MEMORANDUM OPINION

DEBORAH CHASANOW, District Judge

Presently pending and ready for resolution in this civil rights case are 1) Defendants' motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 or, in the alternative, for a new trial pursuant to Fed.R.Civ.P. 59, and 2) Plaintiffs' motion for declaratory and injunctive relief. The issues have been fully briefed and a hearing was held. For reasons that follow, the court shall deny Defendants' motion and grant in part Plaintiffs' motion.

I. Background

On December 20, 2001, the court entered a judgment upon a jury verdict in favor of Plaintiffs Pathways Psychosocial Support Center, Inc. ("Pathways") and Clarissa Edwards against Defendants the Town of Leonardtown and Daniel Muchow for violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12-132, et seq., and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The jury found that Pathways' use fit within the permitted uses of the Commercial-General ("C-G") zone in Leonardtown and that Leonardtown intentionally discriminated against Plaintiffs in violation of the ADA and § 1983 by 1) the Town Council's rescission of Pathways' loan endorsement, 2) the decision of the Town Administrator to refer the question of Pathways' occupancy permit to Leonardtown's Planning and Zoning Commission, and 3) the Commission's refusal to issue an occupancy permit. In addition, the jury found that Defendant Muchow discriminated against Plaintiffs in violation of § 1983 because of his role in the rescission of Pathways' endorsement. The jury granted $540,916 in compensatory economic damages to Pathways against Leonardtown, $20,000 in compensatory non-economic damages to Edwards against Leonardtown, nominal compensatory damages to both Plaintiffs against Muchow, $5000 in punitive damages to Pathways against Muchow, and $15,000 in punitive damages to Edwards against Muchow.

At the close of Plaintiffs' evidence at trial, Defendants moved for judgment as a matter of law on several grounds and the court reserved its decision. At the close of all evidence, Defendants again moved for judgment as a matter of law on the grounds previously asserted and on additional grounds relating to the jury instructions and verdict sheet. Within ten days of the court's order entering judgment on the jury verdict, Defendants filed a motion for judgment as a matter of law pursuant to Rule 50 or, in the alternative, for a new trial pursuant to Rule 59. In addition, Plaintiffs filed a motion for declaratory and permanent injunctive relief. Based on the jury verdict, Plaintiffs request that the court 1) declare that Pathways is a permitted use in Leonardtown's C-G zone, and 2) enjoin Leonardtown from denying Pathways an occupancy permit for a building located in the C-G zone or from taking any other action to interfere with Pathways' relocation to downtown Leonardtown for two years.

II. Rule 50 and Rule 59 Motions

A. Standards of Review 1. Rule 50

"Under Rule 50, a court should render judgment as a matter of law when `a party has been fully heard on an issue and there is no legally sufficient basis for a reasonable jury to find for that party on that issue.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Fed.R.Civ.P. 50(a). "In ruling on a motion for judgment as a matter of law, the trial court should consider the record as a whole viewing the evidence presented in the light most favorable to the party against whom the motion is made." Bostron v. Apfel, 104 F.Supp.2d 548, 551 (D.Md. 2000), citing Marder v. G.D. Searle Co., 630 F.Supp. 1087, 1088 (D.Md. 1986), aff'd without op. sub nom., Wheelahan v. G.D. Searle Co., 814 F.2d 655, 1987 WL 267679 (4th Cir. 1987). The court must draw all reasonable inferences in the non-movant's favor without weighing the evidence or assessing the witness' credibility. Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001), citing Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998). "The question is whether a jury, viewing the evidence in the light most favorable to [Plaintiffs], could have properly reached the conclusion reached by this jury." Benesh v. Amphenol Corp. (In re Wildwood Litigation), 52 F.3d 499, 502 (4th Cir. 1995). The court must grant the motion if a reasonable jury could only rule in favor of the party making the motion; if reasonable minds could differ, the court must deny it. Baynard, 268 F.3d at 235, citing Sales, 158 F.3d at 775; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining that judgment as a matter of law is proper if "there can be but one reasonable conclusion as to the verdict").

2. Rule 59

A motion for a new trial under Rule 59 may be joined with a renewed motion for judgment as a matter of law under Rule 50(b). In a motion for a new trial under Rule 59, a district court must:

set aside the verdict and grant a new trial if . . . (1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.

B. Analysis

Defendants allege multiple grounds for granting judgment in their favor or a new trial. These grounds fall into three groups: (1) alleged errors instructing the jury, (2) challenges to determinations made earlier by the court on summary judgment, and (3) a challenge to the jury's compensatory damage awards as against the weight of evidence.

1. Allegedly improper instructions

a. No timely objection

The court cannot consider Defendants' objections to two jury instructions because Defendants failed to object before submission to the jury. Defendants contend that it was an error to give to the jury the factual determination of whether Pathways fit into Leonardtown's C-G zone. The court owed deference, they argue, to the zoning body's factual determination and should merely have determined as a matter of law whether the zoning board's decision was based upon substantial evidence in the record. In addition, Defendants contend that the court erred in submitting to the jury separate questions about punitive damages as to Pathways and to Plaintiff Edwards because inviting the jury to make separate punitive damages awards for each Plaintiff increased the risk that the jury would increase the amount of total punitive damages.

Defendants, however, never objected to either instruction prior to its submission to the jury and so waived the right to object. AG Systems. Inc. v. United Decorative Plastics Corp., 55 F.3d 970, 973 (4th Cir. 1995); see also Metromedia Co. v. Fugazy, 753 F.Supp. 93, 98 (S.D.N.Y. 1990), aff'd 983 F.2d 350 (1992) ("The court will not grant a new trial on the basis of an erroneous jury charge when a party might have obtained the correct jury charge by specifically bringing the matter to the attention of the court at the proper time."), citing Fed.R.Civ.P. 51 ; Palmer v. Hoffman, 318 U.S. 109, 119-120, 63 S.Ct. 477, 87 L.Ed. 645 (1943). While Defendants argue that they "in essence objected" to the instruction regarding deference to the zoning board's factual findings, they could not recall a specific objection to the instruction when called upon to do so in open court nor did they point to one in their papers. Moreover, on a Rule 59 motion, the court can set aside the verdict and grant a new trial only if the erroneous instruction is prejudicial and would result in a "miscarriage of justice." Fed.R.Civ.P. 59; see also Vameyk, 994 F.Supp. at 358 (no new trial unless prejudicial error); Johnson Towers, 824 F.Supp. at 566. Neither of the jury instructions to which Defendants have objected are so obviously erroneous so as to result in a miscarriage of justice and Defendants failed to object at the proper time. Accordingly, neither alleged error can be a ground for granting judgment or a new trial.

b. Section 1983 claims not preempted by ADA

Defendants contend that the equal protection claims brought under § 1983 against Muchow and Leonardtown should not have been submitted to the jury as those claims were preempted by the ADA. Defendants argue that 1) because the specific and comprehensive provisions of the ADA do not permit individual liability, it is unfair to allow claims against Muchow, an individual, under § 1983 premised upon the same actions, and 2) permitting the equal protection claims against the Town to go forward was duplicative and confusing to the jury.

Congress may foreclose a remedy under § 1983 expressly in a statute or impliedly by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983. See Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (Title IV-D did not impliedly foreclose § 1983 claims because it did not provide a private remedy); Brown v. General Servs. Admin., 425 U.S. 820, 833, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Title VII foreclosed remedy under § 1983 for federal employees in employment discrimination cases because Title VII remedies sufficient); Zombro v. Baltimore City Police Dep't, 868 F.2d 1364 (4th Cir. 1989), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989) (ADEA exclusive remedy to prohibit age discrimination). Defendant relies heavily on Alsbrook v. City of Maumelle, 184 F.3d 999, 1011-1012 (8th Cir. 1999) (en banc), cert. granted in part, 528 U.S. 1146, 120 S.Ct. 1003, 145 L.Ed.2d 947, cert. dismissed, 529 U.S. 1001, 120 S.Ct. 1265, 146 L.Ed.2d 215 (2000), in which the Court of Appeals for the Eighth Circuit held that the ADA's detailed enforcement scheme barred a plaintiff from maintaining a § 1983 action against commissioners in their individual capacities for violations of the ADA: "[a]llowing a plaintiff to bring a section 1983 claim based on violations of Title II against a defendant who could not be sued directly under Title II would enlarge the relief available for violations of Title II." However, the preemption doctrine in Alsbrook forecloses § 1983 claims for violations of the ADA rather than, as here, claims for the deprivation of constitutional rights.

In the context of Title VII, courts draw a distinction between § 1983 claims predicated on statutory rights for which Title VII is the exclusive remedy and those predicated on constitutional rights. In Causey v. Balog, 929 F.Supp. 900, 913 (D.Md. 1996), aff'd, 162 F.3d 795 (4th Cir. 1998), citing Beardsley v. Webb, 30 F.3d 524, 527 (4th Cir. 1994), the court held:

Although the Fourth Circuit has not yet had the occasion to do so, other circuits have taken the obvious step of applying [Great American Federal Savings Loan Assoc. v.] Novotny [, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979)] to hold that a plaintiff cannot assert violations of Title VII through § 1983. [(citing cases)]

It is equally clear, however, that Title VII does not preclude the assertion of § 1983 claims based on other statutory and constitutional provisions. In other words, although a plaintiff cannot directly circumvent Title VII's remedial scheme by predicating a § 1983 action on the rights created by Title VII, courts consistently have held that Congress did not intend by creating Title VII to preclude preexisting avenues of redress for employment discrimination, such as § 1983 suits for Fourteenth Amendment violations.

While Causey and Morrow deal with Title VII preemption, "[b]ecause the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose — the prohibition of illegal discrimination in employment — courts have routinely used Title VII precedent in ADA cases." Fox v. General Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001) (citing cases). In Baumgardner v. County of Cook, 108 F.Supp.2d 1041, 1043 (N.D.Ill. 2000), after an extensive review of the history and interpretation of the ADA, the court drew the same distinction between preemption of statutory and constitutional rights in the context of the ADA: "[b]ased on the express language of the [ADA] and the subsequent interpretations thereof, Congress did not intend for the ADA to foreclose private claims alleging constitutional violations brought under 42 U.S.C. § 1983." Accordingly, Plaintiffs' equal protection claims brought under § 1983 are not preempted by the ADA even though based on the same facts and circumstances as the ADA claims.

c. Failure to give mitigation instruction

Defendants contend that the court erred in failing to instruct the jury regarding the purported duty of Plaintiffs to mitigate damages. According to Defendants, Plaintiffs' economic damages resulting from their failure to move to the Court Square or McCrone buildings could have been mitigated by requesting a zoning text amendment, a special exception use, or by appealing the board's decision. Generally:

Where one person has committed a tort, breach of contract, or other legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damages which could thus have been avoided.

However, Plaintiffs contend, correctly, that Defendants presented no evidence at trial either that Plaintiffs failed to mitigate damages or that alternative properties were available which Plaintiffs failed to pursue. Additionally, Plaintiffs argue that their failure to request a zoning text amendment or special exception use, or to appeal the decision, is not proper evidence of a failure to mitigate damages because such attempts would have been futile given that Plaintiffs would have been petitioning the same groups which discriminated against them in the first place. In the employment context, plaintiffs do not have to pursue employment with a firm after being rejected based on discrimination if they justifiably believe that it would be futile. EEOC v. Service News Co., 898 F.2d 958, 963 (4th Cir. 1990); see also Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986) (plaintiff not required to accept job offer when plaintiff would be walking back into hostile work environment). Like the plaintiff in Service News, 898 F.2d at 963-964, Plaintiffs' belief in the futility of their further efforts to appeal the zoning decision was "rooted in the factual context of [their] rejection." Accordingly, in light of the lack of evidence tending to demonstrate Plaintiffs' failure to mitigate and the existence of evidence which supports their contention that further appeals would be futile, it was not error for the court to deny Defendants' mitigation of damages instruction.

d. Failure to give First Amendment instruction

Defendants argue that the court erred by failing to instruct the jury that Muchow, as a citizen, was entitled by the First Amendment to engage in political speech and to petition the government. Defendants contend that Muchow's vote as Council member, and his other activities against the endorsement, are actions protected by the First Amendment. Further, without the free speech instruction, Defendants argue that there was a danger that the jury considered as a basis for liability Muchow's protected actions of petitioning and speaking, which he did not forfeit as a public official.