Fed. Dist. Court in CO Denies County Summary Judgment on Intentional Discrimination Under the FHA and Equal Protection Claims

This post was authored by Matthew Loescher, Esq.

Soaring Hope, owned by Dr. Judith Miller, operated a “series of substance abuse rehabilitation clinics,” with the goal to “assist addicts to successfully create a clean and sober productive lifestyle.” The County regulated and enforced land use through its Land Development Code (“LDC”), which provided that certain facilities located within specific zoning districts were allowed to operate as of right. On April 27, 2016, Dr. Miller submitted an application for a Special Use Permit to increase the occupancy at the Spruce Road Property from five to ten residents. County Executive Director Craig Dossey sent a letter to Soaring Hope and the Greens, in which he wrote, “I have concluded that the Spruce Road operation is a rehabilitation facility, rather than a group home. Rehabilitation facilities are not permitted, as of right or by special review, in the RR-0.5 zoning district, and for this reason, your application will not be further processed and will be returned to you.”  The County issued a notice of violation to Soaring Hope on August 31, 2016, and Plaintiff’s brought this action.

Plaintiffs claimed that the County violated the FHA by: intentionally discriminating against Plaintiffs; creating policies that have a disparate impact on Plaintiffs; failing to provide Plaintiffs’ with reasonable accommodation; and engaging in interference, coercion, or intimidation. It was undisputed that the Spruce Road Property was properly categorized as a Rehabilitation Facility and, as such, was not entitled to a Special Use Permit in the zoning district. Plaintiffs did not identify any other treatment facilities that were allowed to operate within a single-family residential zoning district. The court therefore granted Defendant’s Motion for Summary Judgment as to these theories of intentional discrimination. Furthermore, the County’s denial of Soaring Hope’s Special Use application could not be considered a failure to accommodate since Plaintiffs were seeking an opportunity that was unavailable to them. Accordingly, Plaintiffs failed to establish that the accommodation was reasonable.

Plaintiffs next alleged several theories in support of their claim that the County’s actions had a disparate impact on handicapped or disabled persons. However, without evidence supporting the actual number of residents that Soaring Hope could accommodate, or evidence that the County has ever denied a Group Home’s application for a Special Use Permit following the 2014 amendments to the LDC, the Court was unable find prima facie evidence of a disparate effect that was caused by the challenged policy, rather than other causal factors. As such, the court granted summary judgment to Defendant for any claims relying on this theory of disparate impact.

Plaintiffs next contended that the County’s definition of “Rehabilitation Facility” was unconstitutional because it was impermissibly vague, overbroad, and encouraged arbitrary and capricious enforcement. Although the definition did not define the precise medical treatments that would render a facility a Rehabilitation Facility, the court found that it was sufficiently clear that the definition hinged on whether a party provides “accommodation, treatment and medical care for patients suffering from alcohol or drug-related illness.” The County’s treatment of the Appaloosa Home (another one of Plaintiffs’ facilities) in 2014 did not render the County’s treatment of the Spruce Road Property in 2016 arbitrary or capricious, especially when the LDC was amended during the intervening period.

Lastly, Plaintiffs alleged that the County denied Soaring Hope equal protection when it enacted occupancy limits on Group Homes that were not imposed on other residents. Here, Group Homes for the Aged (Assisted Living Residences) had an eight-person occupancy limit; family care homes (such as foster homes and specialized group facilities) had an eight-person occupancy limit; day care homes had a twelve-person occupancy limit; and there was no occupancy limit for the number of related persons who can live together in a home. As the court found that these facts were sufficient to make out Plaintiffs’ prima facie claim for intentional discrimination under the FHA, it also found that a reasonable factfinder could conclude that the County’s imposition of occupancy limits discriminated against Plaintiffs because of their disabilities, thereby depriving them of equal protection.

Green v El Paso County, 2020 WL 4429387 (D. CO 7/31/2020)