agency decision, or the injuries caused by the allegedly discriminatory zoning ordinance and the deprivation of an allegedly reasonable accommodation, is remote or uncertain such that the controversy is not fit for judicial resolution.
On the second prong of the ripeness test, it is clear that ALA, LCM, and the Doe Plaintiffs will endure hardship if consideration of the issue were withheld on grounds that the controversy is not ripe. Indeed, sending Plaintiffs back to the Zoning Board in a futile search for a variance disserves the interests of all of the parties. First, the factual record in this case is well-developed such that a feckless variance application is remarkably unlikely to shed light on whether the accommodation requested is reasonable or necessary. Applying for such a variance will only delay resolution of this action and the provision of preliminary injunctive relief. Second, forcing ALA and LCM to continue to expend funds to maintain their option to purchase part of the Garwood-Westfield Roads site and preventing them from generating a profit imposes a substantial hardship on ALA and LCM. Third, where the New Jersey Department of Health has certified that there is a need for an assisted living facility in Burlington County, further delays in adjudicating the motion for a preliminary injunction disserves the interest of the Doe Plaintiffs and, indeed, as I point out later, see P 22, infra, the public interest generally. This is because one currently operating nursing facility is discontinuing service and two other senior care facilities are at or near full capacity. See P 83, supra.
Finally, Defendants have suggested no reason why rendering a decision, without requiring Plaintiffs to apply to the Zoning Board for a use variance, would work a hardship on them.
Accordingly, I conclude there is no doubt that the controversy over the propriety of the ordinance and the reasonableness of the accommodation requested is sufficiently concrete such that it is fit for judicial resolution and that withholding a judicial decision would work substantial hardship on Plaintiffs. Therefore, I hold that the controversy is ripe.
iii. Res Judicata and New Jersey's Entire Controversy Doctrine
Defendants have made various arguments regarding the nature of the state court action and its effect on this action.
3. Pursuant to 28 U.S.C. § 1738, a federal court must give a state court judgment the same effect the courts of the state which rendered the judgment would give such a judgment. Nothing about the FHA claim that was asserted in the state court action could be deemed res judicata by a New Jersey court because that claim was not litigated on the merits in the state court and was eventually dismissed without prejudice, and not for failure to comply with any rule or order. The dismissal of the state action would not be given res judicata effect under New Jersey law. See Mortgagelinq v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 346, 662 A.2d 536 (1995) (discussing New Jersey preclusion law); see, e.g., Arena v. Borough of Jamesburg, 309 N.J. Super. 106, 706 A.2d 790, 1998 WL 93031 (N.J. App. Div. 1998); Car Spa, Inc. v. High Tech of S & C, Inc., 267 N.J. Super. 422, 424, 631 A.2d 992 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).
4. The Planning Board was not named as a Defendant in the state court action. The Planning Board has now argued that New Jersey's entire controversy doctrine bars assertion of claims against the Planning Board in the federal action since the Planning Board could have been joined in the state court action, but was not. See Letter from Dennis P. Talty, Esq. 2 (dated Dec. 16, 1997) (hereinafter Talty Letter); see also Planning Board's Proposed Findings P 20 at 10 (arguing that "the claims which are the subject of the federal court complaint were brought or could have been brought in the state court proceeding. Under the entire controversy doctrine the plaintiffs were obligated to bring all claims in one proceeding") (emphasis added).
In Rycoline Products v. C & W Unlimited., 109 F.3d 883 (3d Cir. 1997), the Third Circuit dealt with a similar issue. In that case, Rycoline, a chemical products manufacturer, sued a competitor and several former employees who had left Rycoline to join the competitor in state court. The original complaint alleged several state and common law causes of action. After some procedural wrangling, including the denial of Rycoline's motion to amend the complaint to add certain federal causes of action, but not others, and while the state court action was still pending, Rycoline filed a substantially similar action in federal court, expanding slightly the scope of its original claims and adding claims which the state court had prevented Rycoline from asserting in the amended complaint. Rycoline also asserted claims against a defendant whom it had not sued in state court. Id. at 884.
After a comprehensive examination of New Jersey's entire controversy jurisprudence, the Third Circuit held that the entire controversy doctrine, recognized and codified in N.J.R.Ct. 4:30A,
does not preclude the initiation of a second litigation before the first action has been concluded. Id. at 888-89 (discussing relation between Mortgagelinq and Kaselaan & D'Angelo Assoc., Inc v. Soffian, 290 N.J. Super. 293, 675 A.2d 705 (App. Div. 1996)); see also Pittston Co. v. Sedgwick James of N.Y., 971 F. Supp. 915 (D.N.J. 1997) (discussing impact of Rycoline); Fioriglio v. City of Atlantic City, 963 F. Supp. 415, 424 (D.N.J. 1997) (discussing scope of Rycoline and declining to apply entire controversy doctrine to bar second federal suit where state law claims were dismissed as outside applicable statutes of limitations in first federal suit); see generally Hulmes v. Honda Motor Co., 924 F. Supp. 673 (D.N.J. 1996) (discussing history and evolution of entire controversy doctrine and noting effect of voluntary dismissal on its operation and application). Thus, applying the holding of Rycoline, this federal action filed by ALA, LCM, and the Doe Plaintiffs, is not barred by the then-pending state court action filed by ALA.
Furthermore, in addition to Rycoline, there are at least two other reasons, each sufficient by itself, as to why the entire controversy doctrine does not affect the litigation of the FHA and other claims in this Court. First, the absence of any res judicata effect of the state court litigation on the FHA claims militates against the application of the entire controversy doctrine. See Hulmes, 924 F. Supp. at 682-83 (discussing Cafferata v. Peyser, 251 N.J. Super. 256, 597 A.2d 1101 (App. Div. 1991)); Arena, 1998 WL 93031 at *3 ("the entire controversy doctrine does not affect a plaintiff's right to file a new action based on the same factual allegations as a prior action which has been dismissed without prejudice under [N.J.R.Ct.] 4:37-1(a)").
Second, the Planning Board has not suggested that it has suffered any disadvantage or unfairness as a result of its not being joined as a party to the state court action, an action which was not extensively litigated. See, e.g., DiTrolio v. Antiles, 142 N.J. 253, 273-74, 662 A.2d 494 (1995) (discussing role of fairness considerations in applying entire controversy doctrine).
Thus, I conclude that the federal action filed by ALA and LCM on behalf of themselves and the Doe Plaintiffs against the Township, the Planning Board, and the Zoning Board is not barred by operation of the entire controversy doctrine as a result of the state court action naming the Township and Zoning Board, which was pending when the federal action was initiated.
5. Among them, Defendants have raised numerous abstention doctrines in a kind of collective "we hope something sticks" strategy. For the reasons set forth below, I find that none of the abstention doctrines advanced by Defendants is applicable to this case. Accordingly, the Court will not abstain from deciding the motions for a preliminary injunction, for summary judgment, and to dismiss.
a. Pullman Abstention
6. Citing Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the Township argues that an unsettled question of state property law, which may affect the ability of ALA to construct its facility, requires abstention. Pullman abstention, however, is not required whenever there is a mere uncertainty about state law which may be material to providing relief in a federal action; such a rule would extend Pullman abstention far beyond its current boundary. Rather, Pullman abstention may generally be required "when a federal court is presented with both a federal constitutional issue and an unsettled issue of state law whose resolution might narrow or eliminate the federal constitutional question, ... [thus] avoiding 'needless friction with state policies.'" Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631 (3d Cir. 1991) (quoting Pullman, 312 U.S. at 500), cert. denied, 503 U.S. 907, 117 L. Ed. 2d 493, 112 S. Ct. 1265 (1992). Accordingly, the following three special circumstances must be present for Pullman abstention to apply: "(1) uncertain issues of state law underlying the federal constitutional claim; (2) state law issues subject to state court interpretation that could obviate the need to adjudicate or substantially narrow the scope of the federal constitutional claim; and (3) an erroneous construction of state law by the federal court would disrupt important state policies." Presbytery of N.J. of the Orthodox Presbyterian Church v. Whitman, 99 F.3d 101, 106 (3d Cir. 1996), cert. denied, 137 L. Ed. 2d 494, 117 S. Ct. 1334 (1997); see generally Chemerinsky, Federal Jurisdiction at 687-88, 691-95. At this point in the litigation, the Township has not shown how interpretation of a simple land covenant relating to any potential "further subdivision", see P 18, supra, could disrupt an important state policy. Nor at this point in the litigation need I abstain to avoid a federal constitutional ruling since none of the motions currently pending requires the determination of a federal constitutional issue. Furthermore, the question of whether Defendants discriminated against Plaintiffs by failing to provide a reasonable accommodation remains regardless of the nature of the "further subdivision" covenant; the interpretation of this covenant may only alter the nature of the accommodation eventually necessary to afford equal opportunities to use and enjoy a dwelling. See P 18, supra; cf., e.g., Oxford House-Evergreen v. City of Plainfield, New Jersey, 769 F. Supp. 1329, 1337 (D.N.J. 1991). Therefore, I conclude that Pullman abstention is not warranted at this point in the litigation.
b. Colorado River Abstention
7. The Planning Board invites the Court to abstain on the basis of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). See Talty Letter at 2. Colorado River abstention may be applied in order to avoid duplicative litigation. However, the litigation in state court is over and this litigation is not in any sense "duplicative." See PP 68-69, supra. Therefore, I conclude that, at this point in the litigation and on the record before me, Colorado River abstention is not warranted.
c. Younger Abstention
8. Finally, Defendants argue that the Court should abstain on the basis of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Relying substantially on O'Neill v. Philadelphia, 32 F.3d 785 (3d Cir. 1994), cert. denied, 514 U.S. 1015, 131 L. Ed. 2d 213, 115 S. Ct. 1355 (1995), Defendants contend that the state court action filed by ALA is still "pending" within the meaning of O'Neill and that the other criteria for Younger abstention -- the implication of important state interests in the state proceeding and the opportunity to raise constitutional issues in the state proceeding -- are present. By ignoring the evolution and true meaning of Younger abstention, Defendants have lost sight of the forest for the trees in their explication of Younger and O'Neill. The state court action, a remedial action begun by ALA, is not the kind of proceeding in favor of which the Court should abstain.
Younger began as a criminal case in which Harris was indicted in state court for distributing leaflets allegedly in violation of California's Criminal Syndicalism Act. Rather than assert as a defense in the state criminal prosecution that the statute was unconstitutional, Harris filed an action in federal district court against Younger, the district attorney of Los Angeles, asking the district court to enjoin Younger from prosecuting him. A three-judge district court enjoined Younger from prosecuting Harris and held that the statute was unconstitutionally vague. On direct appeal, the Supreme Court reversed and concluded that, except under special circumstances, federal courts cannot enjoin pending state criminal proceedings. Younger, 401 U.S. at 54-55. To state the Supreme Court's rationale very simply, "Our Federalism," id. at 44, cannot countenance an effort by a criminal defendant to circumvent state criminal law in federal court where a criminal defendant can adequately challenge the legality of the state criminal proceeding in state court, unless special circumstances, such as a patently and completely unconstitutional state law, a bad faith prosecution, or some other unusual situation, are present. Id. at 54-55.
Younger has steadily been extended to cover state civil and administrative proceedings. In cases where a governmental entity is a party to the litigation, such as this case, it is the state's interest in enforcing its law against a private party which has always been protected. For example, in Huffman v. Pursue, 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975), the Supreme Court held that a federal district court did not have the power to enjoin a state civil nuisance proceeding. Significantly, the Supreme Court noted that the state proceeding:
in important respects is more akin to a criminal prosecution than most civil cases. The State is a party to the [state court] proceeding, and the proceeding is both in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials. Thus, an offense to the State's interest in the nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding.
Id. at 604; see also Trainor v. Hernandez, 431 U.S. 434, 444, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977) (applying Younger to prohibit injunction of state civil fraud enforcement proceeding which could have been instituted as criminal action); Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) (upholding district court decision to abstain under Younger out of deference to attorney discipline proceeding overseen by state supreme court).
Thus, in determining whether Younger abstention is proper, where a governmental entity is party to the litigation, courts have consistently distinguished between "coercive" or "remedial" state proceedings. Ohio Civil Rights Comm'n v. Dayton Christian Schools, 477 U.S. 619, 627 n.2, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986) (distinguishing Patsy v. Florida Board of Regents, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982)); see, e.g., O'Neill, 32 F.3d at 791 (holding that "state proceedings remain 'pending' within the meaning of Younger abstention, in cases . . . where a coercive administrative proceeding has been initiated by the State in a state forum, where adequate state-court judicial review of the administrative determination is available to the federal claimants, and where the claimants have chosen not to pursue their state-court judicial remedies, but instead sought to invalidate the State's judgment by filing a federal action") (emphasis added); id. at 792 n.2 (Lewis, J., dissenting) (discussing whether state proceeding was coercive within meaning of Dayton Christian Schools); Nevada Entertainment Indus., Inc. v. City of Henderson, 8 F.3d 1348, 1350-52 (9th Cir. 1993) ("The City Council initiated the administrative proceeding in this case to enforce municipal code provisions requiring license applicants to complete applications truthfully. Because the administrative proceeding was coercive and brought by the state to enforce its laws," Younger abstention was appropriate.); Ivy Club v. Edwards, 943 F.2d 270, 280 & n.12 (3d Cir. 1991) (noting that Younger abstention typically arises where "federal litigation is initiated as a defense to ongoing state proceedings"), cert. denied, 503 U.S. 914 (1992); Alleghany Corp. v. Haase, 896 F.2d 1046, 1050, 1053 (7th Cir. 1990) ("Younger 's central meaning is that a federal district court may not, save in exceptional circumstances, enjoin, at the behest of a person who has actually or probably violated a state statute, a state court proceeding to enforce the statute against that person. His remedy is to interpose his federal claims as a defense in that action . . . . Younger is confined to cases in which the federal plaintiff had engaged in conduct actually or arguably in violation of state law, thereby exposing himself to an enforcement proceeding in state court which, once commenced must be allowed to continue uninterrupted to conclusion.") (citations omitted) (Posner, J.), cert. granted & vacated as moot, 499 U.S. 933 (1991); University Club v. City of New York, 842 F.2d 37, 41-42 (2d Cir. 1988) (rejecting argument that enforcement proceeding which could result in civil fine was remedial); Tinson v. Pennsylvania, 1995 U.S. Dist. LEXIS 14414, 1995 WL 581978, *4 (E.D. Pa. Oct. 2, 1995) (rejecting abstention argument in section 1983 action where state court action was initiated by federal plaintiffs and was remedial); Musko v. McClandless, 1995 U.S. Dist. LEXIS 5911, 1995 WL 262520, *4 (E.D. Pa. May 1, 1995) (eviction proceeding for violation of local zoning ordinances was coercive); Independence Public Media of Phila. v. Pennsylvania Pub. Television Network Comm'n, 813 F. Supp. 335, 342 (E.D. Pa. 1993) (holding that where state action was remedial and initiated by federal plaintiffs, Younger abstention was not appropriate); see also Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195 (3d Cir. 1992) (noting relationship between claims asserted in federal and state action in typical situation where Younger abstention applies).
In this case, ALA alleged in the state court action that the interpretation of the minimum acreage requirement was contrary to law and stated a cause of action under the FHA. The action was entirely initiated by ALA, not by any of Defendants. This proceeding was clearly begun to remedy what ALA thought were erroneous or illegal actions with respect to its application, and was surely not a coercive, enforcement-type action instituted by the state. Plaintiffs are not attempting to use the federal forum as an end run around state enforcement efforts. Rather, Plaintiffs have chosen to assert their federally protected rights in federal court. Accordingly, I conclude that Younger abstention is not warranted.
v. Failure to Exhaust Administrative Remedies
9. The Planning Board claims that Plaintiffs have failed to exhaust administrative remedies. Planning Board's Proposed Findings P 18 at 10. Presuming some distinction between these unspecified "administrative remedies" and the variance and state court proceedings which Defendants believe Plaintiffs should have pursued, see PP 2, 8, supra, I hold that an FHA plaintiff has no obligation to pursue administrative remedies with the Department of Housing and Urban Development. See 42 U.S.C. §§ 3613(a)(2) ("an aggrieved person may commence a civil action under this subsection whether or not a complaint has been filed under section 3610 of this title and without regard to the status of any such complaint"), 3610 (outlining administrative complaints which may be filed with Secretary of Housing and Urban Development); see, e.g., Bryant Woods, 124 F.3d at 601. Therefore, I conclude that Plaintiffs need not pursue administrative remedies with the Secretary of Housing and Urban Development in order to maintain this action.
B. Preliminary Injunction Factors
Having discussed and rejected the various procedural hurdles Defendants have erected, I must now consider whether ALA, LCM, and the Doe Plaintiffs are entitled to a preliminary injunction.
10. In order to prevail on a motion for a preliminary injunction, the moving party must demonstrate both: (1) a likelihood of success on the merits; and (2) the probability of irreparable harm if relief is not granted. In addition to these showings by the moving party, the Court must also consider: (3) the effect of the grant of preliminary relief on the non-moving party; and (4) whether the public interest will be served by the preliminary injunctive relief. See, e.g., Schulz v. United States Boxing Ass'n, 105 F.3d 127, 131 n.6 (3d Cir. 1997); Campbell Soup Co. v. Conagra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992); Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197 (3d Cir. 1990). In order to show a likelihood of success on the merits, the law of this Circuit requires a moving party to demonstrate, not "a certainty of prevailing, but rather . . . a reasonable probability of eventual success in the litigation." Hill Int'l v. Nat'l R.R. Passenger Corp., 957 F. Supp. 548 (D.N.J. 1996) (citation omitted); see also Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975) ("it is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie . . . showing [of] a reasonable probability that it will prevail on the merits"). If all four factors favor the grant of preliminary relief, the injunction may be granted. American Tel. & Tel. v. Winback and Conserve Prog., Inc., 42 F.3d 1421, 1427 & n.8 (3d Cir. 1994) (noting relationship between first and second factors, and third factor), cert. denied, 514 U.S. 1103, 131 L. Ed. 2d 757, 115 S. Ct. 1838 (1995).
i. Likelihood of Success on the Merits
11. In 1988, Congress passed the Fair Housing Amendments Act, Pub. L. 100-430, 102 Stat. 1620, which made substantial amendments to the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Of particular concern to Congress was discrimination against the handicapped and as such, 42 U.S.C. § 3604 was amended to make it unlawful:
(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of --
(A) that buyer or renter,