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