Erdman v. City of Ft. Atkinson, 95-3484

• Decision Date: 25 June 1996
• Docket Number: No. 95-3484,95-3484
• Citation: 84 F.3d 960
• Parties: Doug ERDMAN, W & E Buying and Leasing, a Wisconsin general partnership, and Wellington Place, Inc., a Wisconsin corporation, Plaintiffs-Appellants, v. CITY OF FORT ATKINSON, a municipal corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 960

84 F.3d 960

Doug ERDMAN, W & E Buying and Leasing, a Wisconsin general partnership, and Wellington Place, Inc., a Wisconsin corporation, Plaintiffs-Appellants, v. CITY OF FORT ATKINSON, a municipal corporation, Defendant-Appellee.

No. 95-3484.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1996.

Decided May 24, 1996.

Order Denying Rehearing and

Suggestion for Rehearing

En Banc June 25, 1996.

Cordelia S. Munroe, S. Todd Farris, Friebert, Finerty & St. John, Milwaukee, WI, Thomas W. St. John (argued), Milwaukee, WI, for plaintiffs-appellants.

Robert G. Wixson (argued), Kim I. Moermond, Winner, Wixson & Pernitz, Madison, WI, for defendant-appellee.

Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

This case, seeking damages under the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3631, (FHAA) ultimately turns on the actions of the plaintiffs and our interpretation of the phrase "equal opportunity to use and enjoy a dwelling."

Doug Erdman and two of his entities--W & E Buying and Leasing and Wellington Place, Inc.--(we will refer to all three as Erdman) appeal from an order granting summary judgment for the City of Fort Atkinson and from the denial of a motion to reconsider that order. Erdman contends that the City violated the FHAA when it refused to give him a conditional use permit to construct a community-based residential facility to house elderly, handicapped individuals. He asserts that the denial constitutes discrimination and a failure to make reasonable accommodations in city land use policies to afford the elderly handicapped equal housing opportunities.

Judge Barbara Crabb of the district court found that the City, in denying the permit request, did not run afoul of the FHAA. The denial of a single conditional use application, the judge said, does not "demonstrate that the elderly handicapped have received unequal housing opportunities in the city of Fort Atkinson." There are, she found, other housing units for the elderly handicapped in the city. After judgment was entered, a Rule 60(b) motion for relief from judgment was filed and denied. Erdman contends that the judge, by placing on him the initial burden of showing unequal housing opportunities in the city, in effect, added an element to the statute.

We review a grant of summary judgment de novo, applying the same standards as the district court and viewing the record and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995). We will affirm the entry of summary judgment if there is no genuine issue as to any material fact, such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The denial of a Rule 60(b) motion is reviewed for an abuse of discretion by the district judge.

Before getting to the facts, we note a bit of a problem here as Erdman did not comply with the district court's summary judgment procedures, namely, responding specifically to the City's proposed findings of fact and proposing findings of his own. For this reason, Judge Crabb took as undisputed the facts proposed by the City. She did, however, accept as undisputed proposed facts in Erdman's brief for which he provided citations from the record and to which the City did not object. But she did not consider proposed facts that were not supported by a reference or that were based on inadmissible evidence. This she was entitled to do, as we noted 6 years ago in a case involving her treatment of a similar situation. Tatalovich v. City of Superior, 904 F.2d 1135 (7th Cir.1990). In the final analysis, though, this procedural point makes no real difference as we shall soon see. We now move to the facts where our recitation in many ways mirrors the findings of the district court.

In October 1992, a fellow named Jim Weiss owned nine acres of land between two dead-end portions of McMillen Street in the city of Fort Atkinson. He also owned the adjoining 13 acres to the east in the town of Koshkonong. Erdman, a developer, agreed to purchase the 9 acres with an option to buy the neighboring 13-acre parcel as well. His plan was to construct a community-based residential facility to house 24 elderly handicapped individuals.

The nine-acre parcel in Fort Atkinson was zoned R-1 for single-family housing. Weiss, at Erdman's request, attempted to have the property rezoned R-3, a multi-family housing district. The Fort Atkinson planning commission denied the request on October 27, 1992.

After the planning commission's vote, Erdman and an associate met with the city manager and city attorney to see if something could be worked out. They were advised to apply for a conditional use permit under the R-1 zoning ordinances. Under the city's zoning code, nursing homes (a category into which Erdman's development fit) are a permissible conditional use in R-1 zones. The officials said that if the proposed facility was relocated to the southern part of the parcel, away from some single-family residential units, the application would have a better chance of being approved. Erdman, however, decided not to alter his proposal.

The rezoning request was abandoned on October 29, 1992, and a new request for a conditional use permit was filed. In addition, because the proposed facility would have been within 2,500 feet of two other community-based residential facilities, Erdman applied for an exception from the statutory distance restriction on such facilities, found in § 59.97(15)(a), Wisconsin Statutes. He also asked for an exception from § 59.97(15)(b)(1), Wisconsin Statutes, which allows cities to limit the population in community-based residential facilities to one percent of a city's population. According to the most recent census, one percent of Fort Atkinson's population is 103 persons. Eighty-eight people lived in community-based residential facilities at the time of the application, and the proposed facility for 24 individuals would have exceeded the one percent limit.

The city's planning commission met to consider the conditional use permit request in November of 1992. The commission was shown a site plan with the location of the building, parking areas, landscaped green space, and other improvements. The commission was also given building elevations showing what the facility would look like and floor plans indicating the layout of the building. The commission voted to grant the conditional use permit.

The Fort Atkinson city council reviews all planning commission decisions regarding conditional use permits, and it got into the act by setting the matter on the docket for a public hearing. Following the hearing, the council voted four to one to deny the request for a conditional use permit.

The members of the city council who voted against issuing the conditional use permit gave two reasons for their votes. First, the application sought a conditional use permit for the entire nine-acre parcel of vacant land but contained plans for only the portion of land on which the facility would actually sit. Second, the application called for a cul-de-sac at the north end of McMillen Street instead of a through street as contemplated in the city's master zoning plan. Council members said they were concerned that future water and sewer connections would be more difficult if a culsac were constructed. After the denial of the conditional use permit, Erdman built the facility on the contiguous 13-acre parcel of land in the town of Koshkonong. He then sued the City of Fort Atkinson under the FHAA.

The district court found no evidence to support a claim of intentional discrimination or discriminatory impact. We agree. But as the district court correctly noted, a defendant's conduct must also comply with 42 U.S.C. § 3604(f)(3)(B). Under this portion of the FHAA, municipalities unlawfully discriminate when they refuse

to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

The definition of "dwelling" in § 3602(b) includes "any vacant land which is offered for sale or lease for the construction or location thereon" of any residence.

The term "reasonable accommodation" is most often interpreted by analogy with the same phrase in the Rehabilitation Act of 1973. 29 U.S.C. § 794. An accommodation is unreasonable if it either imposes "undue financial and administrative burdens" or requires a "fundamental alteration in the nature of a program." Southeastern...