would have made the same decision simply on the basis of its ordinance need not be decided on this motion. As discussed below, even if Skokie did not act with an improper motive, North Shore has demonstrated a reasonable likelihood that it will be able to show that Skokie's refusal to allow it to open its home has a discriminatory impact on the brain injured individuals it hopes to serve.
At the evidentiary hearing, North Shore presented convincing evidence that a facility such as North Shore's is needed, that brain-injured persons would have a much better chance for a successful rehabilitation if they could spend time in a facility such as the one North Shore proposes, and that the Karlov Street location is important because it is in a quiet neighborhood yet located near transportation and other public services.
Section 804(f)(3)(B) of the Fair Housing Act, as amended, makes it unlawful to fail to make "reasonable accommodations in rules, policies, practices or services . . . necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). "Reasonable accommodation" has been defined as "changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual." Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 462 n.25 (D.N.J. 1992).
In order to determine whether Skokie's refusal to grant North Shore an administrative occupancy permit is likely to be found to be a violation of the reasonable accommodation provision of the Fair Housing Act, Skokie's zoning laws must be considered. Skokie says North Shore does not meet its requirements because it says it cannot obtain a state license
and because the proposed residents are not intended to reside in the home on a permanent basis.
Skokie did not put on any evidence as to the purpose for its licensing requirement. The only legitimate purpose for the requirement that is apparent would be to provide some assurance that a residence in which persons live who are not a family and who are disabled in some way and under the supervision of others meets at least minimal standards. Even if the requirement serves a health or welfare interest, however, where, as here, the state does not license a particular type of group living facility for the handicapped, Skokie's refusal to allow these people to live together adversely impacts brain injured individuals on the basis of their handicap. Furthermore, North Shore has offered a substitute for state licensure, in volunteering to seek accreditation by CARF, as soon as it can meet the six-month requirement for accreditation. All of the medical witnesses testified that CARF is highly respected, and that it will not accredit a facility that does not meet its high standards. Accordingly, I conclude that North Shore has shown a reasonable likelihood that it will be successful in proving that Skokie's refusal to waive the requirement of a state license fails to make a reasonable accommodation for the handicap suffered by brain injured individuals.
Skokie also argues that because the expected length of time that individuals would reside in North Shore's facility is from three to 18 months, they clearly will not occupy the home on a "permanent" basis as required by the ordinance. Skokie has not defined "permanent" and it does not require that families who occupy a single family residence agree that they will stay "permanently." There is also no requirement that residency be "permanent" in "community live-in residences," which differ from group homes principally in the number of bedrooms. Thus, while long term residency undoubtedly promotes values important to a community, Skokie has failed to offer any reason why residents of a group home such as North Shore's must meet the requirement (or even shown what it means; is a year, for example, "permanent?"), when no other residents in R-1 zoned areas are required to do so. Under these circumstances, I conclude that North Shore is also likely to be able to prove that the requirement of permanency as applied to the proposed residents of North Shore's facility fails to make a reasonable accommodation for their handicap.
The legislative history to the 1988 amendments supports these conclusions. That history states, with respect to zoning laws and practices:
The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community. . . .
House Rep. No. 100-711, 100th Cong. at 24, reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2185 (1988).
These conclusions are also supported by decisions of other courts that have considered the relationship between zoning laws and the Fair Housing Act 1988 amendments as they relate to handicapped individuals. E.g., Horizon House Developmental Services, Inc. v. Township of Upper Southampton, supra, 804 F. Supp. at 683 (E.D. Pa. 1992) (granting injunction against enforcement of ordinance that imposed 1,000 foot spacing requirement between group homes); Oxford House, Inc. v. Township of Cherry Hill, supra, 799 F. Supp. at 450 (granting preliminary injunction against enforcement of zoning ordinance to prevent group of recovering alcoholics from renting and occupying a house in a single family residential zone); Easter Seals Society of New Jersey, Inc. v. Township of North Bergen, 798 F. Supp. 228 (D.N.J. 1992) (granting preliminary injunction requiring town to issue construction permit for construction of home for developmentally disabled); United States v. Borough of Audubon, N.J., supra, 797 F. Supp. at 353 (granting injunctive relief and monetary penalty against town that refused to allow a home for recovering substance abusers in a residential neighborhood).
For all of these reasons, I conclude that North Shore has shown a reasonable likelihood that it will prevail on the merits of this case.
b. Irreparable Injury and Lack of Adequate Remedy at Law
Where a plaintiff has shown a likelihood of success in proving a violation of the Fair Housing Act, irreparable injury is presumed. Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir. 1984). Furthermore, the Seventh Circuit has held that where a statute specifically provides for the grant of injunctive relief, irreparable injury need not be shown. Illinois Bell Telephone Co. v. Illinois Commerce Commission, 740 F.2d 566, 571 (7th Cir. 1984). The Federal Housing Act provides that where "the court finds that a discriminatory housing practice has occurred or is about to occur" the court may grant "any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate)." 42 U.S.C. § 3613(c). North Shore has, in addition, introduced evidence that it is being harmed by the delay, and the evidence showed that due to the lack of homes of the type North Shore proposes to open, brain injured individuals are suffering continuing harm. Thus, even if North Shore had been required to show irreparable harm, I would conclude that it had satisfied the requirement.
It is also clear that North Shore does not have an adequate remedy at law. Only injunctive relief can provide a remedy where the harm is the inability to obtain an occupancy permit due to zoning restrictions.
c. Balance of Harms and Public Interest
In its opposition to the motion for a preliminary injunction, Skokie has not argued that it will be harmed by the issuance of a preliminary injunction. I agree that the evidence does not indicate any such harm. While at the public hearing before the Village board, residents did express concern that their children would be harmed, there is no evidence in the record that would support such fears. Indeed, as noted earlier, the fears expressed appear to be exactly the kind of irrational and "unfounded speculations about threats to safety" that the 1988 amendments to the Fair Housing Act "specifically rejected as grounds to justify exclusion." House Report No. 100-711 supra, at 18, 1988 U.S. Code Cong. & Admin. News at 2179.
I also conclude that the public interest will be served by the entry of an injunction in this case. As the court noted in Baxter v. City of Belleville, supra, 720 F. Supp. at 734, "the public interest can best be served if discriminatory actions based on irrational fears, piecemeal information and 'pernicious mythologies' are restrained." The residents on Karlov Street do have a legitimate interest in maintaining the quality of their neighborhood, which is apparently a quiet, peaceful street. At the Village board hearing, there appeared also to be some concern that too many vehicles might be parked at the residence. While it seems unlikely that the brain injured residents will be able to drive (an assumption I make from the testimony in general since this issue was not specifically addressed), Skokie can probably put reasonable limits on the number of vehicles that can be parked at North Shore's facility, within the requirements of reasonable accommodation under the Fair Housing Act.
For the reasons stated in this opinion, I recommend that North Shore's motion for entry of a preliminary injunction be granted. I note that while North Shore seeks an injunction requiring Skokie to issue the occupancy permit, that would be premature. North Shore must comply with all reasonable requirements for issuance of an occupancy permit. Skokie, and the prospective residents of the facility, have a right to have the usual rules and inspections that would apply to any other facility applied to North Shore's proposed home. Skokie should not, however, be allowed to delay or refuse any permit, including the occupancy permit, on the ground that its zoning ordinance does not permit the proposed North Shore facility.
ELAINE E. BUCKLO
United States Magistrate Judge
Dated: May 20, 1993.