The following cases involve use variances in the context of land use law and disability:
Use Variance
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th. Cir. 2002)
Tags
- FHA
- ADA
- Use Variance
- Reasonable Accommodation
- Group Home
Oconomowoc operated group living homes for people with developmental disabilities, chronic mental illness, and traumatic brain injuries. However, The City of Milwaukee’s zoning code contained an ordinance requiring there be 2,500ft. between “community living arrangements.” Anyone operating such a community group home could apply for a variance, and Oconomowoc applied for such a variance. The City denied the variance, citing public safety concerns and increased administrative costs. Ultimately, the 7th Circuit held the ordinance denied disabled persons a reasonable accommodation because it denied them the equal opportunity to live in the community of their choice.
Story
Oconomowoc Residential Programs (Oconomowoc) served disabled persons in the City of Milwaukee (the City/defendant). It was a state-licensed community-based residential program operator and oversaw about 95 group homes. The homes provided residential and support services to people with developmental disabilities, chronic mental illness, and traumatic brain injuries. However, Milwaukee enacted a zoning ordinance restricting such homes from operating within 2,500 feet (approximately one half of a mile) of another community living arrangement.
Oconomowoc applied for a zoning ordinance so they could open a new home for six disabled persons with traumatic brain injuries or developmental disabilities. At the zoning hearing, neighbors expressed concerns that the patients might become violent and threaten the safety of residents and that the lack of parking for the home’s attendants would increase traffic risks in the area. The neighbors provided previous reports alleging Oconomowoc’s staff or affiliates committed errors, negligent acts, and other wrongdoings. The reports also cited instances where police responded to numerous reports where other Oconomowoc tenants committed violent acts and created residential disturbances.
The zoning board denied the request, noting that the City already granted Oconomowoc 39 other variances and there were other zoning districts where the home was permitted. The board also noted the increased safety risks the group home’s residents might pose to neighbors and based on the allegations of problems emanating from other ORP facilities, the proposed facility could impose undue costs, expenses, or other burdens on the City.
Legal Claims
Oconomowoc claimed the City’s refusal to grant them an exception to the 2,500-foot rule violated both the FHAA and the ADA.
Holding/Reasoning (Each Claim)
The 7th Circuit first provided a background discussion on the interplay between the FHAA and the ADA. Notably, the court explained that, “Congress explicitly intended for the FHAA to apply to zoning ordinances and other laws that would restrict the placement of group homes,” citing legislative history and prior 7th and 6th Circuit decisions. Specifically, the court cited the regulations enacted pursuant to the ADA, as well as 2nd and 9th Circuit opinions, and stated “title II applies to anything a public entity does.” 28 C.F.R. pt. 35, app. A. Further, the court reiterated that the “‘reasonable accommodation’ provision [in the ADA] prohibits the enforcement of zoning ordinances and local housing policies in a manner that denies people with disabilities access to housing on par with that of those who are not disabled.”
Next, the 7th Circuit addressed the standard by which it would evaluate reasonable accommodation claims. It decided to follow the “Second, Third, Eighth, Ninth, and Tenth Circuits, which require a plaintiff to make an initial showing that an accommodation is reasonable, but then places the burden on the defendant to show that the accommodation is unreasonable.” An FHAA reasonable accommodation claim has three elements: “reasonable,” “necessary,” and “equal opportunity.” After describing the reasonableness and necessary prongs, the court notably explained that, “[w]hen a zoning authority refuses to reasonably accommodate…small group living facilities, it denies disabled persons an equal opportunity to live in the community of their choice.”
In this particular case, the City argued it reasonably accommodated group homes because any homes more than 2,500ft. from another group home were not subject to the ordinance, and that those within 2,500ft. of another could apply for a variance. However, the court followed the district court’s holding that the right to operate under limited circumstances was not a reasonable accommodation. Further, the ability to apply for a variance was not a reasonable accommodation per se, as it was just as likely a home would fall within 2,500ft. of another group home as it is was to seek a variance.
Since the City’s claimed accommodation was not reasonable, the 7th Circuit turned to decide whether the plaintiffs requested a reasonable accommodation.
The City did not provide adequate evidence that the variance would create undue financial and administrative burdens. They claimed that tenants in other Oconomowoc group homes caused safety problems, that traffic safety would be compromised, and that the lack of sidewalks in the area posed a risk as well.
However, According to the court, there was no evidence anywhere in the record that the group in question imposed on the City additional costs for emergency services. Further, a city may not “rely on the anecdotal evidence of neighbors opposing the group home as evidence of unreasonableness. Denying a variance due to public safety concerns or concerns for the safety of residents themselves “cannot be based on blanket stereotypes about disabled persons but must be based on particularized concerns about individual residents.” Finally, the court explained that the ordinance drew a nearly half-mile circle around all the existing group homes, thus precluding new group homes from opening in most of the City of Milwaukee.” As such, the ordinance prevented many disabled persons from living in the City.