The opinion of the court was delivered by: H. LEE SAROKIN
The plaintiffs in this matter seek to establish and to maintain a facility in North Bergen for the developmentally disabled. Town officials and residents oppose the proposed use. They have declared their intention to prohibit it and have erected legal barriers to its opening. Confronted with a similar conflict in another case, this court wrote:
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.
The court makes that same plea for understanding and compassion in this matter as well. The need for a facility of this type and the benefits which it will confer upon its occupants must be balanced against the concerns and fears of those who will be its neighbors. However, if the parties cannot recognize and accommodate the respective rights and concerns involved, as appears to be the case here, then the Court is left with no choice but to adjudicate the issues presented.
Before the court is plaintiff's motion for a preliminary injunction, and defendant's cross-motion for summary judgment.
Plaintiff, The Easter Seals Society of New Jersey, brings this action on behalf of itself and the yet to be identified handicapped individuals ("John Does") who are expected to live in a community residence for developmentally disabled located at 700 79th Street in North Bergen, New Jersey. The adult males expected to live in the residence all will have a primary diagnosis of a psychiatric disorder and a secondary diagnosis of substance abuse, a status sometimes referred to as a Mentally Ill Chemical Abuser (MICA). The residence would accommodate a maximum of eight individuals. Plaintiffs contend that the defendants -- The Town of North Bergen, Mayor Sacco, the North Bergen Board of Commissioners, and the Construction Code Official -- are discriminating against the residents on the basis of handicap in violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3619, in their efforts to prevent the residence from opening. Plaintiffs ask this court to order the Town to issue a construction permit, thereby permitting the necessary renovations to the residence, and they further seek an order enjoining the Town from interfering with the operation of the residence until the conclusion of this case. Plaintiffs contend that defendants efforts threaten irreparable harm to the individuals hoping to live in the residence.
The relevant undisputed facts are as follows. In January 1989, the New Jersey Division of Mental Health and Hospitals ("DMH&H") issued a Request for Proposal for an eight person MICA residence in Passaic or Hudson counties. DeMuro Aff. P5, Pa 129. Easter Seals submitted a proposal, which includes numerous staff and continuous twenty-four hour a day supervision within the residence. Pa 273, 288. DMH&H awarded the contract to Easter Seals based on its strong proposal. DeMuro Aff. P9, Pa 130-31. (The many details of the community residence proposal generally are not relevant to the instant dispute.)
In the Fall of 1989, DMH&H and Easter Seals began contract negotiations, and Easter Seals began the site selection process, subject to DMH&H review. DeMuro Aff. PP10-11, Pa 131. The DMH&H rejected many sites proposed by Easter Seals, but accepted the North Bergen site. The sites are selected based on the anticipated costs of purchase and renovation (DeMuro Aff. P13, Pa 131-32), and are purposefully located in "a good single family neighborhood." Regan Aff. P17, Pa 169. Easter Seals was not required to give prior notice to North Bergen officials of the facility. See Attorney General informal opinion dated November 7, 1991 (Pa 319). Easter Seals purchased the site, and in December 1990, DMH&H and Easter Seals entered into a Purchase of Service contract effective June 1, 1991 to June 30, 1992 (Pa 376) for an eight-person MICA community residence at the North Bergen site. The DMH&H cannot license the facility until the necessary renovations are completed. DeMuro Aff. P26, Pa 134.
However, renovations have not begun because the Town Construction Code Official refuses to issue a construction permit. The Official (defendant Scala) initially denied the permit because the plans included a small office space in the basement which he deemed to be a non-permitted use in an R-1 zone. Pa 327. Thus, Easter Seals submitted a revised plan which deleted the office. Mr. Scala then asked for information regarding the community residence, and Easter Seals complied with that request. Pa 328-29. Mr. Scala again denied Easter Seals' plan based upon his position that the "proposed use of this property is not a permitted use in this zone." Pa 330-31; Pa 436-39.
Specifically, Scala concluded that the residence was an I-1 use in an R-1 zone. Scala Cert. Exh. G. In support of his I-1 classification, Scala relied on the "Boca National Building Code," section 307.2, which provides:
This use group shall include buildings and structures, or parts thereof, which house six or more individuals who, because of age, mental disability or other reasons, must live in a supervised environment but who are physically capable of responding to an emergency situation without personal assistance. Where accommodating persons of the above description, the following types of facilities shall be classified as I-1 facilities: board and care facilities, half-way houses, group homes, social rehabilitation facilities, alcohol and drug centers and convalescents facilities. A facility such as the above with five or less occupants shall be classified as a residential use group.
Scala Cert. Exh. I. According to Scala's Certification, New Jersey Construction Code Officials use the BOCA Code. Scala Cert. P12, citing N.J.S.A. 52:27D-119 et seq. However, defendants themselves cite N.J.S.A. 40:55D-66.1, which provides:
Community residences for the developmentally disabled and community shelters for victims of domestic violence shall be a permitted use in all residential districts of a municipality, and the requirements therefor shall be the same as for single family dwelling units located within such districts; provided however, that, in the case of a community residence for the developmentally disabled or community shelter for victims of domestic violence housing more than six persons, excluding resident staff, a zoning ordinance may require for the use or conversion to use of a dwelling unit to such a community residence or shelter, a conditional use permit in accordance with section 54 of the act to which this act is a supplement. . . . (Emphasis added.)
See also Department of Community Affairs Formal Technical Opinion No. 2, Guerra Aff. Exh. C (classifying community residences housing between 5 and 15 persons over 2 1/2 years of age as R-2); Letter from New Jersey Director of Housing and Development, Guerra Aff. Exh. D (municipalities must classify community residences as R-2).
Plaintiff appealed Scala's denial of the Construction Permit to the North Bergen Board of Adjustment. Pa 332-34. The Board of Adjustment required Easter Seals to file application forms and to send notice to all property owners within 200 feet of the site, notwithstanding the fact that at issue was a denial of a construction permit and not an application for development pursuant to N.J.S.A. 40:55D-3. Pa 432-45. Nonetheless, in order to have the Board hear its appeal, Easter Seals sent notice to all owners (except Mr. and Mrs. Arias, due to inadvertence), and published notice in the local newspaper. However, after carrying the hearing, the Board refused to hear the appeal based on insufficient notice. Pa 448-51. At the subsequent hearing on March 4, 1992, counsel for the Board reversed his earlier position and agreed that the appeal did not require public notice, but nevertheless urged the Board to exercise its discretion and to defer the appeal. Pa 476-77, 456. At an April 8, 1992 North Bergen Board of Zoning Adjustment meeting, Mayor Sacco stated:
The war continues. An adjournment like this is a victory. Just like last month when they didn't get their papers in on time. Every month that we last and that doesn't proceed we're ahead. And keep looking at it that way.
I'm not going to stay because the attorney that you hired feels that my presence isn't good cause we're going to be in court and they could say I'm biased. Okay. They can say anything they want. If I stay here, it gives a little more weight to their argument. So at the risk of hurting this movement at all, I'm gonna step out. Everything is well under control. Pa 150-51.
Finally, at the May 13, 1992 meeting the Board dismissed Easter Seals' case without comment. Pa 483-84.
Easter Seals contends that this improper treatment of its application for a construction permit and its appeal was based on illegal discrimination by the Town officials. In support of this claim, Easter Seals cites the following comments made by Mayor Sacco, including:
[Easter Seals has] absolutely no right to come here. [I will] turn the lawyers loose [on them] to stop the project (Pa 181);
[Easter Seals] are not getting any permits from this township. They will probably bring us to court, but that's okay. We will fight them in court. Pa 184.
In addition, the Winter 1992 edition of the Town Newsletter, North Bergen Update, reads:
The Township is supporting the efforts of more than 300 area residents who have joined forces to stop the State of New Jersey and Easter Seals from opening a half-way house for mentally ill drug addicts at 700 79th Street.
Neighbors and town officials believe it is morally wrong and have vowed to stop this half-way house from opening. Pa 186.
Plaintiffs also cite the Town's involvement in fueling community opposition to the residence, such as providing senior citizen buses to transport residents to the ...