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October 25, 1994

CITY OF ELIZABETH, a municipal corporation of the State of New Jersey, CITY COUNCIL OF THE CITY OF ELIZABETH, and WILLIAM RAPP, in his capacity as Director of Construction for the City of Elizabeth, Defendants.

The opinion of the court was delivered by: HAROLD A. ACKERMAN

 Ackerman, D.J.

 This matter comes before the court today upon a motion by plaintiffs for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons detailed below, plaintiffs' motion is GRANTED.

 I. Introduction

 This case involves the following question: Does a municipal ordinance, and the state statute upon which the ordinance is based, that sets up three barriers to the provisioning of community residences for people with developmental disabilities violate the Fair Housing Amendments Act of 1988. Let me begin by setting forth the relevant parties.

 Plaintiff Association for Advancement of the Mentally Handicapped, Inc. ("AAMH") is a nonprofit corporation that provides social support services, including assistance obtaining housing, employment, education, financial management and medical assistance, to its developmentally disabled members. AAMH also manages and holds an ownership interest in plaintiff Creative Property Management of N.J., Inc.

 Plaintiff Creative Property Management of N.J., Inc. ("CPM") is a nonprofit corporation which purchases and holds real estate for use and occupancy by developmentally disabled persons.

 Plaintiffs Annie Sims and James Williams are members of AAMH living semi-independently in Elizabeth with support and services provided by AAMH. Both are developmentally disabled.

 The defendants in the case are the City of Elizabeth, the City Council of the City of Elizabeth, and William Rapp, who is the director of construction for the city of Elizabeth.

 II. Factual and Procedural Background

 The following constitutes the undisputed facts of record in this case:

 In December of 1990, SERV Centers of New Jersey, Inc., ("SERV") entered into a contract with the New Jersey Department of Human Services ("DHS") pursuant to which SERV would provide a transitional community residence for emotionally disturbed children discharged from Elizabeth General Hospital. SERV then located a suitable house under construction on Livingston Road in Elizabeth. The Elizabeth Construction and Zoning Department informed SERV that a community residence for the developmentally disabled was a permitted use at this location. Consequently, SERV contracted to buy the house.

 In September of 1991, members of the community in which the SERV house was located learned of SERV's intended use for the house. On September 15, they voiced their concerns about the house at a meeting with Elizabeth City Councilman Robert Jaspen. In particular, people were concerned that their children might not be safe if the SERV residence housed emotionally disturbed children.

 Upon being informed of the situation by Councilman Jaspen, then Elizabeth Mayor Thomas Dunn called a meeting with his department heads to discuss the situation. At the meeting Mayor Dunn "strongly suggested" to Elizabeth Director of Construction, William Rapp that he take every legal step to stop the renovation of the SERV house until an investigation of the situation could be completed. Director Rapp stated that he had sufficient legal reasons to issue a stop work order and it was thereafter issued. Mayor Dunn later stated, referring to this meeting,

there was a general attitude initiated by myself, . . ., that, 'Well, we better damn well stop what's going on up there in view of the fact that [SERV] didn't communicate with the city through proper channels.'

 Deposition of Thomas Dunn, Joint Appendix of Plaintiffs at 52a-53a [hereinafter "Dunn Dep."].

 Mayor Dunn also contacted Mr. Steven Ramsland, the President of SERV. Mr. Ramsland informed the Mayor that the SERV house would be occupied by eight severely emotionally disturbed teenagers. Mayor Dunn later stated that he told Mr. Ramsland of his "disgust and of [his] determination to use every legal and proper maneuver available to [the mayor] to stop SERV's invasion of Elizabeth." Dunn Dep. at 30a-31a. When later explaining this comment, the Mayor stated that he thought it to be "illegal", "when a highly residential neighborhood was to be changed in character without any communication to the Mayor and Chief Executive of the City, nor to the City Council." Id.

 On September 18, 1991, Mayor Dunn sent a telegram to the State Commissioner of DHS requesting that funding for the SERV house be withdrawn. On September 19, 1991, Mayor Dunn spoke to a group of--by the Mayor's estimation--600 to 700 residents of Elizabeth who were concerned about the SERV situation. Referring to SERV, the Mayor told the crowd,

The law may seem, to the enemy, to be on its side. If so, the law must be changed. Regardless of words in the law, right is on our side.

 Dunn Dep. at 39a. The Mayor later explained what he meant by this statement. The Mayor stated that Mr. Ramsland, the president of SERV, told him that neither the mayor nor the city council need be consulted prior to the establishment of a residence like the SERV house. The Mayor concluded that if Mr. Ramsland's statement of the law was correct, then the law was wrong and should be changed.

 On October 7, 1991, at a special meeting, the Elizabeth Planning Board adopted a resolution recommending that the Elizabeth City Council amend the city's zoning code. The city zoning code was subsequently amended by Ordinance No. 2426 which required conditional use permits for community residences housing more than six developmentally disabled persons. Ordinance No. 2426 further provided, among other things, that a conditional use permit would be automatically denied in two situations:

1) if the proposed residence is located within 1,500 feet of an existing residence for developmentally disabled; or
2) if existing community residences or community shelters within the township exceed 50 persons or 0.5% of the township population, whichever is greater.

 The ordinance drew its authority from the New Jersey Municipal Land Use Law ("MLUL"). N.J.S.A. 40:55D-66.1 et seq. The MLUL generally permits community residences for the developmentally disabled, however, in the case of community residences housing more than six persons, it authorizes municipalities to enact zoning ordinances that require conditional use permits. Requirements for the issuance of these conditional use permits must be "reasonably related to the health, safety and welfare of the residents of the district." N.J.S.A. 40:55D-66.1. The statute also provides that a conditional use permit may be denied if (a) the residence will be located within 1,500 feet of an existing residence or community shelter for victims of domestic violence, or (b) the number of persons, other than resident staff, residing at existing such residences or shelters within the municipality exceeds the greater of 50 persons or 0.5% of the municipal population. Id.

 On December 23, 1991, the Elizabeth City Council passed Ordinance No. 2434 which added a third situation in which a conditional use permit would be automatically denied: if the proposed community residence is within 1,500 feet of a school or day care center.

 At this point the plaintiffs in this case entered the picture. In December of 1991, CPM purchased a condominium unit in a complex in Elizabeth known as Joelle Manor. *fn1" AAMH offered the unit to plaintiffs Annie Sims and James Williams. CPM subsequently applied to the city for a certificate of occupancy. In a letter to AAMH's attorney in response to the application, defendant William Rapp stated that the proposed use of the condominium--housing developmentally disabled persons--would violate "the requirement of not being 'located within 1500 feet of a community residence' ... since the AAMH has indicated ... that it has 'ownership interest as to seven of twelve units contained in the building.'" Letter of William Rapp, January 17, 1992, Joint Appendix of plaintiffs at 165a-166a. On January 22, 1992, Rapp denied the certificate of occupancy.

 On February 13, 1992, AAMH and CPM filed this action against defendants alleging housing discrimination against developmentally disabled persons based on various federal and state grounds. On February 24, 1993, Annie Sims and James Williams filed a separate civil action against the same defendants and also alleged that defendants' actions violated both federal and state law. These cases were consolidated in April of 1992.

 After the commencement of this suit, on June 23, 1993, the City of Elizabeth enacted Ordinance No. 2607 which revised the requirements for the granting of conditional use permits for community residents with more than six residents. However, the ordinance retains the three restrictions which are the subject of this motion. The ...

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