Metropolitan News-Enterprise


Wednesday, March 5, 2014


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Ninth Circuit Denies En Banc Review of Ruling That Allows Suit Against Group Home Restrictions


By a MetNews Staff Writer


A Ninth U.S. Circuit Court of Appeals ruling that allows operators and residents of group homes for recovering addicts to challenge a Newport Beach ordinance restricting where such facilities may be located was left standing yesterday as the court denied en banc review.

The denial came over the dissent of Judge Diarmuid O’Scannlain, who accused the panel of having invented “an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect.”

O’Scannlain was joined by Judges Carlos Bea, Richard Tallman, Consuelo Callahan and Sandra Ikuta.

The case drew amicus briefs from the Obama administration, supporting the plaintiffs, and the League of California Cities, supporting Newport Beach

In its Sept 22 decision, the panel reversed U.S. District Judge James V. Selna’s summary judgment ruling in favor of the city. The district judge, Judge Stephen Reinhardt wrote, “erred in disregarding the evidence that the City’s sole objective in enacting and enforcing its Ordinance was to discriminate against persons deemed to be disabled under state and federal housing discrimination laws.”

Reinhardt said residents and operators of the homes do not have to identify similarly situated individuals who received better treatment than they did, but are entitled to a trial based on “direct or circumstantial evidence that the defendant has acted with a discriminatory purpose and has caused harm to members of a protected class.”

The city, whose officials argued that residential programs had become so numerous as to threaten the safety and character of its neighborhoods, enacted the ordinance in 2008, after having previously enacted a series of moratoria.

It did so in the face of warnings by its own counsel that it would face possible litigation over claims of discrimination, as well as an opinion by then-Attorney General Jerry Brown that it would violate a state law requiring that recovery and treatment facilities serving six or fewer residents be treated as residential uses for zoning purposes. Brown also warned that state law does not permit cities to exclude state-licensed residential treatment facilities.

The ordinance prohibits new group homes in most residential areas, requires existing group homes in those areas to obtain permits, and requires those seeking to establish group homes in the areas in which they are still permitted to obtain permits as well.

Reinhardt called the permit process “burdensome” and “onerous.” The ordinance applies both to state-licensed residences at which treatment is offered and to “sober living” homes, which offer no treatment and do not require a state license.

The plaintiffs say the ordinance violates the Equal Protection Clause, because it does not restrict property owners in residential areas from using their property for other short-term purposes with potential negative impacts, such as by renting them to tourists. They presented evidence that the city had considered regulating such uses under the ordinance, but backed down in the face of protests by property owners.

The plaintiffs also contend that the ordinance violates the federal Fair Housing Act, the state Fair Employment and Housing Act, and the Americans with Disabilities Act, and Reinhardt said they made a prima facie showing that violating those laws was “the city’s sole objective in enacting and enforcing its ordinances.”

The panel also overturned the district judge’s ruling that the group home owners—who claim they lost substantial business and incurred unnecessary expenses as a result of the city’s discriminatory practices—failed to raise triable issues as to damages.

Reinhardt cited evidence of lost business resulting from the ordinance, and said the operators may also be entitled to recover money they spent presenting their unsuccessful permit applications to the city and advertising the fact that they were still operating.

Chief Judge Alex Kozinski and Judge Sidney R. Thomas joined in the opinion.

In his dissent from the denial of rehearing en banc, O’Scannlain questioned the workability of the standard enunciated by Reinhardt.

“What sorts of pre- or post-enactment statements may a court examine for this impermissible intent - utterances during committee meetings, quotations from newspaper articles, political stump speeches,” he wrote. “Who among the various government actors must express this intent - only those officers with a vote on the city council, or any municipal employee involved in the drafting? What may or may not private citizens say in support of local initiatives, and when may they say it, lest any of their ill motives taint the legislative process? Such questions hardly seem appropriate for principled and consistent judicial inquiry.”

The case is Pacific Shores Properties, LLC v. City of Newport Beach, 11-55460.


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