MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiffs Chestnut Hill NY, Inc., Thomas Riker, John Sturm, and Jae Curtis bring this disability discrimination action against the City of Kingston in connection with the denial of a special use permit for the operation of a “group home” located at 106 West Chestnut Street in Kingston, New York. (Dkt. No. 58). Plaintiffs bring the following claims: (1) disability discrimination in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §§3604, et seq. and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12131, et seq.; (2) failure to provide a reasonable accommodation, in violation of the ADA; and (3) deprivation of substantive due process, in violation of the Fourteenth Amendment, 42 U.S.C. §1983. (Id.). Presently before the Court are Defendant’s motion to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (Dkt. No. 19),1 and Plaintiffs’ second motion for a preliminary injunction under Federal Rule of Civil Procedure 65 seeking to stay eviction proceedings, (Dkt. No. 44). The motions are fully briefed. (Dkt. Nos. 21, 24, 44, 48, 49, 51). For the reasons that follow Defendant’s motion to dismiss is granted in part and denied in part and Plaintiffs’ motion for a preliminary injunction is denied. II. FACTS2 The “group home” at issue in this case, 106 West Chestnut Hill, was the subject of a prior action in this Court. Chestnut Hill NY, Inc. v. City of Kingston (“Chestnut Hill I”), No. 17-cv-0095, 2017 WL 11418271, 2017 U.S. Dist. LEXIS 226807 (N.D.N.Y. Feb. 22, 2017). The events leading to Chestnut Hill I are set forth at length in Chestnut Hill NY, Inc. v. City of Kingston (“Chestnut Hill II”), No. 23-cv-01024, 2023 WL 6796622, at *2, 2023 U.S. Dist. LEXIS 184157, at *3-*8 (N.D.N.Y. Oct. 13, 2023). A. The Parties Plaintiff Chestnut Hill NY, Inc., is a corporation organized and existing under the laws of the State of New York. (Dkt. No. 58, 3). “Chestnut Hill owns and operates a group home” located at 106 West Chestnut Street in Kingston “for persons with various disabilities.” (Id. 3). The “group home” is “a fourteen bedroom Victorian mansion with an adjacent cottage and has operated as a group home for ill and disabled persons for approximately seven decades.” (Id. 11). Chestnut Hill “provides a family home setting in a single-family residential neighborhood away from drugs and alcohol, for persons recovering from drug and alcohol addiction…in order to facilitate their continued recovery.” (Id. 4). Residents “also include individuals with mental and physical disabilities, including disabilities that impair their mobility.” (Id.). Plaintiff Jae Curtis has lived at the group home for four years and “has been diagnosed with bipolar disorder and schizophrenia.” (Id. 6). Plaintiff Thomas Riker “has lived at the Group Home for approximately four years and…suffers from severe depression and is under the care of therapist [sic] on a weekly basis.” (Id. 7). Plaintiff John Sturm “has lived at the Group Home for approximately four years” and “suffers from being mentally challenged and is unable to read, write, or perform the basic functions necessary to live autonomously.” (Id. 8). Defendant City of Kingston “is a municipal subdivision” and “is governed by a Mayor and City Council which enact and oversee the zoning and planning laws of the City of Kingston.” (Id. 9). In 2019, following the litigation of Chestnut Hill I, and “[a]fter months of review and a public hearing,” the City Planning Board granted Chestnut Hill a special use permit and site plan approval for the continued operation of 106 West Chestnut Street. (Id. 28). The Planning Board “imposed a variety of conditions in the special use permit, including regular inspections at a minimum of once per year for permit renewal, as well as occupancy limits that complied with state building codes and the New York State Multiple Dwelling Law.” (Id. 29). “In granting the use variance, the Zoning Department specified that the hardship plaintiff proved to obtain the use variance was the fact that the only viable use for this premises was such as a boarding house or group home.” (Id. 33). The special use permit was renewed annually until 2023. (Id. 36). Chestnut Hill and Joe Sangiovanni, the manager of group home, “have invested large sums of money and time into the renovation, upkeep and operation of the Group Home to comply with the requirements of” the City’s Zoning and Planning Departments and the laws of the State of New York. (Id. 30). Sangiovanni “oversees the Group Home’s operation and is available twenty-four hours per day, seven days per week to address the needs and concerns of the Group Home and its residents.” (Id. 31). B. Application for Renewal of Special Use Permit On January 23, 2023, the Planning Board sent Chestnut Hill a letter stating that “the special use permit expired on February 22, 2023 and that [Sangiovanni] would have to submit an application by February 3, 2023.” (Id. 35). Sangiovanni requested and received an extension of time and the Planning Board meeting scheduled for February 21, 2023, was adjourned until March 20, 2023. (Id. 35). C. March 20, 2023 Planning Board Meeting A public hearing was held at the March 20, 2023 Planning Board meeting, at which “six neighbors of the Group Home testified”: The first speaker stated that he had “been complaining to the Board at hearings and with letters and to other appropriate departments about this boarding house,” and that he “had a meeting with the former Corporation Counsel and was assured that they would get relief.” (Id. 39.a). The second speaker stated that “we all heard the phrase not in my backyard, 106 West Chestnut Street boarding house is in my backyard,” “objected to how the boarding house was operated, but acknowledged there was a need for housing and services and that there was a housing and mental health crisis in the City of Kingston,” stated that “the boarding house is operating without abiding by the laws of the City of Kingston,” that “neighbors have had syringes and empty alcohol containers on their property,” “asked the Board if the fire escape on the third floor was legal,” and asserted that “residents have to pass through another bedroom in order to get to the fire escape.” (Id. 39.b). The third speaker opposed renewal of the special use permit, “set forth various items that she thought were required according to zoning law and stated that she hoped the upcoming inspection would focus on those things,” and stated that “she would like to see a plan in place to reduce capacity of the boarding house through attrition and to work with social services to find another appropriate housing.” (Id. 39.c). The fourth speaker stated that her daughter lived in the West Chestnut Street neighborhood and that from her daughter’s porch, she saw “people coming out of the boarding house that have not been able to stand,” and that “[t]hey waddle, they struggle, they are definitely intoxicated or on drugs,” that she found a hypodermic needle on the lawn while walking the dog, and that she believed “someone in the home was a sex offender,” and asked the Planning Board “if this is someone they would want living around their children.” (Id. 39.d). The fifth speaker was the husband of the fourth speaker and stated that “the boarding house is not complying with the ‘code’ because of the number of residents in the home,” that he was worried because his daughter was “going to have a baby” and asked the Planning Board “to picture themselves living in this neighborhood and to ask themselves if this is OK” and that if they could, he “hope[d] to God you never have to reckon with [this] if something goes wrong.” (Id. 39.e).3 The sixth speaker stated that she lived in the West Chestnut neighborhood and that she and her neighbors “are very concerned that the Board has not heard their concerns and fears in the past about this house being where it is” and that although “in the past it had been used as a boarding house for other people and there were no problems with those people who had disadvantages in life, but currently it is not ok, the fact that they have to see syringes and other garbage in their yards,” and that “she feared that a resident might come into their homes.” (Id. 39.g.). The public hearing then closed and Sangiovanni “was permitted to speak.”4 (Id. 39.h). At the meeting, Board member Suzanne Cahill informed the Planning Board that she had spoken with the police chief the day before and had learned that “a resident of the boarding house had died of an overdose.” (Id. 39.j). Cahill further stated that she and the police chief spoke “about the number of police calls to the boarding house and the types of calls that have been recorded over the past year.” (Id.). Cahill asked whether “there was a resident manager that lived on sight to manage the property 24/7,” “about the Group Home’s rules and regulations about random drug testing” and whether Sangiovanni was “conducting this random drug testing.” (Id.). Sangiovanni responded that “he conducts drug screenings of residents if there is an incident.” (Id.). The Planning Board adjourned and planned to meet again in thirty days, after the building inspector’s scheduled March 22, 2023 inspection. (Id. 39.k.). D. Inspection and Notice of Violation During the March 22, 2023 inspection, Assistant Building Inspector Matthew Martino asked Building Inspector Stephan Knox, in Sangiovanni’s presence: “Hey Steve, what’s going on here? We go into buildings that have hundreds of violations that never get repaired, but whenever we come here, this place is beautiful and [Sangiovanni] and these guys run around and fix everything while we’re still here, why are we giving [Sangiovanni] such a hard time?” (Id. 40). On April 12, 2023, the Department of Building Safety and Zoning Enforcement issued Chestnut Hill a “violation Notice/Order to Remedy” as a result of the March 22 inspection and directed that “all items must be corrected and rescheduled” for another inspection on April 26, 2023. (Id. 41). The notice identified the following issues/violations: the fire alarm system “had to be operational and tested, or the fire pull stations had to be covered up”; a basement bedroom “was ordered closed…for failing to comply with the building code” as “a window had been painted over and would not open,” creating “an egress issue”; “[o]ne bed in the rear cottage had to be removed because the bedroom lacked an additional 20 square feet required by the building code”; the tile floor in third-floor bathroom that “was in the process of being re-tiled and…needed to be completed”; “[t]he tag on one fire extinguisher…was outdated”; “[r]ooms 7 and 8 each had one extra bed”; “[t]he screws for the cover plate on an electrical outlet in room 7 had to be tightened”; “minor holes and dents…needed to be patched”; “[t]he light bulb in the exit sign…needed to be replaced”; “one window in the second floor restroom that was…painted shut and needed to be operational”; an “outlet cover in the second floor restroom needed to be replaced”; “a stone wall column…was unfinished and not the proper length”; and “[t]he front porch needed some minor repairs.” (Dkt. No. 58, 42.b.-n). The notice of violation also listed the fire escape. (Id. 42.a). The fire escape had been the subject of an October 2021 inspection by John Stinemire, P.E., an engineer. (Id. 42.a.i). At that time, Stinemire identified the following “maintenance items”: “bottom stair tread should be replaced and the stair tread directly above that should be straightened and reinstalled”; the horizontal components of upper landing railings “needed to be securely fastened”; “[o]ne concrete foundation element needed to be replaced with a new concrete pier”; “[o]ne diagonal steel brace needed to be replaced and welded into place”; and “[t]he steel would need to be cleaned and repainted within the next few years.” (Id. 42.a.i.1-5). Sangiovanni repaired all but the diagonal brace and the horizontal railings in 2021. (Id. 42.a.ii). Sangiovanni attended to several of the noticed items “while the building inspector was still there.” (Id. 42.d). Specifically, Sangiovanni “removed the bed” from the rear cottage, repaired the “light bulb in the exit sign,” and fixed the window in the second floor restroom that had been painted shut.” (Id. 42.d, j, k). “Shortly thereafter,” Sangiovanni completed the other noticed repairs and notified the building inspector, who returned on April 17, 2023, to inspect the premises again. (Id. 44). In an April 17, 2023 e-mail from Stephan Knox to Board Member Cahill, Knox stated: Building Safety conducted a follow-up inspection of 106 W. Chestnut Street today at 2:00 p.m. All of the smaller items have been corrected and the beds we required be removed in the rear cottage and basement were gone. The fire alarm system, which was not required at the time of construction, is not working. Code requires that non-required systems be maintained but may also be removed or have not visible signs of an installed system. The pull stations and strobes will temporarily be covered until Fisher Alarms restores the system to full working order. The fire escape repairs have been made and John Stinemire will be there April 25, @ 2:00 p.m. to do his follow-up inspection. All smoke and carbon monoxide detectors are operational. With the removal of the basement beds there were 39 total beds in the buildings. I am willing to issue a 30-45 day operating permit at this point. (Id. 45).5 On April 26, 2023, Stinemire conducted an inspection and on May 24, 2023, issued a report noting that all items identified in his October 2021 report had been repaired except for the two items referenced previously. (Id. 42.a.ii). On May 30, 2023, Sangiovanni submitted Stinemire’s May 24, 2023 inspection report to the Planning Board and informed the Board that the repairs had been complete” and “provided pictures…evidencing that the repairs were complete.” (Dkt. No. 58, 42.a.iii). E. Denial of Application for Renewal of Special Use Permit At the July 17, 2023 Planning Board meeting, a board member reported that “there was an unfortunate incident at the facility this past week that there was an overdose and that one person died at the facility.” (Id. 52). “This Board Member” also stated that: “during the course of different approvals that the Board has given over the years, right now there doesn’t necessarily seem that there is proper oversight or a manager of day to day operations for the population that serves there,” that “there have been a number of incidents that have happened there like the one this past week,” and that “there have been numerous police reports for this property over the years.” (Id. 53). The Board asked about “the issue of the fire escape and for a report from an engineer that the fire escape is suitable for this structure,” and stated that it required “proof that the fire escape is certified.” (Id. 55). The Board rejected Stinemire’s May 24, 2023 report “because of the language in the fourth paragraph.”6 (Id. 56). The Planning Board noted that Knox, its building inspector, had performed a follow-up inspection the week before their meeting and noted that Knox “had not indicated that anything was wrong with the fire escape.” (Id. 58). Ultimately, the Planning Board issued a resolution denying Chestnut Hill’s application for renewal of the special use permit and finding: 1. “Whereas, the violation of fire safety requirement 704.1, cited on the 10/20/2021 violation notice was not remedied until May 1, 2023 leaving the fire alarm notification system to remain inoperable during that time period.” (Id. 60). 2. “Whereas, on October 20, 2021 and again on Aril 12, 2023 violations were cited of NYS 1104.16.5.1, pertaining to the exterior metal fire escape used as a primary means of resident ingress and egress.”7 (Id. 61). 3. “Whereas on April 26, 2023 an engineer hired by applicant conducted a condition inspection of the exterior steel fire escape, which is used by residents as a regular means of ingress and egress.” (Id. 62). 4. “Whereas, the engineer indicated that the letter ‘is a condition inspection only and does not include any comments, representations or conclusions regarding the design, analysis, load capacity, or overall design and suitability of the subject fire escape.’” (Id. 65). 5. “Whereas, in June 2023 applicant reported that a resident is sleeping in the basement and blocking the basement fire escape in violation of the building code and the violation was confirmed by the building department.” (Id. 66). In denying Chestnut Hill’s application, the Planning Board noted that it had given the applicant “a period of more than 60 days…to bring the property in full compliance” but that Chestnut Hill had failed to comply with “the conditions set forth in the permit.” (Id.
