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01-1002 Oconomowoc Residential Programs, Inc. v. City of Milwaukee

By: dmc-admin//August 12, 2002//

01-1002 Oconomowoc Residential Programs, Inc. v. City of Milwaukee

By: dmc-admin//August 12, 2002//

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“The City argues that the plaintiffs bear the burden of proof with respect to the issue of reasonable accommodation, citing both the Fifth and Fourth circuits in Bryant Woods Inn, Inc., 124 F.3d at 603-604 and Elderhaven, Inc. v. City of Lubbock, Texas, 98 F.3d 175, 178 (5th Cir. 1996). The City, however, offers no reason for choosing this regime over the method used by the Second, Third, Eighth, Ninth, and Tenth Circuits which require a plaintiff to make an initial showing that an accommodation is reasonable, but then places the burden on the defendant to show that the accommodation is unreasonable. See e.g., Lapid-Laurel, L.L.C., 284 F.3d at 457; Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002), petition for cert. filed, No. 01-1878 (June 20, 2002); Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000), cert. denied, 531 U.S. 931 (2000); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950 (8th Cir. 1999); White v. York Int’l Corp., 45 F.3d 357, 361 (10th Cir. 1995). And though this Court has never explicitly labeled the test it employs, in Vande Zande, 44 F.3d at 543, we describe a process similar to that used by the Second, Third, Eighth, Ninth, and Tenth Circuits in evaluating the reasonableness of a requested accommodation under the FHAA: The employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs. Even if this prima facie showing is made, the employer has an opportunity to prove that upon more careful consideration the costs are excessive in relation either to the benefits of the accommodation or to the employer’s financial survival or health. Id. See also, USAirways, Inc., ___ U.S. ___, 122 S. Ct. at 1523 (acknowledging the burden-shifting regime used by appellate courts).

“We begin by focusing on the definitions of the three key elements of a reasonable accommodation: ‘reasonable,’ ‘necessary,’ and ‘equal opportunity.’ Whether a requested accommodation is reasonable or not is a highly fact-specific inquiry and requires balancing the needs of the parties. Dadian, 269 F.3d at 838. An accommodation is reasonable if it is both efficacious and proportional to the costs to implement it. Vande Zande, 44 F.3d at 543. An accommodation is unreasonable if it imposes undue financial or administrative burdens or requires a fundamental alteration in the nature of the program. Erdman, 84 F.3d at 962 (internal citations omitted). In assessing costs, the court may look at both financial and administrative costs and burdens. Bryant Woods Inn, Inc., 124 F.3d at 604. A zoning waiver is unreasonable if it is so ‘at odds with the purposes behind the rule that it would be a fundamental and unreasonable change.’ Dadian, 269 F.3d at 838-39. ‘Whether the requested accommodation is necessary requires a “showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.”‘ Dadian, 269 F.3d at 838 (citing Bronk, 54 F.3d at 429). In other words, the plaintiffs must show that without the required accommodation they will be denied the equal opportunity to live in a residential neighborhood.

In this context, ‘equal opportunity’ means the opportunity to choose to live in a residential neighborhood. Lapid-Laurel, L.L.C., 284 F.3d at 460; Smith & Lee Assoc., 102 F.3d at 794. The FHAA ‘prohibits local governments from applying land use regulations in a manner that will . . . give disabled people less opportunity to live in certain neighborhoods than people without disabilities.’ Smith & Lee Assoc., 102 F.3d at 795 (internal citation omitted). Often, a community-based residential facility provides the only means by which disabled persons can live in a residential neighborhood, either because they need more supportive services, for financial reasons, or both. Erdman, 84 F.3d at 963; Brandt v. Village of Chebanse, Illinois, 82 F.3d 172, 174 (7th Cir. 1996); Larkin, 89 F.3d at 291; Hovsons, Inc., 89 F.3d at 1105; Smith & Lee Assoc., 102 F.3d at 795-96. When a zoning authority refuses to reasonably accommodate these small group living facilities, it denies disabled persons an equal opportunity to live in the community of their choice. Erdman, 84 F.3d at 963.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Rovner, J.

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