10th STREET PARTNERS, LLC v. COUNTY COMMISSION FOR SARASOTA COUNTY
United States District Court, M.D. Florida, Tampa Division.
September 20, 2012.
Following Assarian's testimony, Medred resumed the presentation and stated that:
We believe that since our residents are disabled, we believe that the requested zoning change for an additional 28 beds is a reasonable accommodation within the meaning of the Americans with Disabilities Act. And Attorney Joe Herbert with the Icard Merrill Law Firm is here to discuss if you have any of those questions concerning that.
Id. at 23-24.
After the conclusion of Medred's presentation, the Board took comments from the public who spoke primarily about traffic concerns posed by the zoning variance request. The Board subsequently posed questions to Medred relating to the potential increase in traffic and other issues, but did not ask any questions regarding 10th Street's reasonable accommodation ADA request and did not ask for Herbert to speak as to that issue. Citing concerns about the proposed facility's "compatibility with this particular neighborhood," the Board voted 5-0 to deny 10th Street's zoning variance request. Id. at 49-50. The Board adopted Substitute Resolution No. 2011-042 on February 22, 2011, which memorialized their decision at the hearing.
On May 9, 2011, 10th Street's counsel sent a demand letter to the Board requesting the Board to re-open the hearing and reconsider its decision on the Rezone Petition. (Doc. # 9-2 at 71-72). The letter stated that "[b]y failing to grant a reasonable accommodation to persons clearly within the ambit of protections from discrimination based on disability, this Commission has committed a violation — and remains in violation — of the requirements of the ADA and the FHA as to the Grey Oak facility and its prospective residents." Id. at 72.
The Board responded by letter dated June 16, 2011, stating that:
10th Street Partners alleges a failure to provide a reasonable accommodation associated with higher dwelling unit density. Unfortunately, the record of the proceedings does not indicate why an accommodation of density is necessary. There is no record evidence as to why a density increase is needed to properly afford persons with disabilities the equal opportunity to use and enjoy a dwelling in the neighborhood.