montana fair housing's complaint against the city of bozeman

Timothy C. Kelly Kelly Law Office Post Office Box 65 Emigrant, Montana 59027 4061333-4 1 1 1 (voice) 4061333-9073 (fax)

Ryan R. Shaffer Shaffer Law Office, P.C. 405 S. First St. West Missoula, MT 5980 1 4061207-5423 (voice) 406172 1 - 1799 (fax)

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

District of Montana

Butte Division

Montana Fair Housing, Inc., Plaintiff,

versus

City of Bozeman, Andy Epple, Vicki Hasler, and the Hinesley Family Limited Partnership #I , Hinesley Development, and Charles W. Hinesley,

Defendants.

) ) Case No. CLI- 0 9- 90 - 24- RCC- CS6 ) ) ) COMPLAINT ) ) ) ) 1 )

COMPLAINT

Case 2:09-cv-00090-RFC-CSO Document 1 Filed 12/10/09 of 38

1. This action is brought by the Plaintiff, Montana Fair Housing, Inc. (MFH),

a nonprofit Montana corporation, on its own behalf and to secure equal

housing opportunities for persons without regard to disability, age or

marital status in the City of Bozeman. MFH brings this action against the

Defendants City of Bozeman and certain city officers (collectively the

"Bozeman Defendants") and the Hinesley Family Limited Partnership #1,

Hinesley Development, and Charles W. Hinesley (collectively the

"Hinesley Defendants") for violations of the Fair Housing Act (FHA), 42

USC $$3601 et seq., the Americans with Disabilities Act (ADA), 42 USC

$ 5 121 01 et seq., and/or Sec. 504 of the Rehabilitation Act, 29 USC $794,

prohibiting discrimination against persons with disabilities. Plaintiff also

alleges that Defendants, acting individually or in one combination or

another, violated various state laws, including provisions of Montana Code

Annotated, Title 49, Sections 49-2-305, 49-2-302, 49-2-308, 49-3-204

and/or 49-3-205, prohibiting discrimination based on disability, age, and/or

marital status, as well as provisions of the Montana Constitution and state

laws, involving building codes, access to public records and protections of

personal privacy.

2. Plaintiff seeks declaratory, injunctive and affirmative relief to remedy the

COMPLAINT -1 -


past violations of the above referenced laws, to prevent future violations of

those laws, and to require performance of the Defendants of their respective

affirmative obligations under those laws. Plaintiff also seeks damages and

costs, including reasonable attorney fees, as permitted by law.

JURISDICTION AND VENUE

3. This Court has jurisdiction over this action under 28 USC 591343 and

133 1, and 42 USC 361 3, among other federal laws. The Court has

supplemental jurisdiction, pursuant to 28 USC 9 1367, over those claims

under state laws arising from the same core of operative facts.

4. Real properties which are the subject of and affected by this civil action are

located in Gallatin County, Montana. One or more of the actions and

omissions by Defendants alleged to be in violation of the above referenced

federal and state laws occurred in Gallatin County, Montana. Venue is

proper under 28 USC 9 1 39 1.

SUBJECT PROPERTIES

5 . This Complaint concerns, relates to or affects real properties (hla referred

to as the "Hinesley Properties") known as "Ethan Place - Aiden Place

Condominiums" located at the commonly known addresses of 1094, 1096,

1098, 1 1 12, 1 120 and 1024 Long Bow Lane in Bozeman, Montana.

COMPLAINT -2-


6. The Hinesley Properties consist of six (6) buildings, each containing eight

(8) units (total of 48 units), including 24 ground floor units. The legal

description of the Hinesley Properties is:

Lot 1, Block 18 of Laurel Glen Subdivision, Phase 11, located in the South Half of Section 4, Township 2 South, Range 5 East, P.M.M., Gallatin County, Bozeman, MT.

7. The Hinesley Properties were designed and constructed for first occupancy

after March 13, 199 1

8. The Hinesley Properties, and other residential properties in Bozeman

identified in this complaint, are "dwellings" as that term is defined in the

federal Fair Housing Act, 42 USC 593601 et seq., and are "housing

accommodations" as that term is defined in the Montana Human Rights

Act, Mont. Code Ann. Title 49. The Hinesley Properties contain "covered

multifamily" dwellings and housing accommodations as those terms are

defined under federal and state fair housing laws.

9. This Complaint also concerns or relates, in part or in whole, to the real

properties containing dwellings and housing accommodations located in the

areas now zoned by .the City of Bozeman as Zoning Districts R-S, R- 1, R-2,

and R-3.

COMPLAINT -3-


PARTIES

10. Plaintiff Montana Fair Housing, Inc.:

a. MFH is a nonprofit Montana corporation organized under the laws

of Montana with its principal place of business located at Butte,

Montana.

b. Among the MFH specific purposes and goals is the promotion of

equal opportunity in the sale and renting and availability of housing

and elimination of all forms of illegal housing discrimination in the

state of Montana. To this end, the activities in which Montana Fair

Housing engages include, but are not limited to: (1) counseling

persons in need of housing regarding their right to equal housing

opportunities and the location of housing available on a

nondiscriminatory basis; (2) investigating allegations of

discrimination and conducting investigations of housing facilities to

determine whether the housing is available on an equal opportunity

basis; (3) taking such steps as it deems necessary to assure such

equal opportunity and to counteract and eliminate discriminatory

housing practices; (4) providing outreach and education to the

community and housing providers and consumers regarding fair

COMPLAINT -4-


housing; (5) identifying housing that in various housing markets of

Montana which is available on a nondiscriminatory basis and

distributing that information to various organizations, agencies and

persons seeking nondiscriminatory and accessible housing; and. (6)

identifying, providing information to and training housing providers

and public and private agencies in methods of preventing or curing

discriminatory practices.

c. As an essential part of its organizational purposes and essential part

of its business activities, MFH associates with persons with

disabilities, persons younger than 25 years of age, persons 60 years

of age and older, and persons not related by marital status who seek

equal housing opportunities, and MFH brings this action on its own

behalf and for its staff, members, associates and constituents who

seek housing which is available on a nondiscriminatory basis or who

associate with persons seeking housing on a nondiscriminatory basis.

Bozeman Defendants:

a. Defendant City of Bozeman is a political subdivision and municipal

corporation of the state of Montana as defined in Section 7- 1-4 12 1,

MCA, and a person, political subdivison, and a local governmental

COMPLAINT -5 -


agency as defined by Title 49, Montana Codes Annotated.

b. Andy Epple is the Director of Planning and Community

Development for the City of Bozeman. Defendant Epple approved

the design of the Hinesley Properties and supervised and

administered the process resulting in the issuance of the certificates

of occupancy for the Hinesley properties. Defendant Epple hrther

supervised, ratified and otherwise participated in the code

enforcement activities of the Defendant Hasler.

c. Vicki Hasler is the Code Enforcement Officer for the City of

Bozeman who has made, printed and published written statements

indicating preferences, limitations or discrimination against persons

seeking or residing in housing because of disability, age and/or

marital status and has, on information and belief, taken actions to

enforce preferences, limitations or discrimination, or otherwise acted

to interfere with the rights of persons to seek equal housing

opportunities as guaranteed under federal and state law and against

persons because of disability, age and/or marital status and/or against

persons associated with those seeking equal housing opportunities

without regard to disability, age and/or marital status.

COMPLAINT -6-


12. Hinesley Defendants:

a. Hinesley Family Limited Partnership #1 is a person, owner, lessee,

and/or manager that has or had the right to sell, lease or rent the

Hinesley Properties and was responsible for developing, designing,

and/or constructing the Hinesley Properties.

b. Hinesley Development is a "dba" that is listed as the Contractor for

the Hinesley Properties and was responsible for the designing and/or

constructing the Hinesley Properties.

c. Charles W. Hinesley is a person, owner, lessee and/or manager who

has or had the right to sell, lease or rent the Hinesley Properties and

personally participated in, authorized and/or ratified the design

and/or construction of the dwellings and housing accommodations

located at the Hinesley Properties.

EVENTS

13. Prior to, during and after October 2008, MFH has been engaged in

identifying dwellings and housing accommodations that are available on an

equal opportunity basis and without regard to disability,' age or marital

' For purposes of this civil action, the term persons with disabilities means persons with a "handicap" as defined under federal law.

COMPLAINT -7-


status. To that end, MFH has requested and reviewed building permits and

ordinances and certificates of occupancy, has reviewed residential

properties under development, has reviewed city ordinances, has sent

information to and been available to provide information to local

governmental agencies and residential property owners and other persons

involved in the development of housing (including covered multifamily

units) advising them of the requirements under federal and state fair

housing laws, and has counseled persons seeking nondiscriminatory

housing opportunities in various cities across the state, including Bozeman.

UNLAWFUL DISCRIMINATION AGAINST PERSONS WITH DISABILITIES AT THE HINESLEY PROPERTIES

14. As part of its equal housing efforts, MFH sent a letter in January 2006 and

another letter in September 2006 to the Hinesley Defendants advising them

of fair housing obligations, including accessibility requirements for design

and construction of covered multifamily units in residential housing, and

offering to provide hrther information regarding federal and state fair

housing laws. None of the Hinesley Defendants responded to the MFH

letters or requested further information regarding fair housing laws or the

accessibility requirements for dwellings or housing accommodations.

COMPLAINT -8-


15. On or about October 2008, the Hinesley Defendants purported to complete

the design and construction of the Hinesley Properties, including all of the

covered multifamily units contained therein. On information and belief, the

dwellings and housing accommodations were designed and constructed by

beneficiaries of the Defendant Hinesley Family Limited Partnership # 1 who

are engaged in the construction business.

16. The City of Bozeman adopted the 2006 International Building Code for

regulating the erection, construction, occupancy, and use of all buildings

within the City of Bozeman and providing the City of Bozeman with the

standard for the issuance of permits and certificates of occupancy.

17. At various times in 2008 through on or about October 2008, the City of

Bozeman inspected the design and construction of the Hinesley Properties

for residential occupancy and subsequently approved the design and

construction of the Hinesley Properties by issuing certificates of occupancy.

18. Each of the six buildings at the Hinesley Properties has four (4) ground

floor dwelling units which have a concrete stair impeding access into the

unit. Ground floor entrance doors have twist type door knobs and exterior

thresholds that impede access. Ground floor entry ways do not include the

depth or clearance to provide access to persons with disabilities.

COMPLAINT -9-


19. One or more of the garbage receptacles made available for residents of the

Hinesley Properties is not on an accessible route to persons with disabilities

and none of the garbage receptacles have door hardware that is easy to

operate and within reach range of a user in a wheelchair.

20. One or more of the mail box kiosks made available for residents of the

Hinesley Properties is not accessible to persons with disabilities.

2 1. There is no direct route between ground floor units and the garage parking

area that is accessible to persons with disabilities.

22. The Hinesley Properties were designed and /or constructed to contain other

barriers, impediments and obstacles which prevent equal use and access by

persons with disabilities, including without limitation, unreachable

environmental controls, inaccessible routes into and through ground floor

units, and unusable bathrooms for persons in wheelchairs.

23. On and after October 2008, the Hinesley Defendants have made available

for sale or lease the dwellings and housing accommodations at the Hinesley

Properties, with the approval and consent of the City of Bozeman.

24. The Hinesley Defendants failed, refused and neglected to design and

construct the covered multifamily units at the Hinesley Properties in a

manner that complied or complies with the accessibility requirements of

COMPLAINT - 10-


federal and state fair housing laws.

25. The Bozeman Defendants approved the design and construction of dwelling

units at the Hinesley Properties, including units that fail to comply with the

accessibility requirements of state and federal fair housing laws.

26, On or about October 16, 2008, MFH went to the Hinesley Properties to

determine, from visual inspection, whether those properties appeared to

comply with the accessibility requirements of federal and state fair housing

laws. MFH did so for purposes of including the Hinesley Properties on its

list of residential properties that should be available on an equal

opportunity basis for distribution to groups and persons seeking

nondiscriminatory housing. As a result of the visual inspection, MFH

determined that the exterior of the Hinesley Properties did not comply with

fair housing accessibility requirements and could not be identified as

available on a nondiscriminatory basis.

27. On or about February 2009, MFH arranged for a person and constituent

with a disability (mobility impairment) to visit the Hinesley Properties to

determine the extent of the inaccessibility to persons with disabilities. The

person with a disability who visited the Hinesley Properties on that date

determined that there was no accessible route to covered multifamily units

COMPLAINT - 1 I -


and that there were other conditions that denied them access to full use and

enjoyment of the premises.

28. On or about August 2009, MFH did an informal inspection of the Hinesley

Properties with the permission of the Hinesley Defendants. During the

August 2009 inspection, MFH observed that the Hinesley Properties:

a. Do not provide at least one accessible building entrance on an

accessible route to the covered multifamily units;

b. Do not make the public use and common use portions of the covered

multifamily units readily accessible to and usable by a person with

a disability;

c. Do not provide that all doors designed to allow passage into and

within all premises within the covered multifamily units are

sufficiently wide to allow passage by a person with a disability who

uses a wheelchair; and

d. Do not ensure that all premises within the covered multifamily units

contain (I) an accessible route into and through the housing

accommodation; (11) light switches, electrical outlets, thermostats,

and other environmental controls in accessible locations; (111)

reinforcements in bathroom walls to allow later installation of grab

COMPLAINT - 1 2-


bars; and (IV) usable kitchens and bathrooms that allow an

individual who uses a wheelchair to maneuver about the space.

29. In its August 2009 inspection, MFH discovered for the first time that the

Hinesley Properties contained conditions described in the preceding

subparagraphs 28(c) and 28(d) concerning the interior of covered

multifamily units and that the City of Bozeman had approved certificates

of occupancy for units containing those conditions.

30. In June 2009, MFH filed administrative complaints with the Department of

Labor & Industry-Human Rights Bureau alleging that the Hinesley

Defendants and the Bozeman Defendants had violated and were violating

the accessibility requirements under state fair housing laws. In September

2009, MFH amended its administrative complaints against the Hinesley

Defendants and the Bozeman Defendants to include the noncompliant

conditions first discovered in August 2009.

3 1. In October 2009, the State of Montana issued a final investigative report

finding reasonable cause to believe that the Hinesley Defendants had

discriminated against persons with disabilities in violation of Section 49-2-

305, MCA, by failing, refusing, and neglecting to design and construct the

Hinesley Properties in compliance with the accessibility requirements under

COMPLAINT - 13-


state fair housing laws. In November 2009, the State of Montana certified

the case for hearing before the Department of Labor & Industry and advised

the parties of their right to elect to have this matter heard in a civil action.

32. On December 1, 2009 MFH timely elected to have this matter heard in a

civil action. This complaint is timely filed within 30 days of notice of the

election to have this matter heard in a civil action.

33. In October 2009, the State of Montana issued a right to sue letter

authorizing MFH to proceed with a civil action against the City of Bozeman

and certain city officials for violating the provisions of Sections 49-2-302,

49-2-305,49-3-204,49-3-205, MCA This complaint is timely filed within

90 days of the issuance of the right to sue letter by the State of Montana.

Injury and Harm, Pecuniary and Otherwise, to MFH

34. As a direct and proximate result of the acts and omissions of the Hinesley

Defendants and the Bozeman Defendants described above, MFH has

sustained economic losses, diversion of its resources from its program to

promote and counsel and educate about equal housing opportunities, had

its efforts to identify and remove barriers to equal housing opportunities

impaired and obstructed, had its informational programs regarding equal

housing opportunities impaired and diluted, sustained frustration of its

COMPLAINT - 14-


organizational purposes and sustained other injuries.

EXCLUSIONARY ZONING AND REGULATION IN BOZEMAN

35. Since on and before 2008, the Bozeman Defendants have engaged in a

pattern and practice of denying equal housing opportunities to persons

because of disability, age and marital status through exclusionary zoning,

code enforcement and regulatory activities.

36. Among the zoning and regulatory activities of the Bozeman Defendants

which deny equal housing opportunities to persons because of disability,

age andor marital status is Bozeman City Ordinance 5 1 8.80.1390,

"Household," in effect during periods relevant to this Complaint, which

defines a bbhousehold" as a

person living alone or any of the following groups living together as a single nonprofit housekeeping unit and sharing common living, sleeping, cooking and eating facilities: A. Any number of people related by blood, marriage, adoption, guardianship or other duly-authorized custodial relationship; B. Not more than four unrelated people, including persons enrolled in an institution of higher learning; C. Two unrelated people and any children related to either of them; or D. Not more than four people who are: (1) Residents of a "Community Residential Facility" as defined in 76-2-41 1 et seq., MCA, and this title; or "Handicapped" as defined in the Fair Housing Act, 42 USC 3602 (h).

37. For purposes of enforcing Ordinance $18.80.1390, the Defendant City of

Bozeman publishes the ordinance to the general community and makes

COMPLAINT - 15-


inquiries, investigates and creates documents regarding the age, medical

condition, marital status and other matters implicating fundamental privacy

interests of persons occupying dwellings and housing accommodations in

the City of Bozeman and, on information and belief, does so without

advance notice or an opportunity to object by the persons about whom such

inquiries and documents are made.

Exclusion and Steering of Persons with Disabilities

38. Bozeman City Ordinance 5 18.16.020, "Authorized Uses," effective August

2009 and during periods relevant to this Complaint, states:

Uses in the various residential districts are depicted in the table below. Principal uses are indicated with a "P", conditional uses are indicated with a "C", accessory uses are indicated with an "A" and uses which are not permitted within the district are indicated by a "-."

TABLE I Table of Residential Uses H

Assisted Living/Elderly care facilities C C P - I I I I

Community residential facilities (more than 4 residents)

Cooperative Housing P P P F a Fraternity & Sorority houses

I I I I I I

Single-household dwelling P P P P P ! ' ,

Two-household dwelling - ; b i b ; , bhree or four household dwelling ~ , P P P [ ,

39. Bozeman's current zoning and regulatory activities (a) exclude assisted

living facilities and elderly care facilities from Zoning Districts R-1, R-2

and R-S and (b) impose requirements on community residential facilities (of

COMPLAINT - 16-


8 or less residents) to obtain conditional use permits for Zoning Districts R-

3 and R-4.

40. An "Assisted Living Facility" ("ALF") is intended to provide housing

opportunities for persons with disabilities and the elderly. An assisted

living facility is "a congregate residential setting that provides or

coordinates personal care, 24-hour supervision and assistance, both

scheduled andunscheduled, and activities and health-related services."§50-

5-101 (7), MCA The purpose of assisted living facilities is to "provide a

setting for frail, elderly or disabled persons which provides supportive

health and service coordination to maintain the residents' independence,

individuality, privacy and dignity." Mont. Admin. Rule 37.106.2802(1).

41. A "community residential facility," as defined by Section 76-2-41 1(1),

MCA, is a community group home for developmentally, mentally, or

severely disabled persons that does not provide skilled or intermediate

nursing care. Pursuant to Section 76-2-4 12, MCA, a community residential

facility serving eight or fewer persons is a permitted use in all residential

zones, including but not limited to single family residential zones.

42. The Bozeman Defendants' exclusion of assisted living facilities and elderly

care facilities from Zoning Districts R-S, R- 1, and R-2 and the Bozeman

COMPLAINT -17-


Defendants' imposition of conditional use permits on community residential

facilities serving 8 or less residents are contrary to state law, Section 76-2-

412(3), MCA

43. The Bozeman Defendants' exclusion of assisted living facilities and elderly

care facilities from Zoning Districts R-S, R-1, and R-2 was done and is

being done with the intent and effect of denying equal housing

opportunities to persons with disabilities and with the intent and effect of

steering persons with disabilities to areas of Bozeman other than Zoning

Districts R-S, R-1 and R-2.

44. The Bozeman Defendants' imposition of additional and conditional

regulatory requirements on community residential facilities serving 5-8

persons not otherwise subject to state licensing requirements was done and

is being done with the intent and effect of denying equal housing

opportunities to persons with disabilities and with the intent and effect of

steering persons with disabilities to areas of Bozeman other than Zoning

Districts R-S, R-1 and R-2.

45. The Bozeman Defendants' making and publishing of Ordinance 18.16.020

and the accompanying chart, as well as other publications, indicate to

reasonable readers that the Bozeman Defendants have or intend to have

COMPLAINT - 18-


preferences, limitations and discrimination against persons with disabilities

in terms of housing opportunities in Bozeman.

Age-Based Exclusion and Steering of Persons (60 years or older)

46. The term "older Montanans" as defined under state law, Section 52-3-502,

MCA, means persons 60 years of age or older and means the same or is

substantially equivalent to the term "elderly" as used in the Bozeman

zoning regulations and ordinances referring to elderly care facilities.

47. The Bozeman Defendants' exclusion of elderly care facilities from Zoning

Districts R-S, R-1, and R-2 was done and is being done with the intent and

effect of denying equal housing opportunities to the elderly and with the

intent and effect of steering the elderly to areas of Bozeman other than

Zoning Districts R-S, R-1 and R-2.

48. The Bozeman Defendants' imposition of additional and conditional

regulatory requirements on community residential facilities serving 5-8

persons not otherwise subject to state licensing requirements was done and

is being done with the intent and effect of denying equal housing

opportunities to the elderly and with the intent and effect of steering elderly

to Bozeman areas other than Zoning Districts R-S, R-1 and R-2.

49. The Bozeman Defendants' making and publishing of Ordinance 18.16.020

COMPLAINT - 1 9-


and the accompanying chart, and other publications, indicate to reasonable

readers that the Bozeman Defendants have or intend to have preferences,

limitations and discrimination based on age and against the elderly in terms

of housing opportunities in Bozeman.

Age-Based Exclusion and Steering of Persons (younger than 25 years)

50. On or about eighty percent (80%) of the persons enrolled in an institution

of higher learning in Bozeman are younger than 25 years of age.

5 1. On or about June 2009 and on or about November 2009, the City, through

Defendant Hasler, sent one or more letters to the owners and/or occupants

of residential housing in the area zoned R-S, R-1 or R-2 threatening fines

and imprisonment for failing to conform to the "household" definition set

forth in Bozeman City Ordinance 8 18.80.1390, and contending that more

than four unrelated persons lived on the premises and ordering residents to

vacate the premises. The premises were occupied by more than four

unrelated residents, less than 25 years of age, all enrolled in an institution

of higher learning.

52. The Bozeman Defendants passed and have enforced Bozeman City

Ordinance 8 18.80.1390 with the intent and effect of denying equal housing

opportunities to persons who are under 25 years of age and are otherwise

COMPLAINT -20-


qualified to rent or purchase housing in Zoning Districts R-S, R-1 , and R-2.

53. The Bozeman Defendants passed and have enforced, and continue to

enforce, Bozeman City Ordinance 5 18.80.1390 with the intent and effect of

steering persons who are under 25 years of age outside of Zoning Districts

R-S, R-1, and R-2, despite the fact that those persons are otherwise

qualified to rent or purchase housing in those Zoning Districts.

54. The Bozeman Defendants passed and have enforced and continue to

enforce Bozeman City Ordinance 51 8.80.1 390 in a manner which has a

significant disproportionate impact on and otherwise makes unavailable

housing opportunities to persons under 25 years of age who are qualified

to rent or purchase housing in Zoning Districts R-S, R- 1, and R-2 and steers

persons under 25 years of age to other Zoning Districts in the City.

Exclusion and Steering of Persons Based on Marital Status

55. Bozeman City Ordinance 5 18.80.1390: (a) permits any number of persons

who are "related by ... marital status" to live in a household occupying a

residential home in Zoning Districts R-S, R- 1, and R-2; (b) prohibits more

than four persons who are unrelated by marital status or otherwise to live

in a household occupying a residential home in those Zoning Districts; and

(c) prohibits more than two persons unrelated by marital status or otherwise

COMPLAINT -2 1 -


with their respective minor children to live in a household occupying a

residential home in those Zoning Districts.

56. The zoning, ordinance and regulatory activities of the Bozeman Defendants

afford greater housing opportunities to persons related by marital status

than to persons not related by marital status and are done with the intent and

effect of steering persons because of their unmarried status to Zoning

Districts other than R-S, R-1 and R-2.

57. The Bozeman Defendants' making and publishing of Ordinance

§ 18.80.1390 indicate to reasonable readers that the Bozeman Defendants

have or intend to have preferences, limitations and discrimination against

persons based on marital status in terms of housing opportunities in the City

of Bozeman.

Injury and Harm, Pecuniary and Otherwise, to MFH

58. On multiple occasions, MFH has received requests for counseling and

information from housing providers and housing consumers concerning the

lack of nondiscriminatory housing opportunities for persons with

disabilities, the elderly, persons under age 25 years and persons not related

by marital status in the areas in close proximity to Montana State University

in Bozeman, including but not limited various Bozeman Zoning Districts

COMPLAINT -22-


classified as R-S, R- 1, and R-2.

59. In response to the requests for counseling and information described above,

MFH has had to investigate zoning, ordinance and regulatory practices

employed by the Bozeman Defendants and has had to exclude certain

housing opportunities from its services listing nondiscriminatory housing

that MFH has identified and furnished to constituents, to housing providers

and to others.

60. In June 2009, MFH filed an administrative complaint with the Montana

Department of Labor & Industry-Human Rights Bureau alleging that the

Bozeman Defendants were engaged in unlawful and discriminatory

practices against persons based on disability, age and marital status.

61. In October 2009, the State of Montana issued a final investigative report

finding that the Bozeman Defendants had discriminated against persons

based on disability and age in violation of various provisions of the

Montana Human Rights Act and Governmental Code of Fair Practices by

enacting and enforcing Bozeman Ordinance 4 18.80.1390 and other zoning,

ordinances and regulations. In November 2009, the State of Montana

certified the case for hearing before the Department of Labor & Industry

and advised the parties of their right to elect to have this matter heard in a

COMPLAINT -23-


civil action. MFH timely elected to have this matter heard in a civil action.

This complaint was timely filed within 30 days of notice of the election to

have this matter heard in a civil action.

62. On various dates during the period from on or about August 2009 through

on or about November 2009, Plaintiff made requests orally and in writing,

and made other efforts expending its resources, to inspect and copy certain

public records in the possession of the City of Bozeman pursuant to the

provisions of the Montana Constitution, Article 11, Section 9, and

corresponding state laws.

63. In response to the requests described in the preceding paragraph, Defendant

City of Bozeman promised and represented that it would make available for

inspection and copying certain public records that Plaintiff requested, but

Defendant City of Bozeman has failed and rehsed and neglected to do so

through the date of this Complaint.

64. As a direct and proximate result of the acts and omissions of the Bozeman

Defendants described above regarding its zoning, ordinances and

regulations concerning residential housing and regarding the City's actions

and omissions in failing and refusing to make available public records for

inspection, MFH has sustained economic losses and diversion of its

COMPLAINT -24-


resources from its program to promote and counsel and educate about equal

housing opportunities, had its efforts to identie and remove barriers to

equal housing opportunities impaired and obstructed, had its informational

programs regarding equal housing opportunities impaired and diluted,

sustained frustration of its organizational purposes and sustained other

injuries.

ALLEGATIONS INCORPORATED INTO CLAIMS FOR RELIEF

65. MFH realleges and incorporates in the following Claims for Relief (Counts)

the facts alleged in Paragraphs 3-64 above.

66. The allegations set forth in Counts IX, X and XI are allegations of unlawful

acts done without any intent to discriminate against any person because of

disability, age or marital status and are pled in addition to or in the

alternative to the Plaintiffs claims of unlawful discrimination against the

Bozeman Defendants under Mont. Code Ann. Title 49.

CLAIMS FOR RELIEF

COUNT I Federal Fair Housing Act Violations By Hinesley Defendants

67. The Hinesley Defendants have and are engaged in violations of the Federal

Fair Housing Act, 42 USC $53601 et seq, causing injury to the Plaintiff and

COMPLAINT -25-


violating its rights thereunder.

68. The Hinesley Defendants are liable to Plaintiffs for damages as permitted

by law.

69. Plaintiff is entitled to an order of declarative, injunctive and affirmative

relief requiring the Hinesley Defendants to bring the Subject Property into

compliance with the accessibility requirements of 42 USC §3604f,

providing equal housing opportunities to persons with disabilities, and

minimizing the likelihood of future violations ofthe accessibility provisions

of the Fair Housing Act.

COUNT I1 State Human Rights Act Violations by Hinesley Defendants

70. The Hinesley Defendants have and are engaged in violations of the

Montana Human Rights Act, Mont. Code Ann. Title 49, causing injury to

the Plaintiff and violating its rights thereunder.

7 1. The Hinesley Defendants are liable to Plaintiffs for damages as permitted

by law.


relief which requires the Hinesley Defendants to bring the Subject Property

into compliance with the accessibility requirements of 49-2-305, which

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provides equal housing opportunities to persons with disabilities, and which

minimizes .the likelihood of future violations of the accessibility provisions

of the Montana Human Rights Act.

COUNT I11 Federal Fair Housing Act Violations by Bozeman Defendants

73. The Bozeman Defendants, acting individually and in one combination or

another, have and are engaged in violations of the Federal Fair Housing

Act, 42 USC $$3601 et seq, causing injury to the Plaintiff and violating its

rights thereunder.

74. The Bozeman Defendants are liable to the Plaintiff in damages as permitted

by law.


relief which enjoins the Bozeman Defendants from engaging in any further

violations of the Fair Housing Act, provides equal housing opportunities

to persons with disabilities, and which minimizes the likelihood of future

violations of the provisions of Fair Housing Act by the Bozeman

Defendants.

COUNT IV ADA Violations by Defendant City of Bozeman

76. The Defendant City of Bozeman has and is engaged in violations of the

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Americans with Disabilities Act, 42 USC $ 12 13 1 et. seq., causing injury

to the Plaintiff and violating its rights thereunder.

77. The City of Bozeman is liable to the Plaintiff in damages as permitted by

law.


relief which enjoins the City of Bozeman from engaging in any further

violations of the ADA, requires the provisions of services on an equal

opportunity basis to persons with disabilities, and which minimizes the

likelihood of future violations of the provisions of ADA.

COUNT V Section 504 Violations by Defendant City of Bozeman

79. The Defendant City of Bozeman has and is engaged in violations of the Sec.

504 of the Rehabilitation Act, 29 USC $794, causing injury to the Plaintiff

and violating its rights thereunder.

80. The City is liable to the Plaintiff in damages as permitted by law.


relief which enjoins the City of Bozeman from engaging in any further

violations of the Rehabilitation Act, requires the provisions of services on

an equal opportunity basis to persons with disabilities, and which

COMPLAINT -28-


minimizes the likelihood of future violations of the provisions of Section

504 of the Rehabilitation Act.

COUNT VI Section 1983 Violations by the Defendant City of Bozeman

82. The Defendant City of Bozeman, by enacting and enforcing its zoning

ordinances and regulations, has denied due process and equal protection of

the laws to persons because of disability, age and marital status contrary to

the provisions of the Fourteenth Amendment and in violation of 42 USC

5 1983, and has thereby caused injury to the Plaintiff.


law.

84. Plaintiff is entitled to an order of declarative, iujunctive and affirmative

relief which enjoins the City of Bozeman from engaging in further

violations of the due process and equal protection provisions of the

Fourteenth Amendment and minimizes the likelihood of future violations

of those constitutional protections.

COUNT VII Title 49 Unlawful Discrimination Against Persons by the Bozeman Defendants

Based on Disability, Age and Marital Status

85. The Bozeman Defendants, acting individually and in one combination or

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another, have and are engaged in violations of provisions of the Montana

Human Rights Act, including Sections 49-2-302 and 49-2-305, causing

injury to the Plaintiff and violating its rights thereunder.


provisions of the Montana Human Rights Act, Section 49-2-308,

prohibiting unlawful discrimination by a political subdivision, causing

injury to the Plaintiff and violating its rights thereby.

87. The Bozeman Defendants are each liable to the Plaintiff in damages as

permitted by law.


relief which enjoins the Bozeman Defendants from engaging in any further

violations of Montana Human Rights Act, provides equal housing

opportunities without regard to disability or age or marital status, and which

minimizes the likelihood of future violations of the provisions of Human

Rights Act by the Bozeman Defendants.

COUNT VIII Defendant City of Bozeman's Breach of Governmental Code of Fair Practices


provisions of the Montana Governmental Code of Fair Practices, Sections

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49-3-204 and 49-3-205, and has breached its affirmative duties thereunder,

causing injury to the Plaintiff and violating its rights thereby.

90. The City is liable to the Plaintiff in damages as permitted by law.


relief which enjoins Defendant City of Bozeman from engaging in any

further violations of Montana Governmental Code of Fair Practices and any

further failures to discharge its affirmative duties thereunder, and which

minimizes the likelihood of future violations of the provisions of Act by

Defendant City of Bozeman.

COUNT IX Bozeman Defendants7 Unlawful Violations of State Building Codes

92. The State ofMontana requires cities, including Defendant City ofBozeman,

to review plans prior to issuing building permits, to inspect buildings prior

to issuing certificates of occupancies and to enforce building codes in

accordance with standards adopted by the Montana Department of Labor

& Industry. See: Sections 50-60-106, 50-6-201, and 50-6-203, MCA.

93. The Montana Department of Labor & Industry has adopted the 2006

International Building Code and 2006 International Residential Code

pursuant to duly promulgated regulation. See: Rules 24.301.131,

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24.301.154, ARM.

94. The City of Bozeman adopted the 2006 International Building Code and the

2006 International Residential Code in compliance with state laws and

regulations in February 2007.

95. The Bozeman Defendants have acted in a manner that is and has been and

continues to be arbitrary and capricious and unlawful, resulting in injury to

the Plaintiff, its staff, directors, associates and constituents: (a) by failing

and refusing to issue building permits and to inspect properties, including

the Hinesley properties, consistent with the standards described in the

preceding three paragraph; (b) by issuing certificates of occupancies for

dwellings and housing accommodations, including those located at the

Hinesley properties, which do not comply with the standards described in

the preceding three paragraphs; and (c) by adopting and enforcing

ordinances, including without limitation, Ordinances 1 8.80.1390 and

18.16.020, that are inconsistent with the standards described in the

preceding three paragraphs.

96. Plaintiff is entitled to an order of declaratory, injunctive and affirmative

relief prohibiting the Bozeman Defendants from engaging in any further

acts or omissions that are arbitrary and capricious or otherwise unlawful

COMPLAINT -32-


and in violation of state building codes and regulations.

COUNT X Violations of Mont. Const. Art. 11, Sec. 10 by Bozeman Defendants

97. The Bozeman Defendants, by enacting and enforcing its zoning ordinances

and regulations which create and maintain impediments to equal housing

opportunities, had and has deprived persons of their rights to privacy as

guaranteed by Section 10 of Article I1 of the Montana Constitution and has

thereby caused injury to the Plaintiff, its staff, directors, and constituents

and people with whom the MFH staff, directors and constituents associate.


relief which enjoins the City of Bozeman from engaging in further

violations of the provisions of the Montana Constitution protecting the

privacy of the staff, directors and constituents of the Plaintiff, and people

with whom they associate, and minimizes the likelihood of future violations

of those constitutional protections.

COUNT XI Defendant City of Bozeman's Violation of Mont. Const. Art.11, Sec. 9

99. Defendant City of Bozeman has deprived Plaintiff the right to examine

public records and documents in violation of Article 11, Section 9, of the

Montana Constitutiona and has thereby caused injury to Plaintiff.

COMPLAINT -33-



law.


relief which enjoins the City of Bozeman from further depriving Plaintiff

of its rights to examine public records and documents in the possession of

the Defendant City and minimizes the likelihood of future violations of

those constitutional rights.

WHEREFORE, Plaintiff requests judgment in its favor and against each of the

Defendants as set forth above and further requests that the Court:

A. Declare that (1) the Hinesley Defendants designed and constructed and

have operated the Hinesley Properties in a manner that violates the

accessibility requirements of federal and state fair housing laws and (2) the

Bozeman Defendants have engaged in zoning, regulatory and code

enforcement activities that have denied and continue to deny persons equal

housing opportunities because of disability, age and marital status and that

fail to conform to state building codes and regulations;

B. (1) Enjoin each of the Hinesley Defendants from continuing in their failure

to comply with the accessibility requirements of federal and state fair

housing laws and fiom failing to design or construct any future dwellings

COMPLAINT -34-


or housing accommodations in a manner that complies with federal and

state fair housing laws and (2) Enjoin each of the Bozeman Defendants

from engaging in zoning, regulatory and code enforcement activities that

deny persons equal housing opportunities because of disability, age or

marital status and (3) Enjoin the City of Bozeman from engaging in zoning,

regulatory and code enforcement activities .that violate state laws, including

but not limited to state building codes and the state constitutional privacy

rights of persons;

(1) Order the Hinesley Defendants to take such affirmative steps, including

retrofitting the dwellings and housing accommodations and common use

areas at the Hinesley Properties, sufficient to bring the Hinesley Properties

into compliance with the accessibility requirements of federal and state fair

housing laws and do so at the earliest date practicable in a manner which

arranges for current residents and occupants to vacate the premises and

occupy comparable dwellings - at the cost of the Hinesley Defendants - for

a sufficient time to permit the retrofitting, and (2) Order the Bozeman

Defendants to take such affirmative steps necessary to minimize the

likelihood of additional and future violations of the Fair Housing Act,

ADA, Section 504, Human Rights Act and Governmental Code of Fair

COMPLAINT -35-


Practices, including but not limited to adoption of nondiscriminatory zoning

laws and ordinances, training of personnel in nondiscriminatory zoning and

code enforcement, independent third party analysis of all of the City's

operations regarding the provision of housing opportunities in terms of

compliance with state nondiscrimination policy and adoption and

implementation of comprehensive program to cure any defects identified,

and public notice of the unenforceability of the current discriminatory

zoning and ordinances at issue in this case.

D. Award damages to Plaintiff as permitted by law against the Hinesley

Defendants and against the Bozeman Defendants and each of them in

amounts sufficient to rectify the harm, pecuniary or otherwise, done to

MFH as a result of the unlawful acts of the Defendants and each of them;

E. Award punitive damages to Plaintiffas permitted by law against each ofthe

Hinesley Defendants and against each of the individual Bozeman

Defendants in amounts that is sufficient to deter said Defendants and

similarly situated others from engaging in similar unlawhl acts in the

fbture;

F. Order the Defendants and each of them to pay the Plaintiff its costs,

including reasonable attorney fees, for prosecuting this action as determined

COMPLAINT -36-


in an appropriate proceeding after determination that the Plaintiff is the

prevailing party in this case;

G. Grant such other relief as the Court deems fair and equitable.

Signed this 8th day of December, 2009.

IS/ Timothy C. Kelly

Timothy C. Kelly, One of the Attorneys for Plaintiff

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montana fair housing's complaint against the city of bozeman

Documents