431 E. Palisade Ave. Real Estate, LLC v. City of Englewood
| Decision Date | 08 October 2020 |
| Docket Number | No. 19-3621,19-3621 |
| Citation | 977 F.3d 277 |
| Parties | 431 EAST PALISADE AVENUE REAL ESTATE, LLC; 7 North Woodland Street, LLC; John and Jane Does 1-10 v. CITY OF ENGLEWOOD; City Council of Englewood, Appellants |
| Court | U.S. Court of Appeals — Third Circuit |
Daniel Antonelli (Argued), Antonelli Kantor, 1000 Stuyvesant Avenue, Suite 1, Union, New Jersey 07083, Counsel for Appellants
Warren A. Usatine, Michael R. Yellin, Cole Schotz P.C., 25 Main Street, Court Plaza North, P.O. Box 800, Hackensack, New Jersey 07601, Roy T. Englert, Jr. (Argued), Lee T. Friedman, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, 2000 K St. N.W., 4th Floor, Washington, D.C. 20006, Counsel for Appellees
Before: JORDAN, RESTREPO, and FUENTES, Circuit Judges.
Developers 431 East Palisade Avenue Real Estate LLC and 7 North Woodland Street LLC (collectively, "Palisade") seek to build a 150-bed assisted living facility in a single-family residential district in the City of Englewood, New Jersey (the "City"). Palisade believes that the City's zoning ordinance discriminates on its face against individuals with disabilities by not permitting assisted living facilities as of right in the single-family district and by explicitly allowing them in only one district in the City. The District Court agreed and granted a preliminary injunction.1
We must decide whether the City's zoning ordinance, by failing to include "assisted living facilities" among its permitted uses in the single-family district, but explicitly allowing them in a different district, facially discriminates against the disabled in violation of the Fair Housing Amendments Act ("FHAA").2 We conclude that the City's zoning ordinance is not facially discriminatory.
Accordingly, the District Court erred in granting a preliminary injunction. We will therefore vacate and remand for further proceedings.
On a 4.96 acre parcel of land located partially in the City and partially in the Borough of Englewood Cliffs,3 Palisade, a developer, seeks to build a 150-bed for-profit assisted living facility, which would provide supportive services to memory care patients. The City opposes its construction. The residential district in question is a "one-family residence district,"4 zoned R-AAA, and is one of the City's twenty-four districts that allows residential living.
As the District Court observed of the City's zoning ordinance, "[t]here is no express language ... prohibiting or discriminating against either the elderly or the handicapped in any of [the City's] districts."5 Instead, the R-AAA district explicitly allows for only seven uses, the first of which is "one-family dwelling[s]."6 The City's zoning ordinance defines a "One-Family Dwelling" to be a "building designed for, or occupied exclusively by, one family and not designed or used as ... a group home or congregate living facility in which a person's continued occupancy is dependent upon the payment of a fixed rent or room charge."7
"Assisted living facilities" are not specifically defined under the City's zoning ordinance, but New Jersey's Administrative Code defines "assisted living" as "a coordinated array of supportive personal and health services, available 24 hours per day, to residents who have been assessed to need these services including persons who require nursing home level of care."8 That Code further defines an "[a]ssisted living residence" as "a facility which is licensed ... to provide apartment-style housing and congregate dining and to assure that assisted living services are available when needed, for four or more adult persons unrelated to the proprietor."9
According to the City's zoning ordinance, the single-family zone's purpose "is to preserve and protect the integrity of such districts for one-family residential purposes, to establish one-family residence districts that provide for a range of lot sizes, and to permit in such districts only such other uses as will be compatible with one-family residential use."10
The City zoning ordinance permits assisted living facilities to be constructed as of right only in a single district, the "Research, Industrial, Medical (RIM) District." Other permitted uses there include medical offices, rehabilitation centers, skilled nursing facilities, hotels, and apartment and condominium communities for senior citizens. Among the RIM zone's stated purposes is "to foster the development of medical and health care facilities that complement the existing medical and health care services located throughout the City."11 "Senior housing is permitted to complement future medical and health care services and to contribute to a sense of a health care village that offers care and living opportunities for older persons."12 Though the RIM zone "permit[s] land uses that reflect contemporary light industrial economies," the district is not solely industrial and "already encompasses several multifamily residential complexes."13
The City admits that the zoning ordinance requires a variance to build an assisted living facility of the type proposed by Palisade in any district besides the RIM zone, including the R-AAA zone, but the City also notes that New Jersey law privileges this development. For example, in seeking such a use variance, developers of group homes for individuals with disabilities (including assisted living facilities) in New Jersey face a reduced qualification standard, because such facilities are considered an "inherently beneficial use."14
Palisade has not submitted a formal application for a variance, having taken the position that such a step would be futile and that the variance application process is itself discriminatory. Instead, it engaged in various conversations with the City regarding its proposed development. In a letter dated January 14, 2019, Palisade requested that the City Council rezone the property. The City took no action toward rezoning.
On June 28, 2019, Palisade filed a complaint alleging violations of the FHAA, among other causes of action. By application for an order to show cause, Palisade sought a preliminary injunction barring the City from enforcing any provisions of the zoning ordinance against it.
Palisade advanced three general arguments: (1) that the ordinance discriminates against the disabled on its face (a disparate treatment claim); (2) that the City's enforcement of the ordinance has a disparate impact on the disabled; and (3) that the City failed to offer a reasonable accommodation.
The District Court granted the preliminary injunction, accepting Palisade's theory that the zoning ordinance was facially discriminatory.15 It acknowledged that "the City's zoning ordinances do not expressly state that assisted-living centers are prohibited from districts primarily designed as residential" and that "[t]here also is no language explicitly stating that assisted-living centers are limited to the RIM district, or providing that assisted-living centers are barred from being a permitted, or even conditional, use in any other district."16
Nevertheless, the District Court reasoned that, because the City's zoning ordinance explicitly names assisted living facilities in the RIM zone and expressly permits them only there, it effectively excludes them from the R-AAA zone. The District Court concluded that "the failure of the Code to employ such negative words as assisted-living centers are ‘prohibited,’ or ‘banned,’ or ‘forbidden’ from any other district other than the RIM district, as argued by Defendants, does not disguise the fact that assisted-living centers are not permitted uses in any district defined residential as its primary character."17 The District Court went on to determine that the exclusion of assisted living facilities from the R-AAA zone was intentional based on the City's stated desire to create a "health care village" in the RIM zone, and that such deliberate exclusion violated the FHAA by precluding the disabled from living in the residence of their choice.18
Concluding that Palisade had shown a likelihood of success on the merits of its facial disparate treatment claim, the District Court found the remaining factors favored granting injunctive relief. Though the District Court granted the preliminary injunction, with the practical effect that Palisade's "plans for developing the Property as a 150-bed assisted living center would be considered a permitted use in the residential zone," it suggested that Palisade would continue to be "subject to the remaining procedures of the City of Englewood's land-use process."19
The District Court concluded that, because the zoning ordinance treats assisted living facilities differently from single-family homes, by explicitly permitting them in the RIM zone and implicitly excluding them from all others, the zoning ordinance's different treatment and express use of the term "assisted living facility," constitutes facial discrimination in violation of the FHAA.
"We review the grant or denial of a preliminary injunction for ‘an abuse of discretion, an error of law, or a clear mistake in the consideration of proof.’ "21 Because we conclude that the zoning ordinance does not facially discriminate, Palisade is unlikely to succeed on the merits. The District Court accordingly erred in granting the preliminary injunction.
"The Fair Housing Act (‘FHA’), passed by Congress as Title VIII of the Civil Rights Act of 1968, prohibits housing discrimination on the basis of, inter alia, race, gender, and national origin"—and, following the adoption of the FHAA in 1988, individuals with disabilities.22 FHAA claims may "be brought against municipalities and land use authorities."23 Pursuant to the FHAA, it is unlawful:
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