it please the court providence behavioral health and texas providence investments the plaintiffs in this matter are building a psychiatric facility for children with disabilities in particular these children have autism bipolar disorder and similar disabilities in order to construct this facility the plainest poorest need utility services water septic system and the like because the land on which the not already served by a public utility district they have sought an exception from defendants the grant rude public utility district in the board members of that district and i ask a question which  is this dispute has been going on for nearly a decade and at some point i realize providence didn't receive its alternative certification from harris county or whatever and has undertaken to build on environmental quality very recently to build a package plant the difficulty with package plant is twofold first it six family expense build it of the second thing is that in building the package plant the site would be dramatically different from the from what it would look like it would be that the players would be unable to provide the same level of service to their clients using the package playable on the grounds as they would be if they had hooked up through the utility district they have to have it is this massive plant providing utility and septic services right and built so they'd have to alter the very construction of the grounds and let me ask you another question what the district court didn't rule on the eleventh a member an issue that's correct and why is that i believe that the district court didn't little on the eleventh amendment issue were all damages cases in hill versus king there had been a claim for prospective injunctive relief but that had been dismissed as moot by the time that this court was reaching the issue i think that the reason why most of these already damaged his case is there haven't been a lot of cases that deal with the issue of whether the a da can abrogate sovereign immunity specifically with respect to perspective and judge differently is because in cases like this when the on the abrogation under the a b a that doesn't cover the texas fair housing act or the night or the fourteenth amendment so if you win on the a da it's a moot point otherwise you've got your ex parte on the other so it's it's unclear whether it's a lot of purchases point you still going after injunctive relief and not monetary damage that's exactly right monetary damages have never been an issue in this case and never s specifically providing utility services either one of which the texas water code permits the defendants to do as i noted in my comments with respect to your honor's question the  district court below believed that it had resolved all issues necessary to this case by determining that the defendants had not intentionally discriminated against plaintiffs in this matter and against the disabled population the plaintiffs would serve but the only reason the only reason in the district court's opinion for making that determination and this is the reason given on all counts for all claims is that the this report believe asking only say at x the grant p u d doesn't provide service and i think you said that at the outset so you're you're asking them for a favor is not correct are asking you want to extend their services into an area they don't normally service when you say an x isn't that what we're asking for is better certainly the branding is not something that you would have a right to otherwise you're asking for permission and you're saying that permission is declined based on some they're willing to entertain that project but maybe a better question is isn't the project that you that was declined substantially different than the one that you submitted in two thousand and nine and in that in fact  fact that they the word agreed to in its project in two thousand and two two thousand and nine two thousand and ten is evidence that they do have a discriminatory motives now not that they didn't not they don't have a screen there tory but in the reason is that the the board members themselves perhaps do not have some sort of antipathy for the disabled and the plaintiffs have never argued in this case that the board members individually harbor some s distinct animus against the disabled not at all in fact the fact that they agreed to an x in two thousand and nine two thousand and ten a preliminary is evidence of that but that was my point right that they were willing to entertain  fact to grant approval at least preliminary approval for the project as designed in two thousand and nine when all of the factors that you're arguing they argued now discriminating against those factors were present the size and the the nature of the facility maybe that the scale was different when providence came back later and the v defendants have never argued they never presented when when the board members came  at trial they never offer is a reason for why they had changed their mind the fact that there were any kind of differences in the size of the scale the nature of the project it was financial reasons as a correct well the financial reasons would have been the same reasons as would have been the case in two thousand and one two thousand and ten so so jack scott for example the secretary of the board said well there might be a tax abatement possibility but given they never asked whether there was a tax payment possibl fact plants are not are not a nonprofit organization there is no tax abatement spector that's exactly what one or two questions that ordered me could have uncovered the real difference between two thousand and nine two thousand and ten euro or is that in two thousand fourteen the summer of two thousand and fourteen there had been a lot of community pressure brought to bear on the board and there had been discussion in the community about the fact that a disabled population there would bring down the economic lection and the the attorney for the board admitted to my client in about september of two thousand and fourteen or october of two thousand and fourteen that the board is very sensitive to these issues very sensitive to community pressure and that it probably wouldn't be wise to reap broach these issues until november of two thousand and fourteen after the bond election there were no questions about well you know there's a few more bed time around there were no questions about well you know is it somehow different in nature because it wasn't none of the kinds of issues that were different between the two thousand and fourteen version and the two thousand and nine two thousand and ten version had any difference made any difference a as to the look of the project as to the requirements of the project with respect to water utility axis anything like that the so the district court that didn't make anything out of that either the district court simply said well you know you haven't presented evidence that there was ever any similarly situated project that was accepted but of course as your honor has already pointed out there was evidence namely us my clients already presented eight in exactly similarly situated project in two thousand two thousand and ten and the board had accepted now because of this community pressure in two thousand and fourteen the board has all of a sudden very same board members not one single change in board that board is now rejecting the project and just informationally what would be other options in terms of obtaining search treatment in the type of public utility service that you are seeking from the from grant what were the other options at the top the other options it was like a self contained you could have a well and septic system but in fact robert christgau wittes the the president the board at one point or other indicated well that's the reason that i said there wasn't one my understanding is there wasn't one that's close the grant road public utility district literally has lines right across the street it's for the bread republic you delivered to hook it up they'd literally just have to run the lines right there it's that's the utility district that is if they have immediate access to i don't believe there was another utility district that is in easy range that could have provided the same service the only other option that i'm aware of is the package play it an issue that judge jones was asking about and that is not only is it dramatically expensive but it also changes the complexion of what they're trying to serve so so yes if it were a small matter then my clients would definitely have begun construction because they're losing revenue they're losing their opportunity to serve their clientele if we were a small matter just put in a package play it there's no reason to go through this this sort of extensive litigation but it's not a small matter they answer to change their business proposal and say they were going to with the seventy acres or so how many acres is this i think that's about right i don't have the exact acreage now going to be that the moment but it's but they could build a few houses facility for kids with autism or bipolar disorder here we're going to build a single family residential unit on here i absolutely believe that they would get ethics ation precisely because this board has never in forty years has never until understanding and i haven't read the record but man is standing there in rebuttal to your client's claim about you know the scrimmage oriental started out a reason for it now that the defendants put on some evidence to say there were these huge or whatever negative financial impact that would have resulted from approval and whilst my further understanding that the board didn't give any reasons they just financial implications that they said would be so pervasively negative that that sort of from their standpoint the real reason for did not the only understanding that i have  nondiscriminatory financial impact that the defendants have ever claimed was that with the same claim by robert fresh quits and jack scott that there was a possibility of a tax abatement because pla or designers who construct this kind of facility are often nonprofit and often claim tax abatements in that in this case they never asked any questions and that's not the case my clients have always been willing to to pay the taxes they're not nonprofit wallace the attorney for the board is that the property values might be brought down by the existence of a population of disabled individuals but that of course is a discriminatory motive that of course is precisely the by police court the morning judges and i'm a simon hinder shot and i represent the apple leeza in this matter all of the defendants at the trial court grant republic utility district in various  board members who are naming their representative capacity we're here today as a result of appellants consistent request for relief to which they are not entitled judging orders you ask my colleague previously the property that is in question was outside of the boundaries of our district so they approached grant road public utility district asking for a favor asking for something that they were not entitled because there was nothing that compelled grant road public utility district of the board members to grant the annexation so when they were properly  the owners of the appellant's businessmen none of whom are affected by any disability brought suit in the district court alleging discrimination and after a complete trial after the trial court heard all of the evidence and was able to consider all of the evidence the trial judge made specific findings based upon all of that evidence that there was no discrimination they denials had there been in the know i think we mentioned forty years earlier in the how many denials had there been of applications for an exception there had not been many and i believe in the transcript with respect to commercial information with your information presented as to the reason for those two prior denials that is in the record on appeal at fifteen twenty four one of which was mr went away and the other annexation that was denied was the tall pines project and the enix ation did not occur because it what would not have been financially feasible and that testimony was from the board president mr curricle whitson and i know i'm mispronouncing his name but that is specifically in the record and in the findings that's what i mean the thing not financially feasible that was the only testimony is that it was not financially of that but that was something that was trotted out against providence also not financially fees i mean all you have to do is you know dig a hole get the pipe of the right size the pipes of the right size and connect them to the final project so what what makes something like that not financially feasible but when you look at the tax revenue that's going to be generated on it how long does it take before those dollars are returned don't you charge you charge them a hook up fee don't  you you charge an initial look up the but then there's still the tax revenue and that was one of the issues that i don't understand because once you hook them up the quote i mean you're charging them every month for the water right charging for the water  amount of the water you're a public utility so that whatever you charge for the water has got to include i mean i think your public utility maybe not but whatever here district is charging for the water includes a reasonable commercial fee which includes capital improvements and depreciation and so on so i don't see why the taxes does anything except buy coffee and cookies for the board meetings well this could as you just indicated judge jones  there is the depreciation there's the own going maintenance we have to pay to keep our plant operational in within the appropriate code so there is only going expense associated with it well of course there is but you charge the users yes ma'am and the ability to pay that usage and that's something that was specifically testified to in this particular case of how there was concern  entity and whether or not that entity would be successful and i guess my view about that is so what because not every energy is excess fall and once you have the property it's got that you've got the water hookup if they fail they're not going to use the water and pay the bill that is correct but it is harris county and property i mean you don't incur any costs on a day on this land even if it's totally undeveloped or developed and in foreclosure you don't incur costs if you're not applying modern but we didn't need that tax revenue being paid in order to maintain  the facilities that are necessary to provide that water as you just indicated the depreciation if you're not giving them any water then you're not losing money you know because  they're if they were to fail but if we were to annex that facility and in this particular case if it had thirty five homes on it what we would be able to make from that tax revenue would offset the other expenses that have to be paid  by other members of the district with respect to the ongoing might oh i understand them but i don't understand i don't understand your financial feasibility argument in this connection in other words your base of taxpayers would be the same with or without that facility our base of tax now you know and your tax payers know that they have to pay for the ongoing you know the bond issue or whatever it is in case you have to comply with new e p a regulations or whatever the those taxpayers within the boundaries of the district would remain the same yes ma'am but then what you're doing is you're putting an additional burden on those taxpayers within the district if we have expanded through manic sation i don't understand again there is the cost of wa the concern in the public and to the comments the john wallace the attorney for the board made my colleague indicated that the public concern was over the disability of the various potential clients that is not what the record indicates in reviewing the record on appeal in its entirety that there is no testimony no evidence that the public concern was as a result of anyone with any disability that would be in the facility specifically looking at mr hill's testimony but the record on appeal page eight hundred thirty seven  he was the original investor that helped purchase the way and the discussion in the record on appeal about the conversation that took place with mr wallace and dr valdes at the record on  o twenty one forty three it's simply that the board was sensitive to public perception nothing about what the perception was or what was causing it clearly there could be concern in the public about any commercial entity going in and the effect that it would have on property values so that was a misstatement as to what the record contains and so i did want to address that in looking at what the trial court her me back up i mean i know that there was testimony guide just some notes on what testimony but i'm just like here when a court rules you know we gave its rulings in him same given the history where this facility been there before and so on and so forth and sir and way i read the book the briefs from the plaintiff was there the board didn't ask any questions during our presentation you know there were people turning their back not paying attention yada yada yada and all this other stuff  boys practice would have been now you know to give some kind of reasons were real reasons and not bored now or just say no way to leave the person to wonder what the underlying purpose was from i believe i understand your question you are correct at the time of the presentation the board did not say we are denying your request for an exception because a one two three but  in reality the board is not required to say we're denying because of one two story honest and net but i mean i assume they're but you're relying on what the board members testified to in the drought to say well what the trial judge found determinations of why not when you're faced with a trial having to justify why you did not it or is at the time the presentation occurred there were no reasons given it's a had too but i'm just looking at it the plaintiff got the bird in there saying it in tell us when we were in the room they didn't ask a cynic questions you know they just kind of listened and at the end of it gave them down we soon now i trowe they bring out series of reasons pose really about which were the real reasons it was denied and they say discrimination and so we get it looking at it you want to argue deference to the trial which i get but in court in the face of you know the heavy duty claim to discrimination souter when looking at the record in bork proceedings it doesn't you know look like any of that was on pacs so that they could have addressed whatever deficiencies is you're absolutely correct at the time of the september board meeting the board said denot after that board meeting dr valdes called john wallace the attorney for the board and mr wallace said well there was public concern issues and mr wallace a den of fide issues but then the board received a demand letter in a copy of a complaint saying we're about to sue you and at that point in time all discussions it and i thought you had another board member meeting in november there was the subsequent board meeting and that is when they had already received a demand letter saying we're going to with a copy of the complaint and just as an attorney advising a client when somebody tells you they're going to sue you tell your client be quiet so as not to create any additional issues and so that's the history in the sequence of events but judge stuart you're absolutely correct that we have to give deference to the findings of the trial court and we're you are going in your discussion a moment ago i think the critical word you were looking for is were these reasons pretextual and that's exactly what is in the purview of the trial court and is this court has specifically hailed the trial court is the trier of fact a trial court sees the demeanor of the witnesses hears the discussion hears the inflections of the tone of the voice and so the trial court is the one that makes the determination of were these reasons that were given pretext or not and it goes to the credibility this court held it in court or be mony trucking and storage six thirty one if second forty and so that's exactly what the truck what is done in the truck were her both sides of the testimony the trial court had to make a determination of which witness was credible which witnesses were credible the trial court had to choose and make a choice as to what the true findings were and as the supreme court has mandated to us when the trial judge makes a determination to choose between two witnesses as to which witness is telling the truth then that decision cannot be clearly a roominess when there is evidence in the record that would support that decision and here we had substantial evidence in the record because mr scott had testified that he felt like the presentation that was given was sloppy it didn't contain any facts and figures apart impair the testimony the events of the meeting itself based upon compared to what they said at this bench trial i mean for instance my understanding in correct me if i'm wrong dr valdez testified in the twenty fourteen and i should say he testified that at the twenty fourteen annexation request presentation the board members did not ask any questions about any  financial concerns or tax abatement issues but did ask questions about the nature of the patients and what their diagnosis would be of those who would reside in the facility substance abuse things things of that nature absolutely and of course they have to ask those questions because the plaintiffs were coming in asking for an accommodation how else are you going to evaluate if something is a reasonable accommodation is a reasonable request unless you have some information about how come you're not going to evaluated based on the quote financials and you don't ask any questions about that that that's absolutely the point judge jones is it's not grant road public utility districts burton to go out and say ok here's what you have to do to convince us that with as with any situation with a plaintiff with any situation with a portie asking for a favor it's up to them to know what needs to be or can or criteria an apple come for an exception is supposed to bring before the the board the board does not have a written checklist that they can go here applicant here's the checklist of what you are supposed to do but it is the applicants burden to understand what the water code says to ask questions beforehand you know that was one of the things that was testified to is that at no time prior to standing was they hired someone who has made numerous applications for approvals around at least the harris county area and never been denied before so present it's just presumably that fellow knew what he was doing presumably he should have known what he was doing and not in the face and too little bird too been there for forty years speaking as a judge he's been here for thirty three well very similar jonesy so oh well sorry but but but but that is the exact point a providence did not do their homework they did not do their due diligence they came in and gave a sloppy presentation when you say sloppy i mean was there anything testimony that elaborated on that t rial at the trial yes mr mr scott specifically testified at the time of trial that he felt that the presentation was sloppy it did not contain any facts or figures and so there was nothing really for the board to base any further testimonial nothing for them to ask questions on that as they had been presented with any of that information and so as i say i'm running alone time  as this court is well aware deference has to be given to the findings of the trial court and in this particular situation the trial judge heard the evidence of both sides weighed the credibility of that evidence had to choose between that evidence and made a determination that there was no discrimination and he laid out a road map of how i got there and what that is the amount of time thank you for your time judges have a day just know i believe it was more like fifteen minutes to half an hour but but the the board time was actually they they actually spent more board time and did more of a presentation than they had done in two thousand and nine two thousand and ten steve grossman the architect for plaintiffs was the same or protect that made the presentation did the same thing and more in two thousand and fourteen that he didn't two thousand  it didn't ask a questions at the meeting about that and in two thousand and fourteen or in two thousand and seventeen the trial he all said comes up with this sloppy presentation idea there's no substance to that apart from that i'd like to make the point at the outset in r thousand and fourteen board being requesting a reasonable accommodation the defendants have contested whether plaintiffs made such a request throughout the entire course of this litigation now he's indicating that they did make that request in september two thousand request for a reasonable accommodation under the a d a s and the f h a puts the burden on the defendants as an affirmative defense to prove that granting such a reasonable accommodation would involve fundamental alteration or undue burden so that's a critical mission of like this court to take stock of the second thing is that the my colleague made a great deal in his presentation this court about deference to the trial  evidence in the record on appeal about animosity toward people with these disabilities he said the only evidence is quote the board was sensitive to public perception themselves to the the board is admitted and about the actual board meetings themselves right the board meetings themselves only questions the board asked about this was two of the september two thousand were i'm saying what testimony is there about what you're going to say here the the record cites or it lets the eight hundred forty two to three two thousand and seventy three to four and two thousand and eighty three to four the first two of those records sites were about the september two thousand and fourteen board meeting the second was about the november two thousand and fourteen board meeting and the record shows that the only questions that any board the members during the course of the pleadings were about the population the board members have always admitted that there's a standard process that they go through in determining these these these issues if you have you ask questions about a thing that you're concerned about that you ask questions about specifically any issues that might be different from the norm something that you're not used to if you need more information you you can defer and you make sure you consult with your tax advisor is but any problems clearly the only issue that they were concerned about after this community pressure was appointed after the testimony about community pressure i've been to you on here is your testimony in the record about community pressure what you're saying is when i do not take i ding the fact that they ask just what's wrong with these people to me does not necessarily raise an inference and discriminatory intent or you're saying that that has to be combined with something else yes you are and the record evidence on the pressure applied to the board appears at eight hundred forty nine to fifty twenty two nineteen twenty twenty one of three to four and twenty one forty three to five the patrick kelly a real estate developer spoke with the board spoke with the board's attorney repeatedly drummed up complaints in the community about the about concerns about specifically about the population and about property values decline that would arise if a facility serving a population like this edited to the community