Gamble v. City of Escondido

• Decision Date: 10 October 1996
• Docket Number: No. 95-56019,95-56019
• Parties: , 9 NDLR P 214, 97 Cal. Daily Op. Serv. 263, 97 Daily Journal D.A.R. 473 John GAMBLE; Fie A. Gamble; Life Care Residences, Inc., doing business as Oak Hill Residential Care, Plaintiffs-Appellants, v. CITY OF ESCONDIDO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 300

104 F.3d 300

19 A.D.D. 740, 9 NDLR P 214, 97 Cal.

Daily Op. Serv. 263,

97 Daily Journal D.A.R. 473

John GAMBLE; Fie A. Gamble; Life Care Residences, Inc. doing business as Oak Hill Residential Care Plaintiffs-Appellants, v. CITY OF ESCONDIDO, Defendant-Appellee.

No. 95-56019.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 10, 1996. ^*

Decided Jan. 10, 1997.

Charles D. Nachand, Law Offices of Charles D. Nachand, Escondido, California, for the plaintiff-appellant.

Jeffrey R. Epp, City Attorney, Escondido, California, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California, Edward J. Schwartz, District Judge, Presiding. D.C. No. CV-94-00637-EJS.

Before: BRUNETTI, TROTT and THOMAS, Circuit Judges.

OPINION

THOMAS, Circuit Judge:

John Gamble, Fie Gamble, and Life Care Residences, Inc. ("Gamble") sought to construct a complex for physically disabled elderly adults in a single-family residence area in Escondido, California. The City of Escondido ("City") denied the building permit application because the proposed building was too large for the lot and did not conform in size and bulk with the neighborhood structures. The district court granted the City summary judgment on the Fair Housing Act, equal protection, and due process claims. We affirm.

BACKGROUND

Fie and John Gamble own several parcels of land in Escondido, California. In 1987, the City granted the Gambles a conditional use permit for one of their parcels of land allowing construction of up to six facilities to care for the physically disabled, with each facility having a capacity maximum of twelve persons. Only two buildings, each of approximately 5,000 square feet in size, have been erected.

Gamble proposed to construct a 10,360 square foot, eight bedroom, twelve bathroom structure for the physically disabled elderly on a different parcel of land. The upper portion of the building was designed to house fifteen elderly disabled adults; the lower to serve as an adult day care facility. Day care patients from throughout Escondido would be transported to and from the center each day by van. A ten-car lot would provide parking. Surrounding homes in the neighborhood were significantly smaller than the proposed complex.

The City Planning Department concluded that the building would not be typical for a single-family residence and notified Gamble that the proposed size of the structure and number of occupants required a conditional use permit. Gamble then applied for a conditional use permit and simultaneously sought to increase the capacity for his previously authorized care facilities.

The size and bulk of the proposed structure continued to be an issue in the permit review process. The City's Design Review Board considered Gamble's application at two meetings and recommended denial. The Planning Commission held a public hearing, after which it recommended denial of the application based on the size of the structure, the design, the lack of amenities, and the inadequacy of parking. Gamble appealed the Planning Commission's decision to the City Council which referred the application back to the Design Review Board to allow Gamble an additional opportunity to redesign the building.

Gamble revised the building elevations and site plan, but the building size and capacity remained the same. The Design Review Board reviewed the revised application, but still recommended that the application be denied. The Planning Commission held a hearing on the matter and again recommended denial of the conditional use permit.

Gamble appealed to the City Council, which held a public hearing. After a significant number of people testified movingly about the need for facilities for the physically challenged, the City Council voted to approve the application. However, in response to the concerns voiced by neighbors, the City Council agreed to reconsider the matter at a subsequent hearing. At this hearing, the City Council denied Gamble's conditional use permit application for the proposed new building and approved Gamble's application to increase the capacity of his other residence care facilities.

Gamble filed suit in the Southern District of California alleging violations of the Fair Housing Act, the Equal Protection Clause, and the Due Process Clause. The district court granted summary judgment. Gamble appeals.

ANALYSIS

We review a grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). Summary judgment is appropriate when the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. at 2511.

I. THE FAIR HOUSING ACT CLAIMS

We apply Title VII discrimination analysis in examining Fair Housing Act ("FHA") discrimination claims. "Most courts applying the FHA, as amended by the [Fair Housing Act Amendments], have analogized it to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prohibits discrimination in employment." Larkin v. Michigan Dep't of Social Servs., 89 F.3d 285, 289 (6th Cir.1996); see Pfaff v. United States Dep't of Hous. & Urban Dev., 88 F.3d 739, 745 n. 1 (9th Cir.1996) ("We may look for guidance to employment discrimination cases.").

Thus, a plaintiff can establish an FHA discrimination claim under a theory of disparate treatment, Ring v. First Interstate Mortgage, Inc., 984 F.2d 924, 926 & n. 2 (8th Cir.1993), or disparate impact, Pfaff, 88 F.3d at 745 & n. 1. Additionally, a plaintiff may sue under section 3604(f)(3)(B) of the Fair Housing Act Amendments ("FHAA") if a local municipality refuses to make reasonable accommodations for handicapped housing. City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802 (9th Cir.1994), aff'd sub nom. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). Gamble alleges claims of discrimination under each of these theories.

A. Disparate Treatment under the Fair Housing Act

We analyze FHA and FHAA disparate treatment claims under Title VII's three-stage McDonnell Douglas/Burdine test. ¹ Ring, 984 F.2d at 926; see Soules v. United States Dep't of Hous. & Urban Dev., 967 F.2d 817, 822 (2d Cir.1992).

To bring a disparate treatment claim, the plaintiff must first establish a prima facie case. Adapted to this situation, the prima facie case elements are: (1) plaintiff is a member of a protected class; (2) plaintiff applied for a conditional use permit and was qualified to receive it; (3) the conditional use permit was denied despite plaintiff being qualified; and (4) defendant approved a conditional use permit for a similarly situated party during a period relatively near the time plaintiff was denied its conditional use permit. See Ring, 984 F.2d at 928; Soules, 967 F.2d at 822; Secretary, United States Dep't of Hous. & Urban Dev. ex rel. Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir.1990). See also Banerjee v. Board of Trustees, 648 F.2d 61, 62 (1st Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981) (formulating the "relatively near to the time" fourth prong in a tenure denial case).

Second, if the plaintiff establishes the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Blackwell, 908 F.2d at 870; Soules, 967 F.2d at 822; see also Lam v. University of Hawai'i, 40 F.3d 1551, 1559 (9th Cir.1994) (same, in the employment discrimination context).

Third, if the defendant satisfies its burden, the plaintiff must prove by a preponderance of evidence that the reason asserted by the defendant is a mere pretext. Blackwell, 908 F.2d at 870; Soules, 967 F.2d at 822; see also Lam, 40 F.3d at 1559 (same, in the employment discrimination context).

"Proof of discriminatory motive is crucial to a disparate treatment claim." Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F.Supp. 1396, 1401 (D.Minn.1990) (importing an employment discrimination standard into a housing discrimination case), aff'd, 923 F.2d 91 (8th Cir.1991). See also Lam, 40 F.3d at 1559 (9th Cir.1994) (observing, in the employment discrimination context, that "[o]n summary judgment, the existence of a discriminatory motive for the employment decision will generally be the principal question").

Initially, we note that on its face, Gamble's complaint does not present a prima facie case because he does not allege that the City granted a permit to a similarly situated party relatively near the time the City denied his permit. Gamble does allege the existence of other large structures in the vicinity, such as an apartment complex, a mobile home park, and a multistory church. Neither the complaint nor the record, however, informs us of the dates on which permits for these structures were granted, or whether other factors, such as the composition of the city council or the related zoning ordinances, had changed since the prior permits were granted.

However, we do not need to determine whether Gamble has presented a prima facie case because his claim fails under subsequent steps in the McDonnell Douglas/Burdine analysis. For the purposes of this examination, we move to stage two and conclude that the reason the City advances for its decision, concern for the character of the neighborhood, is legitimate and nondiscriminatory.

At stage three, the burden shifts to Gamble to present...