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NORTH SHORE-CHICAGO REHABILITATION INC. v. VILLAGE

May 20, 1993

NORTH SHORE-CHICAGO REHABILITATION INC., Plaintiff,
v.
VILLAGE OF SKOKIE, Defendant.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Plaintiff North Shore-Chicago Rehabilitation, Inc. ("North Shore") seeks a preliminary injunction preventing defendant Village of Skokie ("Skokie") from enforcing a zoning ordinance or taking any other action to prevent North Shore from operating a home for handicapped individuals at a location leased by North Shore in Skokie. North Shore asks, in addition, for an order requiring Skokie to issue an Administrative Occupancy Permit to North Shore for its home. North Shore's action is brought pursuant to the Fair Housing Act as amended in 1988, 42 U.S.C. § 3601 et seq. This court has jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 3613. North Shore submitted affidavits and a videotape of a Skokie Village board meeting in support of its motion. I also heard testimony and have considered the briefs filed by the parties as well as by the United States, as amicus curiae. For the reasons that follow, I recommend that a preliminary injunction be granted.

 Findings of Fact

 North Shore is an Illinois corporation that intends to provide a therapeutic program for traumatically brain injured adults. The purpose of the program is to reintegrate these people into the community both vocationally and socially. Part of the program is to provide residential housing to assist these persons in being restored to independent living. North Shore intends that the persons living together will function as a family, sharing responsibility for meal preparation and cleaning, and participating in recreational activities.

 North Shore has leased a residential home at 9335 North Karlov in Skokie. The home is owned by James A. Young, M.D., who is also president of the executive board of North Shore. The area in which the home is located is zoned R-1, a single family dwelling district under Skokie's zoning ordinance. North Shore intends to use the dwelling as a residence for up to eight individuals in its rehabilitation program. Each of the persons who will live at the home has some physical or mental impairment associated with his or her brain injury that substantially limits one or more life activities.

 Dr. Young testified that people may become brain injured through motor vehicle accidents, near drowning, strangulation, or the rupture of a blood vessel, and that a brain injury is a lifetime disability. He testified that brain injured persons are almost always initially hospitalized until the injury is stabilized. Often they are then transferred to an acute rehabilitation facility. They may then go back to their homes and become out-patients in a hospital, or take part in a "day hospital," or move to a residential setting apart from their own home. Dr. Young, who is a board certified neurologist, testified that a day treatment program works well for only a small number of patients. He stated that a patient at this stage of recovery is far from normal, that families often do not know how to cope with the brain injured person, and that the rehabilitation outcome is much less successful when a patient returns home at night than in a 24-hour residential group home. Dr. Young explained that brain injured persons have many problems. For example, they may have lost the ability to understand the subtleties of conversation or their visual perception may be off. While the effects of brain injury vary widely, they may include impairment of auditory or speech function, concentration and comprehension, and may involve epilepsy. They may have trouble making decisions. Dr. Young testified that in order for such persons to be able to return successfully to independent living and working, they have to relearn basic skills. Dr. Young also testified that last year there were 9,000 head injuries in Illinois, and that 90 percent of these individuals suffered brain injuries.

 Dr. Young also testified regarding the proposed facility. He stated that only persons who met a neurological standard of "Rancho 5" or better would be allowed to live in the home. A "Rancho 5" level of recovery means that the patient is still confused but is non-agitated. (A level 6 rating means the person is still confused, and may react inappropriately, for instance laughing or crying at odd times. At level 7, the person is better, though still confused. At level 8, the person is not confused, and acts appropriately.) The home would be staffed 24 hours a day with a psychologist and para-professionals. The group home, according to Dr. Young, would facilitate recovery in several ways. First, the persons living there would be required to live and work with others in such activities as cooking, cleaning and planning recreational activities. They would have regular group discussions regarding not only the home interaction, but also problems encountered at work. A group counsellor or "job coach" would accompany each person to work (they would obtain career counselling and return either to a former job or attempt to find a new one) and other counsellors would accompany residents at other times. Dr. Young explained that most residents (who would be paying $ 500.00 a day) come from residential settings like Karlov Street, and the similar atmosphere helps in their recovery. The Karlov location would also be helpful because residents can easily go places such as the park, a movie, or the store. Dr. Young testified that he expected persons to live in the Karlov home from three to 18 months.

 Other witnesses supported Dr. Young's testimony regarding the need for group homes such as North Shore's proposed home. Dr. Valerie Ito, director of the brain injured program at the Rehabilitation Institute of Chicago, testified that often persons are ready to leave places such as the Rehabilitation Institute but are not ready to go home. At a group home they can relearn skills such as taking a bus or going shopping, participate in vocational training and finally, begin employment or begin volunteer work. She testified that many people at the stage at which they would go to North Shore need supervision. She testified that if North Shore was in operation she would refer patients there. She also testified that North Shore's proposed facility is not a nursing home, which is a place where people are fed meals prepared by staff, and given medical care.

 Dr. Jeri Morris, a psychologist specializing in neuro-psychology, who treats brain injured people and is on the faculty of the Rehabilitation Institute and Northwestern University Medical School, also testified that a transitional facility such as North Shore's would benefit brain injured persons because they could practice, under supervision, the life skills they need to become reintegrated in society.

 Dr. Kevin Hartigan, a psychologist, is the vice president and clinical psychologist for North Shore and would be responsible for the clinical program at the facility. Dr. Hartigan testified that the group home would provide a community in which people could live and practice social and vocational skills, under 24-hour supervision. He also testified that in his experience, the effect on family members of a brain injury is traumatic and negative, and that allowing the injured person to recover in a group home not only directly helps the injured person but allows the family a better chance at a successful restoration. Dr. Hartigan testified that the group home, with assigned tasks, encouragement in participation in games, etc., will help persons improve concentration and memory. He stated that the atmosphere would lessen the ability of the injured person to simply sit and "vegetate" as often happens when the person returns to his own home prematurely, because the person will have responsibilities to others. The group home, according to Dr. Hartigan, will also help brain injured persons restore the complex nature of cause and effect relationships through practice and discussion, enabling them to cope better with social and work relationships. Dr. Hartigan testified that while clinical competence is more important than where the facility is located, the home setting is important in that a quiet, attractive place will help brain injured persons not to become overstimulated, and will provide a familiar environment to persons who are likely to have come from similar environments before their injuries.

 Marvel Joy Vena, the incoming president of the Illinois Head Injury Foundation, who suffered a brain injury in 1979 as a result of a vehicle accident, testified that group support from other brain injured persons is important because outsiders do not fully understand what brain injured persons are going through. She also testified that her foundation gets many requests for referrals to residential facilities from family members.

 Dr. Elizer Schwartz, a psychologist, testified on behalf of Skokie. Dr. Schwartz agreed with Dr. Young and the other witnesses that a transitional facility such as planned by North Shore would benefit brain injured persons, giving them a better chance to return to independent living. Dr. Schwartz stated that he would like to refer patients of his own to the North Shore facility.

 Skokie's zoning ordinance permits in an R-1 zoned district, in addition to single families (a family is defined as not more than four unrelated persons), "group homes," "community live-in residences," hospitals, schools, colleges and universities, churches, convents and monasteries.

 Skokie defines a "group home" as "a single dwelling unit with five (5) or less bedrooms, occupied on a permanent basis by a group of unrelated persons with handicaps, plus paid professional support staff . . . is state licensed . . . ." The definition further requires a "group home" to have obtained an Administrative Occupancy Permit. To obtain such a permit, the applicant must show that it has "obtained or . . . [is] eligible for state licensing or certification to operate the proposed group home" and demonstrate that the facility will not be located closer than one block or 600 feet of another such facility in R-1 districts. *fn1"

 A "community live-in residence" is defined by Skokie as a dwelling unit containing six or more bedrooms, or a building with two or more dwelling units, "or two (2) or more buildings, operated by a single sponsoring agency, occupied by a group of unrelated adults with handicaps, utilizing common paid professional support staff, operating as a single state licensed facility and in which supervision and/or services are provided in accordance with particular needs in a home-like setting . . . ."

 On January 11, 1993, North Shore applied for an Administrative Occupancy Permit for the home that it wants to operate in Skokie. Prior to submitting its application for an occupancy permit, North Shore had been advised by the Illinois Department of Mental Health & Developmental Disabilities ("DMH") that it did not need a license under either act administered by the DMH (the Community Residential Alternatives Licensing Act and the Community Living Arrangements Licensure and Certification Act) to operate its facility. North Shore had also been told by the Illinois Department of Public Health, Division of Long Term Care Quality Assurance ("DPH"), that its home did not need a license under the Nursing Home Care Act or the Community Living Facilities Act. ...


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