{"id":3677,"date":"2019-10-11T17:37:54","date_gmt":"2019-10-11T17:37:54","guid":{"rendered":"https:\/\/www.teanecktoday.com\/blog\/?p=3677"},"modified":"2019-10-11T19:25:34","modified_gmt":"2019-10-11T19:25:34","slug":"interesting-land-use-decision-in-englewood","status":"publish","type":"post","link":"https:\/\/www.teanecktoday.com\/blog\/development\/interesting-land-use-decision-in-englewood\/","title":{"rendered":"Interesting Land Use Decision in Englewood"},"content":{"rendered":"

In 431 E Palisade Avenue Real Estate, LLC, et al. v. City of Englewood<\/a>, a Federal Judge just ruled<\/a> that the city of Englewood is not permitted to enforce its zoning rules, because plaintiffs are likely to succeed on the merits at trial of showing that the City’s Zoning Ordinances violate the Fair Housing act, thereby rendering them unconstitutional.\u00a0 The current zoning rules\u00a0 do not permit assisted living and memory-care facilities in the regular residential zones (R-AAA), which plaintiffs claim is discriminatory.<\/p>\n

Plaintiffs are two limited liability companies, seeking to develop the property they bought in a residential zone.\u00a0 The question before the Court was whether the City\u2019s Zoning Ordinances are facially discriminatory against the elderly and handicapped, as Plaintiffs alleged.<\/p>\n

In the 8 districts Englewood defines as one-family residence districts (see Englewood Code \u00a7 250-59(A))<\/a>,\u00a0the ordinances state that \u201cno land or building shall be used, nor shall any building be constructed, altered or designed to be used, for any purposes other than…” and goes on to list eight specific uses including one-family homes, municipal uses, public schools, houses of worship, etc… — but not assisted living and memory-care facilities2<\/sup>.<\/p>\n

The City insisted that the case wasn’t ripe for adjudication because plaintiffs didn’t seek variances before the Board of Adjustment or even put in an application for site plan approval (they did request the city update the zoning, but the city never formally acted on the request).<\/p>\n

The City also claimed that they aren’t discriminating because they don’t prohibit the uses, in fact they aren’t mentioned at all in the R-AAA zone.\u00a0 The Court did not agree.<\/p>\n

The Court is persuaded that the failure of the Code to employ such negative words as assisted-living centers are \u201cprohibited,\u201d or \u201cbanned,\u201d or \u201cforbidden\u201d 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.<\/p>\n

Moreover, the Court is persuaded that, as Plaintiffs argue, \u201ccreation of the RIM district as the exclusive zone where the handicapped elderly could receive assistance in a congregant setting was intentional.\u201d (See ECF No. 2-16 at 7 (citing ECF No. 2-1 \u00b6 2, Ex. K, at 80:16-81:5).) Indeed, the Zoning Ordinances permit nonhandicapped elderly in multiresidence dwellings in the RMH district,16 but the handicapped elderly requiring congregant care are not similarly treated. Rather, the handicapped elderly are limited to the RIM district if they require congregant care.<\/p><\/blockquote>\n

Since the residential zone where the property resides doesn’t allow “assisted-living and memory-care facilities”, plaintiffs claimed it was facially discriminatory under the Fair Housing Act (among other reasons1<\/sup>) and therefore no request for a variance was necessary.<\/p>\n

The decision hinges on<\/p>\n

“the federal Fair Housing Act, which \u201cprohibit[s] 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.\u201d”<\/p><\/blockquote>\n

Even though the purpose and intent of the Master Plan putting these types of facilities in a particular zone may have been lauded at the time3<\/sup>, it nevertheless deprived those handicapped individuals from living in a residential zone of their choosing, today without seeking a variance for the use.<\/p>\n

Therefore the court found that the Englewood ordinance “does have \u201cthe effect of limiting the ability of [handicapped and elderly individuals requiring congregant care] to live in the residence of their choice in the community.\u201d”<\/p>\n

This was the relevant part of the oral argument<\/p>\n

THE COURT: Would you agree that handicapped individuals do not have the same opportunity to live in a congregate care facility in any district in Englewood but the RIM district? Save your argument for\u2014other than getting a use variance, you would agree to that.
\nDEFENDANTS\/VIVIAN LEKKAS: Other than getting a use variance?
\nTHE COURT: Yes.
\nMS. LEKKAS: Well, no, I wouldn\u2019t agree to that because it\u2019s very important that they can get a use variance.
\nTHE COURT: I\u2019m just saying, the only way they can is through a use variance.
\nMS. LEKKAS: Correct. The only way they can is \u2013
\nTHE COURT: The ordinance as written does not permit that.
\nMS. LEKKAS: It does not prohibit it either. There\u2019s no language in the ordinance that prohibits it. That\u2019s essential to this case. It\u2019s germane.
\nTHE COURT: So a handicapped person can live in a single-family home in any district in Englewood.
\nMS. LEKKAS: Right.
\nTHE COURT: But once it starts to get to a deemed congregate care facility, they would need a use variance to obtain residential housing.
\nMS. LEKKAS: And so would a nondisabled person, which is also germane. They\u2019re treated equally.
\nTHE COURT: Well, is a nondisabled person defined under the Fair Housing Act?
\nMS. LEKKAS: No. There are protections given under the Fair Housing Act to handicapped people, but you need to establish differential treatment. And on a facial challenge, you have the burden of showing the words in the ordinance on a facial challenge claim. So I challenge plaintiffs, look up the ordinance. Tell us the words that say \u201cprohibit,\u201d \u201cforbid.\u201d They\u2019re not there, but they are there in the cases cited. There\u2019s the New Directions case, which restricted methadone clinics. Uses the word \u201crestrict,\u201d \u201cforbid.\u201d The Bay Area case again, and the one cited by plaintiffs, the Montana case, a graph literally X-ing out with a dash that those\u2014the assisted living facility is restricted, and that\u2019s the key difference with those cases.
\n(ECF No. 32 at 62:4-63:19.)<\/p><\/blockquote>\n

As per the Judge, “the creation of a health-care village may constitute a reasonable goal for the City, but that zoning aspiration does not justify \u201climiting the ability\u201d of handicapped and elderly individuals requiring congregant care \u201cto live in the residence of their choice in the community.\u201d”<\/p>\n

So what happens to Care One now?\u00a0 At oral argument, that’s one of the points that both sides agreed on — it would go to the planning board if an injunction issued:<\/p>\n

PLAINTIFFS\/WARREN A. USATINE: . . . What we\u2019re not here to do is what the citizens say we\u2019re doing, which is turning Your Honor into some kind of a super Planning Board. We are not seeking that. We\u2019re seeking to have our use deemed allowed. We\u2019re seeking to have Your Honor order that the facility we contemplate consistently with the certificate of need allowed. We\u2019re not seeking Your Honor to say \u201cand just go build whatever you want.\u201d We fully expect to\u2014and are ready to\u2014go to the Planning Board.
\n. . .
\nTHE COURT: What would you say the relief should be if the ordinance is deemed facially unconstitutional?
\nDEFENDANTS\/DANIEL ANTONELLI: If Your Honor deems the ordinance facially unconstitutional?
\nTHE COURT: Yes.
\nMR. ANTONELLI: Then I would take that to mean that the prohibition\u2014that the assisted living facility is prohibited, then the R triple-A zone would not apply.
\nTHE COURT: Okay. And then what does that mean?
\nMR. ANTONELLI: I would think at that point because it\u2019s no longer a use issue, plaintiff would be obligated to proceed before the Planning Board.<\/p><\/blockquote>\n

For anyone interested in these types of land use laws, it’s an easy read, with citations to the record at oral argument form both sides.<\/p>\n\n\n