July 17, 2019

Aaron Solomon: Zoning and the Fair Housing Act

In Cinnamon Hills Youth Crisis Center v. Saint George City (No. 11-4020), the Tenth Circuit addressed the extent to which a city may enforce zoning restrictions in a manner that limits options for programs designed to treat persons with mental and emotional disorders in a residential setting. In this case, Cinnamon Hills sought to use the top floor of a motel it owned to operate a residential facility. The city refused to grant it zoning variances from ordinances prohibiting extended stays in motels and residential uses in areas zoned for commercial use. Cinnamon Hills brought suit under the Fair Housing Act, ADA, and the Rehabilitation Act. These statutes required it to show either intentional discrimination against the disabled, unlawful disparate impact, or a failure to provide a reasonable accommodation.

In discussing the failure to accommodate issue, the court nicely summed up the standard of a reasonable accommodation: “under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining ‘the same . . . opportunities that those without disabilities automatically enjoy.”’ But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities.”

Ultimately, the court held that Cinnamon Hills could provide neither direct evidence of discrimination nor sufficient evidence of indirect discrimination. The court further held that there was no evidence of disparate impact or a failure to accommodate. Notably, the court repeatedly avoided reaching the issue of whether a city ordinance requiring all new treatment centers be placed in rural areas was discriminatory as the city did not rely on the statute in this case and the court believed a challenge to its validity was not ripe.

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on July 5, 2012.

Aaron Solomon: First Amendment Retaliation in the Context of an Employment Dispute

Editor’s Note: The Tenth Circuit issued its opinion in Morris v. City of Colorado Springs on January 18, 2012.

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on January 19, 2012.

Aaron Solomon: The Colorado Supreme Court Defines a Broad New Exception to Rule 26

Editor’s Note: The Colorado Supreme Court issued its opinion in In re Averyt v. Wal-Mart Stores, Inc. on November 7, 2011.

In Averyt v. Wal-Mart Stores, Inc., (No. 11SA66) the Colorado Supreme Court held that publicly available documents need not be disclosed pursuant to Rule 26.

In this case the plaintiff slipped and injured herself on a grease spill at a Wal-Mart store. At trial, as it had throughout discovery, Wal-Mart claimed that no such grease spill had occurred. The plaintiff impeached this testimony with questions based on a previously unproduced report from the City of Greeley documenting a grease spill that it had located during the trial. After its objection to the use of the report was denied by the trial court, Wal-Mart entered the report into evidence while rehabilitating its witness. The next morning, Wal-Mart informed the plaintiff that it had located a witness who remembered the spill, and numerous documents corroborating the existence of the spill. After it (not surprisingly) lost at trial, Wal-Mart sought and received a mistrial based in part on the plaintiffs’ purported failure to disclose the Greeley report.

The Colorado Supreme Court held that CRCP 26 did not apply to the Greeley report (and hence there was no duty to disclose it) because it was a public document equally available to all parties. It further held that “nothing in Rule 26 requires disclosure by a party of documents which it would not be required to produce, if requested, under C.R.C.P. 34.” The court held that “[w]e expressly adopt this rule because a contrary rule would require continuing disclosure by one party of voluminous information that the party discovers in the public domain . . . . The burden imposed upon the parties by such continuing disclosure outweighs any benefit of expediency gained by automatically sharing the information where, as here, the public information is readily available and equally accessible to both parties.”

Justice Marquez, joined by Justice Coats, concurred with the judgment in part and wrote separately to express the belief that the rule announced by the Court was too broad and allowed parties to hide responsive and relevant documents in their possession so long as the documents were “public.” The Justice expressed the concern that such documents might be exempt from disclosure even when they went to “disputed issues of knowledge.”

Interestingly no one commented on the irony of Wal-Mart, which appears to have violated its discovery obligations by concealing (or at least failing to locate) documents and a witness relating to the spill, being the party complaining about a failure of disclosure.

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on November 7, 2011.

Aaron Solomon: Rule 701 and Landowner Testimony

Editor’s Note: The Tenth Circuit Court of Appeals issued its opinion in James River Ins. Co. v. Rapid Funding, LLC on Friday, July 29, 2011.

In James River Ins. Co. v. Rapid Funding (No. 10-1145), the court held that Colorado Rule of Evidence 701 does not allow landowners to provide expert testimony regarding valuation without first qualifying as an expert. Colorado Rule of Evidence 701 (which mirrors F.R.E. 701) includes a committee comment noting that the rule is not intended to foreclose an owner from giving an opinion as to the value of his or her real property. The Tenth Circuit held that under Colorado law “landowner valuation testimony, if not based on technical or specialized knowledge, may be admitted as lay opinion testimony” but that the rule did not allow lay landowners to avoid Rule 702 and give testimony based on technical or specialized knowledge without qualifying as experts.

Aaron Solomon is an associate at Hale Westfall who focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on August 1, 2011.

Aaron Solomon: Deficiency Notices and Due Process

Editor’s Note: The Tenth Circuit Court of Appeals issued its opinion in Pater v. City of Casper on Monday, July 25, 2011.

In Pater v. City of Casper (No. 09-8084), the Tenth Circuit held that property owners may be able to state a due process claim when a deficiency notice is recorded against their property by a municipality.

In this case the City of Casper claimed that the plaintiffs were contractually obligated to reimburse the City for certain street improvements. Based on the Tenth Circuit’s description of the facts the City had some holes in its argument. A few weeks after making its demand for payment, without further communication and before received any response, the City recorded a “Notice of Apportionment and Assessment” against the plaintiffs’ property. This may have been an attempt to compel a settlement by clouding the plaintiffs’ title. If so, it failed. The plaintiffs sued, alleging, inter alia, a due process violation.

The District Court dismissed the due process claim and remanded various state claims. On appeal, the Tenth Circuit first held that the notices, while not judgment liens, nevertheless sufficiently encumbered the property to constitute a deprivation of a protected property interest. In reaching this conclusion the court relied in part on the City’s view that the notices were intended to “run with the land” and bind future purchasers. The plaintiffs were also apparently prepared to offer an expert to testify that a purchaser could not obtain tile insurance until the Notices were satisfied. The Tenth Circuit noted that the existence of a common law action for slander of title strongly suggested that the notices had the potential to cause a legal injury. Finally, the Tenth Circuit identified and resolved a circuit split. The Second Circuit has indicated a lis pendens trigger Due Process protection. The Second Circuit has held that it does not.

The court then considered whether the plaintiffs had been provided sufficient process to satisfy the fourteenth amendment. Because the District Court did not reach this issue, the Tenth Circuit remanded for it to address this issue in the first instance. However I think it is pretty clear from the facts that there was no process at all, at least pre-deprivation.

Aaron Solomon is an associate at Hale Westfall who focuses his practice on on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on July 25, 2011.