- The Fair Housing Act does not give a developer the right to build an assisted living residence in a single family zoning district.
A developer sought to build a 150-bed assisted living facility in a single-family residential district. They believed that the city’s zoning ordinance discriminated on its face against individuals with disabilities by not permitting assisted living facilities as of right in the single-family district and by explicitly allowing them in only one district in the city. The District Court agreed and granted a preliminary injunction. The Third Circuit Court of Appeals reversed and found the city’s zoning ordinance not to be discriminatory.
The city’s zoning ordinance defines a “One Family Dwelling” in its single-family zoning district to be a “building designed for, or occupied exclusively by, one family and not designed or used as . . . a group home or congregate living facility in which a person’s continued occupancy is dependent upon the payment of a fixed rent or room charge.”
“Assisted living facilities” are not specifically defined under the city’s zoning ordinance, but New Jersey’s Administrative Code defines “assisted living” as “a coordinated array of supportive personal and health services, available 24 hours per day, to residents who have been assessed to need these services including persons who require nursing home level of care.”‘ That Code further defines an “[a]ssisted living residence” as “a facility which is licensed . . . to provide apartment-style housing and congregate dining and to assure that assisted living services are available when needed, for four or more adult persons unrelated to the proprietor.”
According to the city’s zoning ordinance, the single-family zone’s purpose “is to preserve and protect the integrity of such districts for one-family residential purposes, to establish one-family residence districts that provide for a range of lot sizes, and to permit in such districts only such other uses as will be compatible with one-family residential use.”
The city zoning ordinance permits assisted living facilities to be constructed as of right only in a single district, the “Research, Industrial, Medical (RIM) District.
The Fair Housing Act Is a Legal Weapon Often Used by Predatory Developers
Pursuant to the Fair Housing Act, it is unlawful:
To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of —
- that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.
Under the FHAA, “handicap” means “a physical or mental impairment which substantially limits one or more of [a] person’s major life activities.”
Discussion of the Appeals Court Decision
The terms of the R-AAA zone together with the M zone are not discriminatory on their face. The mere fact that some general terms in the ordinance operate to disallow assisted living facilities while other terms expressly permit assisted living facilities as of right in another district, does no transform the ordinance into one that discriminates on its face.
To conclude otherwise could render a zoning ordinance on its face discriminatory if it (1) enumerates exclusive allowable uses, (2) does not expressly permit a use associated with a protected class, and (3) elsewhere even mentions that use. Such a result would make the FHAA’s requirement that an unlawful restriction must be “because of discrimination” meaningless.
The court’s conclusion that the city’s ordinance is not facially discriminatory does not necessarily spell the end of the applicant’s proposed project. As the court noted, “under New Jersey law, developers of group homes for the handicapped (including the elderly) may apply for a use variance as an ‘inherently beneficial use’ in any zone.”
Accordingly, the developer did not show a likelihood of success on the merits, and the District Court erred in granting the preliminary injunction.
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By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Zoning Law Attorney