Posted by: Patricia Salkin | May 1, 2020

Eleventh Circuit Court of Appeals Holds County’s Enforcement of Ordinance Did Not Violate ADA or FHA

This post was authored by Matthew Loescher, Esq.

House Recovery Residence, Inc. and its founder, Kevin Weikum, brought discrimination claims under the brought under both the Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“ADA”) against Cobb County, Georgia. Before 2010, recovery residences in Cobb County were considered halfway houses and could not qualify as group homes. After 2010, the subject Ordinance allowed recovery residences to qualify as group homes where the relevant conditions of the County’s zoning ordinance were met. The parties filed cross-motions for summary judgment, and the district court denied His House’s motion for summary judgement and denied in part and granted in part summary judgment in favor of the County.

On appeal, His House contended that the district court erred when it granted summary judgment on its disparate treatment claim, as it had presented both direct and circumstantial evidence of disparate treatment sufficient to survive summary judgment. The court rejected this contention, finding His House failed to provide sufficient evidence that the County treated them differently from similarly situated non-disabled citizens. Additionally, the mere fact that the Ordinance was amended as a result of a complaint by an advocacy group did not demonstrate that His House had been treated differently than similarly situated non-recovering people or that there was discriminatory intent behind the amendment. Moreover, His House failed to provide evidence that the “members of the Board were aware of the motivations of the private citizens” or that, despite these motivations, the Board was not justified in denying the Temporary Land Use Permit (“TLUP”).

His House lastly claimed that the Ordinance was facially discriminatory. This claim was also denied as the Ordinance did not, on its face, treat recovering individuals any differently than non-recovering individuals. Specifically, none of the Ordinance’s provisions distinguished based on the presence of disability. Here, the limitation on the number of residents applied to all group homes, as did the requirement that group homes have a resident caregiver, the provision allowing review of the schedule of activities by periodic inspections, and the prohibition against persons on parole or on probation. The judgement of the district court was therefore affirmed.

His House Recovery Residence, Inc v Cobb County, GA, 806 Fed. Appx 780 (11th Cir. CA 3/26/2020)


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