Agenda - Planning Commission - 05/03/2018

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Zoning Bulletin April 10, 2018 I Volume 12 I Issue 7 The City contended that the Plaintiffs' injunction should be denied because the Plaintiffs had failed to demonstrate a reasonable likeli- hood of success on the merits. A court will only grant a preliminary injunction after a two-party analysis, involving a threshold phase and then a balancing phase. To survive the threshold phase, a party seeking a preliminary injunction must satisfy three requirements, one of which requires a showing that "its claim has some likelihood of succeeding on the merits." Here, the district court rejected the City's argument that the Plaintiffs failed to make such a showing. The court granted the Plaintiffs' motion for a preliminary injunction, finding that the Plaintiffs possessed a reasonable likelihood of success under both a theory of disparate treatment and a theory of reasonable accommodation. The City appealed. DECISION: Judgment of district court affirmed. Focusing on the Plaintiffs' reasonable accommodation claim, the United States Court of Appeals, Seventh Circuit, held that the Plaintiffs had shown a "better than negligible" likelihood of success on the merits of their reasonable accommodation theory, and therefore were entitled to a grant of a preliminary injunction, to enjoin the City from instituting eviction proceedings against the Hovey home residents during the pendency of the case. In so holding, the court explained that the FHA applies to munici- pal zoning decisions, and the FHAA "requires public entities to rea- sonably accommodate a disabled person by making changes in rules, policies, practices or services as is necessary to provide that person with access to housing that is equal to that of those who are not disabled." More specifically, noted the court, "[t]he FHAA requires accommodation if such accommodation (1) is reasonable, and (2) necessary, (3) to afford a handicapped person the equal opportunity to use and enjoy a dwelling." The court explained that "[a]n accom- modation is reasonable if it is both efficacious and proportional to the costs to implement it," but is unreasonable if it "imposes undue financial or administrative burdens or requires a fundamental altera- tion in the nature of the program." Here, the court found that the CPU sought by the Plaintiffs would afford the Hovey home residents an equal opportunity to establish a residential home. Since a community -based residential facility is often the "only means by which disabled persons can live in a resi- dential neighborhood," the court said that "[w]hen a zoning author- ity refuses to reasonably accommodate these small group living fa- © 2018 Thomson Reuters 5