602, and "there is [a] question about how the regulations at
issue [would apply] to the particular land in question."
Assisted Living Associates, 996 F. Supp. at 426 (internal
citations omitted). Accordingly, plaintiffs' reasonable
accommodation claim will be dismissed as unripe.
B. Plaintiffs' Facial Claim Under the FHA.
Although Marriott's reasonable accommodation claim under the
FHA is not ripe for judicial review because the Township has not
rendered a final decision on Marriott's request, Marriott
contends that its claim that the Township's zoning code is
facially discriminatory under the FHA is ripe because facial
challenges, by definition, present concrete and mature legal
controversies that do not require prior administrative action or
decision. See Suitum v. Tahoe Regional Planning Agency,
520 U.S. 725, 117 S.Ct. 1659, 1667 n. 10, 137 L.Ed.2d 980 (1997)
(noting that facial challenges to regulations are generally ripe
the moment the challenged regulation or ordinance is passed in
It is unlawful under the FHA to discriminate against a person
based on handicap with respect to housing. See
42 U.S.C. § 3604(f)(2). "An ordinance that uses a discriminatory
classifications [sic] is unlawful in all but rare circumstances.
A violation of the FHA can be established by demonstrating that
the challenged statute . . . discriminates against the handicap
on its face and serves no legitimate government interest."
Horizon House Developmental Services, Inc. v. Township of Upper
Southampton, 804 F. Supp. 683, 693 (E.D.Pa. 1992), aff'd,
995 F.2d 217 (3d Cir. 1993).
In determining whether an ordinance is invalid on its face, the
motive of the drafters of the ordinance is irrelevant. Rather,
the "court must focus on the explicit terms of the ordinance."
Id. at 694 (citing International Union, United Auto., etc. v.
Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 1204, 113
L.Ed.2d 158 (1991)). Thus, to establish that an ordinance is
facially invalid, a plaintiff must show that the accused
ordinance treats someone protected by the FHA in a different
manner than others are treated. See Bangerter v. Orem City
Corp., 46 F.3d 1491, 1501 (10th Cir. 1995). Marriot has failed
to make such a showing.
The cases cited by Marriott support this conclusion. In all of
Marriot's cases, each challenged ordinance specifically addressed
the treatment of handicapped or disabled persons. For example, in
Bangerter v. Orem City Corp., the statute expressly outlined
special conditions that localities could impose on the granting
of zoning permits for group homes for the handicapped.
Bangerter, 46 F.3d at 1494. Likewise, in Horizon House, the
language of the offending ordinance clearly referred to people
with handicaps. Horizon House, 804 F. Supp. at 694 (concluded
that use of the words "permanent care" or "professional
supervision" in an ordinance expressly singled out for different
treatment those who were unable to live on their own, or who in
the terms of the FHA, were handicapped). In addition, in Larkin
v. State of Michigan Dept. of Social Serv., 89 F.3d 285 (6th
Cir. 1996), the Sixth Circuit Court of Appeals concluded that
portions of a state licensing act which specifically singled out
for regulation group homes for the handicapped were facially
discriminatory. Larkin, 89 F.3d at 289.
In contrast, in this case, Marriott has not identified any
specific provision of the zoning code or land use ordinance it
challenges whereby elderly persons with disabilities are
expressly treated differently than others.*fn20 Because Marriott
has failed to satisfy the essential element of the claim, the
entry of summary judgment is
appropriate in favor of the Township on the claim that the
Township's zoning code facially discriminates against elderly
people with disabilities.*fn21
C. Plaintiffs' Disparate Impact Claims Under the FHA and ADA.
A violation of the FHA and ADA may also be established by
demonstrating a "disparate impact" which requires the plaintiff
to prove absent a discriminatory intent on the part of the
defendant, the effects of defendant's action were nonetheless
discriminatory. See Horizon House, 804 F. Supp. at 693(FHA);
see also Horth v. General Dynamics Land Sys., Inc., 960 F. Supp. 873,
882 n. 10 (M.D.Pa. 1997) (ADA). Under the disparate impact
theory, the court's analysis in both FHA and ADA cases is similar
to that performed in a Title VII case. Oxford House, Inc. v.
Township of Cherry Hill, 799 F. Supp. 450, 461 (D.N.J. 1992)
(citing Huntington Branch, NAACP v. Town of Huntington,
844 F.2d 926, 934 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102
L.Ed.2d 180 (1988)); Resident Advisory Bd. v. Rizzo,
564 F.2d 126, 148 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct.
1457, 55 L.Ed.2d 499 (1978). "Thus, plaintiffs can establish a
prima facie case by showing that the Township's action had a
greater adverse impact on a protected group than on others,
regardless of intent." Township of Cherry Hill, 799 F. Supp. at
461 (citing Huntington, 844 F.2d at 935).
Summary judgment is inappropriate at this time with regard to
plaintiffs' disparate impact claims as there remain numerous
issues of material fact as to how the Township's zoning scheme,
in fact, impacts disabled or elderly persons. See Fed. R.Civ.P.
56(c). More importantly, many of these disputed issues may be
resolved, dissipate, or reappear in sharp relief once Marriott
submits a formal application to the Township and the Township is
given the opportunity to apply its zoning code and issue a final
Marriott has not afforded the Township the opportunity to
meaningfully review a formal proposal, to solicit comments from
the public and others, or to issue a written decision. For these
reasons, the Township had not issued a final decision on
Marriott's reasonable accommodation claim. Nor has Marriott shown
that pursuing such a decision would be futile. As a result, the
court concludes that Marriott's reasonable accommodation claim is
not ripe for judicial consideration and will therefore dismiss
that claim. In addition, the court will grant the Township's
motion for summary judgment on Marriott's facial discrimination
claim under the FHA as Marriott has failed to show that the
Township's zoning scheme expressly singles out elderly or
disabled individuals for different
treatment. Lastly, because genuine issues of material fact remain
as to Marriott's disparate impact claims under the FHA and ADA,
the court will deny both Marriott's and the Township's motions
for summary judgment on these claims.
An appropriate order follows.
AND NOW, this 7th day of December, 1999, upon
consideration of plaintiffs' motion for partial summary judgment
(doc. no. 51), defendant's response thereto (doc. no. 59),
defendant's motion for summary judgment (doc. no. 52) and
plaintiffs' response thereto (doc. no. 57), it is hereby
ORDERED that the motions are GRANTED IN PART and DENIED IN
PART as follows:
1. Plaintiffs' reasonable accommodation claim is DISMISSED as
not ripe for judicial review;
2. Summary judgment is GRANTED in favor of defendant on
plaintiffs' facial discrimination claim;
3. Summary judgment is DENIED on plaintiffs' disparate impact
4. Plaintiffs' disparate impact claims under the FHA and ADA,
as well as the claims under § 504 of the Rehabilitation Act
(Count 2) and the Equal Protection claim (Count 4) are placed in
SUSPENSE for ninety (90) days.
AND IT IS SO ORDERED.