The opinion of the court was delivered by: Sarokin, District Judge.
The plaintiffs in this matter seek relief which will permit
them to maintain a residence for recovering addicts of drugs
and alcohol, pending further hearings and a determination in
state court proceedings. The plaintiffs are part of a
nationally recognized program which, through peer pressure
and strict conditions of abstinence, successfully maintains
freedom from addiction and improves the lives and
opportunities of its participants. For its success, however,
it requires a minimum number of members at each location. The
defendants have established a maximum which forecloses the
viability of the endeavor and will require vacation of the
subject premises absent intervention by this court.
There are few among us who do not have a friend or relative
who has suffered the ravages of drugs or alcohol. They are
persons who need our compassion and require our support. To
evict these plaintiffs from their premises and deny them an
opportunity for a full and fair hearing condemns their
efforts and violates the applicable law.
The defendants have limited the use of said premises to six
persons; the plaintiffs require nine in order to be viable.
The municipality can survive having three additional persons
at this residence until the state court rules, but the
plaintiffs cannot survive without them.
The intervention of this court is for a limited purpose and
for a limited duration. In the interim, plaintiffs should be
permitted to follow their path to rehabilitation and be
encouraged in their efforts. In so doing, the harm to the
City is minimal; the irreparable harm to the plaintiffs is
However, what this matter truly needs is not judicial
action, whether it be state or federal, but for the parties
to search their consciences, recognize the needs and hopes of
the plaintiffs and the concerns and fears of the neighbors,
and arrive at an accommodation which serves and enriches all
who are involved in and affected by it.
This action arises out of a motion brought on behalf of a
group of recovering alcoholics and drug addicts to vacate or
stay the restraints imposed by the New Jersey Superior Court,
limiting the number of residents in the house at 1150
Evergreen Street, in the City of Plainfield, to six, and
barring the use of the third floor of the house. The
plaintiffs also ask this court "to order the City of
Plainfield to cease and refrain from interfering with the
house's continuation pending the final outcome of this case."
Plt. Brief at 1-2.
Plaintiffs are current, former, and prospective residents
of 1150 Evergreen Avenue, Plainfield, New Jersey; Oxford
House-Evergreen, an unincorporated association operated under
a charter issued by Oxford House, Inc., comprising the
residents of the property located at 1150 Evergreen Avenue;
Oxford House, Inc., a nonprofit, tax exempt Delaware
corporation; and Deborah Ann Weiner, the owner of 1150
Evergreen. The suit is brought against the City of
Plainfield, the Mayor and Council of the City, Jocelyn
Pringley, Director of the Division of Inspection and Zoning
Officer, and the Plainfield Zoning Board of Adjustment.
On September 22, 1989, the New Jersey State Department of
Health awarded a grant to Oxford House, Inc. ("OHI") to
establish "Group Homes for Substance Abusers." Plt.App. 32.
The grant mandated that OHI should "[n]egotiate any required
local and state approvals prior to opening." Plt.App. 33. On
April 27, 1989, Ms. Weiner, owner of a large, eight-bedroom
single family home at 1150 Evergreen in the City of
Plainfield, signed a three year lease with OHI on behalf of
Oxford House-Evergreen ("OH-E"). Defendants argue that OHI
failed to make efforts to obtain the required acceptance from
Plainfield zoning officials before signing the lease.
Plaintiffs claim that Zoning Officer Jocelyn Pringley had
stated that the proposed use was permitted. Plt.App. 50
(Bernice Paglia, "Recovering Addicts May Stay in House,"
Courier-News (May 2, 1990)).
Oxford Houses are intended to provide a drug and
alcohol-free environment combined with the support and
encouragement of other recovering persons. The Houses,
pursuant to 42 U.S.C. § 300x-4a, are required to be
democratically run and financially self-supporting, and to
expel any individual who relapses. These Congressional
requirements are based on the Oxford House model. Plt. Brief at
4. Reflecting its commitment to fighting drug and alcohol
abuse, New Jersey entered into a contract with OHI to
administer a $100,000 revolving loan fund to assist in the
establishment of new recovery houses. Regan Aff., Plt.App. 27;
No professional staff resides in Oxford Houses, and no
professional treatment is provided. The houses have three
fixed rules: no use of drugs or alcohol, no disruptive
behavior, and regular payment of rent. Molloy Affidavit ¶ 4,
Plt.App. 11. These rules are enforced by the residents
themselves, with guidance from OHI. Id. at 26. The current
group decides who will move in to the house and how house
chores are to be divided. Oxford Houses are not treatment
facilities, but rather houses rented by a group of individuals
recovering from drug or alcohol addiction.
The lease at OH-E was to begin on June 1, 1990. On May 15,
1990, Ms. Pringley issued a notice of violation to OHI and
Ms. Weiner, advising them that their proposed use of the
residence was inconsistent with the single-family residential
zone requirements. Construction was commenced on the
residence, without a building permit, and a Construction Code
Inspector issued a stop work order on May 31, 1990. On May
31, 1990, construction continued, and police were called to
have the contractor leave the premises. On or about June 2,
1990, the initial OH-E occupants moved in to the residence.
Plaintiffs claim that neighbors learned of the proposed use
of 1150 Evergreen about a month before the lease was to
begin, and publicly objected, contacting city officials in an
attempt to block the current residents
from moving in to the premises. See Negley and Cangelosi,
"Neighbors Oppose Evergreen Facility" (Letter to Editor),
Courier News, Plt.App. at 49; Michelle Weiss, "Opposition to
Rehab Center to be Heard," Courier-News (May 5, 1990), Plt.App.
at 51. At a May 7, 1990 City Council meeting, the Council voted
to authorize litigation to challenge the proposed use; the
resolution "was greeted by an enthusiastic ovation." City
Council Minutes at 26, Plt.App. at 36.
On June 6, 1990, the City filed a Complaint and Order to
Show Cause against OHI and Ms. Weiner, the owner of the
property ("Oxford House I"), seeking to enjoin OH-E's use of
the property. Judge Menza of the New Jersey Superior Court
denied the City's request for temporary restraints to prevent
occupancy; he also ordered the residents to provide immediate
access to the City's construction code, fire, and housing
inspectors. Def.Exh. F. On June 15, 1990, the return date for
the Order to Show Cause, the state court entered an order
barring any new occupants from moving in and restraining the
residents from using the third floor of the house.*fn1
The trial court transferred the matter to the Plainfield
Zoning Board of Adjustment for an evidentiary hearing on the
validity of the Zoning Officer's decision and on OHI's claims
under the Federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et
seq. Plt.App. 57.
The Zoning Board, according to plaintiffs herein, refused
to consider OHI's claims under the Fair Housing Act during
the hearings. See Zoning Board hearing, August 21, 1990, Tr. at
258-59. The hearings ended with a Board resolution of December
5, 1990, upholding the Zoning Officer's finding that the
proposed use was not permitted. The Board concluded that OH-E
"has some elements of a non-familial institution," Plt.App.
105, and that its residents do not constitute a "family" under
the applicable state law definition:
One (1) or more persons living together as a
single non-profit housekeeping unit whose
relationship is of a permanent and domestic
character, as distinguished from fraternities,
sororities, societies, clubs, associations. . . .
All commercial residences, non-familial
institutional uses, boarding homes and other such
occupancies shall be excluded from one-family
Plainfield Zoning Code § 17.3-1(17). The Board found that the
residents were not "permanent" or "domestic," because of their
transiency and lack of "intimacy." Plt.App. 104-05.
OHI did not appeal the decision of the Board of Adjustment,
but instead filed a separate action in Superior Court
("Oxford House II"), challenging the decision as arbitrary and
capricious and a violation of the Federal Fair Housing Act. No.
UNN-L-979-91 (Super. Court of N.J., Union County Feb. 4, 1991),
attached as Def.Exh. P.*fn2 The plaintiff in that action is
OHI; defendants are the City, the Board, and Ms. Pringley. The
case was assigned to Judge Menza, who held a pre-trial hearing
on July 5, 1991, resulting in an extensive pre-trial order.
Def.Exh. R. The order calls for briefs by August 5, 1991. A
hearing is scheduled for September 3, 1991.
The restraints have remained in effect since Judge Menza
ordered them. The state court twice denied OHI's motions to
lift the restraints. However, at the July 31, 1990 hearing on
OHI's first motion, Judge Menza modified his earlier order
and allowed the house to replace the prior residents with new
residents, should they leave, provided that the cap of six
(the number of persons who had already moved in to the
premises when the first action was brought) was not exceeded.
dated Aug. 17, 1990, Plt.App. 71-72. The state court found
that the City had a likelihood of success on the merits.
Plt.App. 67. With regard to the restriction on use of the
third floor, Judge Menza relied on the certification of the
Captain of the Bureau of Fire Prevention that a second means
of egress from the third floor was lacking. Plt.App. 65-66.
OHI's second motion for lifting the restraints was denied at
an October 15, 1990 hearing, where Judge Menza rejected OHI's
argument that it faced financial difficulties which could
lead to irreparable harm. See Def. Brief at 12, citing
Def.Exhs. K-N (Affidavits submitted to Superior Court). OHI's
appeals to the Appellate Division and the New Jersey Supreme
Court to lift the temporary restraints have also been
unavailing. Plt. App. 75-76. Those appeals were denied on
October 25, 1990, and December 4, 1990, respectively.
Plaintiffs filed this action on June 28, 1991. In their
complaint, see Def.Exh. E, plaintiffs allege violations of the
federal Fair Housing Act Amendments of 1988, 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. In their current motion, plaintiffs ask this
court to vacate or stay the restraints placed by the state
court, pending the completion of its proceedings in this
matter. Plaintiffs claim that they cannot financially support
the house with only six residents instead of the eight to
ten*fn3 that the house can sustain, and that they face
imminent eviction. Plaintiffs argue that the state court
restraints do not simply maintain the status quo, but will have
the effect of the residents' eviction and the closing of OH-E.
Plaintiffs also argue that the therapeutic nature of OH-E
suffers from having a restricted number of residents.
Defendants have filed a cross-motion to dismiss or stay this
action pending the state court's proceedings.
The United States Justice Department has moved for leave to
participate in this action as amicus curiae on behalf of
plaintiffs. That application will be granted.*fn4 The United
States notes that on July 20, 1990, and October 17, 1990, OHI
filed a housing discrimination complaint with the Secretary of
the Department of Housing and Urban Development ("HUD"),
pursuant to 42 U.S.C. § 3610. On October 24, 1990, the General
Counsel of HUD referred the complaint to the Department of
Justice, pursuant to § 810(g)(2)(C) of the Fair Housing Act and
24 C.F.R. § 103.400(a)(2) (1990), for appropriate action under
§ 814(b)(1). The United States also notes that it is currently
litigating similar issues in United States v. Borough of
Audobon, New Jersey, Civ. No. 90-3771 (JFG) (D.N.J.). Trial in
that case, which also involves a challenge to municipal action
taken against a local Oxford House, commenced July 15, 1991.
Defendants argue on their cross-motion to dismiss that this
court should abstain from ruling on the instant matter, due
to the concurrent state proceeding that involves the same
parties, problem, and issues. Indeed, the first question the
court must address is the issue of abstention.
The court notes that abstention is the exception, rather
than the rule. Abstention is an
extraordinary and narrow exception to the duty of
a District Court to adjudicate a controversy
properly before it. Abdication of the obligation
to decide cases can be justified under this
doctrine only in the exceptional circumstances
where the order to the parties to repair to the
State court would clearly serve an important
Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976).
There are three kinds of abstention. Abstention is appropriate
where a case presents a federal constitutional issue which
might be mooted or presented in a different posture by a state
court determination of pertinent state law. Railroad Comm'n of
Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971
(1941). The second abstention doctrine, based on Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is
appropriate where, absent bad faith, harassment, or a patently
invalid state statute, federal jurisdiction has been invoked
for the purpose of restraining state criminal proceedings. The
third form of abstention, under Burford v. Sun Oil Co.,
319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), provides
that abstention is appropriate where there have been presented
difficult questions of state law bearing on policy problems of
substantial public importance whose importance transcends the
result in the case at bar. Also, even if none of the three
categories apply, the court must consider the Colorado River
additional factor of judicial economy. 424 U.S. at 817, 96
S.Ct. at 1246.
Pullman abstention requires three elements: (1) uncertain
issues of state law underlying the federal constitutional
claims brought in the district court; (2) amenability of the
state law issues to a state court interpretation that would
obviate the need for, or substantially narrow, adjudication of
the federal claims; and (3) disruption of important state
policies through a federal ...