NEW HORIZONS REHABILITATION, INC. v. STATE OF INDIANA et al
ENTRY GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 7 Motion for Preliminary Injunction is GRANTED. New Horizons is entitled to designation as a Class 2 structure and waiver of the fire suppression system during the pendency of these proceedings. See Entry for details. Signed by Judge Tanya Walton Pratt on 10/27/2017. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
NEW HORIZONS REHABILITATION, INC.,
STATE OF INDIANA, and EXECUTIVE
DIRECTOR, INDIANA DEPARTMENT OF
HOMELAND SECURITY in his official capacity, )
Case No. 4:17-cv-00049-TWP-DML
ENTRY GRANTING PLAINTIFF’S MOTION FOR
This matter is before the Court on a Motion for Preliminary Injunction pursuant to Federal
Rule of Civil Procedure 65 filed by Plaintiff New Horizons Rehabilitation, Inc. (“New Horizons”).
(Filing No. 7.) New Horizons challenges the constitutionality of a zoning determination regarding
a single-family dwelling unit that it intends to build and operate. The Defendants are the State of
Indiana (“the State”) and the Executive Directory, Indiana Department of Homeland Security in
his official capacity (“DHS”). New Horizons alleges the State’s zoning determination is in
violation of the Equal Protection Clause of the United States Constitution; the Fair Housing
Amendments Act, 42 U.S.C. § 3604(f); the Rehabilitation Act, 29 U.S.C. 794; and the American
with Disabilities Act, 42 U.S.C. § 12132. New Horizons seeks to preliminarily enjoin DHS from
classifying its proposed home as a Class 1 structure and a waiver from the fire suppression system
requirement. On October 6, 2017, the Court conducted a hearing on New Horizons’ Motion. For
the following reasons, the Court grants New Horizons request for a preliminary injunction.
These factual findings rest on a review of the partial record in the administrative proceeding
and evidence and argument presented during the preliminary injunction hearing held on October
6, 2017. New Horizons is a non-profit organization that serves the needs of people with intellectual
and developmental disabilities in the southeastern counties of Indiana. Among other things, New
Horizons provides the following services for its clients: community based employment services
through job training, placement and follow-along services, individualized home and communitybased services, day program services, respite care, family support, pre-vocational training, and
work opportunities. It also provides residential living options, with support, to a number of its
clients through six homes that it owns and operates for adults with intellectual and developmental
disabilities in three Indiana communities.
New Horizons plans to open a new supported living home for its disabled clients in
Lawrenceburg, Indiana, in an area zoned for single-family residences. The house will be the
permanent home for three unrelated adults with intellectual and developmental disabilities. New
Horizons staff will be present 24 hours a day to ensure the safety of the residents and offer other
support, however they will not live there. The residents live together because their care is paid for
by Indiana’s Medicaid Waiver which allows them to live outside of institutions. The planned
Lawrenceburg home will be operated similar to the six existing supportive living homes, one of
which is located in Lawrenceburg. All of the homes are designed to allow residents to live with
the greatest level of independence as possible. The residents share expenses, cooking, eating, and
activities. They use their Social Security Disability or Social Security Income to pay for their food
and other personal expenses. The homes are not intended for transient stays and are designed as
permanent housing for residents for as longs as they live. (Filing No. 22-1 at 3.) There are no
locks on the interior doors of the homes and the residents live as a family would. The houses are
completely indistinguishable from the other single-family houses in the neighborhoods. The
planned home will be properly set off from the street and other property and will meet all the other
requirements for a single-family residence under the ordinances, rules, and regulations of the City
Previously, New Horizons supportive living homes have been treated by building
authorities as Class 2 single-family residential structures. In the past, New Horizons worked with
local zoning and building authorities in the communities where the homes are located when
seeking zoning approval to build and open single family-homes for its residents. New Horizons
has a builder in place to construct the planned home and Lawrenceburg city officials agreed to
treat New Horizons’ planned home in the same manner as other single-family residences. (Filing
No. 22-1 at 5.) However, during the process, a Lawrenceburg employee informed New Horizons
that the planned home would need to be approved by DHS because it was deemed a commercial
building. (Filing No. 22-1 at 6.) New Horizons was later informed that DHS had classified its
planned supported living home as a Class 1 structure as opposed to being classified as a Class 2
The point of contention between the parties is that New Horizons’ Class 1 structure
classification means it must have an automatic fire suppression sprinkler system in the home which
it estimates would cost at least $9,800.00. During the course of the proceedings, New Horizons
requested a variance, as required, from DHS’s Fire Prevention and Building Safety Commission
(“the Commission”) to waive the fire suppression system requirement, which the Commission
denied giving rise to the failure to accommodate claim. (Filing No. 34 at 11.) The Commission
did not grant the variance because it found that New Horizons would not suffer a financial hardship
based on a percentage calculation of the cost of the fire suppression system in relation to the total
cost of the home.
The area in which New Horizons plans to build the home is zoned for single-family
residences. (Filing No. 22 at 5.) In order to obtain approval for the construction and opening of a
Class 1 structure, a design release must be obtained from the Commission. Id. at 7. Class 1
structures also require the payment of filing and processing fees, along with the submission of
detailed building plans. Class 2 structures—single or two dwelling unit structures—do not require
a fire suppression sprinkler system and do not have the elevated design requirements and payment
of fees that Class 1 structures require.
New Horizons asserts that DHS has subjected their zoning request to build a single-family
dwelling unit in Lawrenceburg to elevated requirements in violation of the Equal Protection Clause
to the United States Constitution, the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. §
3604(f); the Rehabilitation Act, 29 U.S.C. 794; and the American with Disabilities Act (“ADA”),
42 U.S.C. § 12132. New Horizons filed a Complaint on March 14, 2017, and the Motion for
Preliminary Injunction on the basis of the Class 1 designation on March 17, 2017. (Filing No. 1;
Filing No. 7.) Soon after the denial of the variance request, New Horizons filed Supplemental
briefing in support of its Motion for Preliminary Injunction on July 17, 2017. (Filing No. 34.)
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). Granting a preliminary
injunction is “an exercise of a very far-reaching power, never to be indulged in except in a case
clearly demanding it.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984)
(citation and quotation marks omitted). When a district court considers whether to issue a
preliminary injunction, the party seeking the injunctive relief must demonstrate that:
(1) it has a reasonable likelihood of success on the merits of its claim; (2) no
adequate remedy at law exists; (3) it will suffer irreparable harm if preliminary
injunctive relief is denied; (4) the irreparable harm it will suffer without preliminary
injunctive relief outweighs the irreparable harm the nonmoving party will suffer if
the preliminary injunction is granted; and (5) the preliminary injunction will not
harm the public interest.
Platinum Home Mortg. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998).
The greater the likelihood of success, the less harm the moving party needs to show to obtain an
injunction, and vice versa. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States
of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).
New Horizons challenges DHS’s interpretation of the Indiana statutes in classifying its
planned home as a Class 1 structure and asserts two claims. First, New Horizon argues that the
variance denial was a failure to accommodate under all three federal statutes (ADA, FHAA, and
the Rehabilitation Act). Secondly, it asserts it that DHS’s Class 1 determination represents
intentional discrimination in violation of the three statutes as well as equal protection.
Indiana Code § 22-12-1-4 provides that Class 1 structures are structures where any part of
the building or structure is intended to be used or occupied by any of the following: (1) the public;
(2) three or more tenants; or (3) one or more persons who act as employees of another.
Indiana Code § 22-12-1-5 provides that a Class 2 structure is a structure where any part of
the building or structure is intended to contain only one dwelling unit or two dwelling units unless
any part of the building or structure is regularly used as a Class 1 structure.
Indiana Code § 12-28-4-8 provides:
(a) A residential facility for individuals with a developmental disability:
(1) for not more than eight (8) individuals with a developmental disability;
(2) established under a program authorized by IC 12-11-1.1-1(e)(1) or IC
is a permitted residential use that may not be disallowed by any zoning ordinance
(as defined in IC 36-7-1-22) in a zoning district or classification that permits
(b) A zoning ordinance may only require a residential facility described in
subsection (a) to meet the same:
(1) zoning requirements;
(2) developmental standards; and
(3) building codes’
as other residential structures or improvements in the same residential zoning
district or classification. 1
AS stated earlier, in order to obtain a preliminary injunction, New Horizons must show that
it has a reasonable likelihood of success on the merits of the claims, that no adequate remedy at
law exists, that it will suffer irreparable harm if a preliminary injunction is denied, that the
irreparable harm it will suffer without preliminary injunctive relief outweighs the irreparable harm
the State will suffer if the preliminary injunction is granted, and that the preliminary injunction
will not harm the public interest. Platinum Home Mortg. Corp., 149 F.3d at 726. The Court will
address the first threshold factor before addressing the final four factors together.
Standing and Immunity
Before tackling the merits of this case, the Court turns to the State’s argument that New
Horizons lacks standing on its reasonable accommodation claim. The State argues there is no
causal connection between the Commission’s variance denial and the State of Indiana because
neither the agency of DHS nor the Commission are defendants in this action. This argument is
without merit. The Commission is housed within DHS as one of its Boards and Commissions.
New Horizons concedes that it cannot raise a state law claim to enforce DHS to follow state law under Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984), but argues that it encapsulates what the FHAA, ADA, and
Rehabilitation Act require in that the New Horizons home be treated identically to single-family homes housing a
DHS is charged with administering the statutory section within which the Commission is created.
Ind. Code § 22-12-2-1. In addition, New Horizons exhausted the only remedy it had available in
seeking a variance from the Commission. While the State may have Eleventh Amendment
immunity against the ADA claim, Congress has expressly abrogated the State’s immunity under
the Rehabilitation Act; under these circumstances, standing exists and a preliminary injunction can
Likelihood of Success on The Merits
In determining whether or not the plaintiff can demonstrate a reasonable likelihood of
success on the merits, “[t]he court weighs the balance of potential harms on a ‘sliding scale’ against
the movant’s likelihood of success: the more likely he is to win, the less the balance of harms
must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.” Turnell
v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015). “In the preliminary injunction context, a
‘likelihood of success’ exists if the party seeking the injunctive relief shows that it has a ‘better
than negligible’ chance of succeeding on the merits.” Washington v. Indiana High School Athletic
Ass’n, Inc., 181 F.3d 840, 846 (7th Cir. 1999) (quoting Meridian Mutual Ins. Co. v. Meridian Ins.
Group, Inc., 128 F.3d 1111, 1114 (7th Cir. 1997).
The Fourteenth Amendment provides, “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside.” The Equal Protection Clause provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” The United States Supreme Court has
stated that the Equal Protection Clause requires that “all persons similarly circumstanced shall be
treated alike.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (citations and internal quotations omitted).
“Proof of  discriminatory intent or purpose is required to show a violation of the Equal Protection
Clause.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
265 (1977). “A statute, otherwise neutral on its face, must not be applied so as invidiously to
discriminate. . .” See Washington v. Davis, 426 U.S. 229, 241 (1976). The parties agree that
rational basis scrutiny must be employed, therefore the government’s classification must only be
rationally related to a legitimate government interest. See, e.g., R.A.V. v. City of St. Paul, Minn.,
505 U.S. 377, 406 (1992).
New Horizons argues that in classifying its planned home as a Class 1 structure, in contrast
to how a single family residence would be classified, DHS has intentionally discriminated against
disabled people in violation of the Fourteenth Amendment, FHAA, ADA, and the Rehabilitation
Act. 2 New Horizons argues that its residents will constitute a family. DHS argues that it is
applying a neutral rule in classifying New Horizons and that the government has a rational basis
for the classification—safety. DHS explains that it classified New Horizons’ planned home as a
Class 1 structure for two reasons. First, New Horizons would house three people that are
considered tenants as New Horizons operates more akin to a commercial landlord and accepts
payments from Medicaid for them to live there. Second, it contends the employees’ presence
qualifies New Horizons’ home as a Class 1 structure and that the employees exercise some degree
of control over the residents.
New Horizons responds that DHS is classifying its planned home and its residents based
on attributes that are direct results of their status as persons with disabilities. Further, New
The Court limits New Horizons’ intentional discrimination claim to an Equal Protection violation, as the ADA,
FHAA, and Rehabilitation Act may all be violated by a failure to accommodate which will be addressed in Section
III(B)(2). “Discrimination under both acts (Rehabilitation Act and ADA) may be established by evidence that (1) the
defendant intentionally acted on the basis of the disability, (2) the defendant refused a reasonable modification, or (3)
the defendant’s rule disproportionally impacts disabled people.” Washington, 181 F. 3d at 847.
Horizons argues the rules are not applied neutrally and offers hypotheticals in which DHS admitted
it would classify a structure with similar characteristics to the New Horizons home as a Class 2
structure. As examples, New Horizons notes that foster homes that house children who pay to stay
in the homes are not considered “tenants”, and full-time caregivers coming into the home of a
“normal” family are not deemed to create the employer-employee relationship giving rise to a
Class 1 structure.
New Horizons argues that DHS’s classification of them is a direct result of their residents’
status and characteristics as persons with disabilities because other structures’ Class 2 status is not
destroyed by relationships similar to that of New Horizons and its residents. “Defendants have
imposed burdens on the creation of single-family homes for persons with disabilities that are not
applicable to the non-disabled, and they have not justified this disparate treatment.” Sharpvisions,
Inc. v. Borough of Plum, 475 F.Supp.2d 514, 525 (W.D. Penn. 2007) (holding neutral policy that
subjected home for disabled to more stringent zoning requirements because of the presence of
employees constituted intentional discrimination 3).
The State points the Court to Oxford House, Inc. v. Browning, Civil Action No. 15-00282BAJ-EAD 2017 WL 3140744 at *14 (M.D. La. July 24, 2017), in which a district court in
Louisiana held that because a home for recovering alcoholics operated more like a family, the state
had discriminated against the residents when it subjected their home to more stringent
requirements. Although this holding was based in part on the social hierarchy the house had, a
family need not necessarily operate on hierarchical terms such as in homes where a husband and
wife with equal decision making authority and no dependents live. However, a hierarchy is not
the only defining characteristic that a family may have, and New Horizons has shown that its
The parties in Sharpvisions also disputed whether the home should be treated as a “family” home or “group” home.
permanent residents will operate like a family in their living arrangements and the bond that they
In order for New Horizons’ residents to be placed outside of institutions they have to live
in a group setting so that payment can be made for their care and employees are able to monitor
their care. Despite the technically neutral policies, the Court finds that DHS’s interpretation of its
statutes as applied to New Horizons violates the Equal Protection Clause because the classification
subjects the residents to more stringent requirements that other single-family dwellings are not
subjected to and the distinction is being made based on characteristics of the disability status of
New Horizons’ residents. New Horizons has shown a better than negligible chance of success on
the merits of intentional discrimination under the Equal Protection Clause and DHS’s
interpretation would also likely qualify as intentional discrimination in violation of the three
federal statutes. The evidence shows that New Horizons’ residents will be permanent residents of
the planned home as long as they live, their rental payments will not increase, and they will
function socially as a family; therefore, they should be treated the same as nuclear families living
in a single-family residence and classified as a Class 2 structure.
DHS contends that safety is the rational basis for the classification because the disabled
can be particularly vulnerable in an emergency. New Horizons’ planned home will have around
the clock supervision, therefore the threat of an emergency is not a legitimate governmental interest
because this supervision actually makes the home safer than single-family residences within the
same zoning area that do not have this added protection and are not required to have a fire
suppression system. The United States Supreme Court held that zoning ordinances that treat the
disabled differently—based on special circumstances that their disability status imposes—than
other permitted uses are largely irrelevant unless the disabled home would threaten legitimate
interests of a city in a way that other permitted uses would not. City of Cleburne, Tex. V. Cleburne
Living Center, 473 U.S. 432, 448 (1985). “This ordinance makes no attempt at individualizing its
requirements to the needs or abilities of particular kinds of developmental disabilities.”
Marbrunak, Inc. v. City of Stow, Ohio, 974 F.2d 43, 47-48 (6th Cir. 1992) (holding ordinance’s
safety standards were not tailored to the needs and abilities of developmentally disabled people).
The safety requirement being imposed on New Horizons is based on an irrational generalization
based on disability status. Because New Horizons’ planned home does not pose any special threat
with regards to susceptibility to fires than other homes housing a nuclear family poses, and the
statute at issue is not tailored at making homes safer for those with developmental disabilities, the
State has not shown that it has a rational basis for the classification.
The Court finds that New Horizons has shown a reasonable likelihood of success on the
merits on its intentional discrimination claim in violation of Equal Protection. Although the
classification appears to be based on neutral policies, the Seventh Circuit has held that technically
neutral classifications cannot be used as proxies to evade the prohibition of intentional
discrimination. McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (“[T]he line between
disparate treatment and disparate impact is actually finer than the above discussion suggests,
particularly in the context of handicap discrimination.”).
The Commission’s denial of the variance request, which would have waived the fire
suppression system requirement, gave rise to New Horizons’ failure to reasonably accommodate
New Horizons cites three federal statutes that this requirement violated:
Rehabilitation Act, and Title II of the ADA. Eleventh Amendment Immunity operates differently
under the three statutes. New Horizons concedes that the Eleventh Amendment would preclude
suit against the State on the ADA claim. “That said, the Eleventh Amendment was not an obstacle
for Barrett because damages are available against the State of Wisconsin under the Rehabilitation
Act.” Barrett v. Wallace, 570 Fed. Appx. 598, 600 n.1 (7th Cir. 2004). Nevertheless, Congress
expressly made its intent clear that a state is not immune for a violation of Section 504 of the
Rehabilitation Act of 1973 if a state program receives federal funding. See 42 U.S.C. § 2000d7(a)(1). “Program or activity” is defined as “all of the operations of . . . a department, agency,
special purpose district, or other instrumentality of a State or a local government.” 29 U.S.C. §
794(b)(1)(A). Therefore, both DHS and the Commission fall under the definition of program or
activity of a state or local government. It is undisputed that DHS is a recipient of federal funding;
however, the State attempts to distinguish itself from DHS and the Commission for liability under
the Rehabilitation Act. This argument lacks merit because the State is liable for damages if there
is a Rehabilitation Act violation, as the Commission’s operations fall under the umbrella of DHS,
a state agency. Regardless of the Eleventh Amendment immunity, injunctive relief is available
against Defendant DHS’s Executive Director under the principles of Ex Parte Young, 209 U.S.
123, 159 (1908), which allows private parties to sue individual state officials for prospective relief
to enjoin ongoing violations of federal law.
For purposes of the reasonable accommodation claim, there are very subtle substantive
differences between the three statutes.
“The whole purpose behind the FHAA and ADA
reasonable accommodation provisions is to prohibit  local governments from applying land use
regulations in a manner that will . . . give disabled people less opportunity to live in certain
neighborhoods than people without disabilities.” Good Shepherd Manor Foundation, Inc. v. City
of Momence, 323 F.3d 557 (7th Cir. 2003). “[S]ubstantive law governing ADA and Rehabilitation
Act is the same except that the Rehabilitation Act includes as an additional element the receipt of
federal funds.” Barrett, 570 Fed. Appx. 600 n.1.
The FHAA requires a reasonable accommodation to zoning rules when necessary to
provide a disabled person with equal opportunity to obtain housing. Wisconsin Community
Services, Inc. v. City of Milwaukee, 465 F.3d 737, 745 (7th Cir. 2006). The requirements for
showing failure to reasonably accommodate are the same under the ADA and FHAA. Good
Shepherd Manor, 323 F.3d at 561.
“These statutes require a public entity to reasonably
accommodate a disabled person by making changes in rules, policies, practices or services as is
necessary to provide that person with access to housing that is equal to that of those who are not
disabled.” Id. To state a claim under the Rehabilitation Act, a plaintiff need only allege that (1)
she is a qualified person, (2) with a disability and that the defendant denied her access to a program
or activity because of her disability. See Jaros v. Illinois Dept. of Corrections, 684 F.3d 667,672
(7th Cir. 2012) (holding that “refusing to make reasonable accommodations is tantamount to
denying access”). Thus, all three statutes require reasonable accommodations to be made when
the circumstances demand, and the Court will treat these issues as one. “In the zoning context, a
municipality may show that a modification to its policy is unreasonable if it is so at odds with the
purpose behind the rule that it would be a fundamental and unreasonable change.” Wisconsin
Community Services, Inc., 465 F.3d at 753 (internal quotation marks and citations omitted).
It is important to note that New Horizons owns six other supported living homes, which in
the past were not required to go through the Class 1 structure approval process nor install fire
suppression systems. Further, the Commission’s variance process is designed to address situations
such as accommodation requests. New Horizons is concerned regarding the ripple effect that the
Class 1 classification will have on its other homes. The State responds that this injury is
New Horizons argues that a reasonable accommodation of waiving the commercial fire
suppression system is required to allow their residents equal access to housing. The Court agrees
that New Horizons has a likelihood of succeeding on the merits of its reasonable accommodation
The State’s position is that a fire sprinkler safety requirement does not completely prevent
anyone from living in a house and that through the variance process it was determined that
requiring New Horizons to pay the cost of the fire sprinkler system would not be overly financially
burdensome. The State concludes by stating that New Horizons’ planned home is being treated as
a residence with three or more tenants which would be classified as a Class 1 structure regardless
of the disabilities of New Horizons’ residents.
The State reasons that the more stringent
requirement of the fire suppression system is due to the fact that the law assumes a certain
coordination in emergencies when the structure is for only one or two dwelling units, i.e., a Class
2 structure. Further, the State argues that the Class 1 structure designation does not deny equal
access and opportunity, but represents the State’s interest to neutrally make some structures safer
because there is more risk.
The State cites support in that the Seventh Circuit has expressly disapproved of district
court cases that have held that a city must, if requested by a handicapped person, waive its
requirements for the installation of sprinklers because the requirements make homes more
expensive for the handicapped—as for everyone. Hemisphere Bldg. Co., Inc. v. Village of Richton
Park, 171 F.3d 437 (7th Cir. 1999). However, the Seventh Circuit also noted in that case that the
duty of accommodation extends to rules and policies “that hurt handicapped people by reason of
their handicap, rather than that hurt them solely by what they have in common with other people,
such as limited amount of money to spend on housing.” Id. At 440 (citations omitted) (emphasis
in original). This crucial distinction is exactly what New Horizons has argued—that the Class 1
classification treats homes for the disabled differently than homes for non-disabled single-unit
family homes in that the disability status of New Horizons’ residents is why their planned home is
being classified as a Class 1 structure in the first place. This is discrimination that subjects New
Horizons’ residents to the fire suppression system requirement that other residential homes are not
subject to. The Court agrees with New Horizons that its request for accommodation of the waiver
of the fire suppression system would allow their residents equal access to housing. The fire
suppression system is not merely a cost that makes New Horizons’ home more expensive than
other homes; rather, the Class 1 designation places an explicit restriction on homes for the disabled
by reason of their handicap.
The State next argues that the accommodation request is unreasonable because New
Horizons’ accommodation would cause a fundamental alteration in the nature of the program in
that New Horizons wishes to be exempt from safety requirements and to be treated the same as a
nuclear family despite the tenant and employee issues. However, DHS does provide waivers of
the fire suppression system to other group homes; they just determined that New Horizons did not
qualify for the waiver based on the cost of the project in relation to the cost of the fire suppression
system. This cannot be a fundamental alteration of the program since DHS offers the very waiver
that New Horizons requests. Also, treating New Horizons’ planned home as a Class 2 structure,
would also not be a fundamental alteration as their other homes have been classified as Class 2
structures in the past. In any event, New Horizons has made valid points of similar situations
where housing was deemed Class 2 despite having similar characteristics of New Horizons’
planned home. The distinction in classifications does provide disabled people with unequal (and
arguably less) opportunity to have housing. Class 1 structures are subject to more stringent
requirements, both in the approval process and building process, including the requirement of the
fire suppression system. This burdensome process could cause fewer homes for the disabled to be
built. In Marbrunak, Inc. v. City of Stow, Ohio, the Sixth Circuit held that zoning ordinances that
place more stringent safety requirements on disabled people than other single-family residences
violate the FHAA when the ordinance makes no effort to tailor the safety requirements to the
particular disabilities of plaintiff’s residents.
974 F.2d at 47.
This is because the safety
requirements were found to be based on generalized perceptions about the inability of
developmentally disabled persons to live safely in a “normal” home. 4 Id.
This case boils down to whether the denial of the variance, thereby subjecting New
Horizons to installing a fire suppression system under Class 1 structure requirements, denies New
Horizons’ residents equal opportunity and access to housing. New Horizons argues because of
these Class 1 requirements, its residents have been prevented from living in the home because
building has been stalled. New Horizons’ planned home and other homes in the neighborhood are
identical physically in all respects; the differences lie in the fact that this is a group living situation
with employee supervision which is the only way that these residents can live independently
outside of an institution. The accommodation that New Horizons seeks would allow their residents
equal opportunity to enjoy and use a dwelling. Both Indiana and federal law require that this
accommodation be made and the accommodation would not cause a fundamental alteration of any
In this case, on appeal, the defendant raised the argument that the plaintiff had not exhausted all of its administrative
remedies because the plaintiff did not seek a variance before filing suit in federal court. The Sixth Circuit did not
address this issue because the district court failed to consider it; however, it noted that it should have been addressed
by the district court. Nevertheless, the plaintiffs were allowed to proceed on the theory that the differential
classification itself (without having sought a variance) was unduly burdensome on its face.
DHS or Commission program. 5 Accordingly, New Horizons has a reasonable likelihood of
success on its reasonable accommodation claims under FHAA, the Rehabilitation Act, and ADA.
Adequate Remedy at Law, Irreparable Harm, and Balancing the Harms
On the other requirements of a preliminary injunction, the dispute between the parties
concerns whether New Horizons suffers irreparable harm by the fire suppression requirement.
New Horizons emphasizes that the denial of constitutional rights is irreparable harm in and of
itself. See, e.g., Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 578
(6th Cir. 2002) (“Courts have held that a plaintiff can demonstrate that a denial of an injunction
will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional
rights.”). New Horizons also argues that federal courts have held that there is a presumption of
irreparable harm flowing from violations of statutes guaranteeing fair housing. See, e.g.
Marbrunak, Inc., 974 F.2d 43, 47 (6th Cir. 1992). Specifically, New Horizons argues that DHS’s
actions interfere with its ability to place its clients—who also suffer a distinct harm by the delay—
in the Lawrenceburg home. New Horizons also states that an additional $9,800.00 cost for a fire
suppression system is not an insignificant expense for a non-profit. New Horizons also expresses
concern over what the Class 1 classification will mean for its other six homes that do not have fire
The State responds that New Horizons’ alleged harm is monetary, which is not entitled to
injunctive relief. The State argues that New Horizons has not stated that it cannot afford the fire
suppression system; rather, it does not want to make the investment and budgeting choices do not
warrant irreparable harm. The State also argues that New Horizons’ concerns about its other
homes are too speculative and not before the Court at this time. Further, the State distinguishes
The court cannot order state officials to conform their behavior to state law under Pennhurst, 465 U.S. at 89.
this case from a zoning case in that New Horizons is not prevented from building its home and if
the Court finds in New Horizons’ favor at the end of this case then New Horizons would have the
benefit of receiving quantifiable damages in the amount of the cost of the fire suppression system.
The Court determines that New Horizons’ claim of denial of equal access to housing due
to the more stringent Class 1 requirements represents irreparable harm. “[T]he greater the
Director’s prospects of prevailing are, the less compelling need be his showing of irreparable harm
in the absence of an injunction.” Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286 (7th Cir.
2001). Further, New Horizons has shown a likelihood of success on the merits of its constitutional
claim, which weighs in favor an assumption of irreparable harm flowing from those violations.
The Court agrees that New Horizons’ concerns about its other six homes are too speculative as
they have already been classified as Class 2 homes. As discussed at length above, although this
case practically involves a fire suppression system requirement which represents a monetary cost,
embedded therein is a constitutional issue including rights to equal opportunity and access to
housing. Because equal opportunity and access to housing represent irreparable harm and New
Horizons’ residents do not have access to independent housing due to the Class 1 designation and
accompanying fire suppression system requirement, a preliminary injunction is the appropriate
remedy for there is no adequate remedy at law.
The State has not argued what irreparable harm it will suffer from an injunction, if any, but
has argued that it also represents the three New Horizons residents because the State represents the
public which includes the residents. While theoretically this may be true, New Horizons has met
its burden to show that these residents would best be served by a preliminary injunction that would
provide them equal access and opportunity to housing, which has been denied by the Class 1
classification. The purpose of Equal Protections and the three federal statutes ensuring the disabled
access to housing would be served by a preliminary injunction.
Accordingly, New Horizons’ Motion for Preliminary Injunction (Filing No. 7) is
GRANTED. New Horizons is entitled to designation as a Class 2 structure and waiver of the fire
suppression system during the pendency of these proceedings.
Jan P. Mensz
ACLU OF INDIANA
Kenneth J. Falk
ACLU OF INDIANA
Jefferson S. Garn
OFFICE OF THE INDIANA ATTORNEY GENERAL
Sara Teresa Martin
OFFICE OF THE INDIANA ATTORNEY GENERAL
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