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ASSISTED LIVING ASSOCS. OF MOORESTOWN v. MOORESTOW

March 19, 1998

ASSISTED LIVING ASSOCIATES OF MOORESTOWN, L.L.C., LAUREL CONSTRUCTION MANAGEMENT, INC., and JOHN and JANE DOE, Plaintiffs,
v.
MOORESTOWN TOWNSHIP, MOORESTOWN TOWNSHIP ZONING BOARD OF ADJUSTMENT, and MOORESTOWN TOWNSHIP PLANNING BOARD, Defendants.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This case requires the Court to resolve a conflict between local autonomy and federal power, specifically the conflict between a New Jersey municipality's power to zone and the federal power to eradicate discrimination against the handicapped. The developers of an innovative type of facility designed to care for the elderly and handicapped, known as "assisted living," have moved for a preliminary injunction under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., demanding a reasonable accommodation to allow the construction of an assisted living facility which they have proposed for the Township of Moorestown, New Jersey.

 Plaintiffs' proposed land-use had been permissible under Moorestown's zoning law until the very moment when Plaintiffs had cleared other regulatory hurdles necessary to go forward with their project. At that point, in what can best be described as a "Catch-22," Moorestown passed a zoning ordinance which effectively "spot-zoned" Plaintiffs' proposed land use out of one chosen area of Moorestown and imposed special requirements on Plaintiffs. The timing of the passage of the ordinance, considered in combination with the minutes of subsequent Planning Board meetings, clearly reflect an intention to relegate the handicapped to the periphery of residential areas or "transitional" parts of Moorestown. In light of Plaintiffs' substantial, but ultimately unsuccessful efforts to locate alternative sites which might meet with the Moorestown's approval, the reactions by the Township and the Planning Board to Plaintiffs' proposed project compel the conclusion that the Plaintiffs are likely to succeed in showing that the accommodation requested is necessary for the enjoyment of equal housing opportunities. Plaintiffs are also likely to succeed in showing that the requested accommodation is reasonable, particularly since the Township has clearly accommodated other developers when it was in the Township's financial and legal interest to do so. The Court will therefore grant the Plaintiffs' motion for a preliminary injunction and, accordingly, deny the motions of the Township, the Township's Zoning Board, and the Township's Planning Board to dismiss Plaintiffs' complaint and/or for summary judgment.

 After careful review of the evidence presented by the parties during two days of hearings conducted on December 11 and 17, 1997, the affidavits, certifications, exhibits, briefs, and letters submitted by the parties, and the applicable law, I make the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 I. Findings of Fact

 A. The Parties and their Agents

 1. Plaintiff, Assisted Living Associates of Moorestown, L.L.C. ("ALA"), is a limited liability company formed pursuant to the laws of Delaware and authorized to do business in New Jersey. Verified Complaint P 5 (dated Sept. 4, 1997) (hereinafter Compl.).

 2. Plaintiff, Laurel Construction Management, Inc. ("LCM"), is a New Jersey corporation, and is associated with ALA. Id. at PP 6, 10.

 3. Plaintiffs, John and Jane Doe (the "Doe Plaintiffs"), are prospective residents at a facility to be constructed and managed by LCM and ALA. Id. at PP 7, 14.

 4. Thomas H. Parkinson ("Parkinson") is the principal partner in ALA and the vice president of LCM. Certification of Thomas H. Parkinson P 1 (dated Dec. 3, 1997) (hereinafter Parkinson 12/3/97 Certif.); Supplemental Certification of Thomas H. Parkinson P 1 (dated Dec. 1, 1997) (hereinafter Parkinson 12/1/97 Certif.); Transcript 7-8 (dated Dec. 11 & 17, 1997) (hereinafter Trans.).

 5. Defendant, Moorestown Township ("Moorestown" or the "Township"), is a municipal corporation with the power to zone pursuant to New Jersey's Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Compl. at P 8; Answer of Defendant, Moorestown Township P 8 (dated Nov. 21, 1997). The Township is located in Burlington County.

 6. Moorestown has a population of approximately 16,000 people, of which approximately 17% are over the age of 65. See Certification of John J. Lynch, Exh. A at 2-3 (dated Nov. 20, 1997) (hereinafter Lynch Certif.). In 1970, approximately 11.5% of the population of Moorestown was over the age of 65. Id.

 7. Defendant, Moorestown Township Zoning Board of Adjustment (the "Zoning Board"), is a municipal body created pursuant to N.J.S.A. 40:55D-69, with the powers set forth in N.J.S.A. 40:55D-70 et seq. See, e.g., Answer of Defendant, Moorestown Township Zoning Board of Adjustment P 9 (dated Nov. 21, 1997).

 8. Defendant, Moorestown Township Planning Board (the "Planning Board"), is a municipal body created pursuant to N.J.S.A. 40:55D-23 et seq., with the powers set forth in N.J.S.A. 40:55D-25 et seq. See, e.g., Answer of Defendant, Moorestown Township Planning Board P 9 (dated Nov. 20, 1997).

 9. Harry W. McVey ("McVey") is the Director of Community Development for the Township, Secretary to the Planning Board, and the Zoning Officer of the Township. Trans. at 150; Certification of Harry W. McVey P 1 (dated Nov. 17, 1997) (hereinafter McVey Certif.). McVey exercises substantial influence in the planning and zoning of the Township. See, e.g., Trans. at 251, 273-74.

 B. The Nature of Assisted Living and Assisted Living in Moorestown

 10. On May 3, 1996, pursuant to N.J.S.A. 26:2H-1 et seq., the New Jersey Department of Health issued to LCM a certificate of need for the construction of an assisted living facility in Mount Laurel, Burlington County, New Jersey. See Plaintiffs' Exh. 1 at 1; Trans. at 407.

 11. The certificate of need authorizes LCM to construct an assisted living facility anywhere in Burlington County. See Trans. at 8, 59. In order to provide assisted living services, a facility must, in addition to a certificate of need, be licensed to provide those services. See, e.g., Trans. at 392, 400-01; N.J.A.C. 8:36-2.2; see also Plaintiffs' Exh. 9.

 13. An assisted living facility may provide services which resemble the services someone might otherwise receive in a nursing home. See N.J.A.C. 8:36-4.1(b), (d); Trans. at 19, 396, 399.

 14. A typical resident of an assisted living facility needs assistance with two or more basic daily activities, such as, toileting, bathing, or dressing, and is, on average, approximately 85 years old. See Trans. at 101, 397, 399-400; see generally N.J.A.C. 8:36-4.1(a-d).

 15. There are no assisted living facilities currently operating in Moorestown. See, e.g., Plaintiffs' Exh. 32.

 16. In approximately August, 1997, the Zoning Board approved the application of Brandywine Senior Care, Inc. ("Brandywine") for the eventual construction of an assisted living facility with a capacity of approximately 100 residents on a site located at the intersection of Church Street and New Albany Road in Moorestown. See Defendants' Exh. 7-8; Trans. at 106, 197-98, 272, 278.

 C. ALA before the Planning and Zoning Boards

 17. Sometime in mid-1996, LCM purchased a 14.75-acre parcel of land, Block 7100, Lot 1 ("Lot 1"), located approximately at the intersection, and immediately to the south and east, respectively, of Garwood Road and Westfield Road in Moorestown for approximately $ 435,000. Plaintiffs' Exh. 3-4.

 18. Approximately 11.2 acres of Lot 1 are encumbered by a conservation easement granted in favor of the Township which prohibits, inter alia, various actions which are inconsistent with agricultural and equestrian uses. See Plaintiffs' Exh. 3; McVey Certif. at P 12 & Exh. E. The remaining approximately 3.55 acres of Lot 1 are encumbered by a covenant running with the land which states that the land "shall not be further subdivided EXCEPT that a two lot residential subdivision shall be permitted, subject to subdivision approval by the" Township. Id. at Exh. F (emphasis in original); Trans at 67-68.

 19. On or about September 17, 1996, ALA submitted an application to the Planning Board for a conditional use and site plan approval for the construction of an assisted living facility on the portion of Lot 1 which was not encumbered by the conservation easement, i.e., the 3.55 acre portion. See, e.g., Plaintiffs' Exh. 7; McVey Certif., Exh. C; Trans. at 24-25, 66.

 20. At the time of the application, Township ordinances allowed in the R-1 zone as conditional uses, inter alia, a "nursing home or similar health facility; a home for . . . the aged, the handicapped or similar institutional use under the sponsorship of a religious or nonprofit community service organization; . . . or a continuing care facility for the elderly," if such uses complied with section 180-91 of the Moorestown Code. Moorestown Code § 180-8.D(3).

 21. A conditional use is a use which may be allowed upon the fulfillment of certain conditions, the satisfaction of which is determined by the Planning Board applying definite specifications and standards. See, e.g., N.J.S.A. 40:55D-24, 40:55D-67; Moorestown Code § 180-107 (enunciating standards formerly applied by the Planning Board); Trans. at 304-09, 350.

 23. Section 180-91 requires, inter alia, that certain institutions, including an "assisted care or nursing home . . . a continuing-care facility of the senior citizen; home for the aged, indigent or the handicapped" meet a minimum acreage requirement of five acres. Moorestown Code § 180-91(B); Plaintiffs' Exh. 35.

 24. On October 28, 1997, McVey informed a representative of LCM that the application did not meet the minimum acreage requirement of section 180-91 because, in the opinion of the Planning Board's attorney, the 11.2 acres of Lot 1 restricted by the conservation easement could not be utilized to meet the minimum acreage requirement. The letter further informed LCM that it could apply to the Zoning Board for a use variance and site approval. See Plaintiffs' Exh. 10; Trans. at 24-25; see generally N.J.S.A. 40:55D-70(c) (outlining general power of zoning boards of adjustment to grant variances from zoning ordinances); N.J.S.A. 40:55D-76 (providing for concurrent jurisdiction by zoning boards of adjustment to grant site approvals where applicants have also requested use variances).

 25. Pursuant to N.J.S.A. 40:55D-70, an applicant, following a determination by the Planning Board, could either apply to the Zoning Board for a use variance, appeal the Planning Board's decision with respect to the minimum acreage requirement to the Zoning Board, or request from the Zoning Board an interpretation with respect to the minimum acreage requirement. See N.J.S.A. 40:55D-70(a)-(c). Advised by McVey of some or all of these options, ALA on or about November 4, 1997, opted to appear before the Zoning Board for an interpretation. Trans at 70-73, 259-60.

 26. On or about November 4, 1997, ALA applied for an interpretation as to whether it could utilize part of the 11.2-acre portion of Lot 1 to meet the minimum acreage requirement. Trans. at 26; Compl. at P 17.

 27. While the application for an interpretation was pending, LCM contracted to purchase for $ 260,000 Block 7100, Lot 2 ("Lot 2"), a 2.05-acre plot contiguous with Lot 1 and also zoned R-1. See Trans at 26; Plaintiffs' Exh. 5-7. Lots 1 and 2 are not within the current or proposed sanitary sewer service areas of Moorestown. See Plaintiffs' Exh. 19-20; Trans. at 259. ALA continues to pay $ 2,000 per month in order to maintain the option to purchase Lot 2. Id. at 13; see also Plaintiffs' Exh. 4.

 28. On December 17, 1997, the Zoning Board heard and decided ALA's application for an interpretation, and confirmed that, in its view, no portion of the 11.2-acre parcel could be used to satisfy the minimum acreage requirement of section 180-91. See McVey Certif., Exh. H.

 29. After the affirmance of the Planning Board's interpretation of the minimum acreage requirement, on or about December 26, 1997, ALA submitted a new site plan and application to the Planning Board proposing to use, in combination, the 3.55 acres of Lot 1 not encumbered by the conservation easement and the additional 2.05 acres of Lot 2 to meet the minimum acreage requirement of section 180-91. ALA did not propose to use the 11.2 acres encumbered by the equestrian and agricultural easement or to "further subdivide" Lot 1. Trans. at 27; Plaintiffs' Exh. 7, 11; Certification of Thomas H. Parkinson at PP 12-13 (dated Sept. 16, 1997) (hereinafter Parkinson 9/16/97 Certif.).

 30. On or about January 8, 1997, ALA filed an action in lieu of prerogative writs in the Superior Court of New Jersey, Burlington County, Law Division, against the Township and the Zoning Board claiming that the Township and Zoning Board's interpretation of section 180-91 with respect to the use of deed-restricted lands, specifically, the 11.2-acre part of Lot 1, to satisfy the minimum acreage requirement was arbitrary and capricious, and not in compliance with existing law. See Assisted Living Assoc. of Moorestown, L.L.C. v. Moorestown Township, et al., Docket No. BUR-L-00046-97, Complaint in Lieu of Prerogative Writ[s] P 14 (dated Jan. 7, 1997); see generally N.J.R.Ct. 4:69; Sylvia B. Pressler, Rules Governing the Court of the State of New Jersey 1430-35 (1997) (discussing use of complaint in lieu of prerogative writs to challenge municipal and municipal agency action). *fn1"

 31. On or about January 29, 1997, and after initial consideration by the Township on January 15, 1997, the Township adopted Ordinance No. 1806-97. See Plaintiffs' Exh. 13; Certification of John T. Terry, Exh. A (dated Nov. 18, 1997); McVey Certif., Exh. I. Section 1 of Ordinance No. 1806-97 added to the special requirements of section 180-91 that institutions "be located within an existing sanitary sewer service area, as shown in the Township's approved Wastewater Management Plan [and that such institutions] shall connect to the Township sanitary sewer system." Id. at § 1. By amendment to Moorestown Code 180-8(D), section 2 of Ordinance No. 1806-97 also removes as conditional uses in the R-1 zone "a hospital, sanatorium, nursing home or similar health facility; a home for . . . the aged, the handicapped or similar institutional use under the sponsorship of a religious or nonprofit community service organization; . . . [and] a continuing care facility for the elderly." Id. at § 2.

 32. Section 3 of Ordinance No. 1806-97 also adds as conditional uses in the R-2 zone "a hospital, sanatorium, nursing home or similar health facility; a home for . . . the aged, the handicapped or similar institutional use under the sponsorship of a religious or nonprofit community service organization; . . . [and] a continuing care facility for the elderly" if such uses complied with section 180-91 of the Moorestown Code. Id. at § 3.

 33. After passage of Ordinance No. 1806-97, the following uses were among those either permitted or conditionally allowable in the R-1 zone: agricultural uses, single family homes, public and private schools, a church or similar house of worship, a club or lodge, a kennel, and a cemetery. See Moorestown Code § 180-8.

 34. The R-2 zone consists of 20,000 square-foot lots and generally rings the town center area. Trans. at 152; see generally Defendants' Exh. 4.

 35. The effective date of Ordinance No. 1806-97 is February 18, 1997. See, e.g., Plaintiffs' Exh. 12; McVey Certif., Exh. I.

 36. There is no disagreement that Ordinance No. 1806-97 is applicable to ALA's application by operation of New Jersey's "time of decision" rule which generally mandates that the statutes in effect at the time of a decision apply to a specific application, including an application pending before the amendment of a statute. Id. ; Trans. at 270-71; see generally Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378-79, 658 A.2d 1230 (1995); Pizzo Mantin Group v. Township of Randolph, 137 N.J. 216, 235-36, 645 A.2d 89 (1994); Kruvant v. Mayor & Council of Township of Cedar Grove, 82 N.J. 435, 441-42, 414 A.2d 9 (1980); Carl S. Bisgaier & Yvonne Marcuse, Vesting and the Time of Decision Rule, New Jersey Lawyer, Nov./Dec. 1997, at 13.

 37. It was ALA's application to the Planning Board for conditional use and site approval which caused McVey to review the language of sections 180-8(D) and 180-91 of Moorestown's Code, and to recommend to the Planning Board that they be amended and that Ordinance No. 1806-97 be passed. See Trans. at 260-64; see generally N.J.S.A. 40:55D-26 (providing generally for role of planning boards role in passage of zoning amendments); N.J.S.A. 40:55D-32 (providing generally for referral by planning boards of proposed amendments to official zoning maps).

 38. Although it is not contested that prompt review of ordinances as a result of pending applications is not unusual, another section of the Township's Code, Moorestown Code § 180-107, which sets forth the standards which the Zoning or Planning Boards are to apply in exercising their discretion with respect to conditional uses, was not amended in the time since before December, 1995, when those standards were held to be unenforceable. See Trans. at 261-62, 306-310; Plaintiffs' Exh. 34, 36 at 18 (noting in approximately December, 1995, that "recent litigation has resulted in the need to rewrite the Township's conditional use standards" and that such standards "are being developed").

 39. Section 1 and section 2 of Ordinance No. 1806-97 negatively affected ALA's proposed plans because Lots 1 and 2, the Garwood-Westfield Roads site selected by ALA, were not in a sanitary sewer service area and because the proposed use was no longer even conditionally allowable in the R-1 zone. Thus, ALA's application could no longer be considered by the Planning Board. Rather, ALA would have to apply to the Zoning Board for a variance. Eventually, by letter, McVey informed ALA of the effect of Ordinance No. 1806-97. See Trans. at 29-30; Plaintiffs' Exh. 11-12.

 40. Had ALA applied to the Zoning Board for a variance from section 180-91 requiring institutions to be in a sewer service area, it is "extremely unlikely" that the variance would have been granted. McVey testified without contradiction that he would oppose such a variance and would not have recommended that such a variance be granted. Accordingly, ALA's application for such a variance would have been futile. See Trans. at 255-59, 263.

 D. ALA's Consideration of Alternative Sites and Board Reactions

 41. ALA has made substantial efforts to evaluate, prepare site plans, and/or negotiate for the purchase of at least four other properties with an eye toward constructing its facility on them. Some of these were referred to Parkinson by McVey. See, e.g., Trans. at 33, 76.

 42. ALA evaluated a potential site located at New Albany Road and Church Street (the "Fisher property") and considered it inappropriate for an assisted living facility because of its proximity to an industrial district. See, e.g., Trans. at 34, 106, 117; Parkinson 12/1/97 Certif. at P 11; see also P 16, supra.

 43. In late January, 1997, ALA was negotiating with Fred DiMarco for the purchase of a piece of a property approximately 23 acres in size located near the intersection of Main Street and Marter Road in Moorestown (the "DiMarco property"). The property is located in part in the R-2 zone and in part in the SRC-1 (specially restricted commercial) zone, and is within the sewer service area. See Affidavit of Fred DiMarco PP 3-4 (dated Nov. 19, 1997) (hereinafter DiMarco Aff.); see also Plaintiffs' Exh. 15, 19; Defendants' Exh. 4; Trans. at 34.

 44. On February 6, 1997, the Planning Board met to review informally ALA's proposal for its assisted living facility on the DiMarco property, which involved an assisted living facility, as well as townhouses and single family homes. Trans. at 35, 332, 339-40. At that meeting, the Board was also considering "the draft ordinance on assisted care facilities." Plaintiffs' Exh. 16 at 2. *fn2" McVey "said [that] the real purpose of the ordinance is to clarify that the minimum five acres is required for institutional use and that no part of that five acres can be deed restricted against any development." Id. This ordinance, Ordinance No. 1814-97, was eventually passed by the Township. See Plaintiffs' Exh. 14.

 45. Before the arrival of representatives of ALA at the February 6, 1997, meeting, McVey noted that "these types of facilities are not necessarily good neighbors in the neighborhoods in which they are located despite an ordinance which allows them." Plaintiffs' Exh. 16 at 3. In discussing assisted living facilities in Moorestown, another member of the Board, Salvatore Alessi, stated that "you do not want to get into a mind set that 'it is going to happen - so let's facilitate.' . . . he cautioned against this kind of thinking that would lead to an approval because we believe it's inevitable." Id.

 46. During the meeting with representatives of ALA, noting again that assisted living facilities "often . . . do not make the neighbors happy," McVey stated that the DiMarco property might be suitable for an assisted living facility "since it's on the edge of an established neighborhood." Id. at 7.

 47. Construction on the DiMarco property would have required rezoning the part of the DiMarco property, which was zoned SRC-1, or a variance. Id. at 13; Trans. at 35; DiMarco Aff., Exh. B; Plaintiffs' Exh. 17 at 10.

 48. During February and March, 1997, ALA also entertained negotiations with John B. Ravikio for the purchase of a 7-acre site (the "Ravikio property") which is located on the western side of Westfield Road, is within the sewer service area, and is zoned R-2. See Trans. at 38-42; Affidavit of John B. Ravikio (dated Nov. 13, 1997); Defendants' Exh. 4; Plaintiffs' Exh. 15, 20.

 49. During a February 27, 1997, meeting of the Planning Board, a continuation of the informal dialogue between the Board and ALA regarding the DiMarco property, see Trans. at 343, McVey reported that ALA was considering purchasing the Ravikio property. Plaintiffs' Exh. 17 at 10. "Several Board members expressed open surprise and dismay at [the] information" that Ravikio might be willing to discuss selling the property to ALA. Id. Earlier, Alessi had indicated that:

 
we may be getting into a situation where we have an over use in this particular sector. . . . He . . . wondered if Moorestown doesn't have its "fair share" of this type of use. He thinks the various applications are coming too quickly with too much emphasis on rushing them through. He also thinks that retirement communities can skew the politics of a community . . . He does not wish to see school funding suffer as a result of a preponderance of persons who have no interest in protecting school funding.

 Id. at 6. Alessi agreed that assisted living complements other types of care of the elderly and handicapped available in Moorestown, but "he still felt all these applications represented an overuse." Id. at 6-7; see also Trans. at 344-45. McVey later noted in response that "you can quickly reach a saturation point." Plaintiffs' Exh. 17 at 7.

 50. Alessi "argued for not setting a precedent. The fear is that approval of one will lead to approval of too many." Id. at 8. Another Board member, Harry Koons, responded "that a precedent was set when we approved a fast food restaurant in this town. There was a cure for the spread of fast food places and there will be a cure ...


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