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.
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 ...