Lincoln Rock, LLC v. City of Tampa

Filing 65

ORDER: Plaintiff's Motion for Summary Judgment on the Denial of Its Reasonable Accommodation Requests 47 is denied. Signed by Judge James S. Moody, Jr on 10/27/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LINCOLN ROCK, LLC, a Florida
Limited Liability Company,
Plaintiff,
v.

Case No: 8:15-cv-1374-T-30JSS

CITY OF TAMPA, a Florida
municipal corporation,
Defendant.

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Summary
Judgment on the Denial of Its Reasonable Accommodation Requests (Dkt. 47) and
Defendant’s Response in Opposition (Dkt. 56). The Court, upon review of the motion,
response, record evidence, and being otherwise advised in the premises, concludes that
the motion must be denied because the record reflects material facts contrary to Plaintiff’s
position.
BACKGROUND
This is an action by Plaintiff Lincoln Rock, LLC against Defendant City of Tampa
for alleged violations of the Fair Housing Act (“FHA”) and the Americans with
Disabilities Act (“ADA”) arising from the City’s denial of Lincoln Rock’s request for a
SU-II permit to allow Lincoln Rock to operate a Residential Treatment Facility (“RTF”)
in a west Tampa neighborhood for persons recovering from alcohol and drug addiction.

Lincoln Rock is a Florida limited liability company that was formed in 2012, and
has one member, Bernard Rock.

Lincoln Rock was formed for the purpose of

establishing a RTF within the City of Tampa to treat those addicted to alcohol or
controlled substances. In 2012, Lincoln Rock purchased property that was located in a
City of Tampa mixed-use neighborhood with surrounding residential, commercial, and
social/club uses (the “Property”). The Property is comprised of two parcels, one on
Lincoln Avenue and the other on Lemon Street.
Lincoln Rock purchased the Property with the intention of opening and operating a
state licensed RTF for recovering addicts. When purchased, the Property was improved
with a residential structure that could accommodate a RTF because it had multiple, selfcontained units that could be made available to individuals seeking housing during the
course of their treatment. The Property is surrounded by a commercial strip center (to the
North), the Sons of Italy Social Club (to the West), and residential homes (to the South
and East).
The Property is zoned RO-1. The Tampa City Code provides that certain land uses
in the City are not allowed in the RO-1 zoning district. These uses include a clinic, a
fraternity/sorority, a restaurant, or a hospital. Other uses not allowed as a matter of right
may be allowed upon approval of a SU-II permit by the Tampa City Council. These uses
include a RTF, a life care treatment facility, a place of religious assembly, and a public
service facility.

2

The Tampa City Code vests the sole authority to approve or deny a SU-II permit
with the City Council: “The city council shall be solely responsible for decisions on all
applications for S-2 special use permits.” The process of obtaining a SU-II permit
includes meeting with professional staff at the City; submitting an application to the City;
undergoing review by the City’s Development Review Committee (“DRC”); presenting
evidence at a public hearing before the City Council; and obtaining approval for the SU-II
permit from the City Council.
At the public hearing for a SU-II permit before the City Council, the burden is on
the landowner to bring forth sufficient evidence to establish that the proposed use meets
the requirements for the use under the Tampa City Code: “It shall be the responsibility of
the applicant to present evidence in the form of testimony, exhibits, documents, models,
plans and the like to support the application for approval of a special use permit.”
The roles of the DRC and the City Council when reviewing an application for a
SU-II permit are different. The DRC is responsible for determining if the landowner’s
proposal meets certain defined objective criteria as codified in the Tampa City Code. If
the DRC determines that a landowner’s proposal meets the objective criterial, the DRC
issues a determination that the proposed use is consistent with the criteria.
Following the DRC’s review, the City Council holds a public hearing on the
application for a SU-II permit. The City Council is required to apply the criterial in Sec.
27-129, Tampa City Code, to determine whether the proposed use meets specific criteria

3

including that the use ensures the public health, safety and general welfare; the use is
compatible with the Comprehensive Plan; and the use is compatible with the surrounding
neighborhood.
Lincoln Rock needed to obtain a SU-II permit to operate the RTF on the Property.
On February 25, 2013, Lincoln Rock applied for the special use permit with the City.
The application sought approval to operate a twenty-one bed RTF. The residents who
would have lived at the RTF could not be active in their addiction; rather, they must have
been seeking treatment to cure their disease. Such individuals would live together as a
group while simultaneously receiving treatment (such as group and individual
counseling). This housing arrangement would provide the residents with a therapeutic
benefit.
Upon receipt of Lincoln Rock’s application, the City’s planning and zoning staff
reviewed it for completeness. The DRC determined that the proposal met the objective
criteria of Sec. 27-132, Tampa City Code. The application was thereafter brought before
the City Council for a public hearing. On June 13, 2013, the City Council heard the
application. At the public hearing, the members of the City Council expressed a number
of concerns regarding the public health, safety and welfare; with compatibility with the
Comprehensive Plan; and with compatibility with the surrounding neighborhood. In
addition, a number of neighbors expressed concerns. In a vote of six to one, the City
Council denied Lincoln Rock’s application for the SU-II permit.

4

Following the denial of the application for the SU-II permit, Lincoln Rock
requested that the City reconsider its decision by treating the RTF as a “Congregate
Living Facility/Large Group Care Facility.”

Under the City’s code, such a use is

permitted within the RO-1 zoning district applicable to the Property. On January 13,
2014, the City informed Lincoln Rock that the June 13, 2013 denial of the application
was the City’s official position on Lincoln Rock’s operation of the proposed RTF.
Lincoln Rock sold the Property netting $955,689. According to Lincoln Rock,
after taking into account all of its expenses of approximately $1.1 million, it lost money,
and did not realize the value of the Property as entitled for residential drug and alcohol
treatment.
Lincoln Rock moves for summary judgment on its claim that the City’s denial of
the SU-II permit was motivated by an intent to discriminate against persons recovering
from alcohol and drug addiction. In its motion, Lincoln Rock contends that (a) the City’s
professional staff and the Planning Commission found Lincoln Rock’s application
“consistent with the City’s code” and “recommended approval”; (b) a City employee
coordinated neighborhood opposition to the project; (c) the neighborhood opposition to
the project expressed at the hearing consisted of “crass statements reflecting
discriminatory attitudes”; and (d) the City Council “echoed” the discriminatory
sentiments of the neighborhood opposition and acted for the sole purpose of
“implement[ing] the discriminatory desires of the neighborhood opposition.”

5

Lincoln Rock additionally argues that it is entitled to summary judgment on its
claim that the City denied a second accommodation request to use the Lincoln Rock
facility as a congregate living facility.1
As explained further below, the Court concludes that the record is rife with
material disputed facts. Accordingly, Plaintiff’s motion will be denied.
STANDARD OF REVIEW
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, show there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the
litigants will not defeat an otherwise properly supported summary judgment motion; “the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
1

The City argues, in part, that this second accommodation request is “new” and Lincoln
Rock never pled this claim in the complaint. The Court will address this issue, which is more fully
briefed in the City’s motion in limine (Dkt. 61), at that time, so that it has the benefit of a response
from Lincoln Rock before ruling. Accordingly, the Court’s ruling herein, i.e., that there are disputed
material facts regarding Lincoln Rock’s claims, is without prejudice to a potential later ruling that
this purported “new” accommodation was never pled and never alleged throughout the course of this
litigation.
The Court also notes that Lincoln Rock’s complaint (Dkt. 1) alleges discrimination claims
under the FHA and the ADA. The City’s motion in limine (Dkt. 61) argues that the complaint does
not contain any allegation that Lincoln Rock’s application constituted an accommodation request.
Thus, the Court will also determine, once the motions in limine are ripe for disposition, whether
Lincoln Rock can proceed at trial on the theory that its application for a SU-II permit constituted a
request for a reasonable accommodation.

6

Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law
applicable to the claimed causes of action will identify which facts are material. See id.
Throughout this analysis, the court must examine the evidence in the light most favorable
to the non-movant and draw all justifiable inferences in its favor. See id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing
that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. See Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment
stage. See Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990).
“[I]f factual issues are present, the Court must deny the motion and proceed to trial.”
Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
A dispute about a material fact is genuine and summary judgment is inappropriate if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.
See Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990).
DISCUSSION
The American with Disabilities Act, as amended by the ADA Amendments Act of
2008, 42 U.S.C. § 12101 et seq., prohibits discrimination based on disability in programs,

7

services, and activities provided or made available by public entities. Likewise, the Fair
Housing Act of 1968, as amended by the Fair Housing Amendment Act of 1988, 42
U.S.C. § 3061 et seq., prohibits discrimination in the sale, rental, and financing of
dwellings, and in other housing-related transactions, based on disability. A plaintiff can
bring a discrimination claim under either statute for disparate treatment (discriminatory
intent) or disparate impact (discriminatory effect). See Schwarz v. City of Treasure
Island, 544 F.3d 1201, 1212 (11th Cir. 2008). Even in the absence of discriminatory
intent or effect, however, a defendant will be liable under the ADA and FHA for “failure
to make a reasonable accommodation in rules, policies, practices, or services, when such
accommodation is necessary to afford a disabled person access to basic goods and
services,” see 42 U.S.C. § 12182(b)(2)(A)(ii), or when such accommodation may be
necessary “to afford a disabled person equal opportunity to use and enjoy a dwelling,” see
42 U.S.C. § 3604(f)(3)(B).
Here, the record is heavily disputed on the issue of whether the City’s denial of
Lincoln Rock’s SU-II permit application was motivated by discriminatory intent.
Adopting the facts in a light most favorable to the City, the non-movant, the record
reflects facts that the neighborhood opposition to Lincoln Rock’s application reflected
legitimate land use concerns. Specifically, some neighbors were concerned about noise,
traffic, and security. While some neighbors did make comments that could be interpreted
as discriminatory, a number of neighbors made legitimate non-discriminatory comments

8

in opposition to the application. Moreover, the record is disputed on the issue of whether
any discriminatory animus on the part of the neighbors significantly motivated the City
Council’s vote to reject Lincoln Rock’s application.
For example, Councilmember Michael Suarez expressed concern that Lincoln
Rock had no standard operating procedure or plan to handle potentially uncontrollable
and violent patients. Councilmember Charles Miranda noted numerous problems with
ingress and egress, parking issues, numerous deliveries throughout the day, and a resident
population of 21 patients that would make the facility incompatible with the surrounding
neighborhood. Councilmember Lisa Montelione also expressed concerns about the lack
of a security plan.

The record reflects that, at the public hearing, Lincoln Rock’s

representatives were unable to adequately address certain concerns regarding security at
the facility.
At the public hearing, Councilmember Yolie Capin asked for information
regarding staffing; patient-to-staff ratios; crisis intervention protocol; and security, and
received vague answers from Lincoln Rock’s representatives in response.
In sum, the record reflects that the City Council expressed legitimate nondiscriminatory concerns regarding the health, safety, general welfare, and the
compatibility of the proposed facility with the surrounding neighborhood.

9

The Court also concludes that the record is disputed with respect to any request for
a reasonable accommodation.2 It does not appear that Lincoln Rock requested a change
or variance of a City Code, rule, or zoning ordinance as a “reasonable accommodation” to
allow Lincoln Rock to operate. Moreover, to the extent it did, the record is disputed on
the issue of whether any accommodation request was “reasonable,” in light of the
numerous factual issues regarding whether the proposed RTF was complimentary to the
surrounding land use. See Schwarz, 544 F.3d at 1221 (noting that “[t]he basic purpose of
zoning is to bring complementary land uses together, while separating incompatible ones.
Thus, ordering a municipality to waive a zoning rule ordinarily would cause a
fundamental alteration of its zoning scheme if the proposed use was incompatible with
surrounding land uses.”) (internal quotations and citations omitted). The City presents
evidence that Lincoln Rock failed to adequately address concerns about health, safety,
and general welfare. Lincoln Rock’s argument that its RTF would have been compatible
with the neighborhood and an “appropriate use for the neighborhood” is disputed.
Accordingly, Lincoln Rock’s claims must proceed to trial.

2

As stated above in footnote 1, this assumes that Lincoln Rock has sufficiently pled and
maintained such a claim in this litigation.

10

It is therefore ORDERED and ADJUDGED that Plaintiff’s Motion for Summary
Judgment on the Denial of Its Reasonable Accommodation Requests (Dkt. 47) is denied.
DONE and ORDERED in Tampa, Florida on October 27, 2016.

Copies furnished to:
Counsel/Parties of Record

11