                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2002

Lapid Laurel LLC v. Zoning Bd Adjustment
Precedential or Non-Precedential:

Docket 0-3625




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PRECEDENTIAL

       Filed March 15, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3625

LAPID-LAUREL, L.L.C.;
JOHN AND JANE DOE, Appellants

v.

ZONING BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF SCOTCH PLAINS;
THE TOWNSHIP OF SCOTCH PLAINS;
ALTA A. ROSE; BARBARA HOREV

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 99-cv-02461)
District Judge: Honorable Nicholas H. Politan

Argued: September 7, 2001

Before: BECKER, Chief Judge, ALITO and BARRY,
Circuit Judges.

(Filed: March 15, 2002)

       STEVEN C. ROTHER, ESQUIRE
        (ARGUED)
       A. ALBERT LUGO, ESQUIRE
       411 Hackensack Avenue
       Continental Plaza II
       Hackensack, NJ 07601

       Counsel for Appellants
       STEPHEN EISDORFER, ESQUIRE
        (ARGUED)
       Hill, Wallack
       202 Carnegie Center
       Princeton, NJ 08904

       Co-Counsel for Appellees
       Township of Scotch Plains

       FRANK N. YURASKO, ESQUIRE
       P.O. Box 1041
       139 West End Avenue
       Somerville, NJ 08876

       Co-Counsel for Appellees
       Township of Scotch Plains

       DOUGLAS W. HANSEN, ESQUIRE
       P.O. Box 640
       1824 Front Street
       Scotch Plains, NJ 07076

       Co-Counsel for Appellees
       Township of Scotch Plains

       ANTHONY D. RINALDO, JR.,
        ESQUIRE
       Garrubbo, Romakow & Rinaldo
       53 Cardinal Drive
       Westfield, NJ 07090

       Co-Counsel for Appellees
       Zoning Board of Scotch Plains

OPINION OF THE COURT

BECKER, Chief Judge.

Plaintiff Lapid-Laurel, L.L.C. ("Lapid"), a real estate
development firm that unsuccessfully sought approval from
the Zoning Board of Adjustment of the Township of Scotch
Plains, New Jersey ("the Board") to build a 95-bed care
facility for the elderly, appeals the District Court's grant of
summary judgment in favor of the Board and the Township,
defendants in Lapid's civil case, challenging their actions

                               2
under the Fair Housing Amendments Act of 1988 ("FHAA"),
42 U.S.C. S 3601 et seq. Lapid based its claims in the
District Court primarily on two separate theories under the
FHAA. First, Lapid contended that Scotch Plains's zoning
system had a disparate impact on the elderly handicapped
in violation of 42 U.S.C. S 3604(f). Second, Lapid claimed
that the Board failed to "make reasonable accommodations"
in order to facilitate housing for the elderly handicapped in
violation of 42 U.S.C. S 3604(f)(3)(B).

Lapid's primary contentions on appeal are that: (1)
because the Board failed to engage in the "interactive
process" that we have held is required of employers by the
Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq., and
because the Board erroneously denied Lapid's request to
bifurcate its variance and site plan applications, thereby
depriving it of a full enough record, the District Court erred
by limiting its review to the administrative record on the
reasonable accommodations claim; and (2) it was error for
the District Court to grant summary judgment on both the
reasonable accommodations and discriminatory impact
claims.

We resolve the first claim adversely to Lapid by declining
to extend the "interactive process" requirement that exists
in the employer-employee context of the Rehabilitation Act
to the housing and land use context of the FHAA. We
conclude that the process was never intended to apply in
this context, and would be especially inappropriate to apply
to local land use boards, which already face detailed
procedural requirements under state law. We will also
affirm the District Court's grant of summary judgment on
both the reasonable accommodations and disparate impact
claims. Before doing so, we must determine which party
bears the burden of establishing the various elements of an
FHAA reasonable accommodations challenge to a local land
use board's decision. We resolve this question by adopting
a burden-shifting analysis, in which the plaintiff bears the
initial burden of showing that its requested
accommodations are "necessary to afford [handicapped]
person[s] [an] equal opportunity to use and enjoy a
dwelling," 42 U.S.C. S 3604(f)(3)(B), at which point the
burden shifts to the defendant to show that the requested
accommodations are unreasonable.

                               3
In the present case, we conclude that the plaintiff has
failed to produce sufficient evidence that the
accommodations that it requested were "necessary" to
afford the handicapped an "equal opportunity" to housing,
and that the Board has shown that the requested
accommodations were unreasonable, largely because of the
problems with traffic safety and emergency vehicle access
that the proposed Facility was likely to cause. We therefore
affirm the District Court's grant of summary judgment to
the defendants on the reasonable accommodations claim.
We also affirm the District Court's judgment on the
discriminatory impact claim, because we agree that Lapid
has failed to establish a prima facie case that Scotch
Plains's ordinances have a discriminatory impact on the
elderly handicapped.

I. Facts & Procedural History

On June 9, 1998, Lapid applied to the Zoning Board of
Adjustment of the Township of Scotch Plains, New Jersey
for the variances and site plan approval necessary to build
a long-term care facility for the elderly ("the Facility"). The
proposed Facility included 35 beds in a skilled nursing
section, the license for which Lapid wished to transfer from
its nursing home in nearby Plainfield, New Jersey, and 60
"assisted living" beds, for which Lapid had originally
received a license in Westfield, New Jersey. Lapid proposed
to build the Facility on two contiguous lots, 1290 and 1310
Martine Avenue. At the time it applied to the Board, Lapid
owned one of the lots in question and was under contract
to purchase the other. The lots, which at the time the suit
began held two single-family houses, would together
provide 4.17 acres on which Lapid proposed to build a
58,034 square foot building (with a footprint of 27,640
square feet). Approximately 45% of the lots, or 1.9 acres,
was covered by freshwater wetlands and wetland transition
areas as defined by New Jersey's Freshwater Wetland
Protection Act, N.J.S.A. 13:9B-1 et seq., and was therefore
not available for construction.

The Martine Avenue lots are located in an area that is
zoned R-1 under Scotch Plains's 1976 Master Plan. The R-
1 zone is designated to permit only single-family houses on

                                4
large lots (40,000 square feet or more -- about an acre),
with wide street frontage (a minimum width of 160 feet).
However, several institutional uses exist in the R-1 zone
around the lots where Lapid proposed to develop the
Facility. These include a synagogue, a high school, a YMCA,
and a country club.

In order to get approval to build the Facility, Lapid
needed the Board to grant several variances, which it
applied for on June 9, 1998. Lapid's application requested
three approvals from the Board. First, because the land use
that Lapid proposed (i.e., a residential care facility for the
elderly), did not fit within the uses permitted in an R-1
zone, Lapid asked for a use variance pursuant to N.J.S.A.
40:55D-70(d). Second, Lapid requested three non-use
variances pursuant to N.J.S.A. 40:55D-70(c). These sought
permission to: (1) construct a parking lot in front of the
building; (2) build a fence in excess of four feet in height;
and (3) place a freestanding sign in front of the building. All
of these are prohibited in residential areas and require a
variance. Third, Lapid sought approval for its site plan.

The Board held four public hearings on Lapid's
application -- on February 4, March 4, March 15, and
March 24, 1999. Lapid presented testimony from various
experts at these meetings, including Julius Szalay, an
engineer; Stephen Crystal, a gerontologist; Peter Steck, a
planner; David Horner, a traffic consultant; and Joseph
Martin, a real estate appraiser. The Board received written
reports from the Township's experts, Susan Kimball, a
planner; Paul Ferriero, an engineer; Harold Maltz, a traffic
consultant; Fire Chief Jonathan Ellis; Police Chief Thomas
O'Brien; and Sergeant James Rau, the head of the police
department's traffic safety bureau. Several of these officials
also testified at the Board's public hearings.

Lapid's engineer made multiple amendments to the site
plan in order to address the concerns that the Board and
its experts raised. In particular, these concerns focused on
the layout of the parking lot and its effect on traffic safety
both within the Facility's lot and at the point of ingress and
egress on Martine Avenue, as well as on the access that
emergency vehicles would have to the rear of the building.
In order to address the issues of emergency vehicle access,

                               5
Lapid's planner sought to meet with the Township's fire
chief beginning on March 10, 1999, but was unable to do
so until March 22, two days before the Board's final
meeting at which it considered Lapid's variance and site
plan applications.1 Lapid did not address the fire chief 's
latest concerns in a revised site plan prior to the March 24
meeting, and it requested bifurcation of its applications,
i.e., it sought a decision on its variance application on
March 24, but requested the Board's approval for an
extension on its site plan application. The Board denied
Lapid's request to bifurcate, and denied the entire
application on the record before it at the March 24 meeting.

The Board then issued a written denial of Lapid's
applications. The Board cited the following concerns as its
reasons for denying the variances and site plan: (1) a
negative impact on the municipal zoning plan (i.e., siting a
commercial use in the R-1 zone); (2) traffic safety concerns,
including increased traffic on Martine Avenue and hazards
resulting from ingress and egress from the Facility's lot; (3)
a substantial portion of the site contained wetlands; and (4)
insufficient access for emergency and fire vehicles.

Lapid then filed a complaint in the District Court against
the Board, the Township of Scotch Plains (together,"the
municipal defendants"), Alta Rose, the person from whom
Lapid had contracted to purchase the property at 1310
Martine Avenue, and her daughter Barbara Horev, who held
a durable power of attorney for Rose's benefit. 2 The
_________________________________________________________________

1. When Lapid's representatives finally met with Fire Chief Ellis, he was
unable to give them specific details regarding the turning radius required
by the department's largest trucks, in particular, the "tower ladder"
truck. Ellis had previously raised the concern that the emergency vehicle
access lane that Lapid proposed could not accommodate the tower
ladder truck.

2. On March 31, 1999, Rose, through her daughter, Horev, terminated
her contract with Lapid. On April 29, 1999, Rose filed suit in New Jersey
Superior Court, Chancery Division, seeking a declaratory judgment that
the termination was valid. The Superior Court ruled in her favor. Lapid
appealed this decision, but withdrew its appeal on June 15, 2000, at
which point the New Jersey Appellate Division entered an order
dismissing the appeal. The District Court in this case dismissed Lapid's

                               6
complaint alleged that: (1) the Board's denial of Lapid's
application for variances and site plan approval violated the
FHAA's requirement that municipalities "make reasonable
accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford
[handicapped] person[s] [an] equal opportunity to use and
enjoy" housing, 42 U.S.C. S 3604(f)(3)(B); (2) the Township's
zoning ordinances violated the FHAA, S 3604(f), by having
an adverse disparate impact on the elderly handicapped; (3)
the denial violated the New Jersey Constitution and New
Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-
1 et seq.; (4) the denial violated the Equal Protection and
Due Process clauses of the Fourteenth Amendment to the
U.S. Constitution, and article I, section I of the New Jersey
Constitution; and (5) Rose and Horev violated their
contractual obligations.3

Following discovery, the municipal defendants moved for
summary judgment, which the District Court granted as to
all counts. Lapid raises three questions on appeal: (1)
whether the District Court erred by limiting its review of the
reasonable accommodations claim to the materials that
were before the Board (i.e., whether the District Court
_________________________________________________________________

claims against Rose and Horev as a result of the state court decision,
and Lapid does not appeal the dismissal. Rose subsequently sold her
property to the adjacent YMCA, and therefore Lapid seeks only punitive
and compensatory damages, and declaratory judgment that its rights
were violated (not an order directing the Board to approve its specific
site
plan), because it cannot develop the Facility without the land that Rose
sold to the YMCA.

3. Plaintiffs may bring three different types of claims against municipal
land use authorities under the FHAA: (1) intentional discrimination
claims (also called disparate treatment claims); (2) disparate impact
claims; and (3) claims that the municipal authority failed to "make
reasonable accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford[handicapped]
person[s] [an] equal opportunity to use and enjoy a dwelling." 42 U.S.C.
S 3604(f)(3)(B); see also Gamble v. City of Escondido, 104 F.3d 300, 304-
07 (9th Cir. 1997) (describing the three different causes of action
available to plaintiffs under the FHAA). In this case, Lapid brings only
disparate impact and "failure to make reasonable accommodations"
claims.

                               7
should have allowed Lapid to supplement the
administrative record); (2) whether summary judgment was
proper on the claim that the Board violated the FHAA by
failing to make reasonable accommodations under 42
U.S.C. S 3604(f)(3)(B); and (3) whether summary judgment
was proper on the issue of whether the zoning ordinances
of Scotch Plains have a disparate impact on the elderly
handicapped in violation of 42 U.S.C. S 3604(f). The District
Court had jurisdiction based on 28 U.S.C. S 1331 and 42
U.S.C. S 3613(a); it exercised supplemental jurisdiction over
the state law claims. This court has jurisdiction pursuant
to 28 U.S.C. S 1291. We review de novo the District Court's
grant of summary judgment, see Woodside v. School Dist. of
Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), under
the familiar standard set forth in the margin.4

II. Failure to Make Reasonable Accommodations
       Under 42 U.S.C. S 3604(f)(3)(B) --
       Extent of the Record on Review, and
       Burdens of Proof

Lapid relies on 42 U.S.C. S 3604(f)(3)(B) for its claim that
the Board failed to make reasonable accommodations as
required under that section when it denied Lapid's request
for variances and site plan approval. The FHAA, 42 U.S.C.
S 3604(f), requires local land use boards to make
"reasonable accommodations in rules, policies[and]
practices" when reviewing proposals for housing for the
handicapped. It provides in pertinent part that:

        [I]t shall be unlawful --

       (f)

       (1) To discriminate in the sale or rental, or to
_________________________________________________________________

4. Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-
moving party, the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317
(1986). The judge's function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

                               8
       otherwise make unavailable or deny, a dwelling to any
       buyer or renter because of a handicap of --

        (A) that buyer or renter,

        (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 buyer or renter.

        . . . .

       (3) For purposes of this subsection, discrimination
       includes --

        . . . .

       (B) a refusal to make reasonable accommodations in
       rules, policies, practices, or services, when such
       accommodations may be necessary to afford such
       person equal opportunity to use and enjoy a dwelling
       . . . .

42 U.S.C. S 3604.

Lapid contends that by denying its variance and site plan
applications, the Board refused to make reasonable
accommodations to facilitate the construction of housing
for the elderly handicapped, thereby violating the FHAA.
Before addressing the question whether summary judgment
was proper on the reasonable accommodations claim, we
must first address the proper scope of the record on review
when hearing a reasonable accommodations challenge to a
local land use decision brought under the FHAA, and the
burdens of proof applicable to such a challenge.

A. Was it Error for the District Court to
       Limit its Review to the Materials That Were
       Before the Board?

Lapid submits that the District Court erred by limiting its
review to the materials that were in the administrative
record before the Board. Lapid asked the District Court for
permission to supplement the administrative record for the
purpose of litigating its reasonable accommodations claim,
but the Court refused, holding that it "must review the

                               9
Zoning Board's decision based solely on the record below."
Lapid's argument that it was error for the District Court to
limit its review to the materials that were before the Board
is grounded on its contentions that the Board and its
experts failed to engage in an "informal interactive process"
with Lapid and its engineer, and that it committed
procedural error by refusing to allow Lapid to bifurcate its
variance and site plan applications. Lapid contends that
when a local land use board fails to engage in such a
process, a court reviewing an FHAA challenge to the local
board's decision should allow the plaintiff to supplement
the administrative record.

Lapid points to two sources for the "interactive process"
requirement that it suggests exists. First, Lapid argues that
because the reasonable accommodations provision in the
FHAA is modeled on the Rehabilitation Act of 1973, 29
U.S.C. S 701 et seq., a duty of the Board to communicate
and cooperate in good faith should be imported from this
court's Rehabilitation Act jurisprudence and grafted onto
our FHAA jurisprudence. Second, Lapid argues that"New
Jersey law . . . requires a similar interactive process." In
view of these contentions, we must address the questions:
(1) whether the District Court reached the correct legal
conclusion that courts reviewing FHAA reasonable
accommodations challenges to zoning board decisions
should ordinarily limit their review to the record before the
zoning board; and (2) whether there is an additional
"interactive process" requirement, which the Board in this
case failed to meet, that would require a reviewing court to
look outside the administrative record.

1. Should a Court Reviewing an FHAA Reasonable
Accommodations Challenge to an Adverse Decision
from a Local Land Use Board Limit Its Review
to the Administrative Record?

Although we have not previously addressed the issue of
the proper scope of review for a federal court reviewing an
FHAA reasonable accommodations challenge to a decision
of a local land use board, we are convinced that federal
courts should limit their review to the materials that were
presented to the local land use board, except in

                               10
circumstances where the board prevents applicants from
presenting sufficient information.

To support its conclusion that a reviewing court should
not look outside the record when reviewing an FHAA
reasonable accommodations challenge to a local land use
decision, the District Court cited Keys Youth Services, Inc.
v. City of Olathe, 75 F. Supp. 2d 1235 (D. Kan. 1999),
which was later affirmed in relevant part by the Tenth
Circuit, 248 F.3d 1267 (10th Cir. 2001). In Keys Youth
Services, a nonprofit organization (Keys) sought a variance
that it needed to establish a group home in a single-family
home in Olathe, Kansas for ten youths who had been
abused, neglected, or abandoned. After the local land use
board twice denied Keys's application for a variance, Keys
sued in federal court, alleging that the board had violated
the FHAA's reasonable accommodations requirement when
it refused to grant the variance. The district court granted
judgment as a matter of law to the City of Olathe on the
reasonable accommodations claim because it found that
Keys had failed to present evidence to the local zoning
board that the requested accommodation was necessary.
While the court concluded that Keys might have been able
to show that a minimum of 10 residents was required for
its group home's financial viability, it found that Keys had
failed to present any evidence of this necessity to the local
zoning board.

The Tenth Circuit affirmed the district court's judgment
on the reasonable accommodations claim based "on the
principle that Olathe cannot be liable for refusing to grant
a reasonable and necessary accommodation if the City
never knew the accommodation was in fact necessary."
Keys Youth Services, 248 F.3d at 1275. The court held that
plaintiffs should be required to present all of the evidence
they have that would justify why an accommodation is
necessary under the FHAA to the local land use board, and
that a reviewing court should not look outside the
administrative record.

The Fourth Circuit adopted the same position in Bryant
Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir.
1997), an FHAA reasonable accommodations challenge
brought by a non-profit group home for adults suffering

                               11
from Alzheimer's Disease that was seeking to expand its
number of residents from 8 to 15. In Bryant Woods, the
court refused to look beyond the administrative record and
affirmed the district court's grant of summary judgment in
favor of Howard County because the non-profit group had
failed to present evidence to the local land use board that
the expansion was "necessary" within the meaning of the
FHAA. Id. at 605-06.

We join the Tenth and Fourth Circuits in holding that
courts hearing reasonable accommodations challenges
should ordinarily limit their review to the administrative
record. This rule permits local land use boards to have the
initial opportunity to provide reasonable accommodations
to facilitate housing for the handicapped; it also comports
with the tradition in American law that land use decisions
are quintessentially local in nature. See, e.g. , FERC v.
Mississippi, 456 U.S. 742, 768 n.30 (1982) ("[R]egulation of
land use is perhaps the quintessential state activity.");
Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974)
(Marshall, J., dissenting) (noting that zoning "may indeed
be the most essential function performed by local
government"). We too have recognized in similar contexts
the value of local authorities resolving such matters on
their own without interference from the federal courts. See
Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993) (stating that
courts should not insert themselves in "delicate area[s],"
subject to local regulation until local authorities have "had
the opportunity to apply authoritatively" their specific
regulations).

Notwithstanding the foregoing, we point out that it may
be necessary for a court reviewing an FHAA reasonable
accommodations claim to look outside of the administrative
record when a land use board either intentionally or
inadvertently prevents an applicant from presenting the
evidence necessary to support an FHAA reasonable
accommodations claim.5 Lapid asserts that the Board's

(Text continued on page 14)
_________________________________________________________________

5. As is clear from the text, our holding that courts reviewing reasonable
accommodations challenges to local land use decisions brought under
the FHAA should ordinarily limit their review to the administrative record
assumes that plaintiffs who bring reasonable accommodations claims

                                12
against localities must usually first seek redress through variance
applications to the local land use authority. That holding is therefore in
tension with some district court decisions from within this Circuit
(including one that we affirmed summarily) that hold that in some
circumstances a plaintiff need not first apply for a variance in order to
bring an FHAA reasonable accommodations claim. See Horizon House
Dev. Servs., Inc. v. Township of Upper Southampton , 804 F. Supp. 683
(E.D. Pa. 1992) (allowing a plaintiff to bring an FHAA reasonable
accommodations challenge to a local zoning ordinance without first
seeking a variance from a local land use board), judgment aff 'd without
op., 995 F.2d 217 (3d Cir. 1993); Assisted Living Assocs. of Moorestown,
L.L.C. v. Moorestown Township, 996 F. Supp. 409, 425-28 (D.N.J. 1998)
(same). But see Marriott Senior Living Servs., Inc. v. Springfield
Township,
78 F. Supp. 2d 376, 385-86 (E.D. Pa. 1999) ("While strict compliance
with every local ordinance or regulation is not required . . . the
applicant
must show that under the circumstances it has afforded the appropriate
local authority a reasonable opportunity to consider the project in some
final form."); Community Interactions -- Bucks County, Inc. v. Township
of Bensalem, 1994 WL 702943, 8 A.D.D. 276 (E.D. Pa. 1994) (dismissing
an FHAA suit because the plaintiff failed to seek a variance with the
local
land use board). In the cases where district courts heard FHAA claims
without requiring the plaintiff to have first sought a variance with a
local
land use authority, the reviewing court necessarily had to consider
materials from outside the nonexistent administrative record.

Although we are not bound by the district court cases cited above,
including the case that we summarily affirmed, (summary affirmances
are non-precedential, see 3d Cir. I.O.P. 6.2.1), and we are not presented
with and do not reach questions of ripeness or exhaustion in this case,
we note that the position adopted by the Seventh and Eighth Circuits on
when plaintiffs bringing FHAA reasonable accommodations challenges
against localities must first apply for variances with local land use
boards rationalizes these cases (which allowed plaintiffs to bring
reasonable accommodations claims without first seeking a variance) with
the necessary implication of our holding today (that most reasonable
accommodations claims must first be presented to local land use
boards). In United States v. Village of Palatine , 37 F.3d 1230 (7th Cir.
1994), the Seventh Circuit reviewed an FHAA reasonable
accommodations challenge to a local ordinance for which the plaintiff
had not sought a variance. The court held that the claim was not ripe,
and that in general a city must be afforded the opportunity to make the
requested accommodation. Id. at 1233. However, the court identified two
exceptions where the claim would be ripe even if the plaintiff had not

                               13
denial of its request to bifurcate its variance and site plan
applications was unreasonable and in violation of New
Jersey's Municipal Land Use Law, and prevented it from
presenting materials relevant to its reasonable
accommodations claim. In particular, Lapid argues that it
had a statutory right to bifurcate its applications at any
point during the application review procedure pursuant to
N.J.S.A. 40:55D-76(b), which provides that "[t]he developer
may elect to submit a separate application requesting
approval of the variance and a subsequent application for
any required approval of a subdivision, site plan or
conditional use." Therefore, contends Lapid, the District
Court should have granted Lapid's request to supplement
the administrative record.

The Board responds that its denial of Lapid's variance
and site plan applications at the March 24 meeting was
merely the result of Lapid's refusal to consent to an
extension on both applications, which it had the power to
do pursuant to N.J.S.A. 40:55D-76(c). The Board further
submits that even if it had granted the request to bifurcate,
it could not have meaningfully evaluated Lapid's variance
application without reference to the specific problems that
the Board had identified with the site plan application. In
other words, the Board argues that Lapid essentially forced
it to review its site plan application as it existed at the
March 24 meeting by not consenting to an extension on
both the variance and site plan applications. Therefore, the
argument continues, Lapid cannot now complain that the
Board prevented it from presenting all of the information
necessary to support its reasonable accommodations claim.
_________________________________________________________________

first sought a variance from the local land use board: (1) if the claim
were a challenge to the variance application procedure itself; and (2) if
the variance application process was demonstrably futile. Id. at 1234.
The Village of Palatine court also limited the ripeness rule that it
formed
to reasonable accommodations claims and noted that"if the plaintiff 's
claim were of discriminatory intent, rather than failure to make a
reasonable accommodation, th[e] claim might well be presently ripe even
though [the plaintiff] has not sought a special use approval." Id. at 1233
n.3. The Eighth Circuit has followed the Seventh Circuit's ripeness rule
for FHAA reasonable accommodations claims. See Oxford House-A v. City
of Univ. City, 87 F.3d 1022, 1024-25 (8th Cir. 1996).

                               14
New Jersey's Municipal Land Use Law provides that local
zoning boards must act on an application for a variance or
site plan approval within 120 days of when a complete
application is submitted. If a zoning board fails to act
within the statutory period, the application is deemed
granted by force of law. See N.J.S.A. 40:55D-73(b).
However, an applicant may consent to the extension of this
120-day period. See N.J.S.A. 40:55D-73(b); N.J.S.A.
40:55D-76(c). In the present case, Lapid's counsel agreed to
extend the Board's deadline once to April 1, 1999. Instead
of offering to extend the deadline again, Lapid sought to
bifurcate its applications and to require the Board to vote
on the variance application before April 1 or to have it
approved by force of law.

Lapid contends that by requesting to bifurcate its
application, it was offering to extend the time limit for the
site plan application, and resting its case only on the
variance application. Because of New Jersey's statutory
scheme governing the evaluation of variance applications,
however, we agree that the Board could not have
meaningfully considered the variance application without
reference to the specific problems that it had identified in
the site plan application and Lapid's proposed solutions to
these problems, and that the offer to extend time for
consideration of the site plan application was therefore
essentially meaningless.

The section of the MLUL that governs applications for use
variances, N.J.S.A. 40:55D-70(d), requires an applicant to
establish that certain positive and negative criteria are
fulfilled in order to have the variance granted. See Smart
SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment,
704 A.2d 1271, 1278 (N.J. 1998). To establish the positive
criteria, the applicant generally must show " `special
reasons' for the grant of the variance." Sica v. Bd. of
Adjustment of the Township of Wall, 603 A.2d 30, 32 (N.J.
1992). The "negative criteria require proof that the variance
`can be granted without substantial detriment to the public
good' and that it will not substantially impair the intent
and purpose of the zone plan and zoning ordinance." Id.
(quoting N.J.S.A. 40:55D-70(d)). When the variance
application seeks permission for an "inherently beneficial

                               15
use," as it does in this case, the application presumptively
satisfies the positive criteria. See Smart SMR , 704 A.2d at
1278. The New Jersey Supreme Court has instructed that
when evaluating a variance application for an inherently
beneficial use, a zoning board must identify and"weigh the
positive and negative criteria and determine whether, on
balance, the grant of the variance would cause a
substantial detriment to the public good." Id. at 1279
(quoting Sica, 603 A.2d at 37).

The potential negative criteria relating to the use variance
that Lapid sought in this case are directly related to its
proposed site plan. In denying the application, the Board
relied on concerns about traffic safety and emergency
vehicle access. These issues certainly go to the question
whether the variance would cause "substantial detriment to
the public good." N.J.S.A. 40:55D-70(d). Further, the size of
the proposed Facility, another expressed concern, goes to
the question whether granting the variance would
"substantially impair the intent and the purpose of the zone
plan and zoning ordinance." N.J.S.A. 40:55D-70(d).
Therefore, even assuming that it was error to deny the
bifurcation, we do not see how the Board could have
considered the negative statutory criteria that it was
required to consider without reference to the site plan
application as it existed when the Board denied the
application.6 Lapid argues that a zoning board can consider
a variance application with stipulated or hypothetical
conditions on a site plan that will be considered
subsequent to the approval of the variance application. To
be sure, this may be feasible and desirable in some cases.
We do not see, however, how it would have been feasible in
the present case.

Most importantly, we agree with the District Court that
"based on a reading of the Zoning Board's hearing on the
matter, it appears that Lapid-Laurel was given a full and
_________________________________________________________________

6. We do not address the question whether the Board committed
procedural error under the MLUL that would require its decision to be
reversed. That would be an issue appropriate for direct appeal to the
New Jersey courts, and, at all events, Lapid did not present it to the
District Court or this court.

                               16
fair opportunity to present its case before the Zoning Board.
Over the course of four hearings, Lapid . . . presented five
witnesses and various exhibits." Indeed, as the District
Court noted, "[p]laintiff 's counsel even conceded at oral
argument that the Board in no way prevented plaintiff from
presenting any and all evidence it wished to advance."
Therefore, we do not think that the Board's denial of
Lapid's request to bifurcate its applications shows that the
Board prevented Lapid from presenting the necessary
evidence to support its FHAA claim, nor does it provide a
sufficient reason for this court to look outside the
administrative record when reviewing Lapid's reasonable
accommodations claim.

2. Does the FHAA or New Jersey Law Require a
       Local Land Use Board to Engage in an "Informal
       Interactive Process" with a Developer?

Lapid argues that the FHAA itself, or alternatively New
Jersey's MLUL, imposes an affirmative obligation on local
land use boards to engage in an "informal interactive
process" with variance applicants. Lapid argues that the
Board in this case failed to engage in that process (citing in
particular the inability of Lapid's representatives to meet
with Fire Chief Ellis when they wanted to do so), and that
therefore it is appropriate for a reviewing federal court to
look at materials from outside the administrative record.
For the following reasons, we do not think that any such
"informal interactive process" requirement exists.

Lapid argues that because the language of the FHAA's
reasonable accommodations requirement was borrowed
from the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq.,
and that because this court has held that under the
Rehabilitation Act, a defendant employer has "a duty to
make reasonable efforts to assist [an employee,] to
communicate with him in good faith," Mengine v. Runyon,
114 F.3d 415, 420 (3d Cir. 1997), a local land use board
has a similar duty under the FHAA to engage in an
"informal interactive process" with a developer seeking a
variance on behalf of the handicapped.

Mengine involved a Rehabilitation Act challenge brought
by a Postal Service employee, alleging that the Service had

                               17
failed to provide reasonable accommodations by failing to
move him to a position other than letter carrier after he
became disabled and incapable of fulfilling the duties of
that position. Relying on Beck v. University of Wisconsin, 75
F.3d 1130 (7th Cir. 1996), an analogous case from the
Seventh Circuit that involved a claim brought under the
Americans with Disabilities Act (ADA), Mengine held that
"both parties [i.e., the employer and the employee] have a
duty to assist in the search for [an] appropriate reasonable
accommodation." 114 F.3d at 420.

Beck involved a similar claim brought by a disabled
employee under the ADA against her employer for failing to
provide reasonable accommodations for her disability. In
Beck, the court specifically relied on 29 C.F.R.S 1630
(1995), a regulation promulgated pursuant to the ADA, to
reach its conclusion that "[t]he appropriate accommodation"
for an employer to provide "is best determined through a
flexible, interactive process that involves both the employer
and the [employee] with a disability." Beck, 75 F.3d at 1135
(quoting 29 C.F.R. S 1630, app. (1995)) (internal quotation
marks omitted). Although we recognized in Mengine that 29
C.F.R. S 1630 technically applies only to the ADA, we found
that Beck was "relevant to our analysis of the Rehabilitation
Act because in 1992 the Rehabilitation Act was amended
to incorporate the standards of several sections of
the ADA, including the section defining `reasonable
accommodation.' " Mengine, 114 F.3d at 420. We have
elaborated on the interactive process in later cases. See
Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir.
2000).

The FHAA borrows language from the Rehabilitation Act.
See Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1101
(3d Cir. 1996). However, the FHAA and the Rehabilitation
Act do not bear the significant similarities that justified
importing the requirements of 29 C.F.R. S 1630 from the
ADA to the Rehabilitation Act. The informal interactive
process that S 1630 describes applies specifically to an
employer-employee relationship. The regulation was
promulgated to apply in the employment context, and it is
highly doubtful that it was ever contemplated that it would
apply in the very different context of housing and land use

                               18
regulations. Moreover, we believe that it would be
particularly inappropriate to impose it on local land use
boards because they already face detailed state and
municipal requirements mandating formal procedures,
which, at least in some cases, prohibit them from engaging
in informal, off-the-record negotiations with variance
applicants. See N.J.S.A. 40:55D-10 (requiring that local
zoning boards hold hearings for variance applications at
which testimony is given under oath and produce written
resolutions that contain findings of fact and legal
conclusions based on these hearings); see also Commons v.
Westwood Zoning Bd. of Adjustment, 410 A.2d 1138, 1145
(N.J. 1980) (noting that the New Jersey Supreme Court
"ha[s] frequently advised boards of adjustment to make
findings predicated upon factual support in the record").7
Therefore, we hold that notwithstanding the "interactive
process" requirement that exists in the law of this court in
the employment context under the Rehabilitation Act, see
Mengine, 114 F.3d at 420, the FHAA imposes no such
requirement on local land use authorities.

Lapid also argues that New Jersey law requires local
zoning boards to engage in an informal interactive process
with developers who apply for site plan approvals. To
support this proposition, Lapid cites the following language
from Pizzo Mantin Group v. Township of Randolph , 645 A.2d
89 (N.J. 1994):

       Although a planning board is not required affirmatively
       to propose suggested revisions and modifications of a
       subdivision plan or site plan, the MLUL [Municipal
       Land Use Law] contemplates active involvement by
       planning boards in their review of subdivisions. The
       generalized design standards for subdivision
       ordinances prescribed by the MLUL necessarily invoke
       the planning board's expertise and familiarity with
       local conditions and implicate the exercise of discretion
       by planning boards. . . . That discretion is best
_________________________________________________________________

7. By imposing an "informal interactive process" on land use boards, we
would also be compromising the important policies underlying state law
limitations on off-the-record contacts between developers and board
members, such as limiting the potential for corruption of local officials.

                               19
       exercised by a process in which planning boards
       affirmatively interact with developers when reviewing
       proposed subdivisions.

Id. at 98 (emphasis added) (citation omitted). We do not
agree that Pizzo Mantin imposes a requirement that local
land use boards engage in an informal interactive process
with developers. First, the language in the case says that
how a board interacts with a developer is a matter of
discretion that is "best exercised" when "planning boards
affirmatively interact with developers." Id. at 233. This
language is far from mandatory. Second, it is unclear how,
if the Scotch Plains zoning board violated New Jersey's
MLUL in this case, that should bear on the scope of review
of a federal FHAA claim (unless in violating the MLUL, the
Board prevented Lapid from presenting necessary evidence).
To the extent that Lapid is attempting to argue its pendent
state law claims, it is barred from doing so because it failed
to raise these state law claims in this appeal.

It is generally beneficial for land use boards to be
cooperative with developers, and we do not think that the
Board engaged in model behavior toward Lapid in this case.
Nevertheless, we cannot impose an interactive process
requirement on the Board as a matter of law.

B. Burdens of Proof for Reasonable
Accommodations Claims

As noted above, Lapid relies on 42 U.S.C. S 3604(f)(3)(B)
for its claim that the Board failed to make reasonable
accommodations as required under that section when it
denied Lapid's request for variances and site plan approval.
The statute provides that it is unlawful "[t]o 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 . . . ." 42 U.S.C. S 3604(f)(2). The statute defines
discrimination to include "a refusal to make reasonable
accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford
such person equal opportunity to use and enjoy a
dwelling." S 3604(f)(3)(B).

                                20
Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3d Cir.
1996), is the only case in which we have addressed the
legal framework of an FHAA reasonable accommodations
claim. Hovsons focused mainly on the meaning of the
"reasonable accommodations" part of S 3604(f)(3)(B), as
opposed to the meaning and import of the terms
"necessary" and "equal opportunity." The main question in
Hovsons was which party carried the burden on the
reasonableness issue, i.e., whether it is the plaintiff 's
burden to show that the requested accommodation is
reasonable, or the defendant's burden to show that it is
not. Hovsons relied on our Rehabilitation Act cases to hold
that it is the defendant's burden to show that the requested
accommodation is unreasonable:

       Our precedents interpreting S 504 of the Rehabilitation
       Act have held that the burden of proving that a
       proposed accommodation is not reasonable rests with
       the defendant. See Juvelis v. Snider, 68 F.3d 648, 653
       & n.5 (3d Cir. 1995); Nathanson v. Medical College of
       Pennsylvania, 926 F.2d 1368, 1385 (3d Cir. 1991). As
       we have already held that courts must look to the body
       of law developed under S 504 of the Rehabilitation Act
       as an interpretive guide to the `reasonable
       accommodations' provisions of the FHAA, we further
       hold that the burden should have been placed on the
       [defendant] [t]ownship . . . to prove that it was either
       unable to accommodate [the plaintiff] or that the
       accommodation . . . proposed was unreasonable.

Hovsons, 89 F.3d at 1103. At least three Courts of Appeals
disagree with our position on which party has the burden
on the issue of reasonableness. See Groner v. Golden Gate
Garden Apartments, 250 F.3d 1039, 1045 (6th Cir. 2001)
("[W]e conclude that the plaintiff in a Fair Housing Act case
has the burden of proof to establish the reasonableness of
a proposed accommodation."); Bryant Woods Inn, Inc. v.
Howard County, 124 F.3d 597, 603-04 (4th Cir. 1997)
(holding that it is the plaintiff 's burden to show that the
requested accommodation is reasonable); Elderhaven, Inc.
v. City of Lubbock, 98 F.3d 175, 178 (5th Cir. 1996) ("[W]e
reject the suggestion of certain courts that a Fair Housing
Act defendant bears the burden of proof on the question of
reasonableness.") (citing Hovsons).

                               21
Although Hovsons discussed only the "reasonableness"
part of the statute, the Township contends that the
plaintiffs were also required to show that the requested
accommodations were "necessary to afford . . .[an] equal
opportunity" to the handicapped. 42 U.S.C. S 3604(f)(3)(B).
We agree that the plain language of the statute requires us
to focus on all three factors, i.e., whether the requested
accommodation is "(1) reasonable and (2) necessary to (3)
afford handicapped persons an equal opportunity to use
and enjoy housing." Bryant Woods Inn, 124 F.3d at 603.
Therefore, we must determine which party carries the
burden of demonstrating these issues. We are bound by
Hovsons's holding that the defendant bears the burden of
showing that the accommodation is unreasonable, but
because Hovsons did not decide which party has the
burden of showing that the requested accommodation is
necessary to afford handicapped persons an equal
opportunity to housing, we must decide these issues. We
think that under S 3604(f)(3)(B) the plaintiff bears the initial
burden of showing that the requested accommodation is
necessary to afford handicapped persons an equal
opportunity to use and enjoy a dwelling, at which point the
burden shifts to the defendant to show that the requested
accommodation is unreasonable.

We believe that this approach makes more sense and
more closely comports with the likely intent of Congress
than the approach of placing the burden on the defendant
to show both (1) that the requested accommodation is not
necessary to create an equal opportunity for housing; and
(2) that it is unreasonable. We initially note that the
Rehabilitation Act cases on which Hovsons relied provide
no guidance on the issue of who should bear the burden on
factors other than reasonableness. In fact, they provide
little analysis even on the issue of who should bear the
burden on reasonableness. See Juvelis v. Snider , 68 F.3d
648, 653 n.5 (3d Cir. 1995) (stating without discussion that
"the burden is on [the defendant] to demonstrate that
adjusting its requirements would fundamentally alter the
program or impose an undue burden on the department");
Nathanson v. Med. College of Pa., 926 F.2d 1368, 1385 (3d
Cir. 1991) (same). But see McGregor v. La. State Univ. Bd.
of Supervisors, 3 F.3d 850, 859 n.11 (5th Cir. 1993)

                               22
(holding that S 504 of the Rehabilitation Act imposes the
burden of proof as to reasonableness on the plaintiff).

Because the cases on which Hovsons relied to place the
burden on the reasonableness issue on the defendant do
not provide any guidance as to where the burden should be
placed on the other issues (that would be analogous to the
"necessary" and "equal opportunity" elements of
S 3604(f)(3)), and because "the FHA[A]'s text evidences no
intent to alter normal burdens" from the plaintiff to the
defendant, Bryant Woods Inn, 124 F.3d at 603-04, we must
determine whether Congress intended to place the burden
on the issue of whether the requested accommodation is
"necessary to create an equal opportunity" on the plaintiff
or the defendant. We think that a burden-shifting approach
in which the plaintiff would first have the burden of
demonstrating that the requested accommodation is
necessary to create an equal opportunity, at which point
the burden would shift to the defendant to show that the
accommodation is unreasonable, makes sense from a policy
standpoint.

While a plaintiff is in the best position to show what is
necessary to afford its clients (i.e., the handicapped
population that it wishes to serve) an equal opportunity to
use and enjoy housing, a defendant municipality is in the
best position to provide evidence concerning what is
reasonable or unreasonable within the context of its zoning
scheme. This burden-shifting approach is also consistent
with the approach that courts have applied to intentional
discrimination and disparate impact claims brought under
42 U.S.C. S 3604(f), the two other types of FHAA claims
available against local land use boards in addition to
reasonable accommodations claims. See 148 A.L.R. Fed. 1,
53, S 3[e] (1998) ("The courts tend to follow a burden-
shifting approach in determining whether a defendant's
conduct is violative of 42 U.S.C.A. S 3604(f).. . . [O]nce the
plaintiff has established a prima facie case of housing
discrimination under the statute, . . . the burden shifts to
the defendant to demonstrate a legitimate
nondiscriminatory reason for its conduct or, in the case of
a governmental defendant, to show that its actions
furthered a legitimate, bona fide governmental interest, and

                               23
that no alternative would serve that interest with less
discriminatory effect. Once the defendant has made such a
showing, the burden shifts to the plaintiff to establish that
the reason asserted by the defendant is merely a pretext for
discrimination."); see also Stephenson v. Ridgewood Village
Apartments, 1994 WL 792581, 8 A.D.D. 414 (W.D. Mich.
1994) (applying a 3-step burden-shifting analysis to claims
of intentional discrimination brought under 42 U.S.C.
S 3604). Because it makes sense from a policy standpoint
and is consistent with courts' interpretation of other claims
brought under the FHAA, we conclude that Congress
intended to place on the plaintiff the burden of showing
that a requested accommodation is "necessary" to give the
handicapped an "equal opportunity" to use and enjoy
housing.

In sum, we read S 3604(f)(3) to require a burden-shifting
analysis in which the initial burden is on the plaintiff to
demonstrate that the accommodations that it requested are
"necessary to afford [handicapped] persons[an] equal
opportunity to use and enjoy a dwelling," 42 U.S.C.
S 3604(f)(3)(B), at which point the burden shifts to the
defendant to show that the requested accommodations are
unreasonable.

III. Was Summary Judgment Proper on the
Reasonable Accommodations Claim?

In order to evaluate the District Court's grant of
summary judgment to the municipal defendants on the
reasonable accommodations claim, we must determine
whether there is a genuine issue of material fact regarding:
(1) whether the accommodations that Lapid requested were
necessary to afford handicapped persons an equal
opportunity to use and enjoy housing; and, if so (2) whether
the accommodations requested were unreasonable.

As an initial matter, there are two points on which the
parties agree or that are settled beyond dispute with
respect to the reasonable accommodations claim: (1) that
the future residents of the Facility that Lapid proposed to
build would be handicapped within the meaning of Section
3604(f), see Hovsons, 89 F.3d at 1103 n.3; and (2) that a

                               24
nursing home like the one that Lapid proposed qualifies as
a "dwelling" within the meaning of the statute, see id. at
1102.

A. Did Lapid Demonstrate That the Accommodations
       it Requested Were Necessary to Afford Elderly
       Handicapped Persons an Equal Opportunity to Use
       and Enjoy Housing?

As noted above, we have not previously addressed the
"necessity" and "equal opportunity" factors of a
S 3604(f)(3)(B) claim. The Courts of Appeals that have
provided the most discussion of the meaning of these terms
in the FHAA are the Sixth and Fourth Circuits. The key to
their analysis is that the plaintiff in an FHAA reasonable
accommodations case must establish a nexus between the
accommodations that he or she is requesting, and their
necessity for providing handicapped individuals an"equal
opportunity" to use and enjoy housing.

In Smith & Lee Associates, Inc. v. City of Taylor, 102 F.3d
781 (6th Cir. 1996), an FHAA challenge by a residential
facility for Alzheimer's patients to the city's denial of its
application to expand its facility from 6 to 12 patients, the
Sixth Circuit discussed the meaning of "necessity" and
"equal opportunity" in S 3604(f)(3)(B). Turning first to the
meaning of "equal opportunity," the court cited the House
Report on the Act, which states that the FHAA was
designed to " `end the unnecessary exclusion of persons
with handicaps from the American mainstream.' " 102 F.3d
at 794 (quoting H.R. Rep. No. 711, 100th Cong., 2d Sess.
18, reprinted in 1988 U.S.C.C.A.N. 2173, 2179). From this,
the court concluded that the FHAA defines "equal
opportunity . . . [to] giv[e] handicapped individuals the right
to choose to live in single-family neighborhoods, for that
right serves to end the exclusion of handicapped
individuals from the American mainstream." Id . at 794-95;
see also Bryant Woods Inn, Inc. v. Howard County, 911 F.
Supp. 918, 946 (D. Md. 1996) ("[T]he Act prohibits local
governments from applying land use regulations in a
manner that will exclude people with disabilities entirely
from zoning neighborhoods, particularly residential
neighborhoods, or that will give disabled people less

                                25
opportunity to live in certain neighborhoods than people
without disabilities."), aff 'd 124 F.3d 597 (4th Cir. 1997).

Next turning to the meaning of "necessary," the Smith &
Lee court concluded that in order to show that a requested
accommodation is "necessary" plaintiffs "must show that,
but for the accommodation, they likely will be denied an
equal opportunity to enjoy the housing of their choice." 102
F.3d at 795. The Fourth Circuit also defined the word
"necessary" to require a link between the proposed
accommodation and the "equal opportunity" in question:

       The "necessary" element . . . requires the
       demonstration of a direct linkage between the proposed
       accommodation and the "equal opportunity" to be
       provided to the handicapped person. This requirement
       has attributes of a causation requirement. And if the
       proposed accommodation provides no direct
       amelioration of a disability's effect, it cannot be said to
       be "necessary."

Bryant Woods Inn, 124 F.3d at 604.

Other courts have also recognized that the equal
opportunity to live in a residential zone is valid under
S 3604(f)(3)(B). See, e.g., Smith & Lee Assocs., 102 F.3d at
795 ("[E]lderly disabled citizens have a right to live in [a
town's] single-family neighborhoods."). We agree. The "equal
opportunity" that Lapid seeks to provide here is the
opportunity for handicapped persons to live in a single-
family residential neighborhood. Most of the
accommodations that Lapid sought are geared toward
getting exceptions from the stringent zoning requirements
of Scotch Plains's R-1 zone.

With respect to the use variance, it is clear that Lapid
demonstrated that a use variance was necessary to achieve
an equal opportunity for the elderly handicapped to live in
a residential area of Scotch Plains. This is true almost by
definition. The elderly handicapped who need skilled
nursing care usually are not able to live in their own
houses. They must live in some sort of institutional setting
in order to receive the assistance or health care that they
need. No institutional health care facilities are permitted
without a use variance in the neighborhoods zoned R-1

                               26
residential in Scotch Plains. Therefore, a use variance is
necessary for the elderly handicapped to have an equal
opportunity to live in a residential area of Scotch Plains.
Lapid's experts were explicit that one of the objectives of the
proposed Facility was to allow the elderly to live in a
predominately single-family residential zone. Dr. Stephen
Crystal, Lapid's gerontologist, expert gave the following
answer to a question that Lapid's lawyer asked him at one
of the Board's public hearings:

       Atty. Butler: ". . . Dr. Crystal, generally in your
       professional opinion, is it appropriate to site an
       assisted living nursing home in a residential zone?"

       . . . .

       Dr. Crystal: "There has been a lot of emphasis on long-
       term care, in trying to normalize long-term care,[and]
       bring[ing] people as much as possible into settings
       where they feel they are part of the mainstream and
       they feel they are not segregated. And I believe that's a
       benefit."

While we think it clear that the use variance that Lapid
requested was necessary to provide the elderly handicapped
an equal opportunity to live in a residential neighborhood,
it is a much closer question whether Lapid established that
the particular features of the site plan that it requested
were necessary to provide the elderly handicapped an equal
opportunity to live in a residential area of Scotch Plains. All
of the Board's site-plan-specific objections really seem to
boil down to the objection that the Facility (both the
building and the number of residents it would house) would
be too large for the site on which it was proposed and for
the surrounding neighborhood. A strict interpretation of the
"necessity" requirements of S 3604(f)(3)(B) would require
Lapid to show that a building of the size that it proposed is
required to provide the handicapped an equal opportunity
to live in a residential neighborhood.

Courts that have taken   this approach have required a
plaintiff to show that   the size of the proposed facility either
would be necessary for   the facility's financial viability (and
therefore necessary to   give the handicapped an equal
opportunity to live in   a residential neighborhood) or would

                                 27
serve a therapeutic purpose, (and would therefore be
necessary to ameliorate an effect of the handicap). See
Bryant Woods Inn, 124 F.3d at 605 (concluding that the
plaintiff had failed to demonstrate why expanding its group
home was necessary other than it would increase its
profits, even though it was already making a sustaining
profit); Smith & Lee Assocs., 102 F.3d at 788 (holding that
the test to determine whether expansion of a group home
was financially necessary was not whether "a particular
profit-making company needs such an accommodation,
but, rather do businesses as a whole need this
accommodation") (citation and internal quotation marks
omitted); see also Brandt v. Village of Chebanse , 82 F.3d
172, 174 (7th Cir. 1996) (noting that "some minimum size
may be essential to the success" of group care facilities). We
agree that the FHAA requires Lapid to show that the size of
its proposed Facility is required to make it financially viable
or medically effective.

Lapid presented some evidence on the therapeutic value
served by the scale of its group home. Dr. Crystal, the
gerontologist, testified that assisted living facilities above a
certain size were less desirable from a therapeutic
standpoint, and opined that he had observed that care
facilities that contained between 80 and 100 beds"seem to
work very well." Dr. Crystal did not testify, however, that
care facilities for the elderly that are smaller than the
proposed facility are unable to provide the range of care
required or that it would be economically infeasible to
operate a smaller facility. We therefore do not think that on
the basis of Dr. Crystal's testimony regarding the
therapeutic effectiveness of facilities of the size that Lapid
was proposing, a reasonable jury could find that Lapid had
shown that the specific features of its proposed facility (its
size in particular) were "necessary to afford[handicapped]
. . . person[s] [an] equal opportunity" to live in a residential
neighborhood in Scotch Plains. 42 U.S.C. S 3604(f)(3)(B).8
_________________________________________________________________

8. Lapid also asserts that it has necessarily shown that its requested
accommodations were necessary because it was issued a Certificate of
Need ("C.O.N.," i.e., a license), by the New Jersey Department of Health
and Senior Services. Developers of healthcare facilities such as the one

                               28
But even if Lapid had presented sufficient evidence to
create a triable issue of fact on whether the proposed
facility was "necessary to afford [handicapped] . . . person[s]
[an] equal opportunity" to live in a residential neighborhood
in Scotch Plains, S 3604(f)(3)(B), the municipal defendants
would be entitled to summary judgment on the alternative
ground that the requested accommodations were
unreasonable, which we explain below.

B. Did the Board Demonstrate That the Requested
Accommodations Were Unreasonable?

In Hovsons, we established the legal framework for
determining whether a requested accommodation is
"reasonable" under 42 U.S.C. S 3604(f)(3)(B). We held that
in order to "establish that the accommodation proffered by
[the applicant] was not reasonable, [the municipality] [i]s
required to prove that it could not have granted the
variance without:" (1) "imposing undue financial and
administrative burdens;" (2) "imposing an`undue hardship'
upon the Township;" or (3) "requiring a fundamental
alteration in the nature of the [zoning] program." Hovsons,
89 F.3d at 1104 (internal citations and quotation marks
_________________________________________________________________

that Lapid proposed are required to apply for Certificates of Need
pursuant to N.J.S.A. 26:2H-7. The municipal defendants argue that the
C.O.N. is irrelevant to whether the proposed Facility is necessary under
the FHAA because (1) the issuance of a C.O.N. by the DHSS "expresses
no specific determination by the Department of Health of the need for
any particular proposed facility"; and (2) the particular C.O.N. that
Lapid
was issued was initially designated for a facility in Westfield, New
Jersey,
and therefore has no bearing on a determination of Scotch Plains's need
for a nursing home.

We agree with the Township that the State's issuance of the C.O.N. to
Lapid is not material to the question whether the Facility that it
proposed is "necessary" to provide an "equal opportunity" for the elderly
handicapped to use housing in Scotch Plains. Even assuming that Lapid
is correct that the DHSS certificate represents the State of New Jersey's
conclusion that Union County is in need of additional assisted living and
skilled nursing facilities, that alone does not establish a nexus between
the requested accommodations, and their necessity to create an equal
opportunity for the handicapped.

                               29
omitted). We cautioned that this inquiry is "highly fact-
specific, requiring a case-by-case determination." Id.
(quoting United States v. Cal. Mobile Home Park Mgmt. Co.,
29 F.3d 1413, 1418 (9th Cir. 1994)). We also noted that
"[w]e must review the reasonable accommodations
requirement `in light of two countervailing legislative
concerns: (1) effectuation of the statute's objectives of
assisting the handicapped; and (2) the need to impose
reasonable boundaries in accomplishing this purpose.' " Id.
(quoting Americans Disabled For Accessible Pub. Transp.
(ADAPT) v. Skinner, 881 F.2d 1184, 1191 (3d Cir. 1989) (en
banc)). Thus, the question we face is whether, taking the
evidence in the light most favorable to Lapid, there remains
a genuine dispute as to whether there was sufficient
evidence before the Board that Lapid's requested
accommodations (i.e., the variance and site plan
applications for the proposed Facility) were unreasonable.

The municipal defendants in this case argue that certain
features of Lapid's proposed Facility that resulted from its
excessive size and the fact that approximately two acres at
the back of the lot (the whole lot was 4.17 acres) were
unusable because they were covered with protected
wetlands shows that the plan would have imposed an
"undue hardship" on the Township, and that it would have
"required a fundamental alteration" in the nature of the
Township's zoning program. Hovsons, 89 F.3d at 1104. The
municipal defendants point to two categories of objections
to the site plan that they identified during the hearing
process as evidence that the accommodations that Lapid
requested (in the form of the site plan and non-use
variances) were unreasonable (i.e., that they would have
imposed an "undue hardship upon the Township," or that
they would have required the Township to "fundamentally
alter" its zoning program, see Hovsons, 89 F.3d at 1104).

The two main categories that the Board identified are (1)
traffic safety issues (including traffic movement within the
parking lot, increased traffic on Martine Avenue, and safety
of ingress and egress from the parking lot); and (2)
inadequate access for emergency vehicles. We think that
the Board raised serious and legitimate concerns about
these issues and that Lapid failed to rebut these concerns

                               30
or to account for them by altering its proposed plan, and
that therefore summary judgment for the defendants was
proper on the reasonable accommodations claim. To help
describe these concerns, we set forth the proposed site plan
that Lapid presented to the Board at the March 24 meeting.

(see next page)

                               31
ID: Graphic Map

                  32
1. Traffic Safety Concerns

The municipal defendants flag several different concerns
regarding traffic safety issues that they say show that the
site plan that Lapid proposed was unreasonable. Several of
the criticisms that the Board's experts presented on the
traffic safety issues center on potential hazards at the point
of ingress and egress from the Facility's proposed parking
lot, particularly the fact that the entrance to the parking lot
requires a 180 degree turn for cars turning right and a
sharp turn across oncoming cars for cars turning left. Both
Harold Maltz, the Board's traffic consultant, and Paul
Ferriero, the Board's engineer, opined that the turns into
the parking lot were too sharp and would force cars to
make multiple-point "K turns" that would disrupt the flow
of traffic into and out of the Facility's parking lot and would
increase the likelihood of an accident.

Maltz stated that "a vehicle coming south on Martine
[Avenue] making a right, [would] essentially [be required to
make] a hundred and eighty degree turn to turn into the
site, . . . [and the vehicle would have] to be able to make
another hundred and eighty degree turn to drop off a
passenger at the main entrance." Ferriero commented that
in order to make the two sharp turns that a car must make
in order to reach the passenger drop off area, a driver
would have to be "very familiar with the site or have
planned in advance." Similarly, Maltz predicted in his
written report that a car attempting to make a right turn
after entering the parking lot would tend to stray into the
lane of oncoming traffic (due to the tight 180 degree turn
that is required), thereby increasing the likelihood of an
accident.

The Board's experts also predicted that the defects in the
point of ingress/egress would increase the risk of an
accident happening on Martine Avenue. Sergeant James
Rau, the police department's director of traffic safety,
predicted that the difficult turn-in site and its closeness to
the intersection of Martine Avenue and West Broad Street
would cause cars turning into the Facility to pause for
longer than normal. He concluded that this would increase
the likelihood of accidents. Rau also stated in his report
that drivers seeking to go south on Martine Avenue through

                               33
a green light at the intersection of Martine and West Broad
could be forced into the right lane (to go around cars
waiting to turn left) and would be forced immediately to
switch back into the right lane (to avoid cars turning in to
the Facility's parking lot). This, he concluded, would also
increase the likelihood of accidents.

Lapid's engineer agreed at the March 4 meeting that
redesigning the area of ingress/egress was a "good
suggestion," but failed to submit a redesigned plan dealing
with the traffic safety criticisms regarding ingress/egress.
Lapid also did not point to any information in the record
that contradicts the Board's experts' opinions that the
design of the entrance to the Facility's parking lot posed
traffic safety hazards.

The Board's experts also raised concerns about internal
traffic safety, i.e., within the Facility's parking lot, especially
with respect to delivery trucks that would be forced to go
around to the loading dock at the south side of the building
and would then be unlikely to be able to turn around
without backing up a long distance. Both Ferriero and
Maltz testified that the parking lot's layout would require
delivery trucks to back a long way out of the driveway into
the parking area in order to turn around and that this
would create a situation that was hazardous to public
safety. Ferriero commented that "to leave the[loading area]
would require a fairly long backing maneuver across the
pedestrian access to the site." Similarly, Maltz observed in
his written report to the Board that "[t]here is no K-turn
ability for trucks readily available from the loading zone or
dumpster area, except after backing up about 200 feet
around a curve and across a painted crosswalk."

Lapid has not pointed to any place in the record where it
countered these criticisms. And, although Szalay, Lapid's
civil engineer, agreed at the March 4 hearing that it would
be a "good suggestion" to create a turn-around area for
trucks, Lapid did not alter its site plan to account for the
problems that the Board's experts flagged.

2. Emergency Vehicle Access

The Board also identifies its concerns about inadequate
access for safety vehicles as an alternative reason why the

                               34
proposed plan would cause an "undue hardship" for the
Township by requiring it to compromise the safety of its
residents. As noted above, there is some dispute about
whether Fire Chief Ellis ever gave Lapid adequate
information on the turning radius that was necessary for a
"tower ladder" fire truck to access an emergency vehicle
lane that was to swing around the back of the building; (the
inability to drive a tower ladder truck behind the Facility
was one of the problems that the Fire Chief identified with
Lapid's plan). See supra note 1. Even if we discount the
comments of Fire Chief Ellis, however, several other experts
testified before the Board about their concerns that
emergency vehicles would either be unable to access the
rear of the building or would be unable to back out once
they got there. Lapid presented almost no counter-
testimony, and although Lapid's engineer, Szalay, agreed
that the narrowness of the access road could be a problem,
Lapid did not amend its site plan to provide a wider access
way.

In addition to Ellis, Ferriero and Maltz both flagged the
issue of emergency vehicle access as a problem with the
site plan in both written reports and public testimony.
Ferriero's report of March 3, 1999 stated that:

       The plan shows a fire lane extending to the rear of the
       building. The centerline radius of this drive is 43.5 feet,
       which is a minimal radius for access. The difficulty
       with the fire lane as shown is that exiting the fire lane
       will require backing a vehicle around this same tight
       radius with the edge of the drive within two feet of the
       building. If the vehicle is slightly off track to the inside
       by starting the turn too early, it will strike the building.
       If the vehicle is too far to the outside by turning too
       late or too wide, it will run off the access down a 33%
       slope.

Ferriero's report also pointed out that the emergency
vehicle access lane would actually be narrowed to around
seven feet when the sidewalk ramp at the rear of the
building was fitted with handrails and curbs, as is required
by the ADA. He concluded that this would be too narrow to
accommodate any emergency vehicle.

                               35
Maltz, the traffic engineer, provided similar criticisms of
the site plan's emergency access way. Maltz echoed
Ferriero's comments about the narrowness of the lane, and
the effect of the extension of the handrails into the fire
access lane. He also wrote that he had done tests with
models using the turning radius of a standard bus going
around an access way with the same turning radius and
dimensions as the one proposed by Lapid. He concluded
from his tests that it "appears probable" that a fire truck's
"wheels will leave the grass pavers area and proceed down
the [adjacent 33%] slope."9

Szalay, Lapid's civil engineer, agreed during the Board's
March 4 meeting, that in particular, the presence of the
handrails would present a problem. He also agreed that the
problem of backing out emergency vehicles from behind the
building was "a legitimate issue." However, Lapid did not
revise its site plan to account for these criticisms regarding
emergency vehicle access before the final hearing with the
Board on March 24, 1999. It seems likely that the wetlands
(and the required wetland buffer zone), which were located
close behind the proposed location for the emergency
access lane, were the reason that Lapid did not change its
site plan to provide a wider vehicle access lane. In his
March 4 testimony, Szalay admitted that the wetlands
_________________________________________________________________

9. Lapid suggests that the Board's expressed concerns about the
Township's ability to drive a tower ladder truck behind the Facility (due
to an insufficient turning radius) were pretextual, arguing that residents
of two-story nursing homes are unlikely candidates for heroic rescues
from ladder trucks. We agree that it makes little sense to require a two-
story building that would house residents who are unable to be carried
out on a ladder during a fire to provide access for tower ladder trucks.
However, the Board's concerns about emergency vehicle access focused
not only on the turning radius of the access lane, but also the width of
the lane. The Board's experts expressed concern that under Lapid's plan,
the lane would be as narrow as seven feet at one point. There is evidence
in the record that this would prevent all of Scotch Plains's fire vehicles
from accessing the rear of the building (because they are all at least
eight feet wide). Indeed, as noted above, Lapid's engineer agreed that the
presence of the handrails would present a problem. Therefore, even
discounting the issues regarding the turning radius of the emergency
access lane, the Board still raised serious concerns about emergency
vehicle access that Lapid acknowledged, but did not address.

                               36
posed a substantial constraint to widening the access way.
Nor did Lapid present any evidence that would undermine
or call into question the Board's experts' opinions on the
emergency vehicle access route. We agree that with respect
to its limited safety vehicle access, the site plan would
impose the "undue hardship" on the Township of
compromising the safety of its residents.

Therefore, we conclude that it was proper to grant
summary judgment to the Township on the issue of
whether it had shown that Lapid's requested
accommodations with respect to the site plan were
unreasonable because they would cause an "undue
hardship" on the Township. The Board presented sufficient
evidence to grant summary judgment in its favor with
respect to the site plan approval and non-use variances,
which were sufficient bases for it to deny the entire
application.

IV. Was Summary Judgment Proper on the
       Disparate Impact Claim?

The plaintiffs also appeal the grant of summary judgment
on their claim that the Township's ordinances have a
disparate impact on the handicapped in violation of 42
U.S.C. S 3604(f). Plaintiffs may make out a claim under the
FHAA using a theory of disparate impact without providing
proof of discriminatory intent. Doe v. City of Butler, 892
F.2d 315, 323 (3d Cir. 1989).

When reviewing disparate impact claims brought under
the FHAA, we have borrowed from the framework of Title
VII disparate impact claims. See Resident Advisory Bd. v.
Rizzo, 564 F.2d 126, 148 (3d Cir. 1977); see also
Huntington Branch, NAACP v. Huntington, 844 F.2d 926,
934 (2d Cir. 1988), aff 'd 488 U.S. 15 (1988) (per curiam).
In order to make a prima facie case of disparate impact
under the FHAA, the plaintiff must show that the
Township's action had a greater adverse impact on the
protected group (in this case the elderly handicapped) than
on others. If the plaintiffs succeed in demonstrating a
prima facie case, then the burden shifts to the defendant to
show that it had a legitimate, non-discriminatory reason for

                                37
the action and that no less discriminatory alternatives were
available. See Rizzo, 564 F.2d at 149.

The District Court found that in this case, the plaintiffs
failed to make a prima facie case of disparate impact. The
District Court relied on the formulation of the elements of
a prima facie case for disparate impact under the FHAA
that the Ninth Circuit set forth in Gamble v. City of
Escondido, 104 F.3d 300 (9th Cir. 1997). There, the court
"identified the following elements of an FHA[A] prima facie
case under a disparate impact theory: (1) the occurrence of
certain outwardly neutral practices, and (2) a significantly
adverse or disproportionate impact on persons of a
particular type produced by the defendant's facially neutral
acts or practices." Id. at 306 (internal quotation marks and
citation omitted).

The only evidence that Lapid cites to support its prima
facie case of disparate impact is that Scotch Plains's zoning
plan designates only one location in the Township for
"senior housing."10 This location is part of the Township's
Broadway Redevelopment Plan, which the plaintiff argues is
located in an undesirable location, a light industrial area
rather than a residential area. Lapid also points out that
the town permits no development of senior residences as of
_________________________________________________________________

10. The District Court allowed the plaintiff to get discovery and rely on
evidence from outside the administrative record to support its FHAA
disparate impact claim. We hold that reviewing courts should limit their
review to the administrative record only on reasonable accommodations
claims. It was proper for the District Court to allow the plaintiffs to
rely
on materials from outside the administrative record to support their
disparate impact claims. It makes sense that a plaintiff would need
broader discovery and more latitude on the evidence that he or she is
allowed to present in a disparate impact claim than in a failure to make
reasonable accommodations claim. The first involves demonstrating a
discriminatory pattern resulting from the impact of the municipality's
decisions, whereas the latter turns only on information regarding the
necessity and reasonableness of the proposed accommodation, all of
which can be presented to a local land use board in the first instance.
Furthermore, this distinction is consistent with the approach of other
courts that have addressed the proper scope of materials reviewed under
FHAA reasonable accommodations and disparate impact claims. See,
e.g., United States v. Village of Palatine , 37 F.3d 1230, 1233 n.3 (7th
Cir.
1994).

                               38
right (that is, the development is not permitted without the
grant of a use variance), in any other part of the Township
besides the Broadway Redevelopment Area.

Accepting as true Lapid's arguments on these points, we
do not believe that they are sufficient to make out a prima
facie case. They ignore the fact that 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. See Smart SMR of N.Y., Inc. v.
Borough of Fair Lawn Bd. of Adjustment, 704 A.2d 1271,
1281 (N.J. 1998) (noting that the New Jersey Supreme
Court has recognized nursing homes as "inherently
beneficial uses"). Applicants for an "inherently beneficial
use" under New Jersey law face a reduced standard for
demonstrating that the use qualifies for a use variance (as
opposed to applicants for commercial use variances). See
supra at 16. Therefore, even though Scotch Plains's land
use regime affirmatively provides for senior housing in only
one location, that alone does not establish a prima facie
case of discriminatory impact, especially in light of the fact
that the Township will entertain use variances for elderly
housing on a preferential basis in all other locations.
Furthermore, as the District Court noted, the plaintiff does
not present any evidence of a pattern of the town refusing
to grant variances for housing for the elderly or any other
conduct or statistics that would evince a disparate impact.

We also agree with the District Court that even if we were
to determine that Lapid had demonstrated a prima facie
case of disparate impact, it would be appropriate to grant
summary judgment on the issue that Scotch Plains has
demonstrated that it had non-discriminatory reasons for
denying Lapid's site plan application. The test for whether
the government has articulated a legitimate bona fide
governmental interest that would support denying the
application and that no alternative would serve the interest
with less discriminatory effect, see Rizzo at 148-49, is
similar to the test of whether the defendant has
demonstrated that the requested accommodation is
"unreasonable" for the purposes of rebutting a claim under
S 3604(f)(3)(B). The Board has pointed to sufficient evidence
to show that the requested accommodations were

                               39
unreasonable; the same evidence suffices to show a bona
fide governmental interest in denying Lapid's site plan
application.

For the foregoing reasons, we will affirm the order of the
District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               40
