Summers v. City of Fitchburg

United States Court of Appeals
For the First Circuit

No. 18-1725

JEFFREY D. SUMMERS and JEFFREY'S HOUSE INC.,

Plaintiffs, Appellants,

v.

CITY OF FITCHBURG ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Barron, Selya, and Boudin,
Circuit Judges.

Marcus L. Scott, with whom Barbara Collins and ScottCollins,
LLP were on brief, for appellants.
Gregor A. Pagnini, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,
for appellees.
Maura Healey, Attorney General, and Julie E. Green, Assistant
Attorney General, on brief for Commonwealth of Massachusetts,
amicus curiae.

October 8, 2019
 SELYA, Circuit Judge. This appeal arises from the

enforcement of a state law by the City of Fitchburg (the City).

That law requires the plaintiffs to install sprinklers in the four

sober houses that they operate for recovering addicts. The

plaintiffs claim that the City's refusal to exempt the sober houses

from the sprinkler requirement violates the reasonable

accommodation provisions of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101-12213, and the Fair Housing Act, 42

U.S.C. §§ 3601-3631, as amended by the Fair Housing Amendments Act

(FHAA). The district court granted summary judgment for the

defendants — the City and a coterie of municipal officials — on

the ground that the plaintiffs failed to show that an exemption

from the sprinkler requirement was either reasonable or necessary

to allow recovering addicts to live in and benefit from the sober

houses. Discerning no error in the district court's conclusion

that the requested accommodation was not reasonable, we affirm.

I. BACKGROUND

We briefly rehearse the relevant events and travel of

the case, taking the facts and all reasonable inferences therefrom

in the light most agreeable to the non-moving parties (here, the

plaintiffs). See Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.

2011).

Plaintiffs-appellants Jeffrey D. Summers and his

nonprofit organization, Jeffrey's House, Inc., operate four sober

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houses in Fitchburg, Massachusetts. These facilities provide

supportive residences for individuals recovering from alcohol

and/or drug addiction. Starting in 2013, municipal officials began

to enforce a variety of zoning and building-code provisions that

they thought the plaintiffs were violating. As an example, at

least three of the sober houses were apparently operating in

violation of the use restrictions set forth in the City's zoning

ordinance. At the plaintiffs' request, the City granted an

accommodation under the ADA and the FHAA to allow the plaintiffs

to operate those sober houses despite the use restrictions.

In July of 2014, municipal officials informed the

plaintiffs that they were required, pursuant to a state law that

applies to lodging or boarding houses with six or more unrelated

residents, to install sprinkler systems in the three sober houses

they were then operating. See Mass. Gen. Laws ch. 148, § 26H (the

Sprinkler Law). The plaintiffs were given six months to bring

their sober houses into compliance but did not do so.

Consequently, the City fined them $1,000 and instituted an

enforcement action in the local housing court. Cf. id. § 27

(authorizing a fine for "[a]ny owner of a building who, within six

months after having received an order from the marshal under

section twenty-six, fails to comply with the requirement of such

order").

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 At a housing court hearing in the summer of 2015, the

plaintiffs suggested that, pending resolution of the dispute over

the sprinkler requirement, they would reduce the occupancy of each

sober house to five or fewer residents (thus rendering the

Sprinkler Law inapplicable). Municipal officials asked the

plaintiffs to memorialize this suggestion in writing and agree to

allow sporadic inspections to verify the reduced occupancy. At

that point, the plaintiffs balked: they reneged on the offer,

asserting that the Sprinkler Law did not apply to sober houses,

that periodic inspections would disrupt the residents, and that

the cost of sprinklers would be prohibitive.

This dispute simmered until September 14, 2015, when the

plaintiffs sued the City and a number of municipal officials in

the United States District Court for the District of Massachusetts.

Their complaint raised a gallimaufry of federal and state claims

focused on the defendants' efforts to enforce the zoning ordinance

and building code. The district court dismissed most of the

complaint under Federal Rule of Civil Procedure 12(b)(6)

(including the claims of disparate treatment and disparate impact

under both the ADA and the FHAA) but allowed the plaintiffs to

proceed with their reasonable accommodation claims under the same

statutes.

After the completion of discovery, the district court

granted the defendants' motion for summary judgment on the

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remaining claims. As to the reasonable accommodation claims, the

court concluded that the plaintiffs had failed to show that their

myriad concerns about the sprinkler requirement (including its

cost and the specter of disruption to residents from sporadic

inspections) rendered an accommodation to the Sprinkler Law either

reasonable or necessary. The court also determined that the

plaintiffs had voluntarily withdrawn any proposal to reduce

occupancy to fewer than six residents per sober house.

This timely appeal ensued. In it, the plaintiffs

challenge only the district court's entry of summary judgment on

their ADA and FHAA reasonable accommodation claims.

II. ANALYSIS

We review the district court's entry of summary judgment

de novo. See Avery, 661 F.3d at 693. "We will affirm only if the

record reveals 'that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.'"

Id. (quoting Fed. R. Civ. P. 56(a)).

In this instance, appellate review is simplified by the

procedural posture in which the appeal arrives on our doorstep.

The Local Rules of the United States District Court for the

District of Massachusetts provide in pertinent part:

Motions for summary judgment shall include a
concise statement of the material facts of
record as to which the moving party contends
there is no genuine issue to be tried, with
page references to affidavits, depositions and

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 other documentation. . . . A party opposing
the motion shall include a concise statement
of the material facts of record as to which it
is contended that there exists a genuine issue
to be tried, with page references to
affidavits, depositions and other
documentation. . . . Material facts of record
set forth in the statement required to be
served by the moving party will be deemed for
purposes of the motion to be admitted by
opposing parties unless controverted by the
statement required to be served by opposing
parties.

D. Mass. R. 56.1. When the defendants moved for summary judgment,

they filed the required statement of undisputed material facts.

Although the plaintiffs filed a brief statement of their own with

their opposition, they did not respond to the vast majority of the

defendants' factual assertions and included only two citations to

documents in the record.

We have made it plain that "'[v]alid local rules are an

important vehicle by which courts operate' and 'carry the force of

law.'" Schiffmann v. United States, 811 F.3d 519, 525 (1st Cir.

2016) (quoting Air Line Pilots Ass'n v. Precision Valley Aviation,

Inc., 26 F.3d 220, 224 (1st Cir. 1994)). Rules like Local Rule

56.1 "were developed by the district courts in this circuit in

response to this court's concern that, absent such rules, summary

judgment practice could too easily become a game of cat-and-mouse,

giving rise to the 'specter of district court judges being unfairly

sandbagged by unadvertised factual issues.'" Ruiz Rivera v. Riley,

209 F.3d 24, 28 (1st Cir. 2000) (quoting Stepanischen v. Merchs.

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Despatch Transp. Corp., 722 F.2d 922, 931 (1st Cir. 1983)). Here,

the plaintiffs flouted Local Rule 56.1 and allowed the defendants

to map the boundaries of the summary judgment record. Such actions

have consequences, and the district court deemed the defendants'

statement of undisputed material facts admitted. Given the clarity

of Local Rule 56.1 and the important function that it serves, the

district court was fully justified in limiting the summary judgment

record to the four corners of the defendants' statement of

undisputed material facts. See United States v. McNicol, 829 F.3d

77, 80-81 (1st Cir. 2016); Schiffmann, 811 F.3d at 524-25. For

the same reasons, we too deem the defendants' statement of

undisputed material facts admitted and, thus, treat those facts as

controlling.

Although the plaintiffs attempt to raise a plethora of

claims in this venue, their only preserved claims involve their

challenge to the City's refusal to exempt the sober houses from

the Sprinkler Law under the FHAA and the ADA. The FHAA bars

discriminatory housing practices based on an individual's

handicap. 42 U.S.C. § 3604(f). Among other prohibitions, the

statute "outlaws discrimination 'in the terms, conditions, or

privileges of sale or rental of a dwelling, or in the provision of

services or facilities in connection with such dwelling, because

of a handicap' of an individual." Astralis Condo. Ass'n v. Sec'y,

U.S. Dep't of Hous. & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010)

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(quoting 42 U.S.C. § 3604(f)(2)). Title II of the ADA more broadly

prohibits public entities (such as the City) from discriminating

based on disability. See 42 U.S.C. § 12132. Both statutes apply

to municipal zoning and building-code decisions. See Valencia v.

City of Springfield, 883 F.3d 959, 967 (7th Cir. 2018).

As a general matter, three theories of liability are

cognizable under the FHAA and the ADA: disparate treatment,

disparate impact, and failure to make reasonable accommodations.

See Nunes v. Mass. Dep't of Corr., 766 F.3d 136, 144-45 (1st Cir.

2014) (ADA); Astralis, 620 F.3d at 66 (FHAA). The plaintiffs'

arguments on appeal rest on the reasonable accommodation theory.

In this regard, the FHAA defines discrimination to include "a

refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary

to afford [a handicapped individual] equal opportunity to use and

enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). To prevail on such

a reasonable accommodation claim, a plaintiff must show a

qualifying handicap, the defendant's actual or constructive

knowledge of that handicap, a request for a specific accommodation

that is both reasonable and necessary to allow the handicapped

individual an equal opportunity to use and enjoy the particular

housing, and the defendant's refusal to make the requested

accommodation. See Astralis, 620 F.3d at 67. In a similar vein,

the ADA requires that a public entity "make reasonable

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modifications in policies, practices, or procedures when . . .

necessary to avoid discrimination on the basis of disability,

unless the public entity can demonstrate that making the

modifications would fundamentally alter the nature of the service,

program, or activity." 28 C.F.R. § 35.130(b)(7)(i). For present

purposes, the elements of reasonable accommodation claims under

the FHAA and the ADA do not differ in any meaningful respect. See

Valencia, 883 F.3d at 967 & n.9; cf. Astralis, 620 F.3d at 66

(explaining that case law under the ADA "is generally persuasive

in assessing handicapped discrimination claims under the FHAA").

Because both the district court's rescript and the parties' briefs

discuss the plaintiffs' reasonable accommodation claims under the

rubric of the FHAA, we follow that path. Additionally, we assume

— solely for ease in exposition — that recovering addicts qualify

as handicapped individuals and that municipal officials knew of

the handicap at all times relevant to this litigation.1

The plaintiffs' argument proceeds along the following

lines. Installing sprinklers in the sober houses would be costly.

Without relief from this requirement, the plaintiffs would have to

either raise the prices charged to recovering addicts or reduce

1 The FHAA refers to an individual's "handicap" rather than
his "disability" (the term favored by the ADA). There is no
substantive difference between the two terms. See Oconomowoc
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 782
(7th Cir. 2002). In deference to the rubric of the FHAA, we use
the term "handicap" throughout this opinion.

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the occupancy of the sober houses. Either way, fewer individuals

would be able to enjoy the benefit of residing in the sober houses.

Enforcing the Sprinkler Law would, therefore, threaten the

recovery of the displaced residents and undermine the vital purpose

that sober houses serve.

This argument does not withstand scrutiny because the

plaintiffs fail to show that their request for an exemption from

the Sprinkler Law is reasonable. Inasmuch as the requested

accommodation fails the reasonableness requirement, we start — and

end — there.

The reasonableness requirement calls for a factbound

balancing of the benefits that would accrue to the handicapped

individual against the burdens that the accommodation would

entail. See Valencia, 883 F.3d at 968; Anderson v. City of Blue

Ash, 798 F.3d 338, 362 (6th Cir. 2015); Scoggins v. Lee's Crossing

Homeowners Ass'n, 718 F.3d 262, 272 (4th Cir. 2013). The burdens

that may be given weight in this balancing include both financial

costs and practical detriments to the City, as well as less

tangible effects on the public. See Valencia, 883 F.3d at 968.

Typically, "[a]n accommodation is 'reasonable' when it imposes no

'fundamental alteration in the nature of the program' or 'undue

financial and administrative burdens'" on the defendant. Batista

v. Cooperativa de Vivienda Jardines de San Ignacio, 776 F.3d 38,

43 (1st Cir. 2015) (quoting Howard v. City of Beavercreek, 276

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F.3d 802, 806 (6th Cir. 2002)). Thus, a plaintiff is not entitled

to a waiver of a zoning or building-code rule if the waiver "is so

'at odds with the purposes behind the rule that it would be a

fundamental and unreasonable change.'" Valencia, 883 F.3d at 968

(quoting Oconomowoc Residential Programs, Inc. v. City of

Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002)).

That a requested accommodation poses a threat to public

safety has obvious relevance to the reasonableness of the

accommodation. See Scoggins, 718 F.3d at 272-73; Lapid-Laurel,

L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d 442, 462-63 (3d Cir.

2002). This case is a paradigmatic example of that principle:

exempting the plaintiffs from installing sprinklers would not be

a reasonable accommodation because such an exemption would thwart

the very salutary purpose of the Sprinkler Law. After all,

sprinkler laws play a critical role in fire prevention and, thus,

in public safety. Making this point, the Commonwealth of

Massachusetts has asserted, in an amicus brief, that exempting the

sober houses from the sprinkler requirement would create an

unacceptable safety risk to both the residents and the public.

The plaintiffs have offered us no reason to doubt the truth of

this commonsense assertion. Residents of a sober house and those

who live nearby are entitled to the same state-mandated level of

protection against fires as their fellow community members.

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 The plaintiffs' argument for an exemption from the

Sprinkler Law fails in light of the City's strong interest in

protecting public safety. Many building-code rules with safety

justifications impose costs on the owner or occupant of a dwelling.

Without a specific showing that the financial burden of the

building-code rule outweighs its safety justification, the desire

to alleviate those costs is, on its own, insufficient to render an

accommodation reasonable. Here, the plaintiffs provide no basis

for finding that the financial burden of compliance with the

Sprinkler Law is somehow disproportionate to the public safety

gains that flow from requiring them to install sprinklers. The

closest that they come is their naked estimate that installing

sprinklers would cost between $35,000 - $40,000 for each sober

house. Yet there is no evidence as to the financial status of

either the plaintiffs or the residents. Nor is there any evidence

of the extent to which the cost of the sprinklers, amortized over

their useful life, would affect prices charged to residents. Seen

in this light, the plaintiffs' suggestion that the cost of

installing sprinklers is unreasonable is woven entirely out of

wispy strands of speculation and surmise. And beyond a temporary

disruption during construction, the record evidence does not show

that installing sprinklers would interfere with the therapeutic

benefits that the residents reap from living in the sober houses.

On this record, there is no principled way for us to conclude that

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the sober house residents would accrue enough financial and/or

therapeutic benefits from a Sprinkler Law exemption to outweigh

the safety risks that they and the public would face if the

plaintiffs were allowed to forgo sprinklers.2

The plaintiffs have a fallback position. They argue

that the record reflects factual disputes as to whether municipal

officials engaged in good faith to reach an agreed-upon

accommodation with respect to the Sprinkler Law. The premise on

which this argument rests is sound: "[t]he HUD guidelines

contemplate that parties may engage in an 'interactive process' to

discuss the need for the accommodation and possible alternatives

if the [defendant] refuses to grant a requested accommodation on

the ground that it is not reasonable." Astralis, 620 F.3d at 68

n.3 (quoting Joint Statement of Dep't of Hous. & Urban Dev. & Dep't

of Justice, Reasonable Accommodations Under the Fair Housing Act

7 (May 17, 2004)). Consequently, a party's decision to "short-

circuit[] the interactive process" may well be relevant in

determining liability under a reasonable accommodation theory.

Id. at 69.

Here, however, the conclusion that the plaintiffs draw

is unsupported. Accepting the defendants' statement of undisputed

2 Because the plaintiffs' request for an exemption from the
Sprinkler Law fails the reasonableness requirement, we need not
address the district court's additional conclusion that the
requested accommodation was also unnecessary.

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material facts, as we must, see D. Mass. R. 56.1, we discern no

evidentiary basis from which a reasonable factfinder could

conclude that municipal officials did not attempt in good faith to

resolve their differences with the plaintiffs. For instance,

municipal officials agreed to an exemption from the zoning

ordinance's use restrictions once the plaintiffs formally

requested an accommodation. So, too, the notice of the Sprinkler

Law violations gave the plaintiffs a six-month grace period to

achieve compliance. See Mass. Gen. Laws ch. 148, § 27. And in

response to the plaintiffs' proposal to reduce the occupancy of

each sober house to fewer than six residents, the City reasonably

requested that the plaintiffs memorialize such a commitment in

writing and allow periodic inspections. The plaintiffs then

withdrew their reduction-of-occupancy proposal rather than agree

to the City's conditions.3 These undisputed facts amply

demonstrate that municipal officials worked with the plaintiffs to

ensure that the sober houses complied with state and local laws

even in the face of the plaintiffs' intransigence.

To say more about the reasonable accommodation claim

would be to paint the lily. The record on appeal is defined by

3 The plaintiffs contend that the district court
misinterpreted the record in concluding that they withdrew their
reduction-of-occupancy proposal. Given the plaintiffs' failure to
contest the defendants' statement of undisputed material facts, we
reject this contention.

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the plaintiffs' failure to controvert the defendants' statement of

undisputed material facts, and nothing in that record supports the

plaintiffs' conclusory allegations that municipal officials either

harassed them for years or failed to give fair consideration to

their accommodation requests. The bare fact that the City did not

yield to the plaintiffs' entreaty for an exemption from the

Sprinkler Law does not, without more, evince a lack of good faith.4

In a last-ditch effort to salvage their case, the

plaintiffs claim that the Sprinkler Law discriminates against

disabled individuals because it exempts certain structures (e.g.,

buildings that house six or more family members, fraternity houses

and dormitories, rest homes, and licensed group homes). See id.

§ 26H; cf. Brockton Fire Dep't v. St. Mary Broad St., LLC, 181 F.

Supp. 3d 155, 157 (D. Mass. 2016) (finding application of Sprinkler

Law to sober houses violative of Massachusetts Zoning Act for this

reason). Fairly viewed, this argument is an attempt to challenge

the district court's dismissal of the plaintiffs' disparate

treatment and disparate impact claims. Withal, the argument is

4In their appellate briefing, the plaintiffs conflate the
distinct disputes that arose over the zoning ordinance and the
Sprinkler Law. The two disputes began at different times, and the
parties resolved the dispute over the zoning ordinance before the
City sent notice threatening to impose fines if the plaintiffs did
not install sprinklers. The City's decision to grant a reasonable
accommodation with respect to the zoning ordinance did not give
the plaintiffs carte blanche to ignore other zoning and building-
code provisions.

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not developed in any meaningful way and, thus, is waived. See

Campbell v. Ackerman, 903 F.3d 14, 18 n.4 (1st Cir. 2018) (deeming

waived any argument "made in a cursory manner bereft of any

developed rationale"); United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (similar).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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