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Get Back Up, Inc. v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

June 12, 2017

GET BACK UP, INC., Plaintiff,



         Pending before the court is Plaintiffs 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 Plaintiffs 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 Plaintiffs 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. 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)).


         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.2d668 (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 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. Plaintiffs 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 Plaintiffs 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, ...

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