Affinity Healthcare Group Voorhees LLC v. Township of Voorhees

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT ______________ No. 22-2769 ______________

AFFINITY HEALTHCARE GROUP VOORHEES, LLC; DR. KENNETH BROWN,

Appellants v.

TOWNSHIP OF VOORHEES; VOORHEES TOWNSHIP ZONING BOARD; ZONING OFFICER JACLYN BRADLEY; VOORHEES TOWNSHIP PLANNING BOARD

______________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1-21-cv-00800) U.S. District Judge: Honorable Renee M. Bumb ______________ Submitted Under Third Circuit L.A.R. 34.1(a) January 16, 2024 ______________ Before: SHWARTZ, MATEY, and PHIPPS, Circuit Judges. (Filed: January 18, 2024) ______________ OPINION ∗ ______________

∗ This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

SHWARTZ, Circuit Judge.

Plaintiffs Affinity Healthcare Group Voorhees, LLC and its member, Dr. Kenneth Brown, (“Affinity”) appeal the District Court’s order granting summary judgment to Defendants 1 on claims that Voorhees Township’s handling and denial of its applications to operate a methadone clinic violated the Americans with Disabilities Act (“ADA”), Rehabilitation Act (“RA”), and Equal Protection Clause, and deprived it of substantive due process. Because Affinity has failed to adduce evidence upon which a reasonable jury could conclude that the Township’s conduct violated these laws, we will affirm.

I.

Affinity provides counseling and medication-assisted treatment (“MAT”), such as methadone, to outpatients with Opioid Use Disorder (“OUD”). The Township approved Affinity’s initial zoning application and issued a certificate of occupancy and a permit to operate a “professional office providing behavioral health services on an outpatient basis” 2 in a building across the street from an elementary school. 3 The building is in the “O1 Office 1 Zone,” for “[o]ffices of a recognized profession, including . . . medicine[.]” Voorhees, N.J., Twp. Code § 152.052(A) (2021).4 The purpose of this zone is “to provide for office uses on small lots” to “create a transition zone between residential uses and more intensive commercial or industrial uses.” Twp. Code § 152.051. The Township Code has separate zones for, among other things, medical clinics and hospitals. 5

Affinity then applied to the New Jersey Department of Health (“NJDOH”) for a license to operate its treatment facility. NJDOH denied the application because Affinity failed to submit: (1) a certificate of occupancy that described the facility as an “Opioid Treatment Program”; and (2) proof “that [it] notified [the Township] of the full scope of services, including opioid treatment, to be provided at the [property].” Dist. Ct. ECF No. 74-26 at 20 (quoting N.J.A.C. § 10:161B-11.1(a)). 6

Affinity then submitted a second zoning application to the Township’s Zoning Administrator, Jaclyn Bradley, explaining in a letter affixed to the application, that it needed a certificate of occupancy containing the state-required language. 7 The second application represented that Affinity intended to use the property as a “Medical Office/Opioid Treatment Center,” App. 152, but provided no other details about the services it intended to offer. Bradley denied Affinity’s second application because of technical problems with the building’s exit signs and the next day she asked Affinity for a more detailed description of the facility’s services and operations. Bradley said that she hoped to “process the resubmission quickly” and that she had sought the Zoning Board’s solicitor’s expertise in evaluating the application. App. 179. Five days later, Bradley reminded Affinity of her request and inquired specifically about the facility’s “hours of operation, number of employees, [and] number of doctors and patients on-site during peak time(s)[,] [so as to] verify that there [would be] sufficient parking[.]” App. 520. The record does not reveal whether Bradley received the requested information.

Affinity eventually contacted Chris Norman, the Zoning Board’s Solicitor, and submitted a third application identical to its second one. Norman directed Affinity to provide a “description of the proposed use” so that Bradley could determine “whether [it would] be similar to a medical office in terms of land use impacts.” 8 App. 212. The following day, Affinity emailed Norman, but not Bradley, materials describing its use of methadone, hours of operation, and expected number of employees and patients. Around the same time that day, Bradley advised Affinity that (1) it had provided her with only “generic information” about the facility; (2) the Township “verif[ies] that [a] site . . . contains sufficient parking for the proposed use,” and “[she] was informed that” facilities like the one apparently proposed by Affinity “typically do not operate like a standard medical practice with scheduled appointments,” but instead “function more similarly to a retail[er]” whose “peak parking demands are accommodated by larger [] lots”; and (3) because “the proposed change of use appear[ed] to be significantly different than the previously permitted uses on [the] site,” Affinity needed to obtain a change of use from the Planning Board, in accordance with § 156.018 of the Township Code. 9 App. 246.

Affinity then applied to the Board for a change of use. 10 Four public hearings ensued, during which Affinity’s witnesses testified that: (1) the facility anticipated treating between 200 and 275 patients per day, eighty to ninety percent of whom would arrive between 5:00 a.m. and 9:30 a.m. (“Peak Hours”); (2) during Peak Hours, between fifty and seventy-five percent of patients would be triaged by one of three nurses, receive oral medication, and then leave; (3) approximately twenty-five percent of patients during Peak Hours would undergo that same process and a drug screen; (4) treatments during Peak Hours would “take more than a minute,” App. 1112, with a typical treatment lasting no more than five to ten minutes, although some could last up to twenty-five minutes; and (5) after Peak Hours, approximately six patients per day would receive counseling. Affinity’s traffic expert, David Shropshire, testified that neither the facility’s anticipated Peak Hours, nor its patients’ pattern of arrivals and departures, are typical of a traditional medical office. 11 Shropshire explained that “[b]ecause of the uniqueness of” Affinity’s facility he did not use data from the Institute of Transportation Engineers (“ITE”) in his traffic analysis for Affinity, even though ITE “[has] a category of use for medical offices[.]” App. 1205-06. He instead used traffic metrics from an addiction treatment facility located in a neighboring town to predict the traffic flow to Affinity’s location.

Separately, during one hearing, Board Solicitor Stuart Platt asked Affinity whether “there [were] any [] conditions that [Affinity] would proffer or agree to on [its] application,” to which Affinity responded that it would be open to the Board’s imposing a 275 patient-per-day limitation, but that Affinity could not then agree to any other conditions. App. 1452. 12

The Board unanimously voted to deny Affinity’s application based on the facility’s high traffic, lack of sufficient parking, and commercial nature. In its final resolution, the Board expounded that “the intensity of the proposed use [and] unique hours of operation” made the facility “the equivalent of a medical clinic,” a use “not permitted in the ‘transitional and less intensive’ O-1 Zoning District, but rather in only the more commercial [Major Business] and [Township Center] Zoning Districts.” 13 App. 447.

II 14

Affinity sued the Township, alleging (1) disparate treatment, disparate impact, and failure to accommodate in violation of the ADA and RA; (2) selective enforcement under the Equal Protection Clause; and (3) a violation of the substantive due process guarantees of the Fifth and Fourteenth Amendments. On cross-motions for summary judgment, the District Court determined that Affinity’s claims failed because: (1) an intention to exclude OUD patients did not motivate the Township’s handling or denial of Affinity’s applications, (2) the Township had legitimate reasons for denying the applications, (3) Affinity failed to show that the Township could reasonably accommodate the facility in its selected location, and (4) Affinity did not show that the Township’s decision to deny it the right to use the leased property shocked the conscience. See generally Affinity Healthcare Grp. Voorhees, LLC v. Twp. Of Voorhees, 624 F. Supp. 3d 494 (D.N.J. 2022). Affinity appeals. 15

III A

The ADA and RA prohibit discrimination based on disability. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 16 An ADA claim may proceed under any of the following theories of liability: (1) disparate treatment or intentional discrimination, (2) disparate impact, or (3) failure to make a reasonable accommodation. See Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176 (3d Cir. 2005) (Fair Housing Amendments Act (“FHAA”) case); see also Hansen Found., Inc. v. Atlantic City, 504 F. Supp. 3d 327, 334- 35 (D.N.J. 2020) (stating that courts use the FHAA framework to examine to ADA and RA claims). To evaluate claims brought under these theories, “courts [] typically adopt[] the analytical framework of their analogues in employment law,” which requires that if a plaintiff satisfies the elements of the prima facie case of discrimination, then the burden shifts to the defendant to show it had a legitimate, nondiscriminatory reason for its action. 431 E. Palisade Ave. Real Estate, LLC v. City of Englewood, 977 F.3d 277, 284 (3d Cir. 2020) (quoting Wind Gap, 421 F.3d at 176).

To establish a prima facie case for discrimination, “a plaintiff must show that he is a qualified individual with a disability; . . . was excluded from a service, program, or activity of a public entity; and . . . was excluded because of his disability.” Disability Rights N.J., Inc. v. Comm’r, N.J. Dep’t of Hum. Servs., 796 F.3d 293, 301 (3d Cir. 2015) (internal quotation marks and citation omitted). The parties here do not dispute that (1) Affinity’s patients suffering OUD are qualified persons under the ADA and RA, New Directions, 490 F.3d at 308-09 & n.11; (2) the Township is a public entity that provides services, 42 U.S.C. § 12131(1)(A); (3) services include access to treatment; and (4) a zoning ordinance can result in an exclusion from such services, see New Directions, 490 F.3d at 305 (holding that a law “singl[ing] out methadone clinics for different zoning procedures” facially violates the ADA).

The parties dispute only whether “some discriminatory purpose” to exclude OUD patients from receiving MAT “was a motivating factor behind” the Township’s procedures and denial of Affinity’s applications. Wind Gap, 421 F.3d at 177 (internal quotation marks and citation omitted). The record does not provide a basis for a reasonable jury to conclude that it was. As a preliminary matter, the Township Code is facially neutral insofar as it does not single out methadone clinics or OUD patients. Moreover, the Township did not subject Affinity’s application to atypical procedures. As to the zoning application process, the Township approved the first application based on Affinity representing that it intended only to operate a “[m]edical office,” App. 213. It then accepted a second application, which (1) resulted from Affinity’s failure to comply with NJDOH’s certificate of occupancy and notice requirements, and (2) contained a revised description of the proposed use, namely “Medical Office/Opioid Treatment Center,” without any other details about the facility’s operations, App. 152. It then denied the second application for technical reasons related to the facility’s exit signs but, in light of the second application’s revised use description, twice requested additional information about the facility’s practices and land use impacts. When Affinity submitted a third application that mirrored the land use information in the second application, the Township denied this application after Affinity failed to send Bradley the information that she had twice requested.

Affinity then applied for, and the Board considered, a change of use. 17 The Board reviewed written materials and testimony which showed that, unlike traditional medical offices, the facility was “the equivalent of a ‘medical clinic,’” a use not permitted in the O-1 Zoning District, as reflected by its unique hours of operation and high volume of activity, which could result in increased traffic and parking problems. For example, the facility would receive as many as 245 unscheduled patients daily, between 5:00 a.m. and 9:30 a.m., with the first permit allotting Affinity only twenty parking spaces in its lot to accommodate its patients and employees. Affinity’s own expert acknowledged the facility’s “uniqueness” and relied on traffic metrics from a nearby addiction treatment facility to predict the traffic flow to Affinity’s location, rather than on traffic data for traditional medical offices. Based on these facts, the Board concluded that the volume of activity and traffic impact was inconsistent with the O-1 Zoning District.

Neither the Board’s questions, nor objections from residents, which may have been based on a misunderstanding of OUD patients and treatments, show that the Board’s decision was motivated in any way by anti-OUD patient bias. The Board’s questions reflect an effort to understand Affinity’s services and probe the traffic and parking issues presented by the number of patients expected to visit each day during the Peak Hours. Additionally, there is no evidence that the residents’ comments impacted the Board’s decision. Because Affinity has not shown that discriminatory intent motivated the Township’s decision, 18 it has not established a prima facie case of disparate treatment. 19

Affinity has also failed to adduce evidence to support a disparate impact claim. 20 “[T]o make a prima facie case of disparate impact . . . [a] plaintiff must show that the Township’s action had a greater adverse impact on [a] protected group”—here, patients with OUD—“than on others.” Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002). Proof of discriminatory intent is not required. Id. at 466 (citing Doe v. City of Butler, 892 F.2d 315, 323 (3d Cir. 1989). If the plaintiff succeeds in offering evidence of a measurable disproportionate impact, “then the burden shifts to the defendant to show that it had a legitimate, non- discriminatory reason for the action and that no less discriminatory alternatives were available.” Lapid-Laurel, 284 F.3d at 467 (citing Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 149 (3d Cir. 1977)). If the defendant makes such a showing, “the plaintiff may still carry his burden of persuasion by demonstrating that a feasible, yet less onerous alternative exists.” NAACP v. Med. Ctr., Inc., 657 F.2d 1322, 1334-35 (3d Cir. 1981).

Even assuming the Township’s denial of Affinity’s applications had a disproportionate effect on OUD patients who would benefit from having access to a methadone clinic in the zone, the Township has set forth legitimate reasons for its conduct and has not otherwise erected hurdles that bar Affinity from seeking a permit to operate in another zone in Voorhees. Moreover, when asked whether “there [were] other conditions” besides limiting its patient count to 275 per day 21 to which Affinity would agree, and that might allow the Township to accommodate Affinity’s request, Affinity’s counsel stated: “[n]one that I can — none that I’m [allowed] to discuss at this point[.]” App. 1457. No other alternatives were ever offered. Because Affinity did not carry its burden to show that “a feasible, yet less onerous alternative exists,” NAACP, 657 F.2d at 1335, its disparate impact claim fails. 22

B

Affinity also has not demonstrated that the Township violated its substantive due process rights. To state a substantive due process claim, Affinity must show that the Township “shock[ed] the conscience” by depriving Affinity of a protected property interest. Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). 23 None of the Township’s conduct, including its application processes and the Board members’ written and oral communications before, during, or after the hearings, shocks the conscience. Accordingly, this claim fails.

IV

For the foregoing reasons, we will affirm.

(applying this standard in FHAA case); see also Yates Real Estate, Inc. v. Plainfield Zoning Bd. of Adjustment, 404 F. Supp. 3d 889, 915, 918-19 (D.N.J. 2019) (applying this standard in ADA case). Even assuming Affinity made a prima facie showing, for the reasons already stated, Affinity did not offer any reasonable accommodations that would allow it to operate, mindful of the land use concerns the Township identified.