United States Court of Appeals

Wisconsin Community Services, Inc. v. City of Milwaukee, Wisconsin,
413 F.3d 642 (7th Cir. 2005)(Rehearing En Banc Granted, Opinion Vacated August 31, 2005)
Keys: Z-PRM, Z-OPP
A nonprofit sought a special-use permit to open a mental health clinic in an area zoned for business. When the city denied its request because appropriately zoned space was available elsewhere in the city, the nonprofit brought claims under Title II of the Americans with Disabilities Act and the Rehabilitation Act. In granting summary judgment in favor of the nonprofit, the district court found that the special-use permit constituted a reasonable accommodation because the building purchased by the nonprofit was its least-cost option.
The Seventh Circuit vacated and remanded the case for further consideration. The court rejected the district court’s use of financial considerations in analyzing the nonprofit’s “disparate impact” claim. Citing Hemisphere Building Co. v. Village of Richton Park (below), the court stated that reasonable-accommodation requirements apply only to rules that hurt people with disabilities “by reason of their handicap, rather than [those] that hurt them solely by virtue of what they have in common with other people, such as a limited amount of money.” Accordingly, the court held that since all people, with disabilities or otherwise, would prefer to pay less for housing and health care, the denial of a special-use permit could not be challenged on financial grounds. The court also ruled that the failure to make a reasonable accommodation does not constitute an independent ground for relief. It stated that under Hemisphere Building and Brandt v. Village of Chebanse (below), the FHA (which it assumed to be identical to Title II of the ADA and the Rehabilitation Act) mandates accommodation only where disparate impact has already been shown: “in the absence of disparate impact…there is no need for accommodation under the FHAA.” Here, because no disparate impact had been shown, the court found the city under no obligation to grant the nonprofit a reasonable accommodation. Note:  This decision was vacated on August 31, 2005. At press time, the matter was pending before the en banc Seventh Circuit, oral argument having been held.

ILLINOIS

United States District Court

DuPage Housing Authority v. Oak Brook
FH-FL Rptr. ¶16,760 (N.D.Ill. Feb. 13, 2004) 
Keys: Z-OCC
The DuPage Housing Authority brought claims against the Village of Oak Brook for refusal to change zoning ordinances that prohibited multiple family dwellings, such as retirement homes. DuPage sought to build affordable retirement and assisted-living units for senior citizens, some of whom had disabilities. The action was removed to federal district court, where the housing authority further alleged that the village’s zoning ordinances constituted unlawful housing discrimination on the basis of disability pursuant to the Fair Housing Amendments Act.  The village moved to dismiss all complaints, claiming that there was no action on the basis of exclusionary zoning under Illinois law, that the FHA does not apply to or protect the elderly, and that the Americans with Disabilities Act does not apply to city zoning ordinances. The court denied the motion and ruled that: 1) under Illinois law, “a zoning ordinance is impermissibly exclusionary if a particular activity is effectively prohibited anywhere within the city limits;” 2) claims can be made for the elderly with disabilities under the FHA, and 3) the ADA is “applicable to zoning decisions made by local government entities.” 

Significance: This decision is important because it allows for claims that allege discrimination on the basis of association with persons with disabilities. The housing authority was allowed to bring suit under the FHA and ADA because some of the senior citizens would potentially have disabilities. The court deemed this relationship sufficient to establish the housing authority’s standing. 

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