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August 25, 1989


The opinion of the court was delivered by: STIEHL


 This matter is before the Court on plaintiff's motion for preliminary injunction. Plaintiff, Charles Baxter, seeks injunctive relief against the defendant, City of Belleville, Illinois (City), requiring the City to allow Baxter to open a residence intended to house persons with Acquired Immune Deficiency Syndrome (AIDS). Baxter claims that his rights under the Fair Housing Act, 42 U.S.C. § 3601, et seq. (FHA), and the Fourteenth Amendment have been violated by the City's refusal to grant him a special use permit for the property in question.


 On March 27, 1989, Baxter filed an application with the Belleville Zoning Board for a special use permit for a residence he desires to establish in the City of Belleville to provide housing for AIDS infected persons. On April 27, 1989, the Zoning Board voted to recommend that Baxter's request be denied. That recommendation was then presented to the Belleville City Council at its May 15, 1989 meeting. Baxter's request for a special use permit was denied by a 9 to 7 vote of the Council.

 Baxter filed his complaint for declaratory and injunctive relief on June 13, 1989. This Court heard evidentiary testimony on the motion for preliminary injunction, after which it ordered the parties to file post-hearing memoranda.


 Upon review of the record, the Court finds, based on the evidence adduced at the hearing, the following:



 On March 22, 1989, Baxter signed a one-year lease as lessee for the property known as 301 South Illinois Street, Belleville, Illinois. The lease contained an option for a one-year renewal, as well as an option to purchase.

 After experiencing some difficulty over an acceptable corporate name, Baxter formed a not-for-profit corporation named Baxter's Place to operate the property. He called the residence he hoped to establish: "Our Place."

 On March 27, 1989, Baxter filed an application for a special use permit for the property. On the application under paragraphs 3(a) which requests the applicant to detail the "nature of the proposed use, . . . the type of activity, manner of operation, number of occupants . . .", Baxter listed the following:

 1. Hospice for Terminally Ill Patients

 2. Structured supervision

 3. limited excess [sic] to public

 4. No more then [sic] 7

 Baxter, on the advice of counsel, who also was a lessor of the property, changed the first listing from "Hospice for AIDS care" to "Hospice for Terminally Ill Patients." Under that part of the application entitled "Recommendation of Zoning Administrator," the following appears:

If such a facility is needed in Belleville, this property would serve the purpose.
S/Stan Spehn


 The Zoning Board hearing was held on April 27, 1989. Baxter's counsel made a lengthy presentation to the Board including traffic and parking impact, availability of local medical facilities, current zoning of the property and a description of the location. She told the Board that no one in the area opposed the special use request. Copies of an exchange of letters between Hospice of Southern Illinois and Baxter were presented to the Board with respect to the use of the term "hospice." However, not until the end of the presentation to the Zoning Board was it revealed that the residents of Our Place would be AIDS patients.

 The Board members asked Baxter a number of questions, including whom he intended to house in the facility. Baxter told the Board that he would be housing AIDS patients. The majority of the questions asked of Baxter concerned the members' fear of AIDS. The questions included: how potential residents would be screened; supervision of the residents; effect on the junior high school across the street; how Baxter would handle sanitation, including disposal of body fluids; why he chose Belleville for the residence; needs in Belleville for such a residence; and, whether Baxter, himself, was homosexual or had tested positive for the Human Immunodeficiency Virus (HIV).

 Baxter informed the Board of his extensive history of providing in-home care for critically ill patients, including AIDS patients in the final stages of their disease. He spoke of three persons in Belleville who were HIV-infected and homeless and of Red Cross statistics to the effect that there are 3000 HIV-positive cases in Madison and St. Clair Counties. He also told the Board that he personally had spoken with the Superintendent of Schools about his plans for Our Place, and that the Superintendent had said that he had no problem with the residence plans. Baxter told the Board that AIDS persons deserved to live with dignity so that they could die with dignity.

 Our Place is located in the 6th Ward, and both 6th Ward aldermen were present at the hearing. No opposition was raised by any member of the audience. The Board voted unanimously to recommend to the Board of Aldermen that Baxter's request for special use permit be denied.

 The City designated Frank Heafner, one of the members of the Zoning Board, to testify on behalf of the Zoning Board. He testified that one of the important reasons the Board recommended denial of the permit was that Our Place would be close to a junior high school. The Board was also concerned with the potential change in property values in the area, and that people might stay away from that part of Belleville. He also stated that the Board was concerned with Baxter's lack of qualifications and they were uncertain how he was going to accomplish his plans. Heafner testified that it was the belief of the Board that Baxter would need more training, although he was not able to say exactly what training would be necessary to satisfy the Board's concerns. The Board members also expressed concern about the potential spread of AIDS through residents who might be intravenous drug users and homosexuals.

 Heafner testified that he did not recall that the Board made any actual determinations with respect to the following, although these factors were listed on the advisory report of the Zoning Board:

A. The proposed variance is not consistent with the general purposes of this Ordinance; and,
B. Strict application of the district requirements would not result in great practical difficulties or hardship to the applicants, and would not prevent a reasonable return on the property; and,
C. The proposed variance is not minimum deviation from such requirements that will alleviate the difficulties and hardship and would not allow a reasonable return on the property; and,
D. The plight of the applicants is not due to peculiar circumstances; and,
E. The peculiar circumstances engendering this variance request are applicable to other property within the district, and therefore, a variance would not be an appropriate remedy; and,
F. The variance, if granted, will alter the essential character of the area where the premises in question are located, and materially frustrate implementation of the municipality's comprehensive plan.


 The Belleville City Council considered Baxter's request for a special use permit at its regular meeting held May 15, 1989. Alderman Koeneman of the 6th ward, where 301 South Illinois is located, made a motion to overturn the recommendation of the Zoning Board. The motion was seconded by Alderman Seibert, of the same ward.

 Because there were a number of questions from the aldermen, Mayor Brauer requested and received permission from the Council for Baxter to respond to the questions. (No member of the public is permitted to speak at a Council meeting without formal approval by the Council.) Thomas Mabry, a Belleville alderman, was designated by the City to testify on behalf of the City Council. He stated that the majority of the questions from the aldermen were addressed to how the facility would be run and concerns of the aldermen about AIDS. He also testified that the City Council was concerned with the fact that Our Place would affect property values; that many of the residents would be intravenous drug users; and that the facility is located across the street from a junior high school.

 Mabry stated that the main factors in his voting to refuse the special use permit were: (1) Baxter did not convince him that Baxter had the ability to run or fund the facility; (2) Baxter did not have sufficient medical or counseling background to run the facility; (3) Baxter did not have a plan for proper sanitation, specifically, disposal of items that would come into contact with the AIDS virus; and, (4) his major concern was the location of the residence -- in a commercial area, in close proximity to both a junior high school and a grade school.

 He also testified that he understood Baxter's intent to be to establish a residence for seven HIV-infected persons, but that during the meeting Baxter changed the number of prospective residents to four, of whom only two could be in the critical stages of the disease. Mabry admitted that he did not know of Baxter's medical background.

 Mabry has served on both the City Council and the Zoning Board. He stated that the Council generally votes unanimously, and if the two aldermen for the ward in which the applicant property is located vote in favor of a variance, special use permit, or other zoning change, the other aldermen will vote with them. Mabry further testified that he could not recall an instance in which a request that was supported by the two aldermen of the ward in which the property was located had been denied by the Council.

 Arthur Baum, Belleville City Clerk, testified that he was present at the City Council meeting, and confirmed Mabry's testimony as to the nature of the questions asked by the aldermen, and their concerns. Baum understood Baxter's intended use of the facility to be for the housing of terminally ill AIDS patients in the last stages of their disease. He stated that no one on the Council referred to any medical authorities or experts, and that to his knowledge none were consulted by the Council. He further testified that there was no specific determination by the Council as to the health and safety issues, although the vote indicated the Council's position. Baum testified that the aldermen made it clear that they were concerned about and feared the spread of HIV into the community if Our Place were allowed to open.

 Baum testified that he has been City Clerk for ten years, and that he does not know of any other instance during that time when the Council voted against a request supported by the two aldermen of the ward in which the property was located.


 Baxter has been a home healthcare provider for fifteen years. His general responsibilities included bathing, feeding, hygiene, administering all medications but injections, cleaning and dressing sores, changing linen, laundry duties, and cooking. He receives referrals from social workers and nursing agencies and is registered with a number of health care organizations. Among those he has cared for were three AIDS patients in the last stage of the disease.

 He became interested in caring for AIDS patients in 1987. Since that time has has received training in AIDS patient care from St. Elizabeth's Hospital in Belleville. He studied with an infectious control nurse on obstruction of the virus, self-protection and hygiene. As part of this study, he received written materials on AIDS to review. He also received instruction on the proper terminology related to HIV infections, clinical analysis, methods of transmission and elimination of the risk of transmission. He has completed the first two parts of three of an organized training program on AIDS at St. Elizabeth's. He did not complete the third part because he left to care for an AIDS patient.


 Plaintiff's expert, Robert L. Murphy, M.D., testified at length and in great detail as to the genesis, transmission and physiological development of the Human Immunodeficiency Virus, commonly referred to as "HIV." Dr. Murphy is a full-time Assistant Professor at Northwestern University Medical School, and is the Director of the AIDS Clinic and AIDS Clinical Research and Treatment Facility at Northwestern Memorial Hospital, Chicago, Illinois. He is a clinical coordinator for the AIDS Biopsychosocial Center at Northwestern University Medical School and Director of the Sexually Transmitted Disease Clinic at Memorial Hospital. He is also a medical consultant to the Center for Disease Control -- Midwest Regional STD (Sexually Transmitted Disease) Training Center. The Court finds that Dr. Murphy is qualified as an expert in the field of sexually transmitted diseases.

 The City did not attempt to refute or rebut Dr. Murphy's testimony by offering its own expert. The Court, therefore, makes the following findings with respect to HIV, and its transmission:

 1. The Human Immunodeficiency Virus -- Strain 1, a retrovirus, was not known in the United States before 1977. The identification of the virus did not occur until 1984. The difficulty in identifying the virus and its relationship to AIDS has resulted in some confusion as to the proper nomenclature. AIDS is the end of the spectrum of the HIV infection, and was the name originally given to the disease by the National Center for Disease Control in Atlanta (CDC) before scientists knew that the source of AIDS was HIV infection. The CDC is the largest epidemiological center in the world, and is responsible for tracking three dozen different diseases. HIV is the largest scientific study at the CDC.

 2. There are only three known methods of transmission of the HIV infection: through the exchange of body fluids in sexual intercourse; exposure to infected blood products; and, transmission interutero from an infected mother to a fetus, or, after birth, through breast milk. ...

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