Lake-Geauga Recovery Centers, Inc. v. Munson Township

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LAKE-GEAUGA RECOVERY ) Case No. 1:20-cv-02405

CENTERS, INC., et al., )

) Judge J. Philip Calabrese

Plaintiffs, )

) Magistrate Judge

v. ) William H. Baughman, Jr.

)

MUNSON TOWNSHIP, et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiffs Lake-Geauga Recovery Centers, Inc. and Fair Housing Resources

Center, Inc. filed suit against Munson Township, the members of the Township’s

Board of Zoning Appeals, and its zoning inspector alleging that Defendants apply

local zoning laws to discriminate in violation of federal and State laws against the

clientele of the former, who as relevant here are women in recovery from drug and/or

alcohol addiction. For their part, Defendants maintain they are merely enforcing

facially neutral zoning laws in a non-discriminatory fashion. In addition to money

damages, Plaintiffs seek a preliminary injunction under Rule 65(a) so that they may

operate a sober-living residence in Munson Township.

Following briefing, the Court held a hearing on Plaintiffs’ motion for a

preliminary injunction on March 9 and 10, 2021. For the reasons that follow, the

Court GRANTS IN PART Plaintiffs’ motion and makes the following findings and

orders pursuant to Rule 65(a) and Rule 65(d)(1) and (2).

FINDINGS OF RELEVANT FACTS

Plaintiff Lake-Geauga Recovery Centers, Inc. provides a full range of services

to people recovering from drug and alcohol addiction. (ECF No. 1, ¶ 2, PageID #2;

id., ¶ 22, PageID #6; see also Ex. 27.) Lake-Geauga’s services include early

intervention, education, outpatient treatment, group counseling, and residential

treatment. (Ex. 27.) According to Melanie Blasko, president and chief executive

officer of Lake-Geauga Recovery Centers, the organization’s mission is to provide

“lifelong recovery from addiction through education, prevention and treatment,

regardless of ability to pay.” (ECF No. 30, PageID #831.)

In September 2019, Lake-Geauga Recovery Centers purchased a four-bedroom

house, known as Twelve Meadows, in Munson Township in Geauga County, Ohio.

(ECF No. 1., ¶ 5, PageID #3.) Lake-Geauga bought this particular house because of

the open floor plan, large bedrooms, and its one-and-a-half-acre parcel, which Lake-

Geauga finds conducive to recovery as those with addiction transition from treatment

programs to daily life. (ECF No. 30, PageID #843–44, 894.) The organization intends

to use the house to provide a sober-living facility for five women who are residents of

Lake or Geauga counties upon their completion of a thirty-day primary treatment

program. (ECF No. 1., ¶ 5, PageID #3; see also id., ¶¶ 26 & 27, PageID #7; id., ¶ 33,

PageID #9.) In addition, a house manager lives at the residence. (Id., ¶ 5, PageID

#3.) The house manager is also a person in recovery. (ECF No. 30, PageID #802.)

At the preliminary injunction hearing, the evidence showed that recovery

housing is “effective in producing positive outcomes for persons with substance use

disorders.” (ECF No. 30, PageID #802.) Indeed, Defendants do not dispute that Lake-

Geauga Recovery Centers does important work and does it well. (ECF No. 30, PageID

#880, 912.) Beyond that, the evidence provided an overview of the context in which

organizations provide recovery and addiction services. In particular, the National

Alliance of Recovery Residences, a national organization that seeks to increase access

to recovery housing for people with substance use disorders, recognizes four levels of

support for recovery housing. (Id., PageID #776.) Residents in a Level II recovery

home, like Twelve Meadows, focus on learning to live in long-term recovery, and

recovery housing is a “critical component” of the continuum of care persons recovering

from addiction receive, which can increase their odds of sustaining recovery over the

long term. (Id., PageID #779.)

Lake-Geauga Recovery Centers receives funding from, among other sources,

Medicaid and the Geauga Board of Mental Health & Recovery Services, which applied

for a grant from the Ohio Department of Mental Health and Addiction Services for

Twelve Meadows. (ECF No. 1, ¶ 28, PageID #8; id., ¶ 40, PageID #11.) The grant

will reimburse Lake-Geauga Recovery Centers in the amount of $334,561 for

expenses and operating costs related to Twelve Meadows. (ECF No. 16, PageID

#183.) Receipt of the funds may be tied to or contingent to some degree on Lake-

Geauga Recovery Centers’ compliance with grant funding conditions, including

providing housing for five recovering adult women at Twelve Meadows. (Id.)

However, the evidence at the hearing was not entirely clear on this point. (See ECF

No. 31, PageID #1067–68.) During the preliminary injunction hearing, Ms. Blasko

testified that Lake-Geauga Recovery Centers purchased the property for Twelve

Meadows out of the organization’s reserve funds and that grants may replenish those

funds. (ECF No. 30, PageID #845, 883.)

Danielle Gray, Executive Director of Ohio Recovery Housing, the Ohio affiliate

for the National Alliance of Recovery Residences, testified that Twelve Meadows

received certification as a Level II recovery house through 2022 and that she

participated in that certification effort. (Id., PageID #774, 788.) Although certified,

Twelve Meadows does not have a license from the State of Ohio to operate as a

residential facility for persons with disabilities. (ECF No. 19-3; PageID #321.)

A. Background on Munson Township’s Zoning Resolution

Twelve Meadows sits within an area of Munson Township zoned R-1, for use

as single-family homes. (ECF No. 1, ¶ 44, PageID #12.) Under Section 401 of the

Munson Township Zoning Resolution, that classification aims for a density of one

residential lot per two-and-a-half acres. (ECF No. 19-1, PageID #251.) As relevant

here, an R-1 classification permits (a) one single-family dwelling, (b) a licensed

residential facility as defined in Section 5123.19 of the Ohio Revised Code (relating

to developmental disabilities), which allows three to sixteen adults, and (c) a type-B

family day care and home as defined elsewhere in the zoning resolution. (Id.)

Additionally, Munson Township defines a family for zoning purposes as two

adults “though not related by blood, adoption, guardianship or marriage.” (Id., ¶ 46,

PageID #12.) The applicable zoning law defines a family as:

one (1) or more persons related by blood, adoption, guardianship or

marriage, living and cooking together as a single housekeeping unit,

exclusive of live-in hired employees. A number of adult persons not

exceeding two (2) living and cooking together as a single housekeeping

unit though not related by blood, adoption, guardianship or marriage

shall also be deemed to constitute a family, exclusive of live-in hired

employees. A family shall not include any society, club, fraternity,

sorority, association, lodge, federation, coterie, or a like organization;

any group of individuals whose association is temporary or seasonal in

nature; and any group of individuals who are in a group living

arrangement as a result of criminal offenses.

(ECF 19-1, PageID #250.) Under this definition of family, Twelve Meadows may not

have more than two unrelated adults living there, plus the live-in house manager.

(ECF No. 31, PageID #1026-27.) This limitation forms the crux of the dispute

between the parties.

B. Plaintiffs’ Efforts to Obtain an Accommodation

In October 2019, after purchasing Twelve Meadows, Ms. Blasko received a

letter from James Herringshaw, the zoning inspector for Munson Township, advising

that the organization needed to apply for a zoning certificate. (ECF No. 1., ¶ 58,

PageID #15; Ex. 9.)

On November 1, 2019, Ms. Blasko called Mr. Herringshaw regarding the letter.

(ECF No. 19-3, PageID #320.) After a meeting and some additional communication

back and forth (see, e.g., ECF No. 30, PageID #946; Ex. 10), Lake-Geauga Recovery

Centers applied on December 23, 2019 for a zoning certificate for Twelve Meadows

(ECF No. 1., ¶ 62, PageID #16; Ex. 11). Mr. Herringshaw denied the application the

same day (though he dated it later). (Id., ¶ 63, PageID #16; Ex. 12; ECF No. 30,

PageID #996.) On Mr. Herringshaw’s advice, Ms. Blasko appealed the denial by

seeking a variance, also on December 23, 2019. (Id., ¶ 67, PageID #17; Ex. 13; ECF

No. 30, PageID #865, 867.) She did so on a form titled both notice of appeal and

variance request, which Mr. Herringshaw handed to Ms. Blasko. (Ex. 13; ECF

No. 30, PageID #868.)

As Munson Township and Lake-Geauga Recovery Centers sparred over the

zoning for Twelve Meadows, Plaintiff Fair Housing Resource Center, Inc. got involved

in the dispute. (Id., ¶ 83, PageID #21.) Fair Housing Resource Center engages in

education and advocacy to promote fair housing in Lake, Geauga, and Ashtabula

counties. (Id., ¶ 4, PageID #3; ECF No. 30, PageID #738–39, 755.) The organization

opened an investigation. (Id., ¶ 85, PageID #21.) It also provided assistance and

resources to Lake-Geauga Recovery Centers to assist in addressing issues that might

arise in a community forum. (Id., ¶ 87; ECF No. 30, PageID #746–47.)

C. Proceedings at the Board of Zoning Appeals

Following a public hearing on the request for a zoning variance for Twelve

Meadows in July 2020, the Munson Township Board of Zoning Appeals voted

unanimously to deny Lake-Geauga Recovery Centers a variance to operate Twelve

Meadows. (Id., ¶ 99, PageID #25.) Fair Housing Resource Center participated in the

hearing. (Id., ¶ 95, PageID #23; ECF No. 30, PageID #747.)

At the request of the parties (ECF No. 31, PageID #1015), the Court reviewed

a video of the hearing, which lasted more than four hours. During the hearing,

several residents of Munson Township expressed opposition to Twelve Meadows

operating in their community. They raised concerns regarding sewer runoff, traffic,

and property values, as well as safety based on stereotypes of people recovering from

drug or alcohol addiction. After the Board heard from residents, they took a brief

recess to confer privately among themselves to decide whether they would grant the

variance. Plaintiffs argue that this private meeting violated Ohio’s Open Meetings

Act, though they have not asserted a separate legal claim to that effect in this

proceeding—and the Court expresses no opinion on that argument. (ECF No. 16;

PageID #193.)

The parties contend that the other side misbehaved at the hearing—each side

claims the other engaged in aggressive exchanges marked by frequent interruptions.

(See, e.g., ECF No. 30, PageID #748–49, 872–73, 891.) Based on its review of the

video of the hearing, the Court finds that Dennis Pilawa, the Chair of the Board, and

Patricia Kidd, the executive director of Fair Housing Resource Center, engaged in a

heated exchange, with each interrupting the other and demonstrating frustration

with the variance process. Further, tensions ran high among members of the public

who expressed opposition to the variance. Beyond that, however, and in the context

of a public forum on a matter of local controversy, the Court finds the parties’

respective representations and contentions about the behavior of the other side

excessive. Notably, in denying Plaintiffs’ request for an accommodation to allow

Twelve Meadows to operate with five adult female residents as intended, Mr. Pilawa

expressed his belief that the Board was being asked to find that the Township’s

zoning resolution was discriminatory on its face, which, in the Board’s view, was the

province of the courts and beyond the Board’s authority.

In the run up to the hearing, yard signs began appearing in Munson Township

opposing Twelve Meadows. (Ex. 1, 00045, 00046 & 00047.) In addition to appearing

in the Township, a large sign opposing a variance was put up directly across from

Twelve Meadows. (Id.; ECF No. 30, PageID #814.) Further, a neighbor placed a video

surveillance camera directed at Twelve Meadows. (Ex. 1, 00048; ECF No. 30, PageID

#814.)

Since the hearing, Lake-Geauga Recovery Services has used Twelve Meadows

consistent with the applicable zoning provisions. For a time, the organization had

two adult women living there along with the live-in house manager. (ECF No. 30,

PageID #839.) Within the last two months, however, the women have moved out,

leaving only the house manager. (Id., PageID #822.) Ms. Blasko explained that

prospective residents do not want to live at Twelve Meadows because they feel

unwelcome in Munson Township and that word has spread in the recovery

community of the Township’s handling of the situation. (Id., PageID #838, 881.)

Based on her decades of experience working with local communities in providing

addiction and recovery services, Ms. Blasko testified that this problematic reputation

will abate over time as Twelve Meadows operates successfully without incident. (Id.,

PageID #895–96; see also id., PageID #856–60.) The Court finds that testimony

reliable and credible.

STATEMENT OF THE CASE

Plaintiffs filed suit against Munson Township, the five members of its board of

zoning appeals, and its zoning inspector. (ECF No. 1., ¶¶ 15-21, PageID #5–6.)

Broadly, Plaintiffs maintain that federal and State law require Defendants to allow

Lake-Geauga Recovery Centers to operate Twelve Meadows as a sober living facility

notwithstanding its local zoning laws. (Id., ¶ 7, PageID #4.) Specifically, Plaintiffs

assert claims under: (1) the Fair Housing Act; (2) the Americans with Disabilities

Act; (3) the Rehabilitation Act; and (4) Chapter 4112 of the Ohio Revised Code.

Plaintiffs seek a preliminary injunction, which Defendants oppose. (Id., ¶¶ 111–34;

PageID #27–32.)

The Court held a hearing on the motion for a preliminary injunction on March

9, 2021. (Minutes of Proceedings, Mar. 10, 2021; ECF No. 30.) The Court heard

testimony from the following fact witnesses: James Gillette, Patricia Kidd, Rosemary

Scribben, Melanie Blasko, and Jim Herringshaw. Danielle Gray testified as an expert

for Plaintiffs. Dr. Kevin Trangle testified as an expert witness for Defendants. The

Court also admitted the testimony of Dr. John Majer, which was previously recorded

and submitted to the Court. (See ECF No. 28.)

Further, the Court admitted Plaintiffs’ Exhibits 2 through 31, including

Exhibit 30A. The exhibits included excerpts of the Munson Township Zoning

Resolution, correspondence between the parties, the applications and appeals

Plaintiffs filed with Munson Township, expert reports, and the transcript of the

hearing of the Munson Township Board of Zoning Appeals from July 29, 2020 (which

was submitted as part of Exhibit 1). As mentioned, the Court also reviewed the video

of the hearing at the board of zoning appeals. With respect to Plaintiffs’ Exhibit 1,

the Court considered pages 39 through 48, which were discussed during the

testimony. Finally, on March 10, 2021, the Court heard closing arguments from

counsel. (Minutes of Proceedings, Mar. 10, 2021; ECF No. 31.)

JURISDICTION

Because of the limited jurisdiction of the federal courts, the Court has an

independent obligation to examine its own jurisdiction to ensure it has the authority

to proceed. See, e.g., Nikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017) (citations and

quotations omitted). Standing presents a “threshold determinant[] of the propriety

of judicial intervention.” Warth v. Seldin, 422 U.S. 490, 517–18 (1975). An

organization may have standing to assert claims directly on its own behalf or as the

representative of its members. Id. at 511.

I. Article III Standing

“[A]t an irreducible minimum, Article III requires the party who invokes the

court’s authority to show that he personally has suffered some actual or threatened

injury as a result of the putatively illegal conduct of the defendant” and that “the

injury fairly can be traced to the challenged action and is likely to be redressed by a

favorable decision.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 542 (1986)

(cleaned up). As the parties invoking federal jurisdiction, Plaintiffs have the burden

of showing that they have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992).

In this case, Lake-Geauga Recovery Centers claims it will not receive the

$334,561 in grant money if it cannot provide housing for five women at Twelve

Meadows. (ECF No. 16, PageID #183.) At the hearing, the evidence on this point

was more equivocal. (ECF No. 30, PageID #845, 883.) Given that testimony, the

Court does not base its determination of standing for Lake-Geauga Recovery Services

on that financial consideration. But the organization has sustained some financial

loss (unrelated to the grant) that suffices to confer standing on its own behalf.

Also, the organization argues that, as a result of Defendants’ actions, it has

had to forego operating Twelve Meadows as a sober living home for five women as

planned, which has frustrated its mission to provide support to persons recovering

from addiction. (ECF No. 1, PageID #25; ECF No. 30, PageID #822, 839.) More

important than the financial consequences to it, Lake-Geauga Recovery Centers

claims the loss to “five recovering women of a solid and structured support system to

maintain sobriety” if it cannot operate Twelve Meadows constitutes a redressable

injury. (ECF No. 16, PageID #183–84.) These injuries suffice to confer

representational standing on Lake-Geauga Recovery Centers under Article III.

Turning to the Fair Housing Resource Center, the organization claims injury

from the investigation it opened into the dispute between Lake-Geauga Recovery

Centers and Munson Township and the pre-litigation assistance it provided to Lake-

Geauga Recovery Centers to address issues that might arise at a community forum.

(ECF No. 1, ¶¶ 85, 87, PageID #21.) Additionally, the organization avers that, absent

Defendants’ allegedly discriminatory conduct, it would have devoted its scarce time

and resources to other activities. (Id., ¶ 105, 108, PageID #26.)

In many respects, this claimed injury has the feel of manufactured standing—

that Fair Housing Resource Center has standing because, consistent with its mission,

it wishes to litigate this dispute along with Lake-Geauga Recovery Centers, the real

party in interest. But the Sixth Circuit follows a more forgiving path when assessing

standing. For a housing organization at least, costs relating to pre-litigation

investigation and the sorts of activities in which Fair Housing Resource Center

engaged can form the basis for standing. See Miami Valley Fair Hous. Ctr., Inc. v.

Connor Grp., 725 F.3d 571, 577 (6th Cir. 2013); Fair Hous. Council, Inc. v. Village of

Olde St. Andrews, 210 F. App'x 469, 475 (6th Cir. 2006) (citations omitted). Therefore,

the Court concludes that Fair Housing Resource Center has standing.

II. Prudential Standing

Beyond the demands of Article III, prudential considerations may bar a person

or entity from asserting claims on behalf of others. Warth, 422 U.S. at 500–01.

“[E]ven when the plaintiff has alleged injury sufficient to meet the ‘case or

controversy’ requirement, . . . the plaintiff generally must assert his own legal rights

and interests, and cannot rest his claim to relief on the legal rights or interests of

third parties.” Id. at 499 (citations omitted). This doctrine serves to restrain the

exercise of a federal court’s jurisdiction where other institutions may have greater

competence to address the questions presented and judicial intervention may not be

necessary to protect individual rights. Id. at 500.

Here, the Court determines that prudential considerations do not limit the

exercise of its jurisdiction with respect to the claims Lake-Geauga Recovery Centers

advances. Again, the circumstances involving the Fair Housing Resource Center

present a closer question. Because of the broad mission of the Fair Housing Resource

Center and the frequency with which the organization participates in litigation, its

claims have the feel of the sort of generalized grievances the prudential standing

doctrine seeks to redress. Given the approach the Sixth Circuit takes to standing

more broadly, however, the Court determines that principles of prudential standing

do not limit Fair Housing Resource Center’s involvement in this case.

ANALYSIS

When a party seeks a preliminary injunction, a district court balances the

following factors: (1) the movant’s likelihood of success on the merits; (2) whether the

movant would suffer irreparable injury without an injunction; (3) whether the

injunction would cause “substantial harm” to others; and (4) whether the public

interest is served. See Wilson v. Williams, 961 F.3d 829, 836 (6th Cir. 2020); see also

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). As the movants,

Plaintiffs bear “the burden of justifying such relief.” Wilson, 961 F.3d at 837 (citing

American Civ. Liberties Union Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 642

(6th Cir. 2015)).

I. Likelihood of Success on the Merits

The Court addresses the merits of each of Plaintiffs’ claims to assess the

likelihood of success on each. Additionally, although cases interpreting and applying

various fair housing statutes tend to analyze them together, the Court does not favor

such an approach because each statute serves a different purpose and uses different

language to effect its purpose. Accordingly, the Court addresses the likelihood of

success on the merits of each statute in turn. The Court does so mindful that the

parties have preserved their right to a jury trial on the various claims at issue.

I.A. The Fair Housing Act

Under the Fair Housing Act, it is unlawful to discriminate in the terms and

conditions of housing because of a handicap of any person residing in a dwelling or

associated with such a person. See generally 42 U.S.C. § 3604(f). Under the Act,

municipalities must make reasonable accommodations to those with handicaps in

their municipal zoning practices. Id. § 3604(f)(3)(B); Howard v. City of Beavercreek,

276 F.3d 802, 806 (6th Cir. 2002) (citations omitted). Plaintiffs allege numerous

violations of this statute and argue that Defendants’ conduct discriminates against

handicapped persons by effectively making Twelve Meadows unavailable to women

as a sober-living environment as they live with addiction or by limiting the number

of women the organization may serve at Twelve Meadows.

But the statute expressly excludes those struggling with addiction to illegal

drugs. The Fair Housing Act defines a handicap not to include “current, illegal use

of or addiction to a controlled substance.” 42 U.S.C. § 3602(h). The residents of

Twelve Meadows, as persons actively recovering from drug and/or alcohol addiction,

likely fall within this exclusion from the Fair Housing Act. In their various briefs,

Plaintiffs cite no controlling authority that the Fair Housing Act applies,

notwithstanding the express statutory exclusion Congress enacted. In the Court’s

view, the authorities on which Plaintiffs rely argument either conflate the analysis

under the Fair Housing Act with the coverage of other statutes or fail at the task of

reading the plain language of the statute. Therefore, the Court determines that

Plaintiffs have not demonstrated a likelihood of success on the merits of their claims

under the Fair Housing Act.

I.B. The Rehabilitation Act

Plaintiffs claim that Defendants, as recipients of federal funding,

discriminated against them in violation Section 504 of the Rehabilitation Act. In

relevant part, the statute provides:

No otherwise qualified individual with a disability in the United States, as

defined in section 705(20) of this title, shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted by any

Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a). Under the statute, the term “program or activity” means

(A) a department, agency, special purpose district, or other

instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such

assistance and each such department or agency (and each other

State or local government entity) to which the assistance is

extended, in the case of assistance to a State or local government.

29 U.S.C. § 794(b)(1).

Plaintiffs maintain that Munson Township is a sub-recipient of a federal grant

from the Environmental Protection Agency to the State of Ohio, subjecting the

political subdivision to Section 504’s non-discrimination provision. (ECF No. 16,

PageID #206.) On the face of the statute, however, the prohibition against

discrimination in Section 504 extends to participation in, denial of benefits of,

discrimination “under any program or activity.” Use of the word “under” limits the

reach of the Rehabilitation Act. In other words, to avail themselves of the statute,

Plaintiffs would have to show that the alleged disability discrimination at issue arises

in connection with the federal grant Munson Township received. Similarly,

subsections (A) and (B) confirm that Section 504 reaches only the particular program

receiving federal funds. No evidence before the Court ties Twelve Meadows to any

particular federal grant funds Section 504 covers.

Without any nexus between the grant Plaintiffs identify and the

discrimination they allege, Plaintiffs effectively argue that taking any amount of

federal money opens up all of a local government’s programs and activities to

Section 504 of the Rehabilitation Act. This reading of the statute sweeps too far. It

also ignores Sixth Circuit precedent, under which the relevant program must receive

federal funds to fall within Section 504. Doherty v. Southern Coll. of Optometry, 862

F.2d 570, 573 (6th Cir. 1988). Because Plaintiffs fail to make any showing tying

federal assistance to the particular discrimination they allege, they are not likely to

succeed on this claim.

I.C. The Americans with Disabilities Act

Title II of the Americans with Disabilities Act 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.

Under the ADA, a “disability” means “a physical or mental impairment that

substantially limits one or more of the major life activities.” Id. § 12102(1)(A).

Further, drug addiction and alcoholism are “impairments” under the ADA. See MX

Group, Inc., 292 F.3d 326, 336 (6th Cir. 2002) (citing Regional Econ. Cmty. Action

Program, Inc. v. City of Middletown, 281 F.3d 333, 344 (2d Cir. 2002)). And the text

of the statute contemplates that the ADA protects individuals participating in drug

rehabilitation programs, who are no longer using drugs. 42 U.S.C. § 12210(b).

Plaintiffs maintain that Defendants violated the ADA by intentionally discriminating

and by failing to make reasonable accommodations for their clientele, whom the ADA

defines as disabled. The Court considers each theory of liability in turn.

I.C.1. Intentional Discrimination

To establish a prima facie case of intentional discrimination under Title II of

the ADA, a plaintiff must show that: (1) she has a disability; (2) she is otherwise

qualified; and (3) she was excluded from participation in, denied the benefits of, or

subjected to discrimination under the program because of her disability. Anderson v.

City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015) (citation omitted). That is, the

plaintiff must show that the defendant took action because of the plaintiff’s

disability—in other words, the “[p]laintiff must present evidence that animus against

the protected group was a significant factor in the position taken by the municipal

decision-makers themselves or by those to whom the decision-makers were knowingly

responsive.” Id. Once a plaintiff makes a prima facie case of discrimination, the

burden shifts to the defendant to demonstrate a legitimate, nondiscriminatory reason

for its challenged action. Id. If the defendant demonstrates such a reason, the

plaintiff must then present evidence allowing a jury to find that the defendant’s

explanation is a pretext for unlawful discrimination. Id.

I.C.1.a. Prima Facie Case

Plaintiffs claim Defendants intentionally discriminated against them in

violation of the ADA by (1) enforcing the zoning resolution’s definition of “family,”

which Plaintiffs argue is discriminatory on its face because it does not permit more

than two unrelated adults with a disability to live together in the R-1 District; (2)

requiring Lake-Geauga Recovery Centers to obtain a zoning certificate and then

denying the application for the certificate; (3) instructing Lake-Geauga Recovery

Centers to file a “Notice of Appeal Variance Request” form instead of instructing it to

file a different form appealing the decision of the zoning inspector; (4) subjecting

Lake-Geauga Recovery Centers to a “discriminatory and unnecessary” hearing before

the board of zoning appeals; (5) ignoring Lake-Geauga Recovery Centers’ request to

overturn the interpretation of the zoning resolution the zoning inspector,

Mr. Herringshaw; (6) refusing to consider Lake-Geauga Recovery Centers’ request

that it treat the hearing before the board of zoning appeals as an appeal of

Mr. Herringshaw’s decision to refuse a reasonable accommodation; and (7) holding

two illegal public meetings in violation of Ohio’s Open Meetings Act. (ECF No. 16,

PageID #204–05.)

On Plaintiffs’ first argument (ECF No. 16, PageID #201; ECF No. 22, PageID

#399), Defendants counter that the zoning resolution only states that no more than

two unrelated adults may live together and that the zoning resolution does not

mention disability at all (ECF No. 19, PageID #234). Therefore, Defendants argue,

the zoning resolution does not discriminate on its face. The Court agrees. The zoning

resolution’s definition of “family” precludes groups of three or more unrelated adults

from living together—regardless of whether they include those with disabilities or

not. (ECF No. 19-1, PageID #250.) Federal courts have found that zoning ordinances

which do not specifically exclude protected classes of citizens are not discriminatory

on their face. See 431 E. Palisade Ave. Real Estate, LLC v. City of Englewood, 977

F.3d 277, 285 (3d Cir. 2020).

As for Plaintiffs’ other arguments (ECF No. 16, PageID #199), Defendants

point out that they took neutral, generally applicable procedural steps to process and

handle Plaintiffs’ zoning requests, as they have in other cases not involving those the

law treats as disabled. (ECF No. 19, PageID #236.) While the record of the hearing

in July 2020 reveals that some Munson Township residents expressed opposition to

having persons with disabilities reside at Twelve Meadows, Plaintiffs point to no such

statements or behavior on the part of Defendants. That is, based on the evidence and

the record before the Court, Plaintiffs are unlikely to prevail on their claim of facial

discrimination because they will likely not carry their burden of establishing

discrimination because of disability, as they must as part of their prima facie case.

I.C.1.b. Non-Discriminatory Justification and Pretext

Because Plaintiffs fail to show they are likely to succeed on threshold elements

of their prima facie case to support their discrimination claim, the Court need not

proceed through the balance of the analysis. However, the Court briefly addresses

one other aspect of Plaintiffs’ evidence and argument. While the record supports

Plaintiffs’ contention that several, perhaps many, Munson Township residents voiced

opposition to Twelve Meadows, there is no evidence that members of the board of

zoning appeals expressed animus in making their decision or harbored any of their

own. Nor does the record contain evidence that any other official acted on any such

animus. In the absence of such evidence, the Court determines that Plaintiffs have

not met their burden of demonstrating they are likely to succeed in showing that

Defendants intentionally discriminated against them in violation of the ADA.

I.C.2. Reasonable Accommodation

Plaintiffs also argue Defendants violated the ADA by failing to make

reasonable accommodations in the Munson Township zoning resolution that were

necessary to avoid discrimination against persons with disabilities. (ECF No. 16,

PageID #200–01.) Under the regulations interpreting Title II, “[a] public entity shall

make reasonable modifications in policies, practices, or procedures when the

modification is necessary to avoid discrimination on the basis of disability, unless the

public entity can demonstrate that making the modifications would fundamentally

alter the nature of the service, program or activity.” 28 C.F.R. § 35.130(b)(7).

Therefore, an accommodation on the part of the entity only needs to be “reasonable.”

Johnson v. City of Saline, 151 F.3d 564, 571 (6th Cir. 1998).

“[A]n accommodation is reasonable unless it requires ‘a fundamental alteration

in the nature of a program’ or imposes ‘undue financial and administrative burdens.’”

Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996) (quoting

Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979)).

Additionally, cost to the defendant and benefit to the plaintiff merit consideration.

Id. (citing Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)). Overall,

reasonableness balances the needs of the parties. United States v. Village of Palatine,

Ill., 37 F.3d 1230, 1234 (7th Cir. 1994). “[A]t a minimum [proving necessity requires

a] showing that the desired accommodation will affirmatively enhance a disabled

plaintiff’s quality of life by ameliorating the effects of the disability.” Id. (quoting

Bronk, 54 F.3d at 429.)

I.C.2.a. Reasonable Accommodation

Plaintiffs argue that their requested accommodation—allowing up to five

unrelated women living in the same home—is reasonable because it does not impose

an undue financial or administrative burden on Munson Township. (ECF No. 16,

PageID #201–02.) Courts, including the Sixth Circuit, accept that exceptions or

variances to local zoning ordinances may be a reasonable accommodation. They

articulate this principle most clearly in cases arising under the Fair Housing Act.

See, e.g., Smith & Lee Assocs., 13 F.3d 920, 924 (6th Cir. 1993) (noting that courts

have found that the reasonable accommodation provision in the Fair Housing

Amendments Act applies to municipal zoning variance procedures); see also Oxford

House-Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1344 (D.N.J. 1991) (holding

that, on a preliminary injunction motion, a municipality’s refusal to grant zoning

approval for congregate living home despite zoning for single-family residence likely

violated the Fair Housing Act). Because courts frequently treat claims under the Fair

Housing Act and the ADA together, it is likely the Sixth Circuit would apply this

same analysis to requests for accommodations under the ADA. The Court, at least,

has located no authority to the contrary. Indeed, even as they argued that Plaintiffs’

requested accommodation is neither reasonable nor necessary, Defendants conceded

at the hearing that exceptions to zoning ordinances can be a reasonable

accommodation. (ECF No. 31, PageID #1036–37.)

Under Munson Township’s zoning laws, five unrelated persons may live

together in an R-1 zoning district if they do so in a licensed residential facility.

Further, the record shows that until recently three unrelated people resided at

Twelve Meadows, including two recovering from addiction and one house manager.

It is doubtful that two additional residents at Twelve Meadows pose an undue

financial, administrative, or resource burden to Munson Township, neighbors, or the

surrounding community. Based on these facts and the record before the Court,

Plaintiffs are likely to prevail in carrying their burden that their proposed

accommodation is reasonable.

I.C.2.b. Necessary Accommodation

Plaintiffs also argue their requested accommodation is “necessary” to ensure

that the prospective residents of Twelve Meadows “have the right to choose to live in

single-family neighborhoods in Munson Township and are not excluded from the

American mainstream.” (Id., PageID #202.) In response, Defendants point to the

fact that Twelve Meadows is already home to two persons and argue that Plaintiffs

have not met their burden of showing that the prospective residents of Twelve

Meadows may “only successfully recover if they reside within a Level II Recovery

House, or that they may only successfully recover living with three other occupants

as opposed to one other occupant.” (ECF No. 19, PageID #239.)

But Plaintiffs are not required to show that the prospective residents of Twelve

Meadows must live with a particular number of other recovering addicts to meet the

“necessary” requirement under Sixth Circuit law. Rather, this element is satisfied

where a plaintiff shows that “but for the accommodation, [the disabled person] likely

will be denied an equal opportunity to enjoy the housing of their choice.” Howard v.

City of Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002) (analyzing necessity under the

Fair Housing Act). The record reflects that but for Plaintiffs’ requested

accommodation, prospective residents of Twelve Meadows will be denied an

opportunity to enjoy the housing of their choice.

During the hearing, each side presented testimony and evidence regarding the

necessity of Plaintiffs’ requested accommodation under federal law. In many

respects, the parties’ respective positions involve a battle of the experts.

i.

Plaintiffs rely on the testimony of Dr. John Majer. Although he did not testify

at the hearing, Plaintiffs submitted his testimony by video, which the Court reviewed.

Dr. Majer is a licensed clinical psychologist with over 25 years of experience working

with persons with mental health and addiction issues. (ECF No. 25-1, PageID

#567–71.) Much if not all of his experience comes from so-called Oxford Houses,

congregate living homes located in residential communities that provide sober living

and other recovery environments throughout the United States and Canada. (ECF

No. 25, PageID #508.) In Dr. Majer’s opinion, there is a particular need in society for

“recovery house living” among women with substances abuse disorders. (Id., PageID

#494.) He cited evidence “to support the notion that increases in the number of

residents is necessary to achieve therapeutic outcomes in recovery homes” and that

to achieve such benefits, Twelve Meadows “should be permitted to house 6 residents.”

(ECF No. 25-2, PageID #599.)

For their part, Defendants presented the testimony of Dr. Kevin Trangle, a

licensed physician with a private medical practice in addiction medicine, among other

things. (ECF No. 30, PageID #899.) He is board certified in occupational medicine

and has experience working with various companies to establish drug-free workplace

policies and procedures. (Id., PageID #900–01.) Also, he also owns a recovery house

and previously served as the medical director of other recovery homes. (Id., PageID

#902.) Dr. Trangle opined that, although he is a proponent of recovery housing in

general, Twelve Meadows can be successful with only two individuals and a house

manager residing there. (Id., PageID #234.) Dr. Trangle also testified that there is

no “magic number” of residents that would make Twelve Meadows more or less

successful in assisting people with substance abuse disorders. (Id., PageID #916.)

On the whole, the Court discounts the competing testimony of both Dr. Majer

and Dr. Trangle. They are litigation experts, hired to give their respective opinions,

so the Court takes the testimony of each with a grain of salt. Further, neither were

particularly familiar with Twelve Meadows. In fact, there is no evidence either has

visited Twelve Meadows or done much to give opinions grounded in the particular

facts and circumstances of this case beyond what the respective party who retained

each preferred.

ii.

Additionally, Plaintiffs rely on the testimony of Danielle Gray. Ms. Gray has

a master’s degree in public health, is certified in public health by the National Board

of Public Health Examiners, and has served as the executive director of Ohio

Recovery Housing since 2017, the Ohio affiliate of the National Alliance of Recovery

Residences. (Id., PageID #764, 766.) In her current role, Ms. Gray implements

nationally recognized standards for recovery homes and with the Ohio Department

of Mental Health and Addiction Services drafted the procedures and guidelines to

implement those national standards in Ohio; occasionally, she advises in other States

on those standards as well. (Id., PageID #766–67, 770.) Further, she participated in

certification of Twelve Meadows according to those standards. (Id., PageID #774.)

Based on her experience and knowledge of recovery resources throughout the

State, Ms. Gray testified that “there is a need for recovery housing in the State of

Ohio and Geauga County and Munson Township.” (Id., PageID #781.) Further, she

opined that the proposed size for Twelve Meadows, a house manager and five adult

women, was necessary. (Id., PageID #783.) On cross-examination, while Ms. Gray

acknowledged there are no hard and fast numbers for the size of facilities to improve

the success rate for a sober-living residence like Twelve Meadows, she remained

consistent that there are no such facilities in Ohio with just two residents. (Id.,

PageID #785.) In fact, in her professional experience, she has not seen a recovery

residence with just two residents and a house manager. (Id.)

Based on her knowledge and experience, the Court credits Ms. Gray’s

testimony above that of the other experts the parties proffered and finds it credible

and persuasive. Notwithstanding what may appear, at first blush, to be

contradictions with the opinions of Dr. Trangle, his testimony endorses Plaintiffs’

position in key respects. First, Dr. Trangle acknowledged the importance of having

as many people treated through recovery housing as possible. (Id., PageID #906.)

Although Dr. Trangle testified that recovery housing is a small portion of the solution

to addiction, and that Twelve Meadows alone will not solve the problem of treating

persons in recovery, this argument has no bearing on the specific dispute. Nor does

it provide a permissible basis on which to deny an otherwise reasonable and

necessary accommodation.

Second, Dr. Trangle testified that a larger facility will necessarily have more

challenges (id., PageID #244), but that testimony related to the size of some other

Lake-Geauga recovery homes that house as many as 16 people (Ex. 27). Despite that

opinion, Dr. Trangle testified that Lake-Geauga Recovery Centers does a good job of

providing a variety of treatment options. (Id., PageID #907.) Overall, this opinion

supports a facility of the size proposed for Twelve Meadows.

* * *

Taking the testimony of these competing experts together, Plaintiffs are likely

to succeed on their claim that the requested accommodation is necessary. Ms. Gray

testified that there is not just a general need, but one that is geographically

particularized. She provides this opinion based on her experience with recovery

houses throughout Ohio (and other States) but also on her familiarity with the

proposed service area and Twelve Meadows in particular. Indeed, the record

establishes that recovery houses of the size Defendants are prepared to allow under

their zoning resolution do not appear to exist in the State of Ohio.

I.D. Section 4112.02(H) of the Ohio Revised Code

In addition to their federal causes of action, Plaintiffs bring a claim under

Section 4112.02(H) of the Ohio Revised Code, alleging Defendants failed to provide

Plaintiffs a reasonable accommodation under Ohio law. “Disability,” as used in

Chapter 4112, means “a physical or mental impairment that substantially limits one

or more major life activities, including the functions of caring for one’s self,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working; a record of a physical or mental impairment, or being regarded as

having a physical or mental impairment.” Ohio Rev. Code § 4112.01(A)(15). Under

Ohio law, drug or alcohol addiction constitutes a “physical or mental impairment”

qualifying as a disability. Ohio Rev. Code §§ 4112.01(A)(13) & 4112.01(A)(16)(a)(iii).

When interpreting this statute, the Ohio Supreme Court looks to federal

regulations and case law interpreting the ADA. City of Columbus Civil Serv. Comm’n

v. McGlone, 82 Ohio St. 3d 569, 573, 1998-Ohio-410, 697 N.E.2d 204, 206. Indeed,

Defendants acknowledge that courts within the Sixth Circuit apply the same

standard to reasonable accommodations claims made under the ADA and

Section 4112.02(H). (ECF No. 19, PageID #238.) Because Plaintiffs’ claim under

State law involves the same set of facts and circumstances that give rise to their

reasonable accommodation claim under the ADA, the Court’s analysis of this claim

mirrors that under the ADA, and there is no reason to reach a different result

regarding this claim under Ohio law.

II. Irreparable Harm

Plaintiffs argue they need not demonstrate irreparable harm because federal

courts routinely presume irreparable harm upon a demonstration of likelihood of

success on the merits in a housing and civil rights case such as this. For this

proposition, Plaintiffs rely on several cases from other Circuits. (ECF No. 16, PageID

#210.) Many, but not all, of these claims involve claims of race discrimination under

the Fair Housing Act. See, e.g., Gresham v. Windrush Partners, Ltd., 730 F.2d 1417,

1423 (11th Cir. 1984). Although other district courts within the Sixth Circuit have

followed this line of cases, the Sixth Circuit has not adopted this presumption, and

the Court declines to do so on the facts presented.

Further, Plaintiffs maintain that they need not show irreparable harm because

the statutes at issue provide for injunctive relief and, in such circumstances,

“irreparable injury need not be shown.” (ECF No. 16, PageID #16.) For this

proposition, Plaintiffs cite Jordan v. Greater Dayton Premier Management, 9 F. Supp.

3d 847, 862 (S.D. Ohio 2014), involving a claim of housing discrimination brought by

a blind person under the Fair Housing Act, the ADA, and the Rehabilitation Act. In

turn, the Jordan Court relied on Illinois Bell Telephone Co. v. Illinois Commerce

Commission, 740 F.2d 566, 571 (7th Cir. 1984), where the court affirmed the issuance

of an injunction enforcing compliance with an order of the Federal Communications

Commission and allowing an intrastate rate increase to take effect. The Sixth Circuit

has not adopted this approach to injunctions. See United States v. Edward Rose &

Sons, 384 F.3d 258, 264 (6th Cir. 2004). Therefore, the Court will not presume

irreparable harm based on the statutory availability of injunctive relief.

For irreparable injury, Plaintiffs point in briefing to Lake-Geauga Recovery

Centers’ potential loss of a significant grant if they are unable to operate Twelve

Meadows as proposed. This loss of funding will prevent the organization from

acquiring and operating Twelve Meadows. (ECF No. 16, PageID #212.) At this point,

the record regarding the availability of the grant and its potential loss is somewhat

muddy. Whatever the case, this sort of financial harm presents the sort of injury

traditionally redressed with an award of money damages after a finding of liability.

See, e.g., National Viatical Inc. v. Universal Settlements Int’l, 716 F.3d 952, 957 (6th

Cir. 2013). The Court finds that this claimed loss of grant funding, should it come to

pass, may be compensated within the meaning of the law through an award of

damages.

But that shifts the focus to what may be the real harm from this dispute.

Instead of providing a sober living facility for five women at Twelve Meadows,

Lake-Geauga Recovery Centers presently can serve only two. Plaintiffs point out that

such harm is not compensable. (ECF No. 16, PageID #212.) Defendants counter that

no person will actually lose housing absent a preliminary injunction because no

women recovering from addiction currently reside at Twelve Meadows other than the

house manager. Further, Defendants argue that Munson Township’s zoning allows

two recovering women to reside at Twelve Meadows with the house manager. (ECF

No. 19, PageID #244–45.) On balance the Court agrees with Plaintiffs that the lost

opportunity to provide a sober living environment for up to five women—and three

additional women beyond the two allowed—in an already under-served demographic

in an area with a demonstrated need for such services constitutes an irreparable

injury. Therefore, the Court finds that Plaintiffs sufficiently demonstrated

irreparable harm in the absence of an injunction.

III. Substantial Harm to Others and the Public Interest

Defendants concede that residences designed for people recovering from drug

and/or alcohol addiction, otherwise known as Level II recovery residences, are

permitted in Munson Township’s R-1 zoning district—just not in the numbers

Plaintiffs prefer—and argue their zoning laws constitute reasonable regulations.

(ECF No. 19, PageID #245.) Further, they point to those zoning laws and their

application as written as advancing the public interest. (Id., PageID #236.)

Defendants justify application of the zoning laws by seeking to ensure utility service

and by appealing to the general police power. (Id., PageID #247.)

Although Defendants and the general public have an interest in enforcement

of the law, this dispute requires resolving which applicable law must yield to the other

when in conflict, the local zoning laws or the ADA. According to the record, the

rationale for upholding the limitation of the local zoning laws based on utility usage

presents little public interest or substantial harm based on these facts, particularly

because Level II facilities may operate within the same zoning classification.

Further, Defendants fail to demonstrate how these same concerns do not apply to

families of five or more who live in Munson Township. In the Court’s view, Plaintiffs

have shown that considerations of the public interest and harm to others tilt in their

favor. Finally, Plaintiffs also demonstrated that the public interest would be better

served if more residents of Lake and Geauga Counties recovering from alcohol and/or

drug addiction had the opportunity for a sober living environment, for which there is

a critical and demonstrated need.

BALANCING THE EQUITIES

Based on the foregoing analysis, the Court turns to balancing the

considerations for issuance of a preliminary injunction. Plaintiffs have shown they

are likely to succeed on the merits on their claim under the ADA and the parallel

provision of State law that Defendants denied them a reasonable accommodation.

With respect to irreparable harm, the Court does not consider the financial harm

Plaintiffs claim; still, they have shown that some women who Lake-Geauga Recovery

Centers would otherwise be able to serve would lose that opportunity and that this

harm cannot otherwise be remedied at the end of the litigation. Finally, the

remaining factors tip in Plaintiffs’ favor as well.

Issuance of an injunction is an equitable remedy. A fundamental principle of

equity is that one cannot invoke a court’s equitable power without clean hands.

Sutter v. U.S. Nat’l Bank (In re Sutter), 665 F.3d 722, 729 (6th Cir. 2012). For this

reason, the Court considers an additional factor on the facts and circumstances of this

case. Defendants make the point that Plaintiffs filed this suit and seek a preliminary

injunction because Lake-Geauga Recovery Centers performed inadequate due

diligence, acquiring a property not in fact zoned for its intended use. Had the

organization acquired a house a few streets away in a different township, this dispute

may have been avoided. That is true as far as it goes. But Ms. Blasko testified that,

even with the zoning issue, Lake-Geauga Recovery Centers would have proceeded

with the acquisition of Twelve Meadows because of the tight housing market, its

suitability for use as a recovery home for adult women, the need for such recovery

options, and the likelihood that community attitudes would not pose a barrier within

a reasonable period of time. (ECF No. 30, PageID #894–96.)

Nor does this equitable principle change the governing legal regime. However,

it does weigh in the Court’s balancing of the equitable factors for issuing an

injunction. In the Court’s view, Plaintiffs come into equity with clean hands. A

mistake does not change that determination, particularly one made in good faith.

TRW Title Ins. Co. v. Sec. Union Title Ins. Co., 153 F.3d 822, 829 (7th Cir. 1998)

(citations omitted). Indeed, based on the evidence at the hearing, the Court finds that

Ms. Blasko and Lake-Geauga Recovery Centers acted in good faith. Weighing this

consideration along with the factors for issuance of a preliminary injunction, and

considering each factor separately and the record as a whole, the Court determines

that Plaintiffs have carried their burden to justify the issuance of a preliminary

injunction.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART Plaintiffs’ Motion for

Preliminary Injunction. Therefore, pursuant to Rule 65(a) and Rule 65(d)(1) & (2),

the Court orders Defendants to allow Lake-Geauga Recovery Centers to operate

Twelve Meadows as a sober-living home for up to five unrelated adult women, plus

one live-in house manager, pending entry of a final judgment in this action.

SO ORDERED.

Dated: March 19, 2021

J.Philip Calabrese”

United States District Judge

Northern District of Ohio

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