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Harper v. Lindon City

United States District Court, D. Utah

May 21, 2019

GEORGE E. HARPER, an individual, Plaintiff,
LINDON CITY, a Utah municipal corporation, and HUGH VAN WAGENEN, a Utah resident, Defendants, and FAIR CARE LINDON, LLC, Defendant in Intervention.



         This matter is before the court on Plaintiff George E. Harper's Motion for Preliminary Injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure. The court held a hearing on the Motion on May 8, 2019. At the hearing, Plaintiff was represented by Edward W. McBride, Jr., Defendants were represented by Robert C. Keller, and the Defendant in Intervention was represented by Daniel J. McDonald. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the Motion. Now being fully advised, the court issues the following Memorandum Decision and Order denying Plaintiff's Motion for Preliminary Injunction.


         Plaintiff George E. Harper (“Harper”) runs Maple Mountain Recovery, an inpatient treatment center for addiction recovery located in Mapleton City, Utah. In November 2017, Harper purchased the home located at 1422 East 155 South, Lindon, Utah 84042 (the “Property”), where he planned to open another residential inpatient treatment center specifically for women. On or about November 11, 2017, Harper submitted a land use application to Lindon City (the “City”) for the new facility under the project name “Lindon RTC.” The application, however, did not propose a number of residents. On or about February 22, 2018, Harper submitted another land use application for the Property, but renamed the project “Maple Mountain Recovery - Lindon” (“MMRL”). In his second application, Harper sought a conditional use permit to use the Property “as a residential drug treatment and rehabilitation” program.

         In conjunction with the second application, Harper requested both a business license and a reasonable accommodation under the Fair Housing Act (“FHA”) in which he asked the City to waive its eight-person limit on the number of unrelated persons that may live together in a “residential facility for persons with a disability” (“RFPD”) in the City's R1-12 zone.[1]Specifically, Harper requested a reasonable accommodation to allow MMRL to house up to twenty residents. Harper represented that a conditional use of twenty unrelated persons was preferable because of its “therapeutic value.” Further, Harper claimed that the facility conformed to all relevant laws, regulations, and requirements. The application included a site plan and also contemplated a live-in staff, three off-street parking stalls, and family group meetings once a week. Despite these accommodations, Harper claimed that “the usage and traffic [would] virtually be unchanged.” Harper also included a letter from Cliff Simpson (“Simpson”), a clinical director for MMRL, that addressed the number of participants in the program. In the letter, Simpson opined that the optimal size for a therapeutic group was between eight and twelve patients. While he conceded that the request to allow up to twenty residents was above the optimal size, he claimed that there were many instances in which a resident would be unable to attend a group meeting on a given day. Thus, allowing more residents would ensure that the group size never dropped below the ideal number. Simpson also suggested that participants would be entering and exiting the program on an average of every sixty days. Then, in a May 2018 letter, Harper revised the number of requested residents from twenty to sixteen.

         On or about May 17, 2018, Harper submitted additional items regarding MMRL to the City, including copies of Maple Mountain Recovery's Policies and Procedures Manual, Employee Handbook, and Resident Handbook. The supplemental materials also included letters from Hanna LeBaron, LCSW (“LeBaron”) and Craig Ramsey, LMFT (“Ramsey”)-two employees of Harper's organization. In LeBaron's letter, she claimed that it was “vital to have 8-12 women in [a] group meeting at the same time.” Further, based on her eighteen-year career of working in the mental health and substance abuse fields, she claimed that centers with less than sixteen residents were less effective. While she claimed that twenty-four clients was the ideal community size, she opined that sixteen was adequate. Beyond these assertions, LeBaron provided no additional support or basis for her conclusions. In Ramsey's letter, he opined that having sixteen beds would allow MMRL “to address the needs of the clients . . . without compromising the integrity or effectiveness of the program.” Ramsey claimed that the ideal therapeutic group size was eight to twelve individuals, but could be as high as fifteen. Thus, having sixteen patients would allow MMRL to divide the patients into two groups to “continue to serve the optimal number of clients effectively.” Like LeBaron, Ramsey did not cite any articles or statistics to support his claims.

         In response to Harper's request for a reasonable accommodation under the FHA, a group of city residents who own homes and live near the Property (Intervenor Defendant Fair Care Lindon, LLC (“Fair Care”)) submitted a thirty-eight page opposition, which contained, among other things, a detailed affidavit from Dr. John Majer (“Dr. Majer”), an expert on addiction and recovery in residential settings. In his affidavit, Dr. Majer questioned whether MMRL's proposed number of patients was therapeutically necessary. In addition to its objection to Harper's request for a reasonable accommodation, Fair Care submitted another objection to MMRL qualifying for the eight-bed RFPD exception.

         In August 2018, the City held a hearing (the “Hearing”) to consider Harper's request for a reasonable accommodation in allowing sixteen unrelated individuals to reside at the Property. On August 29, 2018, Hugh Van Wagenen (“Van Wagenen”), the City Planning Director, denied Harper's request.[2] Van Wagenen concluded that Harper failed to (1) provide sufficient evidence to explain why the request was necessary or reasonable and pointed out that Harper's evidence included statements acknowledging that eight individuals would be adequate to meet the therapeutic needs of patients; (2) produce evidence to support his claim that the proposed use would not affect or change the character of the neighborhood; and (3) submit evidence that the requested accommodation would achieve equal results for housing opportunities between people with and without disabilities. Lastly, the City noted that Harper also asked for a waiver from compliance with the City's code requirement that the Property be made handicap accessible pursuant to the Americans with Disabilities Act (“ADA”). But Harper failed to provide any evidence or arguments supporting his request to be exempted from this requirement.

         Despite the City providing Harper with the necessary information to appeal the City's decision, Harper filed the instant suit on October 2, 2018. The next day, on October 3, Harper filed a motion for preliminary injunction. On November 21, 2018, Fair Care filed a motion to intervene, which the court granted a few weeks later. On November 25, 2018, Harper withdrew the motion for preliminary injunction, but two days later, on November 27, he filed a second motion for preliminary injunction. Then, on December 16, 2018, Harper filed an amended complaint in which he added Van Wagenen as a defendant. In the Amended Complaint, Harper raised five causes of action alleging violations of the FHA and 42 U.S.C. § 1983.[3] For the § 1983 causes of action, Harper claimed violations of free speech, equal protection under the Fourteenth Amendment, and due process under the Fifth and Fourteenth Amendments. He also raised municipal liability for having an illegal policy or custom. On January 30, 2019, the court entered an order denying Harper's second motion for preliminary injunction without prejudice because that motion was filed in relation to Harper's inoperative original complaint. Harper then filed a third motion for preliminary injunction (the Motion now before the court) on February 28, 2019 in which he seeks to enjoin specific provisions of the City Code.


         “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the [movant] is entitled to such relief.'” New Mexico Dep't of Game & Fish v. United States Dep't of the Interior, 854 F.3d 1236, 1245 (10th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). The right to injunctive relief “must be clear and unequivocal.” Id. (quoting Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1261 (10th Cir. 2004)). Moreover, to obtain a preliminary injunction, the movant must establish the following four factors:

(1) the movant is substantially likely to succeed on the merits; (2) [the movant] will suffer irreparable injury if the injunction is denied; (3) [the movant's] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.

Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (alterations in original).[4] Nevertheless, when a movant seeks “(1) [a] preliminary injunction[] that alter[s] the status quo; (2) [a] mandatory preliminary injunction[]; [or] (3) [a] preliminary injunction[] that afford[s] the movant all the relief that it could recover at the conclusion of a full trial on the merits, ” the movant must satisfy a heightened standard. Id. at 723-24. In such cases, the movant must “make[ ] a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Id. at 724 (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1071 (10th Cir. 2009)). Defendants claim that the heightened standard applies in this case. The court need not address that issue, however, as Harper's Motion fails to satisfy the basic standard for a preliminary injunction.

         A. Likelihood of Success on the Merits

         In his Motion, Harper contends that he is likely to succeed on his claims that (1) the City Code facially discriminates against the disabled in violation of the FHA; (2) the City applied the incorrect standard of review to his request for a reasonable accommodation; (3) the City Code violates the United States Constitution; and (4) the City Code creates circularity in its licensing requirements. The court will address each of these claims in turn.

         1. Facial Challenge

         Under the FHA, it is unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.” 42 U.S.C. § 3604(f)(1). The FHA defines “handicap” to include individuals that have a “mental impairment which substantially limits one or more” of their major life activities. Id. § 3602(h)(1). “It is well established that individuals recovering from drug or alcohol addiction are handicapped under the [FHA].” Corp. of Episcopal Church in Utah v. W.Valley City, 119 F.Supp.2d 1215, 1219 (D. Utah 2000). To challenge a law or policy as being discriminatory against the disabled under the FHA, plaintiffs frequently rely on a disparate treatment theory of liability. Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995). A disparate treatment claim arises when a policy or ordinance is discriminatory on its face. See Id. at 1500-01. In other words, ordinances that “single out the handicapped and apply different rules to them” are facially discriminatory. Id. at 1500.

         To ascertain whether an ordinance singles out the handicapped, courts consider its application by comparison to the non-handicapped. See Id. at 1502. Under this comparative analysis, and in the context of group living arrangements (“GLAs”), plaintiffs must show that their GLA for the handicapped was subjected to conditions not imposed on GLAs for the non-handicapped. Id. If plaintiffs fail to make such a showing, they have failed to demonstrate that they have “suffered differential treatment when compared to a similarly situated ...

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