901 ERNSTON ROAD LLC v. BOROUGH OF SAYREVILLE ZONING BOARD OF ADJUSTMENT et al

Filing 22

OPINION filed. Signed by Judge Anne E. Thompson on 5/11/2018. (mps)

rt,·

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RECEIVED

MAY 11 2018

901 ERNSTON ROAD, LLC,

AT 8:30
WILLIAM T. WALSH
CLERK

Plaintiff,

M

v.
Civ. No. 18-2442
BOROUGH OF SAYREVILLE ZONING
BOARD OF ADJUSTMENT; and BOROUGH
OF SAYREVILLE,

OPINION

Defendants.

THOMPSON, U.S.D.J.

INTRODUCTION
This matter comes before the Court on the Motion for Preliminary Injunction and
Application for Order to Show Cause by Plaintiff 901 Emston Road, LLC ("Plaintiff'). (ECF
No. 6.) Defendants Borough of Sayreville Zoning Board of Adjustment ("Defendant Board")
and the Borough of Sayreville ("Defendant Borough;') (collectively, "Defendants") oppose.
(ECF Nos. 10, 12.) The Court has decided this Motion based on the written submissions and oral
argument held on April 25, 2018. For the reasons stated herein, Plaintiffs Motion is granted.

BACKGROUND
Plaintiff is an affiliate of Recovery Centers of America, LLC ("RCA"), 1 which runs
neighborhood-based recovery campuses for drug and alcohol addiction treatment and recovery.
(Compl. ifif 5, 14, ECF No. 1.) On January 18, 2018, Plaintiff entered into a long-term lease (15

1

·Hereinafter, Plaintiff and RCA are used interchangeably.
1

years with four, ten-year renewal options) on a 6.96 acre property at 901 Emston Road,
Sayreville, NJ (''the Property''}, located within the Borough of Sayreville, in order to open an
RCA facility.

(Id.~~

6, 27.) The property is within a "PRIME zone"-"Public Recreational,

Institutional Municipal and Educational ... designated, inter alia, as conditionally approved for
long-term healthcare and nursing." (Id. , 6.) It was previously a nursing home, and a proposal
was approved in 2014 for it to be reconstructed and opened as a facility called Sayreville
Nursing. (Id. ,, 8, 30.) Defendant Borough is a municipal entity located in Sayreville, NJ, and
Defendant Board "is a quasi-judicial body created by the Borough of Sayreville and is vested
with the authority under the MLUL [Municipal Land Use Law]" to grant variances and hear and
decide zoning appeals.

(Id.,~

15-16.)

On July 7, 2017, RCA filed an initial application with the Borough of Sayreville Zoning
Officer to confirm that the property could be used for a treatment facility, as conditionally
permitted in a PRIME zone. (Id., 35.) The application was denied without reason.

(Id.~

36;

see Zoning Permit Application, Ex. B, ECF No. 10-2 ("Proposed use is not permitted in zone nor
comports with planning board site prior approval.").) RCA appealed to Defendant Board on July

26, 2017 and filed a variance application on September 15, 2017 in an attempt to expedite the
approval process. (Id.

inf 37, 39.)

On September 27, 2017 at an initial hearing, RCA presented

testimony that this facility falls within the definition of a "long term care facility/nursing
facility/nursing home" pursuant to the Sayreville Zoning Code, suitable for a PRIME zone. (Id.

ml 11, 32, 40; Sayreville Zoning Code 26-6, Ex. A, ECF No. 1.)

On or about October 12, 2017,

Defendants sent notice to proximate landowners and published notice of RCA' s application in
the local newspaper. (Id. , 42.)

2

Subsequently, Defendant Board held three public hearings on November 8, 2017,
December 13, 2017, and January 24, 2018. (Id., 46.) At each, RCA presented witnesses to
address the four criteria used to assess variances in New Jersey, in an effort to demonstrate the
facility would be a beneficial use and its positive factors would outweigh any negative
considerations. 2 (See id.,, 49-78.) All told, Plaintiff presented seven witnesses: Dr. Deni
Carise, RCA clinical director (id. , 53); James Higgins, licensed professional planner (id. , 49);
Christine Cofone, professional consultant on planning and zoning (id., 50); Scott Turner, civil
and site engineering expert (id., 62); Karl Phenke, traffic and safety expert (id., 65); Michael
Desrosiers, director of operations at an existing RCA facility (id. , 82); and David Dorschu, the
CEO of the Mays Landing RCA facility (id. , 98).
Dr. Carise began her testimony with extensive detail as to the nature of the opioid crisis
in America. (Nov. 8th Tr., Ex. B, 28:20-31:21, ECF No. 1.) She emphasized that the epidemic
particularly plagues this area of the country: "New Jersey has the sixth highest rate in the nation
of ER visits due to opioid problems. And Middlesex County is in the top five counties in the
state for overdose deaths." (Id. 29:11-14.) Dr. Carise then provided an overview ofRCA's
mission and design, created to provide a new rehabilitative model to address this crisis. RCA is
a "neighborhood model" that draws "most patients from a 50-mile radius around [the] site." (Id.
32:17-19.) The sites are designed to provide the opportunity for long-term relationships with
therapists, family-based therapy, education sessions for families, and both in-patient and outpatient care. (Id. 32:20-34:4.) Dr. Carise also gave a snap-shot of the client/patient population:

2

The four factors the board must identify and balance in determining whether to grant a variance
include: (1) "the public interest involved," (2) "the detrimental effect that will ensue from the
grant of the variance," (3) "reasonable conditions on the use that would reduce its detrimental
effect, and (4) the detriment to the public good and interest. In re Four Three Oh, Inc., 256 F.3d
107, 113 (3d Cir. 2001) (quoting Sica v. Bd. ofAdjustment Twp. of Wall, 603 A.2d 30, 37 (N.J.
1992); (Compl., 45).
3

"18 and older," "predominately middle class," "82 percent fully employed," "90 percent
commercially insured, and about 10 percent ... self pay." (Id. 46:12-22.) None of these
patients would be "somebody with a really significant acuity psychiatrically." (Id. 47:19-20.)
The remainder of Plaintiff's witnesses presented testimony as to "five possibly negative
considerations-aesthetics, noise, traffic, safety, and impact on zoning-that the Board might
weigh against the public interest." (Compl., 60.) The witnesses also responded to particular
concerns raised by Defendant Board, with extra attention given to safety. (See id.

mf 79-90.)

This testimony specified the number of surveillance cameras, security staff presence, facilities
rounds that are conducted, use of RFID 3 in patient bracelets, patient safety monitoring plans,
comprehensive intake searches, and discharge procedures. (Nov. 8th Tr. 51:12-60:12.)
Public comments from Sayreville residents were heard at the end of the second and third '
hearings. (Id., 47.) Between the two hearings, sixty-five members of the community
participated, all speaking out against the approval of the RCA facility. (Id. , , 102, 110.) The
public comment period was monopolized by concerns about the facility's close proximity to the
Eisenhower school and residential communities and suggestions that it could be built anywhere
else in Sayreville where it ''won't affect as many residents." (Dec. 13th Tr., Ex. C, 108:15-18,
1

ECF No. 1; see also id. 102:18-24, 118:17-21.) It was clear that the residents felt this "just can't

happen in our own back yards." (Id. 109:16-18; Jan. 24th Tr., Ex. D, 77:4-7, 104:15-16, 111:810, ECF No. 1.) A number of comments focused on the pre-approved use of this property as a
nursing home and expressed personal preference and community need for a nursing home (see,

3 RFID

are tracking microchips that can detect where a patient is at all times in the building.
(Nov. 8th Tr. 53:20-54:16.) RFID stands for "Radio Frequency Identification," and it uses radio
waves to communicate information. See Radio Frequency Identification (RFID), U.S. Food &
Drug Admin., https://www.fda.gov/RadiationEmittingProducts/RadiationSafety/ElectromagneticCompatibilityEMC/ucm 1i6647 .htm (last
updated Dec. 2, 201 7).

4

1

e.g., Dec. 13th Tr. 98:1-5, 100:6-24, 106:21-24), although a nursing home application was not
under consideration in lieu ofRCA's application. Some residents brought their own,
uncorroborated, facts regarding rehab facilities, crime rates, drug recidivism, and decreasing
home values. (See e.g., id. 108:18-109:15, 111:2-7; Jan. 24th Tr. 25:10-12, 33:15-16.)
At the close of the January hearing, Defendant Board held a closed-door session to
receive legal advice from Defendant Board's counsel, Karl Kemm. (Compl. ifif 113-14.) After
that session, Defendant Board announced its decision to deny the variance application, and each
member provided a statement of reasons on the record. (Id.

mf 115-25.)

According to Plaintiff,

While some Board members mentioned safety and quality of life concerns, those
sentiments were blatant pretext for other discriminatory purposes, and the Board's
empty statements of concern for patients amounted to nothing more than a not-inmy-backyard ("NIMBY") defense premised on the perceived danger caused by
those suffering from alcohol and drug dependency.

(Id.

if 116.)

A number reflected that they would welcome the construction of an RCA facility in

a different location in Sayreville, but according to Plaintiff, the suggestion "amounts to nothing
more than platitudes." (Id.

if 120.)

Plaintiff also alleges that there were some explanations

advanced by Defendant Board that lack support in the evidentiary record. (Id.

W 124-26.)

Following the denial, on February 13, 2018, Plaintiff and the landlord amended the lease
to include a clause for termination by Plaintiff within 10 days of March 31, 2018. (Id. , 28.) On
February 21, 2018, Plaintiff filed this lawsuit pleading violations of: (I) Title II of the Americans
with Disabilities Act, (II) the Fair Housing Act of 1988, (III) the Rehabilitation Act of 1983,
(IV) § 1983 through the denial of the variance application, (V) substantive due process under the
Fifth and Fourteenth Amendments, (VI) N.J.S.A. 40:55-D-70(d), (VII) N.J.S.A. 26:2BB-1 and
30:6C-1; and (VIII) the NJ Law Against Discrimination. (See generally id.)
On March 6, 2018, Plaintiff filed its emergent Motion for Preliminary Injunction and
Application for an Order to Show Cause. (ECF No. 6.) On March 9, 2018 the Court held a
5

status conference and established a scheduling order for the Motion. (ECF Nos. 7, 8.)
Defendant Board opposed (ECF No. 10), and Defendant Board and Borough then opposed
jointly (ECF No. 12). Plaintiff replied. (ECF No. 13.) The Court heard oral argument on the
Motion on April 25, 2018. (ECF No. 20.) This Motion is presently before the Court.

LEGAL STANDARD
The grant or denial of a preliminary injunction is within the discretion of the Court. See
Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012).
The primary purpose of preliminary injunctive relief is "maintenance of the status quo until a
decision on the merits of a case is rendered." Acierno v. New Castle Cty., 40 F.3d 645, 647 (3d
Cir. 1994). Affirmative relief or mandatory relief that alters rather than maintains the status quo
may also be granted, but "the burden on the moving party is particularly heavy." Am. Fin. Res.,
Inc. v. Nationstar Mortg., LLC, 2016 WL 8201959, at *2 (D.N.J. Apr. 29, 2016) (quoting
Punnett v. Carter, 621F.2d578, 582 (3d Cir. 1980)). The decision to issue a preliminary
injunction is governed by a four-factor test, wherein the plaintiff must demonstrate:
(1) that they are reasonably likely to prevail eventually in the litigation and (2)
that they are likely to suffer irreparable injury without relief. If these two
threshold showings are made the District Court then considers, to the extent
relevant, (3) whether an injunction would harm the [defendants] more than
denying relief would harm the plaintiffs and (4) whether granting relief would
serve the public interest.
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (quoting
Tenafly Eruv Ass 'n v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002)).
A preliminary injunction is an "extraordinary remedy, which should be granted only in
limited circumstances," Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d
Cir. 1989), and is "never awarded as of right," Groupe SEB USA, Inc. v. Euro-Pro Operating,

6

LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 24 (2008)).

ANALYSIS
In opposition to Plaintiff's application, Defendants raise two threshold arguments. First,
Defendant Board contends that Plaintiff does not have standing to raise the discrimination claims
contained in its Complaint (see Def. Bd. Opp'n at 7, ECF No. 10), and second, Defendants claim
that Plaintiff failed to exhaust administrative remedies through writ in the New Jersey Superior
Court, Law Division (see Defs.' Opp'n at 5-11, ECF No. 12). At oral argument, Plaintiff
addressed both issues thoroughly, and the Court is satisfied that neither poses an impediment to
its ability to hear these claims.
Plaintiff has standing as a service provider or operator of a facility for handicapped,
recovering addicts. See Horizon House Dev. Servs., Inc. v. Twp. of Upper Southampton, 804 F.
Supp. 683, 692 (E.D. Pa. 1992) (citing 42 U.S.C. § 3604(f)(2)(B)). Plaintiff has also properly
brought this action following Defendant Board's final decision to deny Plaintiff's variance
application, see Lauderbaugh v. Hopewell Twp., 319 F.3d 568, 574 (3d Cir. 2003); Congregation

Kolle/, Inc. v. Twp. ofHowell, 2017 WL 637689, at *6 (D.N.J. Feb. 2, 2017). The failure to file
an action in lieu of prerogative writs is not destructive to Plaintiff's present, comprehensive suit
brought in federal court. See, e.g., House ofFire Christian Church v. Zoning Bd. ofAdjustment

of City of Clifton, 43 A.3d 1205, 1210 (N.J. Super. Ct. App. Div. 2012) ("It is common that
certain aggrieved land use applicants bring parallel state and federal claims as part of a state
court action in lieu of prerogative writs or in federal court."). Moreover, a separate pending
action in lieu of prerogative writs may run afoul of the entire controversy doctrine by seeking the

7

!:

same relief and claims in two actions. See Cresci v. Bayonne Parking Auth., 2011WL55962, at
*1, *2 (N.J. Super. Ct. App. Div. Jan. 11, 2011) (per curiam).
Therefore, the Court turns next to the four-factor preliminary injunction analysis. As
emphasized by the Court at status conference and oral argument, the elements of irreparable
harm and a likelihood of success on the merits are the sticking points of this case. Accordingly,
the thrust of the following discussion focuses on these key elements.
A. Irreparable Harm
, ·In its moving papers, Plaintiff articulates irreparable harm in the form of denying
treatment to prospective patients and the monies lost in the planning, leasing, and design of the
facility, as well as interest in the property. (See Pl. 's Mem. at 28-29, ECF No. 6-2; see also
Compl., 141 ("To date, Plaintiff has invested an estimated $1,385,000 in the Property and
Facility, including approximately $226,000 to lease the premises, $458,000 for design and
preconstruction activities, $651,000 for professional services, and $50,000 for facilities
expenses.").) As Defendants appropriately note, the latter claim of irreparable harm will not
survive a preliminary injunction analysis because it presents the type of economic harm that can
be remedied with money damages. (See Defs.' Opp'n at 18 (quoting Acierno, 40 F.3d at 655);

see Def. Bd. Opp 'n at 9 (quoting Frank's GMC Truck Ctr. v. Gen. Motors Corp., 84 7 F .2d 100,
102 (3d Cir. 1989)).) Thus, the former harm presents the real issue for the Court. Other federal
courts that have grappled with issuing preliminary injunctions of such magnitude in the context
of discriminatory housing have found that irreparable harm is satisfied by (1) harm to future,
potential patients and thus frustration of a care provider's mission; or (2) presumption of harm
from the discriminatory conduct and statutory violations.

8

First, there is irreparable harm where the defendant's conduct delays treatment for
prospective members of a community residence. Easter Seal Soc y v. Twp. ofN. Bergen, 798 F.
Supp. 228, 237 (D.N.J. 1992) (issuing construction permit to ensure necessary renovations may
be made to operate residence); see also Oxford House-Evergreen v. City ofPlain.field, 769 F.
Supp. 1329, 1339-40 (D.N.J. 1991). But see Lapid Ventures, LLC v. Town ofPiscataway, 2011
WL 2429314, at *9 (D.N.J. June 13, 2011). Accordingly, "[f]rustation of a rehabilitation
provider's mission can cause irreparable harm." Carson Found. ofFla., Inc. v. City ofDelray
Beach, 879 F. Supp. 2d 1353, 1373 (S.D. Fla. 2012). See Step by Step, Inc. v. City of
Ogdensburg, 176 F. Supp. 3d 112, 135 (N.D.N.Y. 2016) ("The City's actions have deprived

[plaintiff] of its ability to pursue its mission and to provide housing and services to its mentally

ill clients and this denial constitutes irreparable harm."); Stewart B. McKinnney Found., Inc. v.
Town Planning & Zoning Comm 'n of Town ofFairfield, 790 F. Supp. 1197, 1209 (D. Conn.

1992) ("Monetary damages would not adequately compensate the plaintiff for its inability to
achieve its purpose of providing housing in Oldfield property to needy HIV-infected persons
pending a final determination of this action."); see also N. Shore-Chi. Rehab. Inc. v. Village of
Skokie, 827 F. Supp. 497, 502 (N.D. Ill. 1993).

Second, because the Fair Housing Act ("FHA"), 42 U.S.C. § 3613(c), authorizes
injunctive relief, some courts find a rebuttable presumption of irreparable harm where there is a
substantial likelihood the defendant violated the FHA. Step by Step, 176 F. Supp. 3d at 133-34;
Stewart B. McKinnney Found., 790 F. Supp. at 1208 (collecting cases). Thus, "[m]andatory

injunctions are common in FHA and Rehabilitation Act cases" without any additional showing
of irreparable harm. Baxter v. City ofBelleville, 720 F. Supp. 720, 727 (S.D. Ill. 1989). Courts
in the Third Circuit initially declined to apply this presumption, see, e.g., Easter Seal Soc y, 798

9

F. Supp. at 237-38 (citing Gresham v. Windrush Partners, Ltd., 130 F.2d 1417 (11th Cir. 1984),
cert. denied 469 U.S. 882 (1984)), but later followed suit, see Assisted Living Assocs. of
Moorestown, LLC v. Moorestown Twp., 996 F. Supp. 409, 438-39 (D.N.J. 1998) (applying
presumption of irreparable harm to issue injunction exempting proposed facility from a recentlyenacted zoning ordinance); see also Raab Family P'ship v. Borough ofMagn,olia, 2009 WL
361135, at *9 (D.N.J. Feb. 13, 2009) (enjoining enforcement of rental ordinances).
Defendants attempt to argue that this case is distinguishable-irreparable harm will not
result because much of the law on which Plaintiff relies involves pre-existing treatment facilities
or eviction of current handicapped residents, see Innovative Health Sys., Inc. v. City of White
Plains, 931 F. Supp. 222, 240--41(S.D.N.Y.1996) (finding irreparable harm where facility was
relocating to and renovating a new facility, and its current clients faced treatment interruption);
see also Oxford House-Evergreen, 169 F. Supp. at 1345 (finding irreparable harm where
residents faced eviction from group home for recovering addicts). (Defs.' Opp'n at 14-16.) This
argument is unpersuasive. There are other cases in this Circuit, which Defendants do not
acknowledge, where courts have granted affirmative relief to permit the construction of facilities
on the basis of the irreparable harm that will result to a future facility and its prospective
handicapped residents. See, e.g., Easter Seal Soc y, 798 F. Supp. at 238 (finding delay to project
endangered recovery of "mentally ill chemical abuser" prospective clients and yet-identified
individuals); id. at 237 (citing Oxford House-Evergreen, 769 F. Supp. at 1339-40, 1345)
(describing Oxford House-Evergreen's focus on a generalized "interference with the
establishment of a functioning community residence for recovering chemical abusers"); see also
Carson Found. ofFla., Inc., 879 F. Supp. 2d at 1361, 1373 (finding irreparable harm where
rehab provider was "thwarted" from developing a new facility due to imposition of transient use

10

ordinance). The Innovative Health Systems court specifically relied on both Easter Seal Society
and Oxford House-Evergreen. 931 F. Supp. at 241.
In sum, on both bases, the Court finds that Plaintiffs showing of irreparable harm is

satisfied. Whether it is entitled to injunctive relief will largely turn on the likelihood of success
on the merits of its injunctive relief claims, specifically the Fait Housing Act pursuant to the
statutory presumption.
B. Likelihood of Success on the Merits
While the Complaint seeks injunctive relief on all Counts, Plaintiffs Motion focuses on
the merits of its FHA, Rehabilitation Act ("RA"}, and Americans with Disabilities Act ("ADA")
claims as the basis for an injunction. (See Pl.' s Mem. at 16.) The FHA makes discriminatory "a
refusal to make reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use and enjoy a
dwelling." 42 U.S.C. § 3604(f)(3). The subsequent amendment to the FHA, the Fair Housing
Amendments Act ("FHAA"), "was expressly intended to prevent municipalities from using their
zoning authority to treat congregate living arrangements of unrelated people with disabilities
differently from living arrangements ofnondisabled p_eople." Twp. ofW. Orange v. Whitman, 8
F. Supp. 2d 408, 425 (D.N.J. 1998). FHA and FHAA violations must involve dwellings, and the
Third Circuit has found that rehabilitation facilities qualify as dwellings for the duration of a
patient's time in treatment. Lakeside Resort. Enters., LP v. Bd. ofSupervisors ofPalmyra Twp.,
455 F .3d 154, 156 n.5 (3d Cir. 2006). The RA provides that no disabled individual "shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity." 42 U.S.C. § 12132. And lastly, the ADA expands the scope of the RA to private entities

11

receiving federal funds. New Directions Treatment Servs. v. City ofReading, 490 F.3d 293, 302
(3d Cir. 2007).

B~yond

the Court's inherent judicial authority to issue a preliminary injunction

pursuant to Federal Rule 65, these statutes, as noted above, authorize courts to grant injunctive
relief, either temporary or permanent, where "a discriminatory housing practice has occurred or
is about to occur." 42 U.S.C. § 3613(c)(l) (FHA); see also 29 U.S.C. § 794a (noting ADA
remedies are same as those available under the Civil Rights Act enforcement provision, 42
U.S.C. § 2000e-5, which authorizes injunctive relief); 42 U.S.C. § 12133 (same, incorporating
ADA remedies and enforcement procedures).
As a predicate to success on any of these claims, a plaintiff must present a class of
protected individuals, i.e. handicapped individuals. Courts in this Circuit deem drug and alcohol
addiction an impairment and thus handicap under these statutes. See New Directions Treatment
Servs., 490 F.3d at 309; Lakeside Resort. Enters., LP, 455 F.3d at 156 n.5; Oxford House, Inc. v.
Twp. of Cherry Hill, 799 F. Supp. 450, 459 (D.N.J. 1992) (discussing statutory construction of
FHA which specifically excludes current users, thus implying recovering addicts were
contemplated as impaired under the statute).
"A plaintiff may prove a violation of the FHAA, ADA or Rehabilitation Act in one of
three ways: (1) showing disparate treatment, also termed intentional discrimination, (2) showing
disparate impact, or (3) showing a refusal to make reasonable accommodations." Lapid
Ventures, LLC, 2011 WL 2429314, at *9. Here, Plaintiff argues that Defendants have engaged in
a "not in my backyard" type of discrimination, resulting in discrimination by all three means. As
described by another court in this District with respect to RCA, "[t]his case concerns what
Plaintiffl] deem[ s] to be a 'NIMBY' matter-that the Defendants have systematically rejected
Plaintiff['s] efforts to build a cutting edge substance abuse treatment facility for unfounded and

12

11

misguided 'not in my backyard' reasons." 1840 P. Cheeseman Rd., LLC v. Twp. of Gloucester
Zoning Bd. ofAdjustment, 2016 WL 7325470, at *1 (D.N.J. Dec. 16, 2016).

1. Disparate Treatment
First, Plaintiff argues that Defendants intentionally discriminated against Plaintiff and
treated it differently based on handicap, as evidenced by the refusal to grant the application under
the Ordinance and the refusal to accept the facility's beneficial use. (Pl.'s Mem. at 24--25.) To
advance a claim of disparate treatment, there must be evidence of discriminatory purpose
motivating the action. Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421F.3d170, 177 (3d Cir.
2005). "The discriminatory purpose need not be malicious or invidious, nor need it figure in
'solely, primarily, or even predominately' into the motivation behind the challenged action." Id.
(quoting Cmty. Hous. Tr. v. Dep't of Consumer & Reg. Affairs, 257 F. Supp. 2d 208, 225
(D.D.C. 2003)).
Defendant Board seemed to widely acknowledge the pressing public health crisis the
opioid epidemic has brought on and the serious need for care and treatment, particularly in New
Jersey. (See, e.g., Jan. 24th Tr. 140:14--16, 145:21-24.) Ms. Cofone testified that New Jersey
courts have very recently found that recovery detox centers are inherently beneficial uses,
overturning a township decision to the contrary. (Dec. 13th Tr. 88:6-15.) Members of
Defendant Board even conceded ''there's no doubt that this is an inherently beneficial use." (Jan.
24th Tr. 144:8--9.) Defendants argue that despite these concessions, Defendant Board properly
weighed and applied the Sica balancing test over three extensive hearings, finding that the
factors did not justify a variance. (Defs.' Opp'n at 22-23.) The testimony presented at and
commentary following these three hearings, however, made abundantly clear that Defendant

13

Board and the local residents were of the NIMBY school of thought, with clear opposition by the
residents, cf Cmty. Servs., Inc., 421 F.3d at 182.
At times, comments by Defendant Board members reflected potential animus towards
recovering addicts and associations with criminal behavior, prompting Defendant Board's
counsel, Lawrence Sachs, to caution members from making logical leaps regarding the danger of
RCA's patients. (Compare Dec. 13th Tr. 54:19-21 ("What happens if Joe Smith walks out of
the facility and just walks 200 feet down Ernston Road and then they're at the school."), with id.
54:22-24 ("Again, we're taking a big leap that someone who [is] in this facility is a criminal,
which obviously they're not."), and id. 55:5-13.) When explaining their decision to deny the
application, Defendant Board members' statements seemingly contradicted the testimony of
Plaintiff's witnesses, and instead relied on fears of crime and danger associated with RCA in
their backyards. Cf Get Back Up, Inc. v. City ofDetroit, 2017 WL 2535453, at *6 (E.D. Mich.
June 12, 2017) ("[T]he [board] at least referenced concerns, supported by testimony, over
property values and aesthetics."). As one Board member tellingly admitted, "I don't think I
could look in [my neighbors'] eyes and say, you know what? I voted yes for this to come in, in
this particular area, and I had no regard for your safety." (Jan. 24th Tr. 142:8-12.) While
Defendant Board did not rely solely on zoning as the rationale for its decision, it is clear that "the
fact that the intended occupants of [RCA] were recovering addicts was a motivating factor in
their decision." Oxford House-Evergreen, 769 F. Supp. at 1343.4 Accordingly, the Court finds

4

The Court does not ignore some of the more measured and thoughtful comments by members
of Defendant Board, which placed great emphasis on safety concerns arising out of inadequate
coverage and bona fide reports of issues at RCA facilities in Massachusetts. (See Jan. 24th Tr.
134:21-137:22.) These comments, however, still do not have strong support in the record and
evidence presented by Plaintiff thoroughly addressed these concerns. Rather, based on the
Court's own reading of the entire transcript and testimony at all three hearings, these conclusions
seem to have been stirred by inherent biases and the commentary from the community.
14

that Plaintiff presents sufficient evidence of discriminatory treatment and intent such that it
would likely succeed on the merits of these claims.
2. Disparate Impact
Next, Plaintiff argues that it is subject to a discriminatory disparate impact by
Defendants' application of the Ordinance, ''when they have already approved an operationally
identical nursing home facility." (Pl.'s Mem. at 26.) For a claim of"disparate impact under the
FHAA, the plaintiff must show that the Township's action had a greater adverse impact on the
protected group ... than on others." Lapid-Laurel LLC v. Zoning Bd. ofAdjustment of Twp. of
Scotch Plains, 284 F.3d 442, 466--67 (3d Cir. 2002); Oxford House, Inc., 799 F. Supp. at 461
(noting same standard and clarifying that intent is not requited). "If the plaintiffs succeed in
demonstrating a prima facie case, the burden then shifts to the defendant to show that it had a
legitimate, non-discriminatory reason for the action and that no less discriminatory alternatives
were available." Lapid-Laurel LLC, 284 F .3d at 467.
The Court is satisfied that Plaintiff establishes a prima facie showing for disparate
impact, insofar as Defendant Board's conduct has affected RCA and its recovering addict
patients differently than Sayreville Nursing and its elderly patients. Defendants contend,
however, that the RCA facility "does not fall within the defined long term care facility set forth
in the Ordinance." (Defs.' Opp'n at 20 (emphasis in original).) The Court construes this
assertion to be Defendants' legitimate non-discriminatory reason.
Sayreville Zoning Code defines a long-term care facility as:
[A] facility which provides a full range of twenty-four (24) hour direct medical
nursing and other health services. Registered nurses, licensed practical nurses and
nurses' aides provide services prescribed by a residence physician. It is for those
older adults who need health supervision but not hospitalization. The emphasis is
on nursing care, but restorative physical occupational speech and respiratory
therapies are also provided. This level of care may also include specialized
15

nursing services such as intravenous feeding or medication, tube feeding, injected
medication, daily wound care, rehabilitation services and monitoring of unstable
conditions.
(Compl., 32; Sayreville Zoning Code 26-6, Ex. A.) It is true that Sayreville Nursing, a
traditional nursing home for elderly patients, received final site plan approval as a long-term care
facility in 2014, prior to Plaintiffs application. (Compl. mf 8, 30; Nov. 8th Tr. 9:18-21; see also
Resolution of Planning Board of the Borough of Sayreville, Ex. B, ECF No. 10-2.) Plaintiff
represents that an RCA facility is nearly identical in nature to a nursing home and comports with
this ordinance. (Pl.'s Mem. at 26; Compl. ,, 30-31.)
Based on Dr. Carise's testimony regarding the mission, function, and patient care at
RCA, it seems as though the facility could fit within this definition. Mr. Higgins also testified
that the type of specialized nursing services would be very similar to the care provided in a long
term care facility. (Nov. 8th Tr. 123:12-23.) Some discussions at the first hearing, however, are
contradictory. The introduction by RCA' s counsel, David Himelman, represented that "it has
been held by the courts in New Jersey that a drug rehabilitation center and treatment
center ... under the supervision of the Commissioner of Health, was deemed to be a hospital."

(Id. 14:24-15:4.) He further acknowledged that RCA "would qualify as a hospital, as recognized
by the Municipal Land Use Law." (Id. 15:9-10.) Responding to Defendant Board's confusion,

Mr. Himelman and Mr. Sachs together clarified: "So they're not here as a nursing home.
They're not here as a hospital. They're here as an inpatient and out-patient drug rehabilitation
center," seeking a variance. (Id. 23:23-24:1.) The Court also notes that under the Ordinance,
these facilities are "for those older adults who need health supervision but not hospitalization"
(Sayreville Zoning Code 26-6, Ex. A), but Dr. Carise testified that the RCA population would
provide care for all adults, 18 years and older, with an average age of 35 (Nov. 8th Tr. 46:12-13,
46:17-19).
16

While the Court will not expressly adjudicate whether the facility comports with the
definition of a long-term care facility, it is plausible that Defendant Board felt, based on these
representations, that the facility was not properly within the existing ordinance, as compared to a
nursing home. Therefore, the Court cannot conclude that Plaintiff has a strong likelihood of
success on its disparate impact claim.
3. Failure to Make Reasonable Accommodations
Finally, Plaintiff asserts that Defendants failed to make reasonable accommodations
when it declined to grant the variance application. (Pl.'s Mem. at 27.) To advance this claim,
the plaintiff bears the burden of demonstrating that there was a reasonable accoinmodation that
was necessary to "afford handicapped persons an equal opportunity to use and enjoy housing, at
which point the burden shifts to the defendant to show that the requested accommodation is
unreasonable." Lapid-Laurel, LLC, 284 F.3d at 457. As applied to zoning cases, municipalities
must "change, waive or make exceptions in their zoning rules." Hovsons, Inc. v. Twp. ofBrick,
89 F.3d 1096, 1104 (3d Cir. 1996). Unreasonable accommodations would involve ''undue
financial and administrative burdens," impose ''undue hardship on the town," or require "a
fundamental alteration in the nature of the zoning program." Cmty. Servs., Inc. v. Heidelberg

Twp., 439 F. Supp. 2d 380, 398 (M.D. Pa. 2006).(citingLapid-Laurel LLC, 284 F.3d at 457,
462). Yet a reasonable accommodation may stiU "result in the imposition of some costs on the
accommodator." Assisted Living Assocs. ofMoorestown, LLC, 996 F. Supp. at 436.
Here, it is undisputed, and was discussed many times during the course of the hearings,
that because "right now the use is not permitted anywhere in the Borough" (Nov. 8th Tr. 133:110), a variance must be granted to accommodate an RCA facility in Sayreville, amounting to a
reasonable accommodation for this class of handicapped individuals (see, e.g., id. 135:22-136:5;

17

Jan. 24th Tr. 17:5-18, 132:4-16). See Cmty. Servs., Inc., 439 F. Supp. 2d at 399 (concluding that
where a convalescent home was not permitted as of right anywhere, "a special exception or
variance is necessary to achieve an equal opportunity'' for housing for handicapped individuals).
Shifting to the Defendants' burden, the record below does not indicate that the request for
a variance was unreasonable. Testimony made clear that there would be no changes or
modifications to the footprint of the building that might impinge on zoning. (Nov. 8th Tr.
100:18-19.) There would only be "minor parking lot geometry changes" (id. 101 :20-21; id.
101 :3-9 (describing minor site plan modifications)), and overall "from a planning and land use
impact point of view ... there would be no substantial detriment to [the Board's] zone plan"
(Dec. 13th Tr. 90:20-25). There was also no discussion of additional administrative work for
Defendants or services they would need to provide. Rather, the key rationale for denial
articulated by Defendant Board members emphasized safety concerns and touched on issues of
understaffing, industry self-regulation, and decreased home values. These do not represent
undue burdens placed on either Defendant Board or Borough to accommodate a variance for
RCA.
One board member, Vice Chairman Henry, spoke of a need for increased police
personnel and thus funding that would be necessary to accommodate the facility. (See Jan. 24th
Tr. 140: 1-11.) Assuming arguendo this were true, it could be deemed an unreasonable burden.
But as Plaintiff notes, it is purely speculative: there is no support for this contention anywhere in
the record. (Compl. if 124.) Vice Chairman Henry seems to have loosely relied on the
conjecture of a resident who spoke during the public comment period from his personal
experiences where neighborhoods allegedly assign extra police and patrols to the area
surrounding a facility like RCA. (See Jan. 24th Tr. 55:15-22.) But Vice Chairman Henry

18

- JI._

admitted that he did not know the reason for increased police presence. (Id. 140:7.) Even if this .
were supported by the record, however, there is also no evidence that any cost increase would be ·
undue such that the accommodation might be unreasonable.
Accordingly, based on the record and testimony presented, Plaintiff sought an
accommodation in the form of a variance, and Defendant failed to demonstrate that this request
was unreasonable. All told, the Court is satisfied that Plaintiff has a strong likelihood of success
on its FHA, ADA, and RA claims for disparate treatment and failure to make reasonable
accommodations-. The Court now turns to the final two factors for the preliminary injunction
analysis.
C. Remaining Elements: Balance of Equities and Public Interest
Plaintiff asserts that the balance of equities favors an injunction because Defendants will
not be harmed by granting the application given its conformity with the PRIME zone and lack of
burden on municipal services. (Pl.' s Mem. at 29.) Plaintiffs also emphasize that an injunction
permitting RCA to open its facility in Sayreville greatly favors the public interest by providing
treatment to address the opioid crisis and preventing discrimination against recovering addicts.

(Id. at 29-.30.) In response, Defendant Board argues that granting the injunction would leave it
without remedy if Plaintiff ultimately did not succeed on the merits of its claim, thereby causing
it irreparable harm, which in tum weighs against the public interest. (Def. Board Opp'n at 6, 10.)
Defendants also assert that this will not serve the public interest because Plaintiff is a for-profit
corporation. (Defs.' Opp'n at 24.)
The Court finds Defendants' arguments unavailing. First, the Court has concluded that
Defendants are likely required to grant a variance application under the reasonable
accommodation standard and have failed to do so based on discriminatory treatment. Therefore,

19

I'

i

their framing of alleged harm is not persuasive. Second, federal law has "expressed a strong
public policy favoring an end to discrimination in housing on the basis of handicap and favoring
the establishment of housing programs for recovering drug addicts." Oxford House, Inc., 799 F.
Supp. at 465. This District has expressly concluded that ''the public has an interest in the
recovery of ... drug addicts," as reflected by both federal and state enactments. Oxford House-

Evergreen, 769 F. Supp. at 1346. The fact that Plaintiff is a private corporation has no bearing
on the value of the services it intends to provide for this community. In sum, these factors
strongly counsel in favor of, rather than against, granting injunctive relief for Plaintiff.

CONCLUSION
For the foregoing reasons, Plaintiff's Motion is granted. A corresponding order will
follow detailing the parameters of injunctive relief.

Date:

20