Tenth Circuit Holds City Did Not Violate ADA or FHA by Denying Zoning Variance to Residential Treatment Center

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Cinnamon Hills Youth Crisis Center, Inc. v. Saint George City.  Cinnamon Hills had run a residential treatment facility in St. George, Utah, for some time.  It sought to create a new residential step-down program that would take up the top floor of a motel that the organization owned.  The city refused, however, to waive two provisions of its zoning code:  one that prohibited the occupancy of a motel room by an individual for more than 29 days, and another that prohibited residential uses in certain commercial zones.  Cinnamon Hills sued in the United States District Court for the District of Utah, alleging violations of the ADA, the Rehabilitation Act, and the Fair Housing Act.  The district court granted summary judgment to the city.

The Tenth Circuit affirmed.  The court concluded that the zoning provisions at issue neither were intentionally discriminatory nor had been shown to have a disparate impact on people with disabilities.  The court also concluded that waiving the 29-day and no-residential-uses-in-commercial-zones rule would not be a reasonable accommodation.  The relevant discussion from the court's opinion:

Of course, in some sense all reasonable accommodations treat the disabled not just equally but preferentially. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002). Think of the blind woman who obtains an exemption from a “no pets” policy for her seeing eye dog, or the paraplegic granted special permission to live on a first floor apartment because he cannot climb the stairs. But without an accommodation, those individuals cannot take advantage of the opportunity (available to those without disabilities) to live in those housing facilities. And they cannot because of conditions created by their disabilities. These examples show that under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining “the same . . . opportunities that those without disabilities automatically enjoy.” Id. (second emphasis added).

But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense. So, for example, a city need not allow the construction of a group home for the disabled in a commercial area where nobody, disabled or otherwise, is allowed to live. See Bryant Woods Inn, 124 F.3d at 604; Wisconsin Cmty. Serv., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006) (en banc); Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 152 (2d Cir. 1999).

And recognizing this necessarily marks the end of the road for Cinnamon Hills’s reasonable accommodation request. As we have already seen, no one, disabled or otherwise, is generally allowed to stay in a motel for more than 29 days or to reside in a C-3 commercial zone. To be sure, and as we have also seen, the city provides some limited exceptions to these rules (for law enforcement personnel and the like). But there is no evidence that the disabled, because of their disabilities, are any less able to take advantage of these exceptions than the non-disabled. Instead, the evidence shows that in seeking to occupy the top floor of a motel in a commercial zone, Cinnamon Hills is seeking an opportunity that isn’t available to others rather than one that is. And that’s a result the statute does not compel.

As in a lot of ADA/FHA zoning cases, the court here essentially collapses the reasonable accommodation inquiry into an inquiry into whether there is intentional discrimination.  There is an interesting law review note to be written comparing the analysis in zoning cases brought under the ADA and Fair Housing Act to that in zoning cases brought by religious groups under the First Amendment or RLUIPA.

Is the LA City Council Poised to Violate the ADA and the Fair Housing Act?

See this commentary on the Huffington Post.  An excerpt:

So why would the L.A. City Council pass a law that would shut down places like Keaveney House? The proposed Community Care Facilities Ordinance (CCFO) would do just that, and much more. In a misguided attempt to address nuisance "group homes," this dangerous ordinance will make it illegal to have unrelated people share a home in any residential neighborhood anywhere in L.A. 

Sound like overkill? It is. It's also discrimination -- against veterans in recovery, people with disabilities, and seniors on fixed incomes who live with roommates. The proposed ordinance violates fair housing law, the Americans With Disabilities Act, and the state's constitution right to privacy. If passed, disability rights advocates plan to sue, costing the city millions of dollars to battle a lawsuit, at a time when city workers are being laid off in droves. 

The proposed ordinance would shut down well-established, responsible owners of shared housing like New Directions, because this type of housing is not licensed. One of New Directions' houses does have a license, but only because it provides more intensive drug & alcohol treatment, so it is licensed by the California Department of Alcohol & Drug Programs. But the other houses are for veterans further along in their recovery, and no license exists for this type of housing with services, known as "supportive housing."

(The author of the commentary is the CEO of New Directions, just for full disclosure.)

E.D. Va. Issues Bad Zoning Decision

Last week, Judge John Gibney of the U.S. District Court for the Eastern District of Virginia issued a ruling granting the defendants' motion to dismiss in Calvary Christian Center v. City of Fredericksburg, 2011 WL 5843641 (E.D.Va., Nov. 21, 2011).  The plaintiff, a religious organization that, among other things, operates a day care center, sought, as part of its "social mission," to "operate a day school [called Fairwinds] for children with mental and emotional disabilities on its premises."  The organization applied for a special use permit, and both the city planning department and the city's director of planning and community development recommended granting the application.  Then the city council held three public meetings to consider the application.  The district court's opinion recounts what the plaintiff alleged happened at those meetings:

At the public hearings, members of the Council raised questions and concerns about allowing Calvary to house the day school. The council members' comments reflected numerous concerns: the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students. 

At the third meeting, the Council voted three to three, with one member abstaining, on whether to issue the special use permit. Because a motion fails on a tie vote, Calvary's application for a special use permit was rejected.

The organization sued the city under the ADA, the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the First Amendment.  The city filed a motion to dismiss, and the district court granted the motion.

As to the ADA and Rehabilitation Act claims, the court concluded that the plaintiff did not have standing, because it was not itself suffer any alleged discrimination: "Calvary has alleged discrimination that the students suffered in its ADA and RA claims; it has not claimed any unlawful discriminatory effect that Calvary itself suffered as a result of its association with the students." And the organization "failed to demonstrate a hindrance to the students' ability to bringing suit on their own behalf to protect their own interests, as required to establish third-party standing under the ADA or RA."

This seems to me wrong, for two reasons.  First of all, the ADA and Rehabilitation Act prohibit discrimination against "an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association."  28 C.F.R. 35.130(g).  What the plaintiff alleged here is clearly discrimination against the organization itself (the denial of its request for a special use permit) because of the organization's "relationship or association" with the kids with disabilities who would attend the day school program.  Properly considered, this isn't a case of third-party standing at all; it's a case of the organization enforcing its own rights.

Second, even if the case was one of third-party standing, the court's interpretation of the hindrance prong seems unduly crabbed.  The kids who would attend the program at Fairwinds (and whomever is authorized to speak for them by law) would likely have little incentive to sue about a particular siting decision.  In similar circumstances, a number of courts have found the hindrance prong satisfied.

Not disability law related, but I also think the court likely got it wrong on the RLUIPA claim. The court appeared to say that the plaintiff hadn't pled sufficient facts to show that the denial of the permit imposed a substantial burden on its exercise of religion, but the case appears to have been brought under RLUIPA's equal-terms provision, 42 U.S.C. 2000cc(b)(1), rather than its substantial-burden provision, 42 U.S.C. 2000cc(a). The equal-terms provision provides that "[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." It does not, by its plain terms, require a substantial burden.

None of which is to say that I'm a fan of separate day programs for kids with disabilities.  But the court here seems to have gotten the law wrong.

Feds Side with Sober Living Homes in a City's Bid to Limit New Facilities

See this article by that title.  It begins:

The U.S. Justice Department has thrown a possible kink in Los Angeles' attempt to regulate group homes in single-family neighborhoods, entering into a lawsuit challenging a similar law enacted by Newport Beach. 

The department's Civil Rights Division earlier this month filed a friend-of-the-court brief on behalf of three sober living home operators who allege that the Orange County city's law discriminates against people with disabilities. Alcoholics and drug addicts are considered disabled in the eyes of federal law. 

With the L.A. City Council expected to vote in coming months on an ordinance similar to Newport Beach's, the federal intervention cheered advocates for sober living in Los Angeles.

Planning Commission Vote Ties on Psychiatric Clinic

See this dispatch from southern Mississippi.  Excerpts:

The city Planning Commission was equally divided and could not reach a decision Tuesday night on whether the Psycamore psychiatric clinic should be allowed near a residential area. 

* * *

Speaking for the clinic, attorney Billy Guice said the issue is not zoning, but rather discrimination against the mentally ill. 

* * * 

He said the city could be in violation of civil rights laws, the Americans With Disabilities Act and the Rehabilitation Act if the clinic is not allowed to open in the highway-commercial zone near Washington Avenue and treat the mentally ill.

Nice Opinion on Zoning Accommodations for Group Homes

New on Westlaw: Developmental Services v. City of Lincoln, 2007 WL 1290082 (D. Neb., May 2, 2007). The court's introduction sums it up:

Evidence showing heaps of red tape, garnished with bureaucratic indifference and inconsistent and irrelevant posturing by city officials, elected and otherwise, does not make the City of Lincoln guilty of consciously intending to discriminate against people with developmental disabilities. But that evidence, and more, does prove that Lincoln denied a group home provider and its developmentally disabled clients reasonable accommodations to land-use requirements. As a result, taxpayers will have to pay the provider a lot of money for the City's violation of federal law. Sadly, by merely acting reasonably, Lincoln could have easily avoided that expensive outcome.