use permits to the facility. The Court rejected the argument
that the district court should have abstained under
Younger, in part on the basis of the distinct identities
between the parties in the state administrative proceeding and
in the federal action. The Court concluded that "[c]lass
action-plaintiffs appellees have no proprietary interest in ARC
[the treatment facility], and ARC does not employee appellees."
Id. at 178 (citations omitted).
Third, a Younger exception is met in this case due to the
specter of irreparable injury that could befall the plaintiffs
if this court fails to exercise jurisdiction. See Sullivan, 811
F.2d at 179, citing Kugler v. Helfant, 421 U.S. 117, 124-25, 95
S.Ct. 1524, 1530-31, 44 L.Ed.2d 15 (1975); Mitchum v. Foster,
407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972)
("federal injunctive relief against a state court proceeding
can in some circumstances be essential to prevent great,
immediate, and irreparable loss of a person's constitutional
Plaintiffs have submitted affidavits establishing the
financially precarious situation of OH-E at this time.
Affidavits of Valentine, Plt.App. 110-112, and Tierney,
Plt.App. 117. The plaintiff-residents cannot afford to
continue rent and utility payments with only six individuals
in the house. The plaintiffs are currently almost $4,000, or
two and one half months, behind in their rent. Weiner Aff.
¶ 14, Plt.App. 5. Moreover, they allege that their therapy
suffers by the limited number of residents. See Molloy Aff. ¶
29, Plt.App. 19; Valentine Aff. ¶ 15, Plt.App. 112. Plaintiff
Weiner, the owner of the premises, has stated that she cannot
maintain the house in its current financial state, and will
have to evict the plaintiff-residents if this court denies the
relief requested. Weiner Supplemental Certification ¶ 7 (July
While these arguments were raised and rejected before Judge
Menza and the appellate New Jersey courts, the situation
seems to have progressively deteriorated since the time of
those appeals. Moreover, this court must take the allegations
in the certifications and affidavits that plaintiffs have
presented as true; if true, it appears that
plaintiff-residents' eviction is imminent, and that such
eviction is very likely to cause them irreparable injury.
Defendants argue that the state court restraints simply
maintained the status quo in the matter. However, if the
plaintiff-residents are evicted from OH-E as a result of the
restraints, the status quo will not have been
preserved.*fn12 Defendants further argue that plaintiffs'
delay of seven months from the denial of their appeal to the
New Jersey Supreme Court for relief from the temporary
restraints imposed, points to a lack of impending irreparable
injury. Le Sportsac, Inc. v. Dockside Research, Inc.,
478 F. Supp. 602, 609 (S.D.N.Y. 1979) (delay calls into question the
imminence of the irreparable injury claimed). The court rejects
this argument on the facts of this case. The court could draw
the inference from plaintiffs' two appeals to Judge Menza, and
then to the appellate division and the New Jersey Supreme
Court, that its situation was urgent in 1990. Plaintiffs'
financial situation appears to have further deteriorated over
the course of this year, due to the continued restriction on
the number of residents in the house.
In addition to losing their residence, which may in itself
be an irreparable injury, see Sampson v. Murray, 415 U.S. 61,
101, 94 S.Ct. 937, 958, 39 L.Ed.2d 166 (1974) (Marshall, J.,
dissenting); cf. Lancor v. Lebanon Housing Authority,
760 F.2d 361, 363 (1st Cir. 1985), plaintiffs would also lose the
benefit of their therapeutic and
supportive living environment, and may relapse. Regan Aff.,
¶ 18, Plt.App. 27.
This situation is similar to that in Sullivan, where
recovering alcoholics were in danger of losing their treatment
facility. There the court held that "[i]ndeed, it is difficult
to conceive of many facts which would more compellingly argue
for appellants' relief." 811 F.2d at 180. Defendants would have
the court distinguish this case from Sullivan, arguing that in
that case the facility threatened with closure was an alcoholic
treatment center, and not a unit functioning as a family, as is
alleged by plaintiffs to be the case with OH-E. Def. Brief at
27. The court rejects defendants' proposed distinction. For a
non-handicapped individual, the disintegration of a family unit
is traumatic; for recovering alcoholics and drug addicts, it
may be devastating.
C. Burford abstention
Finally, the court will consider whether the doctrine of
Burford abstention applies. Burford abstention is warranted
where the "exercise of federal review of the question in a case
and in similar cases would be disruptive of state efforts to
establish a coherent policy with respect to a matter of
substantial public concern." Colorado River, 424 U.S. at 814,
96 S.Ct. at 1245.
Pursuant to this court's prior ruling, that the state law
in this area is not "unsettled," the court declines to hold
that Burford abstention is required in the instant case. The
New Jersey Supreme Court in Glassboro made it clear that it
would accept zoning ordinances defined around the concept of a
family as a single housekeeping unit. 117 N.J. at 428,
568 A.2d 888. The instant case involves the application of that law to
the facts, pursuant to the state's "coherent policy," and the
further issue of whether the application by the Zoning Officer
and Board was violative of the Fair Housing Act.
Indeed, abstention has been held particularly inappropriate
in civil rights cases. Sullivan, 811 F.2d at 179, citing Wooley
v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752
(1977);*fn13 United States v. Black Jack, Mo., 508 F.2d 1179,
1184 (8th Cir. 1974), cert. den., 422 U.S. 1042, 95 S.Ct. 2656,
45 L.Ed.2d 694 (1975); United States of America v. Commonwealth
of Puerto Rico, 764 F. Supp. 220, 226 (D.P.R. 1991),
(Plt.App. 164, at 177), citing Association of Relatives &
Friends of AIDS Patients ["AFAPS"] v. Regulations & Permits
Admin., 740 F. Supp. 95, 102 (D.P.R. 1990); Fralin, 474 F. Supp.
at 1319 (refusing to apply Burford abstention in a civil rights
suit challenging zoning action). The Burford case itself
was a diversity action, which did not involve any major federal
involvement. 319 U.S. at 317-19, 63 S.Ct. at 1098-1100.
Finally, the court notes that § 816 of the FHA provides that
"any law of a State, a political subdivision, or other such
jurisdiction that purports to require or permit any action that
would be a discriminatory housing practice under this
subchapter shall be to that extent invalid."
D. Judicial Economy
Aside from these abstention doctrines, Colorado River
dictates that abstention may also be appropriate in the
interests of conserving judicial resources and avoiding
duplicative litigation. 424 U.S. at 817-20, 96 S.Ct. at
Indeed, the continuing state court proceedings were filed
before the instant one, and have progressed considerably.
However, the interests of judicial economy are outweighed in
a case such as this, which involves allegations of violations
of civil and constitutional rights. Furthermore, the court's
limited action herein, see infra, merely preserves plaintiffs'
cause of action pending the state court hearing, while sparing
plaintiffs irreparable harm.
II. Motion for Preliminary Injunction
Having declined to abstain in this matter, the court turns
to a determination of plaintiffs' motion for a preliminary
injunction, in which plaintiffs ask this court to stay or
vacate the state court's imposition of temporary restraints
and enjoin defendants from interfering with plaintiffs'
continued occupancy and use of OH-E.
A. Anti-Injunction Act
The first issue to consider is whether the Anti-Injunction
Act, 28 U.S.C. § 2283, bars the relief sought. The statute
provides that a federal court "may not grant an injunction to
stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments." Id.
Defendants argue that this Act operates as a bar to the
granting of the relief requested by plaintiffs herein.
However, the requested relief in this preliminary
injunction motion does not amount to a "stay" of the state
court proceeding. The Third Circuit in U.S. Steel Corp. Plan
for Employee Insurance Benefits v. Musisko, 885 F.2d 1170 (3d
Cir. 1989), cert. den., ___ U.S. ___, 110 S.Ct. 1121, 107
L.Ed.2d 1028 (1990), held that a district court's order
constituted an inappropriate stay of a state court's proceeding
where the district court restrained a state court from ruling
on a dispute over employee benefits "under any law other than
ERISA." Id. at 1173. Plaintiffs argue that no such "intrusive
action" is requested here. Reply Brief at 2. While this court's
granting of the preliminary relief sought by plaintiffs would
"interfere" with the state court's imposition of temporary
restraints, it would not affect the proceedings or final
decision of that court. See New-Jersey Philadelphia Presbytery,
654 F.2d at 879 (injunction restraining defendant from availing
itself of portion of preliminary relief the state court had
granted did not interfere with the state court proceedings;
declining to apply Younger).
Moreover, the court concludes that this matter falls within
the "expressly authorized by Congress" exception under the
Act. See Mitchum, 407 U.S. 225, 92 S.Ct. 2151. The court relies
on the discussion by the court in Casa Marie, Inc. v. Superior
Court of Puerto Rico for Dist. of Arecibo, 752 F. Supp. 1152,
1169 (D.P.R. 1990).*fn14 Defendants argue that the text of the
FHA does not indicate that Congress intended to authorize
federal courts to grant injunctions against state courts.
Defendants also note that the FHA provides for concurrent
jurisdiction between state and federal courts. § 3613(a)(1)(A).
However, the legislative history, as analyzed by the court in
Casa Marie, shows that Congress intended to enact a broad
federal remedy to housing discrimination.
B. Preliminary Injunction Factors
To grant a preliminary injunction, the court must find that
four factors are satisfied: Plaintiff has a likelihood of
success on the merits of her claim; plaintiff is subject to
irreparable harm pendent lite, if the temporary restraints do
not issue; defendant will not suffer substantial harm from the
grant of an injunction; and the public interest requires the
relief to be granted. Sullivan, 811 F.2d at 181. The court
considers each of these factors in turn.
i. Likelihood of Success
Plaintiffs have brought claims under §§ 804 and 818 of the
federal Fair Housing Act, as amended in 1988.
42 U.S.C. § 3604(f)(1) and 3617 (Supp. 1989). Section 3604(f)(1) provides
that it is unlawful to
discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to
any buyer or renter because of a handicap of
(A) that buyer or renter;
(B) a person residing in or intending to reside
in that dwelling after it is so sold, or made
(C) any person associated with that buyer or
That provision also makes it unlawful discrimination, for the
purposes of the subsection, to "refus[e] to make reasonable
accommodations in rules, policies, practices, or services,
when such accommodation must be necessary to afford such
person equal opportunity to use and enjoy a dwelling." §
3604(f)(3)(B). Section 3617 provides that it
shall be unlawful to coerce, intimidate,
threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his
having aided or encourage any other person in the
exercise or enjoyment of, any right guaranteed or
protected by section . . . 3604. . . .
In order to prove its claim of a violation of the Fair
Housing Act, plaintiffs have to show, first, that the
plaintiff-residents are "handicapped" within the meaning of
the Act, and therefore fall within its protection. The Act
defines "handicap" as (1) a physical or mental impairment
which substantially limits one or more of a person's major
life activities; (2) a record of having such an impairment;
or (3) being regarded as having such an impairment. 42 U.S.C. § 3602(h).
The statute goes on to note that "such term does not
include current, illegal use of or addiction to a controlled
substance. . . ." Id. The legislative history of the Act's
Amendments indicates that recovering alcoholics and addicts
were meant to be included in the definition. H.R.Rep. 711,
100th Cong., 2d Sess. 22 (1988); U.S.Code Cong. & Admin.News
1988, pp. 2173, 2183; see also 24 C.F.R. § 100.201(a)(2)
(1989); Sullivan, 811 F.2d at 182 (alcoholics are
handicapped within the meaning of § 504 of the Rehabilitation
Defendants argue that plaintiff-residents cannot be
considered "handicapped" within the meaning of the Act, and
that they fall outside of the protection of the Act, because
they may be current users of illegal drugs, 42 U.S.C. § 3602(h),
have a prior criminal conviction for the distribution
or sale of drugs, § 3607(b)(4), or constitute a direct threat
to the health or safety of the neighborhood or property of
others, § 3604(f)(9). Defendants argue that there are questions
of fact as to these issues.
While the court does not dispute defendants' argument that
whether plaintiffs fall into one of these three categories
may present a question of fact for trial, defendants have
given no indication that the plaintiff-residents do in fact
fall into any of these categories. Defendants note that 13 of
the 20 persons admitted to OH-E as of April, 1991, have left.
Of those 13, 9 have left due to a relapse. Def.Exh. Q.
Plaintiffs argue that the number of relapses at OH-E is the
highest of any Oxford House in New Jersey, and postulate that
the high number is due to the stress that the pending
litigation and the neighborhood opposition place on the
residents. Plaintiffs' Reply Brief, at 12-13 n. 4; see also
Tierney Aff. ¶ 8, Plt.App. 117. In any event, defendants'
citations to these figures do not establish that the residents
are "current users of illegal drugs." The House rules mandate
that no resident can use drugs and remain in the House.*fn15
With regard to the second exception, defendants argue that
given who the residents are, a conviction of the type
included in § 3607(b)(4) "would not be unlikely." Def. Brief in
Opp. at 16. The court finds such speculation insufficient to
establish that plaintiff-residents are not "handicapped,"*fn16
or even to create a sufficient question of fact so as to bar
the court's award of the requested relief. See Fed.R.Civ.P.
52(a); Charles Simkin & Sons, Inc. v. Massiah, 289 F.2d 26, 29
(3d Cir. 1961) (issue of fact precludes an interlocutory
With regard to the third category, wherein individuals who
pose a threat to health, safety, or property are not to be
considered "handicapped" under the Act, defendants have
pointed to no evidence that the category applies to
plaintiff-residents, but only can point to the speculative
conclusions of the neighbors. "Generalized assumption,
subjective fears, and speculation are insufficient to prove
the requisite direct threat to others." H.R.Rep. No. 711, at
29, U.S.Code Cong. & Admin.News 1988, p. 2190. Defendants
have provided affidavits of neighbors of OH-E that assert
that incidents of vandalism have increased in the
neighborhood since the residents of OH-E have moved in,
see Mahdi Certif., Negley Certif., and Monroe Certif., but they
have offered nothing to substantiate these assertions, nor any
evidence tending to link the plaintiff-residents with these
Next, to prove a FHA violation, plaintiff must show either
intentional discrimination or a discriminatory impact. The
evidence that has been brought to light at this preliminary
stage of the litigation points to plaintiffs' likelihood of
success on this point as well.
As to intentional discrimination, the minutes of the City
Council meeting show that the fact that the intended
occupants of OH-E were recovering addicts was a motivating
factor in their decision. Plt.App. 35-46.*fn18 See
Woods-Drake, 667 F.2d at 1202 and Casa Marie, 752 F. Supp. at
1168 (under Fair Housing Act plaintiff must show that
discrimination was in some part the basis for the action, but
does not need to show discrimination was sole motivating
factor). The Mayor's comments indicate concurrence with this,
the popular view in the neighborhood and on the City Council.
Plt.App. 52. While the City's legitimate interest in
maintaining zoning for single-family homes and enforcing its
zoning ordinances is not in question, defendants' citation to
these interests as the sole underlying motive of the City in
the instant case is questionable. Given the sequence of events
in this case, the declared motives suggest the possible
operation of a pretext for discrimination.*fn19 Most notably,
Zoning Officer Pringley first announced that OH-E represented a
permitted use under the applicable zoning ordinance, and then
reversed her determination after the City Council meeting of
May, 1991, at which much neighborhood and City Council
opposition was expressed.
The City's actions also have a discriminatory impact on the
plaintiff-residents. Under the "disparate impact" test, the
court must examine the strength of plaintiff's showing of
discriminatory effect; whether there is some evidence of
discriminatory intent; defendant's professed interest in
taking the action complained of; and whether the plaintiff
seeks to compel the defendant to affirmatively provide
housing for members of a protected class or merely seeks to
restrain the defendant from interfering
with individual property owners wishing to provide such
housing. AFAPS, 740 F. Supp. at 103. The plaintiff could prove
discriminatory impact by showing a greater adverse impact on a
protected group than on others, or by perpetuating an existing
pattern of segregation in the community. Metropolitan Housing
Dev. Corp. v. Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.
1977), cert. den., 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772
(1978). See also Huntington Branch, NAACP v. Huntington,
844 F.2d 926, 934 (2d Cir. 1988).
Plaintiffs herein have shown a likelihood of success in
proving each of these elements. Recovering alcoholics and
drug addicts may never be perceived as "stable" and
"permanent" by communities that object to their presence.
Given the City's actions and the rationale given for those
actions, it is difficult to imagine how a recovering
alcoholic or drug addict would be accepted, no matter what
the precise living situation, in any neighborhood in the City
of Plainfield. Moreover, if the exclusionary effect of the
City's actions were upheld, and were duplicated state-wide,
no Oxford Houses could exist in New Jersey. As the court in
Casa Marie held, "the effect would be a broad scale exclusion
of the . . . handicapped [group] as opposed to any other group
of potential residents." 752 F. Supp. at 1169 (emphasis in
Defendants argue that the discriminatory impact, if any, is
on the legitimate basis of permanence, and not on the basis
of handicap. However, as indicated, the sequence of events in
the record of this case suggest that this stated interest may
prove to be a pretext for the underlying discrimination.
See Casa Marie, 752 F. Supp. at 1169 (finding defendants'
professed desire to stop the development of businesses in the
community a pretext).*fn20 Defendants also argue that the
municipality has a legitimate governmental interest in
regulating land use, and no alternative would serve this
interest with less discriminatory effect. As indicated, the
court does not wish to disturb this legitimate interest of
defendants, but only to ensure that it is effected in a
nondiscriminatory manner. Defendants' further argument that the
City's actions do not operate to deny OH-E equal access
"because there other locations in the City in which members
would be permitted to establish a group home without infringing
on any zoning ordinance," Def. Brief at 19, is without merit.
Anti-discrimination laws are designed to prevent just such
Thus, plaintiffs have shown a discriminatory effect,
discriminatory intent, and the possibility of a pretext
having been offered. Further, the instant case involves not a
request to affirmatively compel defendants to provide housing
for members of a protected class, but merely seeks to
restrain defendants from interfering with the provision of
such housing by individual property owners. Finally, if the
alleged violation is allowed to continue, handicapped
recovering alcoholics and drug addicts will be effectively
segregated from non-handicapped individuals in their housing
environment. Accordingly, the court concludes that plaintiffs
have a likelihood of success of showing a violation through
both discriminatory intent and impact.
In addition, plaintiffs have a likelihood of success on the
merits under 42 U.S.C. § 3617 of showing "interference" by
defendants with the residents' right to live in the
neighborhood of their choice, with Ms. Weiner's contractual
relations, and with OHI's efforts to provide a therapeutic
environment for the recovery of the residents.
Finally, the United States, as amicus, has convincingly
argued that plaintiffs have a substantial likelihood of
establishing that defendants have violated the mandate of the
FHA to "make reasonable accommodations" to house the
handicapped. The accommodation that would be provided through
the relief sought herein would be reasonable. Accommodating
OH-E would not cause undue financial burden to the City, and in
the twelve months that OH-E has been occupied by
there have been no documented disturbances.*fn21
Because of the court's conclusion as to plaintiffs'
likelihood of success on the merits in proving an FHA
violation, it will not discuss the likelihood of plaintiffs'
success on its claims under the Rehabilitation Act of 1973,
the Equal Protection and Due Process Clauses of the United
States and New Jersey Constitutions, the New Jersey Municipal
Land Use Law and the New Jersey Law Against Discrimination.
ii. Irreparable Injury
Plaintiffs also have shown irreparable injury, and thereby
have met the second requirement for the grant of a
preliminary injunction. As discussed above, the residents of
the house do not have the financial resources to pay the
monthly expenses of the house. Plaintiffs maintain that with
the temporary restraints in place, the status quo is not
preserved, but rather the plaintiff-residents will be forced
to move out of OH-E. The court concluded, supra, that
plaintiffs face irreparable injury from eviction, both due to
loss of the house and loss of their supportive and stable
Plaintiffs argue that irreparable injury can be presumed
from a finding of a violation of the FHA. Plaintiffs cite
Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423-24
(11th Cir. 1984), cert. den., 469 U.S. 882, 105 S.Ct. 249, 83
L.Ed.2d 187 (1984). Defendants, citing Flynn v. United States,
786 F.2d 586, 591 (3d Cir. 1986); Natural Resources Defense
Council, Inc. v. Texaco Refining and Marketing, Inc.,
906 F.2d 934, 940 n. 6 (3d Cir. 1990), dispute this, in light of the
discretionary nature of the authorization to federal courts to
grant injunctions under the FHA. Because the court finds
irreparable injury, it need not reach this issue.
iii. Harm to Defendants
The third factor to be considered by the court in ruling
upon a motion for a preliminary injunction is whether
defendants will suffer severe harm. The court concludes that
defendants herein cannot claim that they will suffer severe
harm from the lifting of the temporary restraints.
First, the injunctive relief sought would not require the
expenditure of any resources by the City, but rather would
save resources. The Third Circuit held in Sullivan, 811 F.2d at
183-84, that closing a treatment facility posed a great harm
not just to its handicapped residents, but also to the
surrounding community. The Court noted the benefits of allowing
the treatment facility to continue, in reducing the burden
posed on area police and fire departments.
Defendants have submitted affidavits setting forth
complaints of the neighbors and the basis for their
objections to the proposed use of OH-E. These complaints
amount to speculation and subjective fears, and cannot be
considered by this court in determining what harm defendants
will suffer. Moreover, the Court in Glassboro held that "noise
and other socially disruptive behavior are best regulated
outside the framework of municipal zoning." 117 N.J. at 433,
568 A.2d 888. While the court does not dispute that defendants
maintain an interest in "zones where family values, youth
values, and the blessings of quiet seclusion and clear air make
the area a sanctuary for people," Village of Belle Terre v.
Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797
(1974), the court concludes that in the instant case it is not
clear that those interests are threatened. Moreover, the rights
of the plaintiffs, as well as the public interest in
vindicating those rights, outweigh this countervailing
iv. Public Interest
The public interest in the protection and enforcement of
civil rights weighs in favor of this court's granting to
plaintiffs the relief requested. Moreover, as noted
above, the public has an interest in the recovery of
alcoholics and drug addicts. The federal and state enactments
prohibiting discrimination and promoting drug treatment,
control, and enforcement, are a reflection of the public
interests at stake. The court concludes that these interests
outweigh the defendants' interests in enforcing the zoning
ordinance against plaintiffs.
Plaintiffs ask this court to vacate or stay the restraints
imposed by the New Jersey Superior Court, which limit the
number of residents at OH-E to six and bars the use of the
third floor of the house. The plaintiffs also ask this court
to order the City to refrain from interfering with the
house's continuation, pending the final outcome of the case.
Plaintiffs note that this court may grant an injunction under
the FHA, § 813(c), "including an order enjoining the defendant
from engaging in [a discriminatory housing] practice or
ordering such affirmative action as may be appropriate."
Defendants have asked the court to dismiss or stay the
complaint in this action.
For the foregoing reasons, the court will abstain in ruling
in this action as to OHI. The court partially grants
plaintiffs' motion for a preliminary injunction, insofar as
the temporary restraints imposed by the state court shall be
modified to allow a maximum of nine men to reside at Oxford
House-Evergreen until the final resolution of the state court
proceeding. The state court's determination barring the use
of the third floor shall not be disturbed. Defendants'
cross-motion to stay or dismiss this action is partially
granted, insofar as this action shall be stayed until the
final resolution of this matter in the state court