10. NW Montana Mental Health - Pending Law Suit0
Incorporated 1892
Telephone (406) 758-7700 Douglas Rauthe
FAX (406) 758-7758
Mayor
Post Office Box 1997
Zip 59903-1997 Bruce Williams
City Manager
City Council
Members:
Gary W. Nystul
Ward
TO: Mayor and City Council Cliff Collins
Ward 1
FROM: Bruce Williams, City Manager Barbara Moses
Ward 11
DATE: June 22, 1995
Date Haarr
Ward 11
RE.: Federal/State Court Cases Regarding Group Homes
Jim Atkinson
Ward III
Glen asked that I include the two recent court cases Lauren Granmo
concerning group homes, local governments and the federal fair Ward III
housing act. You might want to read the cases prior to Monday
night's meeting, as Glen will be discussing with you the Pamela B. Kennedy
Ward IV
status of our local Northwest Montana Mental Health case.
Glen will also be asking for council direction concerning the M. Duane Larson
case.
Ward IV
06/21/95 15:07 V608 283 1707 BOiRDW-N SUR 0001:022
O ` ' #R...
ATTORNEYS
M
ONE Ili P (N 'U
P.
• BOX927
i
FACSBULE:,0.
TO: Glenn Neier, City Attorney
Callisville, Montana
NO.: 406--758-7758
rpjMg-. . iR--'qchard A. Lehmann
DATE: 7une 21, 1995
TOTAL NUMBER OF PAGES (INCLUDING THIS ONE): 22
IF YOU DO NOT RECEIVE ALL THE PAGES, PLEASE CALL Sue AT
(608) 257-9521 EXT, 733.
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06 21 95 1S:07 l`608 263 1707 BOARD!dr1A' SUM Z�002, 022
5-1-95 U.S. Y. C ty of Taylor 15,9"A
IS.9771 US. Y. City of Taylor, No. 91.CV 7321"T. No, 91-CV M30-DT OLD,
h. 1 5-95)
(1) City that refintsed to allow a Mperson Adult foster ranee home In a slagWarally
residentW zone fair Lo make rewaable accommodation for adult ftster can
ban "&
(2) CRy Intenflonay ted on the basis of disability in violation of the Fair
Housing Ad by to allow on adult foster can home for 12 disaW eIeierly
residents to op=k to a single4amAr reAdentlai zo"
HORACS W. GE MORE, United States District Judge
This case is before the Court upon
mm uhd from the United $rates Coact of
Appeals for the Sixth Circuit. On July 14,
1992. this Court entered its opinion in
Unirrd Stater v Cary of 2`ayloF.. MMUSdn.
798 1= Supp. 442 (ir t)A4fich 19921 aanntt
tug relief to the Plaintif t and arfring
payment of damages and civil penalties.
The case was reversed by the United Staw
Court ofAppeals for the Sixth Circuit In
Smith & Lee tImdates v. Guy elf" Taylor,
JtfkNgcin, 13 F.3d 920 (6th Cir. 1993). The
matter was remanded to the Court for
farther consideration.
The issues before the Court are whether
the City of 'Taaylor Intentionally discrirru-
nati4 in violation of the Fair Hoasin; Act,
42 US-C. 13601. et- seq., in refasiag to
allow a twelve-persob adult feaster we
home to locals in a singte-family residential
dharia, and whetter the City made reason-
able accommodati(xu for adult foster cam
homes in Tayylor. For the reasons sa forth
below. tlx: Court bolds that the City did
violate the Fair Housing Art. and failed to
make masomabie ac=modahons for adult
foster Cut homes In Tayiot An injunction
will issue against the City directing the
amendment of its otdinanccs, darnagas will
be awuded to Plain riffs Smith & Let- and a
civil peaatty will be imposed pursuant to 42
U.S.0 § 36U4(Q(lxG)(I)•
L BACKGROUND
A.
Smith & ZAC Associates ("Smith eft
tee") is a for -pro tt Michigan corporation
that owns and operates Adult Foster Cuss
(-AFC") horny in the State of Michigan.
Smith & Lte was organized for the Pgur�ppo0se
of purchasing the rtsidondai home involved
in the instant case. Mortenview Manor In
Taylor, lvLichigan, and NSIISg that home as
tan AFC LI
1Y4 elderly duSAbied
petsoas Swhoareach 25S sit, nit Marlene Smith,
President; Paul Lee, Vice president; Cullin
Smith; Tecasuew, and Linda Let; Secretary:
Mortenview Manor, located at 9734 Morua-
view Drive in Taylor. is a one-story
a, ei 1995 Aspen Law A Business
dwelling and includes a kitchen, living
rooms. din'snhr rents, six bedrooms, two that
baft and a small office. AFC horees like
Motcnview Manor are a form of alttma.
tive housing deli eel to provide Housing
and cam for h persons who caa
no longer live indcpende randy, but do not
require the 24-hoot medical tam provided
in institutional settings such as ounin$
homes.
Not all AFC homes house residents with
the same disabilities or needs. For example.
some AFC homes rare for devdopmeataliy
disabled persons, and others bouse residents
suffering from traumatic brain injuries.
Mortaiview Manor spa "11112 s in caring for
members of the elderly disabled gapnIAU'
and currently houses six dde: disabled
mudents who suffer from AlthtisYhar's
disease and other fmas of dements&
orguuic brain syci tome and odd aliments
assaciatcd with growing old. Many AFC
homm known as "costrace homes, ro-
eeive subsidies Roma state or Community
social service agencies. Howtva. AFC
homes for the elderly disabled population
are pot eligible for such "contracts."
Hence, -non-contract" hones Glee Morten -
view Manor must rely exclusively on
payments from their residents to operate.
AFC homes differ from nursing homes in
bath purpose mad function. According to care
Stets I7cp=rtmetit of Social Services
("DS$"), the goal of AFC homes is to
hagrate disabled residents into the suuround-
ing community and provide them with the
cart they need in a home-Gh setting.
Private homes In residential otiglh
are the gpczfe red sites for APC hones
because �9 hap to shield rest from
the social stigma that so commonly eta
rounds nursing bomes and offset forms of
Institttdonal housing for elderly or disabled
persons. Unlike nursing howerh which ass
based an a "medical model" in which
padem are depen4mt upon mea&W son-
nd and staff to service all of their daity
needs. AFC homes mirror traditlooai family
settings. For example. Smith eft i; e s
resident& eat their meats together, soc'salim
play cards, watch television and care for
115
Uri%L1/ti3 13:U6 UOU5 Z53 17U7 BoaRDIA,'N SIBR
Q 003,022
1SX7.2 Federal Court Decisions S-IAS
each other like members of a traditional
family. The limited size of AFC hosnest
promotes development of family -like rota-
doashtps between the staff and the resi-
dents, it is also common for fancily-llke
rolatlonships to develop between the resi.
dents and the family members of otter
residents who visit the home. Pinally.
because AEC midents are not bed -ridden
and do not require constant medical atten-
tion, AFC homes provide a more appmpnl
ate level of care that nursing homes. By
providing disabled individuals the care they
rued in rho least restrictive form of
w.-iroamcat possible. AFC housing encour-
ages residents to maintain their indepen.
dence and functional capacity to tine
grearest possible extent. in addition to
being the most appropriate setting for marry
disabled individuals. AFC homes arc offer►
the only means by which disabled adults
arc able to five in single-family type homes
in residential commune ties.
Regarding the elderly disabled popula-
tion residing at Mont nvtew Manor, exten-
sive trial restimony ttwealed the; the small.
familylikc atncosphere created in an AFC
home located in a single family ncighbor-
bood was not mcrtly desirable, but meit-
cslly bcneftcial to elderly adults suffering
from various forms a! dementia. such as
Alzhetmer's iiisase. Dr. Robert $ernstata,
It
recgmzed expert in mental health and
the residential needs of elderly adults with
dementia, testified that AFC homes for
fiitcen or fewer residents provide a home-
like sctdng that incorporates familiar envi-
ronmental cues relating to orientation and
daily living tasks. Because of this "eaviron-
trrentat cuing," living in an A.M home, as
opposers to a nursing home or other
9nstitutional housing, actually lessens the
risk of functional decline for adults with
&mentia Moreover, the quiet setting and
familiar sights and sounds of a residential
home wl a backyard, a garden, and
children� piaying nearby can help adults
with Atzht:imer's apd other forms of
dementia to avoid disabling tonfusion and
to participate in community life.
B.
Morttaview Manor Is a cleans, comfort-
able, AFC home highly praisoa3 by its
residents and t & fancily members. It is
located in a quiet sisrgle-family residential
neighborhood in Taylor. and is surrounded
by lawns, tars and other single-family
bones. This Am is designated as "R-IA
neda the Taylor zoning ordinance. Morten -
view Manor is presently permittcd to exist
there only beewst of a State ltw intended
to accommodate the handicapped which
mandates that AFC homes for sir or fewer
residett3 be permitted in all residential
neighborhoods including areas Zoned for
tingle fondly use. That state law provides:
In order to impietrlent the policy of this
state that persons in need of community
residential rare shall not be excluded by
zoning from, the benefits of normal residen-
tial surrarndings, a state licensed residen-
tial facility providing supervision or cart,
or both, to 6 or less persons shall be
considered a residential use of p fbr
the purposes of toning and a permltt use
In all residential zones, including those
zoned for single family dwellings, and shall
not be subject to a special use oc condi-
tional use permit or procedure different
from those mgaired for other dwellings of
simlar density in the same zone
MICH. COMP. LAWS 1125.583b(2).
The Michigan Adult Foster Cate Facility
Licensing Ate ("AFCFLA") requires new
APC homes aocommodating room than six
residents to reeve municipal approval
before the state will issue an AAC license.
MICR COCA? LAWS $ 499.716(2).
From the start, Smith & Lee sought to
house twelve residents in Moacnvierw
Manor. After parchastng the house, Smith
do Lee began renovations to meet state
Standards for mid -sized AFC homes, but in
September of 1989, the City of 'Taylor
refused to issue a building permit for these
renovations. asserting that a twelvapemort
AFC hoax could not operate in a R-1A
zone. Eventually. a permit was issued, the
renovations were completed, and following
numerous inspections, Smith & Lee was
informed by the DSS that Morteaview
Manor could operate with twelve residents
as soon as the City gave its pennission. If
Smith & Lee had bean permitted to pmvidc
housing for an adoational six residents at
that time, the house would have remained
the same size and the household would
have continued to operate on the same
f3rnitylike model.
However, Taylor refused to give Smith &
Lee permission to operate, claiming that the
City zoning ordmanx prohibited mid -sized
Ai"C homes from exisung in single -ramify
Zones. Although the Taylor zoning ordi-
hinny of the original bootee owned by Mr. tacky Zone in wucoasie, wbese a smaltvwp tome is deuced as
14 risldtntc rather dim 1-6. its it is hate in Michigan.
uoi4,Lira 10•u$ "out 40,s trvr 5UAXV)LkN SUHR Q004%022
a-t-ss U.S. Y. City of Taylor 15,977.3
mice does not sperificsllyr address AFC
homes, Michael Manors. Director of the
Office of Development Services at that
tin=, tnfvrmed Smith & Lee that an AFC
home for twelve residents was considered a
multiple -family use and could aot exist at
Mottenview Manor unless the City rezoned
the pr to maltiplaamily zoning,
"Red Neither Mr. Manors nor any
Taylor City official conducted studies or
made formal ' uiries Into the purpose or
functioning ofAFC homes before character-
tzinq mid -shed AFC homes as multiple -
family uses.
Arta being lnrormed by the City of
Taylor that a rezoning to RM-1 was
necessary to operate with 7-I2 residents,
Smith & L e begirt operating the home for
six residents. accepting their rust resident
in December of 1989. In January of 1990,
they ppeetcitioned the City to axone the honte
to a kM-1 district Taylor officials referred
the petition to the City's private planning
consultant. WaderPim Impatx, which nx-
ommended that the request be denied
because RM-1 zoning Would be inconsis-
teant with the established zoning, of the
neighborhood based on the recommenda-
tion of the City;s;�ttcr Lase Ian
2000 Mast" Plaann 1"nn mst}cm5 this
necorrtmcndation, WadcjTrim comItanu
accepted at face value Taylor's char acteriza-
don of an AFC bome far 7-12 residwts as
a -multiple-family use" belonging In an
RM-I tone. WadaiTrim was never asked to
consider whether an AFC home with twelve
elderly disabled residents would, in fact,
more closely msembic a muIdpte-family
use than a single-family use.
nation by the City In violation of sections
364o NII(B and 3604(f)(3)(B). Rather
than requiire Taylor to "spot zone" Smith &
L.ee's gropefty. the Court ordered the City
to send aletter to the D$S giving Staple do
tae permission to operate the AFC horns
for twelve residenm and permanently
ca oined the City from interfering with the
operation of the home. The Court also
ordered the City to pay damages in the
amount of ors"undred and fifty-two thou-
sand dollars (S 132.000) to Smith do t.ec (its
profits if it had been permitted to operate
with twelve residents instead or ttix, plus
some expenses Incurred), and Imposed a.
civil rty of fi thousand dollars
($50,000) under 42 S.C. § 3614(dxi)
(Qi). The City_ filed a timely appeal: On
August 14. t a panel of the Sixth
Davit Court of Appeals issued a stay of
the Injunctive relief and of the execution of
the monetary relief without bond pending
appeal -
On appeal. the Sixth C,ifcuit revaxsad this
Court's finding of intentional dlscxlmina-
tion by the i',tty of Taylor in violation of 42
U.S.C.1j§ 36N (f)(IXB) and 3604(t)(3)(B).
Smith do Lee Assoc. lne. x City of Taylor.
B F3d 920 (6th Cir. 1993). The Sixth
Circuit remanded the case and stated that
this Court "will have to determine whetW
the City's allegedly unequal application of
the non ptorit rec{ --ircmcnt and its alleged
history of discrimination against the handi-
capped supports a finding of hiteiltiortal
discrimination in this case" 13 Rid at
927-�929, 933.
Regarding evidence of historical discri mi-
'i"aytor
A public hearing before the Taylor
nation by Cttyhm&clppecL the.Of a met rice
Sixth Circuit in-nmeted
Piaflnin� Commission was held on Febn1-
g
thus Court to consider, as possible rebuttal
ary 21. 1990. Although no objections were
evidence, that the City had rezoned other
made by neighbors of the Morienvicw
property from singlefalrlly to multiple -
Manor home, the Cotr=ission voted to
aniily so that the owner could operate a
rccomme:nd to the City Council that the
twelve -person AFC home for elderly alas -
petidon be denied. At a March S. 1990
ablcd persons. The Sixth Circuit also
study session, tht City Council discussed
reversed this Court's findins, ft the City
Smith & L.ee's rezoning request and at its
of Taylor iax=ionaliy disrtiminated by
March 6. 1990 meeting, the Council denied
the citing concernsover s t'
al!owin :a train "for -profit" business other
request,
than Smith & Lees AFC home to operate in
aMmg afld-j�ons tencies with the _g�gie family residential areas and re -
master devclo tan. ante native
m�dcd the issue so that this Court could
the
ere roost exed at that time
whether Moncmiew Manor was
C
similarly situated to chest businesses and
vrhesher Ta lot had fled its main
On May 10.1991. Smith & Let instituted
this action against the City alleging viola-
tions of the FHP.A. 42 U.S,C. ff 3604
(f)(1)(B), 3604(W)(B), The United Statestit instituted a similar action shortly thereafter
and thif Court consolidated the two oLsm
After a bench trial, the Court issued its
opinion on July IS. 1992, finding discrimi-
1993 Aspen Caw a 0-twine"
ordinance cin an unequal and unconstitu
Donal manna.
On the qucsxion of Taylor's dory to
accommodate handicapped persons under
the FffAA. the Sixth Circuit rcvcrscd this
Court's rmding that the City failed to make
a reasonable accommodation under the
115,977
VV' L1� 37 i7
la.un Iovo t84 110 BOARD%kN SIHR
i4005;022
15,977.4 Ftderal Court Deddons 51-9d
>"HAA in violation of 42 U.S.C.
g 3604(f) XB) by refusing to issue a tonne
City of Pattern, 661 F.24 562, 575 (6th C.it
1981) tsar. denied, 456 U.S. 926, 72 L. Ed.
Of permission to the DS5 allowing Smith &.
Lee to twelve residents. The
2d 441, 102 S. Ct. 1972 (1982). The
sssestmat of whether xc�tlWons have been
psub.
�hQous�et
•urtft O this My ii S41 Wn the Sixth
taken wIth dl�i�inatary Intcut "
Circuits determination that the City had no
a semsitive inquiry into such cirauavA ttlxl
authority antler the City on; Village Zoning
F=blln�g Act. 1� IL COMP. U*l
§ tZS.?flt et seq, or tmdcr its own
and direct cvidcnee . as may be
avu'labla." YEltage af d rptt� het tx
Mefroppootthan Maws, brit
netting
., 429 U.S.
ordnance to Issue such a l MCf of permis-
252. 266. 50 L. FA 2d 45C. S. Ct. 53S
&ion. The reasanabte accommodation issue
(1977). This approach is critical In cases
- was remanded to this Court to detuinine
Involving rho actions of public officials,
whether the FHAA and the facts and
bet mu "municipal officials ie ft In tried
chvumstanc es of this crasc regerired that the
official capacitles seldom, ifevig. wwounoc
City "spot zone' Smith & L WS property.
on the record that they Ms Viming a
or. In the alternative, amend its neutral
partieular c urss of action boomo of
zoning ordinance to allow "for-profet" AFC
desire to discriminate against [a protected
homes of morn than six residents in
single-family
classj." United States v City Of
hank Mich., 727 F.2d 56t1, 565
neiighborhoods.
Firmlly, the Sixth Circuit reversed this
1984). cert. denied, 469 U.S. 821. 82 L. Ed.
2d 41. 105 S. C1. 45 (quoting
Corer's imposition of the maximum $50,000
(1984) Smith
Carkt�. 682 F.2d 1055.
petiahy under 42U.S.0 § 3614(d)(IXC)(7.
h ding that "the law as to what accommo•
tf154ow (ofh
elation is rewired is too uncertain to
penalize the City's conduc%- and retlitinttig
t that reascros jurstitjring the imposition of a
penahy be provided by the Court, should it
conetude upon remand that a penalty is
apArot?iam•
After conducting art extensive triad on
rwr&M in wbkb substatdai new evdenee
was prezm:cd by all pwdcs, this Court carer
Win conetudes that the City of Taylor has
violated the FHAA. both in discxir resting
apinsc present and proposed n-&mba& of
ommview Mauer based on handicap. In
violation of 42 U.S.0 j 360(t)(I)(B). and in
refusiarg to snake a reasonable accommoda-
tion to violation of 42 US.C_ 136Wf)(3 ).
IL
A. Intentional Disc imination
The intentional d4c rimination provision
of the Fair Housin; Ace; located in Wtion
3604al), makes it unlawbA.-
(1) To discriminate in the sale or rental,
of to odieizvise make unavailable or deny, x
dwelling to any buyer or tenter because of a
handicap of --
(A) that buyer or renter.
(B) a person residing in or intending to
reside is that dweliitt$$ after it is so sold,
sited, or make avItlxbk; or
(C) any person assoclated with that buyer
or renter.
To prove that Taylor waged in Inten-
tional discrimination in violation of this
provision, plaintiffs need only show that
des aciniinatory animus was "motivating
factor" for Taylor's action, as is
ri irement- that such lucent be the sole
basis of official action" United ,States x
In this case. evidence of Taylor's Interl-
donal discrimiriatlon am= the handi-
capped is found in: (1) Tlie (3ty's urisup-
p� cluxacteriratioo of amidsized -d AFC
b as a "multiple -family" usa; (2) The
City's dispainte apppl;c_�adon of its zoning
ordinance among ABC homes and other
homes; (3) Faterw istic and other distr€m%
wory staicments made by Taylor officials
about Morxeeview Manor's eldaiy disabled
re identr, alai (4) Evidence of historical
di5orirnitsati011 against the handkepped whicb
was not stutts=tialiy relented by ibe City's
derision to ttzons another twclvo4ee,&=t
AFC home from single-fzmUy to mult;plo.
family atoning
1. C haractalution of Proposed AEC
Horne as a "Muldplc-ffarnily" Use.
The legal justification offered by the City
of Taylor in refusing to allow Smith & Lee
to house twelve residcnts at Moncnview
Mazur was an altegcd confr'uz with the
City's zoning ordinance. Altbougir die
Taylor ordinancc d1d not (and still does no*
actually address zoning for AFC homes of
any size, the City chase to char=erb* a
twelve -person AFC bocce as a itxtltiple-
family use, thcrety requiing that Morten.
view Manor be retuned to "RM-in before
Smith do Le* would be allowed to house
twelve eldwiy disabled r%iderds there.
Having declared that RA-1 zoning was
necessary under the outrunner, the City
proceeded to re'� Smith & Lao's petition
for rezoning, aRcring two justifications: (1)
that State law• did not noire the City to
characterize AFC hordes for mom than six
residents as single family uses, set MICR.
COMP. LAWS 1123.383b(2) ; and (2) the
a twelve --person AFC home did not meet
the definitlen of "family" under dw CEW
VV' LL.' VV
Ld.LV aaoVq coo Lout bu.u."X N SCHR &0$L'022
5-1-95 US. v City of Taylor 25j9'7'7.5
zoning ordinance, which currently wads as
follows:
a. A,i individual or group of two or mare
persons reiatcd by blood. marriage or
adoption, together with foster children and
strvants of the principal occupants. wit4
riot more than one (1) additional unrelated
person who are domiciled together as a
single, domestic, housekeeping unit in a
dwelling unit, or
b. A collective member (sicj of individu-
als domiciled together in are (1) dwelling
unit whose relationship is of a continuing
nonm.nsieat domestic ch$racttx and who
are cooking and living as a single fit
bpustkaeputg snit+ Tills defittitioA sfi
include any socitty, club, f w ml% soror-
ity, association, lodge. cateric. (orl
organizadatt_ - . -
CITY OF TAYLOR ZONING ORDI-
NANCE. J 2,02(36). Because Mortenview
Manor is owned by Smith & Lee, and not
by the residents, it is terhnicalty a "for-
pprofit" housekeeping unit. Therefore,
Morterhvicw Manor's residents are not a
family under section 2.02(36) of Taylor's
otdirtance.
In analyzing the City of Taylor's appplica.
tion of Its zoning ordinance to AFC homes.
the court recognizes the wide -tinging
discretion a local municipality has in
resonating land use within its borders. Sec
W11age o Euclid v. Ambler Realty Co., 272
U.S. 365,391, 71 L Ed- 303. 47 S. Ct. 114
(1926). The Court does not di:te the
Sixth Circuit's finding that Taylor s def�ni-
don of a "farnlly is a cottstftutionai
exercise of its Ieggislanve discretion to tone
a r�tsidential nc1g1grT ilodxt, and accepts that
the narr.proflt element in the city's defini-
tion of family is included in Its zoning
scheme for legg'trdmare and non-distsimiaa-
tory reasons. Nevertheless. the Court holds
that the City of Taylor's refusal to allow
Smith & Let to operate a 7-12 person AFC
home within a single-family neighborhood
was not the result of a neutral application of
the City's zoning ordinance- The Court
concludes that the characterization of Smith
& Lee's proposed home as a "multiple -
family" use was not required to preserve
the stated goals and purposes of the zoning
ordinance, and was motivated by a tdiscrirm-
natory antnilrs against handicapped persons.
There is no question that segregation of
commercial enterprises from tesodeatial
housing is desirable far a municipality and
Its
resdtiertts. It is also clear that a city's
zooirig powers entitle It to Implement
segregation of this nature, within the
confines of federal stawies such as the Fair
Housing Act, which prohibits certain forms
n 0 1 M Aspen Law & BU-4111 s
of segregation In housing. The City Of
TAylor has attempted to exercise this power
by establlshing sin;lc-f roily zoned amas in
the Fitz. and defining the families pennittcd
to live ►n them under section 2.02M) of its
ordinannce, However. the absence of arty
mention of AFC honnes in Tayton"s ordt-
tianot makes it clear that the City did riot
consider theft homes In drafting section
2.0206) of rho ordinance.
Despite the confines of the statutory
language. them Is no Question dart the
fundamental purpose of any AFC !tome,
Indud1% Morrenvtew Manes, is to provide
a home to a family -lice setting fin handi-
capped iridividttals. In addressin this issue,
the Sixth Circuit deemed use Of
Mortenview Manor by its residents Imsig-
nificant, bolding -that a proper apptIdion
of the ordinance re-quitmd the Court to tow
to the use of the bonze by Smith k Lee,
"which owns the home, (and) has not
tiansfeaw arty rop0ty intcrrst tri 113
residents and bolds the possessory Interest
in the property." The Sixth Circuit went on
to conclude that Mortenview Wrim, al-
though provided for the handicapped. -is
indistingvtthable from a rcxotr.'ta house,"
which It defined as a pmfdt�g alw-
prise furnishing meals and rooms fat
compensation.
Having had the opportunity to learn moot:
about the purpose and strvcuure of AFDC
homes in general and Morteaview Motor in
Particular. it is clear to the Court that -the
Sixth Circuit was not fatly iaformad when
It dectarcd Moncnvicw Manor to ba
indistinguishable frorn a rooming house In
which tsansicm residents hold no -
sory interest in their place of resiClerice.
Through the course of trial. the ono -year
Resident Care Agreement signed by each
new resident aeceptcd at Madeaview Manor
was identified and explained to the Court.
Plainti ffs demonstrated that through this
AgteemeM Mortastview Manor's residents
do Pina possessory interest in the bome,
similar to that of any other long-term reaw.
For example, payment of rent to Smith do
Lee under the Agreement entides Morten -
view Manor's resiclaits to the Mtrdrigaa
HowAstead tan exemption for renters.
Moreover, Smith & Lee's Presidan6 Mar-
lene Smith testified that Smith & Lee
considers its relationship with its residents
to be a long-term arrangement, and aspects
that residents will oontinuc to rzacw their
aaectu nts annually so tong at need
rite rare providod. but have not deteriorated
medically to an extent that con ouous
medical attention is require& Smith do
L,ec's goal has always been to provide its
residents with the security of knowing that
J15i7
t}p%ra%via ia:sl ""Ovo ells 17U7 13t1A.RDCA6N SL`BR
IcUU7i ULL
Mortenview Manor can b6come a long-
term home for them. For these reasons, the
Court concludes that Mortenview Manor is
not the equivalent of a rooming house in
which transient residents hold no posses-
sory interest in their place of restdcnoc.
It is clear that smith & Lae•s use of the
Mortenview resldcnce is distinguishable
from that of a typical single-family resi-
dence in than it is a for -profit en prise.
This excludes its residents from official
recognition as a "fancily" based on a strict
reading of section 2.02(36) of the ordi-
nance. The Court does not, however, find
this fact to be legally controlling. As was
tecogntzed In tht fit'st trial, it is just as trite
that a twelve-pessori AFC home also does
not technicsJly fall within the replar uses
of RM-1 property as defined in the
ordinance. Far purposes of this case, the
only truly accurate statement that can be
made about Taylor's zoning ordinance is
that Monctiview Manor, as an AFC horn
with twelve residenm would not fall under
the City's ordinance anywhere. lire home
combines residential and commercial uses
of a single -fancily , residendal home In it
unique ramner that was neither addressed
nor contemplated at the time the ordinance
was drifted.
Although large homes -for the elderly as
well as convalescent and nursing homes art
permitted as special uses In RM-1 districts,
the assumption, endorsed by the City of
Taylor; that AFC homes would be more
property located along side these nursing
and convalescent homes, rather than next to
families. is unsuppoaed by the cv'sdcnco
pr'csented at trial and in direct conflict with
the express foals, organWdonal structam.
and functioning of AFC horses. It is the
opinion of this Court that the City of
Taylor's only justifications for this assump-
tion and for its characterization of mid-
sized AFC homes as multiple -family uses
are rusted in stemotyDical witio
e n='' t n a
ab ed ons and e C homes in which
manny
The Court is awatm that for many people
ttre ten n `nursing home" conjures up
Images of sick, elderly persons, confined to
small rooms off -long, white, corridors
patrolled by medical ptrsonnei and filled
with unfamiliar. often unpleasant odors.
Moreover, one Court would agree that this
type of large, insdtutiona.14td medic i
facility would be out of plate in a quiet
single-family neighborhood. However,
through the course of this trial. the Court
had the opportunity to learn a great deal
about AFC homes and other forms of
housing offering alternatives for e.detiy
disabled adults who neither require nor
desire Pursing home care. Through a visit to
Mortenview Manor the Court rther en.
hanced its understanding of the AIC
alterTative. Based on chess expttiences. it is
now clear to the Court that Mortenview
Manor does not, in any eneaningflti Y 7q
resemble a nursing homm From the outside.
the home was ttndistingu�sitable fMom any
other legate in the stet*4*rhaod, and
displayed ro tangible signs of its comnw
ci aidum Inside. It was clears and brigqh�t,,
cofafortabl furnished, and though tFulty
decorated like a typical family home. It was
Blear that Smith & Let had successfully
Implemented the AFC model discussed by
varroas expert during trial. and was
pmviding iq residents with a farnitiar
home -Re atmosphere -m a quiet. friendly,
single-family community whem they could
receive the care they needed without being
subjoated to the highly stigmatized. Iastitu-
tfonal sarrotutdings of a nursing home.
Bascd on this experience and the Coures
thorough analysis of this Issue on remand
the Court condudts that the very character-
Izarion of a twelve -treason. -Aft botno as
PsoAL "Intentional dlscriminatndi *
clude actions motivated by stei'eo-
unrwzWd fears, misperceptions, and,
le attitudes'. as well as simp
Ice about a with disahHid ."
I House-C Me eN. Zoufs. E
1556. 1575-36 M D.Mo. 4): see
aJ Opt lfOGra H:' 4M C,-OU&7 x
Artrne, 48 73, 279, 107 S. tat. 1123,
1126, 94 L. U 2d 307 (1997). In deciding
that twelve-pma AFC homes shouid be
characterized as a multiple-farnfly uses,
Taylor City officials ignored the facts
that these homes were based on single-
fatuilz modets, with the primary goal of
allowing elderly neciunts to remain to
residential, single-family neighborhoods
similar to those in which they spent most of
their lives. Instmd. Taylor relied on stemo-
typts, assuming that all forms of housing
for elderly people with disabilities would
inherently mumble commercial nursing
homes, ticcreby fe:tdering them Inap�prop
ate for Taylors single-family neighbor-
hoods.
Poignant evidence of this forms of
Intentional discrimination was found in the
trial testimony of Mr. Gerald Couch, the
Current Dlro= of Developmental Services
for the City. who gave rail olinion that an
AFC !tome, even one with only six
residents, could never really be like a
family home because it was fundamentally
corny crcial. He said that the Clay is forced
to ptctend that arose 1-6 person homes are
not businesses because of the State man.
06"21%85
15:11 U606 263 1707 BOARD1LLti SM 11006,022
$-t- G.S. Y. City of Taylor 15,977.7
date. but stated his belief to the cowxtry.
Although he agreed that Mortenview Manor.
in its prmrit state, dries not resemble a
nursing home and shows no tangible 1 nt
oft cammcrcia! rate : e` p a
f 1 t sat it mug t start to care for seedicr
and needier people, making It mom like an
hnsstiti Lion. No foundation was ofh'eted to
justify that fear. W. Couch admitted that
Morteahview Manor is externally indistin-
guishable from every other home in the
neighborhood. that the City has never
rccelyed arty complaints about the home,
and gave his own opinion that the home had
no negative impact cc the surrounding
neighborhood. He defended his opposlthon
to the home by staling that he was
ptvte ctinig tht neighbors who had paid to
t€ve in quiet, single-family - areas, but
admitted that none of the nughbon had
opposed Smith ear La's petition to increase
its resident population to twelve at the 1"0
hearing before the City Council.
Morse nview Maxtor Is not a nursing
home. It is art AFC home, designed to
provide an alternative to nursing homes for
elderly, hwidicappcd persons who require
some daily assistmace with living, but
choose to live in a single-family residential
home in a family -like settingg. Ilse City of
Taylor was first forced to adduces the reality
of AFC homes when the State of Michigan
gassed a law requiring municipalities to
recognize AFC homes for six or fewer
persoeis as residential entities free to locate
to single-family zoned areas. When Smith
dz Lee forced Taayylor to address zoning of
slightly larger AFC homes for 7-12 per.
sons, the City had many choices. given the
fact that Its ordinance offered no guidance
on the proper zoning of such homes. In
making Its choice, the City made no
assessment of ft !0ah and day -today
functioning of AFC homes. Instead It
charactmizad AFC hashes with twelve
residents as incompatible with sutroundin
single-fariiiiy usesexplaining to Smith I
tee, the United States govemmem and this
Coum that the homes were commercial
institutions much like nursing or convales-
cent homes, but not like ttaditlorW single.
family holies. While this Court recopizes
that the Taylor zoning ordinance did not
require the City to embrace twievc-person
AFC homes, which did not fornialby fall
under the statute's definition of a family.
the Court concludes that is reeqquiring that
these homes be placed in Rkt I zones
where nursing and convalescent homes
were allowed as special uses. the City relied
on stere1about elderly handicapped
son pers to laWtutional housing #
ersfor dis-
abled persons. in the eyes of this Court.
A 0 149S Aspen Law de: Business
Taylor's reliance on swcotypes to f usafy
dto sepregatlon of h"capped residents
living in twelve -person AEC homes to less
desirable. more commercial neighborhoods
In the City is compeltins evidence of
Intentional discriminafon la violation of
section 3604(f)(IXB) of the Fair Housing
Act
2. Disparate Application of City Zor;m$
Ordinance
Other evidence of Intentional diseriin€rrs-
lion arises from Taylor's unequal appptica
tlon of Its zoning ordinance to AFC home.
The Court agrees with the Sixth Circuit that
the City apjitted the strict language of its
zoning ordinance to Mortenvtew Mawr
accurately when it concluded that a "for
profit" business did not fail under ttte:
stawuxy definition of '&mlly." However,
this technically accurate application was
nonetheless disctiminatoty against Morten -
view Manor's handicapped resideuhts be.
cause this AFC Home is dic only home in
Taylor to which the non-profit eequirernont
of the City's ordinance has been strictly and
rigidly applied.
A closer examination of the Taylor
mning ordinance elarifles ties "fen profit"
uses of sIngle-fMily homes are not actually
excluded by the City. Although the City
objects to Smith de: Lee profiting from the
use of its home, the City allows single-
family home owners to rent out their houses
for a profit. Also, under the "horse
occupadon- provision of the ordinance,
residents in Taylor's single-family areas can
conduct businetises out of their homes. so
long as the home is used primarily as a
dwelling and the business deco not create
any external nuisances atfee ngg the neigh-
borhood -'The actual languapc of the -home
occupation" provision, section 2.M--.(42) of
the Zoning Ordinance, reads as follows,
42. Home occu& don: Any use extstoniat
By conducted entirety within the dwelling
and carried on by the inhabitant thereof.
not involving employtas od r than mem-
bers of the Immediate family residing on
the premises, which use
is clear! incidental
and secondary to the use of the: dwelling for
dwelling purposes. dots not change the
character thereof, and which does not
endanger the health. safay. and welfare of
any other persons residing in that area by
reasons of noise, noxious odors, unsanitary
or unsightly condition, excessive traffic,
fire hazards and the like, involved in or
resulting from such occupation, profession
or hobby. Activities not deemed to be Borne
oecupauons include, among others, medical
clinics, hospitals, barber shops, aurserim
day medical cruses, day cane centers,
115,977
VVA1W3Lt1\ 5LHK
to0t181uIz
151-M.8 Federal Court Deddons sa-its
beauty parlor's" tca room$. veterinarian's
otf=, tourist homes, animal hospitals.
kerumis, offices of insurance ar4 real estate
agents, lawyers, doctors, account nut and
millinery shops.
Trial testimony revealed that the horse
occupation pmvisloa Is intended to strike a
balance be the right of h4viduals to
use their hordes as they chooser, and the
right of the City to segcgato predominantly
residential from predominantly commercial
Uses through Its toning powers.
In Smith & Lees case,'the City inter-
preted ttu tanguap of the home, occupation
rnitre
�r^ovision to exclude the proposed AFC
solely because thy: owners do not live
In the home. However. the evidence showed
that no other home occupation has ever
been prohNted solely for this reason.
Moreover, the City does not contend that
Individuals rentin; a single family home
would be prohibited front conducting a
home occapanon within. Looking to the
City of Taytoes overall enforcement of the
home occu oa provisim it becomes
clear that t�tte fundamental similarities
between their home and others. Smith do
Lee and the residents of Mortenview Mirror
have been treated diffcrendy from other
Taylor homeowners and ranters seeking to
conduct small businesses out of their
single -fatuity homes.
Mr. George Bopp, the Su€sefyis€ng Ordi-
nance Officer .for the City of Taylor,
testified at trial about the City% enforce.
ment of the borne occupation provision. Mr,
gr's job rewires him to traverse the City
examining exteriors of homes and
yards to ensure that property is maintained
and that no nuisanou or blatant violations
of City ordinna=es are p=eAL Mr, Bopp
testified that he is familiar with the home
occupation provision and that he has
written top many violations of the provision
over his yearn of savice for the City
However, W. Bopp explained that he on y
takes ofricW action to enforce these
rovisiorts when he believes, based on an
inspection of a home's exterior. that the
health. safety or wgtfare of the neighbors is
Jeopardized by a boric occupation.
Trial testimony revealed that under the
City of Taytor's adorc=ient scheme, many
businesses arc tolerated on Mortenview
Drive and in odSier single-family residential
nc'sghborhoods in Taylor. The businesses
identified to the Court included a welding
business, FlMit
g and pth-AS business, a
�eaarrp��t Inbus nets, a painting
buslaess and vegetable stand.
Some of these borne occupations had signs
posted in tau trout lawn advertising the
btrsioesses in violation of the home ntcupa-
tion provision. Kowever. bocauso the $iis%
did not appear to cage any real harm to the
neighbothood. Mc Bopp allowed theta to
remain until August aIM. when his
Ivorpt. Cwd, asked him to
remove the trial. Tvir" Boptestifiedd MoctesvieIn propmdon for eww
Manor has never received a complaint or
been written up for a violation of any kind
and has always disptttyad a well-mattttsinod
exterior. He also opined that WrterMew
Manna's exterior is indistinguishable from
the other single fundyy homes on Morun.
view. Various City officials confi med W
Bopp"s testimony, admitting that compli-
ance with the City zontn orOnance has
always been judged bated on an exterior
cvahtation of the property: Martanview
Manor. which was repeat«ily rtcognimd as
a well -maintained, single -fatuity style home
indistinguishable from homes surimindingt
it, was clearly held to a different starndai%L
Mortenvicw Manor Is similarly situated
to other home occupations �pp "mod to
exist in Taylor's singgle.f%FY Mndgbbor`
hoods. Like those tawwfut horns oompatioas,
Smith & Lae's home has not violated any
City ordinances, shows no tangible external
signs of its "Comrner'dal" nantre, and is act
viewed by City Ordinance Officers to
threaten the health. safety. or welfare of the
neighborhood in any way. Mortenview
Mute is also similarly situated to perritit-
tad bome occupations In that It Wwdoas
primarily as a dwelling, and thus displaxe
no tangible conflict with the residential
+character of the Mommview nsighborbood.
Despite these sirnilariiles bezweca Smith &
Lee's prvposcd AFC home and other home
occupations permtted In Taylor's msiden-
tial wcas, the Gity has used the strict
lanpage of the zoning ordinance to pro-
tubit Smith & Lac from providingg a home
fior twelve elderly disabled tesldcnm In
light its apathy toward other. more l
vc commercial toes in Single-family
neighborhoods, the City's refusal to allow
Smith & Lee to operate Mortenview Manor
with twelve residents in a single-family
neighborhood constitutes dis trc&.
titera an the basis of haod�and is
compelling
on uutg evidm= of iatenGtxnl discriet.
lawnsistent application of the City's
zoning ordinance to AFC homes continues
to occur. In the original trial od this mover.
the City eoncedtd that if a twclvelasoa
AFC home operand as a nonprofit organ%
zction, it would meet the definition of
"family" contained in the toning ordirorice
and be permitted to txist in a singg!e-family
ood Ia Septt tuber of I494.Just
ors the trial on remand was exvodw to
begin. the City indicated that this was tsi
(?L 010: 022
s-1-ss Us. V. city of Taylor 1.5,977.9
longer its position. Ttae City stilt concedes
that if a twcly rson AFC home were
note -profit it would meet tho dc6ulion of
"familyy." but it now asserts that such an
Ar-C hortu would be prohibited from
cxdsdng in a single-family nelflrborhood.
The asserted reason for excluding such a
non-profit AFC home is the Increased
"6onsity" chat would allegedly result from
brAng twelve parsons in tree house.
However, the City places no similar
marictiotl on the dersstry of note -disabled
potsom who live together. The zorting
ordinanoe's definition of "family" permits
unlimited numbers of related and unrelated
persons to live together to long as they
meet the definition of family. Various City
officials testified at trial that because there
art no cases of twelve unrelated persons
living together in a single-family home In
Taylor_ It hays not been forced to consider
ameodmg, the ordinance- The fact rtniains
however, that tttt Catty has declamd its
refusal to allow a hypothetical non-profit,
C twelve -person A home meedn4 the
defteidoo of family to exist in a s:nglo-
Amily area. whereas no similar declaration
of intent has been made rtgaading twelve
unrelated, noo-disabled persons. who m
stain fits to saw homing in any Taylor
bome of their Choosing, Such disparate
ftatment� based on the fact that ttrt
residents of AFC homes art disabled.
tonsdrutes dkect evidence of intetdoad
discrimination. Stewart $. Mc1K mey Forrs-
dadon x Town Pion 4nd Zoning Gxnnib-
aian, 790 R Supp. 1197 (D. Corot IM)
(applicadion of special use permit process to
AEA that met the Citys definition of
"famly" violated the Fair Homing Act.)
3. Paternalistic and Discriminatory State-
ments by Taylor City Officials
Other evidence of intentional discrimina-
tion -includes a number of discriminatory
comments made by Taylor City officials
throughout these proceedings. For txatnpple,
faMthe
at the first al, CtWrman of the Qtcyy
Council explained his opposition to Sattitlt
dr Lee's AFC horns, stating his belief that
AFC hornes would have a negative impact
oa single-family neighborhoods by lower-
ing surrounding property values. however,
no evidenot was offered in support of this
fear, which was shown to be inaccurate and
unfounded on remand. The Mayor of
Taylor; Cameron Priebe, also testified at
trial on remand.. explaining that after a
decade of exposure to AFC Cremes with no
negative re-sul% Taylor City officials and
residents no "er oppose the presence of
tha homes within the City. However. in
making this statenwt4 Mayor Priebe admit
a o 1995 Aspen taw do Business
W that some of the City$ initial opposition
to AFC homes was based on Irtationat fears
and pr*dices about the dangerous or
unstable nature of AFC residents. Evidence
that such kradoual pmludlc= arid fears
remain present its the minds of Taylor City
officials was found In rite statements of Mr.
Gerald Couch. tht Executive Director of
Devetopmtatal Services for ftse City of
Taykr. wbo testified on remand drat be felt
It was his dtdy to protect Taylor's singe
family homeowners from AFC homes in
their neighborhoods. The facts are, how-
eve4 that the residents of Taylor have not
requested stu3t protection, and none of
Ntotunvicw Marhor's neighbors have ob.
,Faxed to Smith do Lea's petition to mmne
Its property to operate a Bottle for twelve
elderly disabled residents.
Courts bave also recognized that overt
discrimination can be disguised as a desire
to protect handi persons. Ste g= cr•
ally frJernadonol Won. UAW itJoe son:
Cawmk. Inc.. 499 U.S. 1$7, 20Q, III S.
Ct. IlK I2K 113 L.. M 2d 158 (1991).
One example of such patcrnalfstle dis,cdmi-
nation is the statement by a former Taylor
City Council Chairman who testified at the
first trial that he opposed the 12-pee=
adult fositr care home because he feared for
the safety of the home's handicapped
residents who might have difficulty escap.
r+� Pram a fire. Not only did this individual
Exit to persuade the Court that safety
concerns of this nature were related to the
home'sp�o� in a siagje-family residen-
tial neighborhood, he also felled to address
the fact that Morteriview Manor and other
AFC homes must pass special fire safety
Inspections before being t ti ease&
4. historical Diserimivation Against tttt
Handicapped
Finally, regarding evidence of historical
discrimination which the Court relied upon
In malting its initial ruling, the Sixth Circuit
held that evidence about the C ity's dirm
opposition to Taylor's fleet six person AFC
home was renwte. but relevant to show that
discrimination was a motivatin &ctor
behind Taylor's refusal to allow hmith &
Lee to house twelve residents In 1990. The
Sixth Circuit explicitly Instructed the Coact
to consider as possible rebuttal evider4e,
that its 1984 the City rezoned from
single-fainily (R-tA) to mul pie -family
(Rive 1) in order to accommodate a twelve
person AFC borne known as Beechwood.
However, in looking at the circumstancessurrounding the rezoning of the Beechwood
property, the Court believes that this aetlon
fails to rebut plaintiffs' allegations that
105p"
l4011 022
15,977.10 Federal Court I} dsions SAM
Taylor has histcrIcally disaiminated 2gairtsst
AFC homes.
First, although the property in which
Becchwood is currrxitiy located was otfi-
tially designated R•IA. it was 4smnt to
an RM-1 multiple -family zone and was not
located within a single-family neighbor-
hood like Mortatview Manor. One side of
the $achwood ptopeq abuts a large
apannient complex. and it lies on a 1aartp�tt,,
wooded tot, isolating•it from the sin$lea
ramily homes on Its other tide. The
evidence on remand established that Taylor
rezoned the property In question not so that
AFC residents would be allowed to live the
quiet, single-family neighborhood of their
choler, but because it believed titan the
home %vuid �rovlde a good "boiler"
between the single-family neighborhood
VA the apartrnent complex. Although the
Reachwood incident may show that Taylor
has =cased resisting the pmtnce of all AFC
hones within Its boundaries, it fails to
demonstrate that Taylor had ceased arternet
ing to segregate AFC homes from its
single -fancily noeighborhoods-
S. Conclusion
For all of these rcasons, the Court
concludes that the City of Taylor's refusal
to allow Smith & Lee to opera= aA AFC
home for twelve elderly disabled restdgtts
in the Morsenview neighborhood was mod-
vated, at larst in ppaart�.. by discftminamry
animus against handicapped persons. There-
fore, the Cl of Taylor Fees violated section
3604(f)(i j ) of the Fair Housing Act.
13. Reasonable Accommodation
To this day, the City of Taylor has not
approved any housing for handicapped
pawns In an area that was not in or
adja=t to a less desirable multipie-family
tone. Because of the state law allowing sire
person AFC homes to exist in single-family
zones, Taylor's discriminatory polities have
not resulted in the total exclusion of
handicapped persons from Taylor's single.
family neighborhoods. However. this policy
has effectively denied a particular group of
handicxppcd petsoas, the elderly disable d
population. equal opporntruty to obtatit the
housing of tfreir choice to single-family
residential arias. 71tt evidence presented on
rtmand established that elderly disabled
individuals., such as those currently residing
at Mortatview Manor, are not reasonably
accommodated by the City of Taylor.
The FiiAA imposes an affirmative duty
to reasonably accommodate harrdica
persons. 42 U.S.C.. 4 36p4(f)(3)(B). raw -
ever, bey the precise obligations encom-
passed by this duty are ambiguous. many
courts htve looked to the legislative history
of the Act for gaidancc. See e.g.. City of
Edmonds cc Washington State .Building
Cafe t:oundfl, i8 F3d 8W, 805 (t#t Cur.
19%), ctrt. granted, i iS S. C.t 40. 130 I..
Ed. 2d 332 (tact. 31, 1994). At trial on
remand in Otis ease. defendant City of
Taylor alleged that it met its obligation of
reasonably accommodating handicapped in-
dividuals by allowing twiel AFC
homes to exist In the multiple- ly zz
areas of the (Sty. The City elalnts fwthw
that it has accommodated Smith & Lees
request to house twelve elderly disabled
residents by idcndfying twelve shm to -
Gated throughout the City. which it cortsid-
ers appropriate alternative sites for Smith &
Lee,$ proposed AFC home " other
mid -sized AFC homes. Plaintiff's Sngth &
Lee and the United States have object to
this position, contending that the reasonable
accommodation Issue before the Court is
not wheritaTaylor will permit Smith & Lee
to locate In some reasonable area in the
City, but rather. whether Smith & Lse's
!retqquest to house twelve elderly disabled
individuals at Mortenview Marcel is a
reasonable accommodation Unde the FKA.A_
After thorough examination of this tsar=.
the Court concludes that Plaintiffs have set
forth the correct Interpretation of the
FRAA. In a recent hfrnth Circuit opinion
addressing this issue, the Court examined
the legislative history of the Fair Housing
Act and srxtcd as follows:
The FHAA imposes an of arnativt duty
to reasonably accommodate Nandi pod
persons.... Congress intended the FAA
to protect the riSht of handicapped pasaas
to five. In the res►dcr►caof it stein the
1988 US.GC.A-: at-285.
e FMA was to "end the unnecessary
exclusion of persons with handicaps freer
the American mainsuzarn." td. at 2179.
Cfn of E&nonds. 18 F 3d at 8M In
United States v. Badjea. 976 F.24 1I76.
1179. the Eighth Circuit held that the
gqestion posed by the reasonable aocomnto-
tion provision of the FHAA was not
whether any housing wv made avallabk,
but whether housing desired by a member
of a protected class Avs denied on InVcr
missibie groueds. Similarly, in Marbrwwk
tne. v City of Stow. 974 F2d 43, 48 (6th
fir. 1992) the court considered whetter
municipal safety requirements had "the
effect of limiting the ability of these
handicapped individuals to live in dw
residence of their choice." Finally, this
interpretation of the FKAA Is consistent
with the Sixth Circuit's instructions that this
Court determine oo remand 'whether
reasonable accommodation under the FiiM
rcqu'rtts that Taylor spot zone or amem its
neutral zoning ordinance to provide for
AFC homes with more than six residents."
BOARDMAN SUHR
S-14S US. Y. City of Taytor IS,977,11
To establish a violation of the reasonable
accotnanodation provision of the FHAA, a
plaintiff trust show that (1) the proposed
accommodation is "rcasonable." and (2)
that the accommodation "may be acces-
sary" insure to equal housing opportunity.
42 -S.C. § 3604(f)(3)(8). On appeal, the
Sixth Circuit held that the state statute
requiring Taylor to allow AFC homes for
six or fewer residents in its single -faultily
neighborhoods is itself an accoramodadon
for the handicappK but recognized that
this accommodation may be itmtltgcieat to
meet FHAA requirements. Fiance, the
narrow question before this Cour. on
remand is whether a need for further
aetomrnodatiott increasing the number of
occupants allowed in AFC homes located in
single-family ncighborhoods from six to
twelve is necessary.
To assist this C+ovWs thorough tvalusdon
of the reasonable accommodation issue on
remand. the Sixth Circuit opirlon offcmd
the following guidance:
Before deciding whether Taylor must
accommodate the handicapped by permit
ling twclve•person homes, the court must
first know if that accommodation is needed
to supply a reasonable number of such
homes. If the District Conti finds that the
other Six -person homes arc non-profit, or
that they are able to operate profitably
because the homes were rented or pur-
chased at lower costs not now available,
than permitting for -profit busintsm to
supply fartdy hoesing for the handicapped
may be a reasonablc accommodation. How-
ever, the inquiry should not be whether a
particular profit -making company needs
such an accommodation but, rather. do such
businesses as a whole need this accommo.
dation. Sirurh & ise.' i 3 F 3d at 931.
.Eased oft these guiding principtcs. Plain-
dffS presented exiensivc evidence on re-
mand pertaining to the need for additional
AFC homers in Taylor and the economic
viability of Nfortenview Manor and other
slinUariy situated six -person AFC hones.
On ttmand. the Court quickly realized
than the issues of economic viability and
reasonable ,accommodation in this czsc
could not be based on an evaluation of all
AFC homes in the Taylor area This is
becasisc the costs involved in running an
AFC vary significantly according to the
population stand and whether the tome
must rely solely on private payments from
residents to operate. Marjorie Murrell, an
Adult Foster Care licensing cnnsuftwx
employed by the DSS, testified that Taylor
prrsu tly has sixteen AFC homes providing
hhoousing for handicapped individuals. How.
ctier, of these sixteen homes, twelve ate
"contract" homes, meaning that they re-
ceive, financial subsidies from state or
community agencies. Ms. Murrell ex-
plaincd that these "contracts" are M
available for homes serving the elderly
disabled populadon like Motteav'hew Manor.
ThcrcfaM the Court believes that the
economic viability of "noniract" homes
tikc Morwavicw Manor tent ba dray
compared to that of "contract" AFC homes
rc=vurg external financial support
Additional complications in assessing the.
economic viability of AFC homes and
determining the aced for as atdditional
accomrnodacion In this case were raised by
the testimony of Plaintiffs' expert witness
Mr. William Lasky, a recognized expert is
the dtvclagment, fire acing s-►d mariago-
mcnt of AFC homes. At Dial, Mr. Lask
explaintd that the cost of running an AFC
horse, as well as the rate that can be
charged varies dcperxiing upon doe popula-
tion served and he location of the home.
For example. Mr. Lasky axplatlned that
most trwntadcally brain in'umcd rots
receive insurance payments for thess hous-
ing and cut: hence an AFC home serving
this population would be abic to charge
higher rates than an AFC home lice
Mortenview Manor, because most cklaiy
dimbled individuals seeking AFC houslnjj
rely on fixed incomes to finance their
housing and cart creeds without cxtemal
support from insuance or soda! prograins.
Based on this evidence, tttG Court
concludes that the reasonable accommoda-
6on issue must be narrowed even further to
evaluate whether Mortenview Manor and
similarly situated non -contract AFC homes
housing the elderly disabled population can
exist in reasonable number in the Taylor
area without a further accommodation by
the City permitting them to house up to
twelve residents
I- The Need for Additional AEC Horsing
For the Elderly Disabled Population
In assessing the need for an additional
AFC homes sttvinit the cidtriy disabled
population in the taylor arena the Court
begins by recognizirg an Amicus Curiae
Brief submitted by the American Associa-
tion for Retired Persons ("AARP")' and
received by the Court The brief discusses
Zbe AAR7 is a not-ror-peon erenttxzhip Of moss lion ttaV-dams tnitlion Xiom arc sa and .
oldmr. t?rer 1.4 million HARP msttrntxm rme is the wire of Kdrigaa. In rcyreseTtlnt she tntae us Or it members,
ehs AA1ZP seeks toe (a) snhWg* the qurd:ty of tree for older Peres, (b) promom indegeerrp V& diptity. and
a 0 1995 Aspen Law & Butiness 115_97
06; 21; S5 15.15 Vd48 285 1701 BOARMUN SUHR
Q013-1a22
ft idly growing numbcr of Americans,
age 65 and oldcr, who require stscmative
housing in which they case receive assis-
tance with activities of daily llvu► without
betng uprooted from die Si4g�e-fantily
reskldus osot d'nIn which they desire to
live. The AARp's Brief was Ot'feted to
express its concern over the national
sh+eatage of such alternative bossing, and its
belief that exclusionary, zoning and land -
use policies have been hequentiy applied,
nationwide, to limb the development of the
full tango of housing options necessary to
meet the needs of older persons,
A report by Plaintiffs'. cxpw W Lasky
also recognized the mat need nationwide
and In this region for housing alterr►adves
serving elderly disabled parsons requiring
supervision and cart, but not 24-hour
tsursm . Mr. Lasky opined diet the shortage
its AFC homes for the elderly is caused by
the faux that no organized national program
pgrmidcz coat for this population, and that
Medk=ld and Medicare des not pay for AFC
housing. Other expert witnesses discussed
the impact ofAbli6mer's disease and other
farms of dementia an the elderly popula-
tion, expfessing coaccrn about the growing
number of Alzh wet's vitti.tm,t ttte suit-
ability of AFC homes for such persons, aril
the mmendous need for additional AFC
homes in Michigan and across fire country.
The evidence also established a "'fie
need for additional AFC horn" serving tiro
elderly disabled population in the Cry df
Taylor Since 198[l. the elderly population
{aged sixty and ova} of TayW�� has grown
rakpidly, increasing from 5N parsons to
8 05 persons. an Increase of 42%. This
growth in Taylor's senior population con-
trasts with an overall &4;rease in Taylor's
population during the saute time perb&
Using expert studies designed to assess the
need amongst the eldedy population for
assistance vAtil "activities of daily 11vutg."
Mr. I.Asky assessed Taylor's tamed foe
motional assisted living facilities, such as
AFC homes, and concluded that at least $77
Taylor residws, aged 65 and over, need
assistance with deify living. DSS statistics
reveal. bowtver. that Taylor presently has
only three AFC homes for the elderly
disabled population: with a total of 38 beds.
Of the three„ Wl'of which are icon -contract
homes. Mottcaview Manor is the only
sire-pexson home and the only home located
in a single-family neighborhood. The other
two homes, known $s Docchwood and she
Homtsu*4 are larger homes located in
RM i zones abutting large apartr=t cos3-
pftzes. During the five years of its
operation. Mwtenvicw Manor has -main-
Mined a Walling list. having (VWvtd
cootinuous iaiqufries from interested red -
dents and their fanulics who viewed
Mo tenvlew Maw as their housing of
choice but were turned away bccaasc no
spaces; were avallabk
Based an the extensive evidenoc Submit-
ted. the Corart recagul= that there IS a
slsattage of AFC housing for fhc elderly
disabled popalafdoa in the art of Taylor,
and hurt a substantial number of elderly
disabled persons in this area would benefit
from the opportunity to live in a
homelike: setting offaed by an
2. Economic Vitbiiity of Six Parson
Karnes SaiMrig the Elderly Disabled Popu-
lation
Based on the evidence presmtcd at triad.
Us Court believes that the: sdtortaga cf AFDC
homes tbr elderly diubled rtsddonts In the
Cty of Saylor is caused, at least In past, by
the tact that arch hods are not economi-
caliy viable with only six residents. Be-
cause Moctenview Manor Is currently tEte
only six pCx m AFC home caring for this
elderly disabled population in Tayylot� Ck
C.otut area forced to rely on limited data to
evaluaw the economic viability of ibis doss
of AFC homes. Nonetheless. it ba*ame
clear to the Court that. on the whole. AF'C
homes far the elderly disabled population
are not ec onamtcally viable in the 'Taylor
arcs when limited to Six or fearer resideam
Looidng foist to the long term ec000inic
viability of Mortasvicw Manor its;4 addl-
tiond evidence at the second trial con-
firmed the C 4urt's*odginal conclusion that
Smith & Lee have beefs unable to snake o
reasonabit pmrit running M- Weavicw Manor
with only six'iul dents. in fact, over ttte live
yymcuss that Morteavi w Muter has heft In
business it has operated at a loses, stuvdvutg
only because the four principals of Smith &
Lee have continued to trtadfer
fiends into the corporation to keep
running, the rune 4 Defendant iuy of
Taylor attempted to demonstrate that Matcn-
view Manor is, "Wally. an economically
viable enterprise with only six residents.
However. Defendant was unable to *ow
how Smith & Let could d0ficantty
minimize its costs without nt&atively im-
pacting the quality of care it r umfly
provides its residents,
paipose for older yaaaas; sal advance tt+t role and place of older petsm in xxietr, (d) Vomw vmxcb oa
PbYs� Pm • scxial. otoaocnic. sad pthee of sad Ce) suppocc dsc e�s+0a of afire
howing ppcioos fbr older p7sOrts.
'The axpen tesdWtYy of flti ROhtd Bern ueaa xvx9ed that by the year z030, a T1% Ukxma le dxt -teethe of
older adults Wide Eemta14 is d►e $tut or lAkwCan is eXpxced.
Ub: 21%@5
15:1t3 U608 283 1707 B0ARDli.ili SURR Z014"022
S-I-95 U.S. T. City of Thylor 15, -13
Defendant's primary afpmeiv was a sperm.
sadve claim that Snfath & Lac retold have
charged higher rents to Unmase p tit mar-
gins over the past five, years_ Dcfcnd" based
this aMumatt on the- actual and esdmatad
rent;d totes pit=tod In Staub & LWs own
damage,: t�culadorm For example, duri
much of 1994, Smith do Lee actually
roost of its residents S= per month -- a
rate shown to art aomparabte to or slightly
higher than ftsc chagcd in Litt other two
AM homes taring for tine elderly disabled
population In Tgylm However: ki eaiculAting
Its damagm, Smith & Lee tsdmated that with
twelve residcrns it email have maintained L
ocurpancy by charS19004month for each
of tern strati-gctvw txsowd and s224Q month
for each of two ptivatc rooms. In aaaing that
Mottcnview Mena! is ocorxonriWly- viable
with six residwN Defendant claims that
Smith & Lee could have charged the
premium private room rue to all ofMortcrl-
vicw Maxwoes residents
The Court re jt= this argument as contrary
to the cvidero—� Defendant farad to sar�ort
this claim with any evidence, that the eidedy
cit z4m of Taylor• could afford to pay these
hiew rates, or that. Mostenview Manor could
have rrmaintalned full occupancy using Dcfar-
danes proposed rate The testimn�r
of Smith & Lx's offrceis expressed there
belief, based on exttadve eValetxx in
running AFC homes for tits elderly disabled
and dwhr farniliafity with the Taylor market,
titttt while Motteaview Manor could have
art aaed a smelt number of individuals in the
Taylor at,ra capable of paying a p�u'A eau
far a private tooter, the borne could not have
mid Incd high owupancy had Smith & I =
Charged this premium rate across this board
because most of the residetus and pros
tesidcuts ovald not afford the higher rate an
dsesr fixed inarmes. This testimony Is consis-
tent with the expat opinion of b& Lasky drat
the txicreig maritet rate for AFC horses like
Mortenview Manor in Wayne County is
between $1800 and S2200tmonrh, with $2=
being a high end rate which much of the
pc oa would be unable to pay- Thus, the
evidence suggests that Modwvkw Mayor
would trot have been able to inu� their
rates as suggested by Defcndare without
jeopardizing the home s occupancy teveL
Finding no support for Defendant's
conzention, that Smith & I.ee could bate
increased profit rgins by charging_hi
rates, the Court refuses to allow llefeR-
dants' speculative asmaiptions to comet
dear evidence showing that Smith do Lee
has not only fasted to snake a t wnRbk
pia, but has actually seat rr*rs oust tisa
five years It has been forced to trio
view Manor with only six residenz
The evidetwt pewee iW oo ismand also
dwwnswcd that on the whole, APC homes
like Morte Mew Marton hwft six or fewer
dderly disabled mktena am riot eccaiotrii-
edly+ viable. In :rxEmS this aorsciusim the
Cornet relied heavily on the tesk-Ulotly of I&
tiadoititl pro of steed lNivsag fad
far the eiduiy, was dte only witness idealfied
at trial as to 0 is 1*
t ands of - Qv1tie
' far rife eidxiy popuudou .
because Mr. 1XdT owns ttratty aterria ere
limsing facilities serving the elderly led
Dopu131-W hom has lit A w
evataare the worsotnie vlabi ; of hornts of
an
the farm �bubotncs
sn�ii he
rust considein iV�dytgan,Mr. Lasky rmarkets is Wayne=
and Oakland Counties, eatployiag a &uvula
designed to assess tire seed for aheirw4vt
hmtis!ng in dtesc arras atsd tine abMq of these
markets w litre the eost of such ho+asio& Due
to the restricted Incomes of WVm Coun ty's
eldedy population, Mac Lasky those not to
buk AFC homes diets and to kstasta {mead
is OaitUM County. a mom ahtlucau area
where a greater percentage of that senior
ciliary poptdadm would be We m pay
higher rates for has tg:
Mt Lasky with other expo u who
t cz6ed dfa�t A)=C homes with fiftew or fewer
residents located In quick dsnglafxouly horses
Within sin&-famny 1WJl;t&4siXXAs were tie
most desirable, farm of altcrnasive housing.
particularly for indviduah afting from
damerntia, such as Alriitir xes clwsm None-
ftlea, he, stated that his company had ceased.
buil&g smaller homes almost comptetely,
due to the impossibility of rttrnuig a
reasonable rate of rewin on such barns. A
tzport submitted by Mz Lasq acid nix VW
by afro mutt without objeanoa4 state his
opinion dart it Is na toner notnlally
feasible to opetw; facilitfef; far agtht ar fewer
residents due to the hard and fixed operating
expeiscs of these small homes, leaving than
m=epdble to any changes, in me: le,~- trip
my gWMr-ic. periods of vacancy
Mc Lasky opined that while a raze home
of eight or fewer residents might make a
amain profit, on the whole, fatalities with
bUry of the origirW kOmes owned by Mr. tdy s*zm in U+Sw&WA.. where a xaan-geaap horne is dr-SbW as
14 xsiduas, ruhrr thW 1-6, u it is tine is 14;cN m
alb4 city ofTa7tor is lm,e4 in Wkyae COurty.
a 0 1995Aspert law, & Susiness j� %�
Od%Z1%S5 15;17 283 1707
$0.nw,% SUER
15,977.14 FcderW Court DecWorss
eight beds are fewer arc not viable Muse
the profits are either nonexistent or simply
too small and unecrWn to create the proper
loccniN= for private h4viduals wind CO",
rations to open such facilities_ in response;
the dcreoise attempted to demonstrate' that
economic incentives to operate sroatl-gtaatp
AFC homes salt exist, pointing to the many
applications to open 1--6 bed AFC homes
currently pending Its Michigan, however,
they failed to show that an, of these new
homes intended to cant for the elderly
disabled population, and ttcrvforc failed to
rebut W. L.asky's expert opinion that
coal -contract, small -group home's such as
Mortenview Manor art not economically
viable-
3. The Reasonableness of Ptaindift
Proposed Accommodation
Based on the Court's conclusion that the
state law permitting 1-6 person AFC homes
to exist in singed-fimil[y neighborhoods
does not. to and of itself, provide a
reasonable accommo adet for elderly handi-
cappcd individuals living in the City of
Taylor. the Court must next consider
whether Plaintiff Smith & Lee': proposed
accommodation of allowing Morteoview
Manor and similarly situated AFC homes to
house twelve restdents In Taylor's sing c-
family neighborhoods is -reasonable- un-
dcr the FEL A. The Sixth Circuit stated that
an accommodation is reasonable unless it
requires a fundamental alteration in the
nature of a pmgrwn or imposes undue
financial or administrative butdcits on the
defendant. Smith & La Anoc.. I/= V. Gity
of Tayfor. 13 F.3d 920.930 (6tiy air. 1993).
Set also United States x Ydtge of
Marshall. Wm. 787 F. Supp. 872, 879
(W.D.Wi's. 1991) (a reasonable accommoda.
tion is one which would not imposc an
undue hardship or burden upon the entity
making tie accommodation and would not
undermirm die basic purpose which the
requirement seeks to achieve); Oxforef
Howe-C r. Ciry of St. Lint, 8e3 F. Supp.
1556, 1581 (E.D.W, 1994) (an actoruno-
datdon is reasonable if it would not require a
fundamental alteration In the nature of a
pm rograand would not impose undue
fmanctal or administrative burdens on the
deferndantJ,
In itjecting thus Court's holding that the
Gty o. Taylor violated its duty to amm-
modate by refiWng to write a letter of
Wmission to tht M. the Sixth Cucuit
identified two Possible forms of accommo-
dation available to Smith .di Lee: (1) a
mandated - t -famzoning" of five property m
muldpleily zoning; or C2) an amend
nnent of the zoning ordinance removing the
profit looking reswilction with respect: to
AFC homes like Mortenview Manor. The
evidence cicsrty esrabtishas that ncfth er
spot toning of Smith A. L=*$ propet%y nor
amctxtulg the zoning ordinance would
impose any significant financial or admin-
istrative burdens on the City of Taylor.
Various City officials acknowkd�cd their
authority to pa-fotm these function$ and
testified that the sarie basic• procedures
would be required to Implement eidset
ammmrioda lon. They also admitted that
any costs imurrad in the would be
covered, by the small fte c to anyone
petitioning the City for an ameadment'or
rezoning.
The City of Taylor ass ted to sow h
that both proposed accomrnodiaions would
significantly burden the City by -
tally altenm its zoning ord'inw= and
Master Laitid Use Plan ("Masher Plain";.
Various mtmbe S of the City Council. the
Executive Director of Nvclopmcntal Scr�
vicm and evert the Mayor of Taylw were
asked to identify and explain any Burdens
that would arise from retuning Smith &t
Lee's property or amc nding *z zoning
ordinance so that mid -sized AFChomes
the elderly disabicxd would be In
single-family zoned areas. indivtduitl
who testified voiced a fundamental oppost-
don to "spot zoning-- They explalne4 that
even if Smith dt Let's use of the Morten•
vices property was not inconsistent with the
surrounding property uses, a retuning of
the Iand could result in futin Inconsistent
uses over which the City would have no
control. All witnesses viewed this Inability
to control the future use of die fuorted
ptaperty as a burden to the City and a
significam Interference with its zoning
powers.
Because this Court's intention is to insure
that the class of handicapped individuals
involved in this case act reasonably aecom-
modued in obtaining the housing of fat it
choice. and not to interfere with municipal
zoning powers to any greater extent than
ncte58aty to meet this gaol. the Court
accquthe City's objections to "spot
zoning"
and concludes that a mandated
rezoning of Smith & I,xe's propem to
Rail-t would not be a reasonable aiecommo.
dadon in this case.
When asked to discuss possible burdens
caused by amendin$ the City zoning
ordinance, each of defendant's witnesses
was presei?tad with a list of proposed
amendments offend by the United States
and accepted Into evideiuc by the Court.
The proposed amendments reelected differ+,
ent ways it, which the language of the
ordinance could be amended, either by
aItcring the definition of -family" or that of
a -home occupation" so that Detain AFC
homes for handicapped Individuals would
Z a16;II22
5.1-" U.S. V. City of Taylor 1SX7.13
be included. Amer making some susses• Taylor housing the etdcdy &sWcl popula-
tions of its own. the Coun'askcd witncssrs tson"toverod by the p uposed irtendmeAL
to focus on a narrow amendment to the
ordinance's definition of "famil,yY" which
would perm€t state -licensed AFC hottteS for
twelve or fewer elderly disabled persons.
each identified as "handicaeped" under the
FHAA. to reside in Taylor a single family
neighborhoods- Uttda'such an amcadm&%L
m ma of the other zoning restrictions
AMVIng tend use in single-family neighbor.
hoods would be altered. For example,
provisions governing height restrictions and
the proportional relationship between tfte
size of a dwelling and the land on which it
sits would remain. as would nuisance
ordinances prohibiting any home from
interftring with the health. safety and
welfare of the neighborhood. Each witness
was given tine opportunlry to examfoe eho
proposed arms ent before being asked to
discuss possible burdens It might Create In
fact, City Council member itrSs Raymond
Basham was asked to take the weekend to
=sidcr the sal. and rwsrn to court
tftc followingonday to discuss any
burdens be had identified, Even after this
reasonable opportunity for reflection, It is
the Court's opinion that rxithexMr- Sasham
nor any other Taylor City official was able
to identify 4Uv tangible burds:ns that would
arise from the proposed amendment.
The one potential burden repeatedly voiced
by Defendant's w:Cnesses was a concern that
the proposed amered'me nt might cause "dm..
st7 problevs in Taylor's sit lNfitnilyy
ntrghbodmods. Unlike the fast trial In
wtdch
City officials tiaimai that excessive pwtkg
and traffic problems would arise if Morten,
view Manor war to house twelve residents,
various Cry officials, including Mr. Crerald
Coach of tit C ity's Omt;optncmt Offix,
admitted that Motenview Manor alone; even
with twelve residents. would not slgifia ttiy
im�aCt the paddng or traffic flow to the
neighborhood. Essentially. Ivtr. Couch's cmt-
cans focused on a potential "flood" of
twelve -person homes that would dcKuinatE
Taylor's singe -family neighborhoods if rise
or&nance was chutged. thereby signifiwsdy
increasing the intended population density of
the neighborhoods and affecting things such
as parking and tie. However. W. Couch
was unable to offer any evidence that sxh a
flood would. or even could occur Fle hatted
his belief that following an amendment of the
or Tmance, every sit -person AFC home in
Taylor would Immediately attcmpt tp move
Into a single-farjOy hones However; this feat
is easily dismissed by the narrow focus of the
proposed amendrndtt, as Mortenviow Manor
is curtcndy the only 1-6 bcd AFC home in
a 0 1995 Aspens law & susinesa
it is dear to the Court that the City's
alleged "density" comceras am nothing
mom than unsupported. speculative, and
itrwloml fees about Taylor's single familyy
neighborhoods being ovcrAelmed by AFC
houses. Furthermore. the Court believes that
the City of Taylor should and oor[d have
taken steps to assess the validity of dose
fears, but simply refused to do so. For
example. Taylor chose to spend sigtdfitm
time and motley employing, its planning
aonstilmn. Wade/Trim. to investigate pos-
sible alternative sites for twelve-
AFC homes in multiplafamll zo�
In traversing the 0% rim could
bavc assessed Taylor's existing single..
family hones to determine how many
would be spproptiate sins for twetva
person AFC homes. Had they taken s;A
steps. Taylor's fears mal have been saucily
aflivWod. Smith & Lee s own search for an
ropriate and desirable residence tacit in
I uncovered onlyas handful of homes
which were appropriately designed and
large emoulb to meet their neaft even after
nnovados. Therefore, it atpptats unlikely
that an amendment of fire Taylor zoning
ordinaruc would result in a flood of
mid -sized AFC homes for the elderly
disabled signifscand impacting the -den-
sity" of Taylor's single-family neighbor-
hoods. Any claims to the contrary are
ppuurely speculative, a fact admitted by two
kty dkfcnse witnesses, loll: C,erald Couch of
the City Development Of [= and Ms.
Emily Pa acious. an expert in Urban
Planning employed by WaduTrim-
Regarding Heir. C,ouch's claim that tic
proposed amendment would fundamentally
alter the City's Master Plan, the Court is
agaln unpersuadcd. The substance of this
:r�s em Is that the Master Plan Tecm-
ally intended to Segregate traditional
single-family homes from muttiple-farruly
dwellings, such as the many large apart-
ment complexes located throughout Taylor,
The flaw with this argument is that ether
the Matter Plan near the zoning ordhrw=
address the proper tames and placement of
AFC homes az Taylor. AFC homes for 7-12
residents are not defined as RM-1 dwellings
under the zoning orrfrtsancc; they am not
defined at all. Therefom in evaluating the
possible ;nspatt this decision mf& have on
the City s master Plate. this Com must
make a realistic assessment of Smith &
Let's proposed use and 6WAwduc if it
would be consistcat with other single-
family uses surrounding it.
As discussed previously. the evidence
` 15X7
cub zs3 1707 BO.aRD)a\ StHR
Q017;022
15,977.16 Federal Court Decisions 3-145
demonstrates that a single-family home in
which twelve cidedy disabled residents live
together like a family is consistent with
more traditions[ single-family uses. Man
AEC residents come to a bomt when their
own families can no longer provide the
level of assisunce and supervision they
need. They seek more than a place to live:
they seek comfortable, familiar surround..
ings, and a surrogate family to pmvkic
them with the care they need and the
companionship they desire hn their Anal
years. Based on the Courfs visit to
lvfortenvtew Manor and the evidence" prc-
seated on remand, the Court concludes that
Smith & Lee has successfully met its goal
of rejecting the tnrrsingg borne model and
establishing an urnospliere where its eid-
ad residents can live Miler a familyin a
quiet resldcntiah neighborhood, similar to
that In which they spent most of their lives.
Mortenvlew Manor's residents rat meals
together, watch television and play cards
together, do activities togethcr and have
grown to care for and depend on one
enatheL They arc not transient roamers
wandering duwgh town: riot are they like
wholly Independent adults living in an
efficiency apartment complex` sharing the
safrrc physical space, but leading indepen-
dent lives. They are most like it family, and
they desire to live on streets like Morma-
view Drive for all the same reuors their
neighbors do. as well as some unique
reasons related to their medical Handicaps
and elderly status.
Because this Court bchlevcs that the use
of Mortenview Manor by Smith Bt Fee and
its residents is fundamentally consistent
with the single-family uses surrounding it.
the Court rejects Defendant's notion that
allowin twelve elderly disabled individu-
als to five at Mortenview Manor would
fundamentally altek the City of Taylor's
zoning ordinance or Mister Plan. Also.
because the City of Taylor was unable to
identify any other meaningful burdens that
would arise from the presence from one, or
more than ortc, mid -sized AFC house in its
singir-farnity neighborhoods, the Court
holds that Smith & Lea's request for an
accommodation allowing them to house
twelve elderly disabled residents at:.Vomn-
view Manor is reasonable, and must be
granted. i
M.
After extcnslvc consideration of the facts
presented at the first trial and on remand, as
well as the Sixth Circult's opinion in Sftirh
do tee Assocusres. I-C. u Cky of Uydor.
Michigan, 13 F3d 920 ((dr Or. 1993), the
Court holds that the following relief should
be afforded the parties. The Court hereby
orders the City of Taylor to amend its
zoning ordi,ta vcisif►-stays of the
'a- of -�rssi` tea at in this case, lTy
addcng toPt inciion of family, Ordi.
narncc Section 2.02(36), the folio,.ing:
c. a group of not more than twelve
unrelated elderly disabled parsons, each of
whom is handicapped within the meaning
of the Pair Housing Act, 42 U.S.0 Sea.
36020). iivin$ together as a single hobs.
;I Ing unit in an adult foster cans home
licensed by the State of Widdgai:, with
such nonresident staff as may be treaded to
assist the residents with their daalp life
activitim but not receiving fg through
a contract with anz State or commuraty
health or social service agency.
By limiting the additionat accommoda-
tion to mid -sized AFC homes houslnA no
more than twelve elderly disabled individu-
als, the Court believes that the speculative
burdens identified by the City of Taylor,
Includin4 a signiflcarit Increase in tine
"density' of its singlo-family neighbor-
hoods. can be avoided.
Nmt, the Court holds that the City of
Taylor shall pay a civil petisiryry to *4
United States in the amount of $20,000.00
pursuant to 43 U.S.C. 13614(d)(tXCXi)i .
which provides that the court -tray, to
vindicate the public interest, assess a civil
penalty against the t*sppoondcatt--ice in
amount not exceeding S50.000, fur a fast
vtolation." in response to the S50.000
penalty imposed by this court to its fast
decision. the Sixth Circuit objected to the
Court's failure to provide reasons jtistifyln
its Imposition of the maximum penalty.
expressed an opinion that "ttte law as to
what accommodation is required (under tie
fHAAj is too uncertain to penalize the
City's conduct." The s fie instructions
handed down to this Court were that "if
upon remand the court finds that the City
violated the Act and, In its discr ion
imposes a penalty, it must provide the
masons for deciding on a particular amount."
Mier revisiting all of the issues and
concluding, once again, that the City of
Taylor violated the #'1'SAA by Intentionally
discriminating aaaiinst and failing to reason-
ably acto iLce a group of elderly
handicapped individuals seeking to live in
AFC homes in the City of Taylor, the Cewtt
concludes that a civil penalty is necessary
to vindicate the public interest by sending a
strand message to the nummotis muricipali-
ties Likely to fate similar issues in the near
future. Whl1C the Court recognizes that the
law on reasonable accommodations under
the FHAA remains somewhat uncertain.
Ns cannot excuse Taylor's discriminatory
behavior throughout its long battle against
ty6%z1+8S 15:19 %TBUB 253 1707 BOrtRDlL4N StRA
I1015, 022
5 I.95 U.S. v. City of Ta)9or 15,977.17
Smith & Lea and Mortenview Manor's
elderly disnblcd residents.
Regarding the, City's failure to reason-
ably accommodate AFC homes for the
ctderly disabled in its single-family nci&h-
borhoods, the Court was particularly in-
censed by the City's failure to make any
meaningful Inquiries into the purpose and
function of AEC homes before chanxt;eft-
ing then as multiple -family uses and
segregating them from single-family nclgh-
borhoods. Similarly. the Court cannot
excuse the-City's fait,are to take, any steps to
assess the validity of its concerns about
increased "density" burdons on its sizille-
family neighborhoods before using, this
speculative argument to justify its discrimI.
nattory actions. This failure is particularly
offensive because Taylor was more than
willing to dCvote time and money to justify
segregating homes forth* elderly disabled
from Its single-family neighborhoods by
hiring a private consultir i to identify
twelYe "alte iTiatlYe SLICE for McRenvicw
Manor to relocate. The Count honored
Defendant's request and viewed these
twcive sites, growing, more discouraged and
insulted as it was ta3:en frorn on: inappro-
priate parcel of property to another, some
Iowed on isolated. wooded lots, but most
surrounded by apantment complexes, corn-
marcial businesses, and noisy streets and
highways. In selecting these sites, it was
clear to the Court that the City of Taylor
had given no meaningful consideration to
the purpose of an AFC home like Morten -
view Manor or the nccds and wishes of Its
handicapped residents.
In imposing a pcoatty of $20,000. well
below the maximum $50.000 allowed under
the statute, the Court recorprrizes the V an
.ous
programs for senior citizens and handi-
capped persons that the Cr'�ryy has helped
implement in recent yea.-s. iho Cows a!so
recognizes that prior to this case, the law in
this circuit on the duty to accommodate was
somewhat ambisuous. However, the Court
wishes to convey to the City of Taylor that
its "noc in my backyard" aattude, reflected
its the wide array of insensitive rind
discriminatory actions taken ,throughout its
long battle to keep AFC homes out of its
single-taigy neighborhoods, is inexcusable
and will not be tolerated_
The Court finds than the members of
Smith do Lec Associates are aggrieved
parsons under the Act b=use they have
been Injured by the discriminatory practices
of the City of Taylor. 42 U.S.0 -§ 3602r a).
Therefore. the Court awards then their
sexual damages of $2$4.0W.00. which
represent lost mveinutD through October 31.
3 v 1995 Aspen Law & Business
1994 if Smith & Lee had berm permitted to
operate Morteriview Manor with twelve
residents as of April 1, 1990. This ealcula.
tion of actual damages !ncotporatcs a
combination of Plaintiffs' and Defendant's
calculations. See Chart. Appendix A.
This opinlon constitutes the Court's
findings of facts and conclusions of 11w
required by Rule 52 of the Federal Rules of
Civil Procedure, As
embodying the
conelusloehp of this opinion shall be pre-
sented to the Court by Plaintiffs In this
matter: Ptrsuant to Rule 54(dx2)(8) of the
Federal Rules of Civil FroceduM counsel
for 8taintiffs Smith do Lea may file a
petition far attorney foes within I4 days
after entry of judgment
Appendix A
Anticipated Gross Revenue With 12
Residents
I490 Sts.200.00 ((10 residents at
St.500.00) + (2 residents at $1.600.00)1 for
9 months (April I. 1990 thrmigh Det. 3l,
I M) $163,9W.00
1991 sisao0.00 j(I0 residents at
S 1.500.00) + (2 residents at St,600.00)j for
12 months {Ian. 1, 1991 through Dec. 31.
19911, S218,400.00
1992, $22,200.00 100 residents at
S l .800.00) + (2 residents at M100.00)j for
12 months (hut. 1, 1992 through I7ee. 31,
1992) SU-4,40040
1993 $22.800.00 (00 residents a:
51.850.00) + (2 residents at $2,150.00?1 for
12 monihs (Jan. 1. 1993 through Dec:. 31,
1993) 32T3.6W.00
1994 $23.400.00 [(10 residents at
S1,900.00) + 2 residents art 32,200.00)) for
10 months (tan. 1. 1994 through Oct. 31,
i99b) $234.000.00 Subtotal: 51,156,200.00
Multiplied by estimated 90% occupuLcy
rate: TOTAL- $1,040,5110A0 Actual Gross
Revenue With 6 Residtnts: S572.100.00
#oTAL GROSS LOSS BEFORE EX-
PENSES, $468,480.00
Anticipated Annual Increase in Wabie
Expenses:
(April 1. 1990 through Litt. 31, 1992)
Liability Insurance: $ 500.00 Workman's
Compensation: 1,000,00 Payroll: 23.000-00
Administrative Pa li: 3,000.00 Payroll
Tax: 2.327.00 Utilities: 100.00 Food:
5,000.00 Resident Activities 3,000.00 Sub -
tool: 37,927.00 Per month increase 3,161.00
Multiplied by 33 months: z 33 $104.313.00
(?an. 1, 1993 through Qa, 31, 1994)
Liability Insurance: S 1,050.00 Work-
man's Compensation: 1,350.00
115,977
15*977.18 Fedcrd Court Decisions 5.1-95
Payroll. 31.000.00 Administrative Pa yy- Roduccd by 5% to reft= assumed
Mth 3,000.00 Payroll Tax: 3,443.00 Uti i- vacanccyy rate: - 9,6%.00 TOTAL IN-
ti= 1,000.00 Accounting: 130M Food: CREASED EXPENSES: $184.323.00
5,000.00 Resident Activities 3.300.00 Sub- Grass Loss of W8.480 rowdcd to
toW: 49,873.00 Pcr month increA= 4.073.00 $468,000.00 M ius Anticipated Increased
Muttipticd by 22 morift: z 22 U9.606.00 Ex penscs of S18023 rounded to -
Incresscd ERptnses for 12 Rtside:tts: It#4,000.00 Bqimls Smith & %ma's 0=-
$93,919.00 ages: $284.000-W
Vo; 41"tio
ao:zu Quu6 263 1707 BOARMLkS SUHR Q020-022
5-1.95 1Veafey Group home iiuriistries V. City of Rattan" 18,161.1
[it 8.1611 Wesley Croup borne Ministries v. City of HRttand2je, No. 94-11I54 (09)
Ward (Fla. Cir. CL (i'rh NsL) 12-27-94)
City commission's deals! of zoning variance for re,lderits for &sabled adults
tiolxted the Fair Housing Act.
C. [Avon Ward. Circuit Court Judge
WWT OF CERTIONN
This is a world in which there are
constutt battles to rotect the rights of
those less fortunate. The bathe grounds xxe
varied as arc the person involvCd�yyet
discrimination is often the basis upon which
the battle rages
In this me, the Court is called upon to
review a decision of the City Commission
of the City of Hallandale which denied the
Petitioner's request for a variance to build
an adult congregate living facility to
provide a groop home for six developmen-
tally disabled adults. The Fetltloner argued
that the City$ decision is discriminatory
and violates the provisions of the Fair
Housing Act; 42 VS.C. 13601 et seq. This
Court agrees and for the following reasons
quashes the decision of the City of
Hallandale which prohibited the. Petitioner
from constructing its group hone on the
proptrty at issue.
71it Pardoner. V4WESLEY GROUP HOME
MINISTRIF_S, INC., Is a not -for -profit
corporation affiliated with the Methodist
Church and was cleated for fie specific
purpose of operating a residential facility
for sex dtvtlopmentally disabled adults at a
spcc'fie location in the City of Hallandale-
Ihs Petitioner eaWcd into a contract with
the Metlnodfst Church to purchase two
Vacant Ions in the City of Nallandaie
adjacent to an nratWng church. The Fasi-
tio,w than sought to determine the Chy's
requifernents for the construction of its
proposed facility. The City's growth man-
agemem sratf dCternilntd that the proposed
facility felt within the residential care
facility section of the Hallandale Code of
Ordntances. However because the Md.
doner intended to construe a facility to
as=rnmodaw only six residents instead of a
nine or more resident facility authorized in
the Code, a variance would be required
from the City Commission to authorize the
I= Intensive use. The City's plan ling and
zoning board recommendi!d approval of the
variance following a hearing. Nevertheless.
the City Comurrisoon deniesd the request for
a variance when it adhered to and acceded
to the wishes of the'nelghbors who did not
want such a facility in their neighborhood.
This is revealed through the conments for
four of the City Commissioners who, each
a 0 1995 Aspen Law !tt Business
In his own way. stated that the City
Commission was compelled to mevoxe.
and abide by the foeltngs and dcsku of the
nalghb m
tndttd, a mvicw of the transexipt of the
variance hearing clearly indicates that tbt
main motivating factor to tltt City ns
Commis-
sion's decision was die hats sum
of thas who are to ! In tins
pro e fasallgr. One of the Commission-
ers stated Inrtferring to the prospective
residents of the Boma
"I'd be very conewied about the irratio:
nal belmvior of soine of these people."
Another Commissioner at least recognized
the existence of federally protested rights as
he stated:
"Thc mmon dill is in the code book is
because the federal gommmcnc ordered
everybody to pat it in their code books so
homes of this typt could not be unreason.
able withheld-"
Neverthekss, the City Commissioners did
not follow the controlling federal law surd
thereby ngnored the federally protected
rights of the prospective residents.
The record is devoid of any aysdeeice of
any kind which tends ton
my of the
statements made by the rw l a's or the City
Coeur adomrs as to how or wbv the
proposed facillty would adversely imyatt
u nay legitimate munichud intezu. &
Court finds it significant dsat neitier was any
ppresentation made by the City's professional
f smff
by -the Conunimstff nor s'�«s. AcoarrdguestIm oy. the
Court determiners that the Crty's decision
denying the variance is not "ported by
competent evidence The objection of the
ntietbors Is not a sound oasis for the denial
of a vsria+ta. try of Apes U x Orww
Couno-, 2% So-2d 6S7 (19L 4th DCA 1974A
Pollard x Patut Brads Cou►th6 5W So.2d
1358 (flee. 4dn DC'.A 1990).
Under the Fair Housing Act, it is unlawful
to disaimina t In the seek or rental, or
othtrwist make unarailabk a dwelling to any
buyer or nectar because of a handicap. 42
US.C. 136ND(!). A person is handicap ed
if be or she has a mental or physical
Impairment, 42 U.S.C. §36Q2(b). A vtoia
of the Fair Housing Act taay be proved by
showing either discximinmoty intent or effem
or by showing that a municipality or
118,161
Ut3° 41r t3a
t3:L17 UOVO 400 Jiul bL1A1fiJ1A,-, SLtiK
4021. 02!
18,1611 State Court DeeMons 3-1-93
other governmental agency failed to make
reasonable accctnmodations in rules, poti-
cics or practices so as to afford hariditcapgeti
persons art equal opportunity to live in a
dwet.linS. 42 US-C. §3604(f)(3)(8): r✓nlred
States v. Bortaugh of Audubon, New Jersey,
797 FSupp. 353 (D.N.J. 1991}
To prevail on a claim of discriminatory
intent, the Petitioner was nM tared to
show that the Clty waS motivat some
purposeful, malicious desire to discriminate
against handicapped persons. Noe- Mist the
Pet'stioncr prove that the City was motivated
safely, primarily or even saintly by
the handicapped stews of�Petitionat s
future residents. Indeed, the Petitioner need
only. show that the handicapped status of
the people who are to live In the
factcity was a motivating factor in LYS
decision. Tide Srewdrt B- MMvty Fowrdla-
ttort, Inc, v. 71itsn Plan find Tnrc-
Comnamion of tht Town of Fci field 79A
F.Stipp. .1197 (I7-Cann. I , 2). If cite City's
acts were undertaken with an irttproper
discriminatory motive, then the Fa1r liaus-
ing Act is violated even tbough these acts
may have been 'ustified under state law t
Woody -Drab v 667 1.2d 1198 (5th
Cif 1982).
To pm-aii on a claim of discriminatory
effect, the Petitionat' need prove no more
than the conduct rewtted in discriminatory.
Effect, not motivadnn, is the toochsusne.
Mc1t hM Foandotion, supra.
The statements of the citizens and the
corresponding votes of the City Comutis-
sion in this case reeked of discrindration.
Theo neighbors did not want handicapped
persons to their neighborhood, and as a
resutt, the Cicy Commission denied the
variance. Ytae Court finds the decision in
Yonh Shore - China fo Rehabitirwlon, Mr-
v. Y111age of Skokie, $27 F.Su 497
(Mill. 1993), to be controlling. tz �Norrh
Shore. the village board enforced a toning
ordinance in a manixr which prohibited a
facility for brain injured adults. At various
vil4e board rnecdngs. the citizens of
Skolde voiced their opposition to establish.
ment of the facility. The court noted:
The statement at the village board
meetings by residents who would be
North Shorc's [the facility's] neighbors
indicated clearly stcreotyplcat ideas at+out
the handicapped. Indeed, exactly the kind
of bias at which the act (the Fair Homing
Act) was aimed. if 5kokfc, decided trot to
issue the occupancy pettttit because of
the expressed bias of residere. Intentional
discritnlnudoo would be shown.
The record clearly reflects that the
decision of the My orntrtissi+oners to deny
the variance was basw upon, and made in
an effort to pem, the disc riadnatmy bias
of the neighbors. Accordingly, discrtmirA.
tory intent was present which constitutes- a
violation of the Falr Housing Act.
The Fair blousing Act mandates that all
munictpalidm the City of Hallardale
included, make reasonable accommodations
through changes "cx,ceptions In its rotting
taws to afford handicapped pea= qte
same opportunity to housing as non -
handicapped persons. On this issue, the
court in Oxford Rou4c. Iris x Town of
Mont 8199 FSupp. 11,79 (Itd.N.Y.1993).
M accommodation is reasonable under
the Fair Housing Aix it is does not cause
any undue hardship or fiscal or adrninnis-
tradve burdens on the municipality, or
does not undermine the bz* purpose
that the zoning ordinance seeks to
achieve-... Because one of the purposes
of the reasonable accrim todattions pmvi-
sion is to address individual dreum-
stariees, cout'ts have held that municipai-
ties must change, waive, or make
exceptions to their zoning totes to afford
persons with disabilities the same access
to housing as those who are without
disabilities.
The record reflects that at the planntit
and zoning board meaning. a member of
Haliandale's professlortaal naff advised the
board that a nine person or more group
home was specifically authorized under the
Code? The Petitioner simply sought a
variance because its facility would only
=ommodate six residents. There is no
s 17,e City araue!d &A the Petidoaer s vardaeoe inquest is aont:otted by the Cit;'s variant ordinance vA ax toy
the Pak Mmsiex ,tics, Tit Ctwn Lisa orws. Ise pwpose of the: sisprcrwey Clause sa foah in Aniek vL CL L of
tfse United States Cons_til-ition. makes it Clear dies federal laws Cont* aver state %4 keg taws, In the fie imaging
arena. 42 U.S.C. f 361$ provides that. saris and local laws, to the extent that they pe mit or require aay ribs attar
would iK a dixdmirmory housing Pftai= slider lire Pair Hauaing AXL are iaraild. 7b the eiwmt dLA die CLYS
atteinped else of its vwianee ordinance demos to ions PttitioW federally praecied tights graettd under des Fair
Housing Act. the vwi.rsce erdinariee is supteseM maid invalid.
2 in iu response to the Petition, the lily astaapts to corium n 11te Uateawnt of m prokcsaionat staff by assaft
that group hones rite not pmmaUttod its fit Ck)N 02 toning district, irrapecdvs of size. The Count f n& k
unrtlxeacary to dasetmine Wbkh poSfdN is MMM a the Coveys docisioa wadd be ttrc Seale in eidter
eireumsuea. The supplcma=tal tewd svbiritt d by the City coetsaias various zorwng maps wtiieh show drat the
property snbjta to the variance is fatssad in sn a ea flat iS priacusly etsrdntdaL The teeord ales tttiowt that
the Paitiotier intends to :org= a Miidendal type twiritp that wontd fostts a familtal type rdwionsttip moos] the
rosidestts. The Petit rw*s intmttteid use is cor4lsaear with itse trasid^_atlal ctarscter of the suiebarheoet a.d
vvcaa:r " ovts 40,> I(VI BOAR:&i1 SL:HR 1b022"022
541" Wesley Group Rome Mitnisbties v. City of Hallandale 18,161.3
cornpetest evidenco in the record, iod"d
unda the Fair Homing A.ct. The City
there is no evidence at all in the record,
Commission deviated fi"ofn the essential
which tends to show that the acc=moda-
rcquir*.ments of law when it did so,
tion requcstodd would Gaul- any undue
hardship or fiscal or administrative burdens
i'ttitioa for Writ of Certiorari is
to the City of dialdandale or otherwise
' 's
SMn City dtniaf of (tic
undermine the basic purpose of its zoning
mnaxe is quashed. FurthermOM the City
of Hallandalt is dimted to institute such
onlinanas. Consequently. the Court finds
that the requested accommodation, that K
proceWiags rtiadva to the grant of the
to allow a smaller facility with less
Valium based npan the teco(4 ttview Illy
residents titan authorized under the Coda,
this Coruna as am consistent with the rulinp
was a reasonable request under the reason-
herein .
able atcommodatio ns provision of the FairRou
The f to malts
The Court rues Jurisdiction Over the
such an a anionCity'
SUCt1 sA acppritmr3daLi0tt t0 tdtC PetitfonCt
the
was cortduci which violates
subica matter and parses to consider the
Petiriot�CiIS eat for atttmneyf' fr`es
u,� list row► of 42 U.S.C. t4S9 and
§
the Fair Hottsirtg Act.
air Housing
d2 U.S.Gp�a6d3.
Accordingly. the dt�otnmodations re-
gvested by the Peddoner should have beet:
DONE AND ORDERF.I? its Chambers at
granted order the authority of the Fair
!Srowwd County Courthouse, Fort landtr,
Housing Act. The City Commission did not
dale. Fiodtia, this 27th nay of Utcctnber,
have any discretion to deny the variance
1994.
accoedigly the ueommodadw agucaed of Un City by the Fcddosw to dew ttK wnstnsWaa o! t msideatiat
arylo V* ,s home to (his aciShborlrood It nRaaarsabk end 9mid brw taco snared by the
3 Rose boc mdooafixstlo+t is proluNtak Sre 11126 t►pUkom Evxlnard a PInme Ceoeait rowny. M Fad
tdtS. 1425 (dd+ Ck. 19M.
a o ts93 Aspect taw & Businea 118,161