NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0164n.06
Case No. 17-1824
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

GET BACK UP, INC., Plaintiff-Appellant,

v. CITY OF DETROIT, MICH.; CITY OF DETROIT BOARD OF ZONING APPEALS, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: KEITH, KETHLEDGE, and THAPAR, Circuit Judges. THAPAR, Circuit Judge. Dr. Billy Taylor has been trying to open a residential rehabilitation center for recoveri ng drug addicts and alcoholics for over ten years. His facility, Get Back Up, is located on the outskirts of a re sidential neighborhood in Detroit, Michigan. But its doors are currently closed on account of a dispute with the C ity’s zoning board. Detroit, like many cities, regulates the numbe r of non-traditional residences that can set up shop in or around neighborhoods that consist of mo stly single-family homes. So things like fraternity houses, multi-family dwellings, and residential substance-abuse rehabilitation centers all need to get a conditional-use pe rmit from the city before opening. See Detroit, Mich., Zoning Ordinance §§ 61-3-218, 61-9-80(6). Get Back Up applied for such a permit back in 2007, andCase No. 17-1824, Get Back Up, Inc. v. City of Detroit

- 2 - Detroit’s urban-planning depa rtments approved. But Get Back Up’s residential neighbors appealed the departments’ decisi on to Detroit’s Board of Zoning Appeals, which then reversed. Round one of litigation followed. Get Back Up sued the C ity and the Board, claiming that Detroit’s zoning ordinance discriminated against recoveri ng substance abusers. While litigation was pending, the parties reached an agr eement that allowed Get Back Up to operate on a provisional basis. And for six years, Get Back Up did. But when Get Back Up lost the lawsuit, the City promptly shut the facility down. See Get Back Up, Inc. v. City of Detroit , 606 F. App’x 792 (6th Cir. 2015) (per curiam). Undeterred, Get Back Up submitted a new perm it application a few months later. And again, the City’s planning departments approve d, Get Back Up’s neighbors appealed, and the Board reversed. That led to the second round of litigation. This time, instead of challenging the zoning ordinance’s validity, Get Back Up claimed that the Board’s decision discriminated against recovering substan ce abusers and asked the district c ourt for a preliminary and permanent injunction. The district court denied both moti ons, finding, among other things, that Get Back Up had no chance of success on the merits. Get B ack Up now appeals. We review the district court’s denial of injunctive relief for abuse of discretion. Jolivette v. Husted , 694 F.3d 760, 765 (6th Cir. 2012).
*** Get Back Up claims the Board’s decision vi olated three federal statutes: the Americans with Disabilities Act, the Fair Housing Act, and the Rehabilitation Act. As relevant here, each prohibits intentional discrimina tion against disabled persons, in cluding recovering addicts. MX Grp. v. City of Covington , 293 F.3d 326, 332–40 (6th Cir. 2002).Case No. 17-1824, Get Back Up, Inc. v. City of Detroit

- 3 - Courts review intentional-di scrimination claims under the bu rden-shifting analysis set out
in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Anderson v. City of Blue Ash , 798 F.3d 338, 356–57, 364 (6th Cir. 2015). Under this framework, Get Back Up bears the initial burden of making a prima faci e case of discrimination. Id. at 357. To do so, the facility must present evidence showing that the City’s decision-makers denied the permit because they harbored animus toward recovering addicts, or that they factored their constituents’ animus toward recovering addict s into their decision. Id. (quoting Turner v. City of Englewood , 195 F. App’x 346, 353 (6th Cir. 2006)). If Get Back Up makes its prima facie case, the burden then shifts to the Board to offer non-discri minatory reasons for its decision. Id . And if the Board does so, Get Back Up must show that a reason able jury could find th at those reasons were pretextual. Id

. Get Back Up carried its burden at step one. The Board twice reversed the Detroit planning departments’ approval of Get Back Up’s applications after Get Back Up’s neighbors appealed. And at the public he aring following the neighbors’ se cond appeal, some of those neighbors made comments that suggested animus toward recovering addict s. One woman noted that “Doctor Taylor didn’t put [the clinic] where he lives.” R. 4-6, Pg. ID 254. Another questioned who “would buy a house in the ne ighborhood where you’re talking about hundreds and hundreds and hundreds and hundreds of drug a ddicts and possibly felons are two blocks from the school you plan on sending your kid.” Id. , Pg. ID 255. And a Board member echoed these sentiments, commenting that “there’s a diffe rence in the perspectiv e 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.” Id. , Pg. ID 248. Together, these comments are su fficient to demonstrate a prima facie case of discrimination. SeeCase No. 17-1824, Get Back Up, Inc. v. City of Detroit

- 4 - MX Grp. , 293 F.3d at 341–42 (holding that metha done clinic demonstrated unlawful discriminatory animus in light of evidence that city relied on “unfounded fears and stereotypes” about recovering drug addi cts in zoning decision). 1 Get Back Up argues that the court’s analysis should end here. The id ea seems to be that discriminatory public opposition “taints” a zoning decision, and thus that the remainder of the McDonnell Douglas analysis need not apply. But none of th e statutes at issue here make a city liable merely for being exposed to its citizens’ allegedly discriminatory views—the City is only liable if its decision-makers actually discriminated

. Smith & Lee Assocs., Inc. v. City of Taylor , 102 F.3d 781, 794 (6th Cir. 1996) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 270 n.21 (1977)); see also Budnick v. Town of Carefree , 518 F.3d 1109, 1117–18 (9th Cir. 2008) (concluding that neighbors’ allegedly discriminato ry comments at hearing did not show discrimination because “hear[ing] the views of concerned citizens . . . is the essence of all zoning hearings”). So Detroit must be given an opportunity to show that its decision was not the result of animus. See Smith , 102 F.3d at 794. The Board points to four non-discriminatory reasons for its decision: (1) complaints about trash and debris outside Ge t Back Up’s facility, (2) Get Back Up residents’ allegedly disruptive behavior during the years the faci lity was in operation, (3) concerns about neighborhood property values, and (4) concerns about the number of clients Get Back Up would be allowed to house if its permit was approved. And sure enough, at the hearing, Get Back Up’s neighbors decried the faci lity’s likely effect on property values—a mandatory consideration under Detroit’s zoning ordinance. See Detroit, Mich., Zoning Ordinance § 61-3-231(3)

1 This evidence is not sufficient to make a prima facie case under the Rehabilitation Act, which requires the plaintiff to show that the Board’s decision was motivated “solely” by discriminatory animus toward Get Back Up residents. 29 U.S.C. § 794(a). For the reasons provided below, Get Back Up cannot do so.Case No. 17-1824, Get Back Up, Inc. v. City of Detroit

- 5 - (requiring the Board to consider whether the pr oposed use would “substantially diminish or impair property values within the neighborhood”); Hamm v. City of Gahanna , 109 F. App’x 744, 747–48 (6th Cir. 2004). They also worried about the number of residents Get Back Up would house—a concern that woul d have been implicated whether th e proposed use was a rehabilitation center, a fraternity house, or a plain-old multi-family dwelling. See Detroit, Mich., Zoning Ordinance § 61-3-231(8) (requiring the Board to c onsider whether “[t]he Conditional Use will be compatible with land uses on ad jacent and nearby zoning lots in terms of location, size, and character”). They complained about trash at Get Back Up’s facility—which a Get Back Up employee admitted she had been a bit slow to address. See Detroit, Mich., Zoning Ordinance § 61-3-231(1) (requiring the Board to consid er whether the “maintenance” of the proposed conditional use would be “detrime ntal to or endanger the social , physical, environmental or economic wellbeing of surrounding neighborhoods”). They alleged that Get Back Up’s former clients had made “sexual innuendos” toward neighbor s’ children, had stolen things from the local pharmacy, and had trespassed on neighbors’ pr operty. And, perhaps mo st vigorously, they argued that Dr. Taylor had not been respectful of local residents and that Get Back Up’s six-year track record suggested it would not be a good neighbor. The Board members’ comments during the hearing and its wr itten decision suggest that these citizen concerns motivated the Board. More over, local grievances li ke these are the stockin-trade of zoning boards everyw here, and they provide legitimat e, non-discriminatory bases for the Board’s decision. See Hamm , 109 F. App’x at 748 (city c ouncil’s zoning decision not discriminatory where public hearing focused on “concerns about property values, the character of the neighborhood, and legal impedime nts to the planned development”); see also Penn. Cent. Transp. Co. v. City of New York , 438 U.S. 104, 129 (1978) (“[T]h is Court has recognized, in aCase No. 17-1824, Get Back Up, Inc. v. City of Detroit

- 6 - number of settings, that States and cities may enact land-use restri ctions or controls to enhance the quality of life by preserving th e character and desirable aesthetic features of a city[.]”). Because the Board has met its burden, Get Back Up must demonstrate that the Board’s reasons were pretextual. Get Back Up argues th at the trash on the property was not Get Back Up’s fault but was instead dumped there by others ; that no one reported the purported incidents involving Get Back Up re sidents to Dr. Taylor; and that a property-valu es study the neighbors relied on was based on a substance-a buse facility in Virginia, not Detroit. That may all be true, but it misses the point. Even if Get Back Up di d not dump the trash and Dr. Taylor did not know about the residents’ alleged acti ons, it does not mean that the Board’s relia nce on the neighbors’ allegations is suspect. And even if the Virg inia property-values study was not locally sourced, Get Back Up has not shown that it lacked credib ility or relevance. Th e neighbors claimed there was trash, bad behavior, and risk of a decline in pr operty values—and they offered testimony and evidence to back it up. Get Back Up has not shown that these concerns were so implausible as to suggest that the Board acted fr om discriminatory motives. Cf. Anderson , 798 F.3d at 358–60 (summary judgment for city appropriate where it ordered removal of miniature horse from house because of “legitimate concerns of its ci tizens about the sanitation problems posed”); Turner , 195 F. App’x at 354–56 (summary judgment for city appropriate where it denied zoning request after reports that group-home residents ha d been “panhandling in the neighborhood and trespassing on other properti es in the neighborhood”); Hamm , 109 F. App’x at 747–49 (summary judgment for city appropriate where it denied pl aintiffs’ re-zoning applic ation due to neighbors’ concerns about project’s impact on the neighborhood and property values). In the end, our job is not to weigh the cr edibility of the nei ghborhood witnesses, but simply to determine whether Get Back Up has made its case that the Board’s proffered reasonsCase No. 17-1824, Get Back Up, Inc. v. City of Detroit

- 7 - were pretextual. Since Get Back Up has not presented sufficient evidence of pretext, we AFFIRM the district court’s decision not to issue an injunction.