Oconomowoc Residen. Programs v. City of Greenfield
| Decision Date | 30 September 1998 |
| Docket Number | No. 96-C-1112.,96-C-1112. |
| Citation | 23 F.Supp.2d 941 |
| Parties | OCONOMOWOC RESIDENTIAL PROGRAMS, INC., a domestic corporation, Plaintiff, v. CITY OF GREENFIELD, a municipal corporation, and Village of Greendale, a municipal corporation, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
John F. Maloney, Mark A. Peterson, McNally, Maloney & Peterson, Milwaukee, WI; Dennis M. Burg, General Counsel, Oconomowoc Residential Programs, Inc., Oconomowoc, WI, for plaintiff.
Raymond J. Pollen, Crivello, Carlson, Mentkowski & Steeves; Milwaukee, WI; Roger C. Pyzyk, Pyzyk Law Office, West Allis, WI; James Burns, Burns Law Office, Greendale, WI, for defendant.
DECISION AND ORDER
Oconomowoc Residential Programs, Inc. (ORP) is suing the City of Greenfield (Wisconsin) and the Village of Greendale (Wisconsin) for violating its rights under the Fair Housing Amendment Act of 1988, 42 U.S.C. §§ 3601-3631, the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, and the Equal Protection Clause of the Fourteenth Amendment.1 See U.S. Const. Amend XIV. The Plaintiff is asking for compensatory damages, attorney fees, costs and an order permanently enjoining the Defendants from reviewing its licensure. The Defendants have answered and denied liability. This court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 & 1343 and 42 U.S.C. §§ 3613 & 12133.
At the scheduling conference, the parties agreed that cross motions for summary judgment could resolve all the issues in this case. Despite this agreement, the Plaintiff filed a motion seeking only a partial summary judgment on liability. That motion and the Defendants' motion for summary judgment on all claims and issues have now been fully briefed.
A. WISCONSIN
Because the interplay of the Wisconsin statutory zoning scheme with the federal Fair Housing Amendment Act and Americans With Disabilities Act is central to this litigation, the court will set out the relevant statutes in full. The crux of the Plaintiff's case is its challenge to the validity of Subsections 62.23(7)(i)1 & 2r of the Wisconsin Statutes. These subsections are found in Chapter 62 ("Cities") of the Wisconsin Statutes.2 Chapter 62's Subchapter I ("General Charter Law") contains Section 62.23 ("City Planning") which authorizes such municipal powers as planning, zoning, inspection, condemnation and land acquisition. Subsection 62.23(7)(i) provides that:
(i) Community and other living arrangements. For purposes of this section, the location of a community living arrangement, as defined in s. 46.03(22), a foster home, as defined in s. 48.02(6), a treatment foster home, as defined in s. 48.02(17q), or an adult family home, as defined in s. 50.01(1), in any city shall be subject to the following criteria:
1. 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. Two community living arrangements may be adjacent if the city authorizes that arrangement and if both facilities comprise essential components of a single program.
2. Community living arrangements shall be permitted in each city without restriction as to the number of facilities, so long as the total capacity of such community living arrangements does not exceed 25 or one percent of the city's population, whichever is greater. When the capacity of the community living arrangements in the city reaches that total, the city may prohibit additional community living arrangements from locating in the city. In any city of the 1st, 2nd, 3rd or 4th class, when the capacity of community living arrangements in an aldermanic district reaches 25 or one percent of the population, whichever is greater, of the district, the city may prohibit additional community living arrangements from being located within the district. Agents of a facility may apply for an exception to the requirements of this subdivision, and such exceptions may be granted at the discretion of the city.
2m. A foster home or treatment foster home that is the primary domicile of a foster parent or treatment foster parent and that is licensed under s. 48.62 or an adult family home certified under s. 50.032(1m)(b) shall be a permitted use in all residential areas and is not subject to subds. 1 and 2 except that foster homes and treatment foster homes operated by corporations, child welfare agencies, churches, associations or public agencies shall be subject to subds. 1 and 2.
2r. a. No adult family home described in s. 50.01(a)(b) may be established within 2,500 feet, or any lesser distance established by an ordinance of the city, of any other adult family home described in s. 50.01(1)(b) or any community living arrangement. An agent of an adult family home described in s. 50.01(1)(b) may apply for an exception to this requirement, and the exception may be granted at the discretion of the city.
b. An adult family described in s. 50.01(1)(b) that meets the criteria specified in subd. 2r.a. and that is licensed under s. 50.033(1m)(b) is permitted in the city without restriction as to the number of adult family homes and may locate in any residential zone, without being required to obtain special zoning permission except as provided in subd. 9.
3. In all cases where the community living arrangement has capacity for 8 or fewer persons being served by the program, meets the criteria listed in subds. 1. and 2., and is licensed, operated or permitted under the authority of the department of health and family services, that facility is entitled to locate in any residential zone, without being required to obtain special zoning permission except as provided in subd. 9.
4. In all cases where the community living arrangement has capacity of 9 to 15 persons being served by the program, meets the criteria listed in subds. 1. and 2., and is licensed, operated or permitted under the authority of the department of health and family services, that facility is entitled to locate in any residential area except areas zoned exclusively for single-family or 2-family residences except as provided in subd. 9., but is entitled to apply for special zoning permission to locate in those areas. The city may grant such special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.
5. In all cases where the community living arrangement has capacity for serving 16 or more persons, meets the criteria listed in subds. 1. and 2., and is licensed, operated or permitted under the authority of the department of health and family services, that facility is entitled to apply for special zoning permission to locate in areas zoned for residential use. The city may grant such special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.
6. The department of health and family services shall designate a single subunit within the department to maintain appropriate records indicating the location and number of persons served by each community living arrangement, and such information shall be available to the public.
7. In this paragraph, "special zoning permission," includes but is not limited to the following: special exception, special permit, conditional use, zoning variance, conditional permit and words of similar intent.
8. The attorney general shall take all necessary action, upon the request of the department of health and family services, to enforce compliance with this paragraph.
9. Not less than 11 months nor more than 13 months after the first licensure of an adult family home under s. 50.033 or of a community living arrangement and every year thereafter, the common council of a city in which a licensed adult family home or a community living arrangement is located may make a determination as to the effect of the adult family home or community living arrangement on the health, safety or welfare of the residents of the city. The determination shall be made according to the procedures provided under subd. 10. If the common council determines that the existence in the city of a licensed adult family home or a community living arrangement poses a threat to the health, safety or welfare of the residents of the city, the common council may order the adult family home or community living arrangement to cease operation unless special zoning permission is obtained. The order is subject to judicial review under s. 68.13, except that a free copy of the transcript may not be provided to the adult family home or community living arrangement. The adult family home or community living arrangement must cease operation within 90 days after the date of the order, or the date of final judicial review of the order, or the date of the denial of special zoning permission, whichever is later.
9m. The fact that an individual with acquired immunodeficiency syndrome or a positive test for the presence of HIV, as defined in s. 252.01(1m), antigen or nonantigenic products of HIV or an antibody to HIV resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under subd. 9 to assert or prove that the existence of the community living arrangement in the city poses a threat to the health, safety or welfare of the residents of the city.
10. A determination made under subd. 9 shall be made after a hearing before the common council. The city shall provide at least 30 days' notice to the licensed adult family home or the community living arrangement that such a hearing will be held. At the hearing, the licensed adult family home or the community living arrangement may be represented by counsel and may present...
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