The City of Harvard v. Nevitt

2020 IL App (2d) 191126-U

• Court: Appellate Court of Illinois
• Decided: October 26, 2020
• Docket: 2-19-1126
• Status: Unpublished

Opinion

2020 IL App (2d) 191126-U No. 2-19-1126 Order filed October 26, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE CITY OF HARVARD, ) Appeal from the Circuit Court ) of McHenry County. Plaintiff-Appellee, ) ) v. ) No. 19-OV-1025 ) IAN NEVITT, ) Honorable ) Jennifer L. Johnson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Justices Hudson and Bridges concurred in the judgment.

ORDER ¶1 Held: The trial court did not err in finding defendant guilty of an ordinance violation despite his wife’s disability because evidence introduced at trial supported the trial court’s finding that the City was not notified of the wife’s disability as required under the Americans with Disabilities Act and the Fair Housing Amendments Act, which was a prerequisite to requiring the City to allow defendant to keep a dumpster at his residence as a reasonable accommodation. Affirmed.

¶2 Following a bench trial, defendant, Ian Nevitt, was found guilty of maintaining a nuisance

in violation of Harvard Municipal Code § 11.13E (approved Mar. 29, 1996) in that he and his wife

kept a two-yard dumpster on their residential property in violation of the local ordinance.

Defendant appeals, arguing the trial court erred by failing to conclude the City of Harvard (City)

violated the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132 (2018)) and the Fair 2020 IL App (2d) 191126-U

Housing Amendments Act (FHAA) (42 U.S.C. § 3604(f)(2) (2018)) by enforcing the ordinance

and refusing to allow defendant to keep the two-yard dumpster as a “reasonable accommodation”

for his wife’s disability. The City claims it was not required to permit defendant to keep the

dumpster on his property because defendant never actually requested an accommodation. We

affirm.

¶3 I. BACKGROUND

¶4 In June 2019, the City filed a complaint alleging defendant maintained a nuisance on his

property by keeping a two-yard dumpster at his residence for several weeks. The parties proceeded

to a bench trial in November 2019.

¶5 Many of the facts adduced at trial were undisputed. Defendant and his wife own a residence

in Harvard, Illinois. Pursuant to a City ordinance, homeowners are prohibited from maintaining

any dumpster exceeding one yard on their property. Defendant’s wife suffers from lupus,

rheumatoid arthritis, osteoarthritis, and degenerative eyesight. She and defendant testified that, due

to her condition, she has difficulty pushing and pulling heavy objects, including standard-issue

trash bins.

¶6 In December 2018, defendant and his wife spoke with City code enforcement officer Anne

Nutley and requested a permit to maintain a two-yard dumpster on their residential property.

Nutley refused their request, and neither defendant nor his wife formally submitted a written permit

application.

¶7 In January 2019, Nutley discovered a two-yard dumpster on defendant’s property and the

City issued a written notice of violation to defendant. On May 7, 2019, Nutley again observed the

offending dumpster on defendant’s property and issued a “notice to abate nuisance” letter.

Defendant failed to remove the dumpster. Between May 23, 2019, and July 11, 2019, the City

2 2020 IL App (2d) 191126-U

issued seven citations to defendant for violating the City’s ordinance prohibiting two-yard

dumpsters on residential property.

¶8 The primary dispute at trial involved what if anything defendant and his wife

communicated to the City regarding defendant’s wife’s disability and the need for an

accommodation. As a defense to the ordinance violation, defendant argued that the City was

required to provide a “reasonable accommodation” for his wife’s disability and was therefore

precluded from enforcing the ordinance against him. Defendant testified that, when he and his wife

first approached Nutley, they informed her of his wife’s disabilities and requested permission to

maintain a two-yard dumpster as a reasonable accommodation. He also testified that in September

2019, he and his wife notified the City of their request for an accommodation both orally and in

writing and were refused; defendant, however, failed to produce documentary evidence of the

written request at trial.

¶9 In contrast, Nutley testified that neither defendant nor his wife informed her about the

wife’s disability. Nor did either of them request an accommodation regarding her disability.

Instead, she testified that defendant’s wife indicated only that she needed a dumpster for her

business. Further, Defendant’s wife admitted on cross-examination that she had asked Nutley

whether she could obtain a permit to use a dumpster for a home business and that they continued

to use the standard-issue trash bins even after obtaining the dumpster.

¶ 10 Following the trial, the court found defendant guilty of maintaining a public nuisance by

keeping the dumpster on his property and ordered him to pay a fine of $1250 plus costs. In finding

for the City, the trial court indicated that it resolved the factual dispute in the City’s favor as to

whether defendant had notified the City or Nutley of his wife’s disability. Defendant filed a timely

appeal.

3 2020 IL App (2d) 191126-U

¶ 11 II. ANALYSIS

¶ 12 On appeal defendant argues that the trial court erred in finding him guilty where it declined

to find his wife suffered from a qualifying disability under the ADA because no “comprehensive

medical testimony” was presented. Given the testimony concerning her disabilities, defendant

argues the City violated his wife’s right to a reasonable accommodation under the ADA and the

FHAA 1 by refusing to grant her a permit to use the dumpster and by subsequently issuing citations.

The City counters that the trial court based its disability finding on the lack of evidence regarding

the wife’s purported disability and her actual physical limitations, and not the absence of medical

testimony. Furthermore, the City contends that the nature and extent of the wife’s disabilities was

irrelevant because neither the ADA nor the FHAA’s accommodation requirements was a defense

to the ordinance violations because defendant never actually requested an accommodation. We

initially address the potentially dispositive question of whether the trial court erred when it found

defendant and his wife failed to notify the City of the wife’s disability and to request an

accommodation. We affirm without reaching the disability issues because we find defendant never

requested an accommodation from the City, thus defeating his accommodation defense.

¶ 13 In a bench trial, a judge’s factual findings based on the credibility of the witnesses will be

reversed only if they are against the manifest weight of the evidence because the trial court is in a

superior position to evaluate credibility. Vician v. Vician, 2016 IL App (2d) 160022, ¶ 27. “A

judgment is against the manifest weight of the evidence only when the opposite conclusion is

1 Though defendant only specifically discusses the ADA in his argument, he cites to both

the ADA and the FHAA, as well as to case law analyzing both statutes. In that the requirements

and remedies for the two statutes are substantially the same, we analyze both here.

4 2020 IL App (2d) 191126-U

apparent or when the judgment is arbitrary, unreasonable, or not based on the evidence.” Id. Thus,

the trial court’s findings regarding the credibility of the witnesses will be affirmed if the record

contains evidence to support it. Id.

¶ 14 Title II of the ADA prohibits public entities from denying public services to, or otherwise

discriminating against, persons with qualified disabilities on the basis of their disabilities. 42

U.S.C. § 12132 (2018). Although not specified in the text of the statute, Title II requires public

agencies to make “reasonable modifications in policies, practices, or procedures when the

modifications are necessary to avoid discrimination on the basis of disability.” 28 C.F.R. §

35.130(b)(7)(i) (2018); see also Wisconsin Community Services, Inc. v. City of Milwaukee, 465

F.3d 737, 751-52 (7th Cir. 2006). Similarly, the FHAA makes it “unlawful *** [t]o discriminate

against any person *** in the provision of services or facilities in connection with [a] dwelling,

because of a handicap.” 42 U.S.C. § 3604(f)(2) (2018). Discrimination is defined to include “a

refusal to make reasonable accommodations in rules, policies, practices, or services, when such

accommodations may be necessary to afford such person equal opportunity to use and enjoy a

dwelling.” Id. § 3604(f)(3)(B). The reasonable accommodation requirements under both the ADA

and the FHAA prohibit the enforcement of zoning ordinances in a way that deprives people with

disabilities equal access to housing and require municipalities to grant variances as necessary.

Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002);

Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1104 (3d Cir. 1996).

¶ 15 To prevail on a reasonable accommodation claim against a municipality under either the

ADA or the FHAA on the basis of enforcement of a residential zoning ordinance, a party must

show (1) she is a person with a disability under the ADA or FHAA, (2) she requested a reasonable

accommodation for the disability, (3) the accommodation was necessary, and (4) the municipality

5 2020 IL App (2d) 191126-U

refused to make the accommodation. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1225 (11th

Cir. 2016). The party asserting the refusal must show she actually requested an accommodation

such that the municipality had “ ‘the ability to conduct a meaningful review of the requested

accommodation to determine if such an accommodation is required by law.’ ” Schwarz v. City of

Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008) (quoting Prindable v. Association of

Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1258 (D. Haw. 2003)).

¶ 16 The trial court heard testimony from defendant, defendant’s wife, and Anne Nutley as to

whether a request for accommodation was made. Defendant and his wife both testified that they

had informed Nutley and the City that they desired to maintain a dumpster on their property as an

accommodation for the wife’s disability. Defendant further testified that he had communicated

with the City in writing regarding his wife’s disability but failed to produce any documentation of

those communications. Neither defendant nor his wife testified that they submitted a formal

request for a variance due to the wife’s disability.

¶ 17 Conversely, Nutley testified that neither defendant nor his wife ever indicated to her that

defendant’s wife was disabled or that they were seeking permission to maintain a non-compliant

dumpster as an accommodation for her disability. Weighing the witnesses’ credibility, and

considering the absence of supporting documentation for defendant’s claim that he had informed

the City of his wife’s disability in writing, the trial court concluded that Nutley was more credible

and found that defendant and his wife never informed the Nutley or the City of the wife’s disability.

¶ 18 The trial court’s credibility determination is neither arbitrary nor unreasonable. The court

found Nutley to be a more believable witness after hearing the testimony of all the witnesses,

crediting Nutley’s testimony that the wife had told her that she needed the two-yard dumpster for

extra garbage capacity for her home business, and discounting defendant’s claim that he and his

6 2020 IL App (2d) 191126-U

wife told Nutley it was to accommodate the wife’s disability. Indeed, this determination is further

buttressed by the testimony that defendant continued to roll the standard-issue trash bins to the

curb notwithstanding the additional two-yard dumpster, not to mention defendant’s inability to

produce a copy of the correspondence he claims to have sent to the City regarding his wife’s

disability. And because we cannot say that the trial court’s finding in this regard was against the

manifest weight of the evidence, defendant’s “reasonable accommodation” defense fails because

he did not show he actually requested an accommodation such that the City had the ability to

conduct a meaningful review of the request.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.

¶ 21 Affirmed.