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Recovery LandHoldings, LLC v. City of South Ogden

United States District Court, D. Utah

April 4, 2019



          Ted Stewart, United States District Judge.

         This matter is before the Court on Defendant City of South Ogden's (“City”) Motion for Summary Judgment, on Plaintiff Recovery Land Holdings, LLC's (“Brighton”) Alternative Rule 56(d) Motion, and on the Stipulated Motion to Stay Discovery. For the reasons discussed below, the Court grants Brighton's Rule 56(d) Motion and grants in part and denies in part the City's Motion for Summary Judgment. Additionally, the Court will not address the Stipulated Motion to Stay Discovery as it is rendered moot at the issuance of this order.

         I. BACKGROUND

         Plaintiff Brighton operates a residential facility for people recovering from alcoholism and substance abuse located in South Ogden, Utah. Brighton's facility is located in an R-1-10 residential zoning district. South Ogden City Code § 10-14-21 prohibited all “Group Living Arrangements” (“GLA”) in the City's R-1-10 Residential Zoning District. The Code defines a GLA as “[a] group living or congregate living arrangement where groups of more than four (4) unrelated persons live together in a single dwelling or housekeeping unit.”[1] The definition of GLAs includes a Residential Facility for Disabled Persons (“RFDP”).[2] A RFDP is “[a] residence in which no more than eight (8) Disabled Persons reside.”[3] At the time Brighton filed this suit, a different provision of the City Code, § 10-7A-1, provided that RFDPs were a permitted use in R-1-10 zones. Despite this discrepancy between the two provisions, there is no dispute that Brighton has been permitted to and continues to operate its facility in an R-1-10 zone. Of note, it appears the South Ogden City Code sections creating the discrepancy have since been changed and the discrepancy has been resolved. Read in conjunction, §§ 10-7A-2 and 10-14-21 now clearly allow for RFDPs in R-1-10 zones.[4]

         On June 13, 2014, Brighton received an accommodation from the City allowing up to twenty patients at its facility. Later, on December 6, 2016, the City adopted Ordinance 16-20, amending certain provisions of the City's zoning code. Relevant here, Ordinance 16-20 added the definition for GLAs, restricted GLAs to certain zoning districts, and banned any GLA within a 2, 640-foot radius of any other GLA. Additionally, Ordinance 16-20 increased the number of disabled persons who could live together in an RFDP to eight, as opposed to the four-person cap on nondisabled individuals living together.

         On March 10, 2017, without knowledge of the amended provisions, Brighton filed an application with the City for a reasonable accommodation to allow Brighton to provide treatment for up to thirty-two people. After learning of the 2016 adoption of Ordinance 16-20, Brighton supplemented its reasonable accommodation application on April 18, 2017, seeking accommodation from the City's Section 10-14-21 prohibition of GLAs in R-1-10 zones and from the eight-person cap for RFDPs under Section 10-2-1.

         The City's Accommodation Review Committee (“ARC”) denied Brighton's application on May 17, 2017, explaining that 1) the accommodation was not necessary to achieve an equal housing opportunity for Brighton's residents within the meaning of the Fair Housing Act; and 2) granting the accommodation would not be reasonable as it would be a fundamental departure from the current land use and zoning programs. Brighton appealed that decision to a Hearing Officer about two months later. On August 30, 2017, the Hearing Officer denied the appeal, explaining that under the requirements of the Fair Housing Act, the accommodation was not necessary.

         Brighton brought this action on September 29, 2017. Brighton brings claims under the Fair Housing Act (“FHA”), the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”). Brighton advances three theories of liability under these provisions: (1) disparate treatment discrimination; (2) disparate impact discrimination; and (3) failure to grant a reasonable accommodation. Defendant City subsequently filed its Motion for Summary Judgment, and Brighton has responded with a Rule 56(d) Motion requesting time to complete discovery.

         II. RULE 56(d) MOTION

         The Court first addresses Plaintiff's Rule 56(d) Motion. Federal Rule of Civil Procedure 56(d) states that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”[5]

         The party requesting additional discovery must present an affidavit that identifies “the probable facts not available and what steps have been taken to obtain these facts. The nonmovant must also explain how additional time will enable him to rebut the movant's allegations of no genuine issue of material fact.”[6] “The general principle of Rule [56(d)] is that ‘summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.'”[7] “Unless dilatory or lacking in merit, the motion should be liberally treated.”[8]

         Here, Brighton argues that it needs to conduct further discovery to fully and completely respond to the City's Motion. Brighton states that it requires at least the following evidence:

a. Testimony of South Ogden City Council members, Planning Commissioners, city employees, and citizens involved in the approval of the Ordinance relating to the historical background of the decision, the specific sequence of events leading up to the challenged decision, departures from the normal procedural sequence, and the legislative history and contemporary statements by members of the decision-making body, which testimony will provide probable evidence of direct or indirect discrimination;
b. Relevant emails, communications, memoranda, notes, or other documents in the possession, custody, or control of City Council, Planning Commission members, city administrators, and citizens relating to the Ordinance, from both work and personal email accounts and correspondence;
c. Evidence of other reasonable accommodation requests under the Ordinance or its predecessor;
d. Expert testimony regarding statistical evidence of the disparate effect the Ordinance has had on the handicapped population.[9]

         The City makes four arguments against Brighton's request. First, the City argues that Brighton is not entitled to discovery on any alleged insidious motives or intent. Second, and relatedly, the City argues that discovery will not help Brighton avoid summary judgment. Third, the City argues that Brighton has been dilatory and, therefore, its request should be denied. Finally, the City argues that Brighton is not entitled to discovery on its failure-to-accommodate claim.

         As to the City's first argument, the City essentially argues that the Court cannot look beyond the language of the Ordinance and its accompanying legislative history to determine whether there is evidence of disparate treatment. To support this argument, Defendant points to cases addressing challenges to the constitutionality of a statute. In those cases, courts have held that they “will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”[10]

         In this case, however, Brighton's disparate treatment claim does require a showing of intentional discrimination. This can be done through direct evidence-such as a policy maker making “discriminatory comments about the disabled while explaining his basis for the contested decision”-or circumstantial evidence-where Brighton “must produce evidence suggesting that the city denied to it zoning relief granted to similarly situated applicants without disabilities”[11] or “that the city would have granted to an applicant without disabilities the relief it denied” Brighton.[12] Additionally, support for a disparate impact claim “is generally shown by statistical evidence . . . involv[ing] the appropriate comparables necessary to create a reasonable inference that any disparate effect identified was caused by the challenged policy and not other causal factors.”[13] This is the type of evidence requested in Brighton's Rule 56(d) Motion. Thus, the City's first argument must be rejected. Perhaps Brighton may not be entitled to all of the discovery that it seeks, but that does not mean that it is barred from discovery altogether.[14] Furthermore, the instant Motion is not the proper place to determine the limits, if any, to be placed on discovery.

         The City's second argument relates to the first. In sum, the City argues that any quantum of evidence will be insufficient to avoid summary judgment. However, without conducting the necessary discovery, it is impossible to make this determination. Once discovery has taken place, the parties and the Court will be in a better position to evaluate whether the evidence is sufficient to avoid summary judgment. Therefore, the City's second argument also fails.

         Third, the City argues that Brighton has been dilatory with respect to its disparate impact claim. Disparate impact claims are generally shown by statistical data, as has been explained.[15] To this point, it appears that Brighton has failed to produce any statistical data to support its claim, though it has long claimed that Ordinance 16-20 disproportionately affects the disabled.

         While a close call, the facts of this case do not demonstrate that Brighton has been dilatory. Brighton filed its Complaint in September 2017. However, the parties sought and received several extensions to explore possible ways of resolving this dispute short of litigation. Thus, the City's Answer was not filed until June 2018, and a Scheduling Order was only entered in July 2018. The City filed its Motion for Summary Judgment just four months later. Under the terms of the Scheduling Order, discovery has yet to close.[16] While Brighton potentially could have been more diligent in marshaling the evidence necessary to support its claim, it cannot be faulted for failing to complete discovery months before the agreed-upon discovery deadline.

         Finally, the City argues that Brighton is not entitled to discovery on its failure-to-accommodate claim because the Court's review of that claim is limited to the administrative record. The City is correct in this regard and Brighton agrees that the Court's review is limited to the administrative record.[17] Thus, no further discovery is necessary as to this claim and it is ripe for decision. While Brighton argues that there are material facts that require a denial of summary judgment as to that claim, ...

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