Smith & Lee Associates, Inc. United States of America v. City of Taylor, Michigan

The City of Taylor, Michigan appeals the District Court's judgment that the City violated the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3604(f)(1)(B) & (3)(B), by intentionally discriminating against and failing to make reasonable accommodations for the handicapped. The City also appeals the Court's order requiring the City to amend its zoning ordinance, pay an adult foster care home $284,000 in damages, and pay a $20,000 fine. For the following reasons, we affirm in part and reverse in part.I

Smith & Lee Associates, Inc. ("Smith & Lee") is a for-profit Michigan corporation that owns and operates Adult Foster Care ("AFC") homes in the State of Michigan. AFC homes provide twenty-four hour supervised care to dependent adults who require ongoing supervision but not continuous nursing care. Smith & Lee was organized for the purpose of purchasing the residential home at dispute in this case, Mortenview Manor ("Mortenview"), in Taylor, Michigan ("the City" or "Taylor").

Mortenview specializes in care for the elderly disabled. It houses six elderly disabled residents who suffer from Alzheimer's disease and other forms of dementia, organic brain syndrome, and other ailments. Whereas other AFCs known as "contract" homes, which house persons with other types of disabilities, receive subsidies from state or community social service agencies, homes for the elderly disabled like Mortenview must rely solely on payments from their residents to cover operating costs. Mortenview is a one-story dwelling that includes a kitchen, living room, dining room, six bedrooms, two full baths, and a small office; its circular driveway provides parking for visitors and staff.

Mortenview is located in a residential neighborhood in Taylor that is zoned for single-family use. Smith & Lee has authority to house six unrelated disabled adults in Mortenview by virtue of Mich. Comp. Laws Ann. § 125.583b(2) (West 1986),1 which permits AFC homes for six or fewer residents to operate in all residential zones, including single-family neighborhoods. Before an AFC facility may house more than six residents, however, it must receive the municipality's approval before Michigan will issue it a license.

From the time it purchased Mortenview, Smith & Lee sought to house twelve residents. Michael Manore, then Director of Taylor's Office of Development Services, informed Smith & Lee that the home could not operate with twelve residents unless the City rezoned the property from R-1A, which is the City's designation for single-family use, to RM-1, which is its designation for multiple-family use. The City issued Smith & Lee a building permit, albeit with an express limitation listed on the permit: "SINGLE FAMILY RESIDENTIAL USE ONLY." Smith & Lee's owners increased Mortenview's capacity from a three bedroom to a six bedroom ranch by converting the garage into additional bedrooms. After inspecting the home, the Michigan Department of Social Services ("MDSS") licensed Mortenview for six residents, and it opened in December of 1990.

In January of 1990, Smith & Lee petitioned the City to rezone Mortenview from R-1A to RM-1. Taylor officials referred the petition to the City's planning consultant, Wade/Trim Impact, which recommended that Smith & Lee's petition be denied for three reasons: (1) RM-1 zoning would be inconsistent with the established zoning pattern of the neighborhood; (2) RM-1 zoning would allow for land uses that are incompatible with the established single-family residential character of the neighborhood; and (3) the request was inconsistent with the City's Master Land Use Plan 2000.

On February 21, 1990, the City's Planning Commission held a public hearing on Smith & Lee's zoning proposal. No residents voiced objections to Smith & Lee's rezoning petition. The Commission voted to recommend that the City Council deny Smith & Lee's petition. At a March 5, 1990 study session, the City Council discussed the petition. Smith & Lee advised the City Council members that denial of the rezoning petition might violate the Fair Housing Amendments Act. A representative of the Michigan Residential Care Association made a presentation on behalf of Smith & Lee and explained the potential impact of the federal statute. At its March 6, 1990 meeting, the Council denied the zoning request, citing spot zoning concerns and the proposal's incompatibility with the City's master development plan.

Relying on advice from an MDSS official, Marjorie Murrell, who informed Smith & Lee that the State would issue a license to Smith & Lee to operate a twelve-person AFC home if the City sent a letter indicating that it was not opposed, and that it was thus unnecessary for the City to actually rezone the Mortenview parcel, Smith & Lee sought such a letter from the City at a study session of the City Council, on March 19, 1990. The City Council did not accede to Smith & Lee's request that the letter proposal be brought up for a vote at the next City Council meeting, on March 20, 1990.

On May 10, 1991, Smith & Lee brought suit alleging that the City had violated Section Six of the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C. § 3604(f)(1)(B) & (3)(B), by intentionally discriminating against and failing to make reasonable accommodations for the handicapped. The United States filed a similar action on June 28, 1991, and the suits were consolidated for trial.2

* After a bench trial, the District Court held that Taylor intentionally discriminated and failed to make reasonable accommodations. United States v. City of Taylor, Mich., 798 F.Supp. 442 (E.D.Mich.1992).

In reaching its conclusion that Taylor had intentionally discriminated, the District Court found that Taylor's 1981 suit for declaratory judgment against the State, in which it sought to have a Michigan statute defining group homes of six or fewer residents as a family for zoning purposes3 declared unconstitutional, was historical evidence of the City's discriminatory animus toward the handicapped. The Court also found that City officials' fears of increased traffic and parking problems, and their objections to spot zoning, were pretextual because the various officials offered very similar testimony:

Th[e] constant repetition of the parking, police, fire and zoning matters seriously destroyed the credibility of all members of the City Council who testified.

City of Taylor, 798 F.Supp. at 447. It also noted the City's failure to commission studies on the actual impact of a twelve-person AFC home on parking and traffic.

The Court also found that the City had set up procedural roadblocks when it informed Smith & Lee that it would have to get the City Council to rezone the Mortenview property from single-family to multiple-family use. Mortenview did not necessarily need to be rezoned, the Court noted, because the ordinance did not expressly mention AFC homes. The Court believed that Mortenview was ineligible for R-1A zoning only because of its for-profit status. Yet, the Court noted, the City tolerated other for-profit home businesses on the same street and in the same area.

The Court also found that Taylor had failed to make reasonable accommodations. The Court rejected the City's fears about increased traffic and parking problems as having no basis in fact. The Court held that the City simply could have sent a letter informing MDSS that it was not opposed to Smith & Lee's proposal to operate Mortenview as a twelve-person AFC home.

The Court ordered the City to send such a letter to MDSS. It also ordered Taylor to pay a $50,000 fine to the United States and to pay Smith & Lee $152,000 for profits it would have earned had the City permitted it to operate with twelve residents.

After the City appealed, a panel of this Court reversed and remanded the action for further proceedings. Smith & Lee Assoc., Inc. v. City of Taylor, Mich., 13 F.3d 920 (6th Cir.1993).4 After noting that local municipalities have wide-ranging discretion in regulating land use, we held that the City zoning ordinance's definition of family,5 which excluded Smith & Lee's operation of a for-profit AFC home housing more than six residents in an area zoned for single-family use, was "a constitutional exercise of its legislative discretion to zone a residential neighborhood." Smith & Lee, 13 F.3d at 925.

We held that the District Court had erred in viewing the City's interpretation of the non-profit requirement in its definition of family as evidence of intentional discrimination; the City's interpretation was proper and reasonable under the ordinance as written. Similarly, we held that the Court erred by considering Taylor's advice to Smith & Lee to seek a zoning change from single-family to multiple-family use as evidence of intentional discrimination; that advice was appropriate in light of the language of the ordinance. We also held that it was not discriminatory to advise Smith & Lee to seek a zoning change to multiple-family use when multiple-family areas do not on their face allow twelve-person AFC homes; in such areas, "homes for the elderly as well as convalescent and nursing homes are permitted as special uses...." Id. at 926.

With respect to the Court's finding that Taylor was enforcing its non-profit requirement against Mortenview but not other home businesses in the same vicinity, we noted that "[t]he District Court did not address whether the City's enforcement of the non-profit requirement against Smith & Lee, while permitting other for-profit businesses to operate in the same single-family block, is an unequal and unconstitutional application of its zoning ordinance." Id. at 927. Accordingly, we instructed the Court to consider on remand whether Mortenview was similarly situated with other home businesses in the area and to determine the extent to which the City had knowledge of these other alleged zoning violations.

We tentatively sanctioned the District Court's consideration of Taylor's 1981 declaratory judgment suit to strike down Mich. Comp. Laws Ann. § 125.583b(2) as historical evidence of Taylor's discriminatory animus toward the handicapped. But we emphasized that such evidence was "remote," and we held that the District Court abused its discretion when it excluded evidence that in 1984 the City had rezoned a property from single-family to multiple-family to accommodate a twelve-person AFC home; such evidence, we noted, "was relevant to rebutting the historical evidence that the City has a history of discriminating against the handicapped." Id. at 928.

Finally, we held that the District Court erred in finding evidence of intentional discrimination in various City officials' testimony. First, even though one City Councilman's rationale for denying the zoning change--fear for the safety of residents during a fire--could be evidence of paternalism toward the handicapped, that view was not espoused by any other member of the City Council. Second, the Court erred by concluding that the mere similarity of council members' stated reasons for denying Smith & Lee's petition meant that those reasons were pretextual: "The reasons that were given by the Council members ... are the reasons most zoning laws are enacted and the reasons upheld by courts in Fifth Amendment taking challenges to zoning laws." Id. at 928.

Proceeding to the reasonable accommodation issue, we held that the Court erred when it instructed Taylor to send a letter informing state officials that it had no objection to Smith & Lee operating Mortenview as a twelve-person AFC. The Council lacked authority to amend its zoning ordinances simply by sending a letter: "The Council, an elected body, was required to act in accordance with its required procedures. [T]hat the state was willing to accept a letter whether or not the Council had authority to give one does not enlarge the Council's authority." Id. at 929-30.

We remanded for the District Court to decide whether AFCs in the Taylor area needed an accommodation and whether a given accommodation was reasonable. We instructed the Court to consider whether otherwise legitimate zoning rules, such as a six-person occupancy limit on for-profit AFCs, denied equal opportunity by guaranteeing such a low rate of return for investors that AFC homes would be unavailable. We emphasized that "the inquiry should not be whether a particular profit-making company needs an accommodation but, rather, do such businesses as a whole need this accommodation." Id. at 931.

Finally, we struck down the $50,000 fine on the grounds that the District Court had provided "no reasons as to why it imposed the maximum penalty of $50,000" and because "[t]he law as to what accommodation is required is too uncertain to penalize the City's conduct." Id. at 932. Indeed, we noted that "[i]n view of our disposition of the issues raised in this appeal, we see no basis for a penalty." Id.

Upon remand, and after hearing five weeks of additional evidence, the District Court reaffirmed its finding that Taylor intentionally discriminated and failed to make reasonable accommodations. United States v. City of Taylor, Mich., 872 F.Supp. 423 (E.D.Mich.1995).

The District Court based its finding that the City intentionally discriminated against the handicapped on four considerations: that the City characterized AFC homes as a multiple-family use without inquiring into such homes' similarity to families; that the City enforced the ban on for-profit uses against Mortenview even though it tolerated other home businesses in the immediate area; that City officials' comments reflected a paternalistic and discriminatory attitude toward the handicapped; and that the City's 1981 declaratory judgment suit to prevent another AFC home from operating was historical evidence of the City's discriminatory animus--evidence that was not rebutted by the City's willingness to rezone another twelve-resident AFC facility from single-family to multiple-family use. Id. at 436.

The Court also held that the City had failed to make reasonable accommodations. The Court found that "AFC homes are often the only means by which disabled adults are able to live in single-family type homes in residential communities," id. at 426,6 a finding given this Court's imprimatur in the first appeal. See Smith & Lee, 13 F.3d at 931 (noting that "the handicapped may have little choice but to live in a commercial home if they desire to live in a residential neighborhood.").

The Court found a shortage of AFC homes for the elderly disabled in the Taylor area. It found that there were only three AFC homes serving the elderly disabled and that only one of them, Mortenview, was located in a single-family neighborhood. Id. at 438. It also found that Mortenview has a waiting list of elderly disabled individuals who desire to live there. Id. Finally, the Court credited expert testimony that, over the next thirty-five years, the number of older adults living in the State of Michigan who suffer from dementia would increase by seventy-seven percent. Id.

The Court found that "the shortage of AFC homes for elderly disabled residents in the City of Taylor is caused, at least in part, by the fact that such homes are not economically viable with only six residents." Id. at 439. AFC homes for the elderly disabled are not economically viable when limited to six residents, the Court found, because such AFCs do not receive state subsidies to cover operating costs. Id. at 426. AFC homes serving the elderly disabled must make up for the relatively low per-resident contribution by increasing the number of residents. The Court relied on expert testimony offered by William F. Lasky, President and CEO of Alternative Living Services, a national provider of elderly assisted living facilities. As the government noted in its brief, Mr. Lasky testified that it is no longer economically feasible for AFC homes for the elderly disabled to operate with fewer than nine residents.

The Court then considered whether it would be reasonable to require Taylor to allow AFC homes for the elderly disabled to operate with twelve residents in areas zoned R-1A. The Court found that Taylor faced no significant financial or administrative burdens in accommodating Smith & Lee. It also found that such an accommodation would not fundamentally alter the residential nature of areas zoned for single family use because the residents at Mortenview live as a family:

[they] eat meals together, watch television and play cards together, do activities together and have grown to care for and depend on one another. They are not transient roomers wandering through town; nor are they like wholly independent adults living in an efficiency apartment complex sharing the same physical space, but leading independent lives. They are most like a family, and they desire to live on streets like Mortenview Drive for all the same reasons their neighbors do as well as some unique reasons related to their medical handicaps and elderly status.

Id. at 443. As such, even with additional residents, Mortenview would function like any other single-family home in the neighborhood. For these reasons, the Court concluded that the requested accommodation was reasonable.

The Court awarded three forms of relief. First, it ordered the City to "amend its zoning ordinance within 30 days of the entry of final judgment in this case, by adding to the definition of family, Ordinance Section 2.02(36), the following:

c. a group of not more than twelve unrelated elderly disabled persons, each of whom is handicapped with the meaning of the Fair Housing Act, 42 U.S.C. Sec. 3602(h), living together as a single housekeeping unit in an adult foster care home licensed by the State of Michigan, with such nonresident staff as may be needed to assist the residents with their daily life activities, but not receiving funding through a contract with any State or community health or social service agency."

Id. at 443.

Second, the Court reimposed a fine against the City but reduced the amount from $50,000 to $20,000. The Court believed that the City should be fined because it had both intentionally discriminated and failed to make reasonable accommodations. The Court was "particularly incensed by the City's failure to make any meaningful inquiries into the purpose and function of AFC homes before characterizing them as multiple-family uses and segregating them from single-family neighborhoods," id. at 444, when it did allocate time looking for alternative, but, in the Court's view, unsatisfactory sites for twelve-person AFCs in areas zoned for multiple-family use. Finally, the Court acknowledged that "prior to this case, the law in this circuit on the duty to accommodate was somewhat ambiguous." Id. But it was important to send "a strong message to the numerous municipalities likely to face similar issues in the near future." Id.

Third, the Court awarded Smith & Lee $284,000, "which represent lost revenue through October 31, 1994 if Smith & Lee had been permitted to operate Mortenview Manor with twelve residents as of April 1, 1990." Id.

Section Six of the Fair Housing Amendments Act of 1988, P.L. 100-430, 102 Stat. 1620, 42 U.S.C. § 3604(f)(1) makes it unlawful

to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of--

(A) that buyer or renter,

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

Moreover, it defines discrimination to include

a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

42 U.S.C. § 3604(f)(3)(B).

Plaintiffs who allege a violation of 42 U.S.C. § 3604(f) may proceed under any or all of three theories: disparate treatment, disparate impact, and failure to make reasonable accommodations. E.g. Oak Ridge Care Center, Inc. v. Racine County, Wis., 896 F.Supp. 867, 874 (E.D.Wis.1995). Smith & Lee and the United States have alleged claims under the first and third theories.

* We begin by considering the District Court's finding that Taylor intentionally discriminated against the handicapped. In this case, plaintiffs may show disparate treatment by proving that the City would have approved Smith & Lee's rezoning petition but for discriminatory animus toward the handicapped. Plaintiffs must show that "discriminatory purpose was a motivating factor" in the City's decision to deny Smith & Lee's petition. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977).

Although Taylor had no duty to approve Smith & Lee's zoning petition to spot zone Mortenview Manor from RM-1 to R-1A, the City could not lawfully deny the petition because of its City Council members' discriminatory animus toward the handicapped. As the Supreme Court has noted, "discrimination is not just another competing [legislative] consideration." Arlington Heights, 429 U.S. at 265, 97 S.Ct. at 563, citing Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup.Ct. Rev. 95, 116-18. Otherwise lawful governmental actions become unlawful when done for the purpose of disadvantaging the handicapped. See, e.g., United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1099 (N.D.Ohio.1980), aff'd, 661 F.2d 562 (6th Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982) (footnotes omitted) ("Actions which are typically lawful, such as ... a locality's decision not to apply for federal assistance in housing, [or] a community's refusal to promote low-income housing, lose that character when they are undertaken for a discriminatory purpose.").

Smith & Lee need not prove that Taylor's action "rested solely on ... discriminatory purposes," for "[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one." Arlington Heights, 429 U.S. at 265, 97 S.Ct. at 563; see also United States v. City of Parma, Ohio, 661 F.2d 562, 575 (6th Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982) ("There is no requirement that ... intent be the sole basis of official action, if it is a motivating factor.").

Once plaintiffs show that defendant's decision was motivated at least in part by discriminatory animus, the burden shifts to the defendant to prove that it would have made the same decision even if it had not been motivated by an unlawful purpose:

Proof that the decision ... was motivated in part by a ... discriminatory purpose would not necessarily have required invalidation of the challenged [legislative action]. Such proof would ... have shifted to the [municipality] the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.

Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. at 566 n. 21; see also Mt. Healthy City School District Bd. of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (holding that the district court "should have gone on to determine whether [defendant] had shown by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the protected conduct.").

The District Court commenced its analysis of plaintiffs' intentional discrimination claim by stating: "[t]o prove that Taylor engaged in intentional discrimination ... plaintiffs need only show that discriminatory animus was a 'motivating factor' for Taylor's action." City of Taylor, 872 F.Supp. at 429. But the Court did not specify which "action" it believed was motivated by discriminatory animus. Instead, it looked at a variety of City actions and appeared to treat each as a separate instance of intentional discrimination.

We believe the relevant City "action" is the City Council's denial of Smith & Lee's rezoning petition on March 6, 1990.7 Thus, we must determine whether the City Council's decision to deny Smith & Lee's petition was motivated in part by discriminatory animus toward the handicapped. Although the District Court did not follow this approach exactly, it noted that

evidence of Taylor's intentional discrimination against the handicapped is found in: (1) The City's unsupported characterization of a mid-sized AFC home as a "multiple-family" use; (2) The City's disparate application of its zoning ordinance among AFC homes and other homes; (3) Paternalistic and other discriminatory statements made by Taylor officials about Mortenview Manor's elderly disabled residents; and (4) Evidence of historical discrimination against the handicapped which was not substantially rebutted by the City's decision to rezone another twelve-resident AFC home from single-family to multiple-family zoning.

City of Taylor, 872 F.Supp. at 429. We shall determine whether those four considerations offer inferential proof that the City Council's decision on March 6, 1990 to deny Smith & Lee's zoning petition was motivated by discriminatory animus toward the handicapped. We believe this approach is faithful to the guidance offered by the Supreme Court in Arlington Heights. See 429 U.S. at 266, 97 S.Ct. at 564 ("Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.").

We do not believe that Taylor's characterization of twelve-person AFC homes as a multiple-family use stands as inferential proof of discriminatory animus toward the handicapped. As we noted in our prior opinion, "[t]he [district] court was not justified in concluding that the Taylor officials discriminated in their interpretation of the ordinance." Smith & Lee, 13 F.3d at 926. We find error on this basis again here. Taylor's zoning ordinance existed before this dispute began, and there is no suggestion that the ordinance was passed specifically to exclude handicapped residents from single-family areas. See Arlington Heights, 429 U.S. at 270, 97 S.Ct. at 566 ("The Village originally adopted its buffer policy long before MHDC entered the picture and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case."). The City's interpretation of the ordinance cannot serve as evidence of intentional discrimination unless the City's interpretation strained the plain meaning of a statute to further its discriminatory animus. No such allegation has been made here. Indeed, the ordinance is unambiguous, and the City's interpretation is quite reasonable. Thus, this is not like Stewart B. McKinney Foundation, Inc. v. Town Plan and Zoning Comm'n of the Town of Fairfield, in which the district court found that the Town's unreasonable interpretations of the terms "family" and "chronic nursing home care" constituted evidence of discriminatory animus. 790 F.Supp. 1197, 1213-16 (D.Conn.1992). Having assured itself that Smith & Lee's operation of Mortenview as a twelve-person for-profit AFC for the elderly disabled did not fall within Taylor's legal definition of family, it was not the District Court's function to inquire into the purpose or essential nature of single family neighborhoods and AFC homes to determine whether AFC homes in essence house single families.8 When a statute has a transparently clear meaning, as does Taylor's definition of family, it is not necessary to determine whether something it specifically excludes nonetheless falls within its purpose or spirit. See Cass R. Sunstein, Problems with Rules, 83 Cal.L.Rev. 953, 972 (1995) ("[I]f decision-makers investigate the purpose for a rule before applying it, they convert the rule into something very close to a standard or set of factors.").

Nor do we believe that the City's treatment of home businesses offers proof of discriminatory animus toward the handicapped. Allowing single-family homeowners to operate home businesses while at the same time prohibiting Smith & Lee from operating Mortenview as a twelve-person AFC home because Smith & Lee was a for-profit entity does not constitute disparate treatment or evidence of discriminatory animus. Taylor's zoning ordinance specifically permits homeowners in single-family neighborhoods to run a home business.9 The District Court should not have based a finding of intentional discrimination on a comparison of City's treatment of home businesses with its treatment of Mortenview. Under the terms of the Zoning Ordinance, Mortenview did not fit under the definition of single family, nor did it fit under the definition of home occupation. The language of the home occupation exception excludes homes like Mortenview because Smith & Lee's partners do not live there and because the exception is expressly limited to home occupations "which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes...." Housing elderly disabled residents is not "secondary to the use of the dwelling for dwelling purposes." As Mortenview is simply not comparable to single-family homes whose owners run a home business, the City's refusal to allow Smith & Lee to operate Mortenview as a twelve-person for-profit AFC home cannot serve as the basis of a disparate treatment claim. For the same reason, the City's alleged failure to require certain home businesses to comply with the City's ban on large signs cannot serve as evidence of disparate treatment or discriminatory evidence.10

We are also not convinced that plaintiffs produced significant evidence of discriminatory or paternalistic statements regarding the handicapped. The District Court noted that at the first trial, the Chairman of the City Council stated his belief that AFC homes would have a negative impact on single-family neighborhoods by lowering surrounding property values. The Court also noted that at the second trial the Mayor of Taylor "admitted that some of the City's initial opposition to AFC homes was based on irrational fears and prejudices about the dangerous or unstable nature of AFC residents." City of Taylor, 872 F.Supp. at 435. Further, the Court pointed to testimony by Gerald Couch, the City's Executive Director for Developmental Services, who, according to the Court, testified on remand that he felt it was his duty to protect Taylor's single family homeowners from AFC homes in their neighborhoods. Finally, the Court noted that at the first trial, the City Council Chairman betrayed a paternalistic attitude toward the handicapped when he testified that he opposed allowing a twelve-person AFC to operate in a single-family neighborhood because of his fear for the residents' safety during a fire. AFCs must pass stringent fire inspections. Moreover, such safety concerns were not "related to the home's presence in a single-family residential neighborhood," id., for the same safety concerns would apply to AFCs in single-family and multiple-family neighborhoods.

We continue to believe that the views expressed by the City Council Chairman regarding the safety of AFC residents during a fire were "the position of only one member of the Council." Smith & Lee, 13 F.3d at 928. We also believe that a city council member's fears that a twelve-person AFC might lower surrounding property values, even if proved to be unwarranted, do not necessarily evince discriminatory animus toward the handicapped. Moreover, the Mayor's comments were directed toward the City's behavior regarding an AFC home roughly ten years before this dispute, not Mortenview. The Mayor's testimony that the City had been opposed to AFC homes ten years before this dispute offers only weak evidence that the City was motivated by discriminatory animus toward the handicapped when it denied Smith & Lee's petition. Indeed, the District Court noted that "after a decade of exposure to AFC homes with no negative results, Taylor City officials and residents no longer oppose the presence of the homes within the City." City of Tay