The Ohio House, LLC v. City of Costa Mesa

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE OHIO HOUSE, LLC, No.22-56181 Plaintiff-Appellant, D.C. No. 8:19-cv-01710v. JVS-GJS CITY OF COSTA MESA, a municipal corporation, ORDER AND AMENDED Defendant-Appellee, OPINION and BRANDON STUMP, an individual; RYAN STUMP, an individual; KEITH STUMP, an individual; BUCKEYE RECOVERY TREE COLLECTIVE, LLC, a California limited liability company; BUCKEYE TREE COLLECTIVE, LLC, a California limited liability company; CHADWICK HOUSE, LLC, a California limited liability company; ASHBROOKE, LLC, an Ohio limited liability company, Counter-Defendants. 2 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted March 29, 2024 Pasadena, California Filed December 4, 2024 Amended April 24, 2025 Before: Ronald M. Gould, Sandra S. Ikuta, and Danielle J. Forrest, Circuit Judges. Opinion by Judge Forrest; Special Concurrence by Judge Ikuta; Concurrence by Judge Forrest; SUMMARY* Fair Housing Discrimination The panel filed: (1) an order amending its opinion, withdrawing Judge Gould’s partial dissent, and denying a petition for rehearing en banc; and (2) an amended opinion, accompanied by Judge Ikuta’s special concurrence and Judge Forrest’s concurrence. In its amended opinion, the panel affirmed the district court’s partial summary judgment to the City of Costa Mesa * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 3 and denial of The Ohio House LLC’s post-verdict motions in Ohio House’s action challenging the City’s zoning laws as discriminatory against the disabled in violation of the Fair Housing Act (FHA), California’s Fair Employment and Housing Act (FEHA), and the California Planning and Zoning Law, California Government Code § 65008. Ohio House operates a sober-living facility in a multiplefamily residential (MFR) zone. The City notified Ohio House that the property was subject to Ordinance 15-11, which requires that all group homes with over six residents located in MFR zones obtain a conditional-use permit and satisfy a separation requirement. The City denied Ohio House’s application for a conditional-use permit because the property did not meet the separation requirement, and also denied Ohio House’s request for a reasonable accommodation or waiver of the separation requirement. Addressing Ohio House’s disparate treatment claim, the panel agreed with the parties that whether the City’s zoning code facially subjects the disabled to unlawful disparate treatment is a question of law that should have been resolved at summary judgment. On the merits, the panel held that Ohio House failed to establish facial disparate treatment as a matter of law because the differential treatment under the City’s group-living regulations facially benefits the protected class of disabled people. The district court’s error in submitting this matter to the jury was harmless because the jury correctly concluded that Ohio House failed to prove disparate treatment. The panel affirmed the district court’s summary judgment for the City on Ohio House’s disparate impact claim, agreeing with the district court that Ohio House failed 4 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA to prove a significant, adverse, and disproportionate effect on a protected group. The panel affirmed the district court’s denial of judgment as a matter of law on Ohio House’s discriminatory statements claim. Ohio House’s contention that the City violated the FHA’s and the FEHA’s prohibition against discriminatory statements by enacting a facially discriminatory zoning code fails for the same reasons that the disparate treatment claim fails. Comments made by individual city employees suggesting that they had a discriminatory purpose for adopting the challenged zoning regulations are, standing alone, insufficient to overturn the jury’s verdict. The panel affirmed the district court’s denial of judgment as a matter of law on Ohio House’s claim that the City interfered with Ohio House aiding or encouraging others’ exercise of their rights under the FHA because a reasonable jury could find that the City acted for a lawful purpose. The panel affirmed the district court’s denial of judgment as a matter of law on Ohio House’s facial challenge to the City’s reasonable-accommodation ordinance, concluding that (1) the City’s reasonable-accommodations ordinance is not facially inconsistent with the FHA; and (2) the jury had an evidentiary basis for finding that Ohio House’s requested accommodation—granting an exception to the separation requirement—was unreasonable. Because the jury ultimately reached the correct outcome, it was harmless error for the district court to submit this purely legal issue to the jury. Finally, the panel affirmed the district court’s denial of Ohio House’s post-trial renewed motion for judgment as a THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 5 matter of law on Ohio House’s § 65008 claim because it was time-barred. Specially concurring, Judge Ikuta would hold that to establish a facial disparate treatment claim under the FHA and FEHA, a plaintiff must show that the protected group suffered unfavorable treatment compared to the unprotected group and not merely show that the protected group has been treated differently than the unprotected group. Concurring, Judge Forrest agreed with Judge Ikuta that a plaintiff should be required to prove adverse facially differential treatment as part of its prima facie case, but disagreed that a prima facie showing of unfavorable treatment is required under Ninth Circuit precedent. COUNSEL Christopher Brancart (argued) and Elizabeth Brancart, Brancart & Brancart, Pescadero, California, for PlaintiffAppellant. Mary-Christine Sungaila (argued), Charles M. Kagay, Jocelyn Sperling, and Greg Wolff, Complex Appellate Litigation Group LLP, Newport Beach, California; Kimberly H. Barlow, Jones & Mayer, Fullerton, California; Samantha E. Dorey, Seymour B. Everett, and Christopher D. Lee, Everett Dorey LLP, Irvine, California; for DefendantAppellee. Norman A. Dupont, Jay A. Tufano, Sage Ertman, and Patrick K. Bobko, Ring Bender LLP, Costa Mesa, California; for Amicus Curiae League of California Cities. Lisa C. Ehrlich and Kenneth J. Sugarman, Deputy Attorneys General; James F. Zahradka II and Christina B. Arndt, 6 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA Supervising Deputy Attorneys General; Michael L. Newman and Daniel A. Olivas, Senior Assistant Attorneys General; Rob Bonta, California Attorney General; Office of the California Attorney General, San Francisco, California; for Amici Curiae California Civil Rights Department and California Department of Housing and Community Development. Zoila E. Hinson and Reed Colfax, Relman Colfax PLLC, Washington, D.C., for Amici Curiae Hair Housing Advocates of Northern California, Fair Housing Council of Orange County, Fair Housing Napa Valley, Intermountain Fair Housing Council, Montana Fair Housing, National Fair Housing Alliance, Northwest Fair Housing Alliance, Project Sentinel, and Southwest Fair Housing Council. Autumn M. Elliott and Zeenat Hassan, Disability Rights California, Los Angeles, California; M. Michelle Uzeta, Disability Rights Education & Defense Fund, Berkeley, California; for Amici Curiae Disability Rights California, Disability Rights Education and Defense Fund, and Twenty Other Public Interest Organizations. ORDER The opinion filed on December 4, 2024, and published at 122 F.4th 1097 , is amended. The amended opinion is filed concurrently with this order, accompanied by Judge Ikuta’s special concurrence and Judge Forrest’s concurrence. Judge Gould’s partial dissent is withdrawn. With these amendments, the petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 7 OPINION FORREST, Circuit Judge: Plaintiff-Appellant The Ohio House, LLC operates a sober-living home located in Costa Mesa, California (City) for individuals recovering from addiction. In this case, Ohio House challenges the City’s zoning laws as discriminatory against the disabled in violation of the Fair Housing Act (FHA), codified as amended by the Fair Housing Act Amendments of 1988 at 42 U.S.C. § 3601 et seq.; California’s Fair Employment and Housing Act (FEHA); and the California Planning and Zoning Law, California Government Code § 65008. In recent years, the City has changed its regulations governing the ability of group-living facilities to operate in residential zones. Some such facilities are categorically barred from operating in these zones, and others that provide housing for individuals with a disability recognized under federal or state law may operate if they meet certain conditions, including a separation requirement from other such facilities. Ohio House cannot operate its facility under the City’s current zoning regulations because it cannot satisfy the separation requirement, and the City denied Ohio House a variance from this requirement, which Ohio House had requested as an accommodation. Thus, Ohio House brought this action to enjoin enforcement of the City’s zoning requirements based on the above troika of fairhousing laws, advancing multiple theories of disability discrimination. The district court granted partial summary judgment to the City, and a jury returned a verdict in favor of the City on Ohio House’s remaining claims. After the 8 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA jury’s verdict, the district court denied Ohio House’s motions for judgment as a matter of law and for a new trial. On appeal, Ohio House challenges the district court’s summary judgment and post-verdict rulings. We affirm. I. BACKGROUND A. Costa Mesa’s Zoning Ordinances Costa Mesa regulates zoning “to promote the public health, safety, general welfare and [to] preserve and enhance the aesthetic quality of the city by providing regulations to ensure that an appropriate mix of land uses occur in an orderly manner.” Costa Mesa Municipal Code (CMMC) § 13-2. Part of the zoning code regulates group-living facilities. Originally, these types of facilities were loosely defined. For example, from at least 2000 until 2014, “[g]roup home” was defined as “[a] residential facility designed or used for occupancy by persons that do not constitute a family.” A small boardinghouse was defined as “[a] dwelling which is designed or used to accommodate a maximum of 3 guests, where guestrooms are provided in exchange for an agreed payment of a fixed amount of money or other compensation based on the period of occupancy.” And a large boardinghouse was defined as “[a] dwelling which has all of the characteristics of a small boardinghouse and which accommodates 4 or more guests . . . [and] includes, but is not limited to, a residence for a sorority or fraternity.” “Sober living home” was not originally a defined category. The regulations allowed the City Council to adopt standards to evaluate “group home applications,” but the record on appeal is unclear about how much these facilities were regulated. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 9 Beginning in 2014, the City expanded its zoning code and enacted new rules governing group-living facilities, including, relevant here, group housing for disabled persons, CMMC §§ 13-310 to -312; Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 806 (9th Cir. 2023), which includes “persons recovering from drug and/or alcohol addiction,” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142 , 1156–57 (9th Cir. 2013). In the City’s view, federal and state legislation had incentivized a “significant increase in the number of single- and multifamily homes being utilized as alcohol and drug recovery facilities for large numbers of individuals,” which led to “overconcentration” of sober living homes in residential communities.1 The City concluded this produced “deleterious” effects “to the residential character” of its communities and “generated secondary impacts including, but not limited to neighborhood parking shortfalls, overcrowding, inordinate amounts of second-hand smoke, and noise; and the clustering of sober living facilities in close proximity to each other creating near neighborhoods of sober living homes.” It was also concerned that these changes increased “institutionalization,” harming the very people sober living homes were supposed to serve: [H]ousing inordinately large numbers of unrelated adults in a single dwelling or congregating sober living homes in close proximity to each other does not provide the handicapped with an opportunity to “live in — 1 — The City largely tied the increased number of group homes to the 2000 California Substance Abuse and Crime Prevention Act, which allowed for diversion from incarceration for treatment, and the federal Affordable Care Act, which expanded coverage for substance-abuse treatment. 10 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA normal residential surroundings,” but rather places them into living environments bearing more in common with the types of institutional/campus/dormitory living that the FEHA and [FHA] were designed to provide relief from for the handicapped, and which no reasonable person could contend provides a life in a normal residential surrounding. By regulating group housing for the disabled, the City was “attempting to strike a balance between the City’s and residents’ interests of preserving the characteristics of residential neighborhoods and to provide opportunities for the handicapped to reside in such neighborhoods that are enjoyed by the non-handicapped.” Ordinance 14-13 established the framework for the City’s comprehensive plan to address “overconcentration” and “institutionalization” and amended the definitions for group housing. CMMC §§ 13-310 to -312. Under the new regulatory scheme, “group home,” is defined as a “facility that is being used as a supportive living environment for persons who are considered handicapped under state or federal law,” and “boardinghouse” is defined as “[a] residence or dwelling, other than a hotel, wherein rooms are rented under two (2) or more separate written or oral rental agreements, leases or subleases or combination thereof, whether or not the owner, agent or rental manager resides within the residence.” Id. § 13-6.2 Ordinance 14-13 also — 2 — The new ordinance also distinguished between small boarding houses: “two (2) or fewer rooms being rented,” and large boardinghouses: “three (3) to six (6) rooms being rented.” Id. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 11 created the “[s]ober living home” category, defined as “a group home for persons who are recovering from a drug and/or alcohol addiction and who are considered handicapped under state or federal law.” Id. § 13-6; Socal Recovery, 56 F.4th at 806 . The 2014 regulations also imposed new substantive requirements for group homes located in single-family zoning districts (R1 zones). Boardinghouses—both small and large—are categorically prohibited from operating in R1 zones. CMMC § 13-30 (Costa Mesa Land Use Matrix). Group homes, including sober-living homes, with more than six residents are prohibited in R1 zones. Id. § 13-312. Group homes with six or fewer residents may operate in R1 zones if they obtain a special-use permit. Id. § 13-311. Sober-living homes must also obtain a special-use permit and comply with a separation requirement. Id. § 13-311(a)(14)(i). The separation requirement mandates that sober-living homes be spaced at least 650 feet apart, “as measured from the closest property lines, of any other sober living home or a state licensed alcoholism or drug abuse recovery or treatment facility.” Id. In 2015, the City enacted new regulations governing multi-family residential districts (MFR zones). Id. §§ 13322 to -324. Ordinance 15-11 requires that all group homes with six or fewer residents located in MFR zones, including sober-living homes, obtain a special-use permit and satisfy the separation requirement. Id. § 13-322(a). Group homes with over six occupants in MFR zones must obtain a conditional-use permit. Id. § 13-323. A conditional-use permit may be granted only if the separation requirement is satisfied “unless the reviewing authority determines that such location will not result in an over-concentration of similar uses.” Id. § 13-323(b). A group-home operator 12 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA applying for a conditional-use permit must also obtain an operator’s permit. Id. § 13-323(c). Ordinance 15-11 imposes different rules for boardinghouses located in MFR zones. Small boardinghouses, with two rooms or fewer, do not require a permit but must be located at least 650 feet from any other small boardinghouse. CMMC § 13-30 (table n.7). Large boardinghouses, with three to six rooms, must be separated from any other boardinghouse by at least 1,000 feet and must obtain a conditional-use permit. But unlike group homes, they need not obtain an operator’s permit to qualify for a conditional-use permit. Id. Ordinance 15-11 and its companion ordinance, Ordinance 15-13, apply retroactively to group homes. Preexisting facilities had a year to obtain a conditional-use permit and 120 days to obtain an operator’s permit from the effective date of the ordinances (December 17, 2015). Id. § 13-324. The regulations do not apply retroactively to boardinghouses. See generally id. The City passed additional ordinances in 2017, Ordinances 17-05 and 17-06, that altered the application requirements for group homes and provided revised procedures for seeking reasonable accommodations. B. The Ohio House, LLC Ohio House operates a structured men’s sober-living facility at 115 East Wilson Street (Wilson Property). The Wilson Property is in a MFR zone, specifically a MultipleFamily Residential, Medium Density zone, that is designated “Commercial Residential.” This property consists of five 2400-square-foot, two-story detached units, each with four bedrooms, outdoor space, a garage, and a parking area. Each THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 13 of the five units houses six to eight residents for a total of approximately 45 residents, including a house manager. The Wilson Property began offering services and housing to men in substance-abuse recovery in 2012. Most residents moved to the Wilson Property after completing a substance-abuse treatment program. Residents must agree to rules designed to promote recovery to live independently without relapse. Residents spend an average of seven months living at Ohio House. C. The City’s Code Enforcement In March 2016, City authorities investigated the Wilson Property and noted that it was “a Group Home serving 7 or more in the R2 zone and is subject to Ord. 15-11.” Within a week, the City notified Ohio House that the property was subject to Ordinance 15-11. Id. Ohio House applied for a conditional-use permit and an operator’s permit, as required, but its application was denied because the Wilson Property is located 550 feet from another sober living home that had already obtained a conditional use-permit. In fact, there were four other group homes within 650 feet of the Wilson Property—the licensed sober living home, two state-licensed treatment facilities, and an un-permitted facility against which the City was pursuing enforcement. In September 2017, Ohio House requested a reasonable accommodation or a waiver of the separation requirement, but the City’s Economic and Development Services Director denied these requests. Among other considerations, the Director noted that not requiring Ohio House to comply with the separation requirement would fundamentally alter the City’s zoning program. Ohio House appealed this denial to the City’s Planning Commission and stated at a public hearing that it would cap occupancy at the Wilson Property 14 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA to six residents per unit as a condition of receiving a conditional-use permit. The Planning Commission upheld the denial of Ohio House’s permit application. Ohio House then appealed to the City Council, reiterating its willingness to reduce occupancy to six residents per unit. In August 2019, the City Council also upheld the denial of a conditional-use permit and ordered the Wilson Property to cease operations by September 8, 2019. The City also imposed numerous fines against the Wilson Property, totaling approximately $29,000. D. Ohio House’s Lawsuit Ohio House sued the City for unlawful discrimination against residents at the Wilson Property in violation of the FHA, the FEHA, and California Government Code § 65008. Specifically, Ohio House argued that provisions of the City’s zoning code enacted under Ordinances 15-11, 15-13, 17-05, and 17-06: (1) discriminated against the disabled (disparatetreatment claim), (2) disparately impacted the disabled (disparate-impact claim), (3) stated a discriminatory preference disfavoring the disabled (discriminatorystatements claim), (4) interfered with Ohio House’s operations because it aids and encourages the disabled in exercising their fair-housing rights (interference claim), (5) improperly disallowed reasonable accommodation for the disabled (reasonable-accommodation claim), and (6) violated California Government Code § 65008. After discovery, the parties cross moved for summary judgment. The district court granted the City’s motion on Ohio House’s disparate-impact claims but otherwise denied both motions. The remaining claims were then tried to a jury. Before the case was submitted to the jury, the parties each moved for judgment as a matter of law under Federal Rule THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 15 of Civil Procedure 50(a). The district court orally denied these motions, except that the district court reserved ruling on whether Ohio House’s California Government Code § 65008 claim was untimely. The jury found that the City had not violated the FHA or the FEHA. Thereafter, the district court issued findings and conclusions related to Ohio House’s California Government Code § 65008 claim, concluding that this claim was untimely and that judgment in favor of Ohio House would be inconsistent with the jury’s findings. Thus, the district court entered judgment in favor of the City on all claims. Several weeks later, Ohio House renewed its motion for judgment as a matter of law and, alternatively, moved for a new trial. Ohio House also requested that the district court take judicial notice of various documents, including letters from the California Department of Housing and Community Development, excerpts from the City’s “Housing Element Update,” and a notice of public hearing. The district court denied Ohio House’s motions but granted its request for judicial notice insofar as the district court relied on the subject documents. Ohio House timely appealed. II. DISCUSSION Ohio House’s primary claims fall under overlapping provisions of the FHA and the FEHA. We begin with those claims and then address Ohio House’s claim under California Government Code § 65008. A. FHA/FEHA Claims It is unlawful under the FHA “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap . . . .” 42 U.S.C. § 3604 (f)(1). A municipality violates this law if 16 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA its “zoning practices . . . discriminate against disabled individuals . . . [and] contribute to ‘mak[ing] unavailable or deny[ing]’ housing to those persons.” Pac. Shores Props., LLC, 730 F.3d at 1157 (second and third alterations in original) (quoting 42 U.S.C. § 3604 (f)(1)); see also Socal Recovery, 56 F.4th at 814 (“[L]ocal governments are prohibited from discriminating on the basis of disability through zoning and land use practices.”). The FEHA largely mirrors its federal counterpart. See Cal. Gov’t Code § 12927(c)(1) (tracking the FHA’s definition of “discrimination”); id. § 12955(k) (recognizing overlapping protected classes as the FHA); id. § 12955.6 (guaranteeing no “fewer rights or remedies than the [FHA]”). The FEHA prohibits discrimination based on disability “through public or private land use practices, decisions, and authorizations.” Id. § 12955(l). We analyze FHA and FEHA claims under the same standard. Socal Recovery, 56 F.4th at 811 ; see also Pac. Shores Props., 730 F.3d at 1156 n.14. “[P]ersons recovering from drug and/or alcohol addiction are disabled under the FHA and [are] therefore protected from housing discrimination.” Pac. Shores Props., 730 F.3d at 1156–57. Group homes operated for persons recovering from addiction, often referred to as sober-living homes, are covered “dwellings.” Id. Therefore, both federal and California law “prohibit[] discriminatory actions that adversely affect the availability of such . . . homes.” Id. Sober-living-home operators are “aggrieved” by unlawful zoning practices that prevent them from carrying out normal business operations, and they may sue to “invalidate any state or local law that ‘purports to require or permit’ an action that would be a discriminatory housing practice” without having to prove the individual disability status of their residents. Socal Recovery, 56 F.4th at 814 ; see also Cal. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 17 Gov’t Code § 12927(g) (defining “aggrieved” parties that may sue under the FEHA). Thus, Ohio House is a proper plaintiff in this case. 1. Disparate Treatment Ohio House first argues that the City’s zoning code is facially discriminatory because it imposes different requirements on group homes than other group-living facilities that are not defined in relation to disability status, namely boardinghouses. Ohio House further contends that to prevail on its disparate-treatment claim based on a facialdiscrimination theory, it need only prove facially different treatment, which is a purely legal question that should have been resolved at summary judgment. Alternatively, Ohio House argues that the City’s regulations do not benefit the disabled because they pose greater burdens on group homes than boardinghouses. a. Legal Standard Disparate treatment is synonymous with intentional discrimination. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Thus, to prevail on this claim a “plaintiff must establish that the defendant had a discriminatory intent or motive.” Tex. Dep’t of Hous. & Community Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519 , 524 (2015) (emphasis added) (quoting Ricci, 557 U.S. at 577 ). There are multiple ways to prove such intent. Morris v. W. Hayden Ests. First Addition Homeowners Ass’n, Inc., 104 F.4th 1128 , 1139–40 (9th Cir. 2024). First, a plaintiff may rely on the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–04 (1973). This analysis applies “where the evidence [of discrimination] is indirect” and the plaintiff is 18 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA “challenging as pretextual a facially neutral explanation for the challenged action.” Morris, 104 F.4th at 1140 ; see also Pac. Shores Props., 730 F.3d at 1158 . Second, a plaintiff may prove disparate treatment with “‘direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated’ the defendant and that the defendant’s actions adversely affected the plaintiff in some way.” Pac. Shores Props., 730 F.3d at 1158 (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). The discriminatory purpose need not be the defendant’s “sole purpose” for taking the challenged action, but it must have been “a ‘motivating factor.’” Morris, 104 F.4th at 1140 (emphasis removed) (quoting Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 504 (9th Cir. 2016)). Under this standard, we employ “the ‘sensitive’ multi-factor inquiry articulated by the Supreme Court in Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266 (1977), to determine whether the plaintiff[] ha[s] created a triable issue of fact that the defendant’s actions were motivated by discriminatory intent.” Pac. Shores Props., 730 F.3d at 1158 . Finally, relevant here, we have held that a plaintiff may prove disparate treatment through “[a] facially discriminatory policy [that] on its face applies less favorably to a protected group.” Community House, Inc. v. City of Boise, 490 F.3d 1041, 1048 (9th Cir. 2007). In this context, we have held that International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Johnson Controls, Inc., 499 U.S. 187 (1991), governs. Community House, Inc., 490 F.3d at 1049 . Under Johnson Controls, a disparate-treatment claim based on a facially discriminatory policy “does not depend on why the [defendant] discriminates but rather on the explicit terms of THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 19 the discrimination.” 499 U.S. at 199 . We adopted the following burden-shifting framework: The plaintiff has the initial burden to make a prima facie “showing that a protected group has been subjected to explicitly differential—i.e., discriminatory—treatment,” and then the burden shifts to the defendant to “show either: (1) that the [challenged] restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” Community House, 490 F.3d at 1050 . b. Ohio House’s Procedural Argument We agree with the parties that whether the City’s zoning code facially subjects the disabled to unlawful disparate treatment is a question of law that should have been resolved at summary judgment. See In re York, 78 F.4th 1074, 1088 (9th Cir. 2023) (“Given Rule 56’s mandatory language, if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, the court lacks ‘discretion’ to insist that, in defiance of Rule 56, a trial will be held anyway.”); see also Courage to Change Ranches Holding Co. v. El Paso Cnty., 73 F.4th 1175 , 1191 (10th Cir. 2023) (“[W]hether a zoning ordinance is facially discriminatory is a legal issue that can be discerned from the face of the ordinance[.]”). The district court held that Ohio House established a prima facie case of facially differential treatment as a matter of law. But under Community House’s burden-shifting framework, it reserved the question of benefit as a factual issue to be resolved by the jury. That was error. Where, as here, the parties do not dispute any material facts, whether a law facially benefits the protected class is a question of law. See Caruso v. Yamhill Cnty., 422 F.3d 848, 859 (9th Cir. 20 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 2005) (“Because the material facts are not in dispute, ‘the character and extent of the statute’s burden involves a question of law’ . . . .” (quoting Krislov v. Rednour, 226 F.3d 851 , 859 (7th Cir. 2000))). Nonetheless, the district court’s error in not resolving this legal issue and submitting the disparate-treatment claim to the jury was harmless if the jury’s verdict is consistent with the required legal outcome. See Minneapolis & Saint Louis Ry. Co. v. Columbus RollingMill Co., 119 U.S. 149, 152 (1886) (“The submission of a question of law to the jury is no ground of exception, if they decide it aright.”); Sloman v. Tadlock, 21 F.3d 1462 , 1468– 69 (9th Cir. 1994) (where “the factual findings the jury must have made . . . would require the district court to deny [a defendant] qualified immunity” then “even if the court erred in sending the qualified immunity determination to the jury, the error was harmless”). Thus, we consider whether Ohio House established facial disparate treatment as a matter of law. c. Ohio House’s Merits Argument As discussed, we apply a burden-shifting framework to evaluate claims of facial discrimination. Community House, 490 F.3d at 1050 . Accordingly, we consider whether Ohio House established a prima facie case, whether the City rebutted that case by showing its regulations provide a benefit to the disabled, and—relevant to California law— whether the City employed the least-restrictive means of achieving that benefit. i. At summary judgment, the district court concluded that Ohio House established a prima facie showing that the City’s zoning regulations facially impose differential treatment because they “treat Group Homes and Sober Living Homes THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 21 differently from other dwellings that are not defined by disability.” Ohio House echoes this reasoning on appeal: “Because the City limited the definitions of ‘group home’ and ‘sober living home’ to housing for persons with disabilities, Ohio House established facial discrimination.” See CMMC § 13-6. Under Community House’s stated burden-shifting framework, Ohio House is correct. Although Community House stated generally that “[a] facially discriminatory policy is one which on its face applies less favorably to a protected group,” 490 F.3d at 1048 , in defining the steps of its test for determining whether a facial-disparate treatment claim is established under the FHA, it instructed that the first step—the prima-facie case of intentional discrimination—is satisfied “merely by showing that a protected group has been subjected to explicitly differential—i.e., discriminatory— treatment,” id. at 1050 (quoting Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995) (emphasis added)). Neither Community House nor the cases it relied on for the burden-shifting framework required proof of unfavorable treatment at the initial prima-facie stage. See id. (citing Bangerter, 46 F.3d at 1501 , 1503–04; Larkin v. Mich. Dept. of Soc. Servs., 89 F.3d 285 , 290 (6th Cir. 1996)) (“[A] plaintiff makes out a prima facie case of intentional discrimination under the [Fair Housing Act] merely by showing that a protected group has been subjected to explicitly differential—i.e. discriminatory—treatment.”).3 — 3 — Nor is such proof required under the FEHA. Under that statute, a facially discriminatory policy is one “that explicitly conditions a housing opportunity on a protected basis, takes adverse action based on a protected basis, or directs adverse action to be taken based on a protected 22 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA ii. Regardless of its prima-facie showing, Ohio House’s disparate-treatment claim fails because the differential treatment imposed under the City’s group-living regulations facially “benefits the protected class.” Id.4 At the outset, Ohio House argues that a comparator analysis is inappropriate. This is incorrect. As discussed, all disparate-treatment claims require proof that the defendant acted with discriminatory intent. Inclusive Communities, 576 U.S. at 524. In analyzing whether the necessary intent was proven in a facial challenge governed by Community House, the defendant must have the opportunity to demonstrate that the differential treatment identified by the plaintiff actually benefits the disabled. 490 F.3d at 1050 . Otherwise, liability could be imposed for “benign discrimination” (“special restrictions upon the disabled that are really beneficial to, rather than discriminatory against, [disabled persons],” Courage to Change, 73 F.4th at 1197 (alteration in original)), which does not evidence discriminatory intent—the ultimate touchstone of disparate basis.” 2 C.C.R. § 12040(c); see also Martinez v. City of Clovis, 90 Cal.App.5th 193 , 270–71 (Jul. 19, 2023) (adopting the burden-shifting framework in 2 C.C.R. §§ 12040–12042 for a FEHA discriminatory effects claim). The disjunctive “or” suggests that, while the two latter items in the list require adverse action, the former does not. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012). And, similar to the Community House framework, a defendant can avoid liability for a facially discriminatory policy by showing the policy “[o]bjectively benefits a protected class” and “[i]s the least restrictive means of achieving the identified purpose.” 2 C.C.R. § 12042(f). — 4 — The City does not argue that its zoning code “responds to legitimate safety concerns raised by the individuals affected.” Id. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 23 treatment. A straightforward way to show benefit is to demonstrate that the challenged regulations treat disabled individuals more favorably than similarly situated nondisabled individuals. See Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, 46 F.4th 1268, 1274 (11th Cir. 2022) (“Because the Zoning Ordinance undeniably treats individuals with disabilities more favorably than it treats similarly situated, nondisabled individuals, we conclude that the Zoning Ordinance is not facially discriminatory at all.”). Indeed, it is difficult to conceptualize a “benefit” without some baseline for comparison. There may be other ways to demonstrate benefit, even in a facial challenge, but a comparator analysis is certainly a permissible way. In this case, the City’s zoning code benefits the disabled over the nondisabled with regard to group-living facilities. For example, group homes and sober-living homes with six or fewer residents may operate in R1 zones if they meet permitting and separation requirements. See CMMC § 1330. But boardinghouses of any size are categorically barred from operating in R1 zones. See id. Of course, group and sober-living homes would receive an even greater benefit if they could operate in R1 zones without meeting any requirements. But Community House does not require proof that the defendant’s challenged policy provides the protected class with the maximum possible benefit. And Ohio House cannot use certain provisions of the zoning code as a sword while crying foul when the City uses intertwined provisions as a shield. The City’s permitting and separation requirements applicable to group homes located in R1 zones impose a burden, but they also give facilities housing the disabled an avenue for operating in these zones that is unavailable under any circumstances to similar group-living 24 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA dwellings housing the nondisabled. In this context, the burden imposed is connected to a benefit. And on net, operators and residents of group homes and sober-living homes in R1 zones are facially advantaged over other groupliving facilities. There are other residential zones where group-living facilities for both the disabled and nondisabled may operate. Here, we look to boardinghouses as a relevant comparator to determine if any benefit is conferred on the disabled. Cf. Gamble, 104 F.3d at 306–07 (cautioning that a zoning bias against group living should not be mistaken for a bias against the disabled); Olson v. California, 104 F.4th 66, 77 (9th Cir. 2024) (“[C]omparator groups ‘need not be similar in all respects, but they must be similar in those respects relevant to the Defendants’ policy.’” (quoting Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1064 (9th Cir. 2014))). And again, we conclude that the City’s regulations facially benefit group homes and sober living homes, if not without conditions. To start, as a category, boardinghouses are limited to dwellings that house no more than six residents. CMMC § 13-6. Group homes are not subject to this numerical limitation. See CMMC § 13-323 (allowing permits to be issued to group and sober-living homes with “seven (7) or more occupants” in MFR zones). Therein lies a benefit for group homes. Additionally, the City maintains that “boardinghouse” is an inclusive category for all forms of group living. Specifically, in relation to MFR zones, where both group homes and boardinghouses may operate, the City contends that a business offering housing to multiple nondisabled individuals must meet the boardinghouse requirements, while a business offering housing to multiple disabled THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 25 individuals has options: It may operate if it meets the boardinghouse requirements or if it meets the group or sober living home requirements. Although Ohio House contends this is an implausible reading of the zoning code and “[w]e are not bound by a party’s concession as to the meaning of the law,” United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc), we afford significant weight to a government’s narrowing interpretation of its own laws. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 (1992) (accepting Solicitor General’s repudiation of governmental authority); United Transp. Union v. Skinner, 975 F.2d 1421 , 1425 (9th Cir. 1992) (declining to resolve “dispute regarding enforcement” when government agency abandoned contrary interpretation). And we expect that the City will enforce its zoning code in accordance with its representations to the district court and to this court.5 Because the City’s zoning code, as the City interprets it, gives group homes that serve the disabled multiple pathways to operate lawfully—only one of which is open to those not serving the nondisabled— its facial classification benefits the disabled. Take Ohio House’s protest that small boardinghouses (those with two or fewer rooms) do not need a permit to operate, while small group homes (six or fewer occupants) — 5 — Unlike, say, a state attorney general’s interpretation of a criminal statute that may not bind county attorneys enforcing that statute, Stenberg v. Carhart, 530 U.S. 914, 941 (2000), there is no separate authority tasked with enforcing the City’s zoning ordinances. Nor is the City’s interpretation unreasonable. Contra id. at 944–45. The ordinances define a boardinghouse as a “dwelling unit, other than a hotel, wherein rooms are rented under two or more separate written or oral rental agreements . . . .” CMMC § 13-6. Nowhere do they say that that a boardinghouse cannot be a multiple dwelling unit that serves the disabled. See generally id. 26 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA require a special-use permit. If a group home with two or fewer rooms wanted to open without a permit, it could opt into the boardinghouse regulatory scheme.6 Based on the City’s concession, the group and sober-living home regulations operate as a one-way ratchet to broaden the regulatory options for group housing serving the disabled.7 In situations where the boardinghouse regulations are more favorable, group homes can opt into that scheme. Where group and sober-living home regulations are more favorable, they can make that choice. This choice benefits group and sober-living homes over boardinghouses. For this reason, we conclude that Ohio House’s FHA disparate-treatment claim fails. iii. The standard under the FEHA is slightly different than under the FHA because proof of a benefit to the protected class does not end the inquiry under California’s statute. The FEHA requires that a facially discriminatory policy be the least-restrictive means of achieving its purpose. Cal. Code Regs. tit. 2, § 12042 (f)(2). “Although the government bears the burden of proof” in a least-restrictive-means inquiry, “it is under no obligation to dream up alternatives that the plaintiff [itself] has not proposed.” Walker v. Beard, 789 — 6 — If the small group home had more than two rooms, a small boardinghouse would not be the legally relevant comparator. We would instead look to the regulations for a large boardinghouse. — 7 — Even if this one-way ratchet were not the case, Ohio House could not succeed simply by showing that the City’s regulations, which generally benefit the protected class, may not benefit it in isolated scenarios, as a facial challenge must show that the law lacks a “plainly legitimate sweep.” Moody v. NetChoice, LLC, 144 S. Ct. 2383 , 2397 (2024) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 27 F.3d 1125, 1137 (9th Cir. 2015). Accordingly, we confine our analysis to Ohio House’s argument that it would have been less restrictive for the City to enforce its nuisance laws to limit the “secondary effects” arising from group homes than to adopt its revised group-living regulations. It is unclear whether Ohio House envisions nuisance law as an alternative to all zoning laws pertaining to group and soberliving homes, or just some subset. Would nuisance enforcement replace the separation requirement? The permitting scheme? Both? Regardless, nuisance laws alone could not accomplish the full array of objectives that the City sought to achieve. Take, for example, the City’s desire to avoid institutionalization and “ensure that handicapped persons have the opportunity to live in normal residential surroundings and enjoy a dwelling in a manner similar to the way a dwelling is enjoyed by the non-handicapped.” Nuisance laws may help combat excessive noise and secondhand smoke, but they would do little to prevent overconcentration of group-living facilities in residential areas. Nuisance laws simply are not an alternative means for ensuring that individuals recovering from substance abuse have an equal opportunity to live in residential rather than institutionalized neighborhoods. For these reasons, we conclude that the City has rebutted Ohio House’s prima facie case of discriminatory intent under the FEHA. And although the district court erred by not deciding Ohio House’s disparate-treatment claim under both federal and state law at summary judgment, this was harmless because the jury correctly concluded that Ohio House failed to prove disparate treatment. See Minneapolis & Saint Louis Ry. Co., 119 U.S. at 152 . 28 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 2 . Disparate Impact Next, Ohio House challenges the district court’s grant of summary judgment for the City on the disparate-impact claim. The disparate-impact theory of discrimination prohibits actions that “create a discriminatory effect upon a protected class or perpetuate housing segregation without any concomitant legitimate reason.” S.W. Fair Hous. Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17 F.4th 950, 962 (9th Cir. 2021) (quoting Ave. 6E, 818 F.3d at 503 ). These claims “‘permit[] plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification.’” Ave. 6E, 818 F.3d at 503 (quoting Inclusive Communities, 576 U.S. at 540). They “target[] ‘artificial, arbitrary, and unnecessary barriers’ to minority housing and integration that can occur through unthinking, even if not malignant, policies of developers and governmental entities.” Id. (quoting Inclusive Communities, 576 U.S. at 540). In other words, as previously discussed, disparate-impact claims—unlike disparate-treatment claims—focus on “the consequences of actions and not just [] the mindset of actors . . . .” Inclusive Communities, 576 U.S. at 534. To establish prima facie disparate impact, a plaintiff must present evidence of: “(1) the existence of a policy . . . that is outwardly neutral; (2) a significant, adverse, and disproportionate effect on a protected class; and (3) robust causality that shows, beyond mere evidence of a statistical disparity, that the challenged policy, and not some other factor or policy, caused the disproportionate effect.” S.W. Fair Hous. Council, 17 F.4th at 962 (footnote omitted). Here, the district court concluded that Ohio House failed to THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 29 prove the second requirement—a significantly adverse or disproportionate impact on a protected group. We agree. An FHA plaintiff must present evidence of an adverse and disproportionate impact. “[R]aising an inference of discriminatory impact is insufficient.” Gamble, 104 F.3d at 306 (quoting Pfaff v. Dep’t of Hous. & Urb. Dev., 88 F.3d 739, 746 (9th Cir. 1996)). Were it otherwise, disparateimpact claims could be used to “displace valid governmental and private priorities.” Inclusive Communities, 576 U.S. at 544. Ohio House first argues that even if the challenged zoning regulations benefit the disabled, they nonetheless have an unlawful discriminatory effect because “[t]he City’s separation requirement served to disqualify 22 of 26 group home [conditional-use-permit] applicants.” Ohio House further contends that it need not present statistical evidence of disparity because the City’s regulations “defined the affected classes” and the absence of any boardinghouses within the City demonstrates that enforcement of the separation requirement disproportionately impacts group homes. Ohio House is wrong on both counts. A policy that benefits the disabled does not impose artificial and arbitrary barriers on that group. Cf. S.W. Fair Hous., 17 F.4th at 962 (requiring an adverse effect to satisfy the second prong of prima facie discriminatory impact). And even if it could, by not pointing to evidence showing that the City’s zoning regulations disproportionately reduced housing opportunities for disabled individuals, Ohio House cannot prove that the disabled are suffering the type of “significant, adverse, and disproportionate effect” that the FHA prohibits. Id. The City’s denial of conditional-use permits shows that applicants seeking to operate group 30 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA homes are adversely impacted. But a disparate-impact claim requires proof that the protected class—disabled individuals—is suffering an adverse and disproportionate impact. Id. Ohio House infers that the disabled will suffer adverse downstream consequences if purveyors of group homes are not allowed to operate under the City’s revised zoning code, but as noted, “raising an inference of discriminatory impact is insufficient.” Gamble, 104 F.3d at 306 (quoting Pfaff, 88 F.3d at 746 ). For the same reason, Ohio House’s assertion that it is not required to present any comparative or statistical analysis to demonstrate an adverse and disproportionate effect on the disabled is unpersuasive. Ohio House argues that it can prove disparate impact facially because the challenged regulations “defined the affected classes” and there were no boardinghouses in the City. As an initial matter, there is evidence in the record that boardinghouses did exist and, therefore, are a relevant comparator.8 See Gamble, 104 F.3d at 306–07 (“The relevant comparison group to determine a discriminatory effect on the . . . disabled is other groups of similar sizes living together. Otherwise, all that has been demonstrated is a discriminatory effect on group living.”). Additionally, without any evidence related to how the City’s revised regulations governing group-living facilities impacted disabled versus nondisabled individuals seeking group-living arrangements, there is no evidence upon which — 8 — Even if it were true that there were no boardinghouses within City limits, Ohio House places too much weight on this fact. A permitting scheme impacts proposed future development as much as it affects existing facilities. If the regulations dissuaded prospective builders of boardinghouses from applying for the necessary conditional-use permits, then enforcement of the regulations may adversely affect boardinghouses. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 31 a jury could find that these regulations have had a “significant, adverse, and disproportionate effect” on the disabled. S.W. Fair Hous., 17 F.4th at 962 ; Pulsifer v. United States, 601 U.S. 124, 133, 139 (2024) (explaining that an enumeration of three requirements linked by the conjunction “and” creates “three necessary conditions”). Separate from whether Ohio House can prove the second element of the prima facie case, it has an additional problem with proving the first element. Ohio House must establish that the challenged policy is “outwardly neutral.” S.W. Fair Hous., 17 F.4th at 962 . But here, its disparate impact theory contends that the City’s zoning code is facially discriminatory. Ohio House concedes that the “disparate impact analysis is usually not applied to a facially discriminatory policy”; nonetheless, it incorporates its facial-discrimination theory into its disparate-impact claim, thereby failing to prove the first element.9 For these reasons, we conclude that the district court did not err in granting summary judgment for the City on Ohio House’s disparate-impact claim. — 9 — Ohio House could have alternatively argued that the City’s zoning code is either (1) facially discriminatory or (2) facially neutral but discriminatory in its impact, see Fed. R. Civ. P. 8(d)(2), but that is not how it presented its disparate-impact claim. Ohio House expressly argued in support of its disparate-impact claim that it does not need to present evidence to prove “a significant, adverse and disproportionate impact,” S.W. Fair Hous., 17 F.4th at 962 , because the City’s challenged regulations expressly “defined the affected classes.” Ohio House’s theory, which attempted to prove the second disparate-impact element with a facial discrimination allegation, defeated itself by therefore failing to allege the first element of a disparate-impact claim. 32 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 3 . Discriminatory Statements Ohio House contends that it was entitled to judgment as a matter of law on its discriminatory-statements claim despite the jury’s finding that the City did not make any unlawful discriminatory statements. We review the district court’s denial of a motion for judgment as a matter of law de novo. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054 , 1063 (9th Cir. 2022). Ohio House is entitled to judgment as a matter of law only if the evidence, construed in light most favorable to the City, “permits only one reasonable conclusion that is contrary to the jury’s verdict.” Planned Parenthood Fed’n of Am., Inc. v. Newman, 51 F.4th 1125 , 1133 (9th Cir. 2022); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009). It is unlawful under the FHA “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . handicap . . . , or an intention to make any such preference, limitation, or discrimination. 42 U.S.C. § 3604 (c); see also 24 C.F.R. § 100.75 (b). We have adopted “[a]n ‘objective ordinary’ reader” standard for determining whether a statement violates § 3604(c). Morris, 104 F.4th at 1148 . The plaintiff must prove that “an ordinary listener would believe that [the challenged statement] suggests a preference, limitation, or discrimination based on a protected status.” Id. (quoting Corey v. Sec’y, U.S. Dep’t of Hous. & Urb. Dev. ex rel. Walker, 719 F.3d 322, 326 (4th Cir. 2013)). While proof of “facially discriminatory messages” is not required, id. at 1149, “[a] ‘stray remark . . . unrelated to the decisional process’ is insufficient to establish a § 3604(c) violation,” id. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 33 at 1150 (quoting Harris v. Itzhaki, 183 F.3d 1043, 1055 (9th Cir. 1999)). California’s standard under the FEHA is similar. See Cal. Gov’t Code § 12955(c).10 But unlike the federal housing regulations promulgated under authority granted by the FHA, see 24 C.F.R. § 100.75 , California’s regulations explicitly state that “[a] facially discriminatory policy or express statement” violates the FEHA’s prohibition against discriminatory statements, Cal. Code Regs. tit. 2, § 12042 (g). Ohio House contends that the City violated the FHA’s and the FEHA’s prohibition against discriminatory statements by enacting a facially discriminatory zoning code. We need not decide whether a municipal regulation can trigger discriminatory-statement liability under the FHA because Ohio House’s discriminatory-statements claim rises and falls with its facial disparate-treatment claim, which we have concluded fails as a matter of law. See also Morris, 104 F.4th at 1149 (“Merely mentioning one of the protected characteristics identified in § 3604(c), without more, does not necessarily convey a ‘preference, limitation, or — 10 — Section 12955(c) makes it unlawful: For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information or an intention to make that preference, limitation, or discrimination. 34 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA discrimination’ forbidden by the FHA, particularly if ‘there are situations in which it is legitimate’ to do so.” (quoting Soules v. U.S. Dep’t of Hous. & Urb. Dev., 967 F.2d 817, 824 (2d Cir. 1992))). To the extent that Ohio House relies on comments made by individual city employees suggesting that they had a discriminatory purpose for adopting the challenged zoning regulations, that alone is insufficient to overturn the jury’s verdict. See id. (“[E]vidence of a speaker or creator’s intent may be relevant insofar as it illuminates the likely understanding of the message by viewers. But the scope of § 3604(c) liability is defined by the statement’s impact on the reader, viewer, or listener, not by the subjective motivations of the speaker . . . Nor is the speaker’s stated intent dispositive.”). 4. Interference with FHA Rights Ohio House makes two arguments related to its FHAinterference claim: (1) that the district court erred in denying Ohio House’s motion for judgment as a matter of law, and (2) that the district court improperly instructed the jury on this claim. First, Ohio House suggests that because the City made alleged “admissions” that it enacted the challenged regulations for discriminatory reasons, the jury could not reasonably have found that the City interfered with Ohio House’s operations for a lawful reason.11 It is unlawful under — 11 — We address this issue even though the discussion of this claim in Ohio House’s opening brief was terse and lacked legal authority because the City addressed the merits and did not argue forfeiture, the City is not prejudiced by our resolution of this issue, and both the district court and THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 35 the FHA “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or . . . on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by” the FHA. 42 U.S.C. § 3617 . We interpret this provision broadly. Morris, 104 F.4th at 1143 . It “reach[es] all practices which have the effect of interfering with the exercise of rights under the federal fair housing laws.” Id. (quoting United States v. City of Hayward, 36 F.3d 832, 835, 836 (9th Cir. 1994) (alteration in original)); see also Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975) (explaining that § 3617 is implicated when a “would-be tenant has been discouraged from asserting his rights, . . . rights have actually been respected by persons who suffer consequent retaliation,” or “the fundamental inequity of a discriminatory housing practice is compounded by coercion, intimidation, threat or interference”). Despite its breadth, to prove an interference claim, the “plaintiff must show that the defendant’s actions affected the ‘exercise or enjoyment of . . . any right granted or protected’” by the FHA, Morris, 104 F.4th at 1143 (quoting 42 U.S.C. § 3617 ), including by interfering with the plaintiff “on account of [its] having aided or encouraged any other person in the exercise or enjoyment” of such rights, 42 U.S.C. § 3617 . We apply the McDonnell Douglas burden-shifting framework to Ohio House’s FHA-interference claim, meaning Ohio House must first “establish a prima facie case by showing that (1) [it] was engaged in protected activity; the jury spent significant energy considering the causation prong of this claim. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (noting discretion to adjudicate inadequately briefed arguments if consideration of the issues will not prejudice the appellee). 36 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA (2) [it] suffered an adverse action; and (3) there was a causal link between the two.” Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (citing Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001)). If the plaintiff establishes a prima facie case, “the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision.” Walker, 272 F.3d at 1128 . “If the defendant articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive.” Id. Here, Ohio House’s challenge to the jury’s verdict is focused only on the City’s reason for interfering with Ohio House’s operations. We conclude that a reasonable jury could find that the City acted for a lawful purpose. Ohio House characterizes as “admissions”: (1) the City’s 2015–2019 reports to the California Department of Housing and Community Development explaining that its goal in passing zoning ordinances regulating group housing was to “[p]rotect existing stabilized residential neighborhoods[] . . . from the encroachment of incompatible or potentially disruptive land uses and/or activities” and that it had “taken . . . action,” including adopting “a Multiple Family Group Home Ordinance on November 17, 2015 to limit the number and concentration of group homes and sober living facilities in the Multiple Family Residential zones”; and (2) statements made by the City Director of Economic and Development Services that “the City had ‘a proliferation of group homes and sober living homes’ and that it had adopted the group home ordinances ‘as a way to address the complaints’ received from City residents” and that the City chose to “‘spread out the group homes in the city’ as an alternative to ‘citing them all and shutting them down.’” THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 37 Although this evidence taken in isolation might suggest an unlawful motive, the City presented evidence that it had legitimate reasons for taking the action that it did. In passing regulations governing group homes and sober-living homes, the City explained that an “overconcentration” of groupliving arrangements produced “deleterious” effects “to the residential character” of its communities and “generated secondary impacts including, but not limited to neighborhood parking shortfalls, overcrowding, inordinate amounts of second-hand smoke, and noise; and the clustering of sober living facilities in close proximity to each other creating near neighborhoods of sober living homes.” The City’s Economic and Development Services Director Jennifer Le echoed that “the City was concerned about changes in residential character of neighborhoods as homes transitioned to a use that was more commercial or institutional as opposed to residential” and further explained that “[g]enerally when you have a cluster of group homes or when you have higher-than-average persons per household . . . you can have increased traffic, increased parking. There tends to be increased complaints due to noise, those types of things.” Logistical and aesthetic disturbances that may arise due to changes in traffic patterns, availability of parking, and increased noise levels are legitimate concerns for any city and are central to the goals of municipal zoning. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 129 (1978) (“States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city.”); Budnick v. Town of Carefree, 518 F.3d 1109, 1116 (9th Cir. 2008) (“[A] city’s interest in achieving its zoning goals has long been recognized as a legitimate governmental interest.”); 38 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1236 (9th Cir. 1994) (recognizing as “legitimate objectives” “preserving the agricultural heritage of the City, providing for a range of housing types and densities, preserving the ‘small town’ character of the City, and limiting development within the City to levels consistent with available resources”); cf. Young v. Am. Mini Theatres, Inc., 427 U.S. 50 , 54–55, 71 n.34 (1976) (plurality opinion) (upholding a 1,000-foot restriction on adult businesses when motivated by the businesses’ secondary effects on surrounding communities). In fact, high-density housing of any kind may dilute the desired residential character of a neighborhood. The jury could have concluded that the City’s challenged zoning regulations were intended to address these problems and did not indicate an intent to interfere with Ohio House’s operations because Ohio House was providing housing to the disabled. See Gamble,104 F.3d at 306 (holding that concern for the residential character of the neighborhood is a legitimate and nondiscriminatory goal). Whether groupliving facilities are engaged in providing housing to the disabled or not does not inherently dictate whether such facilities will contribute to higher traffic, lack of sufficient parking, or increased noise—those problems arise from high-density housing in and of itself, regardless of the residents. And the City’s focus on group homes is not inherently suggestive of an intent to interfere with group home operators’ FHA-protected activities given group homes’ rapid proliferation, which the City attributed to federal and state legislation that had incentivized a “significant increase in the number of single- and multifamily homes being utilized as alcohol and drug recovery facilities for large numbers of individuals.” THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 39 “Viewing this evidence in the light most favorable to the [City], there is sufficient ‘evidence adequate to support the jury’s conclusion’” that the City did not unlawfully interfere with Ohio House’s right to provide housing for disabled individuals. Morris, 104 F.4th at 1145 (citation omitted) (quoting Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)). A reasonable jury could have concluded that the City enacted its zoning ordinances and took enforcement action against Ohio House to pursue legitimate municipal goals. See Reed v. Lieurance, 863 F.3d 1196, 1211 (9th Cir. 2017) (“[J]udgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion.” (quoting Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008))). Therefore, Ohio House does not meet its burden under the McDonnell Douglas framework. Second, on its jury instruction challenge, Ohio House argues that the district court erred by advising the jury that the FHA-interference claim was “contingent on proof of an underlying discriminatory housing practice.” Ohio House raises similar concerns about the verdict form. “We review for abuse of discretion the district court’s formulation of the [jury] instructions and review de novo whether the instructions accurately state the law.” Unicolors, 52 F.4th at 1063–64 (quoting Skidmore ex rel. Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en banc)). “[T]he panel must ‘consider the issued instructions as a whole,’ such that ‘reversal is not warranted if the error is more probably than not harmless.’” Id. at 1064 (quoting Randy Craig Wolfe, 952 F.3d at 1065 ). Here, the challenged statement appeared in an introductory instruction listing all of Ohio House’s claims. The court separately instructed the jury on the substantive 40 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA elements of the FHA-interference claim, and Ohio House takes no issue with that instruction. “[T]aking the verdict form and instructions together,” particularly where Ohio House has no qualms about the substantive instruction, the FHA-interference claim “was fairly presented to the jury.” Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470 , 1476 (9th Cir. 1995); see also Carvalho v. Raybestos-Manhattan Inc., 794 F.2d 454, 455 (9th Cir. 1986). And to the extent that Ohio House claims it was error to allow the City to reference the verdict form in its closing argument, this objection was forfeited because Ohio House did not raise it during the City’s closing argument. See Swinton v. Potomac Corp., 270 F.3d 794, 816 (9th Cir. 2001) (holding that failure to make a contemporaneous objection “subject[s] the error alleged only to the highly deferential ‘plain or fundamental error’ standard of review, where we will reverse only ‘where the integrity or fundamental fairness of the proceedings in the trial court is called into serious question’” (quoting Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001))). 5. Reasonable Accommodation Below, Ohio House raised a facial challenge to the City’s reasonable-accommodation ordinance, see CMMC §§ 13200.60 to 13-200.63, argued that it was unlawfully denied an accommodation, and moved for summary judgment on this claim. Ohio House correctly notes that the district court failed to decide the purely legal issue presented by Ohio House’s facial challenge and instead submitted the entirety of the reasonable-accommodation claim to the jury. Nonetheless, again, it was harmless error to submit this claim to the jury if the jury ultimately reached the correct outcome. Minneapolis & Saint Louis Ry. Co., 119 U.S. at 152 . THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 41 After the jury found that the City did not “unlawfully refuse to make a reasonable accommodation,” the district court denied Ohio House’s motion for judgment as a matter of law. It concluded that the jury lawfully could have found that the requested accommodation was unreasonable because it was unnecessary for disabled individuals to be able to reside in the dwelling of their choosing and because the separation requirement was fundamental to the City’s zoning scheme. Although Ohio House asserted its reasonableaccommodation claim under both the FHA and the FEHA, it forfeited reliance on the FEHA on appeal. See Indep. Towers of Wash. v. Washington, 350 F.3d 925 , 929 (9th Cir. 2003) (“[W]e cannot ‘manufacture arguments for an appellant’ and therefore we will not consider any claims that were not actually argued in appellant’s opening brief.” (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994))); see also D.A.R.E. America v. Rolling Stone Mag., 270 F.3d 793 , 793 (9th Cir. 2001) (“A bare assertion of an issue does not preserve a claim.”). Ohio House did not provide any meaningful legal authority or argument related to the FEHA on this claim. The only state law that Ohio House referenced that implicates the FEHA is California Government Code § 12955.6, which simply states that nothing in the FEHA should be interpreted in a way that affords less rights than the FHA.12 Therefore, we analyze this claim only under the FHA. Unlawful discrimination under the FHA includes “a refusal to make reasonable accommodations in rules [or] — 12 — Although Ohio House cited an immaterial provision of the FHA, it offers sufficient caselaw and argument to preserve its challenge under this statute. 42 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA policies . . . when such accommodations may be necessary to afford [the disabled] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604 (f)(3)(B). We first consider Ohio House’s argument that federal law preempts CMMC §13-200.62(f)(7) as a facial matter, and then turn to whether the City was required to waive enforcement of the separation requirement as a reasonable accommodation. a. CMMC § 13-200.62(f)(7) “[A] plaintiff cannot succeed on a facial challenge unless [it] ‘establish[es] that no set of circumstances exists under which the [law] would be valid,’ or [it] shows that the law lacks a ‘plainly legitimate sweep.’” Moody, 144 S. Ct. at 2397 (quoting Salerno, 481 U.S. at 745 (third and fourth alterations in original)). We begin our analysis by determining the scope of the challenged law. See id. at 2398. We then determine “which of the laws’ applications violate [the FHA] and . . . measure them against the rest [of the lawful applications].” Id. The City’s reasonable-accommodation regulation gives anyone seeking zoning approval related to housing and other facilities that “substantially serve persons with disabilities” the right to apply for reasonable accommodation from regulations or policies that impose “a barrier to equal opportunity for housing.” CMMC § 13-200.61. This portion of the regulation reads in full: Any person seeking approval to construct and/or modify residential housing for person(s) with disabilities, and/or operate a residential care facility, group home, or referral facility, which will substantially serve persons with disabilities may apply for THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 43 a reasonable accommodation to obtain relief from a Zoning Code provision, regulation, policy, or condition which causes a barrier to equal opportunity for housing. CMMC § 13-200.61. Whether a reasonable accommodation may be granted depends on whether it is necessary to give the disabled “an equal opportunity to use and enjoy a dwelling,” and whether it is reasonable. Id. § 13200.62(e)(1)-(2). The regulation provides that an accommodation is not reasonable if it “impose[s] an undue financial or administrative burden on the City” or “if it would fundamentally alter a City program, such as the City’s zoning scheme.” Id. The regulation defines the procedures that must be followed in seeking an accommodation, including the “findings” that the City must make before granting the requested accommodation or an “alternative reasonable accommodations which provide an equivalent level of benefit to the applicant. CMMC § 13-200.62(f).13 — 13 — The required findings are as follows: (1) The requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the fair housing laws. (2) The requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. (3) The requested accommodation will not impose an undue financial or administrative burden on the city, as “undue financial or administrative burden” is defined in fair housing laws and interpretive case law. 44 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA The regulation comprehensively covers the right to seek, and the requirements for obtaining, a reasonable accommodation from the City’s zoning rules to ensure disabled persons realize their right to equal access to housing. Taken as a whole, the City’s reasonable-accommodation regulation is not inconsistent with the FHA. Indeed, Ohio House challenges only one specific subsection that requires the City to consider “[w]hether the existing supply of facilities of a similar nature and operation in the community is sufficient to provide individuals with a disability an equal opportunity to live in a residential setting.” CMMC § 13200.62(f)(7). Ohio House argues that this subsection facially (4) The requested accommodation is consistent with surrounding uses in scale and intensity of use. (5) The requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. (6) If economic viability is raised by the applicant as part of the applicant’s showing that the requested accommodation is necessary, then a finding that the requested accommodation is necessary to make facilities of a similar nature or operation economically viable in light of the particularities of the relevant market and market participants generally, not just for that particular applicant. (7) Whether the existing supply of facilities of a similar nature and operation in the community is sufficient to provide individuals with a disability an equal opportunity to live in a residential setting. (8) The requested accommodation will not result in a fundamental alteration in the nature of the City’s zoning program. Id. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 45 violates the FHA because that Act “protects the right of individuals to live in the residence of their choice in the community, not in a location the City might choose.” According to Ohio House, “the availability of another dwelling somewhere within a city’s boundaries is irrelevant to a municipality’s duty to make reasonable accommodations.” In Giebeler v. M & B Associates, we stated that the “specific goals” of the FHA’s reasonable-accommodation provisions were “to protect the right of handicapped persons to live in the residence of their choice in the community,” and “to end the unnecessary exclusion of persons with handicaps from the American mainstream.” 343 F.3d 1143 , 1149 (9th Cir. 2003) (emphasis added) (quoting City of Edmonds v. Wash. State Bldg. Code Council, 18 F.3d 802 , 806 (9th Cir. 1994)). Although subsection 13-200.62(f)(7) uses more permissive language than the other subsections describing the findings that the City must make,14 the City is nevertheless “required” to resolve requests for accommodations in part “on . . . the existing supply of facilities of a similar nature and operation in the community.” CMMC § 13-200.62(f)(7). Thus, Ohio House is correct that the City’s reasonable-accommodation regulation requires it to consider the availability of alternative housing. — 14 — Unlike other enumerated provisions, subsection (f)(7) does not require a finding that “[t]he requested accommodation is” one that meets a specified criterion, e.g., subsection (f)(2) (emphasis added), or that it “will not” have a certain effect, e.g., subsection (f)(5) (emphasis added). Rather, subsection (f)(7) requires a finding as to “[w]hether the existing supply of facilities of a similar nature and operation in the community is sufficient to provide individuals with a disability an equal opportunity to live in a residential setting” 46 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA However, Ohio House’s facial challenge to subsection 13-200.62(f)(7) fails. It is not clear that the finding the City is required to make under subsection 13-200.62(f)(7) conflicts with the FHA’s “specific goal” of “protect[ing] the right of handicapped persons to live in the residence of their choice . . . .” Giebeler, 343 F.3d at 1149 (emphasis added) (quoting City of Edmonds, 18 F.3d at 806), such that obstacle preemption applies. City of Los Angeles v. AECOM Servs., Inc., 854 F.3d 1149, 1159 (9th Cir. 2017) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)). The City need not give that required finding any weight in assessing a request for reasonable accommodation and the reasoning in Giebeler may not apply the same to the situation here where a group-home operator is suing based on limitations imposed on its ability to operate a facility due to the presence of existing facilities, as opposed to a disabled individual seeking occupancy. See Moody, 144 S. Ct. at 2397 (to establish obstacle preemption, the plaintiff must establish “that no set of circumstances exists under which the [law] would be valid, or . . . shows that the law lacks a plainly legitimate sweep”). But even if Ohio House were correct that CMMC § 13200.62(f)(7) is preempted by the FHA, that does not mean that the City’s entire reasonable-accommodation regulation fails. See Hamad v. Gates, 732 F.3d 990, 999 (9th Cir. 2013) (“As a general rule, courts are to ‘refrain from invalidating more of [a] statute than is necessary,’ because ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives.’” (alterations in original) (citation omitted) (first quoting United States v. Booker, 543 U.S. 220, 258 (2005); and then quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006))). Rather, we consider whether the inconsistent provisions can viably be THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 47 severed. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 , 508 (2010) (“‘Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’ Because ‘[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,’ the ‘normal rule’ is ‘that partial, rather than facial, invalidation is the required course.’” (alteration in original) (citations omitted)). And consistent with principles of federalism, “‘[s]everability of a local ordinance is a question of state law.’” Vivid Ent., LLC v. Fielding, 774 F.3d 566, 574 (9th Cir. 2014) (alteration in original) (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 772 (1988)). California law mandates two inquiries. First, we must consider whether the challenged law includes a severability clause. Cal. Redev. Ass’n v. Matosantos, 267 P.3d 580, 607 (Cal. 2011). A severability clause “establishes a presumption that the Legislature intended that the invalid . . . applications be severed from the valid . . . ones.” Friends of the Eel River v. N. Coast R.R. Auth., 399 P.3d 37, 76 (Cal. 2017); see also Matosantos, 267 P.3d at 607 . Though “not conclusive,” this presumption weighs heavily in favor of severance. Santa Barbara Sch. Dist. v. Super. Ct., 530 P.2d 605, 618 (Cal. 1975) (in bank) (quoting McCafferty v. Bd. of Supervisors, 83 Cal. Rptr. 229, 231 (Cal. Ct. App. 1969)). And second, we must consider whether the invalid provision is “grammatically, functionally, and volitionally separable.” Matosantos, 267 P.3d at 607 (quoting Calfarm Ins. Co. v. Deukmejian, 771 P.2d 1247, 1256 (Cal. 1989)). All three of these separability criteria “must be satisfied” before an invalid provision can be severed. McMahan v. City & County of San Francisco, 26 Cal. Rptr. 3d 509, 513 (Cal Ct. 48 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA App. 2005). “Grammatical separability, also known as mechanical separability, depends on whether the invalid parts ‘can be removed as a whole without affecting the wording’ or coherence of what remains.” Matosantos, 267 P.3d at 607 (quoting Calfarm Ins. Co., 771 P.2d at 1256 ). Relatedly, “[f]unctional separability depends on whether ‘the remainder of the statute “is complete in itself.”’” Id. at 608 (quoting Sonoma Cnty. Org. of Pub. Emps. v. Cnty. of Sonoma, 591 P.2d 1, 14 (Cal. 1979) (in bank)). “Volitional separability depends on whether the remainder ‘would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute.’” Matosantos, 267 P.3d at 608 (quoting Santa Barbara Sch. Dist., 530 P.2d at 618 ). Volitional separability is the “the ‘most important’ factor in the severability analysis.” Acosta v. City of Costa Mesa, 718 F.3d 800, 817 (9th Cir. 2013) (quoting Katz v. Children’s Hosp. of Orange Cnty., 28 F.3d 1520, 1531 (9th Cir. 1994)). Here, both required inquiries would counsel in favor of severing subsection 13-200.62(f)(7). The City’s reasonableaccommodation regulation contains a severability clause, which states that the validity of the regulation “shall not be affected” if “any section, subsection, clause, or provision of this article for any reason be held to be invalid . . .” CMMC § 13-200.63. Moreover, both grammatical and functional separability are established because subsection 13200.62(f)(7) is a separate, enumerated provision that can be cleanly severed without disrupting the syntax or meaning of any other sections of the regulation; importantly, the regulation, including the other seven required findings, remains fully functional. See generally CMMC § 13-200.62. And in addition to the explicit expression of legislative intent found in the severability provision, the regulation’s purpose provision states that “[i]t is the city’s policy to provide THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 49 reasonable accommodation in accordance with federal and state fair housing laws.” CMMC § 13-200.60. This unmistakably indicates that in passing its reasonableaccommodation regulation, the City sought to comply with both state and federal housing laws. Thus, we conclude that the City would have adopted this regulation even if it had “foreseen” that subsection 13-200.62(f)(7) would be found invalid. Matosantos, 267 P.3d at 608 . For the foregoing reasons, we reject Ohio House’s facial challenge to subsection 13-200.62(f)(7). b. Ohio House’s Reasonable-Accommodation Application Ohio House argues the City erroneously relied on its subsection § 13-200.62(f)(7) finding in denying Ohio House’s requested accommodation. But that was not the City’s sole ground for denying the accommodation, so we evaluate Ohio House’s additional challenge to the City’s assertion that it was not obligated to grant an exception to its separation requirement because doing so would fundamentally alter its zoning scheme. As indicated above, “[a] municipality commits discrimination under the [FHA] if it refuses ‘to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [the disabled] equal opportunity to use and enjoy a dwelling.’” Budnick, 518 F.3d at 1119 (quoting Gamble, 104 F.3d at 307); see 42 U.S.C. § 3604 (f)(3)(B). Public agencies have “an ‘affirmative duty’ . . . to reasonably accommodate disabled individuals by modifying administrative rules and policies,” including zoning ordinances. McGary v. City of Portland, 386 F.3d 1259, 1264 (9th Cir. 2004). The scope of this duty is “highly fact-specific, requiring case-by-case 50 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA determination.” United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374 , 1380 (9th Cir. 1997) (quoting United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413 , 1418 (9th Cir. 1994)). To prevail on a reasonableaccommodation claim, a plaintiff must prove: “(1) that the plaintiff or his associate is handicapped within the meaning of 42 U.S.C. § 3602 (h); (2) that the defendant knew or should reasonably be expected to know of the handicap; (3) that accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; (4) that the accommodation is reasonable; and (5) that defendant refused to make the requested accommodation.” Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 , 1179 (9th Cir. 2006). Here, there is no dispute that Ohio House established elements one, two, and five. Likewise, although the district court made conflicting statements regarding element three, it ultimately concluded that Ohio House’s requested accommodation was necessary, and the City did not challenge that decision. Thus, we have no occasion to address this issue given how the case was presented to us. See Freedom from Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (holding that unraised arguments are forfeited). That leaves the fourth element—whether Ohio House’s requested accommodation was reasonable. The district court concluded that in light of the evidence presented “the jury could have concluded that granting the request could have constituted a fundamental change in the City’s zoning scheme and thus the accommodation was unreasonable.” This was not error. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 51 Municipalities are not required “to make ‘fundamental’ or ‘substantial’ modifications to accommodate the handicapped . . . .” Sanghvi v. City of Claremont, 328 F.3d 532, 538 (9th Cir. 2003) (quoting City of Edmonds, 18 F.3d at 806). They are required only to make reasonable accommodations. Id. “[A]n accommodation is reasonable . . . ‘when it imposes no “fundamental alteration in the nature of the program” or “undue financial or administrative burdens.”’” Giebeler, 343 F.3d at 1157 (quoting Howard v. City of Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002)). Recognizing the case-specific nature of a reasonableaccommodation analysis, FHA regulations intentionally provide little guidance on how to determine the reasonableness of an accommodation or the need for a particular rule in a zoning scheme. See Schwarz v. City of Treasure Island, 544 F.3d 1201 , 1220 n.12 (11th Cir. 2008) (first citing 42 U.S.C. § 3610 (g)(2)(C); and then citing Fair Housing Amendments Act of 1988, 54 Fed. Reg. 3232 , 3246 (Jan. 23, 1989)); see also Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 , 784 (7th Cir. 2002) (“Whether a requested accommodation is reasonable or not . . . requires balancing the needs of the parties.”). The Eleventh Circuit’s survey of the caselaw from the Supreme Court and our sister circuits in Schwarz v. City of Treasure Island provides helpful guidance: Whether a particular rule is “essential” to a zoning scheme will, of course, turn on the facts of each case, but a few general principles guide us. The basic purpose of zoning is to bring complementary land uses together, while separating incompatible ones. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (“A nuisance may be 52 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”). Thus, ordering a municipality to waive a zoning rule ordinarily would cause a “fundamental alteration” of its zoning scheme if the proposed use was incompatible with surrounding land uses. See Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597 , 604 (4th Cir. 1997) (“In determining whether the reasonableness requirement has been met, a court may consider . . . the extent to which the accommodation would undermine the legitimate purposes and effects of existing zoning regulations . . . .”). On the other hand, if the proposed use is quite similar to surrounding uses expressly permitted by the zoning code, it will be more difficult to show that a waiver of the rule would cause a “fundamental alteration” of the zoning scheme. Similarly, if the municipality routinely waives the rule upon request, it will be harder to show that the rule is “essential.” 544 F.3d 1201, 1221 (11th Cir. 2008). Applying these general principles to the facts of this case, the jury had an evidentiary basis on which to find that Ohio House’s requested accommodation was unreasonable because it would cause a “fundamental alteration” of the City’s zoning scheme. As previously explained, there is evidence in the record that the City enacted its challenged regulations governing group homes located in residential zones out of concern about “overconcentration of sober THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 53 living units in any area” and to ensure that “disabled persons recovering from addiction can reside in a comfortable residential environment versus in an institutional setting.” The jury could have reasonably concluded that the separation requirement from which Ohio House sought an exception is fundamental to achieving these goals. Giebeler, 343 F.3d at 1157. Indeed, Ohio House does not dispute the importance of the separation requirement to the City’s zoning scheme. Instead, it contends that this “categorical and rigid rule[]” from which the City refuses to grant any accommodation is inherently at odds with the City’s obligation to conduct an “‘individualized inquiry’ to determine whether the requested accommodation [is reasonable].” As support, Ohio House cites a Sixth Circuit case for the principle that “making an exception to a zoning scheme to permit something that would normally be forbidden [does not] automatically amount[] to a fundamental alteration.” Anderson v. City of Blue Ash, 798 F.3d 338, 363 (6th Cir. 2015). At issue in Anderson was whether a disabled individual should be granted an accommodation from an animal restriction applicable in residential zones. Id. at 346 . In rejecting the City’s argument that it was entitled to summary judgment on the basis that the accommodation was unreasonable as a matter of law, the court noted that “[w]hile protecting public health and property values are central to the City’s interests,” there was evidence that one otherwise disallowed animal would “not create unsanitary conditions or devalue her neighbors’ property.” Id. at 363 . Anderson is distinguishable from the present case in which we are reviewing a jury verdict. Unlike the one-off request in Anderson for an exception to an animal restriction, here Ohio House ultimately disputes as unlawful the City’s 54 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA denial of permits for over 20 existing group homes located in residential zones. As previously stated, although “routinely waiv[ing]” a specific zoning requirement suggests that it is not fundamental to a municipality’s landuse policy, Schwarz, 544 F.3d at 1221 , the jury here reasonably could have found that the separation requirement is fundamental to the City’s zoning policy governing residential areas. Thus, the jury reasonably applied the principle recognized in Schwarz that “ordering a municipality to waive a zoning rule ordinarily would cause a ‘fundamental alteration’ of its zoning scheme if the proposed use was incompatible with surrounding land uses.” Id (citing Bryant Woods Inn, 124 F.3d at 604). For all these reasons, we affirm the district court’s denial of judgment as a matter of law on Ohio House’s reasonable accommodation claim. B. California Govt. Code § 65008 Claim Finally, Ohio House claims that the district court erred in denying its post-trial renewed motion for judgment as a matter of law on its claim under Cal. Govt. Code § 65008 (a). Section 65008(a) provides that any action by a city “is null and void” if it denies any individual or group of individuals “the enjoyment of residence, landownership, tenancy, or any other land use in this state” because of a protected characteristic under the FEHA. The district held that Ohio House’s suit under this provision is time-barred by the statute of limitations set forth in Cal. Govt. Code § 65009 (c)(1), which requires claims to be brought “within 90 days after the legislative body’s decision” to adopt or amend a zoning ordinance or to enforce conditions attached to land-use permits. See Cnty. of Sonoma, 118 Cal. Rptr. 3d at 919 n.4. Ohio House disagrees, arguing that THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 55 § 65009(c)(1)’s 90-day period is “applicable only to challenges to local zoning decisions” and not “to Ohio House’s broader cla[i]m of discrimination based on ‘administration of ordinances pursuant to any law.” Cal. Govt. Code § 65008 (b)(1)(B)(ii). As the district court explained, “Ohio House argues that it is not challenging a ‘decision’ governed by § 65009,” namely the Ordinances’ enactment and the denial of its conditional use-permit, “but rather ‘the exercise of municipal code enforcement power to cite, fine, and compel the closure of a dwelling.’” “We review a district court’s determination of the applicable statute of limitations de novo.” Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006). And we agree with the district court that Ohio House’s claim is subject to § 65009’s 90-day limitations period. Despite Ohio House’s contentions to the contrary, it is effectively challenging the City’s zoning ordinances on their face based on alleged defects in the ordinances themselves. See Cnty. of Sonoma, 118 Cal. Rptr. 3d at 924–25 (explaining that despite plaintiff’s claim that it was making a facial and as-applied challenge, its claim was truly “facial in nature,” because it was based on an “alleged defect . . . in the [o]rdinance itself, not in the manner or circumstances in which it [was] being applied.”). Ohio House seeks an injunction enjoining enforcement of the City’s zoning ordinances and a declaration that the ordinances “are invalid and void pursuant to the Fair Housing Act and Fair Employment and Housing Act.” This is a challenge to the facial validity of an ordinance, not an as-applied challenge of a final adjudicatory decision triggering its own 90-day statutory limitations period. Cal. Govt. Code § 65009 (c)(1)(E). Ohio House provides no legal or factual support for its theory that the City’s “administration” of ordinances is 56 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA something other than a facial challenge or an as-applied challenge of a “final adjudicatory decision.” Indeed, Ohio House does not point to anything other than the ordinances themselves as a source of purported injury. See San Diego Unified Sch. Dist. v. Yee, 241 Cal. Rptr. 3d 896, 906 (Cal. Ct. App. 2018) (explaining that plaintiffs were “in substance and effect” challenging “the constitutionality of the . . . statutes themselves” by challenging actions that were “compelled by and taken under the . . . statutes”). Ordinance 17-06, adopted on May 2, 2017, is the most recent law that Ohio House challenges. Because Ohio House filed its initial complaint on September 6, 2019, well after the applicable 90-day statute of limitations period set forth in § 65009, it is time-barred from asserting its § 65008(a) claim. III. CONCLUSION For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor of the City on Ohio House’s disparate-impact claim and its denial of judgment as a matter of law on all other claims.15 To the extent there were errors in the district court’s submission of claims to the jury and in its jury instructions, we conclude that they were harmless and do not warrant a new trial. AFFIRMED. — 15 — Ohio House’s Motions for Judicial Notice, Dkts. 18, 54, are granted. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 57 IKUTA, Circuit Judge, specially concurring: I generally concur in the majority opinion, but would hold that in order to establish a facial disparate treatment claim under the Fair Housing Act (FHA) and Fair Employment and Housing Act (FEHA), a plaintiff must show that the protected group suffered unfavorable treatment compared to the unprotected group, not merely show that a protected group has been treated differently than an unprotected group. See Maj. Op. 21. Because Ohio House failed to make such a showing, it did not establish a prima facie case of disparate treatment. It has long been the rule that to prove disparate treatment, the plaintiff must show that the defendant intended to have an adverse effect on the protected group. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (stating standard under Title VII); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment . . . .” (emphasis added) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring))); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“No one doubts that the term ‘discriminate against’ [in Title VII] refers to distinctions or differences in treatment that injure protected individuals.” (emphasis added)). Conc. 61–62. The Supreme Court has recently confirmed this longstanding rule, stating: “The words ‘discriminate against,’ we have explained, refer to ‘differences in treatment that injure’ employees.” Muldrow v. City of St. Louis, 601 U.S. 346, 354 (2024) (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 681 (2020)). 58 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA Ninth Circuit precedent is consistent with this Supreme Court rule, stating that a plaintiff alleging disparate treatment (that is, intentional discrimination) may “produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant and that the defendant’s actions adversely affected the plaintiff in some way.” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (cleaned up) (emphasis added). And as we explained in Community House, Inc. v. City of Boise, “[a] facially discriminatory policy is one which on its face applies less favorably to a protected group.” 490 F.3d 1041 , 1048 (9th Cir. 2007) (emphasis added). We have expanded the standard for showing disparate treatment in the Fair Housing Act context. Under our approach, if the plaintiff has been subject to “intentional differential treatment” compared to an unprotected group, “a defendant must show either: (1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” Cmty. House, Inc., 490 F.3d at 1050 . In other words, if the plaintiff challenges a policy that facially applies less favorably to a protected group, the defendant may still justify the policy by proving that under the facts of that particular case, the difference is beneficial to the protected class. See id. For instance, in Community House, the City of Boise argued that despite the plaintiff’s claim that Boise’s policy adversely affected women by not allowing them to take advantage of men-only shelters, the policy “benefits women and families by protecting their safety.” Id. at 1051–52. The evidence establishing a beneficial effect of a facially discriminatory, adverse rule THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 59 can defeat an FHA claim, even if it did not in Community House itself. See id. at 1051 .1 Here, the district court concluded that because the City’s zoning regulations treated group homes and sober living homes differently from boardinghouses, Ohio House established a prima facie claim of facial discrimination. But this conclusion was wrong: although Ohio House established that the relevant ordinances treated Ohio House and boardinghouses differently, Ohio House failed to prove that the treatment was less favorable, and therefore discriminatory. To the contrary, group homes and sober living homes get more favorable treatment than boardinghouses. Under the relevant zoning regulations, small boardinghouses (those with two rooms or fewer) may operate in multi-family residential districts (MFR zones), subject to a 650-foot separation requirement. Costa Mesa Municipal Code (CMMC) § 13-30 (tbl. n.4). Large boardinghouses (those with three to six rooms) may operate in MFR zones with a conditional-use permit (CUP), subject to a 1,000-foot separation requirement. Id. (tbl. n.5). Group homes and sober living homes seeking to operate in MFR zones must obtain different permits. Id. (tbl. nn.7 & 7.1). Maj. Op. 11–12. But this does not mean that boardinghouses get more favorable treatment than group home or sober — 1 — The FEHA similarly focuses on adverse action, providing that a facially discriminatory policy is one “that explicitly conditions a housing opportunity on a protected basis, requires or allows adverse action based on a protected basis, or directs adverse action to be taken based on a protected basis.” 2 C.C.R. § 12040(c) (emphases added). And, similar to the Community House framework, a defendant can avoid liability for a facially discriminatory policy by showing the policy “[o]bjectively benefits a protected class” and “is the least restrictive means of achieving the identified purpose.” Id. § 12042(f). 60 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA living homes, because such homes may elect to classify themselves as boardinghouses and receive all the benefits accorded to boardinghouses. Maj. Op. 25–26. Therefore, I would reverse the district court’s holding that Ohio House established a prima facie claim of facial discrimination. Although I would hold that Ohio House failed to make a prima facie showing of discrimination, I nevertheless agree with the majority that Ohio House’s disparate treatment claim fails because the differential treatment imposed benefits the protected class. Maj. Op. 23. For instance, under the ordinances, if a group home has six or fewer residents, it can operate in a single-family zoning district (R1 zone) if it obtains a special-use permit. CMMC § 13-311. And if a sober living home has six or fewer residents, it can operate in an R1 zone if it obtains a special-use permit and complies with a 650-foot separation requirement. Id. § 13311(a)(14)(i). By contrast, boardinghouses are categorically prohibited from operating in R1 zones. Id. § 13-30 (tbl. nn.4 & 5). Maj. Op. 11. Moreover, unlike boardinghouses, a group home or sober living home can operate in an Institutional and Recreational zone as a matter of right. Id. § 13-30 (tbl. nn.4, 5, 7, & 7.1). Given that a group home or sober living home is entitled to all the benefits of a boardinghouse plus additional rights, it is clear that the City’s ordinances do not disadvantage the group home or sober living home. Therefore, I concur in the majority. THE OHIO HOUSE, LLC V. CITY OF COSTA MESA 61 FORREST, Circuit Judge, concurring: I agree with Judge Ikuta that under Supreme Court precedent, a plaintiff must prove adverse differential treatment to establish discrimination. See, e.g., Muldrow v. City of St. Louis, 601 U.S. 346 , 354 (“The words ‘discriminate against,’ we have explained, refer to ‘differences in treatment that injure’ employees.” (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 681 (2020))); cf. Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (“We apply Title VII discrimination analysis in examining [FHA] discrimination claims.”). I also agree that, because adversity is part of discriminatory treatment, a plaintiff should be required to show that facially differential treatment was adverse as part of its prima-facie case. See Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, 46 F.4th 1268 , 1274–79 (11th Cir. 2022); Prima Facie Case, Black’s Law Dictionary (12th ed. 2024) (a prima facie case requires enough evidence to “rule in the party’s favor”). But for the reasons described in the majority opinion, I cannot read Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007), as requiring a prima facie showing of unfavorable treatment. See Maj. Op. at 21. That is where I respectfully disagree with Judge Ikuta. That leaves the question of how to handle this tension between our precedent and Supreme Court precedent. The Supreme Court had long espoused an adversity requirement for facial discrimination when Community House was decided. See Muldrow, 601 U.S. at 354 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), for the proposition that discrimination implies disadvantageous treatment); Bostock, 590 U.S. at 657 (same, citing Burlington N. & Santa Fe R. Co. v. White, 548 U.S. 53 , 59 62 THE OHIO HOUSE, LLC V. CITY OF COSTA MESA (2006)). Accordingly, even though the Supreme Court has continued to reiterate that differential treatment must be adverse to be discriminatory, id., its recent espousals of that rule are not “intervening” decisions that “undercut the theory or reasoning underlying” Community House such that we are free to depart from that opinion. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); Dahlia v. Rodriguez, 689 F.3d 1094, 1104 (9th Cir. 2012), reversed on other grounds, 735 F.3d 1060 (en banc) (reservations about a prior panel’s application of existing Supreme Court precedent is not grounds under Gammie to revisit that panel’s decision). To the extent Community House got the law wrong under Supreme Court precedent, it was just as wrong when it was decided as it is now. I thus conclude that in deciding this case we are compelled to apply Community House’s burdenshifting framework as written until the en banc court corrects our error or the Supreme Court issues intervening authority that permits departure from Community House.