PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3621
_____________
431 EAST PALISADE AVENUE REAL ESTATE, LLC;
7 NORTH WOODLAND STREET, LLC;
JOHN AND JANE DOES 1-10
v.
CITY OF ENGLEWOOD;
CITY COUNCIL OF ENGLEWOOD,
Appellants
______________
On Appeal from the United States
District Court for the District of New Jersey
(D.C. Civ. Action No. 2-19-cv-14515)
District Judge: Hon. Brian R. Martinotti
_____________
Argued March 25, 2020
______________
Before: JORDAN, RESTREPO, and FUENTES,
Circuit Judges.
(Opinion filed: October 8, 2020)
Daniel Antonelli (Argued)
Antonelli Kantor
1000 Stuyvesant Avenue, Suite 1
Union, New Jersey 07083
Counsel for Appellants
Warren A. Usatine
Michael R. Yellin
Cole Schotz P.C.
25 Main Street
Court Plaza North, P.O. Box 800
Hackensack, New Jersey 07601
Roy T. Englert, Jr. (Argued)
Lee T. Friedman
Robbins, Russell, Englert, Orseck,
Untereiner & Sauber LLP
2000 K St. N.W., 4th Floor
Washington, D.C. 20006
Counsel for Appellees
2
______________
OPINION
______________
FUENTES, Circuit Judge.
Developers 431 East Palisade Avenue Real Estate LLC
and 7 North Woodland Street LLC (collectively, “Palisade”)
seek to build a 150-bed assisted living facility in a single-
family residential district in the City of Englewood, New
Jersey (the “City”). Palisade believes that the City’s zoning
ordinance discriminates 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.1
We must decide whether the City’s zoning ordinance,
by failing to include “assisted living facilities” among its
permitted uses in the single-family district, but explicitly
allowing them in a different district, facially discriminates
against the disabled in violation of the Fair Housing
Amendments Act (“FHAA”).2 We conclude that the City’s
zoning ordinance is not facially discriminatory.
Accordingly, the District Court erred in granting a
1
431 E Palisade Ave. Real Estate, LLC, v. City of
Englewood, No. 219-cv-14515-BRM-JAD, 2019 WL
5078865, at *1 (D.N.J. Oct. 10, 2019).
2
42 U.S.C. § 3601, et seq.
3
preliminary injunction. We will therefore vacate and remand
for further proceedings.
I.
A.
On a 4.96 acre parcel of land located partially in the City
and partially in the Borough of Englewood Cliffs,3 Palisade, a
developer, seeks to build a 150-bed for-profit assisted living
facility, which would provide supportive services to memory
care patients. The City opposes its construction. The
residential district in question is a “one-family residence
district,”4 zoned R-AAA, and is one of the City’s twenty-four
districts that allows residential living.
As the District Court observed of the City’s zoning
ordinance, “[t]here is no express language . . . prohibiting or
discriminating against either the elderly or the handicapped in
any of [the City’s] districts.”5 Instead, the R-AAA district
explicitly allows for only seven uses, the first of which is “one-
family dwelling[s].”6 The City’s zoning ordinance defines a
3
The properties comprising the parcel are located at 431
East Palisade Avenue, 405 East Palisade Avenue, and 7 North
Woodland Street.
4
App. 360-61.
5
Palisade, 2019 WL 5078865, at *7.
6
The following are the sole uses explicitly permitted in
the R-AAA zone:
4
“One-Family Dwelling” 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
(1) A one-family dwelling,
not to exceed one such
dwelling on anyone lot.
(2) Accessory uses,
accessory buildings and
accessory structures . . .
(3) Municipal purposes.
(4) Parks and playgrounds.
(5) Nature preserve and
nature study area.
(6) Public schools and
private nonprofit day
schools accredited by the
New Jersey State
Department of Education,
for grades not above high
school, and day-care
centers licensed by the
State of New Jersey, as
conditional uses . . .
(7) Places of worship,
including accessory
religious instructional
facilities, . . . .
App. 360–61.
5
person’s continued occupancy is dependent upon the payment
of a fixed rent or room charge.”7
“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.”8 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.”9
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.”10
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.” Other
7
App. 352. Accordingly, a number of individuals with
disabilities could live together in a congregate home, provided
they do not do so pursuant to a formal rent arrangement.
8
N.J. Admin. Code § 8:36-1.3.
9
Id.
10
App. 361.
6
permitted uses there include medical offices, rehabilitation
centers, skilled nursing facilities, hotels, and apartment and
condominium communities for senior citizens. Among the
RIM zone’s stated purposes is “to foster the development of
medical and health care facilities that complement the existing
medical and health care services located throughout the
City.”11 “Senior housing is permitted to complement future
medical and health care services and to contribute to a sense of
a health care village that offers care and living opportunities
for older persons.”12 Though the RIM zone “permit[s] land
uses that reflect contemporary light industrial economies,” the
district is not solely industrial and “already encompasses
several multifamily residential complexes.”13
The City admits that the zoning ordinance requires a
variance to build an assisted living facility of the type proposed
by Palisade in any district besides the RIM zone, including the
R-AAA zone, but the City also notes that New Jersey law
privileges this development. For example, in seeking such a
use variance, developers of group homes for individuals with
disabilities (including assisted living facilities) in New Jersey
face a reduced qualification standard, because such facilities
are considered an “inherently beneficial use.”14
11
Id. at 435.
12
Id.
13
Id. at 434-35.
14
Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of
Twp. of Scotch Plains, 284 F.3d 442, 467 (3d Cir. 2002) (citing
Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of
Adjustment, 704 A.2d 1271, 1281 (N.J. 1998)).
7
B.
Palisade has not submitted a formal application for a
variance, having taken the position that such a step would be
futile and that the variance application process is itself
discriminatory. Instead, it engaged in various conversations
with the City regarding its proposed development. In a letter
dated January 14, 2019, Palisade requested that the City
Council rezone the property. The City took no action toward
rezoning.
On June 28, 2019, Palisade filed a complaint alleging
violations of the FHAA, among other causes of action. By
application for an order to show cause, Palisade sought a
preliminary injunction barring the City from enforcing any
provisions of the zoning ordinance against it.
Palisade advanced three general arguments: (1) that the
ordinance discriminates against the disabled on its face (a
disparate treatment claim); (2) that the City’s enforcement of
the ordinance has a disparate impact on the disabled; and (3)
that the City failed to offer a reasonable accommodation.
The District Court granted the preliminary injunction,
accepting Palisade’s theory that the zoning ordinance was
facially discriminatory.15 It acknowledged that “the City’s
15
Concluding that the same standards apply to
Palisade’s FHAA claim and its other federal statutory
disability discrimination claims, the District Court did not
separately reach the merits of those other claims. And because
the District Court found in Palisade’s favor on the FHAA
8
zoning ordinances do not expressly state that assisted-living
centers are prohibited from districts primarily designed as
residential” and that “[t]here also is no language explicitly
stating that assisted-living centers are limited to the RIM
district, or providing that assisted-living centers are barred
from being a permitted, or even conditional, use in any other
district.”16
Nevertheless, the District Court reasoned that, because
the City’s zoning ordinance explicitly names assisted living
facilities in the RIM zone and expressly permits them only
there, it effectively excludes them from the R-AAA zone. The
District Court concluded that “the failure of the Code to
employ such negative words as assisted-living centers are
‘prohibited,’ or ‘banned,’ or ‘forbidden’ from any other district
other than the RIM district, as argued by Defendants, does not
disguise the fact that assisted-living centers are not permitted
uses in any district defined residential as its primary
character.”17 The District Court went on to determine that the
exclusion of assisted living facilities from the R-AAA zone
was intentional based on the City’s stated desire to create a
“health care village” in the RIM zone, and that such deliberate
exclusion violated the FHAA by precluding the disabled from
living in the residence of their choice.18
claim, it did not address Palisade’s additional federal and state
law causes of action.
16
Palisade, 2019 WL 5078865, at *9.
17
Id.
18
Id. at *10.
9
Concluding that Palisade had shown a likelihood of
success on the merits of its facial disparate treatment claim, the
District Court found the remaining factors favored granting
injunctive relief. Though the District Court granted the
preliminary injunction, with the practical effect that Palisade’s
“plans for developing the Property as a 150-bed assisted living
center would be considered a permitted use in the residential
zone,” it suggested that Palisade would continue to be “subject
to the remaining procedures of the City of Englewood’s land-
use process.”19
II.20
The District Court concluded that, because the zoning
ordinance treats assisted living facilities differently from
single-family homes, by explicitly permitting them in the RIM
zone and implicitly excluding them from all others, the zoning
ordinance’s different treatment and express use of the term
“assisted living facility,” constitutes facial discrimination in
violation of the FHAA.
“We review the grant or denial of
a preliminary injunction for ‘an abuse of discretion, an error of
19
Id. at *5 & n.9. The District Court did not reach the
disparate impact and reasonable accommodation issues.
20
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1), because this appeal stems from the grant of a
preliminary injunction.
10
law, or a clear mistake in the consideration of proof.’”21
Because we conclude that the zoning ordinance does not
21
Greater Philadelphia Chamber of Commerce v. City
of Phila., 949 F.3d 116, 133–34 (3d Cir. 2020) (quoting Doe
by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518,
526 (3d Cir. 2018)). “We review de novo the lower court’s
conclusions of law but review its findings of fact for clear
error.” Id. at 134. “A preliminary injunction ‘is an
extraordinary remedy, which should be granted only in limited
circumstances.’” Id. at 133 (quoting Instant Air Freight Co. v.
C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). To
obtain a preliminary injunction, the moving party must show:
(1) a reasonable probability of eventual success
in the litigation, and (2) that it will be irreparably
injured . . . if relief is not granted . . . . [In
addition,] the district court, in considering
whether to grant a preliminary injunction, should
take into account, when they are relevant, (3) the
possibility of harm to other interested persons
from the grant or denial of the injunction, and (4)
the public interest.
Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir.
2017), as amended (June 26, 2017) (quoting Del. River Port
Auth. v. Transamerican Trailer Transport, Inc., 501 F.2d 917,
919–20 (3d Cir. 1974)) (alterations in original). “Generally,
the moving party must establish the first two factors and only
if these ‘gateway factors’ are established does the district court
consider the remaining two factors.” Greater Philadelphia
Chamber of Commerce, 949 F.3d at 133 (quoting Reilly, 858
11
facially discriminate, Palisade is unlikely to succeed on the
merits. The District Court accordingly erred in granting the
preliminary injunction.
A.
1.
“The Fair Housing Act (‘FHA’), passed by Congress as
Title VIII of the Civil Rights Act of 1968, prohibits housing
discrimination on the basis of, inter alia, race, gender, and
national origin”—and, following the adoption of the FHAA in
1988, individuals with disabilities.22 FHAA claims may “be
brought against municipalities and land use authorities.”23
Pursuant to the FHAA, 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—
F.3d at 179). “The court then determines ‘in its sound
discretion if all four factors, taken together, balance in favor of
granting the requested preliminary relief.’” Id. (quoting Reilly,
858 F.3d at 179).
22
Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d
170, 176 (3d Cir. 2005) (citing 42 U.S.C. § 3601 et seq.).
23
Id. (citing Lapid-Laurel, L.L.C. v. Zoning Bd. of
Adjustment, 284 F.3d 442 (3d Cir. 2002)).
12
(A) 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.24
Under the FHAA, “handicap” means “a physical or
mental impairment which substantially limits one or more of
[a] person’s major life activities.”25
“Plaintiffs alleging violations of the FHAA under these
sections may bring three general types of claims: (1)
intentional discrimination claims (also called disparate
treatment claims) and (2) disparate impact claims, both of
which arise under § 3604(f)(2), and (3) claims that a defendant
refused to make ‘reasonable accommodations,’ which arise
under § 3604(f)(3)(B).”26
Here, we consider the first of these theories, the only
one reached by the District Court. “Generally, to prevail on a
disparate treatment claim, a plaintiff must demonstrate that
some discriminatory purpose was a ‘motivating factor’ behind
24
42 U.S.C. § 3604(f)(2).
25
42 U.S.C. § 3602(h)(1).
26
Wind Gap, 421 F.3d at 176 (citing Lapid-Laurel, 284
F.3d at 448 n.3).
13
the challenged action.”27 “To evaluate these claims under the
FHAA, courts have typically adopted the analytical framework
of their analogues in employment law, including their
coordinate burden-shifting analyses once plaintiff has made a
prima facie showing of discrimination under a specific
claim.”28 “The discriminatory purpose need not be malicious
or invidious, nor need it figure [sic] ‘solely, primarily, or even
predominantly’ into the motivation behind the challenged
action.”29
2.
Absent any formal request by Palisade for a variance,
Palisade’s likelihood of success on the merits turns on whether
the City’s zoning ordinance discriminates on its face.
Accordingly, “we must examine the language of the challenged
regulation or policy, aided, if applicable, by any evidence of
record that informs the analysis.”30
“[W]here a plaintiff demonstrates that the challenged
action involves disparate treatment through
27
Id. at 177 (citing Cmty. Hous. Trust v. Dep’t of
Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 225
(D.D.C. 2003) (“It is well settled that a defendant’s decision or
action constitutes disparate treatment, or intentional
discrimination, when a person’s disability was a ‘motivating
factor’ behind the challenged action or decision.”)).
28
Id. at 176.
29
Id. at 177 (quoting Cmty. Hous. Trust, 257 F. Supp.
2d at 225).
30
Id. at 179.
14
explicit facial discrimination, or a facially discriminatory
classification, a plaintiff need not prove the malice or
discriminatory animus of a defendant,” because “the focus is
on the explicit terms of the discrimination.”31 “Put another
way, direct evidence of intent is ‘supplied by the policy
itself.’”32
“[T]he most fundamental element of [a facially
discriminatory classification] claim is that plaintiff must
demonstrate that defendant’s alleged discrimination was
‘because of a handicap.’”33 The operative question becomes
“whether ‘handicapped’ or ‘disabled’ status—the protected
trait under the FHAA—was being used as the basis for
different treatment.”34 “Where a regulation or policy facially
discriminates on the basis of the protected trait, in certain
circumstances it ‘may constitute per se or explicit . . .
discrimination because ‘the protected trait by definition plays a
role in the decision-making process, inasmuch as the policy
explicitly classifies people on that basis.’”35 Generally
31
Id. at 177 (internal quotation marks and citations
removed).
32
Hassan v. City of New York, 804 F.3d 277, 295 (3d
Cir. 2015), as amended (Feb. 2, 2016) (quoting Massarsky v.
Gen. Motors Corp., 706 F.2d 111, 128 (3d Cir. 1983) (Sloviter,
J., dissenting)).
33
Wind Gap, 421 F.3d at 178 (quoting 42 U.S.C. §
3604(f)(2)).
34
Id.
35
Id. at 177 (quoting DiBiase v. SmithKline Beecham
Corp., 48 F.3d 719, 726 (3d Cir. 1995)) (internal quotation
marks omitted) (emphasis added) (alteration in original).
15
applicable regulations, even those that expressly include
protected classes or their proxies, in contrast, do not
discriminate on their face, unless the “different treatment . . .
was necessarily ‘disability based.’”36
B.
Applying these principles, the City’s zoning ordinance
does not discriminate on its face, for two independent reasons.
First, assisted living facilities are not identified on the
ordinance’s face in the relevant R-AAA section, the proper
scope of our inquiry. Second, even if considered, the RIM
zone’s allowance of assisted living facilities as of right does
not render the ordinance facially discriminatory. Pursuant to
the analysis that follows, whether taking language of the R-
AAA or RIM zones alone, or the terms combined, the zoning
ordinance does not facially discriminate.
1.
Palisade, recognizing the absence of textual references
to assisted living facilities in the R-AAA zone, urges that we
broaden our focus and conclude that the zoning ordinance is
facially discriminatory, because the zoning ordinance
explicitly names assisted living facilities elsewhere and does
not permit them by right in the R-AAA zone. We reject this
approach and direct our inquiry to the “language of the
challenged regulation or policy,”37 which is the R-AAA zone,
and not the RIM zone.
36
Id. at 179.
37
Wind Gap, 421 F.3d at 179.
16
While we acknowledge the proposition that ordinances
“be read in their entirety,”38 and that we can certainly look to
other sections of the zoning ordinance or “any evidence of
record that informs the analysis,” we cannot import an explicit
classification where none otherwise exists.39 This follows
directly from our teaching that “the focus is on the explicit
terms of the discrimination,” that is, the different treatment on
account of the policy’s “explicit[] classifi[cation] on th[e]
basis” of a protected trait.40 We also read from Wind Gap a
focus on “the relevant regulation[s]” as the source of the
different treatment.41
We accordingly focus on the language of the R-AAA
zone that actually prohibits Palisade’s proposed development.
In the absence of any language referring to individuals with
disabilities, the language of the R-AAA does not facially
discriminate in violation of the FHAA.42
38
Appellee Br. at 18 (quoting In re Petition for
Referendum on City of Trenton Ordinance 09- 02, 990 A.2d
1109, 1115 (N.J. 2010) (per curiam)); see also Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000).
39
Wind Gap, 421 F.3d at 179.
40
Id. at 177-78 (internal quotation marks and citations
omitted).
41
Id. at 184.
42
We also observe that the list of included uses does not
suggest the specific and deliberate omission of assisted living
facilities.
17
2.
But even if we consider the language of the RIM zone,
and accept, despite our reservations, Palisade’s equating
assisted living facilities with persons with disabilities, we are
unable to discern discrimination on the face of the ordinance
under our jurisprudence.43
i.44
The District Court reasoned that the explicit inclusion
of assisted living facilities only in the RIM zone necessarily
43
Wind Gap, 421 F.3d at 179.
44
The parties appear to agree that the term “assisted
living facility” is an explicit reference to the disabled, rather
than a neutral term. See, e.g., Appellant Reply Br. at 18. We
are not entirely persuaded that “assisted living facility”
necessarily means a facility for a person with “(1) a physical or
mental impairment which substantially limits one or more of
[that] person’s major life activities, (2) [and] a record of having
such an impairment, or (3) [who is] . . . regarded as having such
an impairment[,]” Wind Gap, 421 F.3d at 179 (quoting 42
U.S.C. § 3602(h)), and, thus, “coincide[s]” with the FHAA’s
definition of “handicap.” Id. However, we will follow the
parties’ lead and assume their understanding of the term
“assisted living facility” is correct. As a result, we need not
consider whether, even if not an explicit reference to the
disabled, “assisted living facility” is a “proxy” for that
group. See id. at 177-78.
18
excluded them from the City’s single-family district.45 We are
not so sure. While we will readily allow that the explicit
inclusion of “assisted living facilities” as a permitted use in the
RIM zone supports the inference that “assisted living facilities”
are not a permitted use in the R-AAA zone, it does not in itself
restrict land use in the R-AAA zone. Failure to permit a land
use as of right is not tantamount to an express prohibition, and
indeed the terms of the RIM zone on their face do not purport
to allow, restrict, or otherwise regulate “assisted living
facilities” in any other zone, including the R-AAA zone.46
Thus, only the beneficial, preferential treatment of assisted
living facilities finds itself in the explicit terms of the
ordinance, while under Palisade’s theory, the negative,
45
Palisade, 2019 WL 5078865, at *9 (the City
intentionally “creat[ed] the RIM district as the exclusive zone
where the handicapped elderly could receive assistance in a
congregate setting.”) (internal quotation marks and citation
omitted); see Grancagnola v. Planning Bd. of Twp. of Borough
of Verona, 533 A.2d 982, 985 (N.J. App. Div. 1987)
(construing “commercial uses” to exclude “retail stores”
because code “treat[ed] retail stores as a separate category of
use” with “separate, specific authorization . . . in several
zones.”); 1 Rathkopf’s The Law of Zoning and Planning § 5:18
(4th ed. 2020) (“[T]he legislative intent to exclude a use in one
district is emphasized by the inclusion of the use as a
specifically permitted use under another classification.”).
46
Cf. Montana Fair Hous., Inc. v. City of Bozeman, 854
F. Supp. 2d 832, 837 (D. Mont. 2012) (“Assisted
Living/Elderly Care Facilities” denoted as a use “not
permitted” in relevant zone by a “—”).
19
restrictive treatment must be inferred, however logically.47
Accordingly, the language of the RIM zone, though it
explicitly includes the term “assisted living facilities,” is not
sufficient to find facial discrimination.
The immateriality of the RIM zone to the challenged
regulation at issue is best illustrated by a counterfactual. If we
were to conclude that the interaction of language in the RIM
and R-AAA zones did improperly discriminate against
individuals with disabilities, we would be left with the
possibility that the removal of preferential treatment for
assisted living facilities in another zone would validate or
otherwise cure the zoning ordinance’s facial discrimination.
At best, the RIM zone can only contextualize the terms of the
R-AAA zone.
Our prior mandate to focus “on the explicit terms of the
discrimination” further underscores how Palisade’s focus on
the RIM zone misses the point.48 Most relevant to our inquiry,
47
This conclusion is consistent with the teaching of the
Supreme Court in a parallel context, which has instructed that
“[t]he force of any negative implication . . . depends on
context” and “applies only when circumstances support[] a
sensible inference.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929,
940 (2017) (internal quotation marks and citation omitted)
(emphasis added) (alteration in original). From this, we
discern two key principles. First, context matters. Second, the
application of this rule is merely an implication, and not
explicit discrimination on the face of the policy.
48
Wind Gap, 431 F.3d at 177 (internal quotation marks
and citation omitted).
20
the terms of the R-AAA zone itself and its permitted land uses
are plainly inconsistent with “assisted living facilities” of the
type that Palisade seeks to develop, and the City acknowledges
as much. The District Court’s inference of different treatment
of Palisade’s proposed assisted living facility in the R-AAA
zone was thus sensible,49 but it is not in itself sufficient to make
out a facial discrimination claim.
These terms alone are indeed enough to restrict the
development of the proposed assisted living facility. But the
very fact that the terms of the R-AAA zone restrict the types of
development there does not mean that they discriminate on
their face in the absence of any invocation of the protected
class. Different treatment of the proposed development under
the zoning ordinance is necessary but not sufficient. Where we
differ from the District Court, then, is in its conclusion that the
different treatment was “because of” a protected class. Such a
reading is not apparent from the text of the R-AAA zone, which
does not even mention assisted living facilities or persons with
disabilities.
ii.
Nor do the terms of the R-AAA zone together with the
RIM zone create discrimination on the face of the ordinance.
The mere fact that some general terms in the ordinance operate
49
See 1 Rathkopf’s The Law of Zoning and Planning §
5:18 (4th ed. 2020) (“Where [an] ordinance states that no land
or building may be used except for those uses specified, the
listing of permissive uses necessarily implies the exclusion of
others.”).
21
to disallow assisted living facilities and other terms expressly
permit assisted living facilities as of right in another district,
does not transform the ordinance into one that discriminates on
its face. Palisade cannot bootstrap otherwise facially neutral
restrictions into express discrimination. To conclude
otherwise could render a zoning ordinance facially
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 read out the FHAA’s requirement that the restriction
must be “because of” discrimination.
The expressly permitted land uses in the R-AAA zone
nowhere mention disability or assisted living facilities and are
not inconsistent with uses by individuals both with and without
disabilities. Similarly, Palisade’s proposed assisted living
facility is but one of many land uses prohibited in the R-AAA
zone. There is no indication that disabled status, rather than,
for example, the building size or the commercial character of
the development, is the dispositive trait, singled out for
different treatment.
Palisade argues that these restrictions make it all but
impossible for their proposed business to operate in the R-
AAA zone, adversely affecting the individuals with
disabilities. And that may be so. But this argument is not a
claim that the City’s zoning ordinance discriminates on its face
against individuals with disabilities. Rather, it is a claim that
the facially neutral commercial and use restrictions in the R-
AAA zone, by preventing the development of commercial
assisted living facilities, disproportionately limits housing
access for individuals with disabilities. This argument, then,
22
appears to be more in line with a disparate impact claim, which
is not currently before the Court.50
3.
Our conclusion that the City’s ordinance is not facially
discriminatory does not necessarily spell the end of Palisade’s
proposed project.51 As we have noted, “under New Jersey law,
developers of group homes for the handicapped (including the
elderly) may apply for use variances as an ‘inherently
beneficial use’ in any zone.”52
50
Lapid-Laurel, 284 F.3d at 466.
51
We note that the outcome we reach here is consistent
with our holding in Lapid-Laurel. Lapid-Laurel involved a
disparate impact challenge under the FHAA to a township’s
zoning system that, like the City’s, only allowed the
contemplated development (i.e., senior housing) in a single,
non-residential zone as of right. Id. at 467. We held that the
plaintiff’s exclusive reliance on the zoning system’s
designation of a single area for “senior housing” did not make
out a prima facie case of disparate impact (i.e., it did not
establish that the zoning system had a greater adverse impact
on the elderly handicapped than on other
constituencies). Id. Because no facial challenge was raised to
the zoning ordinance at issue in Lapid-Laurel, it is readily
distinguishable from this case and is not
controlling. Nevertheless, because the plaintiff in Lapid-
Laurel appears to have relied solely on the language of the
zoning system at issue, our holding in that case may highlight
the facial neutrality of the City’s ordinance at issue here.
52
Id. at 467.
23
Accordingly, Palisade has not shown a likelihood of
success on the merits, and the District Court erred in granting
the preliminary injunction.53
III.
Because we conclude that the City’s ordinance does not
discriminate against individuals with disabilities on its face, we
will vacate the District Court’s order granting the preliminary
injunction and remand for further proceedings.
53
Having determined that the ordinance does not
facially discriminate, we need not address the remaining
equitable factors for injunctive relief. Fulton v. City of Phila.,
922 F.3d 140, 165 (3d Cir. 2019), cert. granted 140 S. Ct. 1104
(2020).
24