Keys Youth Services, Inc. v. City of Olathe

                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                   PUBLISH
                                                                      MAY 11 2001
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                           Clerk
                         FOR THE TENTH CIRCUIT



 KEYS YOUTH SERVICES, INC., a
 Kansas not-for-profit corporation,
       Plaintiff-Appellee/
       Cross-Appellant,
 v.                                            Nos. 99-3387 & 99-3388
 CITY OF OLATHE, KANSAS, a
 Municipal corporation,
       Defendant-Appellant/
       Cross-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                      (D.C. No. 98-CV-2398)


Anthony F. Rupp (Andrew M. DeMarea with him on the briefs) of Shughart
Thomson & Kilroy, P.C., Overland Park, Kansas, for Appellant/Cross-Appellee
City of Olathe, Kansas.

James H. Ensz of Ensz & Jester, P.C., Kansas City, Missouri, for Appellee/Cross-
Appellant Keys Youth Services, Inc.


Before LUCERO , McKAY , and MURPHY , Circuit Judges.


McKAY , Circuit Judge.
      Defendant Olathe City, Kansas, appeals from the district court’s summary

judgment determination that it denied a zoning permit to Plaintiff Keys Youth

Services, Inc., based on Keys’ familial status in violation of the Fair Housing Act

(FHA), 42 U.S.C. § 3604. Keys cross-appeals from the court’s bench trial ruling

that Olathe’s denial of the zoning permit was not based on Keys’ handicap status

under the FHA and that the permit denial did not violate state law. We have

jurisdiction under 28 U.S.C. § 1291.

                                         I.

      Keys operates several youth group homes. It purchased a house in an

Olathe neighborhood zoned for single-family residential use for the purpose of

establishing another group home for ten troubled adolescent males. Unable to

qualify as a “family” by Olathe’s definition, Keys applied for a special use permit

from the city council in order to run the proposed home. In response, the

neighbors filed a protest petition with the Olathe Planning Commission. At the

subsequent hearings on the matter, they argued that the troubled juveniles would

increase area crime and pose a threat to the many children in the area, and that

surrounding property values would decrease. At some of these same hearings,

Keys supplied the Commission with evidence suggesting the neighbors’ fears

were unjustified. In the end, the Planning Commission recommended to the




                                         -2-
Olathe City Council that Keys be denied a special use permit. By a 4-3 vote, the

City Council agreed and Keys subsequently sued.

       Keys alleged in its suit that Olathe and four city council members denied it

a special use permit for its juvenile group home based on the potential occupants’

“familial status” and “handicaps” in violation of the FHA. Keys also alleged that

Olathe’s permit denial violated Kansas state law. The district court dismissed the

claims against the individual council members on qualified immunity grounds.

See Keys Youth Servs., Inc. v. City of Olathe      , 38 F. Supp.2d 914, 925, 927 (D.

Kan. 1999) [hereinafter    Keys Youth I ]. The court granted complete summary

judgment to Keys on its “familial status” claim.        See Keys Youth Servs., Inc. v.

City of Olathe , 52 F. Supp.2d 1284, 1305-07 (D. Kan. 1999) [hereinafter        Keys

Youth II ], modified by Keys Youth Servs., Inc. v. City of Olathe      , 67 F. Supp.2d

1228, 1229, 1231 (D. Kan. 1999)     . The court also granted Keys summary

judgment on its claim that the potential group home residents qualified for

handicap status but left for trial the issue of whether Olathe had discriminated on

that basis and whether Olathe had violated state law.       See Keys Youth II , 52 F.

Supp.2d at 1299-1305. Following the bench trial, the district court ruled for

Olathe on both issues.    See Keys Youth Servs., Inc. v. City of Olathe    , 75 F.

Supp.2d 1235 (D. Kan. 1999) [hereinafter        Keys Youth IV ]. Olathe appeals from

the court’s summary judgment decision on the familial status claim, while Keys


                                            -3-
cross-appeals from the court’s dismissal of the individual city council members

and the court’s bench trial decisions on the handicap discrimination and state law

claims.

                                              II.

                           A. Familial Status Discrimination

       We review de novo the district court’s grant of summary judgment and

apply the same legal standard employed by that court.         See Simms v. Oklahoma ex

rel. Dep’t of Mental Health & Substance Abuse Servs.          , 165 F.3d 1321, 1326 (10th

Cir.), cert. denied , 120 S. Ct. 53 (1999). To wit, summary judgment should be

granted if the evidence submitted shows “that there is no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “When applying this standard, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.”     Simms , 165 F.3d at 1326. In the instant case, both parties

sought summary judgment on the familial status issue.

       Since its amendment in 1988, the FHA has prohibited discriminatory

housing practices based on familial status.         See 42 U.S.C. § 3604(a)-(e). The

FHA defines “familial status” as (1) one or more minors (2) “domiciled with” (3)

a parent or legal custodian or the designee of a parent or custodian.      Id.




                                              -4-
§ 3602(k).    1
                  Keys’ group home satisfies the first element: there are one or more

minors.

       Regarding the second element, Olathe intimated to the district court that

Keys’ living arrangements did not satisfy the “domiciled with” requirement. Aplt.

App. II, at 331, 340-41 (Def. Mem. in Support of Summ. J. Mot., at 14, 23-24).

For unknown reasons, the district court did not address this point, although it did

make relevant factual findings (discussed infra).     See Keys Youth II , 52 F.

Supp.2d at 1294 . Olathe raises the issue again on appeal, and we think it warrants

discussion given the somewhat novel application of law to facts presented by

Keys’ claim.      2




       1
           Specifically, § 3602(k) provides:

              “Familial status” means one or more individuals (who have not
       attained the age of 18 years) being domiciled with—

             (1) a parent or another person having legal custody of such
       individual or individuals; or

             (2) the designee of such parent or other person having such
       custody, with the written permission of such parent or other person.

       The protections afforded against discrimination on the basis of
       familial status shall apply to any person who is pregnant or is in the
       process of securing legal custody of any individual who has not
       attained the age of 18 years.

       Only two cases of which we are aware have determined whether a group
       2

home for youths qualifies for familial status under the FHA: 1) the instant case,
Keys Youth II , 52 F. Supp.2d at 1305-07, and 2)  Children’s Alliance v. City of
Bellevue , 950 F. Supp. 1491, 1495 n.4 (W.D. Wash. 1997) (refusing to revisit the

                                               -5-
      There is no material dispute regarding the “living” arrangements at Keys’

proposed youth group home. Ten minors would live at the home. They would be

supervised twenty-four hours a day by a rotating staff of Keys’ employees.

Though by no means dispositive, we note that Dr. Edward Neufeld, a licensed

psychologist who counsels Keys’ existing group home occupants, characterized

the Keys’ homes as “therapeutic milieus” rather than a “family environment”

because, in his view, “these are not group homes that are characterized by a foster

parent or two foster parents who are there all the time. It’s more a staffing

situation.” Aplt. App. II at 463.

      More specifically, the summary judgment record indicates that in the

proposed home in question a “manager” would work from 7:00 a.m. to 3:00 p.m.,

Monday through Friday; an “assistant manager” and a “staff number 3” employee

would work from 2:00 p.m. to 10:00 p.m., Monday through Friday; and an

“additional staff member” would work from either 10:00 p.m. to 6:00 a.m. or

11:00 p.m. to 7:00 a.m. each night. Aplt. App. III at 854-55 (Depo. of Keys

Program Director). In addition, one “teaching parent” (“shift number 1”) would

work from 6:00 a.m. Monday morning to 2:00 p.m. Tuesday afternoon, and from

2:00 p.m. Wednesday to 2:00 p.m. Thursday; another “teaching parent” (“shift




court’s previous (unpublished) holding that “residents of group homes for youth
are encompassed by the FHA’s definition of ‘familial status’”).

                                         -6-
number 2”) would work from 2:00 p.m. Tuesday to 2:00 p.m. Wednesday, and

from 2:00 p.m. Thursday to 10:00 p.m. Friday; a “weekend staff person” would

work 10:00 p.m. Friday until 6:00 a.m. Monday morning; and a “part-time staff

person” would work 10:00 a.m. to 10:00 p.m. Saturday and Sunday.           Id. at 855.

In sum, as the district court put it, “The staff works on day and night shifts and

does not reside at the home.”   Keys Youth II , 52 F. Supp.2d at 1294.

      “Familial status” requires that the minors be domiciled “with” their

caretaker. This means that the youths and Keys’ staff must be domiciled together,

at the same dwelling.   See, e.g. , H.R. Rep. No. 100-711, at 23 (1988),    reprinted in

1988 U.S.C.C.A.N. 2173, 2184 (“The Committee intends to cover by this

definition a parent or other person having legal custody, or that individual’s

designee, domiciled with a child or children under age 18.”). The question thus

becomes whether any Keys’ staff members would be “domiciled” at the proposed

home with the youths.   3




      3
        Our focus on whether Keys’ employees are domiciled with the youths does
not mean that a corporate entity like Keys Youth Services is not capable of being
the minors’ legal custodian. The FHA clearly states that it could.  See 42 U.S.C.
§ 3602(d) (including corporations as one of the “person[s]” capable of possessing
legal custody of juveniles for “familial status” purposes). Rather, our analysis
simply presupposes the practical reality that corporations can only act through
their agents. Even assuming, however, that the corporate entity Keys Youth
Services could somehow be domiciled in the relevant sense at a particular
residence independent of its employees/agents, Keys has not argued or proffered
evidence suggesting that it is so domiciled.

                                           -7-
       The FHA does not define “domiciled,” nor are we aware of a federal or

state court that has done so in the “familial status” context. We therefore look

“both to the generally accepted meaning of the term ‘domicile’ and to the purpose

of the statute” for the appropriate definition.      Mississippi Band of Choctaw

Indians v. Holyfield , 490 U.S. 30, 47 (1988) (defining “domicile” for purposes of

the Indian Child Welfare Act). “Domicile” is a familiar, if not precisely defined,

concept in the law. It is typically used for jurisdictional or conflict of laws

purposes which “require general recognition of a single State with which the

individual, actually or presumptively, is most closely connected.”        Martinez v.

Bynum , 461 U.S. 321, 340 (1982) (Marshall, J., dissenting);         see also Restatement

(Second) of Conflict of Laws § 11 cmt. f (1971). For purposes of the FHA,

however, we must fix the Keys employees’ domicile within a specific dwelling,

not simply a particular state. Where necessary, we therefore narrow the following

principles of domicile accordingly.

       A “domicile” is an individual’s “‘true, fixed, and permanent home and

principal establishment.’”     Eastman v. Univ. of Mich. , 30 F.3d 670, 672-73 (6th

Cir. 1994) (quoting Black’s Law Dictionary          484 (6th ed. 1990)). Traditionally, an

individual has only one domicile at a time.         See Williamson v. Osenton , 232 U.S.

619, 625 (1914). An adult establishes a domicile “by physical presence in a place

[i.e., a dwelling] in connection with a certain state of mind concerning one’s


                                              -8-
intent to remain there.”   Holyfield , 490 U.S. at 48; see also Crowley v. Glaze , 710

F.2d 676, 678 (10th Cir. 1983); Restatement (Second) of Conflict of Laws § 15.

There is no question that Keys’ staff would be physically present in the group

home during their respective shifts. To establish it as their domicile, however,

they must also intend to remain—to make that dwelling their home.       See

Restatement (Second) of Conflict of Laws § 18;     see also District of Columbia v.

Murphy , 314 U.S. 441, 455 (1941) (stating that the “question of domicile” is “to

be settled” by reviewing the “ indicia of where a man’s home is”).

       In light of the FHA context of our inquiry, the definition of “home” given

in the Restatement (Second) of Conflict of Laws seems particularly applicable:

“[T]he place where a person dwells and which is the center of his domestic, social

and civil life.” Restatement (Second) of Conflict of Laws § 12. While many

facts may aid in determining one’s home,     see id. cmts. c-j; cf. Walbro Corp. v.

Amerisure Cos. , 133 F.3d 961, 967 (6th Cir. 1998) (listing potential factors

indicating one’s domicile), an individual’s employment at the site is not one of

them. See Restatement (Second) of Conflict of Laws § 12 cmt. f. Absent other

indicia, one’s workplace is not one’s home and, thus, not where one is domiciled

for purposes of the FHA.

       Based on our review of the summary judgment record in the instant case, it

appears the sole connection between Keys’ staff and the group home is the fact


                                           -9-
that the staff works there. No other reason for their presence in the house is

given. Since the staff members clearly do not live at the group home, they must

of necessity be residing someplace else, presumably at their actual

homes/domiciles. The fact that some of Keys’ employees work a night shift or a

twenty-four or thirty-six hour shift does not alter our conclusion. The critical fact

remains that the only proffered reason these employees occupy the home is for

employment. As a matter of law under these circumstances, we cannot conclude

that Keys’ employees, collectively or individually, are domiciled at the group

home. Thus, the youths cannot be “domiciled with” them, and Keys’ proposed

group home therefore cannot qualify for “familial status” under the FHA. Any

other conclusion stretches the meaning of “domiciled” and the scope of “familial

status” protection beyond sensible bounds. We reverse the grant of summary

judgment for Keys and order summary judgment entered for Olathe on Keys’

“familial status” discrimination claim.

                            B. Handicap Discrimination

      The FHA also forbids discriminatory housing practices based on a potential

occupant’s handicap(s).   See 42 U.S.C. § 3604(f). Prohibited handicap

discrimination may take several forms, including (1) disparate treatment, i.e.,

intentional discrimination; (2) disparate impact, i.e., the discriminatory effect of a

facially neutral practice or policy; (3) a refusal to permit “reasonable


                                          -10-
modifications of existing premises”; (4) a “refusal to make reasonable

accommodations in rules, policies, practices, or services”; or (5) a failure to

“design and construct” handicap accessible buildings. 42 U.S.C. § 3604(f)(3)

(outlining reasonable modification and accommodation claims and failure to

design and construct claim);      see also Bangerter v. Orem City Corp. , 46 F.3d 1491,

1500-01 (10th Cir. 1995) (discussing disparate treatment and impact claims).

      In the instant case, Keys has made out two discrimination claims. First,

Keys alleges that Olathe intentionally denied the permit because of the juveniles’

handicaps.   4
                 Olathe countered that it denied the permit because the troubled

juveniles would pose a legitimate threat to neighborhood safety, not because they

were handicapped. Because Keys presented no direct evidence of intentional

discrimination,    5
                       see Keys Youth IV , 75 F. Supp.2d at 1243-44, and Olathe offered

      4
        Of course, to prevail on a handicap discrimination claim, Keys’ residents
must in fact be handicapped. On this threshold issue the district court granted
summary judgment to Keys because it concluded that at least some of the
proposed occupants satisfied the FHA’s definition of handicap.    See Keys Youth
II, 52 F. Supp.2d at 1299. That decision was not appealed. Although, in response
to Keys’ cross-appeal, Olathe does argue that the district court erred in ruling that
some Keys’ residents qualify for handicap status under the FHA. However, we
need not reach, and express no opinion on, that issue. We assume for the sake of
argument that Keys qualifies for handicap protection.
      5
        Keys did not designate this finding as an issue for review in either the
notice of appeal or the formal statement of the issues in its brief, although Keys’
brief does contain a few scattered statements that the Olathe ordinance defining
“family” directly discriminates against the handicapped. The district court
specifically rejected this argument in its summary judgment decision.     See Keys
Youth II , 52 F. Supp.2d at 1300. Moreover, Keys’ intermittent suggestions of

                                             -11-
a legitimate nondiscriminatory basis for its decision, the sole issue for trial

focused on whether Olathe’s safety concerns were mere pretext for handicap

discrimination.   See McDonnell Douglas Corp. v. Green       , 411 U.S. 792, 802-05

(1973). 6 “[W]eighing all of the evidence,” the district court determined that “the

City Council denied the permit because it reasonably determined that the residents

of the [group] home would pose a safety threat to residents of the neighborhood.”

Keys Youth IV , 75 F. Supp.2d at 1245. In short, the court found that Olathe’s

justification was not “mere pretext” for handicap discrimination.      Id. Keys cross-

appeals from this ruling.




facial discrimination do not even mention the district court’s pointed adverse
ruling. “[S]uch perfunctory complaints fail to frame and develop an issue
sufficient to invoke appellate review.” Murrell v. Shalala , 43 F.3d 1388, 1389 n.2
(10th Cir. 1994).
      6
        Had Keys proffered direct evidence of intentional discrimination, the
McDonnell Douglas burden shifting/pretext analysis would be inapposite.      See
Bangerter , 46 F.3d at 1500 n.16. Instead,   the court would have had to determine
whether Olathe’s discriminatory actions were nevertheless protected under
relevant provisions of the FHA or Title VII.    See id. at 1503. For example, the
FHA expressly permits handicap discrimination if predicated on public safety or
property damage concerns.     See 42 U.S.C. § 3604(f)(9). This statutory
affirmative defense, of sorts, states: “Nothing in this subsection [regarding
handicap discrimination] requires that a dwelling be made available to an
individual whose tenancy would constitute a direct threat to the health or safety of
other individuals or whose tenancy would result in substantial physical damage to
the property of others.” However,     Bangerter and § 3604(f)(9) do not control the
instant case because, absent direct evidence of disparate treatment, the question at
trial and before this court is whether Olathe discriminated at all, not whether its
discrimination is nevertheless justified.

                                           -12-
       In an appeal from a bench trial, we review the district court’s factual

findings for clear error and its legal conclusions de novo.      See Sanpete Water

Conservancy Dist. v. Carbon Water Conservancy Dist.           , 226 F.3d 1170, 1177-78

(10th Cir. 2000). Whether Olathe’s public safety concerns were mere pretext for

handicap discrimination is a factual issue.      See Mohammed v. Callaway , 698 F.2d

395, 399 (10th Cir. 1983). Thus, we will reverse the district court’s finding only

“if it is without factual support in the record” or if, “after reviewing all the

evidence,” we are “left with a definite and firm conviction that a mistake has been

made.” Manning v. United States , 146 F.3d 808, 812 (10th Cir. 1998) (internal

quotation marks omitted).

       The court reached its decision after weighing the following evidence.       7



Keys operates group homes for youths between the ages of twelve and seventeen

who have been abused, neglected, or abandoned. The Kansas Department of

Social and Rehabilitation Services, which places most of Keys’ youth, categorizes

juvenile behavioral problems from level III to level VI. Keys applied for a permit



       7
         The district court outlined in detail the evidence known to Olathe at the
time it decided to deny the special use permit.     See Keys Youth IV , 75 F. Supp.2d
at 1237-43. Keys has not challenged the court’s factual findings, nor suggested
additional evidence that the court failed to consider. More importantly, our
review of the record has not revealed material unconsidered facts or undermined
our confidence in the district court’s statement of facts. Because the district court
has already published a detailed account of the undisputed facts relevant to
Olathe’s decision, we only summarize the most pertinent evidence here.

                                              -13-
in order to open a level V home for ten males in a single- family residential

neighborhood. Level V teenagers are typically antisocial and aggressive,

engaging in assaults, batteries, thefts, and vandalism. Parents and teachers

describe level V youths as cruel, aggressive, moody, argumentative,

uncooperative, disruptive, and occasionally assaultive. At the time of the permit

application, Keys was already managing a level V home elsewhere in Olathe.

Unlike that existing home, however, the proposed home in question would sit in

close proximity to numerous residences and within walking distance of several

schools and day care centers. At public hearings regarding the proposed home,

neighbors voiced their concerns about the safety of area children. They also

reported that Keys’ youths had once escaped the existing group home in Olathe

and had gone on a crime spree that included setting a car on fire, burglarizing

cars, defecating on a car, shoplifting, and vandalizing. Moreover, neighbors

furnished Olathe with information about the numerous phone calls made to police

from other Keys’ homes reporting various criminal conduct and provided

anecdotal accounts of their own negative experiences with, or perceptions of,

level V juveniles.

      In its own presentations to Olathe, Keys attempted to downplay much of the

neighbors’ evidence. For instance, Keys showed that after the crime-spree

incident it had hired additional nighttime staff at level V homes, which thus far


                                        -14-
had prevented similar break-outs. In addition, Keys explained that a vast majority

of the police calls originating from Keys’ homes involved in-house incidents only;

no neighbors were affected. Dr. Neufeld also opined that Keys’ residents posed

less of a public threat than their less supervised peers. In the end, however, the

Olathe City Council voted 4-3 to deny Keys’ request for a special use permit,

despite legal advice urging that the request be granted. All four council members

who voted to deny the permit testified that they did so due to public safety

concerns.

      On appeal, Keys essentially argues that its evidence conclusively

establishes that a level V home does not create a public danger. To be sure,

Keys’ evidence might lead a reasonable person to that conclusion. However,

Olathe’s fears are not groundless. Level V youths are undisputedly dangerous and

have caused problems of real concern in the past. It is not unreasonable to think

that they are capable of causing similar problems in the future. In short, the

district court, acting as the factfinder, reasonably could have chosen either of two

plausible interpretations of the facts. Under the clearly erroneous standard of

review, we must therefore affirm the court’s choice. As the Supreme Court has

stated:

      If the district court’s account of the evidence is plausible in light of
      the record viewed in its entirety, the court of appeals may not reverse
      it even though convinced that had it been sitting as the trier of fact, it
      would have weighed the evidence differently. Where there are two

                                         -15-
      permissible views of the evidence, the factfinder’s choice between
      them cannot be clearly erroneous.

Anderson v. City of Bessemer City   , 470 U.S. 564, 573-74 (1985). We turn now to

Keys’ second handicap discrimination claim.

      As noted supra, handicap discrimination includes “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.” 42 U.S.C. § 3604(f)(3)(B). For zoning purposes, Olathe’s

ordinances define “family,” in relevant part, as “a group of eight (8) or fewer

unrelated disabled persons including two (2) additional persons acting as

houseparents or guardians who need not be related to each other or to any of the

disabled persons in residence.” Aplt. App. VI at 1660 (Olathe Unified Dev. Code

§ 18.06.240). Keys claims that when Olathe denied it a special use permit to

house ten youths plus staff in a single-family neighborhood, the City refused to

reasonably accommodate its ordinances to Keys’ needs.    8




      8
        We acknowledge some confusion regarding the exact ordinance(s) or
statute(s) that Keys requested be changed to accommodate its special use permit.
In the summary judgment decision, the district court suggested that Keys sought
accommodation from a state statute governing group homes and the Olathe
ordinance defining family.     See Keys Youth II , 52 F. Supp.2d at 1304. At trial,
however, the district court suggested that Keys sought accommodation from the
Kansas group home statute and the Olathe ordinance defining “group board home
for minors.” See Keys Youth IV , 75 F. Supp.2d at 1245. Finally, Keys appears to
argue in its brief that its claim is based purely on the Olathe ordinance defining
family. See Appellee/Cross-Aplt. Br. at 9. We follow this latest articulation of

                                         -16-
       The crux of Keys’ argument is that it must house no less than ten youths in

order to generate enough funds to survive. Following the bench trial, the court

stated that the ten-resident minimum may be “necessary,” but nevertheless ruled

for Olathe because Keys had failed to demonstrate its economic need for the

accommodation to the City.      See Keys Youth IV , 75 F. Supp.2d at 1246-47. The

court based its decision on the principle that Olathe cannot be liable for refusing

to grant a reasonable and necessary accommodation if the City never knew the

accommodation was in fact necessary. We agree.           See Oxford House-A v. City of

Univ. City , 87 F.3d 1022, 1025 (8th Cir. 1996) (“Congress . . . did not intend the

federal courts to act as zoning boards by deciding fact-intensive accommodation

issues in the first instance.” (internal quotation marks omitted));   see also Bryant

Woods Inn, Inc. v. Howard County, Md.        , 124 F.3d 597, 604-05 (4th Cir. 1997)

(discussing reasonableness and necessity of a requested accommodation in light

of evidence presented to the local zoning board). Hence, the issue on appeal is

whether Olathe realized Keys’ need to house ten youths instead of eight. Keys

does not point to any evidence suggesting that its economic need argument was

presented to the Planning Commission or the City Council. In fact, Keys’




the claim. At any rate, our analysis would remain the same whatever the precise
regulation Keys desired to modify.

                                             -17-
executive director testified at trial that she did not believe “the economics of the

situation came up at the Planning Commission.” Aplt. App. V, at 1245.

      In addition, we can affirm the court’s reasonable accommodation ruling for

a separate reason. Even assuming that Keys presented its economic necessity

argument to the City Council, we conclude that the requested

accommodation—housing ten troubled adolescents instead of eight—is not

“reasonable” in light of Olathe’s legitimate public safety concerns. Common

sense dictates that when a defendant possesses a legitimate nondiscriminatory

reason for a housing decision, a plaintiff’s requested accommodation must

substantially negate the defendant’s concern in order to be considered reasonable.

See, e.g. , Bryant Woods Inn , 124 F.3d at 604 (requested accommodation deemed

unreasonable because it would only exacerbate existing problem). For example, if

the evidence in the instant case showed that housing ten juveniles instead of eight

actually resolved the safety problem, then Keys’ request would be reasonable.

However, we see nothing in the record so indicating. We therefore affirm the

district court’s reasonable accommodation ruling.

                                C. State Law Claim

      Finally, Keys appeals the district court’s rejection of its state law claim.

Keys had asserted that Olathe’s denial of the permit violated chapter 12, article

736 of the Kansas Statutes Annotated. This provision explains that it is the policy


                                         -18-
of Kansas that “persons with a disability shall not be excluded from the benefits

of single family residential surroundings by any municipal zoning ordinance,

resolution or regulation.” Kan. Stat. Ann. § 12-736(a). The statute further

mandates that “[n]o municipality shall prohibit the location of a group home in

any zone or area where single family dwellings are permitted.”       Id. § 12-736(e).

However, the statute defines “group home” as “any dwelling occupied by not

more than 10 persons, including eight or fewer persons with a disability who need

not be related by blood or marriage and not to exceed two staff residents who

need not be related by blood or marriage to each other or to the residents of the

home, which dwelling is licensed by a regulatory agency of this state.”      Id. § 12-

736(b)(1).

      In considering Olathe’s summary judgment motion on this claim, the court

noted its uncertainty concerning article 12-736's meaning and its asserted

applicability to Keys’ juvenile group home. See Keys Youth II, 52 F. Supp.2d at

1309. “Under one reading of the statute,” the court stated, “Keys may be

absolutely entitled to ten residents plus two staff [e.g., eight disabled residents,

two non-disabled residents, and two non-residential staff].” Id. “Under another

reading of the statute,” the court continued, “Keys would not fare so well.” Id.

The court thus refused to grant summary judgment on this legally and factually

undeveloped claim. See id. Despite the court’s unambiguous request for


                                           -19-
explication, Keys made little effort to explain the statute’s meaning or its

application to the youth home during the bench trial. Instead, it appears Keys

simply argued to the court that article “12-736 requires the City to allow Keys to

operate a group home housing eight handicapped persons.” Keys Youth IV, 75 F.

Supp.2d at 1248. The court noted, however, that “Keys has not clarified how

[Olathe’s] refusal to allow ten residents would violate K.S.A. § 12-736” given the

particular facts of this case. See id. The court therefore entered judgment in

Olathe’s favor.

      We agree that article 12-736 may not be the clearest statute in some

respects. Nonetheless, it plainly limits group homes to “any dwelling occupied by

not more than 10 persons.” Kan. Stat. Ann. § 12-736(b)(1). In the instant case,

the proposed home, by Keys’ own admission, would be occupied by more than ten

persons—ten juveniles plus staff. Thus, it would not qualify as a group home

under article 12-736, and Keys has no basis upon which to assert an article 12-736

violation. We affirm the district court’s rejection of Key’s state law claim.

                                         IV.

      In sum, we REVERSE the district court’s summary judgment decision on

Keys’ “familial status” claim and order summary judgment entered for Olathe.

We AFFIRM the court’s bench trial decisions on Keys’ intentional discrimination,




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reasonable accommodation, and state law claims. The qualified immunity issues

are now MOOT.




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