Women's Elevated v. City of Plano

Case: 22-40637 Document: 00516974553 Page: 1 Date Filed: 11/20/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

____________

November 20, 2023

No. 22-40637 Lyle W. Cayce

____________ Clerk

Women’s Elevated Sober Living L.L.C.; Constance

Swanston,

Plaintiffs—Appellees/Cross-Appellants,

Shannon Jones,

Plaintiff—Appellee,

versus

City of Plano, Texas,

Defendant—Appellant/Cross-Appellee.

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Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:19-CV-412

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Before Jones, Stewart, and Duncan, Circuit Judges.

Carl E. Stewart, Circuit Judge:

Defendant-Appellant, the City of Plano (the “City”) appeals the

district court’s judgment holding that it violated the Fair Housing Act

(“FHA”) due to its failure to accommodate Plaintiffs as to the capacity limits

in the applicable zoning ordinance. Because we hold that the district court

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No. 22-40637

erred in determining that the evidence satisfied the applicable legal standard,

we VACATE the district court’s injunction and REMAND for further

proceedings consistent with this opinion. 1

I.

Plaintiffs are Constance Swanston (“Swanston”), Shannon Jones

(“Jones”), and Women’s Elevated Sober Living, LLC (“WESL”)

(collectively, “Plaintiffs”). Swanston is an individual in recovery from

substance use disorders (“SUDs”) and the owner and operator of WESL. In

November 2018, WESL opened a sober living home (the “Home”) on

Stoney Point Drive in Plano, Texas. Jones is a caretaker and resident of the

Home.

WESL offers numerous services to the Home’s residents, including

weekly Alcoholics and Narcotics Anonymous meetings, daily drug and

alcohol testing, employment training, and access to drug- and alcohol-

education groups. The Home is 5980 square feet and has seven bedrooms,

one for Jones and six for WESL residents. WESL requires each resident to

have at least one roommate. At one point, the Home had fifteen residents.

In early 2019, the City opened an investigation into the Home after

receiving complaints from neighborhood residents. The City’s zoning

ordinance allows only two types of residences in SF-7 (single family) zones,

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1

Because the district court’s injunction is vacated based on its determination of an

FHA violation, the district court’s judgment ordering damages and attorneys’ fees to

Plaintiffs is also vacated. For this reason, we do not address the parties’ arguments on

appeal regarding damages and attorneys’ fees.

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No. 22-40637

either a “Household” or a “Household Care Facility.” The zoning

ordinance limits the occupancy of a Household Care Facility to eight

unrelated disabled individuals and two caretakers. After the City completed

its investigation, it informed WESL that the Home violated the SF-7 zoning

ordinance because the occupancy exceeded eight unrelated disabled

individuals.

On April 16, 2019, WESL filed a request for accommodation with the

City’s Board of Adjustment (the “Board”) to allow seventeen to twenty

residents in the Home. WESL’s request included Swanston’s declaration

that living in “a sober home with 12 residents creates the necessary family

and community atmosphere for the personal accountability and support that

makes sober living effective.” The Board took up WESL’s accommodation

request at a public meeting on May 28, 2019. At the meeting, a city official

testified that the Home could safely house up to thirty-four people. The

Board also heard public comments that predominantly urged the Board to

deny the requested accommodation. It then heard from Swanston’s attorney

before briefly deliberating on the request. After deliberation, the Board voted

eight-to-zero against WESL’s request for accommodation.

On June 5, 2019, Swanston and WESL filed suit in federal court

claiming disparate treatment, disparate impact, and failure-to-accommodate

based on theories of financial and therapeutic necessity. One week later,

Swanston and WESL filed an Amended Complaint adding Jones as a plaintiff.

On February 8–9, 2021, the district court held a bench trial. Plaintiffs’ expert,

Dr. John Majer, testified that in terms of occupancy levels of a sober-living

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home, having more residents would “increase the richness of the social

support available that is going to help individuals connect to recovery.” He

further averred that “when you increase the [capacity], you’re going to

increase the therapeutic benefit.”

The district court issued its memorandum opinion on the issue of

liability on August 27, 2021. The district court determined that Plaintiffs

failed to prove their claims of disparate treatment, disparate impact, and

failure-to-accommodate under a theory of financial necessity. On Plaintiffs’

failure-to-accommodate claim under a theory of therapeutic necessity, the

district court determined that the issue “require[d] individualized

considerations” and “must be meticulously considered on a case-by-case

basis and in light of the evidence presented.” The district court then held

that the City violated the FHA for its failure to accommodate after

concluding that Plaintiffs’ proposed accommodation was therapeutically

necessary as compared to the offered alternative, considering the disabilities

of the Home’s residents.

The district court then enjoined the City from (1) restricting the

Home’s occupancy to fewer than fifteen residents; (2) enforcing any other

property restriction violative of the FHA or ADA; and (3) retaliating against

Plaintiffs for pursuing housing discrimination complaints under the FHA and

ADA. The district court also ordered supplemental briefing on the issue of

damages and, following a hearing, awarded Plaintiffs nominal damages of one

dollar. The district court rejected Swanston’s and WESL’s demands for

punitive, mental anguish, and lost profits damages because it reasoned that

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Plaintiffs presented “no factual evidence” to support those demands. In a

separate memorandum opinion on attorneys’ fees, the district court awarded

Jones, Swanston, and WESL the full lodestar without any reduction or

increase. This appeal followed. WESL and Swanston cross-appealed on the

issue of the district court’s denial of their demand for lost profits damages.

II.

“The standard of review for a bench trial is well established: findings

of fact are reviewed for clear error and legal issues are reviewed de novo.”

Luwisch v. Am. Marine Corp., 956 F.3d 320, 326 (5th Cir. 2020) (per curiam)

(citations omitted). The district court’s findings of fact will stand unless we

are “left with the definite and firm conviction that a mistake has been

committed.” Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006)

(citation omitted). Where “the district court appl[ies] the wrong legal

standard in making its factual findings, this court then reviews the district

court’s factual findings de novo.” City of Alexandria v. Brown, 740 F.3d 339,

350 (5th Cir. 2014).

III.

Under the FHA, it is 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 person residing in or intending to reside in that

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dwelling.” 42 U.S.C. § 3604(f)(1)(B). 2 Discrimination includes “a refusal to

make reasonable accommodations in rules [or] policies . . . when such

accommodations may be necessary to afford such person equal opportunity

to use and enjoy a dwelling.” Id. § 3604(f)(3)(B). In a failure-to-

accommodate claim, a plaintiff must demonstrate that (1) the residents of the

affected dwelling or home suffer from a disability, (2) they requested an

accommodation from the defendant, (3) the requested accommodation was

reasonable, and (4) the requested accommodation was necessary to afford the

residents equal opportunity to use and enjoy the home. See Providence Behav.

Health v. Grant Rd. Pub. Util. Dist., 902 F.3d 448, 459 (5th Cir. 2018).

Importantly, the plaintiff bears the burden of proving a violation of the FHA.

See Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir. 1996).

To prove that an accommodation request is necessary, courts require

that a plaintiff prove that the requested accommodation makes the home

either “financially viable” or “therapeutically meaningful.” See Bryant

Woods Inn v. Howard County, 124 F.3d 597, 605 (4th Cir. 1997). Some courts

have determined that necessity must be considered (1) in light of the

statutory provision’s language; (2) in accord with the purpose of the FHA

and ADA, to ameliorate the plaintiff’s particular disability; and (3) in the light

of “proposed alternatives.” See Vorchheimer v. Philadelphian Owners Ass’n,

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2

Both parties agree that the accommodations requirements under both the FHA

and the ADA are functionally identical. As such, “this opinion will address the claims

relating to these statutes collectively.” Providence Behav. Health v. Grant Rd. Pub. Util.

Dist., 902 F.3d 448, 455 n.2 (5th Cir. 2018).

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903 F.3d 100, 105 (3d Cir. 2018). However, a requested accommodation that

is preferable to an alternative is not sufficient; it must be essential. See

Cinnamon Hills Youth Crisis Ctr. v. Saint George City, 685 F.3d 917, 923 (10th

Cir. 2012). While we have spoken to the issue of therapeutic necessity before,

we have no precedential opinions addressing this inquiry.

We must evaluate necessity considering its definition, that is,

something “[i]ndispensable, requisite, essential, needful; that cannot be

done without, or absolutely required.” Vorchheimer, 903 F.3d at 105

(alteration in original) (internal quotation marks omitted) (quoting 10

Oxford English Dictionary 275–76 (2d ed. 1989)). A requested

accommodation from capacity restrictions must directly ameliorate the effect

of the plaintiffs’ disabilities, such that the requested number must reside

together in a dwelling to achieve effective amelioration of their afflictions. 3

See id.; 42 U.S.C. § 3604(f)(3)(B). Put another way, without the requested

accommodation, the ameliorative benefit provided must be so insignificant

that it deprives persons with disabilities from the opportunity to use and

enjoy the dwelling of their choice as compared to those without disabilities.

See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008);

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3

As an illustration, see Oxford House, Inc. v. Browning, 266 F. Supp. 3d 896, 916

(M.D. La. 2017) (holding that “at least six otherwise unrelated individuals who are

recovering from alcoholism or drug addiction must reside together in a dwelling in order to

achieve the[] [desired] ameliorative effects”).

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

This closely tracks with the standards devised by our sister circuits.

For example, the Fourth Circuit held in Bryant Woods Inn, Inc. v.

Howard County that the necessity element “requires the demonstration of a

direct linkage between the proposed accommodation and the ‘equal

opportunity’ to be provided to the handicapped person.” 124 F.3d at 605.

Considering prior jurisprudence, we hold that the district court improperly

applied a standard accepting that proof of greater therapeutic benefit from

residents’ disabilities was sufficient to establish that the requested

accommodation was indispensable to their recovery from SUDs, rather than

requiring the plaintiffs to prove that the accommodation was indispensable

or essential.

As stated above, this circuit has no published precedent on point.

However, a previous panel of this court issued an unpublished opinion in

Harmony Haus Westlake, L.L.C. v. Parkstone Property Owners Ass’n, 851 F.

App’x 461 (5th Cir. 2021) (per curiam). The Harmony Haus panel stated that

where the request for accommodation addresses a restriction limiting a

home’s capacity, a plaintiff must show that a certain number of residents is

necessary for the home to be “therapeutically meaningful.” See id. at 465.

The panel then determined that the sober home failed to meet its burden to

prove that an accommodation allowing twelve residents was necessary to

ameliorate the residents’ disabilities via the specific programs the sober home

ran. Id. We stated that “[s]howing that an accommodation is necessary for a

sober-living home operator’s chosen model is not sufficient.” Id. at 466. The

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panel concluded that the sober home’s expert and resident testimony

demonstrated at most that an accommodation to allow twelve residents

provided better recovery prospects for the residents but was insufficient to

prove necessity. Id. at 465–66.

This case is strikingly analogous to Harmony Haus. We hold that the

district court erred by applying a standard accepting that therapeutically

beneficial treatment constitutes necessity under the FHA and ADA. The

testimony elicited at the bench trial—like the evidence in Harmony Haus—

was insufficient to demonstrate that the requested capacity accommodation

was indispensable or essential to the continued facilitation of the residents’

recovery from SUDs. See id. A requested accommodation is necessary only if

the plaintiff shows that without the requested accommodation, they will

receive no ameliorative effect from their disability, thereby depriving them of

the equal opportunity to enjoy the dwelling. 4 To accept evidence that an

accommodation would be better or provide a greater benefit to its residents

with disabilities constitutes legal error. Cf. Vorchheimer, 903 F.3d at 112.

Thus, the legal error flows from the district court’s determination that

Plaintiffs satisfied their burden of proof. At trial, Dr. Majer testified that

having fifteen residents in a sober home provides an increased therapeutic

benefit over eight residents and “improv[ed] the odds of [residents] staying

sober.” Throughout his testimony, however, he does not explicitly state

whether a specific number of residents is required for the Home to provide

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4

See, e.g., Vorchheimer, 903 F.3d at 110; Cinnamon Hills, 685 F.3d at 923–24.

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the requisite therapeutic milieu for recovery. 5 For instance, he stated that a

minimum number of fifteen residents was required to have “an effective

therapeutic result.” But he also stated that “adding more residents increases

therapeutic benefit in recovery homes” and makes it “more likely [] to

produce more therapeutic effect.” He also opined that having fifteen

residents in a sober home improved the odds of its residents staying sober.

Thus, the district court erred by concluding that Plaintiffs satisfied their

failure-to-accommodate claim here based on the evidence showing an

ameliorative benefit derived from a larger occupancy.

Looking to our sister circuits, we find confirmation that our holding

here is appropriate. In Vorchheimer, the Third Circuit determined that a

resident failed to allege a cognizable failure-to-accommodate claim because

the requested accommodation was merely more preferential than the

proposed alternatives. See 903 F.3d at 108–09. There, the resident had an

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5 We measure necessity in light of its definition as “something that ‘cannot be done

without.’” See Cinnamon Hills, 685 F.3d at 923 (rejecting the argument that “an

accommodation should be held ‘necessary’ anytime it would provide [] direct amelioration

of a disability’s effect”); Vorchheimer, 908 F.3d at 105 (“[T]he [FHA]’s necessity element

requires that an accommodation be essential, not just preferable.”); Bryant Woods Inn, 124

F.3d at 605 (“Thus, nothing in the record that we can find suggests that a group home of

15 residents, as opposed to one of 8, is necessary to accommodate individuals with

handicaps.”); Davis v. Echo Valley Condo. Ass’n, 945 F.3d 483, 490 (6th Cir. 2019) (holding

that the plaintiff’s proposed “total smoking ban likely was not necessary (that is,

‘indispensable,’ ‘essential,’ something that ‘cannot be done without’) to give her the same

opportunity to use and enjoy her condo as compared to a non-disabled person who dislikes

the smell of smoke”); Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1191 (9th Cir. 2021)

(“In other words, absent an accommodation, the plaintiff’s disability must cause the

plaintiffs to lose an equal opportunity to use and enjoy a dwelling.”).

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ambulatory disability which required the use of a walker to get from her condo

to her building’s lobby. Id. at 103–04. The condominium owners’ association

rejected her request to leave the walker in the lobby but offered several

methods to store it for her, all of which she refused. Id. at 104. In affirming

the district court’s dismissal of her claim, the Vorchheimer court noted that

the necessity inquiry “adopts a strict sense of ‘necessary’” and may

“function[] as a but-for causation requirement, tying the needed

accommodation to equal housing opportunity.” Id. at 110. The Third Circuit

concluded that, based on its strict reading of § 3604(f)(3)(B) and the prior

jurisprudence in its court and its sister circuits, the resident failed to prove

that her requested accommodation was necessary considering the definition

of the term, the purpose of the FHA, and the proffered alternatives. Id. at

112–13. For the same reasons, we hold that Plaintiffs have failed to establish

that their requested accommodation was therapeutically necessary. See id.

IV.

For the foregoing reasons, the district court’s injunction is

VACATED and this case is REMANDED for further proceedings

consistent with this opinion.

11