Swanston v. City of Plano

Citation557 F.Supp.3d 781
Decision Date27 August 2021
Docket NumberCivil Action No. 4:19-cv-412
Parties Constance SWANSTON, Women's Elevated Sober Living LLC, and Shannon Jones, Plaintiffs, v. CITY OF PLANO, TEXAS, Defendant.
CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas

Richard M. Hunt, Hunt Huey PLLC, Dallas, TX, for Plaintiffs Women's Elevated Sober Living LLC, Constance Swanston.

Christopher Patrick McGreal, Rachel Beth Cohen-Miller, Disability Rights Texas, Dallas, TX, for Plaintiff Shannon Jones.

Charles Joseph Crawford, Lucas Christopher Henry, Abernathy Roeder Boyd & Hullett, PC, McKinney, TX, Amy Warr, Alexander DuBose & Jefferson LLP, Austin, TX, for Defendant.



On June 5, 2019, Constance Swanston and Women's Elevated Sober Living LLC filed its original complaint against the City of Plano (Dkt. #1). One week later, Shannon Jones joined the original plaintiffs in filing an amended complaint (Dkt. #2). And on April 29, 2020, the three plaintiffs filed a second amended complaint, now the operative complaint in this action (Dkt. #29). Plaintiffs assert that the City of Plano violated the Fair Housing Act ("FHA") and the Americans with Disabilities Act ("ADA") by enacting an allegedly discriminatory zoning ordinance and subsequently denying Plaintiffs’ request for accommodation from the zoning ordinance.

From February 8–9, 2021, the Court held a bench trial in the above-styled matter. After consideration of the parties’ arguments and the evidence, the Court makes the following findings of fact and conclusions of law by a preponderance of the evidence pursuant to Federal Rule of Civil Procedure 52(a)(1).1 To the extent that any findings of fact constitute conclusions of law, or any conclusions of law constitute findings of fact, they are adopted as such. See Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 401, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).


Plaintiffs are two individuals and an entity: Constance Swanston ("Swanston"), Shannon Jones ("Jones"), and Women's Elevated Sober Living LLC ("WESL"). WESL operates a sober living home at 7312 Stoney Point Drive (the "Home"), which is within Defendant the City of Plano, Texas ("Plano"). Swanston is the owner of the Home and the primary operator of WESL, and Jones is a caretaker and resident of the Home. This suit stems from WESL's existence and operations.

Swanston and her husband, James Kearins, are individuals in recovery from substance use disorders ("SUDs"). Together, they share a personal mission of helping others stay sober and live functioning lives. One of the primary ways they seek to fulfill this mission is by opening and operating sober living homes.

The Home is 5,890 square feet in size and is located in one of Plano's SF-7 zoning districts. With the intention of opening a sober living home in the area, Swanston purchased the Home from her mother for $467,000. Swanston borrowed the entire purchase price from her mother under an agreement to repay the sale price over fifteen years at a 5% interest rate. At the same time, she borrowed $20,000 in cash for start-up expenses. The monthly payment from Swanston to her mother is $4,800, which WESL pays to Swanston for rent when funds are available.

In November 2018, WESL opened the doors of the Home as a sober living home. Within the Home, WESL offers numerous benefits to its residents other than the general therapeutic atmosphere suitable for individuals in recovery. There are required weekly meetings of Alcoholics Anonymous and Narcotics Anonymous that supplement residents’ regular meetings outside the Home. Residents of the Home sign an oath to abide by WESL's resident rules while staying at the Home, which includes remaining entirely sober and consenting to daily drug and alcohol testing. Residents share most things, from chores and free time to physical space, such as bedrooms, bathrooms, the living room, and the kitchen. WESL provides additional services to the Home's residents, such as facilitating transportation, assisting with work and employment opportunities (e.g. , resume drafting, interview skill-building), and providing both off-site counseling and access to drug- and alcohol-education groups.

In early 2019, citizens of Plano began inquiring as to WESL's operations at the Home. The concerned individuals generally took issue with three things: (1) the operation of a commercial enterprise in a single-family residential zoning district, (2) the number of residents living at the Home, and (3) the presence of "alcoholics" living together in the neighborhood. In March 2019, complainant Kendel Reed ("Reed") contacted Plano requesting official action as to WESL and the Home. On March 4, 2019, Plano's Director of Neighborhood Services, Lori Schwarz, informed Reed that Plano planned to open an investigation into the Home.

Plano proceeded to reach out to WESL and, after some back-and-forth communication, informed WESL that the number of residents being housed in the Home exceeded eight (8)—the maximum number of residents allowed in an SF-7 zone by Plano Ordinance No. 2009-6-9 (the "Ordinance"). The Home is considered a "Household Care Facility" under Plano's zoning code, which is defined in relevant part as: "A dwelling unit that provides residence and care to not more than eight persons, regardless of legal relationship, who are ... disabled ..., living together with no more than two caregivers as a single household."

Soon thereafter, on April 16, 2019, WESL filed a reasonable-accommodation request with Plano's Board of Adjustment (the "Board"). On the application, WESL stated the following as the reason for the requested variance: "Use of property as Women's Sober Living with an occupancy of 15 individuals – residents will be disabled addicts in recovery." WESL also attached a declaration to the application briefly summarizing WESL's mission and the disabilities from which residents of the Home suffer, as well as WESL's intake procedure and operations within the Home.

The Board took up WESL's requested accommodation at a public meeting held on May 28, 2019. At the meeting, Plano's code-compliance officer recommended approval of WESL's request, and Plano's property-standards manager stated that, absent the Ordinance, the size of the Home could sleep thirty-four individuals. Additionally, Swanston and her attorney presented on the request and took questions from the Board.

Then came the public comments. Nearly one hundred members of the public attended the meeting, and police were needed for crowd control. Thirty-three crowd members spoke up to offer their opinions to the Board—all but one urged the Board to deny the request.2 The speakers generally expressed concern about: the SUDs of WESL's residents; potential uptick in crime due to WESL residents and visitors; traffic and parking arrangements; emergency-vehicle access; trash collection; visual aesthetics; and WESL's alleged violations of municipal law. While not exhaustively listed, some of the more notable comments include the following:

"These people have not been welcome any place they have gone ... How many [sober living homes] do we want here? How many are you guys going to ... allow to move in here?";
• Describing Swanston and WESL as "real estate developers ... cloaked under a bunch of do-gooderness";
"I take my dog for a walk every day. I don't go that way anymore. I take the long way around because there are undesirables there";
"I think it's a great mistake to ... give these people ... any more variances of any kind. They have not proven themselves to be a good neighbor";
• Stating that WESL residents "flick cigarettes" and "yell things" at passersby;
"[S]ometimes crime can be an issue ..., so I'm very concerned about both residents and visitors and whether or not I'll still be safe";
"There's ... a reason why there's 25 [sober living homes] in Richardson, because the property values are cheaper in there [sic] and it's a lot easier to operate";
"[W]e don't want a group home in our neighborhood .... [W]e don't want a 15-bed sober house in our neighborhood";
"Before you vote, I just want you to honestly ask yourself, would you want this next to your house?"

After hearing from Swanston's attorney once more, the Board closed the public hearing and discussed the matter privately. Following brief deliberation, the Board rejected WESL's requested accommodation by a vote of eight to zero. Roughly one week later, Swanston and WESL filed the complaint that opened this action.

I. Jurisdiction and Venue

The Court has subject-matter jurisdiction over this action because Plaintiffs assert causes of action under the FHA and ADA, which arise under federal law. 28 U.S.C. § 1331. Alternatively, the Court has subject-matter jurisdiction pursuant to 42 U.S.C. § 3613(a)(1)(A) and 42 U.S.C. § 12133. The Court has personal jurisdiction over Plano. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct. , ––– U.S. ––––, 141 S. Ct. 1017, 1024–25, 209 L.Ed.2d 225 (2021). Venue is proper in this action because "a substantial part of the events or omissions" giving rise to Plaintiffs’ claims occurred in the Eastern District of Texas. 28 U.S.C. § 1391(b)(2).

II. Overview of Applicable Law3

"Congress enacted the FHA ‘to eradicate discriminatory practices within a sector of our Nation's economy’ and to clearly pronounce ‘a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream."4 Swanston v. City of Plano, Tex. , No. 4:19-CV-412, 2020 WL 7080817, at *2 (E.D. Tex. Dec. 3, 2020) (first quoting Tex. Dep't of Hous. & Cmty. Affs. v. Inclusive Comms. Project, Inc. ("TDHCA") , 576 U.S. 519, 539, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015) ; and then quoting Groome Res., Ltd., L.L.C. v. Parish of Jefferson , 234 F.3d 192, 201 (5th Cir. 2000) ). Under the FHA, it is unlawful to sell, rent, or otherwise make...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT