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PROVISO ASS'N OF RETARDED CITIZENS v. VILLAGE OF W

December 29, 1995

PROVISO ASSOCIATION OF RETARDED CITIZENS, an Illinois Not-for-Profit Corporation, and CHARLES PETTY and DONNA LEE FITZNER as individuals, Plaintiffs,
v.
VILLAGE OF WESTCHESTER, ILLINOIS, a Municipal Corporation; and JOHN SINDE, President of the Village of Westchester, Illinois, a Corporation, Defendants.



The opinion of the court was delivered by: ASHMAN

REPORT AND RECOMMENDATION

 Several motions are presently before this Court: Plaintiffs' motion for summary judgment on Counts I and II, Defendants' motion to dismiss Count II and Defendants' motion for summary judgment on Count I. On June 2, 1995, Plaintiffs filed an Amended Complaint seeking declaratory and injunctive relief, along with compensatory and punitive damages, pursuant to the Fair Housing Act, as amended by the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3601, et seq. Specifically, Plaintiffs allege that Defendants have wrongfully interfered in the use of a two-flat building, currently the residence for six developmentally disabled adults, by discriminating against Plaintiffs on the basis of handicap (Count I), or by failing to make a reasonable accommodation (Count II).

 I. Undisputed Facts

 The following relevant and undisputed facts are taken from the parties' 12M and 12N statements filed in conjunction with these motions.

 Defendant, Village of Westchester, Illinois ("Westchester"), is a political subdivision and operates as a municipal corporation under the laws of the State of Illinois. Defendant, John Sinde ("Sinde") is Village President and is one of seven members of the Board of Trustees which governs Westchester.

 On February 6, 1995, PARC purchased a two-flat building located at 1231 Mannheim Road in Westchester ("Westchester Dwelling"). PARC is using and intends to continue to use each of the apartments in the Westchester Dwelling as a CILA for three of PARC's clients. Each unit has three bedrooms, and one unit is used as a CILA for three adult men while the other is used as a CILA for three adult women. The two CILAs operate independently of each other, and the residents or one unit do not share cooking, cleaning or laundry chores nor do they share bathroom, kitchen, living or sleeping accommodations with the residents of the other unit.

 Plaintiffs, Petty and Fitzner, currently reside in the Westchester Dwelling with four other developmentally disabled adults who are all between the ages of 34 and 39. Each resident is ambulatory and physically able-bodied with normal eyesight and hearing. Each resident either works at a job or attends PARC training programs at locations outside the Westchester Dwelling during the daytime hours on Mondays through Fridays.

 Pursuant to Ordinance No. 82-1021, Westchester adopted the Building Officials and Code Administrators Basic Building Code 1981 Edition with amendments ("BOCA Code") and the National Fire Prevention Association Life Safety Code 101/1981 Edition ("Life Safety Code") for use in determining the use classification of buildings in Westchester. The Westchester Dwelling is currently classified as R-3 "Residential Use."

 In a letter dated January 24, 1995, John Crois, Village Manager of Westchester, advised James A. Lehmann, PARC Vice President for Program Services, that the Westchester Dwelling had been inspected and found to comply with all village codes and ordinances applicable to any R-3 use structure. However, Crois further advised Lehmann that PARC's intended use of the Westchester Dwelling could cause the reclassification to I-2 "Institutional Use" under the BOCA Code.

 Subsequent to the filing of this suit, Westchester reevaluated the use classification and determined that the Westchester Dwelling could also be appropriately classified as R-2 "Residential Use." At oral argument, Defendants asserted that, due to the stay imposed by this litigation, the Westchester Dwelling has not yet been reclassified from R-3, but that the Westchester Dwelling will be reclassified as either I-2 or R-2 once the stay is lifted. *fn1"

 On February 28, 1995, PARC appeared before the Village Board at a regularly scheduled meeting and asked the Trustees to reject the suggested I-2 reclassification and to maintain the R-3 classification of the Westchester Dwelling. In the alternative, PARC sought a reasonable accommodation pursuant to 42 U.S.C. § 3604(f)(3)(B) to allow PARC to use the two units in the Westchester Dwelling as CILAs without the need to install a sprinkler system or apply for a Special Use Permit. Westchester declined PARC's suggestions and offered to allow immediate occupancy of the Westchester Dwelling, but only under the following conditions: 1) that PARC and its clients forfeit any right to insist that the property retain its R-3 classification; 2) that PARC agree to install a residential sprinkler system within 12 months; and 3) promptly apply for a Special Use Permit.

 On June 13, 1995, PARC presented a written request for a "reasonable accommodation" from Westchester's ordinances and codes requiring installation of a sprinkler system, and Special Use Permit be issued on the condition that PARC use the two units as CILAs with no more than three persons residing in each. On June 30 and August 24, 1995, Westchester's Village attorney conveyed the message that the accommodation had been denied.

 Each of the six residents of the Westchester Dwelling have a "handicap" as defined by 42 U.S.C. § 3602(h) *fn2" in that each is developmentally disabled to some degree. Since occupying the Westchester Dwelling, PARC has conducted over 20 unannounced fire drills at the premises. In each instance the six residents have evacuated the Dwelling in three minutes or less without assistance from PARC staff. At night and at all times when residents are in the Westchester Dwelling at least one adult supervisor from PARC is present.

 II. Discussion

 A. Defendants' Motion To Dismiss Count II

 When considering a motion to dismiss, the Court must consider the allegations in the complaint to be true and view them, along with reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. A complaint should be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff is unable to prove any set of facts that would entitle him to relief. While the plaintiff need not set out in detail all the facts upon which the claim is based, he must allege sufficient facts to outline a cause of action. Doe v. St. Joseph's Hosp. of Ft. Wayne, 788 F.2d 411, 414 (7th Cir. 1986).


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