United States v. City of Balt.

• Decision Date: 29 February 2012
• Docket Number: Civil Nos. JFM–09–1049,JFM–09–1766.
• Citation: 44 NDLR P 255,845 F.Supp.2d 640
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF BALTIMORE, Defendant. Baltimore City Substance Abuse Directorate, Plaintiff, v. Mayor and City Council of Baltimore, Defendant.
• Court: U.S. District Court — District of Maryland

845 F.Supp.2d 640

44 NDLR P 255

UNITED STATES of America, Plaintiff,

v.CITY OF BALTIMORE, Defendant.

Baltimore City Substance Abuse Directorate, Plaintiff,

v.Mayor and City Council of Baltimore, Defendant.

Civil Nos. JFM–09–1049, JFM–09–1766.

United States District Court, D. Maryland.

Feb. 29, 2012.

Matthew W. Nayden, Daniel J. Sparaco, George A. Nilson, Baltimore City Law Department, Baltimore, MD, Amy Beth Leasure, Allegis Group Inc., Hanover, MD, for Defendant.

Ellen M. Weber, Alvaro Joseph Bellido De Luna, University of Maryland School of Law, Baltimore, MD, Amy T. Tridgell, Jerry Canada, Olivier Antoine, Vivian Margarita Arias, Crowell and Moring

LLP, New York, NY, Sarah Bordelon, William L. Anderson, Crowell and Moring LLP, Washington, DC, for Plaintiff Baltimore City Substance Abuse Directorate.

OPINION

J. FREDERICK MOTZ, District Judge.

Plaintiffs, the United States (“Department of Justice” or “DOJ”) and the Baltimore City Substance Abuse Directorate (“BCSAD”), bring related actions against Defendant, City of Baltimore (“the City”). In both cases it is alleged that the City of Baltimore Zoning Code discriminates against individuals receiving treatment in residential substance abuse treatment programs (“RSATPs”) in violation of Title II of the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. §§ 12131 et seq., and the Fair Housing Act (“FHA”), as amended, 42 U.S.C. §§ 3604(f)(1) et seq.¹ Now pending are Plaintiffs' motion for partial summary judgment and the City's cross-motion for summary judgment. Plaintiffs request that this Court declare that a provision of the City's Zoning Code allegedly requiring a conditional ordinance (“CO”) for locating RSATPs, is facially invalid under the ADA and FHA.² The City requests that this Court declare that the provision at issue does not facially discriminate against RSATPs in violation of the ADA and FHA.

For the reasons discussed below, I grant Plaintiffs' summary judgment motions and deny the City's. However, I find that although the provision in the Zoning Code requiring that “homes for the rehabilitation of non-bedridden alcoholics” seek and obtain a CO is overbroad and discriminatory, I find that only a small group of RSATPs have been adversely affected by its application. Therefore, instead of striking the provision I will order that the language of the Code be amended by legislation enacted by the Baltimore City Council or by order of this Court, to reflect that the requirement of a CO does not apply to RSATPs that house 16 or fewer substance abusers at one time.

I. BACKGROUND

A. The Baltimore City Zoning Code

The Mayor and City Council established the Zoning Code in 1971 to, among other things, “encourage the most appropriate use of land throughout the City.” Zoning Code § 1–401(9). To accomplish this, Baltimore is divided into several zoning districts. Id. § 2–201 et seq. Four types of districts form the basis of Baltimore's zoning scheme: residential (ten districts, R–1 through R–10); office/residential (one district, O–R); business (five districts, B–1 through B–5); and industrial/manufacturing (three districts, M–1 through M–3). Id. Within each zoning district the Code delineates (1) land uses permitted as-of-right, (2) conditional land uses that require approval of the Board of Municipal and Zoning Appeals (“Board approval”), and (3) conditional land uses that require passage of an ordinance by the Mayor and City Council of Baltimore (“Conditional Ordinance” or “CO”). Id. § 3–101 et seq. Thus, for each district, the Code outlines the zoning approval mechanism for each land use authorized to locate in that district. If a land use is not mentioned, either as a permitted use as-of-right or as a conditional use, it cannot locate in that district. Id. § 3–106.

The Zoning Administrator is the principal officer vested with the power to administer and enforce the Code through granting and denying use permits. Id. § 2–101, 2–103 et seq. A use permit is required before an individual may: (1) occupy any newly constructed structure or any addition to a previously constructed structure, (2) use for any purpose any previously vacant land, or (3) make any changes in the authorized use of any land or structure. Id. § 2–402. To obtain a use permit, an individual files an application with the Zoning Administrator. Id. § 2–403. The Administrator evaluates the application by interpreting the Code to see whether or not the proposed land use in the application is authorized in the particular district in which it seeks to locate, and if so, whether it is a land use permitted as-of-right or a conditional land use. Id. § 2–301. Therefore, the amount of process required to obtain a use permit depends on how the Administrator labels the proposed land use and what the Administrator believes is required under the Code for that land use to locate in the desired zoning district. For example, if the Administrator labels the proposed land use as a single-family dwelling—defined as an individual, two or more related people, or a group of not more than four unrelated persons, living together as a single unit—it will be treated as an application proposing a land use that is permitted as-of-right in all residential districts. Id. §§ 4–2014–4–1301. A zoning permit for land uses permitted as-of-right usually involves very little process and can be obtained the same day the application is filed. (Tanner Dep. 26:11–29:5, July 27, 2010, ECF No. 48–5.) Conditional land uses, however, are “subject to review and approval and to the imposition of conditions and restrictions” and therefore require a more involved process. Zoning Code § 3–103.

In each district, the City identifies which land uses are conditional uses. Before issuing a permit for a conditional use, the impact of the land use on the surrounding community is assessed. Id. § 14–101(b). The City employs two mechanisms to perform this assessment. Some conditional land uses require approval by the Board of Municipal and Zoning Appeals (“Board approval”). Id. §§ 14–102(1), 14–201 et seq. Board approval requires a hearing and usually takes about six weeks before a permit is issued. (Tanner Dep. 29:6–14.) Other conditional uses require a conditional ordinance (“CO”) before a permit is issued. Zoning Code §§ 14–102(1), 16–101 et seq. Conditional uses that require a CO include adult entertainment establishments, adult book stores, community correctional centers, convalescent, nursing, and rest homes, drug stores and pharmacies, auditoriums, hospitals (CO required in all but five districts where permitted as-of-right), and homes for the rehabilitation of non-bedridden alcoholics or homeless persons (“homes for non-bedridden alcoholics”). Id. §§ 14–341, 14–346, 14–351, Table of Zoning Uses 427–79.

The CO requirement is more burdensome than Board approval. It requires a process that can extend for months. (Tanner Dep. 21:25–23:16, 30:25–31:10.); Baltimore City Dept. of Planning, Development Guidebook: Requirements for Building in Baltimore City 14–16 (updated Nov. 17, 2010), ECF No. 48–7. First, the City Council member of the district where the proposed land use seeks to locate must introduce a bill to the City Council. Zoning Code § 16–201. Second, alongside the bill, the applicant must submit a written statement that informs the City Council, the agencies to which the proposed ordinance is referred, and the public, of the intended land use. Id. § 16–202. Third, the applicant must post a notice of the requested authorization on the property. Id. § 16–203. Fourth, the City Council must refer the bill to various agencies and obtain from them written reports and recommendations on the proposed land use. Id. § 16–301 et seq. Fifth, a City Council committee must hold a public hearing to consider the bill. Id. § 16–401 et seq. Sixth, the bill must receive a favorable City Council vote on two separate readings. Id. § 16–404. Seventh, the City Council will conduct a final vote on a third reading of the bill. Id. Lastly, if the bill obtains a favorable vote, it will go to the Mayor for final approval. Id.

B. RSATPs and Plaintiff BCSAD

Baltimore City Substance Abuse Directorate (“BCSAD”) is a non-profit member organization made up of drug treatment and prevention programs, nine of which are RSATPs serving the Baltimore community. (BCSAD Mem. Supp. Mot. Summ. J. 4.) RSATPs are certified, or licensed, by the state of Maryland. SeeMd. Code Regs (“COMAR”) 10.47.04.03 (state certification required for all programs providing drug and alcohol treatment, care, and rehabilitation). They provide substance abuse treatment and services in a residential setting. (BCSAD Mem. Supp. Mot. Summ. J. 4 n.4.) This combination of treatment and housing distinguishes RSATPs from supportive housing, which has a residential component, but no treatment, and outpatient facilities, which involved treatment, but have no residential component. Id.

Not all RSATPs are alike; rather, they “span a continuum” based on the level of services offered to the patients at the facility. COMAR 10.47.01.02. Maryland law dictates that RSATPs admit only those individuals who satisfy the established American Society of Addiction Medicine (“ASAM”) criteria established for the level of services offered at that particular RSATP. Id. at 10.47.01.04(A)(4). As the level of the patients' impairment increases, so too does the level of care and services provided. For example, a Level III.7 facility, the highest level, is equivalent to an inpatient treatment facility, providing around-the-clock observation, monitoring, and treatment. Id. at 10.47.02.09. Even the lowest level facilities, however, serve individuals who are “not ready to return to family or independent living.” Id. 10.47.02.06.

C. Locating an RSATP Under the Code

Plaintiffs contend that RSATPs are deemed to be “homes for non-bedridden alcoholics” under the Zoning Code.³ As discussed below, the record indicates the City...