Opinion
CASE NO. CV 01-07183 (RZ)
February 26, 2003
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came before the Court on January 14-24, 2003, for trial. Plaintiffs appeared through their counsel Amitai Schwartz, Elizabeth Letcher and Samuel Miller. Defendants appeared through their counsel Gene Tanaka and Kevin T. Collins. The case centers around the decision by the City of Gardena to deny Plaintiff Behavioral Health Services ("BHS") a conditional use permit for certain property owned by BHS. The Court heard testimony from numerous witnesses, including each of the Gardena City Council members, Gardena's Community Development Director and various citizens residing near the location at issue, as well as BHS's president, various participants in BHS's programs and various experts. The Court also has reviewed the numerous exhibits admitted at trial.
The Court now makes the following findings of fact and conclusions of law in accordance with FED. R. Civ. P. 52.
FINDINGS OF FACT
1. Plaintiff BHS is one of the largest providers of drug and alcohol treatment services in Los Angeles County. It operates eleven separate treatment programs and successfully has operated its programs for over 25 years. BHS provides a continuum of substance abuse treatment services to persons suffering from alcohol and drug dependency, including detoxification treatment, rehabilitation, prevention, and educational services at locations throughout Los Angeles County. Among other things, BHS treats women who, because of their prior use of drugs or alcohol, lack the ability to perform certain key life functions, such as parenting. Some of these women have lost custody of their children.2. BHS is supported primarily by federal, state and county funds.
3. BHS provides treatment recovery sites for individuals whom courts refer for services. Participants also come to the BHS programs through referrals from social services agencies, hospitals and outpatient services. Participants also can enter without formal referral. BHS is licensed by the State of California, and the State and the County of Los Angeles periodically inspect BHS's facilities.
4. Plaintiff Lawrence Gentile is the President and Chief Executive Officer of BHS.
5. Plaintiffs Tanya Loe, Natalie Loe and Michelle Roe are participants or former participants in one of BHS's programs for rehabilitating persons who previously have abused alcohol or drugs.
6. BHS presently operates two residential facilities focusing on alcohol and other drug rehabilitation services, including services for participants with HIV/AIDS, mental illness, and pregnant and postpartum women. One of these residential facilities houses BHS's "Patterns" program, located in the City of Hawthorne. It currently serves approximately 20-35 women and children. Because the need for these services extends far beyond the program's current capacity, BHS sought to move the Patterns program to an existing building on Marine Avenue in Gardena which can accommodate a greater number of women and children.
7. Patterns is a 6 to 12 month program focusing on education, individual and group counseling, employment skills training, supportive activities, and Twelve Step program participation. Participants are all recovering from drug or alcohol abuse. The participants live on site and have a daily schedule filled with classes, counseling sessions, recovery planning, House Council, mother-child interaction groups, social recreational activities, and daily chores. Each participant moves through a prescribed five-phase process which allows her to progress from a highly structured and restrictive program to a more self-determined one. At the beginning of each phase, staff members design an individualized treatment plan for each participant.
8. Initially, participants are not allowed to leave the facility or to have child or family visitation. Gradually, child contact and visitation are allowed. Participants are then permitted to leave the facility for short periods of time for specific reasons (e.g., medical care) with prior approval. In the final phase, participants may attend outside Twelve Step meetings and counseling sessions, attend job placement and housing meetings, and, with advance permission, receive eight hour passes on Saturdays and/or Sundays. All visits to participants in the facility are limited to family members and others with close personal relationships, and are allowed only on Saturdays between 1:00 p.m. and 2:30 p.m.
9. In the final phases of the program, participants are involved in training and planning for employment, life skills, and finding housing, so that upon graduation they are able to re-enter their community directly. Of the few participants each year who are involuntarily discharged, each is referred to another program and provided transportation assistance. On occasion a participant refuses assistance in departing, but those occasions are rare, and efforts are made to prevent them.
10. The women coming to Patterns must be eighteen years of age or older. Applicants are excluded if, in the opinion of the staff, they are not motivated to maintain sobriety. Once admitted to the program, BHS requires complete abstinence from alcohol and illicit chemicals. Patterns has a strict rule that any drinking or drug use will result in immediate termination from the program,
11. Some women come to Patterns with their children; if so, the children must be in their legal custody. Other women who temporarily have lost custody are reunited with their children during their tenure at Patterns, and still others achieve reunification after graduation from the program. While at Patterns, each participant is responsible for her own child(ren)'s child-care. However, during the mother's program activities, children are under the supervision of a staff member, who is assisted by two to three participants who are not involved in programs at that time and who have been approved by a Senior Counselor.
12. Defendant City of Gardena has approximately 60,000 residents, is roughly 6 square miles in size and is located in the South Bay area of Los Angeles County. It is a general law city with a council-manager form of government. The Gardena General Plan is the guiding document for all city planning, and the Municipal Code sets forth a detailed zoning scheme for the City. See Exhibit 54 (City of Gardena General Plan); Exhibit 103 (Gardena Municipal Code). The City of Gardena receives federal funding. Pretrial Order ¶ 5a.
13. Gardena's General Plan is divided into eight elements, entitled Land Use, Housing, Circulation Scenic Highway, Open Space Recreation, Conservation, Noise, Seismic Safety, and Safety Elements. None of the sections, except for the Housing element, has been updated since 1975.
14. Title 18 of the Gardena Municipal Code, the zoning ordinance, is intended to "encourage, classify, designate, regulate, restrict and segregate" structures in the City. The Zoning Ordinance sets forth definitions of various residential, commercial, and industrial zones. Within each zone particular uses are permitted either as of right or by conditional use permit, or are prohibited altogether.
15. In 1999, BHS purchased the building located at 2305-2315 Marine Avenue, within the City of Gardena. The zone in which the building is located is designated as "General Commercial (C-3)." In this zone numerous intensive uses, are permitted as of right, including legal card clubs, community care facilities, auditoriums, retail stores, fire and police stations, medical laboratories, business and professional offices, automobile repair garages, bowling alleys, dancing academies, mortuaries, medical offices, taxidermists, union halls, restaurants, and theaters. Additionally, any use similar to any one of the enumerated uses that is "not more obnoxious or detrimental to the public health, safety and welfare" is permitted. Further, uses permitted subject to a conditional use permit include group care facilities, hospitals, day care facilities, mobile home parks, hotels, vocational colleges, and churches.
16. The zones surrounding the BHS property on Marine Avenue are designated as "Commercial (C-2)," "General Commercial (C-3)," and "Single-Family Residential (R-1)" While R-1 zones are principally composed of single family homes, the ordinance allows public and private schools (K through 12th grade), churches, and utility substations in such zones by conditional use permit.
17. Even before purchasing the building, on July 8, 1998 BHS had applied for a conditional use permit from the City to use the building for its Patterns program.
18. The parties have stipulated that the participants in the Patterns program fall within the definitions of disabled or handicapped, as those terms are defined in the statutes governing this case. Pretrial Order ¶ 5c.
19. The parties have stipulated that the participants in the Patterns program and their dependent children meet the "familial status" provisions of the Fair Housing Act, as amended, 42 U.S.C. § 3602(k), and the California Fair Employment and Housing Act, CAL. GOV'T CODE § 12955.2. Pretrial Order ¶ 5e.
20. The BHS building is a three story hospital structure and a single story attached clinic, with adjacent parking on its north side and across a street to the west. It has separate hospital rooms as well as numerous common areas. The building has not been in use for 14 years, has become blighted, and needs to be rehabilitated to make it useable. BHS employed an architect to make necessary changes. One of the changes would involve construction of a new single-story facility on the site, to be used by some of the participants' children during the day. The building is a dwelling as defined in the Fair Housing Act, 42 U.S.C § 3602(b). Pretrial Order ¶ 5d.
21. Marine Avenue is a four-lane thoroughfare running between Inglewood Boulevard to the west and Vermont Avenue to the east. As with other thoroughfares bearing the zoning designation C-3, Marine Avenue has a wide variety of uses that are not commercial in nature. The street includes the vacant hospital, small businesses and some residences. Since 1965 the hospital building has been the largest physical structure in the immediate area.
22. In back of the hospital building is one of its parking lots, followed by a privately owned recreation center (Nader's Barn), and then Thornburg Park. The park is 2.3 acres in size, with a baseball field, basketball courts, playground, covered picnic benches, other grassy play areas, and a small building for community events. Located to the north are most of the surrounding residences, which are predominantly single family homes. A single family home borders on the hospital's north parking lot. Located to the west of the site's western parking lot are Jad Manor, which, at the time of the events here, was a board and care facility for mentally disabled persons, and a large two-story densely occupied apartment complex. Located to the south is Marine Avenue. To the east is a small commercial strip.
23. Over an extended period, the City processed BHS's application and engaged in negotiations with BHS considering, among other things, what conditions should apply to any use permit. The City hired Susan Tebo of Impact Sciences to perform the environmental review required by the California Environmental Quality Act, CAL. PUB. RES. CODE § 21151, and to help prepare the staff report for the Planning Commission. After negotiations with BHS, the staff concluded that an environmental impact report was not required, and that the City could proceed via a negative declaration instead.
24. On February 20, 2001, the application was presented to the Gardena Planning Commission with a recommendation from the Commission's staff that the conditional use permit be denied. After a lengthy proceeding, the hearing was continued to March 21, 2001. At the conclusion of the hearing on March 21, 2001, the Planning Commission voted to deny the permit.
25. Various members of the public spoke at the Planning Commission hearing. In general, they expressed concerns about the impact of the project on the neighborhood. Some of the citizens expressed fear that the program would bring or exacerbate crime, and employed stereotypes associated with drug addicts or alcoholics.
26. BHS appealed the Planning Commission's decision to the Gardena City Council. On May 22, 2001, the City Council held a hearing which commenced at 9:35 p.m. and ended at 1:15 a.m. The Council had before it the report of the Planning Commission staff and various other matters, including a report from a Gardena police officer assigned to give the Police Department's view. The Council heard a variety of testimony, including testimony from BHS representatives, a Los Angeles County Health Department representative, and various neighbors, the neighbors expressing fears similar to those expressed at the Planning Commission hearing. The Council also received a petition against the project, containing 796 signatures. At the conclusion of the City Council hearing, the City Council voted unanimously to adopt Resolution No. 4637, denying the conditional use permit and thereby upholding the Planning Commission's decision,
27. Although some city officials or contractors working for the City at times in the regulatory process used stereotypes associated with addicts and alcoholics, and although many citizens did so as well, neither the Planning Commissioners nor the City Council members accepted such descriptions. Both the Planning Commission and the City Council took note of such feelings but did not rest their decisions on them.
28. During the staff work-up of the project, counsel for the City advised certain staff or independent contractors for the City to revise memoranda by deleting statements which might be characterized as discriminatory. Counsel for the City also advised Lt. Rodney Tanaka, the Gardena police officer assigned to give the Police Department's comments on the project, to delete similar statements from his report, which was prepared after the Planning Commission's vote and before the City Council's vote. The City Attorney also advised the Planning Commission that the Commission could not rest its decision on the fact that residents of the facility were recovering addicts or alcoholics, but that it could make its decision on the basis of such factors as density and impact on City services.
29. The advice given by the City Attorney's office was given for the purpose of assuring compliance with the law, and not for the purpose of showing the City how to subvert the law.
30. As the application process progressed, the nature of the proposed program changed. Originally BHS envisioned that children up to the age of ten might accompany their mothers in the facility. When this was the concept, City staff investigated the potential impact on neighboring schools. By the time the application came before the City Council, the concept had changed so that only children below school age would be allowed. The Court finds nothing improper in the investigation as to whether the presence of children would affect local schools or local services.
31. Defendants did not discriminate against Plaintiffs on the basis of familial status.
32. In Resolution No. 4637 denying the Conditional Use Permit, the City made various findings and determinations. Central to its conclusion was the finding expressed in Section 2 "that the use is not compatible with the surrounding area, it is too close to single family areas, will create additional burdens on Thornburg Park which already has high usage and will create an additional burden on already impacted city services. . . ."
33. The policies reflected in Resolution No. 4637 are applied in such a way as to treat the BHS participants, on the basis of their disability or handicap, differently from others. The site previously housed a hospital which accommodated many patients at one time, and the Municipal Code allows a hospital within the zone. In addition, in 1995 the City supported an application to convert the property into senior housing and determined that the site was appropriate for such housing. Although Resolution No. 4637 stated that BHS's proposed use was not comparable to senior housing, the evidence demonstrated that the proposed BHS use in fact was likely to have no more of an impact on the City, and quite likely would have less of an impact.
34. Accommodating the participants in the BHS program who, by stipulation of the parties, are handicapped or disabled within the meaning of the law, by modifying policies as necessary to issue a conditional use permit to BHS3 would not impose an undue financial burden on the City. The fee proposed as a condition of granting the permit here was generated through reliance on neutral principles and was reasonable, and the City is privileged to charge it. Thus, conditioning the permit on payment of the fee mitigates any undue financial burden on the City.
35. The proposed condition to the permit that BHS maintain a staffing ratio of one staff member for every ten residents at all times was an unreasonable condition on the grant of a use permit. The condition was proposed as a means of assuring staff knowledge of the location of all participants, at all times. BHS's experience demonstrated that it could accomplish this result with a lesser ratio, and the proposed ratio would impose unnecessary expense and burden on BHS.
36. One of the conditions to the permit, which the Planning Commission proposed, required BHS to reimburse the City "for City Attorney costs related to the processing of this application, in accordance with Resolution No. 4441." Exhibit 37, Condition No. 58. A specific amount was not identified, nor was Resolution No. 4441 introduced into evidence. The Court construes this condition not to include the legal costs involved in this lawsuit. So construed, the evidence was insufficient to establish that the condition was an unreasonable one, and the City therefore was not required to modify it to accommodate the BHS participants.
37. Accommodating the participants in the BHS program, who, by stipulation, are handicapped or disabled, by modifying policies as necessary to issue a conditional use permit, will not cause undue administrative burdens on the City.
38. In stating that the proposed use was not compatible with the surrounding area and was too close to surrounding areas, the resolution referenced the analysis in the Staff Report, prepared by the City's Community Development Department. That report compared the project to high density residential use with no open recreational areas, and quantified the density as approximately 34 dwelling units per acre, compared with 4-8 dwelling units per acre in the nearby residential neighborhood. The City also used a floor area ratio, whereby it compared floor area to lot size, and found the ratio too low.
39. Accommodating the participants in the BHS program, who, by stipulation, are handicapped or disabled, by modifying policies as necessary to issue a conditional use permit, will not cause an undue hardship or require a fundamental alteration of the zoning program. The density of the project, measured either by dwelling units per acre or the ratio of floor space to lot size, does not present a burden that would be difficult to accommodate. While, in theory, density standards may in part bespeak an aesthetic concern that a neighborhood should reflect a certain character, as indicated by lots of a particular size, set-backs, foliage and so on, that concern does not affect the building here, for it already exists, and its appearance will not be altered fundamentally by the project. Density standards also may bespeak a concern simply for the number of people around. Considered in this sense, the density of the project also does not impose an undue burden on the City. The participants in the program will spend most of their time on the site itself. They will not be driving to and from the site, except on an occasional basis. Nor will visitors be coming to the site except on an occasional basis. Furthermore, the building is located in a zone which contains no density requirement, and in which people may come and go freely, without any limitations on their numbers.
40. The density to which the City's report referred is a measure used in residential planning. While the fact that participants live in the facility while they are participating is one of the linch-pins of the program's success, the program ultimately is a treatment program designed to return participants to normal life. Residency is expected to be temporary, not permanent, and the accompanying need for the amenities which extra space (or less density) brings is not as present as it would be for a home whose key feature is that of simply being a home. Thus, although density has relevance, modification in the density policies can be made here to accommodate the participants' handicaps, without substantially altering the City's zoning system.
41. Another articulated objection to the project was that it would create additional burdens on Thornburg Park, which lies just north of the building, and which the City Council stated already has high usage. The parties disputed whether Thornburg Park was a "park," which was under-used, or a "playground," which was over-used. Whatever the appropriate designation may be, however, accommodating the handicap participants in the BHS program, by modifying policies as necessary to issue a conditional use permit, would not unduly burden the park. Most of the time, most of the participants in the BHS program, including the children, will remain in the facility itself. Some may use the park at some times, but so too would the staff of or visitors to a hospital, if the facility were operated as a hospital, as would people working at or coming to whatever commercial establishment operated at that site.
42. Reasonable accommodation of the participants' handicapped status is necessary because such accommodation will ameliorate the effects of the disability of the participants. The Patterns program has been successful in returning recovering addicts and alcoholics to employment, and in developing parenting skills which the experience of addiction or alcoholism had stifled or destroyed. At the time the City Council denied the permit, Jad Manor, another facility in the City, did offer residential services for addicts and alcoholics, but that facility had been operating in violation of its permit. At the time of trial, the permit for Jad Manor had been revoked, and Jad Manor no longer was operating, nor was there any other facility within the City offering recovery services for addicts and alcoholics. The Patterns program operating in neighboring Hawthorne was oversubscribed, and demand for such a facility is high.
43. The participants and future participants in the BHS Patterns program, if the program is located in the Marine Avenue site, will not constitute a direct threat to the health or safety of other individuals.
44. The tenancy of the participants and future participants in the BHS Patterns program, if the program is located in the Marine Avenue site, will not result in substantial physical damage to the property of others.
45. The evidence was mixed as to how many conditions for a conditional use permit remained in contention at the City Council meeting. At trial, BHS's representative in the negotiations, Kai Giffen, testified that numerous conditions remained in dispute, but the Resolution adopted at the time identified only four such conditions. No member of the City Council identified the failure to agree on the conditions as the reason for his vote for denial of the permit, nor did the adopted Resolution, which found that four conditions remained in dispute, assert that fact as a rationale for denial of the permit. That BHS had, as of the beginning of the City Council meeting, not agreed to all the conditions on the permit which the City staff proposed, did not prevent the City from accommodating the needs of the participants by issuing a conditional use permit.
46. Plaintiffs will suffer irreparable harm if an injunction does not issue. The participants in the BHS program who would receive treatment at the facility suffer the threat of relapse without treatment. In addition, the violation of Plaintiffs' civil rights, by the City's failure to make reasonable accommodations, constitutes irreparable harm.
47. Damages to Plaintiffs for the denial of the permit during the period from May 22, 2001 to the entry of Judgment are difficult of calculation, and are speculative. They depend upon a constellation of uncertain factors, including the cost of financing, the cost of renovation, and the time necessary to make changes to the building.
48. Any conclusion of law hereafter determined to be a finding of fact is hereby made a finding of fact.
CONCLUSIONS OF LAW
1. Any finding of fact which is hereafter determined to be a conclusion of law is hereby made a conclusion of law.
2. This Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. § 1331, 1343(a), 42 U.S.C. § 3613, 12133, and supplemental jurisdiction of the state claims under 28 U.S.C. § 1367.
3. Venue is based upon 28 U.S.C. § 1391(b)(2) and is proper because a substantial part of the events giving rise to the claims herein arose in the Central District of California, and one or more defendants reside in the district. Intradistrict venue is proper because the events giving rise to the claims herein arose in the County of Los Angeles within the Western Division of this Court. See C.D. Cal. General Order 349-A.
4. All plaintiffs have standing to assert the claims in this lawsuit. In addition to the individual plaintiffs who are affected by the City's action, organizations representing, or working on behalf of, people with disabilities have standing to assert the rights of such persons under the Fair Housing Act ("FHA"), the Americans with Disabilities Act (44ADA"), the Rehabilitation Act, and the California Fair Employment and Housing Act ("FEHA"). See Greater Los Angeles Council on Deafness, Inc. (GLAD) v. Zolin, 812 F.2d 1103, 1115 (9th Cir. 1987) (organizations representing individuals with disabilities have standing to assert claims for both injunctive relief and damages under section 504 of the Rehabilitation Act); Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (same re FHA); Walker v. City of Lakewood, 272 F.3d 1114, 1125 (9th Cir. 2001) (predicting that California Supreme Court, in interpreting FEHA, would follow the FHA and recognize standing for such organizations).
5. As amended by the Fair Housing Act Amendments of 1988, Pub.L. 100-430, the FHA prohibits discrimination on the basis of "familial status" and "handicap" as follows:
[I]t shall be unlawful —
. . .
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of . . . familial status. . . .
. . .
(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of —
(A) that buyer or renter,
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of —
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination includes —
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling . . .42 U.S.C. § 3604(b) and 3604(f).
6. The ADA provides in part 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 public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
7. The ADA further instructs the Attorney General to promulgate regulations implementing the ADA's proscription. 42 U.S.C. § 12134. Pursuant to that direction, the Attorney General has adopted a regulation which provides:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28CF.R. § 35.130(b)(7),
8. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), provides that "(n)o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ."
9. Women whose children live with them are protected under FHA's definition of "familial status." 42 U.S.C. § 3602(k).
10. Under the FHA, handicap means: (1) a physical or mental impairment which substantially limits one or more of a person's major life activities; (2) a record of having such an impairment; or (3) being regarded as having such impairment. However, "handicap" does not include current illegal use of or addiction to a controlled substance. 42 U.S.C. § 3602(h). The ADA defines disability essentially the same way. 42 U.S.C. § 12102(2). So do the Rehabilitation Act, 29 U.S.C. § 794(a), see Toyota Motor Mfg. v. Williams, 534 U.S. 184, 194-95 (2002), and the California FEHA, CAL. GOV'T CODE § 12926(i), (k). As noted, the parties have stipulated that plaintiffs fall within these definitions.
11. Plaintiffs have not proven that discriminatory animus motivated the City in denying the conditional use permit.
12. Plaintiffs have not proven they suffered discrimination on the basis of familial status.
13. The "accommodation" provisions of the FHA, ADA, and Rehabilitation Act require municipalities to take affirmative acts or to make exceptions to generally applicable rules, policies or practices to accommodate the handicapped or disabled under certain circumstances. United States v. California Mobile Home Park Mgmt. Ca, 29 F.3d 1413, 1416 (9th Cir. 1994); Gamble v. City of Escondido, 104 F.3d 300, 307 (9th Cir. 1997) (statute "affirmatively require[s] the City to make reasonable accommodations for handicapped residences"); City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994) ("affirmative duty to reasonably accommodate handicapped persons" under the FHA). In other words, courts must ask "whether a city has to alter neutral zoning policies to reasonably accommodate and integrate handicapped persons." City of Edmonds, 18 F.3d at 806.
14. The accommodation provision of the Fair Housing Act applies to the decision on whether to grant a conditional use permit, and the rules, policies and practices which led to that decision, given that the residential component of the BHS program is an integral part of the rehabilitation process for handicapped persons. Similarly, the accommodation provisions of the ADA's regulations apply to the policies and practices embodied in the concepts of compatibility with neighboring zones and impacts on public facilities and services.
15. The City of Gardena must accommodate plaintiffs when the accommodation is necessary and does not impose undue financial or administrative burdens, or require a fundamental alteration of the zoning program.
16. Cities cannot refuse to accommodate by imposing unreasonable conditions on the grant of a use permit. Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 945 (9th Cir. 1996).
17. The City may not impose a condition on the permit which requires BHS to report to local law enforcement residents who have left without authorization or supervision. Federal regulations provide, as applicable here, that the presence of an identified patient in a facility publicly identified as only a drug and alcoholic treatment center may be acknowledged only with the patient's consent. 42 C.F.R. § 2.13(c)(1). Requiring the consent, as Defendant suggests, does not make the consent voluntary, and a local entity may not require such disclosure. 42 C.F.R. § 2.13(a).
18. In denying the conditional use permit, the City violated the "accommodation" provisions of the FHA, the ADA, and the Rehabilitation Act.
19. The City's failure to accommodate also violates the California FEHA. CAL. GOV'T CODE § 12955(1) (m) provide:
It shall be unlawful:
(1) To discriminate through public or private land use practices, decisions, and authorizations because of . . . disability. . . . Discrimination includes, but is not limited to . . . zoning laws, denials of use permits, and other actions authorized under the Planning and Zoning Law (Title 7 (commencing with Section 65000)), that make housing opportunities unavailable. . . .
(m) As used in this section, ". . . disability" includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
20. Although the FEHA does not explicitly protect recovering addicts, see CAL. Gov'T CODE § 12926, the Act states that the definition of disability under the ADA applies if it provides "broader protection or coverage" than the FEHA's own definitions. CAL. Gov'T CODE § 12926(1); see also Gosvener v. Coastal Corp., 51 Cal.App.4th 805, 813, 59 Cal.Rptr.2d 339, 344 (1996) ("alcoholism could be a covered disability under the FEHA, which incorporates the definition of disability listed in the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12111)").
21. The FEHA makes it unlawful to refuse "to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling." CAL. GOV'T CODE § 12927(c)(1), Accordingly, because FEHA's protections are by definition at least as great as those under the FHA, failure to accommodate which violates the FHA also violates the FEHA.
22. The Equal Protection Clause of the United States Constitution demands that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST, amend, XIV, § 1. The Supreme Court has held that this mandate essentially requires that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Similarly, the Due Process Clause of the Fourteenth Amendment prohibits state and local governments from drawing distinctions among persons that are not "rationally related to a legitimate governmental purpose." Munoz v. Sullivan, 930 F.2d 1400, 1404 (9th Cir. 1991); see U.S. CONST, amend. XIV, § 1.
23. The City's refusal to grant a conditional use permit did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment.
24. Under the Fair Housing Act, the court "may grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate)." 42 U.S.C. § 3613(c)(1). Plaintiffs similarly are entitled to injunctive relief under California's Fair Employment and Housing Act as discussed above. CAL. Gov'T CODE § 12989.2; Gibson v. County of Riverside, 181 F. Supp.2d 1057, 1097-98 (CD. Cal. 2002) (granting injunctive relief pursuant to § 12989.2 to prevent familial status discrimination in housing). Virtually the same remedies are available for violations of Title II of the ADA and Section 504 of the Rehabilitation Act. See 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2); Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002).
25. Compensatory damages are available under the ADA and Rehabilitation Act only if plaintiffs prove discriminatory intent amounting to "deliberate indifference." Lovell, 303 F.3d at 1056-57, quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) ("Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.")' Compensatory damages are allowable under the Fair Housing Act for intentional discrimination. See id. at 1056, quoting Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998).
26, Plaintiffs are not entitled to compensatory damages.
27, Plaintiffs are entitled to an injunction restraining the City of Gardena from denying BHS a conditional use permit to use the property as described in the application, upon the conditions agreed upon by the City and BHS; where conditions are not agreed upon, Plaintiffs are entitled to an injunction consistent with these Findings and Conclusions.