United States District Court, District of New Jersey
September 9, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
BOROUGH OF AUDUBON, NEW JERSEY, DEFENDANT.
The opinion of the court was delivered by: Gerry, Chief Judge.
The United States of America commenced this action on
September 21, 1990, alleging that the defendant, Borough of
Audubon, New Jersey ("Audubon" or "Borough"), has discriminated
on the basis of handicap against the owners and occupants of a
residential group home for recovering alcoholics and recovering
drug users, in violation of the Fair Housing Act ("the Act"),
42 U.S.C. § 3601, et seq. A non-jury trial was held by this
court on July 15-18, 1991. Based upon the testimony of
heard and the other evidence received during that trial, we
make the following findings of fact and conclusions of law.
A. Establishment of Oxford House-Vassar:
1. Since 1984, Frank and Sandra Saltzburg have owned a
residence located at 50-52 East Vassar Road, Audubon, New
Jersey. The residence is a three story structure, with six
bedrooms, located in a residential neighborhood. Although the
property is zoned by Audubon for single-family residences,
prior to the Saltzburg's purchase of the property, Audubon
issued a resolution permitting the residence to be used as a
2. Between 1984 and May, 1990, the residence was used as a
duplex and was rented to various groups of unrelated persons.
For approximately five years, the upstairs unit was occupied
each year by a different group of unrelated law students.
During this same period, the downstairs unit was occupied by
two unrelated persons.
3. On May 8, 1990, the Saltzburgs entered into a five year
lease agreement with Oxford House-Vassar ("OH-Vassar").
OH-Vassar is an unincorporated association comprised of
recovering alcoholics or drug users and is patterned after the
model of the original Oxford House.
4. The original Oxford House was founded in 1975 in
Montgomery County, Maryland by Paul Molloy and a group of men,
all of whom were recovering from alcoholism or drug addiction.
When the County decided to close the half-way house in which
they were living because of a lack of funds, the men decided to
rent the house themselves. The purpose of the group was to
provide a supportive environment in which the men could live
free from drugs or alcohol. From the outset, the Oxford House
was run differently than a typical half-way house. No staff was
present at the house and a resident could stay as long as he
wished — as long as he remained drug and alcohol free and paid
his share of expenses.
5. Thereafter, other Oxford House-type homes were opened in
residential neighborhoods in the Washington, D.C. area and in
Pennsylvania. Since the passage of the Anti-Drug Abuse Act in
1988,*fn1 the number of homes has risen dramatically — to the
current number of 256 homes in the United States which are
operated on the Oxford House model.
6. Oxford Houses are not health care facilities,
rehabilitation centers, or supervised half-way houses. Unlike
those facilities, no professional treatment or paid staff are
provided at Oxford Houses. Instead, such houses are simply
residential dwellings that are rented by a group of individuals
who are recovering from alcoholism or drug addiction. Three
basic rules guide the functioning of all Oxford Houses: the
House must (1) be democratically self-governing, (2) be
financially self-supporting, and (3) immediately expel any
person using drugs or alcohol. Because the Houses must be
financially self-supporting, each resident in the House has to
be able to obtain employment. There is no limit upon the amount
of time that a person can live in an Oxford House. The average
stay in an Oxford House is approximately 16 months.
7. New Jersey contracted with Oxford House, Inc. in 1989 to
organize Oxford House-type residences within the State and to
administer the $100,000 revolving fund
established by New Jersey pursuant to the Anti-Drug Abuse Act.
Pursuant to that contract, Oxford House, Inc. initially was
required to send experienced Oxford House residents to New
Jersey to help establish the first few houses and thereafter
was required to locate available housing for rental, to
negotiate leases, to coordinate with other community
organizations and agencies, and to otherwise facilitate the
establishment of Oxford Houses in the State. There are
currently 18 Oxford Houses in New Jersey.
8. Once established, Oxford House, Inc. has no ongoing
control over an Oxford House. The residents living in the
particular house make all of the decisions regarding the
management of the house — including the decision as to who is
permitted to move into the house.
9. OH-Vassar was initially established by Oxford House, Inc.
Charles Van der Burgh, Chief Financial Officer for Oxford
House, Inc., signed the lease with the Saltzburgs for the East
Vassar Street residence on behalf of OH-Vassar. The original
residents of OH-Vassar were initially selected and approved by
Oxford House, Inc. A requirement for approval is that the
residents "are actually in recovery; that they're not
practicing alcoholics or drug users, but have had some sort of
intervention in their addiction and some sort of treatment."
Trial Transcript of July 15, 1990, at p. 103, line 12 — p.
104, line 5 (hereinafter, e.g., "TT 15: 103.12-104.5"). Each of
the four initial residents of OH-Vassar had attended a
residential treatment program. Subsequent residents were all
referred to OH-Vassar by counselors at a treatment facility.
B. Interaction With the Borough of Audubon:
10. Audubon is a municipality located in Camden County, New
Jersey, and is organized under the laws of the State of New
Jersey. Audubon's government is run by a Board of Commissioners
which is comprised of a Mayor and two Commissioners. The
current Mayor is Alfred Murray, and the current Commissioners
are James Johnson and Norman Brecht. All three were in office
during the summer of 1990.
11. Commissioner Brecht is charged with overseeing the
enforcement of the Borough's zoning codes and/or ordinances,
through consultation with the Borough's zoning solicitor, Barry
Wendt, its zoning enforcement officer, Charles Martin, and
members of the Borough's Zoning Board.
12. Soon after the initial residents moved into OH-Vassar in
June, 1990, Borough officials began receiving complaints from
local citizens — who complained, for example, that loud music
was being played, that the residence was being used as a
boarding home, that the grass was uncut, that people were
coming and going constantly, and that the home was a drug and
alcohol rehab center. Beginning in late June, 1990, Martin made
repeated visits to OH-Vassar, during which he inspected parts
of the home, questioned residents about their identities and
the operation of the home, and told the residents that they
were living there in violation of town ordinances.
13. In an attempt to resolve the alleged violations of local
ordinances, a meeting was held on July 3, 1991, between the
Saltzburgs, Zoning Solicitor Wendt, Zoning Officer Tom
Costello, the Fire Marshall, a representative of the Board of
Health, and Commissioner Brecht. The end result of this meeting
was that the Saltzburgs were told they had two options: they
could either apply for a variance to use the property as a
boarding home or have the residents of OH-Vassar vacate the
property. The Saltzburgs were given a week in which to comply
and were told that if neither was done, the Borough would issue
summonses for the Saltzburgs to face charges in Municipal
14. The Saltzburgs did not apply for a variance, and the
residents of OH-Vassar did not vacate the property. Thereafter,
per his instructions from Commissioner Brecht, Zoning Officer
Martin began issuing citations to the Saltzburgs on a weekly
basis. The citations alleged violations of ordinances covering
noise, parking, occupancy permits, zoning, as well as more
general provisions. The summonses listed the offense as running
a boarding home. In addition to the summonses, a Notice of
Violation and Order to Terminate was served on the Saltzburgs
on July 20, 1990, which charged the Saltzburgs with a violation
of the State Uniform Construction Code Act for failing to apply
for a change of use to convert the house into a boarding home.
15. On August 6, 1990, the Saltzburgs appeared in Audubon
Municipal Court for a hearing on the summonses issued to them
by Martin. However, Audubon voluntarily consented to stay
prosecution of the Municipal Court actions pending the court's
resolution of the present suit.
1. The United States filed this suit against Audubon alleging
that Audubon's effort to prevent the operation of OH-Vassar
violated the Fair Housing Act, 42 U.S.C. § 3601, et seq.
2. Section 3604(f) of the Act makes it unlawful
(1) 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, rented, or
made available; or
(C) any person associated with that buyer or
The Act specifically defines discrimination to include "a
refusal to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and
enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B).
3. Section 3617 makes it 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 encouraged any other person in
the exercise or enjoyment of, any right granted or
protected by section 803, 804, 805, or 806 of this
4. These provisions prohibit discriminatory housing practices
by municipal governments as well as private parties. Oxford
House-Evergreen v. City of Plainfield, 769 F. Supp. 1329
1991) (challenging city's efforts to prevent operation of local
Oxford House in area zoned for single family residences)
(OH-Evergreen). See also Resident Advisory Board v. Rizzo,
564 F.2d 126
(3rd Cir. 1977), cert. denied, 435 U.S. 908
, 98 S.Ct.
1457, 55 L.Ed.2d 499 (1978); Smith v. Town of Clarkton,
682 F.2d 1055
, 1068 (4th Cir. 1982); Metropolitan Housing
Development Corp. v. Village of Arlington Heights,
558 F.2d 1283
(7th Cir. 1977), cert. denied, 434 U.S. 1025
, 98 S.Ct.
752, 54 L.Ed.2d 772 (1978) (Arlington Heights II);
United States v. Yonkers Board of Education, 624 F. Supp. 1276
(S.D.N.Y. 1985), affd, 837 F.2d 1181
(2nd Cir. 1987), cert.
denied, 486 U.S. 1055
, 108 S.Ct. 2821
, 100 L.Ed.2d 922 (1988);
United States v. City of Birmingham, 538 F. Supp. 819
1982), aff'd and modified as to relief, 727 F.2d 560
Cir.), cert. denied, 469 U.S. 821
, 105 S.Ct. 95
, 83 L.Ed.2d
5. At the outset, we want to make clear that we think the
issue of whether or not the use of the premises at 50-52 Vassar
Road violates Audubon's zoning ordinance is not an issue for
this court to decide. That issue is a state law question which,
as discussed above, is presently before the Audubon Municipal
Court. In this action, we are concerned only with the question
of whether or not, even assuming that the use of the premises
violates Audubon's zoning ordinance, plaintiff is entitled to
the relief it seeks because Audubon has discriminated against
individuals on the basis of a handicap.*fn2
A. Handicap Status Of The Residents:
6. The threshold question we must decide is whether or not
the residents of OH-Vassar are "handicapped" within the meaning
of the Act — i.e., whether or not they are protected under the
Act. We conclude that they are.
7. Under the Act,
"Handicap" means, with respect to a person —
(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,
(3) being regarded as having such an impairment.
42 U.S.C. § 3602(h). This definition was modeled on Section 7
of the Rehabilitation Act, 29 U.S.C. § 706(8)(B), which
prohibits programs receiving federal funds from discriminating
on the basis of a handicap. As the House Report states:
This language is substantially similar to the
definition under the primary federal law
prohibiting discrimination against the
handicapped, the Rehabilitation Act of 1973. The
Committee intends that the definition be
interpreted consistent with regulations clarifying
the meaning of the similar provision found in
section 504 of the Rehabilitation Act.
H.R.Rep. No. 711, 100th Cong., 2d Sess. 22 (1988), U.S.Code
Cong. & Admin.News 1988, pp. 2173, 2183.
8. We find that plaintiff has proven by a preponderance of
the credible evidence that the OH-Vassar residents are
"handicapped" within the meaning of § 3602(h).
9. Audubon does not dispute that alcoholism and drug
addiction are "physical or mental impairments". See
24 C.F.R. § 100.201(a)(3). And, Audubon does not dispute that the residents
are all recovering alcoholics or recovering drug users. All of
the residents who testified at trial testified that they had a
background of drug or alcohol addiction, that they had attended
some sort of rehabilitation program prior to arriving at
OH-Vassar, and that alcoholism is a life-long disease.
10. However, Audubon argues that plaintiff failed to prove
that the OH-Vassar residents are substantially limited in their
major life activities. Under the regulations promulgated by the
Department of Housing and Urban Development to effectuate the
provisions of the Act, "major life activities" are defined as
"functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning
and working." 24 C.F.R. § 100.201(b). Because the OH-Vassar
residents who testified at trial stated that they could walk,
see, hear, speak, breathe, learn and work, Audubon concludes
that they were not substantially limited in their major life
11. We cannot agree with Audubon's limited interpretation of
"major life activities", and we find that the OH-Vassar
residents' drug and/or alcohol addiction did substantially
impair one or more of their major life activities. Initially,
we note that courts have uniformly held that persons suffering
or recovering from alcoholism and/or drug addiction are
"handicapped" under the Rehabilitation Act. See, e.g., Sullivan
v. City of Pittsburgh, 811 F.2d 171, 182 (3rd Cir.), cert.
denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987);
Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989); Crewe v.
U.S. Office of Personnel Management, 834 F.2d 140, 141 (8th
Cir. 1987); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1331
n. 8 (7th Cir. 1980); Tinch v. Walters, 765 F.2d 599 (6th Cir.
1985); Davis v. Bucher, 451 F. Supp. 791 (E.D.Pa. 1978).
12. Le-Etta Welde, a former OH-Vassar resident, testified
that she could not live with her parents because they drank,
and she was afraid that she would relapse — go back to
drinking again — if she lived in that environment. TT 16:
14.5-14.7.*fn3 She also stated that she needed to
live in "a place that I could go home to without alcohol and
drugs, where there wasn't going to be a bar on the corner,
someplace that I can't, didn't know and had a chance to stay
sober in." TT 16: 14.15-14.19. She testified that OH-Vassar
provided a supportive environment which was necessary because
"when you need somebody to talk to, you need another recovering
alcoholic or addict to talk to; a normal person that doesn't
know addiction or recovery wouldn't understand some of the
problems that we go through." TT 16: 52.4-52.8.
13. Elarie Parker, also a former OH-Vassar resident,
testified that she had to live in a place like OH-Vassar
because she needed to be in an environment where there was not
easy access to drugs or alcohol and where she was able to enjoy
the support of other recovering addicts. TT 16: 62.5-62.8.
Parker went back to using drugs and alcohol when she left
OH-Vassar and returned to her previous environment. TT 16:
62.11-62.17. Thereafter, she moved into a residential
rehabilitation program and has remained sober since that time.
She stated that the key to her ability to remain sober is the
support she receives from other recovering addicts. TT 16:
14. The testimony of Welde and Parker is supported by the
testimony of Riley Regan. Regan has been a recovering alcoholic
for 24 years and has obtained extensive personal knowledge of
the effects of alcoholism through his 15 years of work in the
treatment and prevention of alcoholism and drug abuse, and
through his current employment as the Executive Director of the
Governor's Council on Alcoholism (in New Jersey). As Regan
states, the "possibility of relapse is always there, the
possibility of falling right back into the skid row existence
is, is there. All of the research and all of the personal
experiences indicate that an individual has to be in a
supportive environment, has to be around other people that
don't drink, and has to be in a program of recovery forever."
TT 17: 55.20-56.1.*fn4
15. Based on the testimony discussed above, we find that the
OH-Vassar residents' addictions substantially limit their
ability to live independently and to live with their families.
Accordingly, we find that the residents are "handicapped"
under, and are entitled thereby to the protections of, the Act.
We do not think that the list of major life activities set
forth in the regulation was meant to be all-inclusive. Even if
it were, the residents would still satisfy the definition
because their inability to live independently constitutes a
substantial limitation on their ability to "care for
B. Discrimination On The Basis Of A Handicap:
16. Having determined that the residents are entitled to the
protection of the Act, we now must turn to the question of
whether Audubon has discriminated against them on the basis of
their "handicap." We find that Audubon has.
17. The Fair Housing Act makes it unlawful to "make
unavailable or deny" a dwelling because of a handicap.
42 U.S.C. § 3604(f)(1). To establish a prima facie case under the
Act, a plaintiff must show either "discriminatory treatment, or
discriminatory effect alone, without proof of discriminatory
intent." Doe v. City of Butler, Pa., 892 F.2d 315, 323 (3rd
(citations omitted). If a defendant's acts are undertaken with
an improper discriminatory motive, the Act is violated even
though those acts may have otherwise been justified under state
law. Woods-Drake v. Lundy, 667 F.2d 1198, 1202 (5th Cir. 1982);
United States v. City of Parma, Ohio, 494 F. Supp. 1049, 1099
(N.D.Ohio 1980), aff'd, 661 F.2d 562 (6th Cir. 1981), cert.
denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982)
("Actions which are typically lawful . . . lose that character
when they are undertaken for a discriminatory purpose")
(citations omitted). Therefore, although a municipality has a
legitimate governmental interest in regulating land use, we
have a duty under the Act to ensure that interest is
effectuated in a nondiscriminatory manner. OH-Evergreen, supra,
769 F. Supp. at 1344. See also 42 U.S.C. § 3615 ("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 [the Act] shall to that
extent be invalid").
18. We conclude that a predominant motivation behind the
actions of Audubon officials was discriminatory animus. The
record is replete with evidence, both circumstantial and
direct, which exposes this discriminatory purpose.
19. For example, this discrimination is revealed by comments
made by Audubon officials during the course of regular monthly
meetings of its government. In response to complaints from
local citizens at the meeting held July 17, 1990, Mayor Murray
stated, "the minute that I found out about it, I shared the
same sentiments as the residents on Vassar Road. And,
unfortunately, there is nothing more that I would like to do
than to just come in and just tell these people you have until
noon to get out of town." TT 15: 88.15-88.19. Mayor Murray
When made aware of it — all three commissioners
have been working on this from three different
directions trying to arrive at the first solution
and the fastest solution. I can assure you of that.
Commissioner Brecht has been working on the zoning
end of it, Commissioner Johnson has been in
contact, I believe, with Lee Laskin. . . . As well
as some other people. And I have been working with
our Municipal Court because the court falls under
my thing. As soon as I was made aware of this, I
was in contact with our solicitor and I was in
contact with our prosecutor, Dan Weitzman. The
solicitor and our prosecutor have been working to
arrive at an effective solution to get this thing
over with. Tonight I stand prepared to appoint
George Geist, our solicitor, as special counsel and
special prosecutor to direct all the attention
focused on this specific project, being 52 [SIC]
East Vassar Road.
TT 15: 90.21-91.8. Murray later stated that "I appreciate your
concerns, and as I stated before, this is the number one thing
on our agenda at this time. Everything else is pretty much
taking a back seat." TT 16: 154.19-154.22. Murray also stated
that "We are not in the social services to solve everyone's
problems." TT 16: 155.10-155.11.
20. At that same meeting, Solicitor George Geist said that he
"has recommended to the municipal prosecutor that he should
seek the most severe monetary penalty to establish an effective
deterrent to this ongoing activity." TT 15: 90.6-90.8.
Solicitor Geist went on to say that
local officials could probably paper the walls of
this complex with daily issuances on a daily
basis. Now, the first charge was supposed to
incorporate the language for each and every day
subsequent thereto. But, candidly, I think it
would be much more effective if the police
community within the Borough served him on a daily
basis the charges issued by the respective
construction code officials. And I would like to
in a sense oversee a conference of the police
community with the prosecutor, with the zoning
official, with the construction officials, so that
candidly on a joint endeavor under the directive
of the commissioners, we tag-team the individual
through the respective Borough officials.
TT 15: 90.21-91.8.
21. Although this zealous enforcement of local zoning
ordinances would not necessarily
connote discrimination if standing alone, it clearly evidences
a discriminatory motive when considered in conjunction with
Audubon's prior enforcement practices. Zoning Officer Martin
testified that the citations issued to the Saltzburgs were the
first citations he had issued in his one and a half year tenure
as a zoning officer. The Audubon Court Administrator, Kathleen
Dollarton, testified that, between 1986 and April 18, 1991, no
other citations were issued for violations of the ordinances
allegedly breached by the OH-Vassar residents.
22. Despite this history of a general lack of enforcement,
the alleged violations by OH-Vassar were placed at the very top
of the borough's agenda, all branches of the local government
were brought together to "tag-team" the Saltzburgs, and help
was even sought from the local state senator. This contrast
cannot be explained merely by the fact that Audubon officials
thought that the OH-Vassar residents were too noisy, violated
the parking ordinance, or did not constitute a "single-family".
Rather, we find that Audubon's response was motivated by
discrimination against the OH-Vassar residents on the basis of
their status as recovering alcoholics and drug users.
23. Audubon cannot avoid this conclusion by arguing that its
actions were merely a response to community sentiment.
Discriminatory intent may be established where animus towards
a protected group is a significant factor in the community
opposition to which the commissioners are responding.
Yonkers Board of Education, 837 F.2d at 1223-1224; A.F.A.P.S.
v. Regulations & Permits Admin., 740 F. Supp. 95, 104 (D.Puerto
Rico 1990);*fn5 City of Birmingham, 538 F. Supp. at 828.*fn6
The sentiments expressed in these cases is particularly
applicable in this case because, on several occasions, Audubon
officials stated that they agreed with or were responding
directly to community opposition*fn7 which was clearly
24. Moreover, the Act was specifically intended to protect
individuals against community
perceptions of their handicaps. As the Supreme Court recognized
in School Board of Nassau County v. Arline, 480 U.S. 273, 284,
107 S.Ct. 1123, 1129, 94 L.Ed.2d 307 (1987), by defining
"handicap" to include persons regarded as having an impairment,
"Congress acknowledged that society's accumulated myths and
fears about disability and disease are as handicapping as are
the physical limitation that flow from actual impairments."
25. The devastating effects of such myths and fears is amply
demonstrated by the testimony in this case. Le-Etta Welde
Approximately a week after I moved in, I was
mowing the back yard and two older ladies that
lived on the side of us had come out and started
talking to me. And they were very nice, they said
oh, you just moved in; I said yeah. And there's a
couple other girls; I said yes, you know, we're
just renting the house. She goes we're so glad,
you know, 'cause it was vacant for a while, and it
looks so nice, you guys are cleaning up the yard
really nice. I said thank you. Next day I was out
there just raking up, . . . and she came over and
gave me some flowers from her rose garden. I
thought well, this is going to be a really nice
neighborhood. [However, after an article appeared
in the paper explaining that the women were
recovering alcoholics and drug users, the attitude
of the neighbors was] [i]mmediately, totally 100
percent different. The lady wouldn't even say
hello any more. The gentleman across the street
would stand on his curb and talk to the other
neighbors and point at the house. If I walked down
the street and said hi, people would ignore me,
where before they would say hi back. It was a
total shut down.
TT 16: 52.13-53.17. In fact, the tension and stress caused by
the community opposition and by the Borough's efforts
ultimately forced Welde and several other women to leave
OH-Vassar. As Welde explained,
we had gone through a lot of things; we've already
gone through a municipal hearing; a lot of the
girls were leaving, new girls were coming in.
Trying to explain the situation of the Township to
the new girls was giving them a lot of undue
stress, and I, it was just unbearable. You
couldn't walk down the street any more and say
hello, and people — without people just glaring at
you. Some neighbors would actually stand on the
corner and point and talk, and you, you knew they
were talking about that that's the house, you know,
TT 16: 25.16-25.25.
26. For the foregoing reasons, we hold that Audubon has
violated § 3604(f) of the Act — by taking actions "to make
unavailable or deny" the Vassar Road home to the OH-Vassar
residence "because of a handicap," and § 3617 of the Act — by
taking actions to "coerce, intimidate, threaten, or interfere
with [the OH-Vassar residents] in the exercise or enjoyment of
. . . any right granted or protected" by the Act.
27. Having found that Audubon violated the Act, we
(A) may award such preventive relief, including a
permanent or temporary injunction, restraining
order, or other order against the person
responsible for a violation of this title as is
necessary to assure the full enjoyment of the
rights granted by [the Act];
(B) may award such other relief as the court deems
appropriate, including monetary damages to persons
(C) may, to vindicate the public interest, assess
a civil penalty against the respondent —
(i) in an amount not exceeding $50,000 for a
first violation; and
(ii) in an amount not exceeding $100,000 for any
42 U.S.C. § 3614(d)(1). We do not award any relief under
subsection (B) above because a separate action brought by the
Saltzburgs and some of the residents of OH-Vassar and by the
Saltzburgs, (Oxford House Vassar, et al. v. William Taulane, et
al., C.A. No. 90-3762 (D.N.J.)), was voluntarily settled by the
28. We think that injunctive relief under subsection (A)
above is appropriate to insure that Audubon takes no further
steps to interfere with the operation of OH-Vassar or any other
similar group living arrangement of handicapped persons. Mayor
Murray's statement that he wanted "to stop the proliferation of
this type of set-up," TT 15: 91.20-91.22, demonstrates an
intent to prevent other group living arrangements for
handicapped persons from locating in Audubon.
29. We shall also award a civil penalty under subsection (C),
in the amount of $10,000.00. We have found that Audubon
officials acted with an intent to discriminate on the basis of
a handicap, and we believe that this penalty is necessary to
serve the purposes of both retribution and deterrence. The
United States has sought a much more severe monetary penalty.
However, there is no evidence in the record that Audubon has
engaged in discriminatory conduct outside the context of this
case; and, without such evidence, we are willing to view this
case as an aberration which necessitates less than the maximum
penalty allowed by law. However, we want to emphasize that
Audubon officials are hereby on notice, through receipt of this
opinion by the Solicitor for Audubon, that similar
discriminatory conduct in the future will not be tolerated and
will not meet with the same leniency it has met with in this
30. The United States argues that, in addition to the
sanctions imposed above, some affirmative requirements — such
as requiring special fair housing instruction to officials and
employees who may be involved in the interpretation of zoning
requirements and requiring Audubon to report to the United
States any proposed changes in its zoning ordinances for a
period of five years — are also appropriate. However, we do
not think that such measures are warranted at this time. Given
the other sanctions we are imposing, we are confident that
Audubon officials will hereafter diligently comply with the
mandates of the Fair Housing Act. Again, we emphasize that if
our confidence proves to be misplaced, we will not hesitate to
impose more stringent sanctions.
For the foregoing reasons, we hold that Audubon has violated
the Act by discriminating against the OH-Vassar residents and
the Saltzburgs on the basis of a handicap. Accordingly, we
shall impose sanctions in the form of a permanent injunction,
and a civil penalty in the amount of $10,000.00.
The accompanying order has been entered.