431 East Palisade Avenue Real Estate LLC v. City of Englewood, No. 19-3621 (3d Cir. 2020)Annotate this Case
Palisade sought to build a 150-bed for-profit assisted living facility, which would provide supportive services to memory care patients 0n a 4.96-acre parcel located partially in the city and partially in the borough. The city opposes its construction because the property is in a “one-family residence” zoning district. Palisade argued that the zoning ordinance discriminated 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 zoning district. The district court granted Palisade a preliminary injunction.
The Third Circuit vacated. The 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, does not facially discriminate against the disabled in violation of the Fair Housing Amendments Act, 42 U.S.C. 3604. Failure to permit a land use as of right is not tantamount to an express prohibition. There is no indication that disabled status, rather than the building size or the commercial character of the development, is the dispositive trait, singled out for different treatment. The court noted that Palisade did not seek a variance.