Oconomowoc Residential Programs, Inc. v. City of Milwaukee

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-1002

OCONOMOWOC RESIDENTIAL PROGRAMS,

INCORPORATED, a domestic corporation,

Plaintiff-Appellee,

and

WISCONSIN COALITION FOR ADVOCACY,

a domestic non-profit corporation,

JANET K., by her legal guardians,

GERALDINE K. and CLARENCE K.,

and VALERIE D., by her legal

guardian, THERESA H.,

Intervenors-Appellees,

v.

CITY OF MILWAUKEE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 97 C 251—J.P. Stadtmueller, Chief Judge.

____________

ARGUED SEPTEMBER 5, 2001—DECIDED AUGUST 8, 2002

____________

Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit

Judges.

2 No. 01-1002

ROVNER, Circuit Judge. After the City of Milwaukee

(City) denied Oconomowoc Residential Programs, Inc. (ORP)

a zoning variance to operate a community living facility

in the City, ORP sued the City for violations of the Fair

Housing Amendments Act (FHAA) and the Americans

with Disabilities Act (ADA). The district court granted

Oconomowoc’s and plaintiff-intervenors’ motion for partial

summary judgment and denied the City’s motion for sum-

mary judgment. The City appeals, and we affirm.

I.

Summary judgment is appropriate where there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). We review the district court’s ruling on summary

judgment de novo, construing the record in the light most

favorable to the non-movant. O’Neal v. City of New Albany,

No. 00-3091, 2002 WL 1305540, at *2 (7th Cir. June 14,

2002).

This controversy arose over plaintiff ORP’s application

to operate a community living facility for six adults im-

paired by traumatic brain injury or developmental disabil-

ities or both. The City, through its Board of Zoning Appeals

(BOZA), denied the request for a variance pursuant to a

municipal ordinance restricting such homes from operating

within 2,500 feet (approximately one half of a mile) of

another community living arrangement.

ORP is a Wisconsin corporation licensed by the State to

operate community-based residential programs. The Wis-

consin Department of Health and Family Services (DHFS)

regulates its operations. Homes for Independent Living

(HIL), a division of ORP, operates approximately ninety-

five group homes which provide residential and support

services to persons with developmental disabilities, chronic

No. 01-1002 3

mental illness, and traumatic brain injuries. Over 800 per-

sons in ten southeastern Wisconsin counties receive ser-

vices provided by HIL.

Plaintiff-intervenor, Wisconsin Coalition for Advocacy,

Inc. (WCA) is a non-profit Wisconsin corporation which pro-

vides statewide advocacy and protection for the rights

of persons with disabilities. Wisconsin statutes grant

WCA the responsibility and authority to pursue legal and

other remedies for persons with developmental disabilities

or mental illness. Wis. Stat. § 51.62(2)-(3). Plaintiff-in-

tervenors Janet K. and Valerie D. are residents of Mil-

waukee County and each has suffered a traumatic brain

injury.1 Because Janet K.’s injuries occurred prior to

adulthood, she also has been diagnosed as having a devel-

opmental disability. Both Janet K. and Valerie D. have

been determined to be incompetent, thus their legal guard-

ians, Geraldine and Clarence K., and Theresa H. respec-

tively, brought this action on their behalf. Both Janet K.

and Valerie D. are under protective placement orders pur-

suant to the State of Wisconsin’s civil commitment statute

for long-term placement. Wis. Stat., Chap. 55. Pursuant

to a district court order defining Ms. K’s least restrictive

placement, Janet K. must be placed in a group home or

community-based residential facility. Under a similar

court order, Valerie D. must be placed in a group home,

adult family care home, supervised apartment, or other

comparable community placement.

Aware of the need for community-based residential

facilities for people with traumatic brain injury and devel-

opmental disabilities, ORP staff worked for over a year

with a local real estate agent to find a home that would

be physically and financially appropriate for such a group

1

The District Court granted WCA, Janet K. and Valerie D.’s

petition to intervene on November 18, 1997.

4 No. 01-1002

home. On August 20, 1996, ORP applied for an occupancy

permit for a community-based residential facility for six

developmentally disabled or traumatically brain injured

adults at 2850 North Menomonee River Parkway in Mil-

waukee. In September, 1996, ORP purchased the house

for $280,000. During the application for an occupancy per-

mit however, ORP ran into a stumbling block.

As part of its zoning code, Milwaukee restricts the

placement of community living arrangements. Milwaukee

permits community living arrangements for not more

than eight persons in single residence districts, subject to

certain special conditions. Milwaukee, Wi., Code of Ordi-

nances § 295-112. Those conditions are as follows:

Special Conditions. 1. GROUP LIVING FACILI-

TIES. a. Small foster homes and community living

arrangements shall not be located within 2,500 feet

of each other and their cumulative capacities shall

not exceed one percent of the population of an alder-

manic district. Certificates of occupancy shall be issued

only upon evidence that a facility has been licensed

by either the state of Wisconsin, Milwaukee County

or a child welfare agency.

Id. at § 295-14-1(a). A “community living arrangement” is

defined as follows:

b. Community-based residential facility. A facility

where 3 or more adults not related to the operator

reside and are provided with care, treatment or ser-

vices above the level of room and board but less

than nursing care. Such care must include suppor-

tive home care service unless contraindicated by the

facility program, and may also include 7 hours or less

of prescribed personal care service per week, per

resident. The term does not include nursing homes,

prisons, jails, community correctional residential cen-

ters, convents or facilities owned or operated exclusive-

No. 01-1002 5

ly by and for members of a religious order, or educa-

tional institutions and related student housing.

Id. at § 295-7-37(b).

Relying on the Milwaukee ordinance regarding the 2,500-

foot requirement, the City of Milwaukee Department of

Building Inspection (DBI)2 refused to issue an occupancy

permit to ORP. By letter dated November 4, 1996, DBI

returned ORP’s application stating that ORP could not

operate a community-based residential facility at that

site without violating § 25-14-1 of the Milwaukee ordi-

nance, as there were already two other group homes

operating within 2,500 feet of the proposed home, one of

which was operating within 358 feet of the proposed

home. In addition to its determination that the proposed

home violated the spacing requirements, the DBI made

several other observations in its letter. First, it noted

that the proposed group home sits on the fringe of the

flood plain of the Menomonee River. It then expressed

concerns about the volume of traffic on the road during

the summer months, and the fact that the road does not

have sidewalks for pedestrian traffic. DBI informed ORP

that it could seek a variance by appealing to BOZA. Accord-

ing to the Milwaukee municipal code, DBI has no author-

ity to grant a permanent variance for the occupancy of

any building if the intended use and plans do not con-

form with the City’s ordinances. Id. at § 295-51-1(a).

By the time ORP received the letter from DBI, it had

already applied to BOZA for a waiver of the 2,500-foot

rule. In its application, filed on October 24, 1996, ORP

submitted its plan of operation for a six-person home with

non-live-in, round-the-clock staff. BOZA held a hearing

on the variance request on January 16, 1997.

2

DBI is now called the Department of Neighborhood Services.

6 No. 01-1002

During the BOZA hearing, ORP’s counsel argued that

the variance was necessary as a reasonable accommoda-

tion under the FHAA. To support this claim, ORP pre-

sented evidence regarding the need in the City and County

of Milwaukee for residential facilities for persons with

traumatic brain injuries. Specifically, ORP presented evi-

dence regarding the difficulties in locating resources

and facilities to provide services to brain injured individ-

uals in the least restrictive environment consistent with

the needs of the disabled person as required by state

statute. ORP presented detailed information about the

needs of the individual plaintiffs Janet K. and Valerie D. At

the time of the hearing, both plaintiffs were living in a

nursing home, though each was the subject of a court or-

der requiring them to be placed in a less restrictive envi-

ronment, such as a community-based residential facility.

Each of the plaintiffs’ respective guardians desired that

they be placed in the home at 2850 North Menomonee Riv-

er Parkway. ORP and Milwaukee County had reviewed

the placements of Janet K. and Valerie D and deter-

mined that they could be transferred to the proposed

group home as soon as the facility could open.

ORP presented evidence that, due to limited state

funding, community services for persons with disabilities

are available to only a limited number of persons each year.

Janet K. and Valerie D. were eligible for and received one

of only a few specialized “brain injury waiver program” slots

for 1996.

The prospective neighbors of the group home appeared

at the hearing to lodge their concerns about the facility.

Neighbors expressed concern that the brain injured pa-

tients might become violent and threaten the safety of

residents of the community. One neighbor objecting to

the proposed variance testified that his wife and the wife

of another objecting neighbor were both psychologists

and “could attest to the fact that brain injured patients

No. 01-1002 7

can and do become violent.” Another objecting neigh-

bor testified that between 1942 and 1950 he had a brain

injured uncle who lived with the family, but who had to

be removed to a mental institution when he become vio-

lent. Other neighbors raised concerns about the amount

of traffic on the parkway, parking restrictions that could

constitute a hazard for the group home residents, the

lack of sidewalks, particularly in relation to the amount

and speed of the traffic on the parkway, and the potential

for flooding. Some were concerned that the inclined drive-

way of the home could present a danger to residents as

they entered and exited handicap-accessible vans. Lee

Jensen, the Commissioner of DBI, testified at the hear-

ing in opposition to the variance, not in his official ca-

pacity, but as a prospective neighbor of the facility.

As part of the proceedings, the Office of the City Engi-

neer issued a report to BOZA that concluded that the

proposed community-based residential facility would not

have a “significant adverse impact” on traffic and park-

ing conditions in the neighborhood.

An attorney for a number of neighbors opposing the

variance presented evidence of ORP’s history as a group

home operator. The evidence included reports of various

investigations by DHFS regarding allegations of errors,

negligence, or wrongdoings by staff of ORP corporate

affiliates. The history included reports that (1) one resident

received a double dose of medication; (2) DHHS had de-

termined that a staff member sexually assaulted a resi-

dent; (3) eight residents were left outside of a home with-

out supervision for forty-five minutes; (4) one facility

failed to report in a timely manner that a staff member

had physically abused a resident; (5) another facility

neglected a five-year-old basement flooding problem, and

had rotting and mold problems as a result; (6) staff of

a facility for developmentally disabled adults failed to

control noise coming from the residents; (7) police offi-

8 No. 01-1002

cers were called to respond to physical outbursts by resi-

dents of a facility for the developmentally disabled; (8)

police officers were called on numerous occasions to

another group home to respond to reports of comba-

tive assaults by a particular resident; and (9) an elderly

resident of a group home was found in the Menomonee

River.

Rather than making a decision immediately following

the January 17, 1997 hearing, BOZA allowed the parties

until February 6, 1997, to file written responses to the

record. Counsel for ORP supplemented the record, respond-

ing to the allegations of ORP’s failings as a group home

operator.

On February 6, 1997, BOZA voted to deny the request

for a variance. On March 10, 1997, BOZA issued its writ-

ten decision denying the request. The decision stated

that the variance request was a “flagrant violation of

the state’s distance requirement,” noting that there is

another facility located 358 feet away, two others with-

in 2,500 feet, and two more just slightly outside of the

2,500-foot boundary. BOZA’s decision also expressed con-

cern for the safety of the residents due to the high traf-

fic and lack of sidewalks on the Menomonee River Park-

way. The decision stated that, based on the allegations

of problems emanating from other ORP facilities, the

proposed facility could impose undue costs, expenses, or

other burdens on the City. The decision went on to note

that the City had done its fair share of providing commu-

nity living arrangements and group homes, in part by

granting thirty-nine variances to the spacing ordinance,

and that the rest of Milwaukee County had many sites

available.3

3

ORP provided BOZA with evidence that group homes do not

adversely affect property values. In addition, it demonstrated

(continued...)

No. 01-1002 9

Due to the delay caused by the hearing, Milwaukee

County staff obtained permission to allow Janet K. and

Valerie D. to use their brain injury waiver slots in 1997

rather than in 1996. After learning of BOZA’s denial,

Milwaukee County staff asked ORP to provide alterna-

tive services to plaintiffs Janet K. and Valerie D. ORP

proposed to operate the 2850 North Menomonee River

Parkway home as a two-person adult family home to serve

them on an interim basis pending the appeal of BOZA’s

decision.

Because slight modifications to the building were needed

to accommodate the two women, ORP hired a contractor

and applied for a building permit. Commissioner Jensen,

however, had a note placed in ORP’s file that no permit

could be issued for any work at 2850 North Menomonee

River Parkway without his approval or that of another

deputy commissioner. The City took the position that any

use of the premises by ORP would constitute an “illegal

business,” even if only two persons lived at the home.

Due to the impending expiration of Janet K.’s and Valerie

D.’s brain injury waivers, the plaintiffs filed a motion for

a preliminary injunction on November 7, 1997. On No-

vember 26, 1997, by agreement of the parties, Janet K. and

Valerie D. moved into the premises on an interim ba-

sis pending the resolution of this case.4 The plaintiffs filed

their motion for partial summary judgment on March 13,

1998, and the defendant filed a cross motion for summary

judgment on April 14, 1998.

3

(...continued)

that, because of the 2,500-foot rule, no one could open a group

home anywhere in the City of Milwaukee other than in two

aldermanic Districts or in nine prohibitively expensive suburbs

in Milwaukee County.

4

The group home is now operating at full capacity with six

residents.

10 No. 01-1002

The case was assigned to a magistrate who filed a

recommendation with the court on January 27, 1999.

In that recommendation, the magistrate (1) rejected the

City’s argument that the current ordinance provides a

reasonable accommodation for disabled persons who

wish to live in community living arrangements; (2) found

that the plaintiffs met their burden of showing that

the requested accommodation did not impose undue

financial or administrative burdens on the City or require

a fundamental alteration in the nature of the program

and therefore was a reasonable accommodation; (3) found

that the plaintiffs met their burden of showing that the

accommodation requested by the City was necessary to

allow the plaintiffs to have an equal opportunity to live

in a single family neighborhood in the City of Milwau-

kee; (4) found that the City failed to submit sufficient

evidence to establish that the variance would impose an

undue financial or administrative burden; and (5) found

that the City failed to reasonably accommodate the plain-

tiffs.

On March 16, 1999, the district court issued its order

addressing the City’s objections and adopting the magis-

trate’s recommendation in full. After a trial on damages,

on November 30, 2000, the district court awarded com-

pensatory damages to ORP in the amount of $207,841

and to Janet K. and Valerie D. each in the amount of

$12,500. The district court did not, however, enjoin the

City from enforcing the spacing ordinance.

II.

A. Reasonable Accommodation

The plaintiffs maintain that the City’s refusal to grant

them an exception to the 2,500-foot rule violates both

the FHAA and the ADA. The Fair Housing Act (FHA)

was enacted “to provide, within constitutional limita-

No. 01-1002 11

tions, for fair housing throughout the United States.” 42

U.S.C. § 3601. The amendments to the Fair Housing Act,

contained in the FHAA, specifically prohibit discrimina-

tion in housing on the basis of disability. 42 U.S.C.

§ 3604(f). The FHAA makes it illegal

(1) To discriminate in the sale or rental, or to other-

wise make unavailable or deny, a dwelling to any buy-

er or renter because of a handicap of—(A) that buyer

or renter, . . . (2) To discriminate against any person

in the terms, conditions, or privileges of sale or rental

of a dwelling, or in the provision of services or facilities

in connection with such dwelling, because of a handicap

of—(A) that person.

42 U.S.C. § 3604(f)(1)-(2). It is worded as “a broad man-

date to eliminate discrimination against and equalize

housing opportunities for disabled individuals.” Bronk

v. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995). Unlawful

discrimination includes “a refusal to make reasonable ac-

commodations in rules, policies, practices, or services, when

such accommodations may be necessary to afford such

person equal opportunity to use and enjoy a dwelling.” 42

U.S.C. § 3604(f)(3)(B). The FHAA defines handicap as “(1)

a physical or mental impairment which substantially limits

one or more of such person’s major life activities, (2)

a record of having such an impairment, or (3) being re-

garded as having such an impairment.” 42 U.S.C. 3602(h).

Congress explicitly intended for the FHAA to apply

to zoning ordinances and other laws that would restrict

the placement of group homes. H. R. Rep. No. 100-711, at

24 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185

(stating that the amendments “would also apply to state

or local land use and health and safety laws, regulations,

practices or decisions which discriminate against individu-

als with handicaps”); see also Hemisphere Bldg. Co. v.

Village of Richton Park, 171 F.3d 437, 438 (7th Cir. 1999)

12 No. 01-1002

(“the cases hold or assume . . . that the [FHAA] applies

to municipalities, and specifically to their zoning deci-

sions”); Larkin v. Michigan Dep’t of Soc. Servs., 89 F.3d

285, 289 (6th Cir. 1996) (noting that Congress intended

for the FHAA to apply to zoning ordinances that restrict

the placement of group homes).

Like the FHAA, the ADA “provide[s] a clear and compre-

hensive national mandate for the elimination of discrim-

ination against individuals with disabilities.” 42 U.S.C.

§ 12101(b)(1). Under the proscriptions of the ADA, “no

qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activ-

ities of a public entity, or be subjected to discrimination by

any such entity.” 42 U.S.C. § 12132. Although the ADA

does not explicitly define “services, programs, or activ-

ities,” the regulations promulgated pursuant to the act

state that “title II applies to anything a public entity

does.” 28 C.F.R. pt. 35, app. A. The courts to have consid-

ered the issue have held that the ADA clearly encom-

passes zoning decisions by local government entities. Reg-

ional Econ. Comty. Action Program, Inc. v. City of Mid-

dletown, Nos. 00-6318, 00-6354, 2002 WL 449493, at * 4 (2d

Cir. N.Y. Feb. 19, 2002) petition for cert. filed, No. 01-1624

(May 3, 2002); Bay Area Addiction Research and Treat-

ment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir.

1999).

The definition of a disability under the ADA is sub-

stantively identical to that in the FHAA. 42 U.S.C.

§ 12102(2). Furthermore, as with the FHAA, under the

ADA, a public entity must reasonably accommodate a

qualified individual with a disability by making changes in

rules, policies, practices, or services when needed. Dadian

v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001); see

also 28 C.F.R. § 35.130(b)(7) (stating in regulations inter-

preting Title II of the ADA, “[a] public entity shall make

No. 01-1002 13

reasonable modifications in policies, practices, or proce-

dures when the modifications are necessary to avoid dis-

crimination on the basis of disability, unless the public

entity can demonstrate that making the modifications

would fundamentally alter the nature of the service, pro-

gram or activity”). The “ ‘reasonable accommodation’ pro-

vision prohibits the enforcement of zoning ordinances and

local housing policies in a manner that denies people with

disabilities access to housing on par with that of those

who are not disabled.” Hovsons, Inc. v. Township of Brick,

89 F.3d 1096, 1104 (3d Cir. 1996) (internal citation omit-

ted).

The FHAA requires accommodation if such accommo-

dation (1) is reasonable, and (2) necessary, (3) to afford a

handicapped person the equal opportunity to use and enjoy

a dwelling. 42 U.S.C. § 3604(f)(3)(B); see also Howard

v. City of Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002);

Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284

F.3d 442, 457 (3d Cir. 2002); Bryant Woods Inn, Inc. v.

Howard County, Maryland, 124 F.3d 597, 603 (4th Cir.

1997); Smith & Lee Assoc. v. City of Taylor, Michigan,

102 F.3d 781, 794 (6th Cir. 1996). The requirements for

reasonable accommodation under the ADA are the same

as those under the FHAA. 42 U.S.C. 12131(2); see also

Dadian, 269 F.3d at 838 (analyzing the requirement to

reasonably accommodate under the ADA and FHAA as

one); and compare Erdman v. City of Fort Atkinson, 84 F.3d

960, 962 (7th Cir. 1996) (stating that the term “reasonable

accommodation” in the FHAA is often interpreted by

analogy with the same phrase in the Rehabilitation Act),

with Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir.

1996) (noting that the definition of “reasonable accommo-

dation” in the Rehabilitation Act is the same as that in the

ADA).

The burden is on the plaintiffs to show that the accom-

modation it seeks is reasonable on its face. USAirways,

14 No. 01-1002

Inc. v. Barnett, ___ U.S. ___, ___, 122 S. Ct. 1516, 1523

(2002). Once the plaintiffs have made this prima facie

showing, the defendant must come forward to demon-

strate unreasonableness or undue hardship in the partic-

ular circumstances. Id.; see also Vande Zande v. Wiscon-

sin Dep’t of Admin., 44 F. 3d 538, 543 (7th Cir. 1995).5

The City argues that the plaintiffs bear the burden

of proof with respect to the issue of reasonable accommo-

dation, citing both the Fifth and Fourth circuits in Bryant

Woods Inn, Inc., 124 F.3d at 603-604 and Elderhaven,

Inc. v. City of Lubbock, Texas, 98 F.3d 175, 178 (5th Cir.

1996). The City, however, offers no reason for choosing

this regime over the method used by the Second, Third,

Eighth, Ninth, and Tenth Circuits which require a plain-

tiff to make an initial showing that an accommodation is

reasonable, but then places the burden on the defendant

to show that the accommodation is unreasonable. See

e.g., Lapid-Laurel, L.L.C., 284 F.3d at 457; Vinson v.

Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002), petition for

cert. filed, No. 01-1878 (June 20, 2002); Jackan v. New York

State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000), cert.

denied, 531 U.S. 931 (2000); Fjellestad v. Pizza Hut of

America, Inc., 188 F.3d 944, 950 (8th Cir. 1999); White v.

York Int’l Corp., 45 F.3d 357, 361 (10th Cir. 1995). And

though this Court has never explicitly labeled the test it

employs, in Vande Zande, 44 F.3d at 543, we describe a

5

This burden-shifting analysis applies to the “necessary” and

“equal opportunity” elements of the requirement as well, as “a

plaintiff is in the best position to show what is necessary to afford

its clients (i.e., the handicapped population that it wishes to serve)

an equal opportunity to use and enjoy housing, [while] a defen-

dant municipality is in the best position to provide evidence

concerning what is reasonable or unreasonable within the con-

text of the zoning scheme.” See Lapid-Laurel, L.L.C., 284 F.3d at

458-59.

No. 01-1002 15

process similar to that used by the Second, Third, Eighth,

Ninth, and Tenth Circuits in evaluating the reasonable-

ness of a requested accommodation under the FHAA:

The employee must show that the accommodation is

reasonable in the sense both of efficacious and of

proportional to costs. Even if this prima facie showing

is made, the employer has an opportunity to prove

that upon more careful consideration the costs are

excessive in relation either to the benefits of the accom-

modation or to the employer’s financial survival or

health.

Id. See also, USAirways, Inc., ___ U.S. ___, 122 S. Ct. at

1523 (acknowledging the burden-shifting regime used by

appellate courts).

We begin by focusing on the definitions of the three

key elements of a reasonable accommodation: “reasonable,”

“necessary,” and “equal opportunity.” Whether a requested

accommodation is reasonable or not is a highly fact-spe-

cific inquiry and requires balancing the needs of the par-

ties. Dadian, 269 F.3d at 838. An accommodation is rea-

sonable if it is both efficacious and proportional to the

costs to implement it. Vande Zande, 44 F.3d at 543. An

accommodation is unreasonable if it imposes undue fi-

nancial or administrative burdens or requires a fundamen-

tal alteration in the nature of the program. Erdman, 84

F.3d at 962 (internal citations omitted). In assessing costs,

the court may look at both financial and administra-

tive costs and burdens. Bryant Woods Inn, Inc., 124 F.3d

at 604. A zoning waiver is unreasonable if it is so “at

odds with the purposes behind the rule that it would be

a fundamental and unreasonable change.” Dadian, 269

F.3d at 838-39.

“Whether the requested accommodation is necessary

requires a ‘showing that the desired accommodation will

affirmatively enhance a disabled plaintiff’s quality of life

16 No. 01-1002

by ameliorating the effects of the disability.’ ” Dadian,

269 F.3d at 838 (citing Bronk, 54 F.3d at 429). In other

words, the plaintiffs must show that without the re-

quired accommodation they will be denied the equal op-

portunity to live in a residential neighborhood.

In this context, “equal opportunity” means the oppor-

tunity to choose to live in a residential neighborhood.

Lapid-Laurel, L.L.C., 284 F.3d at 460; Smith & Lee

Assoc., 102 F.3d at 794. The FHAA “prohibits local govern-

ments from applying land use regulations in a manner that

will . . . give disabled people less opportunity to live in

certain neighborhoods than people without disabilities.”

Smith & Lee Assoc., 102 F.3d at 795 (internal citation

omitted). Often, a community-based residential facility

provides the only means by which disabled persons can live

in a residential neighborhood, either because they need

more supportive services, for financial reasons, or both.

Erdman, 84 F.3d at 963; Brandt v. Village of Chebanse,

Illinois, 82 F.3d 172, 174 (7th Cir. 1996); Larkin, 89 F.3d

at 291; Hovsons, Inc., 89 F.3d at 1105; Smith & Lee

Assoc., 102 F.3d at 795-96. When a zoning authority refuses

to reasonably accommodate these small group living fa-

cilities, it denies disabled persons an equal opportunity

to live in the community of their choice. Erdman, 84 F.3d

at 963.

Turning to the facts in this case, the City argues that

it reasonably accommodates group homes in two ways.

First, it permits group homes in single family districts

without qualification if they are not within 2,500 feet of

one another. For those that are less than 2,500 feet

from another group home, the ordinance allows the fa-

cility to apply for a waiver through BOZA’s hearing proc-

ess. Yet under no circumstances is BOZA required (or

even encouraged) to grant a variance in favor of a group

home. And the right to appeal to BOZA for a variance

is not in and of itself an accommodation. As the district

No. 01-1002 17

court pointed out, “merely because a group home will

have the right to open in limited cases is not an accom-

modation, however, it is merely good fortune. It is just

as likely, as in the present case, that the proposed home

will fall within 2,500 feet of another group home rule and

permit the municipality to veto the opening of the home

in the first instance.” Oconomowoc Residential Programs,

Inc. v. City of Milwaukee, No. 97-C-251, slip op. at 13 (E.D.

Wis. Mar. 16, 1999).

Since the City’s current system does not provide a

reasonable accommodation, we look to see whether the

accommodation requested by the plaintiffs (1) is reason-

able, and (2) necessary, (3) to allow them an equal opportu-

nity to use and enjoy housing in the City.

The plaintiffs assert that the variance they request is

a reasonable accommodation that would pose significant

benefits to developmentally disabled and brain injured

persons by allowing them to live together in a family set-

ting in a residential community without imposing undue

financial or administrative burdens on the City. The City

counters that the variance requested by the plaintiffs

would be unreasonable. As support for its proposition, the

City focuses on ORP’s history of problems operating other

group homes, dangers emanating from the high volume

of traffic along the Menomonee River Parkway during

certain times of the day and year, the lack of sidewalks

along the road, and the potential for the Menomonee Riv-

er to flood. The City asserts that this evidence demon-

strates that the home would impose undue financial and

administrative burdens upon the City. Yet the City has

failed to put forth evidence regarding the nature or quan-

tity of these burdens.

For example, though the City describes many DHFS-

written reports about ORP, describing individual instances

of client over-medication, sexual abuse, neglect, physical

18 No. 01-1002

abuse, client outbursts and fighting, police calls, and the

drowning death of an elderly resident, it fails to link

this laundry list of problems in other facilities with any

financial or administrative burdens it might bear with

this particular facility. Although any claim of abuse or

neglect of disabled or elderly group residents is troubling,

the state licensing authority has the burden of assuring the

safety and security of group home residents through its

licensing authority.6 The state has never refused, revoked,

or suspended an ORP license to operate. The City ar-

gues that ORP’s past errors “tend to establish a burden”

and that “it stands to reason that the City of Milwaukee

will have the likelihood of an increased burden with a

group home operated by this particular provider.” Reply

brief at 7 (emphasis supplied). But this type of specula-

tion fails to support the City’s claim of unreasonableness.

The City did not put forth evidence that police calls

from the group home will pose an undue burden. In its

description of prior problems ORP has had at other homes,

the City notes that the police were called to two other

group homes on several occasions to respond to physical

outbursts or combative behavior by residents.7 Again, the

City did not demonstrate that the group home at issue

in this case is any more likely to generate calls to the po-

lice than other area residents. There is simply no evi-

6

This same list of complaints about other ORP facilities was

presented to the court by the defendant in Oconomowoc Residen-

tial Programs, Inc. v. City of Greenfield, 23 F. Supp. 2d 941, 958

(E.D. Wis. 1998). Like the district court in the instant case, the

district court in that case dismissed this evidence as pertaining to

matters related to licensing rather than zoning.

7

ORP claims that the City did not distinguish between homes for

those with chronic mental illness, which generate more police

calls, and homes for the developmentally disabled or traumatically

brain injured.

No. 01-1002 19

dence anywhere in the record that group facilities impose

on the City additional costs for emergency services. We

are left to speculate that the police receive more com-

plaints about group homes than they do about other

neighborhood residences, that they respond to more re-

quests from group homes, and that they would receive

more calls from this particular group home.

As for the other alleged dangers, the majority of the

evidence regarding the dangers imposed by the group

home’s geographic proximity to the river and the

Menomonee River Parkway came from anecdotal testi-

mony of various neighbors of the proposed facility, who

also expressed concern about the potential for brain in-

jured individuals to become violent and to threaten the

safety of the neighborhood. The City cannot, however,

rely on the anecdotal evidence of neighbors opposing the

group home as evidence of unreasonableness. A denial of

a variance due to public safety concerns or concerns for

the safety of the residents themselves cannot be based

on blanket stereotypes about disabled persons rather

than particularized concerns about individual residents.

Bangerter v. Orem City Corp., 46 F.3d 1491, 1503-04

(10th Cir. 1995). The FHAA “repudiates the use of stereo-

types and ignorance, and mandates that persons with

handicaps be considered as individuals. Generalized

perceptions about disabilities and unfounded speculations

about threats to safety are specifically rejected as grounds

to justify exclusion.” Id. (quoting H.R. Rep. No. 100-711

at 18 (1988), 1988 U.S.C.C.A.N. 2173, 2179). The City

has not presented any valid evidence that the residents

who this group home seeks to serve will present a threat

either to their own safety or the safety of others. On the

other side of the traffic coin, the City’s own engineer tes-

tified that the proposed group home would not have a

significant adverse impact on traffic and therefore will not,

in this fashion, impose any financial or administrative

burdens on the City.

20 No. 01-1002

Similarly, the City made much of the potential for

flooding near the group home, but again failed to provide

any evidence that the group home would pose any higher

burden on the City’s emergency services than would

any other residences in the flood-prone area. The one

instance of flooding that the City cites in its brief took

place four months after the BOZA hearing and after BOZA

had already voted to deny the variance. The City’s sole

support of undue burden emanating from the flood zone

comes from the affidavit of a firefighter who, while the

Menomonee River had flooded, responded to a mistaken

claim that gas was leaking in a group home for the elderly.

The mere fact that residents of the proposed group home

“will at times require the assistance of the local police

and other emergency services does not rise to the lev-

el of imposing a cognizable administrative and financial

burden upon the community.” Hovsons, Inc., 89 F.3d

at 1105.

For the same reasons, the City’s argument about the

burden imposed by the clustering of group homes fails. The

City asserts that over-concentration of group homes will

result in disproportionate costs to emergency services for

those facilities. Yet again, the City fails to explain how

two group homes located close together will place a greater

demand on emergency services than those same two

homes placed 2,500 feet apart.

The plaintiffs, on the other hand, have met their burden

of demonstrating that the variance was necessary to pro-

vide them with an equal opportunity to use and enjoy a

dwelling. Janet K. and Valerie D.’s range of residential

living choices is restricted by their disabilities. Both require

a living arrangement where supportive services are avail-

able twenty-four hours a day. Janet K.’s home must be

wheelchair accessible. Neither woman could afford to pur-

chase a home on her own. The other disabled persons

that ORP serves similarly are unable to live in residen-

No. 01-1002 21

tial communities without the resources of a group home

facility.

The City argues that the plaintiffs needed to present

evidence of the City’s treatment of non-disabled renters,

students, rooming home residents, or other individuals who

are similarly situated in order to demonstrate that they

were denied an equal opportunity to live in a residential

neighborhood. The City, however, ignores the fact that

group living arrangements can be essential for disabled

persons who cannot live without the services such arrange-

ments provide, and not similarly essential for the non-

disabled.

Because the spacing ordinance draws a nearly half mile

circle around each existing group home, it currently pre-

cludes new group homes from opening in most of the City

of Milwaukee, thus preventing disabled adults who can-

not live without some support from residing in almost

all residential neighborhoods within the City. ORP pre-

sented evidence to BOZA regarding the shortage of facilities

in the City for persons with traumatic brain injury. Fur-

thermore, despite the fact that courts had ordered both

Janet K. and Valerie D. into less restrictive community

living arrangements, both remained in large institutions

for some time until the ORP opened the home at 2850

North Menomonee River Parkway for them. A variance

was absolutely essential for the plaintiffs to have the

equal opportunity to live in a residential community.

The plaintiffs sufficiently established that the accommo-

dation was reasonable and necessary to provide them

with an equal opportunity to enjoy housing in a residential

community in Milwaukee. The burden then shifted to

the City to prove either that the accommodation was

22 No. 01-1002

unreasonable or that it created an undue hardship.8 At

this point, these two options merge, since in this case

showing a lack of reasonableness or undue hardship

amount to the same thing. See Walton v. Mental Health

Ass’n, 168 F.3d 661, 670 (3d Cir. 1999). The City failed to

carry its burden on either front.

B. Preemption

The City urges this Court to determine that the FHAA

and ADA do not preempt the City’s spacing ordinance. Such

a finding, however, is unnecessary. Because we have de-

termined that the City failed to provide a reasonable

accommodation, we decline to decide whether the FHAA

or the ADA preempts the spacing ordinance.

III.

For the reasons stated above, we affirm the district

court’s grant of partial summary judgment in favor of the

plaintiffs ORP, WCA, Janet K. and Valerie D., and its

denial of summary judgment for the defendant, City of

Milwaukee.

AFFIRMED.

8

As the Supreme Court reiterated this term, the burden of dem-

onstrating undue hardship always remains with the defendant.

USAirways, Inc., ___ U.S. at ___, 122 S. Ct. at 1522-23.

No. 01-1002 23

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—8-8-02