UNITED STATES OF AMERICA,
nbsp; CASE No. CV02-493-S-EJL
CITY OF PAYETTE, IDAHO,
Defendant CONSENT DECREE
- The United States filed this case pursuant to Section 814(a) of the Fair Housing Act, as amended, 42 U.S.C. §3614(a), ("Act") which authorizes the Attorney General to initiate a lawsuit in federal court whenever he has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by the Fair Housing Act, or that any person or group of persons has been denied any such rights and such denial raises an issue of general public importance. In its complaint, the United States alleged that defendant City of Payette ("City") violated the Fair Housing Act, 42 U.S.C. §3604(f), by making housing unavailable on the basis of handicap. Specifically, the United States contends that the City discriminated on the basis of handicap in violation of the Act when it refused to authorize operation of a small group home intended to provide housing and limited board for recovering drug addicts and recovering alcoholics.
- The United States contends that, were this case to go to trial, the evidence would show that:
- The City denies any violation of the Fair Housing Act and the allegations of discrimination. The City contends that if the matter went to trial the evidence would show that the City's action was justified because Harbor House would add traffic, population and noise to a residential neighborhood. The City Council made written findings that the c.u.p. was not approved because the group home is a commercial venture not permitted in a residential zone, because the group home would not be "harmonious" with the city's comprehensive plan, and because the group home would substantially impact the surrounding neighborhood.
- The parties, desiring that this action be settled by appropriate consent decree and without the burden of protracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter of this action. Subject to the Court's approval of this Consent Decree, the parties waive a hearing and findings of fact and conclusions of law on all issues, and further agree to the entry of this Decree as final and binding between themselves as to the issues raised in the United States' complaint filed in this case and the matters resolved in this Decree.
- This Decree, being entered with the consent of the parties, shall not constitute an adjudication or finding on the merits of the case, nor be construed as an admission by the City or a finding of any wrongdoing or violation of any applicable federal or state law or regulation.
In the summer and fall of 2001, Wilma Sue Keith ("Keith") sought to open and operate a group residence called "Harbor House" in Payette. The purpose of Harbor House was to house and counsel persons recovering from alcohol and drug dependency. Harbor House was to be operated from a single-family residence owned by Keith and her husband Glenn, located in Payette at 355 Third Avenue North.
City officials told Ms. Keith that she would need a conditional use permit (c.u.p.) before she could open Harbor House, so she applied for one.
On or about June 28, 2001, the Payette Planning and Zoning Commission denied Keith's application for a c.u.p. On or about August 6, 2001, the Payette City Council held a public hearing on Keith's application to operate Harbor House. At the hearing, Keith explained that Harbor House would forbid drug or alcohol use, and its residents would be former alcoholics or drug addicts who were recovering from their addiction. Area residents who attended the hearing, as well as the earlier Planning and Zoning Commission meeting, made numerous comments indicating opposition to the proposed group home based on the fact that the prospective residents of the home would be persons with disabilities.
City council members, as indicated by their questions and comments, likewise opposed the group home because the prospective members of the home would be persons with disabilities. At the conclusion of the hearing, the City Council voted to deny Keith's application for a c.u.p.
The City Council's official findings assert that the c.u.p. was not approved because the group home is a commercial business not permitted in a residential zone, because the group home would not be "harmonious" with the city's comprehensive plan, and because the group home would harm the surrounding neighborhoods by adding traffic, population and noise. These professed reasons for denying the c.u.p. are pretextual. The City Council has, previously and subsequently, permitted commercial businesses in residential zones. In addition, Idaho law permits a group home to operate in a residential zone without a c.u.p. Idaho Code §§ 67-6531(a) and 67-6532(b) (Michie 1995)(defining certain group homes as "single family homes" and forbidding localities from requiring c.u.p.'s for those homes, unless also required for single family homes).
On or about December 3, 2001, the Payette City Council again considered the Harbor House application, this time amended to house four recovering alcoholics and drug addicts, and again the City Council denied the c.u.p.
The defendant's refusal to issue a c.u.p. prevented Keith from establishing and operating the proposed group home. The defendant's actions in refusing to issue a c.u.p. were taken on account of the handicapped status of the prospective residents of the group home, in violation of 42 U.S.C. §§ 3604(f)(1), and 3604(f)(2).
Payette does not require single-family dwellings in A-Residential neighborhoods to obtain a c.u.p.
The parties fully anticipate that the provisions of the Order shall ensure that the defendants do not engage in any future violation(s) of the Fair Housing Act. However, the parties agree that in the event that the defendants do engage in any future violation(s) of the Fair Housing Act, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. §3614(d).
The parties jointly enter into and file this Consent Decree. Accordingly, they AGREE, and the Court ORDERS, as follows:
I. GENERAL INJUNCTIVE RELIEF
- The City, its employees, agents, assigns and anyone acting in concert or participation with it, shall not:
- Discriminate in the sale or rental of, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of:
- Discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of:
(1) that person;
(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 person.
- Otherwise discriminate or deny or make housing unavailable on the basis of handicap in violation of the Fair Housing Act.
(1) that buyer or renter;
(2) a person residing in or intending to reside in that dwelling after it is made available; or
(3) any person associated with that buyer or renter;
For the purposes of this paragraph, the terms "discriminate," "otherwise make unavailable" and "deny" refer to what the term "discrimination" includes under Section 804(f)(3) of the Fair Housing Act, as amended, 42 U.S.C. §3604(f)(3), including any refusal to make housing available on the basis of handicap, and/or any refusal to make accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling.
II. SPECIFIC INJUNCTIVE RELIEF
The City shall take the following steps to afford Mr. and Mrs. Keith the opportunity to operate Harbor House:
- After being advised that this suit would be filed, the City informed Ms. Keith that she was allowed to open and operate Harbor House.
- Harbor House shall be allowed to open and operate at 355 Third Avenue North with up to eight handicapped residents and this permission shall not be revoked for any reason that violates the Fair Housing Act. The City reserves the right to assure that Harbor House is operated according to all codes and other legal requirements, such as the UBC and UFC, provided, however, that the City shall not enforce any legal restriction in a manner that discriminates against Harbor House, its residents, or persons associated with those residents, on the basis of handicap.
- Within ninety (90) days after the entry of this Consent Decree, all Payette City Commissioners and all members of Payette's Planning and Zoning Commission and all Payette employees who enforce city housing codes shall complete an educational program, to be conducted by a person or organization qualified to conduct fair housing training (to be approved by the United States) at the City's expense, that shall include the following:
- Informing each individual of his or her duties and obligations under this Consent Decree as well as under the federal Fair Housing Act;
- Providing a copy of the federal Fair Housing Act to each individual;
- Providing a question and answer period to review the federal Fair Housing Act;
- Securing the signed statement described in Attachment A from each individual indicating that he or she has received, read and understands this Consent Decree and that further violations of this Decree may result in sanctions against the defendant by the Court; and
- Providing certification of attendance by the person conducting the educational program for each person attending the program;
III. MONETARY RELIEF FOR AGGRIEVED PERSONS
Within 60 days of the entry of this Consent Decree, defendant City shall pay the sum of Fifteen Thousand Dollars ($15,000) to Sue Keith and Glenn Keith, owners and managers of Harbor House.
IV. CIVIL PENALTIES
The City shall pay the sum of Five Thousand Dollars ($5,000) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C) and 42 U.S.C. § 12188(b)(2)(C) within sixty (60) days of the date of entry of this Consent Decree by submitting to counsel for the United States a check made payable to the order of the United States of America. (1)
V. REPORTING, RECORD KEEPING AND DURATION
- This Consent Decree is effective immediately upon its entry by the Court and shall remain in effect for three (3) years from the date of entry.
- During the pendency of this Decree, the City of Payette shall advise counsel for the United States of each application or request for a land use permit or zoning approval received by the City of Payette that relates to any request for a conditional use permit for a group home for persons with disabilities, or similar request. Notice of each application shall be submitted to counsel for the United States within thirty (30) days of the City of Payette's receipt of the request or application. After receiving such notice, if the United States determines that additional information is necessary in order to assess the information provided in the report, the United States shall make a request in writing to counsel for the City of Payette and the City of Payette shall provide such information to counsel for the United States within thirty (30) days of receipt of the request.
- During the pendency of this Decree, the City of Payette shall retain all records relating to implementation of all provisions of this Decree. The United States shall have the opportunity to inspect and copy any such records after giving reasonable notice to the City of Payette.
VI. DISPUTE RESOLUTION AND REMEDIES
Upon any failure by the City, whether willful or otherwise, to perform in a timely manner any act required by this Consent Decree, or in the event of any other material act by the City violating any provision of this Consent Decree, the United States may move this Court to impose any remedy authorized by law or equity, including but not limited to an order requiring performance of an act, deeming an act to have been performed or awarding any damages, costs and/or attorneys' fees which may be occasioned by the City's violation of this Consent Decree.
Notwithstanding the foregoing, the parties shall endeavor in good faith to resolve informally any difference regarding the interpretation of, or compliance with, this Consent Decree prior to bringing such matters to the Court for resolution.
It is hereby ORDERED, ADJUDGED and DECREED this ______ day of _________________, 2003.
The undersigned agree to and request the entry of this consent decree:
|J. MICHAEL WIGGINS|
Acting Assistant Attorney General
| ____________________________ |
BERT L. OSBORN
City of Payette
P.O. Box 158
26 South 9th Street
Payette, Idaho 83661
STEVEN H. ROSENBAUM
TIMOTHY J. MORAN
ALLEN W. LEVY
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement
Section (G St.)
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
OF CONSENT ORDER AND TRAINING ON THE FAIR HOUSING ACT
I, ______________________________, hereby acknowledge that I have received training on the requirements of the Fair Housing Act, 42 U.S.C. §§ 3601-19, and that I have read the Consent Order entered by the United States District Court for the District of Idaho in United States v. City of Payette, Idaho, CV02-493-2-EJL.
I understand my obligation not to discriminate on the basis of race, color, national origin, disability, religion, sex or familial status in violation of the Fair Housing Act.
I agree to comply with the Fair Housing Act and the Court's Order. I fully understand my legal obligations under the Fair Housing Act and the Order, and I am aware that my failure or refusal to adhere to them could result in sanctions against the City of Payette.
Sworn to and subscribed before me
this ___ day of _______, _____.
My commission expires ___________________.
1. All items sent to counsel for the United States under the terms of the Consent Decree shall be sent via overnight delivery service to Steven H. Rosenbaum, Chief, Housing and Civil Enforcement Section, Suite 7002, 1800 G Street, N.W., Washington, D.C. 20006 or to such other address as the United States may designate in the future.
Document Entered: September 15, 2003