37 F.3d 1230 | 7th Cir. | 1994
Lead Opinion
The Village of Palatine (“Village”) appeals the issuance of a preliminary injunction against it pursuant to the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“Act”).
Background
Oxford House, Inc., a non-profit Delaware corporation, was established in 1975 to assist in the establishment of housing for recovering alcoholics and recovering substance abusers. These “Oxford Houses” are democratically self-governing and financially self-supporting. They immediately expel any person using drugs or alcohol. Oxford Houses provide no professional treatment and have no paid staff residing at the premises. Pursuant to 42 U.S.C. § 300x-25, states are required to establish a revolving fund to provide start-up loans for group homes for recovering substance abusers as a condition for receiving certain federal block grant funds. Accordingly, Illinois contracted with Oxford House, Inc. to administer the revolving loan fund in Illinois.
Oxford House-Mallard is an unincorporated association operating under a charter issued by Oxford House, Inc. It is comprised of the residents of the property located at 913 South Mallard Drive in Palatine, Illinois, who rent the house from landlord Laura Grace. Oxford House-Mallard has six bedrooms and has been used as an Oxford House since August 1,1992. At the time this action was instituted it had eleven residents; it can house up to twelve residents.
Oxford House-Mallard is located in an R-1B Single Family District in Palatine. “Permitted” uses as of right for R-1B residences include “single-family detached dwellings”
Certain “special uses” are also allowed in R-1B districts when they are authorized by the Village. Such uses include group homes that are not licensed or certified by the state, or those that are licensed or certified but have nine or more residents. At the time Oxford House-Mallard was established there was no allowance in the zoning ordinance for a special use approval for a group home of any size that was not professionally staffed, but subsequently the Village amended its ordinance to allow a special use approval for a group home without professional staffing.
The organizers of Oxford House-Mallard were aware of the zoning restrictions affecting the proposed residence at 913 South Mallard Drive prior to any residents’ occupying the property. However, in accordance with Oxford House, Inc.’s stated policy (“As a matter of practice, Oxford House, Inc. does not seek prior approval of zoning regulations before moving into a residential neighborhood. It considers itself no different from a biological family and its members just move into any suitable house”), the organizers did not seek a special use approval from the Village. After the residents moved into the property, the Village inspected the residence several times and cited it for violations of its rental property licensing requirements and its Life Safety Code. Many of the Life Safety Code violations arose because the inspector applied the standards applicable to rooming houses rather than those applicable to single-family dwellings.
The Fair Housing Act, 42 U.S.C. § 3601 et seq., as amended in 1988, prohibits — among other things — discrimination in housing based on handicap. 42 U.S.C. § 3604(f)(1). The Village concedes that the residents of Oxford House-Mallard are handicapped within the meaning of the Act. A violation of the Act may be shown in a number of ways. Plaintiff
Oxford House-Mallard wants the Village of Palatine to make a reasonable accommodation so that the house can continue to operate in its current condition. It requested such an accommodation prior to the institution of the instant litigation and was informed that it must apply for a special use approval. It appears that Palatine’s current zoning ordinance would allow Oxford House-Mallard to continue in its present condition as a special use. However, the special use process involves public notice and hearing, and because of this Oxford House-Mallard has refused to invoke it.
On March 22, 1993, Oxford House, Inc. filed a complaint with the Department of Housing and Urban Development alleging that the defendants in this action had discriminated against Oxford House-Mallard by failing to make a reasonable accommodation in the Village’s zoning laws. On March 30, 1993, the Village filed a complaint in the Circuit Court of Cook County against landlord Laura Grace, Oxford House-Mallard, and Oxford House, Inc. for violations of the Village’s zoning ordinance. It sought, among
Analysis
On appeal the Village argues, among other things, that it cannot be found to have failed in its obligation to make a reasonable accommodation necessary to afford the residents of Oxford House-Mallard an equal opportunity to use and enjoy their dwelling because Oxford House-Mallard never invoked the procedures that would allow the Village to make such an accommodation. We agree. Oxford House-Mallard has not requested a special use approval from the Village. Until it does, the Village cannot authorize its current use of the Mallard Drive property. Cf. Smith & Lee Associates, Inc. v. City of Taylor, 13 F.3d 920, 929 (6th Cir.1993) (city did not fail to make a reasonable accommodation by refusing to issue a letter of permission regarding plaintiffs use of its -property; the city had no statutory authority to issue such a letter). To the extent that the plaintiffs federal suit alleges that the Village did not make a reasonable accommodation in its application of its zoning laws to Oxford House-Mallard, the issue is not ripe. Cf. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 193-94, 105 S.Ct. 3108, 3120-21, 87 L.Ed.2d 126 (42 U.S.C. § 1983 action); see Oxford House, Inc. v. City of Virginia Beach, 825 F.Supp. 1251, 1260, 1261 (E.D.Va.1993) (“The zoning process, including the hearings on applications for conditional use permits, serves [the] purpose” of enabling a city to make a reasonable accommodation in its rules, policies, and practices. The city must be afforded the opportunity to make such an accommodation.).
Part of plaintiffs argument, however, is that requiring Oxford House-Mallard to utilize the procedures for obtaining a special use approval is itself a failure on the part of the Village to make a reasonable accommodation to the needs of the handicapped. This claim is of course currently ripe. Plaintiff argues that requiring the residents of Oxford House-Mallard to undergo a public hearing on their proposed special use would subject them to “a firestorm of vocal opposition within the neighborhood,” Pl.Br. at 32, that in turn would stigmatize the residents and increase the chances of a relapse. As the Magistrate Judge pointed out, however, there is no indication that the residents of Oxford House-Mallard would be required to appear at any public meetings, rather than an employee or representative of Oxford House, Inc. We are also sympathetic to plaintiffs concern that even if the Oxford
Of course, there are many zoning procedures that are impermissible under the Act either as written or as applied. A procedure may not be required only of the handicapped but not of other people. Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 46 (6th Cir.1992). A procedure, neutral on its face, may not be applied in a discriminatory manner. Potomac Group Home Corp. v. Montgomery County, 823 F.Supp. 1285, 1297 (D.Md.1993). In the ease at bar, however, the city uniformly requires a special use approval for non-permitted uses—the process is not limited to the handicapped. Likewise, there is no evidence that the special use procedures are applied in a discriminatory manner. Plaintiff has suggested no reason—beyond the generalized argument, which we reject as insufficient, that public hearings are detrimental to the handicapped—that Palatine’s procedures violate the Act.
Even though Palatine’s procedures do not themselves violate the Act, plaintiff need not resort to them if such resort is manifestly futile. See, e.g., Oxford House-C v. City of St. Louis, 843 F.Supp. 1556, 1570, 1582 (E.D.Mo.1994) (city routinely granted or denied variances or conditional use approvals based on neighbor and aldermanic support or opposition). In this case, however, Palatine has an “exemplary record in responding to the needs of handicapped individuals,” PI. Short App. at 29 (Report and Recommendation ¶ 60), including individuals with substance-abuse problems. Indeed, the Village “has made numerous zoning changes in the face of community opposition” in order to accommodate the handicapped. Id. at 32 (Report and Recommendation ¶ 76). Under the circumstances it cannot be said that resort by Oxford House-Mallard to the special use procedure would be futile. Id. at 44, (Report and Recommendation, Conclusions of Law).
Conclusion
In a case such as this, where plaintiffs sole argument is that the Village failed to make a reasonable accommodation under the Act, the Village must be afforded an opportunity to make such an accommodation pursuant to its own lawful procedures—unless it is clear that the result of such procedures is foredoomed, which is not the case here—before plaintiff will have a ripe claim. The preliminary injunction is vacated and the case is remanded to the district court with instructions to dismiss it without prejudice to the plaintiffs reinstating it at an appropriate time.
. The United States is the plaintiff-appellee in the case at bar. Since it is acting on Oxford House, Inc.’s complaint, however, and since Oxford House has filed an amicus brief in this Court, this opinion will refer to the United States and Oxford House collectively as “plaintiff."
. The parties agree that both state and local law require the Village to provide notice and a public hearing before allowing a special use. The plaintiff, however, argues that applicable federal law requires the Village to waive this requirement.
. We note that if plaintiff's claim were of discriminatory intent, rather than failure to make a reasonable accommodation, this claim might well be presently ripe even though Oxford House-Mallard has not sought a special use approval.
Concurrence Opinion
concurring.
I agree with the court that the Oxford House’s failure to follow the Village of Palatine’s procedures for obtaining a special use permit—a procedure required of all other residents—is fatal to its Fair Housing Act claim. I write separately to focus on some aspects of this case.
The Oxford House is an organization with a lofty and impressive goal; it seeks to assist recovering alcoholics and drug abusers. That honorable goal, however, does not put the Oxford House above the law. Yet, the Oxford House has adopted a rather highhanded policy: “As a matter of practice, Oxford House, Inc. does not seek prior approval of zoning regulations before moving into a residential neighborhood.”
The Village of Palatine is very supportive of programs such as the Oxford House’s, but it has laws and regulations that take into consideration the rights of other property owners. Palatine’s special use process is not punitive. Requirements to follow such a political process — even where success may be uncertain — cannot be discarded as “futile.” Nor does possible controversy among neighbors or elected officials mean futility.
If the Village of Palatine refused a special use permit, such denial is not automatically a violation of the Fair Housing Act. The Fair Housing Act requires “reasonable accommodation.” It may well be that the accommodations that the Oxford House seeks in this case are not reasonable because of concerns for the safety of the Oxford House’s residents, concerns for property rights of others, or concerns of residents of other group homes, for that matter. If, after a hearing, the Village of Palatine denies the special use permit, the reasonableness of the accommodations sought from the Village will then be at issue.
. The Oxford House's stated policy also explains that "[i]t considers itself no different from a
