UNITED STATES DISTRICT COURT
EASTER DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COMPLAINT IN INTERVENTION

The United States alleges that the city of Royal Oak has denied Easter Seals-Michigan, Inc. ("Easter Seals") and the individual members of the Dreams Unlimited Clubhouse ("Dreams Unlimited") the benefits of a land use permit, and discriminated against them, on the basis of the disabilities of the members of Dreams Unlimited, in violation of title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq., and section 504 of the Rehabilitation Act of 1973, as amended ("section 504"), 29 U.S.C. § 794, and the regulations implementing title II and section 504.

The alleged discrimination goes to the heart of the ADA and Congress' intent to eliminate the segregation and isolation of individuals with disabilities. As Congress stated in the Findings and Purposes of the ADA: "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 USC § 12101(a)(2). This case concerns Royal Oak's attempt to prevent adults with mental illness from participating in a daytime clubhouse in a Royal Oak neighborhood, based on unfounded fears and stereotypes.

Jurisdiction and Venue

1. 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. The Court may grant the relief sought in this action pursuant to 42 U.S.C. § 12133, 29 U.S.C. § 794a, and 28 U.S.C. §§ 2201 and 2202.
2. Venue is proper in this district pursuant to 28 U.S.C. § 1391, in that all of the claims and events giving rise to this action occurred in this district.

Parties

1. Plaintiff Easter Seals is a Michigan non-profit corporation which, in part, provides services for individuals in Oakland County with mental illness. Easter Seals operates the Dreams Unlimited program under master contract with the Oakland County Community Mental Health Authority. The Oakland County Community Mental Health Authority is the statutory manager of public mental health services in Oakland County, Michigan under contract with the Michigan Department of Community Health, a Michigan State agency.
2. 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. Collectively, Easter Seals and the Members shall be referred to as Plaintiffs.
3. Plaintiff-intervenor is the United States of America.
4. 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.
5. Upon information and belief, the defendant, at all times relevant to this action, was a "recipient" of "Federal financial assistance," and is therefore subject to section 504, 29 U.S.C. § 794, and the relevant implementing regulations.

Facts

8. Dreams Unlimited is a 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). Dreams Unlimited is non-residential and operates from approximately 8:15 a.m. to 5:00 p.m. Monday through Friday, and one or two evenings per week and one Saturday per month.
9. Approximately 70 adults are members of Dreams Unlimited, although only approximately 18-25 attend Dreams Unlimited on any given day. The members are screened by mental health professionals for eligibility in the program. Approximately six professional staff members facilitate the activities at Dreams Unlimited each day.
10. Dreams Unlimited has operated for 19 years in a residential neighborhood in Oak Park, Michigan. In 2003, Dreams Unlimited decided to relocate from the Oak Park facility in order to acquire a newer facility with a more open floor plan, and located and leased a property at 1222 Catalpa Drive in Royal Oak, Michigan. Dreams Unlimited has operated safely and peacefully in Oak Park for 19 years and has presented no detriment to the surrounding neighborhood or to the City of Oak Park, according to the Director of Public Safety for Oak Park and neighbors of the facility.
11. The 1222 Catalpa Drive property ("the Property") is in a Mixed Use 2 zone, according to the Royal Oak Zoning Ordinance (Nov. 8, 2001) ("the Ordinance"). The Mixed Use 2 zone is defined in the Ordinance as "intend[ing] to provide for a mixture of residential, office, low intensity public/institution uses, and neighborhood business uses in an urban design pattern." Ordinance § 404(12)(a). The Property was previously used as a child day care center and now stands empty. It is flanked by a dentist office, yoga studio, and party store. The remainder of the block consists of additional businesses, such as a travel agency and a wellness clinic. The surrounding blocks are residential.
12. The Ordinance identifies permitted uses and special uses for each of its 13 zones. The Ordinance does not specifically identify an adult clubhouse or facility such as Dreams Unlimited as either a permitted or a special use in any of the zones.
13. City officials became aware that Dreams Unlimited intended to occupy the Property. On or about December 2003 or January 2004, the Royal Oak Zoning Administrator determined that Dreams Unlimited was not a permitted use by right in the Mixed Use 2 zone and would require special land use approval. This determination was premised upon the Zoning Administrator's decision that Dreams Unlimited had similar characteristics to a "Day Care Center," which is defined as a special use in the Mixed Use 2 zone.
14. In June 2004, Plaintiffs filed an application to the Zoning Board of Appeals ("ZBA") for review of the Zoning Administrator's determination that Dreams Unlimited was not a permitted use in the Mixed Use 2 zone. The ZBA denied Plaintiffs' application at a public hearing on August 12, 2004 by vote of 7-0.
15. Plaintiffs then filed an application with the Royal Oak Plan Commission requesting a special land use permit to operate Dreams Unlimited at the Property. On October 12, 2004, the Plan Commission denied Dreams Unlimited a special land use permit at a public hearing by a vote of 6-2.
16. Plaintiffs then applied to the ZBA for a use variance to permit Dreams Unlimited to operate at the Property. The ZBA denied Plaintiffs' request for a use variance at a public hearing on December 9, 2004 by vote of 7-0.
17. Public hearings in the Dreams Unlimited land use matter were held on March 9, 2004, August 12, 2004, October 12, 2004, and December 9, 2004. At these hearings, and throughout this period, residents of Royal Oak expressed to the Plan Commission and the ZBA their opinion of Dreams Unlimited opening at the Catalpa location through emails, letters, testimony at hearings, and petitions. The vast majority of the residents who commented expressed opposition to permitting Dreams Unlimited to operate at the Catalpa location because of the mental disabilities of the Members. The opposition expressed was based on fears that the Members would bring property values down and bring crime and danger to the neighborhood. Two petitions opposing Dreams Unlimited were signed by Ed Anderson, the Chairman of the Plan Commission, in his individual capacity, before the October 12, 2004 Plan Commission hearing.
18. The Ordinance sets forth the procedure for special land uses. The application for a special land use permit must be submitted to the Zoning Administrator along with a site plan, building floor plans and elevations. §303(1). The application and site plan is then forwarded to the Plan Commission. §303(2)(b). A public hearing must be scheduled. §303(2)(c). "Following the public hearing the Plan Commission may deny, approve, or approve with conditions a request for a special land use. The decision of the Plan Commission shall be incorporated in a statement of conclusions relative to the special land use under consideration. Any decision which denies a request or imposes conditions upon its approval shall specify the basis for the denial or the conditions imposed." §303(2)(d).
19. The Ordinance sets forth seven criteria, Section 303(3)(a) through (g), on which to base a determination as to whether to grant a special land use application. §303(3).
20. The minutes of the October 12, 2004 Plan Commission hearing do not reflect any "statement of conclusions relative to the special land use under consideration" or a specification of "the basis for the denial" of a special use permit for Dreams Unlimited. Nor does any other document incorporate such conclusions. Minutes of the October 12, 2004 Plan Commission hearing reflect that the motion to deny the special land use request was made and, after two statements by members who voted to deny it, carried by 6-2 vote. One statement was by the Mayor of Royal Oak, Jim Ellison, also a voting member of the Plan Commission. He said, in relevant part, "this location at this time is not harmonious to the neighborhood." (Royal Oak Plan Commission Minutes, Oct. 12, 2004 at 14.) The other statement, by Plan Commission member Tom Hallock, as reflected in the minutes, states that "this use is a service that needs to be offered at some place. He does not believe this is a compatible location, does not meet a,b,c, and d of Section 303 of the guidelines, in his opinion. He has a family member who has been bi-polar for over 20 years. He is well aware of the challenges of people who have illnesses and the challenges they face. He stated that bi-polar illness is chemical and how complicated it is to treat. He stated he is familiar and sympathetic. Based on the entire stack of information they received, this is not an appropriate land use for this location." (Id. at 14-15.)
21. At no point has Royal Oak articulated a specific, legitimate basis for denying Dreams Unlimited a land use permit. Plan Commission Chairman Ed Anderson stated that the community opposition played a role in his decision to deny Dreams Unlimited a special use permit.

Violations of ADA and Section 504

22. The allegations of Paragraphs 1 through 20 of the Complaint in Intervention are hereby realleged and incorporated by reference.
23. Defendants discriminate against "qualified individual[s] with a disability," within the meaning of the ADA, by excluding them from participation in and denying them the benefits of a land use permit for Dreams Unlimited, and by subjecting them to discrimination, on the basis of disability, in violation of title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 CFR §35.130, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its relevant implementing regulations.

Prayer for Relief

WHEREFORE, the United States prays that the Court:

1. Grant judgment in favor of the United States on its Complaint in Intervention and declare that the defendant has violated title II of the ADA, 42 U.S.C. §§ 12131 et seq., section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the relevant implementing regulations;
2. Enjoin the defendant to grant a land use permit for Dreams Unlimited to operate at the Property;
3. Order the defendant to modify its policies, practices, and procedures as necessary to ensure that its land use determinations comply with title II of the ADA, 42 U.S.C. §§ 12131 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the relevant implementing regulations;
4. Award compensatory damages in an appropriate amount to Plaintiffs Easter Seals and the individual Members for injuries suffered as a result of the defendant's failure to ensure compliance with the requirements of title II of the ADA, 42 U.S.C. §§ 12131 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, according to proof; and
5. Order such other appropriate relief as the interests of justice require.

Jury Demand

The plaintiff-intervenor hereby demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure.