                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0573n.06
                            Filed: August 10, 2006

                                           No. 04-3711


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

STELLA TURNER,

       Plaintiff-Appellant,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
CITY OF ENGLEWOOD,                                    SOUTHERN DISTRICT OF OHIO

       Defendant-Appellee.

                                               /




BEFORE:        SILER, CLAY, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff, Stella Turner, appeals the magistrate judge’s grant of

Defendant, City of Englewood’s, motion for summary judgment dismissing Plaintiff’s Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Rehabilitation Act, 29 U.S.C. § 794, claims;

and which also dismissed Plaintiff’s constitutional claim alleging a denial of substantive due

process. Plaintiff’s claims arose out of an action taken by Defendant in which it rezoned Plaintiff’s

property in Englewood, Ohio to residential-use only.

       After reviewing the parties’ briefs and the relevant evidence, we conclude that summary

judgment was appropriate, and AFFIRM the magistrate judge’s Order dismissing Plaintiff’s

complaint.
                                            No. 04-3711

                                                  I.

       On February 3, 1999, Plaintiff and her now-deceased husband purchased the property located

at 20 North Union Boulevard in Englewood, Ohio, which is commonly known both as “Turner

Villa” and “Englewood Manor.”1 Turner Villa had previously been operated as a nursing home.

On July 12, 1999, Plaintiff and her husband leased Turner Villa to Adult Care Operations

Management, Inc. (“ACOM”), operated by Ernie Lawson, for a ten year period. ACOM applied to

Defendant for an occupancy permit to operate a “rest home” at Turner Villa, but actually operated

a “group home” that housed “mentally retarded individuals and/or drug addicts.”2 ACOM ran the

group home for approximately eighteen months, during which time the Defendant city received over

one hundred emergency calls to the property, including calls reporting violence.

       ACOM was apparently not making timely rental payments to Plaintiff, and in September

2001, Plaintiff barricaded herself inside the offices at Turner Villa, in an effort to evict ACOM from

the premises. The police responded to the incident, along with several state and local agencies who

were concerned with the safety and welfare of the residents. A temporary resolution was reached,

whereby the residents were allowed to remain until December 31, 2000, at which time Defendant

evicted ACOM and its clients. Just prior to ACOM’s departure, Defendant issued a letter to Plaintiff

on December 21, 2000, revoking the “Certificate of Use and Occupancy Permit” for Turner Villa.


       1
        We will hereinafter refer to the property as “Turner Villa.”
       2
        The American Heritage Dictionary of English Language (4th Ed. 2000), defines a “rest
home” as “an establishment where the elderly or frail are housed and cared for,” and defines “group
home” as “a small supervised residential facility, as for mentally ill people or wards of the state, in
which residents typically participate in daily tasks and are often free to come and go on a voluntary
basis.”

                                                  2
                                            No. 04-3711

The revocation letter stated that Plaintiff could reapply for a permit “by filing an application

explaining precisely what uses are proposed for the premises.” (J.A. at 1031.)

       Defendant issued a Notice of Public Hearing scheduled for January 11, 2001, to consider a

change in zoning classification for the property at 20 North Union Boulevard from “R-5 Residential

(multi-family)” to “R-1 Residential (single family).” (J.A. at 1158.) Plaintiff’s attorney spoke on

Plaintiff’s behalf at the January 11, 2001 meeting, indicating that Plaintiff had another possible

tenant interested in using the building. (J.A. at 1159.)

       On January 25, 2002, the Englewood City Manager swore out an affidavit stating that the

property was a present danger to the health, safety and welfare of the citizens of the city and that he

would characterize the property as a “community nuisance when vacated by the former occupants.”

(J.A. at 1161.) Plaintiff filed an initial application for a new occupancy permit on January 26, 2001,

in which she stated that the property would be used as a “group home for people capable of some

aspects of independent living, but requiring adult supervision in other aspects.” (J.A. at 1109.) In

response to the application, Defendant imposed some conditions on Plaintiff and requested a $75

filing fee, but Plaintiff never actually submitted the fee or completed the filing.

       On February 21, 2001, at the recommendation of its Planning and Zoning Boards, the

Englewood City Council rezoned Turner Villa from R-5 to R-1 (single family home use).

Defendant indicated in a letter dated February 13, 2001, that it was rezoning the property because

of substantial changes in area conditions and for “more appropriate conformance to the adopted

Englewood land use plan and its relative priorities.” (J.A. at 1095.)




                                                  3
                                            No. 04-3711

       Meanwhile, on March 7, 2001, Dorothy Asher of Angels Sent Nursing, filed an application

for a certificate of occupancy, proposing to run a group home at the property. According to the

affidavit of Jeffrey Bothwell, that application was rejected as being inadequate to achieve occupancy

of the property because it referenced a group home and failed to sufficiently state the breadth of the

proposed operation. Furthermore, it was “filed subsequent to a city-initiated rezoning of the

Property.” (J.A. at 1124.)

       On March 9, 2001, Plaintiff appealed to the Montgomery County Court of Common Pleas,

challenging Defendant’s action in rezoning her property. The state court dismissed the case on the

grounds that Defendant’s actions were legislative.

       Plaintiff filed suit on March 19, 2002, in the United States District Court for the Western

District of Ohio, against Defendant City and various city officials,3 alleging that Defendant had

violated her Fifth and Fourteenth Amendment rights by depriving her of property without due

process of law or just compensation; that Defendant violated her Fourteenth Amendment right to

equal protection under the law by treating her differently from similarly situated property owners

in rezoning her property; and that Defendant violated 42 U.S.C. § 1985 by conspiring against




       3
        Plaintiff’s first complaint was filed against the City of Englewood, Eric Smith (City
Manager), Michael McNamee (Law Director), and Jeffrey C. Bothwell (Director of Community and
Economic Development) in their official capacities along with City Council Members Jim Capise,
Tom Franz, Judy Gerhard, Michael Kline, David Jones, and Earnest Lawson in their official
capacities. Plaintiff’s original complaint also included as a defendant, Earnest Lawson of the
Quaker Heights Nursing Home. After some discussion, Plaintiff agreed to dismiss all individually
named defendants except City Manager Eric Smith and Director of Community Development,
Jeffrey Bothwell. A docket entry was filed to that effect on October 16, 2002.

                                                  4
                                            No. 04-3711

Plaintiff to deprive her of her constitutional rights. Plaintiff further claimed intentional infliction

of emotional distress.

       On February 28, 2003, the magistrate judge issued an Order granting in part and denying in

part Defendant’s motion to dismiss. The magistrate judge dismissed with prejudice all of the

following claims: Fifth Amendment takings, Equal Protection, public policy, substantive due

process for water disconnection, and intentional infliction of emotional distress. The magistrate

judge further ordered Plaintiff to file a second amended complaint by March 14, 2003, eliminating

all defendants and claims that were voluntarily conceded or dismissed pursuant to Defendant’s

motion.

       Plaintiff filed a second amended complaint on March 24, 2003, and later filed a third

amended complaint on May 12, 2003, naming only the City of Englewood as a defendant. In that

complaint, Plaintiff requested a restraining order pursuant to Fed. R. Civ. P. 65 (B) to prohibit

Defendant from enforcing the rezoning, alleged violations of the ADA and the Rehabilitation Act

of 1973, claimed that she was denied substantive due process, and sought declaratory judgment. On

February 5, 2004, Defendant filed a motion for summary judgment, which was granted by the

magistrate judge on May 3, 2004. Plaintiff filed this timely appeal on May 25, 2004.

                                                  II.

       We review a district court’s grant of summary judgment de novo. Gerbec v. United States,

164 F.3d 1015, 1018 (6th Cir. 1999). “Summary judgment is appropriate so long as ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to



                                                  5
                                            No. 04-3711

judgment as a matter of law.’” Williams v. Int’l Paper Co,, 227 F.3d 706, 710 (6th Cir. 2000)

(quoting Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997)). When determining whether to

reach this conclusion, this Court views the evidence and draws all reasonable inferences in the light

most favorable to the non-moving party. Id.; see also Smith v. Thornburg, 136 F.3d 1070, 1074 (6th

Cir. 1998).

                                                  III.

       The magistrate judge granted Defendant’s motion for summary judgment as to Plaintiff’s

ADA and Rehabilitation Act claims on two alternative grounds. The magistrate judge found that

Plaintiff did not have standing to bring suit under the two statutes, but also held that both claims

should fail on the merits. For the reasons discussed herein, we find that the magistrate judge erred

in finding that Plaintiff did not have standing to bring these claims, but properly granted Defendant’s

motion for summary judgment on the merits.

               1.      Plaintiff’s Standing to Bring Suit On Her Own Behalf

       Under Article III of the Constitution, “[s]tanding is a threshold inquiry in every federal case

and it involves an inquiry into whether ‘a plaintiff has alleged such a personal stake in the outcome

of the controversy as to warrant his invocation of federal-court jurisdiction to justify exercise of the

court’s remedial powers on his behalf.’” MX Group, Inc. v. City of Covington, 293 F.3d 326, 332

(6th Cir. 2002) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). The standing inquiry “involves

both constitutional limitations on federal-court jurisdiction and prudential limitations on its

exercise.” Warth, 422 U.S. at 498; see also Village of Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252, 261 (1977) (finding that the plaintiff housing developer met the



                                                   6
                                             No. 04-3711

constitutional standing requirements for a racial discrimination suit because the challenged actions

of the village’s housing authority stood as an absolute barrier to constructing the housing that

Plaintiff had contracted to place on the site). Under the constitutional requirement, “the plaintiff

must show that he himself is injured by the challenged action of the defendant.” Arlington Heights,

429 U.S. at 261. “The injury may be indirect, but the complaint must indicate that the injury is

indeed fairly traceable to the defendant’s acts or omissions.” Id. (citations omitted). On the other

hand, prudential rules of standing serve to limit the role of the courts in resolving public disputes.

Warth, 422 U.S. at 500.        “Essentially, the standing question in such cases is whether the

constitutional or statutory provision on which the claim rests properly can be understood as granting

persons in the plaintiff’s position a right to judicial relief.” Id.

        Plaintiff brought her claim under Title II of the ADA, which provides that “no qualified

individual with a disability shall, by reason of such disability, be excluded from participation in or

be denied the benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. The ADA’s public enforcement provision,

§ 12133, extends the statute’s remedies to “any person alleging discrimination on the basis of

disability.” The regulations implementing Title II further provide that “[a] public entity shall not

exclude or otherwise deny equal services, programs, or activities to an individual or entity because

of the known disability of an individual with whom the individual or entity is known to have a

relationship or association.” 28 C.F.R. § 35.130(g). The Rehabilitation Act similarly states that

“[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the benefits of, or be subjected to



                                                    7
                                            No. 04-3711

discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C.

§ 794(a) 4. The Rehabilitation Act protects “any person aggrieved” by the discrimination of a person

on the basis of his or her disability. 29 U.S.C. § 794a(a)(2).

       The standing question in this case is whether the ADA and the Rehabilitation Act confer

standing on a person in Plaintiff’s position. We believe that this question has already been answered

in the affirmative by the MX Group case. 293 F.3d 326. In MX Group, the plaintiff, a provider of

methadone drug treatment who sought to open a methadone clinic in Covington, Kentucky, was

denied a zoning permit and sued the city for discrimination under the ADA and the Rehabilitation

Act. This Court held that the plaintiff had “presented evidence that it was denied a zoning permit

because it cares for and/or associates with individuals who have disabilities,”5 and thus had standing

to bring suit on its own behalf. Id. at 335 (internal citation omitted).

       Relying on what it considered to be the importance of the fact that the MX Group plaintiff

was a provider of services to disabled persons, unlike Plaintiff in the instant case, who is merely the

property owner, the magistrate judge found that Plaintiff does not have standing to bring suit under

the ADA or Rehabilitation Act. According to the magistrate judge, ACOM, “a service provider like

MX Group . . . would have had standing to bring an ADA and Rehabilitation Act claim on behalf

of its patients/residents if [Defendant] had acted to terminate its operation at the property in

       4
         The ADA and Rehabilitation Act claims are primarily analyzed together as both acts are
interpreted consistently with one another. See MX Group, 293 F.3d at 332.
       5
         MX Group explained that drug abuse can be considered a mental or physical activity that
substantially limits a major life activity. Id. at 337. The Court further found that the plaintiff had
established that its potential clients “would include persons who are unable to work and function
because of their addiction,” thereby meeting the statutory requirements for disability under the ADA.
Id. at 339-40.

                                                  8
                                             No. 04-3711

discrimination against them for being disabled.” (J.A. at 147.) The magistrate judge mistakenly

concluded that this “is the holding of MX Group,” and that Plaintiff does not have standing because

she “does not stand in the same relationship to disabled people as the plaintiff in MX Group . . . she

is not a service provider dedicated to providing services to the disabled.” (J.A. at 147.)

        The magistrate judge’s reasoning on this matter must fail for a number of reasons. First of

all, it must fail because this was not, in fact, the holding of MX Group. As stated above, the holding

of that case was that plaintiff had standing to sue under the ADA and Rehabilitation Act because “it

cares for and/or associates with individuals who have disabilities.” MX Group, 293 F.3d at 335

(emphasis added). While the MX Group Court did focus heavily on the fact that the plaintiff was

a provider of services to the disabled, neither that Court, nor the court in Innovative Health Sys., Inc.

v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), upon which the MX Group Court relied, limited

the holding to those who provide services to the disabled. See Innovative Health Sys., 117 F.3d at

47 (finding that both Title II of the ADA and the Rehabilitation Act extend their remedies to “any

person” alleging discrimination on the basis of a disability (ADA), or “any person aggrieved by” the

discrimination against a person on the basis of his or her disability (Rehabilitation Act), thereby

evincing a congressional intent to not limit standing to just the disabled person). Therefore, the

magistrate judge’s conclusion that Plaintiff cannot have standing because she was not providing

services to disabled persons is erroneous.

        The magistrate judge’s reasoning also must fail because it misapprehends Plaintiff’s

argument to the court. The substance of Plaintiff’s claim is that she herself suffered an injury when

Defendant changed the zoning of her property to single-family residential use because of her



                                                   9
                                            No. 04-3711

association with disabled persons who would be the residents of a new group home that Plaintiff

sought to establish on the property. The magistrate judge’s conclusion that Plaintiff does not have

standing to bring suit on behalf of the former ACOM residents misses the point because Plaintiff is

not suing on behalf of her former residents, but rather on her own behalf.

       Moreover, the magistrate judge was also incorrect in reasoning that Plaintiff does not have

standing because she never actually applied for a certificate of occupancy for other companies or

individuals to establish a group home on the premises after ACOM left. The magistrate judge

concluded that absent such applications and a denial of the permit by Defendant, Plaintiff does not

have standing. Again, this misses the point. Plaintiff does not have to show that she applied for and

was denied a certificate of occupancy after the building was rezoned, because the rezoning itself is

the injury about which she is complaining. Plaintiff has already suffered the injury that forms the

basis for the complaint. Defendant’s action in rezoning the property effectively prohibits Plaintiff

from leasing it to individuals who would provide services to disabled persons. The rezoning is the

injury, and the right alleged is Plaintiff’s right to associate with disabled persons.

       It should also be noted that federal courts have, on several occasions, found that landowners

claiming injury as a result of discriminatory city zoning and building laws, had standing to bring suit

in their own behalf. See, e.g. Village of Arlington Heights, 429 U.S. at 263 (holding that plaintiff

real estate developer denied zoning permits to build low cost housing units had standing in his own

right to bring suit against the city to redress defendant city’s alleged racially discriminatory purpose

in denying the permits because the plaintiff had a right to “be free of arbitrary or irrational zoning

ordinances.”); RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1055 (9th Cir. 2002) (finding that



                                                  10
                                             No. 04-3711

former owners of a night club who brought § 1983 and First Amendment claims against the City of

Seattle, challenging the city’s public nuisance ordinance, had standing in their own right under the

Equal Protection clause because of the personal injury they suffered as a result of their “association

with members of a protected class,” the African American patrons of the club); McElroy v. City of

Corvallis, 67 Fed. Appx. 420, 422 (9th Cir. 2003) (unpublished) (finding that the defendant property

owner and investor had standing to sue the city because he was injured as a result of the city’s

discriminatory denial of certificates of occupancy).

       We therefore conclude that both Title II and the Rehabilitation Act, as interpreted by the MX

Group decision, are broad enough to allow Plaintiff to bring this action on her own behalf as a

property owner who wishes to lease the property to service providers in order to house and service

disabled persons.

               2.       The Merits of Plaintiff’s ADA and Rehabilitation Act Claims

       Having determined that Plaintiff has standing to bring these claims, we now address the

magistrate judge’s dismissal of these claims on the merits. We agree with the magistrate judge that

both claims should be dismissed, although we employ a different analysis for doing so. As discussed

above, both Title II of the ADA and Section 508 of the Rehabilitation Act prohibit disability

discrimination by a public entity, Innovative Health Sys., 117 F.3d at 44, and Plaintiff here claims

that Defendant rezoned her property to single family residential use only because it harbored the

unlawful discriminatory purpose of keeping out disabled persons.

        In order to state a claim under the two statutes, Plaintiff must first establish that at least some

of her future tenants would in fact meet the statutory definition of disabled individuals. To



                                                   11
                                            No. 04-3711

demonstrate a disability under each of these statutes, Plaintiff must show that one or more of her

potential residents: (1) have a physical or mental impairment which substantially limits one or more

major life activities; (2) a record of having such an impairment; or (3) that they are regarded as

having such an impairment. Reg’l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35,

46 (2d Cir. 2002). In the present case, however, because it involves a motion for summary judgment

and Plaintiff’s allegations are taken as true, we will assume for the purpose of this discussion that

Plaintiff’s potential tenants may be considered disabled under the ADA and proceed to the next stage

of the analysis.

       We analyze claims of intentional discrimination brought pursuant to the ADA and the

Rehabilitation Act under the familiar burden-shifting analysis established by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See also Hedrick v. Case Western Reserve Care Sys., 355 F.3d

444, 453 (6th Cir. 2004). Under McDonnell Douglas, Plaintiff must first establish a prima facie case

of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of

discrimination under the ADA, Plaintiff must present evidence that “animus against the protected

group was a significant factor in the position taken by the municipal decision-makers themselves

or by those to whom the decision-makers were knowingly responsive.” Reg’l Econ., 294 F.3d at 49

(emphasis in the original); Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 790 (6th

Cir. 1996) (citing Village of Arlington Heights, 729 U.S. at 270) (stating that the plaintiff must show

that “discriminatory purpose was a motivating factor in the City’s decision” to rezone her property).

Plaintiff need not establish that Defendant’s actions were based solely on a discriminatory purpose

or even that a discriminatory purpose was the dominant or primary one for rezoning the property.



                                                  12
                                              No. 04-3711

See Arlington Heights, 429 U.S. at 265; Smith & Lee Associates, 102 F.3d at 791; United States v.

City of Parma, Ohio, 661 F.2d 562, 575 (6th Cir. (1981) (“There is no requirement that such

[discriminatory] intent be the sole basis of official action, if it is a motivating factor.”). In contrast,

to establish a prima facie case of discrimination under the Rehabilitation Act, Plaintiff “must show

that [Defendant rezoned her property] solely because of the disability.” Reg’l Econ., 294 F.3d at 49

(citations and quotations omitted) (emphasis added).

        Discriminatory intent may be inferred from the totality of circumstances and a number of

sources, including the historical background of the decision; the specific sequence of events leading

up to the challenged decision; departures from the normal procedural sequence; and the legislative

history and contemporary statements by members of the decision-making body. Arlington Heights,

429 U.S. at 267-68; Reg’l Econ., 294 F.3d at 49. We pay particular attention to legislative or

administrative history, “especially where there are contemporary statements by members of the

decisionmaking body, minutes of meetings, or reports.” Arlington Heights, 429 U.S. at 268.

        Once a plaintiff establishes that the defendant’s “decision was motivated at least in part by

discriminatory animus, the burden shifts to the defendant to prove that it would have made the same

decision even if it had not been motivated by an unlawful purpose.” Smith & Lee Assocs., 102 F.3d

at 791 (citations omitted); Reg’l Econ., 294 F.3d at 49 (“If the plaintiffs make out a prima facie

case, then the burden of production shifts to the defendants to provide a legitimate,

nondiscriminatory reason for their decision.”). Proof that the decisions were motivated in part by

a discriminatory purpose will not necessarily require invalidation of the challenged legislative

action. Smith & Lee Assocs., 102 F.3d at 791. If the defendant meets its burden of showing that it



                                                    13
                                           No. 04-3711

would have made the same decision even if not motivated by an unlawful purpose, then the plaintiff

must introduce evidence showing that the proffered reason is pretextual. See Hedrick, 355 F.3d at

453. “Under this scheme, the plaintiff retains the ultimate burden of persuasion at all times.” Id.;

see also Reg’l Econ., 294 F.3d at 49 (“The plaintiffs must then prove that the defendants

intentionally discriminated against them on a prohibited ground.”).

       First of all, Plaintiff cannot make out a prima facie case of discrimination under the

Rehabilitation Act because she cannot prove that discrimination was the sole motivation for

Defendant’s rezoning of her property. On the contrary, there is ample evidence in the record that

Defendant’s decision to rezone Plaintiff’s property was motivated by other factors including concern

for the safety and welfare of the residents of the facility and the community. Our analysis of the

Rehabilitation Act claim thus concludes here.

       On the other hand, we will assume, without deciding, that Plaintiff’s allegations make out

a prima facie case of discrimination on the ADA claim. It is undisputed that mentally disabled

persons resided at the property while ACOM was present and that these disabled persons, under

ACOM’s care, caused some problems for Defendant such that Defendant may not have wanted the

property to continue to house disabled residents. Therefore, we take Plaintiff’s allegations as true

in this regard and proceed to a discussion of the pretext prong of the analysis.

       Under McDonnell Douglas, the burden now shifts to Defendant to proffer a legitimate, non-

discriminatory reason for the rezoning, and to establish that it would have made the same decision

even if not motivated by discriminatory animus. Defendant meets that burden here. See Smith &

Lee Assocs., 102 F.3d at 794 (finding that the defendant was entitled to summary judgment where



                                                 14
                                           No. 04-3711

defendant had proven by a preponderance of the evidence that it would have denied plaintiff’s

zoning petition anyway because the members of the city council were all on record as being opposed

to spot zoning). Defendant offers two non-discriminatory reasons for its decision to rezone

Plaintiff’s property to single family use only. First, Defendant argues that the decision was

motivated in part by a land use plan for the neighborhood that called for residential use only in the

area. Defendant claims that the area had become increasingly residential and that the new land use

plan did not allow for the operation of group homes like that run by Plaintiff in the area. Defendant

secondly claims that it rezoned the property out of concern for the safety and welfare of the

community and the potential residents of the building. We believe that Defendant’s stated non-

discriminatory reasons, particularly the second explanation, are supported by the record.

       It is undisputed that there were over one hundred emergency calls to the property during the

time that Plaintiff allowed the former tenant, ACOM, to operate its adult group home at Turner

Villa. There were numerous injuries to residents, violent attacks, fires, and incidents of the ACOM

residents panhandling in the neighborhood and trespassing on other properties in the neighborhood.

There was even a disturbance in which Plaintiff barricaded herself inside the offices of the building

and refused to give the ACOM staff access to their records and files. The police, along with various

other state and local agencies responded to the incident, in an effort to ensure the safety of the

ACOM residents. Under these circumstances, we cannot say that Defendant would not have made

the same decision to rezone Plaintiff’s property even if it were not partially motivated by

discriminatory animus.




                                                 15
                                            No. 04-3711

       Once Defendant presented to the court its non-discriminatory reasons for the zoning action,

the burden then shifted back to Plaintiff to present evidence that Defendant’s proffered reasons are

pretextual. Plaintiff failed to meet this burden, and as a result, summary judgment was appropriate.

Plaintiff did not offer in the district court, nor does she present on appeal, sufficient evidence to

dispute Defendant’s claim that it would have made the same zoning decision absent discriminatory

animus.6 Instead, Plaintiff concedes that there were numerous problems at the building, but merely

contends that Defendant should be well-equipped and capable of handling such emergencies.

Plaintiff also does not offer any evidence that Defendant’s statements about the land use plan for the

neighborhood are pretextual. Presented with such evidence from Plaintiff, we may have been

inclined to reverse the district court’s grant of summary judgment as being premature; however,

under McDonnell Douglas, we cannot do so unless Plaintiff rebuts Defendant’s proffered

explanation, which she has failed to do.




       6
         In contrast to the case before us, there have been situations in which plaintiffs have
successfully rebutted as pretextual a public entity’s stated non-discriminatory reasons. In particular,
in the closely analogous case, Regional Economy, the Second Circuit found that the defendant city’s
proffered reasons for denying the plaintiff a special use zoning permit to build two half-way houses
for recovering alcoholics within the city were pretextual and that discriminatory animus against the
disabled future residents was the reason that the plaintiff was denied the permit. Reg’l Econ, 294
F.3d at 51-52. The Regional Economy plaintiff presented the court with significant evidence
rebutting the defendants’ proffered nondiscriminatory reasons for the decision, including remarks
made by city officials and zoning board members stating that they did not want such housing in their
area; the fact that a special use permit was granted to the same entity for an adjoining parcel of land
that would house a childcare facility; and because the defendant’s proffered reasons that they denied
the plaintiff a special use permit out of concern for the nuisance effect of a nearby railroad was
clearly illegitimate given that a permit was granted to build a childcare facility on the neighboring
parcel of land. Id. at 51-52. The court found that based on this evidence, a “reasonable juror could
refuse to credit the defendant’s stated reasons” for denying plaintiff a permit. Id. at 52.

                                                  16
                                           No. 04-3711

       We are not able to conclude from the evidence presented, that Defendant’s animus was

directed at Plaintiff because of her association with disabled persons, rather than because of

Plaintiff’s poor management and supervision of her property. Plaintiff’s only evidence that

Defendant might harbor some discriminatory animus towards the disabled is a February 9, 2001

letter in the form of a staff report from the Director of Community Development addressed to the

mayor and city council. The letter stated in relevant part that “[t]he City was ecstatic when a new

proposal was presented to replace the former nursing home use by a licensed rest home . . . What

we got instead was an adult group home and disturbed clients with personality profiles in no way

similar to those of a nursing home.7” (J.A. at 1127.) The letter then goes on point out that the city

has no way of knowing who the next residents may be, and to suggest that it might be in the public

interest to rezone the property to single family use only.

       While we believe that the February 9, 2001 letter may have helped Plaintiff establish a prima

facie case of discrimination (although we still decline to decide the matter here), we do not believe

that the letter is enough to rebut Defendant’s explanation that it would have made the same decision

even if not motivated by discriminatory animus, particularly as the letter specifically refers to

ACOM’s misrepresentations about the nature of the facility that it intended to run.8 Plaintiff

       7
        It should be remembered, however, that this letter was referencing the fact that ACOM had
misrepresented the nature of the proposed facility to Defendant when it applied for the certificate
of occupancy, claiming that it was seeking to open a rest home for the elderly, when it in fact
operated an adult group home.
       8
       Similarly, we are not persuaded by Plaintiff’s reference to the minutes from a February 13,
2001 City Council meeting where the following remarks were made:

       The City then received a proposal for a “licensed rest home” to replace the former
       nursing home use. “Licensed rest home” was used by the property agent on his

                                                 17
                                             No. 04-3711

presents no other evidence of discrimination on the part of Defendant towards disabled persons, or

discriminatory statements made by members of the city council or zoning board; nor does she offer

evidence that would lead us to conclude that Defendant treated Plaintiff differently from other

similarly situated property owners in the area. As a result, we decline to find that the magistrate

judge erred in granting Defendant’s motion for summary judgment.

                                                   IV.

        We also find that the magistrate judge properly dismissed Plaintiff’s substantive due process

claim. Zoning ordinances, like the one at issue, “must find their justification in some aspect of the

police power, asserted for the public welfare.” Village of Euclid, Ohio v. Ambler Realty Co., 272

U.S. 365, 387 (1926). “The segregation of industries, commercial pursuits, and dwellings to

particular districts in a city, when exercised reasonably, may bear a rational relation to the health,

morals, safety and general welfare of the community.” Id. at 392. In substantive due process claims,

like the present action, the “[p]laintiff claims that the zoning regulation is arbitrary and capricious

in that it does not bear a substantial relation to the public health, safety, morals, or general welfare.”

Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992). The federal circuits are

divided on the role of federal courts in reviewing substantive due process arbitrary and capricious



        application for a Certificate of Occupancy. What was established instead was an
        adult group home, housing disturbed clients with personality profiles in no way
        similar to those of nursing home residents. That use has now since ceased, and the
        building is now vacant.

(J.A. at 1159.) The language in this statement regarding the group home and its clientele is identical
language to that in the staff report, and we still do not consider this to be sufficient evidence of
discriminatory animus, given that ACOM did in fact misrepresent to Defendant that it intended to
operate a “rest home” when it in fact ran a “group home.”

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claims in the zoning context, and the Supreme Court has failed to provide a definitive standard of

review, but the “Court has explicitly observed, however, that citizens have a substantive due process

right not to be subjected to arbitrary or irrational zoning decisions.” Id. at 1217. (citing Arlington

Heights, 429 U.S. at 263); Richardson v. Township of Brady, 218 F.3d 508, 512 (6th Cir. 2000).

        When zoning legislation is subjected to a substantive due process attack, the review by

federal courts is more deferential than it is of state administrative action. Pearson, 961 F.2d at

1223.9 “A local zoning ordinance survives a substantive due process challenge if there exists a

rational relationship between the terms of the ordinance and a legitimate governmental purpose.”

Richardson, 218 F.3d at 513. When property interests are adversely affected by zoning regulations,

the courts have generally sustained the regulation if it is “rationally related to legitimate state

concerns and does not deprive the owner of economically viable use of his property.” Pearson, 961

F.2d at 1223 (citations and quotations omitted) (emphasis in the original) (finding that concerns

about traffic and the deterioration of the neighborhood are rationally related to the goals of zoning

where plaintiff was denied a permit to open a McDonalds on his property). Beyond that, if the

zoning law infringes a protected liberty interest, “it must be narrowly drawn and must further a




        9
         This Circuit makes a distinction between substantive due process claims involving
administrative zoning decisions and those involving legislative actions. See Pearson, 961 F.2d at
1220 -21, for a discussion of the administrative/legislative distinction. The decision in the present
case should be considered legislative because Plaintiff’s property was rezoned pursuant to a vote and
action by the City Council. In either case, the inquiry is whether the state action had a rational basis.
In administrative cases, however, the federal court may review the evidence before the state
administrative agency and that review is limited to a determination of whether the agency has paid
attention to the evidence adduced and acted rationally upon it. In legislative cases, the court does
not undertake that review at all, but merely determines whether the challenged legislative action is
rationally related to legitimate state land use concerns. Pearson, 961 F.2d at 1223.

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                                             No. 04-3711

sufficiently substantial government interest.” Id. (stating that when reviewing legislative acts that

deprive citizens of “life, liberty or property,” the federal court may only inquire as to whether the

“action is rationally related to legitimate state use concerns.”). “Even parochial motives, if not based

on animosity toward a protected class or similar invidious purpose, will not invalidate local zoning.”

Id. at 1224. This Court has repeatedly stated that “a legislative body need not even select the best

or the least restrictive method of attaining its goals so long as the means selected are rationally

related to those goals.” Richardson, 218 F.3d at 515 (quoting Schenck v. City of Hudson, 114 F.3d

590, 594 (6th Cir. 1997)). “If the validity of the legislative classification for zoning purposes be

fairly debatable, the legislative judgment must be allowed to control.” Village of Euclid, 272 U.S.

at 388.

          We conclude that Defendant’s decision to rezone Plaintiff’s property was rationally related

to a legitimate government purpose. We find that Plaintiff’s substantive due process claim must fail

for all the same reasons that her ADA and Rehabilitation Act claims failed. According to

Defendant, the zoning commission ultimately adopted a proposal to rezone the property because it

was considered to be inconsistent with a city-wide land use plan, which reflected the increasingly

residential nature of the surrounding property, and because of past problems at the building and

concern that potential future residents might again place a strain on city resources, and pose a danger

to themselves and the surrounding community. Plaintiff had already proven herself to be less than

adept at properly maintaining her property, and it was both rational and legitimate for the city to be

concerned.




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                                           No. 04-3711

        Plaintiff presents no evidence to counter the city’s contentions about its land use plan and

the residential nature of the neighborhood. Plaintiff also does not dispute that there were numerous

emergencies at the property that involved city resources while ACOM occupied the facility.

Plaintiff simply has not presented any evidence that Defendant’s actions were arbitrary and

capricious. On the contrary, Defendant has presented ample evidence that its actions were rationally

related to the legitimate governmental purpose of bringing the property in line with the city’s land

use plan and protecting the safety, health and welfare of the residents and the surrounding

community. We therefore hold that the magistrate judge properly dismissed Plaintiff’s substantive

due process claim.

                                                V.

       For the foregoing reasons, we AFFIRM the magistrate judge’s grant of Defendant’s motion

for summary judgment.




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