Planned Parenthood v . Manchester, NH CV-01-064-M 04/27/01 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Planned Parenthood of Northern New England, and 24 Penacook Street, LLC, Plaintiffs
v. Civil N o . 01-64-M Opinion N o . 2001 DNH 083 City of Manchester, New Hampshire, Defendant
MEMORANDUM ORDER
Plaintiffs, Planned Parenthood of Northern New England
(“PPNNE”) and 24 Penacook Street, LLC (“Owner”), have sued the
City of Manchester, New Hampshire, and its Zoning Board of
Adjustment (“ZBA”), claiming that the ZBA’s action in revoking a
previously issued building permit was both arbitrary and
unreasonable. Moreover, plaintiffs say the ZBA’s action amounts
to intentional and purposeful discrimination against PPNNE (and
its patients) based upon its engagement in constitutionally
protected activities (e.g., facilitating a woman’s consideration
and acquisition of abortion services, contraception services, and
family planning services, as well as its general advocacy of
reproductive rights). Plaintiffs’ application for preliminary injunctive relief
was heard on April 2 0 , 2001.
Based upon the affidavits and materials filed, as well as
the representations of counsel during the course of the hearing,
the following pertinent facts were developed. The Owner obtained
a variance under the applicable city zoning ordinance which
allowed the building at issue (formerly used as an auto parts
store) to be used for “medical offices.” The city contends,
however, that it was under the impression, in granting the
variance, that the permitted “medical office” use would involve
two to three “general practitioners” and associated staff. It
further contends that a restriction to that effect is necessarily
implicit in the variance actually issued. (On its face, the
variance is not conditional.) After obtaining the variance, the
Owner entered into a lease with PPNNE for most of the building’s
space. PPNNE and the Owner also entered into an agreement to fit
the leased space for a medical office use.
Building plans were submitted to the Building Commissioner,
who, after reviewing the plans and insuring compliance with the
2 medical office use authorized by the variance, issued a building
permit. After obtaining the building permit, the Owner and PPNNE
made arrangements to finance and complete the necessary
construction work.
Several months later, in the fall of 2000, PPNNE publicly
announced its intent to occupy the building and provide medical
services to the residents of greater Manchester, including family
planning and, at some future date, abortion services. That
announcement provoked some public opposition to Planned
Parenthood’s use of the building, and various people sought
relief from the Zoning Board of Adjustment. By a divided vote,
the ZBA revoked the building permit on January 3 , 2001, after
hearing from interested parties and members of the public.
Plaintiffs then filed this suit seeking to remedy what they see
as an unconstitutional deprivation of federal rights under color
of state law.1
1 The defendants’ motions to dismiss or stay plaintiffs’ action under various abstention doctrines were orally denied at the April 20 hearing, though the court advised that it will likely not exercise supplemental jurisdiction over plaintiffs’ strictly state law zoning claims. See, e.g., 28 U.S.C. § 1367(c)(1) and ( 4 ) ; Raskiewicz v . Town of New Boston, 754 F.2d 3 8 , 44 (1st Cir. 1985). That issue, as well as requested intervenor status, will be addressed in a separate order. For
3 Discussion
The first point of significance is that the ZBA’s reasons
for revoking the building permit are unknown, because they are
undisclosed. The board made no findings of fact and provided no
explanation for revoking the permit, either orally on the record
(in the minutes), or by written decision.2 And, the city chose
not to put on any evidence of the ZBA’s reasoning during the
course of the April 20 hearing; no ZBA members testified as to
the actual reason or reasons for the decision. Instead, the city
now it is sufficient to note that no grounds exist warranting abstention and plaintiffs are entitled to proceed with their federal claims. See, e.g., Planned Parenthood League of Massachusetts v . Bellotti, 868 F.2d 459, 467 (1st Cir. 1989) (abstention improper where federal claims can be adjudicated without encroaching on principles of federalism and comity). 2 The city attorney suggests that under state law the ZBA is not required to make findings, provide rulings of law, or in any way explain its decisions, absent a request by a party. And, of course, strictly speaking the ZBA is not required to explain its decision here. However, it would seem exceedingly difficult for it to meet its burden of demonstrating that the building permit was revoked for legitimate (or at least constitutionally permissible) reasons, when it chooses to stand mute in the face of credible and supported allegations that the permit was revoked based upon the identity of the property’s lessee, PPNNE, its advocacy role with respect to abortion, contraception, and family planning services, and its intent to assist women in considering and obtaining such services. See, e.g., M t . Healthy City School Dist. Bd. of Educ. v . Doyle, 429 U.S. 274 (1977).
4 relied upon the administrative record in the case, that i s , the
minutes of the January 3 , 2001, ZBA meeting.
The next point of significance is (and the city agrees) that
the variance permitting the Owner to use the property in question
as a medical office remains in effect, unmodified. S o , even
accepting, for the moment, the city’s perception that the extant
and valid variance implicitly comes with restrictions – i.e.,
that the medical office use is limited to a “general medical
practice,” consisting of two to three physicians and associated
staff – it was conceded (candidly and necessarily) by the city’s
counsel that the refitting plans submitted by the Owner and PPNNE
to the Building Commissioner describe work that, when completed,
will be entirely consistent with the medical office use
authorized by the variance, as the city itself construes the
variance.
The city’s counsel also agreed, necessarily and correctly,
that the variance sought for the medical office use could not
have been lawfully or constitutionally denied based merely upon
the identity of the Owner’s tenant, Planned Parenthood of
5 Northern New England, nor on the basis that abortion services
would be provided as part of the “general practice” of medicine
on the site (whether by PPNNE or a “general practice physician”).
The minutes of the January 3 , 2000, ZBA meeting suggest some
confusion on the part of ZBA members as to the effect of
constitutional limits on their municipal authority – but it is by
now clear that personal opposition to abortion or personal
disapproval of Planned Parenthood’s activities cannot serve as a
lawful basis for denying a variance or making other zoning
decisions. See, e.g., Deerfield Medical Center v . City of
Deerfield Beach, 661 F.2d 328, 331 n.5 (5th Cir. 1981); Dailey v .
City of Lawton, Okl., 425 F.2d 1037, 1039 (10th Cir. 1970).
In determining whether to issue preliminary injunctive
relief, courts in this circuit are required to consider the
following factors:
1. whether plaintiffs are likely to succeed on the merits;
2. whether in the absence of injunctive relief plaintiff would suffer irreparable injury;
3. whether the balance of harms militates in favor of granting injunctive relief (that i s , whether withholding injunctive relief will cause more harm to
6 plaintiffs than granting injunctive relief will cause to defendants); and
4. whether the public interest lies in favor of granting or withholding injunctive relief under the circumstances.
See Planned Parenthood League of Massachusetts v . Bellotti, 641
F.2d 1006, 1009 (1st Cir. 1981).
I. Likelihood of Success on the Merits
Plaintiffs have met their burden of establishing likelihood
of success on the merits. That i s , they will likely be able to
prove at trial that the decision to revoke the previously issued
building permit was motivated by discriminatory animus toward
PPNNE, as lessee, based upon the nature of the constitutionality
protected activity in which they intend to engage (facilitating
consideration and acquisition of abortion, contraception, and
family planning services by their patients).
As noted, the ZBA chose to give no reasons for revoking the
permit at its meeting or since. Moreover, the record provides no
apparent valid reasons for the revocation. What is apparent from
the record is that significant numbers of people expressed
7 personal objection to Planned Parenthood’s location in the area
due to their general opposition to abortion, contraception, or
family planning activities. Just as it is clearly
constitutionally impermissible for the ZBA to premise its
decision upon board members’ personal, philosophical, moral,
religious, and/or political opposition to these protected
activities, acquiescence in public opposition of a like nature is
equally impermissible. See Deerfield Medical Center, 661 F.2d at
337; West Side Women’s Services, Inc. v . City of Cleveland, 573
F. Supp. 5 0 4 , 523 (N.D. Ohio 1983) (“A municipality has no
legitimate interest in shielding certain members of a community
from constitutionally-protected activities which they find
offensive on personal, moral, or even religious grounds.”); cf.
Dailey v . City of Lawton, 425 F.2d at 1039.
To be sure, no ZBA member affirmatively disclosed a
constitutionally impermissible basis for revoking the permit, but
“if proof of a civil right[s] violation depends on an open
statement by an official of an intent to discriminate, the
Fourteenth Amendment offers little solace to those seeking its
protection. [I]t is enough for the complaining parties to show
8 that the local officials are effectuating the discriminatory
designs of private individuals.” Dailey v . City of Lawton, 425
F.2d at 1039 (citations omitted); see Snowden v . Hughes, 321 U.S.
1 , 8 (1944) (intentional or purposeful discrimination may appear
on face of action taken with respect to particular class or
person).
It may be that the city will offer evidence at trial
suggesting that other, legitimate, reasons motivated the
revocation decision. See M t . Healthy City School Dist. Bd. of
Educ. v . Doyle, 429 U.S. 274 (1977). But, insufficient evidence
of a legitimate purpose was presented at the hearing on
plaintiffs’ application for preliminary relief. The only
arguably relevant evidence the city’s counsel could point to was
the minutes of the January 3 , 2000, ZBA meeting consisting of a
few vague questions and statements made by one or two board
members suggesting the city had been “misled” when it first
issued the variance. However, it is not clear what was meant by
those cryptic comments. If the issuing authority was “misled” as
to the identity of the prospective tenant who would be providing
medical services at the site, that identity would have been
9 irrelevant to any impartial decision to issue or deny a variance
for a medical use of the property. And, that the proposed tenant
intended to engage in constitutionally protected activities in
providing medical services — such as providing abortion and
contraception counseling and services — would have been equally
irrelevant.
If the “misrepresentation” alluded to by the ZBA involved
some potential but unidentified collateral impact of PPNNE’s
actual intended use of the property, then the record is at best
undeveloped. The board does not appear to have seriously
considered such factors, and certainly did not have any
substantive evidence regarding such factors before i t . Nor did
it make any findings (or at least disclosed no findings) with
respect to such issues.
Counsel for the city did gamely argue that the board members
probably meant (and implicitly “found”) that the nature of the
“medical practice” to be carried out at the site was
misrepresented and, consequently, the variance was procured by
misrepresentation, or even fraud — i.e., the variance was granted
10 based on the Owner’s agent’s representation that the building
would be used as a “general medical practice,” while the actual
intended use is significantly different because a medical
practice is not “general” if it focuses on gynecology and
obstetrics. Under that rationale, a “medical office” for
podiatrists, dermatologists, pediatricians, or any medical group
other than perhaps a general family practice, would probably be
equally violative of the implicit “general practice” limitation.3
The city’s argument is not very compelling, and is
substantially undermined by the fact that the board left the
variance intact when it revoked the building permit, which simply
authorizes construction conceded by the city to be entirely
consistent with a medical use allowed by the variance, even as
the ZBA itself construes the variance. It is additionally
instructive, perhaps even dispositive as to preliminary relief,
to note that the city’s Building Commissioner, who has obvious
professional expertise in the matter, testified forthrightly
before the ZBA that the building permit authorized construction
3 “General practice” is apparently nowhere defined in the zoning ordinance.
11 of facilities that were entirely consistent with the variance
permitting a medical use of the building.
Accordingly, at this stage, and on this record, the
conclusion is nearly inescapable that plaintiffs are likely to
prove at trial that the actual factor motivating the ZBA to
revoke the Owner’s building permit was not any legitimate zoning,
or unlitigated “intensity of use” concern, or any inconsistency
between the planned construction and the permissible use, but,
rather, was its antipathy for the abortion and contraception
services PPNNE will provide, o r , its acquiescence in the
expression of public antipathy for such constitutionally
protected activity. In either event, revocation of the permit
based upon such considerations operates to deprive the Owner and
PPNNE (and its patients) of their constitutionally protected
freedoms. See Deerfield Medical Center, 661 F.2d at 336; P.L.S.
Partners, Women’s Medical Center of Rhode Island, Inc. v . City of
Cranston, 696 F. Supp. 7 8 8 , 796-97 (D.R.I. 1988) (citing cases);
see also generally Family Planning Clinic, Inc. v . City of
Cleveland, 594 F. Supp. 1410 (N.D. Ohio 1984) (zoning ordinance
disallowing clinic operated primarily for abortions in residence-
12 office district unconstitutionally interfered with woman’s right
to seek and obtain abortion and did not survive constitutional
scrutiny); West Side Women’s Services, Inc. v . City of Cleveland,
573 F. Supp. 504 (N.D. Ohio 1983) (permitting medical offices,
but not abortion clinics, to operate in business district is not
sustainable). Such decisions, taken under color of state law,
are clearly unlawful and actionable. See 42 U.S.C. § 1983.
II. Irreparable Injury
The ZBA’s decision to revoke the building permit
significantly impacts upon plaintiffs’ fundamental and
constitutionally protected rights, and the burden imposed is more
than de minimus. By revoking the permit, the ZBA halted
construction of medical offices which are entirely consistent
with a currently authorized use of the building pursuant to the
existing variance – even as the city perceives and construes that
unquestionably results in irreparable injury to plaintiffs, as
well as PPNNE’s patients. By revoking the permit, the ZBA
13 significantly interrupted and delayed PPNNE’s patients’ ability
to consider and obtain family planning, contraceptive, and at
some point, abortion services, by delaying PPNNE’s (as yet)
legitimate occupancy of the building. Because the burden imposed
on plaintiffs’ fundamental rights is more than de minimus, strict
scrutiny applies. See Deerfield Medical Center, 661 F.2d at 335;
Family Planning Clinic, Inc., 594 F. Supp. at 1415.
That i s , to sustain its action the ZBA must demonstrate that
the infringement represented by the revocation of the building
permit is justified by a “compelling governmental interest,” and,
that the burden it has imposed is the least restrictive
alternative means of serving that compelling interest. See,
e.g., Deerfield Medical Center, 661 F.2d at 334. The ZBA has not
yet attempted to do so, and the injury to plaintiffs (if
defendants do not meet their very heavy burden at trial) is and
will continue to be irreparable. See generally Elrod v . Burns,
427 U.S. 3 4 7 , 373 (1976) (loss of First Amendment freedoms for
even minimal periods of time constitutes irreparable injury
justifying preliminary injunctive relief); P.L.S. Partners,
Women’s Medical Center of Rhode Island, Inc. v . City of Cranston,
14 696 F.Supp. 788 (official action having the potential to
frustrate or delay a woman’s abortion decision constitutes
irreparable injury); West Side Women’s Services, Inc. v . City of
Cleveland, 573 F.Supp. at 518 (“The question is not whether the
activity may be engaged in elsewhere, but whether it was
constitutional to restrict it in the manner chosen by
defendants.”)
A limited right to abortion i s , of course, a fundamental and
constitutionally protected right. Roe v . Wade, 410 U.S. 113
(1973). Every day PPNNE is prevented from occupying its new
facility increases the likelihood that abortion or contraception
or family planning patients will have to seek alternative care
either in hospital settings, at considerable expense, or by
traveling to other facilities. The ZBA’s act revoking the
building permit imposes a non-de minimus burden on plaintiffs’
constitutionally protected rights, because its official action
“ha[s] the potential to frustrate or delay a woman’s abortion
decision.” See P.L.S. Partners, Women’s Medical Center of Rhode
Island v . City of Cranston, 696 F. Supp. at 796; Planned
Parenthood of Rhode Island v . Board of Medical Review, 598
15 F.Supp. 625, 630 (D.R.I. 1984). That burden, alone, constitutes
“irreparable injury.” Elrod v . Burns, 427 U.S. at 373.
Absent injunctive relief, plaintiffs’ protected
constitutional rights would continue to be abridged and
plaintiffs (and their patients) will continue to suffer
irreparable injury.
III. Balancing of the Equities
In this case, balancing the harms likely to flow from
granting or withholding preliminary injunctive relief is an
exercise that militates strongly in favor of granting injunctive
relief. Allowing construction of medical offices on the proposed
site, according to the plans previously approved, will inflict no
harm at all upon the city. The city, by its own concession,
could have no reasonable objection to the Owner leasing the space
at issue to a “general medical practice” group consisting of two
to three physicians and associated staff. Since the refitting
plans are entirely consistent with that use, when the
construction is completed the building will be suitable for the
very use the ZBA says it intended.
16 S o , worst case, if the subject property is refitted to
accommodate a medical office use as permitted even under the
ZBA’s view, the Owner will be in a position to let the space as
medical offices, and its tenant(s) will be able to use the space
appropriately. Therefore, the city cannot possibly be harmed by
an injunction allowing plaintiffs to go forward with their
construction, as authorized by the Building Commissioner.
Whether the actual future use by PPNNE is or is not consistent
with the variance is a question entirely different from whether
the approved construction will cause any harm to the city if it
is completed.
On the other hand, absent injunctive relief, plaintiffs will
suffer a number of irreparable harms. First and foremost their
constitutionally protected rights will continue to be denied with
each passing day of unjustified delay. Secondly, the plaintiffs
have invested considerable sums of money in financing and
contracting for the refurbishment construction. While,
ordinarily, economic losses are recoverable in actions at law
(and therefore do not constitute irreparable injury), in this
case it is highly unlikely that any economic losses will be
17 recoverable as a practical matter. As the Owner’s counsel
persuasively argued, it is likely that individual Zoning Board of
Adjustment members would be immune from personal liability for
money damages, and the city is probably not amenable to a suit
for money damages, given the probable absence of a custom,
practice, or policy encouraging the deprivation of constitutional
rights by ZBA members. But see P.L.S. Partners, Women’s Medical
Center of Rhode Island, Inc. v . City of Cranston, 696 F. Supp. at
799. (municipal building inspector acting under color of state
law held liable for monetary damages under 42 U.S.C. § 1983 when
he required proposed outpatient abortion facility to obtain
special use permit to operate as hospital).
IV. The Public Interest
The public interest clearly militates in favor of issuing
injunctive relief in this case. The public interest never favors
governmental action that is arbitrary, unreasonable, and
motivated by personal animus toward groups or individuals based
upon their exercise of constitutionally protected freedoms.
Given that plaintiffs are likely to succeed on the merits in
establishing the constitutionally impermissible motive and
18 purpose driving the ZBA’s revocation of the previously issued
building permit, the public interest clearly lies in favor of
bringing the potential harm flowing from those likely
constitutional violations to an immediate and abrupt halt.
The city has articulated no public policy that would favor
the denial of injunctive relief in this case. As noted above, at
worst, issuing injunctive relief will permit the Owner and PPNNE
to fit out the building in a manner consistent with its use as a
medical office in a manner entirely consistent with even the
ZBA’s asserted version of what medical use is permissible.
Therefore, common sense militates in favor of preliminarily
alleviating the very real economic harm being inflicted upon
plaintiffs, ending the apparent threat to plaintiffs’
constitutional rights, and permitting construction to fit out the
building for medical office use at the earliest, and, therefore,
at the least costly, point. Plaintiffs have, of course, readily
acknowledged that the burden of loss in continuing to fund the
construction project is theirs, should their occupancy or use
later be denied or restricted for lawful and non-discriminatory
reasons.
19 Conclusion
Based upon the affidavits and materials submitted by all
parties (including the proposed intervenors), as well as the
arguments, proffers, and statements by counsel during the course
of the hearing on April 2 0 , 2001, the court finds that plaintiffs
are likely to succeed in proving that the ZBA acted
unconstitutionally when it revoked the building permit because it
did so based upon a discriminatory animus, intending thereby to
impose a significant obstacle in the path of the plaintiffs’
provision of abortion counseling and services, contraceptive
counseling and services, and family planning medical services.
Moreover, plaintiffs are likely to succeed in demonstrating that
no valid justification exists for the board’s action, no
compelling state interest is served by the ZBA’s revocation of
the building permit, and revocation of the building permit is
not, in any event, the least restrictive available alternative to
vindicate any legitimate state interest that may be at issue
here. The court also finds that plaintiffs are suffering and
will continue to suffer irreparable injury absent the issuance of
injunctive relief. The balance of equities lies in favor of
issuing preliminary injunctive relief, particularly in light of
20 the fact that the city will not be harmed in any way if the
construction is completed and the building is made useful for a
“medical office,” particularly given that the city concedes that
the construction, when completed, will indeed be consistent with
even its own view of an authorized “medical office” use.
Finally, the court finds that public policy militates strongly in
favor of granting preliminary injunctive relief, and that no
public policy considerations militate at all in favor of denying
injunctive relief in this case.
Accordingly, the City of Manchester, its Zoning Board of
Adjustment, their employees, agents, servants, attorneys, and
anyone acting for or in concert with them, are hereby preliminary
enjoined from:
1. revoking the building permit issued to the plaintiff Owner;
2. seeking to enforce any cease and desist order issued relative to construction carried out pursuant to the building permit previously issued to the Owner;
3. interfering with or frustrating completion of the construction project authorized by the previously issued building permit; and
21 4. taking any enforcement action whatsoever based upon or related to the ZBA’s revocation of the previously issue building permit.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 2 7 , 2001
cc: Lucy C . Hodder, Esq. Roger Evans, Esq. Robert E . Murphy, Jr., Esq. Daniel D. Muller, Jr., Esq. Stephen F. Queeney, Esq. Richard B . McNamara, Esq.