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December 30, 1996

THE ARC OF NEW JERSEY, INC., a New Jersey non-profit corporation; MENTAL HEALTH ASSOCIATION IN NEW JERSEY, INC., a New Jersey non-profit corporation; CAMDEN COUNTY UNIT OF THE NEW JERSEY ASSOCIATION FOR RETARDED CITIZENS, INC., a New Jersey non-profit corporation; J.F., G.F., and R.W., three incompetent adults, by their guardian, the Bureau of Guardianship Services of the New Jersey Division of Developmental Disabilities (David Hearn, Guardianship Worker); and the MENTAL HEALTH ASSOCIATION IN SOUTHWESTERN NEW JERSEY, INC., a New Jersey non-profit corporation, Plaintiffs,

The opinion of the court was delivered by: BROTMAN


 Over two years ago another Judge of this Court, the Honorable Harold A. Ackerman, U.S.D.J., determined that certain provisions of a New Jersey zoning enabling statute violated the nation's Fair Housing Amendments Act of 1988 (the "FHAA"). The FHAA prohibits discrimination in housing against persons with handicaps. Judge Ackerman declared the State's enabling provisions invalid to the extent they permitted municipalities to enact zoning ordinances which violated the FHAA in their discrimination against developmentally disabled individuals. Since Judge Ackerman's determination, however, the New Jersey Legislature has not as yet amended the enabling provisions to conform to the FHAA.

 The issue of these provisions' validity is again before the Court, in this action filed after a township in southern New Jersey enacted an ordinance regulating community residences. The township has since repealed the ordinance. The plaintiffs, however, have pressed their case against the State with regard to the two enabling provisions invalidated by Judge Ackerman, as well as another provision which he declared discriminatory on its face. Notwithstanding Judge Ackerman's decision, the Attorney General of New Jersey has filed a summary judgment motion in this action contending the provisions in question do not violate the FHAA, other Federal statutory laws, or constitutional provisions. Plaintiffs have filed a cross-motion arguing to the contrary. For the reasons stated below, the Court grants partial summary judgment to plaintiffs on the grounds that the enabling provisions violate the FHAA. The Court declares these provisions null and void insofar as they relate to community residences for the developmentally disabled, and orders the Attorney General of New Jersey to transmit a copy of the Court's ruling to the State Legislature and the State's municipalities.



 This action arises out of a dispute over the siting of a community residence for seven developmentally disabled men *fn1" in Voorhees Township, New Jersey. In December 1990, the Organization for the Advancement of Retarded Citizens ("OARC") received a zoning permit to locate such a residence on Chandler Lane in Voorhees. Soon thereafter, neighbors filed an appeal with the Voorhees Township Zoning Board in an attempt to force the township to revoke the permit. These residents were successful: On April 4, 1991, OARC's zoning permit was revoked. Undaunted, OARC challenged the revocation of their permit by filing an action in lieu of prerogative writ with the Superior Court of New Jersey, Law Division, Camden County. Subsequently, that court ruled in favor of OARC by restoring its zoning permit allowing the Chandler Lane property to be used as a community residence.

 A number of Voorhees residents also urged the Township Committee of the Township of Voorhees to adopt a zoning ordinance treating community residences for the developmentally disabled as "conditional uses." *fn2" As with the zoning permit battle, these residents were initially successful: On April 22, 1991, the Committee adopted a zoning ordinance requiring community residences for the developmentally disabled and shelters for victims of domestic violence housing seven or more persons, excluding resident staff, to meet a number of specifications in order to receive a conditional use permit.



 In March 1993, approximately two years after enactment of the Voorhees ordinance, OARC and other plaintiffs *fn6" instituted an action in this Court against Voorhees and its Committee (collectively, the "Voorhees Defendants"). The plaintiffs alleged that the ordinance discriminated against developmentally disabled and mentally ill persons in violation of several federal and state statutory and constitutional provisions. Further, the plaintiffs sought injunctive and declaratory relief as well as compensation for economic damages.

 In October 1993, the plaintiffs amended their Complaint to name the State of New Jersey as a defendant and to challenge the conditional use, spacing, and ceiling quota provisions of Section 66.1 of the MLUL. Plaintiffs claimed that these provisions violated: (1) the Fair Housing Act ("Title VIII"), as amended by the FHAA; (2) the Americans with Disabilities Act; (3) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994); and (4) the Due Process and Equal Protection Clauses of the United States and New Jersey Constitutions.

 In February 1995, while this litigation was pending, Voorhees repealed the challenged ordinance in its entirety. Both the Voorhees Defendants and New Jersey then filed motions to dismiss the plaintiffs' Amended Complaint on grounds of mootness and lack of standing. The Court denied those motions in March 1996.

 Subsequently the Voorhees Defendants were dismissed from the suit by stipulation, and plaintiffs and the State submitted the present cross-motions for summary judgment directed at the validity of the enabling provisions.



 The standard for granting summary judgment is a stringent one, but it is not insurmountable. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Serbin v. Bora Corp., 96 F.3d 66, 69 n.2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence to the non-moving party. Serbin at 69 n.2. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Supreme Court decisions mandate that a summary judgment motion must be granted unless the party opposing the motion "provides evidence 'such that a reasonable jury could return a verdict for the nonmoving party.'" Lawrence v. Nat'l Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996)(quoting Anderson at 248). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Rather, the non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin at 69 n.2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 116 L. Ed. 2d 327, 112 S. Ct. 376 (1991) (declaring that a non-movant may not "rest upon mere allegations, general denials, or . . . vague statements"). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson at 249-50.


 1. The Fair Housing Amendments Act

 Congress initially enacted the Fair Housing Act as Title VIII of the Civil Rights Act of 1968 to bar housing discrimination based on race, color, religion or national origin. Six years later, Title VIII was amended to prohibit discrimination based on gender. City of Edmonds v. Oxford House, 514 U.S. 725, 131 L. Ed. 2d 801, 115 S. Ct. 1776, 1779, n.1 (1995). In 1988, Congress passed the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 1988 U.S.C.C.A.N. (102 Stat. 1619), which extended coverage to individuals with handicaps. *fn7"

 As the Third Circuit has emphasized, the enactment of the FHAA was a "clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream." Helen L. v. DiDario, 46 F.3d 325, 333 n.14 (3d Cir.), cert. denied, 133 L. Ed. 2d 26, 116 S. Ct. 64 (1995)(quoting H.R. Rep. No. 711, 100th Cong., 2d Sess. 18 (1988) ("House Report "), reprinted in 1988 U.S.C.C.A.N. 2173, 2179); Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1105 (3d Cir. 1996). The 1988 Act is to be accorded a "generous construction" consistent with the "broad and inclusive compass" of Title VIII. City of ...

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