Similarly unavailing is the State's derivative argument that by allowing municipalities to regulate community residences through spacing provisions and other conditional use requirements, the challenged enabling clauses promote the safety of disabled individuals living in these homes. In a decision affirmed by the Third Circuit, the District Court for the Eastern District of Pennsylvania rejected an almost identical argument by a township supervisor defending a 1,000-foot spacing requirement. In that case, the supervisor "testified that the distance requirement is for the benefit of the group home residents: if group homes were grouped near each other, she said, the personnel in the group homes would not tend to their needs." Horizon House at 696. The Court found that there was no evidence in the record to support the perception "that harm will come to the residents of the group homes by living within 1,000 feet of each other." Id. at 697. As in that case, the record before this Court is devoid of any evidence supporting the safety argument. The Court is left to question whether the State's argument is fair to the men and women who provide services to the disabled in community residences, at least with regard to the issue of whether they are less vigilant than others in a neighborhood about reporting any abuse that they witness or suspect.
Given that the State has not rebutted plaintiff's prima facie case of unlawful discrimination, the Court finds that the three enabling clauses at issue -- the conditional use, spacing, and ceiling quota provisions -- violate the FHAA. This ruling is consistent with Congress' manifest intent that the FHAA's bar of discrimination against the handicapped would serve to prohibit special conditional use requirements "that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community." House Report at 24.
In a Title VIII action brought by a private plaintiff, a Court may grant as relief for a violation of the statute "any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate)." 42 U.S.C. § 3613(c)(1) (1994). Construed broadly, consistent with Supreme Court guidance, "this section gives the district court the power it needs to fashion affirmative equitable relief calculated to eliminate as far as possible the discriminatory effects of violation of the Fair Housing Act." Park View Heights Corp. v. City of Black Jack, 605 F.2d 1033, 1036 (8th Cir. 1979), cert. denied, 445 U.S. 905, 63 L. Ed. 2d 321, 100 S. Ct. 1081 (1980) (interpreting remedial provision of Title VIII before it was expanded slightly by the FHAA). Indeed, a United States District Court is duty-bound "to provide 'such remedies as are necessary to make effective the congressional purpose.'" Rizzo at 149. At the same time, the Court will heed the Third Circuit's admonition that the Court must take pains to tailor the remedy to that which is necessary to correct the statutory violation found. Id.
1. Declaration That Section 66.1 Conditional Use Treatment of "Community Residences for the Developmentally Disabled" Is Invalid
The Court's first step is to declare invalid the three challenged Section 66.1 provisions as they relate to "community residences for the developmentally disabled," defined as including community residences for the mentally ill.
The application of these three provisions to such community residences is of no further force and effect, and cannot serve as a proper basis upon which a municipality in New Jersey may treat such community residences as conditional uses.
Invalidation of legislation is a strong remedy, but it is not beyond the power of a court where necessary to correct a Title VIII violation. United States v. City of Parma, 661 F.2d 562, 578 (6th Cir. 1981), cert. denied, 456 U.S. 926, 72 L. Ed. 2d 441, 102 S. Ct. 1972 (1982); see also Horizon House at 700 (declaring invalid a 1,000-foot group-home spacing requirement in a township ordinance). Indeed, such invalidation is mandated by Title VIII as amended by the FHAA. 42 U.S.C. § 3615 (1994) ("Any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.)" Clear invalidation is particularly appropriate here given the State's protestations of the validity of the challenged provisions despite this Court's ruling on the issue two years ago.
Similarly, the Attorney General of the State of New Jersey is directed to provide a copy of this opinion and accompanying order to appropriate representatives of the State Legislature, and of each of the State's 568 municipalities. The Legislature and municipalities must be put on notice as to the specific portions of Section 66.1 that have been declared invalid by this Court.
The Court's ruling renders moot plaintiffs' alternative claims that the enabling provisions violate Federal statutes other than Title VIII, as well as Federal and New Jersey constitutional provisions. Therefore, these claims need not be addressed here. See Elizabeth at 618 n.2.
The Court must now direct its attention to New Jersey law to determine whether the provisions of Section 66.1 are separable such that the above declaration shall not affect any portion of the remainder of the MLUL. New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 596 (3d Cir. 1985). Under New Jersey law, the key standard for determining severability issues is presumed legislative intent. Exxon Corp. v. Hunt, 109 N.J. 110, 534 A.2d 1, 4 (N.J. 1987).
The New Jersey legislature has created a presumption of severability through its enactment of a general severability clause applying to all of its statutes:
If any title, subtitle, chapter, article or section of the Revised Statutes, or any provision thereof, shall be declared to be unconstitutional, invalid or inoperative, in whole or in part, by a court of competent jurisdiction, such title, subtitle, chapter, article, section or provision shall, to the extent that it is not unconstitutional, invalid or inoperative, be enforced and effectuated, and no such determination shall be deemed to invalidate or make ineffectual the remaining titles, subtitles, chapters, articles, sections or provisions.
N.J. Stat. Ann. § 1:1-10 (West 1992).
Moreover, the Legislature passed a severability clause to accompany Section 66.1 when it enacted the provision in its original form in a 1978 act. N.J. Stat. Ann. § 40:55D-66.3 (West 1992) states:
If any provision of this act or the application thereof to any person or circumstance is found unconstitutional, the remainder of this act and the application of such provisions to other persons or circumstances shall not be affected thereby, and to this end the provisions of this act are severable.