An appeals court ruling that allowed group homes for recovering addicts to challenge the city ordinance that regulates the facilities will not be reheard, according to court documents.
A majority of judges from the 9th U.S. Circuit Court of Appeals decided Tuesday to deny a review of the court’s earlier ruling on the case between the city of Newport Beach and Pacific Shores Properties, LLC.
In September, a panel of appeals court judges reversed the district court’s decision that had ruled in favor of the city of Newport Beach.
“The district court erred in disregarding the evidence that the city’s sole objective in enacting and enforcing its ordinance was to discriminate against persons deemed to be disabled under state and federal housing discrimination laws,” the panel found.
The panel included Chief Judge Alex Kozinski and U.S. Circuit Judges Stephen Reinhardt and Sidney Thomas.
Tuesday’s ruling rejected the call to rehear the case. The panel’s September decision was left standing.
Elizabeth Brancart, an attorney with Pescadero-based firm, Brancart & Brancart, who has represented Pacific Shores in court, said they are pleased with the ruling.
But not everyone was so happy.
“The order denying the rehearing, however, also contained a detailed dissent that was authored by Judge [Diarmuid] O’Scannlain and joined by four other Ninth Circuit judges,” city spokeswoman Tara Finnigan explained in an email.
U.S. Circuit Judges Diarmuid O’Scannlain, Richard Tallman, Consuelo Callahan, Carlos Bea, and Sandra Ikuta dissented from the denial.
O’Scannlain called the decision to not rehear the case a “regrettable failure.”
“Our Court, alone among the nation’s appellate tribunals, has embarked on an uncharted and highly dubious course,” O’Scannlain said.
“The panel’s decision in these cases canonizes a novel theory of liability under the anti-discrimination statutes: plaintiffs may now challenge facially neutral and fairly enforced municipal ordinances on the mere accusation that improper intent had tainted the legislative process without any showing of actual discriminatory treatment,” he concluded. “To quote the panel, this absurd result ‘is not the law.’”
O’Scannlain argued that the panel’s opinion invented “an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect.”
“A single member of any protected class will now be able to challenge a facially neutral – and evenly applied – municipal ordinance without having suffered any actual discrimination,” he continued.
“In the opinion, Judge O’Scannlain supports the city’s position that the city didn’t do anything wrong because its regulations treat disabled individuals the same as similarly situated non-disabled individuals,” Finnigan said.
The definitions in the ordinance do not exclude disabled persons as a matter of course, O’Scannlain wrote in his dissent.
The ordinance, enacted in January 2008, was meant to address concerns raised by residents.
It prohibited group homes in certain areas of the city and required permits by the homes in the allowable areas.
Group home managers testified that the permit process was “burdensome, time-consuming, and costly,” according to the panel’s report in September.
The aim of the ordinance was to shut down group homes and prevent new ones from opening, Reinhardt claimed in his opinion with the panel’s ruling.
In April 2007, there were 73 group homes in Newport Beach, 48 of which were licensed treatment facilities and 25 of which were unlicensed sober houses, according to court documents.
By February 2009, more than 25 facilities were closed or pending closure. About one year later only nine had been granted permits or reasonable accommodations, Reinhardt explained.
Now that a ruling has been made by the 9th Circuit, the city will consider whether to petition the United States Supreme Court for review of the decision, Finnigan said.
The City Council would have to vote on whether or not the city should petition Supreme Court, she added. They have 90 days from date of the decision.
As the father of group home zoning law, I can confidently report that Newport News’s zoning treatment was patently illegal and that the dissent in this case is legally absurd. Under the nation’s Fair Housing Act and California law, group home for people with disabilities (and people in recovery from drug or alcohol addiction disabled under the law) must be allowed as a permitted use in all residential districts, subject at most to a rationally-based spacing distance (no more than a typical block of 660 feet) and a licensing requirement. Those that don’t meet these standards warrant the heightened scrutiny of a special use permit to assure they do not cluster on a block and that they provide proper residential services so that residents are protected from incompetent or exploitative operators. Sadly litigation rarely leads to “good” law in these cases as each side seeks to prevail with its own extreme position.