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.

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