Women's Elevated v. City of Plano ( 2023 )

Case: 22-40637 Document: 00516974553 Page: 1 Date Filed: 11/20/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
November 20, 2023
No. 22-40637 Lyle W. Cayce
____________ Clerk
Women’s Elevated Sober Living L.L.C.; Constance
Swanston,
Plaintiffs—Appellees/Cross-Appellants,
Shannon Jones,
Plaintiff—Appellee,
versus
City of Plano, Texas,
Defendant—Appellant/Cross-Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CV-412
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Before Jones, Stewart, and Duncan, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Defendant-Appellant, the City of Plano (the “City”) appeals the
district court’s judgment holding that it violated the Fair Housing Act
(“FHA”) due to its failure to accommodate Plaintiffs as to the capacity limits
in the applicable zoning ordinance. Because we hold that the district court
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No. 22-40637
erred in determining that the evidence satisfied the applicable legal standard,
we VACATE the district court’s injunction and REMAND for further
proceedings consistent with this opinion. 1
I.
Plaintiffs are Constance Swanston (“Swanston”), Shannon Jones
(“Jones”), and Women’s Elevated Sober Living, LLC (“WESL”)
(collectively, “Plaintiffs”). Swanston is an individual in recovery from
substance use disorders (“SUDs”) and the owner and operator of WESL. In
November 2018, WESL opened a sober living home (the “Home”) on
Stoney Point Drive in Plano, Texas. Jones is a caretaker and resident of the
Home.
WESL offers numerous services to the Home’s residents, including
weekly Alcoholics and Narcotics Anonymous meetings, daily drug and
alcohol testing, employment training, and access to drug- and alcohol-
education groups. The Home is 5980 square feet and has seven bedrooms,
one for Jones and six for WESL residents. WESL requires each resident to
have at least one roommate. At one point, the Home had fifteen residents.
In early 2019, the City opened an investigation into the Home after
receiving complaints from neighborhood residents. The City’s zoning
ordinance allows only two types of residences in SF-7 (single family) zones,
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1
Because the district court’s injunction is vacated based on its determination of an
FHA violation, the district court’s judgment ordering damages and attorneys’ fees to
Plaintiffs is also vacated. For this reason, we do not address the parties’ arguments on
appeal regarding damages and attorneys’ fees.
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either a “Household” or a “Household Care Facility.” The zoning
ordinance limits the occupancy of a Household Care Facility to eight
unrelated disabled individuals and two caretakers. After the City completed
its investigation, it informed WESL that the Home violated the SF-7 zoning
ordinance because the occupancy exceeded eight unrelated disabled
individuals.
On April 16, 2019, WESL filed a request for accommodation with the
City’s Board of Adjustment (the “Board”) to allow seventeen to twenty
residents in the Home. WESL’s request included Swanston’s declaration
that living in “a sober home with 12 residents creates the necessary family
and community atmosphere for the personal accountability and support that
makes sober living effective.” The Board took up WESL’s accommodation
request at a public meeting on May 28, 2019. At the meeting, a city official
testified that the Home could safely house up to thirty-four people. The
Board also heard public comments that predominantly urged the Board to
deny the requested accommodation. It then heard from Swanston’s attorney
before briefly deliberating on the request. After deliberation, the Board voted
eight-to-zero against WESL’s request for accommodation.
On June 5, 2019, Swanston and WESL filed suit in federal court
claiming disparate treatment, disparate impact, and failure-to-accommodate
based on theories of financial and therapeutic necessity. One week later,
Swanston and WESL filed an Amended Complaint adding Jones as a plaintiff.
On February 8–9, 2021, the district court held a bench trial. Plaintiffs’ expert,
Dr. John Majer, testified that in terms of occupancy levels of a sober-living
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home, having more residents would “increase the richness of the social
support available that is going to help individuals connect to recovery.” He
further averred that “when you increase the [capacity], you’re going to
increase the therapeutic benefit.”
The district court issued its memorandum opinion on the issue of
liability on August 27, 2021. The district court determined that Plaintiffs
failed to prove their claims of disparate treatment, disparate impact, and
failure-to-accommodate under a theory of financial necessity. On Plaintiffs’
failure-to-accommodate claim under a theory of therapeutic necessity, the
district court determined that the issue “require[d] individualized
considerations” and “must be meticulously considered on a case-by-case
basis and in light of the evidence presented.” The district court then held
that the City violated the FHA for its failure to accommodate after
concluding that Plaintiffs’ proposed accommodation was therapeutically
necessary as compared to the offered alternative, considering the disabilities
of the Home’s residents.
The district court then enjoined the City from (1) restricting the
Home’s occupancy to fewer than fifteen residents; (2) enforcing any other
property restriction violative of the FHA or ADA; and (3) retaliating against
Plaintiffs for pursuing housing discrimination complaints under the FHA and
ADA. The district court also ordered supplemental briefing on the issue of
damages and, following a hearing, awarded Plaintiffs nominal damages of one
dollar. The district court rejected Swanston’s and WESL’s demands for
punitive, mental anguish, and lost profits damages because it reasoned that
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Plaintiffs presented “no factual evidence” to support those demands. In a
separate memorandum opinion on attorneys’ fees, the district court awarded
Jones, Swanston, and WESL the full lodestar without any reduction or
increase. This appeal followed. WESL and Swanston cross-appealed on the
issue of the district court’s denial of their demand for lost profits damages.
II.
“The standard of review for a bench trial is well established: findings
of fact are reviewed for clear error and legal issues are reviewed de novo.”
Luwisch v. Am. Marine Corp., 956 F.3d 320, 326 (5th Cir. 2020) (per curiam)
(citations omitted). The district court’s findings of fact will stand unless we
are “left with the definite and firm conviction that a mistake has been
committed.” Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006)
(citation omitted). Where “the district court appl[ies] the wrong legal
standard in making its factual findings, this court then reviews the district
court’s factual findings de novo.” City of Alexandria v. Brown, 740 F.3d 339,
350 (5th Cir. 2014).
III.
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
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dwelling.” 42 U.S.C. § 3604(f)(1)(B). 2 Discrimination includes “a refusal to
make reasonable accommodations in rules [or] policies . . . when such
accommodations may be necessary to afford such person equal opportunity
to use and enjoy a dwelling.” Id. § 3604(f)(3)(B). In a failure-to-
accommodate claim, a plaintiff must demonstrate that (1) the residents of the
affected dwelling or home suffer from a disability, (2) they requested an
accommodation from the defendant, (3) the requested accommodation was
reasonable, and (4) the requested accommodation was necessary to afford the
residents equal opportunity to use and enjoy the home. See Providence Behav.
Health v. Grant Rd. Pub. Util. Dist., 902 F.3d 448, 459 (5th Cir. 2018).
Importantly, the plaintiff bears the burden of proving a violation of the FHA.
See Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir. 1996).
To prove that an accommodation request is necessary, courts require
that a plaintiff prove that the requested accommodation makes the home
either “financially viable” or “therapeutically meaningful.” See Bryant
Woods Inn v. Howard County, 124 F.3d 597, 605 (4th Cir. 1997). Some courts
have determined that necessity must be considered (1) in light of the
statutory provision’s language; (2) in accord with the purpose of the FHA
and ADA, to ameliorate the plaintiff’s particular disability; and (3) in the light
of “proposed alternatives.” See Vorchheimer v. Philadelphian Owners Ass’n,
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2
Both parties agree that the accommodations requirements under both the FHA
and the ADA are functionally identical. As such, “this opinion will address the claims
relating to these statutes collectively.” Providence Behav. Health v. Grant Rd. Pub. Util.
Dist., 902 F.3d 448, 455 n.2 (5th Cir. 2018).
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903 F.3d 100, 105 (3d Cir. 2018). However, a requested accommodation that
is preferable to an alternative is not sufficient; it must be essential. See
Cinnamon Hills Youth Crisis Ctr. v. Saint George City, 685 F.3d 917, 923 (10th
Cir. 2012). While we have spoken to the issue of therapeutic necessity before,
we have no precedential opinions addressing this inquiry.
We must evaluate necessity considering its definition, that is,
something “[i]ndispensable, requisite, essential, needful; that cannot be
done without, or absolutely required.” Vorchheimer, 903 F.3d at 105(alteration in original) (internal quotation marks omitted) (quoting 10
Oxford English Dictionary 275–76 (2d ed. 1989)). A requested
accommodation from capacity restrictions must directly ameliorate the effect
of the plaintiffs’ disabilities, such that the requested number must reside
together in a dwelling to achieve effective amelioration of their afflictions. 3
See id.; 42 U.S.C. § 3604(f)(3)(B). Put another way, without the requested
accommodation, the ameliorative benefit provided must be so insignificant
that it deprives persons with disabilities from the opportunity to use and
enjoy the dwelling of their choice as compared to those without disabilities.
See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008);
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3
As an illustration, see Oxford House, Inc. v. Browning, 266 F. Supp. 3d 896, 916
(M.D. La. 2017) (holding that “at least six otherwise unrelated individuals who are
recovering from alcoholism or drug addiction must reside together in a dwelling in order to
achieve the[] [desired] ameliorative effects”).
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Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996).
This closely tracks with the standards devised by our sister circuits.
For example, the Fourth Circuit held in Bryant Woods Inn, Inc. v.
Howard County that the necessity element “requires the demonstration of a
direct linkage between the proposed accommodation and the ‘equal
opportunity’ to be provided to the handicapped person.” 124 F.3d at 605.
Considering prior jurisprudence, we hold that the district court improperly
applied a standard accepting that proof of greater therapeutic benefit from
residents’ disabilities was sufficient to establish that the requested
accommodation was indispensable to their recovery from SUDs, rather than
requiring the plaintiffs to prove that the accommodation was indispensable
or essential.
As stated above, this circuit has no published precedent on point.
However, a previous panel of this court issued an unpublished opinion in
Harmony Haus Westlake, L.L.C. v. Parkstone Property Owners Ass’n, 851 F.
App’x 461 (5th Cir. 2021) (per curiam). The Harmony Haus panel stated that
where the request for accommodation addresses a restriction limiting a
home’s capacity, a plaintiff must show that a certain number of residents is
necessary for the home to be “therapeutically meaningful.” See id. at 465.
The panel then determined that the sober home failed to meet its burden to
prove that an accommodation allowing twelve residents was necessary to
ameliorate the residents’ disabilities via the specific programs the sober home
ran. Id. We stated that “[s]howing that an accommodation is necessary for a
sober-living home operator’s chosen model is not sufficient.” Id. at 466. The
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panel concluded that the sober home’s expert and resident testimony
demonstrated at most that an accommodation to allow twelve residents
provided better recovery prospects for the residents but was insufficient to
prove necessity. Id. at 465–66.
This case is strikingly analogous to Harmony Haus. We hold that the
district court erred by applying a standard accepting that therapeutically
beneficial treatment constitutes necessity under the FHA and ADA. The
testimony elicited at the bench trial—like the evidence in Harmony Haus—
was insufficient to demonstrate that the requested capacity accommodation
was indispensable or essential to the continued facilitation of the residents’
recovery from SUDs. See id. A requested accommodation is necessary only if
the plaintiff shows that without the requested accommodation, they will
receive no ameliorative effect from their disability, thereby depriving them of
the equal opportunity to enjoy the dwelling. 4 To accept evidence that an
accommodation would be better or provide a greater benefit to its residents
with disabilities constitutes legal error. Cf. Vorchheimer, 903 F.3d at 112.
Thus, the legal error flows from the district court’s determination that
Plaintiffs satisfied their burden of proof. At trial, Dr. Majer testified that
having fifteen residents in a sober home provides an increased therapeutic
benefit over eight residents and “improv[ed] the odds of [residents] staying
sober.” Throughout his testimony, however, he does not explicitly state
whether a specific number of residents is required for the Home to provide
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4
See, e.g., Vorchheimer, 903 F.3d at 110; Cinnamon Hills, 685 F.3d at 923–24.
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the requisite therapeutic milieu for recovery. 5 For instance, he stated that a
minimum number of fifteen residents was required to have “an effective
therapeutic result.” But he also stated that “adding more residents increases
therapeutic benefit in recovery homes” and makes it “more likely [] to
produce more therapeutic effect.” He also opined that having fifteen
residents in a sober home improved the odds of its residents staying sober.
Thus, the district court erred by concluding that Plaintiffs satisfied their
failure-to-accommodate claim here based on the evidence showing an
ameliorative benefit derived from a larger occupancy.
Looking to our sister circuits, we find confirmation that our holding
here is appropriate. In Vorchheimer, the Third Circuit determined that a
resident failed to allege a cognizable failure-to-accommodate claim because
the requested accommodation was merely more preferential than the
proposed alternatives. See 903 F.3d at 108–09. There, the resident had an
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5 We measure necessity in light of its definition as “something that ‘cannot be done
without.’” See Cinnamon Hills, 685 F.3d at 923 (rejecting the argument that “an
accommodation should be held ‘necessary’ anytime it would provide [] direct amelioration
of a disability’s effect”); Vorchheimer, 908 F.3d at 105 (“[T]he [FHA]’s necessity element
requires that an accommodation be essential, not just preferable.”); Bryant Woods Inn, 124
F.3d at 605 (“Thus, nothing in the record that we can find suggests that a group home of
15 residents, as opposed to one of 8, is necessary to accommodate individuals with
handicaps.”); Davis v. Echo Valley Condo. Ass’n, 945 F.3d 483, 490 (6th Cir. 2019) (holding
that the plaintiff’s proposed “total smoking ban likely was not necessary (that is,
‘indispensable,’ ‘essential,’ something that ‘cannot be done without’) to give her the same
opportunity to use and enjoy her condo as compared to a non-disabled person who dislikes
the smell of smoke”); Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1191 (9th Cir. 2021)
(“In other words, absent an accommodation, the plaintiff’s disability must cause the
plaintiffs to lose an equal opportunity to use and enjoy a dwelling.”).
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ambulatory disability which required the use of a walker to get from her condo
to her building’s lobby. Id. at 103–04. The condominium owners’ association
rejected her request to leave the walker in the lobby but offered several
methods to store it for her, all of which she refused. Id. at 104. In affirming
the district court’s dismissal of her claim, the Vorchheimer court noted that
the necessity inquiry “adopts a strict sense of ‘necessary’” and may
“function[] as a but-for causation requirement, tying the needed
accommodation to equal housing opportunity.” Id. at 110. The Third Circuit
concluded that, based on its strict reading of § 3604(f)(3)(B) and the prior
jurisprudence in its court and its sister circuits, the resident failed to prove
that her requested accommodation was necessary considering the definition
of the term, the purpose of the FHA, and the proffered alternatives. Id. at
112–13. For the same reasons, we hold that Plaintiffs have failed to establish
that their requested accommodation was therapeutically necessary. See id.
IV.
For the foregoing reasons, the district court’s injunction is
VACATED and this case is REMANDED for further proceedings
consistent with this opinion.
11