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Hovsons, Inc. v. Township of Brick

July 18, 1996




On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 94-cv-04265)


COWEN, Circuit Judge.

Hovsons, Inc., Appellant No. 95-5648

Township of Brick, Appellant No. 95-5666

Argued June 3, 1996

(Filed July 18, l996)


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. Section(s) 3601 et seq., that all municipalities provide "reasonable accommodations" to handicapped persons. Id. Section(s) 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.



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. *fn1 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. See N.J. Stat. Ann. Section(s) 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 ...

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