It will not fundamentally alter the borough zoning scheme, nor will it adversely impact neighboring property owners.
34. The SRO residence will generate far less traffic and far fewer parking problems than would a commercial use such as a shop, a motel or a restaurant.
35. Without such facilities and the opportunity they offer for shelter residents to make a gradual transition from communal-type living to private housing, such individuals frequently have extreme difficulty making the transition successfully and not infrequently again become homeless or revert to their former problems.
36. The motel property is uniquely suited to UCM's requirements. Its current configuration lends itself to conversion into an SRO residence more readily than would a single family dwelling or other similar structure and will require fewer structural modifications.
37. Of the properties which Reverend Boley was shown by the realtor, the motel was the one best suited to UCM's needs.
38. Defendants have not demonstrated the availability of any other properties within UCM's service area, i.e. Tioga County, suitable for the proposed SRO residence without the need for substantial structural alterations.
39. If granted zoning approval, UCM would renovate the buildings currently on the premises to accommodate 15 single room occupancy units, each with a private bath. The garage would be converted into an activity center. All occupants would share kitchen facilities.
40. The proposed SRO facility would be staffed around-the-clock with a supervisor or counselor available to the occupants at all times for counseling or assistance.
41. UCM's objective in operating the shelter would be to provide disadvantaged persons with a facility where they can, with assistance, learn to cope with their problems and acquire the skills necessary to live productively on their own.
42. The facility would serve as an interim step between short-term "emergency" type shelters, where stays are typically limited to days or weeks and privacy is at a premium, and independent living in private housing.
43. Such a facility and the services and assistance it would offer are needed by most individuals in plaintiffs' situations to successfully make the transition from homelessness compounded by drug or alcohol addiction or mental or physical disability, to living independently in private housing. Providing such individuals with a measure of independence helps them to develop a sense of responsibility and self-esteem, important milestones on the road to a fully independent life.
To establish standing plaintiffs must show they: 1) suffered an "injury in fact" that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; 2) that the injury is fairly traceable to the challenged action; and 3) it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) and Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 691 (E.D.Pa. 1992). Both plaintiffs have satisfied this test.
UCM is not a named plaintiff to this action but would also have standing to challenge the refusal to grant a variance or waive the variance requirement as an FHAA violation. Federal courts have held that a person who is not himself handicapped, but who is prevented from providing housing for handicapped persons by a municipality's discriminatory acts, has standing to sue under the FHAA. See, e.g., Baxter v. Belleville, 720 F. Supp. 720, 730-31 (S.D.Ill. 1989) and Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982) (FHA Case) and Gladstone, Realtors v. Bellwood, 441 U.S. 91, 103 n. 9, 109, 99 S. Ct. 1601, 1609 n. 9, 1612, 60 L. Ed. 2d 66 (1979) (community was affected by alleged racial steering).
Standards for preliminary injunctive relief
As the party seeking preliminary injunctive relief, the plaintiffs bear the burden of proof. In deciding whether an injunction should issue, the court must carefully weigh four factors: 1) whether the movant has demonstrated a reasonable probability of success on the merits; 2) whether the movant will suffer irreparable injury if the injunction does not issue; 3) whether granting the injunction will result in even greater harm to the nonmoving party; and 4) whether granting the injunction serves the public interest. Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994).
Irreparable harm and likelihood of success on the merits are essential elements. Absent a showing of either one, the petitioner is not entitled to injunctive relief. To prove irreparable harm, the petitioner must show that the harm threatened by the defendant's conduct cannot be compensated by money damages. If the threatened harm is compensable with monetary damages, the petitioner has not demonstrated irreparable harm and is not entitled to a preliminary injunction. Frank's GMC Truck Center, Inc. v. G.M.C., 847 F.2d 100, 102-03 (3d Cir. 1988).
Likelihood of success on the merits
To establish a likelihood of success on the merits, plaintiffs must demonstrate that the Zoning Hearing Board's denial of UCM's request for a variance violates the FHAA, as alleged.
The Fair Housing Act (FHA) enacted by Congress in 1968, 42 U.S.C. § 3601-3631, makes it illegal to discriminate on the basis of race or national origin in housing practices and grants "aggrieved persons" the right to challenge such practices in federal court. 42 U.S.C. § 3613(a). Injunctive relief is among the remedies available to such persons. 42 U.S.C. § 3613(c).
The FHA defines an "aggrieved person" to include any person who-- "1) claims to have been injured by a discriminatory housing practice; or 2) believes that such person will be injured by a discriminatory housing practice that is about to occur. 42 U.S.C. § 3602(i).
With the enactment of the Fair Housing Amendments Act (FHAA) in 1988, Congress amended the FHA to expand its antidiscrimination protections to include the handicapped. The FHAA defines a "handicap" as:
1) a physical or mental impairment which substantially limits one or more of such person's major life activities,