Recent Life Safety Cases
Recently, federal courts have had the opportunity to determine the extent that the Fair Housing Act will require restrictions on enforcement of the Life Safety Fire Code. Again, the balancing test has been applied.

Proviso Association v. Village of Westchester, 914 F. Supp. 1555 (N.D. Ill. 1996), involves a claim that the Act was violated because of intentional discrimination and a failure to provide a reasonable accommodation. The case involves a claim that enforcement of a sprinkler system requirement violated the Act.

Proviso Association of Retarded Citizens provides community integrated living arrangements ("CILAs") for persons with developmental disabilities. Proviso purchased a two-flat building located in the Village of Westchester with the intent of using each apartment as a CILA for three develop mentally disabled adults. Each CILA operates independently of the other with three adult males in one and three adult females in the other. Each resident is physically able-bodied with normal hearing and eyesight.

Westchester adopted the Building Officials and Code Administrators Basic Building Code (BOCA) and the National Fire Prevention Association Life Safety Code for use in determining classification of buildings. The property purchased by Proviso was classified as R-3 "Residential Use." Following an inspection, Westchester found the dwelling to comply with all village codes and ordinances applicable to an R-3 use structure, but that Proviso's intended use would cause the reclassificalion to 1-2 or R-2 under the BOCA code. Under either classification Proviso would be required to install a sprinkler system and obtain a Special Use Permit. Proviso then requested an accommodation of waiver of the sprinkler system requirement and the issuance of a Special Use Permit on the condition that no more than three persons reside in each CILA. Westchester denied the requested accommodation and Proviso sued for violations of the Act.

As a preliminary matter, the court found that there was no basis for a claim of discriminatory use classification noting that "the FHA does not permit this court to act as a 'Super-Board of Trustees' to preempt a municipality's zoning or use classification". Id. at 1561. This finding is a logical extension of the Palatine and St. Louis cases and adds further weight behind the argument that the Fair Housing Act does not preempt local zoning regulations.

As to whether Proviso's request for a waiver of the sprinkler requirement constitutes a reasonable accommodation, Westchester first claimed that this issue was not ripe relying on the Palatine case . However, the court held that this case is distinguishable from the Palatine case because Palatine had no opportunity to award the permit or to make an accommodation. In contrast, Proviso made a formal request to the Village Board of Trustees for waiver of the sprinkler requirement, which request was rejected. The court held that the issue of reasonable accommodation was therefore ripe. Such a finding is fully consistent with the Seventh and Eighth Circuit decisions in Palatine and St. Louis.

The court reiterated the holding in the Bronk case that the accommodation must be reasonable and necessary. As in Bronk, the court cited limitations on the Fair Housing Act's scope noting that "reasonableness" does not entail an obligation to do everything that is humanly possible to accommodate a disabled person. Equally "necessity" requires at a minimum a showing that the accommodation will affirmatively enhance a disabled person's quality of life by ameliorating the affects of the disability.

The court stated that an accommodation is reasonable when "it imposes no undue financial or administrative hardships on the defendant making the accommodation and when it does not undermine the basic purpose of the requirement". Id. at 1562. In this case, Proviso requested non-enforcement of a rule for which Westchester had not mentioned any hardship resulting from such non-enforcement. Westchester presented no evidence that the waiver of a sprinkler system would put its residents or the residents of the Proviso dwelling at any more risk from fires than before Proviso occupied the dwelling. Proviso had installed fire and smoke alarms linked to the fire department and each resident of the CILAs had practiced evacuating the building in under three minutes. The court determined that a waiver of the sprinkler requirement therefore would not undermine the Life Safety Code. The minimal burden to Westchester did not outweigh the cost of a $20,000-$30,000 sprinkler system and the waiver was a reasonable request.

As to the necessity for the accommodation, Westchester claimed that the sprinkler requirement was imposed because the Proviso residents were a non-family, not because they were disabled. The court disagreed and pointed to the BOCA code which considers one adult a family and the village code which allows three lodgers or boarders to reside with a family in a single family residence. This means that up to four unrelated adults should be able to reside in each CILA. The Proviso dwelling had more safety features and its

*Thomas R. Burney and Jerome Wiener are partners in the Chicago law firm of Schain, Firsel & Burney, Ltd. The firm represents several municipalities and has represented the Village of Palatine and the City of Oregon in Fair Housing Act matters.

September 1996 / Illinois Municipal Review / Page 7

residents had better evacuation training than the average single family dwelling. Under these circumstances, the court found the waiver of the sprinkler requirement a necessary and reasonable accommodation under the Act.

Finally, the Westchester decision imposed a strict and exacting standard on those claiming intentional discrimination. The court held the statements at issue may have shown misunderstandings and ignorance, but not discriminatory intent. Also, there was no evidence of coercion, intimidation, threats, or interference.

A second recent decision out of the Northern District of Illinois addresses the Fair Housing Act and the limits it imposes on the application of the Life Safety Code to group housing arrangements for the handicapped. Alliance For the Mentally Ill v. City of Naperville, 923 F. Supp. 1057 (N.D. 111. 1996), is a case involving a claim of disparate treatment and a failure to provide a reasonable accommodation. There the court took a diametrically different view than the court in Westchester and decided that the Life Safety Code on its face violates the Fair Housing Act. Although the opinion finds the sprinkler requirement at issue in the case a violation of the Act it is the court's finding that certain provisions of the Life Safety Code are invalid which must pique the municipal practitioner's interest. The court held that, as a general matter, enforcement of municipal ordinances, i.e. the Life Safety Code, when it comes to handicapped housing, violates the Fair Housing Act. The court then shifted the burden to the municipality to defend why the ordinance is justified. Because the code regulated a specific group, the "meaningful proportion" of which are handicapped, the court held that "Naperville's fire prevention code discriminates on its face against handicapped persons." Id. at 1070.

While neither the Naperville code nor the Life Safety Code used the word "handicapped" or "disabled," the special provisions for a residential board and care occupancy (RBCOs), The fire code classification of the residence, apply mainly to handicapped persons. Naperville argued that the Life Safety Code does not discriminate on its face because an RBCO could be used to house the non-handicapped. The court disagreed and found that many groups thought to be non-handicapped are in fact handicapped and the ones that are not handicapped make up a very small percentage of RBCO residents. Naperville also argued that the Life Safety Code does not discriminate because it applies to the use of property, not the capabilities of its residents. While the court acknowledged the fact that the RBCO provisions apply to buildings that provide personal care services and not buildings that house handicapped persons, the court dismissed this argument holding that "discrimination that is aimed at the effects of a handicap rather than aimed at the actual handicap may still qualify as discrimination." Id.

The court then held that, since the Alliance showed that the Life Safety Code discriminates, Naperville had the burden of justifying its discriminatory requirements. Naperville attempted to do so on the ground that the requirements are present for the safety of the residents. The court, however, did not find this justification to be sufficient and relied on the evidence submitted by the Alliance regarding the safety features at the home which, it alleged, eliminated the need for a sprinkler system and a fire alarm monitoring system. The home had smoke detectors audible in each room as well as fireproof mattresses and an outside window in each of the bedrooms. The home also had three fire extinguishers. There were evacuation routes posted next to all exists and all cooking in the house was supervised closely. The home conducted evacuation drills and it took the residents 25 seconds, from sleep, to evacuate the home.

On the issue of reasonable accommodations, the court found that the accommodation will enhance the disabled person's quality of life because the waiver of the requirements will leave enough money for the home to accommodate five additional residents, most likely, the court felt, dramatically enhancing their quality of life. The benefit that the Alliance would receive outweighs the cost to Naperville since Naperville had not shown any costs resulting from a waiver of the sprinkler system.

Reduced to its basics, the Naperville case is a sprinkler and fire monitoring (hard wired fire alarm) case. It is useful in setting some parameters on how far a municipality can go in strict enforcement of the literal reading of the Life Safety Code in this type of occupancy. As in the Westchester case, sprinkler requirements are less likely to pass the reasonable accommodation test when the handicapped population is mobile, drilled in fire evacuation, and where full-time supervision is present.

Conclusion
The Westchester case gives us a set of standards on which to judge whether the enforcement of the Life Safety Code restrictions is warranted, i.e., whether that standard satisfied the requirements of reasonable accommodations. However, the Naperville case calls into question whether a municipality can even apply its Life Safety Code to a handicapped population. Hopefully, decisions in the near future will give more guidance in this area. •

Page 8 / Illinois Municipal Review / September 1996