179 F.3d 725 (9th Cir. 1999), 98-16612, Bay Area Addiction Research & Treatment, Inc. v. City of Antioch

Docket Nº:98-16612
Citation:179 F.3d 725
Opinion Judge:TASHIMA, Circuit Judge.
Party Name:BAY AREA ADDICTION RESEARCH AND TREATMENT, INC.; CALIFORNIA DETOXIFICATION PROGRAMS, INC.; RON KLETTER, Ph.D.; VICKI ROE; SUSAN COE; RHONDA LOE; RAY DOE; OSCAR VOE; CINDY MOE; ROBIN POE; MARY FOE, Plaintiffs-Appellants, v. CITY OF ANTIOCH, Defendant-Appellee
Attorney:Amitai Schwartz, Law Offices of Amitai Schwartz, San Francisco, California, for the plaintiffs-appellants. Gary M. Lepper, Lepper, Schaefer, & Harrington, Walnut Creek, California, for the defendant-appellee.
Judge Panel:Before: Joseph T. Sneed, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.
Case Date:June 03, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 725

179 F.3d 725 (9th Cir. 1999)

BAY AREA ADDICTION RESEARCH AND TREATMENT, INC.; CALIFORNIA DETOXIFICATION PROGRAMS, INC.; RON KLETTER, Ph.D.; VICKI ROE; SUSAN COE; RHONDA LOE; RAY DOE; OSCAR VOE; CINDY MOE; ROBIN POE; MARY FOE, Plaintiffs-Appellants,

v.

CITY OF ANTIOCH, Defendant-Appellee

No. 98-16612

United States Court of Appeals, Ninth Circuit

June 3, 1999

Argued and Submitted January 12, 1999, San Francisco, California

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Appeal from the United States District Court for the Northern District of California. D.C. No. CV 98-2651 SI. Susan Y. Illston, District Judge, Presiding.

Amitai Schwartz, Law Offices of Amitai Schwartz, San Francisco, California, for the plaintiffs-appellants.

Gary M. Lepper, Lepper, Schaefer, & Harrington, Walnut Creek, California, for the defendant-appellee.

Before: Joseph T. Sneed, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.

OPINION

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TASHIMA, Circuit Judge.

In 1998, Bay Area Addiction Research and Treatment, Inc. (" BAART" ) and California Detoxification Programs, Inc. (" CDP" ) tried to relocate their methadone clinic to the City of Antioch, California. After BAART and CDP received notice from Antioch that the proposed location could be used for such a clinic under Antioch's zoning plan, the Antioch City Council enacted an urgency ordinance prohibiting

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the operation of methadone clinics within 500 feet of residential areas, thereby precluding the use of the proposed site. BAART, individual patients of BAART, CDP, and Dr. Ron Kletter, the executive director of both, (collectively " Bay Area" ) brought suit against Antioch pursuant to Title II of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12131-65, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794, among others. The district court denied Bay Area's motion for a preliminary injunction enjoining the urgency ordinance. Bay Area appeals, contending that the district court applied the wrong legal test to its ADA and Rehabilitation Act claims and misjudged the irreparability of the harm it would suffer if an injunction did not issue. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). We hold that Title II of the ADA and § 504 of the Rehabilitation Act apply to zoning ordinances, and that the district court abused its discretion by applying the wrong legal test to Bay Area's ADA and Rehabilitation Act claims. Accordingly, we reverse and remand.

I.

BAART has operated a clinic for 13 years in a municipal courthouse in Pittsburg, California, that provides outpatient methadone treatment to people who have been addicted to heroin. CDP provides short-term outpatient heroin detoxification services at the same location. Although BAART and CDP are distinct entities, they work closely together at clinic locations throughout California. BAART and CDP plan to share space at the location at issue in this case. We will use the abbreviation " BAART" to refer to both BAART and CDP in this statement of the facts.

On December 2, 1997, Contra Costa County notified BAART that its lease of office space in the Pittsburg courthouse would be terminated on September 30, 1998, because the County needed the premises for other uses. 1 BAART began to look for a site to which it could relocate near Antioch or Pittsburg, as approximately one-half of BAART's patients reside in one city or the other. BAART set forth six criteria for its new location: (1) proximity to Antioch or Pittsburg, (2) accessibility to public transportation, (3) approximately 5,000 square feet in size, (4) compliant with building codes, (5) parking for approximately 20 cars, and (6) availability for purchase or long-term lease with an option to purchase. 2 After searching for several months, BAART found a location in Antioch (the " Sunset Lane site" ) that satisfies these criteria. While the Sunset Lane site was at one time occupied by a medical practice and shares a street with many medical and commercial offices, it abuts a residential neighborhood.

On April 15, 1998, the deputy director of Antioch's Community Development Department notified BAART in writing that a clinic like BAART's would be a permitted use of the Sunset Lane site under Antioch's land use plan. 3 Subsequently, on April 27, 1998, BAART filed a business license application for the Sunset Lane site. The next day, Dr. Kletter and his wife orally agreed to purchase the site, and on May 18, 1998, they entered into a written purchase agreement. 4

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By mid-April, 1998, Antioch residents had learned of BAART's plans for the Sunset Lane site and began to express their concern that the methadone clinic would result in an increase in crime and drug abuse near Sunset Lane and throughout Antioch. The issue was addressed at the April 28, 1998, Antioch City Council meeting, at which many residents commented on the proposed use of the Sunset Lane site. 5 Following this hearing, the City Council unanimously approved Ordinance No. 938-C-S, an urgency ordinance, pursuant to section 65858 of the California Government Code, which authorizes a city to prohibit a land use for 45 days in order to study the proposed use. See Cal. Gov't Code § 65858 (West 1999). The ordinance forbids the issuance of any permits to or the operation of any new substance abuse clinics, including methadone clinics, located within 500 feet of any residential property.

On June 9, 1998, the city council approved Ordinance No. 941-C-S, another urgency ordinance, that extended the effective date of the original ordinance to April 10, 1999. 6 The second ordinance amended the first ordinance so as to prohibit only methadone clinics from operating within 500 feet of any residential property. The " Legislative Findings and Conclusions" accompanying the second ordinance included both statistics and generalities from which the city council concluded that " the proposed methadone clinic at its proposed location represents a current and immediate threat to the public peace, health, safety and welfare." Specifically, the city council found that the methadone clinic would attract drug dealers and lead to an increase in crime in the area surrounding the clinic. 7 The ordinance provided for further studies of the impact of methadone clinics on nearby residences and children.

Antioch and BAART subsequently tried to find an alternative site for the clinic, but no agreement was reached.

On July 6, 1998, Bay Area brought a class action lawsuit against Antioch under the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983, for violations of the Supremacy, Due Process, and Equal Protection Clauses. Bay Area sought a declaratory

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judgment that Ordinance No. 941-C-S was unlawful and a permanent injunction enjoining Antioch from enforcing the ordinance or otherwise interfering with Bay Area's use of the Sunset Lane site as a methadone clinic.

Soon thereafter, Bay Area moved for a preliminary injunction and Antioch filed a motion to dismiss. The district court denied Bay Area and Antioch's motions, holding that zoning is an activity covered by the ADA and the Rehabilitation Act, and that appellants are qualified individuals with disabilities, entitled to protection under both statutes. See 42 U.S.C. § 12131 (1999). The district court decided, however, that at this stage in the litigation, Bay Area had neither demonstrated that it would be irreparably harmed if the court refused to issue a preliminary injunction nor that it was likely to prevail on the merits.

Bay Area argues that the district court erred in refusing to issue a preliminary injunction because the district court considered whether there was an alternative location that would constitute a reasonable accommodation of both sides' interests. Under a test that looks solely to whether a law discriminates on the basis of disability, Bay Area contends, it can show that it is likely to prevail on the merits. Bay Area also contends that it will be irreparably harmed if a preliminary injunction does not issue.

II.

We review the district court's denial of a preliminary injunction for an abuse of discretion. See Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.), aff'd sub nom. Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 1999 WL 303743, 143 L.Ed.2d 689 (U.S. 1999). A district court abuses its discretion if it " 'based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.'" Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 L.Ed.2d 359, 110 S.Ct. 2447 (1990)); cf. Koon v. United States, 518 U.S. 81, 100, 135 L.Ed.2d 392, 116 S.Ct. 2035 (1996) (adopting a single-tier formulation of the abuse of discretion standard of review). " A district court by definition abuses its discretion when it makes an error of law." Id.

The interpretation of a statute is a question of law reviewed de novo. See Alexander v. Glickman, 139 F.3d 733, 735 (9th Cir. 1998).

III.

A. The Applicability of the ADA and the Rehabilitation Act to Zoning

The district court held that the ADA and the Rehabilitation Act apply to zoning, a decision the parties do not contest on appeal. Because the issue is one of first impression in this circuit, however, we discuss it here. In so doing, we adopt much of the persuasive reasoning of the Second Circuit in Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), 8 and hold that these statutes do apply to zoning.

As with all exercises in statutory interpretation, we begin with the ADA's text. Title II of the ADA addresses the provision of public services. Section 12132 of this title prohibits discrimination on the basis of disability by public entities. 9 Section 12132 provides that "...

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