Agenda - Planning Commission - 01/09/2014

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November 25, 2013 I Volume 7 I Issue 22 Zoning Bulletin or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap[.]" (42 U.S.C.A. § 3604(f)(1).) Persons recovering from drug and/or alcohol addiction are considered disabled under the FHA and therefore protected from housing discrimination. (See 42 U.S.C.A. § 3602(h).) Group homes such as the ones that were at issue here are "dwellings" under the FHA (42 U.S.C.A. § 3602(b)), and therefore the FHA prohibits discriminatory actions that adversely, affect the availability of such group homes. Moreover, it is well established that zoning practices that discriminate against disabled individuals can be discriminatory, and therefore violate § 3604, if they contribute to "mak[ing] unavailable or deny[ing]" housing to those persons. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a pub- lic entity, or be subjected to discrimination by any such entity." (42 U.S.C.A. § 12132.) Like the FHA, the ADA's protections extend to persons recovering from drug or alcohol addiction. Also like the FHA, the ADA prohibits governmental entities from discriminating against disabled persons through zoning. The Group Homes presented evidence that showed that the City's purpose in enacting the Ordinance was to exclude group homes from most residential districts and to bring about the closure of existing group homes in those areas. The evidence also showed that the Ordinance regulated other types of group residential arrangements pri- marily for the purpose of maintaining a "veneer of neutrality." For example, while the Ordinance facially imposed restrictions on some other types of group living arrangements as well, the City did not impose similar regulations on properties rented to vacationing tourists, which are similar to group homes in regular turnover of occupants. The district court acknowledged the evidence that the City acted with a discriminatory motive but found that evidence "irrelevant" because, it stated, the City had not treated group homes any worse than certain other group living arrangements. The court also found that the Group Homes failed to create a triable issue of fact as to whether the losses that they claimed their businesses suffered were caused by the enactment or enforcement of the Ordinance. Finding there were no ma- terial issues of fact in dispute, and deciding the matter on the law alone, the district court issued summary judgment in favor of the City. The Group Homes appealed. DECISION: Judgment of district court reversed and matter remanded. The United States Court of Appeals, Ninth Circuit, held that where, as here, in a zoning -related matter there is direct or circumstantial evi- 4 © 2013 Thomson Reuters