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March 29, 1996

CITY OF NAPERVILLE, et al., Defendants.

The opinion of the court was delivered by: WILLIAMS

 The Alliance for the Mentally Ill and other plaintiffs allege that the City of Naperville and other defendants have violated the Fair Housing Amendments Act of 1988. Plaintiffs move for summary judgment. Defendants move for dismissal or summary judgment. For reasons set forth below, the court grants plaintiffs' motion denies defendants' motions.


 This case grew out of a dispute between the Alliance for the Mentally Ill of DuPage County ("Alliance") and the City of Naperville ("Naperville" or "city") over the application of Naperville's fire prevention code to a residential home for mentally ill adults owned by the Alliance.

 The Alliance, a plaintiff in this case, seeks to provide housing and services for mentally ill residents of DuPage County. It is a not-for-profit organization run entirely by volunteers, many of whom have adult relatives with mental impairments. (Defs.' 12(M) P 1; Pls.' 12(M), Ex. A, Rose Aff. P 2.) *fn1" Naperville, a defendant in this case, is a municipal corporation located in DuPage County, Illinois. (Defs.' 12(M), P 2.)


 Since 1993 the Alliance has sought to establish a residential home for mentally ill adults in Naperville. in July of 1993, Naperville approved a Community Development Block Grant ("Block Grant") of $ 97,000 to help the Alliance purchase such a home. Under the terms of the Block Grant, the Alliance would own the home and lease it to the DuPage County Health Department ("County Health Department"). The County Health Department would select residents for the home and provide full-time staff members to operate the home. The Illinois Department of Public Aid ("IDPA") would fund the home on a per-resident basis. (Defs.' 12(M) P 4; Pls.' 12(M), Ex. A, Rose Aff. P 3; Pls.' 12(M) P 6.)

 The Alliance encountered immediate and sustained opposition from prospective neighbors of the home. *fn2" In August 1994, the Alliance announced that the home would be located at 408 Braemer Court, a cul du sac in quiet residential subdivision of Naperville. The neighborhood homeowners association reacted with hostility, hiring an attorney to help it oppose the Alliance's plan to open the home at that location. In an effort to block the Alliance's plan, the homeowners contacted their congressman, the Mayor of Naperville, and members of the Naperville City Council. On August 16, 1994, over one hundred neighborhood residents appeared at a meeting of the Naperville City Council and many spoke out against the plan. (Pls.' 12(M) P 7; Pls.' 12(M), Ex. A, Rose Aff. PP 4-6.)

 Shortly thereafter, Naperville attempted to revoke the Alliance's Block Grant. Naperville claimed that the Alliance had committed "a substantial breach of [its] Agreement" with the city in that the Alliance applied for a Block Grant "to provide a single family residence to house six very low-income, mentally ill individuals" but later "stated that it intended to house eight individuals, rather than six." (Pls.' 12(M), Ex. C, Newman letter.) However, after a meeting attended by representatives of the Alliance, officials from Naperville, and officials from several federal agencies, the Alliance and Naperville signed a Conciliation Agreement. (Pls.' 12(M) P 10.)

 Under the terms of the Conciliation Agreement, Naperville agreed to release funds for the Block Grant to the Alliance, allowing the Alliance to purchase the home at 408 Braemer Court. All parties agreed to submit the occupancy limitation issue to binding arbitration. (Pls.' 12(M), Ex. D, Conciliation Agreement.) The arbitrator was Nicholas J. Bua, a retired judge of the United States District Court for the Northern District of Illinois. After considering evidence and argument on both sides, he found that Naperville had violated the federal Fair Housing Act, and he entered an award in favor of the Alliance. He wrote that Naperville's attempt to hold the Alliance to the precise terms of the Block Grant contract for not more than six residents "was motivated by community opposition to the presence in their neighborhood of a group home for mentally disabled adults in violation of the Fair Housing Act." (Pls.' 12(M), Ex. E, Award P 1.)

 During the course of negotiation and arbitration between the Naperville and the Alliance, Naperville officials never mentioned any problem with any fire or safety code that would prevent mentally ill adults selected by the Health Department from occupying the home at 408 Braemer Court immediately. (Pls.' 12(M) P 11.)

 The County Health Department sought to place Judy Doe, Chris Doe, and other mentally disabled adults at 408 Braemer Court in order to give them a home in their community and help them reintegrate into the community. All of those chosen to live at 408 Braemer Court expected it to be their permanent home. Some of them were working in the community already, moving in the direction of a vocational career. As in similar homes in other communities, each of the residents would share responsibilities for daily living tasks such as meal preparation, grocery shopping, and cleaning. They would eat most of their meals as a group. The residents would have twenty-four hour supervision by a trained staff. Although the residents could function unsupervised in many areas, they had been in nursing homes for some time and would probably feel more comfortable returning to the community in a supervised setting. (Pls.' 12(M), Ex. I, Bartels test. at 8-12, Shepard test. at 55-57; Pls.' 12(M), Ex. L, Shepard Decl.)

 Anticipating that Judy Doe, John Doe, and other mentally ill adults would soon occupy the home at 408 Braemer Court, the County Health Department requested a letter of "certification of compliance with local fire codes as a single family residence" from the Office of the Naperville Fire Marshall. (Pls.' 12(M), Ex. F, Bartels letter.) On September 26, 1994, officials of the Naperville Fire Department conducted a fire safety inspection of the home at 408 Braemer. (Pls.' 12(M), Ex. G, Voiland letter.) Although the County Health Department asked that Naperville treat the home as a single family residence (in keeping with the practice of other communities where the Department operated group homes), the Fire Department treated the home as a "Residential Board and Care Occupancy" under the 1991 Life Safety Code. (Pls.' 12(M), Ex. G, Scheller Memo.; Pls.' 12(M), Ex. I, Nealon test. at 96-97.) The Fire Department refused to certify that the home satisfied the local fire code. (Pls.' Ex. G, Voiland letter.) This decision was announced to the public by Samuel T. Macrane, the Mayor of Naperville and a defendant in this case. On October 18, 1994, Mayor Macrane told the Naperville City Council that the city would not give the Alliance an occupancy permit for 408 Braemer Court until the home complied with the city's fire safety code. The City Attorney added that if 408 Braemer Court were occupied before it complied with the code, the Alliance could face fines of $ 500 per day. (Pls.' 12(M) P 14.)


 The home at 408 Braemer Court sits in an area that Naperville has zoned "R1A," which denotes a "Low Density Single-Family Residence District." Under Section 6-6A-2 of the Naperville's zoning code, the only "permitted uses" in an area zoned "R1A" are:

1. Certain schools;
2. Golf courses;
3. Parks, playgrounds, and forest preserves;
4. Single-family detached dwellings; and
5. Residential-care homes.

 (Pls.' 12(M) P 48.)

 Under Section 5-1D-1 of Naperville's fire prevention code, Naperville adopts the 1991 version of the Life Safety Code ("LSC"), published by the National Fire Protection Association ("NFPA"). (Defs.' 12(M) P 5.) The LSC contains fire prevention standards for various types of structures and occupancies. The NFPA has published a new version of the LSC every three years since 1913. (Id. P 6.) The federal government has adopted the LSC for Medicare and Medicaid approved care provider facilities; and the state of Illinois has promulgated regulations providing that an agency that owns or rents a group home shall comply with the LSC "as applicable [and] as enforced by the local authorities." (Id. PP 17-19.)

 In 1985, for the very first time, the LSC contained a chapter on "Residential Board and Care Occupancies." (Defs.' 12(M) P 6.) The LSC defines a "Residential Board and Care Occupancy" ("RBCO") as a building "used for lodging and boarding of four or more residents, not related by blood or marriage to the owners or operators, for the purpose of providing personal care services." (Pls.' 12(M), Ex. P, LSC at 101-169.) Under the LSC,

"Personal care" means protective care of residents who do not require chronic or convalescent medical or nursing care. Personal care involves responsibility for the safety of the resident while inside the building. Personal care may include daily awareness by the management of the resident's functioning and whereabouts, making and reminding a resident of appointments, the ability and readiness for intervention in the event of a resident experiencing a crisis, supervision in the areas of nutrition and medication, and actual provision of transient medical care.

 (Id. at 101-169.)

 The Life Safety Code Handbook ("LSCH") -- an authoritative guide to the LSC *fn3" -- clarifies the definition of RBCO. The LSCH notes that the creation of a new occupancy for residential board and care facilities grew out concern over the high incidence of fatal fires in such facilities. (Defs.' 12(N), Ex. C, LSCH at 684.) Discussing the well-documented "fire fatality problem" in RBCO's, the LSCH notes that

residents of [RBCO's] are often unable to meet the demands of independent living and are at greater risk from fire than the general population. Typically, the victims of [RBCO] fires are the elderly or former mental health patients who have been released from various institutions. These residents may not require daily medical care but nonetheless may have disabilities that reduce their ability to save themselves in a fire.

 (Id. at 683.) According to the LSCH, the NFPA has defined RBCO's as facilities that lodge "residents with substantial limitations, primarily those age 65 and over and former mental patients." (Id. at 684.)

 In a further effort to distinguish RBCO's from other occupancies, the LSCH provides five examples of RBCO's:

(a) A group housing arrangement for physically or mentally handicapped persons who normally may attend school in the community, or otherwise use community facilities.
(b) A group housing arrangement for physically or mentally handicapped persons who are undergoing training in preparation for independent living, for paid employment, or for other normal community activities.
(c) A group housing arrangement for the elderly that provides personal care services but that does not provide nursing care.
(e) Other group housing arrangements that provide personal care services but not nursing care.

 (Id. at 688-89.)

 The LSC distinguishes between new and existing RBCO's. The chapter devoted to new RBCO's distinguishes between small facilities (housing up to sixteen residents) and large facilities (housing more than sixteen residents). The LSC also distinguishes between RBCO's with prompt evacuation capability, slow evacuation capability, and impractical evacuation capability. An RBCO has prompt evacuation capability if its residents have an evacuation capability "equivalent to the capability of the general population." (Pls.' 12(M), Ex. P, LSC at 101-169.) By distinguishing between new and existing RBCO's, between small and large RBCO's, and between RBCO's with prompt, slow, and impractical evacuation capabilities, the drafters of the LSC consciously sought to balance the documented need for fire protection against the burden that enhanced fire protection measures might impose on RBCO's. (Defs.' 12(M) PP 7-13.)

 The 1991 LSC states that a new small RBCO with "prompt evacuation capability" should have a secondary means of escape, an enclosed interior stairway, door widths and latching meeting certain standards, protection of vertical openings, interior finishes with fire retardant material, a fire alarm system, smoke detectors, a sprinkler system, and smoke resistant walls and doors in corridors. (Id. P 14.) The 1994 version of the LSC (which Naperville has not adopted) includes substantially the same requirements, with one exception: The 1994 version does not require that small RBCO's have a sprinkler system, provided that other fire safety measures are maintained. (Id. P 16.)

 According to the LSCH, these requirements for small RBCO's "are similar to the provisions for one- and two-family dwellings and lodging and rooming houses" under the LSC. (Defs.' 12(N), Ex. C, LSCH at 684.) The LSC defines "lodging or rooming houses" as "buildings that provide sleeping accommodations for a total of sixteen or fewer persons on either a transient or permanent basis, with or without meals, but without separate cooking facilities for individual occupants." With respect to lodging and rooming houses, the LSC requires, among other things, primary and secondary means of escape, protection of vertical openings, interior finishes with fire retardant material, enclosure of interior stairways, smoke detectors, separation of sleeping rooms, a fire alarm system, door closing requirements, and a sprinkler system. (Defs.' 12(M) P 15.) With respect to single-family dwellings, however, the LSC does not require that they install sprinkler systems, enclose interior stairwells, or install fire alarm systems. (Pls.' 12(M) P 49.)

 In addition to the provisions of the LSC outlined above, the Naperville fire prevention code contains the ...

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