United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE
MATTER is opened to the Court by Defendants City of
Englewood (“City”) and City Council of
Englewood's (“City Council”) (collectively
“Defendants”) Motion (ECF No. 38) to Stay the
Court's October 10, 2019 Order pending their Appeal to
the Third Circuit (ECF No. 39) of that Order and the
accompanying Opinion of this Court. Plaintiffs 431 E.
Palisade Avenue Real Estate, LLC and 7 North Woodland Street,
LLC (collectively “Plaintiffs”) oppose the Motion
(ECF No. 44), and Defendants filed a Reply (ECF No. 46). The
Court, having reviewed the submissions filed in connection
with the Motion and having declined to hear oral argument
pursuant to Federal Rule of Civil Procedure 78(b), for the
reasons set forth below and for good cause, enters the
June 28, 2019, Plaintiffs filed a Complaint alleging the
City's Zoning Ordinances violated the Americans With
Disabilities Act (Count I), federal Fair Housing Act (Count
2), Rehabilitation Act (Count 3), their constitutional rights
under 42 U.S.C. § 1983 (Counts 4-6, 11), the Religious
Land Use and Institutionalized Persons Act, (Count 10), and
various state laws (Counts 7-9) (ECF No. 1).
Concomitantly, Plaintiffs filed an Application/Petition for
an Order to Show Cause seeking a preliminary injunction
enjoining Defendants' enforcement of those Zoning
Ordinances against Plaintiffs for the property located at 405
East Palisade Avenue, 431 East Palisade Avenue and 7 North
Woodland Street in Englewood, New Jersey (the
“Property”) pending the final resolution of this
litigation, and approving their zoning application. (ECF No.
Plaintiffs claim the City's Zoning Ordinance is facially
discriminatory because it does not allow assisted-living and
memory-care facilities as permitted uses in any purely
residential district in the City, instead permitting such
uses only in what the City calls its Research, Industrial,
Medical, or RIM, zone.
August 21, 2019, Defendants filed a Cross Motion for Judgment
on the Pleadings and Opposition to Plaintiffs' Order to
Show Cause (ECF No. 20).
August 28, 2019, pursuant to the Stipulation of the Parties
and this Court's Order of August 22, 2019, the nonprofit
corporation Concerned Citizens filed an Amicus Curiae brief
opposing Plaintiffs' Order to Show Cause (ECF No. 22).
Court conducted oral argument on September 13, 2019 (ECF No.
October 10, 2019, this Court granted Plaintiffs'
Application for a Preliminary Injunction, holding that
Plaintiffs had met their burden of demonstrating (1)
Plaintiffs had a reasonable probability of eventual success
in the litigation, (2) Plaintiffs would be irreparably
injured if relief is not granted, (3) Defendants would not be
substantially harmed by the granting of Plaintiffs'
Motion; and (4) the public interest would be served by
granting the Motion.
Defendants contend the Motion to Stay should be granted
because maintaining the status quo “is appropriate when
a serious legal question is presented, ” the serious
question here being whether the City's Zoning Ordinances
discriminate against people who require assisted-living and
memory-care facilities. (Defs.' Br. in Support of Mot. to
Stay (ECF No. 38-2) at 3 (citing Washington Metropolitan
Area Transit Commission v. Holiday Tours, Inc., 559 F.2d
841, 844 (D.C. Cir. 1977))).
Defendants further argue they have established a likelihood
of success on the merits of the appeal because the Ordinance
governing the R-AAA zone where the Property is located does
not contain any “alleged discriminatory classification
which is actually defined by the regulation in terms that
largely coincide with the [Fair Housing Act's] definition
of ‘handicap.'” (Id. at 10.)
Defendants contend Lapid-Laurel, LLC v. Zoning Bd. of
Adjustment of Twp. of Scotch Plains further augments its
likelihood of success in the appeal because against similar
facts the Third Circuit rejected arguments similar to those
raised by Plaintiffs in their Application/Petition for a
Preliminary Injunction. (Id. at 16-17.)
Defendants claim the Court should not have relied on
Montana Fair Housing, Inc. v. City of Bozeman
because the ordinance at issue there “utilized the
words ‘Assisted Living/Elderly Care Facilities'
and expressly prohibited that use within four
residential districts.” (Id. at 18 (citing
Bozeman, 854 F.Supp.2d 832 (D. Mont. 2012)).)
Defendants see no parallel to this matter, where the Code of
the City of Englewood, ch. 250 (Land Use) expressly provided