UNITED STATES DISTRICT COURT
EASTER DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONSENT JUDGEMENT

I. Preliminary Matters

1. On January 12, 2005, Easter Seals Michigan, Inc. and the members of the Dreams Unlimited Clubhouse (jointly "Plaintiffs") filed suit in this Court alleging that the City of Royal Oak ("City") denied a land use permit to the Dreams Unlimited Clubhouse ("Clubhouse") for a property at 1222 Catalpa Dr. in Royal Oak, in violation of title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12149, the Rehabilitation Act of 1973, the Equal Protection and Substantive Due Process clauses of the U.S. and Michigan Constitutions, the Michigan Persons with Disabilities Civil Rights Act, MCL § 37.1301, and 42 U.S.C. § 1983. On September 19, 2005, the Court granted the United States' motion to intervene in the Plaintiffs' action against the City. The United States' Complaint in Intervention asserts violations of title II of the ADA and Section 504 of the Rehabilitation Act, 29 U.S.C. §794 ("Section 504"), and their implementing regulations. The Plaintiffs and the United States allege that the City denied a land use permit to the Clubhouse because of the disabilities of the members of the Clubhouse.
2. The defendant City of Royal Oak, a municipality within the state of Michigan, is a "public entity" within the meaning of the ADA, 42 U.S.C. § 12131(1), 28 C.F.R. § 35.104 and is therefore, subject to title II of the ADA, 42 U.S.C. §§ 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.
3. The City's land use activities are carried out by its City Commission, Planning Department, Plan Commission and Zoning Board of Appeals.
4. The City and its Planning Department are "recipients" of "federal financial assistance" and are therefore subject to Section 504, 29 U.S.C. § 794, and the relevant implementing regulations.
5. Plaintiff Easter Seals is a Michigan non-profit corporation which, in part, provides services for individuals in Oakland County with mental illness. The Clubhouse is a non-residential day program run by Easter Seals to provide support, vocational and employment training, skill building, social confidence training, volunteer service programs, and other skills to adults with "severe and persistent mental illness," as that term is defined in the Michigan Health Code, MCL § 330.1100d(3). The plaintiffs members of Dreams Unlimited Clubhouse ("Members") are approximately 70 adult residents of this judicial district who have mental illnesses, each of whom is a "qualified individual with a disability" within the meaning of the ADA, 42 U.S.C. §§ 12102(2) and 12131(2), and Section 504, 29 U.S.C. §§ 705(20) and 794.
6. The United States Department of Justice ("Department" or "DOJ") is the federal agency responsible for administering and enforcing title II of the ADA, 42 U.S.C. §§ 12131 et seq.
7. Pursuant to title II of the ADA and Section 504, the City of Royal Oak, as a public entity and recipient of federal financial assistance, must ensure that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of the City, or be subjected to discrimination by the City, 42 U.S.C. § 12132, 29 U.S.C. § 794(a).
8. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345, 42 U.S.C. § 12133, and 29 U.S.C. § 794a.
9. As a result of ongoing discussions, the City, the Plaintiffs, and the Department (collectively, the "parties") have reached agreement that it is in the parties' best interests, and the Department believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation.

II. Definitions

1. "ADA" shall mean and refer to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
2. "Clubhouse" shall mean and refer to the Dreams Unlimited Clubhouse, or a similar program operating under a different name for the Purpose defined below at Paragraph II.F.
3. "Consent Judgment" or "Judgment" shall mean and refer to this Consent Judgment, including all attached appendices.
4. "Effective date" of this Consent Judgment shall mean and refer to the date that this Consent Judgment is entered as a final judgment by the United States District Court for the Eastern District of Michigan.
5. The "Property" is the property at 1222 Catalpa Drive in Royal Oak, Michigan, which Easter Seals has leased for the purpose of operating the Clubhouse.
6. The "Purpose" of the Clubhouse is to provide, through a day program, support, vocational and employment training, skill building, social confidence training, volunteer service programs, and other skills to adults with "severe and persistent mental illness," as that term is defined in the Michigan Health Code, MCL § 330.1100d(3), or a like and similar use.
7. "Section 504" shall mean and refer to Section 504 of the Rehabilitation Act, 29 U.S.C. §794.

   It is therefore ORDERED, ADJUDGED, AND DECREED as follows:

III. Land Use Approval and other Injunctive Relief

1. The City is enjoined from discriminating on the basis of disability in violation of the ADA and Section 504 in making decisions regarding the presence of, or plans to create, operate, or modify, facilities that provide services for individuals with disabilities. Such non-discrimination includes making reasonable modifications to policies, practices, or procedures when such modifications are necessary to afford individuals with disabilities an equal opportunity to use and enjoy a facility, unless such modification would fundamentally alter the nature of the land use.
2. The City is enjoined from interfering with and/or preventing Plaintiffs from operating the Clubhouse at the Property in conformance with the Purpose defined above.
3. The City retains the right to ensure that the Property operates in compliance with all applicable codes and legal requirements, except where the application or enforcement of such codes or legal requirements discriminates against the Plaintiffs or any user of the Clubhouse, or persons associated with the Plaintiffs or Clubhouse users, in violation of title II of the ADA or Section 504.
4. The City shall inspect and approve modifications or improvements to the Property that require City approval in the normal course of business and without undue conditions or delay, in accordance with all applicable building codes and legal requirements, and in accordance with engineering and construction standards generally applied to like developments in Royal Oak, Michigan. The City shall not deny any modifications or improvements Plaintiffs seek to make to the Property for any reason that violates the ADA or Section 504. The site plan for the Property, which has been fully approved by the City, is attached to and made part of this Consent Judgment at Exhibit A.
5. The City is enjoined from applying to the Plaintiffs any changes to the present and/or future City Ordinances that would exclude Plaintiffs from operating the Clubhouse for the Purpose defined above; provided, however, that the City may move the Court to amend this paragraph for good cause shown and for a reason that would not discriminate against Plaintiffs in violation of the ADA or section 504.
6. The City shall not retaliate against the Plaintiffs or otherwise discourage or hinder the Clubhouse's operation as a day facility for persons with disabilities, in violation of 42 U.S.C. § 12203.
7. For three years after the Effective Date, for any land use request involving individuals with disabilities that the City denies or grants with conditions, the City shall make written findings specifying the basis for the denial or the conditions imposed. The City shall provide the United States with copies of such written findings at the same time as they are sent to the land use applicant. After receiving such notice and/or written findings, if the United States determines that additional information is necessary in order to assess the information provided, the United States shall make such a request in writing to the City, and the City shall provide such information to the United States within thirty (30) days of receipt of the request.

IV. Education and Training

1. City Commission. Within 30 days of the Effective Date, the City shall provide a copy of this Judgment to each member of the City Commission. For three years after the Effective Date, within thirty (30) days after the date he or she commences as a new City Commission member, each new member shall be given a copy of this Judgment.
2. Plan Commission, Zoning Board of Appeals, and Planning Department.
   1. Notice. Within 30 days of the Effective Date, the City shall provide a copy of this Judgment to each member of the Plan Commission and Zoning Board of Appeals and each management-level employee of the Planning Department. For three years after the Effective Date, within thirty (30) days of appointment of a new member of the Plan Commission or Zoning Board of Appeals, or hire of a new management-level employee of the Planning Department, each new member or employee shall be given a copy of this Judgment.
   2. Training. Within 90 days of the Effective Date, each member of the Plan Commission and Zoning Board of Appeals and each management-level employee of the Planning Department shall attend training on the requirements of title II of the ADA, particularly with respect to zoning. Such training curriculum and the person(s) or organization(s) who will conduct the training shall be selected by the City and approved by DOJ, which approval shall not be unreasonably withheld. For three years after the Effective Date, within three months of appointment of a new member of the Plan Commission or Zoning Board of Appeals, or hire of a new management-level employee of the Planning Department, each new member or employee shall receive such training on the requirements of title II of the ADA. The City shall obtain from the trainer certifications of attendance executed by the members and employees confirming their attendance. Such records of the attendees at the training sessions will be forwarded to the United States within thirty (30) days of the completion of said training.

V. Monetary Relief

1. The City shall pay Plaintiffs $300,000 in monetary damages on the Effective Date in certified or wire transferred funds.

VI. Implementation and Enforcement

1. The United States may review compliance with this Consent Judgment at any time and may enforce this Consent Judgment if the United States believes that it or any requirement thereof has been violated. If the United States believes that this Consent Judgment or any portion of it has been violated, it will raise its concern(s) with the City and Plaintiffs and the parties will attempt to resolve the concern(s) in good faith. The United States will give the City thirty (30) days from the date it notifies the City of any breach of this Consent Judgment to cure that breach, prior to instituting any action with the Court.
2. If the Plaintiffs believe that this Consent Judgment or any portion of it has been violated, it will raise its concern(s) with the City and the United States and the parties will attempt to resolve the concern(s) in good faith. The Plaintiffs will give the City thirty (30) days from the date it notifies the City of any breach of this Consent Judgment to cure that breach, prior to instituting any action with the Court.
3. Failure by the United States to enforce any provision or deadline of this Judgment shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Judgment.
4. Failure by the Plaintiffs to enforce any provision or deadline of this Judgment shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Judgment.
5. As between the United States and the Defendant, this Consent Judgment shall remain in effect for three (3) years from the Effective Date. The United States' Complaint shall be dismissed with prejudice, except that the United States may petition the Court, at any time during the duration of this Judgment, to reopen the case for the purpose of enforcing the Judgment and the Court shall retain jurisdiction to enforce this Judgment.
6. This Consent Judgment constitutes the entire agreement between the parties relating to Easter Seals Michigan-Inc. and the Members of Dreams Unlimited Clubhouse and the United States of America v. City of Royal Oak, No. 5:05CV60010 (E.D. Mich.), and Department of Justice No. 204-37-302, and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Consent Judgment, including its attachments, shall be enforceable. This Consent Judgment does not purport to remedy any other potential violations of the ADA, Section 504, or any other federal law. This Consent Judgment does not affect the City's continuing responsibility to comply with all aspects of the ADA and Section 504.
7. If any term of this Consent Judgment is determined by any court to be unenforceable, the other terms of this Judgment shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the parties shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Judgment as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
8. The rights and benefits afforded to the Plaintiffs under this Judgment shall be afforded to any successor or assign to Plaintiffs which operates a program at the Property in conformance with the Purpose defined above.
9. The individuals signing this Consent Judgment represent they are authorized to bind the parties to this Consent Judgment.
10. This Judgment shall be binding on the City, its agents and employees, successors and assigns.
11. Section titles and other headings contained in this Judgment are included only for ease of reference and shall have no substantive effect.
12. All notices, demands, or other communications to be provided pursuant to this Judgment shall be in writing and delivered by fax or overnight mail to the following persons and addresses (or such other persons and addresses as any Party may designate in writing from time to time):

    For the Department of Justice

    Amanda Maisels
    Trial Attorney
    Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    1425 New York Ave., NW
    Washington, D.C. 20005
    202-305-8454 (phone)
    202-305-9775 (fax)

    Judith E. Levy
    Assistant U.S. Attorney
    Eastern District of Michigan
    211 West Fort, Suite 2001
    Detroit, MI 48226
    313-226-9727 (phone)
    313-226-3271 (fax)

    For the City

    C. Brian James
    Assistant City Attorney
    City of Royal Oak
    211 S. Williams Street
    Royal Oak, MI 48067
    (248) 246-3240 (phone)
    (248) 246-3003 (fax)

    For the Plaintiffs
    Richard D. Rattner
    Richard E. Rassel
    Williams, Williams, Ruby & Plunkett, P.C.
    380 N. Old Woodward, Suite 300
    Birmingham, MI 48009
    248-642-0333 (phone)
    248-642-0856 (fax)

    SO ORDERED this 29th day of November, 2005.

/s/ Marianne J. Battani
United States District Judge

AGREED AND CONSENTED TO:

FOR THE UNITED STATES

Alberto R. Gonzales
Attorney General

Wan J. Kim
Assistant Attorney General
Civil Rights Division

John L. Wodatch, Chief
Philip L. Breen, Special Legal Counsel
Allison J. Nichol, Deputy Chief
Disability Rights Section
Civil Rights Division

/s/ Amanda Maisels
Amanda Maisels
Kathleen Wolfe
Trial Attorneys
Civil Rights Division - Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530-0001
202-305-8454 (phone)
202-305-9775 (fax)

Stephen J. Murphy
United States Attorney
Eastern District of Michigan

/s/ Judith E. Levy
Judith E. Levy
Assistant U.S. Attorney
Eastern District of Michigan
211 West Fort, Suite 2001
Detroit, MI 48226
313-226-9727 (phone)
313-226-3271 (fax)

The undersigned parties hereby read, understand, agree and consent to the foregoing Consent Judgment and all terms and conditions stated therein. All such parties represent that they have obtained advice of counsel and are consenting to this Judgment freely and voluntarily.

FOR EASTER SEALS MICHIGAN-INC. and the MEMBERS OF DREAMS UNLIMITED CLUBHOUSE:

/s/ John Cocciolone
John Cocciolone
President/CEO
Easter Seals-Michigan, Inc.
1105 N. Telegraph Rd.
Waterford, MI 48328

Counsel for Easter Seals and the Members of Dreams Unlimited Clubhouse:

 

/s/ Richard D. Rattner
Richard D. Rattner, Esq.
Richard E. Rassel, Esq.
Williams, Williams, Ruby and Plunkett
380 North Old Woodward, Suite 300
Birmingham, Michigan 48009

 

FOR THE CITY OF ROYAL OAK, MICHIGAN

 

/s/ Jim Ellison
Mayor Jim Ellison
City of Royal Oak
211 Williams St.
Royal Oak, MI 48067

 

/s/ Mary Ellen Graver
Mary Ellen Graver
City Clerk
City of Royal Oak
211 Williams St.
Royal Oak, MI 48067

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