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Housing Section Documents

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

ADVANCED LIVING, INC., on behalf
of itself and all others similarly
situated,
     Plaintiffs,

v.

No. 3:97CV7245
The Hon. David A. Katz

CITY OF TOLEDO, et al.,
     Defendants

_______________________________________

FAMILY TREE HOME, LTD.,
     Plaintiff-intervenor

_______________________________________

Consolidated with

ASSOCIATION FOR RETARDED CITIZENS,
("ARC") et al.,
     Plaintiffs,

v.

No. 3:97CV7291

CARLETON FINKBEINER, et al.,
     Defendants.

_______________________________________

Consolidated with

UNITED STATES OF AMERICA,
     Plaintiff

v.

No. 3:98CV7516

CITY OF TOLEDO, OHIO, et al.,
     Defendants.

_______________________________________

SETTLEMENT AGREEMENT AND ORDER

The parties agree to the entry of this Settlement Agreement and Order to resolve the above actions.

  1. INTRODUCTION

    1. Plaintiff Advanced Living, Inc., an adult residential care facility, filed its action on behalf of itself and a class of similarly-situated persons against the City of Toledo and the Toledo City Council (hereinafter "City") challenging the City's alleged pattern or practice of discrimination against adult residential care facilities for persons with disabilities in violation of the Fair Housing Act, 42 U.S.C. § 3604, the Rehabilitation Act, 29 U.S.C. § 794, the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Fourteenth Amendment, and O.R.C. § 4112. Family Tree Home, Ltd., another adult residential care facility, intervened in the Advanced Living case. Class certification has been denied by the Court.

    2. Plaintiffs Association for Retarded Citizens and Consumers' Union of Lucas County filed their action against the City of Toledo, the City Council, Carleton Finkbeiner in his official capacity as mayor of Toledo, and the Toledo-Lucas County Plan Commission alleging violations of the Fair Housing Act of 1988, the Rehabilitation Act of 1974, the Civil Rights Act of 1981, the Americans with Disability Act, the Equal Protection Clause of the United States Constitution, and the Ohio Civil Rights Statute (O.R.C. § 4112). Plaintiffs, organizations comprised primarily of persons who have disabilities, allege in their complaint that the defendants' enforcement of certain provisions of the Toledo Municipal Code governing "group homes" constitutes illegal discrimination.

    3. Plaintiff United States brought its action against the City of Toledo and Toledo City Council on September 2, 1998, pursuant to section 814 of the Fair Housing Act, 42 U.S.C. § 3614, on referral by the Department of Housing and Urban Development (HUD) of two complaints that the defendants had engaged in discriminatory zoning practices against persons with disabilities. See 42 U.S.C. § 3610(g)(2)(C). The HUD complaints were filed by Advanced Living, Inc., and Family Tree Home, Ltd. The United States' complaint alleged that the City required Advanced Living and Family Tree Home to obtain special use permits to operate their homes, and that it violated the Fair Housing Act by doing so, because a similar group of persons without disabilities living together as a family unit would not have been required to seek a permit.

      The United States further alleged in its complaint that the City's prohibitive spacing and density restrictions found at section 1117.01 of the Toledo Municipal Code, which are imposed on group residences for persons with disabilities, unlawfully restrict such group homes from locating in single family residence districts, thus treating dwellings for persons with disabilities disparately than dwellings for persons without disabilities. The United States' complaint alleged that such actions constitute a pattern or practice of discrimination and a denial to a group of persons of rights protected by the Act, within the meaning of 42 U.S.C. § 3614(a).

    4. The City has denied these allegations and all wrongdoing and liability is expressly denied by the City.

  2. PURPOSES OF SETTLEMENT AGREEMENT AND ORDER

    1. Advanced Living, Family Tree Home, Association for Retarded Citizens, Consumers' Union of Lucas County, the United States, and the City of Toledo (the "parties" herein) desire to fully and finally resolve their disputes, and have entered this Settlement Agreement and Order for the following purposes:

      1. To ensure that the City complies with federal and state fair housing and civil rights laws in their contact with, evaluation of, and decision making concerning residential facilities housing "handicapped persons," as that term is defined in the Fair Housing Act, 42 U.S.C. § 3602(h) (hereinafter referred to as "persons with disabilities").

      2. To ensure nondiscriminatory enforcement of all zoning and building code requirements, including the provision of reasonable accommodations when such accommodations may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling;

      3. To provide injunctive relief in furtherance of the public interest; and

      4. To provide appropriate monetary relief.

      Therefore, based on the foregoing representations of the parties, it is hereby ORDERED, ADJUDGED, and DECREED as follows:

  3. JURISDICTION, SCOPE, AND TERM OF ORDER

    1. The parties have consented to the entry of this Settlement Agreement and Order. To this end, the parties stipulate and the Court finds that this Court has personal jurisdiction over defendants and jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, 1367(a), 2201, and 2202.

    2. The provisions of this Settlement Agreement and Order shall apply to the City of Toledo, its employees, agents, anyone acting under their direction, and all those acting in concert or participation with any of them.

    3. This Settlement Agreement and Order is effective immediately upon it entry by the Court and shall be effective for a period of three (3) years from its date of entry. The Court shall retain jurisdiction of this action for a period of three (3) years after the date of entry of this Settlement Agreement and Order to ensure compliance with its terms.

    4. The Court shall have continuing jurisdiction for said three (3) year period over the parties hereto to make any and all such orders as may be proper and necessary to approve, effectuate, consummate, implement, and enforce, on a continuing basis, the terms and conditions of this Settlement Agreement and Order. Any dispute, controversy, question, or claim relating to or concerning the interpretation or enforcement of this Settlement Agreement and Order shall be presented to the Court for resolution if the parties to this Settlement Agreement and Order are unable to reach a satisfactory resolution.

    5. Upon final entry of this Settlement Agreement and Order, these actions shall be dismissed subject to the provisions of paragraphs eight (8) and nine (9) above.

  4. GENERAL NONDISCRIMINATION PROVISIONS

    1. The City of Toledo, its employees, agents and successors, and all those acting under their direction, and all those acting in concert or participation with any of them, are hereby prohibited from:

      1. Making unavailable or denying a dwelling to any buyer or renter because of a handicap of--

        1. that buyer or renter;

        2. a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

        3. any person associated with that buyer or renter;

      2. Refusing to make reasonable accommodations in rules, ordinances, regulations, policies, practices, or services when such accommodation may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling; and

      3. Engaging in any conduct which violates the Fair Housing Act, 42 U.S.C. §§ 3601-3619, by discriminating against persons on the basis of handicap in the enactment or enforcement of any ordinance, regulation, or restriction.

  5. INJUNCTIVE PROVISIONS

    1. The City of Toledo shall, at the earliest date on which it can lawfully do so, repeal those portions of its zoning ordinance, set out at Attachment A, which impose differential treatment between living arrangements for persons with disabilities and other single family uses permitted under the City's resolutions and regulations. More specifically, the City shall repeal those portions of its Zoning Ordinance which impose spacing, density, and neighborhood contact requirements on group homes for persons with disabilities.

    2. In order to promote equal housing opportunity within the City of Toledo, the City shall apply zoning and land use criteria and building codes in a manner which will allow for the making of reasonable accommodations that may be necessary to afford persons with disabilities equal opportunity to use and enjoy dwellings. The City shall further follow an objective, uniform, and nondiscriminatory processing procedure for review of special use permit applications for dwellings to be occupied by or intended or designed to be occupied by persons with disabilities.

    3. Within 90 days of the date of this Settlement Agreement and Order, the City of Toledo shall:

      1. Draft, implement, and adhere to objective, uniform, and nondiscriminatory Special Use Permit Application Procedures and Guidelines ("SUP Procedures") that summarize the Toledo Municipal Code provisions regarding group homes in plain terms;

      2. Distribute copies of the SUP Procedures to all persons who contact the City concerning residential facilities for persons with disabilities.

    4. The City of Toledo shall consult with counsel for plaintiffs concerning the SUP Procedures and provide plaintiffs' counsel with a copy of such procedures prior to their final adoption. Plaintiffs' counsel shall have 30 days from their receipt of such procedures to lodge their objections thereto with counsel for the City. If an objection is made, the parties shall confer in an effort to resolve their differences. If they are unable to do so, the dispute may be submitted to the Court for resolution.

    5. If, during the term of this Settlement Agreement and Order, the City of Toledo proposes to change the special use permit procedures enacted pursuant to paragraphs 14 and 15, or proposes to make any other changes to the zoning ordinance which apply to group homes or other congregate living arrangements,(1) the City shall first provide the plaintiffs' counsel with a copy of the proposed changes. Plaintiffs shall have 30 days from the date the proposed changes are delivered to them in which to respond to any such proposed change. If no plaintiff objects to the City's proposal within this 30-day period, the changes shall be made a part of this Settlement Agreement and Order, and the changes shall be effectuated. If an objection is made to the City's proposal by one or more plaintiffs, the changes shall not be effected. The parties shall confer in an effort to resolve their differences. If they are unable to do so, the dispute may be submitted to the Court for resolution. Defendants shall have the burden of proving that the proposed changes are consistent with the purpose and terms of this Settlement Agreement and Order. If the proposed changes apply specifically to group homes or other congregate living arrangements for persons with disabilities, the defendants shall bear the burden of proving that such changes are specifically warranted by the unique and specific needs and abilities of persons with disabilities and are directly related to the health and safety of the persons with disabilities, in addition to proving that such changes otherwise comply with this Settlement Agreement and Order.

  6. COMPLIANCE, TRAINING AND NOTIFICATION PROVISIONS

    1. Within 30 days of the date of entry of this Settlement Agreement and Order, the City of Toledo shall provide a copy of this Settlement Agreement and Order to each elected and appointed official, officer, and employee who is involved in the inspection, review, approval, and/or permitting and certification of housing for persons with disabilities, specifically including, but not limited to, all inspectors in the Building and Fire Departments, supervisory personnel in the City's Division of Building Inspection, and members and staff of the Plan Commission, City Council, and Board of Building Appeals. Said persons are listed at Attachment B.

    2. Each elected and appointed official, officer, and employee listed at Attachment B who is hired or retained, appointed, or otherwise becomes involved in, the inspection, review, approval, and/or licensing of housing for persons with disabilities during the term of this Settlement Agreement and Order shall receive a copy of this Order within 30 days after the commencement of such agency or employment or assumption of job duties.

    3. Within 90 days of the entry of this Settlement Agreement and Order, the City of Toledo shall provide training sessions for all agents and employees listed at Attachment B. The training shall include at least the following items: (a) instruction on the requirements of all applicable state and federal fair housing laws; (b) a review of the specific requirements of the City's special use permit procedures and this Settlement Agreement and Order; (c) instruction in procedures designed to ensure that disability does not inappropriately enter into the process of providing inspection and licensing services; (d) discussion of general issues affecting persons with disabilities; and (e) a question and answer session to review each of the foregoing areas.

    4. The City of Toledo shall arrange for the foregoing training session to be provided through an outside entity knowledgeable in these areas. The presenters may include attorneys from the City Law Department, but not to the exclusion of the outside entity. The City shall ensure that attendance to the greatest extent possible of all applicable elected and appointed officials, officers, and employees. Affected City officers and employees shall be required to attend. Affected elected and appointed officials shall be invited and encouraged to attend. The expense of the training shall be borne by the City separate and apart from any funds set aside under the terms of this Settlement Agreement and Order.

  7. RECORD-KEEPING AND REPORTING PROVISIONS

    1. Beginning 30 days after the date of entry of this Settlement Agreement and Order and continuing for the duration of this Order, the City of Toledo shall preserve and maintain the following records with respect to the inspection, review, approval, and/or licensing of housing for persons with disabilities:

      1. Copies of all inspection reports for, or citations issued regarding, all dwellings occupied by persons with disabilities;

      2. Copies of all applications for special use permits for dwellings housing persons with disabilities;

      3. Copies of all staff reports, memoranda and other internal documents regarding applications for special use permits for dwellings housing persons with disabilities;

      4. Copies of all written communications provided to group homes for persons with disabilities;

      5. Tapes and transcripts of all proceedings before the Plan Commission, City Council, or Board of Appeals involving or concerning dwellings to be occupied by persons with disabilities.

    2. The City of Toledo shall make available to plaintiffs for inspection and copying the records described in this Section upon reasonable notice. Plaintiffs shall attempt to minimize any inconvenience during the inspection and copying of such records.

    3. The City of Toledo shall provide plaintiffs' counsel with the following reports no later than ten days after the close of the specific period:

      1. Sixty days from the date of entry of this Settlement Agreement and Order, the City shall submit a report indicating the steps taken to date to comply with Paragraphs 12, and 17 through 21 of this Order; and

      2. Every six months for the duration of this Order, the City shall provide a report containing the following information for each special use permit application submitted by a dwelling housing persons with disabilities received during the period: (1) the identity and address of the applicant, the date of the application, and the type of disability in issue, if known; (2) the address of the property, the zoning district, the applicable zoning restrictions; (3) the accommodation requested (if any); and (4) actions taken by the City and the date(s) thereof.

    4. The City of Toledo shall use its best efforts to identify and maintain a record of all non-anonymous oral and written complaints concerning the permitting, certifying, and inspecting of housing for persons with disabilities. The City shall notify plaintiffs in writing within 30 days of the receipts by the City of any such complaints and any action taken. This notification shall include full details of the complaint and any action taken by the City, and shall be accompanied by all pertinent documents.

  8. MONETARY RELIEF, ATTORNEYS' FEES AND COSTS

    1. Within 60 days of the date of final entry of this Settlement Agreement and Order, the City shall pay the sum of Fifty-eight thousand dollars ($58,000) to Advanced Living, Inc., the sum of Seventeen thousand five hundred dollars ($17,500) to Family Tree Home, Ltd., the sum of Ten thousand ($10,000) to Association for Retarded Citizens, and the sum of Ten thousand ($10,000) to Consumers' Union of Lucas County, as payment for damages, attorneys' fees and/or costs incurred in connection with their treatment by the City. Said amounts shall be made payable to counsel for named plaintiffs on the plaintiffs' behalf.

  9. REMEDIES FOR NON-PERFORMANCE

    1. The parties shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Settlement Agreement and Order prior to bringing such matters to the Court for resolution. However, in the event of a failure by the City of Toledo, whether willful or otherwise, to perform in a timely manner any act required by this Order or otherwise to act in violation of any provision thereof, counsel for plaintiffs may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and attorneys' fees which may have been occasioned by the City's violation or failure to perform.

  10. TIME FOR PERFORMANCE, INTERPRETATIONS, AND DEFINITIONS

    1. The parties shall have the right to seek relevant modifications of the Settlement Agreement and Order to ensure that its purposes are fully satisfied. If the parties are unable to reach mutual agreement concerning a particular modification, the burden of proof concerning the propriety of modification falls on the party so moving. Any time limits for performance imposed by the Order may be extended by mutual agreement of the parties.

  11. SETTLEMENT AND DISMISSAL OF CLAIMS

    1. This Settlement Agreement and Order constitutes a compromise of disputed claims and agreement on the terms and payments specified herein does not constitute an admission of liability for any violation of state or federal law.

    2. This Settlement Agreement and Order is in full and final settlement of any and all claims that were asserted or could have been asserted in the complaints filed by Advanced Living, Inc. and Family Tree Home, Ltd., in Case No. 3:97 CV 7245, and HUDALJ Nos. 05-97-0287-8 and 05-97-0720-8, by the Association for Retarded Citizens and the Consumers' Union of Lucas County, Case No. 3:97 CV 7291, and all claims that were asserted by the United States of America, Case No. 3:98 CV 7516.

ORDERED this ________ day of ________________, 1999

____________________________
DAVID A. KATZ
UNITED STATES DISTRICT JUDGE

The undersigned consent to the foregoing terms of the

Settlement Agreement and Order:

FOR DEFENDANTS:
Edward M. Yosses (0014728)
James G. Burkhardt (0018636)
City of Toledo Dept. of Law
One Government Center
Suite 2250
Toledo, Ohio 43604-2293
(419) 245-1020

FOR PLAINTIFF ADVANCED LIVING, INC.:
William B. Senhauser(0066236)
J. Mark Finnegan (0032491)
Equal Justice Foundation
520 Madison Avenue, Suite 1026
Toledo, Ohio 43604
(419) 246-1000

FOR PLAINTIFF UNITED STATES:
Robert S. Berman
Clay G. Guthridge
U.S. Department of Justice
Attorneys
Civil Rights Division
P.O. Box 65998
Washington, D.C. 20035
(202) 514-4713

FOR PLAINTIFF-INTERVENOR FAMILY TREE HOME, LTD.:
C. Thomas McCarter (0012986)
Newcomer & McCarter
421 N. Michigan, Suite D
Toledo, Ohio 43624
(419) 255-9100

FOR PLAINTIFFS ASSOCIATION FOR RETARDED CITIZENS and CONSUMERS' UNION OF LUCAS COUNTY:

Rosemarie A. Barciz (0023119)
Kathleen Brockel
Advocates for Basic Legal Equality
740 Spitzer Bldg.
Toledo, Ohio 43604
(419) 255-0814

1. This provision does not apply to any changes agreed to by the parties prior to the filing of this Settlement Agreement and Order.