PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-3621

_____________

431 EAST PALISADE AVENUE REAL ESTATE, LLC; 

7 NORTH WOODLAND STREET, LLC;

JOHN AND JANE DOES 1-10

v.

CITY OF ENGLEWOOD; 

CITY COUNCIL OF ENGLEWOOD,

 

Appellants

______________

On Appeal from the United States

District Court for the District of New Jersey

(D.C. Civ. Action No. 2-19-cv-14515)

District Judge: Hon. Brian R. Martinotti

_____________

Argued March 25, 2020

______________

Before: JORDAN, RESTREPO, and FUENTES, 

Circuit Judges.

(Opinion filed: October 8, 2020)
2

Daniel Antonelli (Argued)

Antonelli Kantor

1000 Stuyvesant Avenue, Suite 1 

Union, New Jersey 07083

Counsel for Appellants

Warren A. Usatine 

Michael R. Yellin

Cole Schotz P.C.

25 Main Street 

Court Plaza North, P.O. Box 800

Hackensack, New Jersey 07601

Roy T. Englert, Jr. (Argued)

Lee T. Friedman

Robbins, Russell, Englert, Orseck,

Untereiner & Sauber LLP 

2000 K St. N.W., 4th Floor 

Washington, D.C. 20006

Counsel for Appellees
3

______________

OPINION

______________

FUENTES, Circuit Judge.

Developers 431 East Palisade Avenue Real Estate LLC 

and 7 North Woodland Street LLC (collectively, “Palisade”)

seek to build a 150-bed assisted living facility in a singlefamily residential district in the City of Englewood, New 

Jersey (the “City”). Palisade believes that the City’s zoning

ordinance discriminates 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 district in the City. The District Court agreed and 

granted a preliminary injunction.

1

We must decide whether the City’s 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, facially discriminates 

against the disabled in violation of the Fair Housing 

Amendments Act (“FHAA”).

2 We conclude that the City’s 

zoning ordinance is not facially discriminatory.

Accordingly, the District Court erred in granting a 

1 431 E Palisade Ave. Real Estate, LLC, v. City of 

Englewood, No. 219-cv-14515-BRM-JAD, 2019 WL 

5078865, at *1 (D.N.J. Oct. 10, 2019).

2 42 U.S.C. § 3601, et seq.
4

preliminary injunction. We will therefore vacate and remand

for further proceedings. 

I.

A.

On a 4.96 acre parcel of land located partially in the City 

and partially in the Borough of Englewood Cliffs,

3 Palisade, a 

developer, seeks to build a 150-bed for-profit assisted living 

facility, which would provide supportive services to memory 

care patients. The City opposes its construction. The 

residential district in question is a “one-family residence 

district,”

4

zoned R-AAA, and is one of the City’s twenty-four 

districts that allows residential living.

As the District Court observed of the City’s zoning 

ordinance, “[t]here is no express language . . . prohibiting or 

discriminating against either the elderly or the handicapped in 

any of [the City’s] districts.”

5

 Instead, the R-AAA district 

explicitly allows for only seven uses, the first of which is “onefamily dwelling[s].”

6 The City’s zoning ordinance defines a

3 The properties comprising the parcel are located at 431 

East Palisade Avenue, 405 East Palisade Avenue, and 7 North 

Woodland Street. 

4 App. 360-61. 

5 Palisade, 2019 WL 5078865, at *7.

6 The following are the sole uses explicitly permitted in 

the R-AAA zone:
5

“One-Family Dwelling” to be a “building designed for, or 

occupied exclusively by, one family and not designed or used 

as . . . a group home or congregate living facility in which a 

(1) A one-family dwelling, 

not to exceed one such 

dwelling on anyone lot.

(2) Accessory uses, 

accessory buildings and 

accessory structures . . .

(3) Municipal purposes. 

(4) Parks and playgrounds. 

(5) Nature preserve and 

nature study area. 

(6) Public schools and 

private nonprofit day 

schools accredited by the 

New Jersey State 

Department of Education, 

for grades not above high 

school, and day-care 

centers licensed by the 

State of New Jersey, as 

conditional uses . . .

(7) Places of worship, 

including accessory 

religious instructional 

facilities, . . . .

App. 360–61.
6

person’s continued occupancy is dependent upon the payment 

of a fixed rent or room charge.”7

“Assisted living facilities” are not specifically defined 

under the City’s zoning ordinance, but New Jersey’s 

Administrative Code defines “assisted living” as “a 

coordinated array of supportive personal and health services, 

available 24 hours per day, to residents who have been assessed 

to need these services including persons who require nursing 

home level of care.”8 That Code further defines an “[a]ssisted 

living residence” as “a facility which is licensed . . . to provide 

apartment-style housing and congregate dining and to assure 

that assisted living services are available when needed, for four 

or more adult persons unrelated to the proprietor.”9

According to the City’s zoning ordinance, the singlefamily zone’s purpose “is to preserve and protect the integrity 

of such districts for one-family residential purposes, to 

establish one-family residence districts that provide for a range 

of lot sizes, and to permit in such districts only such other uses 

as will be compatible with one-family residential use.”10 

The City zoning ordinance permits assisted living 

facilities to be constructed as of right only in a single district,

the “Research, Industrial, Medical (RIM) District.” Other 

7 App. 352. Accordingly, a number of individuals with 

disabilities could live together in a congregate home, provided 

they do not do so pursuant to a formal rent arrangement. 

8 N.J. Admin. Code § 8:36-1.3.

9

Id. 

10 App. 361. 
7

permitted uses there include medical offices, rehabilitation 

centers, skilled nursing facilities, hotels, and apartment and 

condominium communities for senior citizens. Among the 

RIM zone’s stated purposes is “to foster the development of 

medical and health care facilities that complement the existing 

medical and health care services located throughout the 

City.”

11

 “Senior housing is permitted to complement future 

medical and health care services and to contribute to a sense of 

a health care village that offers care and living opportunities 

for older persons.”

12

 Though the RIM zone “permit[s] land 

uses that reflect contemporary light industrial economies,” the 

district is not solely industrial and “already encompasses 

several multifamily residential complexes.”13 

The City admits that the zoning ordinance requires a 

variance to build an assisted living facility of the type proposed 

by Palisade in any district besides the RIM zone, including the 

R-AAA zone, but the City also notes that New Jersey law 

privileges this development. For example, in seeking such a 

use variance, developers of group homes for individuals with 

disabilities (including assisted living facilities) in New Jersey 

face a reduced qualification standard, because such facilities 

are considered an “inherently beneficial use.”14

11 Id. at 435.

12 Id.

13 Id. at 434-35.

14 Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of 

Twp. of Scotch Plains, 284 F.3d 442, 467 (3d Cir. 2002) (citing 

Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of 

Adjustment, 704 A.2d 1271, 1281 (N.J. 1998)).
8

B.

Palisade has not submitted a formal application for a 

variance, having taken the position that such a step would be 

futile and that the variance application process is itself 

discriminatory. Instead, it engaged in various conversations 

with the City regarding its proposed development. In a letter 

dated January 14, 2019, Palisade requested that the City 

Council rezone the property. The City took no action toward 

rezoning. 

On June 28, 2019, Palisade filed a complaint alleging 

violations of the FHAA, among other causes of action. By 

application for an order to show cause, Palisade sought a 

preliminary injunction barring the City from enforcing any 

provisions of the zoning ordinance against it. 

Palisade advanced three general arguments: (1) that the 

ordinance discriminates against the disabled on its face (a 

disparate treatment claim); (2) that the City’s enforcement of 

the ordinance has a disparate impact on the disabled; and (3) 

that the City failed to offer a reasonable accommodation. 

The District Court granted the preliminary injunction, 

accepting Palisade’s theory that the zoning ordinance was 

facially discriminatory.

15 It acknowledged that “the City’s 

15 Concluding that the same standards apply to 

Palisade’s FHAA claim and its other federal statutory 

disability discrimination claims, the District Court did not 

separately reach the merits of those other claims. And because 

the District Court found in Palisade’s favor on the FHAA 
9

zoning ordinances do not expressly state that assisted-living 

centers are prohibited from districts primarily designed as 

residential” and that “[t]here also is no language explicitly 

stating that assisted-living centers are limited to the RIM 

district, or providing that assisted-living centers are barred 

from being a permitted, or even conditional, use in any other 

district.”

16

 

Nevertheless, the District Court reasoned that, because 

the City’s zoning ordinance explicitly names assisted living 

facilities in the RIM zone and expressly permits them only

there, it effectively excludes them from the R-AAA zone. The 

District Court concluded that “the failure of the Code to 

employ such negative words as assisted-living centers are 

‘prohibited,’ or ‘banned,’ or ‘forbidden’ from any other district 

other than the RIM district, as argued by Defendants, does not 

disguise the fact that assisted-living centers are not permitted 

uses in any district defined residential as its primary 

character.”17 The District Court went on to determine that the 

exclusion of assisted living facilities from the R-AAA zone 

was intentional based on the City’s stated desire to create a 

“health care village” in the RIM zone, and that such deliberate 

exclusion violated the FHAA by precluding the disabled from 

living in the residence of their choice.18

claim, it did not address Palisade’s additional federal and state 

law causes of action.

16 Palisade, 2019 WL 5078865, at *9.

17 Id. 

18 Id. at *10.
10

Concluding that Palisade had shown a likelihood of 

success on the merits of its facial disparate treatment claim, the 

District Court found the remaining factors favored granting 

injunctive relief. Though the District Court granted the 

preliminary injunction, with the practical effect that Palisade’s 

“plans for developing the Property as a 150-bed assisted living 

center would be considered a permitted use in the residential 

zone,” it suggested that Palisade would continue to be “subject 

to the remaining procedures of the City of Englewood’s landuse process.”

19

 

II.

20

The District Court concluded that, because the zoning 

ordinance treats assisted living facilities differently from 

single-family homes, by explicitly permitting them in the RIM

zone and implicitly excluding them from all others, the zoning 

ordinance’s different treatment and express use of the term 

“assisted living facility,” constitutes facial discrimination in 

violation of the FHAA.

“We review the grant or denial of 

a preliminary injunction for ‘an abuse of discretion, an error of 

19 Id. at *5 & n.9. The District Court did not reach the 

disparate impact and reasonable accommodation issues. 

20 The District Court had jurisdiction pursuant to 28 

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. 

§ 1292(a)(1), because this appeal stems from the grant of a 

preliminary injunction. 
11

law, or a clear mistake in the consideration of proof.’”

21

 

Because we conclude that the zoning ordinance does not 

21 Greater Philadelphia Chamber of Commerce v. City 

of Phila., 949 F.3d 116, 133–34 (3d Cir. 2020) (quoting Doe 

by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 

526 (3d Cir. 2018)). “We review de novo the lower court’s 

conclusions of law but review its findings of fact for clear 

error.” Id. at 134. “A preliminary injunction ‘is an 

extraordinary remedy, which should be granted only in limited 

circumstances.’” Id. at 133 (quoting Instant Air Freight Co. v. 

C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). To 

obtain a preliminary injunction, the moving party must show: 

(1) a reasonable probability of eventual success 

in the litigation, and (2) that it will be irreparably 

injured . . . if relief is not granted . . . . [In 

addition,] the district court, in considering 

whether to grant a preliminary injunction, should 

take into account, when they are relevant, (3) the 

possibility of harm to other interested persons 

from the grant or denial of the injunction, and (4) 

the public interest. 

Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 

2017), as amended (June 26, 2017) (quoting Del. River Port 

Auth. v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 

919–20 (3d Cir. 1974)) (alterations in original). “Generally, 

the moving party must establish the first two factors and only 

if these ‘gateway factors’ are established does the district court 

consider the remaining two factors.” Greater Philadelphia 

Chamber of Commerce, 949 F.3d at 133 (quoting Reilly, 858 
12

facially discriminate, Palisade is unlikely to succeed on the 

merits. The District Court accordingly erred in granting the 

preliminary injunction. 

A.

1.

“The Fair Housing Act (‘FHA’), passed by Congress as 

Title VIII of the Civil Rights Act of 1968, prohibits housing 

discrimination on the basis of, inter alia, race, gender, and

national origin”—and, following the adoption of the FHAA in 

1988, individuals with disabilities.

22

 FHAA claims may “be 

brought against municipalities and land use authorities.”23 

Pursuant to the FHAA, it is unlawful:

To 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 of—

F.3d at 179). “The court then determines ‘in its sound 

discretion if all four factors, taken together, balance in favor of 

granting the requested preliminary relief.’” Id. (quoting Reilly, 

858 F.3d at 179). 

22 Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 

170, 176 (3d Cir. 2005) (citing 42 U.S.C. § 3601 et seq.). 

23 Id. (citing Lapid-Laurel, L.L.C. v. Zoning Bd. of 

Adjustment, 284 F.3d 442 (3d Cir. 2002)).
13

(A) that person; or

(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 

person.24

Under the FHAA, “handicap” means “a physical or 

mental impairment which substantially limits one or more of 

[a] person’s major life activities.”25

“Plaintiffs alleging violations of the FHAA under these 

sections may bring three general types of claims: (1) 

intentional discrimination claims (also called disparate 

treatment claims) and (2) disparate impact claims, both of 

which arise under § 3604(f)(2), and (3) claims that a defendant 

refused to make ‘reasonable accommodations,’ which arise 

under § 3604(f)(3)(B).”

26

Here, we consider the first of these theories, the only 

one reached by the District Court. “Generally, to prevail on a 

disparate treatment claim, a plaintiff must demonstrate that 

some discriminatory purpose was a ‘motivating factor’ behind 

24 42 U.S.C. § 3604(f)(2).

25 42 U.S.C. § 3602(h)(1).

26 Wind Gap, 421 F.3d at 176 (citing Lapid-Laurel, 284 

F.3d at 448 n.3).
14

the challenged action.”27“To evaluate these claims under the 

FHAA, courts have typically adopted the analytical framework 

of their analogues in employment law, including their 

coordinate burden-shifting analyses once plaintiff has made a 

prima facie showing of discrimination under a specific 

claim.”

28 “The discriminatory purpose need not be malicious 

or invidious, nor need it figure [sic] ‘solely, primarily, or even 

predominantly’ into the motivation behind the challenged 

action.”29 

2.

Absent any formal request by Palisade for a variance, 

Palisade’s likelihood of success on the merits turns on whether 

the City’s zoning ordinance discriminates on its face. 

Accordingly, “we must examine the language of the challenged 

regulation or policy, aided, if applicable, by any evidence of 

record that informs the analysis.”

30

 

“[W]here a plaintiff demonstrates that the challenged 

action involves disparate treatment through 

27 Id. at 177 (citing Cmty. Hous. Trust v. Dep’t of 

Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 225 

(D.D.C. 2003) (“It is well settled that a defendant’s decision or 

action constitutes disparate treatment, or intentional

discrimination, when a person’s disability was a ‘motivating 

factor’ behind the challenged action or decision.”)).

28 Id. at 176.

29 Id. at 177 (quoting Cmty. Hous. Trust, 257 F. Supp. 

2d at 225).

30 Id. at 179.
15

explicit facial discrimination, or a facially discriminatory 

classification, a plaintiff need not prove the malice or 

discriminatory animus of a defendant,” because “the focus is 

on the explicit terms of the discrimination.”31 “Put another 

way, direct evidence of intent is ‘supplied by the policy 

itself.’”

32

“[T]he most fundamental element of [a facially 

discriminatory classification] claim is that plaintiff must 

demonstrate that defendant’s alleged discrimination was 

‘because of a handicap.’”33 The operative question becomes 

“whether ‘handicapped’ or ‘disabled’ status—the protected 

trait under the FHAA—was being used as the basis for 

different treatment.”34 “Where a regulation or policy facially 

discriminates on the basis of the protected trait, in certain 

circumstances it ‘may constitute per se or explicit . . . 

discrimination because ‘the protected trait by definition plays a 

role in the decision-making process, inasmuch as the policy 

explicitly classifies people on that basis.’”

35 Generally 

31 Id. at 177 (internal quotation marks and citations 

removed).

32 Hassan v. City of New York, 804 F.3d 277, 295 (3d 

Cir. 2015), as amended (Feb. 2, 2016) (quoting Massarsky v. 

Gen. Motors Corp., 706 F.2d 111, 128 (3d Cir. 1983) (Sloviter, 

J., dissenting)).

33 Wind Gap, 421 F.3d at 178 (quoting 42 U.S.C. § 

3604(f)(2)).

34 Id.

35 Id. at 177 (quoting DiBiase v. SmithKline Beecham 

Corp., 48 F.3d 719, 726 (3d Cir. 1995)) (internal quotation 

marks omitted) (emphasis added) (alteration in original).
16

applicable regulations, even those that expressly include 

protected classes or their proxies, in contrast, do not 

discriminate on their face, unless the “different treatment . . . 

was necessarily ‘disability based.’”36

B.

Applying these principles, the City’s zoning ordinance 

does not discriminate on its face, for two independent reasons.

First, assisted living facilities are not identified on the 

ordinance’s face in the relevant R-AAA section, the proper 

scope of our inquiry. Second, even if considered, the RIM 

zone’s allowance of assisted living facilities as of right does 

not render the ordinance facially discriminatory. Pursuant to 

the analysis that follows, whether taking language of the RAAA or RIM zones alone, or the terms combined, the zoning 

ordinance does not facially discriminate. 

1.

Palisade, recognizing the absence of textual references 

to assisted living facilities in the R-AAA zone, urges that we 

broaden our focus and conclude that the zoning ordinance is 

facially discriminatory, because the zoning ordinance 

explicitly names assisted living facilities elsewhere and does 

not permit them by right in the R-AAA zone. We reject this 

approach and direct our inquiry to the “language of the 

challenged regulation or policy,”37 which is the R-AAA zone, 

and not the RIM zone. 

36 Id. at 179. 

37 Wind Gap, 421 F.3d at 179.
17

While we acknowledge the proposition that ordinances 

“be read in their entirety,”

38 and that we can certainly look to 

other sections of the zoning ordinance or “any evidence of 

record that informs the analysis,” we cannot import an explicit 

classification where none otherwise exists.39 This follows 

directly from our teaching that “the focus is on the explicit 

terms of the discrimination,” that is, the different treatment on 

account of the policy’s “explicit[] classifi[cation] on th[e] 

basis” of a protected trait.40 We also read from Wind Gap a 

focus on “the relevant regulation[s]” as the source of the 

different treatment.41 

We accordingly focus on the language of the R-AAA 

zone that actually prohibits Palisade’s proposed development. 

In the absence of any language referring to individuals with 

disabilities, the language of the R-AAA does not facially 

discriminate in violation of the FHAA.42

38 Appellee Br. at 18 (quoting In re Petition for 

Referendum on City of Trenton Ordinance 09- 02, 990 A.2d 

1109, 1115 (N.J. 2010) (per curiam)); see also Food & Drug 

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

133 (2000). 

39 Wind Gap, 421 F.3d at 179.

40 Id. at 177-78 (internal quotation marks and citations 

omitted). 

41 Id. at 184.

42 We also observe that the list of included uses does not

suggest the specific and deliberate omission of assisted living 

facilities. 
18

2.

But even if we consider the language of the RIM zone, 

and accept, despite our reservations, Palisade’s equating

assisted living facilities with persons with disabilities, we are 

unable to discern discrimination on the face of the ordinance

under our jurisprudence.

43

i.44

The District Court reasoned that the explicit inclusion 

of assisted living facilities only in the RIM zone necessarily 

43 Wind Gap, 421 F.3d at 179.

44 The parties appear to agree that the term “assisted 

living facility” is an explicit reference to the disabled, rather 

than a neutral term. See, e.g., Appellant Reply Br. at 18. We 

are not entirely persuaded that “assisted living facility” 

necessarily means a facility for a person with “(1) a physical or 

mental impairment which substantially limits one or more of 

[that] person’s major life activities, (2) [and] a record of having 

such an impairment, or (3) [who is] . . . regarded as having such 

an impairment[,]” Wind Gap, 421 F.3d at 179 (quoting 42 

U.S.C. § 3602(h)), and, thus, “coincide[s]” with the FHAA’s 

definition of “handicap.” Id. However, we will follow the 

parties’ lead and assume their understanding of the term 

“assisted living facility” is correct. As a result, we need not 

consider whether, even if not an explicit reference to the 

disabled, “assisted living facility” is a “proxy” for that 

group. See id. at 177-78.
19

excluded them from the City’s single-family district.45 We are 

not so sure. While we will readily allow that the explicit 

inclusion of “assisted living facilities” as a permitted use in the 

RIM zone supports the inference that “assisted living facilities” 

are not a permitted use in the R-AAA zone, it does not in itself 

restrict land use in the R-AAA zone. Failure to permit a land 

use as of right is not tantamount to an express prohibition, and 

indeed the terms of the RIM zone on their face do not purport 

to allow, restrict, or otherwise regulate “assisted living 

facilities” in any other zone, including the R-AAA zone.46 

Thus, only the beneficial, preferential treatment of assisted 

living facilities finds itself in the explicit terms of the 

ordinance, while under Palisade’s theory, the negative, 

45 Palisade, 2019 WL 5078865, at *9 (the City 

intentionally “creat[ed] the RIM district as the exclusive zone 

where the handicapped elderly could receive assistance in a 

congregate setting.”) (internal quotation marks and citation 

omitted); see Grancagnola v. Planning Bd. of Twp. of Borough 

of Verona, 533 A.2d 982, 985 (N.J. App. Div. 1987)

(construing “commercial uses” to exclude “retail stores” 

because code “treat[ed] retail stores as a separate category of 

use” with “separate, specific authorization . . . in several 

zones.”); 1 Rathkopf’s The Law of Zoning and Planning § 5:18 

(4th ed. 2020) (“[T]he legislative intent to exclude a use in one 

district is emphasized by the inclusion of the use as a 

specifically permitted use under another classification.”).

46 Cf. Montana Fair Hous., Inc. v. City of Bozeman, 854 

F. Supp. 2d 832, 837 (D. Mont. 2012) (“Assisted 

Living/Elderly Care Facilities” denoted as a use “not 

permitted” in relevant zone by a “—”). 
20

restrictive treatment must be inferred, however logically.47 

Accordingly, the language of the RIM zone, though it 

explicitly includes the term “assisted living facilities,” is not 

sufficient to find facial discrimination. 

The immateriality of the RIM zone to the challenged 

regulation at issue is best illustrated by a counterfactual. If we 

were to conclude that the interaction of language in the RIM 

and R-AAA zones did improperly discriminate against 

individuals with disabilities, we would be left with the 

possibility that the removal of preferential treatment for 

assisted living facilities in another zone would validate or 

otherwise cure the zoning ordinance’s facial discrimination. 

At best, the RIM zone can only contextualize the terms of the 

R-AAA zone. 

Our prior mandate to focus “on the explicit terms of the 

discrimination” further underscores how Palisade’s focus on 

the RIM zone misses the point.

48

 Most relevant to our inquiry, 

47 This conclusion is consistent with the teaching of the 

Supreme Court in a parallel context, which has instructed that 

“[t]he force of any negative implication . . . depends on 

context” and “applies only when circumstances support[] a 

sensible inference.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 

940 (2017) (internal quotation marks and citation omitted) 

(emphasis added) (alteration in original). From this, we 

discern two key principles. First, context matters. Second, the 

application of this rule is merely an implication, and not 

explicit discrimination on the face of the policy. 

48 Wind Gap, 431 F.3d at 177 (internal quotation marks 

and citation omitted). 
21

the terms of the R-AAA zone itself and its permitted land uses 

are plainly inconsistent with “assisted living facilities” of the 

type that Palisade seeks to develop, and the City acknowledges 

as much. The District Court’s inference of different treatment 

of Palisade’s proposed assisted living facility in the R-AAA 

zone was thus sensible,49 but it is not in itself sufficient to make 

out a facial discrimination claim.

 

These terms alone are indeed enough to restrict the 

development of the proposed assisted living facility. But the 

very fact that the terms of the R-AAA zone restrict the types of 

development there does not mean that they discriminate on 

their face in the absence of any invocation of the protected 

class. Different treatment of the proposed development under 

the zoning ordinance is necessary but not sufficient. Where we 

differ from the District Court, then, is in its conclusion that the 

different treatment was “because of” a protected class. Such a 

reading is not apparent from the text of the R-AAA zone, which 

does not even mention assisted living facilities or persons with 

disabilities.

ii.

Nor do the terms of the R-AAA zone together with the 

RIM zone create discrimination on the face of the ordinance. 

The mere fact that some general terms in the ordinance operate 

49 See 1 Rathkopf’s The Law of Zoning and Planning § 

5:18 (4th ed. 2020) (“Where [an] ordinance states that no land 

or building may be used except for those uses specified, the 

listing of permissive uses necessarily implies the exclusion of 

others.”).
22

to disallow assisted living facilities and other terms expressly 

permit assisted living facilities as of right in another district,

does not transform the ordinance into one that discriminates on 

its face. Palisade cannot bootstrap otherwise facially neutral 

restrictions into express discrimination. To conclude 

otherwise could render a zoning ordinance facially 

discriminatory if it (1) enumerates exclusive allowable uses, 

(2) does not expressly permit a use associated with a protected 

class, and (3) elsewhere even mentions that use. Such a result 

would read out the FHAA’s requirement that the restriction 

must be “because of” discrimination. 

The expressly permitted land uses in the R-AAA zone

nowhere mention disability or assisted living facilities and are 

not inconsistent with uses by individuals both with and without 

disabilities. Similarly, Palisade’s proposed assisted living 

facility is but one of many land uses prohibited in the R-AAA 

zone. There is no indication that disabled status, rather than, 

for example, the building size or the commercial character of 

the development, is the dispositive trait, singled out for 

different treatment. 

Palisade argues that these restrictions make it all but 

impossible for their proposed business to operate in the RAAA zone, adversely affecting the individuals with 

disabilities. And that may be so. But this argument is not a 

claim that the City’s zoning ordinance discriminates on its face 

against individuals with disabilities. Rather, it is a claim that 

the facially neutral commercial and use restrictions in the RAAA zone, by preventing the development of commercial 

assisted living facilities, disproportionately limits housing 

access for individuals with disabilities. This argument, then, 
23

appears to be more in line with a disparate impact claim, which 

is not currently before the Court.

50

3.

Our conclusion that the City’s ordinance is not facially 

discriminatory does not necessarily spell the end of Palisade’s

proposed project.51 As we have noted, “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.”

52

 

50 Lapid-Laurel, 284 F.3d at 466.

51 We note that the outcome we reach here is consistent 

with our holding in Lapid-Laurel. Lapid-Laurel involved a 

disparate impact challenge under the FHAA to a township’s 

zoning system that, like the City’s, only allowed the 

contemplated development (i.e., senior housing) in a single, 

non-residential zone as of right. Id. at 467. We held that the 

plaintiff’s exclusive reliance on the zoning system’s 

designation of a single area for “senior housing” did not make 

out a prima facie case of disparate impact (i.e., it did not 

establish that the zoning system had a greater adverse impact 

on the elderly handicapped than on other 

constituencies). Id. Because no facial challenge was raised to 

the zoning ordinance at issue in Lapid-Laurel, it is readily 

distinguishable from this case and is not 

controlling. Nevertheless, because the plaintiff in LapidLaurel appears to have relied solely on the language of the 

zoning system at issue, our holding in that case may highlight 

the facial neutrality of the City’s ordinance at issue here.

52 Id. at 467.
24

Accordingly, Palisade has not shown a likelihood of 

success on the merits, and the District Court erred in granting 

the preliminary injunction.53 

III.

Because we conclude that the City’s ordinance does not 

discriminate against individuals with disabilities on its face, we 

will vacate the District Court’s order granting the preliminary 

injunction and remand for further proceedings. 

53 Having determined that the ordinance does not 

facially discriminate, we need not address the remaining 

equitable factors for injunctive relief. Fulton v. City of Phila., 

922 F.3d 140, 165 (3d Cir. 2019), cert. granted 140 S. Ct. 1104 

(2020).