00-2563 State ex rel. Reginald C. Bruskewitz v. City of Madison

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Accordingly, we reverse and remand to the circuit court with directions that it remand to the Common Council to determine whether Tellurian otherwise meets the standards for a conditional use permit without regard to a reasonable accommodation based on handicap or disability.

“Turning to the record in this case, we see no evidence that the proposed residents of the CLA need to live in a CLA because of their disabilities. Indeed, the evidence from the DOC was that it did not make referrals to Tellurian based on disabilities, but rather based on whether a youth is eligible to leave a correctional institution and has the need for independent living skills to reintegrate into the community. There is also no evidence that the boys referred by Dane County Human Services were either removed from their homes or placed at Tellurian because they could not live in a single-family home because of their disability. Finally, although the boys in Tellurian’s program may receive treatment for mental health problems from outside providers, the purpose of the program is not to treat the boys’ mental health problems; the purpose is to teach them the skills and the personal and social responsibility they need to live independently and successfully. …

“We conclude that because the proposed residents are not living in a CLA because of their disabilities, the City is not obligated to make a reasonable accommodation to Tellurian in the application of the 2,500 foot requirement. That is, the City has no obligation to do anything other than apply the standards for a conditional use permit in the same way it would if none of the proposed residents had a disability.”

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist IV, Dane County, Nichol, J., Vergeront, P.J.

Attorneys:

For Appellant: George B. Strother IV, Madison; Brett A. Balinsky, Madison

For Respondent: Eunice E. Gibson, Madison; James L. Martin, Madison