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 .

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.,

(c)(1) and ( 4 ) ; Raskiewicz v . Town of New Boston,

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,

(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,

(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,

, 331 n.5 (5th Cir. 1981); Dailey v .

City of Lawton, Okl.,

(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,

(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,

; West Side Women’s Services, Inc. v . City of Cleveland,

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,

.

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,

(citations omitted); see Snowden v . Hughes,

, 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,

(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,

; P.L.S.

Partners, Women’s Medical Center of Rhode Island, Inc. v . City of

Cranston,

8 8 , 796-97 (D.R.I. 1988) (citing cases);

see also generally Family Planning Clinic, Inc. v . City of

Cleveland,

(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,

(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

.

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

variance.

The ZBA’s decision to revoke the building permit

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,

;

Family Planning Clinic, Inc.,

.

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,

. 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,

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

(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,

(“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,

(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,

; Planned

Parenthood of Rhode Island v . Board of Medical Review, 598

(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,

. (municipal building inspector acting under color of state

law held liable for monetary damages under

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.

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