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Blake Gardens, LLC v. State

United States District Court, D. New Jersey

March 9, 2017

BLAKE GARDENS, LLC, Plaintiff,
v.
STATE OF NEW JERSEY, Defendant. Community Residence Address Zoning District and Municipal Code

          MEMORANDUM

          PETER G. SHERIDAN, U.S.D.J.

         Presently before the Court is Plaintiff, Blake Gardens, LLC's motion for summary judgment (ECF No. 31), and the State of New Jersey's (the State) motion for summary judgment (ECF No. 32), on a facial attack on New Jersey P.L. 2015 c. 125 (hereinafter "the 2015 Act"). This case arises from the denial of a construction permit for the development of a residence for individuals with Alzheimer's disease or other dementia disorders in a single-family residential zone (hereinafter "Alzheimer's residence"), in Freehold Township, New Jersey. (Compl., ¶ 20, ECF No. 1). In denying the permit, the Freehold Township zoning officer indicated that pursuant to the 2015 Act, zoning board approval was required to build the Alzheimer's residence. Yet, no such approval was required prior to the enactment of the 2015 Act.

         As such, the issue has been narrowed to the following[1]:

Does the 2015 Act facially violate the Fair Housing Act because it requires approval of a use variance from the local zoning board for the development of a Alzheimer's residence comprised of 16 bedrooms or 6, 062 square feet when a prior statute allowed such development?

         For the reasons stated herein, Blake Garden's summary judgment motion is granted, and the State's summary judgment motion is denied. This Court also finds that the 2015 Act violates the Fair Housing Act[2]. The undisputed facts are as follows:

         I.

         Plaintiff Blake Gardens ("Blake Gardens") is a limited liability company, duly organized and existing under the laws of the State of New Jersey, whose principal offices are in Mahwah, New Jersey. Blake Gardens develops and builds community residences for people with Alzheimer's disease and other forms of dementia throughout the State. Blake Gardens contends that the dementia homes are indistinguishable from single-family homes from both the outside facade and the inside layout, having large, airy front porches and picket fences. Plaintiff describes the dementia homes' internal layout as being like any other single-family home, which includes individual bedrooms with individual bathrooms, a kitchen, a living room, and a dining room. The residents interact like any traditional family living under one roof together. They eat home-cooked meals, play games, do arts and crafts, watch television, listen to music, garden, and engage in other sundry activities. (ECF 31-2, Ex. J) (Exhibit A).

         In 2015, the New Jersey Legislature passed P.L. 2015 c.125, which regulated the development of Alzheimer's residences, and reclassified such residences as health care facilities pursuant to the Health Care Facility Planning Act (N.J. Stat. Ann. § 26:2H-1). The 2015 Act removed these facilities from the definition of Alzheimer's residences, and placed them under the review of the Department of Health (hereinafter “DOH"). This amendment is significant because it changes the zoning of a residence for a person with Alzheimer's disease from conditional approval in a single-family residential zone to one where a use variance is required. N.J. Stat. Ann. § 40:55D-70.

         Prior to the 2015 Act, dementia care homes were considered community residences for people with head injuries and were regulated as Class C boarding homes by the Department of Community Affairs ("DCA"). A Class C boarding home is a boarding home that provides meal services, medication monitoring, monitoring of self-administration of medication, and in some cases financial services.

         One of the sponsors of the 2015 Act was Bergen County Assemblywoman Valerie Huttle. In proposing the 2015 Act, Assemblywoman Huttle did not consult with the head of the DCA, who had oversight over these residences, nor with the chair of the New Jersey Alzheimer's Disease Study Commission, Lowell Arye. As part of Assemblywoman Huttle's background, she supported a Bergen County community group that sought to prevent the establishment of a Blake Gardens residence for Alzheimer's disease patients. Assemblywoman Huttle, after a legislative committee hearing, issued a press release in which she promoted "the State Department of Health to take over the responsibility of regulating ... the 34 dementia care group homes in New Jersey"; but there was nothing within the press release about zoning approvals. There was no industry opponent to the bill[3].

         In or around early 2017, Blake Gardens sought to construct a new Alzheimer's residence for people with Alzheimer's disease in a single-family residential zoning district on Hunt Road in the Township of Freehold. To that end, Blake Gardens applied for a building permit from the Township as a home for individuals with head injuries, as the term is defined under the Municipal Land Use Law (MLUL).

         Freehold's Director of Zoning and Housing Enforcement, Pasquale Popolizio, requested an overview of the residence from Eric Boe, the President of Blake Gardens, and in a letter dated March 8, 2017, Boe presented the requested overview to Popolizio with a picture of the proposed residence and the description of the home. (ECF No. 31 -2, Ex. K). That facility was a 16-bedroom single-story residence comprising 6, 062 square feet.

         In his letter dated March 8, 2017, Boe stated that the persons to live in the residence "will all have head injuries as that term is defined under New Jersey law and will live together as a family." (ECF No., 31-2, Exh. K).

         In a letter dated March 21, 2017, Popolizio rejected Boe's application based on the change in the MLUL which excluded persons with Alzheimer's disease from the definition of persons with a head injury[4]. (ECF No. 31-2, Ex. L). The letter also informed Plaintiff that they could appeal the decision to the Freehold Township Planning Board within 20 days after receipt of the letter. (Ex. G, pp. 460-461). Instead of appealing, Plaintiff filed its Complaint against the State on May 9, 2017 to challenge the 2015 law as a violation of the Fair Housing Act.

         II.

         In 2011, the New Jersey State Legislature established the New Jersey Alzheimer's Disease Study Commission (the "Commission") after recognizing the need to research, provide services, and address the rate of the population afflicted with Alzheimer's disease and other forms of dementia in New Jersey. (ECF No. 31-2, at 1). The Legislature found that at the time, 150, 000 residents of the State were diagnosed with Alzheimer's disease, and that approximately 350, 000 residents were directly impacted by the disease. (Id. at 2). Therefore, there is a demand within the State of New Jersey for an increase in community-based services (as opposed to nursing homes and institutional facilities) that house and provide services to persons with Alzheimer's disease and other forms of dementia.

         In August 2016, the Commission submitted a report (the "Report") to the Governor and the New Jersey Legislature detailing its findings. (ECF No. 31-2, Ex. B). The Commission defined Alzheimer's disease as a "progressive, degenerative, and irreversible neurological disease that develops over a period of years . . . Alzheimer's disease is the most common form of dementia, which is a general term for loss of memory and other cognitive abilities, serious enough to interfere with daily life. It is not a part of the 'normal' aging of the brain." (Id. at 12). The Report found that while the disease

may begin with gradual short-term memory loss, Alzheimer's disease progresses to include a decline in all areas of cognition, language and communication, perception and judgment, and personality. Individuals become unable to converse and be a part of their environment. The individual with [Alzheimer's disease] eventually will be unable to perform the activities of daily living such as ambulation, dressing, feeding, and bathing.

(Report, pp. 12-13). The Report further explained that the process takes years, and the longest period is the "middle stage," which is plagued by safety, health, financial, and personal care issues. (Report, p. 14).

         The Report also explained that common issues with individuals with Alzheimer's disease or dementia include wandering, in which a person may leave the home and "wander away," and elopement, where a person believes "something" is wrong and that they must "escape." (Id. at 22). The Report explained that to prevent wandering or elopement, individuals need "undivided attention ... almost 24/7 attention by at least one person." (Id.). Further, the Report discussed the impact of Alzheimer's disease on the community, explaining that Alzheimer's disease not only impacts those inflicted with the disease, but also has long term effects on the communities where such people reside. The community impacts include the following:

• Growing challenge for State, county, and local social services to meet the safety and care needs of people with dementia and their family caregivers;
• Increased usage of police, emergency /ambulance, and fire services;
• Increased need for dementia-specific medical care in the community and hospitals;
• Reduced neighborhood participation;
• Growing need for home care aide staff; and
• People with dementia and their families are more at risk for abuse, neglect, and exploitation. ..

         More specifically, the Report explained that "[w]hen a wandering or elopement occurs, it is hopefully quickly resolved without police or ambulance involvement; however, if the person goes missing, cannot be redirected, causes a car accident, or becomes assaultive, law enforcement and emergency responders are called upon." (Id. at 47).

         Finally, the Report recommends that state policy should "[p]romote the infrastructure for enhanced quality of services within the healthcare system to meet the growing No. of people with Alzheimer's disease" and to "[i]mprove public safety and address the safety-related needs of those with Alzheimer's disease living in the community." (Id. at 53, 56).

         As noted above, the 2015 Act changes the zoning of a residence for a person with Alzheimer's disease from conditional approval in a single-family residential zone to one where a use variance is required. N.J. Stat. Ann. § 40:55D-70. Approval of a use variance requires an affirmative vote of at least five of the seven zoning board members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board. Id. at § 40:55D-70(d).

         A use variance may be granted, "upon finding that: (1) special reasons exist for granting the variance, and (2) the variance 'can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.'" Kane Properties, LLC v. City of Hoboken, 423 N.J.Super. 49, 62-63, 30 A. 3d 348, 355-56 (App. Div. 2011), aff'd as modified sub nom, Kane Properties LLC v. City of Hoboken, 314 N.J. 199, 68 A. 3d 1274 (2013) (citing N.J. Stat. Ann. § 40:55D-70). Granting a use variance is relatively infrequent and "is the exception not the rule because legislative policy favors land use planning through ordinances not variances." Id. (citing Funeral Home Mgmt. v. Basralian, 319 N.J.Super. 200, 207, 725 A.2d 64 (App. Div. 1999)). The New Jersey Supreme Court has stated that "[v]ariances to allow new ...


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