Posted by: Patricia Salkin | March 25, 2015

Sixth Circuit Court of Appeals Holds Special Use Requirement for Residential Substance Abuse Facility is not Discriminatory

In this case, Get Back Up, Inc., operated a 160 bed all male residential substance abuse treatment facility in the City of Detroit.  Get Back Up sought a conditional use permit application to operate in an unused school building it purchased from the Detroit Public Schools, the City’s Board of Zoning Appeals denied Get Back Up a permit to operate its facility in an area of the City zoned for general business and historic use.  The B4-H District allows boarding schools, child care institutions, nursing homes, religious residential facilities, adult day care centers, hospitals, libraries and religious institutions (among other uses) by right.  “Residential substance abuse service facilities” is listed as one of several conditional uses requiring the satisfaction of 15 stated criteria before being allowed.  Get Back Up originally received approval from the Building Safety and Engineering Department, but the Russell Woods-Sullivan Area Homeowners Association appealed the approval to the Board of Zoning Appeals (BZA).  The BZA voted to reverse the decision.  Get Back Up appealed to the trial court and following a protracted legal dispute the trial court affirmed the BZA’s denial.  Appeals to the Michigan Court of Appeals and Supreme Court were unsuccessful so  Get Back Up filed a complaint in federal court, alleging violations of the American’s with Disabilities Act, the Rehabilitation Act, and the Fair Housing Act.  The federal district court held for the city, and Get Back Up appealed. The issue was whether a city zoning ordinance violates federal antidiscrimination laws when it requires a residential facility for the treatment of substance abuse to obtain a conditional use permit to operate in a business district.

At the outset the court noted, nursing homes and hospitals, cited by Get Back Up are not similar uses to the residential treatment facilities. Accordingly, because there were no materially similar uses that may operate by right in a B4 zoning district, the ordinance was not facially discriminatory. Moreover, Get Back Up failed to offer any direct evidence of discriminatory intent. As to the vagueness argument, the court stated that zoning ordinances must be sufficiently clear to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and to “provide explicit standards for those who apply them.” Here, the terms at issue, “detrimental to or endanger the social, physical, environmental or economic well being of surrounding neighborhoods,” “use and enjoyment of other property in the immediate vicinity,” and “compatible with adjacent land uses” are terms with “common-sense meanings” and are not so vague in their application that they fail to provide fair notice to applicants or fail to provide fair notice to applicants or fail to provide standards to guide Board of Zoning Appeals decisions. Finally, the court held that unlike in a First Amendment challenge to a prior restraint on protected expression, the vagueness doctrine applies with special force in the context of prior restraints, where an ordinance must provide “narrow, objective, and definite standards.” Accordingly, the decision of the district court was affirmed.

Get Back Up, Inc v City of Detroit, 2015 WL 1089662 (6th cir. unpub. 3/13/2015)

The opinion can be accessed at:

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