Hovsons, Inc. v. Township of Brick

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

7-18-1996

Hovsons Inc v. Township of Brick
Precedential or Non-Precedential:

Docket 95-5648,95-5666

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Recommended Citation
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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 95-5648 and 95-5666

HOVSONS, INC.;
JOHN DOES

v.

TOWNSHIP OF BRICK, a Municipal Corporation in Ocean County;
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BRICK

Hovsons, Inc.,
Appellant No. 95-5648

Township of Brick,
Appellant No. 95-5666

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 94-cv-04265)

Argued June 3, 1996
BEFORE: COWEN, NYGAARD and LEWIS
Circuit Judges

(Filed July 18, l996)

Beth Pepper (argued)
Stein & Schonfeld
520 West Fayette Street
The Maryland Bar Center
Baltimore, Maryland 21201

COUNSEL FOR APPELLANT/CROSS-APPELLEE
Hovsons, Inc.

Thomas E. Monahan (argued)
Charles W. Hutchinson
Gilmore & Monahan
Ten Allen Street
P.O. Box 1540
Toms River, New Jersey 08754

COUNSEL FOR APPELLEE/CROSS-APPELLANT
Township of Brick, a Municipal Corporation
in Ocean County
Sally P. Dunaway
American Association of
Retired Persons
601 E Street, N.W.
Washington, D.C. 20049

American Association of
Retired Persons
Amicus-appellant, No. 95-5648

Andrew D. Levy
Brown, Goldstein & Levy
520 West Fayette Street
Suite 300
Baltimore, Maryland 21201

The National Association of
Social Workers, Inc.
Amicus-appellant, No. 95-5648
Amicus-appellee, No. 95-5666

American Seniors Housing
Amicus-appellant, No. 95-5648
Amicus-appellee, No. 95-5666

The National Citizens' Coalition
for Nursing Home Reform
Amicus-appellant, No. 95-5648
Amicus-appellee, No. 95-5666

The National Senior Citizens
Law Center
Amicus-appellant, No. 95-5648
Amicus-appellee, No. 95-5666

OPINION OF THE COURT

COWEN, Circuit Judge.

In this case we must decide whether the Township of
Brick's refusal to grant a variance to Hovsons, Inc. ("Hovsons")
to build a nursing home in the Township's R-R-2 zone, an area the
district court found to be predominantly residential, violates
the mandate of the Fair Housing Amendments Act of 1988 ("FHAA"),
42 U.S.C. 3601 et seq., that all municipalities provide
"reasonable accommodations" to handicapped persons. Id.
3604(f)(3)(B). The district court rejected Hovsons' FHAA claims
and denied its request for declaratory and injunctive relief.
We conclude that the accommodation Hovsons has put
forward would not impose an undue financial or administrative
burden upon Brick Township. Nor would building a nursing home in
the R-R-2 zone fundamentally undermine the Township's zoning
scheme. We therefore hold that the finding of the district court
that the Township complied with the FHAA's "reasonable
accommodations" provision cannot stand. Accordingly, we will
reverse the August 16, 1995 order of the district court and
remand with instructions to enjoin the Township of Brick from
interfering with Hovsons' plans to construct the nursing home
facility that the State of New Jersey authorized it to build in
Brick Township.

I.
A.
Hovsons is a developer of nursing homes and other forms
of senior citizen housing, such as adult retirement communities.
Hovcare of Brick, Inc., a corporation affiliated with Hovsons,
owns a 32.73-acre parcel of land on the Brick Township-Lakewood
Township border in New Jersey. Hovsons has proposed to build a
nursing home facility on that parcel. Approximately twenty-two
(21.96) of the acres are located in Brick Township; the
remaining (10.77) acres are in Lakewood Township. Hovsons'
developmental plan calls for site construction only on the Brick
Township portion of the property. Brick Township has steadfastly
opposed the construction of such a development within the R-R-2
zone.
The nursing home facility Hovsons has envisioned is
intended for persons who will require some form of nursing care
for the rest of their lives. Referred to as "Holiday Village,"
it would have the capacity to house 210 residents. The density,
architecture and design features of the proposed development are
comparable to that of the surrounding planned retirement
communities in Brick Township. The structure and its associated
parking and access facilities would cover six to seven acres.
The remaining land area would consist of open spaces, landscaped
areas and preserved tree buffers.
Under New Jersey law, nursing homes may not be built
unless the need for a home within the applicable health service
area is established through a certificate of need process. SeeN.J. Stat.
Ann. 26:2H-7-:2H-8. On December 2, 1989, the New
Jersey Department of Health approved Hovsons' application for a
certificate of need which authorized construction of a 150-bed
nursing home in Brick Township. Hovsons' certificate was amended
on August 12, 1991 to increase the authorized number of beds from
150 to 210.
In its August 12, 1991, approval letter to Hovsons
authorizing this sixty-bed increase, the New Jersey Department of
Health cited the acute need for nursing home facilities in Brick
Township. New Jersey Commissioner of Health Frances J. Dunston
declared that building another nursing home in Brick Township
would "help to maintain balance in the distribution of long-term
care beds throughout Ocean County, thereby promoting geographical
access to care for area residents. Brick Township has
approximately 6.7 long-term care beds per 1,000 population,
compared to the County average of 12 beds per 1,000 population."
App. at 26. In addition, the State prioritized Hovsons'
application on account of its agreement to have Medicaid-eligible
patients comprise no less than fifty-five percent of its patient
population.
Brick Township is divided into a total of twenty-three
zoning districts comprised of fifteen residential zones, seven
business/office zones and one hospital support zone. Nursing
homes are excluded from all fifteen residential zones. Hovsons
has proposed to construct Holiday Village in Brick Township's R-
R-2 or "Rural Residential-Adult Community Zone." Id. at 242.
The district court found that the R-R-2 zone is "primarily,
although not exclusively, for residential use," and that this
region was zoned by community planners with the intention of
"minimiz[ing] traffic" and bringing about an environment that was
both "quiet" and "seclu[ded]." Hovsons, Inc. v. Township of
Brick, No. 94-4265, slip op. at 1, 5 (D.N.J. Aug. 16, 1995). In
the R-R-2 zone, Brick Township permits the following land uses as
of right and without conditions: (1) customary and conventional
farming activities; (2) one-family dwellings; (3) public
schools and accredited private schools; (4) municipal parks,
playgrounds and other municipally owned facilities; and (5)
planned residential retirement communities.
The Brick Township R-R-2 zone also allows for a number
of conditional uses, including: (1) public utilities
installations; (2) hospitals; (3) public and quasi-public
philanthropic and charitable uses; (4) quasi-public buildings
and recreation areas; (5) golf courses; (6) single-family
residential dwellings with a maximum density of 1.5 dwelling
units per acre; (7) single-family residential dwellings with
open space; and (8) churches, parish houses, convents and
cemeteries. The only area in Brick Township where nursing homes
can be constructed is the hospital support zone. Other permitted
uses in the hospital support zone are doctors' offices, clinics,
emergency treatment facilities, pharmacies, retail establishments
for the sale of medical and surgical supplies, motels and
hospitals. The hospital support zone is commercial in nature.
No single or multiple-family residences may be built in this area
without first obtaining a variance.
Brick Township's hospital support zone has already been
developed extensively. Less than thirty undeveloped acres
remain. The remaining vacant land consists of small,
noncontiguous, separately owned parcels, the largest site being
8.6 acres. The record is unclear as to whether any of the
undeveloped land in the hospital support zone is currently on the
market or otherwise available for purchase.
B.
In 1990, Hovsons applied for a variance to the Brick
Township Zoning Board of Adjustment ("Zoning Board"), to build a
nursing home in the R-R-2 zone. Hovsons' application was debated
extensively (a total of seventeen public hearings were conducted
over a two-year period) and was ultimately denied in April of
1992.
Hovsons challenged the denial of the variance by filing
a lawsuit against the Zoning Board in the New Jersey Superior
Court, Law Division. On February 5, 1993, the Law Division
reversed the denial of Hovsons' application and remanded the
matter to the Zoning Board for reconsideration. Approximately
two months later, the Zoning Board again denied Hovsons'
application. Hovsons appealed the second denial to the New
Jersey Law Division, which issued an order on April 16, 1993,
directing that the use variance be issued. On March 30, 1994,
the New Jersey Appellate Division reversed the Law Division and
reinstated the Zoning Board's denial. Hovsons filed a petition
for certification with the New Jersey Supreme Court, which was
denied on July 15, 1994. Hovsons, Inc. v. Zoning Bd. of
Adjustment of Brick Township, 645 A.2d 142 (N.J. 1994).
On September 6, 1994, Hovsons filed suit in the United
States District Court for the District of New Jersey against the
Township of Brick and the Zoning Board. Hovsons alleged, inter
alia, that the defendants had violated the FHAA. Hovsons
maintained that the Township and its Zoning Board had
discriminated against handicapped persons by denying its
application for a variance to construct a nursing home in the R-
R-2 zone. Specifically, Hovsons contended that the defendants'
actions amounted to intentional discrimination and that the Brick
Township zoning ordinance had a disparate impact upon handicapped
persons. Hovsons further asserted that the defendants had
refused to comply with the FHAA's requirement that they provide
"reasonable accommodations" to handicapped persons.
Hovsons sought both declaratory and injunctive relief
to prevent the Township of Brick and its Zoning Board from
interfering with its plans to build a nursing home in the R-R-2
zone. The defendants responded to Hovsons' allegations by filing
motions for summary judgment. On June 27, 1995, the district
court granted summary judgment in favor of the Zoning Board. The
district court ruled that the federal claims Hovsons had brought
against the Zoning Board could have been raised and litigated in
previous state court proceedings and were therefore barred under
the entire controversy doctrine. The district court also
dismissed Hovsons' intentional discrimination claim against Brick
Township, finding that its zoning ordinance was facially valid
and rationally related to a legitimate governmental interest.
Hovsons has not appealed the dismissal of these claims, nor was
the entire controversy issue raised on appeal.
The district court did find, however, that there were
material factual issues in dispute regarding Hovsons' disparate
impact and reasonable accommodation claims against the Township
of Brick. The district court further held that the nursing home
Hovsons has proposed to build should be classified as a
"dwelling" under the FHAA because it would be a home to its
prospective residents. Accordingly, the Township's motion for
summary judgment on these issues was denied and the case was set
for trial.
A one-day bench trial was held on July 12, 1995. On
August 16, 1995, the district court issued its findings of fact
and conclusions of law. The court rejected Hovsons' disparate
impact argument, reasoning that Hovsons had failed to establish
that handicapped persons were more adversely impacted by the
zoning ordinance than people without disabilities. Furthermore,
the district court held that Brick Township was not in violation
of the "reasonable accommodations" provision of the FHAA. The
district court opined that 3604(f)(3)(B) does not require
municipalities "to disregard their own zoning requirements in
order to provide sufficient opportunities and accommodations for
the disabled." Hovsons, No. 94-4265, slip op. at 6. In so
holding, the court relied upon the fact that Brick Township
permitted the construction of nursing homes in another area of
the Township. Moreover, the nursing home would, in the district
court's view, be inconsistent with the residential character of
the R-R-2 zone and would not adequately "service the immediate
surrounding community." Id. at 5.
Hovsons now appeals the judgment of the district court
rejecting its "reasonable accommodations" and disparate impact
FHAA claims. The Township of Brick has cross-appealed the
district court ruling that the proposed nursing home is a
"dwelling" within the meaning of the FHAA.

II.
The district court had jurisdiction under 28 U.S.C.
1331 and 42 U.S.C. 3613. We have jurisdiction pursuant to 28
U.S.C. 1291. We "exercise[] plenary review over questions of
statutory construction." United States v. Columbus Country Club,
915 F.2d 877, 880 (3d Cir. 1990), cert. denied, 501 U.S. 1205,
111 S. Ct. 2797 (1991).
A number of our sister circuits have held "that in
enacting the anti-discrimination provisions of the FHAA, Congress
relied on the standard of reasonable accommodation developed
under section 504 of the Rehabilitation Act of 1973, codified at
29 U.S.C. 794." Shapiro v. Cadman Towers, Inc., 51 F.3d 328,
334 (2d Cir. 1995). Accord United States v. California Mobile
Home Park Management Co., 29 F.3d 1413, 1416-17 (9th Cir. 1994)
(same); Smith & Lee Assocs., Inc. v. City of Taylor, Michigan,
13 F.3d 920, 930 (6th Cir. 1993). As it is supported by the
legislative history of the FHAA, we also adopt this view. SeeH.R. Rep.
No. 711, 100th Cong., 2d Sess. 25, reprinted in 1988
U.S.C.C.A.N. 2173, 2186 & n.66 ("The concept of `reasonable
accommodation' has a long history in regulations and case law
dealing with discrimination on the basis of handicap.") (citing
Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct.
2361 (1979) (Rehabilitation Act case)); see also Bryant Woods
Inn, Inc. v. Howard County, Maryland, 911 F. Supp. 918, 940 (D.
Md. 1996) ("In light of the references to Davis in the
legislative history of the Fair Housing Act, the courts have
uniformly concluded that the standards for `reasonable
accommodations' developed under 504 of the Rehabilitation Act
also apply to 3604(f)(3)(B).").
In Nathanson v. Medical College of Pennsylvania, 926
F.2d 1368 (3d Cir. 1991), a Rehabilitation Act case, we held that
a district court's determination as to whether a proposed
accommodation is "reasonable" is a question of fact. Id. at
1386. Therefore, we would ordinarily review the finding of the
district court that the accommodation Hovsons proffered was
unreasonable under the "clearly erroneous" standard. "A finding
of fact is clearly erroneous when, after reviewing the evidence,
the court of appeals is `left with a definite and firm conviction
that a mistake has been committed.'" Oberti v. Board of Educ. of
Borough of Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d Cir.
1993) (citation omitted). Our review of the factual findings of
the district court is confined to "whether there is sufficient
evidence in the record to support those findings." Cooper v.
Tard, 855 F.2d 125, 126 (3d Cir. 1988).
Hovsons argues that the district court applied the
wrong legal standard when it placed the burden upon the plaintiff
to establish that its requested modification was reasonable under
the FHAA. We exercise plenary review over the question of
whether the district court applied an incorrect legal standard.
See Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1511
n.11 (3d Cir. 1994), aff'd, ___ U.S. ___, 115 S. Ct. 1920 (1995).

III.
The Township of Brick contends that this case should
not be considered under the FHAA because nursing homes are not
"dwellings" as defined in the Act. Hovsons maintains that the
district court erred in finding that Brick Township complied with
the "reasonable accommodations" provision of the FHAA. We will
address these issues in turn.
A.
Section 3604 of the FHAA proscribes discrimination "in
the sale or rental" of "a dwelling." 42 U.S.C. 3604(f)(1).
The FHAA defines the term "dwelling" as
any building, structure, or portion thereof
which is occupied as, or designated or
intended for occupancy as, a residence by one
or more families, and any vacant land which
is offered for sale or lease for the
construction or location thereon of any such
building, structure, or portion thereof.

42 U.S.C. 3602(b) (emphasis added). We addressed the issue of
what constitutes a "dwelling" under the FHAA in United States v.
Columbus Country Club, 915 F.2d 877 (3d Cir. 1990), cert. denied,
501 U.S. 1205, 111 S. Ct. 2797 (1991).
One of the issues in Columbus Country Club was whether
bungalows inhabited by club members during the summer months were
"dwellings" within the meaning of 3602(b). The Country Club
argued that they were not. Focusing upon what Congress intended
the word "residence" to mean, we rejected this argument. We
observed that "[a]lthough the meaning of the term `residence' is
central to understanding [the definition of dwelling], the Act
provides no statutory definition of that term." Id. at 881.
Applying a plain meaning analysis, the court looked to the
definition of "residence" in Webster's Third New International
Dictionary, which defines it as "a temporary or permanent
dwelling place, abode or habitation to which one intends to
return as distinguished from the place of temporary sojourn or
transient visit." Columbus Country Club, 915 F.2d at 881
(citation omitted). This led us to hold "that the central
inquiry is whether the defendant's annual members intend to
remain in the bungalows for any significant period of time and
whether they view their bungalows as a place to return to." Id.
We observed that since "annual members may spend up to
five months in their bungalows," they were "not `mere
transients.'" Id. Furthermore, there was "no indication in the
statutory language that Congress intended to limit coverage of
the Act to year-round places of abode . . . ." Id. The court
also noted that if we were to adopt the Country Club's argument,
this "would create a broad exception to the Act" that, followed
to its logical conclusion, could be interpreted to allow
residents in a private development of summer homes to exclude
members of minority groups from owning, renting or occupying
summer homes without violating the FHAA, a result that Congress
could not have intended. Id. We therefore held that the summer
bungalows fell "within the ordinary meaning of `residence' and
must be considered dwellings for purposes of the Fair Housing
Act." Id.
The Township of Brick's argument that the proposed
nursing home is not a "dwelling" under the FHAA is similarly
without merit. To the handicapped elderly persons who would
reside there, Holiday Village would be their home, very often for
the rest of their lives. We therefore hold that the proposed
nursing home is a "dwelling" within the meaning of 3602(b).
See United States v. Commonwealth of Puerto Rico, 764 F. Supp.
220 (D.P.R. 1991) (applying FHAA to case challenging the closure
of a nursing home). We therefore will affirm the judgment of the
district court to the extent it held that the proposed nursing
home is a "dwelling," as that term is defined by the FHAA.
B.
1.
Section 3604(f)(1) of the FHAA provides that it is
unlawful

[t]o discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any
buyer or renter because of a handicap of--

(A) that buyer or renter,

(B) a person residing in or intending to reside
in that dwelling after it has been sold, rented, or
made available; or

(C) any person associated with that buyer or
renter.

42 U.S.C. 3604(f)(1). Section 3604(f)(3)(B) further provides
that "[f]or the purposes of this subsection, discrimination
includes . . . 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[.]" Id. 3604(f)(3)(B).
Hovsons argues that the district court erred when it
placed the burden upon the plaintiff to establish that the
accommodation that it requested was "reasonable" under the FHAA.
See Hovsons, No. 94-4265, slip op. at 4. We agree. Our
precedents interpreting 504 of the Rehabilitation Act have held
that the burden of proving that a proposed accommodation is not
reasonable rests with the defendant. See Juvelis v. Snider, 68
F.3d 648, 653 & n.5 (3d Cir. 1995); Nathanson v. Medical College
of Pennsylvania, 926 F.2d 1368, 1385 (3d Cir. 1991). As we have
already held that courts must look to the body of law developed
under 504 of the Rehabilitation Act as an interpretative guide
to the "reasonable accommodations" provision of the FHAA, we
further hold that the burden should have been placed upon the
Township of Brick to prove that it was either unable to
accommodate Hovsons or that the accommodation Hovsons proposed
was unreasonable. We now turn to the question of whether there
is a sufficient foundation in the record to support the factual
finding of the district court that Brick Township complied with
the FHAA's "reasonable accommodations" provision.
2.
The conclusion of the district court that the Township
of Brick satisfied the FHAA's mandate that "reasonable
accommodations" be provided to handicapped persons was clear
error. Brick Township does not permit the construction of
nursing homes in any of its residential areas. The Township
nonetheless contends that the authorization for nursing home
construction within its hospital support zone, an area zoned for
hospitals and other medical support facilities, suffices to
satisfy its legal obligation to handicapped persons. We
disagree.
The reasoning and analysis of the district court
evinces a fundamental misunderstanding of the intent of Congress
in enacting the FHAA. The district court's statement that the
FHAA "does not ask [municipalities] to disregard their own zoning
requirements in order to provide sufficient accommodations for
the disabled" runs counter to the entire thrust of the FHAA.
Hovsons, No. 94-4265, slip op. at 6. The Township of Brick's
blanket exclusion of nursing homes from its residential areas in
general, and its refusal to permit the construction of the
specific facility in question, is precisely the sort of isolation
of handicapped persons from the mainstream of society that the
FHAA was enacted to forbid. Furthermore, there is a dearth of
evidence in the record to support Brick Township's sweeping claim
as to the fundamental incompatibility of nursing homes and
residential areas in general and the R-R-2 zone in particular.
A review of the record, case law interpreting the
meaning of "reasonable accommodations" and the legislative
history of the FHAA leads us to conclude that the Township of
Brick failed to satisfy the requirements of 3604(f)(3)(B) as a
matter of law. Although the district court applied the incorrect
legal standard, we need not remand for further proceedings.
There was a full hearing on the merits in the district court
during which each side presented expert testimony on the issue of
the compatibility of a nursing home with the other uses in the R-
R-2 zone, and the record is critically deficient of evidence that
would support a ruling in Brick Township's favor. We therefore
conclude that it is appropriate to direct entry of judgment in
favor of Hovsons. See Rohm and Haas Co. v Adco Chem. Co., 689
F.2d 424, 433 (3d Cir. 1982) (directing that judgment be entered
in favor of plaintiff when adverse result in district court was
premised upon the application of an incorrect legal standard);
Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 239 (3d
Cir. 1979) (remand unnecessary despite application of the
incorrect legal standard "because the evidence on the record
compel[led] the result").
The FHAA's "reasonable accommodations" provision
prohibits the enforcement of "zoning ordinances and local housing
policies in a manner that denies people with disabilities access
to housing on par with that of those who are not disabled."
Laurie C. Malkin, Troubles at the Doorstep: The Fair Housing
Amendments Act of 1988 and Group Homes for Recovering Substance
Abusers, 144 U. Pa. L. Rev. 757, 804 (1995) (hereinafter Fair
Housing Amendments Act). Pursuant to 3604(f)(3)(B), the
Township of Brick has "an affirmative duty" to make reasonable
accommodations on behalf of handicapped persons. United States
v. California Mobile Home Park Management Co., 29 F.3d 1413, 1416
(9th Cir. 1994). See Juvelis, 68 F.3d at 653 (" 504 requires
some affirmative steps to accommodate handicapped persons.").
"The reasonable accommodation inquiry is highly fact-
specific, requiring a case-by-case determination." California
Mobile Home Park Management Co., 29 F.3d at 1418. AccordNathanson, 926
F.2d at 1385. As in Rehabilitation Act cases, we
must view the reasonable accommodations requirement "in light of
two countervailing legislative concerns: (1) effectuation of the
statute's objectives of assisting the handicapped; and (2) the
need to impose reasonable boundaries in accomplishing this
purpose." Americans Disabled For Accessible Pub. Transp. (ADAPT)
v. Skinner, 881 F.2d 1184, 1191 (3d Cir. 1989) (in banc). We
keep in mind the principle that satisfaction of the FHAA's
reasonable accommodation requirement "can and often will involve
some costs." Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335
(2d Cir. 1995).
"Courts interpreting the reasonable accommodation
provision of the Fair Housing Act have ruled that municipalities
. . . must change, waive, or make exceptions in their zoning
rules to afford people with disabilities the same opportunity to
housing as those who are without disabilities." Horizon House
Developmental Servs., Inc. v. Township of Upper Southampton, 804
F. Supp. 683, 699-700 (E.D. Pa. 1992) (collecting cases), aff'd,
995 F.2d 217 (3d Cir. 1993) (Table). To establish that the
accommodation proffered by Hovsons was not reasonable, the
Township of Brick was required to prove that it could not have
granted the variance "without imposing undue financial and
administrative burdens," Southeastern Community College v. Davis,
442 U.S. 397, 412, 99 S. Ct. 2361, 2370 (1979), imposing an
"undue hardship" upon the Township, Nathanson, 926 F.3d at 1383,
or requiring "a fundamental alteration in the nature of the
program . . . ." Davis, 442 U.S. at 410, 99 S. Ct. at 2369. SeeAlexander
v. Choate, 469 U.S. 287, 300, 105 S. Ct. 712, 719-20
(1985). We conclude that the Township of Brick has failed to
make such a showing.
We acknowledge that precisely what the "reasonable
accommodations" standard requires is not a model of clarity.
Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1015 (3d Cir.
1995); ADAPT, 881 F.2d at 1193 (acknowledging "[t]he difficulty
in determining precisely the extent of accommodation mandated by
section 504"); O'Neal v. Alabama Dep't of Pub. Health, 826 F.
Supp. 1368, 1376 (M.D. Ala. 1993) ("As centuries of jurisprudence
have taught us, the word `reasonable' is subject to a wide
variety of interpretations."). As one court has observed, "[t]he
FHAA imposes an affirmative duty to reasonably accommodate
handicapped persons. However, because the precise obligations
encompassed by this duty are ambiguous, many courts have looked
to the legislative history of the Act for guidance." United
States v. City of Taylor, Michigan, 872 F. Supp. 423, 436 (E.D.
Mich. 1995) (citation omitted). We will also look to the
legislative history of the FHAA to clarify the meaning of its
"reasonable accommodations" requirement in the present factual
setting.
We have previously emphasized that the enactment of the
FHAA was "a clear pronouncement of a national commitment to end
the unnecessary exclusion of persons with handicaps from the
American mainstream." Helen L. v. DiDario, 46 F.3d 325, 333 n.14
(3d Cir.) (quoting H.R. Rep. No. 711, 100th Cong., 2d Sess. 18,
reprinted in 1988 U.S.C.C.A.N. 2173, 2179), cert. denied, 116 S.
Ct. 64 (1995). The House Report further states that the FHAA "is
intended to prohibit the application of special requirements
through land-use regulations . . . that have the effect of
limiting the ability of such individuals to live in the residence
of their choice in the community." H.R. Rep. No. 711, 100th
Cong., 2d Sess. 24, reprinted in 1988 U.S.C.C.A.N. 2173, 2185
(emphasis added). Moreover, the FHAA was intended to "require
that changes be made to . . . traditional rules or practices if
necessary to permit a person with handicaps an equal opportunity
to use and enjoy a dwelling." Id. at 2186.
In light of these Congressional pronouncements
regarding the purpose and scope of the FHAA, it was clear error
for the district court to conclude that Hovsons' request for a
variance could not be accommodated. Granting a variance to
Hovsons would not have saddled the Township of Brick with "undue
financial and administrative burdens," or otherwise resulted in
the imposition of an "undue hardship." On the contrary, the
proprietors of Holiday Village will become taxpaying members of
the local community. Furthermore, the district court
acknowledged the "considerable efforts [Hovsons has made] to work
with the township in order to make the site feasible . . . ."
Hovsons, No. 94-4265, slip op. at 5. Holiday Village intends to
manage its own affairs with a minimum of local governmental
involvement. Hovsons has agreed to have Holiday Village arrange
for its own garbage collection, street maintenance and snow
removal. The nursing home would rely upon the municipal fire,
police and emergency services, but its use of these services
would be no different from that of the surrounding retirement
developments. The mere fact that the employees and residents of
Holiday Village will at times require the assistance of the local
police and other emergency services does not rise to the level of
imposing a cognizable administrative and financial burden upon
the community.
Nor would granting a variance to Hovsons fundamentally
undermine the Brick Township zoning scheme. The Supreme Court
has observed that, in broad general terms, the purpose of zoning
law is "to prevent problems caused by the `pig in the parlor
instead of the barnyard.'" City of Edmonds v. Oxford House,
Inc., ___ U.S. ___, ___, 115 S. Ct. 1776, 1781 (1995) (quoting
Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365, 388,
47 S. Ct. 114, 118 (1926)). As the record makes clear, however,
permitting the construction of a nursing home in the R-R-2 zone
would cause no such problems.
We reject the Township of Brick's contention that
nursing homes are fundamentally incompatible with the other
permitted uses in the R-R-2 zone. Brick Township appears to rely
upon the blanket proposition that nursing homes are clearly out
of place in residential zones. This is precisely the type of
land use planning that the FHAA was enacted to prevent and, if
necessary, overrule. Furthermore, the design construction of
Holiday Village is similar to that of the local planned
residential retirement communities, a permitted use in the R-R-2
zone. As both of these types of facilities cater to the elderly,
Holiday Village could provide a useful resource to members of the
local retirement communities who do not want to locate in a new
area, but who are no longer able to care for themselves.
As the Court of Appeals for the Sixth Circuit has
observed, "the handicapped may have little choice but to live in
a commercial home if they desire to live in a residential
neighborhood. To provide the handicapped with equal housing
opportunities, the City must make the necessary `reasonable
accommodations.'" Smith & Lee Assocs., Inc. v. City of Taylor,
Michigan, 13 F.3d 920, 930 (6th Cir. 1993). We hold that under
the facts in this case, 3604(f)(3)(B) requires that the
Township of Brick permit Hovsons to proceed with its plans to
build a nursing home in its R-R-2 zone. This result is
consistent with "the broad remedial intent of Congress embodied
in the [Fair Housing] Act." Havens Realty Corp. v. Coleman, 455
U.S. 363, 380, 102 S. Ct. 1114, 1125 (1982). See City of
Edmonds, ___ U.S. at ___, 115 S. Ct. at 1780 (noting the Fair
Housing Act's "`broad and inclusive' compass, and therefore
according a `generous construction' to the Act's complaint-filing
provision") (quoting Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 209, 212, 93 S. Ct. 364, 367, 368 (1972)); see
also Fair Housing Amendments Act, supra, at 763 ("The scope of
the statute is sweeping, not only in the broad protections it
affords, but also in the limited exceptions it allows.").
It is uncontroverted that the Township of Brick has a
substantial interest in enforcing its zoning code and that, under
appropriate circumstances, local zoning codes are entitled to a
considerable amount of deference. See, e.g., Village of Belle
Terre v. Boraas, 416 U.S. 1, 7-8, 94 S. Ct. 1536, 1540 (1974);
Doe v. City of Butler, Pennsylvania, 892 F.2d 315, 318 (3d Cir.
1989). We are also mindful of the fact that "[i]n requiring
reasonable accommodation, . . . Congress surely did not mandate a
blanket waiver of all facially neutral zoning policies and rules,
regardless of the facts." Oxford House, Inc. v. City of Virginia
Beach, Virginia, 825 F. Supp. 1251, 1261 (E.D. Va. 1993). Nor
did Congress intend to "give handicapped persons carte blanche to
determine where and how they would live regardless of zoning
ordinances to contrary." Thornton v. City of Allegan, 863 F.
Supp. 504, 510 (W.D. Mich. 1993). Nonetheless, the FHAA's
promise that "reasonable accommodations" be provided to
handicapped persons would be an empty one indeed if Brick
Township were permitted to do nothing to accommodate the elderly
disabled who are in need of nursing home care and desire to live
in one of the Township's residential zones.
The House Report to the FHAA expressly states that the
Act "is intended to prohibit . . . [the imposition of] terms or
conditions . . . which have the effect of excluding . . .
congregate living arrangements for persons with handicaps." H.R.
Rep. No. 711, 100th Cong., 2d Sess. 23, reprinted in 1988
U.S.C.C.A.N. 2173, 2184. As one court has explained, "strict
adherence to a rule which has the effect of precluding
handicapped individuals from residing in the residence [of their
choice] was precisely the type of conduct which the Fair Housing
Amendments Act sought to overcome with the enactment of
3604(f)(3)(B)." United States v. Village of Marshall, Wisconsin,
787 F. Supp. 872, 879 (W.D. Wis. 1991).

IV.
We will reverse the August 16, 1995 order of the
district court and remand this matter with instructions to enjoin
the Township of Brick from interfering with the construction of
the nursing home facility under the terms, conditions and
specifications agreed to by the State of New Jersey.