Assisted Living Associates v. Moorestown Tp.

Citation996 F.Supp. 409
Decision Date19 March 1998
Docket NumberNo. Civ.A. 97-4572.,Civ.A. 97-4572.
PartiesASSISTED LIVING ASSOCIATES OF MOORESTOWN, L.L.C., Laurel Construction Management, Inc., and John and Jane Doe, Plaintiffs, v. MOORESTOWN TOWNSHIP, Moorestown Township Zoning Board of Adjustment, and Moorestown Township Planning Board, Defendants.
CourtU.S. District Court — District of New Jersey

Steven C. Rother, A. Alberto Lugo, South Orange, NJ, for plaintiffs, Assisted Living Associates of Moorestown, L.L.C., Laurel Construction Management, Inc., and John and Jane Doe.

Robert S. Greenbaum, Peter A. Buchsbaum, Robert S. Goldsmith, Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, L.L.P., Woodbridge, NJ, for defendant, Moorestown Township.

Peter R. Thorndike, Ryan and Thorndike, Cherry Hill, NJ, for defendant, Moorestown Township Zoning Board of Adjustment.

Dennis P. Talty, Colin B. Scott, Dennis P. Talty, P.C., Moorestown, NJ, for defendant, Moorestown Township Planning Board.

OPINION

ORLOFSKY, District Judge.

This case requires the Court to resolve a conflict between local autonomy and federal power, specifically the conflict between a New Jersey municipality's power to zone and the federal power to eradicate discrimination against the handicapped. The developers of an innovative type of facility designed to care for the elderly and handicapped, known as "assisted living," have moved for a preliminary injunction under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., demanding a reasonable accommodation to allow the construction of an assisted living facility which they have proposed for the Township of Moorestown, New Jersey.

Plaintiffs' proposed land-use had been permissible under Moorestown's zoning law until the very moment when Plaintiffs had cleared other regulatory hurdles necessary to go forward with their project. At that point, in what can best be described as a "Catch-22," Moorestown passed a zoning ordinance which effectively "spot-zoned" Plaintiffs' proposed land use out of one chosen area of Moorestown and imposed special requirements on Plaintiffs. The timing of the passage of the ordinance, considered in combination with the minutes of subsequent Planning Board meetings, clearly reflect an intention to relegate the handicapped to the periphery of residential areas or "transitional" parts of Moorestown. In light of Plaintiffs' substantial, but ultimately unsuccessful efforts to locate alternative sites which might meet with Moorestown's approval, the reactions by the Township and the Planning Board to Plaintiffs' proposed project compel the conclusion that the Plaintiffs are likely to succeed in showing that the accommodation requested is necessary for the enjoyment of equal housing opportunities. Plaintiffs are also likely to succeed in showing that the requested accommodation is reasonable, particularly since the Township has clearly accommodated other developers when it was in the Township's financial and legal interest to do so. The Court will therefore grant the Plaintiffs' motion for a preliminary injunction and, accordingly, deny the motions of the Township, the Township's Zoning Board, and the Township's Planning Board to dismiss Plaintiffs' complaint and/or for summary judgment.

After careful review of the evidence presented by the parties during two days of hearings conducted on December 11 and 17, 1997, the affidavits, certifications, exhibits, briefs, and letters submitted by the parties and the applicable law, I make the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. Findings of Fact
A. The Parties and their Agents

1. Plaintiff, Assisted Living Associates of Moorestown, L.L.C. ("ALA"), is a limited liability company formed pursuant to the laws of Delaware and authorized to do business in New Jersey. Verified Complaint ¶ 5 (dated Sept. 4, 1997) (hereinafter Compl.).

2. Plaintiff, Laurel Construction Management, Inc. ("LCM"), is a New Jersey corporation, and is associated with ALA. Id. at ¶¶ 6, 10.

3. Plaintiffs, John and Jane Doe (the "Doe Plaintiffs"), are prospective residents at a facility to be constructed and managed by LCM and ALA. Id. at ¶¶ 7, 14.

4. Thomas H. Parkinson ("Parkinson") is the principal partner in ALA and the vice president of LCM. Certification of Thomas H. Parkinson ¶ 1 (dated Dec. 3, 1997) (hereinafter Parkinson 12/3/97 Certif.); Supplemental Certification of Thomas H. Parkinson ¶ 1 (dated Dec. 1, 1997) (hereinafter Parkinson 12/1/97 Certif.); Transcript 7-8 (dated Dec. 11 & 17, 1997) (hereinafter Trans.).

5. Defendant, Moorestown Township ("Moorestown" or the "Township"), is a municipal corporation with the power to zone pursuant to New Jersey's Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Compl. at ¶ 8; Answer of Defendant, Moorestown Township ¶ 8 (dated Nov. 21, 1997). The Township is located in Burlington County.

6. Moorestown has a population of approximately 16,000 people, of which approximately 17% are over the age of 65. See Certification of John J. Lynch, Exh. A at 2-3 (dated Nov. 20, 1997) (hereinafter Lynch Certif.). In 1970, approximately 11.5% of the population of Moorestown was over the age of 65. Id.

7. Defendant, Moorestown Township Zoning Board of Adjustment (the "Zoning Board"), is a municipal body created pursuant to N.J.S.A. 40:55D-69, with the powers set forth in N.J.S.A. 40:55D-70 et seq. See, e.g., Answer of Defendant, Moorestown Township Zoning Board of Adjustment ¶ 9 (dated Nov. 21, 1997).

8. Defendant, Moorestown Township Planning Board (the "Planning Board"), is a municipal body created pursuant to N.J.S.A. 40:55D-23 et seq., with the powers set forth in N.J.S.A. 40:55D-25 et seq. See, e.g., Answer of Defendant, Moorestown Township Planning Board ¶ 9 (dated Nov. 20, 1997).

9. Harry W. McVey ("McVey") is the Director of Community Development for the Township, Secretary to the Planning Board, and the Zoning Officer of the Township. Trans. at 150; Certification of Harry W. McVey ¶ 1 (dated Nov. 17, 1997) (hereinafter McVey Certif.). McVey exercises substantial influence in the planning and zoning of the Township. See, e.g., Trans. at 251, 273-74.

B. The Nature of Assisted Living and Assisted Living in Moorestown

10. On May 3, 1996, pursuant to N.J.S.A. 26:2H-1 et seq., the New Jersey Department of Health issued to LCM a certificate of need for the construction of an assisted living facility in Mount Laurel, Burlington County, New Jersey. 3 See Plaintiffs' Exh. 1 at 1; Trans. at 407.

11. The certificate of need authorizes LCM to construct an assisted living facility anywhere in Burlington County. See Trans. at 8, 59. In order to provide assisted living services, a facility must, in addition to a certificate of need, be licensed to provide those services. See, e.g., Trans. at 392, 400-01; N.J.A.C. 8:36-2.2; see also Plaintiffs' Exh. 9.

12. Assisted living is a relatively recent development in the provision of long-term care services to the elderly and handicapped. Essentially, the concept allows a facility to provide a range of services wider than those which may be provided by, for example, a nursing home. The fact that the facility is more flexible in the types of services which it offers allows a resident to age "in place" without constantly moving from facility to facility as a resident's condition evolves. Also, since an assisted living resident may not need as much care as, for example, a patient in a nursing home, an assisted living facility is designed to ensure that a resident maintains as much independence, autonomy, individuality, privacy, and dignity as possible. The most obvious and important way a resident achieves these goals is by living in an independent, apartment-like unit with a private bathroom and kitchenette, rather than in a hospital-like room. Because the services provided are more particularly tailored to an individual's needs, the quality of life is better than for patients in a nursing home. See generally Trans. at 393-403; N.J.A.C. 8:36-1.3 (noting that "assisted living promotes resident self direction and participation in decisions that emphasize independence, individuality, privacy, dignity, and homelike surroundings").

13. An assisted living facility may provide services which resemble the services someone might otherwise receive in a nursing home. See N.J.A.C. 8:36-4.1(b), (d); Trans. at 19, 396, 399.

14. A typical resident of an assisted living facility needs assistance with two or more basic daily activities, such as, toileting, bathing, or dressing, and is, on average, approximately 85 years old. See Trans. at 101, 397, 399-400; see generally N.J.A.C. 8:36-4.1(a-d).

15. There are no assisted living facilities currently operating in Moorestown. See, e.g., Plaintiffs' Exh. 32.

16. In approximately August, 1997, the Zoning Board approved the application of Brandywine Senior Care, Inc. ("Brandy-wine") for the eventual construction of an assisted living facility with a capacity of approximately 100 residents on a site located at the intersection of Church Street and New Albany Road in Moorestown. See Defendants' Exh. 7-8; Trans. at 106, 197-98, 272, 278.

C. ALA before the Planning and Zoning Boards

17. Sometime in mid-1996, LCM purchased a 14.75-acre parcel of land, Block 7100, Lot 1 ("Lot 1"), located approximately at the intersection, and immediately to the south and east, respectively, of Garwood Road and Westfield Road in Moorestown for approximately $435,000. Plaintiffs' Exh. 3-4.

18. Approximately 11.2 acres of Lot 1 are encumbered by a conservation easement granted in favor of the Township which prohibits, inter alia, various actions which are inconsistent with agricultural and equestrian uses. See Plaintiffs' Exh. 3; McVey Certif. at ¶ 12 & Exh. E. The remaining approximately 3.55 acres of Lot 1...

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