United States District Court, E.D. Pennsylvania
April 1, 2004.
COMMUNITY SERVICES GROUP, Plaintiff
WIND GAP MUNICIPAL AUTHORITY, Defendant
The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
MEMORANDUM AND ORDER
Community Services Group, Inc. ("CSG") provides caretaker services to
three handicapped women who live together in a home in Wind Gap Borough.
Wind Gap Municipal Authority ("Authority") provides sewer services to
that home. The plaintiff alleges that the defendant violated the Fair
Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601, et seq.,
by charging increased fees to and imposing additional administrative
requirements on the home on the ground that the home is a "personal care
Both parties have filed motions for summary judgment. The Court held a
hearing on February 13, 2004 and will grant the plaintiff's motion for
summary judgment and deny the defendant's motion for summary judgment.
The Court holds that the regulation discriminates against persons who
need "personal care." Because these persons by definition are
handicapped, the regulation violates the FHAA. I. Undisputed Facts
The following facts are undisputed, unless indicated otherwise.
A. The Home at 250 East First Street
In 1965, Cindy A.'s family built a single-story three-bedroom home at
250 East First Street, Wind Gap, Pennsylvania. The house is surrounded by
other residential homes in a residential community in Wind Gap Borough.
Pl.'s Mot. for Summ. J. and Supporting R. ("Pl.'s SJ") at 11, 38.
Cindy A. lived there with her family until her mother moved to a
nursing home in 1999. Pl.'s SJ at 38. In 1995, Cindy's family established
the Abel Family Trust ("Trust") for the benefit of Cindy, who was born
with Down's Syndrome and has mental retardation. The Trust was
established to ensure her care as she and her mother grew older. Cindy
and her three siblings are the beneficiaries of the Trust. Pl.'s SJ at
38-39; Def.'s Mot. for Summ. J. ("Def.'s SJ") at Ex. G.
When the Trust was established, Cindy's mother's health was failing and
Cindy required assistance with her daily activities. Northampton County
Agencies funded in-home services to Cindy and her mother. In 1997, the
in-home services increased because of Cindy's mother's health. In
November 1999, Cindy's mother moved to a nursing home. Cindy continued to
live at the house with the assistance of a full-time caretaker, provided
through the Northampton County Mental Health and Mental Retardation
Program ("MH/MR") and family funds. Pl.'s SJ at 39.
In 2000, Cindy's family and MH/MR explored the possibility of having
other women with disabilities move into the home with Cindy to allow
Cindy to live in the home. They ultimately determined that two other
women, Cassie and Linda, would move in permanently with Cindy. The three
women, who are adults in their forties and fifties, have mental
retardation which substantially limits their ability to learn, work,
communicate, and care for themselves. Due to their physical and cognitive
disabilities, the women need assistance with their daily life activities
in order to live in the community. The women receive services from one
human services agency in order to save MH/MR's limited resources and to
allow the three women to live in a home as the functional equivalent of a
family. Pl.'s SJ at 11-12, 39-40, 53-54.
MH/MR does not provide direct care services to individuals with mental
retardation. It contracts with human services agencies to provide these
services pursuant to county, state, and federal requirements and
protocols. Without these agencies, MH/MR would be unable to fulfill its
legal obligations and provide the necessary services to its clients with mental
retardation. MH/MR has contracted with CSG for the last 25 years. Pl.'s
SJ at 10-11, 52-53.
CSG is a for-profit corporation that provides both residential and
non-residential services to persons with disabilities in Northampton
County and other counties in the Commonwealth of Pennsylvania. CSG's
mission is to promote the growth and enhance the potential of people with
disabilities. Pl.'s SJ at 10-11, 52-53.
MH/MR contracts with CSG to provide support and services to individuals
with mental retardation in their daily activities to permit them to live
in residential homes. MH/MR determined that CSG would provide caretaker
services to the three residents at East First Street. Pl.'s SJ at 11,
52-53; Def.'s SJ at Ex. C.
As part of coordinating and providing caretaker services to the three
women at the house, CSG entered into a lease agreement with the Trust.
CSG and MH/MR worked with Cindy, Cassie, and Linda and their families to
complete the necessary paperwork needed to arrange for the provision of
caretaker services. CSG and MH/MR are required by state and federal law
to document the services and funding sources. The completion of the
paperwork and the lease agreement was part of the process necessary to
enable the three women to live together as a household at 250 East First Street with the necessary caretaker
assistance. The lease agreement provided that CSG would pay the Trust
$11,400 annually. Pl.'s SJ at 11, 54; Def.'s SJ at Ex. H.
Cassie and Linda moved into the house on or about December 29, 2000 and
have lived there since that time. Pl.'s SJ at 40.
C. The Current Use of the Home
Cindy, Cassie, and Linda live in the house at 250 East First Street
together as a family unit. They have developed a strong sense of family
and intend to continue living in the home together. Each has her own
bedroom decorated with personal belongings, and they all share the common
areas of the home. Pl.'s SJ at 11-12.
On weekdays, the women typically wake up at 6:00 a.m. and get ready for
the day. They eat breakfast together at around 7:00 a.m. in the kitchen.
They leave for the day at 8:00 or 9:00 a.m. to attend a day program
and/or a vocational rehabilitation program. When the women return for the
day in the afternoon, they engage in normal leisure activities and
errands, e.g., nap, walk, shop, or talk with each other. They go food
shopping, eat dinner, and help clean up together. After dinner, the women
each do as they please, e.g., they might watch television, play games, go
on walks, go to the mall, or talk. They bathe later in the evening, receiving assistance from a caretaker according to their
needs. Pl.'s SJ at 12, 16-20, 464-67.
On weekends, the women sometimes visit family or have family members
and friends visit them at their home. There are no regulations or
conditions regarding the number, frequency, or timing of visitors. Cindy,
Cassie, and Linda celebrate holidays together at home throughout the
year. At Christmas, for example, they decorate a tree and exchange
Caretakers from CSG assist Cindy, Cassie, and Linda with their
day-to-day activities, such as bathing, food preparation, and
housecleaning, so that the women are able to live in a residential home.
The caretakers use the mini-van parked in the garage to drive the women
to appointments or to various leisure activities. Cindy, Cassie, and
Linda do not require or receive clinical care, therapy, rehabilitation or
other similar services at the home. Pl.'s SJ at 16-20, 466.
The caretakers are not present in the home from 9:00 a.m. until 3:00
p.m. when the residents are not home, unless a resident has remained home
for some reason. One overnight caretaker stays in the house from
approximately 11:00 p.m. until 9:00 a.m. The overnight caretaker does not
sleep at the house. During other hours, there are generally two
caretakers and sometimes one caretaker present. About once a month there
is a two hour meeting attended by the staff who work in the home and
their supervisor. Pl.'s SJ at 17, 464-67.
D. The Authority and the Authority's Regulation
The Authority provides sewer services to residential and commercial
properties in Wind Gap Borough and in two other local municipalities. The
Authority's Rules and Regulations Governing Sewer Service When Obtained
from Sewer System of Wind Gap Municipal Authority ("Regulations") contain
the rules for determining the number of sewer billing units. Pl.'s SJ at
Residential homes in Wind Gap Borough are charged a single equivalent
dwelling unit ("EDU") regardless of actual sewer usage for the house.
Sewer charges and rates do not change when individuals move in and out of
a residential home. The number of people living in a residential unit or
the fact that a unit is a rental property does not change the residential
classification of a single family home. Pl.'s SJ at 101-03, 116.
The Authority revised its regulations in September of 2001. The
regulations in existence prior to the revisions governed the Authority's
reclassification of the home. Section 9.02 of the original regulations
entitled "Residential Units" stated that one sewer billing unit fee
"shall be charged to and collected from the Owner of each connection unit
for each residential Sewer Billing Unit, whether constructed as a private
dwelling unit, a dwelling unit in a double condominium or in any other
multiple dwelling or multiple use structure." Pl.'s SJ at 195; Tr. of
Feb. 13, 2004 Hr'g at 4.
Section 9.03 entitled "Commercial Units" stated that sewer fees "shall
be charged to and collected from the Owner of each connection unit
containing non-residential Sewer Billing Units as set forth in the
following classification or schedule. . . ." The regulation then listed a
number of classifications. For example, the "house, apartment or
condominium" classification was charged one EDU per individual unit. The
"Hotel or Motel, Nursing Home, Personal Care Home or Boarding House
(without Restaurant or Bar, Dining or other Business)" was charged "1
EDU per residence plus 1 EDU per 2 guest rooms plus 1 EDU per 20
restaurant bar or dining facility seats. . . ."*fn1 The Regulations
do not define the term "commercial." Pl.'s SJ at 195.
The September 17, 2001 regulations ("Revised Regulations") contain
slightly different classifications. Non-residential sewer billing units
are charged as set forth in the following classifications: home based
business, commercial residential establishment, other commercial establishment, and
church. "Commercial residential establishment" is defined as a
non-exclusive list, including "hotel or motel, nursing home, personal
care home, boarding house, assisted living or any similar facility."
Pl.'s SJ at 144.
E. The Authority's Actions Regarding CSG and the Home at 250
East First Street
On or about September 13, 2000, CSG obtained zoning approval from the
Wind Gap Zoning Hearing Board to allow the three residents to occupy the
home. The Zoning Hearing Board found that the residents would be living
together in a family-like manner. The Zoning Hearing Board, through the
Borough of Wind Gap, subsequently notified the Authority that three
individuals with mental retardation would be living at 250 East First
Street. Pl.'s SJ at 117-18, 481.
The Authority then asked Cindy's sister, Constance Altemose, and the
Regional Director for CSG, Margaret Van Schaick, to attend a board
meeting to explain who would be living at the home. In the summer and
fall of 2000, Cindy's sister and CSG's Regional Director addressed the
board. They explained that CSG would provide caretakers to assist the
residents with their daily activities, that the house would be used as a
family residence, and that there would be no change in the use of property. The Authority did not believe that these representations
were inaccurate. Pl.'s SJ at 12, 116, 329, 337.
On October 16, 2000, the Authority sent Cindy's sister a letter
informing her that it was necessary to apply for a sewer connection
permit, submit a feasibility review agreement, and submit a $500 deposit.
Mr. Hahn, the Administrator for the Authority, testified that these
requirements were designed to determine the use of the home. He also
testified that he was unaware of any existing residential customer
already connected to the sewer who was subjected to these requirements.
Pl.'s SJ at 116-17, 292.
On November 9, 2000, CSG submitted a feasibility review agreement,
applied for a sewer connection permit, and submitted the deposit. CSG
included a memorandum with that correspondence which discussed the
requirements of the FHAA and requested a reasonable accommodation under
the FHAA to allow the house to remain classified as residential. Mr. Hahn
wrote to CSG's attorney, stating that the Authority would not consider
the application because the documents were not executed by the deed
owner. Pl.'s SJ at 293-301.
In December 2000, CSG notified the Authority that two individuals with
mental retardation would move into 250 East First Street with Cindy.
Linda and Cassie moved into the house that same month. Pl.'s SJ at 11,
118. The Authority changed the home's classification from residential to
commercial and increased the number of EDU's from one to two in January
of 2001. Pl.'s SJ at 169.
Mr. Hahn testified that the property was classified as commercial both
because CSG was a for-profit company and because it was a personal care
home. Mr. Hahn also acknowledged that residential homes owned by
for-profit, commercial corporations leasing homes to families are charged
at the residential rate, not the commercial rate. Pl.'s SJ at 109-112,
In May 2001, the Authority demanded that the Trust pay a $2100 tapping
fee and again demanded the $500 deposit.*fn2 CSG's attorney wrote to the
Authority requesting that the Authority treat the home as a single-family
residence and explain the tapping fee and the classification of the
property to CSG. CSG also reiterated its request for a reasonable
accommodation. Pl.'s SJ at 307-08. The Authority did not respond to CSG.
CSG continued to pay the increased quarterly sewage bill while
reserving its right to challenge the Authority's actions. In June or July
of 2002, the Authority filed a municipal lien against the property in the
amount of $2200 for the Trust's failure to pay the additional tapping
fee. CSG attempted to obtain an explanation from the Authority. The Authority did not explain the basis of the additional tapping fee.
CSG paid the fee under protest on August 22, 2002 in order to have the
lien removed. As of May 21, 2003, the Authority had not released the lien
on the property. Pl.'s SJ at 122-24, 314, 316-19, 323-25.
The Authority currently classifies the home as commercial and charges
CSG two EDUs per quarter. At this time, the house has a washer/dryer, a
dishwasher, two toilets, sinks, and a bathtub. The women bathe, wash
clothes, and use the facilities in the home like any other family. The
presence of caretakers in the home adds two people to the three residents
who are using water. The average sewage usage at the home is lower than
that of other residential homes in the neighborhood. Both the plumbing
system and the physical connection between the property and the sewer
system have not changed since Cassie and Linda moved into the home. Pl.'s
SJ at 12, 111, 159, 166-70.
CSG filed the complaint in this case in November of 2002. The complaint
alleges that the Authority's actions constitute discrimination in
violation of the FHAA.
In 1968, Congress passed the Fair Housing Act as Title VIII of the
Civil Rights Act to prohibit housing discrimination on the basis of,
among other things, race, gender, and national origin. 42 U.S.C. § 3601, et seq. In 1988, the Act
was amended to extend coverage to persons with handicaps. Id.
The Third Circuit has recognized this expansion as "a clear pronouncement
of a national commitment to end the unnecessary exclusion of persons with
handicaps from the American mainstream." Hovsons, Inc. v. Township
of Brick, 89 F.3d 1096, 1105 (3d Cir. 1996) (citations omitted).
The plaintiff brings this action pursuant to sections 3604(f)(2) and
3604(f)(3)(B) of the FHAA. Section 3604(f)(2) makes it unlawful "to
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 a dwelling, because of a handicap of
. . . a person residing in or intending to reside in that dwelling.
. . ." 42 U.S.C. § 3604(f)(2) (2003). This provision is violated
by both intentional discrimination (also called disparate treatment) and
facially neutral rules with a disparate impact on handicapped
persons.*fn3 See Lapid Laurel, L.L.C. v. Zoning Bd. of
Adjustment, 284 F.3d 442, 448 n.3 (3d Cir. 2002). Section 3604(f)(3)(B), known as the "reasonable accommodations"
provision, prohibits the refusal to "make reasonable accommodations in
rules, policies, practices, or services, when such accommodations may be
necessary to afford handicapped persons [an] equal opportunity to use and
enjoy a dwelling." Id. (citing 42 U.S.C. § 3604(f)(3)(B)).
CSG claims that the Authority's policies and actions constitute both
disparate treatment and disparate impact discrimination.*fn4 CSG also
alleges that the Authority failed to comply with the reasonable
accommodations provision.*fn5 A. Disparate Treatment
A plaintiff can demonstrate disparate treatment by either showing
discriminatory motivation or a facially discriminatory classification.
See Larkin v. Michigan Dep't of Soc. Servs., 89 F.3d 285,
289-90 (6th Cir. 1996). Although CSG argues that there is evidence that
the Authority was motivated by discriminatory animus, the facial
discrimination claim is the basis of its motion for summary judgment.
1. Facial Discrimination
In determining whether a regulation facially discriminates, one must
look to the language of the regulation. Facial discrimination occurs
where "the protected trait by definition plays a role in the
decision-making process, inasmuch as the policy explicitly classifies
people on that basis." See DiBiase v. Smithkline Beecham Corp.,
48 F.3d 719, 726 (3d Cir. 1995) (citations omitted).
The plaintiffs argue that the regulations facially discriminate because
they single out "personal care homes" for higher sewage rates than a
residential home, regardless of the number of residents and the use made
of the property. If the regulations classified on the basis of "homes for
the handicapped," they clearly would be facially discriminatory under the
FHAA. The question before the Court is whether an ordinance that singles out "personal care homes" constitutes facial
discrimination under the FHAA.
One of the earliest cases to grapple with this question was
Horizon House Developmental Servs., Inc. v. Township of Upper
Southampton, 804 F. Supp. 683 (E.D. Pa. 1992), aff'd,
995 F.2d 217 (3d Cir. 1993). In Horizon House, my colleague, Judge
Lowell A. Reed, determined that an ordinance imposing a 1,000 foot
distance requirement between certain homes, including those where
"permanent care or professional supervision is present," constituted
disparate treatment of the handicapped. The court found that the
ordinance's reach coincided with the scope of the FHAA's definition of
handicap. The FHAA defines handicap to include a physical or mental
impairment which substantially limits one or more of a person's major
life activities. The court noted that the words "permanent care" or
"professional supervision" singled out those who are unable to live
independently and are "handicapped" under the FHAA's language. The
opinion also stated that it was irrelevant that the ordinance might
incidentally include other groups of people without handicaps, such as
juveniles or ex-offenders. 804 F. Supp. at 694.
Other courts have followed Judge Reed's lead and invalidated as
facially discriminatory various laws and regulations that do not
explicitly mention the "handicapped" or the "disabled." See Larkin, 89 F.3d at 290 (holding that
a spacing requirement for "adult foster care facilities" was facially
discriminatory under the FHAA); Cmty. Hous. Trust v. Dep't of
Consumer and Regulatory Affairs, 257 F. Supp.2d 208, 222 (D.D.C.
2003) (holding that a regulation classifying persons based upon their
common need for "treatment, rehabilitation, assistance, or supervision in
their daily living" is facially discriminatory); Children's Alliance
v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997) (holding
that an ordinance distinguishing group facilities from families, in part
based on the presence of staff who provide care and assistance with daily
living activities, is facially discriminatory).
This construction of the FHAA is consistent with that statute's goal to
end the unnecessary exclusion of the handicapped from the mainstream.
See Alliance for the Mentally Ill v. City of Naperville,
923 F. Supp. 1057, 1069 (N.D. Ill. 1996) (quoting H.R. Rep. No. 711, 100th
Cong., 2nd Sess., at 18 (1985)); see also City of Edmonds v. Oxford
House, Inc., 514 U.S. 725, 731-32, 737 n.11 (1995). The FHAA's broad
goal would be frustrated if ordinances using proxies for the term
"handicapped" were deemed facially neutral.
The Seventh Circuit recognized this principle when analyzing the use of
proxies for the handicapped in the employment context: We have warned that an employer cannot be
permitted to use a technically neutral
classification as a proxy to evade the prohibition
of intentional discrimination. An example is using
gray hair as a proxy for age: there are young
people with gray hair (a few), but the "fit"
between age and gray hair is sufficiently close
that they would form the same basis for invidious
classification. Similarly, discrimination "because
of" handicap is frequently directed at an effect
or manifestation of a handicap rather than being
literally aimed at the handicap itself. Thus, a
school's exclusion of a service dog has been held
to be discrimination "because of" handicap, and no
doubt a policy excluding wheelchairs would be such
discrimination, even if the stated purpose of the
policy were a benign one.
McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992)
The Third Circuit used this same analysis in examining a policy that
allegedly resulted in age discrimination. In Erie County Retirees
Association v. County of Erie, 220 F.3d 193, 211 (3d Cir. 2000), the
Third Circuit considered whether an employer who offers its
Medicare-eligible retirees health insurance coverage allegedly inferior
to the coverage offered to those not eligible for Medicare violates the
Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
et seq. The Court held that a policy containing a direct proxy
for age, such as Medicare status, involves disparate treatment. The Third
Circuit distinguished this proxy from a case in which the motivating factor years of service merely correlates with age.
Id. (contrasting Hazen Paper Co. v. Biggins,
507 U.S. 604 (1993)).
In applying the analysis of these cases to this regulation, the Court
finds that the classification personal care home
coincides with the FHAA's definition of handicap. Personal care homes
provide professional personal care and supervision. Residents who require
personal care in their homes are not able to live on their own. They
require around the clock assistance with their daily life activities.
These people are by definition limited in their daily life activities.
See 42 U.S.C. § 3602(h).
The Authority's response to the plaintiffs' facial discrimination claim
appears to be that the reclassification of the home was made not only
because it is a personal care home but also because it is being run by a
for-profit licensed corporation. This response came for the first time
during this litigation. During the process of reclassifying the property,
the Authority never explained why it was reclassifying the home and
assessing it additional rates and fees. Nor is there any explanation in
the Minutes of the meetings of the Authority. At his deposition, Mr.
Robert Hahn, the Administrator for the Authority, gave a variety of
explanations for the Authority's actions, including that CSG was
licensed, was a for-profit entity, and used the property like a personal care home. Pl.'s SJ
The Authority's reasoning is unpersuasive for two reasons. First, the
classification does not say that only "for-profit" personal care homes
will be reclassified to commercial. Indeed, the list of commercial
buildings includes schools and churches, not usually "for-profit."
Second, even if the classification only encompassed "for-profit" personal
care homes, it would nonetheless violate the FHAA. "The FHAA does not
require group home providers to give away their services, to operate at a
loss, nor to declare a particular tax status. If it did, there would be
far fewer residences for disabled persons than there presently are."
United States v. City of Chicago, 161 F. Supp.2d 819, 844
(N.D. Ill. 2001) (holding that a ban on for-profit providers of group
homes violates the FHAA).
2. The Authority's Justification
Because the Court finds that the regulations discriminate on their
face, the burden falls on the defendant to justify the discriminatory
classification. The "justification must serve, in theory and practice, a
legitimate, bona fide interest of the . . . defendant, and the
defendant must show that no alternative course of action could be adopted
that would enable that interest to be served with less discriminatory
impact." Resident Advisory Board v. Rizzo, 564 F.2d 126, 149
(3d Cir. 1977); see also Ass'n for the Advancement of the Mentally Handicapped
v. City of Elizabeth, 876 F. Supp. 614, 620 (D.N.J. 1994).
The Authority has not offered a valid justification for treating
personal care homes differently than residential dwellings. The
Authority's purported justification is that it has an interest in
applying rates uniformly to all for-profit customers. As discussed above,
the record does not support the Authority's claim that its classification
system is based on "for-profit" status. Indeed, for-profit home owners
who rent out their homes for profit are charged for one EDU.
In any event, the Authority's definition of personal care home includes
single-family residential dwellings which house a few people living
together as a family. The definition encompasses homes, such as the house
in this case, where there have been no physical changes relating to sewer
usage, where the actual sewer usage for the house is less than other
residential homes, and where fewer individuals live in the home than in
other residential homes. The presence of on-site, awake caretakers in a
residence does not alter the underlying residential use of the property.
Caretakers do not affect sewage usage differently than do live-in
servants or nannies, who do not transform a family residence into a
commercial facility. The Authority has a legitimate interest in using an effective,
efficient rating system to provide sewer services. There are, however,
less discriminatory courses of actions available to it. As the Authority
noted, it has wide discretion to balance various factors in the rate
making process in order to find equitable solutions. Def. SJ at 16-17.
The Authority could implement an efficient rating system without using
discriminatory classifications. It could redraft its regulation by
removing "personal care home" from the face of the regulation, so that
the regulation would not depend on whether residents receive "personal
The Authority could distinguish for-profit properties from non-profit
ones without specifically targeting personal care homes. It could
increase its rates to large institutional facilities. The Authority could
base its rates on the number of persons per square foot, or it could
charge a different rate to single-family residences than to larger
B. Other Claims
Because the Court holds that the regulation at issue constitutes facial
discrimination, it need not decide the plaintiff's other two claims: that
the regulation has a disparate impact on handicapped persons; and that
the Authority failed to comply with the reasonable accommodations
provision of the statute. The Court, therefore, will discuss these two issues
To prevail on a disparate impact claim, a plaintiff must prove that the
defendant's policies or practices have a greater adverse impact on
persons with disabilities than on non-protected persons.
Lapid-Laurel, L.L.C., 284 F.3d at 466-67. "[T]hen the burden
shifts to the defendant to show that it had a legitimate,
non-discriminatory reason for the action and that no less discriminatory
alternatives were available." Id. at 467. The plaintiff can
establish its prima facie case under a disparate impact theory by showing
"(1) the occurrence of certain outwardly neutral practices, and (2) a
significantly adverse or disproportionate impact on persons of a
particular type produced by the defendant's facially neutral acts or
Even if "personal care home" were deemed to be facially neutral, the
classification would have a disproportionate impact on people who suffer
from disabilities. It is such people who live in dwellings with
caretakers. As discussed above, the Authority has not presented any
legitimate, non-discriminatory reason for classifying single-family homes
in which individuals with disabilities live as "commercial" uses for the
purpose of assessing sewer fees.
As to the reasonable accommodation claim, the Authority never responded
to the plaintiff's numerous letters requesting the defendant to waive the higher sewer fees and additional
administrative requirements. Nor is there any explanation in any of the
minutes of the Authority's meetings as to why the Authority did not grant
The plaintiff has carried its burden of showing that the requested
accommodation was necessary to provide equal opportunity to people with
disabilities. The burden, therefore, shifts to the defendant to show that
the requested accommodation is not reasonable. The defendant has not
satisfied this burden. The property in this case is a single-family
dwelling that historically has been assessed by the Authority as a
residential property. There are only three people residing at the
dwelling fewer than the number of residents in other dwellings
assessed by the Authority as "residential" and with less intensive sewer
usage. Unlike some other dwellings deemed "residential," the residents
and their caretakers in this case are away from the home during weekdays.
The Court concludes that the plaintiff's motion should be granted on
those two claims as well. An appropriate order follows.
AND NOW, this 1st day of April, 2004, upon consideration
of the defendant's Motion for Summary Judgment (Docket No. 25), the
plaintiff's Motion for Summary Judgment (Docket No. 24), as well as all
responses and replies thereto, and following oral argument on February
13, 2004, IT IS HEREBY ORDERED that the Defendant's Motion for Summary
Judgment is DENIED and the Plaintiff's Motion for Summary Judgment is
GRANTED for the reasons stated in a memorandum of today's date. The
plaintiff shall submit an appropriate order of final judgment. The
plaintiff may submit a request for attorney's fees and costs on or
before May 3, 2004.