Beruflich Dokumente
Kultur Dokumente
Timothy C. Kelly
Kelly Law Office
Post Office Box 65
Emigrant, Montana 59027
4061333-4 111 (voice)
4061333-9073 (fax)
Ryan R. Shaffer
Shaffer Law Office, P.C.
405 S. First St. West
Missoula, MT 5980 1
4061207-5423 (voice)
406172 1- 1799 (fax)
District of Montana
Butte Division
)
Montana Fair Housing, Inc., ) Case No. CLI- 0 9 - 90 - 24-RCC- CS6
Plaintiff, )
versus )
) COMPLAINT
City of Bozeman, Andy Epple, )
Vicki Hasler, and the Hinesley )
Family Limited Partnership #I, )
Hinesley Development, and )
Charles W. Hinesley, 1
Defendants. )
COMPLAINT
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1. This action is brought by the Plaintiff, Montana Fair Housing, Inc. (MFH),
marital status in the City of Bozeman. MFH brings this action against the
USC $$3601 et seq., the Americans with Disabilities Act (ADA), 42 USC
$5 12101 et seq., and/or Sec. 504 of the Rehabilitation Act, 29 USC $794,
prohibiting discrimination against persons with disabilities. Plaintiff also
personal privacy.
COMPLAINT - 1 -
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affirmative obligations under those laws. Plaintiff also seeks damages and
3. This Court has jurisdiction over this action under 28 USC 591343 and
1331, and 42 USC 3613, among other federal laws. The Court has
4. Real properties which are the subject of and affected by this civil action are
SUBJECT PROPERTIES
1098, 1112, 1120 and 1024 Long Bow Lane in Bozeman, Montana.
COMPLAINT -2-
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6. The Hinesley Properties consist of six (6) buildings, each containing eight
(8) units (total of 48 units), including 24 ground floor units. The legal
7. The Hinesley Properties were designed and constructed for first occupancy
federal Fair Housing Act, 42 USC 593601 et seq., and are "housing
Act, Mont. Code Ann. Title 49. The Hinesley Properties contain "covered
areas now zoned by .the City of Bozeman as Zoning Districts R-S, R- 1, R-2,
and R-3.
COMPLAINT -3-
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PARTIES
Montana.
Housing engages include, but are not limited to: (1) counseling
COMPLAINT -4-
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discriminatory practices.
of age and older, and persons not related by marital status who seek
equal housing opportunities, and MFH brings this action on its own
behalf and for its staff, members, associates and constituents who
Bozeman Defendants:
COMPLAINT -5-
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COMPLAINT -6-
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and/or manager that has or had the right to sell, lease or rent the
the Hinesley Properties and was responsible for the designing and/or
has or had the right to sell, lease or rent the Hinesley Properties and
EVENTS
13. Prior to, during and after October 2008, MFH has been engaged in
' For purposes of this civil action, the term persons with disabilities means
persons with a "handicap" as defined under federal law.
COMPLAINT -7-
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status. To that end, MFH has requested and reviewed building permits and
units) advising them of the requirements under federal and state fair
14. As part of its equal housing efforts, MFH sent a letter in January 2006 and
COMPLAINT -8-
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the design and construction of the Hinesley Properties, including all of the
16. The City of Bozeman adopted the 2006 International Building Code for
within the City of Bozeman and providing the City of Bozeman with the
17. At various times in 2008 through on or about October 2008, the City of
18. Each of the six buildings at the Hinesley Properties has four (4) ground
floor dwelling units which have a concrete stair impeding access into the
unit. Ground floor entrance doors have twist type door knobs and exterior
thresholds that impede access. Ground floor entry ways do not include the
COMPLAINT -9-
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19. One or more of the garbage receptacles made available for residents of the
and none of the garbage receptacles have door hardware that is easy to
20. One or more of the mail box kiosks made available for residents of the
2 1. There is no direct route between ground floor units and the garage parking
22. The Hinesley Properties were designed and /or constructed to contain other
barriers, impediments and obstacles which prevent equal use and access by
23. On and after October 2008, the Hinesley Defendants have made available
for sale or lease the dwellings and housing accommodations at the Hinesley
24. The Hinesley Defendants failed, refused and neglected to design and
COMPLAINT - 10-
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25. The Bozeman Defendants approved the design and construction of dwelling
units at the Hinesley Properties, including units that fail to comply with the
26, On or about October 16, 2008, MFH went to the Hinesley Properties to
comply with the accessibility requirements of federal and state fair housing
laws. MFH did so for purposes of including the Hinesley Properties on its
determined that the exterior of the Hinesley Properties did not comply with
27. On or about February 2009, MFH arranged for a person and constituent
person with a disability who visited the Hinesley Properties on that date
COMPLAINT - 1 I -
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and that there were other conditions that denied them access to full use and
28. On or about August 2009, MFH did an informal inspection of the Hinesley
b. Do not make the public use and common use portions of the covered
a disability;
c. Do not provide that all doors designed to allow passage into and
d. Do not ensure that all premises within the covered multifamily units
COMPLAINT - 1 2-
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29. In its August 2009 inspection, MFH discovered for the first time that the
multifamily units and that the City of Bozeman had approved certificates
30. In June 2009, MFH filed administrative complaints with the Department of
Defendants and the Bozeman Defendants had violated and were violating
305, MCA, by failing, refusing, and neglecting to design and construct the
COMPLAINT - 13-
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state fair housing laws. In November 2009, the State of Montana certified
the case for hearing before the Department of Labor & Industry and advised
the parties of their right to elect to have this matter heard in a civil action.
32. On December 1, 2009 MFH timely elected to have this matter heard in a
civil action. This complaint is timely filed within 30 days of notice of the
33. In October 2009, the State of Montana issued a right to sue letter
authorizing MFH to proceed with a civil action against the City of Bozeman
and certain city officials for violating the provisions of Sections 49-2-302,
90 days of the issuance of the right to sue letter by the State of Montana.
34. As a direct and proximate result of the acts and omissions of the Hinesley
promote and counsel and educate about equal housing opportunities, had
COMPLAINT - 14-
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35. Since on and before 2008, the Bozeman Defendants have engaged in a
36. Among the zoning and regulatory activities of the Bozeman Defendants
defines a bbhousehold"as a
COMPLAINT - 15-
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39. Bozeman's current zoning and regulatory activities (a) exclude assisted
living facilities and elderly care facilities from Zoning Districts R-1, R-2
and R-S and (b) impose requirements on community residential facilities (of
COMPLAINT - 16-
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3 and R-4.
42. The Bozeman Defendants' exclusion of assisted living facilities and elderly
care facilities from Zoning Districts R-S, R- 1, and R-2 and the Bozeman
COMPLAINT -17-
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facilities serving 8 or less residents are contrary to state law, Section 76-2-
412(3), MCA
43. The Bozeman Defendants' exclusion of assisted living facilities and elderly
care facilities from Zoning Districts R-S, R-1, and R-2 was done and is
being done with the intent and effect of denying equal housing
opportunities to persons with disabilities and with the intent and effect of
persons not otherwise subject to state licensing requirements was done and
is being done with the intent and effect of denying equal housing
opportunities to persons with disabilities and with the intent and effect of
COMPLAINT - 18-
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46. The term "older Montanans" as defined under state law, Section 52-3-502,
MCA, means persons 60 years of age or older and means the same or is
47. The Bozeman Defendants' exclusion of elderly care facilities from Zoning
Districts R-S, R-1, and R-2 was done and is being done with the intent and
effect of denying equal housing opportunities to the elderly and with the
intent and effect of steering the elderly to areas of Bozeman other than
persons not otherwise subject to state licensing requirements was done and
is being done with the intent and effect of denying equal housing
opportunities to the elderly and with the intent and effect of steering elderly
to Bozeman areas other than Zoning Districts R-S, R-1 and R-2.
COMPLAINT - 1 9-
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limitations and discrimination based on age and against the elderly in terms
5 1. On or about June 2009 and on or about November 2009, the City, through
Defendant Hasler, sent one or more letters to the owners and/or occupants
of residential housing in the area zoned R-S, R-1 or R-2 threatening fines
than four unrelated persons lived on the premises and ordering residents to
vacate the premises. The premises were occupied by more than four
of higher learning.
52. The Bozeman Defendants passed and have enforced Bozeman City
Ordinance 8 18.80.1390 with the intent and effect of denying equal housing
opportunities to persons who are under 25 years of age and are otherwise
COMPLAINT -20-
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qualified to rent or purchase housing in Zoning Districts R-S, R-1 ,and R-2.
53. The Bozeman Defendants passed and have enforced, and continue to
enforce, Bozeman City Ordinance 5 18.80.1390 with the intent and effect of
steering persons who are under 25 years of age outside of Zoning Districts
R-S, R-1, and R-2, despite the fact that those persons are otherwise
54. The Bozeman Defendants passed and have enforced and continue to
to rent or purchase housing in Zoning Districts R-S, R- 1, and R-2 and steers
55. Bozeman City Ordinance 5 18.80.1390: (a) permits any number of persons
residential home in Zoning Districts R-S, R- 1, and R-2; (b) prohibits more
than four persons who are unrelated by marital status or otherwise to live
(c) prohibits more than two persons unrelated by marital status or otherwise
COMPLAINT -2 1-
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56. The zoning, ordinance and regulatory activities of the Bozeman Defendants
than to persons not related by marital status and are done with the intent and
of Bozeman.
58. On multiple occasions, MFH has received requests for counseling and
disabilities, the elderly, persons under age 25 years and persons not related
COMPLAINT -22-
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59. In response to the requests for counseling and information described above,
and to others.
60. In June 2009, MFH filed an administrative complaint with the Montana
61. In October 2009, the State of Montana issued a final investigative report
certified the case for hearing before the Department of Labor & Industry
and advised the parties of their right to elect to have this matter heard in a
COMPLAINT -23-
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civil action. MFH timely elected to have this matter heard in a civil action.
This complaint was timely filed within 30 days of notice of the election to
62. On various dates during the period from on or about August 2009 through
and made other efforts expending its resources, to inspect and copy certain
City of Bozeman promised and represented that it would make available for
inspection and copying certain public records that Plaintiff requested, but
64. As a direct and proximate result of the acts and omissions of the Bozeman
and omissions in failing and refusing to make available public records for
COMPLAINT -24-
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resources from its program to promote and counsel and educate about equal
injuries.
65. MFH realleges and incorporates in the following Claims for Relief (Counts)
66. The allegations set forth in Counts IX, X and XI are allegations of unlawful
acts done without any intent to discriminate against any person because of
COUNT I
Federal Fair Housing Act Violations By Hinesley Defendants
67. The Hinesley Defendants have and are engaged in violations of the Federal
Fair Housing Act, 42 USC $53601 et seq, causing injury to the Plaintiff and
COMPLAINT -25-
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68. The Hinesley Defendants are liable to Plaintiffs for damages as permitted
by law.
relief requiring the Hinesley Defendants to bring the Subject Property into
COUNT I1
State Human Rights Act Violations by Hinesley Defendants
70. The Hinesley Defendants have and are engaged in violations of the
Montana Human Rights Act, Mont. Code Ann. Title 49, causing injury to
by law.
relief which requires the Hinesley Defendants to bring the Subject Property
COMPLAINT -26-
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COUNT I11
Federal Fair Housing Act Violations by Bozeman Defendants
another, have and are engaged in violations of the Federal Fair Housing
Act, 42 USC $$3601 et seq, causing injury to the Plaintiff and violating its
rights thereunder.
74. The Bozeman Defendants are liable to the Plaintiff in damages as permitted
by law.
relief which enjoins the Bozeman Defendants from engaging in any further
Defendants.
COUNT IV
ADA Violations by Defendant City of Bozeman
76. The Defendant City of Bozeman has and is engaged in violations of the
COMPLAINT -27-
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Americans with Disabilities Act, 42 USC $ 12131 et. seq., causing injury
law.
relief which enjoins the City of Bozeman from engaging in any further
COUNT V
Section 504 Violations by Defendant City of Bozeman
79. The Defendant City of Bozeman has and is engaged in violations of the Sec.
504 of the Rehabilitation Act, 29 USC $794, causing injury to the Plaintiff
relief which enjoins the City of Bozeman from engaging in any further
COMPLAINT -28-
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COUNT VI
Section 1983 Violations by the Defendant City of Bozeman
82. The Defendant City of Bozeman, by enacting and enforcing its zoning
ordinances and regulations, has denied due process and equal protection of
the laws to persons because of disability, age and marital status contrary to
law.
COUNT VII
Title 49 Unlawful Discrimination Against Persons by the Bozeman Defendants
Based on Disability, Age and Marital Status
COMPLAINT -29-
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86. The Defendant City of Bozeman has and is engaged in violations of the
87. The Bozeman Defendants are each liable to the Plaintiff in damages as
permitted by law.
relief which enjoins the Bozeman Defendants from engaging in any further
COUNT VIII
Defendant City of Bozeman's Breach of Governmental Code of Fair Practices
89. The Defendant City of Bozeman has and is engaged in violations of the
COMPLAINT -30-
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49-3-204 and 49-3-205, and has breached its affirmative duties thereunder,
COUNT IX
Bozeman Defendants7 Unlawful Violations of State Building Codes
92. The State ofMontana requires cities, including Defendant City ofBozeman,
93. The Montana Department of Labor & Industry has adopted the 2006
COMPLAINT -3 1-
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24.301.154, ARM.
94. The City of Bozeman adopted the 2006 International Building Code and the
95. The Bozeman Defendants have acted in a manner that is and has been and
the Plaintiff, its staff, directors, associates and constituents: (a) by failing
COMPLAINT -32-
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COUNT X
Violations of Mont. Const. Art. 11, Sec. 10 by Bozeman Defendants
97. The Bozeman Defendants, by enacting and enforcing its zoning ordinances
thereby caused injury to the Plaintiff, its staff, directors, and constituents
and people with whom the MFH staff, directors and constituents associate.
privacy of the staff, directors and constituents of the Plaintiff, and people
with whom they associate, and minimizes the likelihood of future violations
COUNT XI
Defendant City of Bozeman's Violation of Mont. Const. Art.11, Sec. 9
99. Defendant City of Bozeman has deprived Plaintiff the right to examine
COMPLAINT -33-
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law.
relief which enjoins the City of Bozeman from further depriving Plaintiff
WHEREFORE, Plaintiff requests judgment in its favor and against each of the
Defendants as set forth above and further requests that the Court:
A. Declare that (1) the Hinesley Defendants designed and constructed and
accessibility requirements of federal and state fair housing laws and (2) the
enforcement activities that have denied and continue to deny persons equal
housing opportunities because of disability, age and marital status and that
B. (1) Enjoin each of the Hinesley Defendants from continuing in their failure
housing laws and fiom failing to design or construct any future dwellings
COMPLAINT -34-
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state fair housing laws and (2) Enjoin each of the Bozeman Defendants
marital status and (3) Enjoin the City of Bozeman from engaging in zoning,
but not limited to state building codes and the state constitutional privacy
rights of persons;
(1) Order the Hinesley Defendants to take such affirmative steps, including
into compliance with the accessibility requirements of federal and state fair
arranges for current residents and occupants to vacate the premises and
a sufficient time to permit the retrofitting, and (2) Order the Bozeman
ADA, Section 504, Human Rights Act and Governmental Code of Fair
COMPLAINT -35-
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MFH as a result of the unlawful acts of the Defendants and each of them;
fbture;
F. Order the Defendants and each of them to pay the Plaintiff its costs,
COMPLAINT -36-
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G. Grant such other relief as the Court deems fair and equitable.
IS/Timothy C. Kelly
COMPLAINT -37-