residence homes for handicapped persons with onerous requirements. The court specifically concludes that plaintiffs have demonstrated a strong likelihood of success on the merits of their discrimination claims.
In opposition to plaintiffs' application, and in support of their cross-motion for summary judgment, defendants make several arguments which seek to undercut plaintiffs' claims on the merits. Defendants contend that this "is a zoning case." Def. Brief at 1. Generally, defendants suggest that the newly amended Ordinance, which redefines community residences for the developmentally disabled as conditional uses, is the essential starting point of this litigation in the sense that plaintiffs must attempt to comply with this Ordinance in order to challenge it. However, plaintiffs' Fair Housing Act discrimination claim arises in the context of and as a result of a series of Town efforts to prevent plaintiffs from opening their community residence, a series of events in which the Ordinance comes as a final salvo. Indeed, given the history of the Town's efforts with respect to this project, passage of the Ordinance only adds further support to plaintiffs' already strong claim that the Town defendants are discriminating against plaintiffs on the basis of a handicap, in violation of the Fair Housing Act.
The court will address each of defendants' arguments, all of which, the court concludes, are without merit. First, defendants argue that there is no justiciable controversy here because "Easter Seals has never submitted its zoning proposal to any municipal administrative body for the purpose of a hearing on the merits." Def. Brief at 6. However, rather than cite to any precedent which supports defendants' contention that plaintiffs must submit a conditional use application prior to bringing this suit, defendants merely point out that plaintiffs' Fair Housing Act citations often occurred in a post-application context.
As plaintiffs convincingly demonstrate in their Reply Brief, the Fair Housing Act redresses many types of discrimination, including the "refusal to make reasonable accommodations in rules, policies, practices or services." 42 U.S.C. 3604(f)(3)(B). Indeed, it was on this basis that in Ardmore, Inc. v. City of Akron, 90-CV-1083, slip op. (E.D. Ohio Aug 2, 1990) (Pa9), the court issued a preliminary injunction where the plaintiffs had withdrawn their application for a conditional use permit prior to a hearing. As the Ardmore court reasoned, plaintiffs need only show a "likelihood that the City's ordinance will be found violative of rights so protected [by the Act]." Id. at 11.
Plaintiffs allege that the Ordinance has a discriminatory impact, which is akin to a "facial" challenge (see Plt. Reply Brief at 7); plaintiffs can prevail on the basis of a showing that the Ordinance has a greater adverse impact on a protected group than on others, and that it perpetuates an existing pattern of segregation in the community. See Oxford House-Evergreen, 769 F. Supp. at 1344, citing Metropolitan Housing Dev. Corp. v. Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 54 L. Ed. 2d 772, 98 S. Ct. 752 (1978). Thus, plaintiffs present the court with a justiciable controversy regarding the Ordinance.
In addition, with respect to plaintiffs' intentional discrimination claim, defendants ignore the fact that plaintiffs have submitted their application and appeal of the building permit to the public process. It is plaintiffs' contention that the Town's actions as they pertain to that process establish the basis for their discrimination claim. Moreover, as described supra, the circumstances surrounding passage of the Ordinance only further support plaintiffs' intentional discrimination claim.
Finally, the court specifically concludes that plaintiffs have established that they currently suffer harm as a result of defendants' allegedly illegal actions. The Town attorney has indicated that the Ordinance will be enforced against Easter Seals (Pa 199), and thus, Easter Seals relies on Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir. 1988), cert. denied, 488 U.S. 822, 102 L. Ed. 2d 44, 109 S. Ct. 67, 102 L. Ed. 2d 44 (1988), for the proposition that Easter Seals presents a justiciable controversy due to the imminent application of an allegedly onerous Ordinance. In addition, as plaintiffs point out, the alleged discrimination in violation of the Fair Housing Act is presumed to be irreparable harm. Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423-24 (11th Cir. 1984), cert. denied, 469 U.S. 882, 83 L. Ed. 2d 187, 105 S. Ct. 249 (1984). Finally, and most importantly, this court specifically concludes that the prospective tenants of the community residence currently suffer and will imminently suffer irreparable harm given the delay of their treatment as a result of defendants' actions. See infra part 3. This case clearly presents a justiciable case and controversy.
Next, defendants contend that Easter Seals' motion for a preliminary injunction must be denied and the Complaint dismissed because Easter Seals has failed to exhaust administrative remedies. Specifically, defendants argue that Easter Seals is obliged to pursue two separate appeals: (1) "a zoning issue" to the North Bergen Zoning Board of Adjustment pursuant to N.J.S.A. 40D:55D-1 et seq. ; and (2) the construction permit from the Board of Adjustment to the Hudson County Construction Board of Appeals pursuant to N.J.S.A. 52:27D-127b. See Def. Brief at 9-13. It is not clear what the "zoning issue" is which defendants expect plaintiffs to appeal. (If it is the validity of the amended Ordinance, the court has already rejected defendants' argument that plaintiffs must first present the Zoning Board with their challenge to the Ordinance.) In any event, defendants themselves concede that any exhaustion requirement -- were one to exist -- is exempted "if the prescribed administrative procedure is clearly to be shown to be inadequate to prevent irreparable injury, or when there is a clear and unambiguous statutory violation[.]" Def. Brief at 10, citing American Fed. of Gov't Emp. v. Resor, 442 F.2d 993, 995 (3d Cir. 1971). As discussed throughout this opinion, that is exactly the case here. Plaintiffs currently suffer irreparable injury each day that their treatment is delayed, and plaintiffs have a strong likelihood of success on their discrimination claims. Any further efforts by plaintiffs to work within the municipal administrative apparatus would be an exercise in futility. See Doe v. Butler, 892 F.2d 315, 322 (3d Cir. 1989). Accordingly, the court rejects defendants' exhaustion argument.
Third, defendants argue that the Amendment to the Zoning Ordinance is accorded a presumption of validity. Essentially, defendants argue that the terms provided for within the amended ordinance can only be invalid if they are arbitrary, unreasonable, or bear no rational relationship to a permissible state objective. Def. Brief at 15, citing Lusardi v. Curtis Point, 86 N.J. 217, 226, 430 A.2d 881 (1981) and State v. C.I.B. International, 83 N.J. 262, 274, 416 A.2d 362 (1980). Defendants then conclusorily state: "No evidence has been submitted that same has a 'discriminatory effect.'" Def. Brief at 18.
To the contrary, as described supra, plaintiffs have presented a strong case in support of their discriminatory impact claim, and the circumstances surrounding passage of the Amended Ordinance suggest intentional discrimination on the part of the Town officials and agencies involved. See Oxford House-Evergreen, 769 F. Supp. at 1343 ("Given the sequence of events in this case, the declared motives suggest possible operation of a pretext for discrimination"). Under these circumstances, a general "presumption of validity" does not undermine or overcome plaintiffs' strong likelihood of success on the merits.
Next, defendants argue that plaintiffs are precluded from recovery in this case because the residence has not yet been licensed by the DMH&H and thus, the proposed community residence does not satisfy the criteria for a community residence for the developmentally disabled. See N.J.S.A. 40:55D-66.2(a); Piscataway Tp. v. Concerned Citizens for C.P.A., 200 N.J. Super. 615, 619, 491 A.2d 1333 (App. Div. 1985) (community residence facility requires licensure). This argument is ludicrous. Obviously the plaintiffs cannot complete licensing of the facility if defendants refuse to issue the necessary construction permits. The Fair Housing Act clearly prohibits any discrimination against or interference with individuals who "intend " to establish an otherwise proper community residence. See 42 U.S.C. § 3604(f)(1)(B).
Defendants next argue that plaintiffs only suffer future harm, thereby reiterating their initial argument that this case is not justiciable or ripe. Def. Brief at 21-26. The court has already rejected this argument, especially in light of the clear irreparable injury which the prospective residents suffer in the delay of their treatment. See part 3, infra.
Finally, defendants contend that the Complaint must be dismissed because plaintiffs have failed to join the State of New Jersey as an indispensable party pursuant to Fed. R. Civ. P. 19. Defendants contend that New Jersey is an indispensable party because plaintiffs' challenge to the Amended Ordinance also challenges the state authorizing statutes which allow municipalities to implement zoning regulations. Again, this argument is entirely ludicrous; plaintiffs challenge the local zoning amended Ordinance, not the Town's general right to design zoning regulations consistent with other applicable law.
In sum, defendants have not presented any arguments which rebut plaintiffs' strong likelihood of success on the merits of their discrimination claims. Indeed, the obvious deficiencies of many of defendants' arguments only reinforce plaintiffs' contention -- as well as defendants' own admission -- that the defendants will erect any barrier in order to stall or stop this community residency project.
2. Plaintiff is Exposed to Irreparable Harm
Plaintiffs rely on the affidavit of Riley Regan, the New Jersey Executive Director of the Governor's Council on Alcoholism and Drug Abuse, in which Mr. Regan attests to the fact that half-way houses such as plaintiffs' proposed community residence are essential to guard against the relapse of the resident recovering chemical abusers. Pa 165 et seq.
Many cases within this Circuit, have acknowledged and accepted the now well-recognized reality that placement in community residences such as the one at issue in this case is integral to the prospective residents' continuing treatment and recovery. In Sullivan v. City of Pittsburgh, 811 F.2d 171, 179 (3d Cir. 1987), cert. denied, 484 U.S. 849, 98 L. Ed. 2d 104, 108 S. Ct. 148, the Third Circuit found irreparable harm justifying preliminary injunctive relief where recovering alcoholics challenged Pittsburgh's zoning-based closing of alcoholism treatment facilities. The court reasoned:
[Plaintiffs] are primarily recovering alcoholics who are in a critical state of their recovery.  Without proper care, supervision and peer support each could easily suffer a relapse. For these alcoholics, a relapse threatens not only a potentially irremediable reversion to chronic alcohol abuse but immediate physical harm or death.
811 F.2d at 179. Similarly, this court previously has had occasion to conclude that interference with the establishment of a functioning community residence for recovering chemical abusers threatens those individuals with the irreparable harm of a relapse. Oxford House-Evergreen, 769 F. Supp. at 1339-40, 1345.
Although plaintiffs have yet to identify the "John Does" who will live in the prospective residence, there is no doubt that for each day that this project is delayed, eight protected individuals are forced to move into other environments which endanger their recent recovery. This threatened harm is truly irreparable, jeopardizing the health and safety of those individuals. Given this reality, as recognized by prior case law, the court finds that plaintiffs have demonstrated a likelihood of irreparable harm should the court deny the requested relief.
In addition, plaintiffs argue that the court may presume irreparable harm upon a finding of intentional discrimination in violation of the Fair Housing Act. Plt. Reply Brief at 7-8, relying on Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423-24 (11th Cir. 1984), cert. denied, 469 U.S. 882, 83 L. Ed. 2d 187, 105 S. Ct. 249 . In Oxford House-Evergreen, this court declined to reach the question raised in Gresham, i.e., whether a strong likelihood of success on a Fair Housing Act discrimination claim justifies a presumption of irreparable injury which flows from that discrimination. Again, this court need only observe that the likelihood of irreparable injury to the prospective residents is so strong that the court need not reach Gresham 's alternative basis for a finding of threatened irreparable harm.
3. Defendants Will Not Suffer Substantial Harm
Granting plaintiffs their requested preliminary relief -- an injunction ordering defendants to issue plaintiffs a construction permit, and enjoining all unlawful interference with plaintiffs efforts and failure to make reasonable accommodations as required by statute -- will not cause defendants to suffer any substantial harm. To the contrary, as noted in Oxford House-Evergreen, opening the proposed community residence will ultimately save taxpayer money. 769 F. Supp. at 1345.
Defendants only basis for arguing that the Town will suffer is their contention that "Township officials must cower from an alleged threat of discrimination when it seeks to enforce its laws in a uniform manner." Def. Brief at 31. However, given the evidence cited above, there is every indication that defendants did discriminate and did not apply their laws in a uniform manner. The preliminary injunctive relief will not resolve these issues until this case is concluded, but it will preserve the controversy without requiring plaintiffs to suffer any further irreparable harm.
4. The Requested Relief Is In the Public Interest
Finally, the court concludes that plaintiffs' requested relief serves the public interest reflected in N.J.S.A. 26:2B-1, which provides:
Alcoholism and drug abuse are major health problems facing the residents of this State. The Legislature further finds and declares that as the cooperative and active participation of all communities in the State is necessary to achieve the goal of reducing alcoholism and drug abuse . . . and that the full resources of this State including counties, municipalities, and residents of the State must be mobilized and persist in a sustained manner to achieve a response capable of meaningfully addressing not only the symptoms but the root cause of this pervasive problem.