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Assisted Living Associates of Moorestown, L.L.C. v. Moorestown Township

December 29, 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, MOORESTOWN TOWNSHIP PLANNING BOARD, AND JOSHIRE HOMEOWNERS ASSOCIATION,
DEFENDANTS.
JOSHIRE HOMEOWNERS ASSOCIATION,
PLAINTIFF,
v.
CALVIN STOW, SCOTT J. STOW, DORIS V. SCHWERING, ASSISTED LIVING ASSOCIATES OF MOORESTOWN, L.L.C., AND LAUREL CONSTRUCTION MANAGEMENT, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge

OPINION

Once again, this Court has been called upon to resolve a conflict between local autonomy and federal power, specifically, the clash between state common law which permits landowners to control the use of land by incorporating a restrictive covenant into a deed conveying the property to a purchaser which binds the purchaser, as well as all subsequent owners of the land, and the federal power to eradicate discrimination against the handicapped as reflected in the Fair Housing Act, 42 U.S.C. § 3601 et seq. See Assisted Living Assocs. Of Moorestown, L.L.C., et al. v. Moorestown Township, et al., 996 F. Supp. 409 (D.N.J. 1998) ("Assisted Living I"). First, this Court must decide whether the restrictive covenant at issue bars the construction of an "assisted living" facility designed to care for the elderly and disabled. Second, assuming the restrictive covenant precludes the construction of the facility at the proposed site, I must next decide whether enforcement of the deed restriction would violate the Fair Housing Act. For the reasons set forth below, I hold that the clear and unambiguous terms of the restrictive covenant do not prohibit the construction of the "assisted living" facility at the proposed site. Accordingly, I need not decide whether the enforcement of the restrictive covenant would violate the Fair Housing Act.

On March 19, 1998, this Court granted the motion of the Plaintiffs, Assisted Living Associates of Moorestown, L.L.C. ("ALA"), and Laurel Construction Management, Inc. ("LCM," collectively, "Assisted Living"), for a preliminary injunction pursuant to the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., *fn1 enjoining the Defendants, Moorestown Township ("Township"), Moorestown Township Zoning Board of Adjustment ("Zoning Board"), and Moorestown Township Planning Board ("Planning Board," collectively, "Moorestown"), from enforcing two zoning ordinances which prohibited the construction of an assisted living facility. See Assisted Living I, 996 F. Supp. 409. Following the entry of the preliminary injunction, the parties resolved the case and entered into a written settlement agreement, dated July 27, 1998. In attempting to implement the settlement agreement, however, the parties reached an impasse over the meaning and scope of a restrictive covenant burdening the site of the construction of the proposed assisted living facility. The parties sought the assistance of the Court to bridge the impasse. On October 9, 1998, during a telephone conference call on the record with the Court and all counsel, counsel for Assisted Living made an oral application for leave to file an amended complaint. The Court granted the application and restored the case to the active docket. See Order of the Court (filed Oct. 13, 1998).

On October 19, 1998, Assisted Living amended its complaint to join as a party defendant, the Joshire Homeowners Association ("Joshire"), which represents the residents of a subdivision immediately adjacent to the site of the proposed assisted living facility. Assisted Living has now moved to modify the preliminary injunction to prevent Moorestown and Joshire from enforcing the restrictive covenant. In opposition to the motion to modify the preliminary injunction, Moorestown has filed a cross-motion for a declaratory judgment. Joshire has also filed a cross-motion to dismiss the Amended Complaint. This Court has subject matter jurisdiction over this matter, Civil Action No. 97-4572, pursuant to 28 U.S.C. § 1331, federal question jurisdiction. *fn2

Before it was joined as a party in Civil Action No. 97-4572, Joshire had filed a complaint in the Superior Court of New Jersey, Burlington County, Chancery Division, seeking an order interpreting the restrictive covenant and enjoining Assisted Living from developing the property. Pursuant to 28 U.S.C. §§ 1441 and 1443, *fn3 Assisted Living removed the state court action to this Court, where it was docketed as Civil Action No. 98-5301, alleging that this Court had original jurisdiction over the matter, pursuant to 28 U.S.C. §§ 1331, 1443. Joshire filed a timely motion to remand the case to the Superior Court of New Jersey.

Prior to oral argument on the pending motions and cross-motions, the parties agreed to enter into a Stipulation which settled the bulk of their disputes, submitting to this Court for resolution the narrow issue of the interpretation of the restrictive covenant and, assuming the covenant bars the construction of the proposed assisted living facility, whether the enforcement of the covenant would violate the Fair Housing Act. *fn4 As noted above, I hold that the clear and unambiguous terms of the restrictive covenant do not prohibit the construction of the proposed assisted living facility. Accordingly, I shall dismiss as moot Assisted Living's motion to modify the preliminary injunction. I shall also deny Moorestown's motion for a declaratory judgment, and dismiss as moot Joshire's motion to remand and cross-motion to dismiss the Amended Complaint. Moreover, in accordance with paragraph seven of the Stipulation of the parties, filed December 22, 1998, I shall order Defendant, Moorestown Planning Board, to grant ALA final site plan approval. *fn5

I. BACKGROUND

The facts and procedural history giving rise to ALA's FHA claims against Moorestown are set forth in detail in this Court's March 19, 1998, Opinion, Assisted Living I, 996 F. Supp. 409 (D.N.J. 1998), and, therefore, shall only be summarized below.

On May 3, 1996, LCM obtained a certificate of need from the New Jersey Department of Health, authorizing the construction of an assisted living facility *fn6 anywhere in Burlington County. See Assisted Living I, 996 F. Supp. at 415. In mid-1996, LCM purchased a 14.75 acre parcel of land, located in Moorestown Township, Burlington County, at the intersection of Garwood and Westfield Roads. See id. at 416. Approximately 11.2 acres of the parcel are encumbered by a conservation easement in favor of the Township. See id. The remaining 3.55 acres of the parcel are encumbered by a restrictive covenant, which provides, in relevant part:

Declarant[s, Joseph and Margaret Stow,] desire[] to provide for the preservation of the above said lands and to limit the development thereof, . . . [t]he above described lands and premises shall not be further subdivided EXCEPT that a two lot residential subdivision shall be permitted, subject to subdivision approval by the Township . . . . See Moorestown Brief in Support of Cross-Motion for Declaratory Judgment ("Moorestown Brief"), Exh. M (Declaration of Covenants and Restrictions, recorded Oct. 11, 1984 (hereinafter, the "restrictive covenant" or "covenant")).

On or about September 17, 1996, ALA submitted an application to the Planning Board for the construction of an assisted living facility on the 3.55 acre parcel of land not covered by the conservation easement (hereinafter, the "property"). See Assisted Living I, 996 F. Supp. at 416. At the time ALA made the application to the Planning Board, the property was conditionally zoned for the use proposed by ALA. See id. at 417. While ALA's application was still pending before the Planning Board, the Township re-zoned the property, effectively barring ALA's proposed use. See id. at 418.

After exploring and exhausting its opportunities to purchase an alternative site for the assisted living facility, on September 4, 1997, Assisted Living filed a complaint in this Court. The complaint alleged:

[T]hat Ordinance No. 1806-97 violates the Fair Housing Act (the "FHA"), 42 U.S.C. §§ 3601 et seq., that Defendants have intentionally discriminated against the handicapped and "interfere[d] with persons having aided or encouraged other persons in the exercise or enjoyment of rights" protected by the FHA, and that Defendants have failed to make a reasonable accommodation to the handicapped. Plaintiffs also allege violations of the Equal Protection and Due Process clauses of the United States and New Jersey Constitutions. Finally, Plaintiffs allege that Defendants improperly restrict the use of private property in violation of the New Jersey Constitution and the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. See Assisted Living I, 996 F. Supp. at 422.

On November 21, 1997, Assisted Living moved for a preliminary injunction in this Court. See id. Moorestown cross-moved to dismiss the complaint and/or for summary judgment. See id. at 440-41. On December 11 and 17, 1997, this Court heard testimony on the motion for a preliminary injunction. See id. at 422.

After determining that Assisted Living had met its burden of showing a likelihood of success on the merits and the probability of irreparable harm, and had satisfied the other criteria which must be met to obtain injunctive relief, on March 19, 1998, this Court entered a preliminary injunction in favor of Assisted Living. See id. at 438-41. I defined the scope of the injunction as follows:

The reasonable accommodation[, as required by § 3602(b) of the FHA, and] necessary to afford [Assisted Living] equal opportunity to use and enjoy dwelling, . . . is to exempt [Assisted Living] from section 1 and section 2 of Ordinance No. 1806-97 . . . . This relief will exempt [Assisted Living] from the requirements that the proposed assisted living facility be located within an existing sanitary sewer service area, as shown in the Township's approved Wastewater Management Plan and that the proposed assisted living facility connect to the Township sanitary sewer system, and will allow [Assisted Living's]' proposed use to be conditionally allowable in the R-1 zone. This is the accommodation [Assisted Living] proved was reasonable and necessary to afford them equal housing opportunities. Defendants could not show otherwise. With that relief, the Planning Board will be able to evaluate and administer [Assisted Living's] plans to connect to the Township's sewer system or its plans to construct a septic system on Lots 1 and 2, and will still be able to apply all other applicable local zoning standards to ALA and LCM's application and eventual construction.

The proper parties to be enjoined are those parties who were, have been, or will be involved in the evaluation, passage, enforcement, and promulgation of the requirements that the proposed assisted living facility be located within an existing sanitary sewer service area, as shown in the Township's approved Wastewater Management Plan and that the proposed assisted living facility connect to the Township sanitary sewer system, and those parties involved in the application of the standards for determining conditional uses in the R-1 zone. The proper parties to be enjoined are the Township, the Zoning Board, and the Planning Board. See Assisted Living I, 996 F. Supp. at 440.

Subsequently, on April 21, 1998, ALA filed an application for preliminary and final site plan approval with the Planning Board. See Moorestown Brief, Exh. F. Shortly thereafter, on May 28, 1998, the parties settled the litigation, and the case was dismissed without prejudice. See Order of the Court (filed May 28, 1998). The settlement was reduced to writing and signed by the parties on July 27, 1998. See Moorestown Brief, Exh. C (Settlement Agreement, dated July 27, 1998).

In late September, 1998, I received a series of letters from counsel for the parties. First, on September 25, 1998, I received a letter from, Dennis P. Talty, Esq., counsel for the Planning Board. See Letter to the Court from Dennis P. Talty, Esq. (dated Sept. 25, 1998). Mr. Talty's letter informed me that on September 24, 1998, the Planning Board had granted ALA "preliminary site plan approval and conditional use approval subject to conditions[, and] denied final approval without prejudice due to an outstanding issue of State Law involving the interpretation and effect of the Deed Restriction recorded of record against the [property]." See id.

On the same day, I received a letter from Steven C. Rother, Esq., counsel for Assisted Living, purporting to "clarify representations made to [me] by Mr. Talty . . . ." See Letter to the Court from Steven C. Rother, Esq. (dated Sept. 25, 1998). Mr. Rother informed me that:

By the time we arrived at the [September 24, 1998, Planning Board] meeting there were approximately five conditions which required some adjustment in order to be acceptable to my client and one which was a "deal breaker". [sic] We were able to negotiate the former to my client's satisfaction. The difficulty, and the issue which concerns Your honor, is a condition that required my client to petition the Superior Court, Law Division, for an interpretation of a certain deed restriction. . . . I suggested that the condition be modified to allow me to seek relief from Your Honor. . . . When I made it clear that I would not seek relief in state court, the [Planning] board voted to approve the conditional use and preliminary site plan approval . . . . The above . . . is just one of many [actions] taken by the Board and Township to delay and "stonewall" the efforts of my client. See id. Mr. Rother further informed me that he "was in the process of preparing motion papers to address the[se] issues . . . ." Id.

On September 28, 1998, Mr. Rother sent me another letter in which he directed my attention to a portion of my Opinion of March 19, 1998. See Letter to the Court from Steven C. Rother (dated Sept. 28, 1998); see also Assisted Living I, 996 F. Supp. at 434 (restating the legislative intent of the FHA to prohibit "discrimination against those with handicaps [through] . . . special requirements [imposed by] . . . restrictive covenants . . . ."). Mr. Rother intimated that the Court had already decided the issue of the "restrictive covenant," and therefore, ALA need not petition the state court to do so. Cf. Letter to the Court from Steven C. Rother (dated Sept. 28, 1998).

On October 1, 1998, I received a lengthy letter from Mr. Talty "set[ting] out the position of the . . . Planning Board with regard to the issue [of the restrictive covenant]." See Letter to the Court from Dennis P. Talty, Esq. (dated Oct. 1, 1998). Mr. Talty contended that it was the Planning Board's position that I had not resolved any issues relating to the restrictive covenant in my Opinion of March 19, 1998. See id. In addition, Mr. Talty informed me that, based on Soussa v. Denville Township Planning Bd., 238 N.J. Super. 66 (App. Div. 1990), the Planning Board was without authority to grant final site approval in the event that construction of the proposed assisted living facility violated the restrictive covenant. See Letter to the Court from Dennis P. Talty, Esq. (dated Oct. 1, 1998). Regarding the Planning Board's refusal to allow ALA to petition this Court for an interpretation of the restrictive covenant, Mr. Talty further wrote that:

It was my opinion that the issue of the Deed Restriction is an issue of State Law not decided by Your Honor. Since Your Honor only had limited jurisdiction remaining after the settlement and this was not in violation of the [injunction] or Your Honor's Opinion, it was not appropriate to provide jurisdiction to Your Honor where you did not already have same. See id.

In response to Mr. Talty's letter of October 1, 1998, Mr. Rother sent me a letter dated October 5, 1998. See Letter to the Court from Steven C. Rother, ...


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