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Illinois Federal Court Upholds Denial of Housing for Residents with Mental Disabilities

Nikolich v. Village of Arlington Heights, 870 F Sup 2d 556 (N.D. Ill., 2012) involved Defendant’s denial of 30 units of housing for those with mental illness, and a Motion for Summary Judgment by Defendant. The Complaint in this case had three theories, including the Fair Housing Act (“FHA”), the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act. Plaintiffs were either developers or prospective users of such housing. Defendant’s housing plan showed an unmet need for 180 units for those with special needs. Upon Staff advice, Plaintiffs applied for nine amendments or variances from the underlying zone, including a Comprehensive Plan Amendment and rezoning. The applications had no historic precedent; nevertheless the Planning Staff recommended approval. The Planning Commission recommended approval by a 4-3 vote; however, the Village Board denied the application on a 4-3 vote.

The Court stated that there was not enough evidence to show that mentally ill residents would be better off at the residential density Plaintiffs proposed and also observed that 16 units could be built without variances; however, Plaintiffs could not have secured public financing to pursue that option. The Court was unimpressed by the notion of charging higher rents to make up the difference. Moreover, the housing tax credits had expired by the time the suit was brought and there were no financial arrangements in place to fund the housing. The court proceeded to test the three theories advanced against Defendant’s action.

Plaintiffs advanced three separate theories under the FHA – disparate treatment, disparate impact, and failure to make reasonable accommodation. Disparate treatment can be intentional (however, there was no such evidence under existing zoning patterns or from what was allowed under the existing zoning – i.e., 16 units without variances). The Court did not find that the dimensional requirements of the underlying zones were unreasonable or aimed at the disabled. The court noted that it was the plaintiff who asked for discretionary amendments and variances and then found that the ordinance was on its face, “fairly debatable.” Thus, there was no showing that the Plaintiffs were treated differently from other applicants. The Defendant was shown to provide housing for some mentally ill now, and proposed to do more in the future. There was also evidence that the Defendant did not, and would not, have made a different decision if the proposed housing did not involve the disabled. The Court concluded:

“In short, Arlington Heights cannot be said to have treated [this project] differently than any other project involving non-disabled residents because no one has ever been granted zoning variances of this scope. Moreover, there are a number of supportive housing projects already serving mentally ill residents in Arlington Heights, and more are planned for the near future * * * facts that buttress the determination that the Village Board is not biased against such projects but rather denied the project at hand for the legitimate zoning reasons identified at the May 17 meeting. Thus plaintiffs’ disparate treatment contention is doomed.”

As to the disparate impact claim, which was to show a facially neutral ordinance, fell disproportionately on a protected class, the Court said that the neutral policy (i.e., the zoning scheme which would require amendments and variances, to get to Plaintiffs’ objective) did not fall disproportionately on the handicapped.

As to Plaintiffs’ failure to accommodate claim, Plaintiffs must show the accommodation was reasonable and also necessary to ameliorate the effects of renters’ disabilities. The rule to which accommodation was requested must be shown to limit the disabled by reason of their handicap. Plaintiffs could not show that this was the result (“but for”) or their hardship – i.e., the variances for density, minimum unit size, and number of parking spaces – if all potential tenants would have been affected, the reasonable accommodation provision does not apply. None of the variances were shown to ameliorate the effects of Plaintiffs’ disabilities, but would only make the project more financially feasible for the developer. The Court rejected this financially feasibility test because it did not apply to any specific disability. The Court also questioned whether an “interactive process” of reasonable accommodation applied to local governments in the exercise of their land use regulatory authority. The fact that the handicapped could live elsewhere, albeit more expensively, was of no matter, particularly if alternatives existed on the very site without variances. The Defendant’s Motion for Summary Judgment was thus granted.

This case may be correctly decided on the facts and the contentions made. However, it may well be true that if there are economies of scale that allows for provision of affordable housing to the disabled, the purposes of the three enumerated acts may be unmet. The realities of development may exclude the disabled from access to housing – apparently with the blessing of the law.

Nikolich v. Village of Arlington Heights, 870 F Sup 2d 556 (N.D. Ill., 2012).

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