Human Rights DecisionState of Montana
Department of Labor & Industry
Brian Schweitzer, Governor
Employment Relations Division -° - Human Rights Bureau
Katherine Kountz, Bureau Chief
February 9, 2011
Charles Harball
Attorney at Law
201 First Avenue East
Kalispell MT 59901
SUBJECT: Montana Fair Housing v City of Kalispell, Mayor Tammi Fisher, Commissioner Kari Gabriel,
Commissioner Robert Hafferman, Commissioner Jeff Zauner, Commissioner Wayne Saverod,
Commissioner Jim Atkinson, Commissioner Randy Kenyon, Commissioner Tim Kluesner, and
Commissioner M. Duane Carson
Case No. 0112014642- 0112014650
Dear Mr. Harball: .
After investigation, the Human Rights Bureau has found no reasonable cause to believe that discrimination occurred in
the above -referenced case. This determination is based upon the investigator's recommendation, which is enclosed.
Section 49-2-504(7), MCA requires the Human Rights Bureau to dismiss a complaint when it has made a no
reasonable cause finding. This dismissal gives the charging parry the opportunity to file an objection to the dismissal
with the Montana Human Rights Commission or to pursue the complaint directly in district court. Pursuant to the
statute, I have issued a Notice of Dismissal and Right to File Civil Action in District Court in this case. A copy of the
notice to the charging party is enclosed and it should be self-explanatory.
Thank you very much for your cooperation. If you have any questions, please contact our office.
Sincerely,
Kath rine Kountz
Bureau Chief
Human Rights Bureau
Enclosures: Final Investigative Report, Notice of Dismissal
Phone (406) 444-2884 Fax (406) 444-2798 1625 11"' Avenue/P.O. Box 1728
TDD (406) 444-9696 "An Equal Opportunity Employer" Helena, MT 59624-1728
OF :rr & IND
EMPLOYMENT RELATIONS DIVIDISON
RIGHTSHUMAN ; l..- !:
Final Investigative Report
Montana Fair housing v. City of Kalispell Mayor Tammi Fisher
HRB Case No. 0112014642
Montana Fair Housing v. City of Kalispell Commissioner Mari Gabriel
HRB Case No. 0112014643
Montana Fair Housing v. City of Kalispell Commissioner Robert Haffernian
HRB Case No. 0112014644
Montana Fair housing v. City of Kalispell Commissioner Jeff Launer
HRB Case No. 0112014645
Montana Fair housing v. City of Kalispell Commissioner Wayne Saverod
HRB Case No. 0112014646
Montana Fair Housing v. City of Kalispell Commissioner Jim Atkinson
HRB Case No. 0112014647
Montana Fair housing v. City of Kalispell Commissioner Randy Kenyon
HRB Case No. 0112014648
Montana Fair Housing v. City of Kalispell Commissioner Tim Kluesner
HRB Case No. 0112014649
Montana Fair Housing v. City of Kalispell Commissioner M. Duane Carson
HRB Case No. 0112014650
Recommendation: Based on investigation, I recommend a finding of no reasonable cause to
believe unlawful housing discrimination occurred as set forth in Charging Party's Complaints.
1 tYE, 1 1114VKII a V . 1a
A. Introduction:
On October 12, 2010, Montana Fair Housing (MFH) filed nine Complaints of Discrimination on
behalf of Freedom House, Inc. The Complaints filed by MFH are unclear as to the particulars of
the alleged adverse actions. Following the filing of its Complaints, MFH failed to cooperate with
the Human Rights Bureau in the investigation of these claims. The Investigator made numerous
attempts to obtain clarification of the charge and supporting evidence; however, MFH failed to
provide the requested information. Therefore, the Bureau used its judgment to determine the
position of MFH based solely on the language contained in the Complaints.
B. Charging Party, MFH, alleges the named Respondents discriminated against Freedom
House, a clean and sober housing provider, in the area of housing on the basis of disability (drug
and alcohol addiction) when the Respondents (1) failed to accommodate Freedom House
residents' disabilities by waiving the city's ordinance limiting the number of unrelated residents
in a single-family dwelling; (2) tabled the conditional use permit application file by Freedom
House; and, (3) made numerous discriminatory comments targeting Freedom House at city
council meetings.
C. Respondents, hereinafter referred to collectively as Kalispell or Cityj deny the
allegations of discrimination. Kalispell asserts that (1) it never enforced the residency ordinance
against Freedom House, so an accommodation waiving the occupancy limitation was
unnecessary; (2) it temporarily tabled the conditional use permit application filed by Freedom
House for legitimate, non-discriminatory reasons; and; (3) discussions by elected officials during
the legislative process (i.e., city council meetings), even if discriminatory in nature, are not
unlawful.
D. Issues:
Did Kalispell unlawfully discriminate against Freedom House on the basis of disability in
violation of the Human Rights Act (Title 49, Chapter 2, MCA) by failing to reasonably
accommodate Freedom House and waive enforcement of the city ordinance limiting the
number of unrelated residents allowed within a single dwelling unit?
Did Kalispell unlawfully discriminate against Freedom House on the basis of disability in
violation of the Human Rights Act (Title 49, Chapter 2, MCA) and the Governmental
Code of Fair Practices (Title 49, Chapter 3, MCA) when the city council tabled the
conditional use permit application filed by Freedom House?
Did Kalispell unlawfully discriminate against Freedom House on the basis of disability in
violation of the Human Rights Act (Title 49, Chapter 2, MCA) by making discriminatory
comments at city council meetings?
A. Charging Party's Position Statement:
On or about April 28, 2010, Freedom House contacted MFH and relayed that the City of
Kalispell had a zoning ordinance preventing more than four unrelated people from residing in a
single-family dwelling. Freedom House intended to provide housing for eight unrelated people in
a single-family dwelling.
On or about April 29, 2010, an attorney for Freedom House sent Kalispell a letter requesting that
the city waive application of the zoning ordinance as a reasonable accommodation for its
disabled residents. Kalispell City Attorney, Charles Harball, sent a reply letter requiring Freedom
House to submit an application for a conditional use permit (CUP). Freedom House complied
with that request and submitted a CUP application in June 2010.
1 The Governmental Code of Fair Practices, Title 49, Chapter 3, only allows for the naming of individuals under the
employment provision, Section 49-3-203, MCA. Therefore, the individuals named are only viable Respondents
under allegations brought under the Montana Human Rights Act, Title 49, Chapter 2.
2
In July 2010, Kalispell amended its zoning ordinance, removing the limitation on four unrelated
people.2 Despite that amendment, in August 2010, the city council considered limiting the
number of residents at Freedom House to a maximum of four unrelated people, or mandating the
transfer of Freedom House to a new location. The city council voted to table further
consideration of the CUP application.
In September 2010, Harball recommended approval of the CUP, but with certain conditions. One
condition recommended by Harball was a requirement that all Freedom House residents register
with the Chief of Police. Kalispell did not act on this recommendation from Harball.
In both September 2010 and October 2010, the Kalispell again voted to table further
consideration of the CUP application.
MFH believes Kalispell discriminated against Freedom House by (1) denying a reasonable
accommodation to waive the zoning ordinance limiting occupancy to four unrelated people; (2)
tabling the CUP application; and, (3) making discriminatory comments targeting Freedom House
during city council meetings.
B. Respondent's Position Statement:
Freedom House first came to the city's attention when neighbors complained to the Kalispell
Planning Department about a business operating in a residential neighborhood. Neighbors
advised the city that Freedom House erected a sign in the front yard and on its website advertised
onsite support and therapy for residents. Zoning for this property is residential and does not allow
for signage or nonresidential use without a CUP.
In April 2010, the Kalispell Planning Department made contact with then -president of Freedom
House, Randy Marr (Mary), to gather more information about the use of the property. Marr
confirmed there was a sign erected at Freedom House and the information provided on the
website was accurate. The city asked Marr to provide further information regarding use of the
property to determine whether it complied with residential zoning ordinances.
Following that conversation with Marr, the city received a letter from Attorney Steven Polin
requesting waiver of the limitation on four unrelated people as a reasonable accommodation for
the disabled residents of Freedom House. However, the city considered Freedom House to be a
"community residential facility" not a family residence, so that ordinance limiting occupancy to
no more than four unrelated people was not applicable. Rather, the city asked Freedom House to
submit a CUP application because it appeared the property was being used for both residential
and nonresidential purposes.
Kalispell did have in place an ordinance limiting the number of residents in a single-family
dwelling by defining a "family" as follows: "One or more persons related by blood, marriage,
adoption or a group of not more than four (4) persons excluding servants, not related by blood or
2 From the complaint, it does not appear that MFH is alleging that the zoning ordinance was a per se violation of
Section 49-2-305(3), MCA.
marriage, living together as a single housekeeping unit in a dwelling unit." h7 June 2010,
Kalispell adopted an amended zoning ordinance which no longer contains a nonrelated persons
restriction within the definitions.
Kalispell made no attempt to limit the number of residents at Freedom House or to transfer it to a
new location. The CUP application was discussed at several city council meetings between July
2010 and November 2010, with residential neighbors offering statements of concern regarding
Freedom House operations. The actual use of the property remained unclear to Kalispell, so the
council voted to table the application to allow the city to gather more information. At all times,
Kalispell allowed Freedom House to continue operations unimpaired by any city regulation.
After further investigation, Kalispell determined Freedom House was being used solely as a
residence and did not provide onsite therapy, as advertised on the organization's website. The
City Zoning Administrator therefore advised Kalispell that the matter was no longer appropriate
to be treated as a conditional use and CUP requirement was immediately withdrawn.
C. Charging Party's Rebuttal: MFH failed to provide a Rebuttal.
D. Charging Party's Witnesses: MFH failed to provide witnesses.
E. Respondent's Witnesses:
1. City Attorney Charles 1Harball: interviewed via telephone on January 21, 2011.
The city never told Marr that Freedom House was in violation of the ordinance limiting
residential occupancy to four unrelated people. In fact, the city did not consider that
ordinance to be applicable because Freedom House appeared to be operating for
nonresidential purposes.
In April 2010, the city asked Marr to provide further information regarding use of the
property, but he failed to do so. Instead, the city received a letter from Attorney Polin
asking for waiver of the residential occupancy ordinance as a reasonable accommodation
for the disabled residents of Freedom House. This letter was confusing to the city because
that ordinance did not apply to Freedom House, as Marr provided information that
Freedom House was operating for nonresidential purposes.
In late -May 2010, Harball held a telephone conference with Polin and Marr to clarify the
city's position. Marr agreed to remove the sign from the front yard and submit a CUP
application, which he did in June 2010 and the city waived the application fee. The CUP
application stated that Freedom House was solely a residential facility and did not provide
onsite treatment, which contradicted earlier information provided by Marr.
The city council discussed Freedom House during several meetings between July 2010
ZD
and November 2010, receiving numerous comments from concerned neighbors. The
council voted to table the application in order to gather more information regarding
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operations at Freedom House.
During one city council meeting a council member expressed concern over the number of
residents at Freedom House. Harball advised the council that Freedom House complied
with occupancy limitations and the matter was dismissed. At no time did the city council
discuss mandating the transfer of Freedom House to a new location.
Harball did draft a memorandum proposing a possible condition on Freedom House
residents requiring them to register with the Chief of Police. However, at the next council
meeting Harball advised the council that such a condition would be unlawful and the
matter was dismissed.
Kalispell was faced with a unique situation regarding Freedom House operations. It
received conflicting information from Freedom House regarding use of the property.
Additionally, state laws were unclear as to whether a "clean and sober" house fit within
the parameters of a "community residential facility," which requires a CUP.
Upon further investigation, Tom Jentz, Kalispell Planning Director, determined that
Freedom House was operating solely as a residence and could not be classified as a
community residential facility; therefore, a CUP was not necessary. On November 16,
2010, Jentz sent the City Manger a memorandum advising termination of the CUP
process for Freedom House based upon his findings. Kalispell immediately acted on that
advice and dropped the CUP requirement for Freedom House. Currently, Freedom House
is operating as a residence without any oversight by the city.
Kalispell has required, and granted, CUPs for other organizations similar to Freedom
House. Specifically, Kalispell has granted CUPs for the Wilderness Treatment Center
(WTC), a treatment facility for adolescent men struggling with chemical dependency
issues. WTC operates multiple treatment homes for nonresidential purposes within
residential neighborhoods. Those homes each obtained CUPs and now operate
uninhibited by the local government.
F. Documents:
Submitted by Charging Party: MFH failed to submit documents for consideration.
Submitted by Respondent:
April 26, 2010, letter from Sean Conrad, Senior Planner for Kalispell, to Randy
Marr, Freedom House Board Member. This letter reads, in part, as follows:
Based on our conversation with you and lack or any licensing or other
compliance of state regulations for community residential facilities, it
appears that the use does not fall under the state statute as a community
residential facility and therefore, appears to not be a protected use at this
time.
5
Based on our discussion last week, we will need the specific citations from
the Fair Housing Act and/or Americans with Disabilities Act that you have
determined allow for such a use to be protected from the city's zoning
regulations. This information is needed by this Thursday, April 29"' so that
city staff can determine whether the laws cited provide the Freedom House
with the aforementioned protections.
If the city determines the use is protected then we will still require a
conditional use permit to be applied for and obtained prior to any further
residents moving into the Freedom House. If, however, the use is not
deemed to be protected then all activities at the Freedom House must cease
and desist immediately until a conditional use permit is issued by the city
council
April 29, 2010, letter from Steven Polin, Attorney for Freedom House, to Sean
Conrad. This letter reads, in part, as follows:
This letter is to request a reasonable accommodation pursuant to the
Federal Fair Housing Act, U.S.C. §3604(f)(3)(B) for Freedom House of
Kalispell and its residents. Specifically, it is requested that the City treat
Freedom House of Kalispell as a family by waiving the number of
unrelated persons that can reside together as a family.
May 18, 2010, letter from Charles Harball, Kalispell City Attorney, to Steven
Polin. This letter reads, in part, as follows:
I appreciate the analysis that you have put into this matter and believe that
it will provide a helpful framework as we go forward with this issue.
However, as you state in the premise of your letter, it is hinged upon the
assumption that your client has made a request for a reasonable
accommodation from the City's zoning regulations. In fact, this has not
happened. The process that the City has for this is application for a
conditional use permit.
After the City was put on notice that the subject property was being put
into a use not otherwise permitted, the property owner was contacted by
the City Planning Department as part of due diligence. Based upon that
information provided to the City by the property owner it became apparent
that the conditional use permit process is the most apt means of addressing
this issue. Therefore, your client was advised to make such application. To
date, no application has been made.
Unfortunately your client seems to be charging forward with their business
plan of using the property in violation of the existing land use regulation
0
without the benefit of a conditional use permit. Certainly the City cannot
be charged with denying reasonable accommodation when it has not had
the opportunity to consider a request that was never made.
Application for conditional use permit submitted to the Kalispell Planning
Department by Freedom House on June 17, 2010.
Amended application for conditional use permit submitted to the Kalispell
Plamaing Department by Freedom House on June 23, 2010.
July 7, 2010, Staff Report 1iKCU-10-4 recommending approval of a conditional
use permit for Freedom House. This report reads, in part, as follows:
[U]nder the Federal Fair Housing Act, the city's zoning regulations are
required to provide reasonable accommodations for such uses. Because of
this requirement, no conditions may be placed on the conditional use
permit that would not otherwise apply to residences in general. Also, as
stated above, the conditional use permit cannot be denied by the city
council.
The Freedom House conditional use permit request is to have up to eight
persons with the home. The planning department has determined the use of
the home most resembles a community residential facility. Based on the
zoning ordinance definition of community residential facility a maximum
of eight persons are allowed within a home. Therefore, since the use is
determined to be a community residential facility, it already implies that
up to eight unrelated persons may occupy the home and no waiver is
needed from this definition of the zoning ordinance.
The staff recommends that the planning board adopt the staff report
9KCU-10-4 as findings of fact and recommend to the Kalispell City
Council that the Conditional Use Permit be approved subject to the
following conditions:
It is suggested that Freedom House hold a neighborhood meeting
to foster improved neighborhood relations, to increase awareness
of the operations and activities of Freedom House and to create a
forum to accept neighborhood concerns or issues in the future.
2. The Freedom House sign shall be removed within 10 days of
approval of the conditional use permit.
July 28, 2010, memorandum from Charles Harball to Jane Howington, City
Manager. This memorandum reads, in part, as follows:
7
Strictly speaking, the intended use [of the property by Freedom House]
does not comply with the statutory definition of a community residential
facility as follows: [MCA 76-2-411 omitted]
It does however serve some of the primary needs for the rehabilitation of
alcoholics or drug dependent persons. Further, and most importantly, the
conditional use permit procedure affords the applicant and the City the
necessary process to determine the extent to which reasonable
accommodation is necessary within the residential community it will be
situated.
® August 3, 2010, letter from Pam Bean, Montana Fair Housing Executive Director,
to the Kalispell Mayor and City Council. This letter reads, in part, as follows:
It is our belief that Mr. Polin's correspondence [dated April 29, 2010]
served as a request for a reasonable accommodation for waiver of the
City's Conditional Use Permit process. Mr. Harball's letter [dated May 18,
2010] to Mr. Polin serves as a denial for that request.
It is the position of Montana Fair Housing, as we currently understand the
facts arising in this case, that the City of Kalispell is declining to comply
with [Montana Code Annotated, Section 76-2-412].
September 7, 2010, report from Sean Conrad to the Kalispell Mayor and City
Council. This report reads, in part, as follows:
Staff did not consider the use of Freedom House to fall under the
definition of a single-family residence thereby limiting the number of
persons in the house to that of a family, defined in the previous zoning
ordinance as a group of not more than four persons not related by blood or
marriage. Staff recommended the council consider the use of the Freedom
House similar to a community residential facility. A community residential
facility is permitted through state law and allows up to eight unrelated
persons living in a single-family home. In staff s opinion, a community
residential facility most closely resembles the use of the property requested
by Freedom House.
® September 7, 2010, memorandum from Charles Harball to the Kalispell Mayor
and City Council. This memorandum reads, in part, as follows:
This matter was tabled at the regular meeting of Council on August 2,
2010 to September 7, 2010 for the purpose of allowing the property owner
to file an agency letter indicating approval and interest in the conditional
use permit as applied for by Freedom House of Kalispell, Inc. [Freedom
House]. That agency letter has now been received by the City.
3
The City required Freedom House to apply for a condition use permit
because the use to which the property is being put does not cleanly fall
within any categories of the City's zoning code. It does not fall within the
category of a residence of the fact that its occupants must be recovering
from alcohol or drug addiction (a legal discrimination), there is a stated
purpose for the facility beyond that of a residence, and, presumably, the
rules of eviction under the Landlord/Tenant Act would not apply.
The definition of a Community Residential Facility, which is a condition
use in this zone, does not strictly apply to this use for the fact that the
facility is not licensed or overseen by any State agencies. However, the
Zoning Administrator, whose function under KMC 27-02-050 is to
interpret land uses, determined that a safe harbor under housing
discrimination rules and most apt fit for this use was to consider it a
Community Residential Facility. This determination allowed the CUP
process to be used to give the applicant a forum to request reasonable
accommodation and for the City to take comment from the public. An
adequate legal record is being made through this process to demonstrate
the City's response to the request for reasonable accommodation.
It is recommended to Council that the City Council approve the request for
a conditional use permit with reasonable conditions attached. The
conditions previously discussed by the Planning Board and already
implemented by the applicant are the removal of signage and a plan to
improve communications between the facility and the neighborhood. To
address the concerns of the neighborhood about oversight of the facility
the Council could consider a condition that a resident sober manager be
required at the facility (currently a rule at the facility) and/or that a current
list of residents be provided to the Kalispell Chief of Police and that
residents give consent to that facility to this disclosure.
® November 16, 2010, memorandum from Tom Jentz, Kalispell Planning Director,
to Jane Howington. This memorandum reads, in part, as follows:
Based on recent events in the community, I am recommending that the
conditional use permit process to allow "the Freedom House" to operate as
a residential facility in Kalispell be suspended and that this application
process be closed. I do this based on the following facts:
1. In recent months, the not -for -profit board of Freedom House who
submitted the conditional use permit has dwindled and apparently
now there are no functional board members to represent Freedom
House.
0
2. The "Freedom House" sign has been removed from the property [.]
The current resident Bill Hawk stated that there are no on -going
professional services or treatment programs being offered at
[Freedom House].
4. The web page that previously advertised "Freedom House" in
Kalispell along with a list of services, bylaws, etc. has been
removed.
Several site visits conducted by my staff on the property at
[Freedom House] note that it appears to be a quiet, well kept
property with no unusual circumstances or issues.
In conclusion, the basis for which we originally requested a conditional use
permit no longer appears to be there.
November 22, 2010, letter from Sean Conrad to Tara Norick, Freedom House
property manager, informing her that a conditional use permit is no longer
required by Kalispell.
G. Comparative Evidence:
City Attorney Harball identified the Wilderness Treatment Center (WTC) as an organization
similarly situated to Freedom House. WTC is a 60 day licensed, residential chemical dependency
treatment program for young men ages 14 to 24. WTC has multiple treatment homes within
Kalispell city limits. Those treatment homes are located in residential neighborhoods, similar to
the location of Freedom House. Likewise, Kalispell has required WTC to obtain CUPS because
they engage in nonresidential use of the property, including onsite treatment and counseling, in
neighborhoods specifically zoned for residential purposes. Kalispell granted CUPS for the WTC
treatment homes and they continue to operate uninhibited by the local government.
H. Omissions:
As presented in the introduction of this Report, MFH failed to cooperate with the Human Rights
Bureau during investigation of these claims. On December 20, 2010, the Investigator sent MFH a
copy of Kalispell's Response along with a Request for Rebuttal. On January 3, 2011, the
Investigator received a telephone call from MFH's counsel, Tim Kelly, requesting an extension
of the Rebuttal deadline, which was granted. MFH failed to provide a Rebuttal or witness list by
the extended deadline. On January 10, 2011, the Investigator sent MFH an email noting the
missed deadline and requesting correspondence. As of the date of this Report, MFH has not
submitted any additional information or made any attempts to correspond with the Investigator.
10
Analysis I — Failure to Provide a Reasonable Accommodation
MFH alleges Kalispell discriminated against Freedom House in the area of housing when it
failed to accommodate the disabilities (drug and alcohol addiction) of Freedom House residents.
MFH establishes it filed timely complaints. The Montana Human Rights Bureau has jurisdiction
over the complaints.
To establish a prima facie case of failure to accommodate a disability, MFH must show that (1)
Freedom House residents are qualified individuals with disabilities; (2) Freedom house
requested an accommodation or that Kalispell knew or had reason to know Freedom House
needed an accommodation in order to use the housing unit and facilities; and, (3) Kalispell
refused to provide a reasonable accommodation.
The first issue to decide is whether Freedom House residents are qualified individuals with
disabilities.
A "qualified individual with a disability" is generally defined as a disabled individual who, with
or without a reasonable accommodation, is able to pay for rent or purchase housing and follows
the rules of tenancy or purchase. The determination of whether an individual has a disability is
not necessarily based on the name or diagnosis of the impairment, but rather on the effect of that
impairment on the life of the individual.
MFH asserts that Freedom House residents are qualified as they are renters in compliance with
applicable city and state laws. Kalispell does not contest whether Freedom House residents are
qualified. MFH asserts that Freedom House residents each have an addiction to drugs and/or
alcohol. Addiction to drugs and/or alcohol is considered to be a disability under State and Federal
laws. Kalispell does not contest whether Freedom House residents are disabled.
Based on the above -cited information, MFH establishes that Freedom House residents are
qualified individuals with disabilities.
The second issue to decide is whether or not Freedom House requested an accommodation or if
Kalispell knew or had reason to know Freedom House needed an accommodation in order to use
the housing unit and facilities.
In his April 29, 2010 letter to Kalispell, Steven Polin, Attorney for Freedom House, wrote:
This letter is to request a reasonable accommodation pursuant to the Federal Fair Housing
Act, U.S.C. §3604(0(3)(B) for Freedom House of Kalispell and its residents. Specifically,
it is requested that the City treat Freedom House of Kalispell as a family by waiving the
number of unrelated persons that can reside together as a family.
Based on the above -cited information, MFH establishes that Freedom House requested an
accommodation from Kalispell.
The third issue to decide is whether or not Kalispell refused to provide the accommodation
requested or provide an alternative accommodation to meet the needs of Freedom House.
Kalispell asserts that it did not fail to provide the accommodation requested by Freedom House.
Rather, the accommodation request was misguided because it requested waiver of a city
ordinance that was inapplicable and was never enforced by the city. MFII failed to provide a
response to this defense raised by Kalispell.
Evidence supports the position of Kalispell. Documents along with testimony from City Attorney
Harball show that Freedom House first came to the attention of Kalispell after neighbors
complained of it improperly operating a business within a residential neighborhood. From that
point forward, Kalispell considered whether or not Freedom House was operating for
nonresidential purposes, which would require a CUP. Kalispell exercised due diligence in its
pursuit of information regarding the operations of Freedom House. If, in fact, Freedom House
were operating as a nonresidential facility the city had a duty to require a CUP.
At no time, did Kalispell assert that the ordinance limiting occupancy in a single-family dwelling
applied to Freedom House. Both Freedom House and MFH appear to be confused on this issue,
and MFH failed to cooperate with the Investigator to clarify its position.
Kalispell did not refuse to provide a reasonable accommodation, because the accommodation
requested pertained to an ordinance that did not appear to be applicable and was never enforced
by the city. Further, the ordinance restricting unrelated persons was amended in June 2010.
Based on the above -cited information, MFH fails to establish that Kalispell refused to provide a
reasonable accommodation to Freedom House. Because MFH cannot establish this required
element, it fails to establish a prima facie claim of discrimination.
Analysis Ii —'Fabling of the Conditional Use Permit Application
MFH alleges Kalispell discriminated against Freedom House in the area of housing based on
disability (drug and alcohol addiction) when the city council tabled the conditional use permit
application filed by Freedom House. MFH establishes it filed timely complaints. The Montana
Human Rights Bureau has jurisdiction over the complaints.
MFH alleges disparate treatment. To establish a prima facie case of discrimination for disparate
treatment in the terms and conditions of housing, MFH must show that: (1) Freedom House
residents are members of a protected class; (2) MFH applied to Kalispell for a CUP; (3) Kalispell
denied the CUP for Freedom House, whereas similarly situated individuals not within the same
protected class as Freedom House residents were not denied a CUP under similar circumstances.
12
As addressed in the previous analysis, MFH establishes that Freedom House residents are
persons with disabilities, therefore, members of protected classes identified under State and
Federal laws.
On or about June 17, 2010, Freedom House submitted a CUP application to the City of Kalispell.
On numerous occasions between July 2010 and November 2010, the Kalispell City Council
tabled the CUP application filed by Freedom House. Kalispell never approved the CUP, because
it eventually dropped the requirement in November 2010.
Based on the above -cited information, MFI-I successfully articulates a prima facie case.
Once MFH articulates a prima facie case, the burden of production shifts to Kalispell to articulate
a legitimate, non-discriminatory reason for tabling the CUP application filed by Freedom House.
According to Kalispell, the City received conflicting information from Freedom House regarding
its use of the property. It was unclear to Kalispell whether the property was operating for
residential or nonresidential purposes. Additionally, state laws were unclear as to whether a
"clean and sober" house fit within the parameters of a "community residential facility," which
requires a CUP. The City Council voted to table the CUP application in order to gather more
information regarding operations at the Freedom House. In November 2010, when Kalispell
received sufficient information to conclude that Freedom House operated for solely residential
purposes it dropped the requirement for a CUP.
Based on the above -cited information, Kalispell successfully articulates a legitimate, non-
discriminatory reason for tabling the CUP application filed by Freedom House.
Once Kalispell articulates a legitimate, non-discriminatory reason for tabling the CUP
application filed by Freedom House, MFH may still prevail by proving by a preponderance of the
evidence that the reason offered was not the true reason for tabling the CUP application; rather,
that it was a pretext for discrimination. Pretext may be proven by evidence that a discriminatory
motive was the reason for Kalispell's actions or that Kalispell's explanations are not credible and
are unworthy of belief.
MFH failed to provide any evidence suggesting a discriminatory motive by Kalispell or that
Kalispell's explanations lack credibility.
On the other hand, Kalispell supported its explanations with documentation, including
applications, letters and memorandums preserved by city officials. Likewise, Harball provided
credible testimony on the matter.
While, in some instances, a local government's intentional delay of the approval of a CUP will
constitute an unlawful adverse act, that is not always the case. When the government has a
legitimate, non-discriminatory reason for such a delay, the act is lawful.
13
Kalispell tabled the CUP application filed by Freedom House in order to gather more information
regarding its operations. The question Kalispell wanted answered was whether Freedom House
operated for a residential or a nonresidential purpose. Such a question is legitimate because a
nonresidential operation requires a CUP.
Further, Kalispell had reason to believe Freedom House operated for nonresidential purposes.
Freedom House erected a sign in the front yard suggesting commercial use of the property; the
Freedom House website advertised onsite support and therapy for residents; and, Freedom House
Director, Marr, confirmed to city officials the accuracy of the website information.
Kalispell delayed approval of the CUP from June 2010 to November 2010, a period of five
months. During that period, Kalispell allowed Freedom House to operate its business as usual
without any oversight by the city.
In November 2010, Kalispell Planning Director, Jentz, determined that Freedom House was
operating solely as a residence and could not be classified as a community residential facility. His
November 16, 2010 letter states, "the basis for which we originally requested a conditional use
permit no longer appears to be there." Among other reasons, Jentz cited the removal of the
Freedom House yard sign and webpage, as well as, confirmation that no professional services or
treatment programs were being offered onsite.
Evidence shows that Kalispell had a legitimate reason to believe Freedom House was operating
for a nonresidential purpose, and once the city determined the purpose was purely residential it
immediately dropped the CUP requirement.
Based on the above -cited evidence, I find Kalispell's explanations to be credible and worthy of
belief. MFH fails to prove by a preponderance of the evidence that the reason offered by
Kalispell for tabling the CUP application was a pretext for discrimination.
Analysis III — Discriminatory Comments
MFH alleges a violation of the Human Rights Act by Kalispell when it made numerous
discriminatory comments targeting Freedom House at city council meetings. MFH establishes it
filed timely complaints. The Montana Human Rights Bureau has jurisdiction over the
complaints.
The Human Rights Act of the Montana Code Annotated reads as follow:
49-2-305. Discrimination in housing -- exemptions.
(3) It is an unlawful discriminatory practice to make, print, or publish or cause to be
made, printed, or published any notice, statement, or advertisement that indicates any
preference, limitation, or discrimination that is prohibited by subsection (1) or any
intention to make or have a prohibited preference, limitation, or discrimination.
14
MFH assert that Kalispell made numerous discriminatory comments targeting Freedom House at
city council meetings.. However, MFH failed to provide specific details regarding what comments
were made, by whom the comments were made, or how the alleged comments fit within the
parameters of §49-2-305(3).
MFH vaguely alleges that "the City Council for Kalispell attempted to limit the number of people
residing at Freedom House to four unrelated people
Kalispell calls this allegation by MFH f« Ise and misleading. In its Response, Kalispell_ explained
as follows:
At the August 2, 2010 meeting several members of the Council made statements and
discussed whether or not it would be prudent to limit the number of residents, not only in
facilities such as this, but within residential structures in the city in general for the
purpose of controlling density issues, such as parking, that arise from high density. No
motion in this regard was passed. This is the nature of legislative debate and function.4
Additionally, MFH vaguely alleges "The City of Kalispell suggested the House move to an area
better suited for its purposes, and identified housing available in a separate location."5
Kalispell calls this allegation false. In its Response, Kalispell explained as follows:
No such suggestion was made. Individuals claiming to be on the board of directors
communicated with the planning staff and indicated that they were looking at another
facility. No one from the City suggested or advised these individuals one way or the
other. They were simply told to keep the City advised.6
The clearest example set forth in MFH's complaint comes from a memorandum promulgated by
the City Attorney, Harball, to the Mayor and City Council.
In a September 7, 2010 memorandum, Harball advised that possible conditions placed on
Freedom House could include that "a current list of residents be provided to the Kalispell Chief
of Police and that residents give consent to that facility to this disclosure." On its face, this
suggests that Harball is making an assumption about the lawfulness of the residents based on
their disability. However; it is unclear how a memorandum from an attorney to his clients is a
"notice, statement, or advertisement" under the statute and, moreover, whether Harball's
memorandum can be attributed to the named Respondents. Further, according to Harball, at the
next council meeting he advised the councilors that such a condition would be unlawful and the
matter was dismissed.
The above -cited allegations by MFH fail to clearly articulate how the disputed comments by
3 Complaint of Housing Discrimination, page 3, section VI.
4 Followup Response to Complaint of Housing Discrimination, page 4, section 6.
5 Complaint of Housing Discrimination, page3, section VIII.
6 Followup Response to Complaint of Housing Discrimination, page 6, section 8.
15
Kalispell constitute a violation of §49-2-305(3)'s "make, print, or publish" provision. MFH fails
to prove by a preponderance of the evidence that Kalispell's actions constitute a per se violation
of the Human Rights Act.
Conclusion
Based on my analysis of the evidence gathered during investigation, I find no reasonable cause
to believe unlawful housing discrimination occurred as set forth in Charging Party's Complaints.
r r r
Timothy Little �'{�=` t= Date
Montana Human Rights Bureau
16
A.R.M. HUMAN RIGHTS COMMISSION 24.9.111
24.9.111 DOCUMENT FORMAL FILING AND SERVICE (1) All documents, pleadings, and papers
to be filed shall be eight and one-half inches by eleven inches (8'/z" x 11 ") in size, standard quality, opaque,
unglazed paper, with a minimum 50% recycled content, of which least 10% shall be postconsumer waste, and in
12-point font or larger, double-spaced, and clearly legible. Exhibits or other documents shall be reproduced in
like size unless the original exhibit is required. The commission may require the reproduction of an oversized
demonstrative or other exhibit in a size appropriate for the record.
(2) The place of tiling is the offices of the Human Rights Bureau, Department of Labor and Industry,
P.O. Box 1728, Helena, Montana 59624-1728. The offices are located at 1625 1 lth Avenue, Helena, Montana,
The telephone number is (406) 444-2884; fax (406) 444-2799; TTY (406) 444-0532.
(3) Filing with the commission is effective upon actual receipt at the offices of the department and not
upon mailing.
(4) Parties shall submit the original (or original copy) and six copies of all submissions for the record,
unless otherwise directed by the commission.
(5) Copies of all submissions filed must be served upon all parties of record, including intervenors or
other parties allowed to appear for special purposes, and all submissions must contain or be accompanied by a
certificate of service showing proof of the method of service and the date upon which such service was made.
Service of copies of submissions upon parties shall be made in accordance with Rule 5 of the Montana Rules of
Civil Procedure and may be made by means of first class mail, postage prepaid, unless the commission
designates another manner of service.
(6) Filing of a facsimile copy of a document of no more than 20 pages, which is an exact duplicate of the
original, shall meet the filing requirements of these rules only if the facsimile copy is followed within five days
by filing of the original or original copy of the document and required copies. (History: 49-2-204 and 49-3-106,
MCA; IMP , 2-4-106, 49-2-204, 49-2-505, and 49-2-509, MCA; NEW , 1998 MAR p. 3201, Eff. 12/4/98;
TRANS, to 24.9.111, and AMD , 2008 MAR p. 2636, Eff. 12/25/08.)
A.R.M. IHUMAN RIGHTS COMMISSION 24.9.121
24.9.121 OBJECTIONS TO DISMISSAL OF COMPLAINT (1) A party who is dissatisfied with a
department decision to dismiss a complaint may seek commission review of the decision by filing a written
objection within 14 days after the issuance of the notice of dismissal.
(2) A party who makes an objection and wishes to file a supporting brief must file and serve an original
and six copies of the brief within five days of filing the objection. Any opposing party who wishes to file an
answer brief must file and serve an original and six copies of the brief within ten days of service of the initial
brief. A party malting an objection who wishes to file a reply brief must file and serve an original and six copies
of the brief within ten days of service of an answer brief. If a party making an objection does not file a
supporting brief, any opposing party may file a brief in opposition to the objection. Briefs on objections to the
dismissal of a complaint may not exceed ten pages in length and comply with the formatting requirements set
forth in ARM 24.9.111. Each party's brief should attach copies of any specific exhibits which the party believes
are essential in the commission's consideration of the matter.
(3) Requests for oral argument must be made in writing at the time of filing the first brief of each party.
If the request is contained in a brief, the caption should indicate that oral argument is requested. If a request for
oral argument is timely made, ten minutes for each party will be reserved for oral argument during the
commission meeting at which the objection will be considered.
(4) The objection will be considered at the next commission meeting after conclusion of the briefing
schedule. Consideration of the objection will be based upon the written record unless oral argument is requested
by a party and authorized by the commission. The commission may request that the parties present oral
argument.
(5) The commission will review an objection to the Human Rights Bureau's decision to dismiss a
complaint under an abuse of discretion standard.
(6) If the commission sustains an objection to the dismissal of a complaint, it will reopen the case by
remanding it to the department.
(a) If the complaint has not yet been informally investigated, and not more than 90 days (housing cases)
or 120 days (nonhousing cases) have passed since the date of filing, it will be remanded to the Human Rights
Bureau for investigation.
(b) If the complaint has been informally investigated, or if more than 90 days (housing cases) or 120
days (nonhousing cases) have passed since the date of filing, it will be remanded to the hearings bureau to give
notice of a hearing.
(7) If the commission affirms the dismissal of a complaint, it will notify the parties of its decision in
writing within seven days. The charging party has 90 days after receipt of the commission's order affirming the
dismissal of a complaint to file the complaint in the appropriate district court.
History: 49-2-204, 49-3-106, MCA; IMP, 49-2-204, 49-2-511, 49-3-315, MCA; NEW, 1998 MAR p. 3201,
Eff. 12/4/98; TRANS, from 24.9.1714, and AMD , 2008 MAR p. 2636, Eff. 12/25/08.