Get Back Up, Inc. v. City of Detroit et al

Filing 16

ORDER DENYING 4 MOTION for Preliminary Injunction and Permanent Injunction filed by Get Back Up, Inc. and Setting a ( TELEPHONIC Status Conference for 6/19/2017 03:30 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GET BACK UP, INC.,
Plaintiff,
v.

Case No. 17-10068

CITY OF DETROIT & CITY OF DETROIT
BOARD OF ZONING APPEALS,
Defendants.
/
ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND
PERMANENT INJUNCTION AND SETTING STATUS CONFERENCE
Pending before the court is Plaintiff’s Motion for Preliminary Injunction and
Permanent Injunction. (Dkt. #4.) After the motion was briefed by both sides, the court
held a hearing on May 10, 2017. For the following reasons, the court will deny Plaintiff’s
motion.
I. BACKGROUND
Plaintiff previously operated what it describes as “a residential substance abuse
treatment facility in the City of Detroit, . . . serving approximately 40 residents.” (Dkt. #1,
Pg. ID 1.) It has struggled to maintain zoning approval from the community where it is
located. This court has already had occasion to address allegations that the city had
previously wrongly denied approval to operate in violation of the Americans with
Disabilities Act (“ADA”), the Fair Housing Act, the Rehabilitation Act, and that the
operative zoning provisions were unconstitutionally vague. Get Back Up, Inc. v. City of
Detroit, No. 11-13909, 2013 WL 3305672, at *1 (E.D. Mich. July 1, 2013). After ruling

against Plaintiff, this court then denied a motion for reconsideration, Get Back Up, Inc.
v. City of Detroit, No. 11-13909, 2013 WL 6729483, at *1 (E.D. Mich. Dec. 20, 2013),
and the Sixth Circuit affirmed the decision, Get Back Up, Inc. v. City of Detroit, 606 F.
App’x 792, 793 (6th Cir. 2015).
Plaintiff operated until August of 2015, then it submitted a request for a
Conditional Use Permit, which the city granted. However, the Board of Zoning Appeals
(“BZA”) took up the issue following a formal appeal by a neighbor of the facility. After a
hearing, the BZA reversed the grant of the permit citing a concern over property values,
once more shuttering Plaintiff’s facility.
Plaintiff now alleges that the BZA’s decision was based upon prejudices related
to stereotypes of people suffering from addiction, and that the ADA prohibits such
discrimination against the disabled. It points both to a lack of any supporting evidence
favoring the purported basis of the BZA’s decision as well as statements made during
the hearing that Plaintiff alleges are impermissibly discriminatory and influenced the
BZA’s decision. It requests that the court enter an order vacating the decision of the
BZA and ordering the City of Detroit to issue a Conditional Use Permit consistent with
that previously approved.
In response, Defendants argue that the requested relief should be denied, firstly,
because it does not merely seek to maintain the status quo but instead asks the court to
order the resumption of operations that have been suspended for nearly two years.
They also contend that the BZA’s decision, far from relying on impermissible
stereotypes, was supported by evidence from testimony at the hearing describing
various deleterious effects of the facility’s operation on the surrounding residential area.
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Defendants further contend that Plaintiff will not suffer any irreparable harm by the
denial of the sought relief because numerous similar facilities populate the
neighborhood and, in any case, the potential harm to side-stepping BZA’s determination
in this instance will outweigh it.
II. STANDARD
In Silverman v. Summers, the Sixth Circuit described the rubric by which district
courts should assess requests for preliminary injunction:
The district court must consider and balance four factors in ruling on an
application for a preliminary injunction: 1) whether the plaintiff has a strong
likelihood of success on the merits; 2) whether the plaintiff would suffer
irreparable injury in the absence of the injunction; 3) whether the injunction
would cause substantial harm to others; and 4) whether the injunction
would serve the public interest.
28 F. App’x 370, 372-73 (6th Cir. 2001) (citing Sandison v. Michigan High School
Athletic Ass’n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995)).
III. DISCUSSION
A. Likelihood of Success on the Merits
In an earlier suit involving the same parties and issues but a different BZA
hearing, this court framed its analysis as follows:
Because the zoning ordinance is neutral and direct evidence of
discrimination is absent, the shifting burdens of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), govern
[Plaintiff]’s challenge to the BZA’s decision. The analysis begins[] . . . with
a search for evidence that the BZA denied [Plaintiff] a conditional-use
permit at least in part from hostility toward the disabled. [Plaintiff]’s
evidence of hostility is also, by sustained repetition, the main theme of
[Plaintiff]’s papers—that the BZA based its decision on “myths and
stereotypes” about recovering substance abusers. The best way to test
this claim is to consider the evidence presented at the [relevant], BZA
hearing and the zoning ordinance’s command that a special use neither
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diminish public safety nor “injur[e] . . . the use and enjoyment of [nearby]
property.”
Get Back Up, Inc., 2013 WL 3305672, at *7 (citations omitted). As both parties agree
that the McDonnell Douglas framework applies, the court will employ the same analysis
here.1 At the hearing, the parties also agreed that Plaintiff must show that a desire to
discriminate against the disabled was a motivating factor in the BZA’s decision.
Plaintiff’s counsel explained at the hearing that he would like the court to use a “filter” to
remove impermissible statements and then determine whether the evidence that
remained could have supported the BZA’s decision.
Plaintiff points in particular to the testimony of six neighbors and statements by
Board Member Weed for evidence that the BZA was motivated in part by impermissible
animus toward addicts. A deeper review of the transcript shows most of Plaintiff’s
contentions to be little more than solicitous exaggeration. The court will address each
cited example in turn bearing in mind the Sixth Circuit’s holding that:
where the discrimination results from unfounded fears and stereotypes
that merely because Plaintiff’s potential clients are recovering drug
addicts, they would necessarily attract increased drug activity and violent
crime to the city, such discrimination violates the ADA and Rehabilitation
Act.
MX Grp., Inc. v. City of Covington, 293 F.3d 326, 342 (6th Cir. 2002).

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The court is unmoved by Defendants’ argument that Plaintiff’s request does not
seek to maintain the current status quo. This argument proves too much. Taken
seriously, it would essentially preclude all district court review of any permit denial by
the BZA where the Plaintiff sought what could only be viewed as the natural remedy, an
order compelling the issuance of a permit, or at the very least enjoining against the
enforcement of the challenged zoning provision.
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First, Plaintiff identifies the testimony of a neighbor who mentioned residents of
Plaintiff’s facility “coming out during the night” and argues that this evinces a prejudice.
Exactly how this is tied to drug addiction is not explained. A more fulsome reading of the
testimony shows that the neighbor had sought to show a video recording but was limited
to her own description of its contents, which amounted to an individual entering her
driveway and laying on the floor of the backseat of her inadvertently unlocked car during
the night. (Dkt. #4-6, Pg. ID 254.) She further testified that, according to another
neighbor, the same individual returned the next day, but walked off in the direction of
the facility when he realized he was spotted. (Id.) Far from evincing a discriminatory
motive based solely upon unfounded stereotypes, this testimony describes in detail a
factual basis for serious concern about the impact that Plaintiff’s facility would have on
the safety of residents of the immediately surrounding community seemingly completely
divorced of considerations of their disability.
Next, Plaintiff calls the court’s attention to the testimony of a neighbor who stated
that he did not want such a facility “in [his] front yard.” Here again, the sentences
directly following the complained-of statement explains the non-discriminatory meaning:
I have watched people throw projections–projectiles, things–large things
up to windows to guys and they throw things back down. But whatever
they were throwing up, they could not take in the front door. . . . I’m three
houses from that facility. I am one of the best witnesses that can stand up
here today and tell you these things. . . . I’m concerned about the safety of
my children and my neighbors. My neighbors across the street, the lady
where the fence is on her yard, and her children have to run around that
fence, because they can’t play in front of their own yard.

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(Dkt. #4-6, Pg. ID 254.) People throwing objects that are presumably contraband in and
out of second story windows is uncontroversially a detriment to the community. This
testimony is also not based on stereotype.
Plaintiff then turns to the testimony of a neighbor stating a concern about
“hundreds and hundreds and hundreds and hundreds of drug addicts and possibly
felons” relocating into the neighborhood. (Dkt. #4-6, Pg. ID 255.) Little further
elaboration is given on this point besides a general anxiety regarding safety and
property values. These comments display an impermissible bias, which, if served as a
motivating factor in the BZA’s decision, would likely support a claim of discrimination.
Another neighbor testified that when he was searching for a place to purchase a
home around Detroit, he would have reconsidered purchasing a home where Plaintiff’s
facility was operating at full capacity with 160 participants. (Dkt. # 4-6, Pg. ID 257.)
Plaintiff insists that this statement, absent empirical data “leav[es] the unmistakable
conclusion that he was voicing a prejudice[,]” but this is not so. The neighbor’s
testimony is anecdotal evidence regarding the likely effect on property values. Even
read as uncharitably as possible, this testimony would, at best, only very weakly
suggest an impermissible stereotype. This could hardly be considered a motivating
factor in the BZA’s decision.
What Plaintiff calls the “most troubling reaction” came from another neighbor,
whose testimony Plaintiff characterizes as expressing a “concern[] about having to ‘look
at’ Get Back Up’s residents.” (Dkt. #13, Pg. ID 822.) Once more, Plaintiff is
misinterpreting the testimony at the hearing:

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. . . I’ve seen them actually walking around the neighborhood. So for them
to say that you’re not operating and to see those kinds–to see the
individuals coming out of those–coming out of that location, it caused
concern for me and my family and the friends that I actually have coming
around, because we’re actually looking in the area to rebuild over there in
that space so we having (sic) a concern with looking at those–with the
individuals coming in and out of those locations.
(Dkt. # 4-6, Pg. ID 257.) That neighbor is describing an apparent inconsistency between
his perception that individuals continue to flow in and out of the facility and claims that
the facility is not operating but will instead soon be used for another purpose. Whatever
the veracity of that perception, the statements do not provide strong evidence one way
or another as to the presence of a discriminatory motive.
Finally Plaintiff suggests that a neighbor “expressed [a] vague, prejudiced
concern about the ‘quality of life’ in the area.” (Dkt. #13, Pg. ID 823.) Once more,
Plaintiff’s conclusory accusation that some statement is “prejudiced” is essentially
question-begging. The neighbor centered his focus on the desire to maintain the
“historic” quality of the neighborhood:
So I stand with my elders. I stand with my community and I’m glad to be
part of it. I’m in a third generation home. I’ve been affiliated with Russell
Woods for 60 years. This is not part of the plan. . . .
Please consider what this would do to the quality of life of the historic
Russell Woods and we’re talking not historic because we’ve got pretty
houses. I’m talking historic because we have Brazil Dennard. I’m talking
historic because we had Dudley Randall who was the father of the black
arts movement. We had all of the Supremes, not one, all of them and the
list goes on. Nicholas Hood sat up here as the only black man on the City
Council during the riots. He lived in Russell Woods.
So we’re not only talking about the quality of life. We’re talking about the
legacy of our people and our growth in the City of Detroit and I think you
should consider that very heavily.

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(Dkt. # 4-6, Pg. ID 257-258.) The testimony suggests that the neighbor thought that the
facility, originally zoned as a school, would be detrimental to the cultural impact of the
community seemingly due to the opportunity cost of alternative site uses. This is also, at
best, only weak evidence of a discriminatory intent.
The statements by Board Member Weed that Plaintiff relies upon, taken on their
own, might suggest the presence of prejudice:
. . . I think that there’s a difference in the perspective of people who live in
the community with respect to 160 individuals who’ve got a history, have a
problem and have to deal with that as to whether or not that’s right for
them in the R-1 District.
(Dkt. # 4-6, Pg. ID 248.) On the one hand, his reference to the fact that the individuals
have a “history” might be an allusion to their disability and attendant stereotypes, such
as anti-social behavior. On the other hand, immediately subsequent statements suggest
that his concern was also motivated by legitimate questions about the capability of the
area to absorb concentrated housing that is not well-maintained.
Well I drove by there on Saturday so I could at least know what I’m–be
familiar with it and I would have to agree with the lady that there were
debris. There was a mess.
(Dkt. # 4-6, Pg. ID 248.) Plaintiff has not offered any indication that this or any other
testimony that the court has identified as arguably impermissible constituted a
motivating factor in the BZA’s decision, especially when compared against the plainly
legitimate testimony.
Defendant, meanwhile, offers testimony from the BZA hearing by a real estate
broker as a partial justification of the BZA’s decision. She estimated that “[e]ach
gentleman will probably have 60 to 70 square feet of personal space, which is similar to
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the amount of personal space in a Federal institution.” (Dkt. #4-6, Pg. ID 229.) She also
described the contents of a study indicating that treatment facilities were associated
with an “eight percent reduction in nearby home prices and that this discount is
magnified for treatment centers that specifically treat opiate addictions as much as
seventeen percent.” (Id. at 230). This appears to be an accurate description of an article
entered into the administrative record citing to a study using multiple listing service data.
(Dkt. #12-2, Pg. ID 645.)
The cases upon which Plaintiff relies are inapposite, and, with the exception of
MX Group, Inc., are exclusively from outside of the Sixth Circuit. Also, all of the circuit
court cases cited by Plaintiff merely upheld the district court’s determination. In MX
Group, Inc., the board had evidently relied entirely on testimony regarding the hazards
of methadone clinics generally as the plaintiff’s clinic had not opened yet. 293 F.3d at
329. Thereafter, among other things, the city solicitor sent a letter to the Zoning
Administrator stating that “a methadone clinic, such as Plaintiff’s, was not a permitted
use in any zone in the city.” Id. at 330. Here neighbors supplied testimony, as described
above, based on personal knowledge about hazards visited upon the community by the
operation of Get Back Up, Inc., even at only a fraction of its total capacity. Additionally,
nowhere is the suggestion made that Defendants had essentially foreclosed the
possibility of similar facilities from opening within the community.
In Pacific Shores Properties, LLC v. City of Newport Beach, the city held a series
of public meetings after a number of facilities opened in the community. 730 F.3d 1142,
1149 (9th Cir. 2013). At those meetings, residents “repeatedly described the persons in
recovery as ‘not true handicapped,’ ‘criminals,’ ‘gang members,’ and ‘druggies,’ among
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other derogatory terms[,]” culminating in permanent zoning ordinance changes that
essentially rendered it impossible to own or operate such facilities in the community. Id.
Here the record is far weaker on establishing animus, as several of the neighbors who
testified explained that they viewed drug rehabilitation services to be a noble and
admirable undertaking.
In Innovative Health Systems, Inc., v. City of White Plains, the court declined to
disturb the district court’s finding of a likelihood of success where the board gave no
explanation for its decision following a hearing “replete with discriminatory comments
about drug-and alcohol-dependent persons based on stereotypes and general,
unsupported fears.” 117 F.3d 37, 49 (2d Cir. 1997). That is simply not the situation here.
As discussed supra, the record is hardly “replete with discriminatory comments.” The
BZA also issued a nine-page Decision and Order summarizing the testimony as well as
explaining its findings and reasons for the decision. (Dkt. #4-9.)
That distinction also disposes of Plaintiff’s reliance on Step By Step, Inc. v. City
of Ogdensburg, which found that Plaintiff had established a likelihood of success on its
claim for discrimination because:
By completely failing to describe the reasoning and logic behind the denial
of [plaintiff]’s application, the City Council has effectively created a black
box where any justifications are a mystery. While at least a significant
portion of the information placed into that box consisted of community
opposition based upon impermissible discrimination, the City has asked
for a ruling that the denial was free of any improper prejudices.
The sequence of events, strong community opposition partially based
upon improper generalizations concerning [plaintiff]’s mentally ill clients,
and the City’s failure to articulate any rationale for its denial sufficiently
demonstrate that improper animus against the disabled individuals was a
significant factor in the decision to deny plaintiff’s application. As such,
plaintiff has established a prima facie case of intentional discrimination.
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176 F. Supp. 3d 112, 132-33 (N.D. N.Y. 2016). Here, among other things, the BZA at
least referenced concerns, supported by testimony, over property values and
aesthetics.
Tsombanidis v. West Haven Fire Dept., involved a challenge to a fire code which
resulted in a disparate impact on recovering addicts, was motivated by intentional
discrimination, and failed to reasonably accommodate plaintiffs’ handicap. 352 F.3d
565, 580 (2d Cir. 2003). The only applicable parallel to this case is the accusation of
discrimination, which, in that case involved a history of hostility between residents and
plaintiff. Id. Arguably that appears in this case as well, but this is hardly remarkable in
cases involving zoning disputes. Importantly, Tsombanidis also involved uneven
enforcement of the fire ordinance not normally applied against boarding houses along
with statements by a city official expressing “personal dissatisfaction . . . and order[ing]
[plaintiff] to evict the residents without any authority in the City Code.” Id. No suggestion
of uneven enforcement or lawless personal vindictiveness by individual city officials
exists in this case.
The above cases offer little reason to depart from the determination that this
court previously made regarding Defendants’ zoning enforcement against Get Back Up,
Inc., under very similar facts and upheld by the Sixth Circuit. Based on this record,
Plaintiff has not shown a likelihood of success in establishing its prima facie case that a
discriminatory purpose was a motivating factor in the BZA’s decision.

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B. Other Factors

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The remaining factors do not weigh strongly in favor of an injunction either.
Plaintiff will not suffer irreparable injury absent the requested relief, as it is free to use
the land for some other permitted purpose, sell the land and seek to operate elsewhere,
or, having perhaps made some adjustments to its operations to alleviate the concerns
identified within the BZA’s Decision and Order, once more make its case to the zoning
authorities. Meanwhile, an injunction forcing the city to bless the operation of the facility
may indeed cause substantial harm to others if property values were to fall in the
community as a result. The public interest, if anything, weighs weakly against
invalidating the findings of the BZA merely because some public comments by residents
at the hearing are objectionable and discriminatory without reason to believe that they
actually influenced the BZA’s decision. The likely result would be to disincentivize
potentially valuable participation by residents in such hearings.
Finally, the court will also deny the request for a permanent injunction for the
same reasons that it will deny the request for a preliminary injunction. As the court
cannot justify imposing a preliminary injunction at this point, it certainly will not impose
the additional burden of a permanent one.
C. Case Status
With this court having determined that neither preliminary nor permanent
injunction is appropriate, it is unclear whether anything meaningful remains to be done
in the case, especially as further discovery does not appear to be necessary. Despite
Plaintiff’s additional request for damages and any other appropriate relief within the
complaint, the court has serious concerns about whether any issue remains for
adjudication. “A federal court has no authority to render a decision upon moot questions
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or to declare rules of law that cannot affect the matter at issue.” United States v. City of
Detroit, 401 F.3d 448, 450 (6th Cir. 2005) (quoting Cleveland Branch, N.A.A.C.P. v. City
of Parma, 263 F.3d 513, 530 (6th Cir. 2001)).
The court directs counsel for the parties to confer with one another to determine
the suitability of a final order closing the case. By June 16, 2017, Plaintiff will file a joint
memorandum no longer than seven pages long outlining the positions of the parties on
this question and identifying, to the extent that they exist, any remaining issues for
adjudication and any further necessary discovery. The court will hold a telephonic status
conference to discuss the submission on Monday, June 19, 2017 at 3:30 p.m.
IV. CONCLUSION
IT IS ORDERED that Plaintiff’s Motion for Preliminary Injunction and Permanent
Injunction (Dkt. #4) is DENIED.
IT IS FURTHER ORDERED that the parties are directed to confer to discuss the
suitability of a final order. Plaintiff will file a memorandum outlining the pertinent
considerations by June 16, 2017.
IT IS FURTHER ORDERED that the court will hold a telephonic status
conference on on Monday, June 19, 2017 at 3:30 p.m.. The court will initiate the
call.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 12, 2017

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 12, 2017, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\17-10068.GETBACKUP.PreliminaryInjunction2.bss.wpd

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