Respondents Brief — City of Costa Mesa, California, Petitioner v. SoCal Recovery, LLC, et al.
Supreme Court briefOct 17, 2023
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No. 23-71
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------CITY OF COSTA MESA,
Petitioner,
vs.
SOCAL RECOVERY, LLC, et al.,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦--------------------------------BRIEF IN OPPOSITION
---------------------------------♦--------------------------------ELIZABETH BRANCART
Counsel of Record
CHRISTOPHER BRANCART
BRANCART & BRANCART
Post Office Box 686
Pescadero, CA 94060
(650) 879-0141
ebrancart@brancart.com
Counsel for Respondents
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
1. Where a municipal zoning code defines a “sober living home” as a home occupied by persons who
are considered disabled under the Fair Housing Act
and Americans with Disabilities Act, and the municipality enforces zoning restrictions against a home it
has so classified, must that sober living home present
individualized proof that each of its current and future
residents qualifies as disabled in order to invoke the
protections of the Fair Housing Act and Americans
with Disabilities Act?
2. If a municipality’s stated reasons for adopting
ordinances or denying land use permits reflect fears
and stereotypes regarding the residents of sober living
homes, may such statements be considered, along with
other evidence, in deciding whether the municipality
regarded residents of sober living homes as disabled?
ii
CORPORATE DISCLOSURE STATEMENT
Respondent SoCal Recovery, LLC has no parent
corporation and no publicly held company owns 10% or
more of its stock.
Respondent RAW Recovery, LLC has no parent
corporation and no publicly held company owns 10% or
more of its stock.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
CORPORATE DISCLOSURE STATEMENT ......
ii
TABLE OF CONTENTS ......................................
iii
TABLE OF AUTHORITIES .................................
v
INTRODUCTION ................................................
1
STATEMENT OF THE CASE..............................
3
Applicable Statutes ..........................................
3
Factual Background .........................................
7
Procedural History ........................................... 13
REASONS FOR DENYING THE WRIT .............. 19
I.
Review should be denied with respect to
the court of appeals’ decision on the “actually disabled” prong of the disability definition.......................................................... 19
A. There is no inconsistency in the lower
courts regarding the evidence that
may be used to establish “actual disability” in land use cases ..................... 19
B. The decision below correctly applies
an established rule of law to the evidence of record ..................................... 23
II.
Review should be denied with respect to
the court of appeals’ decision on the “regarded as” prong of the disability definition ............................................................. 25
A. The decision below correctly applied
settled law to the facts of this case ..... 26
iv
TABLE OF CONTENTS – Continued
Page
B. The circuits are in agreement on application of that settled rule of law ..... 28
III.
Review should be denied because the decision below is interlocutory and rests on
alternate grounds ...................................... 30
IV.
Petitioner and its Amici exaggerate the
need for review and the effect of the Ninth
Circuit’s decision ....................................... 31
CONCLUSION..................................................... 33
v
TABLE OF AUTHORITIES
Page
CASES
A Helping Hand, LLC v. Baltimore Cnty.,
515 F.3d 356 (4th Cir. 2008) ....................................29
Addiction Specialists, Inc. v. Twp. of Hampton,
411 F.3d 399 (3d Cir. 2005) .......................................3
Bragdon v. Abbott,
524 U.S. 624 (1998) ...................................................4
Casa Marie, Inc. v. Superior Court of
Puerto Rico,
988 F.2d 252 (1st Cir. 1993) ......................................3
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984) ...................................................5
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) .................................................27
City of Cuyahoga Falls v. Buckeye
Cmty. Hope Found.,
538 U.S. 188 (2003) .................................................27
City of Edmonds v. Oxford House, Inc.,
514 U.S. 725 (1995) .................................................31
Desmond v. Mukasey,
530 F.3d 944 (D.C. Cir. 2008) ..................................14
E.E.O.C. v. AutoZone, Inc.,
630 F.3d 635 (7th Cir. 2010) ....................................14
E.E.O.C. v. Chevron Phillips Chem. Co., LP,
570 F.3d 606 (5th Cir. 2009) ....................................14
vi
TABLE OF AUTHORITIES – Continued
Page
Harmony Haus Westlake, L.L.C. v. Parkstone
Prop. Owners Ass’n,
851 F. App’x 461 (5th Cir. 2021) .................. 20, 21, 22
Innovative Health Sys., Inc. v. City of
White Plains,
117 F.3d 37 (2d Cir. 1997) .......................................29
Lakeside Resort Enterprises, LP v. Bd.
of Sup’rs of Palmyra Twp.,
455 F.3d 154 (3d Cir. 2006) ............................... 22, 23
Locomotive Firemen v. Bangor &
Aroostook R. Co.,
389 U.S. 327 (1967) .................................................30
Mancini v. City of Providence by &
through Lombardi,
909 F.3d 32 (1st Cir. 2018) ......................................14
MX Grp., Inc. v. City of Covington,
293 F.3d 326 (6th Cir. 2002) .................... 4, 20, 21, 28
Mhany Mgmt., Inc. v. County of Nassau,
819 F.3d 581 (2d Cir. 2016) .....................................29
Morrissey v. Laurel Health Care Co.,
946 F.3d 292 (6th Cir. 2019) ....................................14
RHJ Med. Ctr., Inc. v. City of DuBois,
564 F. App’x 660 (3d Cir. 2014) ...............................29
Reg’l Econ. Cmty. Action Program, Inc. v.
City of Middletown,
294 F.3d 35 (2d Cir. 2002) ............................. 4, 20, 21
Rodriguez v. Vill. Green Realty, Inc.,
788 F.3d 31 (2d Cir. 2015) .......................................14
vii
TABLE OF AUTHORITIES – Continued
Page
San Pedro Hotel Co. v. City of Los Angeles,
159 F.3d 470 (9th Cir. 1998) ......................................4
Sprint Commc’ns, Inc. v. Jacobs,
571 U.S. 69 (2013) .....................................................3
Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379 (2008) .................................................24
Sugg v. City of Sunrise,
2022 WL 4296992 (11th Cir. Sept. 19, 2022) ..........14
Tesone v. Empire Mktg. Strategies,
942 F.3d 979 (10th Cir. 2019) ..................................14
Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184 (2002) ..................................... 2, 5, 6, 14
Tsombanidis v. W. Haven Fire Dep’t,
352 F.3d 565 (2d Cir. 2003) ................................. 3, 29
Village of Arlington Heights v. Metro.
Hous. Dev. Corp.,
429 U.S. 252 (1977) .................................................27
Virginia Mil. Inst. v. United States,
508 U.S. 946 (1993) .................................................30
STATUTES
ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3553 .........................2
Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq.............................................1
42 U.S.C. § 12102................................................... 4-6
42 U.S.C. § 12205a.....................................................5
viii
TABLE OF AUTHORITIES – Continued
Page
42 U.S.C. § 12132.......................................................3
42 U.S.C. § 12133.......................................................4
Fair Housing Act,
42 U.S.C. § 3601 et seq........................................... 1, 3
42 U.S.C. § 3602..................................................... 4, 5
42 U.S.C. § 3607.......................................................32
42 U.S.C. § 3608.........................................................5
42 U.S.C. § 3613.........................................................4
42 U.S.C. § 3615.......................................................32
Fair Housing Amendments Act of 1988
Pub. L. 100-430, 102 Stat. 1636 ................................3
California Fair Employment and Housing Act
Cal. Govt. Code § 12900 et seq. .................................1
Cal. Govt. Code § 12926 ............................................5
Cal. Govt. Code § 12926.1 .........................................3
Cal. Govt. Code § 12955 ............................................3
Cal. Govt. Code § 12955.6 ................................... 3, 32
REGULATIONS
24 C.F.R. § 100.1 et seq. ................................................5
24 C.F.R. § 100.201 ............................................. 5, 6, 22
28 C.F.R. § 35.101 et seq. ..............................................5
28 C.F.R. § 35.108 ..................................................... 5, 6
29 C.F.R. § 1630.2 .......................................................14
ix
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
H.R. REP. 100-711 (1988) ...........................................25
Costa Mesa, Cal. Municipal Code § 13-6 ......... 9, 17, 27
Costa Mesa, Cal. Municipal Code § 13-311 ......... 10-12
1
INTRODUCTION
Petitioner City of Costa Mesa enacted zoning ordinances imposing a new permit requirement on “sober
living homes,” a residential land use it defined as one
occupied by persons in recovery from alcohol or drug
addiction “who are considered handicapped” under the
Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq., and California’s Fair Employment and Housing
Act (FEHA), Cal. Govt. Code § 12900 et seq. The City
classified homes operated by respondents SoCal Recovery, LLC and RAW Recovery, LLC as sober living
homes subject to the City’s new permit requirement
and both submitted the required permit applications.
The City denied their applications, claiming that
granting them would allow too many sober living
homes within their neighborhoods, causing an “overconcentration” of such homes. The City subsequently
ordered SoCal and RAW to close their homes and then
cited, fined, and filed abatement actions against them
for operating sober living homes without sober living
home permits. The City never contested or questioned
whether SoCal or RAW housed people with disabilities
during the zoning application process, nor during its
zoning enforcement process. After SoCal and RAW
filed lawsuits challenging the City’s zoning ordinances,
the City moved for summary judgment on the grounds
that neither SoCal nor RAW could demonstrate a triable issue of fact whether it served people with disabilities as defined under the FHA, ADA, or FEHA. The
2
district court granted the motions, but the Ninth Circuit Court of Appeals reversed.
The court of appeals’ decision struck no new
ground on proof of disability. It identified for the district court broad categories of evidence that may be
relevant in the context of zoning discrimination in
making the fact-specific determination whether a land
use serves or will serve people with disabilities. Like
other circuits, it followed this Court’s direction to conduct an “individualized assessment” whether the respondents provided housing to persons who have an
impairment that “substantially limits one or more
major life activities.” Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 198-99 (2002) (superseded on
other grounds by ADA Amendments Act of 2008, Pub.
L. 110-325, 122 Stat. 3553). Review is not warranted
because the differences in opinions and outcomes in
the cases cited by the City do not turn on disagreements about the applicable standard, but on the specific facts and evidentiary records presented in each
case.
Nor should this Court grant review “to establish
that a municipality can be held to have regarded a facility’s clients as disabled based only on its own beliefs
reflected in its own statements and actions, and cannot
be held responsible for statements made to it by the
public.” Pet. 30. That commonsense rule has been the
law for decades. Neither the Ninth Circuit in this case
nor the other courts of appeals in the cases cited by the
City attribute intent to municipalities based merely on
statements made to it by the public.
3
At bottom, the petition asks the Court to reconsider the fact-specific application of established law.
The interlocutory decision poses no unresolved issues
for review and was correctly decided. The Court should
deny the petition.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
Applicable Statutes
The FHA, as amended by the Fair Housing Amendments Act of 1988 (FHAA), Pub. L. 100-430, 102 Stat.
1636, and the ADA forbid municipalities from discriminating in zoning and land use on the basis of “handicap” or “disability.” 42 U.S.C. § 3601 et seq.; 42 U.S.C.
§ 12132; see, e.g., Tsombanidis v. West Haven Fire
Dept., 362 F.3d 565, 573-74 (2d Cir. 2003) (FHA and
ADA); Casa Marie, Inc. v. Superior Court of Puerto
Rico, 988 F.2d 252, 257 n.6 (1st Cir. 1993) (FHA). California’s FEHA, the state analog to the FHA, contains
similar prohibitions. Cal. Govt. Code § 12955(l).1
Housing providers injured by discrimination
based on disability have a direct remedy under both
the FHA and ADA.2 They are not limited, as the City
1
California’s FEHA must be construed to provide at least as
much protection to people with disabilities as the FHA and ADA
and their implementing regulations. Cal. Govt. Code §§ 12926.1,
12955.6. Unless otherwise noted below, FEHA applies the same
legal standards as the FHA and ADA.
2
See, e.g., Addiction Specialists, Inc. v. Twp. of Hampton,
411 F.3d 399, 407 (3d Cir. 2005) (ADA), abrogated on other
grounds, Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013);
4
claims, to bringing indirect claims based on injury to
their residents. Pet. 17. The FHA allows suit by “any
person” who “claims to have been injured by a discriminatory housing practice.” 42 U.S.C. § 3602(i) (defining “aggrieved person”); 42 U.S.C. § 3613 (authorizing
suit). Title II of the ADA similarly provides a remedy
for “any person” alleging discrimination on the basis of
disability. 42 U.S.C. § 12133.
“Handicap” under the FHA and “disability” under
the ADA,3 are both defined as (1) a “physical or mental
impairment which substantially limits one or more of
[a] person’s major life activities,” (2) “a record of having
such an impairment,” or (3) “being regarded as having
such an impairment.” 42 U.S.C. § 3602(h) (FHA); 42
U.S.C. § 12102(1) (ADA). These three definitions of disability are often referred to as the “actual disability”
prong, the “record of disability” prong, and the “regarded as disabled” prong.
Under the FHA and ADA, to establish “actual disability,” an individual plaintiff must show that they
have (1) an impairment that (2) “substantially limits
Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294
F.3d 35, 46 n.2 (2d Cir. 2002) (ADA and FHA); MX Grp., Inc. v.
City of Covington, 293 F.3d 326, 335 (6th Cir. 2002) (FHA); San
Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 475 (9th Cir.
1998) (FHA).
3
The FHA uses the term “handicap” instead of “disability.”
Both terms have the same legal meaning. See Bragdon v. Abbott,
524 U.S. 624, 631 (1998) (noting that the definition of “disability”
in the ADA is drawn almost verbatim “from the definition of
‘handicap’ contained in the Fair Housing Amendments Act of
1988”). This brief uses the preferred term “disability.”
5
one or more major life activities.” 42 U.S.C. § 3602(h)
(FHA); 42 U.S.C. § 12102(1)(A) (ADA).4 Alcoholism and
drug addiction are “impairments” under the FHA and
ADA. 24 C.F.R. § 100.201 (under FHA impairment includes “drug addiction (other than addiction caused
by current, illegal use of a controlled substance) and
alcoholism”); 28 C.F.R. § 35.108(b)(2), (g) (under ADA
“[p]hysical or mental impairment includes . . . drug addiction, and alcoholism,” but term “disability” excludes
“[p]sychoactive substance use disorders resulting from
current illegal use of drugs”).5
Under this Court’s precedent, when an individual
claims disability status under the “actual disability”
prong, the individual cannot simply submit evidence
showing that they have been diagnosed with an impairment and then rely on a presumption that the impairment substantially limits a major life activity.
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. at
4
California’s FEHA defines disability more broadly than the
FHA and ADA, requiring only that an impairment “limit” a major
life activity. Cal. Govt. Code §§ 12926(j)(1), (m)(1), 12926.1. Thus,
persons whose impairments do not substantially limit their major
life activities may still qualify as disabled under FEHA.
5
The United States Department of Housing and Urban Development (HUD), the federal agency primarily charged with implementation and administration of the FHA, 42 U.S.C. § 3608,
has promulgated rules interpreting the FHA. 24 C.F.R. § 100.1 et
seq. The Attorney General has promulgated regulations implementing the ADA pursuant to the direction of Congress. 42 U.S.C.
§ 12205a; 28 C.F.R. § 35.101 et seq. Those agencies’ reasonable
interpretation of the FHA and ADA are entitled to deference.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-45 (1984).
6
198-99. Proof that the impairment “substantially limits one or more of their major life activities” requires
an “individualized assessment” of the effect of the impairment on a case-by-case basis. Id. at 198-99.
When an individual claims disability status under
the “regarded as disabled” prong, the determination
turns on how an individual is perceived by others.
See 42 U.S.C. § 12102(1)(C); 24 C.F.R. § 100.201(d); 28
C.F.R. § 35.108(f )(1). After passage of the ADA Amendments Act of 2008, an individual may establish that
they are “regarded as disabled” by showing that they
have been subjected to a prohibited action “because
of an actual or perceived physical or mental impairment,” 42 U.S.C. § 12102(3)(A), “whether or not that
impairment substantially limits, or is perceived to
substantially limit, a major life activity,” 28 C.F.R.
§ 35.108(f )(1). Under the FHA, being “regarded as disabled” means (1) having “a physical or mental impairment that does not substantially limit one or more
major life activities but that is treated by another person as constituting such a limitation,” (2) having “a
physical or mental impairment that substantially limits one or more major life activities only as a result of
the attitudes of other[s] toward such impairment,” or
(3) having “none of the impairments defined in paragraph (a) of this definition but is treated by another
person as having such an impairment.” 24 C.F.R.
§ 100.201(d).
7
Factual Background
1. SoCal Recovery was operating several sober
living homes in Costa Mesa as of 2014. Pet. App. 9a.
SoCal provides safe, comfortable, structured housing
where persons in recovery from addiction can sustain
their sobriety in a supportive environment, enabling
them to avoid relapse. 20-55820 C.A. Doc. 25-5, pp. 3942, 135-36. The risk of relapse is significant if a newly
sober person returns home immediately after treatment. Id. SoCal’s sober housing provides a necessary
bridge between treatment and fully independent living.
SoCal’s residents generally join the household after completing 90 days of addiction treatment and stay
for a period of three to six months, strengthening their
sobriety with the goal of returning to fully independent
living. Pet. App. 28a; 20-55820 C.A. Doc. 25-5, pp. 3940. To maintain its structured, sober environment,
SoCal has a “zero drug & alcohol tolerance” policy, demands mandatory involvement in 12-Step recovery
programs, performs randomized drug testing, and requires any resident who relapses to leave and go to detox. Pet. App. 27a. While living at SoCal, residents are
required to work or attend school. 20-55820 C.A. Doc.
25-5, p. 40. Current SoCal employees testified in deposition regarding how SoCal enforced its house rules
and zero-tolerance policies. Pet. App. 28a. Respondent
Roger Lawson, then a resident and house manager of
one of SoCal’s homes, testified in deposition about his
experience of addiction and relapse and explained that
without the structured sober environment provided by
8
SoCal, he would relapse and likely overdose. Pet. App.
28a-29a.
RAW Recovery was operating sober living homes
for persons in recovery from alcohol and drug addiction
in Costa Mesa as of 2015. Pet. App. 12a. Most residents
join a RAW sober living home immediately after completing a 30- to 90-day course of residential addiction
treatment and typically remain residents for about a
year. Pet. App. 27a-28a. RAW provides a structured sober environment, house managers who monitor residents, drug testing several times a week, and recovery
coaching and life skills support. Pet. App. 26a. RAW
prohibits the use of drugs or alcohol in its homes, and
a resident who violates that rule is removed from the
home. Pet. App. 26a, 27a-28a. RAW aids residents in
staying sober by providing a basic structure within
which to maintain their sobriety. 20-55870 C.A. Doc.
36-6, p. 102. RAW’s residents are “in need of safe and
sober housing because they cannot live independently
without fear of relapse.” Pet. App. 26a-27a. Former
RAW residents testified before the City, describing
their previous inability to function as employees, students, and family members because of addiction and
explaining how living in RAW housing had enabled
them to remain sober and rebuild their lives. Pet. App.
28a.
2. Between 2013 and 2017, the City enacted a
series of ordinances amending its zoning code to regulate group housing for people with disabilities in the
9
City’s residential zones.6 The new ordinances defined
two new land uses – “group home” and “sober living
home.” Pet. App. 6a (citing Costa Mesa Municipal Code
[C.M.M.C.] § 13-6, C.A. Statutory Addendum, at 9193). The ordinances defined a “group home” as a “facility that is being used as a supportive living environment for persons who are considered handicapped
under state or federal law.” Id. They defined a “sober
living home” as a “group home for persons who are recovering from a drug and/or alcohol addiction and
who are considered handicapped under state or federal
law.” Pet. App. 2a, 30a-31a (citing C.M.M.C. § 13-6 [emphasis added], C.A. Statutory Addendum, at 93). The
“state or federal law[s]” referenced in those definitions
are further defined as the “Fair Housing Act, the Americans with Disabilities Act, and the California Fair
Employment and Housing Act.” C.M.M.C. § 13-6, C.A.
Statutory Addendum, at 91.
Although the zoning ordinances apply to all group
homes for people with all types of disabilities, the
City’s specific concern in enacting the ordinances focused on an increase in the number of sober living
homes in certain residential neighborhoods. Pet. App.
6a; C.A. Statutory Addendum, at 85-90. The City believed that there existed an “overconcentration” of
such homes that was “deleterious” to the residential
character of those neighborhoods and could lead to the
6
See 20-55820 C.A. Doc. 24 (C.A. Statutory Addendum), at
85-135, reproducing Costa Mesa, Cal., Ordinance 14-13 (Oct. 21,
2014), Ordinance 15-06 (July 7, 2015), Ordinance 15-11 (Nov. 17,
2015), and Ordinance 17-05 (May 2, 2017).
10
neighborhoods becoming “institutionalized.” Pet. App.
6a; C.A. Statutory Addendum, at 87. Instead of relying
on its generally applicable police powers to enforce
its existing nuisance laws against sober living homes
that were disturbing a neighborhood’s residential
character, the City’s ordinances imposed new land use
permitting requirements on all existing and future
households that met the definition of group homes and
sober living homes. Prior to enactment of the ordinances, the uses that it redefined as “group homes” and
“sober living homes” had been permitted as of right if
they had six or fewer residents. Pet. App. 2a; see also
C.A. Statutory Addendum, at 104, 109. After enactment of the ordinances, those homes became unlawful
unless they obtained the necessary permits.
To obtain the newly required land use permit, the
applicant was required to certify, under penalty of perjury, that its sober living home would “serve no more
than six tenants who are disabled as defined by state
and federal law” and that residency would be limited
to such persons. Pet. App. 6a (citing C.M.M.C. § 13311(a)(2), (a)(4)), Pet. App. 7a n.9 (citing C.M.M.C. § 13311(a)(1)(viii)); see also C.A. Statutory Addendum, at
74-75; 20-55820 C.A. Doc. 25-10, pp. 6-7 (certification).
The ordinances imposed certain operational requirements on sober living homes as a condition of permitting, including that the home have mandatory house
managers who were present on a 24-hour basis, that
any resident using drugs or alcohol be removed immediately from the home, and that all residents must
be participating “in legitimate recovery programs,
11
including, but not limited to Alcoholics Anonymous or
Narcotics Anonymous.” Pet. App. 6a-7a & n.8 (citing
C.M.M.C. § 13-311). In order to verify that the home
operated in compliance with the mandated permit conditions, all sober living home applicants were required
to submit copies of their home’s written intake procedures, rules and regulations, and relapse policy with
their applications. C.M.M.C. § 13-311(a)(1)(v-ix). Even
if a sober living home satisfied every operational requirement, its application was automatically denied if
the home was located within 650 feet of any other Citypermitted group home, sober living home, or state-licensed alcohol and drug treatment facility. Pet. App.
6a-7a (citing C.M.M.C. § 13-311(a)(14)(i)). An applicant
could seek a reasonable accommodation from that separation requirement but, as a rule, the City did not
make exceptions. Pet. App. 6a-7a (citing C.M.M.C. 13311(a)(15)); 20-55820 C.A. Doc. 25-8, pp. 69:4-70:12
(denying 49 of 52 reasonable accommodation requests).
Both before and after adopting the ordinances, the
City kept a spreadsheet identifying residences that it
regarded as group homes or sober living homes, tracking the contact information for the home, names of the
property owners, and the number of beds in the home.
20-55820 C.A. Doc. 25-11, p. 158, ¶ 4. The City’s spreadsheet included homes operated by both SoCal and
RAW. 20-55820 C.A. Doc. 25-11, p. 180, line 23, p. 181,
line 6.
3. After the City adopted the ordinances, both
SoCal and RAW submitted timely applications to
continue operating their sober living homes in their
12
existing locations. Pet. App. 9a, 13a. The City denied
each application, determining that none qualified for a
permit because each was located within 650 feet of another sober living home or state-licensed alcohol and
drug treatment home. Pet. App. 9a-10a, 13a-14a. The
City stated that granting permits to SoCal or RAW to
enable them to continue operation in their existing locations would contribute to an “overconcentration” of
sober living homes in the area, to the detriment of
those neighborhoods. Pet. App. 9a, 31a.
Once their permit application denials became final, SoCal’s and RAW’s sober living homes became unlawful uses under the City’s zoning code. Pet. App. 2a,
6a (citing C.M.M.C. § 13-311). The City then issued
citations and imposed fines on SoCal and RAW for
operating “Sober Living/Group Homes” without City
approval. Pet. App. 3a, 32a. After SoCal and RAW initiated their lawsuits in federal court, the City filed nuisance abatement actions in state court against both
SoCal and RAW, seeking to abate their operation of unlawful “sober living group home[s].” Pet. App. 32a-33a.
The City’s refusal to grant permits to SoCal and RAW
was not an aberration. According to City records, as of
2019 it had received 63 applications from existing sober living homes but approved only 12. 20-55820 C.A.
Doc. 25-8, p. 192:4-24; see also Pet. App. 5a & n.7 (2022
statistics reflecting 73 home closures).
13
Procedural History
SoCal and RAW filed separate lawsuits challenging the City’s zoning ordinances and alleging that they
had been directly injured by the City’s discrimination
against people with disabilities. The City filed identical
motions for summary judgment in both cases claiming,
for the first time, that neither SoCal nor RAW could
establish that their current and future residents were
people with disabilities under federal or state law. Pet.
App. 45a, 61a. The district court granted the City’s
motion in each case, ruling that neither SoCal nor
RAW had raised a triable issue of fact whether their
residents were “actually disabled” or “regarded as
disabled” under the FHA, ADA, or FEHA. Pet. App.
46a-47a, 62a-63a. In particular, the district court held
that in order to show that their residents were “actually disabled,” SoCal and RAW must produce evidence
of an “individualized disability assessment” for each
resident and “prove its clients have a substantial impairment to a major life activity, on a case-by-case
basis.” Pet. App. 46a-47a, 62a-63a. The district court
further held that both SoCal and RAW had failed to
raise a triable issue of fact whether the City “regarded”
their current or future residents as disabled. To make
that showing, the district court required them to prove
that the City “subjectively believes that [SoCal’s and
RAW’s residents are] substantially limited in a major
life activity.” Pet. App. 48a, 64a. The district court also
found that neither SoCal nor RAW had shown that its
residents have a “record of disability,” although neither
14
SoCal nor RAW had relied on that method to prove disability. Pet. App. 17a & n.17.
SoCal and RAW appealed from the judgments, arguing that the district court had disregarded relevant
evidence and utilized incorrect standards by which to
assess whether they had established that they served
and intended to serve residents who were “actually disabled” or “regarded as disabled.” The United States appeared as amicus curiae in support of reversal.
The Ninth Circuit reversed and remanded. It began by citing the standard for proof of “actual disability” set forth by this Court in Toyota, 534 U.S. at 198,
under which proof of the extent to which an impairment substantially limits an individual’s major life activities must be made in a “case-by-case manner.” Pet.
App. 21a. The panel noted that in cases brought by individuals, proof that an impairment substantially limits a major life activity does not require medical
evidence but may be based on the plaintiff ’s own testimony. Pet. App. 24a.7 It found that the district court
7
This is the general rule. See, e.g., Sugg v. City of Sunrise,
2022 WL 4296992, *9 (11th Cir. Sept. 19, 2022) (unpublished);
Morrissey v. Laurel Health Care Co., 946 F.3d 292, 300-01 (6th
Cir. 2019); Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 99899 (10th Cir. 2019); Mancini v. City of Providence by & through
Lombardi, 909 F.3d 32, 43-44 (1st Cir. 2018); Rodriguez v. Vill.
Green Realty, Inc., 788 F.3d 31, 43 (2d Cir. 2015); E.E.O.C. v.
AutoZone, Inc., 630 F.3d 635, 643-44 (7th Cir. 2010); E.E.O.C. v.
Chevron Phillips Chem. Co., LP, 570 F.3d 606, 617, 620 (5th Cir.
2009); Desmond v. Mukasey, 530 F.3d 944, 956 (D.C. Cir. 2008).
See also 29 C.F.R. § 1630.2(j)(1)(v) (“The comparison of an individual’s performance of a major life activity to the performance
of the same major life activity by most people in the general
15
had erred when it “unnecessarily limited its inquiry
to individualized medical evidence of the disability of
current residents” in deciding that SoCal and RAW
had failed to demonstrate a triable issue of fact as to
whether they served or intended to serve residents
who were “actually disabled.” Pet. App. 29a.
The question before the Ninth Circuit, then, was
what types of evidence may by used by a housing
provider to raise a triable issue whether it serves or
intends to serve persons whose impairments substantially limit their major life activities so as to meet the
definition of “actual disability.” Noting that its approach aligns with that of other circuit courts, the
Ninth Circuit explained that
“[i]n the context of zoning discrimination
against a home that aims to serve people
with disabilities, . . . courts must look at the
evidence showing that the home serves or intends to serve individuals with actual disabilities on a collective basis, including the home’s
policies and the standards the municipality
uses to evaluate the residence.
Pet. App. 34a-35a; see Pet. App. 24a (home may discharge burden by proof of “policies and procedures to
ensure that they serve or will serve those with actual
disabilities and that they adhere or will adhere to such
policies and procedures”).
population usually will not require scientific, medical, or statistical analysis.”).
16
The Ninth Circuit provided the district court with
a non-exclusive list of evidence that it should consider
on remand to determine whether SoCal and RAW had
generated a triable issue of fact whether they served
or intended to serve residents who are “actually disabled.” Pet. App. 25a. That evidence, which had been
submitted by SoCal and RAW but disregarded by the
district court, included “admissions criteria and house
rules, testimony by employees and current residents,
and testimony by former residents.” Pet. App. 25a. Evidence of the existence and enforcement of a zerotolerance policy also may be relevant to show that the
home is not occupied by persons who are currently using illegal drugs and thereby excluded from the definition of disabled. See Pet. App. 26a-28a. In reaching its
conclusion, the Ninth Circuit emphasized that the City
itself conceded at oral argument that a proposed group
home could meet the “actual disability” definition by
relying on “evidence of policies and procedures that the
group home has a zero-tolerance policy [re drugs and
alcohol], produced through declarations of individuals
related to the group home.” Pet. App. 25a (citing Oral
Arg. at 29:45-30:30).
The Ninth Circuit also concluded that the district
court had erred by using the pre-ADA Amendments
Act standard of proof of “regarded as disabled” and had
ignored substantial evidence that the City indeed “regarded” the persons SoCal and RAW served and intended to serve as disabled. It went on to identify
evidence that the district court must consider on remand in assessing whether respondents had raised a
17
triable issue whether the City regarded the residents
whom respondents served and sought to serve as disabled. Pet. App. 30a-33a.
The most important evidence identified by the
Ninth Circuit for the district court to consider on remand was the City’s own zoning code defining “sober
living homes” as “group home[s] for persons who are
recovering from a drug and/or alcohol addiction and
who are considered handicapped under state or federal
law.” Pet. App. 30a-31a (citing Costa Mesa Municipal
Code § 13-6). Additional evidence the panel identified
for the district court to consider on remand included
the City’s repeated statements in its own resolutions
and communications denying respondents’ permit applications. Pet. App. 31a. Those statements include the
formal findings by the City Council and Planning Commission that each applicant was operating a “sober
living home” made in City resolutions denying respondents’ permit applications. Pet. App. 31a-32a. As
further support for denying respondents’ applications,
both the City Council and Planning Commission made
findings that granting the requested permits would result in an “overconcentration” of sober living homes
and drug and alcohol treatment facilities in the neighborhoods in question. Pet. App. 31a-32a. In other
words, allowing respondents’ sober living homes to
continue operating would result in too many sober living homes in their neighborhoods. The district court
also must consider on remand the City’s repeated citations and fines against each respondent for operating
“sober living homes” without the necessary permits
18
and subsequent state court nuisance abatement actions filed against each respondent for operating “sober
living homes” without City approval. Pet. App. 32a33a.
Only after summarizing that evidence directly
bearing on whether the City regarded the residents as
disabled did the Ninth Circuit suggest that “oral testimony given at public hearings and written statements
submitted to the City by residents opposing the permit
applications” that reflect stereotypes about the homes’
residents was evidence that the district court should
consider in its “regarded as disabled” analysis, but only
if appropriately presented and to the extent it
appears in the City Council’s stated reasons
for adopting the Ordinances or denying permits and reasonable accommodation requests.
Pet. App. 33a-34a (emphasis added).
The court of appeals remanded to the district court
to consider “whether the record contains evidence sufficient to establish a genuine dispute of material fact
on the ‘actually disabled’ or ‘regarded as disabled’
prongs of the disability definition.” Pet. App. 35a (emphasis added). The panel later denied the City’s petition for rehearing en banc after no active judge
requested a vote on the rehearing petition. Pet. App.
70a-71a.
---------------------------------♦---------------------------------
19
REASONS FOR DENYING THE WRIT
I.
Review should be denied with respect to
the court of appeals’ decision on the “actually disabled” prong of the disability definition.
A. There is no inconsistency in the lower
courts regarding the evidence that may
be used to establish “actual disability”
in land use cases.
It is undisputed that the City’s zoning ordinances
define sober living homes as residential uses occupied
by persons considered disabled under the FHA, ADA,
and state law and that the City regulated SoCal and
RAW pursuant to those ordinances. The City nonetheless argues that review is necessary because of “confusion and inconsistency” in the lower court decisions on
how to assess “actual disability” in land use discrimination cases and on a claim that the resulting jurisprudence “contradicts the principles this Court has
laid down for discrimination suits brought by individuals.” Pet. 14-15. The cases cited by the City show no
such conflict. Each is consistent with the decision below and with this Court’s precedent.
Contrary to the City’s characterization, neither
the Ninth Circuit in its decision nor any of the other
circuits “simply presume” that group home residents
in recovery from substance abuse have a disability that
substantially limits their major life activities. Pet. 18,
21. In each “actual disability” case cited by the City, the
court of appeals acknowledged that while alcoholism
20
and drug addiction may be “impairments” under the
FHA or ADA, a finding of actual disability requires a
case-by-case assessment of whether the current or future residents or clients suffer from an impairment
that substantially limits their major life activities. Pet.
18-24 (citing Harmony Haus Westlake, L.L.C. v. Parkstone Prop. Owners Ass’n, 851 F. App’x 461, 464 (5th
Cir. 2021) (unpublished); Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-47 (2d
Cir. 2002) (RECAP); MX Grp., Inc. v. City of Covington,
293 F.3d 326, 336-37 (6th Cir. 2002)). Like the Ninth
Circuit here, each court of appeals examined the
unique facts and specific record in making the case-bycase determination whether the residents served by or
intended to be served by a home were substantially
limited in a major life activity. The evidence in this
case would raise a triable issue of fact on actual disability under any of those decisions.
In RECAP, for example, the Second Circuit found
that the record contained evidence establishing that
the future residents of a proposed halfway house for
recovering alcoholics would have qualified as “actually
disabled” under the FHA, ADA, and Rehabilitation Act.
RECAP, 294 F.3d at 47. RECAP’s future residents
qualified for the housing pursuant to New York regulations that limited residency to persons who, inter
alia, were “ ‘unable to abstain [from alcohol] without
continued care in a structured supportive setting.’ ” Id.
(internal citation omitted). The Second Circuit found
that this residency requirement served to limit residency to persons in recovery who were substantially
21
limited in their ability to care for themselves, a major
life activity. Id. at 47-48.
In MX Group, the Sixth Circuit also recognized
that while drug addiction may be an impairment, proof
of actual disability under the ADA required proof that
the impairment substantially limits a major life activity. It found that the evidence supported the district
court’s judgment, after a bench trial, that the future
clients of the plaintiff ’s proposed methadone clinic
would have satisfied that requirement. 293 F.3d at
328-29, 336-38. That evidence included the clinic’s requirement that all clients must provide proof that they
had been addicted for at least one year, including physical dependence, and the testimony regarding the effect of drug addiction on the ability of its clients to
engage in the major life activities of working, functioning socially and parenting and that the clinic planned
to provide programs to address those issues. 293 F.3d
at 337, 338 n.2, 339. The Sixth Circuit’s decision also
rested on alternative grounds – that the future clients
of the methadone clinic qualified as disabled because
they had a “record of a disability” and were “regarded
as disabled” by the city when it denied the zoning permit. Id. at 338-42.
In Harmony Haus, an unpublished, non-precedential decision by the Fifth Circuit, the panel found no
error in the district court’s conclusion, after a bench
trial, that current and future residents of a sober living
home qualified as disabled under the FHA. 851 Fed.
App’x, at 463-65. It upheld the district court’s conclusion that the risk of relapse constituted a substantial
22
limitation on the current residents’ ability to care for
themselves. Id. at 464. The panel relied on record evidence, including that three current residents had testified regarding their inability to live alone and care
for themselves without relapse, that residents typically came directly from inpatient treatment centers,
and that living in a sober living home after treatment
helps recovery. Id. at 463-64. As for future residents
whose identities were unknowable, the panel looked to
the home’s admission criteria, coupled with current
resident testimony as representative of the experiences of future residents, to conclude that the district
court did not err in finding that future residents met
the definition of “actually disabled.” Id. at 464-65.
The other cases cited by the City did not address
the issue presented here. In United States v. Southern
Management Corp., 955 F.2d at 916, a community drug
and alcohol abuse treatment center sought to rent
housing for a planned second phase of its recovery program. Contrary to the City’s argument, the Fourth Circuit’s decision in Southern Management did not rest on
application of the “actual disability” definition and is
unhelpful here. Pet. 18-19. Instead, the Fourth Circuit
upheld the district court’s summary judgment on the
grounds that the proposed residents qualified as disabled under the FHA under the “regarded as” prong of
the disability definition. 955 F.2d at 917-19 (discussing
HUD final rule implementing the FHAA, codified at 24
C.F.R. § 100.201(d)(1), (2)).
Lakeside Resort Enterprises, LP v. Bd. of Sup’rs of
Palmyra Twp., 455 F.3d 154, 155 (3d Cir. 2006), is even
23
more unhelpful. The City’s contention that the Third
Circuit “elected to ignore the ‘substantially limits’ requirement” of the disability definition, Pet. 20, rests entirely on a footnote in which the court of appeals
simply “not[ed] that at least two other courts have held
that recovering alcoholics and drug addicts are handicapped, so long as they are not currently using illegal
drugs.” 455 F.3d at 156 n.5. But that footnote did not
comprise part of the holding; indeed the issue was not
even in dispute. The case concerned whether the proposed facility qualified as a “dwelling” under the FHA.
Id. at 154.
B. The decision below correctly applies an
established rule of law to the evidence
of record.
In the decision below, the Ninth Circuit faithfully
applied this Court’s precedent requiring an individualized assessment of whether the persons whom SoCal
and RAW serve and seek to serve are “actually disabled.” The issue to be decided determines what evidence is relevant to the inquiry. Here, at issue is
whether the City ‘s regulation of housing violates the
FHA and ADA. Thus the question is whether that
housing was intended for persons meeting the definition of “actually disabled,” not whether any particular
person was substantially limited in a major life activity. Based on the unique facts of this case, therefore,
the individualized assessment had to focus on the attributes of the intended occupants of SoCal’s and
24
RAW’s sober living homes collectively, not on the peculiar facts regarding any specific resident.
At no time in either SoCal’s or RAW’s two- to
three-year permit application process did the City
have any interest in the particular limitations on major life activities of any specific SoCal or RAW resident.
See, e.g., 20-55820 C.A. Doc. 25-10, pp. 6-8, 19-22;
20-55870 C.A. Doc. 36-10, pp. 34-51, Doc. 36-11, pp.
5-62. Nor should it have. An individualized assessment
of the disability of current residents is merely a snapshot at a specific point of time. Had SoCal or RAW obtained a permit, its use would not have ended when
any particular resident moved out, but would have
continued into the future until the permit was surrendered by them or revoked by the City.
The Ninth Circuit’s conclusion that the district
court had erred in failing to consider all the evidence
relevant to the assessment of “actual disability” is not
the kind of decision this Court reviews. Whether evidence is relevant in any given case “is fact based and
depends on many factors.” Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 388 (2008) (citing Advisory
Committee’s Notes on Fed. Rule Evid. 401 (“Relevancy
is not an inherent characteristic of any item of evidence but exists only as a relation between an item of
evidence and a matter properly provable in the case.”)).
Moreover, the Ninth Circuit’s focus on the attributes of the housing, not the circumstances of specific
individuals, fits with one of the purposes for which the
Fair Housing Amendments Act of 1988 was enacted,
25
namely to counter the use of zoning and local land use
laws that impose restrictions on “congregate living arrangements among non-related persons with disabilities.” H.R. REP. No. 100-711, at 23-24 (1988), reprinted
in 1988 U.S.C.C.A.N. 2173, 2184-85. The United States,
in its amicus brief below, explained that requiring individualized proof that each resident of a proposed
group home was substantially limited in a major life
activity would impose an unsurmountable burden of
proof, insulating even the most blatant discriminatory
conduct from review. 20-55820 C.A. Doc. 30, p. 17
(“when a discriminatory zoning law prevents a group
home from opening in the first place – and, thus, no
current residents exist to put before the court – the
group home could never satisfy the disability element
of an FHA or ADA claim”); see Pet. App. 24a n.24
(same). Such a result contradicts the purpose of the
FHAA to remove discriminatory restrictions on the
housing choices of people with disabilities. H.R. REP.
No. 100-711, at 23-24.
II.
Review should be denied with respect to
the court of appeals’ decision on the “regarded as” prong of the disability definition.
The City identifies no error in the Ninth Circuit’s
correction of the district court’s erroneous reliance on
the pre-ADA Amendments Act standard to determine
whether respondents’ residents were “regarded as disabled.” Instead, the City focuses on one particular piece
of evidence that the panel suggested may be relevant
26
in deciding whether the City regarded the existing or
future residents of respondents’ homes as disabled and
ignores the bulk of the evidence upon which the decision rests. Pet. 26-28.
A. The decision below correctly applied
settled law to the facts of this case.
The City’s assertion that the Ninth Circuit “expanded the reach of the ‘regarded as’ prong to include
the perceptions of persons other than the entity accused of discrimination” by imputing to the City “opinions merely expressed by the public during forums”
finds no purchase in the actual opinion. See Pet. 25-26.
The court of appeals was careful to cabin the use of evidence of public statements in assessing how the City
regarded sober living residents. Such evidence is relevant only if it “appears in the City Council’s stated reasons for adopting the Ordinances or denying permits
and reasonable accommodation requests.” Pet. App.
34a. Conversely, if the public’s stated fears and prejudices do not appear as part of the City’s stated reasons
for its decision, then they have no relevance in determining whether the City “regarded” sober living home
residents as disabled.
Holding a city accountable for its own written
statement of reasons for an action breaks no new
ground. The general rule is that statements made by
members of the public at public hearings are not imputed to government unless there is some additional
evidence that the government entity acted because of
27
or in response to those public statements.8 This Court
does not grant review to reconsider the lower courts’
fact-specific application of established law.
Even if the City’s misreading of the Ninth Circuit’s
decision was correct (it is not), any mistake in identifying one small piece of evidence as relevant pales in
the face of the overwhelming direct evidence that the
City regarded SoCal’s and RAW’s residents as disabled
based on the City’s own statements in its ordinances
and repeated in official resolutions, citations and court
filings. The City’s zoning ordinances defined sober living homes as home for persons in recovery from substance abuse “who are considered handicapped under
state or federal law.” Pet. App. 30a-31a (citing Costa
Mesa Municipal Code § 13-6). In denying SoCal’s and
RAW’s permit applications, the City Council and Planning Commission repeatedly characterized their operations as “sober living homes.” Pet. App. 31a. Both
legislative bodies made formal findings that SoCal and
8
See Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 269 (1977) (plaintiffs failed to prove that city zoning
denial was motivated by a discriminatory purpose where the decision was based on standard zoning criteria even if some members of the public opposing project may have been motivated by
discriminatory animus); see also, e.g., City of Cuyahoga Falls v.
Buckeye Cmty. Hope Found., 538 U.S. 188, 196 (2003) (existence
of discriminatory statements made by sponsors of a citizen-driven
petition drive was insufficient to attribute either discriminatory
intent or state action to the defendant city); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (evidence showed
that the city’s decision to require permit was based on its concern
“with the negative attitude of the majority of property owners located [near the home], as well as with the fears of elderly residents of the neighborhood”).
28
RAW were operating “sober living homes” when they
denied respondents’ permit applications Pet. App. 31a32a. Both the City Council and Planning Commission
further found that they could not approve respondents’
permit applications because doing so would lead to an
“overconcentration” of sober living homes and drug
and alcohol treatment facilities in the affected neighborhoods. Pet. App. 31a-32a. The City also issued multiple citations and fines against each respondent for
operating “sober living homes” without the necessary
permits and filed state court nuisance abatement actions alleging that each respondent was operating a
“sober living home” without City approval. Pet. App.
32a-33a.
B. The circuits are in agreement on application of that settled rule of law.
The Ninth Circuit’s decision here and the circuit
cases cited by the City consistently refuse to impute
intent to municipalities based solely on statements
made by members of the public at hearings or in written submissions. There is no conflict to correct. Each
court concluded that such statements were relevant to
determining the municipality’s intent only in cases in
which the evidence supported finding that the decision
makers themselves acted for the same reasons or in
response to those statements. There is no need for this
Court “to bring the circuits into line.” Pet. 25, 27-30.9
9
See MX Grp., 293 F.3d at 341-42 (evidence showed that
both local residents and city law enforcement officers expressed
concerns that the methadone clinic clients would bring drug
29
There is no error on the part of the Ninth Circuit nor
any inconsistency in the circuits’ application of this
settled rule of law. Even if the City were correct in its
characterization of the state of the law, this case is not
a suitable vehicle for close examination of the issue because of the overwhelming record evidence otherwise
establishing that SoCal’s and RAW’s residents were
activity and violent crime to the neighborhood and that the city’s
decision to deny clinic’s permit application was based primarily
on that same concern); A Helping Hand, LLC v. Baltimore Cnty.,
515 F.3d 356, 365-66 (4th Cir. 2008) (the record “contain[ed]
abundant uncontroverted evidence that the County Council knew
of and legislated in response to community opposition to the [methadone] [c]linic”); RHJ Med. Ctr., Inc. v. City of DuBois, 564 F.
App’x 660, 664, 666 (3d Cir. 2014) (pre-ADA amendments case
concluding there was insufficient evidence that city “ ‘regarded’
the clinic’s potential patients as substantially limited with regard
to a major life activity” because there was no evidence that constituents regarded patients as substantially limited); Tsombanidis
v. West Haven Fire Dep’t, 352 F.3d 565, 579-80 (2d Cir. 2003), superseded by regulation on other grounds as stated in Mhany
Mgmt., Inc. v. County of Nassau, 819 F.3d 581 (2d Cir. 2016) (evidence supported finding intentional discrimination where the
district court had “noted the history of hostility of neighborhood
residents to [the plaintiff ’s group home] and their pressure on the
Mayor and other city officials,” and further, that evidence supported the district court’s finding “that this hostility motivated
the City in initiating and continuing its enforcement efforts”
against the plaintiff ); Innovative Health Sys., Inc. v. City of White
Plains, 117 F.3d 37, 40, 41-42, nn.1, 3, 49 (2d Cir. 1997) (upholding finding that the center had a likelihood of success on the merits on its discrimination claims where “[t]here is little evidence in
the record to support the [zoning board’s] decision [to deny the
land use permit] on any ground other than the need to alleviate
the intense political pressure from the surrounding community
brought on by the prospect of drug- and alcohol-addicted neighbors,” and the zoning board had failed to follow its own zoning
ordinance).
30
“regarded as disabled” by the City. Review should be
denied.
III. Review should be denied because the decision below is interlocutory and rests on
alternate grounds.
The petition should be denied because it seeks review of an interlocutory ruling. This Court generally
awaits final judgment in the lower courts before exercising its certiorari jurisdiction. Virginia Mil. Inst. v.
United States, 508 U.S. 946, 946 (1993) (Scalia, J., concurring) (denial of petition for certiorari before final
judgment rendered); Locomotive Firemen v. Bangor &
Aroostook R. Co., 389 U.S. 327, 328 (1967) (per curiam)
(denying petition for certiorari because “the Court of
Appeals [had] remanded the case” and thus it was “not
yet ripe for review by this Court”).
The district court granted petitioner’s motions for
summary judgment against each respondent. No party
has yet prevailed on respondents’ claims or petitioner’s
defenses. The court of appeals remanded the case to
the district court “to consider whether the record contains evidence sufficient to establish a genuine dispute
of material fact on the ‘actually disabled’ or ‘regarded
as disabled’ prongs of the disability definition.” Pet.
App. 35a. Interlocutory review is especially inappropriate here because the Ninth Circuit concluded that respondents had created triable issues of fact with
respect to both the “actually disabled” and “regarded
as disabled” prongs. Pet. App. 34a-35a. As discussed
31
above in Part II.A, the City must ignore the plain text
of the Ninth Circuit’s opinion to craft its question presented on the “regarded as disabled” issue. As a result, any decision by this Court on the first question
presented by the City on the “actual disability” prong
will not change the Ninth’s Circuit’s reversal of summary judgment and remand to the district court.
There, Costa Mesa will have a full and fair opportunity
to persuade the district court to reject respondents’
claims in the first instance – a result that would moot
the need for review by this Court.
IV. Petitioner and its Amici exaggerate the
need for review and the effect of the Ninth
Circuit’s decision.
The City claims that this Court’s guidance on
proof of disability is needed because of the “tsunami
of federal disability litigation” between sober living
homes and municipalities. Pet. 12-14. Other than cases
brought against the City of Costa Mesa challenging
the same ordinances challenged here, few cases in the
“tsunami” cited by the City touch on the issue of proof
of disability in land use cases. See Pet. 13-14, nn.7-9.
Nor is there anything in the Ninth Circuit’s decision that interferes with “traditional municipal control
over local zoning laws.” Brief of Amicus Curiae on Behalf of City of Mission Viejo, et al., at 17. Petitioner’s
amici argue that Congress must make “its intention
‘clear and manifest’ if it intends to pre-empt the historic powers of the States.’ ” Id., at 14 (citing City of
32
Edmonds v. Oxford House, Inc., 514 U.S. 725, 744
(1995) (Thomas, J., with whom Scalia and Kennedy JJ.
join, dissenting) (internal citations omitted)). But Congress manifested that intention clearly in the FHA.
With narrowly enumerated exceptions not relevant
here, see 42 U.S.C. § 3607, the FHA provides that “any
law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action
that would be a discriminatory housing practice under
this subchapter shall to that extent be invalid.” 42
U.S.C. § 3615. The ADA preempts state and local laws
if they provide less protection for the rights of people
with disabilities than the ADA. 42 U.S.C. § 12201(b).
California law similarly preempts local land use law
made unlawful by FEHA. Cal. Govt. Code § 12955.6.
Thus, federal and state fair housing laws do not impinge on local zoning powers unless those local powers
are exercised in a manner contrary to the anti-discrimination policies of the United States and California.
---------------------------------♦---------------------------------
33
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted,
ELIZABETH BRANCART
Counsel of Record
CHRISTOPHER BRANCART
BRANCART & BRANCART
Post Office Box 686
Pescadero, CA 94060
(650) 879-0141
ebrancart@brancart.com
Counsel for Respondents
October 17, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.