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Diamond House of SE Idaho, LLC v. City of Ammon

United States District Court, D. Idaho

April 5, 2019

CITY OF AMMON, Defendant.


          David C. Nye, Chief U.S. District Court Judge


         The Court has before it a motion for preliminary injunction. The Court has heard oral argument and the motion is at issue. For the reasons stated herein, the Court will GRANT the motion and enjoin the City of Ammon from enforcing Sections 1 and 6 of Ordinance 598 pending trial on the merits.

         II. FACTS [1]

         Between 2014 and 2016, the State of Idaho had only 974 licensed foster homes to care for approximately 1, 351 foster children. Due in part to a foster parent shortage, the State of Idaho licenses group foster homes, which are residential facilities that provide “group child care for seven (7) but not more than twelve (12) children as an alternative to parental care.” IDAPA The children who reside at group foster homes are in the custody of the State of Idaho. The state designates the organization that operates group foster homes as the children's custodians. Idaho Code § 16-1602(8)).

         In March of 2017, Karen Tornkvist (“Tornkvist”), a licensed foster parent and sole manager of Tornkvist Investments, LLC, and Diamond House of SE Idaho, LLC, (collectively referred to hereinafter as “Plaintiffs”) purchased 1098 Diamond Circle (hereinafter “Diamond House”) in Ammon, Idaho, with the intent to operate it as a group foster home. Diamond House is one of ten large homes in the Oak Ridge subdivision of Ammon (“Diamond Circle homes”), each with six bedrooms and eight bathrooms.

         The Diamond Circle homes are located in an R-1 zone, which allows for, among other uses, “one-family detached dwellings and accessory buildings, complying with all requirements of the zone including but not limited to setbacks and open space.” Ammon City Code § 10-14-2; 10-12-2(A). The terms “one-family” and “family” are not defined in the Ammon City Code.

         To receive a license from the State of Idaho to house foster children at Diamond House, Tornkvist needed to demonstrate Diamond House was in compliance with all applicable city ordinances. On April 17, 2017, Tornkvist called Ammon City Planner Scott Folsom (“Folsom”) to ask what she needed to do to operate Diamond House as a group foster home. Although, at the time, Ammon City Code did not expressly require a group foster home to obtain a special use permit to operate in an R-1 zone, Folsom told Tornkvist she should apply for a special use permit. When Tornkvist later asked Folsom for more information, Folsom told her that Diamond House was not zoned for a group foster home (although City Code did not exclude group foster homes from the R-1 zone at the time), and that the City Council was not accepting any more special use permit applications.

         Tornkvist subsequently called Ammon City Attorney Scott Hall (“Hall”) to ask what she could do to operate Diamond House as a group foster home. Hall advised Tornkvist to submit an application to Folsom. On October 4, 2017, Tornkvist emailed Folsom an application for a business license for Diamond House. The application listed four homes-Diamond House, plus three identical houses also located in Diamond Circle-Tornkvist intended to buy to operate as group foster homes. On October 17, 2017, Folsom wrote to Tornkvist to reject her application, stating, in part, “[t]he numbers of children that could be housed in the four units you are suggesting would in our opinion change the dynamics of the neighborhood in regard to the number of children and the potential of integrating the children in your care into the neighborhood community.” Dkt. 1, ¶ 56.

         Tornkvist met with Folsom and Ammon City Mayor Dana Kirkham on November 1 and November 21, 2017, to request reconsideration of Folsom's decision. Tornkvist suggests Folsom told her she should apply to rezone the Diamond Circle buildings to R2-A (a multi-family zone allowing, among other things, townhomes, condominiums, and apartment buildings containing not more than eight units). However, on December 14, 2017, in response to her request for more information on how to petition to rezone the buildings on Diamond Circle to R-2A, Folsom informed Tornkvist by e-mail that “the Diamond Street property has been through multiple hearings for rezone which have been denied because they were not consistent with the residential zoning in the surrounding neighborhoods.” Id., ¶ 73.

         Discouraged by Folsom's statement, Tornkvist did not petition to rezone the property, and instead attempted to explore other options. However, unbeknownst to Tornkvist, the Ammon City Council unanimously enacted Ordinance 598 on December 21, 2017, to amend city code to include a new definition for foster family care homes and to restrict group foster homes of any size to the R2-A zone and above. Specifically, Section 1 of Ordinance 598 now defines foster family care homes as, “a location in the City where a minor or minors have been placed in a ward, group home, private home, or any other facility approved as an Idaho State-certified foster caregiver. This term shall not be construed to limit or restrict people within residential zones from serving as foster parents in their own home or residence.” Ammon City Code § 10-2-1. Section 6 of Ordinance 598 amended the Ammon City Code to read, in part: “The following uses shall be permitted in the R2-A Residence code. . . Assisted Living Centers, Foster family care homes or Convalescent Homes for not more than twenty (20) residents.” Ammon City Code § 10-16-2. The aforementioned code provisions limit group foster homes of any size to the R2-A zone and above. While restricting group foster homes from the R-1 zone, Ordinance 598 did not amend portions of the Ammon City Code which allow day care facilities for up to twelve children to operate in an R-1 zone, or any number of unrelated adults to live together in an R-1 zone. See, Ammon City Code §§ 6-3-2(Q), 10-16-2(B), 10-17-2(B).[2]

         On December 5, 2017, Allison Brace of the Intermountain Fair Housing Council (IFHC) wrote a letter to the City on Diamond House's behalf, stating the Fair Housing Act prohibits the City of Ammon from treating foster children differently from biological children. On January 4, 2018, Folsom replied to Brace by letter, stating, in part: “[G]roup homes do not qualify as being protected by ‘familial status' under the Fair Housing Act because the employees of the group home are not domiciled at the group home with the minor children over whom they have guardianship.” Dkt. 1, ¶ 78, In response, Tornkvist revised her business plan to employ a person as a house parent who would be domiciled at the property with the children and serve as an agent of Diamond House.

         On January 10, 2018, Tornkvist emailed Folsom, informing him she had revised her plan to employ a house parent who would be domiciled at the property, and asking him again to reconsider her application. Folsom and Tornkvist exchanged subsequent emails about a potential house parent, but, on January 24, 2018, Folsom rejected Tornkvist's request for reconsideration. Folsom retired from the City of Ammon at the beginning of May 2018. On May 10, 2018, counsel from IFHC emailed Folsom's successor, Cindy Donovan, asking her to reconsider Folsom's decision. On May 15, 2018, City Attorney Hall responded that the City would not reconsider Folsom's decision. Because the City of Ammon would not certify that Diamond House complied with its zoning ordinance, the State of Idaho has not approved Diamond House's application to operate as a group foster home. As a result, Tornkvist purchased a substitute property in Idaho Falls on July 6, 2018, with the intent of leasing that property to Diamond House.

         Plaintiffs filed the instant suit on August 29, 2018, alleging Ordinance 598 violates the Fair Housing Act and Plaintiffs' right to equal protection of the law under the Fourteenth Amendment. At issue before the Court is Plaintiffs' request for a preliminary injunction enjoining the City of Ammon from enforcing Sections 1 and 6 of Ordinance 598 as facially discriminatory under the Fair Housing Act.


         Injunctive relief “‘is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.'” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 1, 22 (2008) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). A party seeking a preliminary injunction must establish: (1) a likelihood of success on the merits; (2) likely irreparable harm in the absence of a preliminary injunction; (3) that the balance of equities weighs in favor of an injunction; and (4) that an injunction is in the public interest. Id. at 20.

         Although a plaintiff seeking injunctive relief must satisfy all four of the Winter factors, the Ninth Circuit has expressly affirmed a “sliding scale” approach post-Winter. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Under this approach, “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. (citations omitted).

         IV. ANALYSIS

         A. Type of Injunction Sought

          A preliminary injunction can take two forms. A prohibitory injunction prohibits a party from taking action and “preserve[s] the status quo pending a determination of the action on the merits.” Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988). A mandatory injunction “orders a responsible party to take action.” Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996). A mandatory injunction “‘goes well beyond simply maintaining the status quo, '” requires a heightened burden of proof, and is “‘particularly disfavored.'” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoting Anderson v. U.S., 612 F.2d 1112, 1114 (9th Cir. 1980)). In general, mandatory injunctions “‘are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.'” Id. (quoting Anderson, 612 F.2d at 1115).

         The City suggests Plaintiffs seek a “particularly disfavored affirmative or mandatory injunction” because the “effect of Plaintiffs' request would be to rewrite Ammon's ordinance, or direct the City as to the exercise of its legal authority.” Dkt. 17, at 19. However, the relevant “status quo” for purposes of an injunction “refers to the legally relevant relationship between the parties before the controversy arose.” Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014) (emphasis in original); see also Regents of Univ. of California v. Am. Broad. Companies, Inc., 747 F.2d 511, 514 (9th Cir. 1984) (for purposes of injunctive relief, the status quo means “the last uncontested status which preceded the pending controversy”) (internal quotation marks and citation omitted).

         Here, Plaintiffs contest the enforceability of the City's new ordinance. The status quo before Plaintiffs attempted to license Diamond House as a foster family care home did not bar group foster homes from operating in an R-1 zone. By amending City Code to limit foster family care homes to an R2-A zone, the City of Ammon affirmatively changed the status quo. Further, Plaintiffs challenge Ordinance 598's isolation of foster family care homes to the R2-A zone. The result of an injunction here may be that, under city ordinance, Diamond House could operate as a group foster home. But the requested injunction will not order the City to “take action” and approve Plaintiffs' application. Marlyn Nutraceuticals, Inc., 571 F.3d at 879. Like other injunctions that prohibit enforcement of a new law or policy, Plaintiffs' requested injunction is prohibitory, not mandatory. Arizona Dream Act Coal., 757 F.3d at 1061 (injunctions that prohibit enforcement of a new law or policy are prohibitory); see also Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 732 n. 13 (9th Cir. 1999) (requested preliminary injunction against enforcement of new zoning ordinance was not subject to heightened burden of proof since relief sought was a prohibitory injunction that preserved the status quo pending a decision on the merits).

         B. Subject Matter Jurisdiction

         In Response to Plaintiffs' Motion for a Preliminary Injunction, the City primarily challenges the Court's subject matter jurisdiction, contending Plaintiffs lack standing and fail to satisfy finality or ripeness barriers to jurisdiction. The City suggests Plaintiffs do not have standing to bring a Fair Housing Act (“FHA”) claim because a staffed group foster home cannot qualify for “familial status” protection under the FHA. The City also argues Plaintiffs' claims are not ripe because, although Tornkvist engaged in extensive correspondence with the City regarding licensing Diamond House, Plaintiffs have never sought, or been denied, the formal approvals necessary to ...

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