no more constitutes a
disability than the myopic sisters’ need for eyeglasses in Sutton.
D. “Impairment” as “Physical or Mental”
The Second Circuit erroneously reasoned that (1) under
state regulation (14 NYCRR 375) all prospective RECAP clients
must be “unable to abstain without continued care in a
structured supportive setting,” (2) the need of a supportive
setting constitutes a “substantial limitation” on the ability to
7
live independently, a “major life activity,” and therefore (3) the
RECAP resident is “disabled” as a matter of law. This
reasoning fails because it necessarily extends the definition of
“impairment” beyond the mere “physical or mental,” as
limited by the express language of the disability statutes, to
include any number of social and economic circumstances
which, according to Quinlan and Hawkins, are taken into
consideration when determining an individual’s need for a
temporary stay in a halfway house. While consideration of
such circumstances may further the State’s regulatory
purposes, it has no role in determining whether an individual
is “disabled” under the federal disability acts. The phrase
“unable to abstain without continued care in a structured
supportive setting” is simply too subjective, vague and
malleable to serve as a sufficient criterion for determining
whether an individual is “disabled”.
If, for example, the Second Circuit's syllogistic reasoning
were applied to a productive, competent government official
who is also a recovering alcoholic in need of a “supportive
setting” in order to stay sober, such individual would have to
be deemed “disabled,” even if such need is fulfilled by her
stable home and loving family, rather than a halfway house.
The same would be true for the prosperous executive whose
“care in a supportive setting” consists of expensive weekly
sessions with a private therapist and daily sessions with a
personal trainer. What separates these hypothetical “recovering
alcoholics” from their less fortunate counterparts who end up
in RECAP-type halfway houses is socio-economic status, not
the “physical” or “mental” impairment of alcoholism. Indeed,
Quinlan and Hawkins were quite clear and explicit about this.
In other words, it is not recovering alcoholism, per se, which
would qualify an individual for temporary residence in one of
the proposed RECAP facilities. It is recovering alcoholism plus
some other difficult life circumstance, such as poverty,
8
homelessness, illiteracy or some other impairment or illness.
There is no indication that Congress intended such life
circumstances to be considered in determining whether an
individual meets the definition of “disabled”.
E. The “Impairment-Substantial Limitation” Distinction
This Court in Williams held that in order to satisfy the
“substantial limitation” requirement, “[t]he impairment’s
impact must . . . be permanent or long-term.” Williams, 122 S.Ct.
at 691, citing 29 CFR §§ 1630.2(j)(2)(ii)-(iii) (emphasis added).
While the Second Circuit was correct in observing that
under NYCRR § 375.8(c), “RECAP’s clients qualify to live ina
halfway house because they need its supportive environment,”
it is also true that “[u]nder New York law, a halfway house
admits only those to be discharged ‘between three and nine
months after admission’”. Thus, while the RECAP clients’
“impairment is .. . long-term,” as noted by the Second Circuit,
the impact of that impairment is of relatively short duration.
For reasons unstated, the Second Circuit has in effect held that
since the impairment of alcoholism is of long (or permanent)
duration, then so must be its substantially limiting “impact.”
There is no basis for sucha holding in either law or this record.
The Second Circuit further obfuscates the “impairment/
substantial limitation” distinction when, citing 42 U.S.C. §
12102(2)(B), it concludes that “even if RECAP'’s clients did not
meet the first definition of a disability, they would qualify
under the second because they have a record of having an
impairment.” Under § 12102(2)(B), “[t]he term ‘disability’
means, with respect to an individual — (A) a physical or mental
impairment that substantially limits one or more of the major
life activities of such individual [or] (B) a record of such an
impairment...” (emphasis added) It is therefore not enough
that the RECAP clients have a record of alcoholism; they must
9
have a record of an alcoholism which resulted ina “permanent
or long-term”, substantial limitation of a major life activity.
F. The “Individualized Assessment” Requirement and Class-
Type Actions
A determination as to whether an_ impairment
“substantially limits” a “major life activity” must be made on
a “case-by-case basis,” Albertsons, Inc. v Kirkingburg,527 US555,
565 (1999), and “[i]t is insufficient for individuals attempting to
prove disability status under this test to merely submit
evidence of a medical diagnosis of an impairment.” Williams,
122 S.Ct. at 691.
“An individualized assessment of the effect of an
impairment is particularly necessary when the impairment is
one whose symptoms vary widely from person to person.”
Williams, 122 S.Ct. at 692. As the instant record bears out,
alcoholism is definitely an impairment with widely varying
symptoms, particularly among “recovering alcoholics”.
The “individualized assessment” requirement strongly
suggests that any disability lawsuit brought on behalf of a
generalized class of unknown persons whose impairment is not
one that “invariably cause[s] a substantial limitation ona major
life activity,” Albertsons, 527 US at 566, might be a frivolous
lawsuit. This is not to say, of course, that all disability class-
type actions would be without merit. Some “physical or
mental” impairments can be identified generally by the very
limitations they cause. Being blind is the same as being
substantially limited in the major life activity of seeing; being
mentally retarded is the same as being substantially limited in
cognitive reasoning. These impairments can certainly be the
proper subjects of class-type disability claims, since it is
obvious that they also constitute “disabilities” .
10
But such is not the case with an impairment like
alcoholism, a so-called permanent condition that might cause
no limitation at all (other than the inability to drink alcohol in
moderation). The purported “substantial limitation” upon the
RECAP client's ability to live independently, which is
identified by contextual, socio-economic, theory-dependent
criteria, cannot possibly supplant the Bragdon-Williams
“individualized inquiry” requirement.
Point 2
The Planning Board’s Denial of the Special Use Permit Did
Not Violate the FHA, ADA or Rehabilitation Act as a
Matter of Law
Background
Middletown is a small city of approximately 4'2 square
miles, witha population just under 25,000. It enjoyed economic
prosperity due in substantial part to its location at the
intersection of 2 major railroad lines, the Erie Lackawanna and
the Ontario & Western. Like many small northeastern cities,
Middletown saw its fortunes decline in the 1970/80's when
nearby shopping malls decimated its downtown core, leaving
a Shell of vacant buildings. The Erie stopped service in the late
1970's-early 1980's, and by 1994 was a dead track. That left the
O&W line as Middletown’s last active rail line, although by
1994 the historic O&W Station was no longer being used as a
_ train station. and traffic along the line was minimal.
Faced with an economic and financial crisis in the early
1990's,° Middletown began serious revitalization efforts
* This crisis involved double-digit increases in property taxes, layoffs from
City government for the first time in a century, a half-million fund balance
deficit that threatened Middletown with loss of its bond rating and bank-
(continued...)
1]
involving the reinvigoration and emplacement of commercial
and industrial enterprises along the O&W line.’ Middletown
actively sought the construction of the world’s first commercial
waste-to-ethanol plant (the Masada project) on the southern
end of that line. If the 100 million-plus plant is built, rail traffic
along that line might substantially increase." By 1994 (and until
today, in fact), there existed practically no available, industrial-
ly-zoned land in Middletown, save for the O&W corridor.
The Middletown Zoning Ordinance
The O&W corridor is comprised mostly of industrial
districts, although there are residential districts that abut the
line in the older sections of Middletown. Due to cumulative
zoning and the early 20" century practice of locating homes
near rail lines, the industrial districts in the O&W corridor
contain some residential dwellings: single-,two-,and multi-
family; most are early 20" century vintage. With one exception,
*(...continued) ,
ruptcy, high unemployment, an exodus of families, increased foreclosures,
abandoned buildings, and double digit increases in crimes.
” Many of these new enterprises received loans from Middletown’s Office
of Economic and Community Development including the heavy commer-
cial /light industrial uses now occupying the former Formisano and Rowley
premises. The record is clear that after 1994, a number of commercial and
industrial users chose to locate along the O&W line, including the Rowley and
Formisano parcels.
® The O&W line comes to a dead end a few miles south of the City limits;
hence all rail traffic generated by commercial or industrial users in the
southern end of Middletown will pass directly by the Rowley and Formisano
properties.
12
there has been no new residentiai construction in the industrial
districts of the O&W corridor since 1980.”
The Zoning Ordinance makes no distinction between
residential uses that house the disabled or any special needs
population and residential uses which do not house the
disabled or needy. The Ordinance contains districts for multi-
family dwellings and residential complexes, comprising, about
25% to 35% of the City.
In the 1990's either the City or the Planning Board rejected
every proposal for residential complexes in the industrial
districts along the O&W line: in 1992, the Planning Board
opposed a proposal for a senior citizens complex in the
southern part of the corridor,” the City informally rejected a
proposal for senior citizen housing in the O&W Station," and
the City in 1991 rejected a RECAP proposal to place a halfway
house for recovering alcoholics in the O&W Station.
The 1994 Planning Board Hearings
In the spring of 1994, RECAP approached City officials
with the proposed Head Start and alcohol residential facilities;
Middletown Mayor Joseph DeStefano advised Bill Cummings,
President of the RECAP Board of Directors, that he would
oppose the location of the residential facilities on the
* The one exception is a residential complex in the corridor’s northern end
which the Planning Board approved in 1987 over opposition from the City;
the Planning Board has not allowed any premises in the entire corridor (all
zoning districts) to be converted from non-residential to residential use since
1980.
"° If that residential complex had been built, it is unlikely that the Masada
project would be tenable today.
" The O&W Station is contiguous to the Formisano property.
13
Formisano property (again, next door to the similar RECAP
proposal at the O&W Station that DeStefano opposed 3 years
earlier), and suggested RECAP find an alternative site for those
facilities.’ The Planning Board began to consider the applica-
tions for the Rowley and Formisano projects on August 18,
1994.
The first Middletown official to speak was Alderman Dan
Long, who expressed caution regarding the Rowley project
because of Middletown’s wish to maintain the area for
commercial and industrial uses. DeStefano indicated that he
shared Long's concern for the planning aspects, “especially
along our railroad”; because the Head Start and related projects
were “non-residential” and “program oriented”, he supported
the Rowley project.
DeStefano opposed the Formisano project, stating he had
supported recent RECAP housing projects, involving some
recovering alcoholics and substance abusers, and the proposal
was a “good project”, but concluded: “we are just trying to put
anend to the perception that the only type of development that
can go on in Middletown is human service development.”
In the September Hearing, DeStefano argued the Formisano
facilities, unlike the Rowley facilities, did not contribute to the
“orderly development” of that area, and would “infringe upon
future . . . light industrial and commercial development in and
around that corridor.”
" RECAP Executive Director Charles Darden admitted that prior to
December 1, 1994, RECAP never advised or suggested to the Planning Board
or any City official any alternative sites for the alcohol residential facilities.
14
RECAP Executive Director Darden stated that the project
was “isolated, the fact that there’s very few residential bodies
in this area. Most of it is primarily commercial.”
At the October Hearing, Alderman Long stated:
And we have a real active rail line that goes
through the City. And not a whole lot of old
municipalities have that. So we don’t have a
highway out there. That we can put a mall on. But
we do have a railroad ...
All the parcels in question tonight are on an active
rail line. It’s the only active rail line left in the City
... | have a question about a residential facility
along the active rail line. And if you follow this line
through our City you'll notice no high density
developments immediately adjacent to the line.
After stating “[rJail is an important ingredient in the economic
development formula”, Long stated, “So basically what we’re
'’ That the Second Circuit missed this crucial evidence is clear from its
observation that the properties in the surrounding area were “not largely
industrial”. The Second Circuit ignored maps in the record showing that the
Rowley and Formisano properties are practically ringed by commercial uses.
Middletown’s planning expert, Stuart Turner, testified:
I don’t think it would be bad planning to locate industrial uses on that
property .. . [blecause . . . that particular area is not predominantly
residential and . . . again, the city’s policy is reflected in the fact that they
have zoned that for industrial use and anticipates over time that . . . those
residential uses may or may not be there. . . . It is not intended to be a
residential area and that is the reason it is zoned that way.
Turner also testified, “I wouldn’t want to expand the residential development
in this particular area. I don’t think it is an appropriate place for residential
development... .There is a railroad around it that historically has been active
and may be more active.”
15
trying to do is .. . develop this corridor to help us go into the
year 2000 so we can survive as a City.”
DeStefano stated “the City is not looking to ... pre[vlent
those with special needs from coming in. We are concerned
with good orderly development.” DeStefano referenced the
only residential development in an industrial district on the
O&W line, and argued this was “poor planning” by the prior
planning board:
That the corridor is; the City from the day of its
inception, planned the rail lines for industrial and
commercial development. We have had some
mistakes. Let’s not repeat the mistakes of the past .
But the most significant issue facing the Board is
the orderly development issue.
The only active rail line in the City, a large
commercial industrial parcel along that rail bed, the
investment by the City and State to encourage
economic development in that area, and to give an
opportunity to the people who live in that area to
have jobs...
A properly planned development for this area will
enhance our tax base . . .* [T]his community is
dying for economic development. You're taking the
last piece of economic development and making a
major decision on the future course of this City...
'* DeStefano alluded to the proposed solid waste facility on the southern
end as an example of proposed development of the railroad bed and also as
an example of industrial development that could be thwarted by the RECAP
residential proposal. ;
16
In the November Hearing, Neil Novesky, the City’s
Economic Development Director, referenced ongoing dis-
cussions regarding expanding a foreign free trade zone into
Middletown:
One of those zones to be considered is that strip,
that rail strip coming from Wallkill all the way
through. Everybody is aware of it, pas[t] the
[Rowley] property, right into town.
The point is that it’s probably not in the best
interest of the City’s economic development
strategy to locate a facility on—a residential facility
particularly on a rail line which is potentially the
only viable development zone left in the City .. .
This is not a voice in opposition to the concept of a
residential alcohol rehabilitation facility, or any-
thing of that nature. I would say that it’s simply in
opposition to the specific site, which is on a rail
line, and it’s got potential economic development
use which cannot be overstated.””
Planning Board Chairman Seth Arluck discussed the
potential of idling trains at the O&W Station adjacent to the
Formisano property’®, noted he had “been around all kinds of
rail switching areas for years . .. and the vibration and so forth
'S When asked if the Formisano property was too small for industrial use,
Novesky gave an example of a small business Middletown had assisted, and
stated that “5,000 square feet could be a significant area of space depending
on the company.”
"© Arluck emphasized “the old O & W station are the last places where
there is any room to put an extra line in.”
17
07
from diesel engines is tremendous being that close”, and
stated:
At one time people built residences right up to the
track. In that area many of those people probably
worked in the train yards. Nobody really gave it a
second thought, but I think now we take a little
closer look at what kind of nuisances will exist for
residential purposes, and it’s significant...
I found it to be a nuisance and was sorry I had
bought a house so close to —- evena couple of blocks
from a train track. Now if I was living right next to
it... 1 think that it’s a real issue . .. 1 don’t think the
speed of the train is the issue. . . the worse thing it
can do is when... it’s moving more slowly, it is
more of a nuisance.”
At the December Hearing, Arluck noted that the Planning
Board had previously rejected a 1992 application for senior
housing in the O&W corridor."” Arluck concluded:
I am on record . . . as opposing non-industrial
development in an industrial zone...
So my recommendation to this Board is to deny this
application for that reason because it is in an
” Arluck emphasized the Formisano property “is very close to the track”.
'® Novesky cited his experience on the Metropolitan Transit Authority
with the issue of trains with diesel engines idling near residential facilities,
and indicated this could be a potential problem if a residential facility was
placed on the O&W line.
'? Arluck noted the previously approved Head Start and related uses were
not residential, and “[t]here is no one sleeping there at night’.
18
industrial zone, and I am concerned about the use
of the ability of other people, of other industrial
users in this area. I’m concerned about train traffic
next to a residential facility. ... I have —in the past,
I have not supported this use in this zone.
Board Member Thomas Swierski, a former Councilman, stated:
I believe that the City itself has extended itself and
embraced significant other services that have come
our way, and I have to say that for us to be the
magnet for the area is not necessarily for the best
industrial development of this or any other project.
So I would say, Mr. Chairman, that I feel that the
proper industrial development of this is more
important in my vote, and I will vote no for this
project.
Argument
Research has not disclosed an FHA lawsuit against a
municipality (1) with Middletown’s massive, recent and
undisputed commitment to facilities and services supporting
the poor and disabled,” (2) whose planning board had such
powerful, traditional and undisputed zoning reasons to deny
a permit for a residential facility on an active railroad line in
the middle of that small municipality’s last industrially
° Darden testified that Middletown today has more facility capacity for the
treatment of homeless people and recovering alcohol and substance abusers
than any other municipality in Orange County; in 1994, Middletown’s facility
capacity in this respect would have been a “toss up” with the City of
Newburgh. Darden could not name any city the size of Middletown anywhere
with as much facility capacity today to treat the homeless and recovering
alcohol and substance abusers.
19
developable area, and (3) whose very existence was threatened
by an unprecedented and undisputed economic and financial
crisis.
The divisive issue concerning the respective obligations of
urban and suburban/rural governments for housing and
caring for special needs populations is one of the most
important social issues facing America today. Because the
discussion of this issue at the Planning Board hearings forms
the primary basis of the Second Circuit’s holding, a message
has been sent that volunteer planning board members cannot
discuss this important issue without fearing monetary damages
from disgruntled applicants and incurring the wrath of Justice
Department censors. The Second Circuit has instructed
municipal boards to play it safe and silence speakers on this
controversial issue.
Petitioners do not concede the District Court finding of a
prima facie case, but for the sake of brevity, these arguments
will be presented primarily in the section regarding pretext.
The compelling justification for the Planning Board's action is
intertwined with the District Court’s determination that no
material issue of fact warrants presentation of the pretext issue
to a jury.
A. The Disparate Treatment Prima Facie Case
Second and Fourth Circuit holdings require Respondents
to provide evidence from which a factfinder could reasonably
infer that the Planning Board's vote was significantly motivated
by factors related to the disabled status of the residents of the
prospective RECAP facilities.” Even if this Court rejects the
2! See, LeBlanc-Sternberg v Fletcher, 67 F.3d 412, 425 (2™ Cir. 1995); Bryant
Woods v Howard County, 911 F.Supp. 918, 929 (D.Md. 1996), aff'd 124 F.3d 597
(continued...)
20
Ninth Circuit’s Gamble formulation, the “significant motiva-
tion” test cannot be met at bar.”
B. Legitimate Justification
[T]he FHA does not provide a blanket waiver of all
facially neutral zoning policies and rules, regardless of
the facts . . . which would give the disabled carte
blanche to determine where and how they would live
regardless of zoning ordinances to the contrary .. .
Bryant Woods, 124 F.3d at 603; Groome Resources v Parish of
Jefferson, 234 F.3d 192, 216 (5™ Cir. 2000) (federal govt. cannot
*"(...continued)
(4" Cir. 1997)
Under the Ninth Circuit’s formulation, Respondents cannot establish a
prima facie case because they cannot show that Middletown has granted
anyone else a special use permit to construct a residential facility in the
industrial districts of the O&W corridor in the 1990's. See, Gamble v City of
Escondido, 104 F.3d 300, 305 (9"" Cir. 1997) where the necessary elements of a
prima facie claim to survive summary judgment in an FHA zoning case were
articulated:
(1) plaintiff is a member of a protected class; (2) plaintiff applied for a
conditional use permit and was qualified to receive it; (3) the conditional
use permit was denied despite plaintiff being qualified; and (4) defendant
approved a conditional use permit for a similarly situated party during a
period relatively near the time plaintiff was denied its conditional use
permit.
* For example, in Bryant Woods, a developer was denied a permit from a
planning board to expand a group home for the disabled. Citing legitimate
concerns regarding parking congestion and the fact that there were other
similar facilities located in the municipality, the Fourth Circuit upheld the
district court’s grant of summary judgment on FHA claims. The district court
rejected the developer’s contentions that the planning board took community
pressure into account, was motivated by discriminatory animus, and offered
shifting and irrational justifications for its decision; it was “clear from the
record that the Planning Board considered legitimate land use criteria in
arriving at its decision.” 911 F.Supp. at 930.
21
through FHA “regulate the intricacies of local zoning
decisions” )
Municipalities offering less important justifications than
Middletown have satisfied this burden as a matter of law. See,
Mountain Side Mobile Estates v HUD, 56 F.3d 1243 (10" Cir. 1995)
(municipality’s justifications— sewer system limitations, quality
of life in mobile home park — overcame prima facie case of FHA
discrimination resulting from municipal occupancy limitation
on families); Brandt v Village of Chebanse, 82 F.3d 172 (7" Cir.
1996) (village did not discriminate against plaintiff who sought
to build home for the handicapped in light of legitimate
concerns regarding flooding and lack of sanitary and storm
sewers): Jackson v City of Auburn, 41 F.Supp.2d 1300 (M.D.Ala.
1999) (rejection of apartment complex for black tenants in white
single-family neighborhood survived FHA challenge because
plaintiffs could not show that any permits had been granted to
similarly situated applicants and because city had legitimate
justification that a duplex development would not be
compatible with single-family subdivisions).
The Second Circuit's opinion ignores the well established
zoning precept that a permit for one residential facility will
create a precedent for more. “[D]iscrete zoning decisions
influence future decisionmaking through their precedential
value within the administrative and judicial systems.” Bryant
Woods, 911 F.Supp. at 942; Hemisphere Building Co. v Village of
Richton, 171 F.3d 437, 439 (7 Cir. 1999) (in a fair housing
challenge, a standard argument against piecemeal rezoning or
granting of special use permits “is that by allowing the
character of a neighborhood to change, it paves the way for
further requests for rezoning [or special use permitting], until
the land-use plan that generated the zoning is completely
eroded ... A municipality can if it wants try to retard the
erosion of its land-use plans by being chintzy about permitting
departures from its existing zoning.”) How would the
22
Middletown Planning Board turn down the next residential
proposal in that rail corridor, e.g., a senior citizen complex two
blocks away, or garden apartments a mile away, etc.? There is
no evidence in the record disputing the domino effect of
emplacing a residential facility onthe Formisano property — the
eradication of an industrial zone.”
C. Pretext
When the burden shifts back, a plaintiff must raise a
genuine factual question whether the defendant's proffered
reasons are pretextual "either directly by persuading the court
that a discriminatory reason more likely motivated the
[defendant] or indirectly by showing that the [defendant's]
proffered explanation is unworthy of credence." Texas Dept. of
Community Affairs v Burdine, 450 US 248, 255-256 (1981).
The Second Circuit held that Respondents deserve a trialon
pretext for 2 reasons: (1) various statements made by
DeStefano, other City officials, and Planning Board members,
and (2) allegedly different treatment by the Planning Board of
the Rowley project.
1. The Statements
1-a. The Debate Between the Mayor and RECAP Officials
The Second Circuit uses the debate during the hearings
between DeStefano and RECAP regarding whether there was
a need for the Formisano facilities in Middletown to taint the
Board vote. But this debate dovetails into FHA disparate
treatment and disparate impact balancing tests because the
actual need has been a question: there never has been a family
?? Thus the Second Circuit’s concern regarding the size of the Formisano
parcel is irrelevant.
23
support center in Orange County, and Darden admitted that
this need has been met by scattered site housing. Darden
admitted that with the expansion of a Newburgh halfway
house, he was not sure if there is a need for another halfway
house in Orange County. See, Oxford House v City of St. Louis, 77
F.3d 249, 253 (8 Cir. 1996) (FHA does not "insulate [the
disabled] from legitimate inquiries designed to enable local
authorities to make informed decisions on zoning issues.")
Apart from isolated comments, Board members did not
participate in this debate, and it is clear from the record that all
of their votes were based on sound planning concerns.
DeStefano was not a member of the Board, nor did he have any
authority or supervisory power over it.”
1-b. Isolated Comments
The Second Circuit identifies a couple isolated comments
out of five hearings (hundreds of transcript pages): 1 comment
each from Arluck, Miner, and Board counsel Alex Smith.”
** Although the Planning Board is a City agency, it is an entity charged
with duties under State law and its decisions involving special use permits
are governed by State law. New York General City Law, Article 3, Sections
27, 27-a, 27-b.
* The Second Circuit suggests discriminatory bias on Smith’s part because
he asked RECAP officials to place on the record their reasons for their
conclusory assertions that the facilities were needed in Middletown. A duty
of municipal attorneys is to ensure that a full record is made before municipal
boards, something that Smith often did during the hearings — and often on
issues that inured to RECAP’s benefit.
The Second Circuit criticizes Smith for questioning whether residents of the
RECAP facilities would have criminal histories. But the FHA specifically
allows this inquiry. 42 USC 3604(f)(9); Keys v City of Olathe, 75 F.Supp.2d 1235
(D.Kan.1999), rev'd in part on other grounds, 248 F.3d 1267 (10 Cir.2001)
24
Upon examination, these comments were questions
directed at RECAP’s refrain that the Formisano facilities were
needed in Middletown,” and have been judicially recognized
both as protected speech and legitimate inquiry. The specter,
however, of the Second Circuit’s holding is Justice Department
censorship of speech at municipal planning and zoning
hearings.”
1-c. The Novesky Comment
The Second Circuit finds pretext in a general comment by
Novesky regarding the deterrent effect of “a certain type of
social service or support service program”, but fails to
acknowledge that a couple of moments before, Novesky made
clear that he was referring to “a residential facility particularly on
a rail line” .
1-d. Chairman Arluck’s Summary
At the last hearing, Arluck summed up the reasons given
to the Board to vote for or against the RECAP project. The
Second Circuit make much of his last reason to deny:
Another reason that was brought up proposing [sic]
this by the Mayor and Council Members that
there’s an over-concentration of residential and
** The Arluck comment is simply a non-judgmental observation that a
debate had taken place.
”” Cf., White v Lee, 227 F.3d 1214 (9" Cir. 2000) (Actions of HUD officials in
conducting eight-month investigation into conduct of neighbors who
opposed conversion of motel into multi-family housing unit, including
questioning of neighbors and endorsing settlement by which investigation
would be terminated if neighbors relinquished their constitutionally
protected expressive activities, impermissibly chilled neighbors’ First
Amendment right to engage in expressive activity )
25
social service facilities in the City, which tends to
put a demand on City services, while at the same
time eroding the tax base. (emphasis supplied)
The Second Circuit states that Arluck was urging the Board to
get into the overconcentration debate and utilize this issue as
a reason to deny, but ignores two critical points:
First, the record reflects that Arluck was simply
summarizing for the Board arguments that had been made pro
and con fo it. Arluck did not attempt to critique or legitimize
these pro and con arguments and did not take a position until
he provided his reasons to deny the project.
Second, the word “residential” was highlighted in the
above quote because it implicates 2 flaws that permeate the
Second Circuit’s opinion: (1) the term “overconcentration”
necessarily implies an FHA violation, and (2) its disregard of
the fact that the Formisano facilities were in an industrial
district. A planning board exists to control and guide municipal
growth, and in so doing must balance residential and industrial
growth. There is nothing wrong with a planning board
preventing the overconcentration of residential facilities -
whether single family homes, senior citizen complexes, or
facilities for the disabled — in industrial districts.
1-e. The Swierski Statement
Contrary to the inference made by the court below, any fair
reading of Swierski’s statement indicates clearly that he voted
to preserve what he termed this “important” industrial
corridor, and that although RECAP’s project had value, it was
outweighed by the need for industrial development. Balancing a
project for the disabled against industrial and commercial
development in an industrial zone does not violate the FHA if
the scale tips toward development.
26
1-f. Miner's Comments
The Second Circuit distorts Miner's mention in his
deposition that he had a “concern” regarding the over-
concentration issue during the hearings into making it “one of
his bases for opposing the permit”.” Miner made clear,
however, his belief that the overconcentration issue did not have
to be decided in this case, and there is no evidence it formed a
“base” of his vote.
2. Di ntial T n
The Second Circuit reasoned that pretext can be inferred
because the Board approved the Rowley project. The court
below viewed this as different treatment of similarly situated
groups because the Head Start project was a non-industrial use
and because the children coming to that facility would have
suffered from the same potential nuisance from the rail line as
would the residents on the contiguous Formisano property.
First, the children would not have been exposed to the same
potential nuisance because they would be there only limited
hours of the day, and more importantly, would have been
located in a portion of the larger Rowley property on the North
Street side that was significantly further away from the rail line
than the Formisano facilities which were right next to the
® The Second Circuit ignores Miner’s emphatic deposition testimony that
his primary concerns were “applying planning considerations as to whether
to approve [the RECAP project] for a particular site wherein economic
development concerns had already been identified” and the “future
implications of such a permit on the future direction of economic and
industrial and commercial growth within the city.”
27
tracks.” And the RECAP warehouse building would have
further separated the children’s area from the tracks.
Second, the Head Start, the day care center and its related
offices was a non-residential, commercial enterprise that would
have complemented nearby commercial and industrial uses
because the labor force would have a facility to care for
younger children.”
“[A] reason cannot be proved to be ‘a pretext for
discrimination’ unless it is shown both that the reason was
false, and that discrimination was the real reason”. St. Mary's
Honor Center v Hicks, 509 US 502,515 (1993)(emphasis supplied)
Neither Respondents nor the Second Circuit provide any issue
of material fact warranting a trial on the falsity of the Planning
Board’s obviously legitimate reasons to deny the Formisano
application.
*’ The record reflects that the Formisano facility would have been less than
50 feet from the tracks. As Arluck put it, “when I drove down there and saw
Formisano’s property and I could reach out and touch that railroad line, and
said, why should somebody — just because they are a substance abuser . . .
why should they have to be next to a railroad?”
* The Second Circuit overlooks that the Head Start project was to be
accompanied by an infant day care center and that — even assuming the
notion that day care complements nearby commerce/industry requires
explication — the record reflects that comments were made to the Planning
Board that low income working parents needed such services, and that the
Rowley project would thus be a positive step toward attracting industrial-
based jobs to Middletown. Arluck made it clear during the hearings that the
significant difference between the two projects was the “non-residential”
nature of the Rowley uses.
28
Point 3
The Retaliation Claim Was Correctly Dismissed as a
Matter of Law
As Chairman of the Planning Board, just prior to his
election as Mayor, and over political opposition, DeStefano
supported RECAP’s application for a residential facility for
homeless men, some of whom had alcohol and substance abuse
recovery issues, at 208 North Street.
By letter dated June 23, 1993, the Middletown Community
and Economic Development Office provided a preliminary
loan commitment in the amount of $53,139 for the purchase of
furnishings by RECAP at 208 North Street. RECAP did not seek
to draw down any funds from this loan until a letter dated
December 8, 1994. By that time, the 1993 loan monies in the
Community Development Office had been obligated; never-
theless, the Office began to review the RECAP request, and
asked in writing that RECAP submit required documentation
for a Rental Rehabilitation loan; RECAP never submitted this
documentation.
In early 1995, the Office began to receive complaints that
RECAP was using contractors which had previously been
disapproved by the Office for utilizing unlicensed workers and
for the poor quality of their work. In March 1995, the Office
received its first request from RECAP for a specific dollar
amount for 208 North Street.
The District Court correctly held that no material issue of
fact exists as to the motivation behind Middletown’s refusal to
provide the loan for 208 North Street. The City rejected
RECAP’s request because RECAP never submitted the required
application, the funds that were initially targeted in 1993 were
spent on other deserving projects for low income persons, and,
most importantly, because RECAP insisted on using a banned
29
contractor in the renovation work done at 208 North Street. In
its Rule 56.1 statement submitted to the District Court, RECAP
did not deny that it used a banned contractor.”!
Given the use of a banned contractor, approval of the
RECAP loan would have violated HUD regulation §570.609
which is entitled, “Use of debarred, suspended or ineligible
contractors or subrecipients”:
Assistance under this part shall not be used directly
or indirectly to employ, award contracts to, or
otherwise engage the services of, or fund any
contractor or subrecipient during any period of
debarment, suspension, or placement in
ineligibility status under the provisions of 24 CFR
part 24.”
The Second Circuit also erred in its “protected activity”
analysis. According to its Complaint, RECAP’s retaliation cause
of action is based solely upon Middletown’s alleged desire to
retaliate for RECAP’s filing of a complaint with HUD in
January 1995 attacking the Formisano decision. The Second
Circuit allowed RECAP to, in effect, amend its Complaint by
adding a new “protected activity”: a letter sent by RECAP’s
attorneys to the City and Planning Board on December 5, 1994,
five days after the Formisano decision. The letter demanded
that the decision be “rescinded”; it was faxed to City Hall and
threatened “legal action” “if we do not hear from you by the
end of the business day tomorrow”. But the Second Circuit
ignores that on the evening of December 5, 1994, the RECAP
Board of Directors met and voted not to authorize legal action
* Nor did RECAP provide any admissible evidence that it ever submitted
an application.
* 24 CFR Ch. V (4-1-95 Edition)
30
against Middletown. Darden admitted there was no authority to
send the December 5" letter after the Board’s vote. Board
members Richard Baum and Richard Roberts, who were then
Orange County Legislators, advised DeStefano that neither the
letter nor legal action was authorized, and that the City should
disregard same. RECAP cannot assert that the sending of an
unauthorized letter — with an hours-later instruction from its
Board of Directors to disregard it -- constitutes “protected
activity”. The District Court correctly held that one cannot
retaliate against a nullity.”
CONCLUSION
For the foregoing reasons, this Petition for a Writ of
Certiorari should be granted.
Respectfully submitted,
ALEX SMITH
Assistant Corporation Counsel
of the City of Middletown — BRIAN SOKOLOFF, ESQ.
Counsel of Record MIRANDA & SOKOLOFF, LLP
ROBERT N. ISSEKS 240 Mineola Boulevard
6 North Street The Esposito Boulevard
Middletown, New York 10940 Mineola, New York 11501
(845) 344-4322 (516) 741-7676
Attorneys for Petitioners
* Thus the Second Circuit's reliance upon an alleged threat made during
a mid-December telephone call is misplaced because the conversation took
place before any protected activity had occurred.
APPENDIX
la
Appendix A—Opinion of Hon. Charles L. Brieant, USDJ,
dated September 25, 2000
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
REGIONAL ECONOMIC COMMUNITY
ACTION PROGRAM, INC.,
Plaintiff,
97 Civ. 8808 (CLB)
-against-
MEMORANDUM
CITY OF MIDDLETOWN, CITY OF & ORDER
MIDDLETOWN PLANNING BOARD and
JOSEPH DeStefano
Defendants.
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
-against-
CITY OF MIDDLETOWN,
Defendant.
Brieant, J.
By motion filed February 4, 2000, heard and fully submitted
on April 19, 2000, the City of Middletown ("City" or
"Middletown"), City of Middletown Planning Board ("Planning
Board") and Joseph DeStefano, defendants in this civil rights
action for violation of the Fair Housing Amendments Act, 42
2a
U.S.C. §3601, et seq. ("FHA"), the Americans with Disabilities
Act, 42 U.S.C. §12101, et seq. ("ADA"), Section 504 of the
Rehabilitation Act of 1993, 29 U.S.C. §794, and retaliation, move
for summary judgment pursuant to Rule 56, Fed. R. Civ. P.
Plaintiff Regional Economic Community Action Program, Inc.
("RECAP" or "Plaintiff') and Plaintiff-Intervenor the United
States of America (collectively "Plaintiffs") filed opposition
papers on April 4, 2000. Defendants filed reply papers on April
17, 2000. Plaintiffs filed surreply papers on April 26, 2000.
Plaintiffs seek money damages as well as equitable relief in the
form of declaratory judgments and injunctive relief.
Background
While Plaintiffs allege claims for violations of the FHA,
ADA, and the Rehabilitation Act, and Plaintiff RECAP alleges
a claim of retaliation, this case is, at its heart, no more than a
land use dispute concerning the proper exercise of a
municipality's authority to administer and enforce its local
zoning regulations.
Plaintiff RECAP is a not-for-profit corporation established
in 1965, for the provision of education, housing, social services
and other programs to low income individuals in Orange
County, New York. Defendant Middletown is an incorporated
municipality in Orange County, New York. Defendant
Planning Board is a voluntary board whose members are
appointed by the Mayor of Middletown subject to confirmation
by Middletown's Common Council. Smith Aff. 93. Defendant
Joseph DeStefano is the Mayor of Middletown.
In 1994, RECAP sought Special Use Permits from the
Planning Board to establish facilities on two contiguous parcels
of land in Middletown which it planned to lease with the
option to purchase from two private owners. On one parcel,
3a
RECAP sought permission to operate a Head Start facility,’
together with day care services, administrative offices and a
storage facility (the "Rowley Property").’ On the other parcel
(the "Formisano Property"), RECAP sought permission to
construct and operate a supportive residence to assist women
recovering from alcoholism and their children (the "Family
Support Community") as well asa second supportive residence
to assist men recovering from alcoholism (the "Men's
Community Residence") (collectively the "Proposed
Residences").”
Both properties are located along the former Ontario &
Western rail line corridor (the "O&W"), the last active rail line
in Middletown. While the track of the former O&W line was
still in use by Conrail for freight only in 1994, the O&W station
was not being used as a train station and the traffic along the
' Head Start is a comprehensive federal child development program which
serves children, pregnant women and their families. It is a child-focused
program and has the overall goal of improving the school readiness of young
children in low-income families. The Head Start program is administered by
the Head Start Bureau, the Administration on Children, Youth and Families,
Administration payee and Families, Department of jawe and Human
mission
.htm> (last visited oiamer 19, 2000).
* The Rowley Property is 2.5 acres, located across the street from RECAP's
existing building and runs to the former Ontario & Western railroad, where
a rail spur on the property connects it to the track. RECAP planned to
reconfigure existing buildings on the Rowley Property and construct new
ones to accommodate a 10,000 square foot space for Head Start classes, day
care for infants and additional rental space.
* The Formisano Property is one half acre situated across the street from
RECAP's existing building and also borders the railroad track. On this
property, RECAP planned to convert an existing building into a halfway
house for 24 men recovering from alcoholism, and construct a new building,
partly on the Formisano Property and partly on the Rowley Pfoperty, to
house 20 recovering alcoholic mothers and their children.
4a
line was minimal. Fusco Aff. at 3. The majority of industrial
or potentially industrial plots available in Middletown are
located along the O&W corridor. Fusco Aff. at 95-6, Ex. O. The
rail track was useful only for abutting industrial users and
without more such users it faced abandonment. The O&W line
ends south of the City limits, so that there would be no rail
freight traffic south of the City line.* Fusco Aff. at 7.
Under the applicable Middletown Zoning Ordinance in
effect in 1994 (the "Zoning Ordinance"), all zoning districts in
Middletown in which the uses proposed by RECAP were
permitted required a Special Use Permit from the Planning
Board.” Id. 411. The Zoning Ordinance also provided for
districts for multi-family dwellings or apartment house
complexes that make up 25-35% of the City and which also
require Planning Board approval. In the 1990s, either the City
or the Planning Board rejected every proposal for large
residential complexes in the industrial districts along the O &
W corridor. These proposals included one for a senior citizens
complex in the southern part of the corridor, which was
rejected by the Planning Board, and two proposals for housing
* At the relevant times, Middletown actively sought the construction of a
commercial waste-to-ethanol plant (the "Masada" project) on the southern
end of the O&W line. Such a plant would result in a substantial increase in
the traffic along the rail line. The availability of the O&W line was a factor in
attempting to attract the Masada project. Fusco Aff.
> The ordinance in effect in 1994 also provided for "cumulative zoning,"
which allowed, for example, single and two family residences in commercial
and industrial districts, and commercial uses in industrial districts as of right.
Fusco Aff. at 99. “Cumulative zoning" has been largely discontinued in
Middletown and elsewhere. Fusco Aff. at $9. With one exception, there has
been no new residential construction in either the residential or the industrial
districts of the O&W corridor since 1980. Fusco Aff.
Sa
in the former O & W Station, both of which were informally
rejected by the City.°
On August 18, 1994, the Planning Board held a first public
hearing and began considering RECAP's applications for
Special Use Permits for the Rowley and Formisano Properties
(the "Properties"). The Planning Board held two public
hearings concerning both of the Properties, and three
additional public hearings solely concerning the Formisano
Property. RECAP told the board that RECAP preferred "an
overall approach" but it was possible that RECAP could make
the Children's Center project work without the Formisano
property.’ Ex. H io Smith Aff 153-154. Chairman Seth Arluck
informed RECAP that the Planning Board would consider the
Rowley and Formisano projects separately. _
On September 19, 1994, after a second hearing, the
Planning Board unanimously approved the Rowley project,
subject to RECAP obtaining a negative State Environmental
Quality Review Act ("SEQRA") declaration and agreeing to
payment of property taxes or a payment in lieu of taxes. The
Formisano project was also discussed at this hearing.
° The Planning Board did approve of two residential dwellings in 1991,
and a senior citizen complex in 1999, all in the south-eastern portion of the
O&W corridor. DeStefano Aff. 72. These developments were within high
density residential districts. Id. In the 1990s, the Planning Board also
approved the rezoning of two industrial districts into residential districts;
however, neither of these were within the O&W corridor. DeStefano Aff. at
45. In 1990, the Planning Board approved the rezoning of a single parcel in
the O&W corridor from industrial to residential use. A church and a cemetery
separated this parcel from the rail line. Id. at 94.
’The Complaint alleges, however, that the Children's Center was
"doomed" without the Formisano Property. Complaint 762. No evidence in
the record supports this contention.
6a
On December 1, 1994, at the final hearing of the Planning
Board on the Formisano Property, Chairman Arluck
summarized the arguments which had been presented for and
against the application during the course of the various
hearings. Dec. Tr. at p. 44-45. Chairman Arluck stated that he
“oppos[ed] non-industrial development in an industrial zone"
and that he was "concerned about the use ... of other industrial
users in this area." He further stated that he was "concerned
about train traffic next to a residential facility.” Dec. Tr. at 50-
51. Other considerations discussed by persons in attendance at
the hearings on the Formisano Property included: concerns
about having a residential facility along the only active rail line
in the city (Oct. Tr. at 32-34); the number of licensed residential
care facilities already existing in the community (Oct. Tr. at 36-
38); risks inherent in locating a residential facility in a rail
corridor including concerns about idling engines and rail line
traffic near residential facilities (Nov. Tr. at 67-68, 70-73, 93-96);
and concerns about a traffic problem because of a dangerous
intersection identified by the Commissioner of Public Works.
In addition, concerns were expressed about the loss of potential
economic development for industrial uses (Nov. Tr. at 62-64).
Furthermore, the Planning Board received and noted favorable
comments from members of the public who had benefitted
from RECAP’s programs in the past. Oct. Tr. at 16-30.
Ultimately, the Planning Board rejected only the Formisano
application. It did so by a divided vote. The reasons expressed
by the majority of the Planning Board were a desire to preserve
the industrial rail corridor for industry and concern for the
potential nuisance which an active rail line presents to
residents. All members who voted against the project stated
that they would have voted in favor of the project if it had been
in another location in Middletown and that they would have
opposed any residential use on the Formisano property. Arluck
Aff., Swierski Aff., Moson Aff., and Miner Aff.
7a
In the spring of 1995, Middletown offered to reconvene the
Planning Board to address reasonable accommodations and
possible alternative sites for the RECAP projects. Darden Dep.
at 506-507. RECAP rejected the offer claiming it did so because
at the time there was no funding available. Cummings Dep. at
51-52.
Commercial tenants now occupy both of the Properties.
Mountain Restaurant Supply occupies the Formisano Property.
Keck Industries, a manufacturer and finisher of furniture for
houses of worship, and Best Mexican Foods, a food distributor,
occupy the Rowley Property.
By letter dated December 5, 1994, RECAP informed
Defendants for the first time that RECAP believed the denial of
the Formisano Special Use Permit violated the FHA and the
ADA. This letter was not authorized by the RECAP Board of
Directors, and Defendants were informed thereafter that it
should be disregarded. On December 22, 1994, Plaintiff and
Defendants met in an attempt to resolve the dispute without
litigation. On December 31, 1994, Plaintiff filed a complaint
with the United States Department of Housing and Urban
Development ("HUD") claiming that denial of the Formisano
Special Use Permit constituted violations of the FHA, ADA and
the Rehabilitation Act.
Claimed Retaliation
By letter dated December 8, 1994, Plaintiff requested funds
from the Middletown Office of Community Development (the
“Office") for furnishings for Plaintiff's 208 North Street facility"
based upon a letter dated June 23, 1993 from the Office in
" During the relevant time, RECAP operated a low income housing
development at 208 North Street.
8a
which the Office provided a "commitment" of funds.” By that
time, the Office's 1993 funds had already been obligated.
Despite these prior obligations, the Office reviewed RECAP's
request and then requested in writing that RECAP submit the
required documentation for a Rental Rehabilitation loan.
RECAP did not submit this documentation.
In 1995, the Office began to receive complaints from local
contractors that RECAP was not paying prevailing wage rates
and that RECAP was using contractors who had been
disapproved by the Office for utilizing unlicensed mechanics
and for the poor quality of their work. The Office also began an
inquiry into the financial and lien status of 208 North Avenue,
and forwarded its fileon RECAP, according to routine practice,
to the Mayor's office for financial review. The Mayor returned
the file and stated that in his judgment there were no financial
concerns of any significance.
Plaintiff commenced this action on November 26, 1997,
claiming that the City denied RECAP's application for the
Special Use Permit for the Formisano Property because of the
disabled status of the individuals who would reside on the
property and did so in violation of the FHA, the ADA and the
Rehabilitation Act. RECAP also claims that Defendants denied
Plaintiff the 208 North Street funding in retaliation for the filing
of a complaint with HUD. On June 17, 1998, the United States
of America filed an intervenor Complaint and joined in
RECAP's ADA, FHA and Rehabilitation Act claims.”
'* RECAP claims that this commitment was a grant, while Defendants
argue that it was a preliminary loan commitment.
'’ The United States of America did not join in RECAP's retaliation claim
and makes no claims against Mayor DeStefano as an individual.
9a
Discussion
The standards for granting summary judgment in this
Circuit are so well known as to obviate the need for citation.
We note, however, that all facts must be viewed in the light
most favorable to the non-moving party.
The New York legislature has empowered and urged the
legislative authorities of municipalities in the state to establish
Planning Boards to administer local ordinances, approve plats
and act legislatively to ensure well-balanced land use in their
jurisdiction. While municipalities do not have the inherent
power to enact or enforce land use regulations, the legislature
of New York has chosen as a matter of policy to delegate such
zoning power to cities, villages and towns, through general
enabling acts. See CLS Gen. City Law § 20(24), 20(25); CLS Vill.
Law §§ 7-700 et seq.; CLS Town Law §§ 261 et seq. The General
City Law of New York provides that
subject to the constitution and general laws of this
state, every city is empowered ... to regulate and
limit the height, bulk and location of buildings
hereafter erected, to regulate and determine the
area of yards, courts and other open spaces, and to
regulate the density of population in any given
area, and for said purposes to divide the city into
districts.
Such regulations shall be uniform for each class of
buildings throughout any district, but the
regulations in one or more districts may differ from
those in other districts. Such regulations shall be
designed to secure safety from fire, flood and other
dangers and to promote the public health and
welfare, including, so far as conditions may permit,
provision for adequate light, air, convenience of
10a
access ... and shall be made with reasonable regard
to the character of buildings erected in each district,
the value of land and the use to which it may be
put, to the end that such regulations may promote
the public health, safety and welfare and the most
desirable use for which the land of each district
may be adapted and may tend to conserve the
value of buildings and enhance the value of land
throughout the city.
N.Y. Gen. City Law § 20(24) (McKinney 2000).
The statute further provides the City with the power
to regulate and restrict the location of buildings,
designed for specified uses, and for said purposes
to divide the city into districts and to prescribe for
each such district the trades and industries that
shall be excluded or subjected to special regulation
and the uses for which buildings may not be
erected or altered. Such regulations shall be
designed to promote the public health, safety and
general welfare and shall be made with reasonable
consideration, among other things, to the character
of the district, its peculiar suitability for particular
uses, the conservation of property values and the
direction of building development, in accord with
a well considered plan.
N.Y. Gen. City Law § 20(25) (McKinney 2000).
Pursuant to such enabling statutes, city planning boards
work to implement zoning ordinances which are established to
provide for the development of a balanced, cohesive
community which will make efficient use of the community's
available land for the benefit of the entire community. Such
*
,
3
E
¥
x
a
Ea
ahs
whe
¥
$.
%
Ex,
lla
zoning ordinances and land use regulations divide the
community into districts for the purpose of imposing»
reasonable land use regulations which will promote
harmonious uses of the City's land and general public health,
safety and welfare.
The Middletown zoning ordinance in effect in 1994 which
the Middletown Planning Board was empowered to administer
and implement stated that one of its primary purposes was to
promote orderly development ... to protect the
character and maintain the stability of residential,
business and manufacturing areas within the city,
and to promote the orderly and_ beneficial
development of such areas.
MIDDLETOWN, N.Y., ZONING ORDINANCE, ch. 123-1(a), art. I.
In this case, the Planning Board was presented with two
separate applications for Special Use Permits to establish
residential uses in a specialized area of Middletown which was
zoned for industrial use and where land use decisions were
informed by the presence of the last rail line in the city. The
denial of one of those two applications brought on this lawsuit.
The municipal land use decision at issue in this case is being
attacked not on principles by which zoning disputes are
ordinarily resolved in this Court, but through statutes whichdo
not relate directly to land use or zoning, that is the FHA, the
ADA and the Rehabilitation Act.
The FHA makes it unlawful to "make unavailable or deny,
a dwelling to any buyer or renter because of a handicap." See 42
U.S.C. §3604(f)(1). The ADA proscribes discrimination against
persons with disabilities by public entities. See 42 U.S.C..
§12132. The Rehabilitation Act prohibits recipients of federal
funding from discriminating against persons with disabilities.
12a
See U.S.C. §794(a). In challenging a zoning or land use decision
such as the Planning Board's decision here, a Plaintiff may
prevail under these statutes by establishing (1) intentional
discrimination, (2) a disparate impact of a neutral law, or (3) a
failure to make a reasonable accommodation. See, ¢.g.,
Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926,
933 (2d Cir.), aff'd, 488 U.S. 15 (1988) (intentional discrimination
and disparate impact under FHA); Doe v. Pfrommer, 148 F.3d 73,
82 (2d Cir. 1998) (intentional discrimination and disparate
impact under ADA); Sunrise Development, Inc. v. Town of
Huntington, 62 F.Supp.2d 762, 773-76 (E.D.N.Y. 1999). Plaintiffs’
submissions do not bring their case within the foregoing bases
for relief."
Intentional Discrimination
Plaintiffs’ claim that intentional discrimination was
involved in the Planning Board's decision must be analyzed
under a burden shifting analysis. See Cabrera v. Jakabovitz, 24
F.3d 372, 380-83 (2d Cir. 1994), cert. denied, 513 U.S. 876 (1994)
(citing McDonnell v. Douglas, 411 U.S. 792 (1973)). Plaintiffs
must establish a prima facie case that the challenged municipal
zoning decision was discriminatory, at which point defendants
may produce evidence of non-discriminatory, legitimate
'’ The Court assumes for purposes of this motion that the prospective
residents are "disabled" under the relevant statutes. See Altman v. New York
City Health & Hosps. Corp., 100 F.3d 1054, 1059 (2d Cir. 1996). Defendants
argue that this determination constitutes a violation of the Establishment
Clause of the United States Constitution because RECAP will be implement-
ing an Alcoholics Anonymous ("AA") program at its residence, which
invokes a Higher Being. See Warner v. Orange County Dept. of Probation, 173
F.3d 120 (2d Cir. 1999). The Court rejects this argument for such a determina-
tion does not require "judicial assessment of religious dogma" and therefore
does not violate the Establishment Clause's prohibition against excessive
governmental entanglement with religion. See Gargano v. Diocese of Rockville
Centre, 80 F.3d 87, 89-90 (2d Cir. 1996).
13a
reasons for the decision. See id. Once defendants have offered
a legitimate basis for the decision, Plaintiffs must prove that the
proffered reasons are pretextual in order to succeed. See id.
In order to establish a prima facie case of intentional
discrimination under the FHA and the ADA, Plaintiffs need to
allege that the disabled status of the population of the
proposed residence was one significant motivating factor in
Defendants’ decision. See Innovative Health Systems, Inc. v. City
of White Plains, 931 F.Supp. 222, 241 (S.D.N.Y. 1996), aff'd, 117
F.3d 37 (2d Cir. 1997); see also Robinson v. 12 Lofts Realty, Inc, 610
F.2d 1032, 1042-43 (2d Cir. 1979). In order to establish a claim
under the Rehabilitation Act, however, Plaintiffs must show
that the action was taken solely because of the disability. See
Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995). In order to
establish a prima facie claim under the Rehabilitation Act,
Plaintiffs must show (1) they are "handicapped persons" under
the Act; (2) they are “otherwise qualified" for the benefit that
has been denied; (3) they are being denied benefits solely by
reason of their disabilities; and (4) the entity denying plaintiff's
benefits receives federal financial assistance. Id. at 63.
Plaintiffs rest their contention that a jury could find that the
Planning Board’s decision was based upon the prospective
residents’ alcoholism on public statements made by Mayor
DeStefano and other officials during the Planning Board’s
hearings. During the course of the hearings, Mayor DeStefano
argued, from the audience, against Plaintiff's proposal by
discussing various matters related strictly to land use concerns,
and also expressed concern regarding the total number of social
service programs in the city. August TR. at 163-66; Sept. Trans.
at 87-88. Other officials also commented on land use concerns,
as well as about the concentration of social service facilities in
Middletown. Sept. Trans. At 201-02, 205-06. The Court assumes
for purposes of this motion that Plaintiffs have thereby
established a prima facie case of intentional discrimination
14a
under the FHA and ADA. As Plaintiffs cannot show that the
decision was made solely for reasons of the proposed residents’
disability, however, Plaintiffs have failed to establish a prima
facie claim under the Rehabilitation Act. See Flight, 68 F.3d at 64.
Defendants have articulated legitimate, non-discriminatory
reasons for their action. See Soules v. United States Dep't of Hous.
& Urban Dev., 967 F.2d 817, 822 (2d Cir. 1992). Defendants have
provided evidence that good faith concerns about land use,
including a need to preserve the industrial corridor of
Middletown, as well as concerns about placing a residential
facility along a rail line were the actual motivations for the
Planning Board’s decision. These reasons are legitimate and
nondiscriminatory and are in furtherance of Middletown’s
valid zoning regulations. See Forest City Daly Housing v. North
Hempstead, 175 F.3d 144, 152 (2d Cir. 1999). Defendants are not
required to make special exception for disabled individuals if
Defendants would deny the same permit for traditional
residences. The Planning Board acted reasonably and within
the scope of its authority to administer and enforce
Middletown’s zoning restrictions in the interest of the health,
safety and welfare of the general public of their city.
Because Defendants have satisfied their burden, in order to
succeed Plaintiffs must establish that the justifications asserted
by Defendants are pretextual in order to succeed. See Soules, 967
F.2d at 822. Plaintiffs have failed to produce evidence that
Defendants’ justifications are pretextual. The fact that
Defendants approved the Special Use Permit for the proposed
use of the Rowley Property by RECAP is not inconsistent with
their legitimate justifications for denying the Special Use
Permit for the Formisano Property. The Head Start program to
be conducted on the Rowley Property involves a non-
residential facility operating only in daylight hours, which
would provide support services that would facilitate desired
industrial development. Turner Rept., Ex. R to Smith Aff. The
15a
Head Start program could provide day care for the children of
industrial workers, and its convenient availability near the
places of employment of the parents is an amenity which could
promote industrial growth by improving working conditions.
Plaintiffs also have failed to produce evidence that
Defendants’ desire to protect the prospective residents from the
danger and nuisance of the rail line is pretextual. While the
Head Start permit was approved despite a nuisance concern,
the Head Start program is non-residential. The children
participating in the Head Start program are not at the facility
at night, so the noise and fumes of an active freight line would
not disturb their sleep. Further, the head Start building would
be further away from the tracks that the proposed residential
buildings, witha storage warehouse existing between the head
Start facility and the tracks. The children attending the Head
Start program are not similarly situated to the proposed
residents.
As Plaintiffs cannot show that Defendants’ proffered
reasons were pretextual, Plaintiffs cannot succeed on their
intentional discrimination claims.
The Planning Board Approvals and Rezoning with respect
to other parcels cited by Plaintiff do not establish that
Defendants’ rationale regarding the preservation of the
industrial corridor is pretexual. In the 1980s and 90s, the
Planning Board approved only one residential development in
an industrial zone along the O&W corridor. All other
residential developments in the vicinity of the corridor,
including a senior citizen complex, the five unit dwellings and
the condo complexes have been in residential districts. Further,
the rezoning approvals cited by Plaintiffs occurred outside the
O&W corridor, and are not relevant to the present action.
Plaintiffs’ contention that pretext is shown because the
preservation of the industrial corridor was not raised until the
16a
third meeting about the Formisano Property, are not borne out
by the record. The preservation issue was, in actuality, raised
by the first official to speak at the first meeting regarding the
properties in August of 1994, during the portion of the
discussion relating to the Rowley Property. Aug. Tr. at 145-6.
Disparate Impact
"A disparate impact analysis examines a facially neutral
policy or practice, such as a hiring test or zoning law, for its
differential impact or effect on a particular group." Huntington
Branch, NAACP v. Town of Huntington, 844 F.2d 926, 933 (2d Cir.
1988). In order to establish a prima facie case of disparate
impact, Plaintiffs must show that the Planning Board’s
practices "actually or predictably result in [] discrimination; in
other words that it has a discriminatory effect." Huntington, 844
F.2d at 934. Once a prima facie case of disparate impact is
established, Defendants must prove that their practice
furthered a legitimate governmental interest and that there
were no alternatives with less discriminatory effect. Id. at 933.
The Court assumes for the argument that Plaintiffs have
established a prima facie case of disparate impact. Thus, the
Court must determine "whether the proffered justification is of
substantial concern such that it would justify a reasonable
official in making this determination." See Huntington, 844 F.2d
at 939. Here, the proffered justification of preserving the
industrial corridor and maintaining orderly and productive
land use were of substantial concern to Middletown and
justified the Planning Board’s decision.
Plaintiff's proposed alternatives for promoting industrial
development do not address Defendants’ preservation
justification. Further, in terms of non-discriminatory
alternatives, twenty-five to thirty-five percent of the City of
Middletown is zoned appropriately for Plaintiff's use. A
OE HOR vite it ei
17a
reasonable alternative would be to have used any parcel within
this portion of the City instead of the proposed property. Fusco
Aff. See Suffolk Interreligious Coalition on Housing, Inc. v. Town of
Brookhaven, 575 N.Y.S.2d 548, 550 (2d Dept. 1991) (denial had
no discriminatory effect when available vacant land zoned for
multi-family used existed). The Planning Board decided that
Plaintiff's residences would be placed inappropriately in an
area zoned for industrial use. Defendants did not preclude
Plaintiff in any way from attempting to secure parcels of land
in an area of Middletown appropriately zoned for its proposed
use. In fact, it was Plaintiff who rejected the Planning Board’s
offer to reconvene to discuss alternative locations. The
members of the Planning Board who voted against the project
stated affirmatively and publicly that they would have voted
in favor of the project if it had been in another location in
Middletown and no reason is shown to doubt their sincerity.
Arluck Aff., Swierksi Aff., Moson Aff. and Miner Aff.
Reasonable Accommodation
Defendants are required to give disabled individuals
"reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to
afford such person equal opportunity to use and enjoy a
dwelling." 42 U.S.C. §3604(f)(3)(B). To determine if a requested
accommodation is required the Court must determine that the
“permits would be granted for comparable “traditional”
residences - that is, residences in which persons without
disabilities can live...." Forest City Daly Housing v. North
Hempstead, 175 F.3d 144, 146 (2d Cir. 1999). Reasonable
accommodations are those which do not cause undue hardship
or fiscal or administrative burdens on the municipality and do
not undermine the basic purpose which the zoning ordinance
at issue seeks to achieve.
18a
Defendants offered to reconvene the Planning Board to find
reasonable alternatives, but Plaintiff declined, ostensibly
because of a temporary lack of funding at the time the offer
was made. As no other Special Use Permits for residential use
in the industrial district were issued by the Planning Board in
the 1990s, Plaintiffs cannot establish a claim of failure to
provide a reasonable accommodation.
The Claims Against Mayor DeStefano
As noted earlier, the United States has not intervened with
respect to this aspect of the litigation. In all events, Mayor
DeStefano individually is entitled to summary judgment in his
favor because he was not a decision maker in the process
through which Plaintiff's application was denied. See X-Men
Security Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999) (Congressmen
and NY State Assemblyman sued for advocating non-renewal
of public contract because of plaintiff's affiliation with Nation
of Islam). Plaintiff attempts to distinguish X-Men by showing
that Mr. DeStefano had a political and social relationship with
Planning Board members, certainly not an unusual situation for
an elected official in a small community.” Plaintiff asserts that
DeStefano opposed other social services programs by litigation
and otherwise and that DeStefano's personal attorney was also
the lawyer for the Planning Board. The Mayor had no voting
power on the Planning Board and had no power to review the
Board's decision. The facts alleged by Plaintiffs do not
transform him into a Planning Board decision maker. The only
formal relationship between the Planning Board and the Mayor
is that the Mayor appoints Planning Board members who
receive no salary. Their terms of office are seven years, thereby
assuring their independence.
'’ The population of the City of Middletown is approximately 25,000.
Fusco Aff.
z
=
&
y
:
¥
ie.
3
FoR Gat TREATING A YOLEN oO ee Ae ae oA a i Na ST Sl at
19a
As emphasized also by our Court of Appeals in X-Men,
Mayor DeStefano's speech as a member of the audience at a
public hearing of the Planning Board is protected by the First
Amendment for, "although a state agency that was a decision
maker would be exposed to liability if it made its decision
based on unlawful considerations that were argued to it, see,
e.g., United States v. Yonkers Board of Education, 837 F.2d 1181,
1223-26 (2d Cir. 1987), cert denied, 486 U.S. 1055 (1988), speech
by persons who are not decision makers and who merely
engage in advocacy without threats, intimidation, or coercion
is protected by the First Amendment." X-Men, 196 F.3d at 70.
There is no evidence of any communications or actions by
Mayor DeStefano beyond the statements he made at the public
hearings. His statements were political speech in an open
political forum, and are protected by the First Amendment. For
the foregoing reasons, the Court dismisses Plaintiff's FHA,
ADA and Rehabilitation Act claims as against Mayor
DeStefano.
Retaliation
To establish a prima facie case of retaliation, Plaintiff must
establish (1) participation in a protected activity known to the
defendant, (2) subsequent adverse action, and (3) evidence of
a causal connection between the protected activity and the
subsequent adverse action. Richardson v. New York State
Department of Correctional Services, 180 F.3d 426, 443 (2d Cir.
1999). The burden then shifts to defendants to provide a non-
discriminatory reason for its actions. See id. Once Defendants
have done so, Plaintiff must prove that the proffered reason is
pretextual. See id. Plaintiff has alleged sufficiently that RECAP
was engaged in protected activity, specifically filing a
complaint with HUD concerning the Planning Board decision,
and the Court assumes for purposes of the motion that it
20a
suffered an adverse action, specifically, the withdrawal of the
“committed” funds."®
Plaintiff has alleged a causal connection between RECAP’s
protected activities and the withdrawal of the funding
“commitment,” if such it was, simply by showing that the
protected activity was followed closely in time by the adverse
action. The Office denied Plaintiff the funding while Plaintiff's
HUD complaint was still being investigated. Plaintiff has
alleged sufficiently a prima facie case of retaliation. See DeCintio
v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.),
cert. denied, 484 U.S. 965 (1987); Colon v. Coughlin, 58 F.3d 865,
872 (2d Cir. 1995).
Defendants, however, have provided nondiscriminatory
justifications for their action. Defendants state that the
Community Development Office declined to provide funding
to Plaintiff because Plaintiff used a disapproved contractor,
was not paying prevailing wage rates and because its available
funds had been spent on other projects. This decision was
made by Mr. Neil Novesky, the Director of the Community
"© In its opposition papers, Plaintiff also claims that it was engaged in
protected activity with relation to an unrelated litigation involving PACER,
a subsidiary of RECAP, against Middletown and in sending a letter to the
City from RECAP's attorneys threatening legal action concerning the
Formisano Property. Neither of these are appropriate bases for a retaliation
claim. PACER, and not RECAP was a Plaintiff in PACER v. Planning Board of
the City of Middletown, 217 A.D.2d 47 (3d Dept. 1995), which involved the
denial of tax exemptions. The December 5, 1994, letter in which RECAP’s
attorney's threatened legal action in relation to the Formisano property was
not authorized by RECAP’s Board of Directors. See Ex. 2 to Figueroa Aff.; Ex.
V toSmith Aff. Darden Dep. 484-92. Plaintiff told Defendants to disregard the
letter, effectively making it a nullity. Roberts Aff. This withdrawn letter is not
sufficient support for a claim of retaliation, as both Defendants and Plaintiffs
were aware that it was not authorized.
ONL NE AAPG PO pM OE Fs
PNET LALOR GLA GLO POLE AI AANIR IRE Dh) EROS SOL LOLOL ERR 9 36 on
CO RL LI DOO LLLLDIDV ESPN IRN Ge RB vate
.
*
.
3
¥.
z
b ad
é
$
=
w
2la
Development Office.” RECAP presents no evidence that the
expressed concerns of Mr. Novesky were pretextual. The
disputed issues in the case as to whether the funds were a
preliminary loan commitment ora firm grant commitment and
whether or not the commitment, if such it was, had an
expiration date, do not address the issue of whether
Defendants stated justifications for the denial of the funding
were pretextual. Plaintiff has failed to show pretext.
CONCLUSION
For the foregoing reasons, Defendants’ motion for
summary judgment is granted. The Clerk shall file a final
judgment.
SO ORDERED.
Dated: White Plains, New York
September 25, 2000
s/CHARLES L. BRIEANT
Charles L. Brieant, U.S.DJ.
" It was Mayor DeStefano who notified RECAP of the denial of the funds.
As noted earlier, the Mayor found no financial irregularities on the part of
RECAP.
22a
Appendix B—Final Opinion of Hon. Robert Sack, USCJ,
entered February 19, 2002
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2000
(Argued: June 7, 2001 Decided: February 5, 2002)
Docket Nos. 00-6318, 00-6354
REGIONAL ECONOMIC COMMUNITY ACTION PROGRAM, INC.,
Plaintiff-Appellant,
-and-
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-Appellant,
-U.-
CITY OF MIDDLETOWN, CITY OF MIDDLETOWN PLANNING
BOARD, and JOSEPH DESTEFANO,
Defendants-Appellees.
Before:
KEARSE, STRAUB, and SACK,
Circuit Judges.
Appeal from an order of the United States District Court for
the Southern District of New York (Charles L. Brieant, Judge)
oer SDAA NEM ACARI Lee IE EEN INAS RAF pt oras+4
I RA om Ga Det Sn
23a
granting summary judgment in favor of the defendants City of
Middletown, City of Middletown Planning Board, and Joseph
DeStefano on the 5th plaintiffs’ claims of discrimination and
retaliation in violation of the Fair Housing Act, 42 U.S.C. § 3601
et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq.,and the Rehabilitation Act, 29 U.S.C. § 701 et seq. The plain-
tiff Regional Economic Community Action Program, Inc., and
intervenor-plaintiff the United States assert, inter alia, that the
defendants unlawfully discriminated by denying Regional
Economic Community Action Program a special-use permit
authorizing it to establish two halfway houses for recovering
alcoholics in Middletown. We hold that the district court erred
by granting summary judgment to the defendants on the plain-
tiffs' claims of disparate treatment and retaliation. We affirm,
however, the district court's grant of summary judgmenton the
plaintiffs' disparate impact and failure to make reasonable
accommodation claims.
Affirmed in part; vacated in part; and remanded.
LESLIE A. LUPERT, Orans, Elsen & Lupert, LLP (Simeon
Goldman, Disability Advocates, Inc., of counsel),
New York, NY, for Plaintiff-Appellant.
JEFFREY OESTERICHER, Assistant United States Attorney
for the Southern District of New York, (Mary Jo
White, United States Attorney, and Neil M.
Corwin and Sara L. Shudofsky, Assistant United
States Attorneys, of counsel), for Intervenor-
Plaintiff-Appellant.
ALEX SMITH (Robert N. Isseks, of counsel), Middletown,
NY, for Defendants-Appellees.
SACK, Circuit Judge:
The plaintiff, Regional Economic Community Action
Program, Inc. ("RECAP"), and the intervenor-plaintiff, the
United States of America, brought this action under the Fair
Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"), the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the
Rehabilitation Act, 29 U.S.C. § 701 et seq. They alleged that the
defendants--the City of Middletown ("Middletown" or "the
City"), located in Orange County, New York, the City of
Middletown Planning Board ("Planning Board"), and Joseph
DeStefano, the mayor of Middletown--discriminated against
RECAP on the basis of its clients’ disabilities by refusing to
grant RECAP a special-use permit authorizing it to establish
two halfway houses for recovering alcoholics. The United
States District Court for the Southern District of New York
(Charles L. Brieant, Judge ) granted summary judgment to the
defendants on all of the plaintiffs' claims. Because we find
sufficient evidence from which a reasonable juror could infer
disparate treatment by the City and the Planning Board and
retaliation by the City and DeStefano, we vacate the district
court's grant of summary judgment as to those claims. But we
affirm the court's grant of summary judgment on the disparate
impact claim against all three defendants and_ the
discrimination claims against DeStefano.
BACKGROUND
I. The RECAP Project
Because the plaintiffs appeal from the grant of a summary
judgment against them, we recite the relevant facts in the light
most favorable to them. See Holtz v. Rockefelier & Co., 258 F.3d
62, 69 (2d Cir. 2001).
ot
E
=
%
?
¥
te
ey
if
a
£4]
Ss
EASES EE ALI I
RECAP, a not-for-profit corporation founded in 1965,
provides education, housing, social services, and other forms
of assistance to low income individuals in Orange County,
New York. In 1994, RECAP sought to create a "family support
community" in the City by consolidating the operation of
several proposed and existing assistance programs on two
parcels of land near its existing outpatient clinic for recovering
alcoholics. RECAP's plan involved three properties: (1) its
existing facility located at 40 Smith Street; (2) a parcel of land
directly across the street owned by Gary Formisano (the
"Formisano property"); and (3) the lot adjacent and to the north
of the Formisano property, owned by Richard Rowley (the
"Rowley property”).
A railroad track once owned by the Ontario & Western
Railroad ("O & W") runs along the eastern borders of both the
Rowley and Formisano properties. A rail spur on the Rowley
property connects it to the O & W track. RECAP intended to
use the Rowley property for "Head Start" classes, daycare for
infants, and pediatric medical and dental services. It planned
to convert an existing building on the Formisano property :nto
a halfway house for twenty-four men recovering from
alcoholism. Finally, RECAP's plan contemplated the
construction of a new building located partly on the Rowley
property and partly on the Formisano property to house
twenty recovering alcoholic mothers and their children.
Full-time staff would supervise both halfway houses
twenty-four hours a day.
In 1994, Middletown's zoning ordinances applicable to
these properties authorized "cumulative zoning,” whichallows
both residential and commercial uses in an industrial zone. The
Rowley property was zoned "I-2," or heavy industrial; the
Formisano property was zoned "I-1," or light industrial. Both
the childcare facility proposed for the Rowley property and the
halfway houses proposed for the Formisano and Rowley
26a
properties were permitted uses under these zoning ordinances,
but each required a special-use permit from the Planning
Board. All zones, both residential and industrial, require
special-use permits for the construction of multi-family
housing units. The purpose of a special-use permit is to allow
the Planning Board to determine whether a proposed project
will have an unduly adverse effect on the neighborhood. See
Pacer, Inc. v. Planning Bd., 217 A.D.2d 47, 50-51, 635 N.Y.S.2d
704, 705-06 (3d Dep't 1995).
Although both properties were part of a single project,
RECAP had to apply to the Planning Board separately for a
special-use permit for each property. The Planning Board
considered RECAP's application regarding the Rowley
property, where RECAP planned to establish the childcare
center, during two hearings held in August and September
1994. It unanimously approved the special-use permit for that
property at the September hearing, subject to negotiation of a
specific agreement for the payment of taxes and confirmation
that the project would not adversely affect the environment.
The Planning Board first considered RECAP's application
for a special-use permit for the Formisano property--the parcel
where RECAP intended to establish one halfway house for
recovering alcoholics, and part of the home for recovering
alcoholic mothers and their children--at the August 1994
hearing. This and subsequent hearings about the Formisano
property became, unlike the discussions about the Rowley
property, contentious. The Planning Board debated RECAP's
application at four hearings held between August 1994 and
December 1994. At the final meeting in December, the members
of the Planning Board denied RECAP’s application by a vote of
four to two.
Shortly thereafter, RECAP requested that the Planning
Board reconvene to consider providing a reasonable
:
ee
SSN ELE ERIS EI IOP KREIS IE I ALEPY
27a
accommodation for RECAP's clients’ disabilities and to
reconsider its decision to deny RECAP a special-use permit for
the halfway houses that it proposed to establish on the
Formisano property. The City did not respond to that request
until June 1995. By then, RECAP, having lost a prospective
grant, could no longer finance the project. Further details with
respect to the Planning Board's deliberations on whether to
issue the special-use permit for the Formisano property are set
forth below in the "Discussion" section of this opinion.
II. Events Leading to RECAP's Retaliation Claim
In the early 1990s, RECAP acquired a building at 208 North
Street, also in Middletown, where it planned to create a facility
for the homeless. By letter dated June 23, 1993, the City's Office
of Community and Economic Development informed RECAP
that it would be "pleased to provide [a] commitment of $53,139
for the purchase of furnishings for the [North Street] project...."
Antonio Figueroa, now RECAP's Director of Special Projects/
Facilities, subsequently spoke several times with Neil Novesky,
Director of the Office of Economic and Community Develop-
ment, updating him on the progress of the project. Novesky
told Figueroa that once RECAP notified him that the
construction was complete, RECAP could draw down the
committed funds.
On December 5, 1994, four days after the Planning Board
denied RECAP the Formisano permit, counsel for RECAP
wrote to defendant DeStefano alleging that the permit denial
violated the FHA and the ADA. He threatened legal action
unless the Board rescinded its decision. Three days later, on
December 8, RECAP completed construction of the North
Street project and requested release of the promised funds. The
City responded in a letter the same day by requesting that
RECAP submit certain forms required for withdrawal of the
funds, and telling RECAP that it would forward these forms.
28a
RECAP never received them. Instead, Figueroa called the
assistant as recommended in the letter. She referred him back
to Novesky, who in turn told Figueroa that he would have to
speak to Alex Smith, assistant corporation counsel to the City.
Smith then informed Figueroa that the funds the City had
promised to RECAP would be in the form of a loan rather than
a grant.
On December 20, 1994, Smith telephoned Figueroa to tell
him that Mayor DeStefano was worried about RECAP's ability
to secure this loan. Smith said, according to Figueroa’s
affidavit, that "if RECAP had not pursued legal action against
the Mayor, he would be much more cooperative" and that
"RECAP has to learn not to bite the hand that feeds it." On
December 31, RECAP filed a complaint regarding the denial of
the Formisano permit with United States Department of
Housing and Urban Development ("HUD"). In April 1995,
RECAP received a letter from DeStefano raising financial and
labor concerns about the North Street project. RECAP
responded on April 13 witha letter seeking to allay DeStefano's
concerns, but received no reply. RECAP heard nothing further
until early 1996, when DeStefano informed RECAP that the
City had withdrawn its funding commitment.
III. Proceedings in the District Court
In November 1997, RECAP brought this action alleging that
the defendants unlawfully denied RECAP a special-use permit
for the Formisano property. RECAP alleged that the defendants
acted with a "discriminatory motive to prevent persons with
disabilities from obtaining suitable housing in Middletown,”
Compl. 7 68, and intentionally failed "to make reasonable
accommodations in Middletown's and the Planning Board's
rules, policies, practices and services when such accommoda-
tions are necessary to afford people with disabilities equal
opportunity to use and enjoy dwellings," Compl. { 72, in
PRR: ARLES RMON ot ahr HRS HOR Na
*
3
&
4
¢
e
2
NG RI ET RIOR ei rat. RN
5B NCPR RET MR RARE LH afte Nein aude name saN OS
29a
violation of the FHA, the ADA, and the Rehabilitation Act.
RECAP further argued that because Middletown's zoning
ordinances had a disparate and adverse impact on disabled
individuals, they violate the FHA. Finally, RECAP asserted a
separate retaliation claim against DeStefano and the City based
on their alleged refusal to honor funding commitments to
RECAP with respect to the North Street project.
In June 1998, the district court permitted the United States
to intervene in these proceedings. The United States named the
City as the sole defendant and alleged that it had discriminated
against RECAP in violation of the FHA, the ADA, and the
Rehabilitation Act when the Planning Board denied RECAP a
special-use permit for the Formisano property.
In February 2000, the defendants moved for summary
judgment on all claims. First, they argued that the recovering
alcoholics whom RECAP intended to shelter in the halfway
houses were not disabled within the meaning of the FHA, the
ADA, or the Rehabilitation Act. Second, they contended that,
in any event, their decision to deny RECAP the special-use
permit was based on legitimate, non-discriminatory reasons.
Finally, they argued that summary judgment should be granted
on the plaintiffs’ disparate impact and _ reasonable
accommodation theories of liability and on RECAP’s retaliation
claim.
On September 25, 2000, the district court granted the
defendants' motien for summary judgment on all of the
plaintiffs’ claims. The district court concluded, inter alia, that
with regard to the plaintiffs’ disparate treatment claim, the
defendants had articulated legitimate, non-discriminatory
reasons for their action, and the plaintiffs had failed to show
that those reasons were a pretext for unlawful discrimination.
The district court also granted summary judgment on RECAP's
30a
disparate impact, reasonable accommodation, and retaliation
claims. This appeal followed.’
DISCUSSION
I. Standard of Review
We review the district court's grant of summary judgment
de novo, construing the evidence in the light most favorable to
the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581,
593 (2d Cir.1999), cert. denied, 529 U.S. 1098 (2000). Summary
judgment is required where "there is no genuine issue as to any
material fact and ... the moving party is entitled to a judgment
as a matter of law," Fed.R.Civ.P. 56(c), i.e., "[w]here the record
taken as a whole could not lead a rational trier of fact to find
for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). A fact is "material" for
these purposes if it "might affect the outcome of the suit under
the governing law." Anderson v. Liberty Lobby, Inc .,477 U.S. 242,
248 (1986). An issue of fact is "genuine" if "the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Id.
' The district court granted DeStefano summary judgment on the
discrimination claims on the independent ground that he was not a decision
maker in the process through which the Planning Board denied RECAP the
special-use permit and therefore could not be held personally liable. The
plaintiffs do not dispute the merits of this decision on appeal and thus waive
any appeal of that decision. See Fed. R.App. P. 28(a)(5); LoSacco v. City of
Middletown, 71 F.3d 88, 92-93 (2d Cir.1995). For this reason, we do not address
the grant of summary judgment to DeStefano on the plaintiff's discrimination
claims. The district court's judgment in that regard remains undisturbed. The
court's dismissal of the discrimination claims against DeStefano, however,
does not require dismissal of the retaliation claim. Cf. McMenemy v. City of
Rochester, 241 F.3d 279, 283 (2d Cir.2001) (noting that Title VII prohibits
retaliation against an employee who opposes “any practice made an unlawful
employment practice,” not just those of the defendant) (quoting 42 U.S.C. §
2000e- 3(a) (emphasis added)).
3la
II. The Statutory Framework
The plaintiffs assert claims under three federal statutes: the
FHA, the ADA, and the Rehabilitation Act. The FHA makes it
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). It defines
discrimination 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." Id. § 3604(f)(3)(B). The ADA and the Rehabilitation
Act also prohibit all discrimination based on disability by
public entities. Each statute requires that covered entities make
reasonable accommodations in order to provide qualified
individuals with an equal opportunity to receive benefits from
or to participate in programs run by such entities. Specifically,
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; and the
Rehabilitation Act states that "[n]o otherwise qualified
individual with a disability ... shall, solely by reason of her or
his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance..." 29
U.S.C. § 794(a). "All three statutes apply to municipal zoning
decisions." Forest City Daly Hous., Inc. v. Town of North
Hempstead, 175 F.3d 144, 151 (2d Cir.1999); see also Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d
Cir.1997) (ADA and the Rehabilitation Act apply to zoning
decisions), overruled on other grounds by Zervos v. Verizon New
York, 252 F.3d 163, 171 n. 7 (2d Cir.2001).
32a
III. Whether RECAP's Clients are Disabled Within the
Meaning of the ADA, the FHA, and the Rehabilitation
Act
The defendants first argue that RECAP’s clients are not
"disabled" within the meaning of the FHA, the ADA, and the
Rehabilitation Act.? Notwithstanding this contention, the
district court assumed that the prospective residents of the
halfway houses meet the statutory definition of "individual
with a disability." We agree that they do.
To demonstrate a disability under each of these statutes, a
plaintiff must show: (1) a physical or mental impairment which
subsiantially 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 impairment. See 42 U.S.C.
§ 3602(h); 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20). RECAP's
clients fall into the first two categories.
In the first category, an individual is considered disabled
if he or she: (1) suffers from a physical or mental impairment,
that (2) affects a major life activity, and (3) the effect is
“substantial.” See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
> The defendants do not challenge RECAP's standing to bring suit.
Mindful of the necessity of standing to our jurisdiction, see Leibovitz v. N.Y.
City Transit Auth., 252 F.3d 179, 184 (2d Cir.2001), however, we observe that
RECAP has standing both as an individual plaintiff and under organizational
standing theory. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d
Cir.1998). RECAP suffered an injury through the denial of its special-use
permit application; it therefore has individual standing. See Havens Realty
Corp. v. Coleman, 455 U.S. 363, 379 (1982); Ragin v. Harry Macklowe Real Estate
Co., 6 F.3d 898, 905 (2d Cir .1993). Second, RECAP serves a class of individu-
als with discrimination claims; the interests at issue are germane to RECAP's
purpose; and no individual participation is required under these circum-
stances. It therefore also meets the organizational standing requirements of
Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977).
33a
RECAP's clients suffer from alcoholism. Alcoholism, like
drug addiction, is an “impairment' under the definitions of a
disability set forth in the FHA, the ADA, and the Rehabilitation
Act. See Buckley v. Consol. Edison Co., 155 F.3d 150, 154 (2d
Cir.1998) (in banc) (recovering drug addict may be considered
to have a "disability" under the ADA); Teahan v. Metro-North
Commuter R.R. Co., 951 F.2d 511%, 518 (2d Cir.1991)
(discrimination against substance abusers illegal under the
Rehabilitation Act); Rodgers v. Lehman, 869 F.2d 253, 258 (4th
Cir.1989) (holding that "[a]lcoholism is a handicapping
condition within the meaning of the [Rehabilitation] Act");
Sullivan v. City of Pittsburgh, 811 F.2d 171, 182 (3d Cir.1987)
("Case law establishes that alcoholics are handicapped within
the meaning of [the Rehabilitation Act]."). Legislative history
also supports this conclusion. See H.R.Rep. No. 101-485(ID, at
51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333 (noting that
“physical or mental impairment" includes "drug addiction and
alcoholism") (internal punctuation omitted). RECAP's clients
therefore meet the first part of the definition of a disability.
But mere status as an alcoholic or substance abuser does
not necessarily imply a "limitation" under the second part of
that definition. See Burch v. Coca- Cola Co., 119 F.3d 305, 316-17
(5th Cir.1997) (holding that alcoholism is not a per se disability
under the ADA and evidence that alcoholics, in general, are
impaired is inadequate to show the substantial limitation of
one or more major life activities), cert. denied, 522 U.S. 1084
(1998). To prevail, a recovering drug addict or alcoholic "must
demonstrate [not only] that he [or she] was actually addicted
to drugs or alcohol in the past, [but also] that this addiction
substantially limit[s] one or more of his [or her] major life
activities." Id. at 274.
As the Supreme Court recently observed, "[T]o be
substantially limited . . . , an individual must have an
impairment that prevents or severely restricts the individual
34a
from doing activities that are of central importance to most
people's daily lives." Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184, __, 122 S.Ct. 681, 691 (2002). The impairment's impact
must also be "permanent or long-term." Id. Major life activities
include “functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 28 C.F.R. § 41.31(b)(2); 45 C.F.R. §
84.3(j)(2)(ii); 24 C.F.R. § 100.201(b). The function of "caring for
one's self," we have held, “encompasses normal activities of
daily living; including feeding oneself, driving, grooming, and
cleaning home." Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871
(2d Cir.1998) (citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723,
726 (5th Cir.1995)). Williams, confirms that such “tasks central
to most people's daily lives" constitute major life activities. 534
U.S. at __, 122 S.Ct. at 693.
RECAP’s clients qualify to live ina halfway house because
they need its supportive environment. New York State
regulations prescribe admission criteria that would have
applied to the proposed Formisano-property halfway houses.
See N.Y. Comp.Codes R. & Regs. tit. 14, § 375.8(c). Only
“persons who are unable to maintain abstinence and continued
recovery in an available independent living situation" would
have had access to the facilities. Id. § 375.1. In particular,
RECAP could only have admitted persons who, inter alia, (1)
had been "diagnosed as suffering from alcohol dependence”; (2)
had “completed a course of alcoholism treatment” in an
inpatient or outpatient setting; (3) were "determined to be
unable to abstain without continued care in a structured
supportive setting"; and (4) were “in need of alcoholism
services on an outpatient basis in addition to the supportive
counseling available in the halfway house." Id. § 375.8(c).
Residents cannot remain once they have “attained the skills and
ability necessary to maintain abstinence and continue recovery
in ... suitable independent living.” Id. § 375.1(g).
35a
We therefore conclude, as did the United States District
Court for the District of New Jersey on a similar issue, that
RECAP’S clients’ "addictions substantially limit their ability to
live independently and to live with their families"; that they are
“entitled thereby to the protections of [the FHA, ADA, and the
Rehabilitation Act]"; and that their “inability to live
independently constitutes a substantial limitation on their
ability to ‘care for themselves.’ " United States v. Borough of
Audubon, 797 F.Supp. 353, 359 (D.N.J.1991), aff'd, 968 F.2d 14
(3d Cir.1992). Because the inability to live independently
without suffering a relapse--a baseline prerequisite for
admittance to the RECAP facility--limits the major life activity
of “caring for one's self," an activity that is "necessarily [an]
important part[ ] of most people's lives,” Williams, 534 U.S. at
___, 122 S.Ct. at 693, the residents of the proposed haifway
houses would have met the second part of the statutory
definition of a disability. All of the halfway house's residents
must be substantially impaired in a major life activity to
continue residing there.”
Finally, to qualify as disabled, the limitation of RECAP's
clients must have been "substantial." A limitation is substantial
if it "[s]ignificantly restrict [s] . . . the condition, manner or
duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity." 29 C.F.R.
§ 1630.2(j)(1). Individuals must show only "substantial
limitations," not “utter inabilities," to qualify for statutory
protection. Bragdon, 524 U.S. at 641. Here, the plaintiffs’ clients
would have been deemed substantially limited because they
> While the determination of substantial impairment is admittedly made
“in .-. a case-by-case manner,” the existence of statutorily defined levels of
impairment obviates the concern expressed in Williams about varying
intensities of symptoms. Id. 534 U.S. at ___, 122 S.Ct. at 692.
36a
are unable to abstain from alcohol abuse without continued
care; absent assistance, they cannot adequately care for
themselves. See Borough of Audubon, 797 F.Supp. at 359 (finding
a substantial limitation under analogous circumstances). Their
impairment is also long-term. See Williams, 534 U.S. at __, 122
S.Ct. at691. Under New York law, a halfway house admits only
those to be discharged "between three and nine months after
admission." N.Y. Comp.Codes R. & Regs. tit. 14, § 375.8(g); see
also id. § 375.8(f)(3) (providing for monthly assessments).
In any event, even if RECAP's clients did not meet the first
definition of a disability, they would qualify under the second
because they have a record of having an impairment. See 42
U.S.C. § 12102(2)(B).
IV. Analysis of the Plaintiffs' Claims
Plaintiffs who allege violations under the ADA, the FHA,
and the Rehabilitation Act may proceed under any or all of
three theories: disparate treatment, disparate impact, and
failure to make reasonable accommodation. See Doe v.
Pfrommer, 148 F.3d 73, 82 (2d Cir.1998) (noting the possible
application of these three theories under the ADA and the
Rehabilitation Act); see also Forest City Daly Hous., Inc., 175 F.3d
at 150-51 (all three statutes permit reasonable accommodation
claims); Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781,
790 (6th Cir.1996) (FHA permits all three theories). The
plaintiffs in this case make claims under each.
A. Disparate Treatment Theory
The plaintiffs allege that the Planning Board denied
RECAP's application for a special use permit for the Formisano
property because of the identity of the residents of the
proposed halfway houses--recovering alcoholics. The district
court concluded, however, that the plaintiffs had failed to raise
37a
a triable issue of fact as to whether the Planning Board's stated
reason for the denial was a pretext for discrimination. We
disagree.
We analyze claims of intentional discrimination under the
FHA, the ADA, and the Rehabilitation Act under the familiar
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
burden-shifting analysis established for employment
discrimination cases under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. See Smith & Lee Assocs., Inc., 102
F.3d at 790-91; Cabrera v. Jakabovitz, 24 F.3d 372, 380-84 (2d
Cir.1994). Under this scheme, the plaintiffs must first establish
a prima facie case of discrimination. See McDonnell Douglas, 411
USS. at 802.
To establish a prima facie case of discrimination under the
FHA and the ADA, the plaintiffs must present 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 v. Fletcher, 67 F.3d
412, 425 (2d Cir.1995) (emphasis added; citation and internal
quotation marks omitted); see also Smith & Lee Assocs., 102 F.3d
at 790 (noting that to establish a prima facie case, the plaintiff
must show "that discriminatory purpose was a motivating
factor in the City's decision to deny ... [the] petition") (citation
and internal quotation marks omitted). To establish a prima
facie case of discrimination under the Rehabilitation Act, by
contrast, the plaintiffs must show that the defendants denied
the permit "solely" because of the disability. See Flight v.
Gloeckler, 68 F.3d 61, 64 (2d Cir.1995).
_ If the plaintiffs make out a prima facie case, then the
burden of production shifts to the defendants to provide a
legitimate, nondiscriminatory reason for their decision. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
38a
(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 defendants meet that burden, "the McDonnell
Douglas framework . . . disappear[s] and the sole remaining
issue [is] discrimination vel non." Reeves, 530 U.S. at 142-43
(citations and internal quotation marks omitted). The plaintiffs
must then prove that the defendants intentionally
discriminated against them on a prohibited ground. See id. at
143. Where, however, the plaintiffs "make a substantial
showing" that the defendants’ proffered explanation was false,
"it is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer's explanation."
Id. at 146- 47 (emphasis in original).
The district court in this case concluded that the plaintiffs
had failed to demonstrate the presence of a triable issue of fact
as to whether the defendants’ "articulated, legitimate,
non-discriminatory" reasons were pretextual. Reg‘l Econ. Cmty.
Action Program, Inc. v. City of Middletown, No. 97 Civ. 8808(CLB)
(S.D.N.Y. Sept. 25, 2000), slip op. at 13. We disagree. Based on
the evidence in the record, we think that a reasonable juror
could conclude that the defendants’ proffered reason for
denying RECAP a special-use permit was a pretext for
unlawful discrimination.
“Discriminatory intent may be inferred from the tctality of
the circumstances, including . . . the historical background of
the decision . . . ; the specific sequence of events leading up to
the challenged decision... ; [and] contemporary statements by
members of the decisionmaking bcay, . . ." LeBlanc, 67 F.3d at
425 (citations and internal quotation marks omitted). The
district court correctly decided that the plaintiffs introduced
sufficient evidence from which a reasonable juror could
conclude that the plaintiffs made out a prima facie case. Their
initial bucden of production under the McDonnell Douglas
analysis is "minimal." St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
39a
502, 506 (1993); McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d
Cir. 2001). City officials and Planning Board members made
numerous statements from whicha reasonable juror could infer
that they denied RECAP's permit application because of the
identity of its clients. For example, Mayor DeStefano began the
August 1994 hearing about the Formisano permit by stating:
And what I have tried to convey to RECAP and
through different surrogate[s] is that enough is
enough. And that in order for RECAP to maintain the
level of respect in the community, to maintain the level
of cooperation from not only governmental agencies,
but this people [sic] that live in and around these areas,
that they have to recognize that Middletown is not the
hub of human services programs. ... But at some point
we have tried to say to the different not for profit
agencies that in regards to housing enough is enough.
That the city is over and above has done more than we
probably should have done [sic]. ... Do [this project] in
Goshen. Do it in Warwick. Do it in Montgomery. Find
a building there. Do it in some other community that
has not contributed to the extent, not even close to
what Middletown has contributed in regards to
participation and human service programs.
He later added that "I told [the head of RECAP] two or three
years ago that he would have trouble getting that type of
project through the City; that this City has done more than its
share."
Other City officials made similar comments. Alex Smith,
counsel to the Planning Board, asked at the September 1994
hearing: "Does it make more sense to have a facility in
Newburgh and Greenville [two other Orange County
communities], or maybe we should have two in Newburgh. I
think this Board has the right to make those kinds of value
40a
judgments." He later expressed concern that the City had no
guarantee that "these people [RECAP's clients] would or would
not have criminal histories." He also echoed Mayor DeStefano's
view that "[t]he problem is that . . . there seems to be a
tremendous over-concentration of these types of facilities [i.e.,
halfway houses] in this City as compared to the surrounding
townships." At the November hearing, the City's Director of
Economic and Community Development told the Planning
Board that "if the [Formisano] building is occupied by a certain
type of social service or support service program, perhaps
occupying the building next door will be deterred."
The evidence suggests that the Planning Board members
may have been similarly motivated. One board member said:
"The question that we're all wrestling with ... is if this is very
wide spread [sic] in our society and there's a great need for this
_everywhere, as we will all admit, why do we have to have all
the treatment facilities right here in Middletown?" At the end
of the September hearing, the chairman of the Planning Board
concluded that "[t]here's a need for this project. There's some
issues [sic] about whether it should be in Middletown, and
that's what it boils down to. . . ." Before the final vote in
December, the chairman recommended that the Planning
Board deny RECAP a special-use permit because "there's an
over-concentration of residential and social service facilities in
the City." When he cast his vote, yet another board member
remarked: "I believe that the City itself has extended itself and
embraced significant other services that have come our way,
and I have to say that for us to be the magnet for the area is not
necessarily the best industrial development of this or any other
project." This evidence more than suffices to establish the
plaintiffs’ prima facie case.
Second, as the district court correctly determined, the
defendants met their subsequent burden of production, see
Reeves, 530 U.S. at 142, by articulating legitimate, non-
4la
discriminatory reasons for their denial of the Formisano
property permit. They maintain that they denied RECAP a
special-use permit in order to preserve the land along the
O & W railroad line for industrial development and also to
protect the halfway house residents from the nuisance effect of
the railroad.
We disagree, however, with the district court's third
conclusion: that the plaintiffs did not introduce evidence that
raises a genuine issue of material fact as to whether the
defendants’ proffered reasons were a pretext for unlawful
discrimination. To establish such pretext, in addition to the
evidence that supports their prima facie case, the plaintiffs rely
on three categories of evidence: (1) the granting of a special-use-
permit for the Rowley property, (2) deposition testimony, and
(3) a map of the surrounding area. A review of the record on
appeal indicates at a minimum that this evidence casts doubt
on the defendants’ proffered reasons for denying RECAP a
special use permit.
At the August 1994 hearing, the Planning Board approved
a special-use permit for the Rowley property, where RECAP
intended to build a childcare facility. In December 1994, the
Board rejected RECAP's application fora special-use permit for
the Formisano property, where RECAP intended to establish
the halfway houses. The applications for both properties were
made at the same time, by the same entity, for adjoining
properties; the principal difference between them seems to be
the people whom the projects sought to serve: The Rowley
property would serve children, and the Formisano property
would serve recovering alcoholics. The plaintiffs argue
persuasively that if industrial growth and development were
the Planning Board's true concerns, then the Board would have
also raised the issue in connection with the Rowley property.
Indeed, the two- and-one-half acre Rowley property is five
times the size of the Formisano property; it has a_rail spur that
42a
connects it to the O & W track; and it is zoned for heavy rather
than light industrial use. For these reasons, it arguably would
be more attractive than the Formisano property for industrial
use.
The district court found that "[t]he Head Start program to
be conducted on the Rowley property involves a non-
residential facility operating only in daylight hours, which
would provide support services that would facilitate desired
industrial development." Reg ‘l Econ. Cmty. Action Program, Inc.,
slip op at 14. We find no support for the conclusion that the
Head Start program would facilitate industrial development.
The defendants provide no evidence, for example, that
in. sstrial workers’ children would be eligible for a Head Start
prugram. Cf. Head Start 2001 Poverty Guidelines, at http://
www.headstartinfo.org/publications.htm (last modified Oct. 31,
2001) (detailing income restrictions for Head Start children's
families).
The plaintiffs also introduced evidence that calls into
question the defendants’ second proffered reason for denying
RECAP a special-use permit: to protect the halfway house
residents from the nuisance effect of the railroad. The evidence
indicates that at the time of the Planning Board's decision,
trains rarely traveled on the O & W line; when they did, it was
_ at very low speeds. A reasonable juror might wonder why the
Planning Board worried more about the impact of the railroad
on recovering alcoholics than on the children whom it knew
would be receiving education, medical attention, and other
social services at the adjoining Rowley property. More
generally, a juror could infer that if the industrial development
and railroad-nuisance concerns led the Planning Board to deny
RECAP the special-use permit for the Formisano property, then
these same concerns would have led the Planning Board to
deny it a special-use permit for the Rowley property. These
inferences could establish that the Planning Board's disparate
43a
treatment of these two properties demonstrates intentional
discrimination against recovering alcoholics and that its stated
concerns about the Formisano property were pretextual.
The Planning Boara members' deposition §testirnony
provides additional evidence of pretext. When questioned
about the reason for the Board's disparate treatment of the two
properties, one member testified: "I cannot recall what |
thought at the time, what other people thought at the time and
in what detail the economic development argument began to
figure in. So I can't really recall specifically what the distinction
was." That same member also testified that "the concern that
Middletown had a high number of treatment facilities in
general was certainly brought home to me, was certainly a
recurring theme in this overall discussion." Another Planning
Board member stated that he was not concerned with industrial
or commercial development in relation to the Rowley property
permit.
Finally, the plaintiffs supplied the district court witha map
of the area as it existed in 1994. The map appears to show that
the area surrounding the properties in question was not largely
industrial. If true, this may cast doubt in jurors’ minds upon the
defendants’ assertion that they sought to "preserve" it as an
industrial area.
Based on this evidence, then, a reasonable juror could
refuse to credit the defendants’ stated reasons for denying
RECAP a special-use permit and find that the real reason was
discrimination based on the identity of RECAP's clients. The
evidence also would suffice to permit a rational juror to find
that the defendants denied RECAP the permit solely because of
RECAP's clients’ disabilities--the more demanding finding
required for the plaintiffs to make out a cause of action under
the Rehabilitation Act. We therefore hold that the district court
44a
erred by granting summary judgment to the defendants on
each of the three statutory claims.
B. Disparate Impact Theory
RECAP also asserts a cause of action under the FHA and
ADA because the Planning Board's denial of the special-use
permit had a "disparate impact" on people with disabilities. The
FHA and the ADA provide relief not only from policies
adopted and actions taken with a discriminatory intent, but
also from the application of facially neutral standards that have
an unlawful discriminatory effect upon a protected class. See
LeBlanc-Sternberg, 67 F.3d at 425; Huntington .“vanch, NAACP v.
Town of Huntington, 844 F.2d 926, 933- 34 (2+ Cir.1988). We
agree with the district court, however, that in the present case,
as a matter of law, the defendants’ actions cannot give rise to a
disparate impact claim.
"A disparate impact analysis examines a facially-neutral
policy or practice, such as a hiring test or zoning law, for its
differential impact or effect on a particular group." Huntington
Branch, NAACP, 844 F.2d at 933. 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." Gamble v. City of Escondido, 104 F.3d 300, 306 (9th
Cir.1997) (internal quotation marks and citation omitted); see
also Huntington Branch, NAACP, 844 F.2d at 934.
For example, a handicapped person might challenge a
zoning law that prohibits elevators in residential dwellings.
That neutral law might havea disproportionate impact on such
a plaintiff and others with similar disabilities, depriving them
of an equal opportunity to use and enjoy dwellings there. Here,
by contrast, RECAP does not challenge a facially neutral policy
45a
or practice; it challenges one specific act: the denial of a
special-use permit for the Formisano property. No comparison
of the act's disparate impact on different groups of people is
possible. RECAP therefore fails to allege a cognizable cause of
action under a disparate impact theory, and the district court
correctly granted the defendants summary judgment on this
claim.
C. Reasonable Accommodation Theory
For similar reasons, RECAP and the United States fail to
state a claim upon which relief can be granted under a
reasonable accommodation theory. A municipality
discriminates in violation of the FHA, the ADA, or the
Rehabilitation Act if it refuses to make changes to "traditional
rules or practices if necessary to permit a person with
handicaps an equal opportunity to use and enjoy a dwelling.”
Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333 (2d Cir.1995)
(quoting H.R.Rep. No. 711, 100th Cong., 2d Sess. (1988),
reprinted at 1988 U.S.C.C.A.N. 2173, 2186). Returning to the
example of the zoning ordinance prohibiting elevators, a
proper reasonable accommodation claim might assert that the
zoning authority should have waived or modified its rule
against elevators in residential dwellings to permit those who
need them to use them and thereby have full access to and
enjoyment of residences there. See Salute v. Stratford Greens
Garden Apartments, 136 F.3d 293, 301-02 (2d Cir.1998)
(providing examples of “"pical accommodation cases).
Here, however, the zoning rules do not prohibit the
proposed haiiway houses in the first place. The plaintiffs do
not seek a variance to a traditional rule or practice that was
neutrally applied. Rather, they challenge the defendants’
specific decision to deny RECAP a special-use permit for
discriminatory reasons. The plaintiffs' argument in this case is
that the Planning Board determined that the planned use
46a
would have an adverse effect on the neighborhood because of
an illegitimate reason, the identity of the group of users.
Because the plaintiffs do not point to the prerequisite neutral
application of a rule, they fail to state a claim under a
reasonable accommodation theory.
V. The Retaliation Claim
Finally, RECAP alleges that the defendants retaliated
against it for threatening to complainand actually complaining
about the denial of the permit by withdrawing funds
committed to it by the City for a different project. We conclude
that this allegation states a claim against the City and
DeStefano.
Under the FHA, it is unlawful, "to coerce, intimidate,
threaten, or interfere with any person in the exercise or
enjoyment of, or on account of his having exercised or enjoyed,
or on account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or
protected by [inter alia, section 3604] of this title." 42 U.S.C. §
3617. The ADA and Rehabilitation Act include similar
prohibitions. See 42 U.S.C. § 12203(b); 29 U.S.C. § 791(g). We
apply the McDonnell Douglas burden-shifting rules to claims of
retaliation pursuant to these statutes. See Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999);
Richardson v. N.Y. State Dept. of Corr. Serv., 180 F.3d 426, 443 (2d
Cir.1999). RECAP therefore must first establish a prima facie
case of retaliation. Richardson, 189 F.3d at 443. It must show
"that [it was] engaged in protected activity, that the [defendant]
was aware of this activity, that the [defendant] took adverse
action against the plaintiff, and a causal connection exists
between the protected activity and the adverse action, i.e., that
a retaliatory motive played a part in the adverse employment
action." Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir.1994)
(discussing the elements of a retaliation claim under the
47a
Rehabilitation Act) (internal quotation marks omitted); see also
Weissman v. Dawn Joy Fashions Inc., 214 F.3d 224, 234 (2d
Cir.2000) (discussing the elements of an ADA retaliation claim);
San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477
(9th Cir.1998) (discussing the elements of a FHA retaliation
claim).
RECAP elicited sufficient evidence to support a prima facie
case of retaliation against the City and DeStefano. RECAP's
letter dated December 5, 1994, and its filing of a complaint with
the HUD were protected activities. Both constitute "oppos[ition
to] an{ ] act or practice made unlawful" by the applicable
anti-discrimination statutes. 42 U.S.C. § 12203(a); see also Cruz
v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (defining
protected activity as "action taken to protest or oppose
statutorily prohibited discrimination"). The defendants do not
assert that they were unaware of this activity. RECAP suffered
an adverse action in losing funding that had been committed
to it, and the events leading to the ultimate loss of funding
began very shortly after RECAP's protected activity.
"The causal connection needed for proof of a retaliation
claim can be established indirectly by showing that the
protected activity was closely followed in time by the adverse
action." Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir.2001)
(citation and internal quotation marks omitted). We "ha[ve] not
drawn a bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a causal
relationship. . . ." Gorman-Bakos v. Cornell Coop. Extension, 252
F.3d 545, 554 (2d Cir. 2001). An inference of a causal
relationship might be made based on Smith's comment to
Figueroa that RECAP should not "bite the hand that feeds it."
While the ultimate denial of funding did not occur immediately
after the protected activity, a reasonable juror could conclude
that the defendants withdrew RECAP's funding because of the
events following the denial of the Formisano property permit.
48a
The defendants proffer two legitimate, non-retaliatory
reasons for the withdrawal of funds: (1) the funding was only
available for a limited time period; and (2) RECAP employed
banned contractors. RECAP presents sufficient evidence to
raise a material issue of fact as to whether these proffered
reasons were a pretext for retaliation. We note, moreover, that
the defendants offer no evidentiary support for the
non-retaliatory reasons they proffer, and we find no indication
in the record that the funding was only offered for a limited
time. We further note that although RECAP responded to the
defendants’ expressed concerns about the project, the
defendants neither answered this response nor indicated that
the issue that gave rise to it continued to concern them. A
reasonable juror could conclude that the defendants are now
citing these reasons in order to obscure their retaliatory motive.
We therefore hold that summary judgment should not have
been granted on RECAP’s retaliation claim against the City and
DeStefano.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed in part, vacated in part, and remanded for further
proceedings consistent with this opinion.
49a
Appendix C—Fair Housing Act (FHA), 42 U.S.C.
§3601, et seq.
UNITED STATES CODE ANNOTATED
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER45--FAIR HOUSING
SUBCHAPTER I--GENERALLY
§ 3602. Definitions
As used in this subchapter--
(a) “Secretary” means the Secretary of Housing and Urban
Development.
(b) "Dwelling" means any building, structure, or portion
thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families, and any
vacant land which is offered for sale or lease for the
construction or location thereon of any such building,
structure, or portion thereof.
(c) "Family" includes a single individual.
(d) "Person" includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal
representatives, mutual companies, joint-stock companies,
trusts, unincorporated organizations, trustees, trustees in cases
under Title 11, receivers, and fiduciaries.
(e) "To rent" includes to lease, to sublease, to let and otherwise
to grant for a consideration the right to occupy premises not
owned by the occupant.
(f) "Discriminatory housing practice" means an act that is
unlawful under section 3604, 3605, 3606, or 3617 of this title.
50a
(g) "State" means any of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, or any of the
territories and possessions of the United States.
(h) "Handicap" means, with respect to a person--
(1) a physical or mental impairment which 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 (as defined in section 802 of
Title 21).
(i) "Aggrieved person" includes any person 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.
(j) "Complainant" means the person (including the Secretary)
who files a complaint under section 3610 of this title.
(k) "Familial status" means one or more individuals (who have
not attained the age of 18 years) being domiciled with--
(1) a parent or another person having legal custody of such
individual or individuals; or
Sila
(2) the designee of such parent or other person having such
custody, with the written permission of such parent or other
person.
The protections afforded against discrimination on the basis of
familial status shall apply to any person who is pregnant or is
in the process of securing legal custody of any individual who
has not attained the age of 18 years.
(1) "Conciliation" means the attempted resolution of issues
raised by a complaint, or by the investigation of such
complaint, through informal negotiations involving the
aggrieved person, the respondent, and the Secretary.
(m) "Conciliation agreement" means a written agreement
setting forth the resolution of the issues in conciliation.
(n) "Respondent" means--
(1) the person or other entity accused in a complaint of an
unfair housing practice; and
(2) any other person or entity identified in the course of
investigation and notified as required with respect to
respondents so identified under section 3610(a) of this title.
(o) "Prevailing party” has the same meaning as such term has
in section 1988 of this title.
ORGS ae Cok Bctgp en
52a
UNITED STATES CODE ANNOTATED
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 45--FAIR HOUSING
SUBCHAPTER I--GENERALLY
§ 3604. Discrimination in the sale or rental of housing and other
prohibited practices
As made applicable by section 3603 of this title and except as
exempted by sections 3603(b) and 3607 of this titlef it shall be
unlawful--
(a) To refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national
origin.
(b) 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 therewith,
because of race, color, religion, sex, familial status, or national
origin.
(c) To make, print, or publish, or cause to be made, printed,
or published any notice, statement, or advertisement, with
respect to the sale or rental of a dwelling that indicates any
preference, limitation, or discrimination based on race, color,
religion, sex, handicap, familial status, or national origin, or an
intention to make any such preference, limitation, or
discrimination.
(d) To represent to any person because of race, color,
religion, sex, handicap, familial status, or national origin that
any dwelling is not available for inspection, sale, or rental
when such dwelling is in fact so available.
53a
(e) For profit, to induce or attempt to induce any person to
sell or rent any dwelling by representations regarding the entry
or prospective entry into the neighborhood of a person or
persons of a particular race, color, religion, sex, handicap,
familial status, or national origin.
(f)(1) To discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of--
(A) that buyer or renter,’
(B) a person residing in or intending to reside in that
dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
(2) 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 of--
(A) that person; or
(B) a person residing in or intending to reside in that
dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination
includes--
' So in original. The comma probably should be a semicolon.
54a
(A) a refusal to permit, at the expense of the
handicapped person, reasonable modifications of existing
premises occupied or to be occupied by such person if such
modifications may be necessary to afford such person full
enjoyment of the premises except that, in the case of a rental,
the landlord may where it is reasonable to do so condition -
permission for a modification on the renter agreeing to restore
the interior of the premises to the condition that existed before
the modification, reasonable wear and tear excepted.’
(B) a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such accommoda-
tions may be necessary to afford such person equal opportunity
to use and enjoy a dwelling; or
(C) in connection with the design and construction of
covered multifamily dwellings for first occupancy after the
date that is 30 months after September 13, 1988, a failure to
design and construct those dwellings in such a manner that--
(i) the public use and common use portions of such
dwellings are readily accessible to and usable by handicapped
persons;
(ii) all the doors designed to allow passage into
and within all premises within such dwellings are sufficiently
wide to allow passage by handicapped persons in wheelchairs;
and
(iii) all premises within such dwellings contain the
following features of adaptive design:
(I) an accessible route into and through the dwelling;
? So in original. The period probably should be a semicolon.
55a
(II) light switches, electrical outlets, thermostats, and
other environmental controls in accessible locations;
(III) reinforcements in bathroom walls to allow tater
installation of grab bars; and
(IV) usable kitchens and bathrooms such that an
individual in a wheelchair can maneuver about the space.
(4) Compliance with the appropriate requirements of the
American National Standard for buildings and _ facilities
providing accessibility and usability for physically
handicapped people (commonly cited as "ANSI A117.1")
suffices to satisfy the requirements of paragraph (3)(C)(iii).
(5)(A) If a State or unit of general local government has
incorporated into its laws the requirements set forth in
paragraph (3)(C), compliance with such laws shall be deemed
to satisfy the requirements of that paragraph.
(B) A State or unit of general local government may
review and approve newly constructed covered multifamily
dwellings for the purpose of making determinations as to
whether the design and construction requirements of
paragraph (3)(C) are met.
(C) The Secretary shall encourage, but may not require,
States and units of local government to include in their existing
procedures for the review and approval of newly constructed
covered multifamily dwellings, determinations as to whether
the design and construction of such dwellings are consistent
with paragraph (3)(C), and shall provide technical assistance to
States and units of local government and other persons to
implement the requirements of paragraph (3)(C).
S6a
(D) Nothing in this subchapter shall be construed to
require the Secretary to review or approve the plans, designs or
construction of all covered multifamily dwellings, to determine
whether the design and construction of such dwellings are
consistent with the requirements of paragraph 3(C).
(6)(A) Nothing in paragraph (5) shall be construed to affect
the authority and responsibility of the Secretary or a State or
local public agency certified pursuant to section 3610(f)(3) of
this title to receive and process complaints or otherwise engage
in enforcement activities under this subchapter.
(B) Determinations by a State or a unit of general
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.