Wisconsin Correctional Serv. V. City of Milwaukee
| Decision Date | 25 September 2001 |
| Docket Number | No. 01-C-575.,01-C-575. |
| Citation | 173 F.Supp.2d 842 |
| Parties | WISCONSIN CORRECTIONAL SERVICE, and Wisconsin Correctional Foundation, Inc., non-profit corporations, Plaintiffs, v. CITY OF MILWAUKEE, a municipal corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Robert Theine Pledl, Kristin Posekany Fredrick, for Plaintiff or Petitioner.
Jan A. Smokowicz, Thomas O. Gartner for Defendant City of Milwaukee, Thomas L. Shriner, Jr., David W. Simon, Joseph D. Kearney for amicus Marquette University High School, for Defendant or Respondent.
Plaintiffs Wisconsin Correctional Service and Wisconsin Correctional Foundation, Inc. [collectively, "WCS"] have moved for partial summary judgment or a preliminary injunction, alleging that the Milwaukee Board of Zoning Appeals improperly denied it a special use permit to open a mental health clinic at 3716 West Wisconsin Avenue in Milwaukee, Wisconsin. WCS1 contends that under the Americans with Disabilities Act of 1990 ["ADA"], 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973 ["Rehabilitation Act"], 29 U.S.C. § 794, it is entitled to such a special use permit as a reasonable modification of Milwaukee Code of Ordinances ["MCO"] § 295-59-5.5-c. It requests a permanent injunction directing the City of Milwaukee to issue WCS the desired special use permit or, in the event that its motion for partial summary judgment is denied, a preliminary injunction providing it with much the same relief.
Informed that WCS had made a purchase offer for the property at 3716 West Wisconsin Avenue, but that the offer was contingent upon securing an injunction requiring the City to grant the organization a special use permit and that the offer was to expire in early September 2001, the court considered the case on an expedited basis. The court considered briefs and evidentiary materials supplied not only by the plaintiff and defendant, but by proposed amicus curiae Marquette University High School, which is located approximately three blocks from the proposed clinic.
The materials supplied by the parties disclose the following facts: WCS is a private, non-profit organization established in 1978 to provide services to persons with mental disabilities in Milwaukee County. At present, these services include medical treatment, psychiatric assessments, administration of medications, employment counseling, housing assistance, case management, and pharmacy services. Many of these services are provided at a 7,500 square foot outpatient mental health clinic located at 2023 West Wisconsin Avenue in the City of Milwaukee. As the name "Wisconsin Correctional Service" suggests, many of these individuals are referred by court-related agencies, including the U.S. Probation Department which is a component of this court. In fact, 235 WCS clients have had previous contact with the criminal justice system.
As recently as 1994 — the last time WCS's physical space was increased — WCS served only 250 clients and had a staff of 19.8 full time equivalents. Today the organization has 35.8 full time equivalent employees and 385 clients. Faced with a space squeeze that has compromised the comfort and privacy of everyone involved, WCS began a search for larger quarters in 1998.
During the next three years, WCS identified ten properties that could potentially serve its (and its clients') needs. Upon further investigation, only two properties met WCS's stated criteria of a central location, adequate size, access to public transportation, a safe neighborhood, a serviceable floor plan requiring minimal remodeling costs, and adequate parking. Unfortunately, neither property was located in a neighborhood specifically zoned for mental health clinics. Both were in areas where mental health clinics are permitted "special uses," but ones that require a public hearing and issuance of a special use permit from the Milwaukee Board of Zoning Appeals ["BOZA"].
Cognizant of the fact it would need to obtain a special use permit, WCS made a contingent offer on one of the properties. That is, it offered to purchase an option on the property that it would exercise if and when it obtained the required special use permit. The seller refused to accept the contingent offer. Faced with that defeat, WCS made a similar offer on the second property — the 20,000 square foot property at issue here. The seller accepted.
On October 20, 2000, WCS applied to the City of Milwaukee for a special use permit to occupy the premises at 3716 West Wisconsin Avenue. That request was referred to the Milwaukee BOZA on December 1, 2000. BOZA scheduled a public hearing for March 22, 2001.
Typically, the BOZA considers four criteria when deciding whether to issue a special use permit. These criteria are (1) Protection of Public Health: The use will be designed, located and operated in a manner so that the public health, safety and welfare is protected; (2) Protection of Property: The use, value and enjoyment of other property in the neighborhood will not be substantially impaired or diminished by the establishment, maintenance or operation of the special use; (3) Traffic and Pedestrian Safety: Adequate measures have been or will be taken to provide safe pedestrian and vehicular access; and (4) Consistency with Comprehensive Plan: The use will be designed, located and operated in a manner consistent with the City's comprehensive plan. See Milwaukee Code of Ordinances ["MCO"] § 295-59-5.5. The Department of City Development submitted a Special Use Report to BOZA recommending that WCS's request for the proposed use be denied because it did not meet the four standard criteria. The only criterium the report concluded was not satisfied, however, was number (2): The Department of City Development determined that "the petitioner has not satisfactorily demonstrated that the use, value and enjoyment of other property in the neighborhood will not be substantially impaired or diminished by the establishment, maintenance or operation of the special use." The Report did not provide any specific reason(s) for this conclusion.
Prior to the March 22 hearing, WCS submitted materials to the BOZA arguing that the proposed use would satisfy all four standard criteria. In addition, WCS notified the BOZA that it intended to invoke its clients' rights under the Americans with Disabilities Act and the Rehabilitation Act and that under such acts, the City is required to make "reasonable modifications" to its policies (such as those used in interpreting the four criteria) so as to ensure that individuals with mental disabilities have the same opportunity to secure clinic space as individuals without recognized disabilities. WCS's counsel, Robert Pledl, reiterated this argument at the hearing. He therefore requested the opportunity to present evidence that issuance of a special use permit would be a reasonable accommodation of his clients' disabilities mandated by the ADA and the Rehabilitation Act.
Faced with Mr. Pledl's request, BOZA Chairman Craig Zetley asked Assistant City Attorney Harry Stein for his opinion. Mr. Stein opined that the BOZA did not have "jurisdiction" to consider evidence presented pursuant to the ADA or the Rehabilitation Act. Mr. Zetley concurred, and prohibited WCS (or anyone else) from presenting any evidence on the issue.
At the hearing, then, Mr. Pledl was able only to present a limited amount of evidence. This evidence included testimony from John Maher, a member of the Board of Avenues West Safety and Security Task Force, who informed the BOZA that he had investigated the issue of WCS's safety record, and that he could find no evidence that WCS clients were responsible for safety problems in the area surrounding WCS's current clinic. In addition, a neighbor of the 2023 West Wisconsin Avenue site testified that WCS did not create any problems in her community. Letters to the same effect from numerous businesses in the current neighborhood were submitted as evidence. Finally, evidence was presented that the National Institute of Justice presented WCS with an award for exemplary care of previously-institutionalized individuals with mental health needs.
As could be expected, opponents of the clinic presented evidence, as well. Most of this evidence came in the form of testimony from neighbors expressing concern that so many ex-offenders might be bussed to their neighborhood. One prominent opponent, Marquette University High School, sent a representative to voice the school's concern that ex-offenders would be riding public transit alongside its students. Significantly, no empirical evidence was presented at all that WCS's clients have posed security risks to their current neighborhood, however, or that they are likely to do so in the proposed neighborhood. The only evidence that might be construed to implicate such a concern was a report showing that the area around 2023 West Wisconsin Avenue (WCS's current location) suffers an unusually high crime rate. This evidence also showed that the crime rate had been falling in recent years, however. Moreover, the evidence did not indicate which, if any, of the crimes in that area were committed by WCS clients.
Apparently swayed by the fears of residents near the proposed new location,2 on May 3, 2001, members of the BOZA voted 4-0 to deny the requested special use permit. A written decision dated May 9, 2001, did not explain the BOZA's reasons for denying the permit.
On June 7, 2001, WCS filed suit in this court, alleging that the BOZA violated the Americans with Disabilities Act and the Rehabilitation Act by failing to modify its policies reasonably when evaluating the criteria for issuance of a special use permit. The plaintiff further argues that issuance of such a permit is a "reasonable accommodation" of the needs of its disabled clients and that it is entitled to a permit as a matter...
To continue reading
Request your trial
-
Berardelli v. Allied Servs. Inst. of Rehab. Med.
...of § 504 [of the RA] that was well established by case law prior to the passage of the ADA"); see also Wis. Corr. Serv. v. City of Milwaukee , 173 F.Supp.2d 842, 849 (E.D. Wis. 2001) (recognizing that the ADA’s "reasonable modification" requirement is "[c]onsistent with case law under the [......
-
Start, Inc. v. Baltimore County, Md.
...Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 732 (9th Cir.1999) ("BAART"); Wis. Corr. Serv. v. City of Milwaukee, 173 F.Supp.2d 842, 851 (E.D.Wis.2001); cf. Smith-Berch I, 68 F.Supp.2d at 618 (noting an absence of dispute as to whether Title II applies to zoni......
-
Tsombanidis v. City of West Haven
...150 (D.Conn.2001); see also Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 790 (6th Cir.1996); Wisconsin Correctional Serv. v. City of Milwaukee, 173 F.Supp.2d 842 (E.D.Wis.2001); Remed Recovery Care Centers v. Township of Willistown, 36 F.Supp.2d 676, 683 (E.D.Pa.1999). In this case,......
-
Wisconsin Community Services v. City of Milwaukee, 04-1966.
...(and the City) that the Constitution's supremacy clause requires all state and local actors to comply with federal law, see 173 F.Supp.2d 842 (E.D.Wis.2001), a new hearing was held. The outcome was the same, because the Board concluded that WCS could have purchased or leased space elsewhere......