ARTHUR D. SPATT, United States District Judge
In this case, the plaintiffs, the Hispanic Counseling Center, Inc. (the "HCC") and John Does (collectively, the "plaintiffs") bring an action against the defendants the Incorporated Village of Hempstead (the "Village of Hempstead" or the "Village") and the Zoning Board of Appeals of the Incorporated Village of Hempstead (the "Zoning Board of Appeals") alleging that the 1997 amendment to the Village Code which prevents them from relocating their substance abuse treatment clinic to a new building three blocks away from their present location violates Title II of the Americans with Disabilities Act (the "ADA"), among other laws. Presently before the Court are objections to a report from United States Magistrate Judge William D. Wall recommending that this Court deny the defendants' motion to dismiss the complaint and grant the plaintiffs' motion for a preliminary injunction allowing the plaintiffs to relocate their clinic to the new building. This opinion sets forth the Court's findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
I. FACTS
The facts are taken from the complaint, the parties' affidavits and the evidentiary hearing. The HCC is a not-for-profit corporation which operates a counseling center and clinic for people with mental disabilities, AIDS and substance abuse problems at 175 Fulton Avenue in Hempstead, New York. It has operated its counseling center and clinic in the Village of Hempstead for the past 26 years. The John Does are individuals whom the HCC would treat at its proposed new facility. The Village of Hempstead is a municipal corporation located in Nassau County, New York. The Zoning Board of Appeals is responsible for determining whether an individual or entity is entitled to a variance from the Village Code.
At this time, the HCC requires a larger facility because its present one can no longer meet the needs of its clients and the community. To accommodate that need, the HCC has found a larger building for sale which is located three blocks away at 340-44 Fulton Avenue. The HCC and the seller of that building have entered into a contract of sale. However, the seller has given the HCC until December 31, 2002 to obtain any necessary approvals allowing it to operate its substance abuse treatment clinic at the new location.
The HCC is unable to obtain the necessary approvals for its clinic for two reasons. First, a 1997 Village ordinance prohibits clinics and substance abuse treatment facilities from locating in all business zoning districts in the Village including the one where the HCC's present facility is situated. Second, the Zoning Board of Appeals denied the HCC's application for a variance to the 1997 Village ordinance which would have allowed it to establish its clinic at 340-44 Fulton Avenue. As to the reasons for that denial, the Zoning Board of Appeals noted inadequate parking, increased traffic, and a strain on sanitation, sewage and public transportation.
On November 26, 2002, the plaintiffs filed this complaint in the Eastern District of New York alleging violations of the Equal Protection and Due Process clauses of the United States and New York State Constitutions, Title II of the ADA and the New York State Human Rights Law. On that date, the plaintiffs moved pursuant to Rule 6.1(d) of the Local Civil Rules for an order to show cause permitting them to file an expedited motion for a preliminary injunction. The Court granted that request and directed the defendants to appear on December 6, 2002 to address the motion.
In their motion for a preliminary injunction, the plaintiffs sought to: (1) enjoin the defendants from taking any steps to impede the HCC from establishing a clinic and substance abuse treatment center at 340-44 Fulton Avenue; (2) enjoin the defendants from enforcing the sections of the Village Code that prohibit the HCC from establishing a clinic and substance abuse treatment center in the business and all other zoning districts in the Village of Hempstead; and 3) direct the defendants to provide the HCC with all necessary approvals to establish a clinic and substance abuse treatment center at 340-44 Fulton Avenue.
On December 6, 2002, the Court heard oral argument on the plaintiffs' motion for a preliminary injunction. The plaintiffs stated that their motion involved questions of law and that no evidentiary hearing was required. On the other hand, the defendants argued that an evidentiary hearing was required to resolve certain factual issues. After hearing both sides, the Court referred the motion for a preliminary injunction to Judge Wall for an evidentiary hearing and a report and recommendation pursuant to 28 U.S.C. § 636.
On December 9, 2002, the defendants filed a cross-motion to dismiss the complaint. That motion and the papers submitted in support largely oppose the plaintiffs' motion for a preliminary injunction and note, in cursory fashion, that the Court should dismiss the complaint for lack of subject matter jurisdiction on the ground that the Village did not discriminate against the plaintiffs. That motion also requested that the Court abstain from deciding the issues in this case before the state court makes a determination in an Article 78 proceeding.
On December 11, 2002, Judge Wall held an evidentiary hearing. At that time, the plaintiffs produced one witness, Gladys Serrano. The defendants produced none. After the hearing and oral argument, Judge Wall noted that he will recommend that the motion for a preliminary injunction be granted. Later that day, Judge Wall gave the parties a written report outlining the reasons for his recommendation. In that report, Judge Wall found the following: First, the plaintiffs have standing to bring this action. Second, the individuals whom the HCC treats are disabled under the ADA. Third, the plaintiffs have established irreparable harm in that the Village Code prohibits the plaintiffs from relocating their facility to any other Village area; the plaintiffs' current facility no longer meets their clients' needs; the plaintiffs' contract for sale of the new building is conditioned on their obtaining the necessary approvals; and if those approvals are not obtained, the HCC will be unable to purchase the new building.
Fourth, the plaintiffs proved a likelihood of success on the merits, at least with respect to the ADA claim under a theory of disparate treatment. In that regard, Judge Wall found that the Village Code was discriminatory on its face because it contained a blanket express prohibition against clinics and substance abuse treatment facilities in all business districts and it did not permit such facilities in any other district of the Village. In addition, he found that the defendants failed to present any credible evidence that there existed a reasonable relation between the ends sought by the challenged sections of the Village Code-a general zoning scheme to congregate certain activities in particular areas of the Village-and the means chosen to achieve that end-the use of a blanket prohibition against clinics and substance abuse treatment centers.
After deciding that the plaintiffs' met their burden of proof, Judge Wall recommended that the defendants: (1) be preliminarily enjoined from enforcing against the HCC those sections of the Village Code that prohibit clinics and substance abuse treatment centers from all zoning districts in the Village; and (2) provide the HCC with a building permit and certificate of occupancy permitting it to establish a clinic and substance abuse treatment center at 340-44 Fulton Avenue in Hempstead, New York, subject to other applicable sections of the Village Code not raised in this action.
Because of the time constraints set forth in the plaintiffs' contract to purchase the new building, Judge Wall set an expedited objection schedule directing the defendants to file their objections to the report and recommendation with the Clerk of the Court by close of business on December 16, 2002 and any reply be filed by close of business on December 19, 2002. Judge Wall noted that the failure to file objections within this period would constitute a waiver of the right to appeal the district court's order.
On December 16, 2002, counsel for the defendants called Judge Wall's chambers at 3:00 p.m. requesting an extension of time to file objections to the report and recommendation. In a written order that day, Judge Wall denied this request noting that the defendants were given adequate notice of the deadline and the reason for the shortened period. At 4:04 p.m. that day, counsel for the defendants faxed a letter to this Court requesting a telephone conference to discuss an extension to file their objections by December 18, 2002.
On December 17, 2002, the Court held a telephone conference in connection with the defendants' request from the previous day. At that time, counsel for the defendants stated that the Court's assistance was no longer necessary because they had filed their objections. In their objections, the defendants set forth the following reasons why this Court should not adopt the report: (1) Judge Wall's finding that the Village Code prohibited the plaintiffs from relocating their facility to any other location in the Village was incorrect; (2) Judge Wall erred in finding the defendants did not present any evidence that there existed a reasonable relation between the ends sought to be met by the challenged sections in the Village Code and the means used to achieve that end; (3) Judge Wall substituted his interpretation of the Village Code rather than deferring to the "Village's legal authority"; and (4) Judge Wall's position on the preliminary injunction was decided before the hearing and he did not give the defendants a fair opportunity to argue against the injunction.
II. DISCUSSION A. The Timeliness of the Objections
It is well-settled that the "`failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision.'" Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (quoting Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). Generally, parties are given 10 days after service of a magistrate's report to file written objections. 28 U.S.C. § 636(b)(1)(C). However, that time period may be shortened where exigencies exist. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (stating that a court may require that objections be filed less than 10 days where exigencies exist).
In this case, Judge Wall properly set an expedited objection schedule permitting the defendants 5 days to file objections because of the time constraints in the plaintiffs' contract to purchase the new building. In his report, Judge Wall directed the defendants to file their objections with the Clerk of the Court by close of business on December 16, 2002. He also cautioned the defendants that their failure to file objections within this period waives the right to further judicial review. Despite these clear instructions, the defendants did not comply with the deadline; instead, they filed their objections on December 17, 2002, one day late. As such, they have waived further judicial review of Judge Wall's decision.
Because the waiver provision is non-jurisdictional, a court may excuse non-compliance in the interests of justice. Roldan, 984 F.2d at 89. The defendants set forth no credible reason why this Court should excuse their non-compliance with the waiver provision. Accordingly, they have waived further judicial review of Judge Wall's decision. Nevertheless, a review of the defendants' objections reveals that they are without merit.
B. The Standard
A court is required to make a de novo determination as to those portions of the report and recommendation to which objections were made. 28 U.S.C. § 636(b)(1)(C); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). The phrase "de novo determination" in Section 636(b)(1)-as opposed to "de novo hearing"-was selected by Congress "to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406 (1980). Section 636 does not require a court "to rehear the contested testimony in order to carry out the statutory command to make the required `determination.'" Id. at 674, 100 S.Ct. 2406. Rather, in making such a determination, a court may in its discretion review the record and hear oral argument on the matter. See Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir. 1990). Furthermore, a court may in its sound discretion afford a degree of deference to the magistrate's report and recommendation. See Raddatz, 447 U.S. at 676, 100 S.Ct. at 2412. In light of these principles, the Court makes a de novo determination with regard to the specific objections raised by the defendants.
1. The First Objection
The defendants object to Judge Wall's report on the ground that his finding that the Village Code prohibited the plaintiffs from relocating their facility to any other location in the Village was incorrect. To the contrary, the defendants contend that the plaintiffs could relocate their facility to residential zones B, C and D in the Village.
Judge Wall properly rejected that argument. In interpreting a zoning ordinance, any uses that are not listed are excluded from that ordinance. See Inc. Village of Old Westbury v. Alljay Farms, 100 A.D.2d 574, 575, 473 N.Y.S.2d 505 (2d Dep't 1984) ("It is a basic tenet of zoning jurisprudence that an ordinance which lists permitted uses excludes any uses that are not listed.") (citations omitted). That principle is consistent with the general rules of statutory interpretation. See Smaldone v. Senkowski, 273 F.3d 133, 137 (2d Cir. 2001) (noting the principle that, when specific language is included in one section of a statute but omitted from another, it is generally presumed the omission is intentional).
In residential zones B, C and D, the Village Code permits "[h]ospitals, sanatoriums, clubs or lodges except when conducted as a business, when authorized as a special exception by the Board of Zoning Appeals. . . ." Village Code art. VII, § 139-72(B); art. VIII, § 139-81(A); art. IX, § 139-82. It does not list a clinic or substance abuse treatment clinic as a permitted use in these areas. As such, they are not permitted there. Accordingly, Judge Wall correctly interpreted the Village Code.
2. The Second Objection
The defendants object to Judge Wall's report on the ground that he erred in finding that the defendants did not present any evidence that there was a reasonable relation between the ends sought to be met by the challenged sections in the Village Code and the means used to achieve that end. To the contrary, the defendants contend that they had a legitimate government purpose for the challenged sections in the Village Code-a common commercial scheme in the Village's business district-and that purpose related to the ends sought-allowing only commercial, non-healthcare businesses to be in the commercial zone.
In his report, Judge Wall found that the defendants did not present any credible evidence to support a legitimate government purpose to the challenged sections in the Village Code. This finding was correct. Although the defendants argue in their motion papers that the purpose of these sections was to allow only "commercial" businesses in the business district, the evidence contradicts this argument. For example, neither the Village Code, nor any statute, nor any regulation supports counsel's argument. Indeed, that argument is inconsistent with the surroundings in the business districts of the Village where non-commercial entities such as the Helen Keller Services for the Blind, the Nassau-Suffolk Law Services and a religious organization are located.
3. The Third Objection
The defendants object to Judge Wall's report on the ground that he interpreted the Village Code rather than deferring to the "Village's legal authority", namely counsel for the defendants, W. Charles Robinson, Esq. In that regard, the defendants cite no authority that a court must defer to the Village's legal counsel when interpreting its zoning code. Indeed, it was Judge Wall's responsibility to interpret the Village Code under its plain meaning and the applicable case law. This he did.
4. The Fourth Objection
The defendants object to Judge Wall's report on the ground that his position on the preliminary injunction was decided before the hearing and that they were not given a fair opportunity to argue that motion. There is no basis for this objection.
In this case, Judge Wall gave the defendants an opportunity to present evidence at a hearing because they argued that there were factual issues to be resolved. Yet, they presented no witnesses or evidence at the hearing. Judge Wall gave the defendants clear notice that they must file objections to the report with the Clerk of the Court by end of business on December 16, 2002 or risk waiving further judicial review. Yet, they waited until 3:00 p.m. that day to request an extension and then failed to file their objections in a timely fashion. A review of the record reveals absolutely no basis to attack Judge Wall's impartiality in this case.
In addition, the defendants have been given a fair opportunity to litigate the motion for a preliminary injunction. Despite this opportunity, they have continuously failed to comply with directions from the Court. The order to show cause directed the defendants to submit opposition papers to the motion for a preliminary injunction by December 4, 2002. Yet, they did not provide the Court with their opposition papers by that date. Also, the defendants claimed that there were factual issues requiring an evidentiary hearing. Yet, they did not produce a witness or present any evidence at the hearing. Finally, they failed to timely file their objections to Judge Wall's report. During this pattern of non-compliance, the defendants knew that the plaintiffs were under time constraints to purchase the subject building in this case.
Based upon the forgoing, the Court finds that the objections to the report and recommendation are without merit.
C. As to the Preliminary Injunction 1. The Standard
Where, as here, a substance abuse treatment clinic seeks to prevent a municipality from interfering with its relocation to a new facility within that village, town or city, it must show: (1) irreparable harm absent the injunction; and (2) a likelihood of success on the merits. See Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 42-43 (2d Cir. 1997), overruled on other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163 (2d Cir. 2001).
a. Irreparable Harm
In this case, Gladys Serrano the executive director of the HCC stated in an affidavit that the HCC is the only clinic and substance abuse treatment center in Nassau County that is licensed by the New York State Office of Mental Health and the New York State Office of Alcohol and Substance Abuse Services which is bilingual and certified to provide services to individuals within the Latino community; that the larger building at 340-44 Fulton Avenue is needed to accommodate additional individuals within the community that require HCC's services; and that those individuals' health will deteriorate if the HCC does not expand its services in a larger facility. This affidavit establishes irreparable harm. See Innovative Health Sys., 117 F.3d at 44 (finding irreparable harm where a facility, precluded from relocating to a larger more convenient location, will prevent current and prospective clients who are alcohol and drug dependent from receiving necessary counseling services).
b. A Likelihood of Success on the Merits
In his report, Judge Wall correctly noted that the plaintiffs have standing to bring this action, see id. at 47 (stating that any person claiming discrimination on the basis of a disability has standing under the ADA) and that the individuals whom the HCC serves are disabled under the ADA, see Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-48 (2d Cir. 2002) (noting that alcoholics and drug addicts are disabled under the ADA).
In addition, Judge Wall correctly found that the plaintiffs have satisfied their burden on their claim for disparate treatment under the ADA. To satisfy that claim, the plaintiffs must first show "evidence that animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves. . . ." City of Middletown, 294 F.3d at 49 (emphasis in original) (internal quotation marks and citations omitted). Once the plaintiffs make this showing, the burden shifts to the defendants to furnish a legitimate, nondiscriminatory reason for their decision. Id. If the defendants provide such reason, then the plaintiffs must show that the defendants intentionally discriminated against them on a prohibited ground. Id.
In this case, the plaintiffs established that the defendants, through their Village Code, ban all clinics and substance abuse treatment centers within the Village. In fact, the Village Code expressly prohibits clinics and substance abuse treatment facilities in all business districts of the Village. Village Code art. XIV, § 139-105(F); art. XV, § 139-106(A); art. XVII, § 139-115(A). Also, the Village Code does not allow these facilities to be situated in any residential zones in the Village. See supra Part II.B.1. This blanket prohibition is more than mere animosity; it is discrimination on its face. See MX Group, Inc. v. City of Covington, 293 F.3d 326, 345 (6th Cir. 2002) ("[T]he blanket prohibition of all methadone clinics from the entire city is discriminatory on its face."). No legitimate, nondiscriminatory reason exists for this decision. As such, the plaintiffs satisfy their burden of proof on the claim for disparate treatment under the ADA. Accordingly, the plaintiffs show a substantial likelihood of success on the merits.
Based on the foregoing, the Court adopts Judge Wall's report and recommendation in its entirety and therefore (1) the defendants are preliminarily enjoined from enforcing sections of the Village Code against the HCC to the extent that those sections prohibit clinics and substance abuse treatment centers from all zoning districts in the Village; and (2) the defendants must provide the HCC with a building permit and certificate of occupancy permitting the HCC to establish a clinic and substance abuse treatment center at 340-44 Fulton Avenue in Hempstead, New York subject to other applicable sections of the Village Code not raised in this action.
D. The Cross-Motion to Dismiss
The defendants move to dismiss the complaint for lack of subject matter jurisdiction on the ground that the Village did not discriminate against the plaintiffs. In addition, the defendants request that the Court abstain from deciding the issues in this case before the state court makes its determination in an Article 78 proceeding. Viewing the complaint in the light most favorable to the plaintiffs, the Court finds that it has subject matter jurisdiction under 28 U.S.C. § 1331. Finally, there is no authority that requires the plaintiffs in this case to first bring a proceeding in state court before filing an action in federal court based upon federal law and the Constitution of the United States. Accordingly, the motion to dismiss the complaint is denied.
III. CONCLUSION
Based upon the foregoing, it is hereby
ORDERED, that the report and recommendation of Judge Wall is adopted in its entirety and the motion for a preliminary injunction is GRANTED; and it is further
ORDERED, that (1) the defendants are preliminarily enjoined from enforcing sections of the Village Code against the HCC to the extent that those sections prohibit clinics and substance abuse treatment centers from all zoning districts in the Village; and (2) the defendants must provide the HCC with a building permit and certificate of occupancy permitting the HCC to establish a clinic and substance abuse treatment center at 340-44 Fulton Avenue in Hempstead, New York subject to other applicable sections of the Village Code not raised in this action; and it is further
ORDERED, that the motion to dismiss the complaint is DENIED.
SO ORDERED