On appeal from the Superior Court of New Jersey, Chancery Division, Camden County.
King, Landau and Thomas. The opinion of the court was delivered by King, P.J.A.D.
On this appeal we consider whether two groups of recovering alcohol and substance abusers have a right to live together in single-family residences in Cherry Hill Township, a suburban community of 70,000 residents. These recovering former substance abusers comprise two of about twenty "Oxford Houses" now established in New Jersey. The Chancery Division Judge held that the Cherry Hill Oxford House residents do not satisfy the definition of a "family" contained in Cherry Hill's zoning ordinance and ordered the residents out of the two homes. The Judge also held that these residents, as recovering former substance abusers, were not protected by the Federal Fair Housing Act. 42 U.S.C.A. §§ 3604-3631. We reverse the eviction order and hold that Cherry Hill's current definition of "family" violates the New Jersey Constitution. We also hold that these residents have presented a sound legal claim for protection under the Federal Fair Housing Act.
Oxford House, Inc., a nonprofit organization, assists in establishing independent, self-supporting, self-governing homes where persons recovering from alcohol and drug addiction can live together and provide each other with mutual support and encouragement. All Oxford Houses, to conform to the organization's
guidelines, must be financially self-supported, run democratically, and the residents must immediately expel any resident who relapses into drug or alcohol use. All Oxford Houses are leased, not purchased, and have no exterior characteristics which distinguish them from other residences in their neighborhoods. The first Oxford House was opened in Maryland in 1975. Between 1975 and 1988 over twenty Oxford Houses were successfully established in the Washington, D.C. area.
In 1988 Congress passed the Federal Anti-Drug Abuse Act. 42 U.S.C.A. §§ 300x to 300x-13. As part of this act, and based in part on the Oxford House concept, every state, in order to receive certain federal funding for alcohol and substance abuse services, is required to establish a revolving fund to make start-up loans to recovering individuals for group homes which are alcohol and drug free. 42 U.S.C.A. § 300x-4a; 54 Fed.Reg. 15808 (1989) (advisory guidelines for administration of the program). The extant legislative history regarding this portion of the Anti-Drug Abuse Act speaks most favorably of the Oxford House program. 134 Cong.Rec. E3732-02 ("Self-run and self-supported addiction recovery houses -- such as Oxford House -- hold out great promise as a cost-effective way to help addicted individuals who want to recover.").
Pursuant to the Anti-Drug Abuse Act, groups of four or more recovering alcohol or substance abusers may apply for a loan of up to $4,000 to cover the start-up costs of renting a house, including the security deposit and first month's rent. This loan must be repaid within two years. Any program established under the act must follow four rules: (1) the use of alcohol or drugs must be prohibited, (2) any resident who violates this prohibition must be expelled, (3) the cost of housing must be paid by the residents, and (4) the house must be run in a democratic manner. 42 U.S.C.A. § 300x-4a(a)(6). The program has been quite successful -- over 400 Oxford Houses have been established nation-wide.
In New Jersey, a $100,000 revolving fund is administered by the Department of Health, Division of Alcoholism and Drug Abuse. On September 9, 1988 Oxford House entered into a contract with the State of New Jersey to assist residents in local communities in developing these households for recovering alcoholics and drug addicts. Oxford House attempts to locate homes in quiet single-family neighborhoods away from the temptations of bars and drug-trafficking. Homes are set up by an outreach representative of Oxford House who lives in the house for two or three months, attends weekly house meetings, and assists in filling vacancies in the house. There is no house manager or supervisor, because, according to Joseph Lucarine, a New Jersey Department of Health, Division of Alcoholism and Drug Abuse program development specialist, "Oxford House is not a substance abuse treatment program . . . . [It] is simply a post-treatment, self-governing place of residence for persons well along in the recovery process, but still in need of a place to live."
Once a residence is formed under the Oxford House model and principles, it operates in accordance with rules established by the residents of the house. Some of the more common rules include:
a. Each house is to have an elected officer whose term shall not exceed six months.
b. All decisions are by majority vote.
c. Weekly meetings of the residents are required.
d. New residents must be approved by 80% of the existing residents. To become a resident a written application must be filed.
e. Each resident is to contribute toward the operating costs of the house.
f. All residents prepare their own main meals.
These rules and others have been stressed as the underpinnings of the Oxford House system which unites the residents as part of their particular community. All residents have access to the entire house and share in many common activities. So long as the residents remain alcohol and drug free and continue to pay their share of household expenses, they may remain at the house indefinitely. The typical turnover rate of the residents
at Oxford Houses varies. The turnover tends to be higher when a home is first formed because few of the initial residents know each other. As some of these residents move on, the new residents tend to become friends of longer-term residents and the turnover rate becomes lower.
In April, 1990 an Oxford House was established at 141 Pine Valley Road in Cherry Hill. In May, 1990 an Oxford House was established at 108 Hilltop Court in Cherry Hill. Both are in single-family residential zones. The use of these premises began upon the execution of residential leases with the owners of each property. The owners do not live in the houses. Oxford House, Inc., approved each of these houses for a State of New Jersey revolving loan to cover start-up costs in the amount of $4,000.
On June 12, 1990, over two and one-half years ago, the Township of Cherry Hill filed this complaint in the Chancery Division of the Superior Court against Oxford House, unnamed occupants residing at 108 Hilltop Court and 141 Pine Valley Road, and the owners of the houses. The Township alleged that the properties were occupied in violation of: (1) Cherry Hill Township Ordinance 75-11 which requires the owners of rental property to obtain a certificate of occupancy; (2) Cherry Hill Township Ordinance 76-71 which restricts the use of the properties to single families; (3) N.J.S.A. 40:55D-1 to -129, the Municipal Land Use Law (MLUL), which requires a use variance if the properties were not being used as a residence; and (4) N.J.S.A. 2C:35-7, the "drug free school zone" law which enhances the criminal penalties for distribution of narcotics within 1,000 feet of a school. Cherry Hill Ordinance 76-71 defines a "family" as:
a single individual, doing his own cooking, and living upon the premises as a separate housekeeping unit, or a collective body of persons doing their own cooking and living together upon the premises as a separate housekeeping unit
in a domestic relationship based upon birth, marriage or other domestic bond. [Emphasis added.]
The Township sought both temporary and permanent injunctions forcing the occupants to vacate the properties until they obtained a use variance and a certificate of occupancy under the Township's zoning ordinances.
On June 13, 1990 a Chancery Division Judge refused to enter a temporary injunction and ordered the defendants to apply for a certificate of occupancy. The Judge also ordered the Township to conduct a municipal inspection of the properties and report its findings to the court.
Later on that same day, June 13, 1990, the occupants complied with the court order and filed the applications for certificate of occupancy. The next day the Property Maintenance Inspector and Fire Subcode Official inspected the properties and concluded that there was a change in use under the BOCA National Building Code, as incorporated by the New Jersey Uniform Construction Code, N.J.A.C. 5:23-1.1 to -12.8, from an R-3 single-family residential use to an I-1 institutional use. Under this new use, the properties required an automatic fire alarm system and specialized emergency exits for continued legal occupancy.
On June 15, 1990 the Subcode Official posted a Notice of Imminent Hazard and Notice and Order of Penalty on both premises, requiring immediate evacuation and assessing a weekly fine. This decision was appealable to the Camden County Construction Board of Appeals. Simultaneously, the Township filed an amended complaint asserting the BOCA Code violations and requested that the premises be immediately vacated. On June 22, 1990 the Chancery Division Judge ordered: (1) that officials of the Township be restrained from any further efforts at compelling removal of the occupants from the premises until further order of the court, (2) that all appeals to the Camden County Construction Board of Appeals be stayed, (3) that the Township was not enjoined from citing defendants
for continuing violations of the BOCA Code, and (4) that all claims be heard in the Chancery Division.
Oxford House filed its answer and a counterclaim alleging that the Township's zoning ordinances, on their face and as applied, were both unconstitutional and violated the Federal Fair Housing Act. Oxford House then moved for summary judgment on its counterclaim. Oxford House relied on an expert report from Richard Cohen, a professional planner, who concluded that the use of the properties was consistent with the requirement for single family use under the Township's zoning code. The Township relied on a report from Mary Winder, also a professional planner, who concluded that the properties were being used as rooming houses, a use not permitted under the Township's Zoning Code.
Oxford House also relied upon a July 31, 1990 written opinion issued by John T. Monahan, Assistant Director, Licensing and Inspections of the New Jersey Department of Community Affairs, at the request of Oxford House's counsel, that the Cherry Hill houses did not constitute boarding or rooming homes under State law (N.J.S.A. 55:13B-3). In September of 1990 both Oxford House residences passed reinspection in connection with the Township's certificate of occupancy ordinance. The houses are currently in full compliance with the Township's property maintenance code as of the time of oral argument insofar as both counsel were aware.
On a number of occasions prior to August 1991, the hearings on the Township's application for a preliminary injunction were postponed or canceled by agreement. The original Chancery Division Judge retired and the matter was transferred to his successor. On August 14, 1991 the new Chancery Division Judge heard oral argument on the Township's motion for a preliminary injunction and Oxford House's motion for summary judgment. An agreement was reached between both counsel, not as a result of any request by the Judge, that the motions be decided upon the submissions then before the court with no
presentation of live testimony, even though the Judge offered the parties an opportunity to present evidence at the time the case was submitted in August 1991.
On April 27, 1992 the Chancery Judge issued his ruling in favor of the Township. His decision was based in part on deposition testimony from June and July of 1990, as well as an August 1991 submission of affidavits by Oxford House. The Chancery Judge found that: (1) the occupants of the two homes did not constitute a family, (2) the occupants were not "handicapped" as defined by the Federal Fair Housing Act, and (3) the Township did not attempt to enforce its laws selectively or in a discriminatory fashion. He denied Oxford House's motion for summary judgment and the Township's application for fines. He ordered the occupants to vacate the premises within 60 days.
The Chancery Judge's opinion also provided that if Oxford House contended that evidence discovered subsequent to the closing of the record showed that the homes met the requirements of law, Oxford House should submit an application to the Township for a certificate of occupancy within 60 days; otherwise, it should apply for a use variance within 60 days and make an application for a stay of the eviction order. On May 1, 1992 Oxford House filed a motion for reconsideration, or in the alternative, to supplement the record to provide testimony regarding the current use of the premises by the present residents. On May 15, 1992 the Chancery Judge denied this motion.
On May 26, 1992 Oxford House filed a motion with this court for leave to appeal and for emergency relief, and for a stay of the Chancery Judge's April 28, 1992 eviction order. On May 29, 1992 we granted the motion for leave to appeal and stayed the Chancery Judge's order of eviction. This stay was conditioned "on the obligation of [Oxford House] to apply [promptly] to the Zoning Board for interpretative relief, and, if necessary, for appropriate zoning relief under the MLUL, N.J.S.A. 40:55D-70(b)
pending resolution of this appeal . . . ." During June 1992, Oxford House applied to the Cherry Hill Zoning Board for an interpretative ruling that the premises at 141 Pine Valley Road and 108 Hilltop Court be considered ...