Appellants, neighbors in the Jardines de Areeibo housing development (“JDA”) in Arecibo, Puerto Rico (“neighbors”), and the Superior Court of Puerto Rico for the District of Areeibo (“Superior Court”), appeal from an order of the United States District Court for the District of Puerto Rico permanently enjoining enforcement of a final judgment of the Superior Court mandating the immediate closure of Casa Marie, Ho-gar Geriatrico, Inc. (“Casa Marie”), a live-in, elder-care facility located in the JDA. The Superior Court judgment was based on a determination that Casa Marie was operating in violation of local zoning ordinances and JDA restrictive covenants. Appellees, the owners and operators of Casa Marie, and fourteen of its elderly and handicapped residents, instituted the federal action to enjoin enforcement of the Superior Court judgment. The federal district court ruled that the neighbors’ resort to the Commonwealth courts to close Casa Marie violated the federally protected rights of Casa Marie residents under 42 U.S.C. § 1983 (“section 1983”) and the Fair Housing Act, 42 U.S.C. § 3604 (“Title VIII” or “FHA”).
I
BACKGROUND
A. The Opening and Expansion of Casa Marie.
The Jardines de Arecibo housing development was established in 1967. Each property in the development is subject to restrictive covenants allowing only detached single-family residences, prohibiting uses or offensive activities constituting a “nuisance,” and requiring prior approval of all construction and alterations. On April 25, 1986, Casa Marie, a live-in facility for elderly handicapped persons, was established by Maria Pla Placencio on a dead-end street in a section of JDA zoned residential (R-3). The R-3 zoning classification allows one and two-family residences, rowhouses, or apartment buildings; elder-care facilities are not allowed except as a variance.
On May 7, 1986, Casa Marie applied to the Department of Social Services (“DSS”) for a license to operate an elder-care facility in two single-family residences located on adjacent Lots 19 and 20. The minimum DSS licensure requirements included endorsements from the fire, police, and health departments,
During 1987, the Casa Marie owners began to expand operations, incorporating a third single-family residence, on Lot 21, by constructing wheelchair ramps connecting the buildings on Lots 19, 20 and 21.
B. The Superior Court Judgment and Appeal.
On April 18, 1988, while their administrative action was pending before A.R.P.E., the neighbors filed a complaint in the Superior Court against Cаsa Marie and its owners, alleging violations of the zoning ordinances and the JDA restrictive covenants. The neighbors requested injunctive relief requiring demolition of the inter-building renovations and a cessation of all operations. The A.R.P.E. and Superior Court actions were consolidated in the Superior Court.
In May 1988, in order to remedy its zoning violations, Casa Marie submitted a proposal to A.R.P.E. whereby Lots 19, 20 and 21 would be “grouped” into one property for zoning purposes.
On July 14, 1988, however, the Superior Court entered judgment against Casa Marie, finding, inter alia, that
(1) Casa Marie violated local zoning laws by its failure to qbtain a valid variance permit for Lot 21, and valid construction permits for the renovations on Lots 19, 20 and 21;
(2) Casa Marie was engaged in a “commercial-institutional” use, not a “residential use” as required by the covenants;
(3) Increased levels of traffic and noise in the neighborhood, and the neighbors’ fears of “disturbing” the elderly residents, whom they considered “strangers in the neighborhood,” had “creat[ed] a dislocation or disorder in the lifestyle of the residential area” which constituted a “nuisance” under the restrictive covenants;
(4) Certain businesses located in JDA’s R-3 zone — for example, a medical office and a day-care nursery — also violated the restrictive covenants, but those violations were insufficient to extinguish the covenants under the equitable doctrine of “changed circumstances”; and
(5) Even if A.R.P.E. were to permit a variance for Casa Marie in the future, thereby excusing its past zoning violations, A.R.P.E. was without authority under Puerto Rico law to supersede or excuse Casa Marie’s coincident violations of the restrictive covenants.
The Superior Court ordered immediate cessation of the unauthorized operations at Casa Marie, demolition of the unauthorized renovations within four months, and notification of the closure of the elder-care facility to all Casa Marie residents.
Upon notification of the Superior Court judgment, A.R.P.E. suspended action on the Casa Marie “lot grouping” proposal. Without an A.R.P.E. permit, Casa Marie was ineligible for a permanent DSS operating license.
On September 9, 1989, in their appeal of the Superior Court judgment to the Supreme Court of Puerto Rico, the Casa Marie owners alleged, for the first time, that the neighbors had discriminаted against Casa Marie’s handicapped residents under the Puerto Rico Bill of Rights for Aged Persons. See P.R. Laws Ann. tit. 8, §§ 341-347, 343(b) (1987) (“All' aged persons shall be entitled to ... live in a dignified environment that satisfies their basic housing ... needs”; authorizing aged persons to bring a “priority” private cause of action in Commonwealth courts). The Supreme Court of Puerto Rico affirmed the Superior Court judgment in November
C. The Enforcement and Contempt Proceedings.
Casa Marie continued to operate. The neighbors requested a hearing to compel compliance with the Superior Court judgment. At the Superior Court hearing on August 15, 1990, the Casa Marie owners unsuccessfully attempted to interpose Title VIII claims, presumably in behalf of the residents. On October 2, 1990, Legal Services Corporation (“Legal Services”) filed a motion to intervene in the Superior Court enforcement proceedings in behalf of five Casa Marie residents (“intervenors”). At the same time, Legal Services brought an independent action in behalf of the interve-nors, asserting claims under section 3604 of the FHA,
On October 9, 1990, the Superior Court issued a civil contempt decree in the neighbors’ enforcement proceedings, ordering the arrest and imprisonment of Casa Marie’s owners in the event they failed to comply with its final judgment by November 5, 1990.
D. The Federal District Court Action.
Three days later, on October 26, a complaint was filed in the federal district court by Casa Marie, its owners, and nine other residents (hereinafter “nonintervenors”). The complaint alleged that the neighbors and the Superior Court had acted in concert to enforce the zoning ordinances and the JDA restrictive covenants in a discriminatory manner — in violation of the Equal Protection Clause of the United States Constitution, and Title VIII — in order to deprive thе elderly handicapped residents of their right to live in an integrated community. The complaint requested injunctive relief, compensatory and punitive damages, and attorney fees.
The district court allowed Legal Services and the five would-be Superior Court inter-venors to intervene in the federal court action. After a four-day hearing, the district court determined that the neighbors had violated section 1983 and FHA sections 3604(f) and 3617 by resorting to the courts of the Commonwealth to enforce the relevant zoning ordinances and restrictive covenants as a means of effecting a discriminatory eviction of the elderly handicapped Casa Marie residents from the neighborhood. See Casa Marie v. Superior Court of Puerto Rico for District of Arecibo,
II
DISCUSSION
The neighbors advance three contentions on appeal: first, the district court improperly rejected their affirmative defenses based on res judicata, collateral estoppel and the statute of limitations; second, ap-pellees failed to sustain their burden of proof on the section 1983 and Title VIII claims; and third, under the Anti-Injunction Act and the Younger abstention doctrine, the district court improperly enjoined the pending Superior Court enforcement and contempt proceedings. We need not confront the entire panoply of appellants’ arguments, however, as we conclude that (1) appellees’ section 1983 claims should have been dismissed, and (2) their Title VIII claims should not have been entertained by the district court since the pending Superior Court proceedings would afford plaintiffs an adequate forum.
A. The Section 1983 Claims.
The neighbors contend on appeal that the residents failed to establish an essential element of their section 1983 claims; namely that the neighbors acted “under color of state law” by resorting to the Commonwealth courts to enforce the restrictive covenants against Casa Marie. Relying on Shelley v. Kraemer,
There are two components to the “state action” requirement:
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwisе chargeable to the State.
An actual conspiracy between a state court and a party attempting a plainly prohibited act would constitute “state action.” Cf. Adickes v. S.H. Kress & Co.,
2. Neutrality and the Use of Courts to Enforce Restrictive Covenants.
The residents argue, in the alternative, that Shelley v. Kraemer,
Two decades ago, this court propounded a clear limiting principle for applying the “state action” standard enunciated in Shelley. See Lavoie v. Bigwood,
In [Griffin,] a deputy sheriff had ordered certain black patrons to leave a privately-owned amusement park, had arrested them when they refused to do so, and had brought a prosecution for criminal trespass. The Court recounted Maryland’s argument that itmay ... constitutionally enforce an owner’s desire to exclude particular persons from his premises even if the owner’s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner’s ultimate purpose is immaterial to the State....
The Court responded that such were not the facts of the case before it, in that “The president of the corporation which owned and managed the park testified that he had instructed [the deputy sheriff] to enforce the park’s policy of racial segregation.” A state, then, must be more strictly neutral than to permit any of its officers to identify the subjects of the discrimination in the first instance. Although it was not cited in Griffin, we take Shelley to be an earlier application of the same principle. To enforce the covenant and thereby disrupt a transaction between a willing seller and a willing buyer, the state court had necessarily to take evidence that the prospective buyer was black and to take notice that the clause being enforced was a racially restrictive one.
But while, on the facts of Shelley and Griffin, the Court had no occasion to announce a narrower theory indicating when a state police officer or court is “neutral” for the purposes of the Fourteenth Amendment, we think that, apart from cases involving racial discrimination, Maryland’s argument suggests a workable theory. That is, a state may at the behest of private persons apply sanctions pursuant to general rules of law which have discriminatory as well as non-discriminatory application if it does not accept the responsibility of employing a discriminatory classification. Such responsibility would exist when, in resorting to a state sanction, a private party must necessarily make the state privy to his discriminatory purpose. Similarly, in such a case as this, the state would retain a neutral posture unless it was necessarily apprised of the landlord’s purpose to violate rights of free speech and association. While not entirely satisfactory, this approach at least recognizes conscious state involvement without insisting upon an unattainable purity.
Lavoie,
The residents have not established “state action” under the Lavoie “neutrality” principle. The zoning ordinances and the restrictive covenants are facially neutral, and presumptively valid under Puerto Rico law. Furthermore, the Casa Marie residents were not parties to the Superior Court action prior to the entry of the final judgment. Thus, it cannot be determined on any evidentiary basis that the Superior Court was either apprised of any discriminatory animus on the part of the neighbors, or asked to consider any discriminatory effect that the belatedly alleged selective enforcement of the zoning ordinances and restrictive covenants might occasion. Without indulging conjecture, therefore, it cannot be concluded that the Superior Court must necessarily have been made privy to any allegedly discriminatory design on the part of the neighbors. See id. at 12. Absent “state action,” the district court should have dismissed the section 1983 claims as a basis for injunctive relief, and the Superior Court as a party-defendant.
B. The Fair Housing Act Claims.
1. Casa Marie and the Intervenors.
Unlike the nonintervenors, these federal plaintiffs attempted to litigate their federal claims in the district court, notwithstanding their continuing involvement in two pending Superior Court proceedings. In these circumstances, the district court should have abstained in deference to the proceedings pending in the Superior Court.
a. The Anti-Injunction Act.
The Anti-Injunction Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or
The Anti-Injunction Act is “an historical mechanism (Act of March 2, 1793, 1 Stat. 334, 335) for achieving harmony in one phase of our complicated federalism by avoiding needless friction between two systems of courts having potential jurisdiction over the same subject-matter.” Hale v. Bimco Trading, Inc.,
In Mitchum v. Foster,
Congress contemplated concurrent state-federal court jurisdiction over Title VIII claims. See 42 U.S.C. § 3613(a)(1)(A); cf. General Motors Corp. v. Buha,
Appellees instead argue that Congress implicitly demonstrated mistrust of state and local government in general by enabling private litigants to sue for federal injunctive relief against municipalities which enact or enforce zoning ordinances in a discriminatory fashion. Their argument distends the Act’s restrictive language (“expressly authorized by Act of Congress”) to absurd limits. If Mitchum’s second prong were to be considered satisfied whenever Congress enacted a statute authorizing injunctive relief, or by the mere fact that a local government might be made a defendant in a particular case, the rule requiring narrow construction of the Act’s exceptions would be rendered largely meaningless, and with it the general presumption that state courts are competent to protect federal rights. See Vendo Co. v. Lektro-Vend Corp.,
b. Younger Abstention.
Even assuming that- Title VIII were to be considered an express exception to the Anti-Injunction Act, appellants argue that the district court should have abstained, in the interests of comity and federalism, from interfering with pending state court proceedings which implicate such vital state interests, see Younger v. Harris,
Proper respect for principles of federalism and comity requires that federal courts, “anxious though [they] may be to vindicate and protect federal rights and federal interests, always endeavor[] to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger,
Given Casa Marie’s undisputed disregard of the Superior Court’s final judgment, and the unquestioned importance of the Commonwealth’s interest in enforcing the judgments of its courts through civil contempt proceedings, see Juidice,
The intervenors belatedly sought to participate in the same enforcement-contempt proceedings which remain pending in the Superior Court, then instituted the Superi- or Court lawsuit whose sole purpose is to restrain enforcement of the final Superior Court judgment and contempt decree against the Casa Marie owners. Apart from their unsubstantiated and eonclusory allegation that a Superior Court judge stated “off the record” that she might be disinclined to restrain enforcement of a final judgment entered by a Superior Court colleague, the intervenors neither alleged nor presented any evidence {e.g., an order denying their motion to intervene or dismissing their complaint) that they were precluded from pursuing either pending Superior Court action. Instead, so far as the present record indicates, the intervenors simply suspended their pursuit of the Title VIII claims in the pending Superior Court proceedings in favor of a fresh start in the federal court action aimed at enjoining enforcement of the final Superior Court judgment against Casa Marie.
We conclude that extraordinary injunc-tive relief indirectly suspending enforcement of the Commonwealth’s judicial processes in the ongoing Superior Court proceedings, with its attendant depreciation of the fundamental principles underlying federalism and comity, was unwarranted. See Moore v. Sims,
2. The Nonintervenors.
The prudential considerations underlying the Anti-Injunction Act and Younger abstention require further searching inquiry in reference to the federal claims presented by the nonintervenors. The majority of cases in which federal courts abstain from enjoining pending state court proceedings involve federal plaintiffs who are actual pаrties to the state court proceedings. The nonintervenors were not involved in either pending Superior Court proceeding. As we have noted, however, see supra Section II.B.l.a., the state and federal courts possess concurrent jurisdiction under Title VIII, see 42 U.S.C. § 3613(a)(1)(A), offering Title VIII plaintiffs a choice of forum. Ultimately, therefore, the essential question becomes whether the nonintervenors waived or acquiesced in a waiver of the right to present their Title VIII claims in the federal forum.
a. The Anti-Injunction Act.
Under the “strangers to the state court proceedings” exclusion,
Although it is highly questionable whether either intervenors or noninterve-nors would be “bound” under res judicata principles by any judgment or contempt decree against the Casa Marie owners,
We recognize, of course, that “it is not enough that [the federal plaintiffs’] concerns ... mirrored those which likely impelled [the earlier plaintiffs] to start suit in superior court,” Montalvo-Huertas v. Rivera-Cruz,
No less importantly, the “virtual representation” inquiry in the present case arises in the context of a ^osi-judgment proceeding.
We are particularly reluctant to extend the protection of the “strangers” exclusion in the present action, as it has been utilized so seldom by the Supreme Court that its continued vitality has even been questioned. See, e.g., County of Imperial,
b. Younger Abstention.
Even assuming the nonintervenors were somehow to escape the strictures of the Anti-Injunction Act, we believe Younger abstention would prevent federal relief enjoining enforcement of the Superior Court contempt decree. In an apparent corollary to the “strangers” exclusion, the Supreme Court has intimated that Younger abstention might not apply in some instances to a federal plaintiff who was not a party, or not “closely related” to a party, in the pending state court proceeding. See Doran v. Salem Inn, Inc.,
We do not think the narrow exclusion described in Doran precludes Younger abstention in relation to these nonintervenors’ Title VIII claims. First, Doran and much of its progeny involve state criminal or administrative proceedings which provide no procedural mechanism which would enable nonparties to intervene to protect their interests. See, e.g., New Jersey-Philadelphia Presbytery of Bible Presbyterian Church v. New Jersey State Bd. of Higher Educ.,
Second, unlike the Doran-type setting in which unrelated, legally distinct parties
These grave concerns nonetheless do not, in our view, warrant depriving noninterve-nors of the opportunity to assert their Title VIII claims in the Commonwealth courts. Rather, as a deterrent to future engenderment of needless fеderal-state court tensions, we conclude that nonintervenors should be held to have waived their belated claims for discretionary federal equitable relief enjoining the enforcement of the final Superior Court judgment.
Finally, we think it cannot reasonably be contended that nonintervenors’ interests are no longer sufficiently “intertwined” with those of Casa Marie as to implicate Younger abstention. Cf. Collins v. County of Kendall,
It is one thing for a stranger to attack a judgment when it is set up against him, another for him to be allowed to enjoin its enforcement or otherwise to initiate proceedings to have it declared invalid.... If the judgment really does threaten him, the question remains whether there are competing interests to be considered, particularly the interests of the parties who are concededly bound by the judgment. Giving the applicable legal relief from the effects of the judgment on him will not dissolve its legal effects on the parties to the judgment.
Restatement (Second) of Judgments § 76 cmt. c (1982) (emphasis added).
Once a valid judgment becomes final, so as to define the status quo, its enforcement
We mention a relevant example. Title VIII does not require a showing that discriminatory intent was the sole factor, but rather a substantial factor motivating defendants’ conduct. See, e.g., United States v. Birmingham,
We do not lightly conclude that there was an implied waiver of nonintervenors’ statutory right to assert their Title VIII claims in a federal forum. Nevertheless, their delay in resorting to the federal forum until the Superior Court contempt decree had been entered cannot be countenanced without encouraging the very sort of egregious intrusion upon state judicial power which Younger abstention was designed to avert. See supra Section II. B.l.b.
Ill
CONCLUSION
We vacate the permanent injunction restraining the neighbors’ enforcement of the Superior Court judgment and their enforcement of the outstanding contempt decree against Casa Marie. As our abstention ruling rests on the assumption that the residents will be accorded an adequate “opportunity” to participate in the Commonwealth proceedings, however, we anticipate that the Superior Court, as it has to date— out of resрect for the principles of comity and federalism — will defer further enforcement of its judgment and contempt decree, for such reasonable time as it may allow, to permit the filing and consideration of the residents’ motions to intervene in the enforcement proceeding, or in the alternative, to permit intervenors to prosecute their independent action.
The district court judgment is vacated. Judgment shall enter for appellants on appellees’ section 1983 claims. Double costs are awarded against Casa Marie and its owners.
Notes
. As these endorsements were not seriously at issue, either in the Commonwealth courts or the federal court, we do not address them on appeal.
. By December 1987, the resident population of Casa Marie had increased from two to twenty-six.
.Section 71x authorizes A.R.P.E. to issue orders to "cease and desist so that necessary preventative or control measures [can] be taken to achieve the purposes of this chapter....” P.R. Laws Ann. tit. 23, § 71x (1987). Section 72 provides, in pertinent part:
The Administrator or the Secretary of Justice in those cases where he is requested to do soin behalf of the People of Puerto Rico, or any owner or occupant of any neighboring property who is or may be particularly harmed by any such violations may, in addition to the other remedies provided by law, institute injunctions, mandamus or abatement proceedings or other appropriate action to prevent, enjoin, abate, vacate, remove or demolish any building erected or any building or use made or maintained ... in violation of this chapter. ...
Id. § 72.
. A.R.P.E. issued a "cease and desist" order on May 31, 1988, preventing further renovations, but refrained from directing demolition.
. Casa Marie filed a motion to set aside the judgment, which the Superior Court denied on March 28, 1990.
. Section 3604(f)(1) of Title VIII makes it unlawful
[t]o discriminate in the sale or rental, or to 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.
42 U.S.C. § 3604(f)(1) (emphasis added).
Section 3617 further provides that [i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [sections 3603, 3604, 3605, or 3606],
42 U.S.C. § 3617.
Plaintiffs appear to have stated a prima facie case under Title VIII. See Trafficante v. Metropolitan Life Ins. Co.,
. The "state action” requirement may be met where (1) a sufficient financial or regulatory nexus exists between the private party and the state entity; (2) the private party has been delegated authority to conduct a public function traditionally within the exclusive prerogative of the State; or (3) the private party and the state entity share a symbiotic, interdependent relationship. See Rodriguez-Garcia v. Davila,
. The Anti-Injunction Act bars federal court interference, whether by direct or indirect methods, in the parties' " 'utilization of the results of a completed state proceeding.’" Gloucester Marine Rys. Corp. v. Charles Parisi, Inc.,
. Extraordinary circumstances may be found, for example, where the state statute or rule under which the federal plaintiff is prosecuted or sued in state court is "flagrantly and patently violative of express constitutional prohibitions in every clause," or where the federal plaintiff demonstrates ‘"bad faith [prosecution], harassment or any other unusual circumstances that would call for equitable relief.'" Malachowski v. City of Keene,
. As a normal consequence, Younger abstention forces the parties to a state court proceeding to litigate federal claims and defenses through the state court system, with discretionary appellate review by the United States Supreme Court as a last resort. See Juidice,
. The district court did not mention the "strangers" exclusion as a basis for its decision. Nevertheless, its conclusion that res judicata did not bar their claims necessarily subsumed a determination that the nonintervenors were "strangers."
. Generally speaking, intervention rules are permissive, while joinder rules are mandatory. Thus, in order to preclude future relitigation of claims arising out of the same transaction, a state court plaintiff would need to join all those whom he intends to bind by the judgment who are not in privity with the named defendants for res judicata purposes. See Professional Hockey Club Cent. Sports Club of the Army v. Detroit Red Wings,
. The only obvious connection between Casa Marie and its residents—the “landlord-tenant” relationship—might not generate a sufficient identity of interest, or privity, between the parties. As a general rule, holders of concurrent interests in property, unlike successors in interest, are not considered in privity for res judicata purposes. Compare In re Corporacion de Servicios Médico-Hospitalarios,
. Puerto Rico’s res judicata statute, P.R. Laws Ann. tit. 31, § 3343, provides: "[i]n order that the presumption of the res judicata may be valid in another suit, it is necessary that, between the case decided ... and that in which the same is invoked, there be the most perfect identity between the things, causes, and persons of the litigants, and their capacity as such.” (Emphasis added.); see also Futura Dev. Corp. v. Centex Corp.,
. As with most general rules, an exception has been recognized to the no-duty-to-intervene rule in certain "specialized proceedings, such as bankruptcy, reorganization, or probate proceedings, where a party may be barred from future litigation by his mere failure to intervene.” Griffin v. Burns,
. A federal court may abstain where a question relating to the proper interpretation of state law might resolve a pivotal issue in the federal case, obviating the need to resolve the federal claims. Pennzoil,
. Evolving Supreme Court abstention jurisprudence suggests that the principles underlying Younger abstention may ordain more deference to state court proceedings than the Anti-Injunction Act in some circumstances. For example, while section 1983 claims come within an "express” exception to the Anti-Injunction Act, such claims may still be subject to Younger abstention. See Younger,
. For example, Doran involved a federal plaintiffs challenge to a .state statute which was the subject of an ongoing criminal prosecution against co-plaintiffs. Of course, nondefendants are barred from intervention in a criminal proceeding. While the federal рlaintiff in Doran did not directly seek to enjoin the state criminal proceeding, interim federal relief would have had the effect of (1) "interfering” with the state prosecution and (2) depriving the state court of its ability to decide the merits of the federal defenses. See New Jersey-Philadelphia,
. The nonintervenors, not having been joined in the neighbors’ Superior Court complaint, probably could have chosen to press their federal claims in federal court prior to the entry of the judgment and contempt decree, subject only to the less imposing obstacle of Colorado River abstention. See Colorado River Water Conserv. Dist. v. United States,
. Four considerations are pertinent to the evaluation of Title VIII claims under section 3604. First, plaintiff has the threshold burden to show a discriminatory effect or impact—that the housing practice "actually or predictably results in discrimination as defined under section 3604,” Huntington Branch, NAACP v. Town of Huntington,
. Although the Superior Court noted that Casa Marie would remаin in violation of the JDA restrictive covenants even if A.R.P.E. later excused Casa Marie’s noncompliance with the zoning ordinances, nothing in its opinion intimates that the zoning violations were not deemed independent grounds for the closure. Appellees contended at oral argument that they had cured their zoning violations subsequent to the entry of the district court’s permanent injunction. In our view, however, the district court impermis-sibly involved itself in the speculative inquiry
. The Superior Court is in the optimal position to adjudge whether compliance with the zoning ordinances should be "waived.” Discrimination against handicapped persons is specifically defined for purposes of section 3604(f)(3) as (A) "a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises,” and (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. § 3604(f)(3)(A) — (B) (emphasis added). Section 3604(f)(9) prescribes a limitation on the required "reasonable accommodation," providing that "[n]othing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”
. We cannot ignore the possibility that the Superior Court may find that two substantial causes contributed to Casa Marie's closure. It might ultimately determine that Casa Marie’s noncompliance with the zoning laws requires closure, but that the neighbors nevertheless are liable in damages to Casa Marie’s residents for resorting to the zoning laws and the restrictive covenants for discriminatory purposes. We be