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HomeMy WebLinkAboutPA007-113 FOR CA2007-006NEWPORT BEACH RESIDENTIAL CARE FACILITIES JacksonIDeMarcolTidusIPetersenIPeckenpaugh FEDERAL FAIR HOUSING ACT CASE RESEARCH 685920.1 Newport Beach Residential Care Facilities FAIR HOUSING ACT CASE RESEARCH J .1 THD'� !' ^, '-.�a;.,..y.!; y, ,,� 'r il, .,, ,,, •.1, :'•z':} ,�:�gt r.S i.y 1t t-,`•+'' id;0'+ IS Qri•UM 'n,. •-'� 1, j. Ji.• '�;, i. 1. }, , e,.•hsro t7,,,¢¢ 4^ two?H cr ,i�., �{ .;•a {�.�... ?tom` :t • .k ,�`w'3}, �' • 'it'; � ti.. �f3r2f•F�2;.N�'y�W`{{� t' 4 S' \'P'a f}.�2ryyt�6n• t1 F.•�t�, Y�'�L'D ' i� {t y"~M14.i-. St-�l 't, S. \ ��i�,-+��V ,�tXw h�,ii'=.••��—\ A �l fir aiJ ., {111 (iV�,\Y �: rit a ` n 1firt aiss,h' •f Y t :?, r' {' J�`' ` `� i1,f: Y��. a�t. `tilt ✓ H'�.�h �5*d'vtL}b' yP 3i$'�;t`w•< bk:.ni.+ s.'^i'+ s�'�'.�.. Ci 1. Community House, Inc. v. City of Boise, 2007 WL 1651315 (C.A.9 (Idaho)(June 8, 2007) 2. Familystyle of St Paul, Inc. v. City of St Paul, 923 F.2d 91 (1991) 3. Gamble v. City of Escondido, 104 F.3d 300 (1997) a • 7 4. Jeffrey O, v City of Boca Raton, 2007 WL 628131 (S.D.Fla)(Feb. 26, 2007) 7 5. McClure v. City of Long Beach, USDC, Central District of Calif., Case No. CV92- 2776-E (August 9, 2004) t 6. Nevada Fair Housing Center, Inc. v. Clark County, 2007 -U.S. Dist. Lexis'l2800 (D.Nev. Feb. 22, 2007) 1 7. Oxford House-C v. City of St. Louis, 77 F.3d 249 (1996) 8. Sanghvi v. City of Claremont, 328 F.3d 532 (2003) t i 573143697\725413.1 " Page 2 of 25 --- F.3d---- -- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.IL 6615 (CIte as: — F.3d —) H Community House, Inc. v. City of Boise C.A.9 (Idaho),2007. Only the Westlaw citation is currently available. United States Court of Appeals,Ninth Circuit. COMMUNITY HOUSE, INC.; Marlene K. Smith; Greg A. Luther; Jay D. Banta, Plaintiffs -Appellants, Y. CITY OF BOISE, Idaho; David H. Bieter, Mayor; Boise City Council; Maryann Jordan; Elaine Clegg; Vernon Bisterfeldt; David Eberle; Jerome Mapp; Alan Shealy, Boise City Council Members; Bruce Chatterton, Director, Planning and Development Services; Jim Birdsall, Manager, Housing and Community Development, Defendants -Appellees. No. 05-36195. Argued and Submitted June 7, 2006. Filed Nov. 9, 2006. Amended June 8, 2007. June 8, 2007. Background: Nonprofit corporation that formerly had managed city -owned homeless shelter sued. city and individual city employees and city council members after city assumed management of shelter and leased it to religiously affiliated organization. Nonprofit sought to preliminarily enjoin several of shelter's policies and practices, including exclusion of women and families, and requirement that residents attend worship services in order to receive other services.'The United States District Court for the District of Idaho, Lynn Winmill, Chief Judge, 2005 AIL 2847390, granted injunctive relief in part, as to required worship services, but denied broader preliminary injunction. Nonprofit appealed. Holdings: The Court of Appeals, Thompson, Senior Circuit Judge, held that: (1) preliminary injunction was warranted under Fair Housing Act based on shelter's change to men -only policy; Page 1 (2) there was no evidence of disability discrimination under Act; and (3) preliminary injunction was warranted under Establishment Clause, based on shelter's providing voluntary daily religious services for residents. Affirmed in part and reversed and remanded in part. Callahan, Circuit Judge, filed opinion concurring in part and dissenting in part. Opinion, 468 F.3d 1118, superseded. [1] Federal Courts 170B C�776 170B Federal Courts" 170BVM Courts of Appeals 170BVM(K) Scope, Standards, and Extent 170BVM(K)l In General 170Bk776 k. Trial De Novo. Most Cited Cases Federal Courts 170B C�815 " 170B Fedeml.Courts 170BVIH Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVM(K)4 Discretion of Lower Court 170Bk814 Injunction 170Bk815 k. Preliminary Injunction; Temporary Restraining Order. Most Cited Cases In general, Court of Appeals reviews district court's denial of preliminary injunction for abuse of discretion; when district court is alleged to have relied on erroneous legal premise, Court of Appeals reviews underlying issues of law de novo. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/printtprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 3 of 25 —F.3d- --- F.3d --, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily 7oumal D.A.R. 6615 (Cite as: — F.3d --) [2] Injunction 212 0;�138.1 212 Injunction 2121V Preliminary and Interlocutory Injunctions 2121V(A) Grounds and Proceedings to Procure 2121V(A)2 Grounds and Objections 212kl38.1 k. In General. Most Cited Cases To obtain preliminary injunction, movant must show either. (1) likelihood of success on the merits and possibility of irreparable injury, or (2) existence of serious questions going to merits and balance of hardships tipping in movanfs favor. [3] Civil Rights 78 C�*1403 78 Civil Rights 781II Federal Remedies in General .78k1400 Presumptions, Inferences, and' Burdens of Proof 78k1403 k. Property and Housing. Most Cited Cases McDonnell Douglas burden -shifting test was inapplicable to Fair Housing Act claim of sex and familial discrimination .arising from city -owned homeless shelter's men -only policy; policy explicitly treated women and families different from men, and thus claim had to be analyzed according to test applicable to facially discriminatory policies, regardless of whether shelter's manager had benign purpose. Civil Rights Act of 1968, § 804(a), 42 U.S.C.A. § 3604(a). [4] Civil Rights 78 0�1403 78 Civil Rights 781H Federal Remedies in General 78k1400 Presumptions, Inferences, and Burdens of Proof 78k1403 k. Property and Housing. Most Cited Cases McDonnell Douglas test is inapplicable to Fair Housing Act challenges to a facially discriminatory policy. Civil Rights Act of 1968, § 801 et seq., 42 U.S.C.A. § 3601 et seq. 15] Civil Rights 78 C�1075 Page 2 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1075 k. In General. Most Cited Cases In order to justify facially discriminatory housing policy under Fair Housing Act, defendant must show either. (1) that restriction benefits protected• class, or (2) that it responds to legitimate safety concerns raised by individuals affected, rather than being based on stereotypes. Civil Rights Act of 1968, § 804(a), 42 U.S.C.A. § 3604(a). [61 Civil Rights 78 4D=1457(4) 78 Civil Rights 78M Federal Remedies in General 78kl449Injunction 78k1457 Preliminary Injunction 78kl457(4) k. Property and Housing. Most Cited Cases Preliminary injunction was warranted against city under Fair Housing Act, based on city -owned homeless shelter's change to men -only policy; balance of hardships 'tipped in favor of excluded women and families, there was no evidence beyond shelter's manager's largely conclusory testimony that policy protected women and families' safety, and there were serious questions as to whether displaced women and families would be only temporarily disadvantaged, as -manager maintained. Civil Rights Act of 1968, § 804(a), 42 U.S.C.A: § 3604(a). [7] Civil Rights 78 C�1403 78 Civil Rights 78111 Federal Remedies in General 78k1400 Presumptions, Inferences, and Burdens of Proof 78kl403 k. Property and Housing. Most Cited Cases McDonnell Douglas burden -shifting test was applicable to Fair Housing Act disability discrimination claims against manager of homeless shelter, where shelter's policies were not facially discriminatory with regard to the disabled. Civil Rights Act of 1968, § 804(f), 42 U.S.C.A. § 3604(f). m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/printlprintstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 —F.3d— -- F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) [8] Civil Rights 78 C�1082 78 Civil Rights . 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1082 k. Public Housing; Public Assistance. Most Cited Cases Prima facie case of disparate -treatment housing discrimination under Fair Housing Act against manager of homeless shelter required plaintiffs to show that: (1) they were members of protected class; (2) they applied for and were qualified for shelter; (3) they were rejected; and (4) openings at shelter remained available. Civil Rights Act of 1968, § 804(f), 42 U.S.C.A. § 3604(f). [91 Civil Rights 78 C�1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases There was no evidence that any residents of city -owned homeless shelter, which had changed from inclusive to men -only policy, were treated differently because of their disabilities, precluding, Fair Housing Act disability -discrimination claim against city; substantial numbers of disabled persons were included in both former residents who were required to move out because of new policy, and new residents who moved in, from shelter lessee's second facility. Civil Rights Act of 1968, § 804(f), 42 U.S.C.A. § 3604(f). [10] Federal Courts 170E �613 170B Federal Courts 170BVM Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of Grounds of Review 170BVIH(D)l Issues and Questions in Lower Court 17013k612 Nature or Subject -Matter of Issues or Questions 17013013 k. Constitutional Questions. Most Cited Cases Page 4 of 25 Page 3 On appeal from district courts denial of preliminary injunction in action challenging city -owned homeless shelter's practice of providing religious services for shelter residents, Court of Appeals would decline to consider claim based on state constitution, which was raised for first time on appeal; there was no need to prevent miscarriage of justice, there had been no change of applicable law, and claim did not present pure question of law. Idaho Const. Art. 1, § 4; Art. 9, § 5. (11] Federal Courts 170B a611 170B Federal Courts 17OBVIU Courts of Appeals 170BVIII(D) Presentation and Reservation in .Lower Court of Grounds of Review 170BVIH(D)l Issues and Questions in Lower Court 170Bk6ll k. Necessity of Presentation in General. Most Cited Cases Court of Appeals reviews issue raised for first time on appeal: (1) to prevent miscarriage of justice; (2) when change in law raises new issue while appeal is pending; and (3) when issue is purely one of law. [12] Federal Courts 170B �611 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of Grounds of Review 170BVIH(D)l Issues_ and Questions in Lower Court 170Bk6ll k. Necessity of Presentation in General. Most Cited Cases Court bf Appeals' decision to consider issue not raised below is discretionary; issue is not decided if it would prejudice other party. . [13] Federal Courts 170B a611 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of Grounds of Review 170BVIH(D)l Issues and Questions in Lower Court 170Bk6ll k. Necessity of Presentation m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/printtprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 5 of 25 i i 3 —F3d-- — F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) in General. Most Cited Cases Even if parry failed to raise issue in district court, Court of Appeals generally does not deem issue waived if district court actually considered it. [141 Constitutional Law 92 C�1295 92 Constitutional Law 92XIII Freedom of Religion and Conscience 92XID(A) In General 92k1294 Establishment of Religion 92k1295 k. In General. Most Cited Cases On Establishment Clause challenge to government action, court asks whether. (1) government acted with purpose of advancing or inhibiting religion, and (2) governmental aid has effect of advancing or inhibiting religion. U.S.C.A. Const.Amend. 1. [151 Constitutional Law 92 C=1301 92 Constitutional Law 92XM Freedom of Religion and Conscience 92XIII(A) In General 92k1294 Establishment of Religion 92kl301 k. Aiding, Funding, Financing, or Subsidization of Religion. Most Cited Cases Primary criteria for evaluating whether governmental aid has "effect" of -advancing religion, thus warranting finding of Establishment Clause violation, are whether. (1) aid in question results in government indoctrination; (2) recipients of aid are defined by reference to religion; and (3) aid creates excessive government entanglement with religion. U.S.C.A. Const.Amend. 1. [16] Civil Rights 78 C�1457(4) 78-Civil Rights 78111 Federal Remedies in General 78kl449 Injunction 78k1457 Preliminary Injunction 78kl457(4) k. Property and Housing. Most Cited Cases Preliminary injunction• was not warranted against city under Establishment Clause, based on city -owned homeless shelter's providing voluntary religious services for its residents, on theory that Page 4 need for city to monitor shelter to ensure that services were not made mandatory would " excessively entangle" city with religion; there was no showing that city would be required to do more than conduct occasional unannounced visits. U.S.C.A. Const.Amends. 1, 14. [17] Civil Rights 78 C�1457(4) 78 Civil Rights 78111 Federal Remedies in General 78k1449 Injunction 78k1457 Preliminary Injunction 78k1457(4) k. Property and Housing. Most Cited Cases Preliminary injunction was warranted against city under Establishment Clause, based on city -owned homeless shelter's providing voluntary religious services for its residents, on' theory that such services constituted indoctrination attributable to city; lessee that managed shelter, a religiously affiliated organization, conducted daily 60-minute Christian chapel services, and lease was publicly financed, raising serious questions about both indoctrination and whether that indoctrination was attributable to city. U.S.C.A. Const.Amend. 1. [181 Constitutional Law 92 C�1301 92 Constitutional Law 92ME Freedom of Religion and Conscience 92XIII(A) In General 92k1294 Establishment of Religion 92k1301 k. Aiding, Funding, Financing, or Subsidization of Religion. Most Cited Cases Actual diversion of secular government aid to religious indoctrination violates Establishment Clause. U.S.C.A. Const.Amend. 1. Howard A. Belodoff, Boise, ID, for the plaintiffs -appellants. Phillip J. Collaer, Boise, ID, for the defendants -appellees. Brent D. Sokol, Los Angeles, CA, for amici curiae Anti -Defamation League and Americans United for Separation of Church and State. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Sp lit&rs=W... 7/31 /2007 Page 6 of 25 -- F.3d — — F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-05-00283-BLW. Before DAVID R. THOMPSON, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges. ORDER AMENDING OPINION AND DENYING PANEL AND EN BANC REHEARING AND AMENDED OPINION *1 The Opinion in this case was filed November 9, 2006, and published at 468 F.3d 1118 (9th Cir.2006) . A timely petition for panel rehearing and for rehearing en bane was filed. Footnote 2 of the Opinion, appearing at 468 F.3d 1123, is deleted. A substituted footnote 2 is inserted in its place, which substituted footnote reads as follows: 2. Although we applied the FHA to a homeless shelter in DimingPolnl Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir.1996), the question of whether the FHA generally applies to homeless shelters was not at issue because the parties did not dispute that the FHA applied. We have never. squarely addressed the issue of whether all temporary shelters fit within the Acts definition of " dwelling," see 42 U.S.C. § 3602(b); nevertheless, we decline to do so here. While the lease states that the Community House facility is to be used as an " emergency homeless shelter," the facility provides more than transient overnight housing. The district court specifically found that the facility generates up to $125,000 in rent per year from forty-nine transitional housing units in which the tenants reside for up to a year and a half. We therefore have little trouble concluding that at least part of the facility " is occupied as, or designed or intended for occupancy as, a residence by one or more families," and thus qualifies as a "dwelling" under section 3602(b). Moreover, at least in the handicap discrimination context, the regulations interpreting the coverage of the FHA specifically contemplate that "residences" Page 5 within homeless shelters qualify as "dwellings." The regulations provide that a "dwelling unit" may include "other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than orie room or portion of the dwelling, rooms in which people sleep." 24 C.F.R. § 100.201. Examples of these other types of dwelling units " include - dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons" Id. (emphasis added). With regard to the petition for panel rehearing and for rehearing in bane, Judges Thompson and Tashima voted to deny the petition for panel rehearing and recommended denial of the petition for rehearing en - bane. Judge Callahan voted to grant the petition for panel rehearing and to grant the petition for rehearing en bane. The full court was advised of the petition for rehearing en bane and no judge requested a vote on whether 'to rehear the matter en bane. See Fed. R.App. P. 35. The petition for panel rehearing and for rehearing en bane is DENIED. No further petitions for panel or en bane rehearing will be entertained. OPE41ON THOMPSON, Senior Circuit Judge. The plaintiffs -appellants Community House, Inc. (" CHr'), Marlene K Smith, Greg A. Luther, and Jay D. Banta (collectively, "plaintiffs") appeal the district courts partial denial of their motion for a preliminary injunction against the defendants -appellees City of Boise, Idaho, its mayor, its city council members, and two of its employees. *2 The City of Boise owned a homeless shelter, Community House, which was managed by CHI and provided housing to men, women, and families. In 2004, the City assumed management of Community House and then leased it to the Boise Rescue Mission Ministries ('BRM"), a Christian non-profit organization. The women and families were m 2Q07 Thomson/West. No Claim to Orig. U.S. Govt Works. https://web2,westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 -- F.3d---- -- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) removed from Community House, and the BRM now provides shelter there only to homeless men. The BRM also includes a religious component in the services it.provides. The district court declined to order reinstatement of residents that had been removed from Community House, but enjoined the practice of requiring residents to attend worship services in order tb receive other services. The court did not preclude the use of Community House by the BRM for voluntarily -attended religious programs. The plaintiffs assert that the district court abused its discretion by denying a preliminary injunction that (1) would have reinstated Community House residents excluded by the menonly policy, and (2) would have voided the City's lease with the BRM. The plaintiffs . argue that the men -only policy violates the Fair Housing Act, and that the lease with the BRM violates the Idaho Constitution and the Establishment Clause of the United States Constitution. We have jurisdiction under 28 U.S.C. § 1292(a)(1). With regard to the plaintiffs' Fair Housing Act claims based on sex and familial discrimination, we reverse the district courts denial of a preliminary injunction that would have required reinstatement of all former residents. We conclude that the district court erred in applying the test of McDonnell Douglas Corp. Y. Green, 411 U.S. 792, 802-04; 93 S.Ct 1817, 36 L.Ed.2d 668 (1973), because the City's men -only policy is facially discriminatory. See Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 n. 16 (loth Cir.1995). With regard to the plaintiffs' Establishment Clause claim, we reverse the district coures denial of a broader preliminary injunction. We conclude that the district court abused its discretion by determining that only a limited injunction was necessary to avoid an Establishment Clause violation. A broader preliminary injunction is required. With regard to the plaintiffs' Idaho Constitution claim, which they have raised for the first time in this appeal, for the reasons hereafter set forth we Page 7 of 25 Page 6 exercise our discretion and decline to consider it. LBACKGROUND CHI is a non-profit corporation that provides housing services to homeless and low income persons. Beginning in 1994, CHI and the City worked together to build a homeless shelter known as Community House. Community House contained both a homeless shelter and a low income housing unit. The homeless shelter could hold, in separate dormitories, sixty-six men, thirteen women, and ten families. The low income, or "transitional," -housing contained ten family units and thirty-nine single -resident apartments. Community House could accommodate the disabled, and about seventy-five percent of its residents were disabled. *3 In 2004, following a dispute with CHI, the City took over operation of Community House. The City then initiated a Request for Proposal bid process for the operation of Community House, and ultimately chose the bid of the BRM. The City leased Community House to the BRM on September 2, 2005. The BRM is a Christian non-profit organization that has served the homeless population of Boise, Idaho for almost fifty years, most recently at four facilities in both Boise and Nampa, Idaho. The BRM's Boise facilities include a homeless shelter for single men known as the Boise Rescue Mission, and a shelter for women and children known as the City Light Home. The BRM's winning bid proposal contained a plan to move homeless men from the Boise Rescue Mission to the Community House facility, and then turn the Boise Rescue Mission into a shelter for homeless women and children. The BRM's policy is to segregate men and women into different facilities, and to segregate homeless singles from homeless families. It believes that the difficulties of serving the homeless population "are exacerbated in a mixed gender shelter environment." The chief goal of the BRM is to "help .people at their physical and spiritual points of need" by ® 2007 Thomson(West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printlprintstream.aspx?prt=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 8 of 25 — F.3d -- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d --) providing, among other assistance, "Christian teaching." Before dinner, the BRM offers a sixty -minute Christian chapel service. The service consists of singing, scripture reading, prayer, testimonies, and preaching. In June of 2005, before its lease to the BRM commenced, the City told staff members at Community House not to accept any new residents. In August of 2005, in anticipation of the September 2005 transition to the BRM, the City informed residents of Community House that they needed to move. This move caused significant hardship for some residents, most notably women, families, and the physically disabled. There was already. a shortage of housing in the area, and these persons, for the most part, had to move into much less desirable housing than Community House. The plaintiffs filed this action under the Fair Housing Act FNt and other laws. The plaintiffs sought a preliminary injunction to prevent the removal of residents from Community House, to reinstate former residents, and to prevent the sale or lease of Community House during the pendency of this action. On October 28, 2005, the district court granted the plaintiffs' motion in part, enjoining the City from relocating any former resident of Community House to housing that is near the residence of a registered sex offender. The district court also enjoined the City from participating in a lease with the BRM if the BRM continued to require attendance at religious meetings as a condition of receiving services. Neither party has challenged these orders. The district court denied the plaintiffs' request for an injunction requiring that former residents of Community House excluded by the men -only policy be allowed to return. The court determined that the plaintiffs had not raised serious questions that the City was discriminating against women, families, or the disabled under the Fair Housing Act. The district court further, denied the plaintiffs' request for a broader injunction regarding the BRM's religious activities at Community • House, determining that the court's more limited injunction removed any Establishment Clause violation. This appeal followed. H. STANDARD OF REVIEW Page 7 *4 [1) Our review of a district court's decision regarding a preliminary injunction is "limited and deferential." Sw. Voter Regis tradon Educ. Project v. Shelley, 344 F.3d 914, 918.(9th Cir.2003) (en bane). In general, we review a denial of a preliminary injunction for abuse of discretion. See id The district court "necessarily abuses its discretion when it bases its decision on an erroneous legal standard or on clearly erroneous findings of fact." Rucker v. Davis, 237 F.3d 1113, 1118 (9th Cir.2001) (en bane), rev'd on other grotwds, Dept ofHous. & Urban Dev. v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002). When the district court is alleged to have relied on an erroneous legal premise, the review the underlying issues of law de novo. See Does 1-5 v, Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). III. DISCUSSION A. Requirements for a Preliminary Injunction [2] To obtain a preliminary injunction, the moving party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the moving party's favor. See Wamoldier v. Woodford, 418 F.3d 989, 993-94 (9th Cir.2005)." These two alternatives represent extremes of a single continuum, rather than two separate tests." Id. at 994 (citation omitted). B. Fair Housing Act Claims The plaintiffs argue that the district court abused its discretion by denying the full preliminary injunction they sought. They contend they have shown that serious questions exist on the merits regarding whether the City, in its lease with the BRM, is discriminating against women, families, and the disabled at Community House in violation of the 0 2007 ThomsontWest. No Claim to Orig. U.S. Govt. Works. https://web2..westlaw.com/printlp rintstream.aspx?prf=HTM LE&destination=atp&sv=Split&rs=W.. 7/31 /2007 Page 9 of 25 --F.3d— -- F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) Fair Housing Act FN2 It is undisputed that the balance of hardships tips in favor of the plaintiffs who were excluded from Community House due to the men -only policy. As to the Fair Housing Act claims, therefore, the issue is whether the plaintiffs have raised serious questions that the policies at Community House, which the City authorizes, constitute gender, familial, or disability discrimination in violation of the Fair Housing Act. 1. Gender and Familial Discrimination [3] The plaintiffs assert that the district court erred in applying the McDonnell Douglas test to their gender and familial discrimination claims because the men -only policy at Community House is facially discriminatory. We agree. A facially discriminatory policy is one which on its face applies less favorably to a protected group.FN3 See Frank v. United Airlines, Inc., 216 Fad 845, 854 '(9th Cir.2000); see also Bangerter, 46 F.3d at 1500 (holding that an ordinance that singled out the handicapped and applied different rules to them was facially discriminatory). The men -only policy at Community House is facially discriminatory because it explicitly treats women and families different from men. See Intl Union, United Auto., Aerospace & Agric. implement Workers of Am. Y. Iohnson Controls, Inc, 499 U.S. 187, 197, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). City documents and policy endorse this discrimination. *5 While the lease between the City and the BRM provides that the BRM 'shall operate "an emergency homeless shelter with a capacity to serve not fewer than sixty-six (66) guests," City Ordinance No. 6404 provides that Community House be operated as "a shelter for a minimum of 66, single, homeless, men, ages 18 years or older." (emphasis added). City Resolution No. 18765, approving the lease of Community House to the BRM, specifically incorporates the restrictions of City Ordinance No. 6404. More importantly, regardless of the language of the Page 8 City's lease with the BRM, the City does not dispute that the current policy is to run Community House as a men -only shelter. The district court found that " gy is undeniable ... that the City treated women differently than men" because "the men could reapply to be readmitted [to Community House] by [the] BRM, while the women were shut out by the men -only policy." [4) We hold, contrary to the district court, that the plaintiffs' gender and familial discrimination claims are properly characterized as claims of facial discrimination and should be analyzed in that framework. The McDonnell Douglas test is inapplicable to Fair Housing Act challenges to a facially discriminatory policy. See Bangerter, 46 F.3d at 1501 n. 16 ("There is no need to probe for a potentially discriminatory motive circumstantially, or to apply the burden -shifting approach outlined in McDonnell Douglas ... as the statute discriminates on its face by allowing conditions to be imposed on group housing for the handicapped which would not be permitted for non -handicapped group housing."); Reidt Y. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir.1992) ("The McDonnell Douglas procedure is inapt in a situation involving a facially discriminatory policy...:'). Instead, the Supreme Court's decision in rohnsao Controls, 499 U S. at 200-01, provides the appropriate approach in facial discrimination cases such as this. In Johnson Controls, the Supreme Court held that an employer's policy barring all women, except those whose infertility was medically documented, from jobs involving lead exposure constituted sex discrimination forbidden under Title Vt. See id. at 211. The Supreme' Court held that the employer's policy was facially discriminatory because it explicitly discriminated against women on the basis of their sex. See id. at 197. The Supreme Court noted that this conclusion was not undermined by the ostensibly benign purpose of the employer's policy (protecting women's unconceived offspring). See id. at 199 ("[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://webZ.westlaw.com/printtprintstream.aspx?pr[t=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 10 of 25 —F.3d- - F.3d —, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: —F.3d —) employer discriminates but rather on the explicit terms of the discrimination."). *6 Because the employer's policy in Johnson Controls was facially discriminatory, the Supreme Court concluded that the appropriate . test was whether sex was a "bona fide occupational qualification" ("BFOQ"). See id at 200; sod also 42 U.S C. § 2000e-2(e)(1) (Under Title VII, an employer may discriminate on the basis of " religion, sex, or national origin in those certain instances where religion? sex, or national origin is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or -enterprise."). The Supreme Court held that the employer's policy was not within the safety exceptions of the BFOQ defense. See id. at 204-06. As a result, the Supreme Court concluded that the employer's facially discriminatory policy violated Title VII. See id. at 211. With regard to facially discriminatory housing policies, under the Johnson Controls approach, "a plaintiff makes out a prima facie case of intentional discrimination under the ,[Fair Housing Act] merely by showing that a protected group has been subjected to explicitly differential-i.e. discriminatory -treatment" Bangerter, 46 F.3d at 1501. Here, the plaintiffs have established a prima facie case of facial discrimination under the Fair Housing Act because they have explicitly been excluded from Community House based on their gender and familial status. As in the employment context, however, this does not mean that intentional differential treatment can never be justified under the Fair Housing Act See id at 1501 n. 17 ("This is not to say that a government can never justify any intentional differential treatment of the handicapped[under the Fair Housing Act]. Some differential treatment may be objectively legitimate. In the Title VII context, for example, facially discriminatory treatment is permitted if it represents a ... [ ]BFOQ[ ] that is reasonably necessary to an employer's operations." ); Childrens Alliance v. City of Bellevue, 950 F.Supp. 1491, 1497 (W.D.Wash.1997) ("Even though the language of the Ordinance singles out Page 9 individuals for discriminatory treatment based on their familial status and handicap, a proper justification can legitimize the different treatment and validate the Ordinance."). [5] We have not previously adopted a standard for determining the propriety or acceptability of justifications for facial discrimination under the Fair Housing ActM4 The circuits that have addressed this issue are split The Eighth Circuit employs the same 'standards for analyzing a defendant's rationales in challenges under the Fair Housing Act as it applies to claims under the Equal Protection Clause. See Oxford House-C v. City of St Louis, 77 F.3d 249, 252 (8th Cir.1996) (applying national basis review to a defendant's proffered justifications for an ordinance that facially discriminated against disabled persons); Famil. Yle of St Paul v. City of St. Paul, 923 F.2d 91, 94 (8th Cir.1991) (same). The Sixth and Tenth Circuits employ a more searching method of analysis. To allow the circumstance of facial discrimination under the Sixth and Tenth Circuits' approach, a defendant must show either: (1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. See Larkin, 89 F.3d at 290; Bangerter, 46 F.3d at 1503-04. *7 We will follow the standard adopted by the Sixth and Tenth Circuits, which standard is, we believe, more in line with the Supreme Court's analysis in Johnson Controls Moreover, the Eighth Circuit's approach is inappropriate for Fair Housing Act claims because some classes of persons specifically protected by the Fair Housing Act, such as families and the handicapped, are not protected classes for constitutional purposes. See Bangerter, 46 F.3d at 1503; Children's Alliance, 950 F.Supp. at 1497-98. FN5 [6) Having determined the appropriate scrutiny to apply for determining whether the City's facial discrimination under the Fair Housing Act is permissible, we now evaluate the City's proffered justifications for the men -only policy at Community House. The City asserts two justifications for the discriminatory policy: (1) safety concerns and (2) the policy allows the BRM to transfer homeless '® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. hftps://web2.westlaw.com/printlp rintstream.aspx?p rft=HTM LE&destination=atp&sv=Sp lit&rs=W.. 7/31/2007 -- F.3d ---- --- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) men from its Boise Rescue Mission shelter to Community House, so that it can convert the Boise Rescue Mission into a shelter for women and children.17146 We conclude that the plaintiffs have paised serious questions as to whether these asserted justifications satisfy the standards for permissible discrimination underthe Fair Housing Act. The City provides little support to establish that the menonly policy benefits women and families by protecting their safety. The City's only evidence regarding safety concerns is an affidavit from Bill Roscoe, the. BRM's Executive Director. Roscoe states that "[a]s a person with nearly 20 years of experience serving the -homeless, it is my opinion that mixing disparate populations in the same sleeping facility unnecessarily fosters conflicts:' He also states that: The problems [of serving the homeless] are exacerbated in a mixed gender shelter environment. Further, it is not always appropriate to have families, particularly families with young or vulnerable children, to sleep in the same facility as other members of the homeless population. We believe that our separate shelter facilities for men and women • is one of the reasons why we have fewer police calls at our facilities than Community House. For example, in 2004, all five of Rescue Mission's facilities combined had less than one-half of the police calls of Community House. other than Roscoe's opinion, the City did not submit a single police report, incident report, or any other documentation that supported any safety concerns. The "fewer police calls" at the BRMs other facilities does not establish that the men -only policy is justified by safety concerns. There could have been fewer police *calls due to fewer residents at the other facilities. Or, there could have been fewer police calls due to fewer disabled residents at those facilities and therefore less need for emergency medical assistance. We do not foreclose the possibility that at a later stage in this litigation, the City may be able to provide evidence to establish that its men -only policy is indeed justified by legitimate safety concerns. Cf. Everson V. Mich. Dept ofCorrecdons, 391 F.3d 737, 751-61 (6th Cir.2004) (holding that Page 11 of 25 Page10 female gender was a bona fide occupational qualification under Title VII for certain officers at female prisons "since evidence showed that exclusion of males was reasonably necessary for prison security as well as the safety and privacy of the inmates); Robino v. franon, 145 F.3d 1109, 1110-11 (9th Cir.1998) (same). However, at this point in the litigation, the plaintiffs have shown that serious questions exist on the merits as to whether the City's men -only policy at Community House is justified by safety concerns. , *8 The City's other asserted justification for the men -only policy at Community House is that it will allow the BRM to transfer homeless men from its Boise Rescue Mission shelter to Community House, so that it can convert the Boise Rescue Mission into a shelter for women and families. It argues that the men -only policy benefits women and families because they will only be temporarily disadvantaged in order to receive increased shelter space at the nearby Boise Rescue Mission when its conversion is completed. The plaintiffs, however, have raised serious questions whether women and families will be only temporarily disadvantaged. There is no legal obligation binding the BRM to convert its Boise Rescue Mission shelter to serve women and families. In fact, the BRM admitted that it may never convert its Boise Rescue Mission facility into a shelter for women and families. The, BRM told the City that: If our proposal to own Community House. is accepted, we currently contemplate that we'would convert the 6th & Front [i.e., Boise Rescue Mission] facility into an emergency homeless shelter for women and children. Because owning Community House is only'a possibility, we have not done any planning, feasibility studies or other evaluations. Therefore, we are unable to provide you with anything more specific. Those studies may indicate that an emergency shelter for women and children is infeasible at our 6th & Front site. Also, we may discover that the property would better serve the needs of the homeless as a center for another program, or that it would simply be better to abandon and sell the property. We will make those decisions once we know whether or not, and m 2007 Thomson/West No Claim to Orig. U.S. GovL Works. https://web2.westl aw.com/printtpriritstream.aspx?p rft=HTMLE&destination=atp&sv=Split&rs=W.. 7/31 /2007 Page 12 of 25 -- F.3d -- --- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) on what terms, we will be able to own Community House. Even if the Boise Rescue Mission is converted into a shelter for women and families, 'because • the plaintiffs have raised serious questions as to the City's safety justification for the discriminatory treattent, there is a serious question that sheltering women and families at Boise Rescue Mission separately from men would benefit women and families by satisfying a required safety need. Further, even if the conversion were t8 occur, women and families could still be disadvantaged by the men -only policy at Community House, because shelter there could be more desirable than shelter at the Boise Rescue Mission. In this regard, Community House, which is owned by the City, must comply with the Establishment Clause while the Boise Rescue Mission, which is not owned by the City, is not so restricted. Because the City's men -only policy at Community House is facially discriminatory regarding women and families, the more stringent test of Tohnson Controls applies. Under the Johnson Controls framework, the plaintiffs have raised serious questions regarding the merits of the City's proffered justifications for the men -only policy at Community House. There is no dispute that the balance of hardships tips in the plaintiffs' favor. Accordingly, the district court abused its discretion by denying the plaintiffs' request under the Fair Housing Act for a preliminary injunction requiring, at this stage of the litigation, reinstatement of Community House residents excluded by the men -only policy. 2. Disability Discrimination *9 [7] The plaintiffs also argue that the district court erred in holding that they had not raised serious questions that policies at Community House discriminate against persons with disabilities. With regard to the disabled, the City's policies at Community House are not facially discriminatory, and thus the McDonnell Douglas test is appropriate for analyzing those claims. In McDonnell Douglas, the Supreme Court established a three -stage, Page11 burden -shifting test for analyzing disparate treatment discrimination claims under Title VII. See McDonnell Douglas Corp., 411 U.S. at 802-04. The McDonnell Douglas'test'has also been applied in the Fair Housing Act context. See Cramble, 104 F.3d at 305. [81 Under the McDonnell Douglas test, the plaintiffs in this case must first establish a prima faeie case of discrimination with regard to their disability discrimination claims. See id. To establish such a prima facie case, the plaintiffs must show (1) that they are members of a protected class, (2) that applied for and were qualified for shelter at Community House, (3) that they were rejected, and (4) that openings at the shelter remained available. See id. After the plaintiffs have established a pfima facie case, the burden then shifts to the defendants who must articulate a legitimate, nondiscriminatory reason for their action. See id If the defendants meet their burden, the burden then shifts back to the plaintiffs to prove by a preponderance of the evidence that the reason asserted by the defendants is a mere pretext. See id [9] Here, the plaintiffs have not raised a prima facie case of disparate treatment based on disability. The district court found the limited record showed that both "the former residents of Community House that were moved out and the former residents of the Boise Rescue Mission who were moved in ... have substantial numbers of disabled individuals in their ranks." While there may be a lower percentage of disabled persons among the new Community House residents, the district courfs factual finding is not clearly erroneous. Thus, there is no evidence thus far that any plaintiffs were treated differently because of their disability. See 42 U.S.C. § 3604(f)(1)-(2). We conclude that the district court did not abuse its discretion by denying a preliminary injunction regarding the plaintiffs' disability• discrimination claims. C. Constitutional Claims The plaintiffs additionally argue that the district m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/3112007 I )' Page 13 of 25 --- F.3d --- --- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: —F.3d —) court should have granted a broader preliminary injunction with regard to their religious establishment claims because the City's lease with the BRM violates the Idaho Constitution and the Establishment Clause of the First Amendment of the United States Constitution. The plaintiffs assert that they have raised serious questions regarding whether the lease is unconstitutional and therefore they are entitled to the preliminary injunction they sought. 1. Waiver *10 [10] The City argues we should not consider the plaintiffs' constitutional claims because they are being raised for the first time on appeal. [11][121 ,We will review an issue that has been raised for the first time on appeal under certain narrow circumstances ... [:](1) to prevent a miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law." Kimes v. Ston e, 84 F.3d 1121, 1126 (9th Cir.1996) (internal citations omitted)."The decision to consider an issue not raised below is discretionary, and such an issue should not be decided if it would prejudice the other party." Id We decline to consider the plaintiffs' Idaho Constitution claim raised for the first time in this appeal. Not one of the three narrow circumstances which must exist for us to consider that issue is present in this case. There is no need to prevent a miscarriage of justice, there has been no change of applicable law, and although the plaintiffs argue that the City's lease of Community. House to the BRM violates two provisions of the Idaho Constitution, Article 1, section 4 • and Article 9, section 5, that question is not a pure question of law. Accordingly, we exercise. our discretion not to review the plaintiffs' Idaho Constitution claim. (131 We will consider, however, the plaintiffs' Establishment Clause claim. The parties dispute whether the Establishment Clause challenge was raised before the district court. We need not resolve whether this issue was raised before that court Page 12 ' because even if a party fails to raise an issue in the district court, we generally will not deem the issue waived if the district court actually considered it. See Harrell v. 20t6 Century Ins. Co, 934 F,2d 203, 206 n. 1 (9th Cir.1991). Here, the district court considered and resolved the Establishment Clause issue. Accordingly, we will consider it. 2. Establishment Clause The plaintiffs argue that the district court abused its discretion by denying the full extent of their requested preliminary injunction because the City's lease with the BRM violates the Establishment Clause of the First Amendment of the United States Constitution. The district court only enjoined the City from leasing Community House to the BRM if the BRM requires attendance at religious meetings as a condition of receiving homeless services. The district court declined to more broadly enjoin the City from participating in a lease with the BRM in which the BRM conducts .religious meetings in the Community House facility. We hold that the district court abused its discretion by not granting a broader preliminary injunction with regard to the Establishment Clause claim. a. Legal Framework [14] The Establishment Clause provides that " Congress shall make no law respecting an establishment of religion." FNr U.S. Const. amend. I. When assessing whether government, aid to religious organizations violates the Establishment Clause, we apply the three -pronged test first articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1972).F"s *11 Under the Lemon ,test, government action survives an Establishment Clause challenge if it (1) has a secular purpose, (2) has a primary effect of neither advancing nor inhibiting religion, and (3) does not foster excessive government entanglement with religion. See id. In Agostini v. Felton, 521 U.S. 203, 222-23, 234, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), the Supreme Court refined the Lemon test by folding the "excessive entanglement" inquiry m 2007 TbomwrifWest. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?p rf=HTM LE&destination=atp&sv=Sp lit&rs=W.. 7/31/2007 li --- F.3d-- -- F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) into, and setting out revised criteria for, the "effect" prong. See Mitchell v. Helms, 530 U.S. 793, 807-08, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (Thomas, J., plurality); see also Mitchell, 530 U.S. at 84445 (O'Connor, L, concurring). Thus, under the Lemon Agostirri test, we ask (1) " whether the government acted with the purpose of advancing or inhibiting religion," and (2) "whether the [governmental] aid has the `effect' of advancing or inhibiting religion." FN9 Agostini, 521 U.S. at 222-23. [15] The Supreme Court has identified three primary criteria for evaluating whether that aid has the "effect" of advancing religion (i) whether governmental aid results in government indoctrination; (ii) whether recipients of the aid are defined by reference to religion; and (iii) whether the aid creates excessive government entanglement with religion. See Agostku,, 521 U.S. at 234; see also Mitchell, 530 U.S. at 808 (Thomas, J., plurality); Mitchell, 530 at 845 (O'Connor, J., concurring). The same primary criteria are considered when determining whether aid constitutes an impermissible "endorsement" of religion. See Agosdw, 521 U.S. at 235; Mitchell, 530 U.S. at 845 (O'Connor, L, concurring). b. District Court's Decision In the present,case, the district court applied the Lemon test and held that only a limited preliminary injunction regarding the City's lease with the BRM was required to avoid an Establishment Clause violation. Under the first Lemon prong, the district court found that the lease had the secular purpose of providing shelter to the homeless. With regard to the second Lemon prong, the district court determined that the plaintiffs had raised serious questions about whether the primary effect of the lease was secular or religious because there was evidence the BRM required an explanation from any homeless person who did not want to attend a religious meeting, and there was some evidence that the BRM required attendance at religious meetings as a condition of receiving services. As a result, the district court enjoined the City from participating in Page 14 of 25 Page 13 the lease with the BRM if the BRM directly or indirectly required residents of Community House to attend religious meetings as a condition of receiving housing or other services. With this qualification, the district court found that the primary effect of the lease was secular. The district court also found that its injunction would remove any excessive government entanglement with religion, the third Lemon prong, and concluded that the lease would not violate the Establishment Clause. On this basis, the district court denied the plaintiffs' request for a broader preliminary injunction. The district court did not apply the Agostini modification to the Lemon test, nor did it consider Mitchell. . c. Application of Legal Framework to this Case *12 Applying the Lemon test, as modified by Agostini, we conclude that the district court abused its discretion by denying a broader preliminary injunction. While the City's lease of Community House to the BRM meets the "purpose" prong of the test of Lemon Agostim, it fails the "effect" prong. There is no plausible dispute that the'City leased Community House to the BRM for the valid secular purpose of providing shelter to the homeless, not to promote religion. The first part of the Lemon AgosW test is therefore not in question and we need not discuss it. [16) The issue is whether the City's lease of Community House to the BRM has the "effect" of advancing religion under the test of Lemon Agostiru See Agostior' 521 U.S. at 223; see also Lemon, 403 U.S: at'612. The plaintiffs assert that the lease has this effect in two ways. First, they argue the lease creates excessive government entanglement with religion because it requires extensive monitoring of Community House by the City to ensure that there are no violations of the district court's injunction or the Establishment Clause. Second, they argue that the lease results in governmental indoctrination because it provides the BRM with a publicly financed facility in which to spread its religious message. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt Works. https://web2.westlaw. com/printlprintstream.aspx?prft=HTM LE&desti nation=atp&sv=Split&rs=W... 7/31 /2007 --- F.3d -- --- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) Addressing the plaintiffs' first argument -excessive entanglement • due to extensive monitoring -the plaintiffs have not raised serious questions that the lease will. excessively entangle the City with religion. Government oversight to ensure that public funding is not used for religious purposes is not necessarily excessive entanglement. See KDM v. Reedsport Scb. Dist, 196 F.3d 1046, 1051 (9th Cir.1999). "Entanglement must be `excessive' before it runs afoul of the Establishment Clause" Agostini, 521 U.S. at 233. In Agosdw, the Supreme Court held that unannounced monthly visits (monitoring remedial -education public school teachers sent to parochial schools) in order to detect or prevent inculcation of religion did not constitute excessive government entanglement. See M. at 234 ("[W]e have not found excessive entanglement in cases in which States imposed far more onerous burdens on religious institutions than the monitoring system at issue here.") (citing Bowen v. Kendrick, 487 U.S. 589, 615-17, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (finding no excessive entanglement where government reviewed the programs conceived and materials used by religious grantees of federal aid and monitored the recipients' activities through periodic visits)). At this stage of the litigation, there is insufficient evidence that greater monitoring by the City than that deemed constitutionally permissible in Agosthu would be required. Accordingly, the plaintiffs have not shown that serious questions exist regarding excessive entanglement as a result of monitoring by the City. [17] We next consider the plaintiffs' argument that the City's lease of Community House to the BRM results iff governmental indoctrination of religion. To satisfy this criterion, the plaintiffs must show (1) that the BRM's activities at Community House constitute or result in indoctrination, and (2) that such indoctrination is attributable to the government. See DeStefano, 247 F.3d at 414 (citing Agosdai, 521 U.S. at 226). *13 "To 'indoctrinate' means '[tlo instruct in body of doctrine or principles.... To imbue with Page 15 of 25 Page14 partisan or ideological point of view....' The Supreme Court uses `indoctrination' synonymously with `inculcation.' To' `inculcate' is `[t]o impress (something) upon the mind of another by frequent instruction or repetition; [to) instill.' " Id (internal citations omitted). The record shows that the BRM conducts a daily sixty -minute Christian chapel service at Community House before dinner. The chapel service consists of singing, scripture reading,. prayer, testimonies, and preaching. It thus appears that the BRM is giving instruction in, and imbuing those Community House residents in attendance at the chapel Service with, the tenets of Christianity. This is true even assuming attendance at the chapel service is voluntary. The plaintiffs have thus raised a serious question that the BRM's activities at Community House constitute religious indoctrination. The next question is whether such indoctrination is attributable to the government. The BRM's lease of Community House is publicly financed.Mto The City charges the BRM rent of $1 per year for five years for a furnished 34,000 square foot building worth at least $2.5 million. The City has also given the BRM a 20-month option to buy the property for $2 million, which is $500,000 less than the minimum value' that the City Established for the property in July 2005. Under the lease, the City insures the premises and pays for necessary repairs. The City asserts, however, that religious indoctrination cannot be attributed to it because of its neutral treatment of the BRM. The City points out that there is no evidence that the bid process to lease Community House to the BRM was religiously biased. In addition, the City notes that the prior Community House lease with CHI, a secular organization, provided a fifty year term with rent fixed at $1 per year. Thus, the City's lease with CHI was even more publicly financed than its current lease with the BRM. In Mitchell, Justice Thomas, writing for the plurality, argued that neutral administration of a government aid program could immunize the state from a charge that disbursement of public funds to religious groups constitutes governmental indoctrination: C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printfprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 -- F.3d --- — F.3d --, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently tamed to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government... To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to.all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. *14 Mitchell, 530 U.S. at 809-10 (Thomas, J., plurality) (citation omitted). However, Justice 'O'Connor' disagreed with the plurality's "near -absolute position with respect to neutrality." Mitchell, 530 U.S. at 838 (O'Connor, J., concurring). Importantly, Justice O'Connor's concurrence is the controlling authority given that she concurred in the result on narrower grounds than those on which the plurality rested.F1`Tt1 See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.") (citation omitted); see also Geatala v. City of Tucson, 244 F.3d 1065, 1076 (9th Cir.2001) ("We are left ... with a clear holding by a Supreme Court majority that when the government subsidizes religious activity, the fact that it is' doing so pursuant to a program that treats religious speech or association coequally with other speech is not, standing alone, determinative in Establishment Clause analysis."), rev'd on other grounds, 534 U.S. 946, 122 S.CL 340, 151 L.Ed.2d 256 (2001); DeStefano, 247 F.3d at 418 (stating that Justice O'Connor's view in Mitchell' is controlling); Columbla'Union Coll. v. Oliver, 254 F.3d 496, 504, 504 n. 1 (4th Cir.2001) (same); Simmons Harris v. Zehnan, 234 F.3d 945, 957 (6th• Cir.2000) (same), Page 16 of 25 Page1S rev'd on other grounds, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). In her concurrence in Mitchell, Justice O'Connor did not dispute that "neutrality is an important" factor in deciding Establishment Clause aid cases. Mtchell, 530 U.S, at 838 (O'Connor, J., concurring). However, she noted that"[w]e have never held that a government -aid program passes constitutional muster solely because of the neutral criteria it employs as a basis for distributing aid." Id. at 839. Justice O'Connor alsd disagreed with the Mitcheh ,plurdlity's conclusion that actual diversion of government aid to religious indoctrination does not indicate an impropriety under the Establishment Clause.FN12 See id. at 840. In contrast to the plurality, she emphasized that "actual diversion of government aid to religious indoctrination" is constitutionally suspect and is more central to the Establishment Clause jurisprudence than neutrality or secular contentFN13 Id. She noted that although Supreme Court "cases have permitted some government funding of secular functions performed by sectarian organizations," the Courts decisions " provide no precedent for the use of public funds to finance religious activities." Id (citation omitted). [18] Thus, Mitchell stands for the proposition that actual diversion of secular; government aid to religious indoctrination violates the Establishment Clause. See id. at 840-42. Here, according to the showing that has been made at this stage of the litigation, it appears that the aid from the City (i.e., the subsidized Community House facility) is actually being diverted for Christian chapel services in addition to other services for the homeless. Accordingly, under Mitchell, the plaintiffs have raised serious questions that the BRM's religious indoctrination occurring at Community House is attributable to the City. *15 Other Supreme Court cases support the conclusion that, to avoid an Establishment Clause violation, a publicly financed government building may not be diverted to religious use. See Roemer v. Bd. of Pub. Works, 426 U.S. 736, 760-61, 96 S.CL 2337, 49 L.Ed.2d 179 (1976) (upholding program ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 17 of 25 --- F.3d -- Page 16 — F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R 6615 (Cite as: — F.3d ) of direct state financial aid to private colleges and universities, including religious ones, because there was a statutory prohibition against sectarian use of the funds); Hunt v. McNair, 413 U.S. 734; 744-45, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (upholding program of state aid to colleges and universities, including religious ones, to finance construction because funds were not allowed to be used for the construction of religious facilities). Indeed, in Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), the Supreme Court overturned a portion of a statute that authorized federal loans and grants to institutions of higher learning that would have allowed publicly financed buildings to be used for religious purposes because that portion of the statute violated the Establishment Clause. While the statute contained a provision prohibiting the use of the funds to construct facilities for sectarian worship, ' the provision expired after twenty years. See id at 675. Applying the Lemon test, the Court held that if, after expiration of the twenty-year prohibitory period, the benefitted religious institutions used the facilities for sectarian worship, then the "effect" of the government's grant would be religious advancement. See id at 683. The Court thus struck down the expiration of the twenty-year limit in order to avoid an Establishment Clause violation. See id at 689. Because the plaintiffs have raised serious questions. as to whether the BRM's religious activities at the publiclyfinanced Community House facility constitute governmental indoctrination of religion, they have established that serious questions exist regarding whether the City's aid to the BRM has the "effect" of advancing religion. The plaintiffs have, therefore, raised serious questions regarding an Establishment Clause violation. The fact that the plaintiffs have raised "serious First Amendment questions compels a finding that there exists the potential for irreparable injury, or that at the very least the balance of hardships tips sharply in [the plaintiffs') favor.' Stunmartauo v. First Iudicial Dist. Cou4 303 F.3d 959, 973 (9th Cir.2002) (quoting Viacom Intl Inc. v. FCC, 828 F.Supp..741, 744 (N.D.Ca1.1993)). We therefore hold that the plaintiffs have demonstrated that the balance of hardships tips in their favor. See id at 974. We conclude that the district court abused its discretion by denying the plaintiffs' request for a broader preliminary injunction. The district court should have enjoined the conduct of the chapel services and other religious activities at Community House, even if participation in those activities is voluntary. IV. CONCLUSION The district court appropriately applied the McDonnell Douglas test to the plaintiffs' disability discrimination claims and we affirm its denial of a preliminary injunction as to those contentions. *16 We reverse the district coures denial of a preliminary injunction, both with regard to the men -only policy at Community House and with regard to the religious activities at Community House. Because the men -only policy at. Community House is facially discriminatory, the district court erred in applying the McDonnell Douglas test. Under the facial discrimination test of Tohuson Controls, the plaintiffs have raised serious questions as to whether the City is discriminating against women and families in violation of the Fair Housing Act. There is no dispute that the balance of hardships tips in favor of the plaintiffs. Accordingly, we reverse the district courts denial of the plaintiffs' request for a preliminary injunction that would require the reinstatement of Community House residents excluded by the men -only policy. The plaintiffs have also raised serious questions as to whether the City's aid to the BRM by providing it with the Community House building has the "effect" of advancing religion and violates the Establishment Clause. The balance of hardships as to this claim tips in the plaintiffs' favor. We, therefore, reverse the district courfs denial of the plaintiffs' request for a broader preliminary injunction prohibiting chapel services and other religious activities at the Community House facility. Each party shall bear his, her, and its own costs on appeal. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Mips://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 18 of 25 — F.3d -- -- F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite aso--F.3d ) AFFIRMED. IN PART; REVERSED IN PART; AND REMANDED. CALLAHAN, Circuit Judge concurring and dissenting. I agree with much of the majority opinion; however, on three important points we part company.FNt First, while I agree with the majority that the district court should have applied the test set forth in Ini'1 Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Abhnsou Controls, Ina, 499 U.S. 187, 200-01, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991), I read the record as including evidence that the temporary dislocation of homeless women was necessary for safety concerns and for the long-term increase_in the facilities available to homeless women. Second, even if there is some question as to whether the overall scheme constituted a "bona fide occupational qualification" under Iohasou Controls, id. at 200, the appropriate remedy is to vacate the district court's order and remand for further proceedings. Third, although the majority correctly identifies the critical issue on appellants' Establishment Clause claim, its conclusion that the Boise Rescue Mission Ministries' voluntary chapel services constitute religious indoctrination attributable to the governmentis neither factually nor legally sound. My analysis starts with the same factual determination as the majority: the men -only policy at Community House is facially discriminatory because it explicitly treats women and families different from men. Fuithermore, we agree that the district court erred in applying the test set forth in McDonnell Douglas Corp, v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and should have applied the approach adopted in Iohasou Controls, 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158. In rohnson Controls, the Supreme Court held that discrimination based on gender was forbidden under Title VII "unless respondent can establish that'sex is a `bona fide occupational qualification.' " ("BFOQ'.') Id. at 200. *17 I also agree with the majority that in examining discrimination issues under the Fair Housing Act, Page17 we have frequently drawn from employment discrimination analysis (see maj. op. 6985-86 n. 3), and importantly, that we "have not previously adopted a standard for determining the propriety or acceptability of justifications for • facial discrimination under the Fair Housing Act." (maj.op.6989) I appreciate the majority's recognition of a split between our sister circuits as to the standard to be applied for analyzing a defendant's rationales in challenges under the Fair Housing Act as it applies to claims under the Equal Protection Clause. I do not object to the majority's adoption of the approach adopted by the Sixth and Tenth Circuits in requiring that a restriction be based on legitimate public concerns, rather than stereotypes, and benefits the protected class. See Larkin v. Michigan Dept of Social Servs.., 89 F.3d 285, 290 (6th Cir.1996), and Bangerter v. Orem City Corp., 46 F.3d 1491, 1503-04 (10th Cir.1995). Nonetheless, applying this more exacting test, appellants have not demonstrated that they are entitled to injunctive relief. The City proffered two justifications for the men -only policy at Community House: (1) safety concerns, and (2) transferring men to Community House would allow Boise Rescue Mission Ministries (" BRM°') to convert another one of its facilities into a shelter for women and children. The safety conceins are the type of legitimate interests, not based on stereotypes, that may satisfy the first prong of the test for allowing a facially discriminatory provision. Indeed, the majority recognizes that safety concerns might justify the men -only policy. (See maj. op. 6991) I would affirm as I agree with the district court that "the record contains evidence supporting the safety problems inherent in housing homeless men with homeless women." Moreover, even if I were to determine that safety concerns were not adequately addressed on tbis record, I would remand the matter to the district court to take additional evidence. FN2 The City addressed the second prong of the test by offering evidence that the men -only policy at Community House was only a temporary disadvantage necessary to allow the conversion of the nearby Boise Rescue Mission into increased shelter space for women and children. In Bangerter, m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/printtp rintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 19 of 25 3• �--F.3d-- --F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) the Tenth Circuit observed that "courts have uniformly allowed defendants to justify their conduct despite the discriminatory impact if they can prove that they `furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect' " and noted that a similar approach had been suggested for certain intentional discrimination claims under the Fair Housing Act 46 F.3d at 1504-05 (internal citations omitted). Here, the district court held: It appears to the court that with the lease, the city seized the opportunity to (1) tam over operations of Community House to an expert; (2) immediately increase the space for homeless men; and (3) eventually increase the space for homeless women and children. In other words, the City made the political decision to trade short-term hardship for long-term gain. *18 If the Court were to intervene, it would simply transfer the hardship from one class of homeless women to another. By ordering the return of former female residents to Community House, the Court would scuttle any deal for increased space at the Boise Rescue Mission and shift the hardship to the women who would have.occupied that space. This case is about scarce resources, not discrimination. I would hold that the district courfs reasoning - supports a determination that the men -only policy at the Community House was in effect a "BFOQ" intended to result in additional and better shelters for women and children.FN3 We should not be so shortsighted as to not recognize that improving the housing for certain groups of people may require some short-term disadvantages. It is not clear whether the majority disagrees with the proposition that the long-term benefits may justify short-term disadvantages. It seems to question the factual premise of the district courts determination, rather than its legal analysis. The majority -cites BFM's reticence, prior to the approval of its bid for Community House, to commit to the conversion of the Boise Rescue Mission. The district court, however, found that " Page 18 BRM made that commitment in its proposal to the City, and there is no evidence that the BRM intends not to honor its commitment." I would hold that although the district court erred in applying the McDoaaell Douglas standard instead of the Johasori Coatrols approach, the error was harmless because the City presented evidence that fairly supports the district courfs determination that the men -only policy was part of a program designed to increase the homeless shelter available to women and children, and this determination is entitled to deference. Nat? Wildlife Federation v. Nat7 Marine Fisheries Serv., 422 F.3d 782, 793 (9th Cir.2005) (" A district court's order• with respect to preliminary injunctive relief is subject to limited appellate review, and we will reverse only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact" (internal quotation marks and citation omitted)). 0 Moreover, if the district court's error is not harmless, the proper remedy is not the issuance of injunctive relief; but the vacation of the district courts denial of the preliminary injunction and a remand to allow the district court to develop the underlying facts and to apply circuit law as articulated ' in this opinion. In the penultimate paragraph in its opinion in Bangerter, the Tenth Circuit wrote: These courts all recognize the importance of leaving room for flexible solutions to address the complex problem of discrimination and to realize the goals established by Congress in the Fair Housing Act However, once again, such an. analysis cannot be performed on the pleadings alone. It could be that the evidence will show that such a neighborhood advisory committee might prove to be beneficial td the handicapped, increasing their access to, and acceptability in, the neighborhood. Only after a record has been developed can the district court, and ultimately our Court, determine whether these restrictions violate the FHAA. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 ---F.3d — Page 20 of 25 Page19 --- $.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R 6615 (Cite as: — F.3d ) *19 46 F.3d at 1505 (footnotes omitted). These concerns recommend that we stay our hand and remand this case to allow for further development of the evidence. The majority, however, charges into the fray, despite recognizing that the applicable law and relevant facts are less than clear, and without citing any authority for its activism. Indeed, the single case cited by the majority for the "requirements for a preliminary injunction," Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.2005), concludes by reversing and remanding "for further proceedings not inconsistent with this opinion." Id. at 1002. In light of the majority's enunciation of a standard that admittedly was not clear when the district court acted and the inevitable effects of the passage of time, the proper form of relief -were relief warranted -is a vacation of the district court's denial of injunctive relief and a remand for further proceedings consistent with this court's opinion. III Again, I start at the same place as the majority on appellants' Establishment Clause claim, but cannot agree that • appellants have demonstrated that they are entitled to affirmative action from this court or the district court. We agree that the appropriate test is that set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-23 (1971), and modified by Agosthd v. Felton, 521 U.S. 203, 222-23, 234, 117 S.Ct. 1997; 138 L.Ed.2d 391 (1997). See also Mitchell v. Helms, 530 U.S. 793, 807-08, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (Thomas, I., plurality) and Mitchell, 530 U.S. at 844-45 (O'Connor, J., concurring). As noted by Justice O'Connor in her concurring opinion in Mitchell, following Agostiui, the Court has articulated three primary criteria to guide the determination whether a government -aid program impermissibly advances religion: (1) whether the aid results in governmental indoctrination, (2) whether the aid program defines its recipients by reference to religion, and (3) whether the aid creates an excessive entanglement between government and religion. 530 U.S. at 845. Here, we agree that the appellants have not shown that serious questions exist regarding excessive entanglement (see maj. op. 7000), and it appears that neither the City in its lease, nor the BRM in managing the shelter, " defines the recipients by reference to religion." Thus, for there to be any violation of the Establishment Clause there must be "governmental indoctrination ." The majority reasons that "governmental indoctrination" has two components: (1) that BRM's activities at Community House constitute or result in indoctrination, and (2) that such indoctrination is attributable to the government. (See maj. op. 7000, citing DeRefauo v. Emergency Hous Gmup, Inc., 247 F.3d 397, 414 (2d Cir.2001)). For the purposes of this dissent, I accept the majority's determination that BFM's holding of chapel services constitutes " indoctrination." The majority, however, fails to appreciate the Supreme Court's opinions in Agostim and Mitchell when it concludes that this " indoctrination" is attributable to the City. *20 The majority's conclusion is based on its finding that "it appears that the aid from the City (i.e. the Community House facility) is actually being diverted for Christian chapel services in addition to other services for the homeless." (maj.op.7004) This finding is factually suspect and employs disapproved legal analysis. On the existing record, it is questionable whether there is any "aid" flowing from the city*to the BRM. What is known is that the BRM pays the City a dollar a year. The BRM has a five-year lease, and the City insures the premises and pays for necessary repairs. The majority also notes that the BRM has a 20-month option to buy the property for two million dollars, which is $500,000 less than the minimum value that the City established for the property in July 2005. But, there is no suggestion that the BRM's bid was not the best bid that the City received. Also, as the majority notes, the City's prior lease with a secular organization was even more favorable to the lessee. Furthermore, it appears that Community House was constructed ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:ilweb2 .westlaw.com/printlprintstream.aspx?ptft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 21 of 25 — F.3d---- Page 20 -- F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) with federal funds and that this restricts what the City can do with Community House. In addition, the record reflects that the BRM is a Christian non-profit organization that serves the homeless population in Boise. There is nothing in the record to suggest that the lease of Community House somehow enriches the BRM. Rather, it appears that the lease allows the BRM to provide homeless shelters that otherwise would have to be furnished (and paid for) by the City or simply would not exist Perhaps a record could be developed to show that the lease constitutes "aid" from the City. to the BRM, but the present record neither compels, nor supports, such a factual determination. The majority's conclusion is also based on a concept of diversion that was strongly rejected in M/tcheh both by Justice Thomas in his plurality opinion and by Justice O'Connor in her concurring opinion. The majority's reasoning appears to be that whatever "aid " flows from the City to the BRM by way of -the lease is "diverted" from the secular purpose of the lease -providing shelter -to the religious purpose of holding non -mandatory chapel services. This is out of step with the plurality and concurring opinions in Mitchell. The situation at bar does not constitute governmental indoctrination under Justice Thomas's plurality opinion in Mitchell. Although Mitchell concerned a distinct issue, - aid to private religious schools, the impact of the plurality's position on this case is clear. Justice Thomas wrote: In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently tamed to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and a religious are all alike' eligible for governmental aid, no orie would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. *21 530 U.S. at 809-10. In our case, the City, pursuant to a request for proposals, determined that the BRM could best meet its secular purpose of providing shelter to the homeless. Under the plurality's approach, the incidental holding of voluntary chapel services for the homeless does not rise to the level of governmental indoctrination. Justice Thomas recognized that the aid in issue in Mitchell could indirectly benefit the religion that operated the school, but held that this could not reasonably be viewed as an endorsement of religion. M4 Id. at 835. Justice Thomas's plurality opinion should be 'read in conjunction with Justice O'Connor's concurring opinion. The majority here focuses on Justice O'Connor's statement that the Court has "never held that a government -aid program passes constitutional muster solelybecause of the neutral criteria it employs as a basis for distributing aid." Mitchell 530 U.S. at 839 (emphasis in original), and her objection to the " actual diversion of government aid to religious indoctrination." (maj.op.7003) This misses the critical distinction between Justice O'Connor's concurring opinion and Justice Souter's dissent. Justice O'Connor, joined by Justice Breyer, held that the aid in issue in Mitchell did not result ht governmental hrdocb*adon, even though it obviously had some indirect benefit to the religion that ran the school. Similarly, even assuming that some aid flows from the City to the BRM, under Justice O'Connor's concurring opinion in Mitchell, this does not amount to government indoctrination. Justice O'Connor observed that in recent years the Court "had taken a more forgiving view of neutral goverment programs that make aid available generally without regard to the religious or nonreligious character of the recipient" Mitchell, 530 U.S. at 847, citing'Agosdm,, 521 U.S. at 225-26 . In addition, she, like the plurality, recognized that almost any aid could be diverted FN5 To meet these realities, Justice O'Connor proposed that to " establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes." Id. at 857. However, she would reject any presumption that secular restrictions were not followed. Id. at 859. Justice O'Connor also indicated that a de minunis diversion would not raise constitutional concerns. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. u https://web2.westlaw.com/printtpri ntstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 22 of 25 �. —F.3d- --- F.3d----, 2007 WL 1651315'(C.A.9 (Idaho)), 2007 Daily Journal D.A.R. 6615 (Cite as: — F.3d —) FN6 Id. at 861. In our case, any aid flowing from the City to the BRM is truly do mhthnis The BRM has agreed to undertake the not inconsiderable expense of maintaining a homeless shelter, in return for the City insuring the premises and paying for necessary repairs.FNt As it does- not appear that the BRM receives any funds from the City, there is no possibility of any actual diversion of money. Accordingly, the majority ventures into the relatively unchartered waters of determining when intangible assistance from a governmental entity amounts to "governmental indoctrination" I would not embark on this course because, here, conducting chapel services at which attendance is voluntary, in conjunction with generally providing homeless services, simply does not rise to a level of constitutional concern. *22 Finally, even if it were determined that holding voluntary chapel services could amount to government indoctrination, the proper course, as previously explained (see Part II), would be to vacate the district courss denial of injunctive relief, and to remand to allow the parties to present the factual evidence necessary for even a preliminary determination that the BRM's holding of voluntary chapel services might amount to government indoctrination. IV In sum, I would affirm the district court's denial of a preliminary -injunction. Although the district court erred in failing to apply the test set forth in Tohnson Controls, 499 U.S, at •200-01, this was harmless error because the record shows that the City offered two bona fide government interests to sustain the lease. in addition, this record contains no showing of the "governmental indoctrination" necessary for judicial relief from an alleged violation of the Establishment Clause under the Supreme Court's opinions in Agostini, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391, and Mitchell, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660. Lastly, even if the district court had erred in denying the appellants preliminary relief; the proper remedy would be a Page 21 remand for further proceedings consistent with our opinion. FN1. Under the Fair Housing Act, it is unlawful to "make unavailable ... a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). It is also unlawful to "make unavailable ... a dwelling ... because of a handicap." 42 U.S.C. § 3604(f)(1). FN2. Although we applied the FHA to a homeless shelter in Tltming Poh4 Inc. V. City of Caldwell, 74 F.3d 941, 942 (9th Cir.1996), the question of whether the PHA generally applies to homeless shelters was not at issue because the parties did not dispute that the FHA applied. We have never squarely addressed the issue of whether all temporary shelters fit within the Act's definition of "dwelling,". see 42 U.S.C. § 3602(b); nevertheless, we decline to do so here. While the lease states that the Community House facility is to be,used as an "emergency homeless shelter," the facility provides more than transient overnight housing. The district court specifically found that the facility generates up to $125,000 in rent per year from fortynine transitional housing units in which the tenants reside for up to a year and a half. We therefore have little trouble concluding that at least part of the facility " is occupied as, or designed or intended for occupancy as, a residence by one or more families," and thus qualifies as a "dwelling" under section 3602(b). Moreover, at least in the handicap discrimination context, the regulations interpreting the coverage of the FHA specifically contemplate that "residences" within homeless shelters qualify as " dwellings." The regulations provide that a " dwelling unit" may include "other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by m 2007 Thomson/West. No Claim to Orig. U.S. Govt Works. https:llweb2.westlaw.com/printtprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 1), Page 23 of 25 1), --- F.3d -- r Page 22 — F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal DA.K 6615 (Cite as: — F.3d —) occupants of more than one room or portion of the dwelling, rooms in which people sleep." 24 C.F.R. § 100.201. Examples of these other types of dwelling units `include dormitory rooms and sleeping accommodations in shelters intetided for occupancy as a residepce for homelesspersons" Id. (emphasis added). FN3. In examining discrimination issues under the Fair Housing Act, we frequently draw from employment discrimination analysis. See Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir.1997) ('We apply Title VII discrimination analysis in examining Fair Housing Act (`FHA') discrimination claims. 'Most courts applying the FHA, as amended by the [Fair Housing Act Amendments], have analogized it to -Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prohibits discrimination in employment.' " (quoting Larkia v. Mich. Dept ofSoc. Sews., 89 F.3d 285, 289 (6th Cir.1996))); Pfaff v. U.S. Dept ofHous & Urban Dev., 88 F.3d 739, 745 n. 1 (9th Cir.1996) ("We may look for guidance to employment discrimination cases"). FN4. The Fair Housing Act explicitly provides for certain exceptions to its discrimination prohibitions. See, e.g., 42 U.S.C. § 3604(f)(9) (permitting handicapped discrimination under the Fair Housing Act if the individual's "tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy -would result in substantial physical damage to the property of others" ); 42 U.S.C. § 3607(b)(1) (providing for a senior housing exemption under the Fair Housing Act). However, none of those exceptions is applicable here. FNS. The majority of district courts to consider this question have also followed the Sixth and Tenth Circuits' framework. See, e.g., Cmty. Hons. Trust v. Dept of Consumer & Regulatory Affairs, 257 F .Supp.2d 208, 228-29 (D.D.C.2003); United States v. City of Chicago Heights, 161 F.Supp.2d 819, 843 •(N.D.I11.2001); Mldren's Alliance, 950 F.Supp. at 1497-98; Alliance for the Mentally RI v. City of Naperville, 923 F.Supp. 1057, 1074-75 (N.D.111.1996). FN6. Depending on the facility, men or women -only shelters might be justified by privacy concerns. The City does not proffer a privacy justification because Community House provides separate rooms for men, women, and families. FN7. The Establishment Clause applies to the states through the Due Process Clause of the Fourteenth Amendment. See County ofAllegbeny v. ACLU, 492 U.S. 573, 588, 109 S.Ct. 3086, 106 L.E&M 472 (1989). FN8. We recognize that Establishment Clause jurisprudence and the role of the Lemon test is uncertain. See; e.g., Cutter V. Wilkinson, 544 U.S. 709, 727 n. 1, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (Thomas, L, concurring) (noting that the Supreme Court properly declined to apply the "discredited" Lemon test to an Establishment Clause challenge); Santa Fe Indep. Sch. Dist. Y. Doe, 530 U.S. 290, 319, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (Rehnquist, C.J., dissenting) (" Lemon has had a checkered career in the decisional law of this Court."); see also DeStefano v. Emergency Hous Group, Inc., 247 F.3d 397, 405 (2d Cir.2001) ("In the wake of a number of fragmented decisions over the past decade, the governing [Establishment Clause] law remains in doubt."). The Supreme Court, however, has not expressly overruled or discarded the Lemon test. Zelman V. Simmons Harris, 536 U.S. 639, 668-69, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (O'Connor, L, concurring) (reaffirming that the Lemon test is still the central tool of analysis in Establishment Clause cases). Accordingly, we continue to apply it here. 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw. com/p rintfprintstream.aspx?prft=HTM LE&destination=atp&sv=Sp lit&rs=W... 7/31 /2007 I )• Page 24 of 25 -- F.3d — - Page 23 --- F.3d ----, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Joumal'D.A.R, 6615 (Cite as: — F.3d ) FN9. As discussed hereafter, it is clear the City's acts which the plaintiffs challenge were not taken for the purpose of advancing religion, and inhibition of religion is not an issue in this case. The question we must answer is whether the City's challenged action in its lease to the BRM constitutes governmental aid which has the effect of advancing religion. FN10. The publicly -financed nature of the City's lease of Community House to the BRM distinguishes it from those cases in which courts have held that the rental or sale of property to religious organizations did not violate the Establishment Clause because such acts involved the rental or selling of property for fair market value in arm's length business transactions. See, e.g., Mercier v. Fratemal Order of Eagles, 395 F.3d 693, 702 (7th Cin2005); Southside Fair Hous Comma v. City of New York 928 F.2d 1336, 1348 (2d Cir.1991); Christian Sci. Reading Room Iohrtly Maintained v. City & County of San Francisco, 784 F.2d 1010, 1014 (9th Cir.1986). FNIL Justice Breyer joined Justice O'Connor's concurrence in Mitchell. The dissent, written by Justice Souter and joined by Justices Stevens and Ginsburg, also disagreed with the plurality's " espous[al] of a new conception of neutrality. as a practically sufficient test of .constitutionality." Id. at 869' (Souter, J., dissenting). Thus, five Justices in Mitchell explicitly disagreed with the plurality's discussion on neutrality. FN12. In addition to neutrality, the plurality opinion focused on whether the government aid has religious or secular content and dismissed inquiring into whether the aid was diverted for religious, purposes: The issue is not divertibility of aid but rather whether the aid itself has an impermissible content. Where the aid would be suitable for use in a public school, it is also suitable for use in any private school. Similarly, the prohibition against the government prgviding impermissible content resolves the Establishment Clause concerns that exist if aid is actually diverted to religious uses. Mitchell, 530 U.S. at 822 (Thomas, J., plurality). FN13. The Mitchell dissent would go further than Justice O'Connoes emphasis on actual diversion and would hold unconstitutional government aid if there is a substantial risk that it will be diverted to religious uses. See id at 890 (Souter, J., dissenting) ("[W]e have long held government aid invalid wlien circumstances would allow its diversion to religious education."). FNI. I concur in the majority's affirmance of the district courts denial of relief on appellants' disability discrimination claims and the decision to decline to consider the appellants' claim under the Idaho Constitution. FN2. The district court noted that Community House contained both a homeless shelter and a low-cost housing unit. The homeless shelter could hold in separate dorms, 66 men and 13 women. There were ten units for homeless families and another ten units for low. income, 'or " transitional," housing as well as 39 single -residence apartments. Community House had accommodations for the disabled, and about three -fourths of its residents were disabled. This mix of homeless single adults, families with children, and the disabled (mentally and physically) would appear to be a volatile mix. FN3. I recognize that while the concept of a `BFOQ" may be borrowed from employment discrimination cases, the exact contours of a bona fide government ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream. aspx?prf=HTM LE&destination=atp&sv=Split&rs=W... 7131 /2007 Page 25 of 25 —F.3d- -- F.3d —, 2007 WL 1651315 (C.A.9 (Idaho)), 2007 Daily Journal D.A.R 6615 (Cite as: — F.3d ) interest in litigation under the Fair Housing Act may have to be altered to reflect certain differences between housing and employment. FN4. Justice Thomas explained: A concern for divertibility, as opposed to improper content, is misplaced not only because it fails to explain why the sort of aid that we have allowed is permissible, but also because it is boundless -enveloping all aid, no matter how trivial -and thus has only the most attenuated (if any) link to any realistic concern for -preventing ,an " establishment of religion." Presumably, for example, government -provided lecterns, chalk, crayons, pens, paper, and paintbrushes would have to be excluded from religious schools under respondents' proposed rule. But we fail to see how indoctrination by means of (i.e., diversion of) such aid could be attributed to the government. Id. at 824. Similarly, in this case, it is doubtful whether -as a matter of law -the supposed diversion of "aid" to the BRM's cbapel services could be attributed to the City. FN5. Justice O'Connor observed: An educator can use 'virtually any instructional tool, , whether it has ascertainable content or not, to teach a religious message. In this respect, I agree with the plurality that "it is hard to imagine any .book that could not, in even moderately skilled hands, • serve to illustrate a religious message." Ante, at 2549. In today's case, for example, we are asked to draw a constitutional distinction between lending a textbook and lending a library book. Justice SOUTER's try at justifying that distinction only demonstrates the absurdity on which such a difference must rest. He states that " [a]lthough library books, like textbooks, have fixed content, religious teachers can assign secular library books for religious critique." Post, at 2592. Regardless of Page 24 whether that explanation is even correct (for a student surely could be given a religious assignment in connection with a textbook too), it is hardly a distinction on which constitutional law should turn. Moreover, if the mere ability of a teacher to devise a religious lesson involving the secular aid in question suffices to hold the provision of that aid unconstitutional, it is difficult to discern any limiting principle to the divertibility rule. For example, even a publicly financed lunch would apparently be unconstitutional under a divertibility rationale because religious school officials conceivably could use the lunch to lead the students in a blessing over the bread. Id. at 855. F'N6. Justice O'Connor wrote: "[t]he limited evidence amassed by respondents during 4 years of discovery (which began approximately 15 years ago) is at best de mmfmis and therefore insufficient to affect the constitutional inquiry." Id. at 861. FN7. The City may well have these obligations regardless of the identity of the lessee, or whether the building is leased. C.A.9 (Idaho),2007. Community House, Inc. v. City of Boise -- F.3d ---, 2007 WL 1651315 (C.A.9 (Idaho)), 2007. Daily Journal D.A.R, 6615 END OF DOCUMENT m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 .i 923 F.2d 91 923 F.2d 91, 59 USLW 2439 (Cite as: 923 F.2d 91) 3 Familystyle of St. Paul, Inc. v. City of St. Paul, Minn. 1 C.A.8 (Minn.),1991. United States Court of Appeals,Eighth Circuit. FAMILYSTYLE OF ST. PAUL, INC., A Minnesota Corporation, Appellant, l V. CITY OF ST. PAUL, MINNESOTA, a municipal l corporation; St. Paul Gity Council; Individual City i Council Members: James Scheibel, Robert Long, Kiki Somen, Janice Rettman, Roger Goswitz, Tom P Dimond; State of Minnesota Office of the Attorney ` General; and Hubert H. Humphrey, III, Attorney . General, Appellees. No. 90-5059. Submitted Sept. 14, 1990. Decided Jan. 8, 1991. Rehearing and Rehearing En Banc Denied Feb. 15, 1991. Action was brought challenging validity of state statute and local zoning ordinance limiting placement of residential facilities for retarded or mentally ill persons. On motions for summary judgment, the United States District Court for the District of Minnesota, 728 F.Supp. 1396,Donald D. Aisop, Chief Judge, entered judgment finding that state statute and local zoning ordinance did not violate Fair. Housing Act. Appeal was taken. The Court of Appeals, Wollman, Circuit Judge, held that: (1) state and municipal dispersal requirements for group homes did not violate Fair Housing Act by discriminating against mentally ill, and (2) state and municipal dispersal requirements for group homes did not result in disparate impact on and discriminatory treatment of mentally ill. Page 2 of 5 Page 1 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General' 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap,Disability, or Illness. Most Cited Cases (Formerly 78kl31) State and municipal dispersal requirements for group homes did not violate Fair Housing Act by discriminating against mentally ill; dispersal requirement furthered proper governmental interest of integrating mentally ill into mainstream of society. M.S.A. §§ 245.461, subd. 4, 245A.11; subds. 1, 4; Civil Rights Act of 1968, §§ 801 et seq., 804(f)(1, 3), 815, as amended, 42 U.S.C.A. §§ �601 et seq., 3604(f)(1, 3), 3615; Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963, § 101(a)(8), as amended, 42 U.S.C.A. § 6000(a)(8). [2] Civil Rights 78 C�1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) Mental Health 257A C=�32 257A Mental Health 257AII Care and Support of • Mentally Disordered Persons 257AII(A) Custody and Cure 257Ak32 k. Constitutional and Statutory Provisions. Most Cited Cases (Formerly 43kl) Affirmed. Zoning and Planning 414 �76 West Headnotes [11 Civil Rights 78 �1083 414 Zoning and Planning 41411 Validity of Zoning Regulations m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printtp rintstream.aspx?prf[=HTM LE&destination=atp&sv=Sp lit&rs=W... 7/31/2007 923 F.2d 91 J 923 F.2d 91, 59 USLW 2439 (Cite as: 923 F.2d 91) 41411(B) Regulations as to Particular Matters 414k76 k. Particular Uses. Most Cited Cases State and municipal dispersal requirements for group homes did not result in disparate impact on and discriminatory treatment of mentally ill; state aimed to integrate mentally ill into mainstream of society, and dispersal requirements were designed to ensure that mentally handicapped persons needing residential treatment would not be forced into enclaves of treatment facilities that would replicate and thus perpetuate isolation resulting from institutionalization. M.S.A. §§ 24SA61, subd. 4, 245A.11, subds. 1, 4; Civil Rights Act of 1968, § 801 et seq, as amendedz42 U.S.C.A. § 3601 et seq. *92 Earl P. Gray, St Paul, Minn., for appellant. Gail M. Olson, St. Paul, Minn., for appellees. Before WOLLMAN and MAGILL, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge. WOLLMAN, Circuit Judge. Familystyle of St Paul, Inc. appeals from the district court's " denial of its motion for summary judgment and grant of summary judgment for the City of St Paul and the State of Minnesota. We affnn. FNI. The Honorable Donald D. Alsop, Chief Judge, United States District Court for the District of Minnesota Familystyle provides rehabilitative services to mentally ill persons and operates residential group homes for them in St. Paul, Minnesota Familystyle sought special use permits for the addition of three houses to its existing campus of group homes, intending to expand its capacity from 119 to 130 mentally ill persons. Twenty-one of Familystyle's houses, including the three proposed additions, are clustered in a one and one-half block area On the condition that Familystyle would work to disperse its facilities, the St. Paul City Council issued temporary permits for the three additional houses. Familystyle failed to meet the Page 3 of 5 Page 2 conditions of the special use permits, and the permits expired. After St. Paul denied renewal of the permits, Familystyle exchanged its license for one excluding the three additional houses. Relying upon the provisions of the Fair Housing Amendment Act of 1988, Familystyle challenges the city ordinance and state laws that bar the addition of these three houses to its campus. *9311. [1] Minnesota requires facilities that provide residential services for people with mental illness and retardation to be licensed. Minnesota seeks through the licensing of group homes to place the mentally ill in the least restrictive environment possible and to allow them "the benefits of normal residential surroundings." Minn.Stat. § 245A.11, subd. 1. "Care, treatment, and deinstitutionalization of mentally ill adults [is] a matter of special state concern" in Minnesota Northwest Residence, Inc. v. City of Brooklyn Center, 352 N.W.2d 764, 772 (Minn.Ct.App.1984). ' An integral part of the licensing process guarantees that residential programs are geographically situated, 'to the extent possible, in locations where 'residential services are needed, where they would be a part of the community at large, and where access to other necessary services is available. Minn.Stat. § 245A.11, subd. 4. This licensing requirement reflects the goal of deinstitutionalization-a philosophy of creating a full range of, community -based services and reducing .the population of state institutions. See " Deinstitutionalization of Mentally Retarded People," Office of the Legislative Auditor, State of Minnesota, February 1986, at p. 3. Minnesota's deinstitutionalization policy is formally acknowledged by its Comprehensive Adult Mental Health Act Housing Mission Statement, which requires that "the housing services provided as part of a comprehensive mental health service system ... allow all persons with mental illness to live in stable, affordable, housing, in settings that maximize community integration and opportunities for m 2007 Thomson/West No Claim to Orig. U.S. Govt. Works. https://web2,westlaw. com/printlprintstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 923 F.2d 91 923 F.2d 91, 59 USLW 2439 (Cite as: 923 F.2d 91) acceptance." Minn.Stat. § 245.461, subd. 4. Federal law affums the deinstitutionalization philosophy in the Developmental Disabilities Assistance Act, in which Congress found that it is in the national interest to offer persons with developmental disabilities the opportunity, to the maximum extent feasible, to make decisions for themselves and to live in typical homes and communities where they can exercise their full rights and responsibilities as citizens. 42 U.S.C. § 6000(a)(8). Deinstitutionalization of the mentally ill is advanced in Minnesota by requiring a new group home to be located at least a quarter mile from en existing residential program unless the local zoning authority grants a conditional use or special use permit Minn.Stat. § 245A.11, subd. 4. The St. Paul zoning code similarly requires community residential facilities for the mentally impaired to be located at least a quarter of a mile apart. The Fair Housing Act Amendment of 1988 to Title VIII of the Civil Rights Bill of 1968 makes it unlawful (f)(1) [t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any -buyer or renter because of a handicap of - (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter. *►ss*• (3) For the purposes of this subsection, discrimination includes- (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.] 42 U.S.C. § 3604(f)(1) & (3). Section 3615 of the Page 4 Ot b Page 3 Fair Housing Act invalidates "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." 42 U.S.C. § 3615, Familystyle argues that the Minnesota and St. Paul dispersal requirements are invalid because they limit housing choices of the mentally handicapped and therefore conflict with the language and purpose of the 1988 Amendments to the Fair Housing Act We disagree. We perceive the goals *94 of non-discrimination and deinstitutionalization to be compatible.' Congress did not intend to abrogate a state's power to determine how facilities for the mentally ill must meet licensing standards. Minnesota's dispersal requirements address the need of providing residential services in mainstream community settings. The quarter -mile spacing requirement guarantees that residential treatment facilities will, in fact, be "in the community," rather than in neighborhoods completely made up of group homes that re-create an institutional environment -a setting for which Familystyle argues. We cannot agree that Congress intended the Fair Housing Amendment Act of 1988 to contribute to the segregation of the mentally ill from the mainstream of our society. The challenged state laws and city ordinance do not affect or prohibit a retarded or mentally ill person from purchasing, renting, or occupying a private residence or dwelling; The state plays a legitimate and necessary role in licensing services for the mentally impaired. We agree with the district court that the dispersal requirement as part of the lidensure process is a legitimate means to achieve the state's goals in the process of deinstitutionalization of the mentally ill. Accordingly, we conclude that the Minnesota Human Services Licensing Act and the St Paul zoning code do not violate the Fair Housing Amendments Act of 1988. )I [2] Familystyle argues that the state and city dispersal requirements result in a disparate impact on and discriminatory treatment of the mentally ill. Q 2007 Thomson/West No Claim to Orig. U.S. Govt. Works. hops://web2:westlaw.comlprintlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 5 of 5 923 F.2d 91 923 F.2d 91, 59 USLW 2439 (Cite as: 923 F.2d 91) In United States v. City of Black Jack 508 F.2d 1179 (8th Cir.1974), cent. denleg 422 U.S. 1042, 95 S.Ct 2656, 45 L.Ed.2d 694 (1975), we explained that in a Title VIII case brought against a public defendant, the plaintiff has the initial burden of presenting a prima facie case of the discriminatory effect of the challenged law. Id. at 1185. If the law is shown to have such an effect, the burden shifts to the governmental defendant to demonstrate that its conduct was necessary to promote a governmental interest commensurate with the level of scrutiny afforded the class of people affected by the law under the equal protection clause. Id. at 1185 n. 4. The district court measured the government's interest in the second part of its analysis using the considerations defined in Black Jack, a racial discriminatory impact case, We conclude, however, that the appropriate level of scrutiny is that announced in City of Clebume v. Cleburne Living Center, 473 U.S. 432, 446, 105 S.Ct 3249, 3257, 87 L.Ed.2d 313 (1985), in which the Court held that persons suffering from mental retardation do not constitute a suspect class. The second question in the disparate impact analysis under Title VM then becomes whether legislation which distinguishes between ' the mentally impaired and others is "rationally related to a legitimate governmental purpose" Id The district court found that although local and state dispersal requirements for group homes on their face limit housing choices for the mentally ill, the govemment's interest in deinstitutionalization sufficiently rebutted any discriminatory effect of the laws. 728 F.Supp. 1396. Familystyle argues that the district court misapplied the factors relevant in evaluating the government's interest in dispersal requirements. We disagree. The district court examined the reasons for the state and local law under the strict scrutiny standard. Although we believe that it is not necessary to evaluate the purposes so closely, we agree with the district court that the government's interests are valid. The state aims to integrate the mentally ill into the mainstream of society. One method to achieve that goal is to license group homes which Page 4 advance the process of deinstitutionalization. Familystyle is a treatment facility -that houses more than one hundred mentally ill patients. Further growth of the Familystyle treatment facility may well be counterproductive to the desegregation of the mentally ill. Had the state or city intended to discriminate against the mentally ill, one sure way would be to situate all group homes in the *95 same neighborhood -a situation for which Familystyle argues. The state's group home dispersal requirements are designed to ensure that mentally handicapped persons needing residential treatment will not be forced into enclaves of treatment facilities that would replicate and thus perpetuate the isolation resulting from institutionalization. We are not persuaded that any intent to discriminate against the handicapped lies beneath the surface of the state and local dispersal requirements and the purposes of deinstitutionalization. We have been given no reason to believe that Familystyle is incapable of dispersing its group homes and integrating its clients into the community. Accordingly, we conclude that the goal of deinstimtionalization remains a valid and legitimate end that the State of Minnesota and the City of St Paul are pursuing through legally acceptable means. The district court's judgment is affirmed. C.A.8 (Minn.),1991. Familystyle of St Paul, Inc, v. City of St Paul, Minn. 923 F.2d 91, 59 USLW 2439 END OF DOCUMENT 0 2007 Thomson/West No Claim to Orig. U.S. GovL Works. hftps://web2,westlaw.com/print/p ri ntstream.aspx?p rft=HTM LE&destination=atp&sv=Sp lit&rs=W... 7131 /2007 Page 2 of 11 104 F.3d 300 104 F.3d 300,19 A.D.D. 740, 9 NDLRP 214, 97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 Fad 300) 1> Gamble v. City of Escondido C.A.9 (Cal.),1997. United States Court of Appeals,Ninth Circuit. John GAMBLE; Fie A. Gamble; Life Care Residences, Inc., doing business as Oak Hill Residential Care, Plaintiffs -Appellants, V. CITY OF ESCONDIDO, Defendant -Appellee. No.-95-56019. Submitted Oct. 10, 1996.N' FN* The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P.34(a). Decided Jan. 10, 1997. Landowners sued city for alleged violations of Fair Housing Act (FHA), equal protection, and due process in denying conditional use permit— to construct complex for physically disabled elderly adults in single-family residence area. The United States District Court for the Southern District of California, Edward J. Schwartz, J., granted city's motion for summary judgment. Landowners appealed. The Court of Appeals, Thomas, Circuit Judge, held that: (1) landowners failed to state claims for disparate treatment, disparate impact, and reasonable accommodation under FHA, and (2) denial of permit survived rational basis scrutiny, and thus equal protection and due process claims also failed. Affirmed. West Headnotes [1] Federal Courts 170B �776 170B Federal Courts 170BVM Courts of Appeals 170BVM(K) Scope, Standards, and Extent Page 1 170BVIH(K)l In General 170Bk776 k. Trial De Novo. Most Cited Cases Court of Appeals reviews grant of summary judgment de novo. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. [21 Civil Rights 78 a1075 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1075 k. In General. Most Cited Cases (Formerly 78k131) Court of Appeals applies Title VII discrimination analysis in examining Fair Housing Act (FHA) discrimination claims; thus, plaintiff can establish FHA discrimination claim under a theory of disparate treatment or disparate impact. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [3] Civil Rights 78 C�1083 78 Civil Rights 78I . Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78kl31) Plaintiff may sue under Fair Housing Act Amendments C FHAA')' if local municipality refuses to make reasonable accommodations for handicapped housing. Civil Rights Act of 1968, § 804(t)(3)(B), as amended, 42 U.S.C.A. § 3604(f)(3)(B). [41 Civil Rights 78 a1403 78 Civil Rights 78IU Federal Remedies in General m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 I) I) 104 F.3d 300 104 F.3d 300,19 A.D.D. 740, 9 NDLR P 214, 97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) 78k1400 Presumptions, Inferences, and Burdens of Proof 78k1403 k. Property and Housing. Most Cited Cases (Formerly 78k240(3)) Court of Appeals analyzes disparate treatment claims under Fair Housing Act (FHA) and Fair Housing Act Amendments (FHAA) using Title V1Ts three -stage McDonnell Dougla&Durdme test. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. 151 Civil Rights 78 C�1081 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1081 k. Public Regulation; Zoning. Most Cited Cases (Formerly 78k131) Prima facie case of disparate treatment under Fair Housing Act (FHA) requires establishing following elements: plaintiff is member of a protected class, plaintiff applied for conditional use permit and was qualified to receive it, conditional use permit was denied despite plaintiff being qualified, defendant approved conditional use permit for a similarly situated party during a period relatively near the time plaintiff was denied its conditional use permit. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [6] Civil Rights 78 C�1403 78 Civil Rights 78HI Federal Remedies in General 78kl400 Presumptions, Inferences, and Burdens of Proof 78k1403 k. Property and Housing. Most Cited Cases (Formerly 78k240(3)) Under three -stage test for analyzing disparate treatment claims under Fair Housing Act (FHA) and Fair Housing Act Amendments (FHAA), plaintiff must first establish prima facie case; if plaintiff does so, burden shifts to defendant to articulate a legitimate nondiscriminatory reason for its action, Page 3 of 11 Page 2 and if defendant satisfies its burden, plaintiff must prove by preponderance of evidence that the reason asserted by defendant is a mere pretext. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [7] Civil Rights 78 C�1075 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1075 k. In General. Most Cited Cases (Formerly 78kl31) Proof of discriminatory motive is crucial to a disparate treatment claim under Fair Housing Act (FHA). Civil Rights Act of 1968, § 801 et seq, as amended, 42 U.S.C.A. § 3601 et seq. [8) Civil Rights 78 C=1395(3) 78 Civil Rights 78111 Federal,Remedies in General 78k1392 Pleading 78k1395 Particular Causes of Action 78k1395(3) k. Property and Housing. Most Cited Cases (Formerly 78k235(4)) Landowners' complaint against city regarding denial of conditional use permit to construct complex for physically disabled adults in single-family residential area did not present prima facie case of disparate treatment under Fair Housing Act (FHA), where it failed to allege that city granted a permit to a similarly situated party relatively near the time the city denied the permit in question. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et se4. [9] Civil Rights 78 a1083 78 Civil Rights 78I Rights Protected and Discrimina Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) City was not liable to landowners on disp m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. lion of arate https://web2,westlaw.com/print(printstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7131 /2007 Page 4 of 11 I) I) 104F.3d300 Page 3 104 Fad 300,19 A.D.D. 740, 9 NDLR P 214,97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) treatment claim brought under Fair Housing Act (FHA) for denying conditional use permit to build complex for physically disabled elderly adults in single-family residential area, even assuming landowners established prima facie case; reason advanced by city for denying application, namely, concern for character of the neighborhood, was legitimate and nondiscriminatory, and landowners presented no colorable evidence that city's proffered reason for denying permit was a mere pretext for discrimination, or that city showed intent or motive to discriminate. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [10] Civil Rights 78 a1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78kl31) Fact that city forced landowner to go through conditional use permit process with respect to proposed building of complex for disabled elderly adults in single-family residence area did not constitute evidence of intent or motive to discriminate, for purposes of disparate treatment claim under Fair Housing Act (FHA) based on denial of permit; city could have denied landowners original application as being out of character for the neighborhood even if landowner never applied for conditional use permit. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 at seq. [11] Civil Rights 78 ID�1075 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1075 k. In General: Most Cited Cases (Formerly 78kl31) To establish• prima facie disparate impact case under Fair Housing Act (FHA), plaintiff must establish at least that defendant's actions bad a discriminatory effect. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [121 Civil Rights 78 OD=1075 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1075 k. In General. Most Cited Cases (Formerly 78kl31) Elements of prima facie Fair Housing Act (FHA) case under a disparate impact theory are the occurrence of certain outwardly neutral practices, and a significantly adverse or disproportionate impact on persons of a particular type produced by defendant's facially neutral acts or practices. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [131 Civil Rights 78 �10.75 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1075 k. In General. Most Cited Cases (Formerly 78kl31) Demonstration of discriminatory intent is not required in Fair Housing Act (FHA) claim under disparate impact theory; however, plaintiff must prove the discriminatory impact at issue, and raising an inference of discriminatory impact is insufficient. Civil Rights Act of 1968, § 801• et seq., as amended, 42 U.S.C.A. § 3601 et seq. [141 Civil Rights 78 C=1083 78 Civil Rights . 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing - 78k1083 k. Discrimination by Reason of Handicap, Disability, or311ness. Most Cited Cases (Formerly 78kl31) Landowners failed to establish prima facie case of disparate impact under Fair Housing Act (FHA) in connection with city's denial -of conditional use permit to construct residence and day-care center for physically disabled elderly adults, as they presented no proof that city's permit practices had significantly adverse or disproportionate impact on ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/p rinttp rintstream.aspx?prft=HTM LE&destination=atp&sv=Sp lit&rs=W .. 7/31 /2007 I) Page 5 of 11 I )- !] I) I) 104 F.3d 300 Page 4, 104 F.3d 300,19 A.D.D. 740, 9 NDLR P 214,97 Cal. Daily Op. Serv. 263,97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) housing for physically disabled or elderly; absence of an adult day health care facility in the community, by itself, was not actionable. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [15] Civil Rights 78 C:=1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) _ Argument in support of challenge to city's denial of conditional use permit to build complex for physically disabled elderly adults in single-family residence area, that physically disabled persons required group housing to be financially solvent and that such houses generally had to be larger than single-family residences, did not establish prima facie claim of disparate impact under Fair Housing Act (FHA); there was no evidence that discriminatory effect occurred, and furthermore, relevant comparison group was not single families, but other groups of similar sizes living together. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. [16] Civil Rights 78 '&'-*1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) Landowners failed- to state reasonable accommodation claim under Fair Housing Act (FHA) against city that denied conditional use permit to construct complex for physically disabled elderly adults, though complex would serve in part as residence, where significant portion of proposed building would be devoted to health care facility for which accommodation was not required under the statute. Civil Rights Act of 1968, § 804(f)(3)(B), as amended, 42 U.S.C.A. § 3604(f)(3)(B). [17] Civil Rights 78 a1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) Fair Housing Act (FHA) affirmatively required that city make reasonable accommodations for handicapped residences; statute did not, however, require reasonable accommodation for health care facilities. Civil Rights Act of 1968, §§ 802(b), 804(i)(3)(B), as amended, 42 U.S.C.A. §§ 3602(b), 3604(f)(3)(13). [18] Constitutional Law 92 C=3073(1) 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 920069 Particular Classes 92k3073 Disability and Disease, Physical or Mental 92k3073(l) k. In General. Most Cited Cases (Formerly 92k213.1(2)) Physically disabled are not a protected class for purposes of equal protection under Fourteenth Amendment; thus, rational basis scrutiny is appropriate for analyzing equal protection claims by members of that group. U.S.C.A. Const.Amend. 14. [19] Constitutional Law 92 C�4095 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applications 92XXVH(G)3 Property in General 92k4091 Zoning and Land Use 92k4095 k. Adult -Oriented Uses. Most Cited Cases (Formerly 92k278.2(1)) Rational basis scrutiny was appropriate for claim that city's denial of conditional use permit to construct complex for physically disabled elderly m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw. com/printtp rintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 I) I) Page b of 11 I )- 104 F.3d 300 Page 5 104 F.3d 300, 19 A.D.D. 740,9 NDLR P 214,97 Cal. Daily Op. Serv. 263,97 Daily Joumal D.A.R. 473 (Cite as: 104 Fad 300) adults violated their right to due process. U.S.C.A. Const.Amend. 14. [20] Constitutional Law 92 a3007 92 Constitutional Law 92X0VI Equal Protection 92XXVI(A) In General 92XXVI(A)2 Relationship to Similar Provisions 92k3007 k. Relationship to Due Process Guarantee. Most Cited Cases (Formerly 92k2l3.1(2)) Constitutional Law 92 C�3877 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3877 k. Reasonableness, Rationality, and Relationship to Object. Most Cited Cases (Formerly 92k251.3) Rational basis test is identical under the two rubrics of equal protection and due process. U.S.C.A. Const.Amend. 14. [21] Constitutional Law 92 0�73512 92 Constitutional Law (Formerly 92k278.2(1)) Zoning and Planning 414 0�391 414 Zoning and Planning 414VM Permits, Certificates and Approvals 414VIII(A)In General 414k384 Nature of Particular Structures or Uses 414091 k. Multiple Dwellings, Lodgings and Trailer Parks. Most Cited Cases Citys denial of conditional use permit to construct complex to house up to 15 physically disabled elderly adults and also serve as adult day-care center in single-family' residential area survived rational basis scrutiny, for purposes of equal protection and due process challenges; permit denial was rationally related to achieving city's zoning goals, and applicant failed to substantiate allegation that city would have granted permit to another, nondisabled group. U.S.C.A. Const.Amend. 14. *303 Charles D. Nachand Law Offices of Charles D. Nachand, Escondido, California, for the plaintiff -appellant. Jeffrey R. Epp, City Attorney, Escondido, California, for the defendant -appellee. 92XXVI Equal Protection Appeal from the United States District Court for the 92XXVI(E) Particular Issues and Southern District of California, Edward J. Schwartz, Applications District Judge, Presiding. D.C. No. 92XXVI(E)3 Property in General CV-94-00637-EJS. 92k3511 Zoning and Land Use 920512 k. In General. Most Cited Before: BRUNETTI, TROTT and THOMAS, Cases Circuit Judges. (Formerly 92k228.2) . OPMON Constitutional Law 92 4D�4095 THOMAS, Circuit Judge: John Gamble, Fie Gamble, and Life Care 92 Constitutional Law Residences, Inc. ("Gamble") sought to construct a 92XXVI1 Due Process complex for physically disabled elderly adults in a 92XXVII(G) Particular Issues and single-family residence area in Escondido, Applications California. The City of Escondido ("City") denied 92XXVII(G)3 Property in General the building permit -application because the 92k4091 Zoning and Land Use proposed building was too large for the lot and did 92k4095 k. Adult -Oriented Uses. not conform in size and bulk with the neighborhood Most Cited Cases structures. The district court granted the City ® 2007 Thomson[West. No Claim to Orig. U.S. Govt. Works. https://web2:westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 7 of 11 104 F.3d 300 Page 6 104 F.3d 300,19 A.D.D. 740, 9 NDLR P 214,97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) summary judgment on the Fair Housing Act, equal protection, and due process claims. We affirm. BACKGROUND Fie and John Gamble own several parcels of land in Escondido, California. In 1987, the City granted the Gambles a conditional use permit for one of their parcels of land allowing construction of up to six facilities to care for the physically disabled, with each facility having a capacity maximum of twelve persons. Only two buildings, each of approximately 5,000 square feet in size, have been erected. Gamble proposed to construct a 10,360 square foot, eight bedroom, twelve bathroom structure for the physically disabled elderly on a different parcel of land. The upper *304 portion of the building was designed to house fifteen elderly disabled adults; the lower to serve as an adult day care facility. Day care patients from throughout Escondido would be transported to and from the canter each day by van. A ten -car lot would provide parking. Surrounding homes in the neighborhood were significantly smaller than the proposed complex. The City Planning Department concluded that the building would not be typical for a single-family residence and notified Gamble that the proposed size of the structure and number of occupants required a conditional use permit. Gamble then applied for a conditional use permit and simultaneously sought to increase the capacity for his previously authorized.care facilities. The size and bulk of the proposed structure continued to be an issue in the permit review process. The City's• Design Review Board considered Gamble's application at two meetings and recommended denial. The Planning Commission held a public hearing, after which it recommended denial of the application based on the size of the structure, the design, the lack of amenities, and the inadequacy of parking. Gamble appealed the Planning Commission's decision to the City Council which referred the application back to the Design Review Board to allow Gamble an additional opportunity to redesign the building. Gamble revised the building elevations and site plan, but the building size and capacity remained the same. The Design Review Board reviewed the revised application, but still recommended that the application be denied. The Planning Commission held a hearing on the matter and again recommended denial of the conditional use permit. Gamble appealed to the City Council, which held a public hearing. After a significant number of people testified movingly about the need for facilities for the physically challenged, the City Council voted to approve the application. However, in response to the concerns voiced by neighbors, the City Council agreed to reconsider the matter -at a subsequent hearing. At this hearing, the City Council denied Gamble's conditional use permit application for the proposed new building and approved Gamble's application to increase the capacity of his other residence care facilities. Gamble filed suit in the Southern District of California alleging violations of the Fair Housing Act, the Equal Protection Clause, and the Due Process Clause. The district court granted summary judgment. Gamble appeals. ANALYSIS [1] We review a grant of summary judgment de novo. Warren v. City of CarIsbait 58 F.3d 439, 441 (9th Cir.1995), cart denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). Summary judgment is appropriate when the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). " Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. at 2511. C 2007 Tbomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/pFint/printstream.aspx?pr[t=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Hage Li of 11 104 F.3d 300 104 F.3d 300,19 A.A.D. 740, 9 NDLR P 214,97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) L THE FAIR HOUSING ACT CLAIMS [2] . We apply Title VII discrimination analysis in examining Fair Housing Act ("FHA") discrimination claims. "Most courts applying the FHA, as amended by the [Fair Housing Act Amendments], have analogized it to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prolubits discrimination in employment. " Larkin v. Michigan Dept of Social Servs, 89 F.3d 285, 289 (6th Cir.1996); see Pfaff v. Unitea States Dept ofHous. & Urban Dev., 88 F.3d 739, 745 n. 1 (9th Cir.1996) ('We. may look for guidance to employment discrimination cases."). [31 Thus, a plaintiff • can establish an FHA discrimination claim under a theory of disparate treatment, *305Rmg v. First Interstate Mortgage, Inc., 984 F.2d 924, 926 & n. 2 (8th Cir.1993), or disparate impact, Pfaff, 88 F.3d at 745 & n. 1. Additionally, a plaintiff may sue under section 3604(f)(3)(B) of the Fair Housing Act Amendments ("FHAA") if a local municipality refuses to make reasonable accommodations for handicapped housing. City of Edmonds v. Washmgtoa State Bldg. Code Council, 18 F.3d 802 (9th Cir.1994), affd sub nom. City'ofEdmund; v. Oxford House, Ina, 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). Gamble alleges claims of discrimination under each of these theories. A. Disparate Treatment under the FairHousingAct [4) We analyze FHA and FHAA disparate treatment claims under Title Vlrs three -stage MCDouncit DouglasBurdine test.FNt Ring, 984 F.2d at-926; see Soules• v. United States Dept ofHous. & Urban Dev., 967 F.2d 817, 822 (2d Cir.1992). FN1. McDonnell Douglas Corp. Y. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. (1973); Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). [5](6] To bring a disparate treatment claim, the plaintiff must first establish a prima facie case. Page 7 Adapted to this situation, the prima facie case elements are: (1) plaintiff is a member of a protected class; (2) plaintiff applied for a conditional use permit and was qualified to receive it; (3) the conditional use permit was denied despite plaintiff being qualified; and (4) defendant approved a conditional use permit for a similarly situated party during a period relatively near the time plaintiff was denied its conditional use permit. See Rmg, 984 F.2d at 928; Soaks, 967 F.2d at 822; Secretary, United States Dept of Boys & Urban Dev. excel. Herron v. Blackwell, 908 F.2d 864, 870 (llth Cir.1990). See also BaaaoJee v. Board of Trustees, 648 F.2d 61, 62 (Ist Cir.), cart. dame4 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981) (formulating the "relatively near to the time" fourth prong in a tenure denial case). Second, if the plaintiff establishes the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Blackwell, 908 F.2d at 870; Soules, 967 F.2d at 822; see also Lam v. University of Hawaii, 40 F.3d 1551, 1559 (9th Cir.1994) (same, in the employment discrimination context). Third, if the defendant satisfies its burden, the plaintiff must prove by a preponderance of evidence that the reason asserted by the defendant is a mere pretext. Blackwell, 908 F.2d at 870; Soules, 967 F.2d at 822; see also Lam, 40 F.3d at 1559 (same, in the employment discrimination context). (7] "Proof of discriminatory motive is crucial to a disparate treatment claim." Familystyle of St. Paul, Inc. v. City of St Paul, 728 F.Supp. 1396, 1401 (D.Minn.1990) (importing an employment discrimination standard into a housing discrimination case), . atf'd, 923 F.2d 91 (8th Cir.1991). See also Lam, 40 F.3d at 1559 (9th Cir.1994) (observing, in the employment discrimination context, that "[o]n summary judgment, the existence of.a discriminatory motive for the employment decision will generally be the principal question"). [8] Initially, we note that on its face, Gamble's complaint does not present a prima facie case because he does not allege that the City granted a ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printtpri ntstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 rage 9 of 11 104 F.3d 300 104 F.3d 300,19 A.D.D. 740, 9 NDLR P 214,97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 Fad 300) permit to a similarly situated party relatively near the time the City denied his permit. Gamble does allege the existence of other large structures in the vicinity, such as an apartment complex, a mobile home park, and a multistory church. Neither the complaint nor the record, however, informs us of the dates on which permits for these structures were granted, or whether other factors, such as the composition of the city council or the related zoning ordinances, had changed since the prior permits were granted. [9) However, we do not need to determine whether Gamble has presented a prima facie case because his claim fails under subsequent steps in the McDonnell Douglasviur67c analysis. For the purposes of this examination, we move to stage two and conclude that the reason the City advances for its decision, concern for the character of the neighborhood, is legitimate and nondiscriminatory. *306 At stage three, the burden shifts to Gamble to present evidence that this reason is pretextual, which he fails to do. Gamble presents no colorable evidence that would suggest that the City's proffered reason for denying his permit was a mere pretext for discriminating against the handicapped or elderly. [10] Further, the record is devoid of any evidence of intent or motive to discriminate. Gamble's argument that discrimination was evidenced by the City forcing him to go through the conditional use permit process lacks merit because the City could have denied Gamble's original application as being out of character for the neighborhood even if he never applied for the conditional use permit. Guimnane v. Sam Francisco City Planning Commas, 209 Cal.App.3d 732, .257 Ca1.Rptr. 742, cent denied, 493 U.S. 936, 110 S.Ct. 329, 107 L.Ed.2d 319 (1989); Desmond v. Coumty of Contra Costa, 21 Ca1.AppAth 330,25 Cal.Rptr.2d 842 (1993). Therefore, because Gamble presents no evidence that the City's stated reason for denying his peruhit was pretextual or that demonstrates the existence of discriminatory motive, we hold the district court appropriately granted summary judgment on Gamble's intentional discrimination claim. Page 8 B. Disparatelmpact Claims under the Fair RbusingAct [11][12][13] To establish a prima facie disparate impact case, a plaintiff must establish " 'at least that the defendant's actions had a discriminatory effect.' " Pfaff, 88 F.3d at 745 (quoting Keith v. Volpe, 858 F.2d 467, 482 (9th Cir.1988), cent. denier, 493 U.S. 813, 110 S.Ct. 61, 107 L.Ed.2d 28 (1989)). The Pfaff court, by analogy to Ninth Circuit age discrimination law, identified the following elements of an FAA prima, facie case under a disparate impact theory: "(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendants facially neutral acts or practices." Id. (quotation and modifications of the quotation omitted). Demonstration of discriminatory intent is not required under disparate impact theory. Id. at 74546, 746 n. 2. However, a plaintiff must " 'prov e the discriminatory impact at issue; raising an inference of discriminatory impact is insufficient.' " Id.- at 746 (quoting Palmer v. United States, 794 F.2d 534, 539-39 (9th Cir.1986)). [14] Gamble fails to establish a prima facie case because he has presented no statistics or other proof demonstrating that the City's permit practices have a significantly adverse or disproportionate impact on the physically disabled or elderly. Gamble argues that there is a great need for an adult day health care facility in the community, and thus the permit denial causes a significantly adverse effect on the disabled. A great community void may exist for lack of a health facility, but that absence alone is not actionable. It is only for discriminatory housing practices that the FHA provides a remedy. See id at 744 (noting that the FHA's "stated policy" is " 'to provide, within constitutional limitations, for fair housing throughout the United States"' (quoting 42 U.S.C. § 3601)(1968)). Gamble has provided no statistical or other evidence demonstrating that the lack of an adult health care facility results in discriminatory housing for the physically challenged. [15] Gamble further argues that the physically ® 2007 Thomson[West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printlp rintstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 10 of 11 104 F.3d 300 104 F.3d 300,19 A.D.D. 740, 9 NDLR P 214,97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) disabled require group housing to be solvent financially and that such group houses generally must be larger than other single family residences'to accommodate the greater numbers. Therefore, he reasons, denial of permits for large houses on small lots in single family neighborhoods disproportionately and significantly affects -the physically challenged. This argument also fails to establish a prima facie case. First, Gamble has advanced no evidence that such a discriminatory effect occurs or that it occurs significantly. "Under the disparate impact theory, a plaintiff must prove actual discriminatory effect, and cannot rely on inference." Id. at 747 n. 3. Second, the position relies on a comparison between physically disabled groups and single families to establish the discriminatory effect. The relevant comparison group to determine a discriminatory effect on the *307 physically disabled is other groups of similar sizes living together. Otherwise, all that has been demonstrated is a discriminatory effect on group living.F`2 See Doe V. City ofBude, 892 F.2d 315, 323 (3d Cir.1989) ( "We agree that the fact that the ordinance will have an impact on group homes established for abused women does not alone establish discriminatory effect, because the resident limitations would have a comparable effect on males if the transitional dwelling was established for a different group, such as, for example, recovering male alcoholics."). No evidence has been presented suggesting that the City's permit denial practices disproportionately affect disabled group living as opposed to other kinds of group living. FN2, If a significant correlation exists between being disabled and living in group houses, a disparate impact on group housing could conceivably establish a prima facie disparate impact claim. No evidence has been presented, however, that establishes a significant correlation between being disabled and living in group housing. C. PHA Reasonable Accommodation Claims Page 9 [16] A municipality commits discrimination under section 3604(f)(3)(B) of the FHA if it refuses "to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [the physically disabled] equal opportunity to use and enjoy a dwelling." A dwelling is defined as "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof." 42 U.S.C. § 3602(b). [17] These portions of the statute affirmatively require the City to make reasonable accommodations for handicapped residences. See City of Edmonds, 18 F.3d at 806; Thming Point, Inc. v. City of Caldwell, 74 F.3d 941, 945 (9th Cir.1996). The statute does not, however, require reasonable accommodation for health care facilities. Ile record establishes that a significant portion of the building size is devoted to the'proposed adult health care facility. It occupies nearly half the square footage of the building and the bottom floor of the two-story building. If the health care facility were necessary to house the physically challenged living in the building, reasonable accommodation might be construed to include the health care complex. See Brunk v. keichen, 54 F.3d 425 (7th Cir.1995) (holding that if a deaf tenant needed a hearing dog to live in a building, section 3604(f)(3)(B) could require the building owner to relax the rule prohibiting animals). Gamble has not alleged, however, that this health facility is required in order to house the physically challenged on the upper level. Instead, Gamble has touted the health care facility as a community -wide resource to be used during the day by the physically disabled of Escondido at large. Therefore, we find that Gamble has failed to state a claim under section 3604(f)(3)(B) because the accommodation demanded is due in significant part to the adult. day health care facility for which accommodation is not required under the statute. m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2..westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 11 of 11 104F.3d300 104 F.3d 300,19 A.D.D. 740,9 NDLR P 214,97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 (Cite as: 104 F.3d 300) 17. EQUAL PROTECTION AND DUE PROCESS CLAIMS [18][19][20] The physically disabled are not a protected class for purposes of equal 'protection under thq Fourteenth Amendment. City of Cleburne v. Cleburne Living Center, Ina, 473 U.S. 432, 446, 105 S.Ct. 3249, 3257-58, 87 L.Ed.2d 313 (1985). Thus, rational basis scrutiny 4s appropriate. Rational basis scrutiny also is appropriate for Gamble's due process claim. Munoz v. Sullivan, 930 F.2d 1400, 1404 n. 10 (9th Cir.1991). "[T]he rational basis test is identical under the two rubrics [of equal protection and due process]... " Id. at 1404. _ [21] The City's actions satisfy rational basis scrutiny. Zoning concerns are recognized as legitimate governmental goals, see Village ofEuclia v. Ambler Realty Co., 272 U.S. 365, 386-88, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926), and the City's .permit denial practices were rationally related to achieving its zoning goals. *308 Gamble maintains that if another, non -disabled group had applied for a conditional use permit the City. would have granted its permit application, and thus the rational basis test has not been met. The record is devoid of any evidence that would support Gamble's supposition. Therefore, we deeline'to grant relief on this claim. The judgment of the district court is AFFIRMED. C.A.9 (Cal.),1997. Gamble v. City of Escondido 104 F.3d 300, 19 A.D.D. 740, 9 NDLR P 214, 97 Cal. Daily Op. Serv.. 263, 97 Daily Journal D.A.R. 473 END OF DOCUMENT C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page10 https://web2.westlaw.com/print/printstream.aspx?prt=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Slip Copy Slip Copy, 2007 WL 628131(S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) H Jeffrey O. v. City of Boca Raton S.D.Fla.,2007. JEFFREY O. et al., Plaintiffs, V. CITY OF BOCA RATON, Defendant. No.03-80178-CIV. Feb. 26, 2007. James Kellogg Green, West Palm Beach, FL, William K. Hill, Melissa Pallett-Vasquez, Bilzin Sumberg Baena Price & Axelrod, Miami, FL, for Plaintiffs. Diana Grub Frieser, City of Boca Raton, Boca Raton, FL, Jamie Alan Cole, Matthew Harris Mandel, Weiss Serota Helfinan Pastoriza et al., Fort Lauderdale, FL, for Defendant FINAL ORDER DONALD M. MIDDLEBROOKS, United States District Judge. . *1 This cause came before the Court for final disposition during a non jury trial from January 22, 2007 through January 29, 2007. Plaintiffs brought suit against the Defendant City of Boca Raton in March 2003, alleging that it violated the Fair Housing Act, 42 U S.C. § 3601 et seq. (FHA), Title R of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. (ADA), and the 14th Amendment to the United States Constitution by passing Ordinance 4649, as amended by Ordinance 4701, and Section 28-2. Primarily, Plaintiffs allege that the City's actions discriminate against them based on their handicapped status where these two zoning provisions limit the ability of Plaintiffs to reside in residential areas of the City. Pursuant to Federal Rule of Civil Procedure 52(a), I make the following findings of fact and conclusions of law. Facts Page 2 of 19 Page 1 Plaintiffs are individuals who are recovering alcoholics and drug addicts ("lndividual Plaintiffs" ), as well as corporate entities ("Provider Plaintiffs" which provide housing and additional services to approximately 390 recovering individuals in areas zoned for residential use within the Defendant City of Boca Raton ("City"). Steve Manko is the president of Provider Plaintiffs who own a number of apartment buildings which are marketed to recovering individuals as sober housing. In their sober housing, Provider Plaintiffs provide different levels of oversight to their residents, including, but not limited to'drug testing, curfews, room checks, medication controls, and group meetings. In 2002, the City was faced with the dilemma of how to regulate sober houses, such as Provider Plaintiffs'. Ordinance Number 4649 was proposed to deal with the issue. At the city council meeting where the council took up this ordinance, many residents of the City spoke specifically about Provider Plaintiffs' facilities and their impact on the neighborhood. Provider Plaintiffs served approximately 390 individuals in 14 apartment buildings, all of which are within a quarter of a mile of each other. The residents of the City expressed many concerns, including the way in which Provider Plaintiffs operated their business. Specifically, residents spoke to Provider Plaintiffs' policy of evicting individuals who relapse while keeping the persons deposit Fxt and kicking individuals out with no where to go when they relapsed. The residents were also concerned about the changing dynamic of their neighborhood where the individuals living in Provider Plaintiffs' buildings frequently loitered in front of the apartment buildings, did not stay for more than a few months, and were often from out of town. There were also a lot of broad generalizations made by residents at the meeting, regarding the negative impact a high concentration of recovering individuals had on their neighborhood. One resident testified that he was able to purchase drugs at Boca House. At that meeting, the city council passed m 2007 Thomson/West No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/pri nt/printstream.aspx?prft=HTM LE&destination=atp&sv=Sp lit&rs=W... 7/31 /2007 I) I) Page 3 of 19 Slip Copy Slip Copy, 2007 WL 628131(S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) Ordinance Number 4649. The city council later passed Ordinance 4701 which amended Ordinance 4649. Ordinance Number 4649, as amended by Ordinance Number 4701 ("Ordinance 4649") states: FNl. Residents of Provider Plaintiffs paid rent by the week, rather than on a monthly basis. There was testimony that at least one individual relapsed multiple times in . a one -month span, allowing Manko to keep the individuars deposit each time. This testimony was : further supported by Provider Plaintiffs' damage expert who when calculatiog lost profits included over ten percent of Provider Plaintiffs total income as that derived from lost deposits. *2 Substance Abuse Treatment Facility shall mean a service provider or facility that is: 1) licensed or required to be licensed pursuant to . Section 397.311(18). Fla. Stat. or 2) used for room and board only and in which treatment and rehabilitation activities are provided at locations other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For the purposes of this subparagraph (2), service providers or facilities which require tenants or occupants to participate in treatment or rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition of,•, or essential component of, the tenancy or occupancy shall be deemed to satisfy the "treatment and rehabilitation activities" component of the definition contained in this section. The Ordinance requires that Substance Abuse Treatment Facilities as defined above be located in the City's Medical Center District, or with approval, in a Motel/Business district. The City put forth evidence to establish that in passing Ordinance 4649 it was attempting to group together compatible uses and separate non -compatible uses. For example, .the City's Mayor testified that Provider Plaintiffs engaged in commercial and medical uses, therefore making Page 2 them appropriately placed in medical .or commercial zones. The City's planning and zoning director testified that Provider Plaintiffs' facilities which offered a "unique recovery program" were different from normal apartment buildings. The planning and zoning director also explained that the services provided by Provider Plaintiffs were not residential in character. Therefore, where the services provided were not residential in character, Provider Plaintiffs" facilities should not be located in a residential area according to the planning and zoning director. Provider Plaintiffs' buildings are located in an area with other multi -family residences. in addition, the area in which Provider Plaintiffs' buildings are located is very close to commercial areas. The appearance of Provider Plaintiffs' buildings does not stand out in the area. There was no evidence at trial as to how Provider Plaintiffs' facilities impacted the'surrounding residential area, including but not limited to additional cars in the area, additional foot traffic in the area, a burden on public resources, or even an appearance that was out of character with the area. Also involved in this case, is a provision of the City Code, Section 28-2, which defines the term family as: 1 person or a group of 2 or more persons living together and interrelated by bonds of consanguinity, marriage, or legal adoption, or a group of persons not more than 3 in number who are not so interrelated, occupying the whole or part of a dwelling as a separate housekeeping unit with a single set of culinary facilities. The persons thus constituting a -family may also include gratuitous guests and domestic servants. Any person under the age of 18 years whose legal custody has been awarded to the state department of health and rehabilitative services or to a child -placing agency licensed by the department, or who is otherwise considered to be a foster child under the laws of the state, and who is placed in foster care with a family, shall be deemed to be related to a member of the family for purposes of this chapter. Nothing herein shall be construed to include any roomer or boarder as a member of a family. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 4 of 19 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fia.), 34 NDLR P 100 (Cite as: Slip Copy) *3 The City requires a residential dwelling unit be occupied by one family. Therefore, this provision limits the amount of unrelated people who can live in a residential dwelling unit in the City. Individual Plaintiffs and the current residents of Provider Plaintiffs who testified were all recovering alcoholics or drug addicts. Because of their addiction, these individuals lost jobs and families, and some were unable to keep.a roof over their head during their active addiction. One Plaintiff testified that personal hygiene was the first ability he lost during a relapse. He did not take care of himself, including self -grooming and eating: A current resident of Provider Plaintiffs testified that during her active addiction she was homeless. Each of the recovering individuals testified as to the difficulties they were. faced with as addicts, including an inability to possess large amounts of money, have an intimate relationship with another person, or be around people consuming alcohol or using drugs. Recovery from alcohol or drug addiction is an ongoing process, which for many individuals can be a lifelong process. At one time each of the individual Plaintiffs lived in Provider Plaintiffs' apartment buildings. They also testified that if they relapsed they would return to live in Provider Plaintiffs' residences. The restrictions imposed by Provider Plaintiffs during the residents' early stages of recovery aided these individuals as they advanced through their recovery. Plaintiffs' expert, Riley Regan, testified as to the impact addiction has on one's life, not just during active addiction, but also for the rest of his or her life. It is common for recovering individuals to need to live in an environment that is drug and alcohol free in order to further their recovery. Regan stated that without drug testing there is no way for everyone to be sure that the living environment is drug and alcohol free. This testimony was also supported by the recovering individuals who testified that drug testing kept them -motivated to stay sober and kept them safe. Regan also testified about the need for recovering individuals not to live alone because loneliness can trigger a relapse and living with other individuals imposes an accountability to other people. This testimony was in line with that of the recovering individuals who Page 3 testified where they described loneliness and boredom as possible triggers to relapses. This is not to say that some of the individuals wanted to live alone and did live alone, but many acknowledged the benefits they had and could reap from living with other recovering individuals. Provider Plaintiffs provided many tools to recovering individuals to aid in their recovery. It is more than just housing, it was also characterized as a treatment model. While this is arguably a laudable endeavor on Manko's behalf, his business model did not always appear to be so altruistic. Manko's positions regarding what services he provided and what legal arrangement he had with his residents shifted depending on the implications of such for his business model, more than for the therapeutic needs of his residents. For example, prior to this litigation, recovering individuals executed a license agreement with Provider Plaintiffs in what may have been an effort to escape traditional landlord/tenant laws. However, such individuals now execute a lease. This change in terminology coincides with Manko's current suit which seeks protection from the Fair Housing Act and his attempt at differentiating himself from the commercial use that concerned the City. Instead, Manko is attempting to focus on the housing aspect of the services he provides. Provider Plaintiffs continue to market themselves in the recovering community as a provider of a "unique recovery program." ' Provider Plaintiffs" marketing literature uses terms like "Three -Phase Transitional Recovery Program." All of these facts'support the conclusion that Provider Plaintiff is providing more than housing. *4 Manko's history with the City and his shifting position is also exemplifi0d by -his agreement with the City to comply with Section 28-2, but failing to do so. In 1996, Manko was cited for violating the occupancy limitation of the City code. That same year Manko entered in a stipulation with the City agreeing not to have more than three unrelated persons occupying a single unit. Again in 2001, Manko was cited with the same violation and again informed the City that he was seeking to comply with Section 28-2, although occasionally violated the limitation because of unexpected events. At trial m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:llweb2.westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 5 of 19 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) . it became clear that Manko never consistently limited his units to three individuals. Furthermore, at trial Manko argued that having more than three individuals in a unit F142 was essential to the residents' recovery. However, Manko's decision to continue to put more than three individuals in a unit could reasonably have been based on economics. Provider Plaintiffs charged $170 a week for each recovering individual. With four people in a unit, Provider Plaintiffs grossed approximately $2,720 a month per unit. Manko testified that the same unit rented to a family of four would go for approximately $1,200, less than half of what Provider Plaintiffs made by placing more than three recovering individuals in each unit. This calculation' may have played into Manko's continued violation of Section 28-2. Provider Plaintiffs' continued profitability is exemplified by their ability to acquire a significant number of apartment buildings in the area. FN2. Manko's position at trial was that each bedroom needed to have two people in it to be most therapeutically effective. This position made Section 28-2 applicable to most of Manko's units where most of the apartments in his apartment buildingshad more than one bedroom. Manko's questionable business practices aside, the evidence at trial did demonstrate that the two provisions Plaintiffs challenge limit the ability of recovering individuals to obtain housing within the residential areas of the City. The recovering individuals testified about the importance of living in a residential area because there are many more temptations in commercial zones, such as bars and hotels which recovering addicts would frequent during their active addition. Therefore, it would be more difficult for them to maintain their sobriety while living in such areas. As discussed above many recovering individuals need, at least at one point during their recovery, to live in a substance -free environment and their recovery is further supported by group living arrangements, both for the practicality of day-to-day living, as well as, the economic viability of such housing arrangements. Page 4 Plaintiffs' claims include a claim for a reasonable accommodation. The City put forth evidence that its Petition'for Special Case Approval form was the form an individual would use to request a reasonable accommodation. This form makes no mention of. a reasonable accommodation or a disability. The City attorney testified that this form is how a person or entity would request a reasonable accommodation. The form lists five different options for which it is a petition for, none of which is a reasonable accommodation. The City attorney testified that an applicant would check the sixth box which states Other (specify), with a blank line. The City's zoning code made no provision for individuals to request a reasonable accommodation from zoning and land use restrictions based on disability. Law *5 Plaintiffs bring claims under the Fair Housing Act, 42 U.S.C. § 3601 et seq., the American with Disabilities Act, 42 U.S.C. § 12131 et seq., and the 14th Amendment to the United States Constitution. I begin with Plaintiffs' Federal Fair Housing Act claim because I think that is where the crux of this case lies. Standing Plaintiffs assert they have standing to bring a claim under the FHA because they are disabled due to their recovering status. The City disagreed asserting, amongst other things, that the evidence supported the position that the recovering individuals could complete all major life activities. The FHA defines handicap with respect to an individual as having "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (c) being regarded as having such an impairment" 42 U.S.C. § 3602(h). The existence of such handicap must be examined on a case -by -case basis. See 'Albertson's Inc. v. Kkkhrgburg, 527 U.S. 555, 566, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). FN3 Major life activities include walking, learning, performing manual tasks, ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/print/printstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 6 of 19 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) getting an apartment, being unable to perform a class of jobs, and caring for oneself. Rossbach V. City of Mramr, 371 F.3d 1354, 1357-59 (11th Cir.2004); U.S. v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir.1992). To substantially limit means a long-term, permanent restriction, or considerable. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 196, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)(speaking to the definition of substantial as including considerable); Rossbach, 317 F.3d at 1357. The recovering individuals testified about the negative impact their addiction had on their lives, including preventing them from caring for themselves or keeping a home' at times, and- losing jobs and families. All of these things impacted their everyday lives in a significant way. All Individual Plaintiffs and current residents of Provider Plaintiffs testified, that at one time, they had because of their addiction been unable to perform one of these major life activities. For some the deprivation was long-term. For others the • deprivation may have been short-term, but repeated itself with frequency when he or she would relapse and again find themselves without their family, their home, their job, or ability to care for his or herself. The evidence established that the individuals involved suffered an impairment which qualified them as disabled under the FHA. FN3. While the Kirkingburg case dealt with the American with Disability Act, as . courts have noted the definitions under the two acts, one of disability and the other using the term handicap, are "almost verbatim." Bragdon v. Abbot 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). Accordingly, I will use the terms and applicable , analyses interchangeably. The position that recovering individuals can be considered disabled is supported both in case law and legislative history.FN4 "As a medical matter, addiction is a chronic illness that is never cured but from which one may nonetheless recover." S. Mgmt Corp.., 955 F.2d at 920. "Alcoholism, like drug addiction, is an `impairment' under the definitions of a disability set forth in the FHA, the ADA, and Page 5 the Rehabilitation Act." Reg? Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir.2002)("RECAP "). Congress intended to treat drug addiction as a significant impairment constituting a handicap unless excluded, such as by current drug use in accordance with 42 U.S.C. § 3602(h). See Lakeside Resort Enters, LP v. Bd of Supervisors of Palmyra Township, 455 F.3d 154, 156 n. 5 (3d Cir.2006); RECAP, 294 F.3d at 46; MX Group, Inc. v. City ofCovrogton, 293 F.3d 326, 338-39 (6th Cir.2002); S. Mgmt Corp., 955 F.2d at 919. The Fourth Circuit specifically spoke to the need for addicts to be given equal access to housing, instead of being denied housing on the basis of their constant craving and its accompanying dangers. S. Mgmt Corp., 955 F.2d at 922. I do not pass on the question of a per se disability for recovering alcoholics or drug addicts. As a matter of fact I do not think a per se rule is appropriate in these circumstances where the courts obligation is to do a case -by -case evaluation to -determine if an individual is handicapped. However, that does not preclude these individuals from satisfying' the definition. Their testimony was moving and credible. FN4. This position is also supported by 28 C.F.R. § 35.104(4)(1)(ii) which specifically references drug addiction and alcoholism as one meaning of physical or mental impairment in regards to nondiscrimination on the basis of disability in state and local government services. This section of the Code. of Federal Regulations also directly addresses individuals who have successfully completed a rehabilitation program. 28 C.F.R. § 35.131(a)(2) states "[a] public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in the current use of drugs and who-" is participating in a supervised rehabilitation program or successfully completed a rehabilitation program. *6 The definition of disability includes two other possibilities by which Plaintiffs can demonstrate their standing under the FHA, having had a record 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) of the type of impairment discussed above, or being regarded as having such an impairment. 42 U.S.C. § 12102(2). In order to demonstrate that an individual is handicapped due to having had a record of an impairment, the individual must have satisfied the first definition at some point. See Burch v. Coca-Cola Co., 119 F.3d 305, 321 (5th Cir.1997). All the individuals who testified at trial had experienced active drug or alcohol addiction at one point in their lives. As discussed above, the Individual Plaintiffs and current residents had been homeless, unable to hold down a job, or take care of themselves during their active addiction. Active addiction and its recovery are not short-term problems. They are long-term and for many require permanent diligence to maintain their sobriety. Their addiction particularly in its active stages substantially limited major life activities. This evidence supported these individuals having met the first definition, at the very least during their active addiction. Therefore, even if the above analysis is incorrect as to the individuals currently satisfying the first definition, where during their active addiction they satisfied the. first definition, Individual Plaintiffs have a record of such an impairment making them handicapped under the second definition of the FHA. There are two additional points I would like to make regarding the matter of standing in this case. First, is that the Individual Plaintiffs are not current residents of Provider Plaintiffs: However, they did testify that if they were to relapse they would return to Provider Plaintiffs' residences for some period of time during their recovery after they completed detoxification. For cases brought under the FHA, standing is to be as broad as the Constitution permits. See Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1537 (lath Cir.1994). Jackson involved a plaintiffs challenge to the site selection process regarding a public housing project Id. Plaintiff was wait -listed for the project and stated her intention to probably move in once it was built. Id. In this case, Individual Plaintiffs stated their intention to return to Provider Plaintiffs' residences should they relapse, which is a constant significant risk for recovering individuals. This is a similar position to that of the plaintiff in Jackson. Given Individual Plaintiffs' stated intention to return upon the Page 7 of 19 Page 6 happening of a certain likely event and the broad policy of •standing under the FHA, I conclude the Individual Plaintiffs have standing to challenge the City's action.FN5 FN5. This is also supported by the statute which talks about who may bring a suit under the FHA as an aggrieved person which is defined to include any person who "believes that such person will be injured by a discriminatory housing practice that is about to occur." 42 U.S.C. § '3602(i) (emphasis added). The other point I want to make involves the propriety of Provider Plaintiffs' standing. FHA cases are often brought by a provider of housing on behalf of the residents it seeks to house. See Brandt v. WE of Chebanse, Ill., 82 F.3d 172, 173 (7th Cir.1996); Smith & Lee Assocs., Inc. v. City 01 Taylor, Mich., 102 F.3d 781 (6th Cir.1996). Moreover, Provider Plaintiffs' status as a profit enterprise does not negate such standing. See Brands 82 F.3d at 173(case brought by residential housing developer); Smith & Lee Assocs., Ina, 102 F.3d at 781(suit brought by profit owner of group home). Accordingly, all parties to this action have standing to bring their FHA claims. Merits of Plaintiffs' claims under the Fair Housing Act *7 This case tests the limits of the protection provided by the FHA and a municipality's ability to legislate in an effort to preserve the character of its residential neighborhoods. Legally this is a difficult case where Plaintiffs are protected -by the FHA, but exactly how that protection impacts the City's acts is unclear. The case is made more difficult by its facts where the City claims it was attempting to do something that while possibly permissible under the law, is not what it did by passing the Ordinance. My conclusion in this case is that the City's actions challenged here are limited by the FHA, the question is how limited. Plaintiffs argued that the City's ordinances are ® 2007 Th'omson/West. No Claim to Orig. U.S. Govt. Works. https://web2..westlaw.com/pri ntlprintstream. aspx?prft=HTM LE&destination=atp&sv=Sp I it&rs=W... 7/31 /2007 Page 8 of 19 /4 Slip Copy Slip Copy, 2007 WL 628131(S.D.Fla.), 34 NDLRP 100 (Cite as: Slip Copy) discriminatory and thus, in violation of the FHA. The City responded that it was merely trying to move commercial/medical uses out of residential areas. 42 U.S.C. § 3604(f) of the FHA prohibits a public entity from discriminating against disabled persons by denying such persons the ability to live in a dwelling. The amendments to the FHA, which added handicapped individuals, were a statement by Congress of the commitment to end the unnecessary exclusion of individuals with disabilities from American mainstream where such exclusion was often based on generalizations and stereotypes of people's disabilities and the attendant 'threats of safety that often accompanied these generalizations. See Elliot v. City ofAthens, GA., 960 F.2d 975, 978 (Ilth Cir.1992)(discussing the House Report on the Fair Housing Amendments Act) abrogated by, City of Edvonds v. Oxford House, Ina ., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). Congress intended for the FHA to apply to zoning ordinances. See Larkin v. State ofMlch. Dept ofSoa Servs, 89 F.3d 285, 289 (6th Cir.1996)(discussing the explicit intent of Congress to have the FHA apply to zoning laws). However, the FHA does not pre-empt or abolish a municipality's power to regulate land use and pass zoning laws. See Hemisphere Bldg. CO., Inc. v. Vill. ofRichton Park, 171 F.3d 437, 440 (7th Cir.1999); Bryant Woods Inn, Inc. v. Howam County, Md., 124 F.3d 597, 603 (4th Cir.1997). " Land use restrictions aim to prevent problems caused by the `pig in the parlor instead of the barnyard.' " City of Edmonds, 514.U.S. at 732 (quoting Vill. ofEircGd v. Ambler Realty Co, 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). The amendments to the FHA were intended to prohibit the use of zoning regulations to limit `the ability of [the handicapped] to live in the residence of their choice in the community." H.R.Rep. No. 100-711, 100th Coug., 2d Sess 24 (1988), U.S.Code Cong. & Admin. News 1988, pp. 2173, 2185. The intersection between these two principles is where this case meets. It is against this backdrop that I address Plaintiffs' claims. Plaintiffs challenge two provisions of the City's zoning code, Ordinance 4649 and Section 28-2. Plaintiffs' argument is that each ordinance on its own, and the two in combination effectively limit the ability of recovering individuals to live in Page 7 residential areas of the City in "violation of the FHA. There are two ways to prove a violation of the FHA. See Larldn, 89 F.3d at 289. First is by showing that the defendant was motivated by a discriminatory intent against the handicapped. Id The second is where a defendant's actions are neutral, but have a discriminatory effect, thus having a disparate impact on the handicapped. Id. Plaintiffs argued they have proven a violation of the FHA under both avenues. This case does implicate both avenues. Plaintiffs' claim as to Ordinance 4649 is best analyzed.under the discriminatory intent theory while Plaintiffs' claim as to Section 28-2 is most appropriately analyzed under the , disparate impact theory. Accordingly, I will address them separately. Ordinance 4649 *8 I begin with Plaintiffs' challenge to Ordinance 4649. Ordinance 4649 defines substance' abuse treatment facilities and requires them to be in the City's medical district or with a conditional permit in a motel/business district. An ordinance facially discriminates against the handicapped where it singles them out and applies different rules to them. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (loth Cir.1995); Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 46-47 (6th Cir.1992). As applied .to this case, the question is not whether the City was specifically intending to discriminate against - ,Plaintiffs, but rather whether the ordinance on its face treats recovering drug addicts and alcoholics different from nqn-handicapped individuals. See Larldn, 89 F.3d at 290 (discussing how a defendant's benign motive does not prevent a -statute from being discriminatory on its face); see also Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)(discussing how discrimination against the handicapped is often the result of thoughtlessness, not particular offensive anger). The language of the Ordinance singles out recovering individuals where they are the individuals who would be residing in a substance abuse treatment facility. See McWrigbt v. Alexander, 982 F.2d 222, 228 (7th Cir.1992)(discussing how discrimination against an individual because of his or her handicap is often aimed at an effect of the handicap rather than the handicap itself). While this 0 2007 Tbomson/West. No Claim to Orig. U.S. Govt. Works. hftps://web2.westlaw. com/p rintlprintstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 9 of 19 )' Y Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34NDLRP 100 (Cite as: Slip Copy) does not mean that all.recovering individuals live in a substance abuse treatment facility, there was no evidence, nor did anyone argue that non -recovering individuals live in substance abuse treatment facilities. Accordingly, Ordinance 4649 treats. recovering individuals differently from non -recovering individuals where it requires the individuals who live in substance abuse treatment facilities, recovering individuals, to live in the City's medical zone or with conditional approval in a motelibusiness zone. This is sufficient to establish a prima facie case of discrimination. However, my analysis does not end here. Next, I must determine if the City's differential treatment of recovering individuals is justified such that it is not in violation of the FHA. The Eleventh Circuit has not addressed the standard a governmental defendant must meet to justify disparate treatment under the FHA M6 Therefore, I look to other circuits for guidance on what the City is required to prove, to establish that this distinction is not discriminatory under the FHA. See McAbee v. City of Fort Payne, 318 F.3d 1248, 1252 (llth Cir.2003)(looking to Other circuits for guidance as to what standard to apply where the Eleventh Circuit had not adopted one yet). Four United States Courts of Appeals have addressed this issue. Cmty. House, Inc. v. City of Boise, Idabo, 468 F.3d II18 (9th Cir.2006); Larkin, 89 F.3d 285; Bangerter, 46 F.3d 1491; Familystyle of& Paul, Inc. v. City of St. Paul, Minn., 923 F.2d 91 (8th Cir.1991). The Eighth Circuit was the first to develop a test to be used in these situations, but none of the other circuits confronted with the issue have chosen to follow the Eighth Circuit's analysis. In Familystyle, the Eighth Circuit adopted the rational relation test finding no FHA violation where a defendant demonstrated that its action was rationally related to a legitimate governmental interest Two of the other three circuits which have addressed this issue determined that once a plaintiff has established an ordinance is facially discriminatory, a defendant can present one of two.possible justifications for the discriminatory ordinance: (1) legitimate public safety concerns; or (2) that the restriction benefits the protected class. Cmty. House, Ina, 468 F.3d at 1125 (9th Cir.); Bangerter, 46 F.3d at 1503-04 (loth Cir.). In refusing to use the rational relation Page 8 test employed in Familystyle, the Tenth Circuit discussed how an equal .protection analysis is misplaced where in an FHA claim a handicapped plaintiff is bringing a claim based on a statute of which he or she is the "direct object of the statutory protection." Bangerter, 46 F3d at 1503. The Ninth Circuit adopted the Tenth Circuit test • arguing a similar distinction. It discussed how those protected by the FHA were not necessarily protected classes for constitutional purposes, thereby not making the rational relation test appropriate. Cornmunity House, Inc., 468 F.3d at 1125 (discussing how this standard is also more in line with the Supreme Court's analysis in Intl Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 111 5.Ct. 1196, 113 L.Ed.2d 158 (1991)). The Sixth Circuit did not adopt either the Bangerter or the Familystyle test, but instead stated that "in order for facially discriminatory statutes to survive a challenge under the FHAA, the defendant must demonstrate that they are `warranted by the unique and specific needs and the abilities of those handicapped persons' to whom the regulations apply." Larkin, 89 F.3d at 290 (quoting Marbrrmak Inc., 974 F.2d at 47). I agree that a rational relation test is not appropriate where the individuals bringing this statutory claim are the direct object of its protection, the protection of which appears to have been intended to be greater than that provided by the rational relation test I agree that the presence of either. of the Bangerter justifications would allow a facially discriminatory statue to survive an FHA challenge. FN6. In a recent unpublished opinion, the Eleventh Circuit employed the test from McDonnell Douglas Corp: v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) in an FHA context. See Boykhi v. Bank of Am. Corp., 162 Fed. Appx. 837 (llth Cir.2005). However,, the facts of Boykin are substantially different than those in the present case. In Boyl?it, the plaintiff was challenging a bank's treatment of her loan application. Therefore, the ease involved a discriminatory act during a residential real-estate related transaction m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:llweb2,westlaw.com/pri nt/p rintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Slip Copy Slip Copy, 2007 WL 628131(S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) against an individual being established through circumstantial evidence. This case involves two pieces of legislation passed by a City and a facial discrimination challenge. Plaintiffs' claims do not rely on circumstantial -evidence, but instead relied on the City's legislation and its impact on handicapped individuals. Therefore, the 1 instant situation is not sufficiently analogous to the facts of Boykin to cause me to determine that the Eleventh Circuit 1 would employ a JcDonnell Douglas test l here. See Cmty. House, Inc. v. City of Boise, Idaho, 468 F.3d 1118, 1124 (9th 1 Cir.2006)(discussing how the McDonnell Douglas test is inapplicable' to facial i discrimination challenges under the FHA). *9 However, I am not sure that the Bangerter test includes all possible justifications. As discussed below, I recognize a municipality's . interest in protecting the residential character of a neighborhood, as was argued strenuously here, and its ability to legislate such protection. While I agree with the City that this is a legitimate interest, I also recognize that this protection must be legislated with .the needs of those protected by the FHA in mind. Having articulated possible justifications that would allow Ordinance 4649 to survive Plaintiffs' FHA Challenge, this issue, becomes whether such justifications are present in this case. This is a difficult analysis where the City's primary justification was grouping compatible uses together,. which is not one of the Bangerterjustifications, nor is it a justification recognized by any of the other circuits that have addressed this issue. That being said, I will evaluate all justifications the City put forth for Ordinance 4649 in an effort to determine whether, even if in combination, they support the Ordinance and allow it to withstand Plaintiffs' challenge. There was some evidence at trial regarding public safety concerns FX7 the City had about Provider Plaintiffs residences. In Bangerter, the court pointed out that the statute itself states that "(n]otbing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health Page 10 of 19 Page 9 or safety of other, individuals or whose tenancy would result in substantial physical damage to the property of others." Bangerter, 46 F.3d at 1503 (quoting 42 U.S.C. § 3604(t)(9)). The legislative history indicates that generalized perceptions of threats to safety should riot support discrimination: See H.RRep. No. 100-711, 1988 U.S.Code Cong. Admin News at p. 2179. The residents spoke at the city council meeting about their fears'that stemmed from Provider Plaintiffs' residences. However, the transcript and video tape of the meeting admitted at trial did not support of a finding that any safety justification for this Ordinance was supported by a direct threat to the safety and health of others more so than generalized perceptions. The City did not put forth any evidence regarding the relationship between the crime involved at the halfway houses and crime occurring at other non -halfway house residences in the area. Accordingly, this evidence did not support a finding that Provider Plaintiffs' residences, or others that would fit the definition of substance abuse treatment facility, posed a direct threat to the health or safety of other individuals. FN7. The evidence consisted of a memorandum from the Chief of Police of the City detailing cases involving fatalities at the subject properties in a year and a half period and a list of incidents involving halfway houses in the City. The City's main justification was that the Ordinance was passed to group together compatible uses, .a common use of zoning ordinances. Specifically, the City's argument was that service providers or facilities that would meet the definition of a substance abuse treatment facility under the Ordinance, were commercial and medical in nature and therefore did not belong in a residential area. However, the only activity required to bring a service provider or facility within the purview of the Ordinance is that the service provider or facility require tenants to perform testing to determine if they are drug and alcohol free as a term of their tenancy. The language of the Ordinance FN8 goes to a service provider or facility "used for room and board only and in which treatment and rehabilitation activities are provided at locations ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 I> Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) other than the primary residential facility, whether or not the facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider. For purposes of this subparagraph (2), service providers or facilities which require tenants or occupants to participate in treatment and rehabilitation activities, or perform testing to determine whether tenants or occupants are drug and/or alcohol free, as a term or condition oZ or essential component of, the tenancy or occupancy shall be deemed to satisfy the 'treatment and rehabilitation activities' component of the definition contained in this section." It is not clear how this condition of tenancy turns a dwelling into a commercial facility, or at least more of a commercial facility than any residence rented or leased to occupants which would be by definition a commercial facility where it is viewed with regard to a profit. The condition of tenancy would make no change to the outward appearance of the residence, be it a single family home or an apartment building. The City put forth no evidence that an apartment building that required its tenants to be drug tested would somehow negate the fact that those individuals were living in the apartment building, making it their home. FN9 Instead, the City put forth evidence to establish that the residences offered by Provider Plaintiffs were more of a profit driven enterprise than a place where people actually lived. FN9. The Ordinance also includes in its definition of substance abuse treatment facilities a service provider or facility that is "[l]icensed or required to be licensed pursuant to F.S. § 397.311(18)." Florida Statute Section 397.311(18) defines " Licensed service provider" as "a public agency under this chapter, a -private for -profit or not -for -profit agency under this chapter, a physician or any other private practitioner licensed under this chapter, or a hospital that offers substance abuse impairment services through one or more of the following licensable service components" and then goes on to list such components. As discussed in further detail in the remedies section of this order, I Page 11 of 19 Page10 conclude that this section of the Ordinance can remain. FN9. Even the City s planning and zoning director testified that Provider Plaintiffs' apartment buildings look just like an apartment building. *10 I do not disagree with the City's position on this point. However, Ordinance 4649 did not capture the use it was attempting to segregate. The City was looking at Provider Plaintiffs and the services they provided to recovering addicts, including a program with three different phases, drug testing on site, transportation, group therapy meetings, medication control, money control, Alcoholic Anonymous and Narcotics Anonymous meetings on site, curfews, room inspections, bed checks, and individual therapy. Recovering individuals spent limited time in each phase, requiring them to move from building to building. The City also looked at Provider Plaintiffs' business model where they were marketing themselves as unique recovery programs, had a large office use in the main facility, charged individuals by the week with no regard for what unit they were in or how many individuals were living in the unit, and kept deposits from individuals who relapsed 'regardless of how many times they had previously relapsed while staying with Provider Plaintiffs. The City found the combination of these uses and Provider Plaintiffs' business practices commercial in nature. As I expressed at trial and earlier in this order, some of Provider Plaintiffs' business practices give me pause, particularly where Provider Plaintiffs are seeking protection from a. statute which protects handicapped individuals, because many of the business practices employed by Provider Plaintiffs do not appear to serve the therapeutic needs of these handicapped individuals. However, questionable business practices aside, the Ordinance does not capture the commercial and medical uses that underlie the City's justification, nor did the City prove either of the Bangerter factors justified the passage of the Ordinance. Instead; the Ordinance, which hinges the location of a housing provider in a residential zone to whether that housing provider requires its residents to be subjected to drug testing as part of his or her ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:llwebZ.westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=split&rs=W. 7/31 /2007 J Page 12 of 19 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLRP 100 (Cite as: Slip Copy) occupancy, substantially limits the housing options for recovering individuals in the City. Recovery from substance abuse is an ongoing struggle for many, which for a large number of such individuals may require at least some period of time living in a drug and alcohol free environment. Regan's testimony established the substantial risk of relapse recovering individuals face and their need to be in a supportive drug and alcohol free environment to decrease such risk. Regan testified that one can not absolutely determine if a living environment is drug and alcohol free unless its residents are drug tested. There was also testimony at trial, by Regan, and the recovering individuals, as to the role a group living arrangement plays in- their recovery, including helping to keep them clean because of the transparency, but also providing them with less opportunities for loneliness, a major trigger for relapse. Other courts have acknowledged the role a group living arrangement plays in the recovery of substance abusers. See Corp. of the Episcopal Church in Utah, 119 F.Supp.2d 1215, 1217-18 (D.Utah 2000); Oxford House, Inc. v. Town of Babylon, 819 F.Supp. 1179, 1183 (E.D.N.Y.1993); U.S. v. Borough ofAudubcn, N.J., 797 F.Supp. 353, 358-59 (D.N.J.1991). 'The need for bandicapped people to live in group arrangements for support or to pool caretaker staff has been described as essential. Brandy 82 F.3d at 174; see also Smith & Lee Assocs., Ina, 102 F.3d at 795-96 ,(discussing the need to allow group homes for the elderly to have at least nine residents in them for economic viability). Such group living arrangements which are drug and alcohol free, thus necessitating drug testing, at the very least off site, fall within the purview of the Ordinance. Based on this evidence the restriction that a housing provider who requires drug testing as an essential part of a tenant's occupancy only provide housing in a medical district or possibly in a motel/business district cannot be seen as a restriction that benefits recovering individuals. Thereby, the City has limited the opportunities for recovering individuals to live in residential areas of Boca Raton. *11 As discussed above, the City argued the Ordinance was aimed at commercial and medical uses: The City's list of such uses is much longer than just drag testing. However, the Ordinance Page11 includes none of these other uses. The City argued the Ordinance did not capture a mere housing provider that required drug testing where the Ordinance only captured "service providers or facilities." The Ordinance does use this language, however the distinction between who imposes the requirement, the residents of the group living arrangement or their landlord appears to be without significance to the impact on the residential character of the neighborhood. For example, a entity which wanted to provide substance free housing to twenty recovering individuals in ten one -bedroom apartments complete with drug testing as part of their lease to insure the Substance free component of their environment, and AA and/or NA meetings in the building's common area would have to provide such housing in the medical district or apply for a conditional use in a motel/business district. Yet, under the'City's distinction a building housing 90 people in 30 apartments subject to the same drug testing requirement discussed above and having the same AA and/or NA meetings, could be in the residential zone so long as the residents themselves got together and agreed to put the restrictions on themselves and arrange for the AA and/or NA meetings themselves. It is not clear that the difference of who imposes the requirements on residents is significant to the analysis of whether the use is a commercial one.FNtc The City put forth no evidence which demonstrated that a sober living arrangement provided by a third party destroys the residential character of a neighborhood more than a sober living arrangement organized by the residents themselves.I`'tt Based on the evidence presented, the City's distinction does not cure the Ordinance's discriminatory impact. This is not to say that the City is precluded from attempting to separate the commercial from the residential. As I stated earlier, Provider Plaintiffs` residences include a lot more services than drug testing, and perhaps more than is therapeutically necessary. FN10. As discussed in the Joint Statement of the Department of Justice and the Department of Housing and Urban Development, group homes are often provided by an organization that provides housing and various services for m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2-.westlaw.com/printtprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 J Y Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) individuals in the group homes. See Joint Statement of the Department of Justice and the Department of. Housing and Urban Development, Group Homes, Local Land Use, and the Fair Housing Act available at http:// www.usdoj.gov/crt/bousingtfma]8_1.htin. FNI 1. See supra n. 9. Therefore, my ruling regarding the Ordinance is not intended to limit the City's ability to regulate what it sees, and what I saw as well from the evidence, as a commercial' operation. My concerns are similar to those discussed by the Supreme Court in Village of Belle Terre v. Boraw, 416 U.S. 1, 94 S.Ct.. 1536, 39 L.Ed.2d 797 (1974) where it stated: The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds. A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land -use project addressed to family needs. This goal is a permissible one within Berman v. Parker, supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary, for people. *12 Boreas, 416 U.S. at 9. The sheer volume of individuals Provider Plaintiffs are housing within a small geographic location contributes to setting Provider Plaintiffs' housing opportunities apart from the residences that surround it. This is in addition to the transitory nature of the housing where residents are shifted through different buildings depending on what phase of the program they are in. I recognize that Provider Plaintiffs' facilities are apartment buildings amidst other apartment building and therefore to the naked eye one may not see Provider Plaintiffs' buildings as the pig in the parlor. However, because of the congregation of Provider Plaintiffs' facilities and the multitude of services offered by Provider Plaintiffs, a closer examination would bring to light the difference between Provider Plaintiffs' facility and an average Page 13 of 19 Page 12 residential apartment building. As discussed in Boraas, the ability to protect the residential nature of a neighborhood is not limited to controlling the negatives that obviously do not conform with the area, but includes the ability to set apart areas where people make their home from the rest of the City. While I agree that recovering individuals need to be given the opportunity to live in group arrangements as discussed earlier, such arrangements need not include approximately 390 people in a group of buildings all within a quarter of a mile of each other. Once again the City's Ordinance does not directly address this concern. Even though I agree with the City's ability to protect the residential character of the neighborhood and Provider Plaintiffs' possible impact on that character in this case, the link between the Ordinance and the protection of the residential character of the neighborhood is not a direct one. The City did not present sufficient evidence to justify the Ordinance based on legitimate- public safety concerns or to demonstrate that the restriction imposed benefitted the recovering individuals. In this case, neither of the Bangerter justifications are present. In addition, the City's justification of grouping like uses together is not a sufficient justification where protecting the residential character of its neighborhoods could have been legislated in a less discriminatory way such,that it did not substantially limit the availability of residential housing to recovering individuals. Section 28-2 I must now turn to Section 28-2 of the City Code, the City's definition of family. The analysis regarding this Section is different than that of the Ordinance. Section 28-2 by its own terms does not refer to recovering individuals or substance abuse. Instead, Section 28-2 treats all individuals, handicapped and non -handicapped, provided they are unrelated or not within the Section's two exceptions, foster children and domestic servants, alike. Four non -handicapped non -related people cannot live in a single dwelling, just as four recovering individuals cannot live in a single dwelling. Therefore, this Section is more ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLIL P 100 (Cite as: Slip Copy) appropriately examined for its disparate impact on handicapped individuals. See RECAP, 294 F.3d at 52. A disparate impact analysis should be employed where a facially neutral section of the city code is examined to determine its differential impact on a protected group under the FHA. See RECAP, 294 F.3d at 52. To succeed on a disparate impact theory, plaintiffs must provide evidence that the neutral practice had .a disproportionate impact on the protected class. RECAP, 294 F.3d at 52-53; 2922 Sherman Ave. Tenants' Assn Y. D. C., 444 F.3d 673, 681 (D.C.Cir.2006). The question in this case is whether limiting the occupancy of a single dwelling in the City to three unrelated people has a disproportionate impactnn recovering individuals. *13 Plaintiffs' argument at trial was that it did where recovering individuals • often require the availability of group living arrangements as part of their recovery. The City argued that this provision does not violate the FHA where there are other possibilities for a group home of recovering individuals in a residential area of the City. The evidence at trial supported the conclusion that recovering individuals often need group living arrangements as part of their recovery for a variety of reasons. Two of the reasons, as discussed by Regan, are decreasing the possibility of relapse by decreasing the feelings of loneliness and increasing the supervision due to the accountability present when people live together. Regan's testimony has previously supported such findings. See Town of Babylon, 819 F.Supp. at 1183. The last reason, as discussed earlier in this order, is the economic viability of providing housing to handicapped people. This reason has also been recognized in the law. Brandt; 82 F.3d at 174; Smith & Lee Assocs., Inc., 102 F.3d at 795-96. Plaintiffs' position is further bolstered by an examination of the Oxford House model. Oxford Houses, the work of a non-profit organization which helps recovering individuals establish group sober homes, require a minimum of six residents to receive a charter for the proposed home. The Oxford House Manual, available at http://www.oxfordhouse.org. The City argued that groups of recovering individuals could live together under other provisions of the City Code. For example, the City pointed to the community residential homes allowed for by the Page 14 of 19 Page 13 City Code and detailed iri Florida Statute Section 419.001. However, the Florida statute requires community residential homes to be licensed by the Agency for Health Care Administration or that the handicapped residents of such a home be a client of one of four different state' agencies. Fla. Stat. § 419.001. Limiting the possibility of recovering individuals to live in a residential area only if they become licensed or are clients of a state agency limits their housing options. Based on the foregoing, I agree with Plaintiffs that Section 28-2 impacts recovering individuals more than non -recovering individuals. Once Plaintiffs establish this disproportionate impact on the handicapped, the burden is shifted to the City to prove. that the action furthered "a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect." Huntington Branch, N.A.A. C.P. v. Town ofHuntingiou, 844 F.2d 926, 936 (2d Cir.1988); See Town of Babylon, 819 F.Supp. at 1183. The'City argued that this definition of family furthered a variety of governmental interests, including controlling population density and preserving the single family character of the City's residential areas. I agree that the preservation of a residential character is a legitimate governmental interest. However, in this case the City did not demonstrate that there was no less discriminatory alternative means to accomplish this goal. Section 28-2 makes no exception for a group home for recovering individuals who merely want to live in a single family home and would not impact the residential character of the neighborhood. Section 28-2 provides two other exceptions and the City put forth no evidence to explain why allowing a similar exception f6r recovering individuals would destroy the residential character of the neighborhood. *14 The no less discriminatory means is further exemplified by the City's lack of any established procedure by which handicapped individuals could request a reasonable accommodation to the occupancy limitation. Discrimination under the FHA includes denying or making a dwelling unavailable because of a handicap, including refusing to make reasonable accommodation in rules, policies, practices, or services such that © 2007 Thomson/West. No Claim to Orig. U.S. GovL Works. ht#ps://web2.westlaw.com/printtprintstream.aspx?pr t=HTMLE&destination=atp&sv=Split&rs=W... 7/31/2007 R Page 15 of 19 Slip Copy Slip Copy, 2007 WL 628131(S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) would be necessary to afford such person the Opportunity to use and enjoy a dwelling. See 42 U.S.C. § 3604(f)(3)(B). There was no evidence that a reasonable accommodation to Section 28-2 was available. The City put forth evidence of a Petition for Special Case Approval form which it argued an individual would use to request for reasonable accommodation. Neither reasonable accommodation, nor disability were mentioned on the form. There was no evidence of such form having been used historically by handicapped individuals to request a reasonable accommodation. There was no evidence that the form was referenced anywhere else in the City Code that dealt with reasonable accommodation requests. Where Section 28-2 itself provides no exception for handicapped individuals and the City's Code has no clearly established procedure that would allow a handicapped individual, group of individuals, or provider of group homes, to request a reasonable accommodation of the occupancy limitation, the City has not demonstrated that no less discriminatory alternative to Section 28-2 would serve the same interest. Therefore, Section 28-2 as written violates the FHA. This is not to say that the City's occupancy limitation of three unrelated people. is not permitted should the City legislate it in a less discriminatory fashion. The Plaintiffs argued that City ofEdmonds suggests that such caps violate the FHA. I •do not read City of Edmonds to make such suggestion. City of Edmonds, 514 U.S. 725, 115 S.Ct. • 1776, 131 L.Ed.2d 801. City of Edmonds held that the type of limitation used here, "the family -defining kind," is not exempted from the FHA by 42 U.S.0 § 3607(bxl). Id at 728. Instead, the Court held; the exemption only applies -to "total occupancy limits, i.e., numerical ceilings that serve to present overcrowding in living quarters." Id The question before me is not whether Section 28-2 falls within 42 U.S.C. § 3607(b)(1)'s purview. I do not think the FHA is violated merely by having a cap on the number of unrelated individuals who can live in a single family dwelling. Furthermore, I find nothing wrong with the number three that the City has chosen. A city must draw a line somewhere. The number chosen is in line with the Page14 average occupants per unit within the City. The number of individuals per unit on average was less than three. As eloquently stated by Justice Holmes, " [n]either are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law." Irwin V. Gmg4 268 U.S. 161, 45 S.Ct 475, 476, 69 L.Ed. 897; see Bowes, 416 U.S. at 8 (stating that every line a legislature draws leaves out some that might as well have been included, the use of such discretion is a legislative function); see also Smith & Lee Assocs., Inc., 102 F.3d at 797 n. 13 (discussing the fine line drawn between.a group home of nine residents not substantially altering the residential character of a single-family neighborhood while a twelve resident group home would more likely do so). While I find no legal problem with the cap of three unrelated individuals per se, the limitation without any exception for handicapped individuals or an established reasonable accommodation procedure violates the IRA. *15 This is not to say that recovering individuals should have a blanket exemption from a cap on the number of unrelated people that can live in a dwelling in a residential district of the City. Nor is it to say.that the City cannot limit Provider Plaintiffs' units to three unrelated people per unit There was testimony at trial that Provider Plaintiffs could be profitable and have therapeutic success with only three people per apartment All of this can be considerations in attempting legislate a capacity limitation that complies with the FHA. My ruling here is not intended to limit the City's ability to regulate the residential character of its neighborhoods. As discussed above, I agree with the City that preservation of the residential character of its neighborhoods is a legitimate governmental interest. However, the impact of these two zoning sections limits the ability of recovering individuals to obtain housing in residential areas of Boca Raton. They did not with little, if any, evidence as to how the presence of recovering individuals destroys the residential character. The City may regulate the residential character of its neighborhoods, so long as they devise a means to protect the ability of recovering people to live in the m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. hfps://web2..westlaw.com/printtprintstream.aspx?prf=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 16 of 19 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLRP 100 (Cite as: Slip Copy) residential neighborhoods in a meaningful way which takes in mind their need for a group living substance free environment. Remedies At the conclusion of the bench trial, I asked each of the parties, and the Department of Justice, who has a related case pending against the City, to submit recommendations as to an appropriate remedy in this case. I told the parties "I would like to accomplish the purpose but do it as narrowly FN12 as possible." Despite this request, both parties essentially argued their positions again, including suggesting the broadest remedy available to each of them. I decline to adopt any of the positions offered given the facts of the case and the precedent on the issue of remedies. ' FN12. I went further to explain that "It doesn't help me to say just strike everything and enjoin everything.... I need something better than that. And the same thing goes for the city. You know, the more specificity -in fact, even -if you were going to deal with the ordinances, specific excisements, if that's how we would handle it. And if there's_ procedure that you would suggest I order, a specific language. You know, concepts aren't as much helpful at this point to me as language." Having found that the Ordinance and Section 28-2 violate the FHA, the question before me is whether they should both be stricken, as Plaintiffs suggest, or if I should more narrowly tailor the relief as I alluded to at the conclusion of the bench trial. The precedent supports a narrow tailoring. See Ayotte v. Planned Parenthood of N. New England, et al., 546 U.S. 320, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). In Ayotte, Justice O'Connor addressed a similar predicament. The Court specifically held "that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injtinctive relief." Ayotte, 126 S.Ct. at 964. In this case I attempt to achieve the result I think is necessary as narrowly as PagelS possible. As to Ordinance 4649, the primary difficulties with this Ordinance involve the second definition and its subsection. I find no violation of the FHA by the City's first definition, those service providers or facilities that are "licensed or required to be licensed pursuant to Section 397.311{18) Fla. Stat." This statute details various licensable service components and defines an entity as a licensed service provider if it offers substances abuse impairment services through one or more such licensable service components. Nothing in 'the statute indicates that by not allowing a licensed service provider to be located in a residential area, the City is precluding recovering individuals from living in residential areas where recovering individuals can reasonably live in residential areas of the City without needing two or more of the licensable service components listed in, Section 397.311(18). Accordingly, section ' one of Ordinance 4649 shall remain in effect. While I have ideas, some of which are expressed herein and others of which were discussed at trial, about how section two of the Ordinance could be written to better serve the City's justification and comply with the FHA, I decline to re -write the Ordinance. My decision is based on the roles ofthe legislature and judiciary, but also on a principle Justice O'Connor discussed in Ayoffe. Courts'should not determine to whom a statute should apply where a legislature has cast its net widely because this would put the judiciary in the legislature's role. See Ayotte, 546 U.S. at 968. Therefore, I decline to parse the second definition or to add my own words to it. The City is enjoined from enforcing section two of Ordinance 4649. *16 Section 28-2 is not susceptible- to parsing either. However, given my discussion above, I' am going to temporarily enjoin enforcement of section 28-2 against recovering addicts until such time as the City passes a reasonable accommodation procedure. The City must provide a process by which a request for reasonable accommodation on the basis of one's disability could be requested. FN13 Accommodations are to give consideration for the limitations caused by the disability. This remedy does not enjoin the City against enforcing ® 2007 Thomson/West No Claim to Orig. U.S. GovL Works. hfps:llweb2.westlaw.com/printlprintstream.aspx?prfE=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 17 of 19 I) I) Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) this provision of the City Code against Provider Plaintiffs. I reach this conclusion not only because of my position that while recovering individuals need an accommodation to allow for group living situations, I found no evidence which persuaded me that this maxim requires Provider Plaintiffs to have more than three individuals in each of their units. As discussed above there was evidence that Provider Plaintiffs' facilities can be therapeutically successful and profitable with three individuals per unit. FN13. As discussed in the Joint Statement, local governments should "make efforts to insure that the availability of [reasonable accommodation request] mechanisms is well known within the community " Joint Statement at page 4. There was no evidence that the Petition for Special Case Approval form was well known as the avenue to a reasonable accommodation. Instead, the testimony was that the Petition for Special Case Approval form was a catch all application. My position as to Provider Plaintiffs being excluded from this temporary enjoinment is also based on Provider Plaintiffs' unclean hands where they previously agreed to comply with section of the City Code demonstrating their ability to do so and continue to offer housing to recovering individuals. Misconduct by a plaintiff which impacts the relationship between the parties as to the issue brought before the court to be adjudicated can be the basis upon which a court can apply the maxim of unclean hands. See Mitchell Bros. Film Group v. Cinema Adult Theater- 604 F.2d 852, 863 (llth Cir.1979). The maxim of 'he who comes into equity must come with clean hands' has been said to close the door of equity to a litigant tainted' by inequitableness as to the matter about which the litigant seeks relief. See Precision Instrument Mfg. Co. Y. Auto. Maine Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). This principle requires the litigant to act "fairly and without fraud or deceit as to the controversy in issue." Id. at 814-15. Where Provider Plaintiffs can continue to provide housing to recovering individuals while Page16 complying with Section 28-2 and they previously agreed to, I find it 'unnecessary to enjoin enforcement against them. Damages As to damages, the Individual Plaintiffs asserted that their injury included the humiliation of community disdain, the compromise of their anonymity as to their recovering status, and the stress of possibly losing their sober housing. I do not doubt the humiliation the Individual Plaintiffs felt as they listened to the city council meeting where the Ordinance was addressed. However, many of them did not even attend the meeting. Their testimony regarding their emotional harm was conclusory and was not specific such that it convinced me of the nature and extent of their emotional harm. See, e.g., Bailey v. Runyon, 220• F.3d 879, 880-81 (8th Cir.2000)(discussing bow a plaintiffs own testimony can be sufficient but is not necessarily the sine qua non to establishing evidence of emotional harm). Plaintiffs did not put forth any evidence of ramifications of their emotional distress. See, e.g., Price v. City of Charlotte, N.C., 93 F.3d 1241, 1254-56 (4th Cir.1996). The City was required to hold the public meeting and allow members of the public to speak to the Ordinance. See Fla. Stat. § 166.041. In this case, I find the statements made at a democratic function were not sufficient to establish injury. The City delayed application of the Ordinance until 18 months after the rendition of a final non -appealable order in this case. The Individual Plaintiffs did not have to suffer the loss of sober housibg and have' had ample opportunity to address such a possibility where this lawsuit has been pending for over three years. I do not find Individual Plaintiffs established a concrete injury sufficient to sustain a compensatory damage award *17 Similarly, the damages claimed by Provider Plaintiffs are unwarranted where they are speculative. A damage award must be based on substantial evidence, not speculation. See Kenner v. Sizzler Family Steak House, 597 F.2d 453, 457 (5th Cir.1979).FNI4 Provider Plaintiffs claimed lost revenues where they were unable to grow their ® 2007 ThomsontWest. No Claim to Orig. U.S. Govt. Works. https://web2,westlaw. com/printtp ri ntstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Slip Copy Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) business due to the uncertainty of this litigation, mainly premised on their inability to obtain financing for another apartment building due to this litigation. Provider Plaintiffs presented a damages expert. However, he relied on an appraisal price of the building with no evidence to establish Provider Plaintiffs could have bought the building at that price. There was no evidence regarding the listing price of the'building and the seller's agreement to Provider Plaintiffs' price. There was also no evidence regarding the increased demand for the type of housing Provider Plaintiffs provided such that they would be able to fill another building. In sum, the evidence was speculative that Provider Plaintiffs would have made the profits articulated, but for the Ordinance and Section 28-2. FN14.. Decisions of the United States Court of Appeals for the Fifth Circuit that as existed on September 30, 1981 are binding on the United States Court of Appeals for the Eleventh Circuit. See Bonner v. City ofPrichar4, Ala, 661 F.2d 1206, 1207 (llth Cir.1981). Despite not having found sufficient evidence to establish • a need for compensatory damages, I do think that Plaintiffs are entitled to an award of nominal damages. "Nominal damages are a trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or breach of the defendant's duty, or in case where, although there has been a real injury, the plaintiffs evidence fails to show its amount." Black's Law Dictionary 392 (6th ed.1990). While the Eleventh Circuit has stated that merely a violation of a purely statutory right does not mandate an award of nominal damages for such statutory violation, it has not precluded such an award where the district court finds it appropriate. See Walker v. Anderson Blea Connectors, 944 F.2d 841, 845 (llth Cir.1991). The Supreme Court has recognized the role that nominal damages play in cases where there is no concrete damage to compensate, but it is important to observe an individuals' rights. Memphis Chrty. Sch. Dist v. Stachurs, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, Page 18 of 19 Page17 91 L.Ed.2d 249 (1986). The Sixth Circuit has stated that at a minimum an award of nominal damages would be appropriate where a plaintiff proved a violation of the FHA and that he suffered a non -quantifiable injury as a result. See Hamad v. Woodcrest Condo. Assiy 328 F.3d 224 (6th Cir.2003); see also Baltimore Neigbborhoods, Ina v. LOB, Inc.., 92 F.Supp.2d 456, 464 (D.Md.2000) (finding an award of nominal damages appropriate in a violation of the FHA case where plaintiff failed to show actual damage). Plaintiffs did not present evidence sufficient to sustain a damage award. However, this should not detract from the •finding that the City violated the FHA. This is particularly true where as discussed above the statutory claim which Plaintiffs bring entitles them to greater protection than their constitutional rights would provide to a similar claim and nominal damages are required for. a violation of constitutional rights. See Walker, 944 F.2d at 845(discussing how Carey v. Pipbus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) applies only to violations of constitutional magnitudes). In order to not take away the importance of such violation, I conclude that an award of nominal damages is appropriate. *18 Accordingly, it is hereby ORDERED AND ADJUDGED that Judgment is entered in favor of Plaintiffs as to their Federal Fair Housing Act claims. Judgment is entered in favor of Plaintiffs against Defendant in the amount of $1.00 as to each Plaintiff It is FURTHER ORDERED AND ADJUDGED that the City is enjoined from enforcing section 2 of Ordinance 4649 -and is enjoined from enforcing Section 28-2 • as to recovering individuals until such time as the City passes a reasonable accommodation procedure. Plaintiffs' remaining claims are dismissed. Judgement shall be entered in accordance with this Order. DONE AND ORDERED in Chambers at West Palm Beach, Florida, this 26th day of February, 2007. S.D.F1a.,2007. Jeffrey O. v. City of Boca Raton Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 m 2007 Tbomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlpri ntstream. aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 19 of 19 M1 Slip Copy J Slip Copy, 2007 WL 628131 (S.D.Fla.), 34 NDLR P 100 (Cite as: Slip Copy) END OF DOCUMENT a ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page18 https://webZ.westlaw.com/printtprintstream.aspx?prff=HTMLE&destination=atp&sv=Spiit&rs=W... ?/31/2007 0 Rage L of 4U 0 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 1 For Opinion See 04 F.3d 365, 91 F.3d 153 Unite s,Ninth Circuit. Shirley and Jason MCCLURE, Plaintiffs and Appellees, V. Martin DEAN,GELO, William Gatoff, Mark Sutton, Harold Liddicoat, Eugene Zeller, Jeffrey Kellogg and Raymond Grabinski, Defendants and Appellants. No. 94-56772. August 3, 1995. ON APPEAL FROM THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA THE HONORABLE SPENCER J. LETTS, JUDGE C.D. Cal. No. CV92-2776-JSL (Kx) Brief of Plaintiffs and Appellees Shirley and Jason Mcclure Litt a Marquez, Barret S. Li7). Jason R. Litt (#163743) 343 i s ire Blvd., Ste. 1100 Los Angeles, CA 90010-1912, (213) 386-3114, Attorneys for Plaintiffs and Appellees, Shirley and Jason Mcclure *1 TABLE OF CONTENTS STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ... 1 STATEMENT OF ISSUES ... 2 STATEMENT OF THE CASE . 2 A. The Claim and the Parties ... 2 B. Procedural History ... 4 STATEMENT OF FACTS ... 7 A. Background ... 7 B. The Fire Clearance ... 10 C. The Permits ... 11 D. Neighborhood Opposition And The Beginning Of The Conspiracy ... 13 E. The July 24 Inspection ... 15 ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prf=HTM LE&mt=California&fn=_top... 7/31 /2007 Page 3 of 40 1955 WL 17139712 (C.A.9) Page 2 (Cite as: 1995 WL 17139712) ' 3 F. The July 24 City Council Meeting ... 16 G. The Inspection Warrant ... 17 - H. The Fences ... 18 I. The Suspension Of The Permits ... 19 'j J. The July 31 City Council Meeting ... 22 K. The August 2 Inspections And Removal Of The Utility Meters ... 22 L. The Revocation Of The Fire Clearance ... 23 ' • M. The Denial 0£ An Appeal ... 24 N. The Criminal Prosecution ... 26• 0. The Subsequent Owners ... 28 ARGUMENT ... 29 I. STANDARD OF REVIEW ... 29 II. THE LAW OF QUALIFIED IMMUNITY ... 29 *ii I1I. THE MCCLURES' CLAIMS UNDER THE FHAA ARE NOT BARRED BY QUALIFIED IMMUNITY .. 30 A. Qualified Immunity Is Not A Valid Defense Under The FHAA, And. Even If It Is, Closely Analogous Case Law Is Now Necessary To Establish A Clearly Established Violation Violation Of The Law ... 30 B. The Law Prohibiting Appellants' Conduct Was Clearly Established ... 31 1. The Law Under .6 360-4(f)(1) Was Clearly Established ... 32 2. The Law Under'Section 42 U.S.C. .S 3604(f) (3) (B) Was Clearly Established ... 36 3. The Law Under Section 42 U.S.C. g' 3617 Was Clearly Established ... 37 IV. THE McCLURES' CLAIMS UNDER 42 D.S.C. § 1983 ARE NOT BARRED BY QUALIFIED IMMUNITY ... 38 A. Defendants Deprived Plaintiffs Of Their Clearly Established Right To Equal Protection Of The Law ... 19 B. Defendants Deprived Plaintiffs Of Clearly Established Property Interests Without Providing Due Process ... 40 m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printIprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 Page 4 of 40 1595 WL 1713971-2 (C.A.9) Page 3 (Cite as: 1995 WL 17139712) 1. Substantive Due Process ... 40 2. Procedural Due Process ... 40 V. DEFENDANTS' VIOLATED PLAINTIFFS' RIGHTS UNDER 42 U.S.C. 0 1985 AND 1986 ... 44 VI. THE FIRST AMENDMENT IS IRRELEVANT TO THE RESOLUTION OF THIS APPEAL ... 44 CONCLUSION ... 44 *iii TABLE OF AUTHORITIES CASES Armendariz v. Penman, 31 F.3d 860 (9th Cir. 1994) (41 F.3d 493) ... 31, 43 Anderson v. Creighton, 483 U.S. 635 (1987) (107 S.Ct. 30341 ... 29, 31 Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (1906) ... 41 Bateson v. Geisse 857 F.2d 1300 (9th Cir. 1988) ... 40 Beltz Travel Service, Inc. v. International Air Transport Assn., 620 F.2d 1360 (9th Cir. 1980) ... 38 Blacklund v. Burhart, 778 F.2d 1886 (9th Cir. 1985) ... 30 Board of Regents State College v. Roth, 408 U.S. 564 (1972)•... 41 Burrell v. Bd. of Trustees of Ga. Military College, 970 F.2d 785 (llth Cir. 1992) 44 Casa Marie, Inc. v. Superior Court, 752 F.Supp 1152 (D. Puerto Rico 1990) ... 33 Celotex Corp. -v. Gatrett, 477 U.S. 317 ... 5, 6 City of Chicago V. Matchmaker Real Estate Sales Center, Inc., 982 B.2d 1086 (7th Cir. 1992) ... 30 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ... 39 City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802 (9th Cir. 1994) ... 36, 37 city of Newport v. Fact Concerts, 453 U.S. 247 (1981) ... 30 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ... 42 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.wesUaw.comlprintlprintstream.aspx?sv=Split&prfi=HTMLE&mt=California&fn= top... 7/31/2007 Page 5 of 40 1995 WL 17139712 (C.A.9) Page 4 (Cite as:, 1995 WL 17139712) Del A. v. Edwards, 855 F.2d 1148 (5th Cir.), reh'g granted., 862 F.2d 1107 (5th Cis. 1988) ... 34 Familystyle of St. Paul. City of'St. Paul. Minn., 923 F.2d 91 (8th Cir. 1988) ... 35 G.S. Rasmussen & Assoc. v. Kalitta Flving Service, 958 F.2d 896 (9th Cir. 1992) ... 41 Goka v. Bobbit, 862 F.2d 646 (7th Cis. 1988) reh'g denied ... 6 , Golden v. State, 133 Cal.App.2d 640 (1955) ... 41 Griffen v. Breckenridge, 403 U.S. 88 (1971) ... 44 Growth Horizons, Inc. v. Delaware County. PA, 983 F.2d 1277 (3rd C.R. 1993) ...35 *iv Hanson v. Veterans Administration, 800 F.2d 1381 (5th Cir. 1986) ... 32 Harlow v. Fritzgerald, 457 U.S-. 800 (1982) ... 29 Hill v. Pacific Gas & Electric Co., 22 Cal.App. 788 (1913) ... 41 Hooper v. Bernalillo County Assessor, 472 U.S: 612 (1985) ... 39 Houghton v. South, 956 F.2d 1532 (9th Cir. 1992) ... 5 Huntington Branch. NAACP. v. Town of Huntingtort,844 F.2d 926 (2nd Cir. 1987) ... 32 Jackson v. Rapps, 947 F.2d 332 (8th Cir. 1991) ... 31 ,Tohnson v. Tones, _S.Ct. _, 63 USLW 4552, 1995 WL 347244, (June 12, 1995) ... passim Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988) ... 32 Mennonite Bd. of Missions v, Adams, 462 U.S. 791 (1983) ... 41 Beach Police Officers Ass's, Inc. v. City of Manhattan Beach, BB1 F.2d 816 (9th Cir. 1989) ... 44 Michigan Protection and Advocacy Service, Inc. v.Babin, 799 F.Supp. 695 (E.D. Mich. 1992), aff'd, 18 F.3d 337 (6th Cir. 1994) ... 33, 34, 35 Mitchell v. Forsyth, 472 U.S. 511 (1985) [105 S.Ct. 2806, 86 L.Ed.2d 411] ... 1 O'Neal v. Albama Dept of Public Health, 826 F.Supp. 1368 (M.D. Ala. 1993) ... 31 Ostlun v. Bobb, 825 F.2d 1371 (9th Cir. 1987) ... 29 Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 0 https://web2•.westlaw.com/print/printstream.aspx?sv=Split&prft=HTM LE&mt=Californ is&fn=_top... 7/31 /2007 Page 6 of 40 1995 WL 17139712 (C.A.9) Page 5 (Cite as: 1995 WL 17139712) Pierson v. Ray, 386 U.S. 547 (1967) ... 30 Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977) ... 32 School Bd. of Nasuau County v. Airline, 481 U.S. 1024 (1987) ... 36 Schopler v. Bliss, 903 F.2d 1373 (llth Cir. 1990) ...• 1 Sinaloa Lake owners Assn. v. Simi Valley, 882 F.2d 1398 (9th Cir. 1989) ... 43 Smith v. Stechel, 510 F.2d 1161 (9th Cir. 1975) ... 38 Smith v. Town of Clarkton, 662 F.2d 1055 (4th Cir. 1982) ... 32 Traverso v. People Ex Rel Dept. of Transportation, 6 Cal.4th 1152 (1993) ... 41 United States v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir. 1994) ... 37 *v United States V. Scott, 788 F.Supp. 1555, (D.Kan. 1992) ... 16, 33 United States v. City of Blackjack, 508'F.2d 1179 (8th Cir. 1974) ... 30, 37 United States v. Birmingham, 538 F.Supp. 819 (E.D. Mich. 1982) aff'd as modified, 727 F.2d 650 (6th Cir. 1994) ....16, 32, 37 United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2nd Cir. 1987) cert. denied, 468 U.S. 1055 (i988) :.. 32 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) ... 40 Vieuz v. East Bay Regional Park District, 906 F.2d 1330 (9th Cir. 1990) ... 38 Village of Arlington Heights v. Metroplitan Housing Dev. Corp., 429 U.S. 252 (1977) ... 32 Statutes 24'C.F.R. Ch 1, Subch. A.App 1 at 691 ... 34 24 C.F.R. Section 100.60(b)(1) ... 35 24'C.F.R. Section 100.60(b)(5) ... 35 24 C.F.R. Section 100.70 ... 35 42 U.S.C. Section 3601 ... 2, 30 42 U.S.C. section 3604(a) ... 34, 35 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) 42 U.S.C. section 3604(f)(1) ... passim 42 U.S.C. section 3604(f)(3)(B) ... 31, 36 42 U.S.C. section 3617 ... passim 42 U.S.C. section 1983 ... passim 42 U.S.C. section 1985 ... 5, 44 42 U.S.C. section 1985(3) ... 2, 44 42 U.S.C. section 1986 ... 5, 44 California Business and Professions Code,.L.B.M.C. section 18.12.020(2)(c) ... 21 California Business and Professions Code, L.B.M.C. section 18.12.030(1) ... 12 Page 7 of 40 Page 6 California Business and Professions Code, L.B.M.C. section 18.12.030(2) ... 12 *vi California Business and Professions Code, L.B.M.C. section 18.12.030(3) ... 12 California Business and Professions Code, L.B.M.C. section 18.20,110 ... 42 California'Business and Professions Code, L.B.M.C. section 18.20.240 ... 42 California Civil Code section 655 ... 41 California civil Code section 654 ... 41,• California Civil Code section 658 ... 41 California Civil Code section 663 ... 41 California Civil Code section 669 ...'41 California Civil Code section 739 ... 41 California Health and Safety Code section 1569 ... 3 California Health and Safety Code section 1569.82 ... 8 California Health and Safety Code section 1569.85 ... 8 California Health and Safety Code section 1589 ... 39 California Health and Safety Code section 13145 ... 8 Miscellaneous m 2007 Thomson/West. No Claim to Orig. D.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 r 1995 WL 17139712 (C.A.9)� (Cite as: 1995 WL 17139712) Schwem, Housing Discrimination Sec. 11.5(3)(a) ... 35 *1 STATEMENT OF SUBJECT MATTER AND APPELLATE Plaintiffs/Appellees Shirley and Jason McClure (hereafter "the McClures") accept defendants/appellants' statement -of subject matter jurisdiction. However, the McClures dispute that this Court has appellate jurisdiction over this matter.[E"1) rage o oT +u Page 7 FNl. The McClures already filed a motion to dismiss this appeal for lack of appellate jurisdiction. This Court rejected that motion without prejudice to the issue being addressed at the'time of the appeal. Interlocutory appeals are permitted for denials of summary judgment based on qualified immunity because qualified immunity is an immunity from standing trial, not a defense on the merits. Thus, the defense would be lost if it could not be reviewed prior to trial. Mitchell V. Forsyth. 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). By the same token, when an official would be required to stand trial on any claim regardless of the outcome of the appeal, the appellate court lacks jurisdiction. Schoplerv. Bliss. 903 F.2d 1373, 1377-78 (11th Cir. 1990). The scope of the interlocutory appeal is limited to the "purely legal" issue of " whether the facts alleged... support a claim of violation of clearly established law." Mitchell. 472 U.S. at 528 n. 9. Thus, an appellate court is without jurisdiction to review whether there are genuine issues of fact regarding the merits of a plaintiffs claim against the defendant, as opposed to whether, if the allegations are true, they do not establish a claim of violation of clearly established law. Johnson v. Jones. _ S.Ct. _, 63 USLW 4552, 1995 WL 347244 (June 12, 1995.) Thus, it is very clear that the Court lacks jurisdiction over Issue Number 6 in Appellants' Statement of Issues. Appellants' Brief at 2. This court should deny jurisdiction over the entire appeal because appellants failed to raise below the legal question of whether the conduct engaged in by the appellants, as alleged by the McClures. violated clearly established law, and to provide a statement of undisputed facts that would allow the court to decide this legal question. Instead, appellants.submitted self-serving and irrelevant declarations declaring that they did nothing wrong and had no intent to discriminate.[E02) Their argument to *2 this court suffers from precisely the same defect. To the extent appellants slate facts in their opening brief, they are both disputed and were not submitted in support of their motions for summary judgment. [FN3) Upder these circumstances, this Court must dismiss the appeal for lack of jurisdiction. FN2. The McClures submit appellants' statements of uncontroverted facts set forth below. [ER 1229 to 1278.) So that the excerpt of record is not too cumbersome, they do not submit all of the declarations or statements of fact from appellants' memoranda submitted below. The appellants' statements of uncontroverted facts were verbatim taken from their declarations. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.comtprinttprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 r Nage a of 4u 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 8 FN3. Only three exhibits were attached to appellants' irrelevant declarations submitted to the district court: the City Council meeting of July 24, 1990 (ER 671-677), a copy of a resolution passed by the Long Beach City Council (ER 795, at seq.), and an affidavit submitted by defendant Gatoff in support of an inspection warrant. (Ex. 332, ER 24-32.) All of the other exhibits and deposition transcripts were submitted to the district court by the McClures. ' STATEMENT OF ISSUES 1. Whether this Court has jurisdiction to hear this interlocutory appeal? 2. Whethei qualified immunity applies under the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601, et seq. (hereafter "EHAA" or "Titlte VII")? 3. Whether appellees' conduct, as it was alleged in the factual record presented to the district court and interpreted in the light most favorable to the McClures, violated clearly established standards under the FHAA, 42 U.S.C. §§ 3604(0(1), 3604 (f)(3)(B) and § 3617? 4. Whether appellees' conduct, as it was alleged in the factual record presented to the district court and interpreted in the light most favorable to the McClures, violated clearly established standards under 42 U.S.C. § 1983? 5. Whether appellees' conduct, as it was alleged in the factual record presented to the district court and interpreted in the light most favorable to the McClures, violated clearly established standards under 42 U.S.C. § 1985(3) STATEMENT OF THE CASE A. The Clamµ and the Parties. This civil rights action against the City of Long Beach and several of its employees arose from a systematic and organized campaign by the City of Long Beach, its employees, and others acting in *3 concert with them, to prevent residential care facilities (hereafter "RCFs") for persons afflicted with Alzheimer's disease to open in certain wealthy, residential'neighborhoods of that City. In the face bf the clear policies established in the California Residential Care Facilities Act, California Health and Safety Code § 1569, and the FFHA, these officials harnessed the broad powers of Long Beach's Building and Planning Department, Police Department, Gas Department, Fire Department and, ultimately, the City Prosecutor's Office. Under the pretext of the enforcement of the building codes, the defendants applied different standards to the McClures than to others similarly situated, and prevented Shirley and Jason McClure from opening such homes in Long Beach. Their actions caused both Shirley and Jason McClure to lose their life savings, which were invested in the properties and the project. In January, 1992, Shirley McClure was thus forced to file for Chapter 11 bankruptcy; the primary asset of Ms. McClure's estate is this lawsuit. The parties to this appeal are five Long Beach building officials and two Long m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.Westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 rage 9U of 4u 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 9 Beach City Council Members.'Appellants Kellogg and Grabinski were the representatives of the two districts in which the McClures attempted to establish RCFS. Upon pressure from constituents, both (either personally or through their staff) openly stated their opposition to the homes, entered into a conspiracy with the Building Department officials to use the building codes as a pretextual means of preventing the homes from opening, met with neighbors and told them to call the police anytime any work tooX place; both personally went to at least one of the McClure homes in order to prevent any work from occurring there. See Statement of Facts, infra. Appellant Zeller was the Superintendent of Building and Safety.•As such, he was the City Building Official as defined under the Long Beach Municipal Code (hereafter "LBMC") and was responsible for supervising the personnel which conduct plan review, issue permits, inspect properties and enforce the building codes. Mr. Zeller by his own actions, and through those of his staff which he ratified, directed the enforcement action taken against the McClures in this case. [ER 1106:24-1107:20; 1102:13-1105:14; 1105:15-1106:7) *4 Three positions directly report to Mr. Zeller. One of them includes the Building Inspection Officer, Appellant Mark Sutton, who took an active role in preventing the McClure homes from opening. Appellant Sutton was the direct supervisor of Appellant Liddicoat, who was the Chief Bhilding Inspector for New Construction. Mr. Liddicoat's staff, appellants Gatoff and DeAngelo, were the building inspectors who were primarily responsible for investigating and citing the McClure homes. Appellants Gatoff•apd DeAngelo spent the most time at the homes. All of these individuals acted in concert to prevent the McClure homes from ever opening to the public. ER 804-807,.812-815 (job descriptions of building officials). See also Statement of Facts, infra. B. Procedural History. On May 7, 1992, a complaint for damages and injunctive relief was filed below, and an amended complaint was later filed. Appellants' motion to dismiss the complaint contained no claim for qualified immunity and was denied by the district court. On March 4, 1994, three days after the discovery cut-off date, each of the eleven defendants (only seven are parties to this appeal) filed individual motions for .summary judgment on both merits and qualified immunity grounds, primarily arguing that there were insufficient facts to demonstrate any wrongful conduct by the Long Beach City officials. The motions failed to distinguish those'argunients geared toward qualified immunity from those geared'toward the substantive merits. Although discovery entailed over 75 depositions and tens of thousands of pages of documents, virtually no reference to the factual record was made in appellants' motions, which relied solely on the individual defendant's self-serving, irrelevant and improper declarations denying any wrongdoing. Each defendant's statement of uncontroverted facts stated conclusory denials of wrongdoing which were plainly contradicted by the evidentiary record. The McClures filed evidentiary objections to the declarations and statements of undisputed fact, which were never specifically ruled on by the district court. The summary judgment motions were denied. (Apparently appeliants now concede that the declarations were irrelevant since they are not included in their excerpt of record.) ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Nage i i oT 4u Page 10 *5 Although "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motions, and identifying those portions of [the evidentiary record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. V. Catrett. 477 US. 317, 323, appellants failed to follow this course. [ER 1229 to 1278; see also fn. 2, supra.] Appellants' omission was particularly egregious given the fact that qualified immunity is an affirmative defense for which appellant had the burden of proof in,the district court. Houghton v. South. 956 F.2d 1532, 1536 (9th Cir. 1992). Therefore, appellants had to "come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." Id, (citations omitted). Appellants came forward with no admissible evidence. The McClures were left with the daunting task of responding to summary judgment motions based on no undisputed facts, where the available record demonstrating a conspiracy to discriminate included thousands of pages of documents and deposition testimony. In response, the McClures submitted detailed statements of fact which pointed to specific portions of the record. [ER 1133 to 122B.)[rN43 They also submitted the majority of the available evidentiary record in response to defendants conclusory statements of undisputed fact, which required the accumulation of all of the evidence in dispute. FN4. The McClures provide their statements of facts from their memoranda submitted below in order to demonstrate the basis of the district cburt's factual findings. They do not submit their statements of genuine issues of fact, as the specific references to the record were provided in the memoranda, not in the statement of genuine issues of fact. On November 29, 1994, the district court entered a written order granting in part and denying in part the summary judgment motions. [ER 51 The court set forth no reasons for its decision.(1'057 The individual defendants then brought. this interlocutory appeal, thereby staying the case. FN5. The only part of the motions which were granted were those made by those defendants first named in the amended complaint regarding the claims against them under 42 U.S.C. sections 1983, 1985, and 1986, apparently on the ground that the statute of limitations had run on those claims. As a result, all claims remain against defendants City of Long Beach, Kellogg, Grabinski and Zeller; only the claims arising under the FHAA remain against the other individual defendants. *6 The only issue for this Court is an abstract and pure issue of law; whether the law was clearly established that a reasonable official engaging in the conduct alleged by the McClures violated clearly established law. Johnson. 1995 WL 345244 at *5. The facts as relied upon by the •district Court and viewed in the light most favorably to the McClures are to govern the question of whether the conduct of appellants was reasonable. Johnson at *8-9. Issues offset related to the question of whether appellants engaged in wrongful conduct are not a proper subject of this . m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?sv=Sp lit&prft=HTM LE&mt=California&fn=_top... 7/31/2007 rage .i z oT 4u 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 11 appeal. Id. Thus, appellants' entire statement of facts is irrelevant. Appellants' Statement of Facts does not•even attempt to identify the undisputed facts as interpreted in the light most favorable to the McClures. Instead, appellants present the facts as they would like them to be, either in ways which are appropriately matters of interpretation for the trier of fact or, many times, in ways flatly contradicted by the record.E�6) This is particularly egregious since appellants cited none of this evidence to the district court. See fn. 2, supra. (FN7) FN6. In the district court appellants' denied any obligation to provide evidence and to state truly undisputed facts. The purpose of summary judgment is "to isolate and dispose of factually unsupported claims," not have the court review disputed facts. Celotex. 477 U.S. a.t 323-24. "When a party has obtained knowledge through the course of discovery, or otherwise, that a material factual dispute exists and yet proceeds to file a summary judgment motion, in hopes that the opposing party will fail or be unable to meet its burden in responding to the motion, he defeats that purpose; and, more importantly, violates the rules of procedure which govern the conduct of trial, specifically Rule ll." Goka v. Bobbit, 862 F.2d 646, 650 (7th Cir. 1988), rerTg denied, Appellants continue this practice by stating several disputed facts in their statement of facts. FN7. In some instances, appellants cite evidence which was never presented to the district court by the McClures. For example, the deposition of Lyman Laisy, which appellants use to discredit the McClures, was never submitted to the district court. The purpose of appellants' 'statement of facts is clear: to present all negative evidence against the McClures in an attempt to justify the plainly discriminatory and Wrongful actions of the appellants. Thus, even though the disputed facts set forth by appellants are irrelevant and the McClures have no obligation to create genuine issues of fact on this appeal, the McClures will present a detailed statement of facts in order to provide an accurate record.(rNB3 FN8. For the most part, the McClures rely on facts stated to the district court in their memoranda, except where additional facts are necessary to answer the baseless allegations of appellants. *7 STATEMENT OF FACTS A. Background The events at issue here began in early 1990. At that time, Shirley McClure owned a successful car leasing business and had accumulated five single family homes located in two well off sections of Long Beach. [ER 259:26-260:2.)(FN93 Most of the homes had extensive remodeling done prior to 1990, before Ms. McClure ever intended the homes to be used as RCFs. Prior to 1990, Ms. McClure had hired several contractors and'interacted with the Long Beach Building and Planning m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/prinfitprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 Nage 13 or 4u 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Department without incident.(lo) FN9. The five homes were 3721 orange, 3579 Orange, 3563 Orange, 3721 Gardenia and 1115 Amelia Drive. Page 12 FN10. Ms. McClure had in excess of 25 permits on her various properties between 1974 and 1990. The McClures do not submit all of these here. Not a single one of these permits was suspended and all were completed without incident. In late 1989, Ms. McClure discovered that -her father had contracted Alzheimer's disease and immediately began to investigate options for the future care of her father. [ER 1112;23-1113:10; ER 1115:1-18; ER 1117:21-1118:11.] She found that, if home care was not -viable, the best care option for the beginning to mid stages of Alzheimer's disease was a RCF for six or fewer located in a safe, nice, residential setting which catered to the special needs of Alzheimer's victims. [ER 1118:16-1120:15] She found no such RCFs in Long Beach. [ER 1128:26-1129:12; ER 1120: 15-1121:93 At that point, Ms. McClure decided to utilize her considerable personal resources and convert her single family homes in Long Beach into RCFS for not only her father's needs but also other elderly victims of Alzheimer's disease. [ER_ 1121:10-1123:61 Since none of her existing homes were large enough to accommodate both her and six residents, she decided to purcha.se one additional home. (ER 1121:17-1123:191 She invested all of.her property and life savings, and utilized her excellent credit rating to borrow heavily to fund the project. [ER 1125:1-4] Her son, Jason McClure, then 19.years old, joined with her, working full-time and investing his own assets. [ER 190:16-18) +8 Under the Residential Care Facilities Act ("RCF Act"). California Health and Safety Code Section 1569.82, the California Legislature declared that each county and city shall permit and encourage the development of RCFs for the elderly. No permission or permits from the local entity may be required, and the properties are considered a residential use for all purposes. S 1569.85 [ER 669-670] In the Spring of 1990, Ms. McClure, submitted her licensing applications(F1111] to the State of California Department of Social Services (hereafter "DSS"). [ER 270:20-25.] DSS iq. responsible for all licensing issues -of the homes. The only exception is the fire clearance, which must be granted by the State Fire Marshal, who generally contracts local fire departments to conduct the inspections and grant the fire clearances. Because the McClure's homes were in upscale neighborhoods, and had received substantial remodeling and other improvements added over the years prior to their conversion as RCFs, they were ampmg the nicest homes on their block and far nicer than the average RCF. [ER 1128:21-25; ER 100:4-I03(1N123 FN11, Ms. McClure was leasing her properties to a corporate entity called the Rose Chateau, which was going to operate the homes. Ms. McClure was the m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) sole shareholder of the Rose Chateau, the details of the business are irrelevant to this appeal. ['age 14 ot.4u Page 13 FN12. This is further evidenced by statements in the Robin Hinch 9-23-90 Press Telegram article, which stated when referring to Ms. McClure's properties, "Although McClure's'remodeling and landscaping work has made her homes among the most attractive on the block..." Ms. McClure knew from the state licensing orientation class and officials that her homes needed several modifications to comply with all fire,' safety and protective supervision regulations, including particular modifications requested by the Long Beach Fire Inspector because she was to house Alzheimer's patienis."131 [ER 1123:1B-1124:10; ER 272:3-6.3 Additionally, Ms. McClure decided to add rooms onto several of the homes. In March 1990, Ms. McClure hired a licensed contractor for the work,'but, due. to some substandard work and his failure to obtain certain permits, she fired him in June. *9 [ER 270:25-3:2).] At that time, the homes ranged from almost entirely complete (3721 orange and 1115 Amelia) to a state of virtual demolition (3723 Gardenia) at which all work had been stopped after the contractor was fired. , FN13. The State Fire Marshal was charged with the responsibility to supervise RCF fire approvals, but was permitted to and did 'contract this responsibility to the Long Beach Fire Department. California Health and Safety Code S13145 The Amelia home was a large beautiful home with lush landscaping and inviting outdoor living areas [ER 993:18-25; 994:1-3; ER 1003:4-10; ER 1059:8-9; ER 1069:20-1070:1; ER 1093:7-16; ER 1284-1267] and was almost ready for the final state licensing inspection in late July, 1990, when the City revoked all of Ms. McClures' permits and fire clearance. [ER 1125:13-263 The only renovations required at this home had been the addition of a fourth (4th) bathroom; an additional water heater; and the fire, safety & protective supervision modifications (such as the deck, ramps, alarm system, fences), which were prescribed by the State licensing regulations and the L.B. Fire Dept. and had been inspected and approved on two occasions. [ER 714; ER 715; ER 996:13-997:1, 1002:7-10] The Fire Department granted a Fire Clearance in June. [ER'716.](14) FN14. Space limitations prevent the McClures from detailing the work going on at each property. In their opening brief, appellees discuss alleged rampant electrical and safety violations at the Amelia property. These so-called violations were in plain view, had existed for years, and were never flagged by Fire Inspector -Hopkins (who granted the Fire Clearance), or by any Long Beach building inspectors during at least twenty-five normal and routine building inspections between January, 19.89, and July 1, 1990, for work related to Permits #460Q5, #51873, #78512. [ER 778-789.1 In any event, absent the stop work order and hard holds1rN151 placed on this property by the City, these items could have quickly been remedied for m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works https://web2.westlaw.com/printlprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 rage 10 or 4u 1995.WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 14 between $50.00 and $100.00. [ER 888:17-889:31 M161 *10 3723 Gardenia was admittedly not in a habitable state, as Ms. McClure•recognized. She stopped all work at this site on or before June 9, 1990,(FN17) had the site secured, and informed the Building Department of the conditions and requested inspections. [ER 1057:22-24; 1060:7-13; ER 906:5-25; ER 261:27-262:11.1 Even now, Appellants use this house, as they did in.July, 1990, to discredit Ms. McClure and to lump all six properties together [ER B95:2B; ER 37] because one, due to the licensed contractor's sub -par work, needed extensive remedial work. [ER 895:22-896:5; ER 710). FN15. Appellant Gatoff placed hard holds [ER 1391 on each property on July 30, 1990, which prevented any work or inspections, or any new permits from being issued. -[ER 1100A-1101]. FN16. To support their contention regarding the condition of the properties, appellants cite Richard Bowen, who they imply is plaintiffs' expert. Appellants' Brief at 11 n.10. Their assertion is both false and improper. Mr. Bowen was retained by Ms. McClure Is attorney at the time of the incident, and has never been designated as an expert witness at trial. Plaintiffs asserted• attorney -client and attorney work product privileges to eliciting opinions from Mr. Bowen, but, because he was both a percipient witness and a retained expert at the time, they allowed the deposition to go forward with the understanding that the objections would be preserved. [ER 882-883]. In any event, appellants miscbaracterize the substance of Mr. Bowen's testimony. His testimony included that I) the City was not treating plantiffs properties as single-family residential properties, but as business properties [D. Tr. Bowen 341:5-20;] 2) the City tied all six properties into one for permit and enforcement purposes [D. Tr. Bowen 357:22-358:5; ER 710) (which Appellant Zeller has admitted is illegal [ER 708, 709] 3) the City mandated that all properties have a full set of plans prepared by a licensed architect, including basic simple Plot Plans [ER 891-892, ER 1081-1083; ER 1085, ER 32; ER 1583, requirements which did not exist for other single family dwellings; and 4) the City was selectively enforcing the building codes-against.mg. McClure. [ER 892-894.] FN17. In May. 1990, Ms. McClure had taken safety precautions such as having the electrical and gas systems disconnected from the house before the contractor started the demolition work. B. The Fire Clearance In June, Ms. McClure made a request for an inspection of 1115 Amelia Drive for a Fire Clearance. On June 11, 1990, Long Beach Fire Inspector Charles Hopkins, acting on behalf of the State. Fire Marshal, inspected the home and requested a few additional minor corrections. [ER 262:12-22; ER 712, 713, ER 714, ER 715; ER 996:13- 997:1,,997:19-21. These included replacing the stairs to the deck with a ramp (not for use as wheelchair ramps, as the RCFs were not going to be licensed• to accommodate wheelchair bound residents), for which he advised her she did not need a building permit.(FN18) [ER *11 999:23-1001:10, 1007:8-161. A week or so m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 rage m U] 4U 1995 WL 17139712 (C.A.9) Page 15 (Cite as: 1995 WL 17139712) , later, Inspector Hopkins reinspected the property, found all corrections had been made,'and granted the fire clearance. [ER716;ER 1002:1-13; 1004:15-1005:12). ' FN18. L.B. Municipal Code (hereafter "LBMC") Section 18.12.O1O(D)(2)(c)., [ER 88) exempts from permits decks and walkways 30" or less above grade. The deck and ramps at all Ms. McClure's properties, including Amelia, were less than 30 inches above grade. Although Appellants claim that the decks and ramps were a fire hazard and violated the LBMC, that was not the view of Fire Inspector Hopkins. [ER 998-9991. They also did not violate the LBMC Zoning regulations for single family residences, which allow decks 30 inches or less above grade to extend to the side property line, with no minimum clearance (unlike for commercial properties). [ER 803]. Appellants citation to Mr. Bowen's statements are a distortion because Mr. Bowen said he was ' only speaking of inapplicable commercial property' requirements. [ER 886-887). The Amelia property now had a fire clearance and was almost ready for the final licensing phase. Ms. McClure had begun staffing for this home. [ER 1125:13-1126:41. Without interference from Long Beach City Officials, the homes would have been licensed by the State. [ER 1128:2-12, 1129:20-1130:5] C. The Permits Appellants claim that Ms. McClure falsified her building permit applications as part of their justification for suspending her permits.. (Appellantsl Brief at 8.) (FN19) They point to fppy ive ermits which thecontend contain false information. (ER 212-213, 220-21, 229-30, 237-38, 244-45, 246-47.) Some of these permits were obtained, the work was completed, and a certificate of occupancy was issued, before 1990, when the RCF related work occurred.(F11203 FN19. This is just one example of how plaintiffs illegitimately use disputed facts to make arguments. They.state that Ms. McClure falsified her building permits without a single citation. Their "evidence" is five building permits which do not support that conclusion- FN2O. This information is contained in numerous discovery documents and in Deposition Exs. 436-441 w)iich aie voluminous and therefore have not been included in the ER but are contained in the trial court record below. While appellants claim that Ms, McClure falsely listed herself as the owner and occupier of each property, they ignore the distinction between the application or worksheet (filled out by the applicant, e, ER 221.) and the final permit (filled out by the counter person for the Building Department and printed out on the Building Department computer, e.g., ER 220). Ms. McClure's prior experience with the Building Department had been that, where she completed a worksheet for a permit on property which she owned but indicated she did not reside in, the.permit nonetheless listed the permitted property as her *12 residence. Appellants ignore this fact and the documents demonstrating it. (EN211• ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 17 of 4U page 16 FN21. During 1989 and early 1990, Ms. McClure lived at 1115 Amelia Drive. On February 27, 1989, she listed her address on the permit application as 1115 Amelia and obtained an owner -occupier permit for.this property (ER 212-13). On April 21, 1989, Ms. McClure filled out a permit application worksheet for 3721 Orange and listed 1115 Amelia Drive as her residence. (ER 221). The permit nonetheless listed 3721 orange as her address. (ER 220.) Again, on November 30, 1989, Ms. McClure applied for a permit at 3563 Orange and listed her address as 1115 Amelia Drive (ER 238),and again the permit stated 3563 Orange as both the address of the applicant and the job site (ER 237). Both these are among the so-called falsified permits. In 1990, Ms. McClure submitted applications for 3723 Gardenia, 3817 Linden and 1115 Amelia Drive. [ER 229-30, 244-45 and 246-47]. On these, the worksheet does state that her address was the same as the job location. However, this was perfectly reasonable given Ms. McClures' experience with the Building Department in 1989. Appellants imply that Ms. McClure was fraudulently obtaining `owner -occupier permits" to avail herself of some financial or other tangible advantage. In reality, the only advantage an "owner -occupier" permit has is to either avoid the worker'ss compensation insurance requirements and/or the prohibition of obtaining a permit when the property is going to be sold within a year of obtaining the permit: Neither of these two scenarios applied to Ms. McClure as she was not going to sell the properties within a year, and she already had workers' compensation insurance with the State Insurance Compensation Fund. [ER 842-843] Next appellants claim that Ms. McClure falsely signed the exemption boxes on the permits. Appellants falsely suggest that all permits issued where the permittee signs the exemption boxes are for owner -occupier permits. There are three owner exemptions under the LBMC: (1) owner -occupier, LBMC § 18.12.030(1); (2) a non-occupier..where the value of the work is less than 10% of the value of the home, LBMC § 18.12.030(2); and (3) the non -occupier exemption for anyone not in violation of Calif. Business and Professions Code: Chapter 9. Division 3. LBMC § 18.12.030(3). [ER 89.] The same exemption box is used for all three. Ms. McClure qualified under the third category because she had worker's compensation insurance. (FN22) [ER 842-843] It was•the ractice pf.the Lonq Beach Building *13 Department not to explain or scrutinize Jese-conditionsas Ong as the fees were paid. 'FN22. Appellams make much issue of the fact that Ms. McClure had no such policy on file with the Building Department. As Ms. McClure had such insurance throughout 1989 and 1990, it is plain that nobody at the Building Department informed her of such a requirement or alternative. In fact, after citing her, they told her that she had to have'a licensed contractor do all her work although this was not the case if she had workers' compensation insurance. • Finally, appellants claim that two permit lists Lee Mares as the property owner. Those permits were pulled by licensed contractors, not Ms: McClure. Mrs. Mares was the prior owner of 3579 Orange, and she appeared as the owner on the Building Department's computer when the contractor pulled the permit. [ER 217-218.) •@ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:llweb2.westlaw.com/printlprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 Hage I d OT 4u 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Similarly, permits 'issued to subsequent owners listed Shirley McClute as the owner. [ER 222, 231; ER 792; ER 794.1 D. Neighborhood Opposition And The Beginning of The Conspiracy. Page 17 The McClures only learned of organiz@d and unified opposition to the RCFs in late July, [ER 265:5*6.3, before which Appellant Kellogg had even agreed to be the keynote speaker.when 1115 Amelia opened. [ER 1011:1-25; ER 924:1-11). While Appellants claim that the City was merely responding to neighborhood complaints, unrelated to the properties' projected status as Alzheimer's homes, there were only two isolated complaints before July 24, 1990, and only one can be characterized as unrelated to'their RCF status. [ER 912:9-20; ER 1073:4-1074:31.. Further, the Building Department took no meaningful action on these earlier complaints until late July, when they and the City Council became aware of'the organized neighborhood opposition to the conversion of the homes. Despite the contention that many neighbors were concerned about night work, there is no documented police call or complaint regarding such noise prior to July even though the vast majority of the construction work occurred earlier. However, there were dozens of complaints after Councilman Grabinski met with the neighbors and advised them to call the police if they saw any work taking place on the.properties. [ER 48, 49, 278:9-15; ER 682-688; ER 1013:1-1014;8; ER 1036:17-1037:6, 1038:7-21, 1041:7-1043:131. In late July, 1990, the neighbors started a unified and organized opposition to the homes. They began calling their City Councilmembers, Kellogg and Grabinski, and the Long Beach Building Department. Even before any inspectidn had occurred, building officials had talked with the City Council *14 offices and met with City Prosecutor John Fentis about the mechanics of obtaining an inspection warrant. [ER 934:13-935:4; ER 1009:3-1010:2; ER 925:19-926:12; ER 927:24- •928:20) Councilman Kellogg visited a neighbor's home on July 23 regarding the petition she was circulating against the homes. (ER 1030:19-1031:1, ER 1032:5-7]. He knew that the petition, not on the Council agenda, would be submitted to the City Council on July 24, and his office advised the opposition neighbors in advance on who would be allowed to speak at the meeting. (ER 673; ER 1030-19-1035:7; ER 914:8-20]. His and Grabinski's offices coordinated with appellant Zeller to ensure that he was ready to address the issue at the meeting. [ER 1100:16-21; ER 676.1 Around the samh time, defendant Liddicoat, the Chief Building Inspector in charge of construction regulation, screamed at the building counter supervisor, who said Liddicoat "came up to me [the supervisor] and basically was attacking me as to why we issued these permits. Then he said, `well, they're not single family dwellings.' " [ER 922:1-24][FN233 FN23. Under California law there is no dispute that the homes were to be treated for all purposes as a single family dwelling by the Long Beach Building and Planning Department. The conspiracy to prevent the opening of the homes is documented. On July 24, appellant Grabinski's office told a caller that "we are trying to cite her O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. hops://web2.westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 rage I a or 4u ), 1995 WL 17139712 (C.A.9) (Cite as; 1995 WL 17139712) Page 18 [McClure) on building codes." [ER 711.3 The next day, after the July 24 City. Council meeting, his office noted that "Zeller promises to follow - enforce all City Codes. Unless codes are violated, we have no recourse." [ER 117.] Some weeks later, Mr. Kellogg wrote to several of his constituents, "Unfortunately the City's only recourse is to ensure the compliance with local building codes." [ER 681,3 After speaking to appellant Grabinski's office twice between July 24 and July 27, a neighbor near the Gardenia home wrote to other neighbors, "City inspectors have found the owner in violation of building codes. At best, violations will put a permanent halt to the Rose Chateau construction. At worst, the nature of the violations will simply slow construction down." [ER 20.] [ER 711; ER 905:17-23; ER 98B:19-989:241 (emphasis supplied) A neighbor's diary details statements at an August 9 opposition meeting by Mr. Grabinski such *15 as, "Ray [Grabinski] said all of Shirley's front fences are about a foot too high... There is a stop work order on all properties. Call Ray at home if ANY work is going on (424-4687)." [ER 701, 702]; [ER 1076-10791. Another neighbor wrote a neighborhood memorandum, based on the comments of Mr. Grabinski., saying, "We [concerned citizens] are attempting to 1) slow the progress of Rose Chateau, and 2) prevent Rose Chateau from obtaining State residential care , licenses." [ER 25-27; ER 1037:7-9, 1038:7-1039:15]. She testified that the " slowing the progress of the Rose Chateau" was the enforcement of the building codes. [ER 25; ER 1040:3-20] The memorandum's instructions on steps to take included calling the Long Beach Police if they observed ANY work, and to note the car license numbers of any workers since they could be in danger of losing their contracting licenses. It also noted that the city was requiring exacting adherence to building codes. [ER•25; ER 1071:14-25; ER 1037:7-9; ER 1038:7-1039:15]. E. The July 24 Inspection. The same day that the neighbors presented their petition to the Council and that Councilman Grabinski's office declared the City's intention to cite the McClures for building code violations, two Long Beach building inspectors entered Ms. Mcclure's construction office(EN24) (which was a garage at one of the properties) unannounced.(r0253 FN24. Appellees state that it dould not have been a construction office because there was -no construction happening at that property. However, Ms. McClure had ongoing construction at several other properties •and she believed that she could use one office for all of the sites. Whether such a practice was- actually a violation of the Long Beach Municipal Code is beside the point because, as is described at length below, the City did not treat this alleged violation in the same manner as it would have other similar violations. •FN25. Appellees contend that these inspectors (who are not defendants) were unaware of the McClures' intention to open RCFs. This is at least a disputed fact. Detailing the evidence would consume unavailable space. To itemize only two facts, the inspectors were requested to inspect the homes by Mr. Zeller, who was aware of their RCF status. Additionally, one spoke to m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https;//web2.westlaw. com/pri nYprintstream. aspx?sv=Split&prft--HTM LE&mt=Ca lifornia&fn=_top... 7131 /2007 rage 'LU OT 4u 1995 WL 17.139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 19 neighbors opposed to the homes, including Defendant Ashton, on that very day and one gave a neighbor's telephone number to Defendant Ashton so he could notify him to attend the 7 p.m. council meeting. [ER 698, 6993. Although shocked by the unannounced intrusion, Ms. McClure had had trouble obtaining t16 inspections on her other properties and so asked the inspectors to inspect all her homes.[EI426) The two inspectors spent over five hours going through five of Ms. McClure's six properties, throughout which she was cooperative. [ER 274:22-275:8; ER 1054-1056, ER 1058; ER 1061, ER 1091-1094.3 FN26. After firing the contractor in June of 1990, Ms. McClure unsuccessfully attempted to obtain inspections so she could continue the work. [ER 271:12 - 272:2, 232:11-24, 274:6-93 Through discovery, appellees learned that the fired contractor had revoked the Amelia permit without notice to Ms. McClure. Ms McClure was provided no notice of this fact. The Building Department's practice was not to return calls for inspection when such a revocation has occurred. On advice from her attorney, Ms. McClure continued the work on the bathroom addition with sub -contractors who documented their work to show to the inspectors at a later time. F. The July 24 City Council Meeting. Without notice to Ms. McClure, and without placing the discussion on the agenda, the neighbors presented a petition at the July 24 Council meeting. [ER 10-12.3 The petition and statements by the individual neighbors included personal attacks on Ms. McClure and patently false information about residential care and Alzheimer's victims. [ER 671-6733 The Council spent a significant amount of time discussing the issue. Id. Although the neighbors raised many issues, the primary reason expressed for their opposition was that that homes for Alzheimer's patients would decrease their property values [D. Tr. Strinden 63:6-13.3 and threaten the character of the neighborhood. Part of their concern was linked directly to the nature of the intended residents and the problems they might cause. [ER 671-6733 [ER 251.3 (FN273 ' FN27. Appellants claim that there is no evidence that the neighbors opposed the homes because the intended residents had Alzheimer's disease. The record demonstrates that the nature of the intended residents was an express and major factor, and the inference could be argued even if there were no direct evidence. Even if the reason were the diminution of property values, it would not justify preventing the homes from opening. United States v. Scott, 788 F•.Supp. 1555 (D. Ran. 1992). Finally, the neighbors and appellants shared the strategy that the City was to slow down the process as much as possible so the McClures would eventually run out of money, which in fact happened. [Ex.15). Appellants were liable for their own intentions and equally liable if they acted to carry out the wishes of the neighbors and the neighbors had a discriminator) motive. United States v. Birmingham, 538 F. Supp. 819, 828 (E.D. Mich. 1982)•affd as modified. 727 F.2d 650 (6th Cir. 1994). 0 2001 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/pri nt/pri ntstream.aspx?sv=Split&prft=HTM LE&mt=California&fn=_top... 7/31 /2007 Page 21 of 40 ) ) 1995 WL 17139712 (C.A.9) Page 20 (Cite as: 1995 WL 17139712) Councilman Kellogg expressed open hostility to the institution of such homes in a single family neighborhood and stated, "[I]t's hard to justify the opening of a residential care facility, which is a *17 business, in an RI neighborhood." [ER 673-4.] Appellant Zeller told the Council that the City could ensure compliance with the Codes. [ER 675-677, ER 1297-1297A.] G. The Inspection Warrant. First thing the -next day, July 25, two new building inspectors, Defendants William Gatoff and Marty DeAngelo, were sent out by•Mr. Zeller to inspect all of Ms. McClure's homes. [ER 1101.] They did not even attempt to call Ms. McClure to schedule an appointment [ER 949-950.], even though Ms. McClure had asked appellant Zeller that very morning that she be notified of any inspections so she would not have another unannounced intrusion. [ER 275:9-18; ER 1101.) ' Defendants Gatoff and DeAngelo entered the first property without permission. [ER ' 951, 952.] In the backyard, they encountered Jason McClure, nineteen at the time, and demanded immediate entry to all of the homes. Jason told them that, if they would waif a few minutes, he would get his mother, who was the owner of all of the ] homes except 3579 Orange.)EI128) [ER 141; ER 1045-1050.) Defendant Gatoff immediately began writing on a piece of paper, "Jason McClure has denied entry to [the six properties)." [ER 136.] [ER 1049-1050.3 Ms. McClure drove up to the house as Gatoff and DeAngelo were citing Jason. Ms. McClure told them that she would let them in the houses, but she wanted to have her co-owner (who was also her boyfriend at the time) witness the inspections; she asked Jason to get him at a nearby restaurant. [ER 403:10-404:14; ER 1051-1052.] Jason left to get the co-owner. [ER 404:6-11.] The inspectors told Ms. McClure that they would leave for an unrelated inspection and come back later. She requested that they simply wait ten or fifteen minutes for the co-owner to come, but they refused. [ER 142; ER 148; ER 404:15-405:50:8.] FN28. 3579 Orange was occupied by a tenant and the inspectors were told they would need to give notice to the tenant prior to conducting an inspection inside that home. ER 147:19-21. Mr. Gatoff never wrote a notice at the site indicating that Ms. McClure denied entry to the properties. [ER 956-958.] He felt it was not necessary.because Jason McClure had already denied entry. *18 Id: The inspectors refused to stay because they claimed Ms. McClure accused them of harassing her son. Id. After leaving the property, they spent the entire remainder of the day visually inspecting Ms. McClure's properties and did no unnrelated inspections. [ER 173.) They never went back to try to find Ms. McClure to grant them entry to the properties [958-978.] The following day, Gatoff and a City Prosecutor obtained an inspection warrant against Ms. McClure, alleging that she had denied entry to the properties. [ER 145-150.1 The declaration in support of the warrant did not state that Gatoff and DeAngelo did no other unrelated inspections that day, did not state that Ms. McClure had granted inspections the day before, did not state that Ms. McClure was willing to grant an inspection as soon as the co-owner arrived, and did not state m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://webZ.westlaw.com/print/printstream.aspx?sv=Split&prf=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 22 of 40 Page 21 that the asserted reason for leaving the premises without waiting for Ms. McClure's friend to arrive was that Ms. McClure accused them of parassing her son. [ER. I481.(r"29] Ms. McClure's alleged denial of entry and the warrant were then constantly used by the City to discredit her to -the public and the DSS. [ER 60, ER 689, 690, ER 847, ER 848.1 FN29. The affidavit in support of the warrant states that the reason they left was because Ms. McClure denied immediate entry and would not let them do an unrelated inspection. (ER. 148:4-6) When it came time to serve the warrant, appellant Sutton, the number two person in the Building Department, called Ms. McClure. He told her that, if she agreed to Accept service of the warrant, they would not have to post them on her properties. Although she agreed and accepted service, Appellants DeAngelo and Gatoff posted the warrant despite their promise not to do so. [ER 734-736; ER 737];•[ER 9851; ' [ER 1288-1299; ER 276:18-277:2.] An inspection was set for August 2, 1990. H. The Fences. During the inspection of July 25, the inspectors stated that the McClures had to stop work on the front and backyard fences [ER 1371. In the frontyard, the McClures were putting up a four foot high wrought iron front yard fences at all of their properties: Because she was going to have Alzheimer's victims, the Fire Marshal told Ms. McClure she should have a protective fence surrounding the property *19 at least four feet high, [ER 1122:9-28; ER 12791 Although appellants claim there is no such requirement (it does not appear in the form of a written regulation), Mr, Zeller referred to this requirement at the July 24 Council meeting. [ER 675-677.1 Thus, the City was aware that the Fire Marshal had told Ms. McClure she should have four foot high fences. Unless required by state or federal law,'the Long Beach code normally only allowed fences of three feet or less in the front yard. [ER 706, 707.1 Despite the Fire Marshal requirement, the McClures were repeatedly told that they could not have the fences without a variance, and the Building Department referred the fences to the City Prosecutbr's Office [ER 34--37, 174, 177, 180, 183, 186, 189.]•and criminally prosecuted the McClures for the 3579 Orange fences although they had been removed by October 11, 1990. [ER 500-802.] The fence height requirement was not regularly enforced in Long Beach. Appellants DeAngelo and Gatoff noted an overheight fence across the•street, pointed out by Jason McClure on July 25, but never did anything about it. [ER 726); [ER 953-955.1 There were literally hundreds of ove;height fences in Long Beach at the time of this incident, which the City only cited shortly after the First Amended Complaint in this lawsuit was filed. [ER 1298-1305.1 I. The suspension of the permits. On July 27, appellant Sutton sent a letter to Ms. McClure suspending the permits at all of her properties and issuing stop work orders against all of.her properties. [ER 32-33.] The letter listed six reasons for the suspension of the ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printfprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 Hage 23 of 4U 1995 WL 17139712 (C.A.9) Page 22 (Cite as: 1995 WL 17139712) permi.ts,(F030) none of which included the fact that Ms. McClure falsified *20 her permits as appellants now allege. See. Section C, supra. The letter,approved by Mr. Zeller and copied to the mayor, indicated.that she must submit a•"complete set of plans" on all of her properties and that she had to have a licensed contractor perform all of the work. [ER 32-33; ER 1106-1107; ER 733.) FN30. They were: (1) The work was beyond the scope of the permits; (2) The work was in violation of the code;'(3)•Failure to allow inspections (4) Failure to comply with stop work order of July 25, 1990; (5) Failure to provide worker's compensation insurance and (6) Failure to provide adequate plans. As to #2, all ongoing construction 'sites have code violations before the work is complete. [D. Tr. Liddicoat 103:16 - 104:3.1 As to #3, Ms. McClure never denied any inspection. See Section G supra. As to #4, Ms. McClure never violated the stop work orders by doing work which required a permit. As to 45, Ms. McClure had worker's compensation insurance. [ER 518.] Finally, as to #s 1 and 6, it is difficult to imagine how the Building Department knows that work is beyond•the scope of the permit when all it requires is a sketchy plot plan and the permit itself provides only one line. For example, the worksheet for the permit at 3817 Linden includes the entire house. [ER 230.] The entire home on Gardenia (which appellants contend was a safety hazard and demolished) was rebuilt by the subsequent owner with a The requirement for a complete set of plans (which meant architect prepared plans which had to go through the plan check procedure) for all of the properties was repeated in numerous documents, and the City refused to issue permits until the plans for all of the properties were subMitted. [ER 32, 34, 158; ER 749, 750;.ER 891-892; ER 919-921.].However, Long Beach did not require such plans for work under 400 square feet in room additions and usually not for even bigger jobs. [ER 1098-1099..] Ms. McClure was doing no additions over 400 square feet and•was doing very minor work at four of the six properties. (ER 261:14-16.] Shortly after July 24 and throughout August, police came to the homes several times a week. The neighbors and building inspectors would call the police every time they contended any work was going_on, whether it required a building permit or not. [ER 48, 49, 278:9-15.] [ER 680; ER 682; ER 684; ER 685; ER 687; ER 688]; [ER 1013-1014, ER 1038, 1041-1043] Defendant Sutton called the police on July 31 to stop work on a ramp, although in deposition he could not justify that a permit was needed. [ER 10841 As already noted, Councilmen Grabinski and Kellogg attended several neighborhood meetings where they told the neighbors to call the police if they saw any work going on and take down the license plate numbers of all workers. [ER 25-27, 41; ER 1071, ER 1036-1037.1 Grabinski and Kellogg did not distinguish between work that could or could not be done without a permit. The McClures were prevented from doing permit exempt work on any of the properties, including landscaping, carpet laying, tiling, removing lumber and building permit exempt decks. [ER 25-27; 278:9-15.1 The building single combination permit (the same one rejected'for'Ms. McClure) and nothing more than a plot plan. [ER 794.1 *21 inspectors told the O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft=HTM LE&mt=Califomia&fn=_top... 7/31 /2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) [ age 24 of 4U Page 23 police that no work could happen on any of the properties except painting, a clear misstatement of the law. [ER 879- 880; ER 278:9-15.][F11311 On several occasions, Councilmen Grabinski and Kellogg came to the homes personally to stop the work - from taking place. [ER 38- 41; ER 6791 (Kellogg) On one occasion appellant Grabinski left a note stating that Ms. McClure had to call him before doing anymore work. [ER.248-245.] The work taking place that day was carpet laying. [ER 278:12-15.] FN31. Appellants accuse Ms. McClure of allowing health and safety issues to persist on the•property which she should have corrected without a permit. However, Ms. McClure was prevented from doing any work on the properties by the police due to the Buildin4 Department's direction regarding what work required a permit. Between July 24, 1990 and August 2, 1990, members of the Building Department visited the homes on almost a daily basis. [ER 173.). Notices of inspection were written on 7/25, 7/28, 7/30 and 7/31,' in addition to in person inspections on 7/24, 7/25 and 8/2. [ER 135, 136, 137, 138; ER 724, ER 725, ER 726, ER 728, ER 731, ER 732).,Defendants Gatoff and DeAngelo spent hours watching the properties, noted license plate numbers of all vehicles on the properties, and took down the names and addresses of all of the workers on the properties. [ER 197.1 [ER 725, ER 727.1 On July 27, Gatoff issued a stop work notice to two workers building a ramp at 3721 Orange. [Id.] The notice was issued despite the fact that a building permit is not required for a ramp under 30 per L.B.M.C. 18.12.020(2)(c) [ER 88; ER 1024.) The notice stated that the guardrails were too high. [ER 7291 However, the railing had yet been installed, there were only the posts, and the ramp was well under 30. [ER 1289-12901[FN321 FN32. In not one of the dozens of memos and notices of inspection written by building officials between July 24 and August 2 is there mention of any work taking place on the property that required a building permit. The only arguable work requiring a permit would have been the decks and ramps (whose exemption from the permit requirement has already been discussed). J. The July.31 City.Council jneeting. At the July 31, 1990, City Council meeting, the un-agendaed subject of the homes was the subject of discussion. Councilman Kellogg made many statements supportive of the neighbors' cause. *22 [ER 692, 693) Mayor Kell stated, referring to Mr. Kellogg, "[If) there had been anything legally he could have done, he would have stopped it." [ER 6951 (emphasis added.) Ms. McClure's emotionally disturbed son testified at that meeting and related inflammatory and unsubstantiated stories.[n33) After discussion between Kellogg and City Attorney John Calhoun, these comments were forwarded to the DSS for the clear purpose of preventing the licensing of the homes. Preparation of the transcript was expedited. [ER 691-697], [ER 908-910.] Defendant Kellogg also sent the transcript and a letter to Fred Miller, head of the Community Care Licensing Division in Sacramento. [ER 844-846.] 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:/tweb2.westlaw.com/printtprintstream.aspx?sv=Split&pr(t=HTMLE&mt=California&fn= top... 7/31/2007 F 1995 WL 17139712 (C.A.9)- (Cite as: 1995 WL 17139712) Page 25 of 40 Page 24 FN33. Evidence of Brian McClure's psychological and emotional problems was submitted under seal to Judge Letts in a prior motion. K. The August 2 Inspections And Removal Of The Utility -Meters On August 2, defendant DeAngelo inspected all of Ms. McClure's properties. Again, Ms. McClure, fully cooperated.En39] The same day, appellant Liddicoat notified the Long Beach Gas Department and Southern California. Edison that two of Ms. McClure Is properties had been declared substandard and nuisances and that the gas and electric meters should be physically removed. [ER 738; ER 739; ER 740; ER 742.1 The Gas Department removed the meters the'next day. [ER 853.] There was no verbal or written notice to the McClures, and none of the procedures established in the LBMC regarding declaring a property substandard and a nuisance was followed. [ER 1019-1020; ER 979-980; ER 854-855.3 One of the meters was removed from one property in which the McClures were then living. [ER 277:3-10.] The gas service in the other had been shut off weeks before at Ms. McClure Is request. Id.trN35] FN34. Exhibit 522 is a videotape of the inspection on August 2. A copy of this tape will be submitted to this Court if it so requests. FN35: Appellants claim that the removal of the meters was an -emergency abatement which was not subject to prior notice. However, the alleged dangerous conditions were observed on July 25 and July 22 [ER 141, 143, 425:24 - 426:7.1 and the written request to remove the meters was not issued until August 2, Further as was already stated, Inspector Gatoff had written notices of inspection practically every day between July 25 and August 2. Not one mentioned the so-called dangerous gas leak to the McClures. [ER 428:15-21.3 Gatoff also testified that he had corrected the problem at 3563 Orange on his own' on July 27. [ER 426:8 - 428:9.] These facts completely undermine the argument that the circumstances obviated the need for notice and a hearing. *23 Appellant Liddicoat, whose province was new construction, could not recall any other instance in which the Building Department had taken such action. [ER 1016-1017.] Removal of gas meters is a drastic mQasure that is rarely taken by the Gas Department. There would be no reasan to remove the meter when the gas was already shut off, or if gas was simply leaking, which were the allegations here. [ER 898-899; ER 952.] Southern California Edison, who was responsible for the electric meters and was not controlled by the City of Long Beach, refused to physically remove the electric meters. On August 2, Defendant Sutton wrote a memorandum to Defendants Kellogg and Grabinski summarizing the events. [ER 743, 744] L. The Revocation Of The Fire Clearance. On August 3, the Fire Department revoked the Amelia fire clearance, based on communication from the Building Department. [ER 717; ER 719; ER 723; ER 1063-1065.1 Although it had been on the verge of granting the fire clearance on three additional properties [ER 1005-1006; ER 712-713], it now refused to grant a fire clearance on any property until the building issues were resolved. [ER O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https;//web2.westlaw.com/print/printstrealm.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top...• 7/31/2007 TJ - 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) rage 40 UT 4V Page 25 721-722.1 The basis for granting the clearance is State Eire Codes, not local ordinances. The McClures could not legally open the homes without a granted fire clearance for each property, and the fire clearance was the only part of the licensing process that was dependent on a local goveknmental agency. According to Ephraim Mochson, of DSS, this was the first time he had ever seen a fire clearance revoked in 13 years. [ER 709A] Ms. McClure could not open without a fire clearance under any circumstances. [ER 1127-1128.1 On August 7, the Building Department issued a lengthy letter detailing all of the alleged violations at the properties. The letter listed over 80 purported violations.' [ER 34-37.) A large number of these so-called violations were either complete fabrications, pre-existing conditions, normal *24 conditions due to construction or very minor items. Any construction site is going to have code violations before the work is finished. [ER 1021-1022.] Before the August 2 inspection, Mr. Liddicoat publicly stated that Ms. McClure was "doing everything that was illegal in a single family residence." [ER 50; ER 991-992.) The newspaper reported, based on the August 7 letter, that Ms. McClure had over 80 violations at her properties. [ER 690.1 Now, appellants' statements concede all of these issues may not have been violations. [ER 916-917.] M. The Denial Of An Appeal. The McClures were told that, if all of these corrections were not fixed within 30 days, they would be criminally prosecuted. (The 30 day requirement was given to Ms. McClure in a letter dated August 21, but it was backdated to August 9.) [ER 151-155.] ' The August 21 letter, written by DeAngelo, essentially repeated the allegations listed in the August 7 memorandum. [ER 151-155.) However, Ms. McClure now had to submit plans for work previously done on the properties. He stated, "Provide plot and building plans for all addresses to .the Building Bureau for approval of all work performed." [ER 155.] (emphasis added). Some of the items listed .on the August 7 and August 21 letters were conditions that had existed for years. Such plans would be burdensome, unnecessary and expensive, and were not required of subsequent owners. [ER 276:11-17; ER 278:16-25, ER 871-8723(EH363 In a letter dated August 21, Ms. McClure directly asked Zeller, the Superintendent of the Building Department, how she could appeal what had occurred. [ER 47.] Mr. Zeller responded she had no right to an administrative appeal.' [ER 3.108-1111.][rN37] FN36. The entire file showing the lack of plans submitted by the subsequent owners is contained in Exhibits 436-442. These exhibits contain over 300 pages and will not be submitted in the excerpt of record unless requested by the Court. FN37. In their brief, appellants contend that Ms. McClure's "wound was self-inflicted" because Mr. Zeller gave her inaccurate information that should have been clarified by her own attorney. However, in deposition Mr. Zeller reiterated that he was in charge of the appeal process and that he had the authority to deny such an appeal. A government official cannot deny ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printfprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) rageZI oT4u Page 26 someone his rights and then assert that the individual should have known the official was wrong and taken steps to set him right. *25 The McClures'continued to try to resolve the issue. They hired an attorney who hired a contractor/consultant.' On September 7, Ms. McClure's attorney wrote a letter to the Building Department requesting an extension of the 30 day grace period, which was denied. [ER 156-157; ER 158-159.] On September 14, Ms. McClure, her attorney and the contractor/consultant they hired, Richard Bowen, met with the City Attorney and Building Department personnel. The City continued to insist that Ms. McClure submit plans for -all of her properties before work could proceed on any, that all plans would have to go through plan check (not normally required for such activities), that she had to have a licensed architect draw the plans and have a licensed contractor pull the permits, that they would then review the 'plans without a,committed timetable as to when or under what criteria work could proceed, and that she had to remove all of the fences or put up a bond and go through a lengthy process for a variance which would include hearings by the neighbors on whether such a variance should be granted. [ER 164-172.] [ER 891-896] [ER 278:16-279:4.1 [ER 708-710.](FH383 FN38. A letter memorializing this meeting and seeking further clarification was written by Ms. McClure's attorney, James Guziak, on September 20, 1990 and sent to Mark Sutton. [ER 164-1727. Mr. Sutton wrote a response, which objected to the letter's tone but not its substance. [ER 749-750]. If Mr. Sutton had disagreed with Mr. Guziak's interpretation of events in this letter, he would have so indicated. [ER 1086-1087]. As the property owner, Ms. McClure was entitled to pull combination building permits on all of her properties if she had worker's compensation insurance, which she had had since 1989 [ER 842] (although a copy was not on Hie with the City). [ER 1280-1282; ER 88; ER 849-852]. The City never told her she was entitled to a combination permit if she had or obtained such insurance. [ER 1096-1097.] Instead, it repeatedly denied her the right to pull any permits under her name under any circumstances and insisted that a licensed contractor pull the permits for all of her properties. [ER 33; ER 37; ER 163.3 [ER 892.] N. The Criminal Prosecutions. *26 On October 2, the City Prosecutor sent out six of what it calls a 10-day letter to Shirley McClure'. The letters stated that she had to complete all of the necessary corrections by October 15, or legal action would be taken against her. [ER 751.1 On October 1, prior to sending out the 10-day letters, the Building Department met with the prosecutor's office and referred the matter for prosecution. The meeting included the second and third men in the Building Department (Mark Sutton and Harold Liddicoat), Deputy City Prosecutor John Fentis, and elected City Prosecutor, John Vanderlans. [ER 120, 122, 126, 128, 132.1 This was a complete departure from normal procedure, under which a matter is not referred for prosecution until a 10-day letter is sent and there is no compliance. 'Often, it is months between the 10-day letter and a meeting referring the matter. Here the referral occurred before the 10-day letter was even sent. [ER 936-940.] m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft=HTM LE&mt=California&fn=_top... 7131 /2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) rdye co o[ 4u Page 27 A letter sent out by appellant Grabinski on September 19 indicated that the City had refused to grant Ms. McClure an extension and that, since she had failed to submit plans by the September 9 deadline, the City was "preparing these cases for referral" to prosecution. His letter was only 5 days after the September 14 meeting and nearly two weeks before the October 1 referral for prosecution meeting. [ER 118.] On October 10, Ms. McClure wrote to the Department of Planning and Building stating that she would remove the fences and many of the other items that the City claimed were illegal on October 11. [ER 757-758.1 On October 11, Ms. McClure, Jason McClure and Richard Bowen removed all of the fences at the properties and fixed as many of the corrections as they were able to without obtaining a building permit. [ER 894-885.1 On October 15, Appellant DeAngelo inspected the properties and advised the - prosecutor that the fences and other items had been removed. [ER 759.] On October 22, the Department of Planning and Building sent a formal letter for a Referral for Prosecution for each property, although the case had already been referred at the October 1 meeting. The referral included the overheight fences which had been taken down, and a number of other charges. [ER 174, 177, 180, 183, 186,189.1 On October 24, Ms.. McClure sent a fax to the Building Department *27 stating that they were doing their best to comply and had removed the fences [ER. 760.), and her attorney sent a letter to the prosecutor stating that the fences had been taken down and requesting clarification on a number of issues. [ER 767-769.] On October 25, the prosecutor advised Appellant De Angelo,thair "no answer was proposed or response made to Shirley McClure at this time." [ER•771.] Mr. DeAngelo was listed as the contact person on the "10 day letter." Thus, Ms. McClure had no way of avoiding prosecution by working out a compromise with the Building Department. On October 26, six separate criminal complaints were filed against Shirley McClure and one against Jason McClure. [ER 826-84];ER 1291-1296.1 Meanwhile Shirley and Jason McClure became financially destitute. They had no prospects of opening any of the homes, no prospects of obtaining a Small Business Administration loan (which was critical to their plans and derailed because of the dispute with the City) and had six mortgage payments to make. Their complete life savings and all their financial resources, including substantial loans in the amount of hundreds of thousands of dollars, had been invested in these homes. Shirley McClure went bankrupt and lost all of her properties in Long Beach. [ER 280:1-11.] Before initiating prosecution, no diversion hearing was scheduled, even though it was the normal practice of the City Prosecutor's office to do so. [ER 703-705.) This was the only Building Department case filed by the prosecutor's office in which no diversion hearing was held before prosecuting. -[ER 941.1 The prosecutors insisted for a long time on a guilty or nolo plea to drop the case. The McClures insisted that they would not plead guilty and were preparing a motion to dismiss for discriminatory prosecution. In July. 1991, the prosecutor dismissed the case (after all the properties were lost and after Ms. McClure threatened a discriminatory prosecution defense). [ER 279:5-27]; [ER 877.][1'a391 O 2007_Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9I (Cite as: 1995 WL 17139712) requ cu of 4u Page 28 FN39. Less than a week after the charges were dismissed, Ms. McClure was prosecuted for writing a bad check, which was untrue (The charges were filed on July I; however, it was not served on Ms. McClure until after July 9.) She had written a number of checks that had bounced due to a bank error. She had given replacement checks to all of the people who requested them, including the complainant, and had received a letter of apology from the bank. The City eventually dismissed these charges, and the court declared Ms. McClure "factually innocent" of them. [ER 279:13-271. *28 The prosecution, and Building Department handling, of the McClures was unique in a number of respects. According to any information known to the head of New Construction, Appellant Liddicoat: this was the only new construction case where gas meters had been removed; it was the first time he had ever dealt with the City Prosecutor's Office, referred a case for prosecution, or knew of a new construction case being criminally prosecuted; it was the first time he had seen a stop work order tfiat generically stopped all work in new construction, and the first time he had ever seen stop work orders on ramps or guard rails. In addition, the referral for prosecution occurred before the sending of the "10-day letter"; the official referral for prosecution on the fences came after their removal; it was the first Building Department case where no diversion hearing was scheduled; it was the first Building Department case prosecuted for failure of a home owner to provide plans or specifications; it was the first new construction case in which an inspection warrant was obtained. [ER 930, 933; ER 1018-1019; 1021-1028.] O. The Subsequent Owners. Despite these actions against the McClures, no comparable standards were imposed on subsequent owners. On June 28, 1991 letters were sent to some of the subsequent owners [ER 772, 773, 774, 775, 776, 777), stating they had thirty days to submit plans and specifications to the Building Department [ER 856-8701. Although some were told to do the same things, no actions were taken against those who did'not, and they were only told to do the same things if they requested special inspections. Others, who did not call for special inspections, weren't even told to do the same things. No subsequent owner was required to submit plans for previously constructed items. No subsequent owners were required to go through plan check or to submit plans beyond a plot plan (unlike the McClures) even when they were engaging in substantial work. Permits which had been suspended for the McClures were allowed to be used by the new owners. [ER 778-789; ER 790, 793) Many of the cited conditions still exist. [ER 873-876.] see also fn. �3; supra. No enforcement action was taken; no one was prosecuted or even sent a 10-day letter. Id. ARGUMENT *29 I. STANDARD OF REVIEW. A court of appeals is required to review a qualified immunity defense de novo. Amendariz v. ?? 31 F.3d 860, reh'g granted, 41 F.3d 493 (9th Cir. 1994). However, it does not review the evidence for whether a genuine issue of fact exists O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prfi=HTMLE&mt=California&fn= top... 7/31/2007 I) I) rage ou or 4u 1995 WL 17139712 (C.A.9) Page 29 (Cite as: 1995 WL 17139712) regarding the wrongfiilness of defendants' conduct. Johnson, 1995 WL 347244 at *5, *8. The court accepts the facts assumed by the district court, draws all inferences in the plaintiffs favor, and decides the "purely legal" question of whether the alleged conduct violated clearly established law. Id. at *8-9. II. THE LAW OF QUALIFIED IMMUNITY Qualified immunity is unavailable to individual government defendants who violate " clearly established" law which a defendant, in the absence of extraordinary circumstances, has a duty to know. Harlow v. Fritzgerald, 457 U.S. 800, 818 (1982) . To determine whether the law is "clearly established", a plaintiff must only show that "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039 (1987). The specific action in question need not previously have been held unlawful, but "in the light of preexisting law the unlawfulness must be apparent." Id. The law may be clearly established even in the absence of case law if "well established principles dictate " such a conclusion. Qstlun v. Bobb, B25 F.2d 1371, 1374 (9th Cir. 1987). The FHhA expressly extended protections to handicapped persons in 1988. Certainly all of these defendants, and, in particular, Long Beach's Building Department, had a duty to know federal fair housing laws. Even absent the FHAA, defendants' systematic denial of due process and disparate treatment violated doctrines well -established long before July, 1990.(n90) FN40. Additionally, when the conduct alleged is as egregious as that alleged in this appeal, no closely analogous case law is necessary to establish a violation because, any reasonable official would know that his conduct was a constitutional or statutory violation. Blacklund v. Burhart, 778 F.2d 1B86, 1390 (9th Cir. 1985). III. THE MCCLURES' CLAIMS UNDER THE FHAA ARE NOT BARRED BY QUALIFIED IMMUNITY. *30 A. Qualified Immunity Is Not A Valid Defense Under The FHAA. And. Even If It Is. Closely Analogous Case Law Is Not Necessary To Establish A Clearly Established Violation Of:The Law. The Fair Housing Amendments Act of 1988, 42 U.S.C. 9 3601, et seq. (hereafter "FHAA ") is a comprehensive remedial statute aimed at eradicating discrimination in housing. It applies equally to private and government parties. United States v. City of Blackjack, 508 F.2d 1179, 1183-84 (8th Cir. 1974). Thus, unlike 42 U.S.C. 5 1983, respondeat superior applies to Title VIII claims against municipalities. City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086, 1096-98 (7th Cir. 1992). The law of qualified immunity is based primarily on 42 U.S.C. S 1983, a broad based statute authorizing "constitutional torts" to which well -established common law tort immunities apply. Pierson v. Ray, 386 U.S. 547, 554 (1967). Congress intended such tort immunities to apply when it enacted 4 1983. City of Newport v. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://webZ.westlaw.com/print(printstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (cite as: 1995 AL 17139712) rage .5.1 OT 4u Page 30 Fact Concerts, 453 U.S. 247, 258 (1981). Unlike the FHAA, 9 1983 only applies to governmental conduct. § 1983 is only a paragraph long and essentially provides tort remedies for all constitutional violations. Given the breadth of the statute and it focus on government officials, it made sense for the Supreme Court to apply the common law immunities available at the time of its enactment. There is no corresponding reason to apply qualified immunity to a comprehensive statutory enactment such as the FHAA. Appellants cite only O'Neal v.Alabama Dep't of Public Health, 826'F.Supp. 1368 (M.D. Ala. 1993), a case wrongly decided and having no precedential effect on this court, for the proposition that a qualified immunity defense may lie under the FHAA.(r4911 Even assuming the availability of qualified *31 immunity, its scope •must be limited to where a reasonable official would mot know he was violating the law. The law is presumptively clearly established when the alleged conduct violates the plaip language of the statute. Jackson v. Rapps. 947 F.2d 332 (8th Cir. 1991) (no qualified immunity to defendant officials because they acted in violation of an unambiguous federal statute and implementing regulations). Thus, qualified immunity is not logically available where the record supports a claim of intentional discrimination. FN41. Appellees have located only one Ninth Circuit case discussing qualified immunity under the Fair Housing Act. Armendariz, 31 F.3d at 868-69. However, there was no qualified immunity because the court held that no _ cause of action was stated under the Act. The Court never addressed whether the official could have asserted immunity because the law was not clearly established. At a minimum, there is no requirement that closely analogous case law is necessary. The cases discussing closely analogous law arise under Section 1983. See, e.g., Anderson. 483 U.S. at 635. Appellants wish to ignore the statutory language and the legislative history until the judicial branch has interprets the statute. This turns the law of qualified immunity on its head and would immunize government officials against all new statutory claims until the new statute has been interpreted by the courts. That surely was not Congress' intent. B. The Law Prohibiting Appellants' Conduct Was Clearly Established. The McClures alleged that appellants violated the FHAA by unlawfully preventing them from opening their residential care facilities for person with Alzheimer's disease. The claims enumeratdd in the complaint were for violation of Section 3604 (f)O) (making it a violation to, among other things, "make unavailable or deny a dwelling" because of a handicap); 42 U.S.C. § 3604 (f) (3) (B) (making it a unlawful to fail to "make reasonable accommodations in rules, policies. -practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling") and-42 U.S.C. Section 3617 (snaking it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of any right granted by the FHAA). 1. The Law Under § 36O4 (f) (2) Was Claarly Established: @ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prf=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) rayd oc ui +u Page 31 Title VIII law finding liability for discriminatory use of municipal zoning and police powers has been well established for decades. See e.g., Village of - Arlington Heights V. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266-68 (1977); Keith v. Volpe. 858 F.2d 467, 482 (9th Cir. 198B); United States v. Yonkers Board of Education. 624.F.Supp. 1276 (S.D.N.Y. 1985), affd. 837 F.2d 1181 (2nd Cir. 1987) *32 cert. denied, 468 U.S. 1055 (1988); Huntington,Branch. NAACP v. Town of Huntington. 844 F.2d 926, 937 (2nd Cir. 1987); Resident Advisory Board v. Rizzo. 564 F.2d 126 (3d Cir. 1977); United States v. City of Birmingham. 538 F.Supp. 819, 828 (E.D. Mich. 1982); Hanson v. Veterans Administration. 800 F.2d 1381, 1386 (5th Cir. 1986); Smith V. Town of Clarkton. 682 F.2d 1055, 1068 (4th Cir. 1982). To -establish a Section 3604(f)(1) claim here, plaintiffs must demonstrate either: 1) that defendants intended to prevent plaintiffs from establishing group homes for handicapped persons or 2) that defendants' conduct had a discriminatory effect without justification. Yonkers. 837 F.2d at 1216-26 (discriminatory intent); Keith at 482 (discriminatory effect). There is no doubt that the factual record reviewed by the district court upheld both of these standards. The record establishes claims of both intentional discrimination and discriminatory effect. Thus, both intent to discriminate and discriminator)' effect must be assumed by this court for the purposes of this qualified immunity appeal. Johnson. 1995 WL 342477 at *7. There, Justice Breyer noted that many civil rights cases "involve factual controversies about, for example, intent - controversies that before trial may seem nebulous," Id. Thus, this Court must not attempt to resolve such issues, but take "as given, the facts that the district court assumed when it denied summary judgment." IA. at *9. Because it can only be assumed that the district court found both discriminatory intent and effect, appellants' arguments regarding the absence of such factors are irrelevant.(n921 No good faith argument exists that a reasonable official would believe that s/he could intentionally discriminate against the opening of a residential care home for the handicapped. Appellants' argument that the FHAA did not clearly establish what it meant to make housing unavailable and that it was not clear that the FHAA applied to persons *33 such as the McClures ignores the plain language of the statute and decades of Title VIII case. FN42. Because the district court failed to state the facts it relied upon in denying summary judgment, this Court may have to conduct a limited review of the record to "determine what facts the district court, in the light most favorable to [the McClures], likely assumed." Johnson at *9.' However, in this case, the district court denied appellants' motions for summary judgment, which not only included claims for qualified immunity, but also included an attack on the substantive merits of the claim. Thus, it must be assumed that the district court found a factual basis for both discriminatory effect and intentional discrimination Appellants assume that, because the FHAA was amended in 1988 to include the handicapped, the pre-existing case law is inapplicable. Thus, they argue that it was not clearly established what it meant to make housing unavailable under the FHAA and cite a lone district court decision, Michigan Protection and Advocacy Service, Inc. v. Babin, 799 F.Supp. 695 (E.D. Midi. 1992), aff'd, 18 F.3d 337 (6th © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) )'age 36 Oi 4U Page 32 Cir. 1994), for the proposition that it was not even clear in 1992 that Section 3604(f)(1), specifically the phrase to make housing unavailable, applied to anyone other than a seller, his agent, or another person involved in the financing of real estate. The holding in Babin was that neighbors, who attempted to prevent the opening of housing for the handicapped, but were not directly involved in any real estate transaction, and had no governmental power to exercise over the plaintiffs, were not covered by Section 3604(f)(1). Babin at 711-714. Aside from Eabin's dubious validity, see, e.g. Casa, Marie. Inc. v. Superior Court, 752 F.Supp 1152, 1168 (D. Puerto Rico 1990); United States v. Scott, 788 F.Supp. 1555 (D. Kan. 1992) (both holding that neighbors who petition a court for relief that has the effect of denying housing to a member of a protected class under the FHAA are liable under S 3604(1)), it has no relevance to the claims here. The Babin court expressly acknowledged that there would be liability against those in a position to "exercise.influence over or control the disposition of the dwelling." Babin, 799 F.§upp. at 721. The employees bf the City of Long Beach are not being sued because they protested the opening of the homes. They are being sued because they used police powers to prevent certain homes for the handicapped from being established in certain neighborhoods in Long Beach. Appellants appear to distinguish the Section 3604(a) cases on the ground that they hold entities, not individuals, liable. However, appellants fail to explain what difference that makes. If the law clearly established that axi entity may not prevent the opening of a residential rare homes through the discriminatory use of its police powers, then the individual official'had the notice s/he needed. Qualified immunity is,not directed to whether or not there is liability under a particular cause of action, but *34 whether the conduct is unlawful. Del A. v. Edwards, 855 F.2d] 148 (5th Cir.), reh'g granted, 862 F.2d 1107 (5th Cir. 1988) (holding that the issue of whether a private right of action exists under a particular statute is irrelevant for a qualified immunity determination; the only pertinent inquiry is whether a reasonable official would know how the statute or caselaw required the official to act). Appellants argue that Section 3604(f)(1) refers to "buyers or renters" while the previous and current 3604(a) refers to "persons." When the act was amended in 1968, Congress created Section 3604(f) to apply directly to discrimination against the handicapped. Except for minor differences, Section 3604(f)(1) mirrored the language of the pre-existing S 3604(a), which had held government officials liable for discriminatory conduct based•on race, religion, national origin and sex for decades. Congress clearly intended to give as wide protection to the handicapped as to those protected by 3604(a). It was Congress' intent to "afford to handicapped persons and families with children in the same manner as the protections provided other under the Fair Housing Act." 24 C.F.R. Ch 1, Subch. A, App 1 at 691. The language prohibiting discrimination to that "directed against handicapped buyers and renters and those who reside or are associated with them," as opposed to "any person" who would have a claim under § 3604(a), was "to make clear that the law does not condemn housing that is available especially for handicapped people and their associates (i.e., that 'reverse discrimination' suits against such housing by non -handicapped persons are not authorized)." Schwem, Housing Discrimination Sec. 11.5(3)(a). That is, the law, in effect, permits ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= top... 7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) rayc o-+ ul •+u Page 33 discrimination in favor of the handicapped, unlike Section 3604(a), which does not permit discrimination in favor of protected groups. This is'the reason for the 3604(f) "buyers or renters" language. Id., n. 52. Thus, even Babin, on which appellants so heavily rely, expressly assumed that Section 3604(f)(1) was to be interpreted the same as the existing Section 3604(a). Babin at 713, n. 35, citing 24 C.F.R. Sec 100.60(b)(1)-(5) and Sec. 100.70. Appellants also cite and misconstrue Familystyle of St. Paul, City of St. Paul, Minn., 923 F.2d 91 (8th Cir. 1900). There, a Minnesota law similar to California's allowed for residential care homes in single family neighborhoods, but, unlike California, Minnesota required one quarter mile between each *35 such facility unless a conditional use permit was granted by the municipality. The City of St. Paul refused to grant such a permit. The Court found that there was no discriminatory intent, that the law did not limit the choices of the handicapped but rather served a legitimate governmental interest to integrate the handicapped throughout the coimmnity. Familystyleat 94-95. Here, unlike Familystyle. appellants were not permitted to restrict the location of the RCFs, and there is ample evidence bf intentional discrimination. Appellants make an even more nonsensical reading of 9 3604(f)(1) when they claim that it only imposes liability on prospective buyers and renters of property, but not on those who currently own property. Appellants' argument directly contravenes the purpose of the FHAA, which is to protect the housing choices of handicapped individuals. Growth Horizons, Inc. v..Delaware County, PA, 983 F.2d 1277. (3rd C'.R. 1993) Under appellants' reading, Long 'Beach could single out and condemn all properties owned by handicapped persons and face no liability because such individuals already owned the property. The notion that Growth Horizons (a case whose holding appellants patently misstate) supports appellants reading of the statute is absurd. In that case, the County contracted with CLA to operate four homes for the handicapped. CLA began operation, but was unable to run the homes adequately; their contract was canceled. A group of handicapped residents sued the County to require it to assume the CIA's leases. The court rejected this claim and pointed out that the County was both the "defendant actor and the potential buyer or lessee." Id. at 1283. The court noted that the intent of the FHAA was to " protect the housing choices of handicapped individuals who seek to buy or lease housing and of those who seek to buy or lease housing on their behalf." Id. 'How this language excludes from liability those who prevent an already occupied home froni being used for the handicapped is a complete mystery. Its acceptance would mean that, for the last seven years, officials did not know that it was unlawful to wantonly and intentionally discriminate against already occupied handicapped housing. *36 2. The Law Under Section 42 U.S.C. § 3604(T)(3)(B) Was Clearly Established. M43) FN43. Appellants argue that this claim was not raised below. In the first, instance, it was appellants' burden to raise qualified immunity as to all claims for relief. Both the original•Complaint and the First Amended Complaint clearly state a claim for the failure of all defendants to O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&mt=California&fn= fop....7/31/2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712)• rayC Ou Ui -tu Page 3A reasonably accommodate the handicapped in their actions. [ER 1132-1134]. Thus, if anything, it is appellants who have waived that claim now. In addition, the McClures specifically raised the.claim in their opposition to defendants motions for summary judgment submitted below. [ER 1135-1228.3 Appellants'excuse is that the claim was only raised against the City of Long Beach. Although the McClures' briefs read "Long Beach completely failed to reasonably accommodate the plaintiffs in their effort to open the homes," the sentence was reiterated in plaintiffs' opposition to the individual parties' motions as-well.•Id. Thus, it was clear that the word Long Beach referred to all appellants individually and as members of a conspiracy to discriminate against the McClures. Although the reasonable accommodations clause, 42 U.S.C. 9 3604(f)(3)(B), was a new addition to the FRAA, its language was lifted directly from the Rehabilitation Act, which had been in effect since 1973. City of Edmonds v. Washington State Bldg. Code Council. 18 F.3d 802, 805 (9th Cir. 1994,). .Under the Rehabilitation Act, it has long been established that an employer had an affirmative obligation to make reasonable accommodatidns for the handicapped. Any accommodation that does not create an undue hardship on the employer is reasonable. School Ed. of Nasuau County v. Airline. 481 U.S. 1024, 287-289, n. 17, 19. (1987). ' Since its inception, Title VIII's reasonable accommodations clause has.been uniformly interpreted under the same analysis to require an affirmative duty to tailor Jocal land use and health and safety -laws to avoid excluding group living arrangements for the handicapped. City of Edmonds v. Washington State Bldg. Code Council. 18 F.3d 802, 805 (9th Cir. 1994) (refusing to exclude local zoning law which precluded group homes for the handicapped in single family neighborhoods from the reach of Title VIII); United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1416 (9th Cir. 1994) (declaring unlawful residency and parking fees for additional guests in a mobile home park where a resident required live in help). Thus, Long Beach had an affirmative obligation to grant any reasonable accommodation that did not create such a hardship. Under California law, municipalities are required to treat residential care *37 homes of six or less as a single family dwelling and are obliged -to encourage' the proliferation of such homes. The evidence of a failure to reasonably accommodate the McClures under the most elementary meaning of reasonable accommodation is overwhelming since appellants imposed stricter requirements on them than on other single family dwelling. For example, appellants were aware that the Fire Marshal was requiring four foot fences, that the Long Beach Municipal Code allowed overheight fences when required by State or Federal law, and that the fence height requirement was not enforced against other residents of Long Beach. Thus, even if appellants are correct that, in 1990, the meaning of "reasonable accommodation" was unclear in certain circumstances, no reasonable official in California could impose stricter requirements on homes for the handicapped than on other single family residences in the same community. 3. The Law Under Section 42 U.S.C. 5 3617 Was Clearly Established. O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?sv=Split&prft=HTMLE&mt=California&fn=_top... 7/31 /2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) rage 6o or 4v Page 35 As appellants concede, it was well -established that a violation of Section 3617 could be based on a violation of another provision of the Act, which the McClures have already established. The law has been clear that Section 3617 prohibits municipal use of its zoning or police powers to impede housing for those protected by the Act. See United States v. Birmingham. 727 F.2d 560, 561 (6th Cir.) cert. denied, 469 U:S. 821 (1984); United States v. Black Jack. 508 F.2d 1179, 1188 (8th Cir. 1974), cert. denied, 422 U.S. 1042(1975). Further, it was established in this circuit that, even if there is no underlying violation of Section 3604, any conduct which coerces or threatens individuals on account of exercising their rights creates an independent violation of § 3617. Smith v. Stechel. 510 F.2d 1162, 1164 (9th Cir. 1975) ("[Section 3617) deals with a situation where no discriminatory housing practice may have occurred at all because the [plaintiffs have] been discouraged from asserting [their] rights..."). Here, appellants actively prevented Ms. McClure from doing any work on her home for the purpose of preparing them as RCFs. Appellants informed the Long Beach Police Department that Ms. McClure could do no work on her home other than paint. Appellant Grabinski told Ms. McClure that she *38 could not lay carpet. Appellants Grabinski and Kellogg informed neighbors that they should write down the license number of any persons working on the properties and should report any work, even landscaping and carpet laying, to the police. If 'that does not constitute coercion or intimidation, then nothing does. • . IV. THE MCCLURES' CLAIMS UNDER 42 D.S.C. SECTION 1983 ARE NOT BARRED BY QUALIFIED IMMUNITY. Zellers, Kellogg's and Grabinski's primary defense to liability under 42 U.S.C. § 1983 is that there is insufficient evidence to demonstrate that each was directly involved in the actions which deprived the McClures of their right to equal protection and due process under the law, As noted, that issue is not properly before this court. And, in any event, the evidence must be assessed under conspiracy law, where the actions of one conspirator are attributable to all. Beltz Travel Service, Inc. v. International Air Transport Ass'n, 620 F.2d 1360 (9th Cir. 1980). See also Vieuz v: East Bay.Regional Park District, 906 F.2d 1330, 1343 (9th Cir. 1990) (specifically recognizing a right of action under § 1983 based on a conspiracy theory). In any event, as to appellant Zeller, he testified that he approved and ratified his staff's actions. [ER 1102-1107.1 A. Defendants Deprived.Plaintiffs of Their Clearly Established Right to Equal Protection Of The Law. Defendants violated plaintiffs' constitutional right to equal protection of the law by applying zoning and building standards and requirements to plaintiffs' properties which were not applied to other single family residences in the same area of the city. See City of Clebutne v. Cleburne Living Center, 473 U.S. 432 (1985) (zoning ordinance denied equal protection as applied where it required a special use permit for a group home for the mentally retarded). Under a rational relationship test, defendants' discriminatory treatment of plaintiffs will be upheld only if it rationally furthers a legitimate purpose. *39 See Hooper v. m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. hitps://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTM LE&mt=California&fn=_top... 7/31 /2007 I-agear or1+U 1995 WL 17139712 (C.A.9) Page 36 (Cite as: 1995 WL 17139712) _ y 3 . Bemalillo County Assessor, 472 U.S. 612 (1985). The needs of the disadvantaged group are evaluated in that determination. Cleburne, 473 U.S. at 446. Appellants 3 do not dispute this, but improperly argue that the McClures failed to establish a j prima facie case. In essence, appellants concede this claim is not ripe for interlocutory appeal. Johnson, 1995 WL 347244. 1 ' In any event, there is ample evidence that the McClures were treated differently from other single family dwellings in the neighborhood, the most striking example of which is the subsequent owners of her own properties. Appellants were required > to treat the -McClure properties the same as any other single family dwelling under California law. California Health & Safety Code Sec. 1589. The record establishes that the fence height requirement was not enforced on other properties, other owners were' not required to submit detailed plans and specifications, subsequent owners were not required to correct the violations, no other property owners were 1 ever prosecuted for building code violations during ongoing construction, all other property owners who were prosecuted for building code violation received a diversion hearing, and no other property owner was stopped by the police from unpermitted work. The list goes on. There is certainly a triable issue of fact on liability under the equal protection clause. B. Defendants Deprived Plaintiffs Of Clearly Established Property Interests Without Providing Due Process. To establish a constitutional due process violation, the plaintiff must show deprivation of either a life, liberty, or property interest without the requisite due process protections. Here, plaintiffs were deprived of numerous property interests without any attempt at due process. Defendants deprived plaintiffs of the use and enjoyment of their six properties, building permits which had been issued by the City of Long Beach Building Department, a fire clearance for the home at Amelia Drive, and the utility meters at the homes at Linden a4d 3563 Orange. Here, defendants withheld and revoked property *40 interests "without providing [the McClures3 with any process, let alone `due' process." Batesonjv, Geisse. 857 F.2d 1300, 1303 (9th Cir. 1988), _ 1. substantive Due Process Plaintiffs' substantive due process claim's are based on the arbitrary, abusive and irrational conduct -of defendants in depriving plaintiffs of their licenses, permits and property. Bateson v. Geisse. B57 F.2d 1300 (9th Cir. 1988). in Bateson. the City of Billings refused to issue a building permit for a condominium development to Bateson even though he met all of the requirements. The court found a violation of Bateson's substantive due process rights even though all use of the property was not denied, Id., at 1303. He only was required to show that "the interference with property right was irrational or arbitrary'." Id., citing Usery V. Turner Elkhorn Mining Co., 428 U.S. 1, 15(1976). In Bateson. as here, arbitrary administration of the local regulations, which singles out one individual to be treated discriminatorily, amounts to a violation of that individual's substantive due process rights." Id. at 1303. Bateson. decided in 1988, rejected the defendants' qualified immunity defense. Thus, the law was well -established well before the events here. m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westl aw.com/printtpri ntstream.aspx?sv=Sp lit&prt=HTM LE&mt=California&fn=_top... 7/31 /2007 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) 2. Procedural Due Process rage sa or 4u Page 37 In Bateson, the court rejected•a claim of procedural due process because Bateson could not show that he had a protected property interest in his minor plat plan or in permits which had not been issued. He could not show an entitlement to approval of the plat under state or local law. Bateson at 1305. In contrast, the property interests at stake here are clear and well -established. Property interests are determined by independent sources such as state or federal law. Board of Regents State College v. Roth. 408 U.S. 564, 577 (1972). In California, property is defined very broadly. G.S.'Rasmussen & Assoc. v. Kalitta Flving Service. 958 F.2d 896, 902-903 (9th Cir. 1992) (California law defines property interests "broadly," including the recognition of a property interest in the issuance of an FAA Supplemental Type Certificate relating to a modified airplane's air worthiness). Plaintiffs had well -established property interests in the homes. 462 U.S. 791 (1983) (mortgagee had a property. interest entitling him to due process); in their electric meters, *41Hill v. Pacific Gas a Electric Co., 22 Cal. App. 788 (1913) (property interest in electrical current); and in their permits and licenses, Cal. Civ. Code § 655 ("[t)here may be ownership of all inanimate things which are capable of appropriation or of manual delivery ... and of rights created or granted by statute"). See Traverse v. People Ex Rel Dept. of Transportation, 6 Cal.4th 1152, 1161 (1993) (property interest in continuation of permit for operation of Billboard); Golden v. State,, 133 Cal.App.2d 640, 643-645 (1955) (property interest in liquor licexise).JE11443 FN44.•See also Article 1, Section 7 of the California Constitution; Civ. Code §§ 654-663 (statutory provisions governing real and personal property under California law); Civ. Code § 658 (defining real property); Civ. Code §§ 669-739 (statutory provisions governing ownership of real and personal property under California law); Public Utilities Code Section 1151 Title XVIII of the Long Beach Municipal. The building permits that'were suspended are protectable property interests, as Ms. McClure had paid money for them and had begun work under them. Appellants confuse this issue by raising the doctrine of vested rights. Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (1976). That doctrine normally applies when a developer obtains a building permit to construct a specific structure, and the locality then attempts to change the zoning and restrict the use of the property. 'The owner may have a vested right to complete the project, despite the zoning change. Essentially, vested rights cases are taking cases, not due process/property interest cases. It requires a much higher protected interest to find a taking than a property interest giving rise to due process protection. Appellants suspended already issued permits; put "hard holds" and "stop work orders " on all of the properties, thereby preventing any work from proceeding; instructed the police to stop unpermitted work, effectively precluding the use and enjoyment of the homes; caused the revocation of the fire clearance on 1115 Amelia Drive and a bold on any future fire clearances, which the Fire Department was about to issue; and caused the removal of the gas meters from 3563 Orange and 3723 © 2007 Thomson/West. No Claim to Orig. U.S, Govt. Works. https://web2.westlaw. com/printtprintstream.aspx?sv=Split&p rff=HTMLE&mt=Cal iforn is&fn=_top... 7/31 /2007 r rage as oT 4u 1995 WL 17139712 (C.A.9) (Cite as: 1995 WL 17139712) Page 38 Gardenia by declaring the two properties substandard (without giving the McClures any notice of their actions). *42 No hearing of any type was provided for any of these acts. Although due process does not require a full-scale adversary hearing in all situations, the person faced with deprivation must be given notice of the reason for the deprivation, an explanation of the government's evidence, and a meaningful opportunity to respond and to present her side of the story. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Defendants refused.to provide any of these minimal due process protections and refused to even follow the procedures established in their own ordinance. None of the Municipal Code procedures for declaring a building substandard or,a nuisance were followed before removing the utilities and stopping any work from proceeding, even work not requiring a building permit, on all of the properties. LBMC §9 18.20.110- 18.20.240, ER 107-111. Appellants contend that the McClures were not entitled to a hearing because it was an acutely dangerous condition that had to be remedied immediately. Aside from this being a question for the trier of fact, the argument is contradicted on its face as it is undisputed that the conditions were observed on July 27•and the letter requesting the removal of the meters was not issued until August 2. Appellants Gatoff and DeAngelo were at the McClure properties on several occasions between July 25 and August 2 and provided no notice. While the need for quick action may excuse the obligation to provide a meaningful pre -deprivation hearing, Armendariz v. Penman, 31 F.3d 860, 865�66 (9th Cir. 1994), "the rationale for permitting government officials to act summarily in emergency situations does not apply where the officials know no emergency exists, or where they act with reckless disregard of the actual circumstances. Id., at 866, citing Sinaloa Lake Owners Ass'n v. Simi Valley, 882 F.2d 1398, 1406 (9th Cir. 1989). That is exactly what happened here. More importantly, because defendants failed to provide any notice or opportunity to be heard at any time, itis unnecessary to determine which of the rights involved required pre -deprivation and which post-deprivation'due process. Appellants outrageously contend that the McClures were not permitted h post -deprivation hearing on the utility meters -because Long Beach did not impose the cost of removal. *43 Apparently, appellants believe that they can deprive one of a property interest without due process so long as they don't charge for the privilege. - Not only did appellants fail to follow established procedures in making decisions, they also refused to review even those decisions based on their own discretion. The LBMC specifically states that "any person aggrieved by any ruling of the Building Official interpreting this title ... may appeal to the Board of Examiners, Appeals and Condemnation." LBMC Title 16, Section 18.20.100, ER 107. Nevertheless, Defendant Zeller, head of the Building Department, claims unfettered discretion to decide whether to grant or deny plaintiffs an appeal of Building Department decisions. In a letter to Ms. McClure, he specifically refused her any right to appeal any of the decisions of the building department. Defendant teller's claim to such sweeping power is unfounded under federal due process principles, and under the Long Beach Building Code, which requires the very appeal which Zeller claimed discretion to refuse. O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.` https:llweb2.westlaw,comlprinttpri ntstream.aspx?sv=Split&prf=HTM LE&mt=California&fn=_top... 7/31 /2007 L 1995 WL 17139712 (C.A.6j (Cite as: 1995 WL 17139712) rays •tv ut 4u Page 39 In a typically disingenuous argument, appellants argue that Ms. McClure's wound in not seeking an appeal was self-inflicted because she should not have relied on Mr. Zeller's "belief." As Mr. Zeller was the statutory Building Official, claimed to have the authority to deny an appeal, and did, in fact, deny the appeal, he cannot avoid liability by claiming that the McClures' attorneys should have ignored him. V. DEFENDANTS' VIOLATED PLAINTIFFS' RIGHTS UNDER 42 U.S.C. §§ 1985 AND 1986. To prove a violation under 42 D.S.C. § 1985, plaintiffs must show that defendants acted to deprive plaintiffs of class -based federal statutory or constitutional rights. See Gri£fen v. Brcckenridge. 403 U.S: 88 (1971). The class at issue here is that of handicapped persons, and those wishing to provide housing to them. Because § 1985(3) requires proof of a conspiracy to violate rights based upon class -based membership, qualified immunity is not an available defense to a claims under §§ 1985(3) and 1986. Burrell v. Bd. of Trustees of Ga. Military College. 970 F.2d 785 (llth Cif. 1992). *44 VI. THE FIRST AMENDMENT IS IRRELEVANT TO THE RESOLUTION OF THIS APPEAL. The basis of liability against all appellants is their actions, not their words to neighbors. Each appellant used power•delegated by the City of Long Beach to direct other officials or directly enforce the building codes in a discriminatory manner against the McClures. Thus, the First Amendment is irrelevant. Use of the defendantst statements as evidence of a conspiracy, and of intent to discriminate, does not raise First Amendment issues. CONCLUSION This case illustrates a problem increasingly facing both plaintiffs and Courts of Appeal, to wit, qualified immunity interlocutory appeals, no matter how frivolous. Manhattan Beach Police Officers Assn. Inc. v. City of Manhattan Beach. 881 F.2d 816, 817 (9th Cir. 1989). The McClures have already suffered inordinate delays. Each claim of qualified immunity should be denied as quickly as possible, so the McClures can finally seek a jury to vindicate their rights. Shirley and Jason MCCLURE, Plaintiffs and Appellees, v. Martin DEANGELO, William Gatoff, Mark Sutton, Harold Liddicoat, Eugene Zeller,•Jeffrey Kellogg and Raymond Grabinski, Defendants and Appellants. 1995 WL 17139712 (C.A.9) END OF DOCUMENT ,4i ® 2007 Thomson/West. No Claim to Or'ig. U.S. Govt. Works. hops://web2:westlaw.comfprintlprintstream.aspx?sv=Split&prf=HTM LE&mt=California&fn=_top... 7/31/2007 GoodBadCorrupt.com City of Long Beach Woman, Son Win Housing Bias Suit A federal jury says Long Beach must pay 522.5 million for blocking their efforts to board Alzheimer's patients. By David Rosenzweig Times Staff Writer August 6, 2004 Deciding a claim of "not -in -my -backyard" discrimination, a federal jury has awarded $22.5 million to a woman and her son who accused the city bf Long Beach of obstructing their efforts to open boarding horres for Alzheimers patients during the early 1990s. Shirley McClure and her son, Jason, charged in their civil rightslawsuit that the city bowed to pressure from residents of the Bixby Hills and California Heights neighborhoods, harassing them with a torrent ofbuilding code citations at six houses being comerted into bearding facilities. As a result, McClure contended, remodeling of the homes came to a hall, banks foreclosed on the propertes and she was ddven'into bankruptcy. She said she alsosuffered a recurrence of ltpus, a nervous breakdown and post -traumatic stress disorder. Long Beach's lawyers argued that tie city was simply enforcing the building code to correct undiputed•violations. About 100 witnesses testified during the trial,which began in September and ended Wednesday after four months of jury deliberations. The McClures' attorney, Barrett Litt, said Thursday that the $22.5-million award was the largest ever imposed in a civil rights suit brought under the federal Fair Housing Act. Ifthe judgment is allowed to stand, McClure will get$20 million. Her son stands to receive $25 million. McClure, 62, was not available for comment, but her lawyer said, "She is very, very happy, This has been an incredible ordeal for her and her son. The team Kafkaesque doesn't begin to describe whatthey went through." Anticipating an appeal by the city, Litt said that McClure "knows that her ordeal is not yet over, but she has cleared the biggest hurdle: She's beenvindicated by the jury's verdict." Long Beach Mayor Beverly O'Neill had no comment on the verdict, but a spokeswoman said the City Council would discuss the case at a closed -door meeting Tuesday with City Arty. Bob Shannon. McClure's conflict with the city began in 1990, when she tried to convert the six properties into residential facilities for Alzheimer's patients. Neighbors objected, complaining thatthe boarding homes would drive down property values. Among the thousands of docunents Litt was able to obtain in discovery from the city was amemo written by a councilman's tide in response to one resident's complairL The memo said the homes did not violate any zoning ordinance, so "we're trying to cite themon building code violations," Litt said. The next day, he said, building inspectors were "all over" McClures properties. Instead of following the customary practice of allowing work to continue on unaffected parts of the remodeling projects, the city ordered all work to cease, the attorney said. Lilt said the city also got the Fire Department to reverse itself and withdraw its approval of the boarding homes. He said the.city contacted the stale agency that licenses board and care facilities, urging that McClure be denied a license. The McClures also were charged with criminal misconduct, bu the city attorney, later dropped prosecution after the banks foreclosed on the properties At trial, Litt argued that the city had enforced the building code selective} to harass the McClures. "I've been practicing civil rights law for many years," Litt said, "arid this is the most extreme case I've ever seen of government conspiring against any one individual." Page 1 LEXSEE 2007 U.S. DIST. LEXIS 12800 NEVADA FAIR HOUSING CENTER, INC., Plaintiff, v. CLARK COUNTY, a po- litical subdivision of the State of Nevada, and BARBARA GINOULIAS, individually and in her capacity as Director of the Department of Comprehensive Planning, De- fendants. 02:05-CV-00948-LRH PAL UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 2007 U.S. Dist LEXIS 12800 February 22, 2007, Decided COUNSEL: [*1] For Nevada Fair Housing Center, Inc., Plaintiff. Christopher Brancart, LEAD ATTORNEY, Brancart & Brancart, Pescadero, CA; David A. Olshan, LEAD ATTORNEY, Las Vegas, NV. For Clark, County Of� Barbara Giuoulias, Defendant: Robert T Warhola, II, LEAD ATTORNEY, Clark County District Attomey's Office, Civil Division, Las Vegas, NV. For State of Nevada, Defendant: C. Wayne Howle, LEAD ATTORNEY, Nevada Attorney General's Of Carson City, NV. For Clark, County Of; Barbara Ginoulias, Counter Claimant: Robert T Warhola, II, LEAD ATTORNEY, Clark County District Attomey's Office, Civil Division, Las Vegas, NV. For Nevada Fair Housing Center, Inc., Counter Defen- dant: Christopher Brancart, LEAD ATTORNEY, Bran - cart & Brancart, Pescadero, CA. . JUDGES: LARRY R. HICKS, UNITED STATES DISTRICT JUDGE. OPINION BY: LARRY R. HICKS OPINION ORDER Presently before the court are cross -motions for summary judgment (# # 29, 30). The parties have filed oppositions (# # 37, 38) and replies (# # 42, 43). Also before the court is Nevada Fair Housing Center's ("NFHC") motion to strike (# 55). Clark County has filed an opposition (# 56). I. Factual Background NFHC brought this action pursuant [*2] to the fed- eral Fair Housing Act, 42 U.S.C. § 3601 et seq., to chal- lenge a provision of the Clark County zoning ordinance. NFHC is a nonprofit Nevada corporation. One specific purpose of NFHC is to promote equal opportunity in the rental of housing and the elimination of all forms of ille- gal housing discrimination. Specific facts relating to the ordinance at issue and the relationship between the par- ties will be discussed below as necessary. H. Legal Standard Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R Chk P. 56(c). In assessing a mo- tion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party op- posing the motion. Matsushita Elea Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed 2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236F.3d 1148, 1154 (9th Cir. 2001). [*3] The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 US. 317, 323, 106 S. Ct. 1548, 91 L. Ed 2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to 2007 U.S. Dist. LEXIS 12800, * -Page 2 hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.1d 254, 259 (6th Or. 1986). See also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (CD.Cal. 2001). For those issues where the moving party will not have the burden of proof at trial, the movant must point out to the court "that there is an absence of evidence to support the nonmoving party's case." Catrett, 477 U.S. at 325. In order to successfully rebut a motion for summary judgment, the non-moving party must point to facts sup- ported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the [*4] suit under the governing law." Anderson v. Liberty Lobby, Ina, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed 2d 202 (1986). Where reasonable minds could differ -on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id, at 252. M Discussion The primary issue that must be decided is whether various provisions of the Clark County Code violate the Fair Housing Act. However, Clark County has presented several defenses including moomess, standing, equitable estoppel, waiver, and res judicata. The court will address these issues first before determining whether the ordi- nance at issue is discriminatory. A. Mootness Clark County, in its reply points and authorities, ar- gues [*5] that NFHC's claims are moot. Specifically, Clark County notes that it has recently enacted a new group home ordinance. "A claim is moot if it has lost its character as a present, live controversy. American Rivers V. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). "A federal court does not have jurisdic- tion 'to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it Id (quoting Church of Scientology, v. United States, 506 U.S 9, 113 S. Ct. 447, 121 L. Ed 2d 313 (1992)). Here, NFHC is seeking, among other things, an award of damages. To the extent NFHC was damaged from the ordinance at issue in this case, it is entitled to seek relief. However, to the extent NFHC is seeking an injunction, _ such relief would be inappropriate in light of the fact -that the allegedly discriminatory ordinance is no longer in place in Clark County. Therefore, the court finds that the present action is not moot. B. Standing Clark County argues that NFHC lacks standing to bring this action. Specifically, Clark County argues that "there is an obvious disconnect between the [*6] alleged discrimination and reason Plaintiff allegedly diverted resources." (Opp'n to Pl.'s Mot. for Partial Summ. Adju- dication (# 37) at 17.) NFHP, on the other hand, argues that the evidence establishes that Clark County's enact- ment of the ordinance.caused injury to NFHC. In determining whether NFHC has standing under the Fair Housing Act, the court must determine whether NFHC has "alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation of fed- eral court jurisdiction Havens Realty Corp. v Coleman, 455 U.S. 363, 378, 102 S. Ct. 1114, 71 L. Ed 2d 214 (1982) (citations and internal quotations omitted). "[A]n organization may satisfy the Article III requirement of injury in fact if it can demonstrate: (1) frustration of its organizational mission; and (2) diversion of its resources to combat the particular housing discrimination in ques- tion." Smith v. Pacific Properties and Development Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). The expense of litigation alone is generally insufficient to constitute a "diversion of resources" under this test. Id NFHC's complaint alleges that it is a nonprofit Ne- vada corporation: "One of NFHC"s specific [*7] pur- poses and goals is the promotion of equal opportunity in the rental of housing and elimination of all forms of ille- gal housing discrimination." (First Am. Compl. (# 4) P 4.) NFHC has presented evidence indicating that it has diverted resources to counteract the alleged discrimina- tory effect of the ordinance. (Pl.'s Mot. for Partial Summ. Adjudication (# 30), Decl. of Gail Burks, Ex. 1 P 18.) According to the declaration of Gail Burks, NFHC has spent time and resources to (1) assist the [several] complainants in their efforts to become informed about and exercise their fair housing rights; (2) investigate, evaluate and determine' the extent to which the County's zoning ordi- nance and enforcement of that ordinance violates the Fair Housing Act; (3) educate and perform outreach to the group lome operators in Clark County to inform them of their fair housing rights; and, (4) pro- tect the fair housing rights of their mem- bers, associates, and constituents from the 2007 U.S. Dist LEXIS 12800, * -Page 3 continued discrimination by defendants based on disability. But for Clark County's discriminatory zoning ordinance, NFHC would not have diverted its re- sources to counteract that discrimination. The resources [*8] spent to perform these services were diverted from programs op- erated by NFHC. Id The court finds these allegations sufficient for pur- poses of standing. NFHC has alleged that the ordinance at issued caused it to devote resources to counteract the alleged discrimination. Such allegations demonstrate an injury beyond that of expenses incurred in the present litigation. C. Equitable Estoppel - Defendants argue that NFHC's claims should be dismissed because of equitable estoppel. Specifically, Defendants argue that NFHC "must have known at the time it completed its Impediments Analysis in 2004 that the Clark County group home ordinance, Ordinance 2771, yiolated the Fair Housing Act, but failed to inform Clark County." (Clark County's Mot for Summ. 1. (# 29) at 26.) NFHC, in opposition, argues that Defendants have failed to establish the elements of a defense of equitable estoppel. - "'Equitable estoppel functions to prevent the asser- tion of legal rights that in equity and good conscience should not be available due to a party's conduct"' In re Harrison Living Trust, 112 P.3d 1058. 1061-62 (Nev. 2005). The Nevada Supreme Court has identified four elements [*9] of equitable estoppel: (I) the party to be estopped must be ap- prised of the true facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting estop- pel has the right to believe it was so in- tended; (3) the party asserting the estoppel must be ignorant of the true state of facts; (4) he must have relied to his detriment on the conduct of the party to be estopped. Id at 1062. With respect to this case, the court must determine whether NFHC's conduct in previously analyzing im- pediments to housing for Clark County should equitably estop NFHC from bringing this action. As part of NFHC's activities, it has provided policy research in the form of an analysis of impediments to fair housing to local jurisdictions. (Pl.'s Opp'n to Defs.' Mot. for Summ. _ J. (# 38), Decl. of Gail Burks P 5.) "An analysis of im- pediments to fair housing is a report of impediments or barriers to fair housing opportunities in the community." Id NFHC previously completed analysis of impediments studies for Clark County in 1995, 1997, and 1998 (re- vised July, 1998). Id P 6. in March, 2004, NFHC also completed a Regional Analysis of Impediments [*10] and Fair Housing Plan. Id P 7. The 1997 impediments Analysis suggested that Clark County "[p]rovide recommendations for the dis- persement of group homes concentrated in low to mod- erate income census tracts." (Exs. to Clark County's Mot. for Summ. J. (# 32), 1997 Fair Housing Impediments Analysis, Ex. B at 2520.) In 1997, Assembly Bill 118 ("A.B. 118") was introduced in the Nevada Legislature. (Exs. to Clark County's Mot for Summ. J. (# 32), Bill Summary.) A.B. 118 required the city or county to re- view an application for a group home if such home would be located within 660 feet of an existing group home. Id On March 26, 1997, Gail Burks ("Burks"), President and CEO of NFHC, wrote a letter to Nevada Assemblywoman Chris Giunchigfiani that stated, in part, "[w]e agree with the concept of A.B. 118 in that it seeks to insure that group homes are disbursed rather than clus- tered in certain areas of town." (Exs. to Clark County's Mot. for Summ. J. (# 32), March 26, 1997 Letter.) On May 1, 1997, Burks wrote a second letter to Assembly- woman Giunchigliani that attached proposed language for defining the concentration of group homes in a neighborhood. (Exs. to Clark County's Mot [*11] for Surnm. J. (# 32), May 1, 1997 Letter.) The letter con- cluded by stating, "[t]he proposed protections offered by AB 118 are sorely needed." Id In support of the present litigation, NFHC has Sled an affidavit of Burks stating that her comments regarding A.B. 118 "did not suggest that a spacing requirement for group homes should be •made part of the bill." (Pl.'s Opp'n to Defs.' Mot. for Summ. J. (# 38), Decl. of Gail Burks P 13.) A.B. 118 was not enacted. However, in 1999 it was reintroduced as Assembly Bill 62 ("A.B. 62"). A.B. 62 was incorporated into Senate bill 391 and passed by the Nevada Legislature. Burks testified in favor of A.B. 62. As part of her testimony, Burks testified that a "spacing requirement can be allowed if a jurisdiction has a legiti- mate purpose for the requirement and if the requirement is not considered 'discriminatory on its face."' (Exs. to Clark County's Mot for Summ. J. (# 32), May 12, 1999, Minutes of the Serrate Committee on Government Affairs at 401.) S.B. 391 amended section 278.021 of the Nevada Revised Statutes. The 1999 legislation provided that "if a subsequent application is submitted to operate an addi- tional residential [*12] facility for groups at a location that is within 660 feet from an existing residential facility r 2007 U.S. Dist LEXIS 12800, * "Page 4 for groups, the governing body shall review the applica- tion based on applicable zoning ordinances." (Exs. to Clark County's Mot. for Summ. J. (# 32), Senate Bill No. 391.) In 2001, the Nevada legislature amended Section 278.021 to mandate that "each governing body shall es- tablish by ordinance a maximum distance between resi- dential establishments that is at least 660 feet but not more than 1,500 feet." (Exs. to Clark County's Mot for Summ. J. (# 32), Assembly Bill No. 395.) In June, 2002, Clark County increased the minimum distance between group homes to 1,500 feet On April 25, 2002, Clark County and NFHC entered into a contract for development and delivery of the analysis of impediments to fair housing and a fair hous- ing plan. (Exs. to Clark County's Mot for Summ. J. (# 32), Contract for Analysis of Impediments to Fair Hous- ing.) State and local governments are required to conduct such an analysis in order to receive certain federal fund- ing. 24 C.F.R § 570.487 et seq. Pursuant to the contract, the analysis "shall be conducted in accordance with the recommendations [*13] set forth in the Fair Housing Planning Guide of the U.S. Department of Housing and Urban Development unless written direction is given otherwise by OWNER." Id at 905. The Fair Housing Planning Guide includes zoning as a subject area for an analysis of impediments. (Exs. to Clark County's Mot. for Summ. J. (# 32), Fair Housing Planning Guide.) The introduction to the Regional Analysis of Im- pediments identified one purpose of the report "to outline past successes and changes in policies ... that affect Fair Housing choice." (Exs. to Clark County's Mot. for Summ. J. (# 32), Regional Analysis of Impediments.) The Regional Analysis of Impediments concluded that Clark County met or exceeded Federal standards in all areas except those that were considered "under develop- ment" (Exs. to Clark County's Mot -for Summ. J. (# 32), Regional Analysis of Impediments.) NFHC has included an affidavit with its motion indicating that the Regional Analysis of Impediments was not "intended to be a com- prehensive review of all local ordinances, activities and programs to guarantee that there have beenlare no ongo- ing violations." (Pl.'s Mot. for Partial Summ. Adjudica- tion (# 30), Decl. of Gail Burks [*14] P 16.) In the case sub judice, the court finds the above summarized evidence insufficient to establish a defense - of equitable estoppel. Although NFHC's Regional Analy- sis of Impediments indicated that Clark County met or exceeded Federal standards, there is no evidence of det- rimental reliance. The evidence shows that Clark County relied on NFHC's analysis to obtain federal funds. How- ever, Defendants have failed to show how such reliance is detrimental. Clark County has indicated that it would have changed its regulations had NFHC identified the _ spacing requirement as an impediment There is no evi- dence in the record to substantiate this position. D. Waiver On April 25, 2002, Clark County and NFHC entered into a contract for development and delivery of the analysis of impediments to fair housing and a fair hous- ing plan. (Exs. to Clark County's Mot. for Summ. J. (# 32), Contract for Analysis of Impediments to Fair Hous- ing.) In that contract, NFHC agreed to "defend, indem- nify, and hold harmless [Clark County] ... from any liabilities, damages, losses, claims, actions or proceed- ings, including, without limitation, reasonable attorneys' fees, that are caused by the negligence, [*15] errors, omissions, recklessness or intentional misconduct of [NFHC] in the performance of this Contract" Id In light of this provision, Clark County argues that NFHC's claims should be dismissed due to waiver. The court finds this provision inapplicable to the case at bar. There are no allegations in this cafe involving any claim that allegedly resulted from the conduct of NFHC in the per- formance of the contract E. Res Judicata In its motion for summary judgment, Clark County argues that NFHC's claims are barred by claim preclu- sion and issue preclusion. In 2001, Clark County filed a declaratory action against several group home operators, including NFHC. On November 19, 2001, NFHC was dismissed from the case, before appearing, following a request from Clark County. On July 26, 2002, Clark County obtained a default judgment against the remain- ing defendants in the case who had failed to appear. In that order, the Nevada judge determined that neither the Nevada Revised Statutes nor the Fair Housing Act pro- hibit the Clark County Ordinance. "Res Judicata 'prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless [*16] of whether they were as- serted or determined in the prior proceedings."' Granite Constr. Co. v. Allis-Chalmers Corp., 648 F.Supp. 519, 521 (D. Nev. 1986) (Quoting Brown v. Felsen, 442 U.S. 127, 131, 99 S. Ct. 2205, 60 L. Ed 2d 767 (1979)). Res Judicata takes on two different forms: claim preclusion and issue preclusion. Executive Mgmt., Ltd v. Ticor Title Co., 114 Nev. 823, 963 A2d 465, 473 (Nev. 1998). "Pursuant to the rule of claim preclusion, '[a] valid and final judgment on a claim precludes a second action on that claim or any part of it"' Id. (citing University of Nevada v. Tarkanian, 110 Nev. 581, 879 P.2d 1180, 1191 (Nev. 1994)). "'Claim preclusion applies when a second suit is brought against the same party on the same 2007 U.S. Dist. LEXIS 12800, * claim."' Id (Quoting In re Medomak Canning, Ill B.R. 371, 373 n.l(Bankr. D. Me. 1990)). The doctrine pre- vents relitigation of both those issues actually decided and those issues that could have been decided. Id With respect to issue preclusion, "if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties. [*17] " Id (cita- tions and internal quotations omitted). Issue preclusion only applies to matters that were actually decided. Id The applicable test for issue preclusion is as follows: (1) the issue decided in the prior litiga- tion must be identical to the ,issue pre- sented in the current action; (2) the initial ruling must have been on the merits and have become final; and (3) the party against whom the judgment is asserted must have been a party or in privity with a party to the prior litigation. Fkecuttve Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 963 P.2d 465 (Nev. 1998). Here, the court finds that this action is not barred by either issue preclusion or claim preclusion. It is undis- puted that NFHC was not a party to the state court judg- ment. Furthermore, there is no evidence that NFHC was in privity with any party to the state court proceeding or had a relationship of substantial identity with a party to those proceedings. See Paradise Palms CommunityAssn v. Paradise Homes, 89 Nev. 27, 505 P.2d 596, 599 (Nev. 1973) (With respect to claim preclusion, "[a] privy is one who, after rendition of the judgment, has acquired an interest in the subject [*181 matter affected by the judg- ment through or under one of the parties, as by inheri- tance, succession, or purchase."). F. Clark County's New Ordinance As previously mentioned, Clark County has recently enacted a new group home ordinance. Clark County is seeking summary judgment on its Counter -Claim for a judgment declaring the new group home regulations in compliance with the Fair Housing Act. However, at this time, Clark County has not demonstrated an actual con- troversy relating to the recently enacted ordinance that would warrant declaratory relief. G. Clark County's Group Home Ordinance NFHC is seeking partial summary adjudication argu- ing that the Clark County group home ordinance is fa- cially discriminatory because "it provides that six non - disabled, unrelated adults may live together at any loda- Page 5 tion without acquiring any permit, while no group of three to six disabled, unrelated adults may live together within 1500 feet of an existing group home without ob- taining a special use permit." (Pl.'s Mot. for Partial Summ. Adjudication (# 30) at 10.) Therefore, according to NFHC, groups of three to six disabled, unrelated adults are treated differently by the terms [*19] of the code than groups of three to six non -disabled, unrelated adults. As a result, NFHC. argues that the ordinance vio- lates 42 U.S.C. §§ 3604(n(1) and 3604(c). Defendants Clark County and Barbara Ginoulias ("Defendants") op- pose NFHC's motion arguing that NFHC misinterprets the county ordinance at issue. Alternatively, Defendants argue that a legitimate non-discriminatory reason exists for Clark County's group home regulations. In addition, Defendants argue that NFHC lacks standing to assert a discrimination claim. Pursuant to Section 278.021(4) of the Nevada Re- vised Statutes, a county whose population is 100,000 or more is required to "establish by ordinance a minimum distance between residential establishments that is at least 660 feet but not more than 1,500 feet." Nev. Rev. Stat. § 278.021(4). A "residential establishment" is de- fined as "a home for individual residential care in a county whose population is 100,000 or more, a halfway house for recovering alcohol and drag abusers or a resi- dential facility for groups." Nev. Rev. Stat. § 278.021(7)(d). [*20] on -January 17, 2001, Clark County enacted zoning restrictions on the location of group homes. At the time relevant to this litigation, Section 30.44.020 of the Clark County Code provided that a group home "[m]ust maintain a minimum separation of 1500 feet (measilred radially) from any existing group home.. . (See NRS 278.021). If a special use permit is submitted to waive this standard, the Commission or Board shall approve the use permit if' several requirements are met. Clark County Code § 30.44.020. Section 4 of the group home ordinance provides that group homes "[m]ust be licensed or certified by the Nevada State Department of Human Resources prior to commencing the use if re- quired. A business license and/or building permit may be issued prior to state approval." Id. Section 30.08.030 defines group home as, a dwelling unit in which more than two disabled adults (unless the disabled adults are related within the third degree of con- sanguinity) reside, which may include house parents or guardians and persons related to the house parents or guardians within the third degree of consanguinity, who need not be related to any of the dis- abled [*21] adults. 'Page 6 2007 U.S. Dist. T.EMS 12800, * Clark County Code § 30.08.030. According to the code, "[d]isabled" means, with respect to a person, a physical or mental impairment that substantially limits one (1) or more of such person's major life activities, having a record of such an impairment and/or be- ing regarded as having such an impair- ment. This term does not include current illegal use or of addiction to a controlled substance (see "Family"). Id The Clark County Code Ruther states that, "[i]n no case shall more than six adults occupy a dwelling." Clark County Code § 30.56.130. However, "[t]he Commission or Board may consider increasing the occupancy stan- dards for handicapped adults with the approval of a spe- cial use permit, subject to the standards listed in Table 30.44-1 for group homes. Id Section 3 of the group home ordinance discusses the occupancy standard and provides, "there will'be adequate parking based on the number of occupants physically or mentally capable of operating an automobile as well as automobiles expected to be utilized by staff regularly managing or serving the occupants." Clark County Code § 30.44.020. The Fair Housing Act provides, in part, [*221 it shall be unlawful... [t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of -- (A) that buyer or renter, (b) a person re- siding in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associ- ated with that buyer or renter. 42 U.S.C. § 3604(f)(1). Section 3604(c) provides, it shall be unlawful... [t]o make, print, or publish or cause to be made, printed, or published any notice, statement, or adver- tisement, with respect to the sale or rental of a dwelling that indicates any prefer- ence, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an in- tention to make any such preference, limi- tation, or discrimination. 42 U.S.C. § 3604(c). The act defines "handicap" to mean with respect to a person - (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, [*231 but such term does not include current, illegal use of or addiction to a controlled sub- stance. 42 U.S.C. § 3602(h). In the present motion, NFHC is making a facial challenge to the Clark County ordinance. A facially dis- criminatory policy is one which on its face applies less favorably to a protected group." Community House, Inc. v. City of Boise, Idaho, 468 F.3d 1118, 1123 (9th Cir. 2006) (citing Frank v. United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 2000)). "With regard to facially dis- criminatory housing policies.... 'a plaintiff makes -out a prima facie case of intentional discrimination under the [Fair Housing Act] merely by showing that a protected group has been subjected to explicitly differential-i.e. discriminatory -treatment."' Id at 1125 (citing Bangerter v. Orem City Corp., 46 FM 1491, 1501 n.16 (10th Cir. 1995)). To allow the circumstance of facial discrimina- tion .... a defendant must show either: ,(l) that the re- striction benefits the protected class or (2) that it re- sponds to legitimate safety concerns raised by the indi- viduals affected, rather than being based on stereotypes. [*24] " Id (citations omitted). In the case at bar, the court finds that Clark County's group home ordinance is facially discriminatory. The ordinance explicitly discriminates against disabled adults by implementing a spacing requirement that does not apply to similarly situated non -disabled adults. As dis- cussed above, the ordinance defines a "group home" as a dwelling unit in which more than two unrelated disabled adults reside. Clark County Code § 30.08.030. Therefore, the express terms of the group home ordinance prevents more than two unrelated -disabled adults, without a use permit, from living together within 1,500 feet of another dwelling in which more than two other unrelated - disabled adults reside. Clark County Code § 30.44.020. There is no provision, however, that would prevent more than two unrelated non -disabled adults from living within 1,500 feet of a dwelling in which more than two other unrelated non -disabled adults reside. In opposition to the motion, Clark County argues that the ordinance applies only to "group home operators, that is; establishments in the business of providing hous- ing and services to dependent disabled persons." (Clark County's Opp'n to Pl.'s Mot. [*25] for Partial Summ. 2007 U.S. Dist. LEXIS 12800, * Page 7 Adjudication (# 37) at 2.) The court disagrees. Although Section 30.44.020 makes a reference to Section 278.021 of the Nevada Revised Statutes, there is nothing in the ordinance that limits its application to establishments in the business of providing housing and services to de- pendent disabled persons. Moreover, Section 278.021 of the Nevada' Revised Statutes does not define the term "group home" nor does the Clark County ordinance in- corporate any provision of the Nevada Revised Statutes. Similarly, the court finds no support for Clark County's position in either section 3 or 4 of the ordi- nance. Section 4 of the group home ordinance provides that the group home "[m]ust be licensed or certified by the Nevada State Department of Human Resources prior to commencing the use if required" Clark County Code § 30.44.020 (emphasis added).'Thus, section 4 of the ordinance does not mandate the licensing of all group homes. Section 4 only mandates that the group home be licenced or certified "if required." Finally, the court finds that the language of section 3, providing that adequate parking is available for staff [*26] regularly managing or serving the occupants, does not limit the scope of the ordinance to a group home business. There is nothing in Section 4 that requires group homes to employ staff members. See Clark County Code § 30.44.020. Because the ordinance at issue is facially discrimina- tory, summary judgement is appropriate unless Clark County can show that the restriction benefits the disabled or that it responds to legitimate safety concerns raised by the individuals affected. Community House, Inc., 468 F.3d at 1125. Clark County argues that the spacing re- quirement is justified in order to comply with the man- date of the state of Nevada. In addition, Clark County argues that the group home ordinance promotes the goel of preventing the clustering of group homes in certain areas. The court finds neither justification sufficient to show that the ordinance benefits the disabled or that it responds to a legitimate safety concern. With respect to the Nevada mandate, the court notes that the issue of whether Section 278.021 of the Nevada Revised Statutes complies with the Fair Housing Act is not before the court. Nevertheless, the Clark County [*27] Ordinance does not track the language of Section 278.021. In fact, Section 278.021 does not refer to the term "group home." Nev. Rev. Stat. § 278.021. Moreover, Section 278.021 does not require Clark County to treat more than two unrelated disabled adults living together differently from more than two unrelated non -disabled adults living together. Finally, Clark County has not pre- sented evidence that its ordinance promotes deinstitu- - tionalization. H NFHC's Request for Judicial Notice NFHC has filed a request for judicial notice of a Clark County ordinance, Clark County Code, and sec- tions of the Nevada Revised Statutes. Rule 201 of the Federal Rules of Evidence provides for judicial notice of adjudicative facts. Fed R Evid 201. "A judicially no- ticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territo- rial jurisdiction of the trial court or (2) capable of accu- rate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed R Evid 201(b). While the [*28] court appreciates courtesy cop- ies of the ordinance at issue, "the manner in which law is fed into the judicial process is never a proper concern of the rules of evidence but rather the rules of procedure." Fed. R Evid 201 advisory committee's note. Therefore, NFHC's request is denied. Nevertheless, the court will determine and apply the applicable law relevant to this case. IV. Conclusion Based on the foregoing discussion, the Clark County Code provisions at issue in this case violate the Fair Housing Act by discriminating against individuals with disabilities. IT IS THEREFORE ORDERED that NFHC's Mo- tion for Partial Summary Adjudication (# 30) is hereby GRANTED. IT IS FURTHER ORDERED that Clark County's Motion for Summary Judgment (# 29) is hereby DENIED. IT IS FURTHER ORDERED that NFHC's motion to strike (# 55) is hereby DENIED. . IT IS FURTHER ORDERED that the parties shall have thirty (30) days from the date• of this order within which to lodge with the court a proposed written joint pretrial order. IT IS SO ORDERED. DATED this 22<nd> day of February, 2007. LARRY R. HICKS UNITED STATES DISTRICT JUDGE rage t oT i m 77 F.3d 249 77 F.3d 249,64 USLW 2536, 14 A.D.D. 644,7 NDLR P 445 (Cite as: 77 F.3d 249) Oxford House-C v. City of St. Louis C.A.8 (Mo.),1996. United States Court of Appeals,Eighth Circuit. OXFORD HOUSE-C, an unincorporated association; Oxford House, Inc., a Delaware not -for -profit corporation; Oxford House-W, an unincorporated association; Missouri Department of Mental Health, Division of Alcohol & Drug Abuse; Missouri Department of Mental Health, Plaintiffs -Appellees, . v. CITY OF ST. LOUIS, a Body Corporate, Defendant -Appellant Missouri Municipal League; City of Columbia, Missouri; City of Clayton, Missouri; The National Fair Housing Alliance; The Judge David L. Bazelon Center for Mental Health Law; United States of America; American Civil Liberties Union, of Eastern Missouri, Amicus Curiae. OXFORD HOUSE-C; an unincorporated association; Oxford House, Inc., a Delaware not -for -profit corporation; Oxford House-W, an unincorporated association; Missouri Department of Mental Health, Division of Alcohol & Drug Abuse; Missouri Department of Mental Health, Plaintiffs -Appellees, V. CITY OF ST. LOUIS, a Body Corporate, Defendant -Appellant Nos.94-1600,94-3073. Submitted Sept. 12, 1995. Decided Feb. 23, 1996. Groups homes brought handicap discrimination suit alleging that city violated federal Fair Housing Act and Rehabilitation Act by enforcing zoning ordinance limiting number of unrelated residents to eight. The United States District Court for the Eastern District of Missouri, Catherine D. Perry, J., 843 F.Supp. 1556, issued injunction prohibiting enforcement of zoning restriction, 'denied city's Page 1 counterclaim, and awarded attorney fees and costs to group homes. City appealed. The Court of Appeals, Fagg, Circuit Judge, .held that: (1) Congress had authority under commerce clause to enact provision of Fair Housing Act prohibiting handicap discrimination; (2) zoning restrictions were not exempt from Fair Housing Act; (3) eight -person restriction was valid under Fair Housing Act; (4) refusal of group homes to seek variance precluded claim for failure to accommodate; and (5) group homes failed to show Rehabilitation Act violation. Reversed in part, vacated in part, and remanded. West Headnotes 11] Civil Rights 78 C�1005 - 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1005 k. Power to Enact and Validity. Most Cited Cases (Formerly 78k103) Commerce 83 a82.20 83 Commerce 83H Application to Particular Subjects and Methods of Regulation 8311(K) Miscellaneous Subjects and Regulations 83k82.20 k. Subjects and Regulations in General. Most Cited Cases Congress had authority under Commerce Clause to prohibit handicap discrimination in amendment to Fair Housing Act; rational basis existed for deciding that housing discrimination against handicapped has substantial effect on interstate commerce. U.S.C.A. Const. Art. 1, § 8, cl. 3; Civil Rights Act of 1968, §§ 801-901„ as amended; 42 U.S.C.A. §§ 3601-3631. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 rayc 77 F.3d 249 77 F.3d 249, 64 USLW 2536, 14 A.D.D. 644, 7 NDLR P 445 (Cite as: 77 F.3d 249) [2] Civil Rights 78 C�1083 78 Civil Rights 781 Rights Protected and Discrimination ,Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) Fair Housing Act applied to provision of city zoning code defining single-family dwelling to include group homes of eight or fewer unrelated handicapped individuals, given that limit was designed to promote family ' character of neighborhood; exemption applies only to total occupancy limits intended to prevent overcrowding in living quarters. Civil Rights Act of 1968, § 807(b)(1), as amended, 42 U.S.CA. § 3607(b)(1). . [3] Civil Rights 78 C=1083 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k]074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) Handicap discrimination prohibitions of Fair Housing Act prohibit municipality from making dwelling unavailable to handicapped people on basis of handicap and requires municipality to make reasonable accommodations in zoning ordinance to give handicapped person equal opportunity to use and enjoy dwelling. Civil Rights Act of 1968, § 804(f)(1), (f)(3)(B), as amended, 42 U.S.C.A. § 3604(f)(1), (f)(3)(B). [4] Civil Rights 78 C�1085 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1085 k. Interference, Coercion, or Intimidation; Retaliation. Most Cited Cases (Formerly 78kl31) Handicap discrimination. prohibitions of Fair Housing Act prohibit municipalities from Page 2 interfering with handicapped individuals' exercise of equal housing rights. Civil Rights Act of 1968, § 818, as amended, 42 U.S.C.A. § 3617. [5] Civil Rights 78 C:-1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) City zoning restriction limiting group homes to more than eight unrelated residents was rational and did not violate Fair Housing Act's prohibitions on handicapped discrimination; city' had legitimate interest in. decreasing congestion, traffic, and noise in residential areas, and restricting number of unrelated persons who may occupy single-family residence was reasonably related to those legitimate goals. Civil Rights Act of 1968, § 804(f)(1), as amended, 42 U.S.CA. §-3604(i)(1). [61 Civil Rights 78 C�1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78kl31) Finding that city discriminated against group homes by singling them out for zoning inspections and enforcement proceedings based on residents' handicapped status, allegedly in violation of Fair Housing Act, was clearly erroneous in absence of showing that city ignored zoning violations by nonhandicapped persons, regardless of whether city officials harbored prejudice or unfounded fears about residents. Civil Rights Act of 1968, § 804(f)(1), as amended, 42 U.S.CA. § 3604(f)(1). [71 Civil Rights 78 OD�1318 78 Civil Rights 78M Federal Remedies in General 78k1314 Adequacy, Availability, and ® 2007 Thomson/West No Claim to Orig. U.S. Govt Works. https://web2.westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 rays -t Ui 77 F.3d 249 77 F.3d 249, 64 USLW 2536, 14 A.D.D. 644, 7 NDLR P 445 (Cite as: 77 F.3d 249) Exhaustion of State or Local Remedies 78kl318 k. Property and Housing. Most Cited Cases (Formerly 78k209) , Group homes were required to apply to city board of adjustments for variance before claiming that city failed to accommodate homes as required by Fair Housing Act by enforcing zoning ordinance prohibiting group homes from having more than eight unrelated residents; group homes must give city a chance to accommodate them through established procedures for adjusting zoning code. Civil Rights Act of 1968, § 804(f)(3)(13), as amended, 42 U.S.C.A. § 3604(t)(3)(B). [8] Civil Rights 78 fa1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) Enforcing eight -person group home limit in zoning ordinance did not violate Rehabilitation Act, absent showing that number of group home residents was limited solely by reason of their disability and that residents requested exemption to eight -person limit. Rehabilitation Act of 1973, § 504(a), 29 U.S.C.A. § 794(a). *250 Appeals from the United States District Court for the Eastern District of Missouri; Catherine Perry , Judge. James J. Wilson, St.. Louis, Missouri, argued (Ronnie L. White, City Counselor, Julian L. Bush, Asso. City Counselor and Michael A. Garvin, Asst. City Counselor, on the brief), for appellant. Ann B. Lever, St. Louis, Missouri, argued (Susan A. Alverson and Herbert A. Eastman, St. Louis, Missouri, and Barbara J. Wood and Jeremiah W. (Jay) Nixon, Attorney General of Missouri, Jefferson City, Missouri, on the brief), for appellees. Marie K. McElderry, Washington, DC, argued Edward L. Dowd, Jr., United States Attorney, Deval L. Patrick and David K. Flynn, Washington, DC, on Page 3 the brief), for amicus curiae. Before'FAGG, HENLEY, and HANSEN, Circuit Judges. FAGG, Circuit Judge. In this handicap discrimination case, we consider whether the City of St. Louis violated the Federal Fair Housing Act and Rehabilitation Act by enforcing the City's zoning code to limit the number of residents in two group homes for recovering substance abusers. We conclude the City acted lawfully. Oxford House-C and Oxford House-W are self-supporting, self-governing group ,homes for recovering alcoholics and drug addicts in the City of St. Louis. The Oxford Houses provide a family -like atmosphere in which *251 the residents support and encourage each other to remain clean and sober, and immediately expel any resident who uses drugs or alcohol. The Missouri Department of Mental Health, Division of Alcohol and Drug Abuse (DMH/ADA), helped establish -the Oxford Houses and provides them with technical support The houses also receive assistance from Oxford House, Inc., • a national organization of Oxford Houses across the country. Oxford House-C and Oxford House-W are located in St. Louis neighborhoods zoned for single family dwellings. The city zoning code's definition of single family dwelling includes group homes with eight or fewer unrelated handicapped residents. St. Louis, Mo., Rev.Code tit. 26, § 26.20.020(A)(1) (1994). After city inspections revealed that more than eight recovering men were living at each Oxford House, the City cited the houses for violating the eight -person limit. Rather than applying for a variance excepting them from the eight -person rule, the Oxford Houses, the DMMADA, and Oxford House, Inc. (collectively Oxford House) brought this, lawsuit against the City, contending the City's attempt to enforce the rule violated the Fair Housing Act, as amended, 42 U.S.C. §§ 3601-3631 (198$), section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (1994), and other federal laws. The City brought a counterclaim asking the district court to enjoin the ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 1'age 5 of 77 F.3d 249 77 F.3d 249, 64 USLW 2536,14 A.D.D. 644, 7 NDLR P 445 (Cite as: 77 F.3d 249) Oxford Houses from violating the City's ordinances. Holding the City had violated the Fair Housing Act and the Rehabilitation Act by enforcing the eiaht-member limit against the Oxford Houses, the the Oxford Houses from The district court also denied the City's counterclaim. Oxford House-C v. City of St Louis, 843 F.Supp. 1556, 1584 (E.D.Mo.1994). The City appeals. We reverse the judgment for Oxford House, vacate the injunction, and remand the counterclaim for further consideration. [1][2] We first review the district courts decision that the City violated the Fair Housing Act Attempting to avoid the Act's requirements altogether, the City contends Congress exceeded its authority under the Commerce Clause by prohibiting handicap discrimination in the 1988 amendments to the Act. We disagree. Congress had a rational basis for deciding that housing discrimination against the handicapped, like other forms of housing discrimination, has a substantial effect on interstate commerce. See Morgan v. Secretary ofHous. & Urban Dev., 985 F.2d 1451, 1455 (loth Cir,1993). We also reject the City's contention that under 42 U.S.C. § 3607(bXl), the City's limits on the number of unrelated people who can live together in a single family residential zone are exempt from the Act's requirements. The Supreme Court recently held § 3607(b)(1) only exempts total occupancy limits intended to prevent overcrowding in living quarters, not ordinances like the City's that are designed to promote the family character of a neighborhood. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, ---, 115 S.Ct. 1776, 1779, 131 L.FA2d 801 (1995). In short, the City must comply with the Act. [3][4] The Act prohibits the City from making a dwelling unavailable to handicapped people on the basis of their handicap. 42 U.S.C. § 3604(t)(1). In fact, the Act requires the City to make reasonable accommodations in its generally applicable zoning ordinances when necessary to give a handicapped person "equal opportunity to use and enjoy a dwelling." Id. § 3604(f)(3)(B); Smith & Lea Page 4 Assocs., Inc. v. City of Taylor, 13 F.3d 920, 924 (6th Cir.1993). The - Act also prohibits the City from interfering with handicapped individuals' exercise of their equal housing rights. 42 U.S.C. § 3617. The City does not contest the district court's conclusion that the Oxford House residents are -handicapped within the meaning of the Fair Housing Act because they are recovering addicts. The issue is whether the City has unlawfully discriminated against, failed to accommodate, and interfered with the housing rights of these handicapped men. [5] Rather than discriminating against Oxford House residents, the City's zoning code favors them on its face. The zoning code allows only three unrelated, nonhandicapped people to reside together in a single *252 family zone, but allows group homes to have up to eight handicapped residents. St. Louis, Mo., Rev.Code, tit. 26, §§ 26.08.160, 26.20.020(A)(1) (1994). Oxford House's own expert witness testified Oxford Houses with eight residents can provide significant therapeutic benefits for their members. The district court nevertheless found the City's zoning ordinances are discriminatory because the eight -person limit would destroy the financial viability of many Oxford Houses, and recovering addicts need this kind of group home. Even if the eight -person rule causes some financial hardship for Oxford Houses, however, the rule does not violate the Fair Housing Act if the City had a rational basis for enacting the rule. Famllystyle of St Paul, Inc. v. City of St. Paul, 923 F.2d 91, 94 (8th Cir.1991). We conclude the eight -person rule is rational. Cities have a legitimate interest in decreasing congestion, traffic, and noise -in residential areas, and ordinances restricting- the number of unrelated people who may occupy a single family residence are reasonably related to these legitimate goals. Village of Belle Terre v. Bomas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed2d 797 (1974). The City does not need to assert a specific reason for choosing eight as the cut-off point, rather than ten or twelve. "[E]very line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function." Id. at 8, 94 ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. hfps://web2.westlaw. com/p rinUp rintstream.aspx?p rft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 rage n or t 77 F.3d 249 77 F.3d 249,64 USLW 2536,14 A.D.D. 644,7 NDLR P 445 (Cite as: 77 F.3d 249) S.Ct. at 1540. We conclude the City's eight -person restriction has a rational basis and thus is valid under the Fair Housing Act Familystyle, 923 F.2d at 94. [6] The district court found the City discriminated against the Oxford Houses by singling them out for zoning inspections and enforcement proceedings because of the residents' handicap. This finding is clearly erroneous because Oxford House did not show the City ignored zoning violations by nonhandicapped people. See Fed.R.Civ.P. 52(a). Although Oxford House presented evidence that the City did not take action against certain groups of more than three unrelated, nonhandicapped people residing together in single family zones, Oxford House did not show that these other groups were not entitled to reside in single family zones based on the zoning code's exception for valid pre-existing uses. See St. Louis, Mo., Rev..Code tit. 26, §§ 26.16.050-.060 (1994). At any rate, Oxford House did not show anyone in the building inspector's office knew of the alleged zoning violations. The parties agree the City never received complaints about the groups Oxford House claims were violating the zoning code. Having concluded Oxford House did not show the City treated the Oxford Houses differently from any other group, we believe the City's enforcement actions were lawful regardless of whether some City dfficials harbor prejudice or unfounded fears about recovering addicts. Because the district court found the City's actions were motivated by bias and stereotypes, however, we will briefly discuss the evidence of discriminatory intent At trial, Oxford House presented testimony that one of the Mayor's assistants stated Oxford Houses might cause flight from the City. Also, when Oxford House's counsel asked the City's Zoning Administrator whether he would want to live next door to an Oxford House, the Zoning Administrator said no and expressed concern about transiency and property values. We do not believe these isolated comments reveal City officials enforced the zoning code against the Oxford Houses because of the residents' handicap, especially considering the Oxford Houses were plainly in violation of a valid zoning rule and City officials have a duty to ensure compliance. Oxford Page 5 House also presented evidence that the inspectors who visited the Oxford Houses were aware of community opposition to the houses and hoped to discover zoning violations. Because the inspectors do not hold policymaking positions, their conduct and remarks tell us little about why City officials decided to take action against the Oxford Houses. Anyway, the district court took the inspectors' actions and comments out of context. Overall, we conclude the district court committed clear error in finding the City enforced the zoning code against the Oxford Houses because the residents are recovering addicts. We find no unlawful discrimination under the Fair Housing Act, either in the eight -person limit or in the City's enforcement activities. *253 [7] Also,.the City did not fail to accommodate the Oxford Houses as the Act requires. See 42 U.S.C. § 3604(f)(3)(B). The Oxford Houses want the City to let them operate with more than eight residents. The City has consistently said it cannot make an exception to the zoning code unless the Oxford Houses apply to the City's Board of Adjustments for a variance, see St Louis, Mo., Rev.Code tit 26, § 26.84.050(D) (1994), and the Oxford Houses refuse to apply. Their refusal is fatal to their reasonable accommodation claim. The Oxford -Houses must give the City a chance to accommodate them through the City's established procedures for adjusting the zoning code. See United States v. Village of Palatine, 37 F.3d 1230, 1233 (7th Cir.1994); Oxford House, Inc, V. City of Vhginfa Beach, 825 F.Supp. 1251, 1261 (E.D.Va.1993). The Fair Housing Act does not " insulate [the Oxford House residents] from legitimate inquiries designed to enable local authorities to make informed decisions on zoning issues." City of Virginia Beach, 825 F.Supp. at 1262. Congress did not intend for the Act to remove handicapped people from the "normal and usual incidents of citizenship, such as participation in the public components of zoning decisions, to the extent that participation is required of all citizens whether or not they are handicapped." Id. In our view, Congress also did not intend the federal courts to act as zoning boards by deciding fact -intensive accommodation issues in the first instance. Id. at 1261. C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 Page 7 of 7 77 F.3d 249 77 F.3d 249, 64 USLW 2536,14 A.D.D. 644, 7 NDLR P 445 (Cite as: 77 F.3d 249) The district court decided the Oxford Houses should not have to apply for variances because the City is certain to deny their applications. See Village of Palatine, 37 F.3d at 1234. Oxford House presented evidence that some neighbors of the Oxford Houses have concerns and complaints about the houses, and that the alderman representing the neighborhoods where the Oxford Houses are located does not want the houses to have more than eight residents. The record shows the Board of Adjustments has granted variances despite opposition, from neighbors and aldermen, however. Having carefully reviewed the record, we conclude the district court committed clear error in finding it would be futile for the -Oxford Houses to apply for variances. Thus, the Oxford Houses must apply if they want the City to accommodate them. We express no opinion about whether the Fair Housing Act would require the City to grant variances for the Oxford Houses if they apply. [8] Because the City did not unlawfully discriminate against the Oxford House residents or refuse to accommodate them, the City did not interfere with the residents' equal housing rights by enforcing the eight -person rule against them, see 42 U.S.C. § 3617 . Further, because the City did not limit the number of Oxford House residents "solely by reason of [their] disability" and the residents did not request an exception to the eight -person Jimit, the City did not violate the Rehabilitation Act. See 29 U.S.C. § 794(a); Luc v. Moore, 43 F.3d 1203, 1206 (8th Cir.1994). Having concluded the City acted lawfully, we remand the City's counterclaim seeking enforcement of its ordinances for further consideration. In conclusion, we reverse the judgment in favor of Oxford House on the Fair Housing Act and Rehabilitation Act claims, vacate the injunction prohibiting the City from enforcing its eight -person zoning restriction against the Oxford Houses, and remand the City's counterclaim. Because Oxford House is no longer a prevailing party, we also reverse the award of fees and costs to Oxford House. 42 U.S.C. § 3613(c)(2). C.A.8 (Mo.),1996. Oxford House-C v. City of St. Louis Page 6 77 F.3d 249, 64 USLW 2536, 14 A:D.D. 644, 7 NDDLR P 445 END OF DOCUMENT ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2..westlaw.comlprinttprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 2 of 14 328 F.3d 532 Page 1 328 F.3d 532,26 NDLR P 19,03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 Fad 532) H Sanghvi v. City of Claremont C.A.9 (Cal.),2003. United States Court of Appeals,Ninth Circuit Smita SADIGHVI; Tarun Sanghvi, Plaintiffs -Appellants, V. CITY OF CLAREMONT, Defendant -Appellee, andSumn Smith; Paul Heid; AIgrid Leiga; Diann Ring; Karen Rosenthal; Glenn D. Southard, Defendants. No. 01-56248. Argued and Submitted Nov. 6, 2002. Filed May 5, 2003. Operators of residential Alzheime?s care facility sued city and city officials under § 1983 and Fair Housing Act (FHA), claiming that alleged acts of retaliation and denial of their request for sewer service for proposed expanded facility violated their oivil rights and discriminated against patients who would reside in expanded facility. After summary judgment was granted on retaliation claim, the United States District Court for the Central District of California, Carlos R. Moreno, J., entered judgment on jury verdict in defendants' favor. Operators appealed. The Court of Appeals, David R. Thompson, Circuit Judge, held that: (1) as a matter of apparent first impression, it is error to charge_ jury.with elements of McDonnell Douglas prima facie case; (2) operators were not entitled either to judgment as a matter of law or to new. trial on FHA claim for discrimination based on disparate treatment; (3) city's refusal to provide sewer connection without annexation did not violate FHA's reasonable accommodation provision; (4) any confusion from inclusion on special jury form of questions incorporating McDonnell Douglas burden -shifting framework was harmless; and (5) AroerrPennmgton doctrine applied to preclude liability of city and city officials on retaliation claims. Affirmed. West Headnotes [1] Federal Courts 170B C�776 170B Federal Courts 170BVIII Courts of Appeals 170BVIE(K) Scope, Standards, and Extent 170BVIII(K)l In General 17013k776 k. Trial De Novo. Most Cited Cases Federal Courts 170E C�801 170B Federal Courts 170BVIH Courts of Appeals 170BVM(K) Scope, Standards, and Extent 170BVIII(K)3 Presumptions 170Bk801 k. Judgment N. O. v. Most Cited Cases Court of Appeals reviews de novo denial of motion for judgment as a matter of law, and will not reverse unless, drawing all reasonable inferences in favor of nonmoving party, it concludes there was no legally sufficient evidentiary basis for a reasonable jury to find in nonmoving parry's favor. Fed.Rules Civ.Proc.Rule 50(a), 28 U.S.C.A. [2] Federal Courts 170B C�825.1 170B Federal Courts 170BVIII Courts of Appeals 170BVM(K) Scope, Standards, and Extent 170BVIH(K)4 Discretion of Lower Court 170Bk825 New Trial or Rehearing 170Bk825.1 k. In General. Most Cited Cases Court of Appeals reviews for abuse of discretion denial of motion for a new trial. [3] Civil Rights 78 4D�1083 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 0 2007 Thomson/West No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/pri ntlprintstream.aspx?p rft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 3 of 14 ) • 328 F.3d 532 328 F.3 d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78k131) To establish a prima facie case of discrimination under Fair Housing Act (FHA) pursuant to McDonnell Douglas framework, based on city's refusal to connect their residential Alzheimer's care facility to city sewer system unless they agreed to annexation, facility operators were required to show that (1) they were member'§ of a protected class, (2) they applied for a city sewer connection and were qualified to receive it, (3) sewer connection was denied despite their being qualified to receive it, and (4) city approved sewer connection for a similarly situated party during time period relatively near when operators were denied their sewer connection. Civil Rights Act of 1968, § 804(f)(2)(B), 42 U.S.CA. § 3604(f)(2)(B). [4] Civil Rights 78 e�1401 78 Civil Rights 781H Federal Remedies in General 78k1400 Presumptions, Inferences, and Burdens of Proof 78kl401 k. In General. Most Cited Cases (Formerly 78k378) Civil Rights 78 a1536 78 Civil Rights 781V Remedies Under Federal Employment Discrimination Statutes r 78kl534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378) McDonnell Douglas inference of discrimination can, but need not, result in an ultimate judgment for plaintiff, in that a prima facie case under McDonnell Douglas is one in which plaintiff has met his immediate burden of production, but not necessarily his ultimate burden of persuasion. Page 2 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 781<131) Evidence that city's engineering department began strictly enforcing policy barring connections with city sewer system for properties outside city's corporate limits, unless property owners agreed to annexation, once department employees were made aware of policy and that city had not subsequently extended sewer service to, properties outside its corporate limits supported inference that operators of residential Alzheimees care facility located outside of city did not qualify to receive sewer connection, and supported finding that city had legitimate, nondiscriminatory reason for refusing sewer connection to operators, who alleged that such refusal constituted disparate treatment discrimination against facility's tenants in violation of Fair Housing Act (FHA). Civil Rights Act of 1968, § 804(f)(2)(B), 42 U.S.C.A. § 3604(f)(2)(B). [61 Civil Rights 78 C�1403 78 Civil Rights 78IH Federal Remedies in General 78k1400 Presumptions, Inferences, and Burdens of Proof 78k1403 k. Property and Housing. Most Cited Cases (Formerly 78k240(3)) Once trial evidence on claim for disparate treatment discrimination under Fair Housing Act (FHA) reached point • at which city .showed that it had legitimate, nondiscriminatory reason for refusing operators' request for city sewer connection to residential Alzheimer's care facility located outside of city, McDonnell Douglas framework for demonstrating discrimination, along with its presumptions and burdens, was no longer relevant, and jury was iequired only to address ultimate question of whether discrimination occurred. Civil Rights Act of 1968, § 804(f)(2)(B), 42 U.S.CA. § 3604(f)(2)(B). [5] Civil Rights 78 C=1083 [7] Civil Rights 78 C�1083 78 Civil Rights Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://webZ.westlaw.com/print/p ri ntstream.aspx?ptft=HTM LE&destination=atp&sv=Sp lit&rs=W... 7/31 /2007 Page 4 of 14 328 F.3d 532 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78kl31) City's refusal, pursuant to city policy, to extend sewer connection to residential Alzheimer's care facility located outside of city, unless facility's operators agreed to annexation, did not violate reasonable accommodation provision of Fair Housing Act (FHA), inasmuch as operators did not show that requested accommodation was required by facility's disabled -residents, rather than one sought for personal benefit bf operators, who wanted sewer connection without annexation to avoid added cost of complying with city's building requirements. Civil Rights Act of 1968, § 804(f)(3)(B), 42 U.S.C.A. § 3604(f)(3)(B). [8] Civil Rights 78 C=1083 78 Civil Rights 781 Rights Protected •and Discrimination Prohibited in General 78k1074 Housing 78k1083 k. Discrimination by Reason of Handicap, Disability, or Illness. Most Cited Cases (Formerly 78kl31) Although, under Fair Dousing Aces (FHA) reasonable accommodation provision, municipality need not be required. to make. fundamental or substantial modifications to accommodate disabled persons, it may be required to make reasonable ones. Civil Rights Act of 1968, § 804(f)(3)(B), 42 U.S.C.A. § 3604(f)(3)(B). [9] Civil Rights 78 C=1434 78 Civil Rights 78HI Federal Remedies in General 78kl433 Instructions 78k1434 k. In General. Most Cited Cases (Formerly 78k245) Civil Rights 78 4D�1556 78 Civil Rights Page 3 781V Remedies Under Federal Employment Discrimination Statutes 78k1556 k. Instructions. Most Cited Cases (Formerly 78k389) It is error, in discrimination actions, to charge jury with elements of McDonnell Douglas prima facie case; instead, district courts should focus fact finders on essential question of whether plaintiff is a victim of intentional discrimination. [10] Federal Courts 170B E�630.1 170B Federal Courts 170BVM Courts of Appeals 170BVM(D) Presentation and Reservation in Lower Court of Grounds of Review 170BVIII(D)2 Objections and Exceptions 170Bk630 Instructions 170Bk630.1 k. In General. Most Cited Cases Plaintiffs waived challenge to jury instruction given by district court when they failed to object to instruction. Fed.Rules Civ.Proc.Rule 51, 28 U.S.C.A. [11] Federal Courts 170B C�633 170B Federal Courts 170BVM Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of Grounds of Review 170BVM(D)2 Objections and Exceptions ' 17013k633 k. Verdict or Findings. Most Cited Cases By failing to make any objection in district court, civil rights plaintiffs waived objection to special jury form to the extent that they argued, on appeal; that special jury form improperly employed McDonnell Douglasburdeh-shifting framework. [12] Federal Courts 170B C=907 170B Federal Courts 170BVM Courts of Appeals 170BVIR(K) Scope, Standards, and Extent 170BVHI(K)6 Harmless Error 170Bk907 k. Submission of Questions or Interrogatories to Jury. Most Cited Cases Any confusion that ' might have resulted from 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https:llweb2.westlaw. comlp ri ntlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 5 of 14 328 F.3d 532 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R 4889 (Cite as: 328 Fad 532) inclusion on special jury form of questions incorporating McDonnell Douglas burden -shifting framework was harmless in action for disability discrimination under Fair Housing Act (FHA), and thus did not warrant reversal, in light of abundant evidence that city's denial of request to extend sewer connection to residential Alzheimer's care facility located outside .of city, unless facility's operators agreed to annexation, was based on reasons other than intentional discrimination against the disabled. Civil Rights Act of 1968, § 804(f)(2, 3),42 U.S.C.A. § 3604(f)(2, 3). 1131 Federal Civil Procedure 170A C�2331 170A Federal Civil Procedure 170AXVI New Trial 170AXVI(B) Grounds 170Ak2331 k. In General. Most Cited Cases Jury's request, during deliberations in action for alleged disability discrimination under Fair Housing Act (FHA), for clarification of question on special jury form which asked whether operators of residential Alzheimer's care facility were "qualified" to receive requested sewer connection from city did not establish that jury was confused by special jury form's incorporation of McDonnell Douglas burden -shifting framework, such that operators were entitled to new trial, inasmuch as jury's request for clarification of term "qualified" reflected a jury focused on threshold issue of whether operators were qualified for denied sewer connection underlying their claim, which was appropriate in light of conflicting evidence. Civil Rights Act of 1968, § 804(f)(2)(B), 42 U.S.C.A. § 3604(f)(2)(B). [141 Civil Rights 78 e:=1374 78 Civil Rights 78111 Federal Remedies in General 78k1372 Privilege or Immunity; Good Faith and probable Cause 78k1374 k. Exercise of Rights. Most Cited Cases (Formerly. 78k131, 78k107(1)) Noerr-Pennington doctrine applied to preclude liability of city and city officials on retaliation claims asserted by operators of residential Page 4 Alzheimer's care facility, which were based on city and officials" efforts in opposing proposed expansion of facility, including lobbying of public officials and filing of action against operators and regional water quality control board. [15] Antitrust and Trade Regulation 29TC ' 905(2) 29T Antitrust and Trade Regulation 29TM Antitrust Exemptions and Defenses 29Tk905 Efforts to Influence Government Action 29Tk905(2) k. Petitioning Government .Most Cited Cases (Formerly 265kl2(16.5)) The "Noerr-Pennington doctrine" immunizes from liability under the Sherman Act two or more persons working together to attempt to persuade the goverment to take particular legislative or executive action, even when such activity would create a restraint of trade. Sherman Act, § 1 et seq., as amended, 15 U.S.C.A. § 1 et seq. [16] Antitrust and Trade Regulation 29TG� 905(2) 29T Antitrust and Trade Regulation 29TM Antitrust Exemptions and Defenses 29Tk905 Efforts to Influence Government Action 29Tk905(2) k. Petitioning Government Most Cited Cases (Formerly 265kl2(16.5)) "Sham" exception to the Noerr-Pennington doctrine applies when a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor, and the application of the Sherman Act would be justified. Sherman Act, § 1 et seq., as ametided, 15 U.S.C.A. § 1 et seq. [171 Civil Rights 78 a1409 78 Civil Rights 78IU Federal Remedies in General 78k1408 Admissibility of Evidence 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2•.westlaw. com/print/p ri ntstream.aspx?prft=HTM LE&desti nation=atp&sv=Split&rs=W... 7/31 /2007 1)4 Page 6 of 94 328 F.3d 532 Page 5 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) - 78k1409 k. In General. Most Cited Cases (Formerly 78k241) Evidence of losses incurred by plaintiffs' closely -held corporation was inadmissible in civil rights action to which corporation was not a party. *534 Frank A. Weiser, Los Angeles, CA, for the plaintiffs -appellants. *535 Gene Tanaka Best Best & Krieger, Riverside, CA, for the defendant -appellee. Appeal from the United States District Court for the Central District of California; Carlos R. Moreno, District Judge, -Presiding, D.C. No. CV-97-07629-CM. Before HALL, THOMPSON and WARDLAW, Circuit Judges. OPINION DAVID R. THOMPSON, Circuit Judge. • Smita and Tarun Sanghvi ("the Sanghvis") wanted to expand their residential Alzheimer's care facility located in an unincorporated area of Los Angeles County ("the County") adjacent to the City of Claremont ("Claremont" or "the City"). To that end they sought to obtain sewer service from the City, xp auung a an against coanec mg aT­— limits to its sewer system unless the property owners agreed to annexation, the City refused to provide the requested service. Additionally, in what the Sanghvis contend were unlawful acts of retaliation, the City took numerous actions opposing the Sanghvis' efforts. to expand their facility,. including instituting legal action against them and lobbying County officials. The Sanghvis contend that the- City's alleged acts of retaliation and the denial of their request for sewer service violated their civil rights and discriminated against handicapped Alzheimer's patients who would reside in their expanded facility. They asserted claims against the City and various City officials (collectively "the City") under 42 U.S.C. § 1983 and the Far Housing Act ("FHA"), 42 U.S.C. § . 3604.mt FNl. Unless otherwise specified, all further references are to Title 42 of the United States Code. Summary judgment proceedings disposed of all claims except the Sanghvis' FHA claims of discrimination based on disparate treatment, and the City's alleged failure to reasonably accommodate the housing needs of the disabled Alzheimer's patients. Those claims were tried to a jury which - returned a verdict in favor of the City. The district court denied the Sanghvis' post -trial motions, and entered judgment in the City's favor. The Sanghvis appeal. They argue that the district court should have granted their motions for judgment as a matter of law or, in the alternative, for a new trial. In support of that argument, they contend they established a prima facie case of discrimination under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and no reasonable jury could have failed to find that the City unlawfully discriminated against, and failed reasonably to accommodate the housing needs of; the Alzheimer's patients. The Sanghvis also argue that the district court erred in its jury instructions and special verdict form, both of which empl6yed the McDonnell Douglas formulation for resolving the discrimination issue. in addition, they challenge the district court's summary judgment in favor of the City on their retaliation claim, which judgment the court granted by relying on the Noerr-Pennington doctrine. Finally, they contend the district court erred in precluding them from presenting evidence of losses sustained by their closely -held corporation, Mountain View Aizhe mer's Center, Inc. ("Mt. View "). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. *536I Motions For fudgineot as a Matter ofLa w and For a New Dial ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https;//web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 t OT "14 328 F.3d 532 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 Fad 532) [1] We review de novo the district court's denial of the Sanghvis' motion for judgment as a matter of law. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002). We will not reverse the district court's denial of that motion unless, drawing all reasonable inferences in favor of the City, we conclude there was "no legally sufficient evidentiary basis for a reasonable jury to find" in the City's favor. Fed.R.Civ.P. 50(a); Reeves v. Sanderson Plumbing Prods., Inc, 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). [2] We review for abuse of discretion the district court's denial of the Sanghvis' motion for a new trial. Pavan, 307 F.3d-at 919 (citation omitted). The Sanghvis challenge that ruling on the ground that the jury's verdict was contrary to the clear weight of the evidence. Having reviewed the record as a whole, we conclude that the district court did not err in denying either motion. A. Discrimination Claim [3] To prevail on their discrimination claim under the FHA, the Sanghvis had to prove that the City discriminated against the facility's tenants-Alzheimees patients -by refusing to connect the Sanghvis' facility to the City sewer system unless the Sanghvis agreed to annexation. 42 U.S.C. § 3604(f)(2)(B) (2000).FN2 In attempting to prove their FHA claim, the Sanghvis presented evidence to establish a prima facie case based on the McDonnell Douglas framework M the elements of which, as applied to this case, are: . FN2. The statute makes it unlawful [t]o discriminate against any person in the terms, conditions, or, privileges of sale'or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of ... a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available.... 42 U.S.C. § 3604(f)(2)(B) (2000). Page 6 FN3. The McDonnell Douglas formula has been extended beyond the Title VH context in which it was first developed. It has been applied to claims brought under the FHA, Age Discrimination in Employment Act ("ADEA" ), and § 1981. See, e.g., Gamble v. City of Escondido, 104 F.3d 300, 305 (9th Cir.1997) (applying the McDonnell Douglas framework to an FHA discrimination claim); Palmer v. United States, 794 F.2d 534, 537 (9th Cir.1986) (applying the McDonnell Douglas framework to an ADEA discrimination claim); Gay v. Waiters' and Dairy Luuchmens Union, Local No. 30 694 F.2d 531, 539 (9th Cir.1982) ,(applying the elements of a McDonnell Douglas prima facie case to a case of . intentional employment discrimination pursuant to § 1981). (1) plaintiff is a member of a protected class; (2) plaintiff applied for a [sewer connection] and was qualified to receive it; (3) the [sewer connection] was denied despite plaintiff being qualified; and (4) defendant approved a [sewer connection] for a similarly situated party during a period relatively near .the time plaintiff was denied its [sewer connection]. Gamble, 104 F.3d at 305 (citations omitted).FI44 FN4. As the Supreme Court has stated, the McDonnell Douglas formula is not to be applied in a "rigid, mechanized, or ritualistic" manner, and there may be cases for which this formulaic showing is not required. See Fumco Constr. Corp. v. Waters, 438 U.S.' 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817. However, there is no dispute that a McDonnell Douglas prima facie showing was required here. [4] The Sanghvis argue that because, on their discrimination claim based on disparate treatment, they made the showing *537 necessary under the McDonnell Douglas formulation to survive C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw. com/p rint/p rintstream.aspx?prft=HTM LE&destination=atp&sv=Sp lit&rs=W... 7/31 /2007 ) 4 rage b Ot 14 328 F.3d 532 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3 810,2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) summary judgment, the district court should have instructed the jury that they had established a prima facie case of discrimination under the FHA. This argument misconstrues the role of the prima facie case in the McDonnell Douglas framework. "A McDonnell Douglas prima facie showing is not the equivalent of factual fmding of discrimination .. Rather, it is simply proof of actions taken ... from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible consideration's." Gay, 694 F.2d at 544 n. 12 (quoting Fumco Cons&: Corp., 438 U.S. at 579-80, 98 S.Ct. 2943) (emphasis and first altemtion in Gay ). Thus, the McDonnell Douglas inference "can but need not result in an ultimate judgment for the plaintiff. In other words, a prima facie case under McDonnell Douglas is one in which the plaintiff has met his immediate burden of production, but not necessarily his ultimate burden of persuasion." Gay, 694 F.2d at 543 n. 10 (citing Tex. Dept of City. Affairs v. Bordine, 450 U.S. 248, 253-56, 101 S.Ct. 1089, 67 L.Ed.2d207 (1981)) (emphasis added). [5] During trial, the City produced evidence that, by requiring the. annexation of property in exchange for a sewer connection, the City could require property owners to conform their properties to the City's general development plan. Although the City • had not enforced its annexation policy before the Sanghvis applied for a sewer connection, City Engineer Craig Bradshaw testified that the reason the City had approved earlier connections without annexation was that theretofore he and other employees in the Engineering Department had been unaware -of the annexation policy. Once the City Manager made the Engineering Department employees aware of the policy, it was strictly enforced. The City has not, since then, extended sewer service to properties outside its corporate limits. This evidence supported an inference that the Sanghvis did not qualify to receive a sewer connection, and it supported a finding that the City had a legitimate, non-discriminatory reason for denying a sewer. connection to the Sangbvis' property. Page 7 [6] When the trial evidence reached this point, "the McDonnell Douglas framework -with its presumptions and burdens -[was] no longer relevant. " St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct.' 2742, 125 L.Ed.2d 407 (1993). Although the Sanghvis' circumstantial evidence established a McDonnell Douglas prima facie case, meeting this burden of production simply petmitteo but did not compel the jury to infer the ultimate fact of discrimination. Id. at 510-11, 113 S.Ct. 2742. The City's burden was to present evidence of a legitimate, nondiscriminatory reason for its actions. Because it did so, it "[did] everything that would be required of [it] if the [Sanghvis] had properly made out a prima facie case." United States Postal Serv. Bd.' of Govemors v. Aiken, 460 U.S. 711, 715, 103 S.CG 1478, 75 L.Ed.2d 403 (1983). At that point in the trial, "the McDonnell Burdiae presumption `drops from the case,' " and the fact finder need only address the ultimate question of discrimination. Id. (quoting Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. 1089). The jury decided that question in favor of the City. Because the jury's verdict was not against the clear weight of the evidence, the district court properly denied the Sanghvis' motions for judgment as a'matter of law and for a new trial on their *538 FHA discrimination claim based on disparate treatment. B. Reasonable Accommodation [7][8], Under the FHA, discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B) (2000). " 'While a• [city]'need not be required to make "fundamental" or "substantial" modifications to accommodate the handicapped, it may be required to make "reasonable" ones.' " City 01 Edmonds v. Wash. State B1dg.Code Council, 18 F.3d 802, 806 (9th Cir.1994) (quoting Alexander V. Cboate, 469 U.S. 287, 300, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)), aOd sub nom. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct 1776, 131 L.Ed.2d 801 (1995) (alterations in Wasb. State). m 2007 Thomson/West No Claim to Orig. U.S. Govt. Works. https://web2•.westlaw. com/p rinttprintstream.aspx?prft=HTM LE&desti nation=atp&sv=Sp lit&rs=W... 7. /31 /2007 rage a or 14 328 F.3d 532 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) The Sanghvis presented no evidence from which the jury could conclude that the requested accommodation was an accommodation required by the Alzheimer's patients. It was an accommodation sought by the Sanghvis for their personal benefit. They wanted a sewer hook-up without annexation because they did not want to incur the added cost of complying with the City's building requirements. This was an economic concern of the Sanghvis, not a therapeutic concem of the Alzheimer's patients. See Brandt Y. VEIage of Chebause, 82 F.3d 172, 174-75 (7th Cir.1996). (holding that no grant of a variance from single family zoning was necessary where developer bad not shown that her proposed four -unit complex, of -which two units would be handicapped -accessible, was for therapeutic rather than economic reasons). The Sanghvis' reasonable accommodation claim fails because there was a "legally sufficient basis for a reasonable jury to find" in the City's favor. Fed.R.Civ.P. 50(a). Iuryhastrucdons and Special YerdlctForm The Sanghvis argue that the district court erred in its jury instructions, and special verdict form, both of which set out the McDonnell Douglas burden -shifting frameworkP5 Although we have never directly*539 addressed the question of the propriety of the use of the McDonnell Douglas framework in jury instructions and special verdict forms, we have stated that "it is not normally appropriate to introduce the McDonnell Douglas burden -shifting framework to the jury" Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir.2002) (en banc), cent. granted 537 U.S. 1099, 123 S.Ct. 816, 154 L.Ed.2d 766 (2003). FNS. Relying on the McDonnell Douglas formulation, the district court instructed the jury in relevant part: Plaintiffs claim a violation of the Fair Housing Act .for intentional discrimination Page 8 based upon defendants' opposition to the facility before Los Angeles County and the California Regional Water Quality Control Board and defendants' implementation of its sewer policy. For this claim, plaintiffs have the burden of proving each of the following elements by a preponderance of the evidence to establish their prima facie case: 1. Plaintiffs are members of a protected class. 2. Plaintiffs applied for a sewer connection and were qualified to receive it. 3. The sewer connection was denied despite plaintiffs being qualified. 4. Defendants or the other governmental entities approved sewer connections for similarly situated persons during a period relatively near the time plaintiffs were denied its sewer connection. If you should find that plaintiffs failed to prove any of the above listed elements, your verdict should be for the defendant on plaintiffs' claim for violations of the Fair Housing Act based on disparate treatment. If plaintiffs establish their claim of a violation of the Fair Housing Act based on intentional discrimination, defendant must present evidence of some legitimate, nondiscriminatory reason for its actions. If you find that the defendant failed to present evidence of a legitimate, nondiscriminatory reason for its action, your verdict should be for the plaintiffs on the violation of the Fair Housing Act based on disparate treatment. If the defendant articulates a legitimate, nondiscriminatory reason for its actions, plaintiff must • then prove by a preponderance of the evidence that the defendants' reasons for its actions is a mere pretext to discrimination. If the plaintiffs fail to prove by a preponderance of the evidence that the reason asserted by the defendant is a mere pretext to discrimination, your verdict should be for the defendant on the claim of violation of the Fair Housing Act based on disparate treatment. m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/printtprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... 7/31 /2007 328 F.3d 532 Page 9 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.K 4889 (Cite as: 328 F.3d 532) - In reaching this conclusion, you may consider the evidence establishing plaintiffs' prima facie case and all reasonable inferences drawn therefrom on the issue of whether defendants' explanation is pretextual. The special verdict form given to the jury tracked the jury instructions, asking in relevant part: Question No. 1: Did plaintiffs apply for a sewer connection with the defendant for which plaintiffs were qualified to receive? Answer "yes" or "no." If you answer Question No. 1 "no," then go directly to Question No. 6. If you answer Question No. 1 "yes," then answer Question No. 2. Question No. 2: Was the sewer connection denied to plaintiffs despite plaintiffs being qualified for the .connection? Answer "yes" or "no." If you answer Question No. 2 "no," then go directly to Question No. 6. If you answer Question No. 2 "yes", then answer Question No. 3. Question No. 3. Did defendant approve sewer connections for similarly situated parties during a period relatively near the time plaintiffs were denied their sewer connection? Answer "yes" or "no." If you answer Question No. 3 "no," then go directly to Question No. 6. If you answer Question No. 3 "yes," then answer Question No: 4. Question No. 4. Did defendant establish a legitimate, non-discriminatory reason for its denial of the sewer connection? Answers'yes" or "no." If you answer -Question No. 4 "no," place a "Not Applicable" in the answer to Question No. 5 and then go directly to Question No. 6. If you answer Question No. 4 "yes," then answer Question No. 5. Question No. 5.• Have plaintiffs shown by a preponderance of the evidence that defendant's legitimate, non-discriminatory reason for its refusal to connect plaintiffs' facility to the sewer was a pretext to discrimination? Answer "yes" or "no." A majority of our sister circuits concur in this view, although none has found the error substantial enough to warrant reversal. Some decisions criticize any use of the McDonnell Douglas formulation in instructing the jury, emphasizing that the only question that should go to the jury is the ultimate question of discrimination; other circuits condemn the use of legalistic language and the complexities of burden shifting without rejecting the McDonnell Douglas framework outright. See Cabrera v. Jakabovitr, 24 F.3d 372, 380-82 (2d Cir.1994) (holding that, although a jury instruction that included the phrase "prima facie case" and referred to "defendant's 'burden' of produc[tion]" " created a distinct risk of confusing the jury," in certain instances it would be appropriate to instruct the jury on the elements of a prima facie case); Watson v. Southeastem Pa. Transp. Auth., 207 F.3d 207, 221-222 (3d Cir.2000) (holding that, although it is proper "to instruct the jury that it may *540 consider whether the factual predicates necessary to establish the prima facie case have been shown," it is error to instruct the jury on the McDonnell Douglas burden shifting scheme), cern denied 531 U.S. 1147, 121 S.Ct. 1086, 148 L.Ed.2d 961 (2001) ; Mullen v. Princess Anne Vol. Fire Co., 853 F.2d 1130, 1137 (4th Cir.1988) (noting that the "shifting burdens of production of Burdine .... are beyond the function and expertise of the jury" and are "overly complex"); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) ("Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is unnecessary and confusing. Instead, the court should instruct the jury to consider the ultimate question of whether defendant terminated plaintiff because of his age."); Ryther v. KARE 11, 108 F.3d 832, 849-50 (8th Cir.1997) (en banc) (token, J., in Part II.A. of the dissent, which a majority of the court joined) (holding that "the jury need only decide the ultimate issue of intentional discrimination," and usually need not make findings on the prima facie case or whether the defendant's explanation is pretextual); Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (lith Cir.1999) ("We stress that it is ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2-westlaw.com/print/printstream.aspx?p rft=HTMLE&destination=atp&sv=Sp lit&rs=W... 7/3112007 Nage 11 of 14 328 Fad 532 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3 810,2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) unnecessary and inappropriate to instruct the jury on the McDonnell Douglas analysis.").N6 FN6. The First, Seventh, and Tenth Circuits also appear to disapprove of the wholesale adoption of the McDonnell Douglas formulation in jury instructions. See Loeb v. Textron, Inc., 600 F.2d 1003, 1016-18 (1st Cir.1979) (explaining that, while the phrase "prima facie case" and other "legal jargon" need not be read to the jury, whether jury instructions should include. "the four elements of the McDonnell Douglas type prima facie case (properly tailored to the circumstances) and that the employer's reason is a pre -text" will depend upon the evidence presented), disapproved of on other grounds by Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 n. 19, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); Gehring v. Case Corp, 43 F.3d 340, 343 (7th Cir.1994) ("Once the judge finds that the plaintiff has ;Wade the minimum necessary demonstration (the ` prima facie case'),and that the defendant has produced an age -neutral explanation, the burden -shifting apparatus has served its purpose, and the only remaining question -the only question the jury need answer -is whether the plaintiff is a victim of intentional discrimination"); Messina v. Krob1b Traasp. Sys, Inc., 903 F.2d 1306, 1308 (loth Cir.1990) ("The McDonnell Douglas inferences ... are of .little relevance .to the jury."); but see Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 200 (Ist •Cir.1987) ( "[Tjhe district court was correct in using the [McDonnell Douglas ]" framework in the instructions to the jury" because "[i]t is a straightforward way of explaining how to consider whether there is intentional discrimination"), abrogated on other grounds by lacobuccl v. Boulter, 193 F.3d 14, 27 (1st Cir.1999); Lynch v. Belden & Co., 882 F.2d 262, 269 (7th Cir.1989) ('[1]t was proper for the district court to instruct the jury as to the McDonnell DouglasBurdiue formula for Page10 evaluating indirect evidence.... [Such an instruction] accurately informed the jury of the parties' burdens : " (footnote omitted)); Faullwar v. Super Yalu Stores, Inc., 3 F.3d 1419, 1425 & n. 3 (10th Cir.1993) (holding that there was no error in a jury instruction that incorporated the entire McDonnell Douglas formulation because it set forth the proper allocation of proof and directed the jury that age must be the determinative factor in the failure to hire). In contrast, only one circuit has not disparaged the use of the McDonnell Douglas framework in jury instructions. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 167 & n. 9 (6th Cir.1993) (holding that it was not error to "guid[e] the jury through a three -stage order of proof as opposed to instructing solely on the ultimate issue of sex discrimination"). [9] Having considered the views and observations of this and other circuits, we conclude that it is error to charge the jury with the elements of the McDonnell Douglas prima facie case. The technical elements*541 of the .presumptions and shifting burdens have significant potential- to confuse juries. See Costa, 299 F.3d at 855. Moreover, "at [the jury] stage, the framework unnecessarily evades the ultimate question of• discrimination vel non." Id. at 855-56, quoting Aiken, 460 U.S. at 714, 103 S.Ct. 1478. Instead of burdening the jury with the details of a framework designed to allocate burdens and promote the orderly presentation of evidence, district courts should focus the fact finders on the one essential question: whether the plaintiff is a victim of intentional discrimination.N1 Aiken, 460 U.S. at 716, 103 S.Ct. 1478; Gehring, 43 F.3d at 343. FN7. For reference purposes only, see Manual of Modem Civil Jury Instructions for the District Courts of the Ninth Circuit, Instruction•No. 12.1 (2001). [101 In the present case, however, the Sanghvis m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com[printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7131 /2007 rage IG OT I4 328 F.3d 532 Page 11 328 F.3d 532,26 NDLR P 19, 03 Cal. Daily Op. Serv. 3 810,2003 Daily Journal DA.R. 4889 (Cite as: 328 Fad 532) waived their challenge to the instruction the district court gave by failing to object to it. See Fed.R.Civ.P. 51. Moreover, they requested an alternative instruction of their own that incorporated the McDonnell Douglas three -step burden shifting analysis. (11][12] With regard to the special verdict form, the Sanghvis objected in the district court to questions one through five, stating that those questions were likely to confuse the jury on the discrimination and accommodation issues, Their objection, however, did not alert the district court to the McDonnell Douglas issue. In an attempt to raise that issue in this appeal, they recast their objection to the Special verdict form citing Watson, 207 F.3d at 221, for the proposition that "the technical aspects of the MCDonaefiDur &ne burden shifting" framework are confusing. -Because the Sanghvis failed to make this objection in the district court, they waived it insofar as they now contend it was error to employ the McDonnell Douglas framework. They have not waived, however, their contention that the special verdict form was confusing. As to that contention, we conclude that any possible error was harmless. Although questions one through five incorporated elements of the McDonnell Douglas framework, there was abundant evidence that the City denied the sewer connection for reasons other 'than intentional discrimination against the handicapped. Thus, any confusion that may have been engendered by the inclusion of questions modeled on the McDonnell Douglas factors was harmless, and did not constitute reversible error. See Cancellier V. Federated Dept Stores, 672 F.2d 1312, 1316-17 (9th Cir.1982) (citations omitted) (holding that where the record convincingly rebuts any presumption of prejudice, an instruction that does not misstate the law, but is less clear than it ought to be, is harmless). [13] The Sanghvis argue, however, that the jury was in fact confused, as demonstrated by a question the jury submitted to the court during deliberations. The jury asked: "Re: Questions I & 2, what is meant by 'qualified'? Who or what agency qualified [the Sanghvis] for sewer connection?" Answering this question, the court explained: " ' Qualified,' as used in these instructions, means whether Plaintiffs were similarly situated as other persons outside the City who received sewer hook-ups. The City of Claremont was the sole agency which could qualify Plaintiffs for a sewer connection." The Sanghvis do not contend that this explanation was erroneous. Instead, they argue the fact that the jury sought clarification proves the jury was confused, and as a result they are entitled to a new trial. We disagree. *542 The jury's request for clarification of the term "qualified" does not reflect confusion with the special verdict form orwith the court's instructions. Rather, it reflects a jury focused on the threshold issue of whether the Sanghvis qualified for a sewer connection. The courts responsive instruction answered that inquiry. Given the parties' conflicting evidence regarding the existence and application of the City's annexation policy, it was appropriate for the jury to determine, consistent with the district court's explanatory instruction, whether or not the Sanghvis met the threshold requirement of qualifying for a sewer connection. See, e.g., Lynn v. Regents of the Unix. of Cal., 656 •F.2d 1337, 1345 (9th Cir.1981) (recognizing that "it should make little difference to the outcome" whether the defendant's evidence was analyzed at step one, to determine whether the plaintiff was qualified to receive tenure or at step two, to determine whether the defendant bad a legitimate, nondiscriminatory reason for denying tenure). Moreover, regardless whether the jury determined, as it did, that the Sanghvis were not qualified to receive the sewer connection or, as- it could have, that the City had a legitimate, nondiscriminatory reason for denying the connection, the -weight of the evidence simply does not support a conclusion that the sewer connection was denied based on impermissible discrimination against the handicapped. Neither the courPs jury instructions nor the special verdict form require reversal in this case. n SummaryJudgment-The Retaliation Claim ® 2007 Thomson/West. No Claim to Orig. U.S. Govt Works. https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split&rs=W... •7/31/2007 rage '13 OT -14 )A 328 F.3d 532 328 F.3d 532,26 NDLRP 19,03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) [14] Relying upon the NoerrPennington doctrine, the district court granted summary judgment in favor of the City on the Sanghvis' retaliation claims. We affirm that judgment. [15] The Noerr-Penniogton doctrine, first enunciated in Pastem Railroad Presidents Conference V. Noerr Motor Freight Inc., 365 U.S. 127, 81 S.CL 523, 5 L.Ed2d 464 (1961), immunizes from liability under the Sherman Act two or more persons working together to attempt to persuade the government to take particular legislative or executive action, even when such activity would create a restraint of trade. Id. at 136, 81 S.Ct 523. This exception is grounded in our democratic form of government: The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors. Id. at 139, 81 S.Ct. 523. In Manistee Town Center v. City of Glendale, we extended this immunity to petitioning activity by a municipality and its officials. 227 F.3d 1090, 1093-94 (9th Cir.2000). There, a municipality and its officials lobbied to prevent particular tenants from leasing space in the plaintiff's shopping center, preferring that the space be rented to a large commercial retailer instead of public entities. Id. at 1091-92. The lobbying efforts included writing letters to nearby residents, urging the local press to print articles, and lobbying County officials. Id. at 1092. We -determined that extending immmiity to the municipality and its officials was consistent with the representative democracy rationale of the Noetr-Pennington doctrine, reasoning that "[t]his kind of petitioning may be nearly as vital to the functioning of a modem*543 representative democracy as petitioning that originates with private citizens." Id. at 1093. The district court correctly applied Manistee in granting summary judgment in favor of the City on Page 12 the Sanghvis' retaliation claims. The City and its officials opposed the expansion of the Sanghvis' facility by lobbying other public officials, including state'legislators and members of the County Board of Supervisors and by filing suit against the Sanghvis and the Los Angeles Regional Water Quality Control Board (which had allowed the Sanghvis' .facility to operate with a septic tank during the initial years of its expansion). These petitioning activities fall within the protective ambit of Noerr-Penningtou. [16] The Sanghvis argue we should apply the "sham " exception to the NoerlPieau gton doctrine. We disagree. Tbat exception applies when "a publicity campaign,.ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified." Id. at 1094 (quoting NO= 365 U.S. at 144, 81 S.Ct. 523). There is no evidence in this case to suggest the applicability of the "sham" exception. The district court did not err in granting summary judgment in favor of the City on the Sanghv& retaliation claim by relying on the Noetr-Pennington doctrine. IV Conclusion The jury's verdict in favor of the City was not contrary to the clear weight of the evidence. The district court did not err in denying the Sanghvis' motions for judgment as a matter of law and for a new trial. Neither the district coures jury instructions nor its use of the special verdict form require reversal in this case. Summary judgment was properly granted in favor of the City on the Sanghvis' retaliation claim. [17] AFFIRMED,FNs FN8. The Sanghvis' evidence of losses incurred by.Mt. View, their closely -held m 2007 Thomson/West No Claim to Orig. U.S. Govt. Works. hftps://web2.westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31 /2007 Page 14 of 14 M 328 F.3d 532 328 F.3d 532,26 NDLR P 19,03 Cat. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 (Cite as: 328 F.3d 532) corporation, was properly excluded because Mt. View is not a ,party to this action. Erlich Y. Glamor, 418 F.2d 226, 228 (9th Cir.1969). C.A.9 (Cal.),2003. Sanghvi v. City of Claremont 328 F.3d 532, 26 NDLR P 19, 03 Cal. Daily Op. Serv. 3810, 2003 Daily Journal D.A.R. 4889 END OF DOCUMENT ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 13 https://web2,westlaw.com/printlprintstream.aspx?prft=HTM LE&destination=atp&sv=Split&rs=W... 7/31/2007 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 2 May 30, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Senior Planner (949)644-3235 i)alfordCcD-city. newport-beach. ca. us SUBJECT: Group Residential Uses - Code Amendment Initiation ISSUE: Should the City Council adopt a resolution of intent to amend Title 20 (Zoning Code) of the Newport Beach Municipal Code to revise definitions, land use classifications, and regulations relating to group residential uses and short term lodgings? RECOMMENDATION: Adopt Resolution No. 2007- initiating amendments to Title 20 of the Newport Beach Municipal Code. DISCUSSION: On May 22, 2007, the City Council received a report on temporary moratorium on the establishment and operation of new residential uses that are transitory in nature, such as parolee -probationer homes and residential care facilities. The report included a set of changes to current regulations recommended by the City Attorney's Office and their outside counsel (Attachment No. 1). Most of the amendments relate to group residential uses. There are also amendments related to short term lodging. Other possible amendments to short term lodging regulations are in Title 5 of the Municipal Code and go not require initiation or review by the Planning Commission. Amendments to zoning regulations have to be initiated by the adoption of a resolution of intent by either the Planning Commission or the City Council. Once initiated, at least one public hearing on the amendment will be held at the Planning Commission. The Planning Commission findings and recommendations will be reported to the City Council for final consideration. The City Council will need to hold at least one public hearing on the amendment. Should the City Council choose to initiate the amendment, it can be considered by the Planning Commission at their June 21, 2007, meeting. Group Residential Code Amendment Initiation May 30, 2007 Page 2 Environmental Review: None required for the initiation of amendments. Public Notice: None required for the initiation of amendments. Prepared by: Patrick J. Afford Senior Planner Attachments: Submitted by: 1. Memorandum on recommended Zoning Code amendments. 2. Draft resolution of intent ATTACHMENT Memorandum Amendments goldfarb 1300 Clay Street, Ninth Floor i pma n Oakland, California 94612 attorneys 510 836-6336 M David Kroot May 13, 2007 Lee C. Rosenthal Memorandum John T. Nagle Polly V. Marshall Lynn Hutchins To Karen M. Tiedemonn Robin Clauson, City Attorney, City of Newport Beach Thomas H. Webber Aaron Harp, Assistant City Attorney, City of Newport Beach John T. Haygood bianne Jackson McLean From Michelle D. Brewer Polly V. Marshall and Erica Kyle Williams Jennifer K. Bell RE Robert C. Mills Zoning Ordinance Amendments Isabel L. Brown James T. Diamond, Jr. William F. DICamillo On May 22, 2007, the City Council will receive a report on the recent temporary Margaret F. lung moratorium on the establishment and operation of new residential uses that are Heather J. Gould transitory in nature. As part of this report, staff intends to distribute proposed revisions to the Newport Beach Zoning Code concerning group occupancies, and additional Juliet E. Co. revisions concerning short-term lodging permits. This memorandum provides a brief Erica Kyle Williams summary of the draft amendments concerning group occupancies. Amy DeVaudreuil Barbara E. Kautz Luis A. Rodriguez Under the existing ordinance, group residential uses are prohibited in all zones, with the exception of small residential care facilities (housing 6 or fewer persons with disabilities), which are permitted by right in all residential zones, and general residential care facilities (housing 7 or more persons with disabilities), which are permitted in certain residential zones only with a federal exception permit. The proposed amendments continue the general prohibition of group residential uses, and provide more specific and detailed definitions of the facilities which are exempt from this Facsimile prohibition. The proposed amendments also eliminate the federal exception permit 510 836-1035 requirement for larger facilities and replace it with a use permit requirement. A new San Francisco chapter is also added providing procedures for granting requests for reasonable 415 786-6336 accommodations for persons with disabilities, which will also permit group residential occupancies for disabled persons in residential zones in certain instances. Los Angeles 213 627- 6336 The proposed amendments include the following: San Diego 619 239-6336 1. Large Residential Care Facilities - Integral Facilities Goldfarb & Lipman LLP Under the existing code, residential care facilities housing seven or more persons with disabilities are permitted in R-1.5, R-2, and MFR zones with a federal exception 1526\02\442065.2 May 13, 2007 Page 2 permit. The amendments eliminate the federal exception permit and instead require a use permit for such facilities. The proposed amendments also add a new definition of "Integral Facilities" to the Zoning Code, which reads as follows: "Integral facilities" means two or more residential care facilities (small licensed or general) or group residential uses, as defined in 20.05.030, which may or may not be on contiguous parcels of land, that are under the control and management of the same owner, operator, management company or licensee, including affiliates of such entities, and are integral components of the same residential facility, such as by providing housing in one facility and recovery, treatment, meals or other services in another residential facility, or by designating one residential facility to provide recovery, treatment, meals or other services for several residences. Licensed residential care facilities that are eligible to be licensed as a single facility under State law are integral facilities, regardless of the number of licenses actually held. The new integral facilities definition is intended to address the problem of operators claiming to operate small residential care facilities, which are permitted by right in all residential zones, butwho in reality are operating larger facilities because of integrated operations (for example a three unit building which houses what is claimed to be three separate small facilities of six persons each, but in reality is operated as a large facility of 18 persons). A related change in Section 20.010.20(P) prohibits a facility that provides services to residents from offering services to nonresidents. Under the proposed amendments, the City would be able to monitor and control residential care facilities with seven or more occupants, including integral facilities, through the use permit process. 2. Small care residential facilities The amendments change the name of "Residential Care, Limited" to "Residential Care Facilities, Small Licensed" and changed the definition so that it includes only state licensed facilities that are required by State law to be treated as a single housekeeping unit for zoning purposes. The amendments also clarify that if such a facility is part of an "integral facility' (see above for description of integral facility) that serves seven or more persons, it is not classified as a Residential Care Facility, Small Licensed. Small unlicensed group homes for persons with disabilities may also be permitted through the reasonable accommodation process, as explained below. 2 1526\02\442065.2 May 13, 2007 Page 3 3. Parolee -probationer homes The amendments add a new definition of parolee -probationer homes, which includes a residential structure that houses two or more parolee -probationers unrelated by blood, marriage, or legal adoption, in exchange for monetary or non -monetary consideration, and excludes licensed facilities for disabled persons. These facilities are prohibited in all zones as a group residential use. 4. Convalescent homes and hospitals Convalescent homes and hospitals were deleted from the residential districts land use schedule as inappropriate for residential districts. It is our understanding that no such uses currently exist in residential districts in the City 5. Reasonable Accommodation The proposed amendments add a reasonable accommodation chapter that is needed to assist the City in complying with federal and state fair housing laws. The chapter sets forth the City's policy to provide reasonable accommodation in its zoning regulations when needed to provide an individual with a disability an equal opportunity to use and enjoy a residence or avoid discrimination on the basis of disability. The amendments establish a procedure where most requests for reasonable accommodation may be approved, conditionally approved or denied by the Zoning Administrator or other entity that may be considering the accommodation request along with another discretionary permit. In order to balance the privacy and equal opportunity rights of persons with disabilities with the due process rights of neighbors to receive notice, the reasonable accommodation process provides for limited notice of a reasonable accommodation determination to the abutting property owners (including those across the street and/or alley) only after the initial decision is made. The applicant, the abutting neighbors or a member of the Planning Commission may then appeal the initial decision to grant or deny a reasonable accommodation, and a hearing will be held. If the reasonable accommodation is requested as part of another approval, it will be subject to the same notice and hearing procedures as the other approval The proposed reasonable accommodation amendments treat requests for reasonable accommodation for group homes for people with disabilities serving six or fewer people differently. For these smaller group homes, the Zoning Administrator may take ministerial action to approve a reasonable accommodation if certain specified standards are met. These standards are intended to allow the Zoning Administrator to disapprove small unlicensed homes that are operating illegally (for example, operating without a license where a license would be required) or as part of larger integral facilities. Where the legitimate homes are approved by the Zoning Administrator as a ministerial action, no notice or appeal rights are given to abutting neighbors. However, in order to assure 1526\02\442065.2 May 13, 2007 Page 4 the Zoning Administrator applies the standards correctly, a member of the Planning Commission may appeal a ministerial approval if such,member asserts that the Zoning Administrator made a clear error in application of the standards. These provisions are intended to provide reasonable accommodation for people with disabilities in legitimate, properly operated unlicensed homes and to provide equal protection under the law to persons who need to reside in these small unlicensed facilities in order to have equal opportunity to reside in Newport Beach's residential neighborhoods. Finally, these provisions were developed inrecognition of case law that has consistently struck down procedures which expose persons with disabilities to potentially -abusive hearing processes that are not required for other, comparable residential uses for persons without disabilities 6. No separation requirements The proposed amendments do not include separation requirements. Separation requirements are classified by the courts as facially discriminatory. In the 9a' Circuit, facially discriminatory classifications withstand legal challenge only if the restriction benefits the disabled or the restriction responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. We have not located ,.any studies that indicate that separation requirements are necessary to benefit persons .with disabilities, and consequently we conclude that such requirements would violate fair housing laws and would not withstand legal challenge. 7. Amortization of non-conformine uses The proposed amendments do not at this time include new provisions for amortizing existing uses that do not conform to the changed zoning code. Newport Beach already has broad amortization provisions providing for a uniform five year amortization period which we understand are not currently being enforced. Staff is considering a broad revamping of these provisions as a separate action, after the group home zoning code amendments are considered. Revised amortization procedures could require non- conforming uses that now require a use permit to apply for such a permit, and, if denied, the use could then be amortized over a appropriate period of time for various uses, as determined by economic studies. 8. Short term lodeine The proposed amendments include a new Residential Use Classification for Vacation Home Rental described as a "residence or dwelling unit where the complete residential unit, including bedroom(s), kitchen and bath(s), is rented or leased to a person, or group of persons, under a single written or oral rental or lease agreement for a period of 30 days or less." The Vacation Home Rental Use Classification is consistent with and recognizes the use of vacation rentals in the R1.5, R2 and MFR zones and continues the 4 1526102\442065.2 n wrr- May 13, 2007 Page 5 required permitting requirements under the existing rules. Regulations necessary to alleviate any impacts not sufficiently handled by the existing regulations will be addressed in a separate ordinance amending provisions of Chapter 5.95. 1526\02\442065.2 ATTACHMENT 2 Draft resolution of intent RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH INITIATING AN AMENDMENT TO TITLE 20 OF THE NEWPORT BEACH MUNICIPAL CODE TO REVISE DEFINITIONS, LAND USE CLASSIFICATIONS, AND REGULATIONS RELATING TO GROUP RESIDENTIAL USES WHEREAS, Title 20 of the Newport Beach Municipal Code authorizes the City Council to adopt a resolution of intent tor initiate an amendment to the Zoning Code of the City of Newport Beach; and WHEREAS, on May 22, 2007, the City Council received a report on Ordinance No. 2007-8, an interim urgency ordinance that established a temporary moratorium on the establishment and operation of new residential uses that are transitory in nature; and WHEREAS, the report on Ordinance No. 2007-8 recommended the adoption of a set of amendments to the City of Newport Beach Municipal Code that will continue the general prohibition of group residential uses in residential districts and provide more specific and detailed definitions of the facilities that are exempt from this prohibition; WHEREAS, the City Council of the City of Newport Beach desires to revise Municipal Code regulations to address impacts relating to group residential uses. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby initiates an amendment Title 20 of the Newport Beach Municipal Code to revise definitions, land use classifications, and regulations relating to group residential uses. City of Newport Beach City Council Resolution No. _ Paae 2 of 2 This resolution was adopted at a special meeting of the City Council of the City of Newport Beach held on May 30, 2007, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK Attachment 2 ; IN / - - 4-9-Lo- R - Mike Henn From: Kay Mortenson [kay@hausof.com] Sent: Tuesday, June 26, 2007 6:57 PM To: mfhenn527@hotmail.com; mfhenn@verizon.net Cc: Kay Mortenson Subject: Balboa Penin. PointlAction Comm. Report Attachments: Short term rent Itr 6-07a.doc to Short term rent Itr 6-07a,doc ... Mike, Attached is the letter from Ken Drellishak, Sam Aiello, and myself on behalf of the Balboa Peninsula Point Action Committee for a Revised Rental Ordinance. I understand that the agendas are going to Council on July 5 and we need to complete our communications this week. We all want to thank you for offering to take this letter to the City on our behalf. In addition to this attachment I have a printout of the website: surfnsunfamilyfun.com and a zoning map that I will leave for you at the City. Regards, Kay Mortenson June 20, 2007 Councilman Mike Henn City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Reference: City of Newport Beach City Council Staff Report; Agenda Item No. 19, May 22, 2007; "Report on the adoption of an interim urgency ordinance...... and Regulation of Short Term Lodging.Uses." Dear Mr. Henn: The undersigned residents and landlords of Balboa Peninsula Point (BPP) are pleased to submit the following letter in two parts to help the City resolve issues associated with high residential transiency and traffic associated with short-term rentals. In Part 1, we address background/problem statements and offer suggestions for inclusion in the referenced Report that we believe will help reduce some of the most serious problems. In Part 2, we introduce a "Balboa Peninsula Point (G Street to wedge) Action Committee Proposal for a Overlay Zone with one Unified Long -Term Rental Ordinance" that will resolve short term rental problems on BPP. Part 1: Background/Problem Statement and Suggested Changes to the Referenced Report. As residents , we are concerned that short- term rental permits have been issued to individuals and/or businesses which are causing a serious deterioration of the residential character of BPP. BPP is overwhelmingly (96%) zoned R-1 and the new General Plan anticipates further consolidation of the residential character of the community by requiring future down -zoning of the few existing R-2 and MFR parcels (4%). However, egregious abuses of BPP residential character have already been permitted, and we want to stop and/or limit future City and rental agency actions that have resulted in over concentration of short- term renters and related noise, traffic and parking issues. A current example of this is the business identified in the following promotional website: surfnsunfamilyfun.com (see attachment). This website offers 3, 4 or 7 night rentals of specially modified BPP properties which are already permitted by the city and are operating to the detriment of the neighborhood. In one example, a 3,250 sq. ft. triplex at 1532 Miramar has been retrofitted and furnished with beds, bunks and foam slabs to sleep up to 40 renters. One dining room and one living room have been converted to bedrooms and one wall has been opened up to combine two apartments into one. As per web -site; the triplex is booked for family reunions of up to forty people for 3, 4, or 7 nights. The front patio is set up with picnic tables for forty. The high noise level generated by such large group activities is very disruptive to the surrounding neighbors. These renters arrive via personal automobiles into a neighborhood that has limited on - street parking to accommodate these usually large van and/or SUV-class vehicles. Furthermore, a telephone call to contacts at this website indicates that they own up to 6 additional Balboa Peninsula properties and "are continuing to look for more properties in the area." Naturally, we are concerned about this proliferation and the possibility that other similar businesses may plan to duplicate this business model. We request the following list of provisions be added to the referenced document to address issues discussed above. We believe that these suggestions are all consistent with zoning provisions of the Newport Beach City General Plan and the Newport Beach City desire to provide reasonable beach access to as many visitors as feasible: Page 17. Item 2. Current Regulation of Short -Term Lodging Uses. Short-term use for all future rentals should be defined as 7 days to 30 days. There should be NO NEW PERMITS ISSUED FOR LESS THAN 7 DAYS. Page 18, 3. Proposed Regulation of Short -Term Lodging Uses. Section 20.05.030 and 20.10.020 should define the difference between "vacation home rentals" and "short term lodgings". If there is no difference DO NOT ADD an additional use classification for "vacation home rentals". Page 19, Section 5.95.010 Clearly define "guest' with respect to the number allowed under the permits and the allowable period of stay. Page 19, Section 5,95.050 Change to read "not less than 7 days and not more than 30 days." Change fourth dash (-) to say, "LIMIT OVERNIGHT OCCUPANCY TO 2 PERSONS PER BEDROOM ". Eliminate "plus two other persons". Eliminate the clause allowing City to conditionally approve an increase in occupancy. This only gives rise to uncontrollable exceptions. Page 20, New Section 5.95.055. Change this to reflect that permit renewals are each year and inspections every two years. We enthusiastically support other proposed changes to the Short Term Lodging Regulations identified under Item 3 (pages 18-21) of the referenced Report especially pertaining to occupancy limitations, guest limitations, parking controls and annual permit renewal. We stress the need for 7 day minimums. We would also welcome strict code enforcement of rental properties to validate landlord claims regarding available on -site parking and legal bedrooms. We understand that reasonable summer rentals (approx. 18 short-term permits are grandfathered from 2004) and year-round rentals on BPP are permitted and can be consistent with the residential character of the community. Our hope is that commercial exploitation of rental properties can be controlled for the benefit of all residents. Part Two: Balboa Peninsula Point (G-Street to Wedge) Proposal for an Overlay Zone with one Unified Long -Term Rental Ordinance Proposal: WHEREAS the Balboa Peninsula Point (BPP defined in this proposal as "G" street east to the Wedge) is a stable, long-term residential neighborhood of predominately (96%) single-family homes with 605 of the total 630 parcels zoned R-1, and WHEREAS these R-1 neighborhood characteristics in fact already extend to the majority of the sixteen R-2 parcels and nine MFR parcels which are overwhelmingly rented only long term, and WHERE AS the vast majority of the R-2 and MFR owners do not rent short term both by policy and preference, and many live on their properties, WE REQUEST: THAT THE CITY OF NEWPORT BEACH DESIGNATE the Balboa Point area from "G" street to the Wedge as a Overlay Zone with one unified long-term rental ordinance for all R-1, R-2, and MFR parcels with the exception of those short term rental properties that were grandfathered in 2004. New short term rental permits would thereby be eliminated for all parcels from "G" street to the Wedge. This proposal would combine and unify all 630 properties on the Balboa Peninsula Point by including the sixteen R-2 parcels and nine MFR's (total 25) together with the six hundred and five R-1 parcels which are already covered in the existing 2004 long term rental ordinance that has been successfully in place for the last three years. This action would not affect the approx, eighteen short term rental permits "grandfathered" in 2004. This proposal supports the new General Plan and strengthens long established neighborhood characteristics while reducing high residential transiency and negative traffic and parking impacts. Sincerely, The BPP Action Committee for a Revised Rental Ordinance (signatures on file) Sam Aiello, 420 Seville Ave., Owner ------------------------------------------------------------ Ken Drellishak, 2145 E. Ocean Blvd. Owner ---------------------------------------------------- Kay Mortenson, 1530 Miramar Owner/Landlord -------------------------------------------- Terry and Bill Anderson, 1520-1522 Miramar Dr. Owner -------------------------------------- Owner/Landlord------------------------------------------------- Bruce Asper, 1553 Miramar Owner ----------------------------------------------------------- Bob Parker,1552 Miramar Owner/Landlord--------------------------------------------------. Aiko Takamoto, 1565 Miramat Owner--------------------------------------------------------. Sheri Blessing, 1710 Miramar Owner ----------------------------------------------------------- Gary Jabara, 1551 Miramar Owner -------------------------------------------------------------- Phyllis and Mark Fricker, 1569 Miramar Owner ----------------------------------------------- Tom Tobin, 1529 Miramar Owner------------------------------------------------------------------ Thomas and Barbara Peckenpaugh 501 Fernleaf Avenue Corona del Mar, CA 92625 RECEWED By August 21, 2007 PLANNINGDEPARTMENT AUG 2 4 2007 CITY OF NEWPORT BEACH City of Newport Beach Mayor and City Council Planning Commission 3300 Newport Boulevard Newport Beach, CA 92663 Re: Regulating Group Homes Ladies and Gentlemen: We are writing to urgently request that you take immediate steps to strictly regulate and commence eliminating the group homes that are blighting our neighborhoods. We strongly endorse the letters and recommendations sent to you by the West Newport Beach Association, the Lido Isle Community Association, and Balboa Peninsula Point Association. Very truly yours, / 's CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item -No. i May 30, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robin Clauson, City Attorney Ext. 3131, rclauson@citv.newport-beach.ca.us Aaron Harp, Assistant City Attorney Ext. 3131, aharp(a)city.newport-beach.ca.us SUBJECT: INTERIM URGENCY ORDINANCE EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF NEW RESIDENTIAL USES THAT ARE TRANSITORY IN NATURE SUCH AS PAROLEE -PROBATIONER HOMES, SAFE HOUSES, UNLICENSED RESIDENTIAL CARE FACILITIES AND RESIDENTIAL CARE FACILITIES, GENERAL, AS WELL AS THE ISSUANCE OF NEW SHORT-TERM LODGING PERMITS IN ALL'RESIDENTIAL ZONING DISTRICTS OF THE CITY ISSUE: Should the City extend the interim urgency ordinance establishing a temporary moratorium on the establishment and operation' of new residential uses that are transitory in nature as well as the issuance of new short-term lodging permits? RECOMMENDED ACTION: Adopt the attached interim urgency ordinance which extends the temporary moratorium on the establishment and operation of residential uses that are transitory in nature for five (5) months and allows the moratorium on the issuance of new short-term lodging permits to expire on June 8, 2007. BACKGROUND: On April 24, 2007, the City Council adopted Ordinance No. 2007-8 which imposed a moratorium on the establishment and operation of new group residential uses and the issuance of new short-term lodging permits. The City Council adopted Ordinance No. 2007-8 based on information provided by citizens of Newport Beach to staff and at the Intense Residential Occupancy meetings. Specifically, the citizens of Newport Beach expressed significant concerns regarding the impacts that a proliferation of parolee/probationer, transient, group, non-residential, and commercial uses has on the community, including, but not limited to, impacts on traffic and parking, excessive delivery times and durations, the commercial use of public property, commercial and/or institutional services offered in private residences, more frequent trash collection, daily Proposed Interim Urgency Ordinance Regarding Uses in Residential Zoning Districts May 30, 2007 Page 2 arrival of staff who live off -site, loss of affordable rental housing, violation of boarding house and illegal dwelling unit regulations contained in the Municipal Code, obvious business operations in residences, secondhand smoke, use of illegal drugs, and nuisance behaviors such as excessive noise, litter, loud and offensive language and public drunkenness. In addition, the City Council adopted Ordinance No. 2007-8 because the number of vacation rentals in the City, which are regulated by requiring a short-term lodging permit under Chapter 5,95, had increased in recent years. At the time Ordinance No. 2007-8 was adopted, the City had Issued short-term lodging permits for approximately 801 residential units on 527 parcels to use as transient rentals. Most of the short-term lodging permits are issued to owners of residential properties located in Residential Zoning Districts R1.5, R.2, and MFR. The City Council found that a moratorium on the issuance of short-term lodging permits was necessary so that the City could analyze the impacts of these uses and determine whether the current regulations adequately addressed these impacts. Group Residential Uses that are Transitory In Nature After adoption of Ordinance No. 2007-8, Staff distributed questionnaires to determine the impacts caused by group residential uses, to the following areas of the City: • Location One: The 1100 and 1200 blocks of West Balboa and West Bay Avenue and the 1100 block of West Ocean Front; • Location Two: The central portions of the 1800 block of West Ocean Front and West Balboa Blvd.; and Location Three: Portions of the 100 blocks of 38th and one side of 39th Street. Based on responses to the questionnaires, a distinct pattern emerged in Locations One, Two and Three regarding the impact of the group residential uses. Many licensed and unlicensed recovery facilities in those locations appear to be having a daily impact on parking and traffic in the area, either from cars and vans illegally parking in the alleys behind the homes on a daily basis, or from vans and other vehicles stopping in a traffic lane in the street to pick up residents. Based on the personal observations of their neighbors, many of these facilities use their garage spaces for uses other than parking. This appears to result in a dearth of passenger loading areas, and regular short-term Illegal alley parking. i Proposed Interim Urgency Ordinance Regarding Uses in Residential Zoning Districts May 30, 2007 Page 3 The group residential uses were also regularly reported as producing substantially more garbage than the surrounding residential uses, because of the density of the population. One facility is reportedly generating one commercial dumpster pickup daily, and another generates two commercial dumpsters three times per week. Smoking by facility residents of group residential uses was highlighted. In fact, in one questionnaire a respondent reported that "[The residents] all seem to smoke .. . continually and unrelentingly." Since this particular respondent has facilities in close proximity on either side of his house, the smoke entering his house has forced him to leave windows closed that normally would remain open. This situation, as well as litter caused by cigarette butts regularly thrown on their property, was reported by most immediate neighbors of recovery facilities answering the questionnaires. Many not -so - immediate neighbors reported regular cigarette butt litter attributable to the facilities on their property as well. In addition, frequent exposure to loud arguments and verbal exchanges (between residents, and between residents and supervising staff), foul language, and physical altercations between facility residents was also widely reported by those living near residential recovery facilities. In most locations, the most objectionable sustained noise was during the early morning, day and evening hours. With the exception of periodic medical emergency or police calls generated by one recovery facility, the majority (but not all) of recovery facilities were comparatively quiet late at night. The impacts of overconcentration were not addressed in the questionnaire because many were already known, but many residents commented on the problems of overconcentration. One resident in Location One noted that he was surrounded by recovery facilities on all four sides. A resident in Location Three noted that there were six recovery facilities in his immediate vicinity, and only five owner -occupied homes in the 100 block of 39th Street. Residents responding to questionnaires noted that they had informed recovery facility managers regarding these conditions; however, this did not generally result in long-term improvement of the situation. While most (but not all) residents who complained to recovery facility staff or management were told the problem would be addressed, the problem behaviors either continued or were repeated by new residents after a brief period of improvement. A copy of a report discussing the impact of the group residential uses that was prepared by Staff pursuant to Government Code Section 65858 is attached hereto ("Report"). Based on the .impacts associated with group residential uses, the likelihood that new group residential uses will seek to be established in the City prior to the adoption of new regulations, and the need for Planning Commission review of the proposed ordinance modifying the regulation of group residential uses, the City Attorney recommends that the City Council extend the moratorium on the establishment and operation of group residential uses for five (5) months. If the City Council decides to take the Proposed Interim Urgency Ordinance Regarding Uses in Residential Zoning Districts May 30, 2007 Page 4 recommended action, Staff will draft an ordinance that incorporates the City Council's comments on the proposed changes to the short-term lodging regulations contained in the Report, and return to the Planning Commission with a proposed ordinance for review by the Planning Commission at the second Planning Commission meeting in June. The extension of the moratorium on group residential uses will not adversely impact the ability of the disabled to find housing in the City of Newport Beach because the City has a disproportionately high number of licensed and unlicensed residential group uses serving the disabled. Specifically, the City of Newport Beach: • Has 2.63 licensed recovery beds per thousand residents, the highest ratio of any city in Orange County; • Is home to only 2.7 — 2.8% of the total population of Orange County, but is host to approximately 14.6% of all licensed residential beds in the County; and • Has at least 22 licensed residential alcohol and drug treatment and recovery facilities. Those facilities provide a total of 219 licensed residential beds, and are licensed for a total occupancy of 244 individuals. Further, of the 34 cities in Orange County, 18 have no ADP -licensed residential beds at all, and six cities have only one or two licensed residential recovery facilities. Short -Term Lodging Uses As part of the process of determining impacts caused by short-term lodging uses, Staff distributed questionnaires to the same areas referenced above and to the northern portions of Topaz, Agate, and Opal on Balboa Island. In contrast to the responses received related to the group residential uses, the major complaint against renters of short-term occupancies Was late -night noise. A majority of residents on the Balboa Peninsula who addressed short-term rental uses In their questionnaires characterized the renters as groups who came to the beach for a week of partying. Most of these residents also reported that the short-term rentals of these properties were managed by property management or real estate agencies. A number of residents reported that calls to the short-term rentals' property management agencies did not produce any improvement, and that the property management agencies were unresponsive to resident complaints. The quality of the property owner or property manager oversight and responsiveness to neighbor complaints appears to have significant impact on the impacts short-term rentals have in a neighborhood. Proposed Interim Urgency Ordinance Regarding Uses in Residential Zoning Districts May 30, 2007 Page 5 A majority of the residents on Balboa Island who responded to the questionnaires reported that the short-term lodging uses have no negative impact on the surrounding neighborhood. Given the extensive regulation of short term lodging uses that are already in place, that short-term lodging rentals provide alternative visitor accommodations and are supported by Coastal Land Use Plan Section 2.33 and Policy 2.7-3, the limited number of new short-term lodging permits likely to be issued prior to the adoption of new regulations, the ability of the City to change the conditions for short-term lodging permits at any time, the nature of the impacts caused by short-term lodging uses, and the ability of the City Council to make modifications to the substantive regulations in an expedited manner, the City Attorney does not believe the moratorium should be extended for short-term lodging permits. If the City Council decides to take the recommended action, Staff will draft an ordinance that incorporates the City Council's comments on the proposed changes to the short-term lodging regulations contained in the Report, and return to City Council with a proposed ordinance by the second City Council meeting in June. LEGAL STANDARD: Pursuant to Government Code § 65858, the City Council may, after notice pursuant to Government Code Section 65090 and public hearing, extend an interim ordinance adopted pursuant to Government Code Section 65858 by a vote of four -fifths (4/5) majority of the members of the City Council. Further, Section 412 of the City Charter provides that "an emergency measure for preserving the public peace, health, or safety, and containing a statement of the reasons for its urgency, may be introduced and adopted at one and the same meeting if passed by at least five (5) affirmative votes." The maximum time period that the moratorium may be extended is 10 months and 15 days. ENVIRONMENTAL REVIEW: Environmental review is not required under the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly and it prevents changes in the environment pending the completion of the contemplated municipal code review. PUBLIC NOTICE: Public notice was provided in accordance with all applicable laws. Proposed Interim Urgency Ordinance Regarding Uses in Residential Zoning Districts May 30, 2007 Page 6 ALTERNATIVES: Do not adopt the ordinance extending the interim urgency ordinance establishing a temporary moratorium on the establishment and operation of new group residential uses and the issuance of short-term lodging permits. 2. Adopt the ordinance extending the interim urgency ordinance establishing a temporary moratorium on the establishment and operation of group residential uses for up to 10 months and 15 days. 3. Adopt the ordinance extending the interim urgency ordinance establishing a temporary moratorium on the establishment and operation of group residential uses and the issuance of short-term lodging permits for up to 10 months and 15 days. Prepared by: C . ffc.� Aaron Harp, Assistant City Attorney Submi ed R bin Clauson, City Attorney Attachments: May 22, 2007 - Report Ordinance Extending a Temporary Moratorium on the Establishment and Operation of New Group Residential uses that are Transitory in Nature REPORT OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ON THE INTERIM URGENCY ORDINANCE ADOPTING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF NEW RESIDENTIAL USES THAT ARE TRANSITORY IN NATURE SUCH AS PAROLEE -PROBATIONER HOMES, SAFE HOUSES, UNLICENSED RESIDENTIAL CARE FACILITIES AND RESIDENTIAL CARE FACILITIES, GENERAL, AS WELL AS THE ISSUANCE OF NEW SHORT-TERM LODGING PERMITS IN ALL RESIDENTIAL ZONING DISTRICTS OF THE CITY I. Introduction On April 24, 2007 after conducting a noticed public hearing, the City Council of the City of Newport Beach enacted Ordinance No. 2007-8 an interim urgency ordinance adopting a temporary forty-five (45) day moratorium on the establishment and operation of new residential uses that are transitory in nature such as parolee -probationer homes, safe houses, unlicensed residential care facilities and residential care facilities, general, as well as the issuance of new short-term lodging permits in all residential zoning districts of the City. Pursuant to Government Code Section 65858, ten (10) days prior to the expiration of the moratorium, the City Council must issue a written report describing the measures taken to alleviate the condition which led to the adoption of the moratorium. Accordingly, the City has prepared this report in satisfaction of the requirements of Section 65858. II. Background to the Adoption of the Interim Urgency Ordinance A. Group Residential Use Regulations. Prior to March 1997, the City's Zoning Code did not address group residential uses in residential districts. There were few definitions and regulations that could be directly applied to uses of this type. In 1997, the City introduced Zoning Code amendments which adopted a comprehensive land use classification system. This included classifications intended to address the state preemptions on City regulation of residential care facilities and group homes. Residential Care, General and Limited and Group Residential classifications were added to the Zoning Code, and a use permit requirement was established for Residential Care, General uses. Group Residential uses were prohibited in all residential zones. In October, 2004, the City again updated its Zoning Code in an attempt to improve City restrictions on residential care facilities and reflect changes in the federal case law affecting cities' ability to regulate these facilities. After a nine - month period of public hearings and input from many residents of Newport Beach and local recovery facility operators, the Zoning Code was revised to prohibit Residential Care, General facilities from locating in any R-1 district. The 1 amendment also replaced the use permit process with a Federal Exception Permit (FEP) process for Residential Care, General and established a definition of the term "campus," B. Short-term Lodging Regulations. Prior to 1992, the City's Municipal Code did not address short-term lodging uses. in 1992, the City Council first adopted the Short-term Lodging Ordinance which added Chapter 5.95 to the Municipal Code. Chapter 5.95 was added to the Municipal Code in an effort to regulate the long-standing practice of many property owners to rent dwelling units on a weekly basis In the summer and on a monthly basis for the remainder of the year. From 1992 to 2004, most of the short-term lodging permits were issued for dwelling units in the R1.5, R-2 and MFR zones which are residential uses with relatively high densities. In 2004, staff became concerned that the issuance of permits for dwelling units in R-1 zones could change the character of those neighborhoods. Based thereon, the City Council adopted an ordinance amending Chapter 5.95 to prohibit the issuance of new permits subsequent to June 1, 2004 for dwelling units in areas zoned R-1 or the equivalent. The amendment did not impact existing permits. C. Moratorium. In 2006, the City of Newport Beach adopted a new General Plan and the voters adopted a new Land Use Plan. The General Plan includes a vision statement that provides a framework or vision for the City. The first vision is to Preserve Community Character and provides that "We have preserved our character as a beautiful, unique residential community with diverse upland and coastal neighborhoods. We value our colorful past, the quality of life, and our community bonds. The successful balancing of the needs of residents, businesses and visitors has been accomplished with the recognition that Newport Beach is primarily a residential community." After adopting the new General Plan, the City received evidence that the number of group residential uses located in the residential neighborhoods was increasing. These transitory group residential uses operate more like institutional and boarding housing uses rather than as single housekeeping units. Most of the group residential uses that are operating in the City have concentrated In Residential Zoning Districts R1.5, R-2 and MFR. This change from traditional residential uses where people live as single housekeeping units to institutional/business uses in residentially zoned areas is changing the unique character and balance of Newport Beach's residential neighborhoods, violating the General Plan's vision that seeks to retain Newport Beach as primarily a residential community, and in many cases placing incompatible uses in residential neighborhoods, contrary to the policies in the City's Land Use Element (Policies LU 1.1, LU 5.1.1, LU 6.2.6 and LU 6.2.7). 2 On January 23, 2007, the City Council adopted Resolution No. 2007-5 forming the City Council -Citizens Advisory Committee on Intense Residential Occupancy. The City Council determined that formation of the committee was necessary because of the adverse impact the group residential uses were having on residential neighborhoods. Specifically, the City Council found that when these facilities are poorly managed, they can operate more like an intense institutional use and create adverse impacts inconsistent with residential neighborhoods such as parking problems, excessive delivery times and durations, nuisances such as excessive noise, obvious business operations over and above those authorized for residential uses, second hand smoke and other impacts. On February 13, 2007, the City Council adopted Resolution No. 2007-10 initiating an amendment to Title 20 of the Newport Beach Municipal Code to revise land use classifications and definitions related to residential care facilities. Resolution No. 2007-10 was adopted based on concerns that the Municipal Code's regulation of residential care facilities did not conform with State law. On April 24, 2007, the City Council adopted Resolution No. 2007-8 which imposed a moratorium on the establishment and operation of new group residential uses and the issuance of new short-term lodging permits. The City Council adopted Resolution No. 2007-8 based on information provided by citizens of Newport Beach to staff and at the Intense Residential Occupancy meetings. Specifically, the citizens of Newport Beach expressed significant concerns regarding the impacts that a proliferation of parolee/probationer, transient, group, non-residential, and commercial uses has on the community, including, but not limited to, impacts on traffic and parking, excessive delivery times and durations, the commercial use of public property, commercial and/or institutional services offered in private residences, more frequent trash collection, daily arrival of staff who live off -site, loss of affordable rental housing, violation of boarding house and illegal dwelling unit regulations contained in the Municipal Code, obvious business operations in residences, secondhand smoke, use of illegal drugs, and nuisance behaviors such as excessive noise, litter, loud and offensive language and public drunkenness. In addition, the City Council adopted Resolution No. 2007-8 because the number of vacation rentals in the City, which are regulated by requiring a short- term lodging permit under Chapter 5.95, had increased in recent years. At the time Resolution No. 2007-8 was adopted, the City had issued short-term lodging permits for approximately 801 residential units on 527 parcels to use as transient rentals. Most of the short-term lodging permits are issued to owners of residential properties located in Residential Zoning Districts R1.5, R.2, and MFR. The City Council found that a moratorium on the issuance of short-term lodging permits was necessary so that the City could analyze the impacts of these uses and determine whether the current regulations adequately addressed these impacts. P Ill. Measures Taken Since the Adoption of the Interim Urgency Ordinance A. Questionnaire Distributed by City. 1. Background. To help Staff determine the impact of group residential and short-term lodging uses, the City Attorney's Office distributed a questionnaire to residents residing in the following blocks of the City: • Location One: The 1100 and 1200 blocks of West Balboa and West Bay Avenue and 1100 block of West Ocean Front; • Location Two: The central portions of the 1800 block of West Ocean Front and West Balboa Blvd; • Location Three: Portions of the 100 blocks of 38th and one side of 39th Street; and Location Four: The northern portions of Topaz, Agate, and Opal on Balboa Island. The four locations were selected because staff determined that the best way to determine the impacts of the group residential and short-term lodging uses was to pick specific areas where there is high density of these uses. The first three locations were selected because they had both high density of recovery facilities and short-term rentals, and residents there were likely to be in a good position to offer insight on the relative Impacts of the different types of uses. The Balboa Island location was selected because it has a number of short- term rentals, but no known recovery facilities. Residents of Balboa Island were in a position to offer first-hand accounts of the impacts of short-term renters in a different residential setting. When residents expressed a desire to have the questionnaire more widely available, the questionnaire was posted on the City website, additional copies were made available through City offices, multiple copies were delivered or distributed to residents, and the deadline for responding to the questionnaire was extended. Questionnaires, letters, emails and phone calls from residents from additional streets In West and Central Newport, Newport Heights and Santa Ana Heights were sent to the City as well. As of the deadline of 4:00 PM Monday, May 14, of the nearly 400 questionnaires distributed, 47 were completed and returned. Although questionnaires were distributed to recovery facilities in Locations One, Two and Three as well, no response was received from any recovery facility as of the May 14th deadline. Both the Planning Department and the City Attorney's Office appreciate the valuable time the residents took to fill out these lengthy and detailed forms. The information submitted by residents in this format appears to be fact -based, 4 and is credible. A large percentage of the questionnaires were returned by persons who have not communicated with the City on these issues before. 2. Summary of Information Contained in Questionnaires. Based on the questionnaires, a distinct pattern emerged in Locations One, Two and Three regarding the impact of the group residential uses. Many licensed and unlicensed recovery facilities in those locations appear to be having a daily impact on parking and traffic in the area, either from cars and vans illegally parking in the alleys behind the homes on a daily basis, or from vans and other vehicles stopping in a traffic lane in the street to pick up residents. Based on the personal observations of their neighbors, many of these facilities use their garage spaces for uses other than parking. This appears to result in a dearth of passenger loading areas, and regular short-term illegal alley parking. The group residential uses were also regularly reported as producing substantially more garbage than the surrounding residential uses, because of the density of the population. One facility is reportedly generating one commercial dumpster pickup daily, and another generates two commercial dumpsters three times per week. Smoking by facility residents of group residential uses was highlighted. In fact, in one questionnaire a respondent reported that "[The residents) all seem to smoke ... continually and unrelentingly." Since this particular respondent has facilities in close proximity on either side of his house, the smoke entering his house has forced him to leave windows closed that normally would remain open. This situation, as well as litter caused by cigarette butts regularly thrown on their property, was reported by most immediate neighbors of recovery facilities answering the questionnaires. Many not -so -immediate neighbors reported regular cigarette butt litter attributable to the facilities on their property as well. In addition, frequent exposure to loud arguments and verbal exchanges (between residents, and between residents and supervising staf), foul language, and physical altercations between facility residents was also widely reported by those living near residential recovery facilities. In most locations, the most objectionable sustained noise was during the early morning, day and evening hours. With the exception of periodic medical emergency or police calls generated by one recovery facility, the majority (but not all) of recovery facilities were comparatively quiet late at night. The impacts of overconcentration were not addressed in the questionnaire because many were already known, but many residents commented on the problems of overconcentration. One resident in Location One noted that he was surrounded by recovery facilities on all four sides. A resident in Location Three noted that there were six recovery facilities in his immediate vicinity, and only five owner -occupied homes in the 100 block of 39th Street. Residents responding to questionnaires noted that they had informed recovery facility managers regarding these conditions; however, this did not 5 generally result in long-term improvement of the situation. While most (but not ail) residents who complained to recovery facility staff or management were told the problem would be addressed, the problem behaviors either continued or were repeated by new residents after a brief period of improvement. By contrast, the major complaint against renters of short-term occupancies was late -night noise. A majority of residents In Locations One and Three who addressed short-term rental uses characterized the renters as groups who came to the beach for a week of partying. Most of these residents also reported that the short-term rentals of these properties were managed by property management or real estate agencies. A number of residents reported that calls to the short-term rentals' property management agencies did not produce any improvement, and that the property management agencies were unresponsive to resident complaints. The quality of the property owner or property manager oversight and responsiveness to neighbor complaints appears to have significant impact on the impacts short-term rentals have in a neighborhood. Some residents at Location Two stated that they lived near short-term rental units that were mainly rented to families, and these residents reported a reduced intensity of impacts that could be dealt with by direct contact with the renters. Illegal parking in the alley and late evening parties were reported at these locations, but ceased when residents drew the renters' attention to the neighborhood impacts or reported Incidents to property managers. The property owners, property managers and residents in Location Four, on Balboa Island, reported a completely different situation. Not one of the 12 completed questionnaires received from Balboa Island produced a complaint about short-term renters. In general, the summer renters choosing to rent on Balboa Island were described as having no negative Impact on the surrounding neighborhood. More widespread complaints from Balboa Island were impacts from construction activity, long-term parking by passengers of the Catalina Flyer, noise from commercial party boats in the harbor, and the daily summer pickups and drop- offs of Junior Lifeguards. 3. Impact by Location. The following is a more detailed look at the case studies at each location, and selected quotes from questionnaire respondents in that area: (i) Location One: the 1100 and 1200 blocks of West Balboa and West Bay Avenue and 1100 block of West Ocean Front C RESIDENTIAL RECOVERY FACILITIES Staff and Services Group residential uses appear to have on -site staff as well as staff that appeared to arrive daily from offsite at the licensed facilities. No staff were identified in the questionnaires related to unlicensed facilities. One person noted that "[Group residential staff] are quick to respond (to complaints), but changes are only temporary ... " Parking and Traffic At one location (1216 W. Balboa Blvd.), neighbors reported that illegal parking in the alley was a daily occurrence, partly due to the fact that the garage had been converted to other uses. A neighbor who complained to this facility's management about early morning noise from residents being loaded into vans in the alley got quick response from the facility's management. The van loading functions were moved to the front of the facility, on Balboa Blvd. However, other neighbors now report that the vans periodically block traffic lanes adjacent to the facility while loading residents on Balboa Blvd. • The pattern of illegal vehicle parking in the alley was reported at two other facilities in the Location One case study area. Noise Gathering outside, talking loudly, yelling, and/or arguing with other residents or staff, extensive cell phone conversations in the alleys, and vulgar language. Most respondents from Location One described the noise level as "high," and either reported that the noise went on day and night, or that it began at 7:00 AM and tapered off at 11:00 PM. Trash Neighbors described the amount of trash generated at all recovery facilities in Location One as substantially in excess of that generated by surrounding residential uses. One neighbor reported daily commercial trash pickup at 1216 West Balboa. Smoking All respondents in Location One reported that residents at every recovery facility smoked, that cigarette butts were thrown on their property ("on an hourly basis," one resident said) and all but two reported that smoke from the recovery facilities entered their properties. 7 • Most residents reported that they and the members of their households were non-smokers, and found the second-hand smoke very bothersome. Even the one Location One respondent who stated that a member of his household smoked objected to the volume of smoke entering his house from the neighboring recovery facility. A number of neighbors keep their windows shut as a result. • One resident found smoldering cigarette butts on his property near the gas meter which he attributed to residents of the recovery facility next door. Another reported a fire had occurred at the 1216 West Balboa recovery facility and expressed concern for the safety of the 29 recovery facility residents. Resident Conduct • Residents objected to vulgar language, Inappropriate attention to female neighbors, and recovery facility residents with apparent unstructured time wandering unsupervised throughout the immediate neighborhood. One neighbor reported being approached by persons still under the influence who were seeking a recovery facility. Another reported a late night ambulance call after a recovery facility resident overdosed. Crime • One resident discovered recovery facility residents smoking pot on his property. Other Another resident reported that when he asked a recovery facility manager where he was taking a plate of food, the recovery facility manager told him that one of the former recovery facility clients had relapsed and had been removed from the recovery facility. Since the former facility client was from out of the area and had no resources, he was living in a Newport Beach park nearby. SHORT-TERM OCCUPANCIES Noise and Resident Conduct Respondents at Location One addressing short-term occupancies described the noise from the vacation rentals near them as worse than the noise at the recovery facilities, and described the property management agency managing the property as unresponsive. Vacation rental noise appeared to offend mainly in the evening and late -night hours. L One neighbor noted that, for his property, rental property residents returning home late at night after area bars closed created more intrusive late -night disruptions than recovery facilities. Parking — some issues reported but not described. Trash - in excess of that produced by surrounding long-term residents. OTHER COMMERCIAL USES IN NEIGHBORHOOD Several questionnaire respondents from this area reported that they worked from home. No complaints have been received by the City about the impact of the respondents' commercial activities in their residential neighborhood. Therefore, it is reasonable to assume that these business activities are being conducted without external impacts on the surrounding residential neighborhood, as contemplated by the City's home occupation ordinance. (ii.) Location Two: the 1800 block of West Ocean Front and West Balboa Blvd. RESIDENTIAL RECOVERY FACILITY Staff and Services Staff lives onsite at this recovery facility, and more staff arrives daily, including an employee who has described herself to neighbors as the receptionist, and a house manager. The exact number of staff is unknown. However, neighbors report that large numbers of persons (status unknown) either are brought to the recovery facility, or return to the recovery facility, each morning. Office functions appear extensive, based on resident -reported daily visits from UPS. Fedex deliveries are reported one to two times daily. A neighboring resident interviewed the block's regular mailman, who reported that this recovery facility received so much mail that he made a daily separate trip in the morning just to deliver this facility's mail, and returned later in the afternoon with the rest of the route's mail deliveries. Southern California Produce delivers food two times a week, and Sysco delivers food to the recovery facility two times a week. Laundry and linens are taken away from and returned to the recovery facility by a commercial laundry service. Because of shortage of onsite parking (three onsite parking spaces), delivery and service vehicles park illegally in the alley behind the facility. N Massage services appear to be provided onsite, and an employee identified as a cook lives onsite. Parking and Traffic • Parking and traffic infractions from commercial service pickups and deliveries are detailed above, and residents emphasized that they generally at least partially block traffic. Residents, and/or staff are brought to and from the site more than once a day in vans. Some vans park onsite, some park illegally in the alley behind the house on a short-term basis while loading and unloading Individuals. One neighbor reported six vehicles associated with the recovery facility parking onsite each day. Staff appear to park on adjacent streets and walk to the recovery facility as well. Noise • "It's a din," one resident reported. Residents at least two houses away from the recovery facility can hear the morning roll call and evening meetings. Noise begins at 7:30 AM or 8:00 AM and continues until around 10:00 PM. • During the day, the movement of the recovery facilities occupants up and down the exterior stairs was described as "constant" During a one -hour period, a neighbor counted 151 trips made up and down the recovery facility stairs by its residents. • Residents describe regular Fridaynight meetings at the recovery facility, with loud applause, stomping of feet and yelling. • One next -door neighbor provided photos of the interior of their family's house, with six-inch soundproofing material installed where windows and doors adjacent to the recovery facility were located. Trash • Waste Management performs commercial trash pickups, removing trash from two full-sized dumpsters three times a week. Smoking Complaints about smoking from this location have been ongoing for at least the past four years. The facility has apparently attempted to address the complaints by not allowing smoking outside on the facility's premises, but residents still report daily second-hand smoke and cigarette butts generated by the recovery facility's residents and staff. Immediately adjacent neighbors and more distant downwind neighbors report that they 10 keep their windows on the recovery facility's side of the building shut, to minimize intrusions from smoke and noise. Smoking on the beach by recovery facility residents is also reported. Resident Conduct Neighbors report that the management of this recovery facility appears to be making an effort to improve the recovery facility's relationship with the surrounding neighborhood. Management has recently escorted recovery facility's residents throughout the neighborhood picking up trash, and cigarette butts are picked up upon neighbor request. Neighbors report regular use of audible profanity, usually directed at others within the recovery facility. Neighbors feel the homes immediately next door to the recovery facility have become next to uninhabitable, and have not attempted to rent them. The only full-time resident of the oceanfront homes immediately adjacent to the recovery facility does not use the door adjacent to the recovery facility, but has entered through a first -story window on the other side of the building for at least three years. Crime On May 4, 2007, residents of the 1900 block of West Ocean Front had to call for police assistance when a recovery facility resident ran from the facility, smashed a patio table at one residence in the 1900 block, and threw a table leg at the window of the reporting resident's property. It is unknown at this time whether the police were able to locate the recovery facility resident. SHORT-TERM OCCUPANCIES Staff and Services Cleaning services arrive once a week for a few hours during weekly tenant shift. Cleaning staff park legally on rental facilities' onsite parking and do not block traffic. Noise, Parking and Resident Conduct While there were several short-term rentals on the 1800 block, long-term residents report they produce comparatively minor impacts. At one recovery facility, new weekly renters temporarily block alley access during unloading every week, but do not repeat the pattern when told by neighbors that this is not an acceptable practice. Complaints about nighttime gathering noise have been handled promptly by the property management agency or personal contacts by neighbors. 11 On the 1900 block, by contrast, a resident stated that property management firms have been at best "grudgingly responsive" to complaints about noise, trash and parking at two short-term rental locations near his property. As this resident described it, "Each Saturday in the summer 2 noisy, raucous groups of strangers move into each short- term facility to party for a week." The resident also reports that at least three to four times per week, weekly renters park in the alley or behind the garages of long-term residents, blocking resident egress and traffic. Second hand smoke and some cigarette butt litter were also reported on the 1900 block. OTHER COMMERCIAL USES None reported, but neighbors who were asked said they had no impacts from use of the beach and sidewalk in their immediate vicinity for City recreation camps and activities. (111.) Location Three: 38th and 39th Streets RESIDENTIAL RECOVERY FACILITIES Staff and Services • Some recovery facilities have staff living onsite, some do not. In two locations, staff has been responsive to neighbor complaints. In two others, staff has been notably unresponsive. • Transportation services via recovery facility vehicles appear to be provided at almost all recovery facilities. • Onsite services provided at three recovery facilities include daily cleaning services. Parking and Traffic • One accident has been attributed to a recovery facility's van blocking traffic on 39th Street while dropping or picking up recovery facility residents. • Traffic blockages on 39th Street due to recovery facility vehicles stopping in front of their facilities were reported to be frequent. • Residents report that at an adjacent sober living facility, as many as 10 vehicles can be associated with the residence (which has two onsite parking spaces) at any given time. IiV Noise Reports of noise from the recovery facilities varied, depending on the facility operators. Two facilities on 39th Street appeared to be particularly egregious in the amount of noise and profanity used by its residents, and in the late hours such noise is reported. Loud arguments and yelling between recovery facility residents was also reported. Trash Trash produced by the recovery facilities was generally reported to be extensive by all residents responding in this location, and the high number of resulting flies was mentioned more than once. Smoking Smoking was reported to be almost universal at the recovery facilities. One resident reported counting 25 individuals on a recovery facility balcony smoking at one time. The same resident reports that he found a burning AA 12-step book in his trash can. Another (non-smoking) resident reported being asked repeatedly for cigarettes and once for beer by recovery facility residents. Windows arereportedly kept closed, and some neighbors do not use their patios because of smoke and noise. Resident Conduct Conduct varies according to recovery facility. Two recovery facilities were identified as having residents with consistent problem behaviors. Recovery facilities which neighbors had fewer objections to also had their share of complaints about loud profanity. Crime One resident reported finding syringes and other drug paraphernalia in the side yard between his property and the sober living facility next door, as well as witnessing what he believed were drug sales in the alley behind that same recovery facility. That resident also personally witnessed a resident at another recovery facility on 39th Street exposing himself; the offending party was removed from the facility when the resident reported the behavior to the recovery facility's management. 13 SHORT-TERM OCCUPANCIES Noise and Resident Conduct The main impacts reported for short-term occupancies in Location Three were that two nearby properties were being used as short-term rentals, an excessive amount of noise was produced by parties at those locations, and the property management company in control of those properties "will not respond to noise complaints." (iv.) Location Four: Balboa Island (portions of Opal, Agate and Topaz) SHORT-TERM OCCUPANCIES No Impacts Reported • Of the twelve questionnaire responses received from Balboa Island by the deadline, there was not one complaint about short-term renters. • Residents, property owners and property management firms were consistent in their message that no negative impacts were generated on Balboa Island from short-term renters. • Noise produced by short-term renters was described as anything from nonexistent to "music, conversation and laughter." • Any complaints, residents reported, were promptly handled by the owner or property management firm to the complainant's satisfaction. • Cleaning and maintenance services and parking availability were described as similar to that used at surrounding long-term residences. OTHER COMMERCIAL USES Noise, Traffic and Parking Questionnaire respondents had a number of complaints about other commercial impacts: traffic and noise issues associated with new home construction on the island, passengers on the Catalina Flyer parking their cars on the island and leaving them there up to a week, parents of Junior Lifeguards dropping off and picking up their children, and noise from commercial dinner cruise yachts in Newport Harbor. B. Disturbance Advisement Cards. During 2006, the Newport Beach Police Department distributed 501 disturbance advisement cards based on loud parties at residences in the City. 14 Thirty of these cards were distributed to properties that have short-term lodging permits (of the 30, 23 were distributed from May through September). C. Expert Analysis of Group Residential Care Facilities. As part of the City's review of the group residential care facilities, the City has retained Dr. Michael Gales to prepare a report analyzing what services are a necessary component of recovery from addiction to alcohol and/or drugs, what reasonable accommodations are necessary for the recovery from these type of addictions and what policies and procedures are implemented by well run facilities. Staff will present Dr. Gales' report regarding these matters to the City Council as soon as it is available. D. Regulation of Group Residential Uses. 1. Identification of Group Residential Uses. Currently, the total number of known licensed alcohol and drug recovery and treatment facilities and sober living homes is 73 units on 34 parcels (i.e. Licensed Residential Treatment Facilities = 48 units on 18 parcels and Sober Living Facilities = 25 units on 18 parcels.) The majority of these group residential facilities are located in the area adjacent to the beach from the Santa Ana River Jetty to the Balboa Pier. Staff is in the process of investigating whether additional group residential facilities are located in the City. (A map showing the location of the parcels identified as having group residential uses is attached hereto as Exhibit A.) 2. Proposed Regulation of Group Residential Uses. To assist the City Attorney in analyzing the regulation of group residential uses, the City Attorney's office retained Polly Marshall of Goldfarb Lipman, LLP, to conduct analysis of the current regulation of group residential uses and to propose changes to the regulations. Her memorandum and proposed changes to the current regulations is attached hereto as Exhibit B. 3. Moratorium. Given the likelihood that additional uses will seek to be established prior to the adoption of regulations, the nature of the impacts caused by group residential uses, and the need for Planning Commission review, the City Attorney recommends that the City Council extend the moratorium for five months and direct staff to prepare an ordinance for consideration by the Planning Commission by the second Planning Commission meeting in June. 15 E. Regulation of Short -Term Lodging Uses. 1. Identification of Short -Term Lodging Uses. Currently, the City has Issued short-term lodging permits for approximately 801 residential units on 527 parcels to use as transient rentals. The majority of the short-term lodging permits have been issued to owners of properties located In the area adjacent to the beach from the Santa Ana River Jetty to the Wedge and on Balboa Island. (A map showing the location of the parcels identified as having short-term lodging permits Is attached hereto as Exhibit C.) Based on information obtained by staff and Interviews with Mr. Craig Batley of Burr White Realty, it appears there have been significant changes in the short-term lodging rental business since the original regulations were adopted in 1992. First, while the majority of short-term rentals are still offered for rental during the summer months and on a month -to -month basis the remainder of the year, many short-term rental properties are now offered for short-term lodging purposes year round. This decreases the number of month -to -month rentals in non -summer months and Increases the number of weekly rentals. The peak periods for short-term lodging purposes still encompasses the summer months from the Friday before Memorial Day through Labor Day. However, there has been an increasing demand for short-term rentals throughout the year especially during the following time periods: Thanksgiving week; the last two weeks of December through the first week in January; and March through April. In recent years, the peak periods have expanded to cover the entire months of March and April due to the fluctuation in the scheduling of spring break by schools. In addition, while many individual property owners still manage their own short-term rental properties, the rental market for short-term lodging uses is now dominated by property management companies. For instance, Burr White Realty reports that it currently manages approximately 200 properties that are offered for short-term lodging uses. The following information on the process of short-term rental management was reported by Mr. Batley. Through the use of agreements with the owners, Burr White Realty obtains exclusive use of the property for fixed periods of time. The company then markets the properties based on the maximum occupancy for the property, which is set by the company based on the number of beds available, location, and amenities. The short-term lodging agreement entered into by Burr White with the short-term renters requires a substantial deposit to ensure that the person complies with the terms of the agreement, the property is not damaged, and fines for violations of the Newport Beach Municipal Code are paid. The terms of the agreement require the short-term renter to disclose who will be occupying the property, prohibit the sole occupants of the premises from being under the age of 21, prohibit smoking inside the residence, prohibit pets, limit the number of 16 guests that can be at the property during the day to three times the bed limit, regulate parking at the premises, prohibit the blocking of garages, prohibit the disturbance of neighboring property owners and other nuisances, and prohibit the violation of any laws, including the Newport Beach Municipal Code. At Burr White, the person that to check -in at the office. At check -in regulations and procedures related 1 pickup. According to Mr. Batley, if a rental agreement, the agency takes property. executes the rental agreement is required the person is reportedly informed of City loud parties, noise, parking, and trash guest violates the terms of the short-term action to have them removed from the Many of the residences offered as short-term rentals are reported to be rented to repeat customers that stay at the residences several times a year or annually. The company also maintains a database of its past customers and references whether there were any issues related to the customer based on their previous stay. If there were problems, the company states that it analyzes whether the company should enter into another agreement with that person or what conditions should be added to the agreement. 2. Current Regulation of Short -Term Lodging Uses. Currently, the City regulates short-term lodging through the issuance of short-term lodging permits pursuant to Chapter 5.95. Every owner of a property who wishes to rent their property for a short-term use (i.e. 30 days or less) is required to have a short-term lodging permit. An owner may retain an agent or a representative to comply with the requirements of Chapter 5.95; however, the permit may only be issued to the owner of the short-term lodging unit and the owner is responsible for any failure of an agent to comply with Chapter 5.95. Any permit issued pursuant to Chapter 5.95 is subject to the following standard conditions: A. The owner shall, by written or oral agreement, limit overnight, occupancy of the short-term lodging unit to a specific number of occupants, with the number of occupants not to exceed that permitted by the provisions of Title 15 of the Newport Beach Municipal Code. B. The owner shall use best efforts to insure that the occupants and/or guests of the short-term lodging unit do not create unreasonable noise or disturbances, engage in disorderly conduct, or violate provisions of the Municipal Code or any State Law pertaining to noise, disorderly conduct, the consumption of alcohol, or the use of illegal drugs. C. The owner shall, upon notification that occupants and/or guests of his/her short-term lodging unit have created unreasonable noise or disturbances, engaged in disorderly conduct or committed violations of the Municipal Code or State law pertaining to noise, disorderly conduct, the consumption of alcohol or 17 the use of illegal drugs, promptly use best efforts to prevent a recurrence of such conduct by those occupants or guests. D. The owner of the short-term lodging unit shall use best efforts to insure compliance with all the provisions of Title 6 of the Newport Beach Municipal Code (garbage, refuse and cuttings). E. The owner of the short-term lodging unit shall post a copy of the permit and a copy of the conditions set forth in the Newport Beach Municipal Code in a conspicuous place within the unit. F. With respect to any short-term lodging unit that is located in any Safety Enhancement Zone, the owner of the unit and any agent retained by the owner shall take immediate action during the period that the Safety Enhancement Zone is in effect to prevent occupants or guests from engaging in disorderly conduct or committing violations of the Newport Beach Municipal Code or State law pertaining to noise, disorderly conduct, the consumption of alcohol or the use of illegal drugs. In addition to the standard conditions, the City Manager has the authority to impose additional standard conditions, applicable to all short-term lodging units, as necessary to achieve the objectives of Chapter 5.95 or to impose additional conditions on any permit in the event of any violation of the conditions of the permit or the provisions of Chapter 5.95. The Newport Beach Municipal Code also provides for penalties for violation of the conditions of approval and/or the revocation of the short-term lodging permit. The operation of a short-term lodging without a valid permit is a misdemeanor under the provisions of the Newport Beach Municipal Code. 3. Proposed Regulation of Short -Term Lodging Uses, As set forth above, short-term lodgings are currently regulated by Chapter 5,95. Proposed changes to the Short-term Lodging Regulations are as follows: • Section 20.05.030 (Use Classifications): Add a use classification for vacation home rentals - short-term lodgings. (See, Exhibit B.) Section 20.10.020 (Residential Districts: Land Use Regulations): Add vacation home rentals (short-term lodgings) to allow vacation home rentals in all R-1.5, R-2, and MFR Districts by right subject to obtaining a short-term lodging permit. Chapter 5.95 (Short -Term Lodging Permits): A global change should be made to refer to the "Finance Director" as `Revenue Manager." M • Section 5.95.005 (Purpose and Findings): Add language to: Note the long tradition of vacation homes. Note the positive fiscal impacts of short-term rentals. Reference Coastal Land Use Plan Section 2.33 and Policy 2.7-3, which support the short-term rentals as alternative visitor accommodations pursuant to permits and standard conditions that ensure the rentals will not interfere with public access and enjoyment of coastal resources. • Section 5.95.010(A) (Definitions): change reference to Section 20.87.140 to Section 20.03.030. Add definition of "guest' to describe renters of properties offered for short-term lodging. • Section 5.95.020 (Permit): Add to this section a requirement that any managing agency, agent, or property manager of short-term lodgings be required to obtain short-term lodging management permit. Add a permit fee to cover costs associated with the permit as set by City Council resolution. • Section 5.95.025 (Agency): Revise this section to make both the owner and his/her manager/operator responsible for compliance with Municipal Code and permit conditions. • New Section 5.95.045 (Notice): Add a new section requiring notice that the property will be used for short-term lodgings and provide contact information to all property owners within 100 feet of the property. Notification will also be required upon permit renewal or if contact information changes. Revise Section 5.95.050 (Conditions): Revise section to include the following: Require a written rental or lease agreement; limit one per unit. Require rental/lease agreements to be for a period of not less than 3 days and not more than 30 days. Remove the option of oral agreement to limit overnight occupancy. Limit overnight occupancy to 2 persons per bedroom (plus 2 other persons). City would have the right to conditionally approve an increase in occupancy if a management plan was submitted showing how the property can physically accommodate more people. 19 Require all occupants be listed on the rental/lease agreement. Require both the owner and his/her manager/operator to take reasonable steps to avoid and correct unreasonable noise, disturbances, disorderly conduct, violations of law, etc. Exterior posting of contact information. This requirement could be optional if the owner/operator provides notice in accordance with Section 5.96.045. Require owner or managing agent to provide a 24 hour contact and respond within two hours of complaint. Limit the total number of vehicles associated with a short- term lodging property to the total number of parking places available at the site plus one. Require owner and his/her manager/operator to disclose relevant local ordinances such as loud party ordinance and other relevant information such as trash collection services to guests. Require all advertisements to disclose the owner or his/her manager/operator City permit number. • New Section 5.95.055 (Inspections): Add a new section requiring inspections for code compliance prior to the initial issuance of the permit and upon every other renewal (i.e. every 4 years). • Section 5.95.060 (Violations): Revise section to: Make both the owner and his/her manager/operator subject to fines for failure to comply with Municipal Code and conditions of permit. Add the option of requiring a management plan with the third violation in 12 months. Add management permit to revocation procedures for violations. • Section 5.95.060 (Penalties): Revise section to: Make it a misdemeanor to manage a property without a management permit. KE 4. Moratorium. Given the extensive regulation already in place, the limited number of new short-term lodging permits likely to be issued prior to the adoption of new regulations, the ability of the City to change the conditions for short-term lodging permits at any time, the nature of the impacts caused by short-term lodgings, and the ability of the City Council to make modifications to the substantive regulations in an expedited manner, the City Attorney does not believe the moratorium should be extended for short—term lodging permits. Rather, the City Attorney's advice to the City Council is to direct staff to make the proposed changes and have an ordinance ready for first reading by the second meeting of the City Council in June 2007. 21 ORDINANCE NO.2007- AN INTERIM URGENCY ORDINANCE OF THE CITY OF NEWPORT BEACH, CALIFORNIA, MAKING FINDINGS AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF NEW RESIDENTIAL USES THAT ARE TRANSITORY IN NATURE SUCH AS PAROLEE -PROBATIONER HOMES, SAFE HOUSES, UNLICENSED RESIDENTIAL CARE FACILITIES AND RESIDENTIAL CARE FACILITIES, GENERAL, IN ALL RESIDENTIAL ZONING DISTRICTS OF THE CITY WHEREAS, on April 24, 2007 at a regular meeting of the City Council, the City Council adopted Ordinance No. 2007-8 an interim urgency ordinance adopting a temporary forty-five (45) day moratorium on the establishment and operation of new group residential uses that are transitory in nature such as parolee -probationer homes, safe houses, unlicensed residential care facilities and residential care facilities, general, In all residential zoning districts of the City; and WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; and WHEREAS, Government Code Section 65858 provides that after notice pursuant to Government Code Section 65090 and public hearing, the City Council may extend an Interim ordinance adopted pursuant to Government Code Section 65858 up to 10 months and 15 days by a vote of four -fifths (4/5) majority of the members of the City Council; and WHEREAS, Section 412 of the City Charter provides for the adoption as an emergency measure an interim ordinance to preserve the public peace, health or safety by a vote of at least five (5) City Council members; and WHEREAS, in 2006 the City of Newport Beach adopted a new General Plan and the voters adopted a new Land Use Plan. The General Plan includes a vision statement that provides a framework or vision for the City. The first vision is to Preserve Community Character and provides that "We have preserved our character as a beautiful, unique residential community with diverse upland and coastal neighborhoods. We value our colorful past, the high quality of life, and our community bonds. The successful balancing of the needs of residents, businesses and visitors has been accomplished with the recognition that Newport Beach Is primarily a residential community;" and WHEREAS, the City has received evidence of increasing numbers of group homes that are transient In nature and operate more like institutional and boarding housing uses a than as a Single Housekeeping Unit. These uses are concentrated in residential zoning districts R1.5, R-2, and MFR. Uses such as homes for parolees and probationers, group uses, non-residential uses, and other uses are operating as businesses in residentially zoned areas of the City. These uses and the business operations engendered by these uses are changing the unique character and balance of Newport Beach's residential neighborhoods, violating the General Plan's vision that seeks to retain Newport Beach as primarily a residential community, and in many cases placing incompatible uses in residential neighborhoods, contrary to the policies in the City's Land Use Element (Policies LU 1.1, LU 5.1.1, LU 6.2.6 and LU 6.2.7); and WHEREAS, citizens of the City have expressed significant concerns regarding the impacts that a proliferation of parolee/probationer, transient, group, non-residential, and commercial uses has on the community, including, but not limited to, impacts on traffic and parking, excessive delivery times and durations, the commercial use of public property, commercial and/or institutional services offered in private residences, more frequent trash collection, daily arrival of staff who live off -site, loss of affordable rental housing, violations of boardinghouse and illegal dwelling unit regulations of the Municipal Code, obvious business operations in residences, secondhand smoke, use of illegal drugs, and nuisance behaviors such as excessive noise, litter, loud offensive language, and public drunkenness; and WHEREAS, in response to questionnaires distributed by Staff to residents residing in the 1100 and 1200 blocks of West Balboa and West Bay Avenue, the 1100 block of West Ocean Front, the central portions of the 1800 block of West Ocean Front and West Balboa Blvd, and the 100 blocks of 38th and one side of 39th Street, residents identified the following impacts: (1) daily traffic and parking impacts caused by cars and vans illegally parking in the alleys behind the homes, from vans and other vehicles stopping in a traffic lanes in the street to pick up persons residing in group residential homes, and the use of garage spaces for uses other than parking; (2) above average garbage generation and collection services caused by the density of the population living at group residential facilities; (3) second-hand smoke and litter impacts caused by residents of the group residential facilities smoking outdoors; and (4) frequent noise impacts caused by exposure to loud arguments and verbal exchanges (between residents, and between residents and supervising staff), foul language, and physical altercations between facility residents. Residents responding to questionnaires noted that they had informed recovery facility managers regarding these conditions; however, this did not generally result in long-term improvement of the situation; and WHEREAS, the City has received evidence that residential care facilities licensed to serve six or fewer persons may be operating in duplexes and apartments as a campus or as an integral facility serving seven or more persons without required governmental approvals; and WHEREAS, Land Use Element Policy 6.2.7 provides that the City shall regulate residential and day care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods; and 2 WHEREAS, based on the impacts associated with group residential uses, the likelihood that new group residential uses will seek to be established In the City prior to the adoption of new regulations, and the need for public hearings before the Planning Commission and City Council to review the proposed ordinance modifying the regulation of group residential uses, the City Attorney has recommended the moratorium on the establishment and operation of new group residential uses should be extended for five (5) months to accommodate the extended process for zoning code amendments; and WHEREAS, based on the extensive regulation of short-term lodging uses that are already in place, the fact that short-term lodging rentals provide alternative visitor accommodations and are supported by Coastal Land Use Plan Section 2.33 and Policy 2.7-3, the limited number of new short-term lodging permits likely to be issued prior to the adoption of new regulations, the ability of the City to change the conditions of approval for short-term lodging permits without the need for extended public hearings, the nature of the impacts caused by short-term lodgings, and the ability of the City Council to make modifications to the substantive regulations In an expedited manner, the City Attorney has recommended that the moratorium on the Issuance of short-term lodging permits need not be extended; and WHEREAS, the City requires additional time to adopt an ordinance modifying the regulation of group residential use to reduce impacts on residentially zoned areas while complying with federal and state laws protecting the disabled, and to specify appropriate, permitting licensing or registration procedures and desired levels of discretionary review; and WHEREAS, the City Council also needs additional time to receive public comment prior to enacting any permanent regulatory ordinance; and WHEREAS, the City Council finds that owners or operators of parolee/probationer, transient, group, non-residential, and commercial uses are likely to submit applications for such uses and/or commence operations of such uses before appropriate regulations and safeguards are in place thereby impacting the peace, health, safety and welfare of the community; and WHEREAS, these uses and facilities may be established in areas that would be inconsistent with surrounding uses or with the character of a residential neighborhood or would be immediately detrimental to the public peace, health, safety, and welfare; and WHEREAS, if those uses are allowed to proceed, such uses could conflict with, and defeat the purpose of, the proposal to adopt new regulations regarding these uses; and WHEREAS, the extension of the moratorium on group residential uses will not adversely impact the ability of the disabled to find housing in the City of Newport Beach because the City has a disproportionately high number of licensed and unlicensed residential group uses serving the disabled. 3 NOW, THEREFORE, the Newport Beach City Council does hereby ordain as follows: SECTION 1: Findings. The City Council finds as follows: A. The above recitals are true and correct and incorporated herein by this reference. B. Based on the recitals above, incorporated into these findings, the City Council hereby finds and determines that there is a current and immediate threat to the public peace, health, safety, and welfare, and that the establishment, commencement of operations, and/or the issuance of use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlements providing for the establishment or operation of transient uses such as parolee -probationer homes, safe houses, unlicensed residential care facilities, and residential care facilities, general, prior to the City adopting an ordinance modifying the regulation of group residential use to reduce impacts on residentially zoned areas, would pose a current and immediate threat to the public peace, health, safety, and welfare, and that a temporary moratorium on the establishment of these uses and the issuance of such permits, licenses, and entitlements is thus necessary. C. Based on the recitals above, incorporated into these findings, this ordinance is necessary as an emergency measure to preserve the public peace, welfare, health and safety. SECTION 2: Imposition of Moratorium. In accordance with the authority granted the City of Newport Beach by the City Charter and Government Code Section 65858, for a period of five (5) months from and after the date of this ordinance, the following provisions are applicable to all residential districts of the City: A. No new transitory use shall be established or operated, and no use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlements for the establishment or operation of any new transitory use shall be approved or issued, unless otherwise expressly provided for herein. Licensed residential care facilities, small and large family child care homes, and short-term lodging uses shall be exempt from the provisions of this ordinance. B. For purposes of this ordinance the following terms shall have the following meanings: 1. "Large family child care homes" shall have the same meaning as the term is defined in Municipal Code Section 20.05.030(A)(1). Ell 2. "Licensed residential care facilities" are State licensed facilities that are maintained and operated to provide nonmedical residential care, day treatment, or foster agency services for six or fewer adults, children, or adults and children and which are required by State law to be treated as a single housekeeping unit for zoning purposes, but not including State licensed facilities that are operated as integral facilities and together serve seven or more adults, children, or adults and children. Licensed residential care facilities shall be subject to all land use and property development regulations applicable to single housekeeping units. 3. "Integral facilities" are two or more licensed residential care facilities that are under the control and management of the same licensee and are Integral components of the same facility, such as by providing housing in one facility and recovery, treatment, or other services in another facility, or by designating one facility to provide recovery, treatment, or other services for several residences. Licensed residential care facilities that constitute a campus, as the term is defined in Municipal Code section 23.03.030, are integral facilities. 4. "Parolee -probationer homes" shall mean any residential structure or unit, whether owned and/or operated by an Individual or a for -profit or nonprofit entity, that houses two or more parolees - probationers In exchange for monetary or non - monetary consideration given and/or paid by the parolee - probationer and/or any public or private entity or person on behalf of the parolee - probationer. A parolee — probationer includes: A) any individual who has been convicted of a federal crime, sentenced to a United States prison, and received conditional and revocable release in the community under the supervision of a federal parole officer; B) any individual who has served a term of imprisonment in a State prison and who is serving a period of supervised community custody, as defined in Penal Code Section 3000, and is under the jurisdiction of the California Department of Corrections, Parole and Community Services Division; and C) an adult or juvenile sentenced to a term in the California Youth Authority and who has received conditional and revocable release in the community under the supervision of a Youth Authority Parole Officer. 5. "Residential care facilities, general," shall have the same meaning as the term is defined in Municipal Code section 20.05.030(D). 6. "Residential district" shall mean all areas where the use is designated as a residential use including all residential zoning districts, and residential uses provided for in Planned Community Texts and Special Plan Areas of the City. 7. "Safe houses" shall mean any residential structure or unit, whether owned and/or operated by an individual or a for -profit or nonprofit entity, that houses two or more persons who are not living together as a single family housekeeping unit including, but not limited to, residences providing services to current or former gang members, in exchange for monetary or non -monetary consideration given and/or paid by the current or former gang members and/or any public or private entity or person on behalf of the current or former gang members. 5 8. "Single housekeeping unit" shall have the same meaning as the term is defined in Municipal Code Section 20.03.030. 9. "Small family child care homes" shall have the same meaning as the term is defined in Municipal Code Section 20.05.030(A)(2). 10. "Transitory uses" shall include new residential uses where the average tenancy is usually less than ninety (90) days, including but not limited to new parolee -probationer homes, safe house, unlicensed residential care facilities, residential care facilities, and other similar residential uses that are transitory in nature. 11. "Unlicensed residential care facilities" shall mean any residential care facility, limited, as the term is defined in Municipal Code Section 25.05.030(E) that is not licensed by the State. C. As required by State law, the City may continue to accept and process applications for uses prohibited by this moratorium. Any application shall be processed at the applicant's sole cost with the understanding that no use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlement for a transitory use may be issued until this moratorium is removed. SECTION 3: Planning Study. The Planning Department with the assistance of the City Attorney's Office is directed to: (1) prepare an ordinance modifying the regulation of group residential uses for consideration by the Planning Commission by the second Planning Commission meeting in June; and (2) prepare an ordinance modifying the regulation of short-term lodging uses for consideration by the City Council by the second meeting of the City Council in June. SECTION 4: Reasonable Accommodation. In compliance with Fair Housing Laws (42 USC Section 3600 et seq. and Government Code Section 12900 et seq.), it is the City's policy to provide reasonable accommodation in the application of this interim urgency ordinance to any person with a disability who seeks fair access to housing. "Disability" shall have the same meaning as the terms "disability" and "handicapped" in the Fair Housing Laws. A. An application for reasonable accommodation in the application of this interim urgency ordinance shall be made to the Planning Director and shall include: The provision of this ordinance from which accommodation is being requested; 2. The basis for the claim that the individuals affected are considered disabled under the Fair Housing Laws, and why the accommodation is necessary to A provide equal opportunity for housing and to make the specific housing available to the individuals; and 3. Any other information the Planning Director reasonably determines Is necessary. B. in making a determination regarding the reasonableness of the requested accommodation, the following factors shall be considered: 1. Special need created by the disability; 2. Potential benefit that can be accomplished by the requested accommodation; 3. Potential impact on property in the vicinity; 4. Physical attributes of the property and structures; 5. Alternative accommodations that may provide an equivalent level of benefit; 6. In the case of a determination involving a one -family dwelling, whether the occupants would be considered a single housekeeping unit; 7. Whether the requested accommodation would impose an undue financial or administrative burden on the City; 8. Whether the requested accommodation would require a fundamental alteration in the nature of a City program; and 9. Whether granting the request would be consistent with the City's General Plan. C. Any request for reasonable accommodation from the provisions of this ordinance shall be reviewed and considered by the Planning Commission at a public hearing and may be approved, conditionally approved, or denied by the Planning Commission. SECTION 5: Amendments to Ordinance. The City Council by ordinance after notice of public hearing, by the affirmative vote of at least four -fifths (4/5) of the voting City Council Members may modify, amend, delete or add to this ordinance upon a finding that such action will implement and enforce the goals, policies, and purposes of this ordinance, 7 SECTION 6: Compliance with California Environmental Quality Act. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; in that it prevents changes in the environment pending the completion of the contemplated municipal code review. SECTION 7: Waiver. The City, on a case by case basis, shall have the authority, upon a showing of good cause by an applicant, to waive the interim prohibition/moratorium imposed by this ordinance. Good cause shall mean a factual and evidentiary showing by the applicant that the interim prohibition/moratorium, if not waived, will deprive the applicant of substantially all reasonable use of his/her property. SECTION 8: Term of Urgency Ordinance; Extension. This interim urgency ordinance shall by operation of law be of no further force and effect five (5) months from and after the date of this adoption on May 30, 2007; provided, however, that after notice of public hearing pursuant to Government Code Section 65090, the City Council Members may by a four -fifths (415) vote of the voting City Councilmembers extend this interim or urgency ordinance for up to one (1) year. SECTION 9: Severability. The City Council hereby declares that if any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION 10: Effective Date. This ordinance is hereby declared to be an urgency measure and shall be enforced and be in effect immediately upon its adoption. SECTION 11: Publication. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City of Newport Beach within fifteen (15) days of its adoption. N This Ordinance was introduced and adopted as an urgency measure at a regular meeting of the City Council of the City of Newport Beach held on the day of 2007, and adopted on the day of , 2007, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT,COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F:\users\cat\shared\Orlin ancelGroupHomes\Modtodu m\FInalClean04-24-07.doc N SHORT TERM LODGING 4. Information on the permitted occupancy and parking capacity for each unit, and trash disposal requirements, shall be stated in the rental information and agreement provided to prospective guests, prior to their occupancy of the unit. L. Standards and conditions of operation 1. Managing Agency. The managing agency, owner, agent and property manager shall be responsible for compliance with all applicable codes regarding Fire, Building and Safety, Health and Safety, and other relevant laws. 2. Notification. The managing agency, owner, agent or property manager or designated person shall be personally available by telephone on a 24-hour basis to respond to calls regarding the safety or health condition and/or operation of the unit. Failure to respond to calls in a timely and appropriate manner may result in revocation of the business license authorizing the use. For purposes of this section, responding in a timely and appropriate manner shall mean that a response to an initial call shall be made within 2 hours of the time the call was made, and within 24 hours of the initial call, corrective action shall be commenced -to address any violation of this section. 3. Occupancy. The maximum number of occupants in the dwelling unit for overnight accommodation shall be calculated as two (2) adults per bedroom. An adult, for the purpose of this regulation, is any person over the age of two., however, that in no case may the overnight occupancy of a transient private home rental unit exceed 16 people. Occupancy to be no more than two persons per bedroom by Fair Housing Standards. The property owner or agent shall limit overnight occupancy of the short-term rental unit to a specific number of occupants not to exceed two persons per bedroom plus two additional persons per dwelling. All other applicable occupancy laws shall apply. 4. Advertising. All advertisements for transient vacation rentals must carry the operator's use permit number. Websites must have a disclosure link to explain compliance to all city ordinances. 5. Inspection. The following requirements for transient private home rentals will be evaluated upon inspection of each unit, and shall constitute minimum requirements. The unit must be brought into conformance with these requirements and any other applicable codes and ordinances in order for the use to be allowed. a. Required official uniform city public information identification seal and notice must be posted, and address of each unit must be legible from the street. b. Smoke detectors shall be installed within each sleeping room and at a point centrally located in the corridor or area giving access to each separate sleeping room. Battery -operated smoke detectors are acceptable provided that they are maintained in good working order at all times, except as required by other applicable codes. SHORT TERM LODGING c. The transient private home rental shall be equipped with a minimum of one 2A:IOB:C type extinguisher with 75 feet of travel distance to all portions of the structure; at least one such extinguisher is required per floor. Fire extinguishers(s) shall be mounted in visible locations with the tops of the fire V extinguishers mounted between 3 and 5 feet above the floor, and shall be a accessible to occupants at all times. California State Fire Marshal annual certification tags must be provided and be current on all extinguishers. �t d. Any locking mechanism on exterior doors must be operable from inside the T unit without the use of a key or special knowledge or effort. If the dwelling unit is greater than 3,000 square feet in area, 2 exit doors shall be required, each of which shall conform to this requirement. e. Bedroom windows shall be operable to allow for emergency egress. f. There shall be at least one screened window per room, to allow for adequate interior ventilation. Is" g. There shall be no accumulation or storage of trash and/or debris on the site or within the unit; trash shall be removed from the premises after each occupancy; . v h. All steps, stairways, decks, and railings shall be stable and structurally sound. i. Parking shall be provided on -site to meet the occupancy of each transient private home rental at of a minimum of one parking space. Parking spaces may include garage, carport and driveway spaces, and may allow for tandem parking. M. Non-compliance by an owner, managing agency, property owner, or agent of the requirements for registration, inspection and operation of transient private home rental units may result in the suspension/revocation of the business license authorizing the use, and no new business license may be issued to the same licensee for a period of 12 months following such revocation. At the end of the revocation period applicant may re apply for business license. Visitor Serving. Short Term Lodging provides a unique form of LODGING to the public not readily available except along the beach. The Coastal Act protects and preserves all public assess to the beach, especially a 50 year tradition of a beach vacation experienced by thousands of families who have been coming to the Newport Beach for generations. Without short term lodging these families would otherwise would be unable to visit the beach at Newport Beach. Coastal Dependent. Short Term Lodging in Newport Beach is dependent on beach access differentiating itself from Group Home Facilities which can operate in any non coastal city. Short-term rentals have been a way of beach life for decades and are Important alternative accommodation choice for vacationers visiting Newport Beach. That position would include evidence that the short-term rentals do not result in overcrowding of units, higher traffic volumes, higher noise levels or any other legitimate land -use effects that would adversely affect the character of the neighborhood. 7 SHORT TERM LODGING GUIDELINES FOR AMENDING MUNICIPAL CODE CHAPTER 5.95 SHORT TERM LODGING The Code Compliance department, as part of the Community Services Division, is responsible for enforcing the City's land use, zoning, property maintenance, sign and nuisance regulations in order to ensure public safety and maintain the attractive appearance of Newport Beach as a destination resort. The department also administers the Short Term Lodging inspection program to ensure that vacation home rentals are maintained in a safe and sanitary condition and to avoid or limit the impacts to the surrounding residential neighborhood. Preamble: The purpose of the following procedure is to allow the rental of private homes in the R-1, R1.5 & R-2 city zoning areas to visitors on a short-term basis, while ensuring that such rental use does not create adverse impacts to residential neighborhoods due to excessive traffic, noise, and density. Additionally, this section is intended to ensure that the number of occupants within such rental units does not exceed the design capacity of the structure or cause health and safety concerns, and that minimum health and safety standards are maintained in such units to protect the visitor from unsafe or unsanitary conditions. The purpose of the short-term vacation rental permit is to regulate the activity of renting a dwelling unit in a residential zoning district for a period of three to 30 consecutive days in order to safeguard the peace, safety and general welfare of the residents of Solana Beach and their visitors and guests by eliminating noise, vandalism and overcrowding. A. Definitions: 1. Transient: A transient private home rental shall mean a dwelling unit (including either a single family detached or multiple family attached unit) rented for the purpose of overnight lodging for a period of not less than one night and not more than 30 days. 2. "Transient" means any person who occupies or is entitled to occupy by reason of concession, permit, right of access, license or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Any such person so occupying space in a hotel is a transient until the period of thirty (30) days has ,expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. In determining whether a person is a transient, an uninterrupted period of time extending both prior and subsequent to the effective date of this Chapter may be considered. 3. Managing Agency (Operator): Managing agency or agent shall mean a person, firm, or agency representing the owner of the transient private home rental, or a person, firm, or agency owning or operating more than one transient private home rental. ) SHORT TERM LODGING B. Registration and licensing requirements: 1. Any managing agency, agent, owner or property manager who rents one or more transient home rentals shall be required to obtain a City business license. 2. Rental of transient private home rentals shall be subject to collection of transient occupancy tax as required by the City. 3. The managing agency, agent, owner or property manager of each unit to be used as a transient private home rental shall register each such unit with the City prior to commencing the use. C. Penalties. The short-term vacation rental permit holder will be subject to penalties as set forth herein the following instances: 1. In the event the short-term vacation rental unit is located in a residential zoning district and is rented for stays of less than three consecutive calendar days in duration; or 2. In the event that any person holding a permit issued pursuant to this chapter violates or causes or permits to be violated any of provisions of this chapter or any provisions of any other ordinance or law relating to or regulating such business, or conducts or carries on such business in an unlawful manner, or for any reason for which the permit application could have been denied in accordance with provisions herein; or 3. Failure of the owner/owner's agent to respond to thee or more complaints as required by this section. D. Operator Accountability. Applicants shall ensure that the occupants and/or guests of the short-term vacation rental unit do not create unreasonable noise or disturbances, engage in disorderly conduct, or violate provisions of this code or any, state law pertaining to noise, disorderly conduct, overcrowding, the consumption of alcohol, or the use of illegal drugs. Applicants are expected to take any measures necessary to abate disturbance described herein, including, but not limited to, directing the tenant, calling for law enforcement services, city code enforcement officers, removing the tenant or any other action necessary to immediately abate the service. If an applicant is not able to stop documented behavior that has been brought to applicant's attention, then such failure shall constitute a failure to respond as defined by subsection (C)(3) of this section. Operator of such unit shall be accessible to neighbors if there are problems that arise from a short term tenancy. SHORT TERM LODGING E. Operators/Owners shall, upon notification that occupants or tenants of his or her short-term vacation rental unit have created unreasonable noise or disturbances, engaged in disorderly conduct or committed violations of this code or state law pertaining to noise, disorderly conduct, overcrowding, the consumption of alcohol or the use of illegal drugs, prevent a recurrence of such conduct by those occupants or guests and shall respond to the notification of violations within 24 hours. Failure to respond to three or more complaints regarding tenant violations for a permitted property is grounds for penalties as set forth in .......below. Operators/Owners shall use "best efforts" to insure that the occupants and/or guests of the Short -Term Rental unit do not create unreasonable noise or disturbances, engage in disorderly conduct, or violate provisions of the Encinitas Municipal Code or any applicable law pertaining to noise, disorderly conduct, overcrowding, the consumption of alcohol, or the use of illegal drugs. F. Operators/Owners of the short-term vacation rental shall comply with all the provisions of this code. H. A fee in the amount of the business license fee shall be paid in conjunction with the short term lodging permit application. The fee is nonrefundable. 1. Violaions & Penalties. Failure to comply with the conditions specified in this chapter shall constitute a violation for which penalties may be imposed. City penalties for violations shall be issued in writing by the issuing officer upon documented verification of a violation. Documentation shall include, but not be limited to, copies of homeowner association warnings, reprimands, fines or other association actions; copies of citations, written warnings, reports or other filed documentation by law enforcement. The issuing officer shall notify the applicant in writing of the penalty to be imposed for violations specified as follows: 1. For the first violation within any 12-month period, the penalty shall be $250.00; 2. For a second violation within any 12-month period, the penalty shall be $500.00; 3. For a third violation within any 12-month period, the penalty shall be $1000.00 for any single permitted property, the issuing officer shall hold a hearing pursuant to ....... and the permit shall be revoked for a period of one year. 4. For a forth violation within any 12-month period, for any single permitted property, the issuing officer shall hold a hearing pursuant to ....... and the permit shall be revoked for a period of one year unless the owner/operator can show "best efforts" to curtail infractions. 5. Appeal Process. Hearings and appeals shall be made in accordance with Chapter 6. Any person operating a Short -Term Rental without a permit shall be guilty of a misdemeanor. 4 SHORT TERM LODGING J. Inspection requirements 1. Any new transient private home rental unit shall be inspected, prior to commencement of the use, by a qualified inspector authorized and approved by the City to conduct such inspections. The actual cost of such inspection, plus any administrative charges, shall be paid by the owner pursuant to the City's adopted fee schedule nevertheless said fee not to exceed $75. 2. After the initial inspection of a transient private home rental, said rental unit shall be re -inspected renewal of the STL permit every two years and continuing thereafter for as long as the unit is used as a transient private home rental. Completion of the bi-annual inspection will be verified at the time of business license renewal. K. Sign and notification requirements 1. Each transient private home rental shall be equipped with no more than one identification sign per street frontage, not to exceed 2 square feet in area. No other advertising signs promoting or identifying the unit shall be permitted anywhere in residential zone. 2. Also, an official uniform city public information identification seal (81/2 X 11) shall be attached to the transient private home rental in a location, which is clearly visible from the street, and shall clearly display all of the following information in lettering of sufficient size to be easily legible: a. The name of the managing agency, agent, property manager, or owner of the unit, and a telephone number at which that parry may be reached on a 24-hour basis; b. The maximum number of occupants permitted to stay in the unit; c. The maximum nurnber of vehicles allowed to be parked on the property; and d. The telephone number of the City's Code Compliance Division. 3. Each transient private home rental unit shall have a clearly visible and legible notice posted within the unit in a clearly visible location, containing all of the following information: a. The maximum number of occupants permitted to overnight stay in the unit; b. The maximum number of vehicles allowed to be parked on the premises; c. Notification of trash and refuse pick up d. The 24-hour telephone number of the managing agency, agent, property manager, or owner of the unit; and e. Notification that failure to conform to the parking and occupancy requirements for the structure is a violation of the City's Municipal Code. i SHORT TERM LODGING 4. "Operator" means the person who is proprietor of the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, or any other capacity. Where the operator performs his or her functions through a managing agent of any type or character other than an employee, the managing agent also is an operator for the purposes of this Chapter and has the same duties and liabilities as his or her principal. Compliance with the provisions of this Chapter by either the principal or the managing agent is, however, considered to be compliance by both. 5. "Hotel" means any structure,, or any portion of any structure, which is occupied or intended or designed for occupancy by transients for dwelling, lodging, or sleeping purposes, and includes, but is not limited to, any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof, duplex, triplex, single-family dwelling units except any private dwelling house or other individually -owned single-family dwelling rented only infrequently and incidental to normal occupancy or any timeshare as set out in California Revenue and Taxation Code Section 7280; provided that the burden of establishing that the facility is not a hotel shall be on the owner or operator thereof. 6. "Occupancy" means the use or possession or the right to the use or possession of any room or rooms, or portion thereof, offered for rent for dwelling, lodging, or sleeping purposes. 7. Operative Date. All short-term vacation rentals that exist at the time of the effective date of the ordinance codified in this chapter shall show evidence of compliance no later than the end of the year 2007. All new short -tern vacation rentals proposed after the effective date of the ordinance codified in this chapter must acquire a short-term vacation rental permit in compliance with this ordinance codified in this chapter. 8. Short-term vacation" is defined as the rental of any structure or any portion of any structure for occupancy for dwelling, lodging or sleeping purposes for more than two, but no more than 30, consecutive calendar days in duration in a residential zoning district, including detached single-family residences, condominiums, duplexes, twinplexes, townhomes and multiple family dwellings. 9. Exceptions. Rentals of more than 30 consecutive days in duration in residential zoning districts are not required to obtain a short-term vacation rental permit. 2 Blue - Non -Owner Occ. Yellow - Owner Occ. O Single Family* ❑ Condo** ❑ Duplex ❑ Triplex ❑ Four -flex ■ Single Family ■ Condo ■ Duplex ■ Triplex ■ Four-Plex 92663 (Peninsula) Owner Occupied by Type ■ Duplex 16% ■ Condo 25 ■ Four-Plex 2% *Excludes Newport Heights, Newport Shores, Balboa Coves, and Lido Island **Excludes Newport Terrace and all Condos off Superior and West 15th Street ❑ Single Family* 15% ❑ Condo" 4% ❑ Duplex 3% ❑ Triplex 0% ■ Single Family 33 ❑ Four-Plex 0% Non Owner Occupied by Zip Code 092663 77% ❑ 92662 66% ❑ 92bbI 61% ❑ 92657 ❑ 92660 ❑ 92657, 16 % ❑ 92661 ❑ 92662 ■ 92660 16% ■moms . c 3,000 2,500 2,000 1,500 60101 fl Housing Density By Unit Per Square Mile (U.S. Census 2000) Similar Sized Cites, Orange County, CA Yorba Linda San Clemente Laguna Niguel Lake Forest Buena Park Tustin Newport Beach Owner Occupied by Zip Code 092662 34 ❑ 9, ■ 92E 84 192657, 84% ❑ 92657 ■ 92660 ❑ 92661 ® 92662 ® 92663