Keys Youth Services, Inc. v. City of Olathe, Kan.
| Decision Date | 29 October 1999 |
| Docket Number | No. Civ.A. 98-2398-KHV.,Civ.A. 98-2398-KHV. |
| Citation | 75 F.Supp.2d 1235 |
| Parties | KEYS YOUTH SERVICES, INC., Plaintiff, v. CITY OF OLATHE, KANSAS, Larry Campbell, John Bacon, Bill Trout, Michael Copeland, and Gary Mitchell, Defendants. |
| Court | U.S. District Court — District of Kansas |
James H. Ensz, Sarah G. Madden, Ensz & Jester, P.C., Kansas City, MO, for Plaintiff.
Anthony F. Rupp, Andrew M. DeMarea, Shughart, Thomson & Kilroy, Overland Park, KS, Roy T. Artman, Riling, Burkhead & Nitcher, Chtd., Lawrence, KS, for Defendants.
Keys Youth Services, Inc. [Keys], a not-for-profit corporation which operates youth homes in Kansas, brings this action against the City of Olathe, Kansas [the City], alleging that the City violated the Fair Housing Act [FHA], 42 U.S.C. §§ 3601 et seq., as amended by the Fair Housing Amendments Act of 1988, and Kansas law protecting persons with a disability, K.S.A. § 12-736.1 This Court previously granted Keys' motion for summary judgment on its claim that the City violated the FHA by discriminating against potential residents on the basis of family status. See Memorandum and Order (Doc. # 54) filed June 23, 1999. The parties have stipulated that plaintiff sustained $55,676.79 in damages on account of that violation.2
The case was tried to the Court on July 20 and 21, 1999. The issues before the Court are whether, in denying Keys a special use permit, the City (1) violated the FHA by discriminating against potential residents on the basis of handicapped status or failing to reasonably accommodate potential handicapped residents, and (2) violated K.S.A. § 12-736 by failing to allow ten handicapped residents. Having considered the evidence presented at trial, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure.3
Keys is a not-for profit corporation which operates group homes in Johnson County, Kansas. The homes provide residential care for youths between the ages of 12 and 17 who have been abused, neglected or abandoned and who are under the supervision and direction of the Kansas Department of Social and Rehabilitation Services. The Court has found that at least some potential Keys residents will be handicapped under the FHA.4 See Memorandum and Order (Doc. # 54) filed June 23, 1999.
On March 3, 1998, Keys contracted to purchase a home at 605 E. Harold in Olathe, Kansas. The home is located on more than one acre of land in an area which is zoned for single family residences. Keys proposed to use the home to house ten unrelated adolescent males and two or three adult staff members. The City zoning ordinance classified the proposed home as a residential care facility, specifically, a group board home for minors. See Olathe City Ordinance §§ 18.76.020, 18.06.305.5 On March 13, 1998, Keys applied to the City for a special use permit to operate the group home.
On March 19, 1998, the City issued the required notice of a public hearing before the Planning Commission to hear evidence regarding the requested special use permit (SU-11-98). In response, more than 85 percent of the property owners within 200 feet of the Keys property filed a protest petition. The filing of that petition triggered a supermajority voting requirement under Olathe City Ordinance § 18.12.130, requiring that 75 percent of the City Council approve the special use permit. The Council has seven members and six members therefore had to approve the application.
On April 13, 1998, the Planning Commission held a public hearing to consider plaintiff's application.6 Representatives of Keys appeared and presented witnesses who spoke in favor of the permit. Neighbors presented witnesses who spoke in opposition to the permit. The City planning staff recommended that the application be approved, notwithstanding the neighborhood opposition, because the proposed special use would provide a needed service for at-risk youth in the community and was consistent with the City's comprehensive plan. After hearing from both sides, however, the Planning Commission voted to deny the special use permit by a 4-2 vote. On May 5, 1998, the City Council considered the issue and by a 6-1 vote decided to return plaintiff's application to the Planning Commission. Ten days later, on May 15, 1998, Keys closed on its purchase of the property.
On June 8, 1998, the Planning Commission met to reconsider plaintiff's permit application. The Commission denied the permit by a 6-3 vote, and listed factors in support of the denial. The Commission set forth two major factors which, it determined, would detrimentally affect nearby property: a risk to public safety and a decrease in the value of neighboring property.7
The Planning Commission also found that "[t]he relative gain to the public health, safety, and welfare by the destruction of the value of plaintiff's property (neighboring property) as compared to the hardship imposed upon the individual landowner (KEYS)" was as follows:
a. Some neighbors indicated that while the KEYS program for youths is needed, they argued that it is not appropriate for this neighborhood due to public safety concerns and effect upon property values.
b. Police calls at KEYS homes in Johnson County in 1997 indicated that public safety is a serious concern. Public safety will be affected by the location of a KEYS home for youths with emotional and behavioral problems. The neighbors expressed concerns about safety to the senior citizens and children living and walking in the neighborhood. They also expressed concerns about increased crime in the neighborhood where there had been no criminal activity.
c. On the studies on group homes regarding the effect of group homes on public safety and property valuation in the general area, there was no reference if any study focused on group homes for youths.
d. The neighbors have said that a real estate broker indicated that due to the KEYS proposal, property values will decrease.
The Planning Commission also concluded that the proposed residents were not "handicapped" and that the FHA permitted the City to deny the application, as follows:
Under 42 U.S.C. Sec. 3604(f)(9) of the FHA regarding public safety concerns, nothing in the FHA requires that the KEYS home be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. Furthermore, the 10th Circuit Court [in] Bangerter stated that housing can be denied altogether for those same reasons.
Pursuant to two court cases, Act I Inc., and Sunderland Family Treatment Services, the youths who present problems of physical abuse, neglect, sexual abuse, or "child in need of care" but not abuse or neglect, and being placed in the KEYS group home are not considered "handicap" [sic] under the FHA.
On July 7, 1998, the City Council again considered plaintiff's application. At a public hearing, James Ensz, president of the Keys board, presented evidence in support of the application. Keys took the position that it had no duty to present evidence because as a matter of law it was entitled to use its property as a group home. The City's law firm advised the City that it should issue the permit because the residents might be considered handicapped and thus entitled to reasonable accommodation. The Council rejected the application, however, by a 4-3 vote.
The Keys mission is to provide professional treatment and continued support under family-like conditions for youths who have emotional problems which result from abuse, abandonment or neglect. The Kansas Department of Social and Rehabilitation Services (SRS) places most of the Keys youth. SRS refers juvenile offenders, children-in-need-of-care, and youth who have problems which stem from physical abuse, neglect, truancy, and sexual abuse. Most Keys residents have developed emotional problems as a primary result of environmental and cultural factors.
SRS categorizes youth behavioral problems from Level III to Level VI. Level VI is the most severe category; and youth who are in this category must be in lock-down facilities. Keys proposed to operate a Level V home on the property which was the subject of its special use permit application. When Keys applied for its special use permit on Harold Street, it was already operating a Level V group home for ten male youth in Olathe on 151st Street. Level V homes include children who exhibit antisocial and aggressive behavior including fighting, theft, vandalism, assault and battery. Level V youth require a controlled environment with a high degree of supervision and intensive services, and have usually failed in other less structured environments. Many of the residents will also have behavioral problems. Parents and teachers describe such youth as uncooperative, argumentative, dishonest, cruel, aggressive, moody, disruptive and sometimes assaultive. Level V youth may have previously resided in a Level VI facility.
To participate in the Keys program, residents must not be in an active episode of chemical dependency, must not have past behavioral patterns such as murder, sexual assault, robbery, or repeated violent acts against self or others, and must not have been diagnosed with severe emotional disturbances or psychotic conditions that would require long term treatment. Admission standards do not require that Keys residents possess physical or mental impairments, however, or any other disabilities or handicaps. Residents must have a minimum full scale IQ of 70 and must be able to function with abstract concepts and token economies. Further, at any given time, Keys may or may not have residents who are physically impaired.8
Of Keys youth, 95 percent or more have recognized mental problems. While in the Keys program, they receive ongoing...
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