The New Jersey Supreme Court has taken up the question of whether efforts to block plans for an autism group home by residents adjacent to the property implicated the state's anti-discrimination statute.

The court recently granted a petition for certification in Oasis Therapeutic Centers Inc. v Wade.

In that case, the Appellate Division previously held that allegations that neighbors undertook various measures to try to thwart the group home, including intimidation tactics and a payment of $250,000 to the property seller to back out of the sale, made out a viable claim under housing provisions of the state Law Against Discrimination. The panel in its decision late last year said the "LAD makes clear, that it is, in fact, unlawful to discriminate against a buyer because of the disability of a person intending to live on the premises, even if the buyer does not fit within the protected class … and that it is, with a discriminatory intent, unlawful to interfere with another's transaction."

The appellate ruling was a victory for plaintiff Oasis Therapeutic Centers in its civil suit over the planned group home in Middletown against defendants Peter and Susan Wade.

The Wades, however, filed a petition for certification with the Supreme Court, contending that the Appellate Division decision "dramatically expanded the causes of action available to plaintiffs" under the LAD and "elevates a mere dispute between neighbors to a valid cause of action under the LAD—a statute which was never intended to be, and is not, a general civility code regulating conduct between parties."

Oasis opposed the petition, contending that it invited the court "to engage in improper judicial activism by adopting a strained interpretation of the LAD," to "eviscerate New Jersey's discrimination laws" and to "condone—and indeed encourage—such repugnant conduct" by the neighbors.

The successful petition was filed on behalf of the Wades by Leo Hurley Jr. of Connell Foley in Jersey City.

Oasis is represented by Steven H. Holinstat of Proskauer Rose in New York.

Both lawyers declined to comment on the Supreme Court granting certification in the case.

According to court documents, Joan Mai Cleary, a nurse and parent to an autistic child, and her husband, John, set out to buy the Middletown property, a large plot on the Navesink River, to construct an autism group home in a farm setting—which they previously had done successfully elsewhere in Monmouth County through the entity the couple formed, Ongoing Autistic Success in Society (Oasis).

The $2.2 million purchase of the property was contingent upon a $600,000 grant from the Monmouth Conservation Foundation. The grant garnered preliminary approval but ultimately was denied. The suit claims that the denial resulted from efforts by the Wades and other area residents to block establishment of the group home. The suit claimed that the neighbors also attempted to thwart a subsequent effort to buy the property, including by letters to the seller and by an offer to pay the seller $250,000 to break the sale contract. The sale did close, though, and Oasis claims that neighbors at that point employed such tactics as graffiti and leaving mounds of animal manure on the property.

A chancery action ensued, and Oasis' discrimination counterclaims were severed and refiled separately in the Law Division. Monmouth County Superior Court Judge Dennis O'Brien in August 2017 granted the Wades' motion to dismiss the LAD claims.

The Appellate Division last December, in a published opinion authored by Judge Clarkson Fisher Jr., reversed.

Fisher wrote that N.J.S.A. 10:5-4.1 "clearly does not mean that a seller or landlord must possess the discriminatory intent or that a buyer or renter is the person directly discriminated against. This provision's plain meaning supports what is alleged to have occurred here—that defendants targeted and tormented Oasis because Oasis was providing a residence for autistic individuals."

The court also said N.J.S.A. 10:5-12 prohibits refusing to "transact" with someone because of a protected characteristic. Fisher wrote, "while the prior owner's actions were not spurred on by any discriminatory actions on his part … defendants' actions were alleged to have induced or attempted to induce a discriminatory result by interfering with the prior owner's dealings with Oasis. The LAD prohibits this and provides a cause of action to redress defendants' alleged conduct."

The Appellate Division also rejected O'Brien's application of the Noerr-Pennington doctrine, which provides immunity for petitioning a governmental body.

The Wades in their petition, filed last Jan. 10, said N.J.S.A. 10:5-4.1 "requires the claimant be a buyer or renter to state a claim for housing discrimination against the seller or landlord" and "does not create a cause of action … against an owner or occupant of unrelated, adjacent real property." And N.J.S.A. 10:5-12 "is limited to unlawful commercial practices," they argued, adding that the Supreme Court must take up the case because the Appellate Division's ruling "now stands as the sole legal authority in the state" on those issues.

In its Jan. 25 opposition to the petition, Oasis said the Wades' interpretation of the LAD provisions "is contrary to the LAD's plain language, would render critical language in the LAD superfluous and would interpret the LAD in a narrow fashion contrary to this Court's and the Legislature's express declarations."

The opposition papers also urged the court to imagine a similar scenario in which a group of white neighbors attempted to keep an African American family from moving to their neighborhood.

"Indeed, reversing the Appellate Division's ruling will only serve as a welcoming herald to Neo-Nazis, Ku Klux Klan, White Supremacists and other hate-mongering groups that they now have judicial approval to step up and/or revive discriminatory practices intended to intimidate their neighbors from selling or leasing property to anyone they view as being 'undesirable,'" Oasis contended.

The Wades in their Feb. 7 reply said Oasis failed to give "any compelling reason" against certification and instead "resorts to gratuitous name-calling and an over-the-top parade of horribles to deflect attention from the fact that the Appellate Division's analysis is not supported by the statutory text and legislative history."

The reply also said legislators "did not intend for [the LAD provisions at issue] to be construed so expansively and provide a cause of action for disputes between neighbors."

Each side also argued that the other misinterprets the Noerr-Pennington doctrine.

The Supreme Court granted certification in an Oct. 10 order.