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Oconomowoc Residential Programs v. City of Milwaukee

August 08, 2002

OCONOMOWOC RESIDENTIAL PROGRAMS, INCORPORATED, A DOMESTIC CORPORATION, PLAINTIFF-APPELLEE, AND WISCONSIN COALITION FOR ADVOCACY, A DOMESTIC NON-PROFIT CORPORATION, JANET K., BY HER LEGAL GUARDIANS, GERALDINE K. AND CLARENCE K., AND VALERIE D., BY HER LEGAL GUARDIAN, THERESA H., INTERVENORS-APPELLEES,
v.
CITY OF MILWAUKEE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 251--J.P. Stadtmueller, Chief Judge.

Before Cudahy, Rovner, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED SEPTEMBER 5, 2001

After the City of Milwaukee (City) denied Oconomowoc Residential Programs, Inc. (ORP) a zoning variance to operate a community living facility in the City, ORP sued the City for violations of the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA). The district court granted Oconomowoc's and plaintiff-intervenors' motion for partial summary judgment and denied the City's motion for summary judgment. The City appeals, and we affirm.

I.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We review the district court's ruling on summary judgment de novo, construing the record in the light most favorable to the non-movant. O'Neal v. City of New Albany, No. 00-3091, 2002 WL 1305540, at *2 (7th Cir. June 14, 2002).

This controversy arose over plaintiff ORP's application to operate a community living facility for six adults impaired by traumatic brain injury or developmental disabilities or both. The City, through its Board of Zoning Appeals (BOZA), denied the request for a variance pursuant to a municipal ordinance restricting such homes from operating within 2,500 feet (approximately one half of a mile) of another community living arrangement.

ORP is a Wisconsin corporation licensed by the State to operate community-based residential programs. The Wisconsin Department of Health and Family Services (DHFS) regulates its operations. Homes for Independent Living (HIL), a division of ORP, operates approximately ninetyfive group homes which provide residential and support services to persons with developmental disabilities, chronic mental illness, and traumatic brain injuries. Over 800 persons in ten southeastern Wisconsin counties receive services provided by HIL.

Plaintiff-intervenor, Wisconsin Coalition for Advocacy, Inc. (WCA) is a non-profit Wisconsin corporation which provides statewide advocacy and protection for the rights of persons with disabilities. Wisconsin statutes grant WCA the responsibility and authority to pursue legal and other remedies for persons with developmental disabilities or mental illness. Wis. Stat. § 51.62(2)-(3). Plaintiff-intervenors Janet K. and Valerie D. are residents of Milwaukee County and each has suffered a traumatic brain injury. *fn1 Because Janet K.'s injuries occurred prior to adulthood, she also has been diagnosed as having a developmental disability. Both Janet K. and Valerie D. have been determined to be incompetent, thus their legal guardians, Geraldine and Clarence K., and Theresa H. respectively, brought this action on their behalf. Both Janet K. and Valerie D. are under protective placement orders pursuant to the State of Wisconsin's civil commitment statute for long-term placement. Wis. Stat., Chap. 55. Pursuant to a district court order defining Ms. K's least restrictive placement, Janet K. must be placed in a group home or community-based residential facility. Under a similar court order, Valerie D. must be placed in a group home, adult family care home, supervised apartment, or other comparable community placement.

Aware of the need for community-based residential facilities for people with traumatic brain injury and developmental disabilities, ORP staff worked for over a year with a local real estate agent to find a home that would be physically and financially appropriate for such a group home. On August 20, 1996, ORP applied for an occupancy permit for a community-based residential facility for six developmentally disabled or traumatically brain injured adults at 2850 North Menomonee River Parkway in Milwaukee. In September, 1996, ORP purchased the house for $280,000. During the application for an occupancy permit however, ORP ran into a stumbling block.

As part of its zoning code, Milwaukee restricts the placement of community living arrangements. Milwaukee permits community living arrangements for not more than eight persons in single residence districts, subject to certain special conditions. Milwaukee, Wi., Code of Ordinances § 295-112. Those conditions are as follows:

Special Conditions. 1. GROUP LIVING FACILITIES. a. Small foster homes and community living arrangements shall not be located within 2,500 feet of each other and their cumulative capacities shall not exceed one percent of the population of an aldermanic district. Certificates of occupancy shall be issued only upon evidence that a facility has been licensed by either the state of Wisconsin, Milwaukee County or a child welfare agency. Id. at § 295-14-1(a).

A "community living arrangement" is defined as follows:

b. Community-based residential facility. A facility where 3 or more adults not related to the operator reside and are provided with care, treatment or services above the level of room and board but less than nursing care. Such care must include supportive home care service unless contraindicated by the facility program, and may also include 7 hours or less of prescribed personal care service per week, per resident. The term does not include nursing homes, prisons, jails, community correctional residential centers, convents or facilities owned or operated exclusively by and for members of a religious order, or educational institutions and related student housing. Id. at § 295-7-37(b).

Relying on the Milwaukee ordinance regarding the 2,500-foot requirement, the City of Milwaukee Department of Building Inspection (DBI) *fn2 refused to issue an occupancy permit to ORP. By letter dated November 4, 1996, DBI returned ORP's application stating that ORP could not operate a community-based residential facility at that site without violating § 25-14-1 of the Milwaukee ordinance, as there were already two other group homes operating within 2,500 feet of the proposed home, one of which was operating within 358 feet of the proposed home. In addition to its determination that the proposed home violated the spacing requirements, the DBI made several other observations in its letter. First, it noted that the proposed group home sits on the fringe of the flood plain of the Menomonee River. It then expressed concerns about the volume of traffic on the road during the summer months, and the fact that the road does not have sidewalks for pedestrian traffic. DBI informed ORP that it could seek a variance by appealing to BOZA. According to the Milwaukee municipal code, DBI has no authority to grant a permanent variance for the occupancy of any building if the intended use and plans do not conform with the City's ordinances. Id. at § 295-51-1(a).

By the time ORP received the letter from DBI, it had already applied to BOZA for a waiver of the 2,500-foot rule. In its application, filed on October 24, 1996, ORP submitted its plan of operation for a six-person home with non-live-in, round-the-clock staff. BOZA held a hearing on the variance request on January 16, 1997.

During the BOZA hearing, ORP's counsel argued that the variance was necessary as a reasonable accommodation under the FHAA. To support this claim, ORP presented evidence regarding the need in the City and County of Milwaukee for residential facilities for persons with traumatic brain injuries. Specifically, ORP presented evidence regarding the difficulties in locating resources and facilities to provide services to brain injured individuals in the least restrictive environment consistent with the needs of the disabled person as required by state statute. ORP presented detailed information about the needs of the individual plaintiffs Janet K. and Valerie D. At the time of the hearing, both plaintiffs were living in a nursing home, though each was the subject of a court order requiring them to be placed in a less restrictive environment, such as a community-based residential facility. Each of the plaintiffs' respective guardians desired that they be ...


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