Township of West Orange v. Whitman

• Decision Date: 29 April 1998
• Docket Number: Civil Action No. 98-1070.
• Citation: 8 F.Supp.2d 408
• Parties: TOWNSHIP OF WEST ORANGE; Lauren Massader, Individually and on Behalf of Her Infant Child, Zachary Massader; Katherine Howland; and Elizabeth Shelley, Plaintiffs, v. Christine Todd WHITMAN, Governor of the State of New Jersey; Peter G. Verniero, Attorney General of the State of New Jersey; William Waldman, Commissioner of the Department of Human Services of the State of New Jersey; Alan Kaufman, Director of the Division of Mental Health Services of the Department of Human Services of the State of New Jersey; U.S. Department of Housing and Urban Development; and Project Live, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

8 F.Supp.2d 408

TOWNSHIP OF WEST ORANGE; Lauren Massader, Individually and on Behalf of Her Infant Child, Zachary Massader; Katherine Howland; and Elizabeth Shelley, Plaintiffs, v. Christine Todd WHITMAN, Governor of the State of New Jersey; Peter G. Verniero, Attorney General of the State of New Jersey; William Waldman, Commissioner of the Department of Human Services of the State of New Jersey; Alan Kaufman, Director of the Division of Mental Health Services of the Department of Human Services of the State of New Jersey; U.S. Department of Housing and Urban Development; and Project Live, Inc., Defendants.

Civil Action No. 98-1070.

United States District Court, D. New Jersey.

April 29, 1998.

COPYRIGHT MATERIAL OMITTED

Alpert & Levy, Clark E. Alpert, West Orange, NJ, for Township of West Orange, Lauren Massader, Katherine Howland, Elizabeth Shelley.

Peter Verniero, Atty. Gen. of New Jersey, by Judith A. Nason, Deputy Atty. Gen., Trenton, NJ, for State Defendants.

Faith S. Hochberg, U.S. Atty., by Susan C. Cassell, Deputy Chief, Civil Div., Newark, NJ, for Dept. of Housing and Urban Development.

Jeffrey R. Kuschner, Montclair, NJ, for Project Live, Inc. New Jersey Protection and Advocacy, Inc., Sarah W. Mitchell, Executive Director by Deborah Ann Wean, Managing Attorney, Trenton, NJ, for Current and Potential Residents and New Jersey Protection and Advocacy, Inc.

Hausman and Sunberg, by Kenneth M. Sunberg, Caldwell, NJ, for St. Cloud Civic Association.

OPINION

BISSELL, District Judge.

This matter comes before the Court on Plaintiffs' motion for a preliminary injunction and on cross-motions to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) by Defendants Whitman, Verniero, Waldman, and Kaufman ("the State Defendants"), by Defendant-Intervenors New Jersey Protection & Advocacy, Inc. ("NJP & A") and Residents and Prospective Residents of Project Live Community Residences in West Orange, who seek, in the alternative, summary judgment, and by the U.S. Department of Housing and Urban Development ("HUD"), which also seeks dismissal under Fed.R.Civ.P. 12(b)(1). Defendant Project Live joins in the other Defendants' and Defendant-Intervenors' motions to dismiss. Plaintiff-Intervenor the St. Cloud Civic Association joins in Plaintiffs' briefs in support of the preliminary injunction and in opposition to the motions to dismiss.

Plaintiff filed the Complaint in this action on March 13, 1998. It contains counts titled: "42 U.S.C. § 1983—Declaratory Judgment and Injunctive Relief—Procedural Due Process" (Count I), "42 U.S.C. § 1983—Declaratory Judgment and Injunctive Relief Substantive Due Process" (Count II), "Declaratory Judgment and Injunctive Relief— Arbitrary and Capricious Nature of Siting" (Count III), "Declaratory Relief— § 66.1 Void" (Count IV), "Declaratory Judgment— Federal Fair Housing Act" (Count V), "Ultrahazardous Use Without Due Safeguards —Project Live" (Count VI), and "Declaratory Judgment—First Amendment" (Count VII).

On March 18, 1998, the Court denied Plaintiffs' application for temporary restraints and issued an order to show cause why a preliminary injunction should not be entered. The Court granted motions to intervene by Plaintiff-Intervenor and Defendant-Intervenors on March 23, 1998. By an order entered March 26, 1998, Magistrate Judge Haneke established a schedule for discovery related to the preliminary injunction hearing. Defendants and Defendant-Intervenors appealed to this Court parts of that order that related to disclosure of patient histories. After in camera review of the documents in question, the Court, by order entered April 14, 1998, modified the Magistrate Judge's order to reflect that they would not be disclosed to Plaintiffs.

The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1367.

FACTS

This action relates to the siting of two group homes for people with mental illness in residential neighborhoods in the Township of West Orange. The group homes at issue are located at 97 Edgewood Avenue and 19 Dogwood Drive respectively. (Compl. ¶ 21).

Plaintiff Township of West Orange is the municipality where the community residences are situated. (Id. ¶ 1). Plaintiff Lauren Massader, who sues individually and on behalf of her infant son Zachary Massader, is a resident of 8 Elf Road, West Orange, which is adjacent to the Edgewood Avenue home. (Id. ¶ 3). Plaintiffs Katherine Howland and Elizabeth Shelley reside at 23 Dogwood Drive, adjacent to the Dogwood Drive home. (Id. ¶ 4). Plaintiff-Intervenor St. Cloud Civic Association represents the St. Cloud neighborhood and residents whose properties are located adjacent and near to the Edgewood Avenue home. (Intervenor Compl. ¶ 1).

Defendant Christine Todd Whitman is the Governor of the State of New Jersey, allegedly responsible for enforcing the State Constitution and laws. (Compl.¶¶ 7-8). Defendant William Waldman is the Commissioner of the New Jersey Department of Human Services ("DHS"), allegedly responsible for DHS decisions and actions, including the licensing, funding and supervising of community residences. (Id. ¶ 9). Defendant Alan Kaufman is the Director of the Division of Mental Health Services of DHS, allegedly responsible for State decisions relating to state psychiatric hospitals and the implementation of community residences. (Id. ¶ 10). Defendant Peter Verniero is Attorney General of the State of New Jersey, "arguably an essential party because the validity of state law and/or regulation is implicated by this lawsuit." (Id. ¶ 11). These Defendants, the State Defendants, are sued individually and in their official capacities. (Am.Compl. ¶ 1).

Defendant HUD is the instrumentality of the United States government charged with enforcing the Fair Housing Act and its amendments, 42 U.S.C. § 3601 et seq. (Compl.¶ 13). Defendant, Project Live, Inc. ("Project Live") is the owner and operator of a number of community residences, including the two specifically at issue in this litigation. (Id. ¶ 14).

Defendant-Intervenor NJP & A is a non-profit corporation designated by Governor Whitman to provide legal and advocacy services for people with disabilities in the state pursuant to 42 U.S.C. §§ 6041-6043 and §§ 10801-10807. The other Defendant-Intervenors are residents and potential residents of the two group homes at issue here. (Wean Letter, Mar. 17, 1998 (seeking leave to file motion to intervene)).

Plaintiffs seventy-eight page Complaint¹ alleges, at its foundation, that, in connection with the impending closure of Marlboro Psychiatric Hospital, the State Defendants have contracted with Project Live to open two group homes in residential neighborhoods in the Township of West Orange, one at Edgewood Avenue and the other at Dogwood Drive, under a statutory and regulatory scheme that inadequately ensures the safety of the surrounding community and wrongfully denies the community notice and a hearing as to where residences of that type will be located. The Complaint alleges:

[T]he present system (a) arbitrarily includes, for group home-placement, persons with a wide array of mental conditions, including mentally ill sub-populations posing heightened risks of violence[,] with deliberate indifference to the threat to the rights of infant children and others placed in danger by the State as a consequence; (b) fails to perform any analysis of the impact of community residences upon the neighborhoods in which they are placed[,] including a complete failure to consider potential risks to public safety by the specific use proposed; (c) arbitrarily fails to establish or implement security parameters to protect local citizens; (d) deprives citizens directly affected by the placement of these facilities in their communities, and indeed literally adjacent to them in a number of cases, of any notice, information, or any opportunity to be heard regarding the establishment of the facility; and (e) constitutes an arbitrary exercise of the zoning power.

(Compl.¶ 18).

According to the Complaint, the Dogwood Drive home and the Edgewood Avenue home will each house five outpatients from Marlboro. (Id. ¶ 40). The Complaint further alleges, based on "skeletal information provided to the public by Project Live," that "the intended inhabitants of the Two [Dogwood Drive and Edgewood Avenue] Facilities" are persons who "(a) had been involuntarily committed at Marlboro; (b) have been diagnosed with schizophrenia, bipolar disorder (also known as `manic depression'), `MICA' (Mentally Ill Chemical Abusers), or depression; and (c) have been unable to handle prior `outplacements' into similar assisted-care settings." (Id. ¶ 21). With reference to supporting studies and an expert report, the Complaint alleges that people in these three categories pose a heightened risk of dangerousness. (See id. ¶¶ 38, 49). In addition, the Complaint alleges that the risk of harm to young children in the neighborhoods of these group homes is especially severe since "children witnessing violence or violence-related activities (such as `acting out') are especially susceptible to emotional trauma." (Id. ¶ 105).

The Complaint further alleges, "There will be essentially no security at these Facilities." (Id. ¶ 21). More specifically, it contends, "[T]hese group homes will have, as their total measure of `security,' a single supervisor, probably with no more than a college degree (which degree may or may not be in a category relevant to psychology, and certainly not relevant to security). This attendant will have no true security function; the group-home residents will admittedly be given free and unaccompanied `run' of the neighborhood, without locked doors, alarms, or any other security measures." (Id. ¶ 38). The Complaint alleges that there is no assurance that this single staff person will have qualifications beyond a college degree and three weeks' training. (Id. ¶ 40).

Plaintiffs also seek a declaratory judgment and injunctive relief to protect...