US v. Village of Marshall, Wis., 90-C-524-S.

• Decision Date: 22 April 1991
• Docket Number: No. 90-C-524-S.,90-C-524-S.
• Citation: 787 F. Supp. 872
• Parties: UNITED STATES of America, Plaintiff, v. VILLAGE OF MARSHALL, WISCONSIN, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

787 F. Supp. 872

UNITED STATES of America, Plaintiff, v. VILLAGE OF MARSHALL, WISCONSIN, Defendant.

No. 90-C-524-S.

United States District Court, W.D. Wisconsin.

April 22, 1991.

Harvey L. Handley III, Housing and Civil Enforcement Section, Civil Rights Div., Dept. of Justice, Washington, D.C., for plaintiff.

Bradley D. Armstrong, Axley Brynelson, Madison, Wis., for defendant.

MEMORANDUM AND ORDER

SHABAZ, District Judge.

The United States of America commenced this action pursuant to 42 U.S.C. § 3614(b) alleging that the defendant Village of Marshall, Wisconsin, discriminated against Tellurian U.C.A.N. in violation of 42 U.S.C. § 3604(f)(1) when it failed to grant an exception to a group home spacing requirement. Jurisdiction is based on 28 U.S.C. § 1345.

The action is presently before the Court on cross-motions for summary judgment. The parties have stipulated that all issues of liability be resolved upon a stipulated record of material facts. The following is a summary of the facts to which the parties have stipulated.

FACTS

The defendant Village of Marshall is a Wisconsin municipality with a population of approximately 2,400. Tellurian U.C.A.N., Inc. is a private, non-profit corporation which provides services for mentally ill, chemically dependent, and other homeless persons in Dane County, Wisconsin.

In March 1989 Tellurian located a prospective house for use as a group residential facility for persons suffering from mental illness at 410 Hubbell Street, Marshall, Wisconsin. Subsequently, it contracted for an option to purchase the property. Tellurian intended to use the property as a community-based residential facility to be occupied by six unrelated individuals. The property was zoned R-2 by the Village zoning code, which would permit such a use.

Pursuant to its plan for a community-based residential facility, Tellurian sought funding from the United States Department of Housing and Urban Development. In connection with its application with HUD, Tellurian sought and received letters from the defendant confirming that the property was outside the 100-year flood plain and was appropriately zoned for the intended use.

On March 22, 1989, Eugene Dold, President of Tellurian, wrote a letter to the Marshall Village Board explaining the planned operation of the proposed group home. The letter advised that Tellurian was aware that it would be required to apply for an exception to a 2,500 foot spacing restriction. The Wisconsin Statute which creates the spacing restriction to which the letter refers is § 62.23(7)(i)(1), which provides:

No community living arrangement may be established after March 28, 1978 within 2,500 feet, or any lesser distance established by an ordinance of the city, of any other such facility. Agents of a facility may apply for an exception to this requirement, and such exceptions may be granted at the discretion of the city.

At all relevant times there has been operating at 119 West Main Street, Marshall, a community-based residential facility known as the "Shady Rest Elder House," which has a present capacity of five elderly persons. Shady Rest is the only licensed community-based residential facility now operating in the Village. Shady Rest is approximately 1,619 feet from 410 Hubbell Street in a straight line. However, the two properties lie on opposite sides of a wide unbridged portion of the Maunesha River and the shortest distance of travel between the two properties via public streets is approximately one-half mile.

At a regularly scheduled Village Board meeting on April 11, 1989, a number of citizens appeared in opposition to the Tellurian group home. The citizens raised a number of questions concerning the group home. The following is an excerpt from the minutes of the Board meeting:

The residents wanted the process stopped now. Mr. Meloy reaffirmed that the Village could not take any action, since no application for permit had been applied for and there was no official action for them to take. The immediate neighborhood was very opposed of having the home there at all.... Board member Hensler asked if it would be proper on the Village's part to notify Tellurian that there is no desire to have their facility in the Village. Mr. Meloy felt that a letter could be wrote sic to Tellurian stating that the residents had appeared at the Board meeting and were opposed to their project. Motion by Hensler, second by Wild, to send a correspondence to Tellurian that many residents appeared at the Board meeting and strongly opposed their plan and state the concerns mentioned with their disapproval. Roll call vote carried, 7-0.

No Village Board member was involved in preparing the list of concerns presented at the April 11th Board meeting. Village Board President Prust distributed to those in attendance at the April 11, 1989 Board meeting copies of a letter dated March 22, 1989, from Tellurian President Dold explaining the proposed program Tellurian intended to establish in Marshall. Mr. Dold was not in attendance at the April 11th meeting. Village Clerk Peck sent a letter dated April 12, 1989, to Tellurian President Dold pursuant to the direction of the Village Board. The letter stated as follows:

I was directed by the Marshall Village Board to write you this letter regarding the Board meeting that was held last evening.

The regular Village Board meeting for the month of April was called to order at about 7:30 P.M. In attendance were approximately 40 concerned citizens, who were at the meeting, to voice their opposition to your proposed CBRF at 410 Hubbell Street in the Village of Marshall. It was the unanimous opinion of those in attendance that the Village Board should deny any request for such facility in the Village. Those in attendance were given a copy of your letter to the Board, dated March 22, 1989. Some of those people may be calling you in person.

The Board listened attentively to all of those who spoke in opposition. No one spoke in favor. The Board took no official action other than to direct me to write you to indicate that there is a strong and perhaps unanimous community sentiment opposing your proposal.

A copy of the Board minutes and meeting register have been enclosed for your reference.

Subsequent to the April 11, 1989, Village Board meeting Tellurian President Dold received a number of letters and phone calls from persons expressing opposition to the proposed group home.

During the summer of 1989 a number of residents of the Village organized to oppose Tellurian's proposed CBRF, and retained an attorney for that purpose.

On August 25, 1989, the Wisconsin Housing and Economic Development Authority sent a letter to Dold stating that HUD had approved a grant of funds in the amount of $245,644 for the operation of a group home at 410 Hubbell Street, Marshall. In August 1989 Mr. Dold informed Village President Prust that Tellurian's grant request had been approved. On September 12, 1989, the Marshall Village Board at its regularly scheduled meeting determined to prepare and send a letter to Dold advising him that the proposed CBRF was within 2,500 feet of an existing CBRF and that, pursuant to State law, an exception would be necessary. A letter to this effect was sent to President Dold, advising him of the procedure for applying for an exception.

By letter dated September 28, 1989, Dold applied for an exception to the 2,500 foot spacing requirement. The request was placed on the agenda for the October 10, 1989 Village Board meeting, and Dold was sent a copy of the agenda.

At the October 10, 1989 Village Board meeting the Board determined to treat Tellurian's application for a statutory exception with the procedure used for conditional use permits. A public hearing on the application for a statutory exemption was scheduled for October 26, 1989. Village President Prust indicated that the purpose of the October 26th hearing would be to "hear evidence on the impact of having another community based residential facility within 2,500 feet of another such facility."

At the October 10th meeting Village Board members requested that legal counsel provide information relating to Tellurian's application or to assist the Board members in evaluating it. In response, legal counsel provided to the Village Board members, prior to the October 26th hearing, portions of the legislative history of § 62.23(7)(i)(1), Wis.Stat., as well as several Law Review articles relating to community based group homes. A notice of the October 26th Board meeting was prepared and sent.

On October 24, 1989, the Village Board held a meeting at which the Board members requested that legal counsel provide guidelines to assist Board members in evaluating comments which might be made at the October 26th public hearing. In response to the request by Board members, legal counsel prepared a letter dated October 26, 1989, which was distributed to the Board members prior to the hearing. The following is an excerpt from that letter:

The Board's primary focus should be on the effect and impact to the neighborhood which may result from having two community living arrangements (CLA) within 2,500 feet of one another.... The Board's decision on whether to grant or deny the exception is a zoning decision, and as such, must be related to the promotion of the "health, safety, morals, prosperity, aesthetics, and general welfare of the community.

The United States Supreme Court has stated that a municipality's zoning decisions may not be based on unfounded stereotypes, biases, fears or prejudices toward a group of individuals such as the mentally ill. (Citations omitted.) Additionally, the Fair Housing Amendments Act of 1988 (citation omitted), the Federal Fair Housing Law, prohibits a municipality from denying housing to those with handicaps because of the handicap. ... The legislative history of § 62.23(7)(i), Stats., indicates that the purpose of this section is to provide to those who are

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