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U.S. v. BOROUGH OF AUDUBON

September 9, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BOROUGH OF AUDUBON, NEW JERSEY, DEFENDANT.



The opinion of the court was delivered by: Gerry, Chief Judge.

OPINION

INTRODUCTION

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 witnesses heard and the other evidence received during that trial, we make the following findings of fact and conclusions of law.

BACKGROUND

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 duplex.

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.

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 Court.

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.

DISCUSSION

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 ...

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