sufficient to support standing, it must be found in Subchapter II of the ADA.
Unlike the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a), and the FHA, 42 U.S.C. § 3610(a), which authorize any person claiming to be aggrieved by discrimination to file a complaint, Trafficante, 409 U.S. at 208-09, Subchapter II of the ADA confers rights upon a much more narrow class of persons: only the disabled. Both 42 U.S.C. § 12132, which confers a substantive right to be free from discrimination in the provision of public services, and 42 U.S.C. § 12133, the enforcement provision (which incorporates 29 U.S.C. § 794 by reference), are limited to "qualified individual(s) with a disability". Since Kessler, an entity that serves the disabled, does not fall within this definition, Subchapter II of the ADA confers no substantive rights upon it to provide a basis for standing. Consequently, Kessler's claim based upon the ADA is dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
A second constitutional standing requirement is that the personal injury must be "fairly traceable to the defendant's allegedly unlawful conduct". Allen, 468 U.S. at 751. Defendants do not seriously contest traceability.
In contrast to plaintiffs who lacked standing because they alleged indirect injury "resulting from the independent action of some third party not before the court," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976), Kessler has alleged direct injury as a result of the Defendants' enactment of the municipal ordinance and initiation of state condemnation proceedings.
Rather than contest traceability, Defendants argue that Kessler fails to meet the third constitutional standing requirement: the alleged personal injury must be "likely to be redressed by the requested relief". Allen, 468 U.S. at 751.
According to the Defendants, Kessler's alleged injuries will not be remedied by the requested damages and injunctive relief. Defendants contend that because Kessler's property is currently zoned for educational use, invalidating the municipal ordinance that authorized the condemnation action would not insure that Kessler's proposed facility will ultimately be built. Even if the property were not subject to the condemnation action, construction of the facility depends upon Kessler obtaining a zoning variance. Therefore, Defendants argue, Kessler's alleged injuries are not redressable. Thus, Defendants claim, Kessler lacks standing and its claims should be dismissed.
With respect to Kessler's request for relief in the form of damages, particularly those allegedly incurred as a result of delayed construction of the proposed facility, Defendants' objection does not really relate to redressability but to the merits of Kessler's equal protection and FHA claims. In fact, Kessler may be entitled to damages on these claims even if the proposed facility is never built. See e.g., 42 U.S.C. § 3604(f)(1)(b) (making it unlawful "to discriminate. . . or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of. . . a person residing in or intending to reside in that dwelling. . . after it is made available. . ") (emphasis added), 42 U.S.C. § 3602(b) ("'Dwelling' means any building. . . intended for occupancy, as residence. . . ") (emphasis added).
Regarding the injunctive relief requested by Kessler, the Court finds that invalidating the municipal ordinance authorizing the condemnation action is "substantially likely" to redress one of the harms allegedly inflicted by the Defendants: preventing Kessler's proposed facility from being built.
See Arlington Heights, 429 U.S. at 263.
Where detailed building plans for a low-income housing complex had been developed and submitted to support an application for a zoning variance, that was denied, the Supreme Court held that both the builder and a prospective tenant had standing to challenge the town's racially discriminatory zoning policies. Arlington Heights, 429 U.S. at 261-63. The Court held that the plaintiffs possessed standing even though ultimate construction of the complex depended upon receipt of the zoning variance as well as financing and other subsidies. Compare id. with Warth, 422 U.S. at 516 (home builders' association lacked standing where it failed to allege any specific project impacted by allegedly discriminatory zoning practices).
If Plaintiffs' allegation that Defendants' intent to discriminate against disabled persons was the sole motive behind the municipal ordinance is true, then there is a substantial likelihood that invalidating the ordinance will result in the proposed facility being built. Plaintiffs claim that the ordinance was enacted in order to thwart approval of an amendment to the Borough's zoning ordinance that would permit construction of the proposed facility. Furthermore, Plaintiffs contend that both the proposed amendment and Kessler's proposed facility had been approved by planning and legal experts as consistent with the Borough's master plan. Compl. PP 21, 27. If this Court strikes down the municipal ordinance because it was solely motivated by an intent to discriminate against the disabled, the zoning amendment will be acted upon by the Defendants Mayor and Council and is "substantially likely to be approved". See Arlington Heights, 429 U.S. at 263. As a result, Kessler has met the redressability requirement for standing.
d. Prudential Considerations
Kessler has sued in its own behalf and on behalf of its patients and employees. Defendants have objected that Kessler lacks standing to assert any claims on behalf of these third parties.
Having concluded that Kessler has standing to sue in its own right under the equal protection clauses of the state and federal constitutions as well as the FHA and NJLAD, the Court need not address the prudential prohibition against third party standing with respect to those claims. See Arlington Heights, 429 U.S. 252 at 263-64, 50 L. Ed. 2d 450, 97 S. Ct. 555. Similarly, the Court need not address whether Kessler has third party standing to sue under the ADA because for the reasons stated below, the Court concludes that Plaintiff, Heather Benney possesses standing to sue under the ADA in her own right. See id.
2. Sally Tannenbaum and Heather Benney
Defendants have not contested Salley Tannenbaum's standing, as Heather Benney's legal guardian, to bring claims on Ms. Benney's behalf. In addition, Heather Benney is named individually as a Plaintiff. Since Salley Tannenbaum and Heather Benney's claims are identical, for convenience, both Plaintiffs are collectively referred to as "Ms. Benney". Defendants' objections to Ms. Benney's standing focus once again on the injury in fact requirement.
Having discussed the three constitutional standing requirements as they apply to Kessler in detail, a more brief discussion of Ms. Benney's standing is warranted. The Court concludes that Heather Benney possesses standing to sue only with respect to those claims asserted under the FHA and the equal protection clauses of the federal and state constitutions.
As an injury capable of supporting Ms. Benney's standing, Plaintiffs allege that she is a former patient of Kessler's, who is disabled and "a candidate for housing in the transitional living center planned by Kessler for the Essex Fells property. . ." Compl. P 5. Defendants object that Ms. Benney's claimed injury is neither concrete nor imminent.
According to the Supreme Court, "assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Article III without draining those requirements of meaning." Allen, 468 U.S. at 754 (citations omitted).
In contrast, Ms. Benney has not rested upon "some abstract injury in nonobservance of the Constitution", Id. at 754 (citations omitted), but has alleged that the Defendants' actions have affected her in a particularized way, depriving her of the opportunity to obtain treatment and to reside at Kessler's proposed facility. See Arlington Heights, 429 U.S. 252, 263-64, 50 L. Ed. 2d 450, 97 S. Ct. 555. This alleged injury is sufficiently concrete for Ms. Benney to possess standing.
In addition, Defendants contend that Plaintiffs have not alleged sufficient facts to support a conclusion that Ms. Benney has more than a hypothetical interest in residing at Kessler's proposed facility. On a motion to dismiss, a court should "presume that general allegations embrace those specific facts that are necessary to support a claim" and to survive a motion for summary judgment. Defenders of Wildlife, 199 L. Ed. at 363-64. As a result, the Court finds that Plaintiffs' bare allegations of Ms. Benney's intentions demonstrate sufficient imminence to survive this motion to dismiss.
With respect to Ms. Benney's federal and state statutory claims, she has suffered injuries sufficient to confer standing under the FHA and NJLAD. Like Kessler, Ms. Benney, who has alleged her intent to reside in Kessler's proposed facility, is an aggrieved person within the meaning of the FHA and the NJLAD. See 42 U.S.C. § 3613(a)(1)(A), N.J.S.A. §§ 10:5-12.5(b), 10:5-13.
If Plaintiffs' allegations concerning the timing of Defendants' actions and their discriminatory motives are true, Ms. Benney's alleged injuries under the equal protection clauses of the state and federal constitutions, the FHA and the NJLAD are "fairly traceable to the challenged conduct and likely to be redressed by the requested [damages and injunctive] relief." See Allen, 468 U.S. at 757.
Regarding Ms. Benney's claims under the ADA, however, Plaintiffs have failed to allege sufficient facts to support Ms. Benney's standing to sue. As already discussed, Subchapter II of the ADA confers rights upon a "qualified individual with a disability", defined by § 12131 as follows:
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
While Defendants do not contest that Ms. Benney is in fact disabled, they object that she is not "qualified" because Plaintiffs have not alleged that she was denied any municipal services. Defendants are correct.
Although Plaintiffs blanketly assert in their briefs that they have been denied "municipal services", this allegation is not supported by their complaint. If Plaintiffs' allegations are taken as true, at best Plaintiffs have shown that Defendants refused to amend the Borough zoning ordinance in order to accommodate Kessler's proposed facility. A zoning amendment, however, is not a Public service, program, or activity. As a result, Ms. Benney lacks standing to assert a claim against Defendants under the ADA. Her claim under the ADA is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).
3. United Association for Handicapped Persons ["UAFHP"]
Defendants correctly object that UAFHP lacks standing to sue either in its own right or on behalf of its members.
In the complaint, a single paragraph makes reference to UAFHP, describing it as:
a non-profit corporation in the state of New Jersey, having offices at Passaic County Administration Building, 317 Pennsylvania Avenue, Paterson, New Jersey, which has as its principal purpose, the provision of services, including advocacy, information, referral and support for handicapped citizens in Passaic County and the State of New Jersey.
Compl. P 6.
For an organization to possess standing to sue in its own right, it must satisfy the traditional test by alleging "a personal stake in the outcome" of an otherwise justiciable controversy. Warth, 422 U.S. at 498. An organization does not possess standing simply because it has an ideological or abstract social interest that is adversely affected by the challenged action. Sierra Club v. Morton, 405 U.S. 727, 735, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). "An organization has standing [however,] to challenge conduct that impedes its ability to attract members, to raise revenues, or to fulfill its purposes". Chemerinsky, § 2.3.7 (citing Havens Realty, 455 U.S. at 479).
Based upon the allegations contained in Plaintiffs' complaint, UAFHP clearly lacks standing to pursue any claims in its own right. In contrast to the organizational plaintiff in Havens Realty, Plaintiffs have not alleged any injury to UAFHP, such as the need to divert funds in order to thwart Defendants' allegedly illegal conduct. See id. From the complaint, the Court can infer that UAFHP has an ideological interest in preventing disability-based discrimination; however, this purely ideological injury is insufficient to support UAFHP's standing to sue in its own right. See Sierra Club, 405 U.S. at 735.
Similarly, Plaintiffs have failed to allege sufficient facts to support a finding that UAFHP has standing to sue on behalf of its members. For an organization to have "representational standing", it must show that its "members would have standing to sue on their own". PIRG v. Powell Duffryn, 913 F.2d at 70. Plaintiffs have failed to identify a single individual member of UAFHP. As a result, the Court cannot conclude that any of UAFHP's members has suffered an injury sufficient to confer standing. Therefore, all of UAFHP's claims are dismissed under Federal Rule of Procedure 12(b)(1) for lack of standing.
4. Summary of Conclusions
In summary, the Court has concluded that Kessler possesses standing to assert claims under the equal protection clauses of the state and federal constitutions as well as the FHA and NJLAD. Heather Benney has standing to pursue all of those claims as well.
Kessler and Ms. Benney's claims under the ADA and all of UAFHP's claims are dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing.
In addition, Defendants move to dismiss Plaintiffs' claims on the ground that they are not yet ripe for review. Since the standing and ripeness doctrines are closely related, "they can [often] be confused or conflated". Presbytery of New Jersey of the Orthodox Presbyterian Church et al. v. Florio et al., 40 F.3d 1454, 1994 WL 638864, *5 (3d Cir. 1994) [hereinafter Presbytery of New Jersey]. One commentator has distinguished the two doctrines as follows: standing relates to "who is a proper party to litigate a particular matter, ripeness [doctrine] . . . determine[s] when that litigation may occur. Specifically . . . [it] seeks to separate matters that are premature for review because the injury is speculative and may never occur, from those cases that are appropriate for federal court action." Chemerinsky, § 2.4.
Similarly, the Supreme Court has indicated that the purpose of ripeness doctrine is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). Thus, the prototypical case not yet ripe for adjudication involves a plaintiff who seeks pre-enforcement review of a statute. See Chemerinsky, § 2.4.
As enunciated by the Supreme Court, the decision whether a claim is ripe is governed by two considerations: (1) "the hardship to the parties of withholding court consideration"; and "the fitness of issues for judicial decision". Abbott Laboratories, 387 U.S. at 149.
In arguing that this controversy is not ripe, Defendants essentially reiterate their claims that the Plaintiffs have not yet been injured. According to Defendants, Plaintiffs' claims will not be ripe for judicial review unless and until Kessler's property is actually condemned.
Defendants' argument evidences the substantial overlap between standing, particularly the injury in fact requirement, and ripeness. See Presbytery of New Jersey, 40 F.3d 1454, 1994 WL 638864, *5. Having discussed at length the economic, associational, and stigmatic injuries that have already been inflicted upon the Plaintiffs Kessler and Heather Benney by Defendants' enactment of the allegedly illegal municipal ordinance, the Court need not go into detail here. Any delay in judicial review would inflict substantial harm upon Kessler, by preventing it from generating profits, and Heather Benney, by depriving her of a desired treatment opportunity. See Abbott Laboratories, 387 U.S. at 149. While these injuries may become more severe if Kessler's property is ultimately condemned, these potentially aggravated damages will do nothing to crystallize Plaintiffs' claims for judicial review. See id. As the dispute between the parties currently stands, the Court is faced with "a real and substantial controversy admitting of specific relief. . . as distinguished from an opinion advising what the law would be on a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 81 L. Ed. 617, 57 S. Ct. 461 (1937).
In addition, Defendants move to dismiss on the grounds that even if Plaintiffs possess standing, this Court should abstain from exercising jurisdiction. Defendants contend that Plaintiffs' federal claims can be asserted and resolved in the condemnation action currently proceeding in New Jersey Superior Court.
"Abstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation District et al. v. United States, 424 U.S. 800, 813, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). The Supreme Court has characterized abstention as:
an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.