At 1 p.m. on Monday, March 16, lawyers for Michael Daly's Four Corners Development marched into three offices of the Town of North Hempstead and served them with a legal complaint from the US District Court in the Eastern District of New York. The complaint requested an injunction to prevent the town from preventing Mr. Daly from building an ALR on lower Main Street. The complaint charges the town with discrimination against the elderly for denying his company permission to build the assisted living residence (ALR) at that location. Mr. Daly claims to have tried to work out a compromise with the Town Supervisor as recently as last week, but she refused. A hearing may take place as soon as April 1, 2, or 3.
When news of a lawsuit was announced in Newsday's Thursday, March 12 edition, a formal lawsuit hadn't actually been levied yet. Michael Miller, press liaison for the Town of North Hempstead, commented then that the Town hadn't received any legal papers and that an injunction, which was threatened in the news article, is very difficult to obtain. He also said that such suits often never develop beyond a threat. Because of the potential legal action, however, lawyers for the Town and members of the Board of Zoning Appeals (BZA) were instructed to not comment.
In a telephone interview late Monday afternoon, however, Michael Daly confirmed that the lawsuit was more than just a threat. Mr. Daly is president and principal owner of Four Corners Development, Inc., a subsidiary of the Cleveland-based, national real estate company, Forest City Enterprises. Daly said that court papers, charging discrimination against the elderly, were served on the Town of North Hempstead, the Board of Zoning Appeals, and the Town's Building Inspector. He said the legal brief accuses the three government bodies of violating the federal Fair Housing Act (FHA), the American Disabilities Act (ADA), and the Rehabilitation Act (RA).
All three claims are based on three suppositions: 1) If a person needs assistance in any major life activity; for example, eating or dressing, then the person should be considered handicapped. Senior citizens who would be living in an ALR would need assistance in one of these activities; therefore they are handicapped and merit the benefits of laws protecting the handicapped. 2) The FHA and ADA require municipalities to make reasonable accommodations for the handicapped. 3) The burden of proof lies on the municipality. Thus, Daly's lawyers claim that the Town has to prove that it has made reasonable accommodations for the elderly needing assistance; Daly doesn't have to prove that the Town has not.
Although the Town had not yet been served with legal papers, Town Supervisor May Newburger issued the following statement last Thursday in response to the threat of a lawsuit : "Although we cannot comment directly on this particular legal action, there are over 400 planned senior assisted living units in North Hempstead because of steps taken by the town government over the past four years. Our town government's encouragement of assisted living facilities in this town is a part of the public record, including two sales of town land to assisted living developers in the past year. She emphasized, "The town is committed to upholding and enforcing the decision of the Board of Zoning Appeals."
Mr. Daly claimed late Monday that none of the town's housing for the elderly includes ALR facilities, but this paper had to go to press before giving Ms. Newburger the opportunity to rebut Daly's statement. Mr. Daly also accused the Town's attorneys of making factual errors in its February 1998 "Findings of Fact," which explained the Board of Zoning Appeals reasons for denying the original ALR application.
Mr. Daly said that he is disappointed that he had to resort to legal action, but he hopes the merits of his case will be recognized. He said that a court hearing could be as soon as April 1, 2 or 3. Although Daly had a Long Island law firm argue his case before the BZA, he has hired Michael Cryan of the DC/Manhattan firm, Arent Fox Kintner Plotkin & Kahn, to supervise the lawsuit. This firm specializes in federal litigation and representing the elderly.
When asked if he'd consider building a nursing home, which would be permissible under existing zoning ordinances for the lower Main Street property, Mr. Daly replied no, that he's only in the assisted living business.
Daly said that he likewise hadn't considered trying to develop 41 acres of unoccupied Port North property. His summation comment was, "We believe our (lower Man Street) site is still the most appropriate for our clients, and these people have the right to sit in the park and look at the water."