Opinion
Civil Action No. 1-19-CV-1034-XR
2020-02-18
HARMONY HAUS WESTLAKE, LLC., and Ling Zhou Plaintiffs, v. PARKSTONE PROPERTY OWNERS ASSOCIATION, INC., Defendant.
Christopher McGreal, Rachel Beth Cohen-Miller, Disability Rights Texas, Dallas, TX, Mark Whitburn, Sean Edward Pevsner, Whitburn & Pevsner, PLLC, Arlington, TX, for Plaintiffs. Eric J. Hansum, Niemann & Heyer, LLP, Austin, TX, for Defendant.
Christopher McGreal, Rachel Beth Cohen-Miller, Disability Rights Texas, Dallas, TX, Mark Whitburn, Sean Edward Pevsner, Whitburn & Pevsner, PLLC, Arlington, TX, for Plaintiffs.
Eric J. Hansum, Niemann & Heyer, LLP, Austin, TX, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
This matter came before the Court for a bench trial, which was held on January 6 and 7, 2020. At the close of the trial, the Court ordered the parties to submit post-trial briefing. Pursuant to Federal Rule of Civil Procedure 52(a) and having reviewed the submitted evidence, the trial transcript, and the parties' post-trial briefings (docket nos. 23–28), the Court now issues the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. Relevant Parties
1. Plaintiffs Harmony Haus Westlake, L.L.C., ("Harmony Haus") and Ling Zhou filed this lawsuit on October 22, 2019, seeking injunctive relief, attorneys' fees, and court costs against the Parkstone Property Owners Association, Inc. ("Parkstone"), under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended ("FHA") (docket no. 1). Parkstone filed a counterclaim and third-party claim against the owners of the house (Fenglin Du and Ling Zhou), asserting a state-law breach of contract and Property Code claims against Plaintiffs for violation of Parkstone's deed restrictions (docket nos. 2, 10). Parkstone also filed a Motion for a Temporary Restraining Order and Preliminary Injunction, seeking to prohibit Plaintiffs from violating the parking and single-family deed restrictions (docket no. 3). The Court ordered an accelerated bench trial (docket no. 12).
2. Defendant Parkstone is a non-profit homeowners association located in west Austin and formed under the laws of the State of Texas. Def. Ex. 2, 15.
3. Harmony Haus, which markets itself toward high-end professionals, operates integrative transitional sober living residences in the Hyde Park and Westlake areas of Austin, Texas. On
September 6, 2019, Harmony Haus entered into a five-year lease for the premises at 2105 Real Catorce Drive, Austin, Texas for purposes of operating a sober living residence for individuals recovering from alcoholism and drug addiction. Pl. Ex. 4 at 25–41.
4. Ling Zhou and Fenglin Du own the Real Catorce residence, which is located within the Parkstone subdivision. Def. Ex. 3.
5. Harmony Haus uses a "phasing system" for its residents, ensuring that those further in recovery supervise and hold accountable newer residents. Tr. Jan. 6, 85:3–25; 136:20–138:23; Pl. Ex. 4 at 14. This distinguishes Harmony Haus from the other sober living models that are self-run and self-supporting, thus relying less on structure and accountability. Oxford House model. Tr. Jan. 6, 93:12–95:9; Jan. 7, 5:10–6:8. The phasing model used by Harmony Haus provides varying rules and standards for residents passing through each of the three phases. Pl. Ex. 4 at 22–24.
6. Residents at Harmony Haus typically come directly from an inpatient treatment center. Tr. Jan. 6, 138:24–139:11. The treatment center from which the resident comes is the most important factor in selecting residents. Id. Harmony Haus also talks with potential residents' counselors, therapists, and family members to determine their suitability for the home. Id.
7. One resident, K.S., moved into Harmony Haus after leaving a residential treatment center, which he entered because he "couldn't function anymore." Tr. Jan. 6, 7:20–8:6. Specifically, he stopped working, could not concentrate, stopped eating, stopped taking care of personal hygiene, and was hospitalized three times. Id.
8. Another resident, D.J., moved into Harmony Haus after receiving residential treatment three times. Tr. Jan. 6, 204:5–11. His addiction led to the end of his marriage, strained relationships with friends, and multiple hospitalizations. Id. at 205:6–22. He tried multiple times to live outside of a recovery home but was unable to. Id. at 207:16–25.
9. A third resident (and house-manager), Montana Harris, entered Harmony Haus after a 252-day treatment at a residential facility. Tr. Jan. 6, 33:8–9. Before entering treatment, his life "fell apart" in that he could not function as a father, brother, son, or employee. He was "cut off" from work and family. He lost the ability to take care of himself in terms of hygiene, personal relationships, and work. Id. at 31:7–32:14. He is unable to work in his field of study, aeronautics, because of a prior drug charge. Id. at 32:15–23.
II. The Deed Restrictions
1. The Real Catorce house is subject to Parkstone's deed restrictions (the Revised and Restated Declaration of Covenants, Conditions and Restrictions Parkstone P.U.D. Phase I, Travis County, Texas, hereinafter "the Declaration"). Def. Ex. 1.
2. The Declaration provides, in relevant part, the following:
A. Section 2.1 (Residential Use: Construction, Alteration or Removal of Improvements) states that "[a]ll Lots shall be improved and used solely for single family residential use and accessory uses .... No manufacturing, trade, business, commerce, industry, profession or
other occupation whatsoever may be conducted or carried on in any portion of the Property or in any Improvement thereon. No Improvement constructed on a Lot may be used as [a] ... lodging house ...."
B. Section 2.8 (Noise: Nuisances) states "No noise or other nuisance shall be permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to any other portion of the Property or its occupants. No noxious or offensive activity shall be conducted on any portion of the Property. The Board, in its sole discretion, shall determine whether an action or activity constitutes a violation of this Section 2.8."
C. Section 2.11 (Vehicles; Unsightly Articles; Temporary Structures) provides: "Passenger vehicles, motorcycles and scooters owned or used by an Owner shall not be parked or left on any portion of the Property other than such Owner's garage or driveway for longer than twelve (12) hours at a time."
3. The parking restriction applies to all Harmony Haus residents. Pl. Ex. 4 at § 12(C)–(D)(4).
4. Any violation of the Declaration may be enforced by the Parkstone board. Pl. Ex. 1 at 25. Parkstone has, at times, issued violation notices. Def. Ex. 17 (showing potential fine of $50 for parking violation).
III. Harmony Haus's Proposed Accommodation and Parkstone's Response
1. Plaintiffs seek exceptions to the Declaration to allow a for-profit group home in Parkstone. On September 9, 2019, Harmony Haus filed a "REQUEST FOR A REASONABLE ACCOMMODATION UNDER THE FHA" with the City of Austin seeking a rooming house license and certificate of occupancy for a sober living facility in the Real Catorce house. Pl. Ex. 4.
2. On September 30, 2019, after evaluating compliance with the City Code (which included an evaluation of Harmony Haus's proposed parking plan), the City of Austin approved a rooming house license for up to twelve individuals and stated that "[t]he requested accommodation is necessary to afford an individual(s) with a disability an equal opportunity to use and enjoy a dwelling" and that it "will not impose an undue financial or administrative burden on the City" and "does not require a fundamental alteration in the nature of the City's land use and zoning regulations." Pl. Ex. 5; Ragette Aff. ¶¶ 9, 16; docket no. 7-1 at 127 (Ex. G).
3. Harmony Haus's first four residents moved into the Real Catorce residence on October 15, 2019. Ragette Aff. at ¶ 15. Six residents currently live there, including three residents in the master bedroom, the house manager (also a resident-addict) living alone, and two residents in another room. Plaintiffs seek twelve residents so that each bedroom in the home is filled to reduce the risk of isolation. Tr. Jan. 6, 99:2–19.
4. On October 20, 2019, Harmony Haus approached Parkstone and requested an exemption from "any applicable HOA covenant, rule, or regulation relating to any restriction that would otherwise impede its operation so that its residents can be provided an equal
opportunity to use and enjoy their housing." Pl. Ex. 10 at 2. Specifically, Harmony Haus requested Parkstone allow twelve unrelated residents to live at the residence and that eight cars be permitted to park on the street.
5. Parkstone contends that Plaintiffs' proposed request for eight cars on the street is unsafe and would violate the local city ordinance as well as established international fire safety standards. In addition, Parkstone contends that twelve residents in one residence will create an imposition on community resources such as maintaining any common areas and nearby trail access. Because the streets are in a gated community, the streets are common areas of Parkstone, and Defendant will have higher maintenance costs with the increased traffic. Twelve residents may also create additional noise and trash issues for the neighborhood. The presence of so many cars on the street, Parkstone argues, might also impede school bus and emergency vehicle access. See Def. Ex. 13.
6. Parkstone and its residents have reported various issues regarding parking related to Harmony Haus's use of the Real Catorce residence. One Parkstone resident, Jennifer McGrew, created a log of cars in and around the Real Catorce residence from Oct. 23 to Dec. 29, 2019. Def. Ex. 12; Tr. Jan. 7, 52:20. She noted a loud idling truck for over thirty minutes on October 23 and a total of twelve cars around the residence on November 10 (Plaintiff held a memorial service for a former resident on that date). Other noted examples include a "loud vehicle rumbling while backing out of driveway to allow another car out." Harmony Haus responded that six cars could fit in the driveway so, at most, there would be six other cars on the street, all of which could fit on one side. Tr. Jan. 6, 174:15–17. Other Parkstone residents park on the street, in some cases on both sides. Pl. Ex. 1. Neither side presented evidence of anyone parked on the street for more than twelve hours in violation of Section 2.11. Harmony Haus presented evidence of a fire truck being able to navigate in front of the premises at 2105 Real Catorce Drive. Pl. Ex. 11.
7. Parkstone residents have also reported violations of Section 2.8, the "noise and nuisance policy." These include a loud Chevy Tahoe idling near the residence and lights left on for twenty-four hours a day. See, e.g. , Tr. Jan. 7, 55:3–24; 68:8–14. In addition to possibly violating the Declaration, any such instances would also violate Harmony Haus's internal policy forbidding residents from "speed[ing], play[ing] loud music within 500 yards of [the] house, or becom[ing] a nuisance in any way, shape, or form to our neighbors." Pl. Ex. 4 at 18.
8. Multiple Parkstone residents expressed fear and frustration at the addition of Harmony Haus. One wrote that "the prospect of having a revolving door of recovering drug addicts, many of whom have associated mental health issues, traveling through our neighborhood where our children play is terrifying." Another wrote that it "is pretty strange that druggies...will be running around in the neighborhood. We have children and I won't like their activities restricted just because [a] bunch of strange people are inhabiting...the neighborhood." Pl. Ex. 6.
9. Harmony Haus further contends that its recovery home model requires a greater number of residents—a "critical mass" of at least twelve—to ensure that its phasing system functions, whereby more established residents mentor newer ones and where each resident has a roommate to help ensure accountability and avoid feelings of isolation. Tr. Jan. 6, 86:8–87:5; 88:16–91:22. The phasing system is necessary to Harmony Haus's model of recovery. Tr. Jan. 6, 85:3–25; 136:20–138:23; Pl. Ex. 4 at 14, 22–24. House members are required to find employment by their second week in the home and must attend at least four recovery meetings, one community event, and one therapist or counselor meeting per week. Id. at 22. The greater number of residents is also important in that it helps ensure that any particular resident is not home alone, thereby risking isolation and relapse. See Tr. Jan. 6, 15:24–16:9; 17:22–18:2.
10. In response to Plaintiffs' requested accommodation and the associated issues described above, on November 6, 2019 Parkstone offered the following alternative accommodation: The Association would waive the "no home business" and singly family use restrictions in Section 2.1 of the Declaration as they might apply to the operation of a sober living facility in the house with up to six unrelated adults. The Association did not agree to waive Section 2.1 as it might apply to a home business, occupation, etc. engaged in by a single resident or a group of less than all the residents. The Association would waive Section 2.8 of the declarations as it might apply to the operation in general of a sober living facility, but it would not waive Section 2.8 as it would apply to specific noxious or offensive conduct or activities of the residents or their guests.
11. Harmony Haus contends it is financially impossible to operate the Real Catorce residence with only six residents because of its operating costs. Harmony Haus spends $1,000 per month on search-engine optimization and marketing. Def. Ex. 16. Each resident pays $2,000 per month, though some are on scholarships and the resident-manager does not pay to live there. Tr. Jan. 6, 155:8–22. Harmony Haus's location at 2105 Real Catorce Drive would have to close if it were limited to six residents. Id. at 158:24–159:5.
12. Plaintiffs did not respond to Parkstone's counteroffer. Docket no. 2 at 2, 12.
CONCLUSIONS OF LAW
Any finding of fact herein which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
I. Overview and Applicable Law
1. Under the FHA, it is unlawful "[t]o 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 person residing in or intending to reside in that dwelling...." 42 U.S.C. § 3604(f)(1)(B). Such prohibited discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s]
equal opportunity to use and enjoy a dwelling." City of Edmonds v. Oxford House, Inc. , 514 U.S. 725, 729, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995) (quoting 42 U.S.C. § 3604(f)(3)(B) ).
2. The language of the FHA is "broad and inclusive" and its terms must be given a generous construction. Trafficante v. Metro. Life Ins. Co. , 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). The statute is a "clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream," and "[g]eneralized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion." Groome Res., Ltd., L.L.C. v. Parish of Jefferson , 234 F.3d 192, 201 (5th Cir. 2000) (quoting H.R. REP. 100–711, at 18 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179).
3. A "dwelling" is any "building, structure, or portion thereof which is occupied as, or designated for occupancy as, a residence by one or more families...." 42 U.S.C. § 3602(b). The Real Catorce residence qualifies as a dwelling under the FHA. See Schwarz v. City of Treasure Island , 544 F.3d 1201, 1213–16 (11th Cir. 2008) (classifying recovery homes as "dwellings" despite their transient residents).
II. Handicapped Status of Harmony Haus Residents
1. A person is handicapped under the FHA if he or she: (1) has a physical or mental disorder that substantially limits one or more major life activities; (2) has a record of having such an impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 3602(h).
2. Alcoholism and drug addiction are typically considered impairments under the definition of disability set forth in the FHA. Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown , 294 F.3d 35, 46 (2d Cir. 2002) (hereinafter, " RECAP "); see also Corp. of Episcopal Church in Utah v. West Valley City , 119 F. Supp. 2d 1215, 1219 (D. Utah. 2000) ("It is well established that individuals recovering from drug or alcohol addiction are handicapped under the [FHA].") (collecting cases).
3. However, Congress explicitly excluded those who currently use illegal drugs or are addicted to controlled substances. 42 U.S.C. § 3602(h). That exclusion implies that those in recovery from addiction may be included, provided they otherwise meet the definition of handicapped in § 3602(h). See Jeffrey O. v. City of Boca Raton , 511 F. Supp. 2d 1339, 1347 (S.D. Fla. 2007) (citing Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra Twp. , 455 F.3d 154, 156 n.5 (3d Cir. 2006) ); see also RECAP , 294 F.3d at 46 ; MX Grp., Inc. v. City of Covington , 293 F.3d 326, 338–39 (6th Cir. 2002).
4. The handicapped inquiry is done on a case-by-case basis because mere status as an alcoholic or addict does not mean one is substantially limited in a major life activity. Oxford House, Inc. v. City of Baton Rouge, La. , 932 F. Supp. 2d 683, 688 (M.D. La. 2013) ; see also
The ADA defines disability using the same language. See 42 U.S.C. § 12102(1).
Burch v. Coca-Cola Co. , 119 F.3d 305, 316 (5th Cir. 1997) (holding that alcoholism is not a per se disability under the ADA).
5. "Major life activities," as defined under the ADA, include (but are not limited to): "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(1).
6. Harmony Haus's residents are handicapped in that their "addictions substantially limit their ability to live independently and to live with their families," and their "inability to live independently constitutes a substantial limitation on their ability to ‘care for themselves.’ " Accordingly, they are "entitled thereby to the protections of [the FHA]." RECAP , 294 F.3d at 47–48 (citing United States v. Borough of Audubon, N.J. , 797 F. Supp. 353, 359 (D.N.J.1991), aff'd by 968 F.2d 14 (3d Cir.1992) ). Their inability to live independently without suffering a relapse—a baseline prerequisite for admittance to the facility—limits the major life activity of "caring for one's self." Id. ; see also Oxford House , 932 F. Supp. 2d at 689 (finding recovery home residents were handicapped based on testimony of residents' inability to live independently outside of home).
7. Aside from their inability to live alone and care for themselves, Harmony Haus also presented evidence of specific residents' further substantial limitations on major life activities, including K.S. (eating, concentration, memory loss, ability to work, personal hygiene), D.J. (working, concentration, multiple hospitalizations), and Montana Harris (working, personal hygiene, concentration, personal relationships). See 42 U.S.C. § 12102(1) ; cf Oxford Invs., L.P. v. City of Phila. , 21 F. Supp. 3d 442, 454 (E.D. Pa. 2014) (finding residents not handicapped where plaintiff showed no evidence, either direct or circumstantial, of any individual residents' impairments).
Though drawn from the definition under the ADA, the FHA and ADA are considered "in tandem" given their similarities. Tsombanidis v. W. Haven Fire Dep't , 352 F.3d 565, 573 n.4 (2d Cir. 2003) ; see also Oxford House v. Browning , 266 F. Supp. 3d 896, 907 (M.D. La. 2017) (collecting cases).
In its post-trial briefing, Parkstone remarks that the Court "cannot and should not assume that just because individuals are addicts in recovery, they are substantially limited in a major life activity and therefore handicapped." Docket no. 25 at 13. The Court here emphasizes that today's ruling does not establish any such per se categorization of all recovering addicts as handicapped. Rather, those addicts in recovery who are unable to live alone without relapse into addiction—who almost invariably come from a long-term inpatient treatment center, and who testify to numerous limitations (including hospitalizations, inability to work, and inability to take care of themselves)—qualify as handicapped for purposes of the FHA.
Parkstone asserts that Harmony Haus was obligated to provide evidence that "present and future residents" are handicapped. Docket no. 25 at 12–13. First, the Court notes that Parkstone provides no support for its proposition that Harmony Haus must present evidence of the handicapped status of future residents. If that were the case, then no group home with a fluctuating or transient resident population could ever find protection under the FHA. Any such requirement would effectively prohibit FHA protection for any group home. Second, Harmony Haus has presented evidence of its admissions criteria, and that is sufficient evidence of handicapped status in this type of group home. Kearins v. Village Creek of Eldorado Home Owners' Association , No. 4:17-cv-769, 2019 WL 2266635, at *4 (E.D. Tex. Mar. 5, 2019) ("[T]he issue is...the handicapped status of the residents a facility aims to serve. In such a case, the criteria for admission to the facility at issue is an important factor."); McKivitz , 769 F. Supp. 2d at 822 ("[A]n individual can sometimes establish that he or she is ‘handicapped’...simply by demonstrating that he or she resides in a facility that only admits ‘handicapped’ individuals."); see also RECAP , 294 F.3d at 47–48 ; Wagner v. Fair Acres Geriatric Ctr. , 49 F.3d 1002, 1010 (3d Cir. 1995).
8. Finally, the residents do not fall within the FHA's exclusionary language denying statutory protection to current users or abusers of controlled substances. 42 U.S.C. § 3602(h). Harmony Haus maintains a zero-tolerance policy for alcohol and non-prescribed drug use and performs frequent drug and alcohol testing to ensure compliance. Pl. Ex. 5 at 13–14, 19. See McKivitz v. Township of Stowe , 769 F. Supp. 2d 803, 821–22 (W.D. Pa. 2010) (finding random drug tests prevented the § 3602(h) exclusion from applying to recovery home residents).
III. Reasonable Accommodation
1. The determination of Harmony Haus's clients as handicapped does not end the analysis, as "[t]he FHA does not provide...a blanket waiver of all facially neutral zoning policies and rules, regardless of the facts...which would give the disabled carte blanche to determine where and how they would live regardless of zoning ordinances to the contrary." Bryant Woods Inn, Inc. v. Howard Cty., Md. , 124 F.3d 597, 603 (4th Cir. 1997) (quotations omitted). Rather, the FHA prohibits "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling." Edmonds , 514 U.S. at 729, 115 S.Ct. 1776 (quoting 42 U.S.C. § 3604(f)(3)(B) ) (emphasis added); see also Groome Res. , 234 F.3d at 200 n.9 (5th Cir. 2000).
2. The burden of showing both necessity and reasonableness is on the plaintiff. Elderhaven, Inc. v. City of Lubbock, Tex. , 98 F.3d 175, 178 (5th Cir. 1996) ("[W]e reject the suggestion of certain courts that a Fair Housing Act defendant bears the burden of proof on the question of reasonableness...The text of the [FHA] provides no hint that Congress sought to change the normal rule that a plaintiff bears the burden of proving a violation of law by a preponderance of the evidence.").
3. Harmony Haus has met this burden by showing that Parkstone refused to grant its reasonable accommodation of allowing twelve unrelated individuals to reside at the residence, an accommodation which is necessary to afford Harmony House residents an equal opportunity to use and enjoy the dwelling. 42 U.S.C. § 3604(f)(3)(B).
The first element—a refusal of a request—is not disputed. It is clear Harmony Haus made its request and Parkstone denied it; after all, Parkstone's refusal is the basis for this entire lawsuit, including Parkstone's motion for an injunction to forbid Harmony Haus from adopting its requested accommodation. The focus, then, is on the remaining elements: necessity and reasonableness.
A. Harmony Haus's Requested Accommodation Was Necessary
1. First, the plaintiff must prove the requested accommodation
was necessary; to do so, he or she "must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice." Smith & Lee Associates, Inc. v. City of Taylor, Mich. , 102 F.3d 781, 795 (6th Cir. 1996) ; 42 U.S.C. § 3604(f)(3)(B). In other words, plaintiffs must show a link between the proposed accommodation and the equal opportunity being sought. Smith & Lee , 102 F.3d at 795 ; see also Bronk v. Ineichen , 54 F.3d 425, 429 (7th Cir. 1995) ("[T]he concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability."). If the proposed accommodation "provides no direct amelioration of a disability's effect," it is not necessary. Oxford House , 932 F. Supp. 2d at 693 (citing Bryant Woods , 124 F.3d at 604 ); see also Valencia v. City of Springfield, Ill. , 883 F.3d 959, 968 (7th Cir. 2018) (describing the necessity element as a causation requirement).
2. A group home, even a commercialized one, may be a necessary accommodation. In enacting the FHA, Congress recognized that sometimes disabled groups "were not able to live safely and independently without organized, and sometimes commercial, group homes...." Groome Res. , 234 F.3d at 202. In some cases, including recovery homes, "joint living arrangements are essential" and "some minimum size may be essential to the success of the venture." Brandt v. Village of Chebanse, Ill. , 82 F.3d 172, 174 (7th Cir. 1996) ; see also Salute v. Stratford Greens Garden Apartments , 136 F.3d 293, 301–02 (2d Cir. 1998) ("[T]he duty to accommodate is shaped by the handicap, such as the need of people with certain handicaps to live together...to reinforce each other's efforts in creating and maintaining a home.").
3. A plaintiff may show necessity by demonstrating the therapeutic value of a greater number of residents in a group home. See Bryant Woods , 124 F.3d at 605 (finding no necessity where plaintiff "presented no evidence...that expansion from 8 to 15 residents would be therapeutically meaningful"); see also Erdman v. City of Fort Atkinson , 84 F.3d 960, 963 (7th Cir. 1996) ("Living together in groups of that size is claimed to be therapeutic and also is the only way most of the residents can live in a single-family home. Thus, if a reasonable accommodation is not made, they are denied an opportunity to live in the dwelling."); Browning , 266 F. Supp. 3d at 916.
4. Harmony Haus met its burden of demonstrating that its requested accommodation was necessary in that twelve residents are needed to reach a "critical mass" necessary for the residents to achieve the benefits of its phasing program and the benefits of greater accountability, structure, and support. In other words, Harmony Haus has demonstrated necessity by proving the expansion to twelve residents would be "therapeutically meaningful." Bryant Woods , 124 F.3d at 605 ; Brandt , 82 F.3d at 174. Harmony Haus showed a direct link between the
proposed accommodation and the amelioration of the residents' disabilities. Bronk , 54 F.3d at 429 ; Tr. Jan. 6, 86:8–87:5; 88:16–91:22. A greater number of residents ameliorates the disability by increasing structure through proper functioning of the phasing system (particularly with respect to mentorship), through the increased accountability inherent in a larger number of residents in the home, and through the ability of residents (aside from the house manager) to all have at least one roommate, thereby minimizing opportunities for isolation which was repeatedly mentioned at trial as a key factor in relapse. A higher number of residents further supports the therapeutic model in that it mitigates the concern that any particular resident will find himself home alone and at risk of relapse. See, e.g. , Tr. Jan. 6, 15:24–16:9; 17:22–18:2 (noting frequency of time a resident has been home alone with only six residents).
5. A plaintiff may also use financial viability as a means of proving necessity. "[T]he economics of group living arrangements often require a critical mass of residents in order to make feasible the type of alternative living arrangements that the [FHA] was designed to encourage." Elderhaven , 98 F.3d at 179. A plaintiff "may establish the necessity of a requested accommodation through evidence that it must maintain a certain minimum level of occupancy for its own financial viability." Dr. Gertrude A. Barber Ctr., Inc. v. Peters Twp. , 273 F. Supp. 2d 643, 652 (W.D. Pa. 2003) (citing Brandt , 82 F.3d at 174 ).
6. However, the desire to gain more profit—without more—does not satisfy the "necessary" element, at least where the plaintiff has not shown financial un viability without the requested accommodation. See Bryant Woods , 124 F.3d at 605 (holding plaintiff did not show any reason why expanding the group home was necessary—other than that it would increase its profits—where the plaintiff introduced no evidence it was unviable at its current size).
7. Harmony Haus has not shown that twelve residents are necessary for its financial viability. Elderhaven , 98 F.3d at 179 (noting a "critical mass" may be required to make a group home economically feasible). The failure to prove that twelve is financially necessary is not, however, fatal to Harmony Haus's necessity claim, as Harmony Haus is not required to
Parkstone, it its posttrial briefing, argues that Harmony Haus's own witnesses' testimony contradicted the necessity of at least twelve residents, as those witnesses testified to certain poor experiences in sober homes with greater than twelve people. See docket no. 25 at 16–17. This, however, conflates necessity with sufficiency: Harmony Haus does not argue that twelve residents alone is sufficient to create a well-functioning recovery home. Rather, Harmony Haus argues that at least twelve residents is necessary to do so.
However, Harmony Haus has shown that it is not viable with six residents. See Tr. Jan. 6, 158:18 (Q: What would you have to do if you were limited to six residents...? A: I would close...."). But this does not, without more, show that Harmony Haus requires twelve residents to remain financially viable.
prove both therapeutic and economic necessity. Rather, economic viability is one means of showing necessity, see id. , and Harmony Haus's failure to meet the necessity burden in that manner does not diminish the persuasiveness of its evidence showing that twelve is a necessary number from a therapeutic standpoint.
B. Harmony Haus's Requested Accommodation was Reasonable
1. In addition to necessity, the requested accommodation must also be reasonable. 42 U.S.C. § 3604(f)(3)(B). An "accommodation is ‘reasonable’ under the FHA unless it imposes an undue financial and administrative burden on the defendant or requires a fundamental alteration in the nature of the program at issue." United States v. City of Jackson, Miss. , 318 F. Supp. 2d 395, 412 (S.D. Miss. 2002), aff'd by 359 F.3d 727 (5th Cir. 2004).
2. Unlike some circuits, in the Fifth Circuit the burden does not shift to defendants on the question of reasonableness. Elderhaven , 98 F.3d at 178 ; see also Bryant Woods , 124 F.3d at 603–04 ("Because the FHA's text evidences no intent to alter normal burdens, the plaintiff bears the burden of proving each of [the FHA's] elements by a preponderance of the evidence."); but see Hovsons, Inc. v. Twp. of Brick , 89 F.3d 1096, 1103 (3d Cir. 1996) (shifting burden to the defendant to prove unreasonableness of requested accommodation).
3. The question of whether an accommodation is reasonable is a question of fact determined by a close examination of the particular circumstances. Chavez v. Aber , 122 F. Supp. 3d 581, 596 (W.D. Tex. 2015) (internal citations omitted); see Oxford House , 932 F. Supp. 2d at 692 ("There is no evidence, absent a few emails and testimony concerning increased traffic and parking concerns...that either Oxford House would fundamentally alter the zoning scheme of the neighborhood. Thus, the requested accommodation was reasonable.").
4. In determining the reasonableness of an accommodation, a court may consider whether there are alternatives that would accomplish the benefits more efficiently. Bryant Woods , 124 F.3d at 604. Determining reasonableness involves balancing the needs of the parties involves. United States v. Village of Palatine, Ill. , 37 F.3d 1230, 1234 (7th Cir. 1994).
5. Harmony Haus has met its burden of demonstrating that its requested accommodation was reasonable. In balancing the needs of the parties and examining the particular circumstances, nothing indicates that having twelve residents, rather than six, would impose an undue hardship or would require a fundamental alteration in the nature of Parkstone.
6. With respect to the Declaration's single-family restriction, allowing twelve unrelated residents to live at Harmony Haus—in violation of that section—would not impose an undue hardship or fundamental alteration. Indeed, Parkstone's own offer to Harmony Haus was to allow six unrelated persons to live together in the home. There is, therefore, no basis for the
Court to believe that the unrelatedness of the residents, without more, constitutes any undue burden or fundamental alteration. If Parkstone finds six—but not twelve—unrelated residents acceptable, Parkstone's concern is the number and not the relatedness of the residents, and there is nothing in the Declaration which limits the actual number of persons that can live in a home. See Tr. Jan. 7, 80: 25–81:21 ("Q: Mr. Pye, nothing in the declarations prohibit any of the houses in the Parkstone neighborhood from having a biologically related family of twelve there, correct? A: That's right."). In any event, "courts have made clear that single family deed restrictions cannot be used to exclude group homes for disabled persons from single family neighborhoods." United States v. Wagner , 940 F. Supp. 972, 979 (N.D. Tex. 1996) (collecting cases). After all, such groups of unrelated individuals are often "not able to live safely and independently without organized, and sometimes commercial group homes." Avalon Residential Care Homes, Inc. v. City of Dallas , 130 F. Supp. 2d 833, 841 (N.D. Tex. 2000) (citing Groome Res. , 234 F.3d at 202 ; Hovsons , 89 F.3d at 1105 ; Smith & Lee , 13 F.3d at 931 ).
7. Regarding any excessive parking, though Parkstone presents evidence that Harmony Haus residents have parked on both sides of the street, Harmony Haus also presented evidence that Parkstone residents do the same. See Pl. Ex. 1. Specifically, Harmony Haus presented twenty-five photos from different times and different locations showing other Parkstone residents parked on both sides of the street and two photos of other residents parking in front of or near fire zones. Id. As such, any potential double parking (which itself does not violate the Declaration) does not fundamentally alter the nature of Parkstone or itself impose any undue hardship distinct from the hardship all Parkstone residents place by parking on both sides of the street.
8. Though Parkstone argues any possible double parking would impede the access of emergency vehicles, if Harmony Haus had twelve residents with twelve cars, six could fit in the driveway. Tr. Jan. 6, 173:24–174:12. The remaining six cars could fit on one side of the street, which would permit emergency access, as shown by the video of the firetruck passing by the Real Catorce residence. Pl. Ex. 11. And granting this accommodation to Harmony Haus does not prevent the City of Austin from enforcing its Fire Code if the City determined that Harmony Haus—just like any resident—was violating the Code or impeding emergency vehicle access. The City has raised no such concerns, including in its granting the very accommodation at issue here after having seen a diagram of Harmony Haus's proposed parking. Pl. Ex. 5; Ragette Aff. ¶¶ 9, 16; docket no. 7-1 at 127 (Ex. G).
9. With respect to violations of the noise and nuisance restriction, the majority of the violations appear to involve a single resident and car—the driver of a Chevy Tahoe. See, e.g. , Tr. Jan. 7,
And while Parkstone argues that the examples of its double parking were from certain events like a Christmas party (see Tr. Jan. 6, 176:25), Harmony Haus in turn showed that the times it has had the most cars were similarly out-of-the-ordinary events, like the memorial service for a former resident. Id. at 180:13–16.
55:5–11 (noting the Chevy Tahoe idles "for very long periods of time"). There is no indication that resident has or will move from the home, and as such, the resident will remain whether Harmony Haus has six or twelve residents. There would, therefore, be no alteration or undue burden in increasing the number of residents in the house. If Parkstone deems that the Chevy Tahoe driver—or any resident—has violated Section 2.8, it may enforce that restriction pursuant to its internal enforcement procedures, just as it would with any resident who violates the Declaration.
10. Nothing here suggests that Harmony Haus residents have free reign to violate any provisions of the Declaration. Each resident is expected to know all relevant deed restrictions—including the parking and noise restrictions—and strictly adhere to them. Parkstone, in turn, is entitled to demand such strict adherence and, of course, may enforce the Declaration through its own enforcement mechanisms.
CONCLUSION
Plaintiffs' complaint seeks injunctive relief under 42 U.S.C. § 3613(c), the FHA provision that permits a court to award injunctive relief if the court finds a discriminatory housing practice has occurred. Having found that such discrimination occurred under § 3604(f)(3)(B), Plaintiffs' request for injunctive relief (docket no. 1) is GRANTED to the extent that Defendant is enjoined from further refusing to make a reasonable accommodation that is necessary to afford Plaintiffs an equal opportunity to use and enjoy a dwelling. Consequently, Defendant is enjoined from enforcing its Declaration against Plaintiffs, but solely with respect to the single-family housing restriction, Section 2.1.
Plaintiffs brought their FHA claim under numerous provisions, including § 3604(f) (discrimination in sale or rental), § 3604(f)(2) (discrimination in terms, conditions, or privileges of sale or rental), § 3604(f)(3)(B) (refusal to make reasonable accommodation), § 3604(c) (making, printing, or publishing a statement that indicates a preference limitation or discrimination), and § 3617 (intimidating, threatening, or interfering with exercise of FHA rights). Only § 3604(f)(3)(B) was briefed or discussed at trial, and accordingly, the Court limits its conclusions to that section alone. In any event, the requested relief for all potential violations was the same.
The remaining provisions, including the noise and nuisance provision (Section 2.8) and parking provision (Section 2.11) remain in effect, and Defendant may enforce those if there are violations, though any such enforcement must be applied in an evenhanded manner that treats handicapped and non-handicapped residents alike. Finally, Plaintiffs' claim for attorney fees and court costs is DENIED in the Court's discretion.
Plaintiffs' claim for attorney fees and court costs is brought pursuant to 42 U.S.C. § 3613(c)(2) ("In a civil action under [the FHA], the court, in its discretion, may allow the prevailing party...a reasonable attorney's fee and costs").
Accordingly, Defendant's motion for a temporary restraining order and permanent injunction (docket no. 3) is DENIED. Defendant's counterclaims for breach of contract and violation of the Texas Property Code (docket nos. 2, 10) were not raised at trial and are therefore waived.
In addressing its counterclaims, Parkstone concedes that the "the predominant remedy" it seeks is injunctive relief and that the "main focus" is whether the FHA permits Plaintiffs to have twelve unrelated residents. Docket no. 25 at 10.
It is so ORDERED.