Marbrunak, Inc. v. City of Stow, Ohio, s. 91-3806

• Citation: 974 F.2d 43
• Decision Date: 31 August 1992
• Docket Number: 91-3849,Nos. 91-3806,s. 91-3806
• Parties: 3 NDLR P 78 MARBRUNAK, INC., Plaintiff-Appellee, Cross-Appellant, v. CITY OF STOW, OHIO, Defendant-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 43

974 F.2d 43

3 NDLR P 78

MARBRUNAK, INC., Plaintiff-Appellee, Cross-Appellant, v. CITY OF STOW, OHIO, Defendant-Appellant, Cross-Appellee.

Nos. 91-3806, 91-3849.

United States Court of Appeals, Sixth Circuit.

Argued May 8, 1992.

Decided Aug. 31, 1992.

Amie L. Bruggeman (argued), Ronald S. Kopp, Charles E. Zumkehr, Roetzel & Andress, Akron, Ohio, for plaintiff-appellee cross-appellant in No. 91-3806.

L. James Martin (briefed), James A. Merlitti (argued), Stow, Ohio, for defendant-appellant cross-appellee.

David K. Flynn, Rebecca K. Troth, U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, D.C., for U.S. amicus curiae in No. 91-3806.

Diane M. Weaver (briefed), Atty. Gen. Office, Columbus, Ohio, for Ohio Dept. of Mental Retardation and Developmental Disabilities amicus curiae.

Ronald L. Smith (briefed), Michael Kirkman, Ohio Legal Rights Service, Columbus, Ohio, for Ohio Legal Rights Service amicus curiae.

Amie L. Bruggeman (argued and briefed), Ronald S. Kopp, Roetzel & Andress, Akron, Ohio, for plaintiff-appellee cross-appellant in No. 91-3849.

David K. Flynn, Rebecca K. Troth (briefed), U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, D.C., for U.S. amicus curiae in No. 91-3849.

Before: JONES and NORRIS, Circuit Judges; and WOODS, District Judge. ^*

ALAN E. NORRIS, Circuit Judge.

Defendant, City of Stow, appeals from the district court's order granting the permanent injunction requested by plaintiff, Marbrunak, Inc., enjoining the city from enforcing a zoning ordinance imposing special safety requirements on a residence plaintiff sought to operate for four mentally retarded adult women. The injunction resulted from the court's conclusion that the city had violated the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C. § 3601 et seq. The case was submitted to the court upon stipulated facts. Plaintiff cross-appeals the refusal of the district court to award attorney's fees.

Plaintiff is a non-profit corporation organized by the parents of the mentally retarded women. In February 1990, the Ohio Department of Mental Retardation and Developmental Disabilities awarded plaintiff a grant to establish a "family consortium" home. Under the rules of the department, a family consortium consists of individuals with mental retardation and developmental disabilities, and a group of their relatives who wish to provide for those individuals a home which is an extension of their family home. The department encourages families to combine their resources with public funds in order to provide these family-like homes. State licenses are not required for family consortium homes.

In April 1990, the parents signed a purchase contract for a house in a residential neighborhood in the city. The house previously had been used as a single-family residence, and was located in an area zoned for single-family dwellings. The parents were advised that they would need a conditional-use permit because the intended use made the home a boarding house, rather than a single-family dwelling. The city's law director also told them the home must satisfy section 153.149 of the city's zoning code, an ordinance which requires extensive safety protections for family homes housing individuals with developmental disabilities. These requirements are more rigorous than the state department's safety rules for family consortium homes, and are far more extensive than those required of single-family dwellings. ¹

The parents were told that they could petition the city's Board of Zoning Appeals for a variance from the safety restrictions. Rather than seek the variance, plaintiff filed this lawsuit in the district court.

In arriving at its conclusion that the zoning ordinance as applied to plaintiff violated the FHAA, the district court noted that under the Act it is unlawful to discriminate in the sale of a dwelling to any person on the basis of handicap, ² and that discrimination includes the refusal to make reasonable accommodations in rules when those accommodations may be necessary to afford a handicapped person equal opportunity to enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B). The Act defines "handicap" as a physical or mental impairment which substantially limits a person's major life activities. 42 U.S.C. § 3602(h). The court also noted legislative history indicating an intent that the prohibition against discrimination extend to zoning practices and enforcement of otherwise neutral safety regulations that have the effect of limiting the ability of handicapped individuals to live in the residence of their choice. The city does not dispute the court's conclusion that the zoning practices complained of by plaintiff are subject to federal court scrutiny pursuant to the FHAA.

Also at issue in the trial court was the city's position that plaintiff's intended use was other than as a single-family dwelling and that plaintiff would therefore be required to obtain a zoning certificate to allow that use in a single-family zone. Citing Ohio case law, the district court determined that the intended use qualified as single-family use, and the city has not appealed that determination.

The city also repeats on appeal its hyper-technical argument that plaintiff lacks standing until it has suffered the required extent of injury, since it has not yet been subjected to actual enforcement of the zoning code. We agree with the district court's reasoning and conclusion that those arguments are not well-taken.

A puzzling aspect of this appeal is disregard below for whether the case was ripe for consideration by the district court, since plaintiff may have failed to exhaust administrative remedies that could have afforded it immediate and complete relief. Ripeness was considered only in the context of whether plaintiff would first have to apply for a variance from all the safety requirements of the ordinance and be turned down, before it would have standing to challenge the ordinance. However, the language of the ordinance itself presents a more basic question. According to the zoning ordinance, it applies "exclusively to those homes permitted to be established under ... R.C. § 5123.18 and secure licensure from the division of mental retardation and developmentally disabled [sic]." Stow Zoning Code § 153.149(C). Ohio Revised Code Section 5123.18 authorizes the Director of the Department of Mental Retardation and Developmental Disabilities to contract for residential services for certain mentally retarded and developmentally disabled persons, and requires those who contract to provide those services to meet licensing requirements. Ohio Rev.Code Ann. § 5123.18(A), (D) (Anderson 1989). Ohio Revised Code Section 5123.19 provides for licensing residential facilities by the department, but exempts "a dwelling in which the ... developmentally disabled residents ... are being provided supported living pursuant to sections 5126.40 to 5126.47 of the Revised Code." § 5123.19(A)(1).

Because it is uncontroverted that the developmentally disabled residents of the home in question were being provided supported living pursuant to those sections of Ohio law, and a license was not required from the department, the zoning ordinance would appear on its face not to apply to plaintiff. Nevertheless, the city's law director thought it did. Rather than appeal that apparently erroneous opinion to the city's Board of Zoning Appeals, plaintiff chose to bring its grievance to the district court.

That is unfortunate, since such a routine administrative appeal holds out the promise of speedy relief from what one might assume to be an almost daily occurrence--a zoning official forming a mistaken opinion as to the applicability of confusing zoning requirements. Upon a ruling by the Board that the ordinance did not apply, plaintiff could have moved on unmolested, and federal court resources could have been directed towards situations requiring their attention. Despite this apparently transparent failure to exhaust a straightforward and simple administrative remedy, the issue was not squarely raised or addressed below. Nor were we afforded in oral argument a satisfactory explanation for this oversight. However, because the record was not developed sufficiently on the issue in the trial court, or briefed in this court, we are in no position to resolve it now.

Accordingly, we now turn to the issue which was focused upon in the district court. In oral argument, before this court, counsel for the city conceded that if the ordinance were...