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LLC v. City of Englewood

United States District Court, D. New Jersey

December 3, 2019

431 E PALISADE AVENUE REAL ESTATE, LLC, et al., Plaintiffs,
CITY OF ENGLEWOOD, et al., Defendants.



         THIS 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 following order:


         1. On 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).

         2. 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. 2.)

         3. 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.

         4. On August 21, 2019, Defendants filed a Cross Motion for Judgment on the Pleadings and Opposition to Plaintiffs' Order to Show Cause (ECF No. 20).

         5. On 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).

         6. This Court conducted oral argument on September 13, 2019 (ECF No. 32).

         7. On 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.

         8. 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))).

         9. 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.)

         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.)

         11. 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 for ...

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