2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 1 of 12 Pg ID 1

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Tlif.~(TUIc>
IN THE UNITED STATES DISTRICT COURT FOR

EASTERN DISTRICT OF MICHIGAN

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SOUTHERN DIVISION

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MICHAEL LOWERY,

06-~1~08 Case No.:

;.o"lC)S! '-N

Plaintiff
v.

Judge ftJAN«S,.BJMUWi.

BEZTAK PROPERTIES, INC.,

Defendant.

J. Mark Finnegan (P68050) Denise M. Heberle (P64145) Heberle & Finnegan, PLLC 2580 Craig Road Ann Arbor, MI48103 734-302-3233 734-302-3234 fax hffirm@comcast.net

*.**".*•• Attomeys for Plaintiff

"*****"'*****••• ***~~***~••

• • ********~**********AA.*

4*~4* • •*a .A.*.******

COMPLAINT Preliminary Statement

Plaintiff Michael Lowery alleges:

1. In the State of Michigan and nationwide, there is an acute shortage of

accessible rental housing available to persons with disabilities and their families.

As a resuH, Congress directed over ten years ago that newly constructed multi-

family housing units on ground floors must meet accessibility standards.

Unfortunately, many architects, builders and apartment companies have

wantonly ignored the law, and continue to construct ground floor multi-family
housing that that is not accessible to persons with mobility impainnents. This is

illegal discrimination, and denies housing to persons with disabilities. In addition,

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 2 of 12 Pg ID 2
non-disabled tenants who rent these inaccessible apartments are unable to host friends and family who have mobility impairments. This failure to build apartments correctly stigmatizes persons with disabilities and their families and friends. This lawsuit is brought to help remedy this wanton discrimination in Southeastern Michigan. 2. This action is brought to enforce the Fair HOUSing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 ("Fair Housing Act"). 42 U.S.C. §§ 3601-3619, and Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. 3. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and
1345, 42 U.S.C. § 3614(a), and 42 U.S.C. § 12188(b)(1)(B). Venue is proper pursuant to 28 U.S.C. § 1391(b) because defendants resides or does business in
the Eastern District of Michigan.
PARTIES 4. Plaintiff Michael Lowery is a U.S. citizen and a resident of the Uptown Apartments in Canton Michigan. He has a mobility impairment and requires a wheelchair for ambulation. He is a person with a disability as that term is defined by the Fair Housing Act and the ADA. 5. Defendant Beztak Properties, Inc. is a corporation organized under the laws of Michigan that conducts business in the Eastem District of Michigan. Defendant Beztak Properties is responsible for the design, construction, and
2

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 3 of 12 Pg ID 3
operation of a number of apartment complexes, including the Uptown Apartments, located in Canton Michigan, where Plaintiff Mike Lowery lives.
FACTS 6. Defendant designed, constructed, and operates the Uptown Apartments in Canton, Michigan. The complex consists of approximately 30 apartment buildings, containing a total of approximately 300 apartments. The complex also contains a pool, club house, exercise gym, meeting areas and a business office. The Uptown Apartments complex has saveral streets and intersections, and sidewalks throughout. 7. The Uptown Apartments became available for lease approximately one year ago. Plaintiff Mike Lowery has been a tenant there for the last several months. Mr. Lowery uses a wheelchair to ambulate. Because there are no elevators and no ramps or any other way for a person using a wheelchair to access the second and third floor apartments at Uptown, Mr. Lowery needed a ground floor unit. 8. When he first inquired about renting an apartment at Uptown, the rental agent told Mr. Lowery that the complex had "three handicap accessible apartments" in the complex. The law requires that al/ ground floor units in a complex like Uptown must be accessible; Uptown should have had at least ninety accessible units, not just three. 9. The rental agent showed Mr. Lowery one of the units identified as "handicap accessible." The agent assured Mr. Lowery that this apartment was
3

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 4 of 12 Pg ID 4
specifically designed for tenants who use a wheelchair. Mr. Lowery agreed to rent the unit. A few days later, Uptown informed Mr. Lowery that another of the three "handicap accessible" apartments was available, and Mr. Lowery agreed to rent that unit instead. 10. After moving in, Mr. Lowery discovered numerous accessibility problems in his unit. For example, the bedroom and bathroom doors are too narrow, causing Mr. Lowery to scrape his fingers, toes, knees and chair wheels against the door frames when he tries to maneuver through them. Mr. Lowery can not operate his washer or dryer and he can not reach other closet spaces, because the doors and shelves are improperly configured. He can reach only one of the electrical outlets in his kitchen, and as a result he often shorts out his electricity when using more than two appliances in the kitchen. The thresholdS to his entrance doors are too high, jostling him every time he enters or leaves his apartment. The bathrooms have no grab bars and lack proper blocking for their installation. As a result, transferring from his chair to the toilet and using the shower are dangerous activities for Mr. Lowery. 11. Outside the front of Mr. Lowery's apartment, concrete steps block access to and from the sidewalks. Instead of entering and exiting his apartment like any other Uptown resident, he must pass through his garage or though the back of his apartment. He must travel through the driveway and parking lots behind several apartments. This route contains running slopes well in excess of 5% and cross-slopes exceeding 5%, forcing his chair into the flow of traffic. If he successfully overcomes these problems and makes it to the sidewalks, the
4

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 5 of 12 Pg ID 5
sidewalks and their curb ramps offer the same barriers. As a result, Mr. Lowery is virtually trapped in his apartment. He has no ready access to the pool, exercise room, club house or meeting rooms. Even his mail box is not accessible to him. He has no accessible route to the nearby ice cream shop and convenience store, or to public transportation. 12. Mr. Lowery is unable to visit his neighbors. There are steps blocking the front access to his and to each of the neighboring ground floor apartments. If he enters those apartments through the garage, he risks damaging the door posts and he scrapes his fingers and toes. Because he can not access Uptown's common areas, it is virtually impossible for him to meet and interact with his neighbors. Since he can only use his back door, his only chance to meet his neighbors as they come and go is to lurk behind the apartments in the steeply sloping parking lots, dodging cars. This is just the sort of isolation the Fair Housing Act and the Americans With Disabilities Act were passed to eradicate. 13. Mr. Lowery has repeatedly complained to Uptown about these and other accessibility defects. Mr Lowery and his mother even gave Uptown's agent a newspaper clipping from the Detroit Free Press about a lawsuit that the United States Attorney brought against another Southeastern Michigan apartment buildeL The lawsuit was United states vs. Edward Rose and Sons, and was filed in Federal Court in Detroit. The article explains the accessibility requirements for new apartment complexes, and what happens when builders ignore the law. Despite this notice and Mr. Lowery's requests, Uptown has refused to correct any of the accessibility defects.
5

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 6 of 12 Pg ID 6
FAIR HOUSING ACT CLAIMS 15. Uptown Apartments contains residential apartment units that are "dwellings" within the meaning of 42 U.S.C. § 3602(b). 16. The ground floor units at Uptown Apartments that were designed and constructed for first occupancy after March 13, 1991 are "covered multi-family dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(A) and are subject to the requirements of 42 U.S.C. § 3604(f)(3)(C). 17. Uptown Apartments comprises approximately 30 buildings containing residential rental dwellings built since the effective date of the accessible design requirements of the Fair Housing Act. These buildings contain approximately 100 ground floor units that are subject to the accessibility requirements of the Fair Housing Act. These units, including the one rented by Mr. Lowery were built for first occupancy approximately one year ago. 1B. Defendant failed to design and to construct the covered dwelling units and common use and public use areas in the Uptown Apartments in such a manner that:
(a) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
(b) all the doorS designed to allow passage into and within all premises
within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(c) all premises within such dwellings contain the following features of adaptive design:
6

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 7 of 12 Pg ID 7
(i) an accessible route into and through the dwelling; (ii) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (iii) reinforcements in bathroom walls to allow later installation of grab bars; and (iv) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 19. Defendant, through the actions described in paragraph 16 above, has: (a) Discriminated in the rental of, or otherwise made unavailable or denied, dwellings to persons because of handicap, in violation of 42 U.S.C. § 3604(f)(1 ); (b) Discriminated against persons in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services or facilities in connection with the rental of a dwelling, because of handicap, in violation of 42 U.S.C. § 3604(f)(2); and (e) Failed to design and construct dwellings in compliance with the requirements mandated by 42 U.S.C. § 3604(f)(3)(C). 20. The conduct of defendant described above constitutes a violation of the Fair Housing Act 21. As a person who has been the victim of defendants' discriminatory housing practices, Plaintiff Michael Lowery is an aggrieved person as defined in 42 U.S.C. § 3602(;) and has suffered injuries as a result of defendant's conduct described above.
7

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 8 of 12 Pg ID 8
22. Defendant's conduct described above was intentional, willful, and taken in disregard for the rights of others.
AMERICANS WITH DISABILITIES ACT CLAIMS
23. The rental office at the Uptown Apartments is a sales or rental establishment, the operations of which affect commerce, and therefore are "public accommodations" within the meaning of 42 U.S.C. § 12181(7). 24. The rental office at the Uptown Apartments was designed and constructed for first occupancy after January 26, 1993. The rental office and the facilities, privileges, and accommodations provided for the public appurtenant to the use of the rental offices, including the parking and sidewalks are covered by the
prohibition on discrimination in 42 U.S.C. § 12182(a). and are subject to the design and construction requirements of 42 U.S.C. § 12183(a)(1).
25. The Defendant failed to design and construct the rental office and its appurtenant parking and sidewalks in such a manner that the facilities are readily accessible to and useable by individuals with disabilities. 26. The actions of the defendant, as described above, constitute:
(a) Discrimination against individuals with disabilities in the full and equal enjoyment of the services, facilities, privileges, and accommodations of a place
of publiC accommodation, in violation of 42 U.S.C. § 12182(a); and
(b) A failure to design and construct public accommodations in compliance
with the requirements mandated by 42 U.S.C. § 12183(a)(1).
27. The conduct described in paragraphs above constitutes a violation of the Americans With Disabilities Act.
8

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 9 of 12 Pg ID 9
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that the Court enter an order that 1. Declares that defendant's policies and practices, as alleged herein,
violate the Fair Housing Act; 2. Enjoins defendant, its officers, employees, agents, successors, and
all other persons in active concert or participation with it, from: (a) Failing or refusing to bring the covered dwelling units and public
use and common use areas at Uptown Apartments into immediate compliance
with the requirements of 42 U.S.C. § 3604(f)(3)(C);
(b) Failing or refusing to take such affirmative steps as may be necessary to restore Plaintiff to the position he would have been in but for the discriminatory conduct; and
(c) Failing or refusing to design and construct any covered mUltifamily dwellings in the future in compliance with the requirements set forth in 42
U.S.C. § 3604(f)(3)(C);
3. Awards such damages as would fully compensate Plaintiff for his injuries and damages resulting from defendant's discriminatory conduct, pursuant
to 42 U.S.C. § 3614(d)(1)(B);
4. Awards Plaintiff punitive damages because of the intentional and willful
nature of defendant's conduct, pursuant to 42 U.S.C. § 3614(d)(1 )(6); and
5. Declares that practices of the defendant. as alleged herein, violate Title III of the ADA;
9

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 10 of 12 Pg ID 10
6. Enjoins the defendant and all other persons in active concert or participation with it, from:
(a) Failing or refusing to bring the rental offices at the subject complexes and others, and the parking, sidewalks leading to and from the rental offices, into
compliance with the requirements of 42 U$C. § 12183(a)(1);
(b) Failing or refusing to take such affirmative steps as may be necessary to restore Plaintiff, as nearly as practicable, to the position he would have been in but for the discriminatory conduct; and
(c) Failing or refUSing to design and construct any public accommodations
in the future in compliance with the requirements of 42 U.S.C. § 12183(a)(1); and
Plaintiff requests a jury trial of all issues triable thereby. Plaintiff further prays for such additional relief as the interests of justice may require.
Respectfully submitted,
/}/;fAffJv1 /JiMiL
J. Mark Finnegan (P68050)
Denise M. Heberle (P64145) Heberle & Finnegan, PLLC 2580 Craig Road Ann Arbor, MI 48103 734-302-3233 734-302-3234 fax hffirm@comcastnet Attorneys for Plaintiff
10

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 11 of 12 Pg ID 11

(Rov, II""')

CIV1L COVER SHEET County In which tW.lIClion ....... ..:!!.!.~L_ _....

Tht: IS 44 civil cover sheet and provided by locu.l rules ofO(Iurt,

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ofinitiatlng the civil dock~t sheet, (SEE INSTRt)(:TI()NS ON THE REVERSE OF TIm fORM.)

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I. (0) PLAINTIFFS MICHAflL LOWERY
(b) County of R~idenl;e of First List«i Plajntitl :-W":"A'::'YN""E"-_ _ _ _ __ (T1XCEI"T IN u.s. PLAINTIFF CASES)
(c) AttQrnc;:y'!J (Hi'll'! Name, AddrotiB, aDd Te]t;:pooJK'! Nllmhm-)
Heberle &. Finnegan J. Mark Firmegafi 2580 Craig Road Ot?;niso M...J:!ehcrle Ann Arbor Ml 48103 734"_ ·32h.

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BEZTAK PROPERTIF.~.1IlIG::l

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Citizcn of This State

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Cite the U.S. Civil Statute under whi(;h YI)U Me filius (1M not cite jurisdktioluil su.tuf.es unl~ dlvemlty):

_ L4~2~U~.s~.C~'.~3@~I~-3~61~9~:4~2~U~,S~,,~·:.~1~2~IK~I-~1~21~X~9 _________________________________~__~~________~

VI, CAUSE Of' ACTION r.BritlfdescriptiQIl ofcaWiC;

/

\

Plaintiff· clai~ unlawful disuriminatiml inlH)using Oil bais of diRahility.

o VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

DEMAND S

CHECK YES ofy)f""n",ndod if' complHiru,

COMPLAINT:

UNOEll. F,Re,p, 23

vm. RELATED CASE(S)

, _ / ' JURY OIi:MAMl/ III y" IJ No

IF ANY

DOCKET NUMIIBR

OATh July 27. 2006

J

IIOK UI<'li'lct; LJSE ONLY

- - - - RECEIM' # _______ .I\MOUN"r _ _ _ _ _ _ __ APPLYING JFP

JUDGE _ _ _ _ __

- - - - - MAG. JUDGE

2:06-cv-13408-NGE-MKM Doc # 1 Filed 07/27/06 Pg 12 of 12 Pg ID 12
PURSUANT TO LOCAL RULE 83.11

1.

Is this a case that has been previously dismissed?

If yes, give the following information: Court: _______________________________

DYes
Ii] No

Case No.: ~_ _ _ _ _ _ _ _ _ _ _ _ _ _ _~ Judge: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2

Other than stated above, are there any pending or previously

discontinued or dismissed companion cases in this or any other

DYes

court, including state court? (Companion cases are matters in which Ii] No
it appears substantially similar evidence will be offered or the same

or related parties are present and the cases arise out of the same

transaction or occurrence.)

If yes, give the following information: Court: _____________________________~--

Case No.: __________________

Judge: ___________________________

Notes:

 
 2:06-cv-13408-NGE-MKM Doc # 2 Filed 09/20/06 Pg 1 of 13 Pg ID 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Michael Lowrey,

)

Case No.: 06-13408-NGE-MKM

)

Plaintiff

)

Judge NANCY G. EDMUNDS

)

)

Magistrate MONA MAZOUB

Beztak Properties, Inc.,

)

Beztak Companies, Inc.,

)

Biltmore Properties Companies, Inc. )

Uptown Investors L.L.C.,

)

Uptown Investors L.L.C. II,

)

Monogram Homes,

)

Warner, Cantrell, & Padmos, Inc.,

)

Looney, Ricks, Kiss

)

)

JURY DEMANDED

Defendants

.

)

********************************************************************************************

J. Mark Finnegan (P68050)

Denise M. Heberle (P64145)

Heberle & Finnegan, PLLC

2580 Craig Road

Ann Arbor, MI 48103

734-302-3233

734-302-3234 fax

hffirm@comcast.net

Attorneys for Plaintiff
******************************************************************************************* FIRST AMENDED COMPLAINT Preliminary Statement

Plaintiff Michael Lowrey alleges:

1. In the state of Michigan and nati onwide there is an acute shortage of

accessible rental housing available to persons with disabilities and their families.

As a result, Congress directed over ten years ago that newly c onstructed multi-

family housing units on grou nd floors mu st meet accessib ility standards.

Unfortunately, many architects, bu ilders and apartment companies have

2:06-cv-13408-NGE-MKM Doc # 2 Filed 09/20/06 Pg 2 of 13 Pg ID 14

wantonly ignored the law, and continue t o construct ground floor multi-family

housing that that is not accessible to perso ns with mobility impair ments. This is

illegal discrimination, and denies housing to persons with disabilities. In addition,

non-disabled tenants who rent these inaccessible apartments are unable to host

friends and family who have mobility

impairments. This failure to build

apartments so that they ar e accessible stigmatizes persons with disab ilities and

their families and friends. This lawsuit is brought to help remedy this wanton

discrimination in Southeastern Michigan.

2. This action is brought to enforce the Fair Housing Act, Title VIII of the Civil

Rights Act of 1968, as amended by the Fa ir Housing Amendmen ts Act of 1988

("FHAA"), 42 U.S.C. §§ 3601-3619; Title III of the Americans with Disabilities Act

("ADA"), 42 U.S.C. §§ 12181- 12189; and the Michigan Pe rsons With Disabilities

Civil Rights Act (“P WDCRA”), MCL Sec tion 37.1301a and b relating to the

business office and MCL Section 37.1506a(1)(c) relating to multifamily housing.

3. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and

1345, 42 U.S.C. § 3614(a), and 42 U.S.C. § 12188(b)(1)(B). The Cour t has

supplemental jurisdiction over the Michi gan law claim because the claim arises

out of the same factual situation as the Federal claims. Venue is proper pursuant

to 28 U.S.C. § 1391( b) because each Defendants resides in or does business in

the Eastern District of Michigan.

PARTIES

4. Plaintiff Michael Lowr ey is a U. S. citizen and a res ident of the Uptown

Apartments in Ca nton Michigan. He has a mobility im pairment and require s a

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wheelchair for ambulation. He is a person with a disability as that term is defined by the FHAA, the ADA and the PWDCRA. 5. Defendant Beztak Properties, Inc. is a corporation organized under the laws of Michigan that conducts business in the Eas tern District of Michigan. Defendant Beztak Properties is responsible for the design, construction, building, and/or operation of a number of apartment complexes, including the Uptown Apartments, located in Canton Michigan, where Plaintiff Mike Lowrey lives. 6. Defendant Beztak Companies , Inc. engaged in a joint venture with Defendant Biltmore Properties Corporat ion and some or all of the other Defendants to design, construct, build an d/or to operate the Uptown Apartments and/or nearby adjacent side walks and facilities that are not reasonably accessible to and usable by Plaintiff Lowrey. 7. Defendant Biltmore Properties Companies, Inc. engaged in a joint venture with Defendant Beztak Companies and some or all of the other Defendant s to design, construct, build and/or to operat e the Uptown Apartments and nearby adjacent sidewalks and facilities that are not reasonably accessible to and usable by Plaintiff Lowrey. 8. Defendant Uptown Investors L.L. C. and Defendant Uptown Investors L.L.C. II are both corporations organized under the laws of Michigan that conduct business in the Easter n District of Michi gan. Defendant Uptown I nvestors L.L.C and Defendant Uptown Investors L.L.C. II. are or have been owners of Uptown Apartments or are or have been respon sible for the design, construction,
3

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building, and/or operation of the Uptown Apartment s, located in Cant on Michigan, where Plaintiff Mike Lowrey lives. 9. Defendant Monogram Homes is a Michigan Corporation. Defendant Monogram Homes is responsible for the design, construction, building, and/or operation of the Uptown Apar tments, located in Canton Michigan, where Plaintiff Mike Lowrey lives. 10. Defendant Warner, Cantrell, & Padmos, Inc., is a civil engineering firm. Upon information and belief, it is responsible for the design, construction, building, and/or operation of the Upto wn Apartments and adj acent facilities, located in Canton Michigan, where Plaintiff Mike Lowrey lives. 11. Defendant Looney Ric ks Kiss is t he architect for the Uptown Apartments and adjacent facilities. It is responsib le for the design, construction, build ing, and/or operation of the Uptown Apartments and adjacent facilities, located in Canton Michigan, where Plaintiff Mike Lowrey lives. 12. Defendants Beztak Properties, Inc., Beztak Companies, Inc., and Uptown Investors I and II have the same address, and upon inf ormation and belief, many of the same employees and principals.
FACTS 13. Each Defendant either designed, built, construct ed, and/or operates the Uptown Apartments and/or the sidewalks a nd other fac ilities adjacent thereto in Canton, Michigan. These apartments and facilities suffer from numerous defects in design or construction that make the facilities not accessible to nor readily usable to Plaintiff Lowrey. The Upto wn Apartment complex cons ists of
4

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approximately 30 apartment buildings, c ontaining a total of appr oximately 300 apartments. The complex al so contains a pool, club house, exercise gym, meeting areas and a business office. The Uptown Apartments complex has several streets and intersections, and sidewalks throughout. 14. The Uptown Apartments became av ailable for lease approximately one year ago. Plaintiff Mike Lowrey has been a tenant there for the last several months. Mr. Lowrey uses a wheelchair to ambulate. Because there are no elevators and no ramps or any other wa y for a person using a wheelch air to access the second and third floor apar tments at Uptown, Mr. Lowrey nee ded a ground floor unit. 15. When he first inquired about renting an apartment at Uptown, the rental agent told Mr. Lowrey that the co mplex had “three handic ap accessible apartments” in the complex. The law requires that all ground floor units in a complex like Uptown must be accessible; Uptown should have had at least ninety accessible units, not just three. 16. The rental agent showed Mr. Lowre y one of the units identified as “handicap accessible.” The agent assure d Mr. Lowrey that this apartment was specifically designed for tenants who use a wheelchair . Mr. Lowrey agre ed to rent the unit. A few days later, Uptown informed Mr. Lowrey that another of the three “handicap accessible” apartments was available, and Mr. Lowrey agreed to rent that unit instead. 17. After moving in, Mr. Lowrey dis covered numerous accessibility problems in his unit. Fo r example, the bedr oom and bathroom doors are too narrow,
5

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causing Mr. Lowrey to scrape his fingers, toes, knees and chair wheels against the door frames when he tries to maneuv er through them. Mr. Lowrey can not operate his washer or dryer and he can not reach other closet spaces, because the doors and shelves are impr operly configured. He can reach only one of the electrical outlets in his kitchen, and as a result he often shorts out his electricity when using more than two ap pliances in the kitchen. The thresholds t o his entrance doors are t oo high, jostling him every time he enters or leaves his apartment. The bathr ooms have no grab bars and lack proper blocking for their installation. As a res ult, transferring from his chair t o the toilet and using the shower are dangerous activities for Mr. Lowrey. Upon information and belief, all of the ground floor apartment s at Uptown suffer from some or all of t hese defects. 18. Outside the front of Mr. Lowrey’s apartment, concrete steps block access to and from the sidewalks. Instead of ent ering and exiting his apartment like any other Uptown resident, he must pass thro ugh his gar age or though the back of his apartment. He must travel through the driveway and park ing lots behind several apartments. This route contains running slope s well in excess of 5% without required lev el landings and ha ndrails, or exceed 5% where not necessary, and have cross-slopes exceeding 2%, forcing his chair into the flow of traffic. If he successfully overcome s these problems and makes it to the sidewalks, the sidewalks and their curb ra mps offer the same barriers. A s a result, Mr. Lowrey is v irtually trapped in his apartment. He has no ready acc ess to the pool, exercise r oom, club house or meeting rooms. Ev en his mail box is
6

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not accessible to him. He has no accessible route to the nearby ice cream shop community theater, and convenience store, or to public transportation. 19. Mr. Lowrey is unable t o visit his neigh bors. There are steps blocking the front access to his and to each of t he neighboring ground f loor apartments. Virtually every ground floor apartment at Uptown suffers from these defect s. If he enters those apartments through the garage, he risks damaging the door posts and he scrapes his fingers and toes. Because he can not access Uptown’s common areas, it is virtually impossible for him to meet and interact with his neighbors. Since he can only use his ba ck door, his only chance to meet his neighbors as they come and go is to lurk behind the apartments in the steeply sloping parking lots, dodging c ars. This is just the sort of isolation the Fair Housing Act and the Americans With Disabilities Act were passed to eradicate. 20. Mr. Lowrey has repeatedly complain ed to Uptown about these and other accessibility defects. Mr. Lowrey and h is mother even gave Uptown’s a gent a newspaper clipping from the Detroit Fr ee Press about a lawsuit that the Unit ed States Attorney brought against another Southeas tern Michigan apartment builder. The lawsuit was United States vs. Edward Rose and Sons, and was filed in Federal Court in Detroit. The article explains the accessibility requirements for new apartment complexes, and what ha ppens when builders ignore the law. Despite this notice and Mr. Lowrey’s requests, Defendants have consis tently refused to correct any of the accessibility defects. 21. The sidewalks and other facilities adjacent to Uptown Apartments lack and accessible route and are not accessible to and readily usable by Mr. Lowery.
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FAIR HOUSING ACT CLAIMS 22. Uptown Apartments contains residential apartment units that are "dwellings" within the meaning of 42 U.S.C. § 3602(b). 23. The ground floor units at Uptown Apartments that were designed and constructed for first occupancy after Ma rch 13, 1991 are "covered multi-family dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(A ) and are subject to the requirements of 42 U.S.C. § 3604(f)(3)(C). 24. Uptown Apartments comprises appr oximately 30 buildings containing residential rental dwellings built since the effective date of the acc essible design requirements of the Fair Housing Act. T hese buildings contain approximately 100 ground floor units that are subject to t he accessibility requirements of the Fair Housing Act. These units, including the one rented by Mr. Lowrey were built for first occupancy approximately one year ago. 25. Defendants failed to design and to construct the covered dwelling units and common use and public use areas in the Uptown Apartments in such a manner that:
(a) the public us e and common use porti ons of such dwellings are readily accessible to and usable by handicapped persons;
(b) all the doors designed to allow pa ssage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(c) all premises within such dwellings contain the following features of adaptive design:
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(i) an accessible route into and through the dwelling; (ii) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (iii) reinforcements in bathroom walls to allo w later installatio n of grab bars; and (iv) usable kitchens and bathrooms such that an in dividual in a wheelchair can maneuver about the space. 26. Defendants, through the actions described in paragraph 16 above, has: (a) Discriminated in the rental o f, or ot herwise made unavailable or denied, dwellings to persons because of handicap, in violat ion of 42 U.S.C. § 3604(f)(1); (b) Discriminated against persons in th e terms, conditions, or priv ileges of rental of a dwelling, or in the provision of s ervices or facilities in connection with the rental of a dwelling, because of handicap, in violatio n of 42 U.S.C. § 3604(f)(2); and (c) Failed to design and cons truct dwellings in compliance with the requirements mandated by 42 U.S.C. § 3604(f)(3)(C). 27. The conduct of Defendants described above constitutes a violation of the Fair Housing Act. 28. As a person who has been the vict im of Defendants' discriminatory housing practices, Plaintiff Michael Lowrey is an aggrieved perso n as defined in 42 U.S.C. § 3602(i) and has suffered injuri es as a result of Defendants’ conduct described above.
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29. Defendants’ conduct described above wa s intentional, willful, and taken in disregard for the rights of others, including Plaintiff Lowrey.
AMERICANS WITH DISABILITIES ACT CLAIMS 30. The rental office at the Uptown Apartments is a sales or rental establishment, the operations of whic h affect commerce, and therefore are "public accommodations" within the meaning of 42 U.S.C. § 12181(7). 31. The rental office at the Uptown Apartments was designed and constructed for first occupancy af ter January 26, 1993. The rental office and the facilities, privileges, and accommodations provided for the public appurtenant to the use of the rental offices, including the par king and sidewalks are covered by the prohibition on discriminati on in 42 U.S.C. § 12182(a) , and are subject to the design and construction requirements of 42 U.S.C. § 12183(a)(1). 32. The Defendants failed to design and construct the rental office and its appurtenant parking and sidewalks in such a manner that the facilities are readily accessible to and useable by individuals with disabilities. 33. The actions of the Defendants, as described above, constitute:
(a) Discrimination against individuals with disabilities in the full and equa l enjoyment of the services, facilities, privileges, and ac commodations of a place of public accommodation, in violation of 42 U.S.C. § 12182(a); and
(b) A failure to design and construct public accommodations in compliance with the requirements mandated by 42 U.S.C. § 12183(a)(1).
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34. The conduct described in paragr aphs above constitutes a violation of the

Americans With Disabilities Act, entitling Plaintiff to declar atory and injunctive

relief, and a reasonable attorneys fee and costs.

MICHIGAN PERSONS WITH DISABILITIES CIVIL RIGHTS ACT

35. Plaintiff brings this action pur suant to MCL Sections 37. 1301a and b

relating to the Uptown Apartment

business office and MCL Section

37.1506a(1)(c) relating to multifamily housing.

36. Defendants discriminated agains t Plaintiff by designing or constructing

Uptown’s business office and gr ound floor apartments, and/or the facilities and

sidewalks adjacent to the Uptown Apartments not to be accessible to and readily

usable by Plaintiff.

37. Defendants’ conduct described above wa s intentional, willful, and taken in

disregard for the rights of other s, including Plaintiff Lowrey. Plaintiff is entitled to

declaratory and injunctive relief, com pensatory and exemplary damages, as wel l

as a reasonable attorneys fee and costs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court enter an order that:

1. Declares that Defendants’ policies and practices, as alleged herein,

violate the Fair Housing Act, the Amer icans With Disab ilities Act and the

Michigan Persons With Disabilities Civil Rights Act;

2. Enjoins Defendants, their offi cers, employees, agents, successors,

and all other persons in active concert or participation with Defendants, from:

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(a) Failing or refusing to br ing the bus iness office, the cover ed

dwelling units and public use and common use areas at Uptown Apartments into

immediate compliance with the requirements of 42 U.S.C. § 3604(f)(3)(C);

(b) Failing or refusing to take such affirmative steps as may be

necessary to restore Plaintiff to the pos ition he would have been in but for the

discriminatory conduct; and

(c) Failing or refusing to des ign and construct any covered multi-

family dwellings in the future in compli ance with the requirement s set forth i n 42

U.S.C. § 3604(f)(3)(C);

3. Awards such damages as woul d fully compensate Plaintiff for his

injuries and damages resulting from

Defendants’ discriminatory conduct,

pursuant to 42 U.S.C. § 3614(d)(1)(B);

4. Awards Plaintiff punitive and or exemplary damages becaus e of the

intentional and willf ul nature of Defendants ’ conduct, pursuant to 42 U.S.C. §

3614(d)(1)(B); and

5. Declares that practices of th e Defendants, as a lleged herein, violate

Title III of the ADA;

6. Enjoins the Defendant s and all other persons in active c oncert or

participation with it, from:

(a) Failing or refusing to bring the rent al offices at the subject complexes

and others, and the parking, sidewalks leading to and from the rental offices, into

compliance with the requirements of 42 U.S.C. § 12183(a)(1);

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(b) Failing or refusing to take such affirmative steps as may be necessary to restore Plaintiff, as nearly as practicable, to the position he would have been in but for the discriminatory conduct; and
(c) Failing or refusing to design and construct any public accommodations in the future in compliance with the requirements of 42 U.S.C. § 12183(a)(1); and Plaintiff requests a jury trial of all issues triable thereby. Plaintiff further prays for such additional relief as the interests of justice may require.

Respectfully

submitted,

J. Denis Heberle 2580 Ann 734-302-3233 734-302-3234

/s/ J. Mark Finnegan_______ Mark Finnegan (P68050) e M. Heberle (P64145) & Finnegan, PLLC Craig Road Arbor, MI 48103
fax hffirm@comcast.net
Attorneys for Plaintiff

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 2:06-cv-13408-NGE-MKM Doc # 43 Filed 05/24/07 Pg 1 of 23 Pg ID 288

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Michael Lowrey,

)

)

Plaintiff

)

)

)

Beztak Properties, Inc., et al

)

)

Defendants

.

)

J. Mark Finnegan (P68050)

Denise M. Heberle (P64145)

Heberle & Finnegan, PLLC

Attorneys for Plaintiff

2580 Craig Road

Ann Arbor, MI 48103

(734) 302-3233

hffirm@comcast.net

Brett Rendeiro (P64972) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Defendant Warner, Cantrell & Padmos, Inc. 39500 High Pointe Blvd, Suite 150 Novi, MI (248) 567-7400 barendeiro@varnumlaw.com

Gerard Mantese (P34424) Mantese & Associates, PC Attorneys for Defendant Biltmore Properties Companies, Inc. 1361 E. Big Beaver Road Troy, MI 48083 (248) 457-9200 gmantese@manteselaw.com

Case No.: 06-13408-NGE-MKM
Judge NANCY G. EDMUNDS
Magistrate MONA MAZOUB
Megan P. Norris (P39318) Leigh R. Greden (P61859) Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendants Beztak Properties, Inc., Beztak Companies, Inc., Uptown Investors, LLC, and Monogram Homes 101 N. Main, 7th Floor Ann Arbor, MI 48104 (734) 663-2445 greden@millercanfield.com
Theresa L. Kitay Law Office of Theresa L. Kitay Attorney for Defendant Looney, Ricks, Kiss 578 Washington Blvd., Suite 836 Marina Del Ray, CA 90292 (310) 578-9134 tkitay@kitaylaw.net

PLAINTIFFS MIKE AND MARILYN LOWREY’S MOTION FOR PRELIMINARY INJUNCTION PURSUANT TO TITLE III OF THE ADA, AND MEMORANDUM IN
SUPPORT

2:06-cv-13408-NGE-MKM Doc # 43 Filed 05/24/07 Pg 2 of 23 Pg ID 289
Plaintiffs respectfully move this C ourt to Order Defendants to immediately correct Uptown’s Rental offices and Uptown’s public use sidewalks to meet the minimum construction standards set forth in the Americans With Disab ilities Act Accessibility Guidelines—the ADAAG—set forth at 28 C.F.R. Part 36, App. A.
Plaintiffs state in support: 1. Defendants hav e built their new r ental office without any disability accessible parking, and without an accessible route into the rental office. A s a result, Mike Lowrey, Marilyn Lowrey, and every other person wit h a disability is unable to access Uptown’s rental offices; 2. Uptown’s rental offices are not readily accessible to and usable by Plaintiffs and others with m obility impairments. This violates Title III of the Americans with Disabilities Act and Plaint iffs demand that the rental office be made accessible immediately; 3. Plaintiffs intend to use the r ental office as soon as it is made accessible; 4. Two weeks ago, Defendants served two written threats on the Plaintiffs Lowrey. One document threatened to inst itute legal action to remove Mik e Lowrey’s medically necessary companion animal from Uptown Apartments. The other document threatened to tic ket and tow immediately Marilyn Lowrey’s car if she continues to park directly adjacent to Mike Lowrey’s apartment, as she has done for the last two years. Plaintiffs need to access Uptown’s Rental office to discuss these iss ues with Uptown Manage ment, but are currently unable to do so, because the rental office is inaccessible;
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5. Defendants hav e built public use parking lots sidewalks in the Southwest portion of the Uptown site s erving several retail establishm ents. These parking lots and sidewalks are not readily accessible to and usable by Plaintiffs. Plaintiffs plan to use t hese sidewalks as soon as they are made accessible;
6. According to Title III of the Americans with Disabilities Act: “(2) Injunctive Relief. In the ca se of violations of section 12183( a)
of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessibl e to and usable by indiv iduals with disabilities to the extent required by [Title III]”. 42 U.S.C. § 12188(a)(2). Plaintiffs are seeking just such an order from the Court. 7. The Court should order De fendants to install at least one van accessible parking space on the shortest a ccessible route into Uptown’s rental office; 8. The Court should Order Defendan ts to provide immediately into Uptown’s rental offices an acces sible route where no portion of the route has a running slope in excess of 5%, and no cross slope in excess of 2%, and complies in all other ways fully with the ADAAG; 9. The Court should Order Defendants to immediately bring the public use sidewalks and curb ramps into full compliance with the ADAAG;

Respectfully

submitted

/s/ J. Mark Finnegan________ J. Mark Finnegan (P68050)
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Denise M. Heberle (P64145) Heberle & Finnegan PLLC 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 (734) 302-3234 fax hffirm@comcast.net
MEMORANDUM IN SUPPORT
FACTS RELEVANT TO MOTION
The facts relevant to this motion are verified in s worn declarations of
Plaintiffs Mike Lowery and Marilyn Lo wrey, and witness Megan Buffington.
These declarations are attached hereto.1
Uptown Apartments is a brand new comp lex near Canton Michigan. It is
only half completed, but already it has approximately 300 mult ifamily residential
apartments, a clubhouse and pool, exercise gym, meeting hall, and a central
park. These facilitie s are connected by sidewalks, streets and parking lots
owned and maintained by Uptown. Buffington Dec. at ¶ 11. Uptown also has at
the complex retail s pace rented to se veral public accommodations—a coffee
store, a bank, a theater, and other busines ses. Id. Uptown maintains se veral
parking lots open to t he general public ser ving these retail establishments. Id.
1 Plaintiffs present their evidence thr ough sworn written Declarations. “Affidavits are appropriate on a prelimi nary injunction motion and typically will be offered by both parties”. See 11 A.C. Wri ght, A. Miller & M. K ane, Federal Practice & Procedure, § 2949 at 214-15 (1995), and numerous cases collected therein . Indeed, a preliminary injunction may issue entirely based on affidavits. See, e.g., Ross-Whitney Corp. v. Smith, Kline & French Laboratories , 207 F.2d 190, 198 (9th Cir. 1953). Pursuant to federal statut e, written sworn declarations are properly substituted for notarized affidavit s in federal court proceedings. 28 C.F.R. Section 1746(2)(2006).
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Uptown also has a rental office open full time to the public, where tenants also conduct business with Uptown M anagement. Marilyn Lowery Dec. at ¶ 6; Mike Lowery Dec. at ¶ 9.
Plaintiff Mike Lowrey is middle aged and is paralyzed, and he uses a wheelchair. Id., at ¶ 2. When Uptown fir st opened for residency, he rented a ground floor apartment and moved into Uptown. Id., at ¶ 3. Plaintiff Marilyn Lowrey is his mother, and v isits him often at Uptown. Marilyn Dec. at ¶¶ 2-3. She also suffers from a mobility di sability, and Michigan has issued her a permanent disability parking plac ard. Id., at ¶ 4. Both Plaint iffs are protected by the Fair Housing Act and the Americans with Disabilities Act.
Plaintiffs are unable to access Uptown’s rental office and Uptown’s retail establishments. Mike Lowery Dec. at ¶¶ 10-26; Marilyn Lowery Dec. at ¶¶ 6-19. This is because Uptown violated all applicable federal and Michigan accessibility construction standards when it built the Uptown Complex. Buffington Dec. at ¶¶ 4-14. Due to numerous architectural barriers, ( Id.), Mike Lowery has been confined in his apartment and in its directly adjacent back parking lot, unable to use the sidewalks, the clubhouse, the rent al office, and the retail establishments. Mike Lowery Dec. at ¶ 26. Numerous negotiations with Defendants over the last year have been unsuccessful and no architectural barriers have been remedied, so Plaintiffs file this motion for i njunctive relief to correct the defects and to bring Uptown into compliance with mandatory federal accessibility standards.
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APPLICABLE LAW

SCOPE OF THIS MOTION

The Uptown Complex is governed by two federal laws—the Fair Housing

Act and the Americans with Dis abilities Act. The Americans with Disabilities Act

does not cover multifamily residential hous ing, but it does regulate accessibility

requirements at Uptown’s rental office

as well as at Uptown’s retail

establishments and their parkin g lots. Th is is becau se those facilities are open

not only to tenants at Uptown, but are also open to the general public, and so are

“public accommodations” subject to Title III of the ADA. This motion relates only

to the rental office, and to the parking lots and sidewalks serving the rental office

and the retail businesses, and seeks relief pursuant to Title III of the ADA.

Under separate cover and when it is complete in a few days, Plaintiffs

intend to file a motion under the Fair H ousing Act for injunctive relief conc erning

Mike Lowrey’s individual apart ment, and the sidewalks leading from his

apartment to and from Uptown’s pool, cl ubhouse, gym, central park and other

amenities. These items are solely for the use of Uptown’s tenants and their

guests, and so are covered by the Fair Housing Act, and the separate motion will

be pursuant to the FHA.

PLAINTIFFS’ REQUESTED RELIEF PUSUANT TO TITLE III OF THE ADA

Uptown’s rental office and public use parking lots and sidewalks serving the

retail businesses at Uptown violate f ederally mandated access st andards. Title

III of the ADA specifically vests the Court with authority to cure immediately these

defects by entry of a preliminary injunction:

6

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“(2) Injunctive Relief. In the ca se of violations of section 12183( a) of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessibl e to and usable by indiv iduals with disabilities to the extent required by [Title III]”.
42 U.S.C. § 12188(a)(2). Plaintiffs are seeking just such an order from the Court,
essentially identical to the preliminary injunction granted by the Court in Deck v.
City of Toledo , 29 F.Supp.2d 431 (N.D.Ohio 1998 )(City ordered to immediately
bring sidewalks and curb ramps into compliance with ADAAG standards) 2.
In the Sixth Circuit, when determini ng whether to issue a preliminary
injunction, the court must typically consider four factors:

(1) the likelihood that the party seeking t he preliminary injunction will succeed on

the merits of the claim; (2) whether the party seeking the injunction will suffer

irreparable harm without the grant of

the extraordinary relief; (3) the

probability that granti ng the injunction will cause su bstantial harm to others;

and, (4) w hether the public int erest is advanced by the issuance of the

injunction.

United States v. Edward Rose & Sons , 246 F.Supp.2d 744 (E.D.Mich. 2003), aff’d 384 F.3d 258 (6th Cir. 2004), citing Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994). Cons idering these factors, the Court is to balance each factor

against the other to arrive at its ultimate determination. Leary v. Daeschner, 228

F.3d 729, 736 (6th Cir.2000).

2 Undersigned Couns el J. Mark Finnegan litigated the Deck lawsuit. After

granting the preliminary inj unction, the Court subsequently ruled that P laintiffs

could challenge curb ramps and sidewalks in stalled at any time after January 26,

1992—the effective date of the ADA—th at violated ADAAG standards (56

F.Supp.2d 886, 892-895 (N.D.Ohio 1999 )); and granted Plaintiffs partial

summary judgment as to 302 locations resurfaced after May 1996 where curb

ramps and sidewalks violated the AD AAG (76 F.Supp.2d 816, 818-823

(N.D.Ohio 1999)). T he Court also c ertified Deck as a c lass action in an

unreported decision. The remainder of the

Deck lawsuit ended in a

comprehensive Consent Decree entered by the Court.

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i. Plaintiffs Have a Very Strong Likelihood of Success on the Merits Plaintiffs have a strong like lihood of success on the merits. Uptown’s rental office and also Uptown’s public use sidewalks leading to the retail businesses are not readily accessible to and usable by Mike and Marilyn Lowrey, because thos e facilities violate controlling ADA mandated minimum construction standards.

Congress’ Strong Mandate Under the ADA
The Lowreys are unable to access the rental office and certain public use sidewalks at Uptown Apartment s. Title III of the ADA requires Uptown to m ake these facilities acces sible. 42 U.S. C. § 12183(a)( 1). The office and the sidewalks were built after January 26, 1993, and so Defendants should have built them according to the construction standards set forth at 28 C.F.R. Part 36, App. A—the “ADAAG”. 28 C.F.R § 36.406.
Congress’ concern with physical barrier s stopping full participation by the Lowreys and other persons wit h disabilities is appar ent in both the history and the text of the ADA. For example, the “findings” section of the ADA states:

“(2) historically, society has tended to isolate and segregate individuals with disabilities...such forms of di scrimination against persons wit h disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals wi th disabilities persists in such

critical areas as ...h ousing, public accommodations…recreation...and

access to public services;

***

***

***

***

(5) individuals with disab ilities continually encounter various forms of

discrimination, including...the discriminatory effe cts of arc hitectural

barriers...segregation, and relegation to lesser services.”

8

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42 U.S.C. § 12101(a)(2), (3) and (5). Now, nearly 15 y ears after Congress

passed the ADA, Defendants’ failure to cons truct the rental office and public use

sidewalks according to the ADAAG is ju st the sort of discrimination a nd

architectural segregation Congress found above and pas sed the ADA to

eradicate. The Court should immediately act as Plaintiffs demand.

The House Report for the legislation not ed that “[t]he employment [Title I],

transportation [Title II], and public accommodat ion [Title III] secti ons of this Act

would be meaningles s if people who use wheelchairs were not afforded the

opportunity to travel on and between the st reets.” H.Rep. No. 48 5, 101st Cong.,

2d Sess., pt.2, at 84 (1990),

reprinted in 1990 U.S.C.C. A.N. 267, 367.

Defendants’ failure to properly construct their facilities according to the ADAAG is

denying Plaintiffs Mike Lowrey and Marily n Lowrey the opportunity to travel on

the sidewalks and streets of Uptown, and is de nying the Lowreys access t o

sidewalks, businesses and other facilities adjacent to Uptown a long Cherry Hill

and Ridge Roads in Canton Township.

THE ADA’S REQUIRMENTS GOVERNING RENTAL OFFICES

Title III of the ADA governs Uptown’s rental office. See 42 U.S.C. §

12181(7)(E)(2006)(providing that Title III’s coverage includes “sales or rental

establishment”). This includes rent al offices serving pr ivate apartment

communities. See e.g., Baltimore Neighborhoods Inc., v. Rommel Builders , 40

F.Supp.2d 700, 706 (D.Md. 1 999)(rental/sales offices for con do association

governed by ADA)( citing ADA Title III Technical As sistance Manual, 28 C.F.R.

Parts 36.102-36.10, III-1-2000: “ Illustration 3: A private residence apartment

9

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complex contains a rental office. Th e rental office is a place of public accommodation [governed by t he ADA and its ADAAG].”; also see U.S. v. Taigen & Sons, Inc., 303 F.Supp.2d 1129, 1149-50 (D.Idaho 2003)(same); Sapp v. MHI Partnerships, Ltd., 199 F.Supp. 2d 578, 583-87 (N.D.Tex 2002)(same).
Uptown’s Public Use Sidewalks Are Subject to the ADA Uptown also provides parking lots, sidewalks and ramps that are for public use for customers of the theater, the bank, the coffee shop, etc., in addition to use by Uptown tenants and their guests. These facilities are located at the Southwest quadrant of the Uptown Apartments. See Buffington Declaration at ¶¶ 11-13 According to Title III of the ADA, these public sidewalks and ramps must meet ADAAG standards.3 But these public use parking lots, designated accessible parking spaces, and their sidewalks suffer from cross slopes in excess of 2%, running s lopes in excess of 8.33%, and ramps lacking requ ired level landings and handrails. See Buffington Declaration at ¶¶ 10-13. These fa cilities are not readily accessible to and usable by the Lo wreys and others with disabilities, and violate the ADA and its ADAAG, as well as the applicable Mi chigan laws. This has stopped Mike Lowrey from using these facilities to trav el from his apartment to the facilities
3 The USDOJ illustrates this principal in its Title III Technical Assistance Manual, III-1.2000, “places of public acc ommodation within re sidential facilities”. “Thus, areas within multifamily resi dential facilities that qualif y as places of public accommodation are covered by the ADA if use of the areas is not limited exclusively to owner s, residents and th eir guests.” Uptown’s public use sidewalks are also for the r outine daily use of the publ ic patronizing the retail shops, in addition to the tenants of Uptown and their guests, and are “public accommodations” subject to the ADA.
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along Cherry Hill Road and Ridge Road, directly adjacent to Uptown Apartments. See Mike Lowrey Declaration at ¶¶ 22-26. See Marilyn Lowrey Declaration at ¶¶ 16-20. “Readily Accessible to and Usable by Persons with Disabilities” Defined
Title III o f the ADA requires Uptown’s rental office and the public use sidewalks to be “readily accessible to and us able by persons with disabilities”. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(a)(1). Legally binding implementing regulations and statutory guidance define what is “readily acc essible to and usable” by the Lowreys and other persons with disabilities. According to the USDOJ:
“What is ‘readily accessible and usable?’ This means that the facility4 must be built in strict comp liance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG). There is no cost defense to the new construction requirements.” United States Department of Justice ADA Title III Te chnical Assistance Manual, Section III-5.1000. USDOJ’s Technica l Assistance Manual is entitled to “substantial deference”. Johnson v. City of Saline , 151 F.3d 564, 570 (6 th Cir. 1998). Thus, only when Uptown’s busine ss offices “strictly comply” with the ADAAG is it “readily accessible to and usable” by the Plaintiffs Lowrey. See e.g., Ability Center v. City of Sandusky , 385 F.3d 901 at 904 (6 th Cir. 2004), where the Sixth Circuit found t hat sidewalks and curb ramps t hat violate slope and access requirements of the ADAAG must be corrected. The City of Sandusky panel

4 The ADAAG defines “facilities” as

including, among other things, ”site

improvements…roads, walks, passageways , [and] parking lots”. ADAAG, 28

C.F.R. Part 36, App. A, Section 3.5.

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cited Tennessee v. Lane , 541 U.S. 509, 124 S.Ct. 1978, 1993 (2004), whic h holds: “In the case of facilities built …after 1992, the [A DA implementing] regulations require compliance with specific architectural accessibility standards.” Those “specific architectural acce ssibility standards” are the ADAAG. See 28 C.F.R. 36.406. Also see Deck v. City of Toledo, 29 F.Supp. 2d 431 (same).
THE ADA’S IMPLEMENTING REGULATIONS ARE CONTROLLING Title III of the ADA does not incl ude accessibility design standards. Instead, Congress delegated t he Attorney General the authority to promulgate legally binding Title III regul ations. 42 U.S.C. §§ 12186(b), (c) an d (d)(1) (as to Title III). See Yeskey v. Commonwealth of P ennsylvania Dept. of Correcti ons, 118 F.3d 168 (3rd Cir. 1997). T he Department of Justice adopted “Standards for Accessible Design” that are codified at 28 C.F. R. Part 36, App. A—the “ADAAG”—and these constitute legally binding regulation for Title III of the ADA. “[C]onsiderable weight should be acco rded to an executive department’s construction of a statutory scheme it is entrusted to administ er.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed. 2d 694 (1984). In fa ct, such regulations are entitled to “controlling weight” unless they are “arbitrary, capricious or manifestly contrary to the statute.” Id., at 844, 104 S.Ct. at 2782. This directive holds true for regula tions promulgated by the United States Department of Justice under Title III of the ADA--including t he ADAAG--: “Because [the ADA] was enact ed with br oad language and directed to the Department of Justice to promulgate regulations [thereunder], the regulations
12

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which the Department [of Justice] pr omulgated are entitled to substantia l deference.” Niece v. Fitzner , 941 F.Supp. 1497, 1507 (E.D.Mich. 1996) citing Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.), cert. denied, 116 S.Ct. 64 (1995). Accord, Johnson v. City of Saline , 151 F .3d 564, 570 (6 th Cir. 1998), citing Thomas Jefferson Univ. v. Shalala , 512 U.S. 504. 512 (1994). Thus, because Uptown’s rental office and its public use sidewalks violate the ADAAG, they violate the ADA, and must be corrected immediately.
Similar Court Decisions Finding Violation of the ADAAG Violates ADA Courts uniformly find that violation of the ADAAG construction standards violates the ADA. “The USDOJ considers any element of a facility that does not meet or exceed the ADAAG Guideli nes to be a barrier to access.” Parr v. L & L. Drive Inn Restaurant, 96 F.Supp. 2d 1065, 1086 (D.Haw ai’i 2000)(failure to meet ADAAG held prima facie violation of ADA). “Failure to abide by the [ADAAG] Guidelines in new construction eviden ces intentional discrimination against disabled person.” Access Now, Inc., v. Sout h Florida Stadium Corp. , 161 F.Supp.2d 1357, 1363 (S.D.Fla.2001), citing Association for Disabled Americans, Inc. v. Concorde Gaming Corp. , 158 F.Supp.2d 1353, 1362 n.5 (S.D.Fla.2001). Other examples abound. 5 Thus it is clear that as a matter of law, facilities that violate the strict standards of the ADAAG violate the ADA.
5 “The ADAAG “constitutes the regulations for compliance with Titles II and III of the ADA.” Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C. 950 F.Supp. 389, 390 (D.D.C 1996)(ADA violated becaus e municipal airport failed to meet ADAAG); Coalition of Montanans Concerned With Disabilities, Inc. v. Ga llatin Airport Authority , 957 F.Supp. 1166 (D.Mont.1997)(same); Duprees v. West , 988 F.Supp. 1390 (D.Kan.
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HOW THE UPTOWN RENTAL OFFICE VIOLATES TITLE III OF THE ADA The Rental office lacks any desig nated accessible parking spaces
complying with 28 C.F.R. Part 36, App. A, § 4.6, even though parking spaces are provided for self parking by employees and visitors. See Buffington Declaration at ¶ 5. This violates 28 C. F.R. Part 36, App. A, § 4. 1.2(5)(a). Plaintif fs are unable to park anywhere near the rental office. See Mike Lowrey Declaration at ¶¶ 20-21; Marilyn Lowrey Declaration at ¶¶ 7-9.
The Rental office lac ks at leas t one acc essible route complying with ADAAG Section 4.3 within the boundary of the site fr om public transportation stops, from accessible parking spaces, fr om passenger loading zones, and from public streets and sidewalks to an acce ssible entrance of the Clubhous e and Rental Office. See Buffington Declaration at ¶ 6. This violates 28 C.F.R. Part 36, App. A, § 4.1.2.(1 ). Plaintiff Mi ke and Marilyn Lowrey are unable to access the rental office, neither by car nor by whe elchair. See Mike Lowrey Declaration at ¶¶ 16, 20-21; Marilyn Lowrey Declaration at ¶¶ 5-15.
There is a large concrete ramp l eading toward the bu siness office. See Buffington Declaration at ¶¶ 7-9. Def endants are required to build the r amp leading to the business office “with the least possible slope.” 28 C.F.R. Part 36,
1997)(“ADAAG is the standard f or measuring compliance with ADA”); Cooper v. Weltner, 16 NDLR P 268 (D.Kan. 1999)(Title II ca se holding City Jail v iolates the ADA because it fails to meet ADAA G standards). “The ADAAG are legally binding regulation.” Theatre Management Group, Inc., v. Dalgliesh , 2001 WL 40403 (D.C.Cir 2001)(curb ramps that vi olate the ADAAG vi olate the ADA); Independent Living Resources v. Oregon Arena Corp. , 1 F.Supp.2d 1124, 1130 n. 2 (D.Or. 1998)(Public concert arena vi olating ADAAG standards violates the ADA); Pascuiti v. New York Yankees , 87 F.Supp. 2d 221 (S.D.N.Y. 1999)(New York City violated ADA because Yankee Stadium violates ADAAG standards).
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App. A, § 4.8.2. It is po ssible to build the ramp lead ing to the entrance to the Rental Office with a running slope of 5.1%, the minimum slope for any ram p. Id. Indeed, because the entering sidewalk could be built at less than 5%, no ramp is necessary. Id. Instead, defendants have built a ramp with all r unning slopes exceeding 5% and some running slopes exceeding 9%, so it is not built “with the least possible slope”. Id. This violates 28 C.F.R. P art 36, App. A, § 4.8.2. Portions of that ramp have cross slopes exceeding 4%, but no portion of the ramp’s cross slope is permitted to ex ceed 2%, and the middle landing of the ramp has a cross slope exceeding 2%. See Buffington Declaration at ¶¶ 7-9. This violates 28 C.F.R. Part 36, App. A, § 4.8.6. As currently constructed, the ramp is not “readily accessible to nor usable by” either of the Lowreys. See Mike Lowrey Dec. at ¶ 16; See Marilyn Lowrey Dec. at ¶¶ 10, 11, 14 and 15.
As Plaintiffs have shown above, Up town’s Rental Office s are covered by Title III of the ADA, and must have a ccessible parking on an accessible entrance on an accessible route. Because the rental office and its accessible route violat e the ADAAG, they violate Ti tle III of the ADA, and must be brought into compliance with the ADAAG immediately.
HOW THE UPTOWN PUBLIC USE SIDEWALKS VIOLATE ADA TITLE III The public use parking lots and sidewal ks leading to the retail shops at
Uptown violate the ADA and its ADAAG in the following ways. They suffer from cross slopes exceeding 2%. See Buffington Declaration at ¶¶ 11-14. This violates the ADAAG at Section 4.3.7. They suffer from running slopes in excess of 8.33%. Id. This violates the ADAAG at Section 4.8.2. They suffer from ramps
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not built with the least possible slope. Id. They suffer from ramps lacking required level landin gs and handrails. Id. This violates the ADAAG at Se ction 4.8. These defects make these parking spaces, their sidewalks and ramps not readily accessible to and usable by Pl aintiffs and others with disabilities. See Mike Lowrey Declaration at ¶¶ 22-25. See Marilyn Lowrey Declaration at ¶¶ 1620. Plaintiffs plan to use these sidew alks and ramps as soon as they are made compliant. Id., at ¶ 25; ¶ 19.
ii. Irreparable Harm A. The Court Should Presume Irreparable Harm
Title III of the ADA specif ically provides for the aw ard of injunctive relief including “an order to alter facilities to make such facilities readily accessible to and usable by individuals with dis abilities to the extent required by [Title III]”. 42 U.S.C. § 12188(a)(2). Now that Plaintiffs have shown that the re ntal office and the public use sidewalks violate the ADA/ADAAG minimum standards and that they are not “readily accessible to and usable” by Plaintiffs, the Court should presume irreparable harm and issue the requested injunctive relief.

When a plaintiff seeks an injunction to prevent the violation of a federal

statute that specifically provides for in junctive relief, a showing of irreparab le

harm is not required. United States v. Edward Rose & Sons , 246 F.Supp.2d 744 (E.D.Mich. 2003), aff’d 384 F.3d 258 (6 th Cir. 2004)(internal cit ations omitted).

“Because Congress has seen f it to act in a given area by ena cting a statute,

irreparable injury must be presumed in a statutory enforcement action.” Id.,

quoting U.S. v. Odessa Union Warehouse Co-op, 16

833 F.2d 172, 176 (9th

2:06-cv-13408-NGE-MKM Doc # 43 Filed 05/24/07 Pg 17 of 23 Pg ID 304
Cir.1987). For cases using this analys is in granting injunctions under the ADA, see . ReMed Recovery Care Centers v. Townsh ip of Willistown , 36 F.Supp.2d 676, 687-88 (E.D.Pa. 1999); Alexander v. Riga, 208 F.3d 419, 427 (3 rd Cir. 2000); Pathways Pshcohsocial v . Leonardstown, Md., 133 F.Supp.2d 772, 784 (D.Md.2001).
B. Segregation of Plaintiffs Due to Disability is Irreparable Harm Even without the legal pr esumption of irreparable harm, Plaintiffs here have shown irreparable harm. Unlike every other tenant at Uptown, Mike Lowrey is prohibited from conducting business at the rental offices and from using the public use sidewalks leading to the retail shops. At the same time, no additional persons with mobility impairments can enter the rental offices to consider moving into Uptown. The defects on the public use sidewalks risk throwing Mike Lowrey out of his wheelchair. See Mike Lowrey Declaration at ¶¶ ??. As Judge Katz found in Deck: “Plaintiffs have established an irreparable and immediate harm to themselves and other handic apped individuals by showing that improperly constructed curb ramps prevent Plai ntiffs from engaging in normal life activities such as crossing the str eet or accessing a sidewalk. At the hearing, Plaintiffs also testified as to the danger of “tipping” due to multiple inch lips on the curb ramp or the haz ards of entering the street and being unable to re-enter the sidewalk area on the opposite side of the crosswalk due to curb ramps which are not in compliance with the ADA.” Deck, 29 F.Supp.2d at 434. The Plaintiffs Lowrey are making the identica l showing of irreparable harm here.
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C. Irreparable Harm Is Presumed to Flow from an ADA Violation.
Courts routinely find that a violation of the ADA provides irreparable harm,
due to the nature of segregatio n of persons with disa bilities. Indeed, Plaintiffs’
research has not turned up a s ingle example of a c ourt finding a violation of the
ADA but then not finding irrepar able harm justifying an injunction. See Doe v.
Judicial Nominating Commission, 906 F.Supp. 1534, 1545 (S.D.N.Y. 1995)
(“[d]iscrimination on the bas is of disabilit y is the type of harm that warrants
injunctive relief”); D’Amico v. New York State Bd. of Bar Exa miners, 813 F.Supp.
217, 220 (W.D.N.Y. 1993) (“[t]he issuanc e of injunctive relief is appropriate when
a disabled person loses the chance to engage in a normal life activity”).6
Access to the busines s office and the si dewalks of Uptown’s re ntal office
and public use sidewalks prov ide the Lo wreys with mental, social, and other
benefits similar to those described abov e. Injunctive relief is warranted bec ause
6 See Dennin v. Conn. Interscholastic Athletic , 913 F.Supp. 663, 667 (D.Conn. 1996)(ADA preliminary injunction fi nding “immediate and irrepar able harm” due to potential decrease in self e steem and social sk ills, and deprivation of “essential badges and indicia of full...membership and participation”); Maczaczyj v. State of New York , 956 F.Supp. 403, 407 (S.D.N .Y 1997)(ADA preliminary injunction request wherein court finds i rreparable harm due to “ psychic harm.”); See Johnson v. Florida High School Activities Ass’n., Inc., 899 F.Supp. 579, 586 (M.D.Fla. 1995) (granting ADA preliminary injunction requiring assistance for a 19 year-old deaf football play er because denial of preliminary relief would harm the quality of the young man’s life); Concerned Parents v. City of West Palm Beach, 846 F.Supp. 986, 992 (S.D.Fla. 1994)(same); Tugg v. Towey , 864 F.Supp. 1201, 1210 (S.D.Fla. 1994)(same); Innovative Health Systems v. City of White Plains, 117 F.3d 37, 43-44 (2nd Cir. 1997)(same); Thomas By And through Thomas v. Davidson Academy, 846 F.Supp. 611, 61 9 (M.D.Tenn. 1994)(same); also Civic Ass’n. of t he Deaf of New York City v. Giulia ni, 970 F.Supp. 3 52 (S.D.N.Y. 1997)(finding “potential irreparab le injury” without any discuss ion in lengthy detailed opinion); See also Clarkson v. Coughlin , 898 F.Supp. 1019, 1035 (S.D.N.Y. 1995)(same).
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plaintiffs will not regain the opportunities lost to them by lack of access during the
pendency of this litigation.
D. Courts Routinely Grant Injunctive Relief Ordering the Remediation of Accessible Routes
In addition to the above-cited cases w here courts have ordered injunctiv e
relief requiring cities to install curb ramps during resurfacing ( Deck; Ability
Center), many other courts have ordered entit ies to install curb ramps or take
other measures to ensure access to persons with disabilities. See Baltimore
Neighborhoods , Inc., v. L.O.B., 92 F.Supp. 2d 456, 4 67 (D.Md. 2000)(ordering
installation of curb ramps to ma ke condominium community accessible).7 The
Court should order the identical relief requested by Plaintiffs here.
E. The Requested Relief is the Only Available Relief for These Violations
Title III of the ADA only provides for injunctive relief. It provi des no
damages for the Lowreys. See Smith v. Wal-Mart Stores, Inc. , 167 F.3d 286,
293 (6th Cir. 1999)(recognizing Title III enfor cement statute 42 U.S.C. § 1 2188
does not include money damages). Because there is no remedy at law, the court
7 Also see Independent Living Resources v. Oregon Arena Corp. 1 F.Supp.2d 1124, 1151 (D. Or. 1998)(ordering sports ar ena to install curb ramps at transit stop and along walk up to and through the arena); Ramirez v. Dist. of Columbia , No. 99-803, 1999 WL 986914, U.S.Dist. LEXI S 15964, at 16 (D.D.C. Oct. 14, 1999) (granting preliminary injunction which requires defendants to provide ramps and barrier-free access t o mobility-impaired elementary school student); Coalition of Montanans Concerned with Disabilities, Inc. v. Gallatin Airport Auth. , 957 F.Supp. 1166, 1171 (D.Mont.1997) ( enjoining defendants to install wheelchair lifts in an airport terminal to bring it into complianc e with the ADA); and Lieber v. Macy's West, Inc., 80 F.Supp.2d 1065, 1081 ( N.D.Cal. 1999) (ordering defendants to remove barriers to the path of travel throughout their facilities). Each of these courts found access barriers in th e path of travel, found violations of the ADA, and ordered injunctive relief to remedy promptly thos e violations. Plaintiffs in the case at bar deserve the same.
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should grant injunctive relief immediately. “[A] plaintiff’s harm is not irreparable if it is fully c ompensable by money damages . However, an inj ury is not fully compensable by money damages if the natur e of the plaintiffs ’ loss would make damages difficult to calculate.” Basicomputer Corp. v. Scott , 973 F.2d 507, 511 (6th Cir.1992) (citing Roland Mach. Co. v Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir.1984). See also 11A Wright & Miller, Federal Practice & Procedure, § 2948.1, n. 21 (1995); Moore’s Federal Practice, 2d., at § 65.04[1], nn. 66, 68, 69 and 72, and the cases collec ted therein. In our case, injunctive relief is the only remedy available. There is no point in waiting for trial.
iii. Substantial Harm to Third Parties This factor weig hs in favor of Plai ntiffs. Unless the Court orders the
requested injunctive relief, the Defendants will continue to deny the Plaintiffs Lowrey and all other persons wit h mobility disabilities access to the rental offices and to the parking lot s and sidewalks ser ving its retail shops. Defendants will continue to threaten to tow Mrs. Lowrey’s car when she visits her son, and wil l continue to threaten to remove Mike Low rey’s dog from his apartment, and they will continue to be unable to acc ess the r ental offices.. On the other hand, the necessary injunctive relief will be subst antially expensive, due to the fact that Defendants ignored accessibility codes when constructing the premises. But this is additional expense is not dec isive, as the Honorable Victoria Roberts held in an identical case:
“The Court is not oblivious to the potential financial r epercussions of its ruling. However, Defendants did not cite and the Court is unawar e of any case in which a Court has held that the potential financial bur den of correcting unlawful
20

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discrimination outweighs the harm caused by allowing a party to actively e ngage in acts that Congress has identified as wrongful and injurious to an entire class of people. This Court is unwilling to make such a finding here. Absent other precedent, the Court looks to the legislativ e intent of the FHA. By enacting the statute and the provisions at issue here, Congress has indicated that obliterating discrimination against disabled individuals at all levels in housing is a priority. Had Congress wanted to limit the Court' s authority when the po tential financial burden would be great, it could have expr essly done so. It did not. Accordingly, the Court finds, as to the covered units onl y, that the balance of harms weighs in favor of Plaintiff.” Edward Rose, 246 F.Supp.2d 744, 754-55. Also see Edward Rose , 384 F.3d at 264. Congress expr essed just as strong a policy of eradicating the pervasive discrimination in public accommodations against pers ons with disabilities, due to inaccessible business offices. See statement of policy and findings of pervasive discrimination in enacting the ADA. 42 U.S.C. § 12101(a) and (b).
iv. Public Interest Making Uptown’s rent al office accessible helps not only the Lowr eys, but
also makes it possible for others with disa bilities to rent apartments at Uptown. “On the public interest factor, the Supr eme Court has found the FHA serves and overriding societal priority…eradicating housing discrimination serves ‘the public interest’”. Edward Rose, 384 F.3d at 264. Likewise , under the ADA, the public interest is served. “There is a signi ficant public interest in elimin ating discrimination against individuals with d isabilities.” Deck, 29 F.Supp2d at 434, citing Thomas by and Through Thomas v. Davidson Academy, 846 F.Supp. 611, 619 (M.D.Tenn1994).
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CONCLUSION Defendants are denying Plai ntiffs and all others with disabilities access to Uptown’s rental offices and to Uptown ’s public us e sidewalks. Defendants violated virtually every binding acce ssibility standard in c onstructing these facilities. These d efects are segregating Plaintiffs from equal pa rticipation in life at Uptown. The Court should immediately grant the requested relief.

Respectfully
J. Denis Heberle 2580 Ann 734-302-3233 734-302-3234
Attorneys

submitted,
/s/ J. Mark Finnegan_______ Mark Finnegan (P68050) e M. Heberle (P64145) & Finnegan, PLLC Craig Road Arbor, MI 48103
fax hffirm@comcast.net
for Plaintiffs Lowrey

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2:06-cv-13408-NGE-MKM Doc # 43 Filed 05/24/07 Pg 23 of 23 Pg ID 310

Certificate of Service I hereby certify that on this 24 th day of May, 2007 the foregoing Plaintiffs

Mike And Marilyn Lowrey’s Motion For Preliminary Injunction Pursuant To Title III

Of The ADA, And Memorandum In Support wa s filed electronically. Parties will

receive notice of the f iling through the Court’s electronic filing sys tem and may

access the document through the Court’s el ectronic filing system. In addition, I

served the foregoing by first class mail up on Counsel for all Defendants at the

following addresses

Brett Rendeiro (P64972) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Defendant Warner, Cantrell & Padmos, Inc. 39500 High Pointe Blvd, Suite 150 Novi, MI (248) 567-7400 barendeiro@varnumlaw.com
Gerard Mantese (P34424) Mantese & Associates, PC Attorneys for Defendant Biltmore Properties Companies, Inc. 1361 E. Big Beaver Road Troy, MI 48083 (248) 457-9200 gmantese@manteselaw.com

Megan P. Norris (P39318) Leigh R. Greden (P61859) Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendants Beztak Properties, Inc., Beztak Companies, Inc., Uptown Investors, LLC, and Monogram Homes 101 N. Main, 7th Floor Ann Arbor, MI 48104 (734) 663-2445 greden@millercanfield.com
Theresa L. Kitay Law Office of Theresa L. Kitay Attorney for Defendant Looney, Ricks, Kiss 578 Washington Blvd., Suite 836 Marina Del Ray, CA 90292 (310) 578-9134 tkitay@kitaylaw.net

/s/ J. Mark Finnegan____________

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UNITED STATESDISTRICT COURT EASTERNDISTRICT OF MICHIGAN
SOUTHERNDIVISION

MICHAEL LOWREY. Plaintiff.
and

CaseNo.: 2:06-CY-13408-NGE-MKM
JudgeNancy G. Edmunds MagistrateMona Majzoub

FAIR HOUSING CENTER OF SOUTHEASTERNMICHIGAN" INC.
Intervenor-Plaintiff

JURY DEMAND

VS.
BEZTAK PROPERTIESIN, C.; BEZTAKCOMPANIESI,NC.; BILTMOREPROPERTIES COMPANIESI,NC.;UPTOWN INVESTORSL, LC; UPTOWN INVESTORSL, LC II; MONOGRAM HOMES;WARNER,CANTRELL& PADMOS,INC.a, ndLOONEYRICKS KISS.
Defendants.

INTERVENOR.PLAINTIFF FAIR HOUSINGCENTEROF SOUTHEASTERN MICHIGAN. INC.'S COMPLAINT FOR DECLART{TORYAND INJUNCTIVE
RELIEF
PRELIMINARY STATEMENT
1. Thisactionis broughtby theFairHousingCenterof Southeastern
MichiganI,nc.,by andthroughits counselt,o enforceTitleVIII of theCivil RightsAct of 1968(theo'FaiHr ousingAct") asamendebdy theFairHousingAmendmentAsct of 1988 (the"FHAA"),42 U.S.C.$$3601etseq.,theAmericanswith DisabilitiesAct (the "ADA"), 42U.S.C.$$12181-1218a9n,dtheMichiganPersonws ithDisabilitieCs ivil

2:06-cv-13408-NGE-MKM Doc # 53 Filed 06/06/07 Pg 2 of 16 Pg ID 327
RightsAct, MCL Sections37.1301aandb andSection37.1506a(l)(c)("PWDCRA"), and to remedythe violations of thesecivil rights laws by the Defendantsin the designand constructionof Uptown Apartmentsin Canton,Michigan (the "subject property").
2. DefendantsBeztakPropertiesl,nc.,Bertak CompaniesI,nc., Biltmore PropertiesCompaniesI,nc., Uptown InvestorsLLC, Uptown InvestorsLLC II, MonogramHomes,WarnerCantrellandPadmos,Inc., andLooney Ricks Kiss, (collectively "Defendants"),through the actionsreferredto herein,havediscriminated againstpeoplewith disabilitiesand/orhandicapsrin violation of the FHA, the ADA, and the PWDCRA by designingand/orconstructingdwellings andpublic and common use areasthat denypeoplewith disabilitiesthe accessto, anduseof, thesefacilitiesrequired under thesefederal and statecivil rights laws.
3. A personusinga wheelchairis just aseffectivelyexcludedfrom the opportunity to live in a particular dwelling by the lack of accessinto a unit and around commonuseareasasby a postedsign saying"No HandicappedPeopleAllowed." (U.S. Houseof Rep.Reporton theFHAA, H.R. Rep.No. 100-711at25 (1988)).In consideringpassageof the FHAA, Congressdeterminedthat enforcementof thesecivil rights laws is necessaryto protect peoplewith disabilities from the devastatingimpact of housing discrimination, including the architecturalbarrierserectedby developerswho fail to constructdwellings accessibleand adaptableto peoplewith disabilities. Id. As the Committeenoted, suchbarriers,evenif not the product of invidious intent, "can bejust as devastatingas intentional discrimination." Id. The purposeof the accessibility requirementsof the Fair Housing Act, and similar statelaws suchasthe PWDCRA, is to
I This Complaintusesthe term'ohandicap"asdefinedby the Fair Housing Act,42 U.S.C. $ 3602(h),and the term "disability" asdefrnedby the ADA andthe PWDCRA interchangeably.

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increastehestockof housingavailableto peoplewith disabilitiess,oasto includethemin theAmericanmainstreamS.eeH.R.Rep.No. 100-71Iat l8 (1988).Enforcemenotf the FairHousingAct andthePWDCRAagainsDt efendantsis necessarbyecauseof theclear accessibilityviolationsat UptownApartments.
4. TheFairHousingCenterof SoutheasteMrnichiganI,nc.seeksto ensure equalhousingopportunitythroughtheeliminationof unlarvfulhousingdiscrimination andthepromotionof decentandaffordablehousingthroughadvocacyandeducation.As a resultof Defendantsw' rongfulconductcomplainedof herein,theFairHousingCenter of SoutheasterMnichigan,Inc.hasbeendamagedby frustrationof its mission,andby havingto divertsignificantresourcetshatcouldhavebeenusedto providecounseling, educationa, ndreferralservicesto insteadidentifyandcounteracDt efendants' discriminatoryconducthroughinvestigationandlitigationof this conduct.
JURISDICTION.VENUE AND PARTIES 5. Thisis anactionfor declaratoryandinjunctiverelief anddamagesasa resultof discriminatioinn violationof theFairHousingAct,42U.S.C.$$3601etseq., theAmericanws ithDisabilitiesAct,42U.S.C.$$12181-1218a9n,dtheMichigan Personws ithDisabilitieCs ivilRightsAct,MCL Section3s7.1301and37.1506aT. he Courthajsurisdictionpursuan2tt8oU.S.C$. 1331$, 1343$, $2201and2202,and42 U.S.C.$ 3613(a)S. upplementjuarl isdictionis providedunder28U.S.C.$ 1367' Further,this Courtmayexercisepersonajlurisdictionovereachof theDefendants. 6. Venueis properin theEasternDistrictof Michiganpursuantto 28U.S.C. $ l39l(b)(2) in thata substantiaplartof theeventsandomissiongsivingriseto the claimshereinoccurredin thisDistrict,andthesubjectpropertyis locatedin this District.

2:06-cv-13408-NGE-MKM Doc # 53 Filed 06/06/07 Pg 4 of 16 Pg ID 329
Defendantsare corporationsthat may be found within the District for purposesof 28 U.S.C. $ 1391(bX3)andaresubjectto personajlurisdiction in thisjudicial district.
7. Plaintiff Fair HousingCenterof SoutheasterMn ichigan,Inc. is a private non-profit fair housingadvocacyorganizationserving SoutheasternMichigan and organizedunderthe laws of Michigan with its principalplaceof businessin Ann Arbor, Michigan. It is a membershiporganizationwhosemissionincludesthe promotionof equalhousingopportunity, freedomof housingchoice,housingintegration,andthe elimination of housingdiscrimination.This mission includesensuringthat peoplewith disabilitieshaveequalaccessto housingin SoutheasterMn ichigan.
8. The Fair Housing Centerof SoutheasternMichigan fulfills its mission by educatingthe public aboutfair housingrights andrequirements,educatingandworking with consumerson fair housingcompliance,andproviding adviceand advocacyto personseither looking for housingor affectedby discriminatory housingpractices. The Centerpromotesfair housingenforcementandvoluntary compliancewith fair housing laws by conductingfair housinginvestigationsi,ncludingtesting,andproviding educationand outreachfor housingconsumers.Its servicesinclude respondingto complaintsfrom consumersregardingnewly constructedmultifamily developments, requestsfor reasonableaccommodationsto existing policies, and requestsfor modifications to existing structures,so asto makehousingaccessibleto peoplewith disabilities.
9. DefendantBe4ak Properties,Inc. is a corporationorganizedunder the laws of Michigan that conductsbusinessin the EasternDistrict of Michigan. Defendant Beztak Propertiesis responsiblefor the design,construction,building, andloroperationof

2:06-cv-13408-NGE-MKM Doc # 53 Filed 06/06/07 Pg 5 of 16 Pg ID 330
a number of apartmentcomplexes,including the Uptown Apartments,locatedin Canton Michigan (the subjectproperty).
10. DefendantBeztakCompanies,Inc.engagedin ajoint venturewith DefendantBiltmore PropertiesCompanies,Inc., and someor all of the other Defendants to design,construct,build and/orto operatethe subjectproperty and/or nearbyadjacent sidewalksandfacilitiesthat arenot reasonablyaccessibleto andusableby personswith disabilities.
11. DefendantBiltmore PropertiesCompaniesI,nc. engagedin ajoint venture with someor all of the Defendantsto design,construct,build andior to operatethe subjectproperty and nearby adjacentsidewalksand facilities that are not reasonably accessibleto andusableby personswith disabilities.
12. DefendantUptown InvestorsL.L.C. and DefendantUptown Investors L.L.C. II areboth corporationsorganizedunder the laws of Michigan that conduct businessin the EasternDistrict of Michigan. DefendantUptown InvestorsL.L.C and DefendantUptown InvestorsL.L.C. IL areor havebeenowners of Uptown Apartments or are or havebeenresponsiblefor the design,construction,building, and/or operationof the Uptown Apartments.
13. DefendantMonogramHomesis a Michigan Corporationandupon informationandbelief wasandis responsiblefor the design,constructionb, uilding, and/or operationof the Uptown Apartments.
14. DefendantWarner,Cantrell,& Padmos,Inc., is a civil engineeringfirm. Upon information andbelief, it was and is responsiblefor the design,construction, building, and/or operationof the Uptown Apartmentsand adjacentfacilities.

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15. DefendanLt ooneyRicksKissis thearchitecftor theUptownApartments andadjacenftacilities. Uponinformationandbelief,it wasandis responsiblefor the design,constructiona,nd/orbuildingof theUptownApartmentsandadjacenftacilities.
FACTS 16. EachDefendanetitherdesignedb,uilt,constructeda,ndloroperatetshe UptownApartmentsand/orthe sidewalksandotherfacilitiesadjacenthereto.The UptownApartmentcomplexconsistsof approximately30 apartmenbt uildings, containinga totalof approximately300apartmentsT. hecomplexalsocontainsareasof commonuse,includinga pool,clubhousee, xercisegym,meetingareasanda business office. TheUptownApartmentscomplexhasseverasl treetsandintersectionsa,nd sidewalksthroughout. 17. Thesubjectpropertyincludesapproximately100unitsthatare"covered multifamilydwellings"within themeaningof theFairHousingAct andthePWDCRA. Theywerebuilt for first occupancyafterMarch13,1991,andaresubjecto thedesign andconstructiornequirementssetforthin 42U.S.C.$ 3604(0(3)(Co) f theFairHousing Act and$ 37.1506aof thePWDCRA.Thepublicandcommonuseareasatthesubject propertyarealsosubjecto thedesignandconstructionrequirementosf theFairHousing Act,42U.S.C.$ 3604(0(3)(Ca),nd$ 37.1506oaf thePWDCRA.In additions,ome areasof Uptownapartment(ssuchastherentaloffice)areplacesof "public accommodations"ubjecto theaccessibilityrequirementosf theAmericanswith DisabilitiesAct. 18. In May,2006,theFairHousingCenterof SoutheasteMrnichiganreceived a complainthatthesubjectpropertywasnot in compliancewith theselaws. TheCenter

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expendedlimited resources,conductedan investigation,and confirmed that the covered

multifamily dwellings at Uptown Apartmentswere not compliant with the designand

constructionrequirementsof theselaws.

19. For example,at leastthe following unlawful conditions exist at the subject

property:

a. Insufficientaccessibleparkingspacesthroughoutthe complex;

b.

Parkingspacesthat aredesignatedas"accessible"aresloped

inappropriatelyand do not have adequatesignage;

c. Inaccessiblesidewalksalongroutesto andfrom dwelling units and

areasof commonandpublic use,including but not limited to excessive

sloping;

d. Unusableandinaccessiblemailboxes;

e. Inadequateaccessibilityto commonandpublic useareas;

f.

Inadequateaccessibilityto coveredunits;

g. Interior doorwaysthat aretoo narrow;

h. Inaccessibleor unusablewindow locks,closetdoors,medicine

cabinets,and door hardware;

i.

Inadequateframing or spacingfor bathroomgrab bars;

j.

Inaccessibleareasof public accommodation.

20. Defendantshavedesignedand constructedUptown Apartmentsin

violation of the accessibilityrequirementsof the Fair Housing Act, the ADA, andthe

PWDCRA in such.away asto make living thereor visiting there difficult, if not

impossible,for peoplewith disabilities,specificallythosewho usea wheelchair. Upon

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information andbelief, the violations identified by the Fair Housing Centerare representativeof similar violations that are repeatedthroughoutthe subjectproperty's covereddwelling units.
21. By illegally designingand constructingthe ground floor units andthe common andpublic useareasin the subjectproperty, Defendantshavedenied,andwill continueto deny, any existing or potential rentersor visitors with disabilities, including individuals assistedby the Fair Housing Centerof SoutheasternMichigan, an equal opportunity to rent, access,use,andenjoy the premisesin the sameway offered to citizenswithout physicaldisabilities.
22. Uptown Apartmentsremainsinaccessibleto personswith disabilitiesin clear violation of federal and stateaccessibilityrequirements.
23. In carrying out the aforementionedactions,Defendantsactedintentionally and willfully, and with callous disregardfor the rights of personswith disabilities andthe Fair HousingCenter,
INJURY TO PLAINTIFF 24. As a resultof Defendants'actionsdescribedabove,the Fair Housing Centerof SoutheasternMichigan hasbeendirectly and substantiallyinjured and frustratedin its mission to educatethe public aboutfair housingrights and requirements, to educateand work with consumerson fair housingcompliance,and to provide advice and advocacyto personseither looking for housingor affectedby discriminatory housing practices.The Fair HousingCenterof SoutheastemMichigan hasalsobeendamagedby having to divert scarceresourcesthat could havebeenusedto provide theseservicesto insteadidentify and counteractthe Defendants'discriminatory conduct.

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25. Theunlawfuldiscriminatoryconductof theDefendants contlnueto injuretheFairHousingCenterof SoutheasteMrnichiganby interalia:
Interfering with efforts andprogramsintendedto bring aboutequality of opportunity in housing,including ensuringthat multifamily developmentsareaccessibleto peoplewith disabilities; b . Requiring the commitment of scarceresources,including substantial staff time, to investigatethe discriminatory conductof Defendants,and counteractthe Defendants'discriminatory conduct,thus diverting thoseresourcesfrom otherservices;and c . Frustratingits mission andpurposeof promoting equalavailability of housingto all personswithout regardto any protectedcategory, including disability. 26. Defendants'discriminatoryconductwill alsodepriveindividualsto whom the Fair Housing Centerof SoutheasternMichigan provides servicesand othersliving in andnearUptown Apartmentsof the benefit of living in a diversecommunity that includespersonswho havedisabilities andwho may usewheelchairs.
FIRST CAUSE OF ACTION (Violation of the Fair Housing Act) 27. Plaintiff adoptsandreallegesthe allegationsabove. 28. The Defendants,togetherand separately,have failed to designand constructthe subjectproperty so that: a. the public useand commonuseportions are readily accessibleto and usableby personswith disabilities;

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b. all doors within the ground floor units are sufficiently wide to allow

passageinto and*r*in suchunits by personswith disabilities who use

wheelchairs:and

c. all the ground floor units containthe following featuresof adaptive

desien:

i.

an accessiblerouteinto andthroughthe dwelling;

ii.

light switches,electricaloutlets,thermostats,and other

environmentalcontrols in accessiblelocations;and

iii. usablekitchensandbathroomssuch that apersonin a

wheelchaircan maneuveraboutthe space.

29. Through the actionsand inactionsdescribedabove,the Defendants,

togetherand separately,have:

a. Discriminated in the rental of, or otherwisemadeunavailable,or

denieddwellingsto personsbecauseof their disabilitiesin violation of

theFair HousingAct,42 U.S.C.$ 360a(fXl); b. Discriminatedagainstpersonsbecauseof their disabilitiesin the terms,

conditions,or privilegesof rentalof a dwelling, or in the provisionof

servicesor facilities in connectionwith the rental of a dwelling, in

violation of the Fair HousingAct, 42 U.S.C. $ 3604(0(2);and c. Failed to designand constructdwellings in compliancewith the

requirementsmandatedby the Fair HousingAct,42 U'S.C' $ 3604(0(3)(C),andtheapplicableregulations,24C.F.R.Part 100.205.

l0

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30. The Defendants'conductdescribedhereinhasbeenintentional,willful, and with callous disregardfor the rights of peoplewith disabilities.
3I . As a result of Defendants'wrongful conduct,Plaintiff the Fair Housing Centerof SoutheasternMichigan and all personswho utilize the servicesof this organizationhave beeninjured by a discriminatory housingpracticeand ate,therefore, o'aggrievepderson[s]"asdefinedby the Fair HousingAct, 42 U.S.C. S3602(D,andas usedin 42 U.S.C.$ 3613(a)(l)(A).
SECOND CAUSE OF ACTION (Violation of the Americans with Disabilities Act) 32. Plaintiff adoptsandreallegesthe allegationsabove. 33. The rental office at the Uptown Apartmentsis a salesor rental establishment,the operationsof which affect comrnerce,andthereforeis a "public accommodationw" ithin themeaningof42 U.S.C.$ 12181(7). 34. The rental office at the Uptown Apartmentswas designedand constructedfor first occupancyafter January26,1993. The rental office andthe facilities, privileges, and accommodationsprovided for the public appurtenant o the useof the rental offices, including the parking and sidewalksare coveredby the prohibition on discriminationin 42 U.S.C. $ l2l S2(a),andaresubjectto the designandconstruction requirementosf 42 U.S.C.$ 12183(a)(l). 35. The Defendantsfailed to designand constructthe rental office and its appurtenantparking and sidewalksin sucha mannerthat the facilities are readily accessibleto anduseableby personswith disabilities. 36. The actionsof the Defendantsa. sdescribedabove,constitute:
l1

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a. Discrimination againstindividuals with disabilities in the full and equalenjoymentof the servicesf,acilities,privileges,and accommodationsof a placeof public accommodationi,n violation of 42 U.S.C.$ 12182(a)a;nd
b. A failureto designandconstrucpt ublicaccommodations compliancwe ith therequirementmsandatebdy 42 U.S.C, 12183(aXl).
37. The conductdescribedin paragraphsaboveconstitutesa violation of the Americanswith Disabilities Act, entitling Plaintiff to declaratoryand injunotive relief, anda reasonableattornev'sfee andcosts.
THIRD CAUSE OF ACTION (Violation of the Michigan Personswith Disabilities Civil Rights Act) 38. Plaintiff adoptsandreallegesthe allegationsabove. 39. Through the actionsand inactionsdescribedabove,the Defendants, togetherand separately,have:
Discriminated in the rental of, or otherwisemadeunavailable,or denieddwellingsto personsbecauseof their disabilitiesin violation of Section37.1502of the PWDCRA; b . Discriminatedagainstpersonsbecauseof their disabilitiesin the terms, conditions,or privilegesof rentalof a dwelling, or in the provisionof servicesor facilities in connectionwith the rental of a dwelling, in violation of Section37.1502of the PWDCRA; c . Failedto designandconstructdwellingsin compliancewith the requirementsmandatedby Section37.1506aof the PWDCRA; and
t2

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d. Deniedpersontshefull andequalenjoymenot f theservicesf,acilities, privilegesa, dvantageasn, daccommodationosf aplaceof public accommodatiobnecausoef disabilitvin violationof Section37.1302 of thePWDCRA.
40. TheDefendantsc' onductdescribedhereinhasbeenintentionalw, illful, andwith callousdisregardfor therightsof peoplewith disabilities.
PRAYERFOR RELIEF WHEREFORE, Plaintiff respectivelypraysthat this Court enteran order against Defendants,togetherand individually, asfollows: A. Declaring that the conductof Defendantsin designingand constructing
Uptown Apartmentsis in violation of the Fair Housing Act, the Americans with DisabilitiesAct, andthe Michigan Personswith DisabilitiesCivil Rights Act. B. PermanentlyenjoiningDefendantst,heir officers,directors,employees, agents,successorsa,ssignsa, ndall otherpersonsin activeconcertor participation with any of them, from: 1) Failing or refusingto bring the covereddwelling units,andthe public
useand commonuseareas,at Uptown Apartmentsinto immediate compliancewith the requirementsof 42 U.S.C. $ 3604(0(3)(C),and the applicableregulations, 2) Failing or refusing to bring the covereddwelling units, andthe public useand common useareasat Uptown Apartmentsinto immediate
l3

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compliancewith the requirementsof the Michigan Personswith DisabilitiesCivil RightsAct; and 3) Failing or refusingto designand constructany coveredmultifamily dwellings in the future in compliancewith the Fair Housing Act and the Michigan Personswith DisabilitiesCivil RightsAct. C . Permanentlyenjoining Defendants,their offi cers,directors,employees, agents,successorsa,ssignsa, ndall otherpersonsin activeconcertor participation with any of them, from failing or refusing to bring the coveredplacesof public accommodationat Uptown Apartmentsinto immediatecompliancewith the requirementsof the Americans with DisabilitiesAct; D . Order Defendantsto take suchaffirmative actionsas are necessaryto bring Uptown Apartmentsinto compliancewith the Fair Housing Act, the Americanswith DisabilitiesAct, the Michigan Personswith Disabilities Civil Rights Act, andthe applicableregulations. E. Award suchcompensatorydamagesaswould fully compensatethe Plaintiff for the injuries incurred as a result of the discriminatory housing conductof Defendants. F . Award suchpunitive damagesagainstDefendantsas areproper under the law. G . Award Plaintiff its costs,attorney's fees,and expenses. H . Award suchother relief asthis Court deemsjust andproper.
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JURY DEMAND Plaintiffdemandastrial byjury on all issuessotriable.

Datedthis6thdayof June,2007.

Respectfullysubmitted,

/s/ StepnenVt. lane StephenM. Dane,Esq. MichaelAllen,Esq. RELMAN & DANE PLLC 1225l9thStreetN, .W.,Suite600 WashingtonD, .C.20036 Tel.(202)728-1888 Fax (202) 728-0848
312LouisianaAvenue PerrysburgO, hio43551 419-873-181(4phone) 419-873-181(f5ax)
Attorneysfor Plaintiff Fair HousingCenter of SoutheasterMn ichigan,Inc.

15

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CERTIFICATE OF SERVICE I herebycertifythaton June6, 2007,I electronicallyfiled theforegoingpaper with theClerkof CourtusingtheECFsystemwhichwill sendnotificationof suchfiling to thefollowing:

J.MarkFinneganE, sq. LeighR. GredenE, sq. KevinJ. GleesonE, sq. TheresaL. Kitay,Esq. BrettA. RendeiroE, sq. GerardManteseE, sq.

/s/ StephenM. Dane,Esq. Attorneyfor Plaintiff Fair HousingCenter of SoutheasterMn ichigan,Inc.

t6

 
 2:06-cv-13408-NGE-MKM Doc # 56 Filed 06/26/07 Pg 1 of 3 Pg ID 347

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWREY, MARILYN LOWREY and FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC.,

Plaintiffs,

CIVIL ACTION NO. 06-13408

v.

DISTRICT JUDGE NANCY G. EDMUNDS

BEZTAK PROPERTIES, INC.;

MAGISTRATE JUDGE VIRGINIA MORGAN

BEZTAK COMPANIES, INC.;

BILTMORE PROPERTIES COMPANIES,

INC.; UPTOWN INVESTORS, LLC;

UPTOWN INVESTORS LLC II;

MONOGRAM HOMES; WARNER,

CANTRELL & PADMOS, INC., and

LOONEY RICKS KISS,

Defendants. ____________________________________/

MEMORANDUM OF PARTIAL SETTLEMENT AND FURTHER SCHEDULING ORDER

This matter was referred to the undersigned as Special Master for Settlement. Following

confidential settlement discussions, the parties reached a partial settlement, resolving a number

of matters related to the plaintiffs’ requests for injunctive relief. A Stipulated Order of Partial

Settlement and Conditional Release was exchanged and in a telephonic conference on June 18,

2007, the court was advised that all parties agreed to both form and content. Counsel will

undertake to obtain all necessary client signatures forthwith and submit the document via

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2:06-cv-13408-NGE-MKM Doc # 56 Filed 06/26/07 Pg 2 of 3 Pg ID 348

electronic filing for signature by the district judge. It is expected that the filing will be made in the next few days.
Therefore, IT IS ORDERED as follows: 1. The June 19th date for placing the settlement on the record with the magistrate judge is vacated. 2. The parties are ordered to submit the Stipulated Order of Partial Settlement and Conditional Release for Judge Edmunds’ signature forthwith and abide by the terms of the same. 3. A further settlement conference is set for September 20, 2007, at 10:00 am in the chambers of the magistrate judge. All counsel are ordered to appear with full settlement authority. The court advises counsel that the date of September 21, 2007 is also available if discussion continues. 4. Clients and/or client representatives are ordered to appear as necessary to effectuate discussions. Unless all counsel agree, the client/client representatives must attend. The court desires that all persons who are part of the decision-making process attend. However, in order to keep costs and inconvenience down, on or before September 13, 2007, counsel may agree among themselves as to a waiver of attendance by a clients/client representatives and/or whether those persons may be available by phone, and so advise the chambers of the magistrate judge. SO ORDERED.

Dated: June 26, 2007

s/Virginia M. Morgan Virginia M. Morgan United States Magistrate Judge
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PROOF OF SERVICE The undersigned certifies that the foregoing Memorandum of Partial Settlement was served upon counsel of record via the Court’s ECF System and/or U. S. Mail on June 26, 2007.
s/Jane Johnson Case Manager to Magistrate Judge Virginia M. Morgan
- 3 -

 
 2:06-cv-13408-NGE-MKM Doc # 106 Filed 08/01/08 Pg 1 of 21 Pg ID 916

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Michael Lowrey, et al.,

)

)

Plaintiffs,

)

)

)

Beztak Properties, Inc., et al.,

)

)

Defendants

.

)

Case No.: 06-13408-NGE-MKM Judge NANCY G. EDMUNDS Magistrate MONA MAZOUB

********************************************************************************************
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST CANTON TOWNSHIP, WITH MEMORANDUM AND EXHIBITS IN SUPPORT

1. Plaintiffs Michael and Marilyn Lowrey (the “Lowrey Plaintiffs”)—with the

full concurrence of int ervener Plaintiff Fair Housing Center—respectfully move

this Court to enter a preliminary

injunction enjoining Defendant Canton

Township1 to immediat ely cease discriminating against Plaintiffs, and to Order

Defendant Canton Township immediately to:

(a) Bring into complianc e with the ADAAG or UFAS any of the Retail

and Theater District’s (the District’s) sidewalks, curb ramps, parking and

any other “ facilities” (defined at 28 C.F.R. § 35.104) that were a ltered or

1 This m otion is s olely against Canton Towns hip, because it is the only Defendant covered by Title II of t he ADA and under Section 504 of the Rehabilitation Act. Settlement discussion s have failed with Canton Township. Settlement discussions are still o ngoing with the remaining (non-governemental) Defendants—Uptown Investors LLC; Beztak Properties, Inc.; Beztak Companies, Inc.; Monogram Homes; Warner, Cantrell and Padmos, Inc.; Biltmore Properties Companies, Inc.; and Looney, Ricks, Kis s. If these discuss ions fail, then Plaintiffs will file a request for a s eparate preliminary injunction—pursuant to Title III of the ADA—against each of those defendants. That motion will seek relief for some, but not all, of the same facilities at issue in the instant motion against Canton Township.
1

2:06-cv-13408-NGE-MKM Doc # 106 Filed 08/01/08 Pg 2 of 21 Pg ID 917
constructed after January 26, 1992 “by, on behalf of , or for the use of” Canton Township. A map s howing the district and its facilities is attached hereto as Exhibit “A”; (b) Meet with the Lowrey Plaintiffs to arrange methods successfully to make accessible by law to them any of the District’s side walks, curb ramps, parking and a ny other facilities that were altered or cons tructed before—but not after—January 26, 1992 b y, on behalf of, or for the use of Canton Township; (c) Construct on the site containing the Canton Farmers’ Market legally sufficient ADAAG/UFAS-compliant parking spaces on ADAAG/UFAScompliant accessible routes connecting into the bar n, into the BartlettTravis House, to accessible port a johns, and to any booths or other conveyances that may oper ate at the site during farmer market days or any other days. Cease and desist from operating the Canton Farmers’ Market until this is achieved, or until a Court or Plaintiff— approved temporary accessible rout e (e.g., metal plates, or wooden flooring, etc) from accessible parking to each of these facilities is installed; (d) Cease and desist from conducting the theater district’s “Historica l Hike” until constructing sufficient ADAAG/UFAS-compliant parking spaces on ADAAG/UFAS-compliant accessible routes connecting into each of the buildings and into any other conveyances that may operate at any of these sites during the Hist ory Hike, or until a Court or Plaintiff approved temporary accessible rout e (e.g., metal plates, or wooden flooring, etc)
2

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from sufficient ADAAG/UFAS compliant pa rking to each of thes e facilities

is installed

(e) Cease and desist booking new event s into the Village Theater, and

from renewing recurring events until constructing legally sufficient

ADAAG/UFAS-compliant parking spaces on ADAAG/UFAS-compliant

accessible routes connecting into the Village Theater;

(f) Cease and desist from providin g valet parking for events at the

Village Theater until Defendant complie s with the ADAAG at sections

4.1.2(5)(e) and 4.6.6;

(g) Complete fully each of these accessibility upgrades no later than

October 31, 2008, with any Court

or Plaintiff approved temporary

measures occurring within two week from entry of this injunction; and to

(h) Meet and otherwise communicate with the Lowreys and/or their

Counsel as often and as long as it ta kes to achieve these items within the

ordered time frames;

2. Canton Township touts and heavily promotes as a tourist destination its

“Village Center” and its “Retail and Theater District” including its “state-of-the-art”

Village Theater. Each Sunday from Ap ril through October Defendant operates in

the retail and theater district the Canton Farmers’ Market, and on the first Sunday

of each of those months conducts a “his toric hike” including eleven buildings ,

many of w hich the Township rents to the public for ev ents. In addition, the

Township holds numerous festivals in the district, involving many of it s

employees and serving many hundreds of patrons. But the Village Center, its

3

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retail and theater district, Village Theat er, Canton Farmers’ Market, Historic Hike and the eleven buildings on th e hike are each utterly off-limits to the Lo wreys— and to any other mobility impaired persons;
3. By its wholesale failure to meet any provisions of applicable federa l and Michigan access ibility construction co des, Defendant has cr eated an entire Village Center and Retail a nd Theater District that excludes and segregates the Lowreys. Defendant should not be allowed to continue profiting in its operation of the District and its adj acent Village Center while segregating the Lowreys— and all ot her persons with mobility disa bilities—from the enjoyment of the multiple benefits of the Village Center and its retail and theater district;
4. Title II of the ADA, Sect ion 504 of the Rehabilitation Act, and Michigan’s Persons with Disabilities Civ il Rights Act (PWDCRA), each e xpressly authorize the injunction requested here, which is identical to the relief grante d by the Honorable David A Katz against the m unicipality of Toledo, Ohio, as well as by the Honorable Vict oria Roberts recently in a lawsuit against Edward Ros e & Sons—another huge Michigan-based real-estate developer;
5. Three years have passed since Pl aintiff Mike Lowrey moved into an apartment one block f rom the Township’s r etail and t heater district. Durin g his first year of negotiating, even with help of the intervener Plaintiff Fair Housing Center, the Township refused to corre ct even one of the num erous barriers to access, forcing the Lowreys to file suit. Now, two full years after he filed suit, and one full year after the Court appointed a sp ecial master to facilitate two separate day-long facilitated settlement discussions, the Township has failed to c orrect
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even one access barrier in the district, and even continues to create new ev ents
and services in the district, while ignoring Plaintiffs’ repeated requests for access
to the district. The Court must act to impress upon Def endant that further delay
is unacceptable, and will cost the Township significantly until it stops delaying
and rebuilds its sidewalks, cu rb ramps and “barrier free” 12 parking to be
accessible to the Lowrey Plaintiffs and others like them;
6. A map is attached showing C anton Township’s Retail and Theater
District (the “District”). See Plaintiffs’ Exhibit A.
7. Relevant facts are verified in t he sworn declarations of Plaintiffs Mike
and Marilyn Lowrey, and summary fact witness paralegal Ma rguerite Claire
Finnegan, attached hereto as Plaintiffs’ Exhibits B, C, and D, and photogra phs
attached to Ms. Finnegan’s Declaration.2
12 Although many still refer to these as “handicap” parking spaces, Congress and many others have stopped us ing that term. As the Th ird Circuit recognized, Congress in the late 1980s stopped us ing the term “handic apped” because “individuals with disabilities find the term ‘handicapped’ objectionable.” Helen L. v. Didario, 46 F.3d 325, 333 n8 (3 rd Cir. 1995). Michigan’s legislature adopted this trend several years ago when it rena med its “Handicapper ’s Act”, which is now the “Persons with Disabilities” Ac t. A good friend of mine who us es a wheelchair tells me that when a person asks him “Do you need a handicapped parking space [or hot el room]”, he responds affably “Well, I don’t know—what’s wrong with it?” He then tells the person that he would prefer an “accessible”, or “barrier free” parking space. Old habits die hard, but the better usage is to avoid using the word “handicapped” whenever possible.
2 Plaintiffs present their evidence thr ough sworn written Declarations. “Affidavits are appropriate on a preliminar y injunction motion and typically will be offered by both parties”. See 11 A.C. Wri ght, A. Miller & M. K ane, Federal Practice & Procedure, § 2949 at 214-15 (1995), and numerous cases collected therein . Indeed, a preliminary injunction may issue entirely based on affidavits. See, e.g., Ross-Whitney Corp. v. Smith, Kline & French Laboratories , 207 F.2d 190, 198 (9th Cir. 1953). Pursuant to federal statut e, written sworn declarations are properly substituted for notarized affidavits in federal court proceedings. 28 CFR Section 1746(2)(2006).
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8. Statement Pursuant to Local Rule 7.1 . Intervener Plaintiff. The

Intervener Plaintiff Fair Housing Center of Southeast Michigan c oncurs fully in

this motion. The Eight Defendants. I held a conference with Defendant Canton

Township, and it refuses to concur in this motion. The are s even “private”

Defendants in the lawsuit—Upt own Investors LLC; Beztak Properties, Inc.;

Beztak Companies, Inc.; Monogram Homes; Warner, Cantrell and Padmos, Inc.;

Biltmore Properties Companies, Inc.; and Looney, Ric ks, Kiss. On Tuesday,

June 24, 2008 I sent by email to all co unsel in the case a detailed writing

explaining the nature of this preliminary injunction motion and all legal citations in

support. I also attached a c opy of the proposed preliminary in junction. In the

email I asked all Defense Counsel to concur or at leas t to contact me to disc uss

the matter before 3:00 PM Thurs day, June 26, 2008. I gave eac h the number of

my cell phone, which I keep with me at all times. Defendants Biltmore Properties

and Looney, Ricks, Kiss failed t o respond to me in any way, ev en though one

month has passed. I also met with counsel for the other five private Defendants,

but each of those Defendants does not concur.

Respectfully

submitted

/s/ J. Mark Finnegan________ J. Mark Finnegan (P68050) Denise M. Heberle (P64145) Heberle & Finnegan PLLC 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 hffirm@comcast.net

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CONCISE STATEMENT OF ISSUES
1. Is Defendant Canton Town ship segregating and otherwis e discriminating against the Lowrey Plaintiffs by operating Township “facilities , programs and servic es” while each of these violate mandatory federal and Michigan accessibility codes?
2. Do the three laws at issue he re direct the Cour t to issue emergenc y injunctive relief to halt this disc rimination, and to c orrect local governm ents’ inaccessible facilities, programs and services?
3. Sho uld the Co urt follow other courts in ide ntical cases a nd enjoin Canton Township to retrofit immediately its facilities to make them meet the Americans with Disa bilities Act Accessib ility Guidelines (the ADAAG) and the ADAAG’s detailed construction standards?
4. Should the Court follow Easter n District and Sixt h Circuit precedent and enjoin Canton T ownship immediately to cease and desist from operating its discriminatory programs, services and fac ilities, until each is b rought into full compliance with controllin g accessibility standards, or until Court-approved temporary methods to provide accessibility are implemented?
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CONTROLLING AUTHORITIES Federal law prohibits discr imination by public enti ties in “benefits of services, programs or activities”. 42 U. S.C. § 12132; 28 C. F.R. § 35.104 All “facilities” built “by, on behalf of, or for the use of” Canton Town ship” must meet detailed, specific accessibility codes. 28 CFR § 35.151(a); 28 C FR § 35.151(c). . Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1993 (2004). All three a cts in this lawsuit spe cifically provide for preliminary injunctiv e relief to remedy discrimination against plai ntiffs. 42 U.S.C. § 12133 (Title II of the ADA); 29 U.S.C. § 794(a)(2)(Section 504 of the Rehabilitation Act); MCL § 37.1606(1)(Michigan’s Persons with Disabilities Civil Rights Act). Other Court’s have issued the injuncti ve relief requested here—ordering local governments to rebuild curb ramps and sidewalks to meet detailed accessibility standards. Deck v City of Toledo, 29 F.Supp 2d at 431 (N.D.Ohio 1998)(preliminary injunction ordering city to immediately install ADAAG-compliant curb ramps); Ability Center v. City of Sa ndusky, 385 F.3d 901 at 904 (6 th Cir. 2004)(same, but permanent injunction); Kinney v. Yerusalim, 9 F.3d 1067, 1071 (1993) cert. denied sub nom Hoskins v. Kinney, 114 SCt. 1545 (1994)(same as Ability Center). Another Eastern District Court i ssued, and the Sixt h Circuit upheld, a preliminary injunction to cease operating discriminatory inaccessible facilities until they are made accessibl e according to law. United States v. Edward Rose & Sons, 246 F.Supp.2d 744 (E.D.Mich. 2003), aff’d 384 F.3d 258 (6th Cir. 2004).
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MEMORANDUM IN SUPPORT

I. Procedural Posture of this Motion. Plaintiffs filed on May 7, 2007 to add Defendant Cant on Township to the lawsuit. 3 The priv ate Defendants

refused to concur in the motion, and the Court scheduled a hearing on the

matter.4 Then, without any explanation

for their about face, the privat e

Defendants decided to concur , and Canton Township wa s added to the lawsuit

on June 5, 2007. 5 It delayed filing its Answer until Oct ober 4, 2007.6 Defendant

Canton Township participated in the Court-ordered settlement discuss ions facilitated by Magistrate Morgan durin g July 2007 and on October 23, 2 007.7

The parties discussed the acces sibility defects throughout the retail and theater

district, but no agreement was reached with Canton Township, and now, more

than one year after Canton Township wa s added to the laws uit and participated

in facilitated settlement conferences, not hing in the district has been c orrected

and made accessible according to law.

II. Facts Relevant to Motion

During year 2004 the Township’s Village Theater was built by, on behalf

of, or for the use of Canton Township. As a part of this project, the entire

intersection of Cherry Hill Road with Rid ge Road was reconstructed, including

3 Document 35. 4 Document 41. 5 Documents 49 and 52. 6 Document 76. 7 Documents 38, 56, 68, “Minute entry” October 23, 2007.
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the sidewalks running along these roads. In addition, approximately thirteen public parking lots serving the Theater and it s retail district were constructed or otherwise altered by, on behalf of, or for t he use of Canton Township. As a part of this activity, a series of public sidew alks were constructed or were otherwise altered to connect this parking to the T ownship’s theater and its retail dis trict. Each of these facilities is shown on the map attached hereto as Exhibit A.
Plaintiff Mike Lowrey uses a whee lchair, and he lives in the private Defendants’ apartments.8 Pla intiff Marilyn L owrey also has a mobility disability and visits Mike frequently. Bot h wish to use the Village Theat er and the retail districts’ shops, parking and sidewalks, but they can not. T his is bec ause virtually every part of the retail district violates all ADAAG standards. There are literally hundreds of such violations.
Plaintiffs have now s pent nearly three years—including filing a motion for preliminary injunction more than one y ear ago and participating in three courtordered settlement conference s facilitated by Mag istrate Morgan—to have Defendants make the district accessibl e under the ADAAG. But Defendant Canton Township has not corrected even one defective curb ramp or parking space in the District, much less brought t he District into full compliance wit h the ADAAG. Yet, Canton Township contin ues to oper ate the Village Theater, Farmers’ Market, and its Historic Hike and to operate its public parking, while excluding the Lowreys and all other persons with disabilities.
8 Mike Lowrey’s apartment is shown on Exhibit A, and is only one block from the Canton Township’s Village Theater and its parking and sidewalks.
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LEGAL ANALYSIS III. Legal Standard for Issuing Preliminary Injunction In the Sixth Circuit, when determini ng whether to issue a preliminary injunction, a court must typically balance four factors: (1) the likelihood that the party seeking the prelim inary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without t he grant of the extraordinary relief; (3) the probability that granting the injunction will caus e substantial harm to others; and, (4) whether the public inte rest is advanced by the issuance of the injunction.9 But as to the four factors “none is a prereq uisite” especially if Plaintiffs show the strong likelihood of success on the merits.10 (A). Plaintiffs Will Likely Succeed On The Merits Title II of the ADA 11 prohibits discrimination by public entities12 in “benefits of services, programs or activities”. 13 Canton Towns hip must comply with Title II’s mandate that:
9 United States v. Edward Rose & Sons, 246 F.Supp.2d 744 (E.D.Mich. 2003), aff’d 384 F.3d 258 (6th Cir. 2004)(preliminary injunction ordering developers to rebuild entrances to many apartment buildings to make them accessible to all persons with disabilities, and to cease renting all ground floor units until the retrofits were completed). 10 Edward Rose, 384 F3d at 264 (“any lack of irreparable harm” outweighed by “the other equitable factors, especially the strong likelihood of success on the merits”). 11 42 U.S.C. § 12132. 12 28 C.F.R. § 35.104. 13 42 U.S.C. § 12132. Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002)(sidewalks are “services, programs or activities” under Title II)(citing Johnson v. City of Saline, Michigan, 151 F.3d 564, 569 (6th Cir.1998)(finding that
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“Each facility14 of part of a facility construc ted by, on behalf of, or for the use of [Canton Township] shall be designed and c onstructed in such manner that the facility or part of the facility is readily accessible to and usable by15 individuals with disabilities, if the construction was commenced after January 26, 1992.”16 The same is true of any such fac ilities “altered” after that date. 17 Resurfacing of streets or sidewalks by a municipality triggers the AD A’s requirement that the intersecting sidewalks and curb ramps must meet the ADAAG. Canton must choose between m eeting the ADAAG and meeting the virtually identical UF AS.18 The requirement s of the Americans with Disabilities
“the [Title II] phrase ‘services, programs, or activities’ encompasses virtually everything a public entity does”). 14 “Facility” includes almost everything in the Defendants’ retail and theater district, including among other things “roads, sidewalks and parking lots”. 28 C.F.R. § 35.104. 15 According to United States Department of Justice guid ance: “What is ‘readily accessible and usable?’ This means that the f acility must be built in strict co mpliance with the Americans with Disab ilities Act Accessibility Guidelines (ADAAG). There is no co st defense to the new construction requirements.” ADA Title III Tec hnical Assistance Manual, Section III5.1000. 16 28 CFR § 35.151(a). Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1993 (2004): “In the case of facilities built …after 1992, the [Title II ADA implementing] regulations require compliance with specific architectural accessibility standards.” Those “specific architectural accessibility standards” are the ADAAG/UFAS. See 28 CFR § 35.151(c). 17 28 CFR § 35.151(b). 18 28 CFR § 35.151(c).
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Act Accessibility Guidelines (ADAAG), and the Uniform Federal Accessibilit y
Standards (UFAS), are virtually identical.19
Canton Township’s failure to m eet the ADAAG/UFAS standards is an
automatic violation of Title II o f the ADA. 20 Courts overwhelmingly agree. 21
19 For example, compare 28 C.F.R. Part 36, Appendix A (ADAAG) Sections 4.1.2(5)(accessible parking spaces); 4.3 (accessible routes); and 4.7 and 4.8 (curb ramps and sidewalk ramps), to 41 C.F.R. part 101-19.6, Appendix A (UFAS) Sections 4.1.1(5)(accessible parking spaces); 4.3 (accessible routes); and 4.7 and 4.8 (curb ramps and sidewalk ramps). Each section contains identical language and identical drawings. This is true throughout these two codes, with minor exceptions not relevant here.
20 Deck v City of Toledo, 29 F.Supp 2d at 431 (N.D.Ohio 1998)(preliminary injunction ordering Toledo to retrofit immediately recently constructed curb ramps throughout the City to meet the ADAAG); Ability Center v. City of Sandusky , 385 F.3d 901 at 904 (6 th Cir. 2004)(local gov ernments must build ADAAG-compliant curb ramps on public sidewalks); Kinney v. Yerusalim, 9 F.3d 1067, 1071 (1993) cert. denied sub nom Hoskins v. Kinney, 114 SCt. 1545 (1994)(same but against City of Philadelphia); Independent Living Resource s v. Oregon Arena Cor p. 1 F.Supp.2d 1124, 1151 (D. Or. 1998)(order ing sports arena to install ADAAGcomplaint curb ramps at transit st ops and along walk up to and through the arena); and, Coalition of Montanans Conc erned with Disabilities, Inc. v. Gal latin Airport Auth., 957 F.Supp. 1166, 1171 (D.Mont. 1997)(enjoining defendants to install wheelchair lifts in an a irport terminal to bring it into compliance with the ADAAG).
21 “Failure to abide by the [ADAAG] Gu idelines in new c onstruction evidences intentional discrimination against disabled persons.” Access Now, Inc., v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1363 (S .D.Fla.2001), citing Association for Disabled Americans, Inc. v. Concorde Gaming Corp. , 158 F.Supp.2d 1353, 1362 n.5 (S.D.Fla.20 01); “The ADAAG “constitutes the regulations for compliance with Titles II an d III of the ADA.” Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C. 950 F.Supp. 389, 390 (D.D.C 1996)(ADA v iolated because municipal airport failed to meet ADAAG); Coalition of Montanans Concer ned With Dis abilities, Inc. v. Gallatin Airport Authority, 957 F.Supp. 1166 (D.Mont.1997)(same); Duprees v. West , 988 F.Supp. 1390 (D.Kan. 1997)(“ADAAG is th e standard for measuring compliance with ADA”); “The US DOJ considers any e lement of a facility that does not meet or exceed the ADAAG Guidelines to be a barrier to access.” Parr v. L & L. Drive Inn Restaurant, 96 F.Supp. 2d 1065, 1086 (D.Hawai’i 2000) (failure to meet ADAAG held prima facie violation of ADA; Cooper v. Weltner , 16 NDL R P 268
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Among other things, the ADAAG and the UFAS require that when Defendants provide spaces for “self-parking by em ployees or visitors, or both” then Defendants must als o provide in each such lot ac cessible parking sp aces complying with the ADAAG.22 In addition, these access ible parking spaces must be on an ADAAG or UFAS-comp liant “accessible route” from the parking sp aces to “an accessible entrance to the buildings they serve” and to “public streets or sidewalks” and to “public trans portation”.23 Because the private Defendants have failed to do this , the Lowr eys and others similarly sit uated can not even park in the District nor access any of its benefits.24
(A)(1). No Cost Defense Available to Defendants The United States Department of Ju stice has determined that facilitie s constructed for first use after January 26, 1992 (Title II) must meet the ADAAG or the UFAS, and that there is no “c ost defense” to this requirement. 25 The United
(D.Kan. 1999)(Title II case holding City Jail violates the ADA bec ause it fails to meet ADAAG standards). “The ADAAG are legally binding regulation.” Theatre Management Group, Inc., v. Dalgliesh , 2001 WL 40403 (D.C.Cir 2001)(curb ramps that violate the ADAAG violate the ADA); Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1124, 1130 n. 2 ( D.Or. 1998)(Public c oncert arena violating ADAAG standar ds violates the ADA); Pascuiti v. New York Yankees, 87 F.Supp. 2d 221 (S.D.N.Y. 1999 )(New York City violated ADA because Yankee Stadium violates ADAAG standards). 22 28 C.F.R. Part 36, Appendix A (the ADAAG), § 4.1.2(5); 41 C.F.R. part 10119.6, Appendix A (UFAS) Sections 4.1.1(5). 23 28 C.F.R. Part 36, Appendix A (the ADAAG), §§ 4.1.2(1), (2) and (4); 41 C.F.R. part 101-19.6, Appendix A (UFAS) §§ 4.1.1(1), (2) and (4). 24 Marilyn Lowrey Declaration; Mike Lowrey Declaration. 25 Deck v. Toledo, 29 F.Supp.2d 431 (N.D.Ohio 1998) citing Kinney v. Yerusalim, 9 F.3d 1067, 1071 (1993) cert. denied s ub nom Hoskins v. Kinney , 114 SCt.
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States Department of Justice’s regulations and interpretations under the ADA are entitled to “substantial deference”.26
(A)(2). The Rehabilitation Act Has Been Violated By Defendants. During the time period relevant to this lawsuit, Ca nton Township has received millions of dollars from the federal government. 27 Hence, Section 504 of the Rehabilitation Act applies to the To wnship’s Village Theater and its retail and theater district. 28 The analysis under the Rehabilitation Act is virtually identical to the analys is under Title II of the ADA, exc ept that the Rehabilitation Act requires that Canton Township re ceive federal funds, and that the Township’s facilities meet the UFAS, which is ident ical to the ADAAG in all
1545 (1994)(“undue financial bu rden” no defense to injunctions to retrofit sidewalks under new construction and al teration sections of the ADA). Accord 28 C.F.R. Part 36, Appendix B, ' 36.402(c)(USDOJ statutory guidance); accord United States Department of J ustice Title III Tech nical Assistance Manual, Section III-6.0000, “Technically Infeasible” Illustration 1. 26 42 U.S.C. §§ 12186(b), (c) and (d)(1). “Because [t he ADA] was enacted wit h broad language and directed to the Department of Justic e to promulgat e regulations [thereunder], the regulations which the D epartment [of Justice] promulgated are entitled to substantial deference.” Niece v. Fitzner, 941 F.Supp. 1497, 1507 (E.D.Mich. 1996) citing Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.), cert. denied, 116 S.Ct. 64 (1995). Accord, Johnson v. City of Saline , 151 F.3d 564, 570 (6th Cir. 1998), citing Thomas Jefferson Univ. v. Shalala , 512 U.S. 504. 512 (1994). 27 Finnegan Declaration. 28 Civil Rights Restoration Act, 29 U.S.C. § 794.
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relevant aspects.29 Thus, if the Court finds t hat Canton Townsh ip has violated

Title II of the ADA, then Defendant has also violated the Rehabilitation Act.

(A)(3). Michigan’s PWDCRA Has Been Violated By Defendants.

Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA) declares:

“The opportunity to…full and

equal utilization of public

accommodations…without discrimination because of a disability is guaranteed by this act and is a civil right.”30

The PWDCRA prohibits discrimination based upon disability at any:

“business…refreshment [or] recreation…facility of any kind…whose…advantages…are…made available to the public.” as well as any “public facility…owned, operated, or managed on or behalf of…a township.”31

At all times relevant to this lawsui t, Michigan law requ ired each of Canton

Township’s facilities to meet the accessibility standards set forth by the ICC/ANSI A117.1-1998 code.32 Where Michigan ac cessibility design and construction

29 42 U.S.C. § 12146 (violation of ADA Title II during new construction of facilities is automatically a violation of the Rehabilitation Act); 42 U.S.C. § 12147 (same is true with alterations of facilities).
30 M.C.L. § 37.1102(1).
31 M.C.L. § 37.1301(a) and (b).
32 At all times beginning July 31, 2001 a nd up to Febr uary 28, 2004, Michigan’s Building Code required Cant on Township to follow the ICC/ANSI-A.117-1998 accessibility code. See Michigan Building Code 2000, Section 1101.2, incorporating the ICC/ANSI A117.1-1998. R 408.30427. Beginning March 2004, Michigan adopted the Michigan Building Code (MBC 2003), incorporating the 2003 edition of the Internati onal Building Code. Accord ing to Chapter 11 of the MBC 2003: “ Design. Buildings and facilities shal l be designed and constructed to be accessible in acco rdance with this c ode and I CC [ANSI] A117.1.” MBC 2003 Section 1101.2. The authority for this section is R 408.30427. In the index of the MBC 2003, in the “Referenced Standards” the I CC/ANSI A117.1-1998 is identified as the code refe renced in the MBC 2003 Sect ions 1101.2 and 1102.1. See MBC 2003, p. 588. Thus , without dis pute, under Mich igan state law at all
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standards afford greater accessibility to persons with disabilities, the Michigan standards control over the ADAAG. 33 This is not as confusing as it may seem,
because the United States Department of Justice modeled its ADAAG on the ANSI, so the two codes have very similar requirements.34
(B). Irreparable Harm Will Occur Without This Injunction
Both Title II of the ADA and the Rehab ilitation Act expressly provide that
when facilities fail to meet the ADAA G or the UFAS, the court should issue injunctive relief.”35 Likewise, Mic higan’s PWDCRA also expressly authorizes injunctive relief to correct accessibility violations. 36 Because each statute
expressly authorizes preliminary injunctive relief, the Court should pres ume irreparable harm.37 In addition, under the more traditional method of analyzing
times relevant to this lawsuit, the ICC/ANSI A117.1-1998 governed what is accessible, and is the standar d that Michigan required Canton Township to meet under Michigan’s PWDCRA
33 42 U.S.C. § 12201(b); 28 C.F.R. § 36.103(c)(“Nothing in this chapter shall be construed to invalidate or limit the... law of any State...that provides greater or equal protection for the rights of individuals with disabilities than are afforded by the chapter”.) See e.g., Pinnock v. International House of Pancakes Franchisee, 844 F.Supp. 574 (S.D.Cal. 1993).
34 The ANSI’s influenc e on the drafting of th e ADAAG—as well as both codes ’ similarities—are set forth by the Depar tment of Jus tice at Section 1 of the ADAAG.
35 42 U.S.C. § 12133; 29 U.S.C. § 794(a)(2).
36 MCL § 37.1606(1). 37 United States v. Ed ward Rose & Sons, 246 F.Supp.2d 744 (E.D.Mich. 2003) (“Because Congress has seen fit to act in a giv en area by enacting a statute, irreparable injury must be presumed in a statutory enforcement action.”)(quoting U.S. v. Odessa Un ion Warehouse Co-op, 833 F.2d 172, 176 (9th Cir.1987)). Courts refer to this approach as the “sta tutory method” to analyze t he irreparable
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the irreparable harm factor, the Lowrey Pl aintiffs have shown that Defendants’
inaccessible side walks, curb ramps and parking prevent them from using these
facilities. Such a showing establishes irreparable harm justifying a preliminary
injunction to bring these facilities into compliance with the ADAAG.38
Either way the Court chooses to analyze irreparable harm, the most
important consideration is Plaintiffs’ strong likelihood of success on the merits.39 .
harm factor. In addition to Judge Roberts, other Court’s have used this approach to grant preliminary injunctions under the ADA. See Lonberg v. City of Riverside, 2000 WL 2005107 * 7-8 (C.D.Cal. 2007)(a case vi rtually identical to the case at bar); ReMed Recovery Care Centers v. Townsh ip of Willistown , 36 F.Supp.2d 676, 687-88 (E.D.Pa. 1999); Alexander v. Riga, 208 F.3d 419, 427 (3 rd Cir. 2000); Pathways Psycohsocial v. Leonardstown, Md. , 133 F.Supp.2d 772, 784 (D.Md.2001).
38 Courts call this the “traditional me thod” of analyzing the irreparable harm factor. In Deck v. Cit y of Toledo, 29 F.Supp 2d 431, 434 (N.D.Ohio 1998) , the Honorable David A. Katz held:
“Plaintiffs have established an irreparable and immediate harm to themselves and other handic apped individuals by showing that improperly constructed curb ramps prevent Plai ntiffs from engaging in normal life activities such as crossing the str eet or accessing a sidewalk. At the hearing, Plaintiffs also testified as to the danger of “tipping” due to multiple inch lips on the curb ramp or the haz ards of entering the street and being unable to re-enter the sidewalk area on the opposite side of the crosswalk due to curb ramps which are not in compliance with the ADA.”
39 According to the Sixth Circuit:
“We need not decide whether [the statutorily provided method] controls or whether a statute must mandate anot her showing that displaces the traditional equitable factors because we find it immaterial to the disposition of this case. We balance the equitabl e factors, and none is a prerequisite. [citation omitted]. The other equitabl e factors, particularly the strong likelihood of success on the merits, outweigh any lack of irreparable harm, with or without any presumption.”
U.S. v. Edward Rose & Sons, 384 F.3d at 264.
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(C). The Balance of Harms Tips Decidedly Toward Plaintiffs. The balance of harm tips decidedly towa rd Plaintiffs. The Sixt h Circuit analyzed the balance of harms factor in deciding to uphold Ju dge Victoria A. Roberts’ grant of a pre liminary injunction in Edward Rose & So ns. The panel found that ending discriminat ion against persons with disabilities outweighed even the hundreds of thousands dollars it was going to cost to rebuild the entrances to nineteen apartment buildings while being prohibited from renting all ground floor units. 40 The Court said this is es pecially true because Defendants “knew of the risk” of failing to meet strictly federally and Michigan mandated accessibility codes when it undertook construction. 41 Although the Edward Rose decision involved Congress’ interest in er adicating disability discrimination under the Fair Housing Act Amendments, Congress expressed just as strong a policy in the ADA of eradicating the pervasive discrimination in publ ic accommodations against persons with disabilities due to inaccessible parking and sidewalks.42
40 Edward Rose, 384 F3d at 264. The Edward Rose decisions issued before our Defendants built any of the facilities at issue here. Yet, our Defendants ignor ed those holdings. 41 Id. The fact that Canton Township installed throughou t its district numerous curb ramps and parking spaces designat ed with the blue wheelchair sy mbol shows that it understood that t he three statutes at issue here required the district’s facilities to meet accessibilit y codes. Unfortunately, Canton To wnship failed to assure that its facilities actually met the strict details of the codes, and so Plaintiffs and others like them are unable to use the district. 42 See statement of policy and findings of pervasive discrimination in enacting the ADA. 42 USC § 12101(a) and (b).
19

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D. The Public Interest is Served by Eradicating Discrimination.

The public interest facto r favors Plai ntiffs. “There is a significant public

interest in eliminating discrimination against individuals with disabilities.”43

IV. CONCLUSION

Defendants violated t he relevant accessibility codes hundreds of times

throughout the Distric t, leaving Plaintiffs and others similarly s ituated shut out

and segregated from accessing the District and its facilities. Th ree years hav e

passed, and Defendants have fixed nothing in the retail and theater District. The

Court should immediately order the private Defendants to bring all of the District’s

facilities that were built “by, on behalf o f, or for the use of” Canton Town ship

after January 26, 1992 into compliance with the ADAAG/UFAS. The Court

should also enjoin the T ownship from operating its segregated facilities,

programs and servic es in the district until each is made accessible to the

Lowreys according to law.

Respectfully

submitted,

J. Denis
Heberle 2580

s/ J. Mark Finnegan________ Mark Finnegan (P68050) e M. Heberle (P64145) & Finnegan, PLLC Craig Road

43 Deck, 29 F.Supp2d at 434, citing Thomas by and through Thomas v. Davidson

Academy, 846 F.Supp. 611, 619 (M.D.Tenn1994). “O n the public interest factor,

the Supreme Court has found the F

HA serves an overriding societa l

priority…eradicating housing discrimination serves ‘the pub lic interest’”. Edward

Rose, 384 F.3d at 264

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2:06-cv-13408-NGE-MKM Doc # 106 Filed 08/01/08 Pg 21 of 21 Pg ID 936

Ann 734-302-3233
Attorneys

Arbor, MI 48103 for Plaintiffs Lowrey

Certificate of Service
I hereby certify that on this 1st day of August, 2008 the fo regoing was filed electronically. Parties will rec eive notice of the filing th rough the Cou rt’s electronic filing system and may acce ss the docum ent through the Court’s electronic filing system.

/s/ J. Mark Finnegan____________

21

 
 2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 1 of 10 Pg ID 1573

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWREY, MARILYN LOWREY and FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC.,

Plaintiffs,

CIVIL ACTION NO. 06-13408

v.

DISTRICT JUDGE NANCY G. EDMUNDS

BEZTAK PROPERTIES, INC.;

MAGISTRATE JUDGE VIRGINIA MORGAN

BEZTAK COMPANIES, INC.;

BILTMORE PROPERTIES COMPANIES,

INC.; UPTOWN INVESTORS, LLC;

UPTOWN INVESTORS LLC II;

MONOGRAM HOMES; WARNER,

CANTRELL & PADMOS, INC., and

LOONEY RICKS KISS,

Defendants. ____________________________________/

REPORT AND RECOMMENDATION TO DENY MOTION FOR CONTEMPT AND SANCTIONS

Pending before the court is plaintiff’s Motion for Contempt and Sanctions (#93). For the

reasons discussed in this Report, it is recommended that the motion be denied. The request for

contempt and sanctions is premature and was filed prior to consultation with opposing counsel.

In addition, plaintiffs have not met the standard for imposing contempt or sanctions as there has

been no finding of any underlying liability, and no clear and convincing evidence of disregard of

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the court order. Therefore, it is recommended that the motion for contempt and sanctions be denied. Background
Plaintiff Michael Lowery rents an apartment at the Uptown Apartment Complex in Canton, Michigan, a relatively new project in Canton Township. He is mobility impaired and uses a wheel chair. After he moved into his apartment, which was represented to be “handicapped accessible,” he sued the owners, contractors, managers, architects, and builders of the complex, as well as the governing entity Canton Township1 alleging violations of various disability rights laws. Plaintiff Lowery contends that, with respect to his apartment and the complex as a whole, the defendants violated the ADA, 42 USC §12181 et seq., the Fair Housing Act, 42 USC §3601 et seq., and the Michigan Person with Disabilities Civil rights Act, MCL §37.1301 et seq. Plaintiff’s mother Marilyn Lowery who visits him at the complex was added as an additional plaintiff in June, 2007, by stipulation of the parties. The Fair Housing Center of Southeast Michigan was also added as an intervener-plaintiff. (#52) The Claims
In the second amended complaint (filed 9/7/07), plaintiffs allege claims against these defendants under the FHAA (Count I), Title III of the ADA (Count II), and the Michigan PWECRA (Count III). The Fair Housing Act claims are alleged to be subject to the requirements of 42 U.S.C. §3604(f)(7)(A) and (F)(3)(c). Title III of the ADA, which prohibits
1Canton Township was not a party to this case at the time the Agreement was reached and plaintiff does not seek sanctions against them in this motion.
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discrimination against disabled individuals in any place of public accommodation. 42 U.S.C. § 12182(a); Bird v. Lewis & Clark College, 303 F.3d 1015, 1020 (9th Cir.2002). Title III of the ADA establishes that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Liability is imposed upon “any person who ... operates a place of public accommodation” that discriminates against an individual on the basis of disability. Id. Aside from attorney's fees, the only remedy available to a private litigant under Title III of the ADA is injunctive relief. 42 U.S.C. § 12188(a)(1); see also Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.2002). Defendants deny liability and no determination of liability has been made.
The undersigned was designated as a Special Master to conduct discussions with counsel and the parties in order to facilitate a settlement. Pursuant to those discussions, agreements were eventually reached with respect to both interior modifications of Mr. Lowery’s apartment and exterior modifications to sidewalks, parking lots, and an overall two stage plan for additional exterior modifications. Without admission of or findings of liability, defendants undertook several projects, including changes requested by Mr. Lowery to the interior of his unit. These were all made to his satisfaction. In addition, defendants made exterior modifications to the clubhouse parking, Mr. Lowery’s building parking, sidewalk levels on an accessible route, and other changes, the cost of which was several hundred thousand dollars. (#58). Defendants conducted an extensive survey of all concrete in phase one (the access route for Mr. Lowery) and
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formulated a plan for changes to curb ramps within that portion, as well as a plan for phase Two (the remainder of the complex). Defendants made adjustments or replaced sidewalk slabs at its cost or by requiring subcontractors to redo their work. Defendants assumed the cost for the civil engineering required for the modifications as well as the cost for the work itself.
These completed modifications (retrofits) were directly related to Mr. Lowery’s access within his unit and within the complex. They were completed in the Fall of 2007. As part of the accord reached between the parties, in August, 2007, plaintiffs withdrew the previous Motion for Preliminary Injunction under Title III of the ADA. Subsequently, plaintiffs filed a second amended complaint to which answers were filed by the various defendants. The filings were concluded in January, 2008.
Then several months later, in June 2008, the Lowery plaintiffs filed the instant Motion for Contempt and Sanctions. The Motion was filed without contacting counsel for the defendants and defendants argue that the failure to seek concurrence should be sufficient to dismiss the motion. Plaintiffs’ counsel admits a violation of Local Rule 7.1 in the motion. “Rather than argue with each of the seven defendants and their counsel, plaintiff assumed that defendants to not acquiesce in this Motion.” (#98 at 13-14) At this time, the interests of judicial economy would not be served by dismissing the motion for a procedural violation. Thus, it is not recommended that the motion be dismissed on that ground.2
2However, it is likely that contacting the defendants could have obviated the filing of the motion, at least at the time it was filed. Therefore, with respect to any subsequent request for attorney’s fees by plaintiff’s counsel, this factor should be noted.
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2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 5 of 10 Pg ID 1577
In the motion, the Lowery plaintiffs concede that defendants “made many of the ordered retrofits but in several instances violated the construction standards set by the Order.” (#93, 2) In October, 2007, plaintiff’s counsel told all defense counsel that there were numerous accessibility violations and orally provided some examples3. Counsel for defendants indicated that they would investigate. It is unclear whether defendants made additional corrections. In support of the claim that the construction standards were violated, plaintiffs offer only the affidavit of Marguerite Claire Finnegan, who is the daughter of plaintiff’s counsel and a paralegal with the firm. She offers her measurements made some eight months after completion of the projects and after the winter season4, as well as legal statements and conclusions, and her opinion of the facts in support of the motion. For example, she opines that a particular sidewalk ramp is “visually frightening, and in my opinion, Mike Lowery could easily roll off the north edge of the ramp and plunge into the street.” (Declaration, ¶5(b), (c), and (d). She states that various sidewalk slopes exceed 5% but does not specify by how much. Id. She also states that 11 of 25 curb ramps “have transitions” where the curb ramp is higher than the adjoining surface but does not identify which 11 are non-conforming. (Declaration, ¶ 6) No information is provided to indicate which of these alleged non-conforming ramp areas are materially inconsistent with the order.
3Apparently no written list was provided either then or later, until the filing of the motion. 4Defendants submit that the frost heave experienced throughout the winter results in changes to the concrete levels. No expert testimony is submitted to support that position.
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2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 6 of 10 Pg ID 1578
Defendants argue that these deficiencies and the lack of supporting expertise militate against the grant of relief that plaintiff’s are seeking. Defendants also suggest that an on-site inspection with the Special Master, plaintiffs, their attorney, defendants and their attorneys would be useful in determining whether any of defendant’s retrofits fail to materially comply with the Settlement Order. The court agrees with the first argument, but disagrees with the second. While an on-site inspection with counsel and the magistrate judge may help to identify specific curb ramps and areas of concern, it would not address the important issues of whether the modifications comply with the applicable construction standards, whether differentials are within tolerances in the industry, what additional changes could/should be undertaken, and when and where those changes should be made. This is a determination that needs to be made by the court, but based on evidence from an expert, not on mere observations by paralegal with a ruler or the court’s non-expert observations.
In a similar case with the same plaintiffs’ counsel, Judge Rosen determined that an expert (Special Master) was needed. The court found that not only was vigorous supervision and oversight necessary, so was specialized knowledge. (Center for Community Access and Paralyzed Veterans v. City of Detroit, Case No. 05-73475, # 34, 36) Unlike that case, defendants here agreed to do certain modifications and these were done timely. Yet, some eight or nine months later, plaintiffs allege that they do not meet appropriate construction standards. This is, as Judge Rosen noted, a question which benefits from expertise. Since plaintiffs do not offer that here, and since the affidavit presented does not rise to a level of clear and convincing evidence, the motion should be denied.
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2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 7 of 10 Pg ID 1579
Neither side has presented any testimony or opinion from an expert in this field. Since it is plaintiffs’ motion for contempt and sanctions, plaintiffs have the burden to establish violations and that such violations would meet the criteria for contempt or sanctions. They have failed to meet that burden. Contempt
In International Union, United Mine Workers of America v. Bagwell 512 U.S. 821-822, 2554 (U.S.,1994), the Supreme Court discussed the remedy of contempt. It noted that a criminal contempt fine is punitive and can be imposed only through criminal proceedings, including the right to jury trial. Plaintiffs do not appear to seek criminal contempt.
A contempt fine is considered civil and remedial if it either coerces a defendant into compliance with a court order or compensates the complainant for losses sustained. United States v. Mine Workers, 330 U.S. 258, 303-304. Where a fine is not compensatory, it is civil only if the contemnor has an opportunity to purge, such as with per diem fines and fixed, suspended fines. Most contempt sanctions share punitive and coercive characteristics, and the fundamental question underlying the distinction between civil and criminal contempt is what process is due for the imposition of any particular contempt sanction.5 Id. As stated by the court, greater procedural protections are afforded for sanctions of indirect contempt. Certain indirect contempt is particularly appropriate for imposition through civil proceedings, including contempt
5Direct contempt, such as misbehavior in the courtroom, can be penalized summarily in light of the court's substantial interest in maintaining order and because the need for extensive fact-finding and the likelihood of an erroneous deprivation are reduced. That kind of contempt is not at issue here.
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2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 8 of 10 Pg ID 1580
impeding the court's ability to adjudicate the proceedings before it and contempt involving discrete, readily ascertainable acts. Id. The court recognizes that “Willfulness is not a necessary element of civil contempt,” and, accordingly, “evidence ... regarding ... good faith does not bar the conclusion ... that [the defendant] acted in contempt.” Harley-Davidson, Inc. v. Morris, 19 F.3d 142, 148-49 (3d Cir.1994). But, here, without a determination of liability, a finding of contempt is not warranted.
In this case, plaintiffs allege that the modifications made by defendants pursuant to an agreed upon Order of Partial Settlement and Conditional Release fail to comply with pertinent federal laws and regulations governing use of and access to public facilities. To prove civil contempt the court must find that (1) a valid court order existed, (2) the defendant had knowledge of the order, and (3) the defendant disobeyed the order. Harris v. City of Philadelphia, 47 F.3d 1311 at 1326. The Harris elements must be proven by clear and convincing evidence, and ambiguities must be resolved in favor of the party charged with contempt. See Robin Woods, Inc. v. Woods, 28 F.3d 396, 399 (3d Cir.1994); Harris, 47 F.3d at 1326. The first two elements are not in dispute; however, it should be noted that the changes were by agreement and were not ordered by the court based on a finding of violation of the ADA. Disobedience to the order is in dispute. This is an agreed upon order, one negotiated among the parties and one which the defendants agreed to effectuate. They have expended both time and money in an effort to meet their responsibilities under the order. The court and plaintiffs are aware of the work done by defendants in re-measuring sidewalk slabs, contracting for retrofits, and making other changes in the parking and access routes. Plaintiff must show that
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2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 9 of 10 Pg ID 1581
the defendant disobeyed the order by evidence meeting a clear and convincing standard. This high evidentiary standard is not met by the affidavit proffered by plaintiffs. Aside from the lack of specialized knowledge of the paralegal regarding materials, frost heave, tolerances within the industry, and other circumstances, defendants were not provided an opportunity to test her conclusions and opinion by any deposition or inspection with her prior to the plaintiffs filing of the contempt motion. While failure to seek concurrence is not grounds for dismissing the motion, plaintiffs’ failure to meet and review the claimed insufficiencies in the repair militates against a grant of contempt.
Accordingly, it is recommended that the motion be denied. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.
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2:06-cv-13408-NGE-MKM Doc # 130 Filed 12/31/08 Pg 10 of 10 Pg ID 1582
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised.
S/Virginia M. Morgan Virginia M. Morgan United States Magistrate Judge Dated: December 31, 2008
PROOF OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record via the Court’s ECF System and/or U. S. Mail on December 31, 2008.
s/Jane Johnson Case Manager to Magistrate Judge Virginia M. Morgan
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 2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 1 of 15 Pg ID 1589

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWREY, MARILYN LOWREY and FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC.,

Plaintiffs,

CIVIL ACTION NO. 06-13408

v.

DISTRICT JUDGE NANCY G. EDMUNDS

BEZTAK PROPERTIES, INC.;

MAGISTRATE JUDGE VIRGINIA MORGAN

BEZTAK COMPANIES, INC.;

BILTMORE PROPERTIES COMPANIES,

INC.; UPTOWN INVESTORS, LLC;

UPTOWN INVESTORS LLC II;

MONOGRAM HOMES; WARNER,

CANTRELL & PADMOS, INC., and

LOONEY RICKS KISS,

Defendants. ____________________________________/

REPORT AND RECOMMENDATION TO DENY MOTION FOR PRELIMINARY INJUNCTION

Pending before the court is plaintiffs’ Motion for Preliminary Injunction (#106).

Plaintiffs seek a Preliminary Injunction against Canton Township for violations of Title II of the

ADA and under Section 504 of the Rehabilitation Act. They seek a mandatory injunction

ordering Canton Township to bring these and future services, programs, and activities into

compliance, and to award them compensatory damages and attorney fees and costs. A hearing

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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 2 of 15 Pg ID 1590
was held before the magistrate judge.1 For the reasons discussed in this Report, it is recommended that the motion be denied. The request for preliminary injunction is overly broad and not supported by a showing that the relevant factors weigh heavily and compellingly in plaintiffs’ favor. Therefore, it is recommended that the motion for preliminary injunction be denied. Background
Plaintiff Michael Lowery rents an apartment at the Uptown Apartment Complex in Canton, Michigan, a relatively new project in Canton Township. He is mobility impaired and uses a wheelchair. After he moved into his apartment, which was represented to be “handicapped accessible,” he sued the owners, contractors, managers, architects, and builders of the complex, as well as the governing entity Canton Township alleging violations of various disability rights laws. Plaintiff Lowery contends that, with respect to his apartment and the complex as a whole, the defendants violated the ADA, 42 U.S.C. § 12181 et seq., the Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Michigan Person with Disabilities Civil Rights Act, M.C.L. §37.1301 et seq. Plaintiff’s mother Marilyn Lowery who visits him at the complex was added as an additional plaintiff in June, 2007, by stipulation of the parties. The Fair Housing Center of Southeast Michigan was also added as an intervener-plaintiff. (#52)
1The court notes that this hearing was singularly unhelpful. Plaintiffs did not present testimony bearing on the four factors relevant to the grant of a preliminary injunction. While testimony from Mr. Casari was useful to the parties in the context of discovery, matters relevant to the court’s determination of the motion were only tangentially addressed. Live discovery depositions offered at a hearing do not take the place of a properly presented evidentiary basis for the motion.
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The Claims In the second amended complaint in count four, plaintiffs raise claims against Canton
Township. Plaintiff’s allege that Canton Township is liable for violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act and under Michigan state law. Title II of the ADA provides that no qualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity. 42 U.S.C. § 12132. Plaintiffs contend that “Canton Township’s sidewalks are a public ‘service, program, or activity’ subject to the Act.” Plaintiffs allege that the curb ramps, intersections, and sidewalks violate the ADA because they have cross slopes exceeding 2 percent and running slopes exceeding 8.33 percent. (¶52-54) Plaintiffs also contend that the actions of Canton Township constitute “intentional discrimination,” entitling plaintiffs to a preliminary injunction. (¶55) In addition, plaintiffs argue that Canton Township violated 29 U.S.C. § 794, the Rehabilitation Act by it’s failure to construct, alter, or maintain accessible services, programs, and activities (the aforementioned sidewalks, curb ramps, and intersections), also entitling them to the same relief. (¶58) Relief Requested
Plaintiffs seek a preliminary injunction enjoining Canton Township “to immediately cease discriminating against plaintiffs.” Plaintiff also ask the court to order Canton Township immediately to:
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 4 of 15 Pg ID 1592
(A) Bring into compliance with the ADAAG or UFAS any of the Retail and Theater District’s (the District’s) sidewalks, curb ramps, parking and any other facilities that were altered or constructed after January 26, 1992. [A map is attached to the motion]
(B) Meet with the Lowery Plaintiffs to arrange methods successfully to make accessible by law to them any of the District’s sidewalks, curb ramps, parking and any other facilities that were altered or constructed before January 26, 1992.
(C) Construct on the side containing the Canton Farmer’s Market legally sufficient ADAAG/UFAS-compliant parking spaces on ADAAG/UFAS-compliant accessible routes connecting into the barn, the Bartlett-Travis House, to accessible porta johns, and to any booths or other conveyances that may operate at the site during farmer market days or any other days. Cease and desist from operating the Canton Farmer’s Market until this is achieved, or until a court or Plaintiff-approved temporary accessible route (e.g., metal plates or wooden flooring, etc.) from accessible parking to each of these facilities is installed. [emphasis added]
(D) Cease and desist from conducting the theater district’s “Historical Hike” until constructing the above described parking spaces, or until a Court or Plaintiff-approved temporary accessible route, as described above, is installed.
(E) Cease and desist booking new events into the Village Theater, and from renewing recurring events until constructing legally sufficient compliant parking spaces and accessible routes.
(F) Cease and desist from providing valet parking for events at the Village Theater until defendant complies with the ADAAG at sections 4.1.2(5) and 4.6.6.
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 5 of 15 Pg ID 1593
(G) Complete fully each of these accessible upgrades no late than October 31, 20082 with any court or Plaintiff approved temporary measures occurring within two weeks from entry of the injunction; and to
(H) Meet and otherwise communicate with the Lowreys and/or their Counsel as often and as long as it takes to achieve these items within the ordered time frames.
Plaintiffs indicated that some of their requests to cease and desist were withdrawn. Standard of Review
The granting of a preliminary injunction is committed to the sound discretion of the trial court. United States v. Any And All Radio Station Transmission Equip., 204 F.3d 658, 665 (6th Cir. 2000). Under Federal Rule of Civil Procedure 65, injunctive relief is an extraordinary remedy whose purpose generally is to preserve the status quo. Here, the plaintiffs seek an order altering the status quo, imposing mandatory duties on a governmental entity including construction of facilities, cancellation of community events, and approval of defendants’ future actions contingent on their determination. From a procedural basis, the motion is premature. Minimal discovery has been conducted and no determination by a court has been made regarding defendant’s liability or plaintiffs’ entitlement to relief. Turning to the merits of the motion, plaintiffs have not met their burden required for the court to grant the relief.
To sustain its burden, the moving party must demonstrate its right to the extraordinary remedy of injunctive relief by clear and convincing evidence. Patio Enclosures, Inc. v. Herbst, 39 F.Appx. 964, 969 (6th Cir. 2002), Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th
2The motion was filed August 1, 2008. - 5 -

2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 6 of 15 Pg ID 1594
Cir.1968); Deck v. City of Toledo, 29 F.Supp.2d 431, 433 (N.D. Ohio 1998). The court’s inquiry is directed to four factors in addressing a motion for a preliminary injunction. As stated by the Sixth Circuit: “When ruling on a motion for [injunctive relief], a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.2004) (quoting Blue Cross & Blue Shield Mut. of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir.1997) (citations omitted)). See also Edward Rose & Sons, 384 F.3d at 261 (quoting Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994)). No single factor is determinative. Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001).
A district court should not consider the foregoing factors as prerequisites to be met; rather, these factors are to be balanced in a weighing of the equities involved. Edward Rose & Sons, 384 F.3d at 261. None of these four factors is a prerequisite to the issuance of a preliminary injunction; rather the Court must balance all four factors. Neveux v. Webcraft Tech., Inc., 921 F.Supp. 1568, 1570-71 (E.D. Mich.1996)(citing Performance Unlimited v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir.1995)).
Since generally the primary purpose of a preliminary injunction is to maintain the status quo until a final decision on the merits can be reached, Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), in cases where the plaintiff seeks a preliminary
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 7 of 15 Pg ID 1595
injunction not to maintain the status quo but rather to alter it, the plaintiff must “satisfy an even heavier burden of showing that the four factors listed above weigh heavily and compellingly in [his or her] favor.” SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991), cited with approval in Barber ex rel. Barber v. Dearborn Public Schools, 286 F.Supp.2d 847, 851 -852 (E.D. Mich. 2003) “Like all equitable remedies, a preliminary injunction will not issue unless the right to relief is clear.” Barber, 286 F.Supp. at 852. In determining whether to issue a preliminary injunction, the Court is not required to resolve “‘doubtful questions of law or disputed questions of fact.’” Cincinnati Sub-Zero Prod. v. Augustine Med., Inc., 800 F.Supp. 1549, 1557 (S.D. Ohio 1992). Id. Analysis/ Preliminary Injunction Standard
(1) Whether the movant has a strong likelihood of success on the merits. The first factor this Court must weigh in determining whether preliminary injunctive relief is warranted is whether plaintiffs have established a substantial likelihood or probability of success on the merits. To meet this burden, the plaintiff's evidence must more than outweigh the evidence opposed to it. Draudt v. Wooster City Sch. Dist., 246 F.Supp.2d 820, 825 (6th Cir.2003). “The plaintiff's evidence must persuade the court that [his] claims are highly probable ... or create a firm belief or conviction in the facts the plaintiff seeks to establish.” Id. (citations omitted). Having considered the evidence and arguments presented in this case, the Court concludes that he has failed to demonstrate a sufficient likelihood of prevailing on the merits to support the requested injunctive relief.
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 8 of 15 Pg ID 1596
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To make out a prima facie case under Title II of the ADA, a plaintiff must establish that “(1) he has a disability; (2) he is otherwise qualified; and (3) he is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely because of her disability.” Jones v. City of Monroe, 341 F.3d 474, 477 (6th Cir.2003).
Mr. Lowery and Mrs. Lowery argue that the defendant Township engaged in intentional discrimination against them in violation of Title II of the ADA through its failure to install proper curb cuts and sidewalks at intersections. Courts in this circuit and elsewhere have found that such actions as the failure to install handicapped-accessible sidewalks and to train its employees about the ADA affects all disabled persons, not just a particular plaintiff. Thus, the individual plaintiffs cannot demonstrate that Canton Township intentionally discriminated against them specifically by failing to undertake these actions. “[A]cts and omissions which have a disparate impact on disabled persons in general [are] not specific acts of intentional discrimination against [the plaintiff] in particular.” Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997), see also Dillery v. City of Sandusky, 398 F.3d 562, 567 -569 (6th Cir. 2005).
The affidavit of counsel’s daughter, a paralegal with counsel’s firm, who took various measurements and photographs is not helpful in determining which areas are non-conforming or
- 8 -

2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 9 of 15 Pg ID 1597
in assessing the level of non-conformity.3 As with her affidavit offered in support of the Motion for Contempt, the subject of an earlier Report, the slopes of various portions are generally described but no particularity is provided. The information regarding her observation of there being full parking lots at various events does not seem material to the issuance of the injunction.
Plaintiff provided an affidavit, chart and Field Notes by David Esau which indicate that particular curb ramps, sidewalks, and running slopes do not meet federal accessibility requirements. Plaintiffs did not proffer Mr. Esau’s testimony at the hearing. Plaintiffs did attempt to call Township Supervisor Tom Yack, who had been subpoenaed but did not appear. He was retiring and did not appear.4
The Township in its response to the motion attached the affidavit of Lawrence Ancypa, an employee of the firm of Hubbell, Roth & Clark, Inc. (HRC), Consulting Engineers. (#118-3) His qualifications and background are set forth in that document. He has 42 years of experience. As he explains, there is an International Building Code adopted by Michigan and approved by the U.S. Department of Justice as being compliant with ADAAG. From his review of the plaintiffs’ materials, he believes that the plaintiffs are attempting to extend the applicability of the ADAAG and UFAS to areas which are beyond their coverage. He also notes that many of the items listed in the Complaint have been or are being considered by the Township and that the
3She did not testify although the court recalls that she was present in the courtroom or chambers at the time of the hearing.
4This unilateral determination by Canton Township is not supported by any pre-trial request to the court because the subpoena was not served until the day before the hearing. The township did offer the testimony of Mr. Tom Casari, an engineer who was familiar with the circumstances and was cross examined by both sides. See separate order.
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 10 of 15 Pg ID 1598
Township had previously budgeted and planned for these, with some being undertaken even before the filing of the lawsuit. (¶ 6, 7, 8) The Township has leveled accessible parking spaces, regraded the main drive to the barn, provided an accessible alternative path to a wheelchair accessible portable toilet, and undertaken other improvements. (¶ 8,9) He also challenges some of the measurements taken by the paralegal and/or her interpretation that these evidence a violation or what each means, and notes that the measurements taken by his office differ from those of the paralegal.
In addition, the Township points out that it simply does not own the property on which the majority of plaintiffs’ alleged violations exist. It submits that the majority of plaintiffs violations occur either within the Wayne County right of way, or on private property.5 The Township contends that the public right of way issue is critical because ADAAG contains no regulations covering public rights of way and because Michigan townships do not have jurisdiction over public roads. While plaintiffs dispute some of these facts, they have not made a strong showing that they would prevail.
It is possible that after further discovery some of plaintiffs’ positions may be sustained. It also appears that the Township has undertaken a series of projects to modify areas of which plaintiffs complain. However, plaintiffs have in no way established by a standard of clear and convincing that there is a strong likelihood of success on the merits. In addition, the broad and
5Plaintiffs dispute the Township’s legal position and argue that the Township can fix/repair/remediate these facilities.
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 11 of 15 Pg ID 1599
far-reaching requests for relief are not justified by the evidence presented. The court finds that plaintiffs have not met their burden on the first factor.
(2) Whether the movant would suffer irreparable injury without the injunction. At this point, it is not shown that plaintiff would suffer irreparable injury. The court asked each side to submit proposed findings of fact and conclusions of law. Plaintiffs’ Post Hearing statement does not articulate the four factors and does not discuss any facts which would establish irreparable injury. In the motion, plaintiffs state that “Because each statute [ADAAG and UFAS] expressly authorizes preliminary injunctive relief, the Court should presume irreparable harm.” The plaintiffs cite as support the district court’s decision in United States v. Edward Rose & Sons, 246 F. Supp.2d 744 (E.D. Mich. 2003)(Roberts, J). It should be noted that that case was brought by the Department of Justice, not a private plaintiff against a private developer and dealt with a building under construction. Upon review, the Sixth Circuit stated that as to the lower court’s determination with respect to presumption of irreparable injury: “We find any error by the district court of no consequence.” 384 F.3d 258, 264 (6th Cir. 2004). That case presented the narrow issue of whether the “front door was the ‘primary entrance’ used by public and guests and as such, it was a ‘public’ or ‘common area’ that the FHA mandates be accessible.” Id. at 261. The Sixth Circuit continued:
“We need not decide whether CSX [CSX Transportation v. Tennessee Sate Board of Equalization, 964 F.2d 548 (6th Cir. 1992)] controls or whether a statute must mandate another showing that displaces the traditional equitable factors because we find it immaterial to the disposition of this case. We balance the equitable factors, and none is a prerequisite. Washington v. Reno, 35 F.3d 1093, 1099. The other equitable factors, particularly the
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 12 of 15 Pg ID 1600
strong likelihood of success on the merits, outweigh any lack of irreparable harm, with or without any presumption.” 384 F.3d at 264. The court balanced the interests in favor of the government, found a strong likelihood of success on the merits, and affirmed the injunction. Unlike that case, plaintiffs here sue a governmental entity and seek a host of remedial actions without any showing of irreparable injury or strong likelihood of success on the merits. (3) Whether issuance of the injunction would cause substantial harm to others Plaintiffs contend that the “balance of harm tips decidedly towards plaintiffs.” Plaintiffs do not discuss the harm to others. Plaintiffs seek to stop a variety of events benefitting the community as a whole, to stop valet parking (which would assist other mobility impaired community members) and impose an unknown amount of costs and taxes on a municipality not yet shown to be liable or even responsible for the areas of concern. This factor does not merit injunctive relief. (4) Whether the public interest would be served by issuance of the injunction. In the two sentence argument in the motion, plaintiffs contend that this factor also favors them. They cite to Judge Katz’s 1998 opinion in Deck v. City of Toledo, 29 F. Supp.2d 431,434 (N.D. OH 1998). Plaintiffs there were represented by the same counsel as here. That preliminary injunction was limited to an order requiring defendant City to bring 13 listed ramps into compliance with the ADA. Deck v. City of Toledo, 76 F. Supp 2d 816, 817 (N.D. OH 1999). In a later decision in the same case, Judge Katz declined to enter an injunction seeking
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 13 of 15 Pg ID 1601
broad based relief similar in nature to that requested here. He addressed the plaintiffs’ request
on a motion for summary judgment. Judge Katz described the request as follows:
The final issue before the Court on Plaintiffs' motion for summary judgment is whether it is appropriate to grant the relief requested by Plaintiffs on summary judgment. Plaintiffs have requested remedies that include virtually the entire known universe of types of permanent injunctive relief. They have requested a reparative injunction ordering the City to bring all curb ramps that have been installed since the effective date of ADA into compliance with the ADA. They have requested a preventive injunction ordering the City to refrain from any further violations of the ADA. They have requested a prophylactic injunction ordering the City to establish and implement an effective plan to ensure compliance with the ADA. And they have requested a number of reporting and inspection requirements that are reminiscent of structural injunctions: specifically, they want the City to (1) identify all intersections where sidewalks have been reconstructed or streets resurfaced since 1992, (2) inspect and report to Plaintiffs the precise location of all ramps that fail to conform to the ADAAG or where ramps are absent, and (3) submit periodic reports to Plaintiffs detailing progress in identifying and correcting the defective ramps.
It is clear that the entry of a mandatory injunction requiring the City to bring itself into compliance with the ADA will be proper at some point in this case. The Court finds that issuance of such an injunction at this juncture, on a motion for summary judgment, would be premature, however. Further discovery is needed to identify all intersections and streets where sidewalks have been reconstructed or streets resurfaced since May 6, 1996, and the extent to which curb ramps installed at those locations comply with the ADA. Further evidence must be taken on the extent to which the City has adopted policies and procedures aimed at ensuring compliance with the ADA. Further evidence must be taken to determine a schedule for replacing existing ramps or
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 14 of 15 Pg ID 1602
installing ramps where none exist. Therefore, no injunction will be entered at this time.6 76 F.Supp.2d 816, 824 (N.D. OH 1999). Thus, it appears that at the present stage of the case, the injunctive relief requested by plaintiffs is not warranted. Conclusion Plaintiff has failed to meet the standard under Fed.R.Civ.P. 65. Accordingly, it is recommended that the motion for preliminary injunction be denied. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.
6It does not appear from a review of the docket, however, that a mandatory injunction ever issued.
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2:06-cv-13408-NGE-MKM Doc # 132 Filed 01/08/09 Pg 15 of 15 Pg ID 1603
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised.
s/Virginia M. Morgan Virginia M. Morgan United States Magistrate Judge Dated: January 8, 2009
PROOF OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record via the Court’s ECF System and/or U. S. Mail on January 8, 2009.
s/Jane Johnson Case Manager to Magistrate Judge Virginia M. Morgan
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWREY, ET AL, Plaintiffs,
v. BEZTAK PROPERTIES, ET AL.,
Defendants. /

Case No. 06-13408 Honorable Nancy G. Edmunds

ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION TO DENY PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION [132] AND CANCELLING HEARING ON OBJECTIONS PREVIOUSLY SCHEDULED FOR FEBRUARY 19, 2009

This matter comes before the Court on Plainftfis’ Objections to the Magistrate Judge’s Report and Recommendation to deny Plaintiffs’motion for a preliminary injunction against Defendant Canton To wnship because, upon balancing t he required factors, it was determined that a preliminary injunction that would change the status quo was not warranted. Because the Court finds the facts and legal arguments adequately presented and that the decision process would not be significantly aidedby oral argument, the hearing on Plaintiffs’ objections, scheduled for February 19, 2009, is hereby CANCELLED. E.D. Mich. L. R. 7.1(e)(2).
Being fully advised in the premises and haivng reviewed the record, the pleadings, the Report and Recommendation and Plaintiffs’ objections, the CoutrACCEPTS AND ADOPTS the Magistrate Judge’s Report and Rec ommendation and overrules each of Plaintiffs’ objections. Plaintiffs’ motion for preliminary injunction is DENIED.

I. Background
A. Plaintiffs’ Second Amended Complaint
Plaintiffs Michael and Marilyn Lowry’s Second Amended Complaint alleges the
following facts as to Defendant Canton Township:
The Uptown Apartments sit at the in tersection of Cherry Hill Road with Ridge Road in Canton Township. When the Plani tiffs ... leave the Uptown Apartments site, the first sidewalks they encounter run adjacent to those two roads. Upon information and belief, these sidewalks and their curb ramps were built “by, on behalf of, or for the use of” Canton Township. Canton Township failed to ensure that these sidewalks were built in stri ct conformance with the ADAAG or the UFAS, because t he sidewalks suffer from cr oss slopes in excess of 2% and running slopes in excess of 5% and even in excess of 8.33%. These sidewalks and curb ramps are not accessible to and readily usable to the Plaintiffs ..., and must be made compliant so that t he Lowery’s can access t he sidewalks and businesses and facilities adjacent thereto. Upon information and belief, these violations are part of an overarching pa ttern and practice of discrimination by Canton Township by failing to ensure that its sidewalks and curb ramps meet accessibility standards.
(2d Am. Compl. ¶ 31 (emphasis added).)
The only claims asserted against Canton Townshipare set forth in Count 4 of Plaintiffs
Second Amended Complaint. These include alleg ed violations of (1) Title II of the
Americans with Disabilities Ac t (“ADA”), 42 U.S.C. § 12132; 1 (2) Section 504 of the
1This subsection provides that:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such dsi ability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132.
2

Rehabilitation Act of 1973, 29 U.S.C. § 794;2 and (3) Michigan’s Handicapper’s Civil Rights Act, Mich. Comp. Laws §§ 37.1301-02.
As to each of the alleged statutory violat ions, Plaintiffs a llege that (1) “Canton Township has resurfaced or otherwise altered the intersections and sidewalks” described in Plaintiffs’ complaint, “but failed to install proper sidewalks and curb cuts” (¶ 53); and (2) “Canton Township has failed to construct and to maintain its sidewalks and curb ramps in a form that is ‘accessible to and readily usable’ by Plaintiffs,” including but not limited to, “the sidewalks adjacent to Uptown Apartments, and to Cherry Hill and Ridge Roads,” that “have cross slopes exceeding 2% and running slopes exceeding 8.33%” (¶¶ 54, 57, 58).
Plaintiffs further allege that, by these actions, Canton Township “intentionally discriminated against Plaintiffs due to their disab ilities.” (2d Am. Compl. ¶¶ 55, 57, 58 (emphasis added).) As a result of this intentional discrimination, Plaintiffs allege that they are “entitled to injunctive relief order ing Canton Township to br ing these and future services, programs or activities int o complaince, compensatory damages and attorneys fees and costs. (Id.)
In addition to their requests for compensatory damages and attorney fees and costs, Plaintiffs add the following BROAD relief with respect to Canton Township:
2That subsection provides that: No otherwise qualified individual with a disability in the United States, as
defined in section 705(2) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any progr am or activity conducted by any Executive agency or by the United States Postal Service. . . . 29 U.S.C. § 794(a).
3

7. For Canton Township, order the Township to correct all defective sidewalks and curb ram ps, and t o ensure in the fu ture that all resurfacting or other alterations result in si dewalks and curb ramps that are readily usable by and accessible to Plaintiffs; Ensure that a plan is in placeto correct all sidewalks and curb ramps that violate the ADAAG and the UFAS. (Id. at Prayer for Relief, ¶ 7 (emphasis added).) B. Report and Recommendation The Magistrate Judge observed that Plaintiffs seek an orderthat alters the status quo and imposes mandatory duties on a governmental entity that are broad and wide-ranging. (R&R at 5.) The Magis trate Judge advised against granting the requested preliminary injunction because (1) from a procedural basis, the motion was premature because additional discovery was required before the Court could make a determination as to Canton Township’s liability or Pal intiffs’ entitlement to relief;and (2) on the merits, Plaintiffs had not met their burden in showing that the requested preliminary injunction should be granted. (R&R at 5.) II. Analysis A. Report and Recommendation The Magistrate Judge first observed tha t, when ruling on a motion for preliminary injunction, the court considers and balances the following four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable injury without the injunction; (3) whether issuance of the injunction will cause substantial harm to others; and (4) whether the public interest will be served if the injunction is issued.
4

Chabad of S. Ohio & Cong. Lubav itch v. City of Cincinnati , 363 F.3d 427, 432 (6th Cir. 2004). The m oving party must demonstrate it s right to the extraordinary remedy of injunctive relief by clear and convincing evidence. Deck v. City of Toledo, 29 F. Supp.2d 431, 433 (N.D. Ohio 1998) (citingGarlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968)). (R&R at 6-7.)
Next, the Magistrate Judge considered these four factors. As to the first, t he Magistrate Judge conc luded that Plaintiffs were not likely to succeed on the merits of their claims because Plaintiffs failed to establish intentional discrimination under Title II of the ADA. See Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir. 2005) (observing that “acts and omissions which have a disparate impact on disabled persons in general [are] not specificacts of intentional discrimination against [the plaintiff] in particular.” (internal quotes and citation omitted)). Relevant to Plaintiffs’ objections to theR&R, the Magistrate Judge properly observed that the affidavit of counsel’s daughter andother evidence concerning sidewalks and other allegedly “non-conforming” structures do not advance Plaintiffs’ claim of intentional discrimination. Moreover, as noted by t he Magistrate Judge , the parties competing affidavits and other evidence dem onstrate that disputed issues of material fact exist whether the challenged structures are non-conforming, what standards apply, what is the best method to measure thesestructures for compliance, whether Canton Township owns the property on which the majority of Plaintiffs’ alleged violations exist (i.e., are on rights of way under control of Wayne County or are on private property), whether the ADAAG contains regulations covering public rights of way, and whether Michigan townships have jurisdiction over public roads. The Magist rate Judge properly concluded that, although
5

Plaintiffs present evidence disputing these facts, they have not made a sufficient showing that they will prevail on these issues. (R&R at 9-10.)
As to the “irreparable harm” factor, the Magistrate Judge properly rejected Plaintiffs’ argument that “irreparable harm” can be presumed because the authority it cited did not support that position. (R&R at 11-12.) Moreover, Plaintiffs failed to discuss any facts that would establish irreparable injury. (Id.) Unlike United States v. Edward Rose & Sons, Inc., 384 F.3d 258 (6th Cir. 2004), this is not a casebrought by the Justice Department against a private dev eloper alleging violations in connection with a building that was under construction. Here, Plaintiffs sue a governmental entity, seek a host of remedial acts, and fail to show irreparable harm or a likelihood of success on the merits. (R&R at 11-12.)
As to the third factor, the Magistrate Judge properly observed that the remedies Plaintiffs seek would have a negative impact on a variety of events that benefit the larger community and would impose an unknown amountof costs and taxes on a municipality not yet shown to be liable or even responsible for the areas of concern. (R&R 12.) Thus, this factor also weighed against granting the injunctive relief Plaintiffs requested.
As to the final -- public interest -- facto, rthe Magistrate Judge considered Judge Katz’s decision in a similar ADA m atter and properly concluded that the same result was warranted here. In Deck v. City of Toledo , 76 F. Supp.2d 816, 824 (N.D. Ohio 19 99), Judge Katz denied the plaintiffs’ motion for summary judgment, finding the requested relief in the form of a permanent inuj nction to be too broad and premature, as discovery was still necessary on material issues of disputed fact. (R&R at 13-14).
B. Plaintiffs’ Objections
6

Plaintiffs first object that ht e R&R fails to mention Plaintfifs’ sworn declaration that they wish to patronize Canton Township’s retail and theater district but cannot because there is no parking space, the sidewakl s are too steep, and there are large “lips” at every corner.
They acknowledge that Canton Township argues that the challenged sidewalks, parking spaces, and curbs are inside public rights of way that are not governed by regulations and over which Canton Township has no jurisdiction.
Plaintiffs’ objection is overruled. The R&R acknowledges Plaintiffs’ complaints and observes that disputed issues of material fact exist in this matter.
Contrary to Plaintiffs’ second objec tion, the R&R did not agree with Canton Township’s position that the ADAAG does not apply to public rights of way. Accordingly, this objection is also overruled.
In their third and fourth objections, Plaintiffs ignore the Sixth Circuit decision that the Magistrate Judge relied on to conclude that Planitiffs had not show that they could succeed on the merits of their claims of inet ntional discrimination under the ADA. See Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir. 2005) (observing that “acts and omissions which have a disparate impact on disabled persons in genearl [are] not specific acts of intentional discrimination against [the plaintiff] in particular.” (internal quotes and citation omitted)).
In light of that decision, there was no need for the R&R to discuss CFRs. Plaintiffs also cite num erous cases but fail to show how these advance their intentional discrimination claims. Accordingly, these objections are also overruled.
Plaintiffs’ fifth objection similarly ignores the Dillery case and complains that the Magistrate Judge failed to decide the dis puted issue whether Canton Township was responsible for violations on facilities contained in Wayne County rights of way. Like the
7

above two objections, in light of Dillery, it would be inappropriate for the court to address that disputed issue at this juncture of the litigation. Accordingly, Plaintiffs’ fifth objection is overruled.
In their sixth and seventh objections, Plaintfifs argue that irreparable injury should be found here because irreparable injury was found byother district courts in other decisions. Plaintiffs fail, however, to discuss whether the facts and claims presented in those other decisions are substantially similar to those presented here. Plaintiffs’ arguments lack any discussion of theDillery case and the claims asserted intheir Second Amended Complaint. They also fail to address the Magistrate Judges’ conclusion that a preliminary injunction at this stage of the litigaiton would be premature. Accordingyl , these objections are overruled.
In their eighth and final objection, Plaintiffs argue that this Court should find that the balance of harms and the public interest favo r granting an injunction that orders Canton Township to immediately perform an array of improvements. This Court ACCEPTS AND ADOPTS the R&R’s conclusion that more discovery is required to answer the numerous disputed material issues offact that will determine whetherPlaintiffs succeed on the claims asserted in the Second Amended Complaint and thus overrules Plaintiffs’ objection. III. Conclusion
For the above-stated reasons, this Cour t ACCEPTS and ADOPTS the Magistrate Judge’s Report and Recommendation to deny Plaintiffs’ motion for preliminary injunction
8

and OVERRULES each of Plaintiffs’objections. Plaintiffs’ motion for preliminary injunction is denied.
s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge Dated: February 3, 2009 I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on February 3, 2009, by electronic and/or ordinary mail. s/Carol A. Hemeyer Case Manager
9

 
 2:06-cv-13408-NGE-MKM Doc # 164 Filed 05/04/09 Pg 1 of 24 Pg ID 1940

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

MICHAEL LOWREY; and,

)

MARILYN LOWREY

)

Plaintiffs

)

)

vs.

)

)

BEZTAK PROPERTIES, INC.;

)

BEZTAK COMPANIES, INC.;

)

UPTOWN INVESTORS L.L.C.;

)

MONOGRAM HOMES;

)

WARNER, CANTRELL, & PADMOS, INC.; )

LOONEY, RICKS, KISS, ARCHITECTS

)

WAYNE COUNTY DEPARTMENT OF

)

PUBLIC SERVICES, (WCDPS, through

JAMES A. JACKSON, in his official capacity )

As Director WCDPS; and LORENZO BLOUNT,)

in his official capacity as Wayne County

)

Director of Roads,

)

)

Defendants

.

)

Case No.: 06-13408 NGE-MKM
Honorable NANCY EDMUNDS
Magistrate Judge MONA MAZOUB
JURY DEMANDED

THIRD AMENDED COMPLAINT JURISDICTION
1. This action is brought to enforce the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fa ir Housing Amendmen ts Act of 1988 ("FHAA"), 42 U.S.C. §§ 3601-3619; Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181- 12189; and the Michigan Pe rsons With Disabilities Civil Rights Act (“PWDCRA”), MCL Section 37.1301 et seq. 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345, 42 U.S.C. § 3614(a), and 42 U.S.C. § 12188(b)(1)(B). The Cour t has supplemental jurisdiction over the Michi gan law claim because the claim arises

2:06-cv-13408-NGE-MKM Doc # 164 Filed 05/04/09 Pg 2 of 24 Pg ID 1941
out of the same factual situation as the Federal claims. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the subj ect apartment complex and its adj acent facilities are located in Canton T ownship, Michigan, and each Defendant resides in or does business in the Eastern District of Michigan.
PARTIES 3. This Third Amended Complaint re flects that now former Defendant s BILTMORE PROPERTIES COMPANIES and the CH ARTER TOWNSHIP OF CANTON, MICHIGAN, have each paid m oney and settled with the Plaintiffs Lowrey and have each been di smissed with prejudice. In addition, this T hird Amended Complaint adds as a party-Def endant WAYNE COUNTY, through its Director of Public Services and its Director of Roads.
PLAINTIFFS: 4. Plaintiff Michael Lowery is a U.S. citizen, was a resident of the Uptown Apartments, and lives in Canton Towns hip, Michigan. He has a mobility impairment and requires a wheelchair for ambulation. He has attempted wit hout success to use Canton Township’s theater and retail district, and intends to do so when the district is brought into compli ance with the FHAA, AD A, Section 504 of the Rehabilitation Act, and the PWDCRA. He is a person with a d isability as that term is defined by the each of the laws at issue in this lawsuit. 5. Plaintiff Marilyn Lower y is a U.S. citizen and the mother of Plaintiff Mike Lowery. She frequently visited Uptown Ap artments to visit and to care for her son, and needed to access his apartment and its adjacent parking, as well as the rental offices and other common use areas of Uptown Apartments. She needs
2

2:06-cv-13408-NGE-MKM Doc # 164 Filed 05/04/09 Pg 3 of 24 Pg ID 1942
accessible parking on accessible routes to utilize the retail and theater district, and intends to patronize the district when it is made accessible ac cording to law. She has mobility impairment a nd for at least ten y ears has been issu ed a disability placard by t he State of Michigan. She is a person with a d isability as that term is defined by the FHAA, the ADA and the PWDCRA.
THE CORPORATE DEFENDANTS 6. Defendants Uptown Investors LLC, Beztak Properties, Inc., Beztak Companies, Inc., and Monogram Homes ar e each corporations organized under the laws of Michigan that conduc t business in the Eastern District of Michigan . Each engaged in an over-arching pattern a nd practice of discr imination against plaintiffs by hiring and paying private contractors to design and/or construct several of the inaccessible facilities challenged in this lawsuit. 7. Defendants Warner, Cantrell, & Padmos, Inc., and Looney, Ric ks, Kiss designed, and/or hired private contractors to design or construct several of the inaccessible facilities challenged in this lawsuit.
THE GOVERNMENTAL DEFENDANTS 8. Defendants Wayne County Department of Public Services is a “public entity” as that term is def ined under 42 U.S.C. § 121 31(1); 28 C.F.R. § 35.104. James A. Jackson, in his offi cial capacity as Director of Wayne County’s DPS, and Lorenzo Blount in his official capac ity as Director of Roads for Wayne County’s DPS hav e the author ity to order changes in the policies and to the facilities constructed on beha lf of def endant Wayne County . Many of the inaccessible facilities challenged in this lawsuit exist inside of Wayne County’s
3

2:06-cv-13408-NGE-MKM Doc # 164 Filed 05/04/09 Pg 4 of 24 Pg ID 1943
ROW along Cherry Hill Road and Nort h and Sout h Ridge Ro ads, and were designed and built pursuant to construction permits issued by Wayne County. The County engaged in an over-arching patte rn and practice of discrimination against plaintiffs when Wayne County then inspected and acc epted the final facilities as built under these permits. Thes e inaccessible facilities were built by, on behalf of, or for the use of Wayne C ounty. This Defendant is sued for injunctive relief, attorneys’ fees and costs—but not for damages—under the ADA and under Section 504 Rehabilitation Act. Th is Defendant is sued for injunctiv e relief, attorneys fees, costs—and for monetary damages—under Michigan’s PWDCRA. For convenience, this combination of defendants shall be referred t o in this Complaint as defendant “Wayne County”.
FACTS Defendants’ Theater and Retail District—the “District”. 9. In 1974, Congress passed the R ehabilitation Act. In 1976, Michiga n passed its PWDCRA, in 1988, Congress passed t he FHAA, and in 1990 Congress passed Title II and Title III of the ADA. Each of t hese laws required defendants to meet strictly specific, detaile d, accessibility codes when building ground floor apartments or public use sidewalks, parking lots and vehicular ways. 10. More than ten years later, begi nning in y ear 2004 and continuing to present, each of the Defendants designed and/or constructed their “Cherry Hill Village Center Theater and Retail District—the “District”. A digital map as well as an aerial map of the district is attac hed hereto as Exhibits 1 and 2. Eac h Defendant—ignoring each of the detailed, mandatory acce ssibility building
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codes—designed and/or constructed throughout the district hundreds of inaccessible curb ramps, sidewalk porti ons, parking spaces and other public use facilities that vio late the Reh ab Act, F HAA, ADA, and th e PWDCRA’s accessibility codes. The locations of these violations are set forth on the maps of the district attached hereto as Exhibits 1 and 2. 11. The Lowreys Encounter the District. During August 2005—when the district was only about one-half built and was actively undergoing massive design and construction—Plaintiff Mike Lowrey mov ed into Uptown Apartments which is located in the middle of the district. S ee Exhibit 1, designating the location of Plaintiff Lowrey’s apartment. Mr. Lowre y was the first tenant in his apartment building, which was still being completed when he moved in. Mr. Lowrey an d his mother Marilyn both have mobility impairments. 12. Many signs and other markers throughout the District explicitly proclaimed that the district facilities were “handicap” accessible. Unfortunately, the Lowreys quickly that each of these ma rkers was wrong; if fact, t hey discovered that there are hundreds of barriers to access throughout the district. Mr. Lowrey’s apartment lacked any accessible parking and any accessible route to any of Uptown Apartment’s common-use ameni ties. And Uptown Apartments was surrounded by the district, which also lacked any accessible parking and any accessible routes to the di strict’s public-use amenities. Thus, the Lowreys were and remain segregated from all common-us e and public-use facilities at Uptown Apartments and throughout the district. T he Lowreys intend to use the district’s
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common use and pu blic use fa cilities as s oon as the y are made accessib le by

law.

13. Examples of the Di strict’s Inaccessible Facilities that are Located Inside the Wayne County Right of Way (ROW).

(a) Sidewalks and curb ramps with running slopes exceeding 8.33% up to 15%. The federal gov ernment has conclusively stated that any portion of a pedestrian way with a “r unning slope exceeding 8.33% is not usable by most persons with disab ilities and c an not be considered p art of an accessible route”;

(b) Sidewalks with cross slopes exceeding 12%, six times steeper than the maximum permitted by law;

(c) Curb ramps with transitions up to three inches above the street, twelv e times steeper than the maximum permitted by law;

(d) Drainage grates located inside painted c ross walks that catch front wheels of wheelchairs, with openi ngs eight times wider than the maximum permitted by law;

(e) “Handicapped” parking spaces and adjacent access aisles with slopes

exceeding 3% and up to 12%, six times the ma ximum slope permitted

by law. In addition, not one of

these parking spa ces is on an

accessible route to anything in the district;

(f) Pedestrian activation buttons located many feet from the sidewalk they serve, far out of reach of wheelchair users;

(g) Orphan curb ramps that lack an answering curb ramp, leaving the Lowreys and others trapped in the intersection with no way out;

Retaliation Against Lowreys By Defendants Beztak and Uptow n Investors LLC for Lowreys Asserting Legal Rights.

14. Despite repeated requests by the Lowreys, Defendants have refused to

correct the vast majority of violations throughout the district. Instead, defendants

Uptown Investors LLC, and their empl oyees have engaged in a continuing

pattern of harassment that includes

selective enforce ment of Uptown

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Apartments’ policies and f iling a false police report against Mike Lowrey on August 1, 2008, and then lying about it, and then continuing until they drove Mike Lowrey out of his apartment in the dead of winter. 15. Governmental Permits for District’s Inaccessible Facilities. Some of the district’s facilities challenge d by the Lowreys exist within the Wayne Co unty Rights-of-Way (ROW) along Cherry Hill Road and along North Ridge Road and South Ridge Road. See Exhibits 1 (Map of District facilities) and 2 (Aerial Map of District). For each of these facilit ies, Wayne County reviewed the design plans, issued permits to some of the other Defendants to construct or to otherwise perform work inside the County ROW, and the County insp ected the fina l product. 16. The remaining portion of the district’s facilities challenged by plaintiffs exist outside of the Wayne County RO W, and are on Canton Townsh ip property (e.g. parking lot “C”), or on Uptown Inv estors LLC’s property (e.g. parking lot “K”), or on Cherry Hill Investors LLC’s property (e.g. West Road). For each of these facilities, Canton Township rev iewed the design plans, issued p ermits to build , and inspected and accepted the final product. 17. Actual Construction of District’s Inaccessible Facilities. No defendant actually constructed any part of t he district; instead, def endants hired and paid private contractors for all construction.
(A) Canton Tow nship. Canton Township obtained written permits from Wayne County, and then hired and paid co ntractors to design and to build the great majority of the district’s i naccessible facilities located within the Wayne County ROW (e.g., the curb ramps, stop light, and pedestrian
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activation buttons located at the intersection of Che rry Hill Ro ad with South Ridge Road);
(B) Uptown Investors, LLC, Beztak, Beztak, and Monogram. These defendants hired and paid contractors to design and t o build most of the inaccessible facilities located nor th of Cherry Hill Road and eas t of North Ridge Road (e.g., Presidential Way, its adjacent sidewalks, and parking lots “H” through “L”). S ome of this design and construction (e.g., the large streetscape sidewalks fronting Liner Buildings A and B) took place within the Wayne County ROW, pursuant to permits i ssued by Wayne County to some or all of these Defendants;
(C) Biltmore Properties Company. This former defendant hired and paid contractors to design and to build most of the inaccessible facilities located we st of No rth Ridge Road (e.g ., West Road, Independence Avenue and their adjac ent sidewalks, the “V illage Square”, and parking lots “D” through “G”);
(D) Warner, Cantrell & Padmos and Loon ey, Ricks, Kiss. These defendants engineered or designed some of the district’s inaccess ible facilities (e.g. the large Streetscape sidewalks fronting Liner Buildin gs A and B, the Villag e Square, the in tersection of Cherry Hill Roa d with North Ridge Road, parking lots “H” through “L”); and,
(E) Wayne County. Wayne County never hi red or paid any private contractor to design or to construct any portion of the district; instead, it issued permits to some of the ot her defendants to construct or to otherwise work inside the County ROW—such as issuing the permit to Uptown Investors LLC to build the large streetscape sidewalks fronting Liner Buildings A and B, as well as the permit to reconstruct and to widen Cherry Hill Ro ad, North Ridg e Road, and to install the traffic signals and the pedestrian push buttons at the intersection of Cherry Hill Road with South Ridge Road.
18. Township and Other Defenda nts Indemnify Wayne County. As a part
of the per mitting process, the township and the c orporate defendants in writing
specifically indemnified and agreed to “hold harmless” Wayne County for any
problems arising from the district’s facilities built within Wayne County’s ROW.
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19. Canton Township Control of Dist rict’s Inaccessible Facilities. Every inaccessible facility in the district was built pursuant to two “planned development agreements” (PDA). In ex change for the township’s permission to the private defendants to build their re sidential housing units, these two PDA’s granted the township an absolute right to force def endants Biltmore, Beztak, and Uptown to construct each of the inacc essible facilities at issue here. In addition, the township has the responsibility to maintain each of the sidewalks at issue he rein, and has the right (through its “sidewalk s replacement program”) to order defendants Uptown to replace defective sidewalks and curb ramps located on those defendants’ private property. Also, the township has per manent easements or other writt en agreements to use each m any of the defendant’s private roads and parking lots. 20. Defendant Wayne County Facts—Intentional Violation of Controlling
Accessibility Law and Reg ulations for purposes of monetar y relief under Michigan’s PWDCRA. Plaintiffs do not seek damages against Defendant Wayne County under the ADA or Section 504 of the Rehabilitation Act. Plaintiffs are seeking damages against Defendant Wayne County under Michigan’s PWDCRA. Plaintiffs Lowrey allege that the township intentionally violated the controlling access ibility standards by ignoring those standards or by failing to ensure that the standards were met when the facilities at issue in this lawsuit we re designed and constructed by, on behalf of, or for Wayne County’s use.
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(a)

Each of the facilities at iss ue herein was designed, constructed

or otherwise altered by, on behalf or, or for the use of the

County well after after January 2001;

(b)

On January 26, 1991, Title II of the ADA became effective

against the County. T his was after a thirty month period for the

County to become compliant with Title II;

(c)

By 1991, pursuant to expres s authority from Congress, the

United States Department of Justice issued implementing

regulations binding the County, including 28 C.F.R § 35.151,

requiring that whenever an y facilities were design ed,

constructed or altered by, on behalf of, or for the use of the

township, that those facilitie s strictly meet the mandatory

requirements of 28 C.F.R. part 36, Appendix A—the ADDAG;

(d)

In 1993, the Third Circuit Court of Appeals analyzed 28 C.F.R §

35.151, and ruled that public entiti es must install curb ramps at

all resurfaced or otherwise altered intersections. Kinney v.

Yerusalim. This ruling should have put the County on notice

that 28 C.F.R § 35.151 was binding;

(e)

On May 17, 2004, the United St ates Supreme Court ruled that

28 C.F.R § 35.151 was binding on public entities, and that

public entities must remove barriers to access in the manner set

forth in 28 C.F.R § 35.151. Tennessee v. Lane, 124 S.Ct. at

1993;

(f)

In July/August of 2004, a pr ivate contractor hired by the

township resurfaced the Cherry Hill and Ridg e Road S.A.D.

Board Proceedings, June 22, 2004, Item # 9;

(g)

On October 1, 2004, extens ively citing Lane, the Sixth Circuit

held that constructed or other wise altered curb ramps and

sidewalks that violate the ADAA G/UFAS violate the ADA, and

must be rebuilt to meet the ADAAG/UFAS. Ability Center v.

Sandusky, 385 F.3d at 907-908;

(h)

On December 14, 2004, the township voted to accept its private

contractor’s work on the S.A.D. and to make its final payment to

the contractor;

(i)

On March 24, 2006, the Michigan Department of Transportation

(MDOT) issued it “Construction Ad visory CA 2006-03”, stating

that up until that date, “MDOT’s [public sidewalk and curb

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ramp] construction standards were not in full co mpliance

with the Americans with Disability Act Accessibility

Guidelines [the ADAAG]. Use the new standards in all

instances and take extra care in the construction of the

[curb] ramp to ensure that the standard is followed”

.

Emphasis added.

(j)

During August 2006, the township obtained a permit from the

County to work within the Count y ROW, and hired and pa id a

private contractor to i nstall new sidewalks and curb ramps at

the intersection of Cherry Hill Road with South Ridge Road, and

running to the east. These new sidewalks and curb ramps

violate virtually every applicable provision of the ADAAG/UFAS

and Michigan acces sibility standards (e.g. running slopes

exceeding 15%, cross slopes e xceeding 8%, change s in level

of three inches, no level landi ngs, counter slopes exceeding

7%, etc.), and are not readily us able by and accessib le to the

Lowreys;

(k)

In April, 2007, plaintiffs served the draf t Second Amended

Complaint purporting to add the township to this lawsuit and

detailing myriad ADAAG/UFAS violations on township property,

and on fa cilities built by, on be half of, or for the use of the

township;

(l)

In July/August 2007, the townsh ip issued c onstruction permits

to the private Defendants to re build sidewalks and curb ramps

throughout the Uptown Apartments site. The township required

the private Defendants to meet detailed accessibility standards

on these sidewalks and curb ramps, but at the same time the

township itself was h iring and paying private contractors to

install inaccessible curb ra mps and sidewalks at near its

Farmer’s Market site. For example;

(m)

In September 2007, the township obtained a permit to construct

inside the County RO W. See Exhi bit # 3, Affidavit of township

Engineer Casari, and including two Wayne County Permits to

construct, attached hereto. Pursuant to those permits the

township hired and paid private contractors to design and to

construct (on the west border of its Farmers’ Market site) a new

sidewalk and curb ramp at the intersection of Roanok e Avenue

with North Ridge Road and running nor th. This curb ramp is an

“orphan ramp” that leads into the roadway, but lacks any

answering curb ramp, leaving the Lowreys trapped in traffic with

no way out, and the ramp has a 10% counter slope and lacks a

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level landing among other ADAAG/UFAS violations, and neither the curb ramp nor the sidewa lk is readily usable by and accessible to the Lowreys;

(n)

Wayne County Executive Robe rt Ficano—Completely

Ignoring this Lawsuit—Personally Conducts Wayne County

Business at Inaccessible Villa ge Theater. Despite each of

the above notifications that Cant on Township’s Village Theater,

its parking, its adjacent sidewal ks and traffic signa ls violated

each and every

accessibility requirement of the

ADAAG/UFAS/MDOT R-28-E and MBC, on February 12, 2009,

Wayne County Exec utive conducted his annual “State of the

County” Address at the Village Theater. The County advertised

that: “The Village Theater at Cherry Hill holds about 400 people.

The event is open to the public .” See Exhibit # 4—Press

Advisory. As stated in detail ab ove, there is not one sing le

barrier free parking s pace on an accessible route serving the

Village Theater, and both of t he Theater’s public entrances

grossly violate the ADAAG/UFAS accessibility codes.

21. Thus, it could not be clearer that Defendant Wa yne County was on

multiple notices that federal and Mich igan law both required the County to meet

the ADAAG standards when de signing, constructing or otherwise altering public

sidewalks, parking lots, and curb ramps. Nevertheless, in late 2004 the County

issued permits to the township to desi gn and to construct t he S.A.D. not in

compliance with the controlling ADAAG/UFAS standards. Also, in late 200 6 and

again in late 2007, the County issued per mits to the township which inst alled

brand new pedestrian push buttons, curb ramps and sidewalks within the County

ROW at the intersections of Ch erry Hill Road with South Ridge Road, a nd at

North Ridge Road and Roanok e Avenue, and these c urb ramps and s idewalks

grossly violate the ADAAG and Michigan standards, including transition s of

nearly three inches , running slopes ex ceeding 14%, adjoining s urfaces

exceeding 10%, no leve l landings, etc. The pedestr ian buttons are far outside

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the reach of wheelchair users, includ ing Mike Lowrey. These 2004, 2006 and 2007 installed sidewalks and curb ramps are not usable by either of the Lowreys. 22. Likewise, none of the curb ramps, sidewalk s and parking spaces in the district are readily usable by and acce ssible to the Lowreys, and each of these facilities were constructed by, on behalf of, or for the use of the township, after 2002. 23. The County knew t hat federal and Mic higan standards controlled accessibility along its ROW in the distric t. The Cou nty issued permits to the township and to Upto wn Investors LLC to build curb ramp s and barrier free parking spaces within the County ROW throughout the District. This is proof that the township understood that there were legal requirements governing accessible features in public construction. 24. Thus, although the County was on repeated notic es, and the County referred to some accessibility standards in design and construction of the dis trict, the County wantonly and egregiously failed to ensure that the sidewalks, parking spaces and curb ramps designed and cons tructed on behalf of, or for the use of the County inside its ROW met the ADAAG /MDOT standards. And, to add insult to injury, on February 12, 2009, County Exec utive Robert Ficano elected to give his “State of the County” address at the grossly inaccessible Village Theater. His calloused disregard for ac cessibility meets any negli gence, deliberate indifference, and/or intentionality requirements justifying an award against Wayne County of compensatory and other damages under Michigan’s PWDCRA.
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COUNT 1: FAIR HOUSING ACT CLAIMS 25. Uptown Apartments’ Ground Floor Units and their Common-Use Sidewalks, Vehicular Ways, Parking, and Parking Lots. This claim is brought against only Defendants BEZTAK PRO PERTIES, INC.; BEZTAK COMPANIES, INC.; UPTOWN IN VESTORS L.L.C.; MONOGRAM HOMES; WARNER, CANTRELL, & PADMOS, IN C.; and L OONEY, RICKS, KISS. Uptown Apartments contains r esidential apartment units that ar e "dwellings" within the meaning of 42 U.S.C. § 3602(b). 26. The ground floor units at Uptown Apartments that were designed and constructed for first occupancy after Ma rch 13, 1991 are "covered multi-family dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(A ) and are subject to the requirements of 42 U.S.C. § 3604(f)(3)(C). 27. Uptown Apartments comprises appr oximately 30 buildings containing residential rental dwellings built since the effective date of the acc essible design requirements of the Fair Housing Act. T hese buildings contain approximately 100 ground floor units that are subject to t he accessibility requirements of the Fair Housing Act. These units, including the one rented by Mr. Lowery were built for first occupancy close to the time Plaintiff Lowery moved in, and after. 28. Defendants failed to design and to c onstruct the covered dwelling units, their parking, sidewalks, dog walking areas, clubhouse, pool and other common use and public use areas in the Upto wn Apartments and on these defendants’ private property in the district in such a manner that:
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(a) public use and c ommon use portions of such dwellings ar e readily accessible to and usable by handicappe d persons, and are usable by most persons with disabilities;
(b) all premises within such dwellings contain the following features of adaptive design:
(i) an accessible route into and through the dwelling; (ii) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (iii) reinforcements in bathroom walls to allo w later installatio n of grab bars; and (iv) usable kitchens and bathrooms such that an in dividual in a wheelchair can maneuver about the space. 29. In addition, Defendants Uptown Properties LLC and its employees repeatedly retaliated against the Lowrey s because they asserted their rights under the FHAA. 30. Defendants, through the actions described above, have: (a) Discriminated in the rental o f, or ot herwise made unavailable or denied, dwellings to Plaintiffs and to per sons because of handicap, in violation of 42 U.S.C. § 3604(f)(1); (b) Discriminated against the Plaintiffs Lowery in the terms, conditions, or privileges of rental of a dwe lling, or in the provision of services or facilitie s in connection with the rental of a dwelling, because of handic ap, in violation of 42 U.S.C. § 3604(f)(2); and
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(c) Failed to design and construct dwel lings and their accessible routes in compliance with the requirements mandated by 42 U.S.C. § 3604(f)(3)(C). 31. The conduct of Defendants described above constitutes a violation of the Fair Housing Act. 32. As persons who have been the vi ctims of Defendants' disc riminatory housing practices, Plaintiffs Michael Lowery and Marilyn Lowery are aggrieved persons as defined in 42 U. S.C. § 3602(i) and have suffered injuries as a res ult of Defendants’ conduct described above. 33. Defendants’ conduct described above wa s intentional, willful, and taken in disregard for the rights of ot hers, including the Plaintiffs Lowery. Plaintiffs are entitled to compensatory, exemplary and punitive da mages, and attorneys fees and costs. COUNT 2: TITLE III OF THE AMERICANS WITH DISABILITIES ACT CLAIMS 34. This count is brought against all Defendants EXCEPT the governmental defendants. Each of the corporate defendants has designed or constructed throughout the district numerous public use sidewalks, parking s paces, parking lots, park areas, vehicular ways and sidew alks. Some examples of these are designated on the Exhibit Map as Parking lots “H” through ”L”, Presidential Way, and the sidewalks that connect these to the retail shops and the Village T heater. Each of these facilities are covered by the prohibition against discrimination in 42 U.S.C. § 12182(a), and are su bject to the design and construction requirements of 42 U.S.C. § 12183(a)(1) and 28 C.F.R. § 35.151.
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35. The corporate Defendants failed to des ign and construct these facilities in such a m anner that the facilities are “readily usable by and accessible to” plaintiffs and other individ uals with disabilities. A dditionally, Defendants Uptown Investors LLC, Smith and Doe r etaliated against the Lowreys fo r asserting their rights under the act; 36. The actions of the Defendants, as described above, constitute:
(a) Discrimination against Plaintif fs and against the majority of individua ls with disabilities in th e full an d equal en joyment of the services, facilities, privileges, and accommodations of a place of public accommodation, in violation of 42 U.S.C. § 12182(a); and
(b) A failure to design and construct public accommodations in compliance with the requirements mandated by 42 U.S.C. § 12183(a)(1). 37. The conduct described in paragr aphs above constitutes a violation of Title III of the Americans with Dis abilities Act, entitling Plaintiffs to declaratory and injunctive relief, and a reasonable attorneys fee and costs.
COUNT 3: MICHIGAN PERSONS WITH DISABILITIES CIVIL RIGHTS ACT (PWDCRA)
38. Covered Multifamily Ground Floor Apartments. This c laim in th is paragraph is brought against BE ZTAK PROPERTIES, INC.; BEZTAK COMPANIES, INC.; UPTOWN INVEST ORS L.L.C.; MONOGRAM HOMES; WARNER, CANTRELL, & PADMOS, INC.; and LOON EY, RICKS, KISS. Plaintiffs bring this claim pursuant to the Article 5 of the Michigan PWDCRA, M.C.L. §§ 37.1501- 37.1507, which requires all ground floor apartments at
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Uptown Apartments in Cant on to meet detaile d accessibility requirements, including, among others, those set forth in the Michigan Buil ding Code, adopting the ICC/ANSI A117. 1-1998. Defendants have constructed and continue to operate all of the ground floor apartments—including Plaintiff Mike Lowery’s apartment—to violate all applic able Michigan accessibility standar ds. In addition, defendants Uptown Investors LLC, Beztak and Bez tak retaliated against the Lowreys for asserting their rights. 39. District’s Common-use Si dewalks, Parks, Parking, Vehicular Way s. This claim in this paragraph is br ought against ALL DEFENDANTS. Defendants discriminated against Plaintiffs by desi gning, constructing, operating and/or maintaining the district’s remaining facilities, common use areas, features, vehicular ways, parking, and sidewalks servi ng the district in violation of the applicable Michigan accessibi lity standards and not to be accessible to a nd readily usable by Plaintiffs. Solely as to Defendant Wayne County, Plaintiffs seek relief only for the facilities, services, programs or activities within the Wayne County ROW within the District. 40. The PWDCRA entitles the plaintiffs to injunctive relief, and an award of damages, and attorneys fees are defined as damages under the act.
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COUNT 4: CLAIMS AGAINST ONLY UPTOWN INVESTORS, LLC, AND THE BEZTAK DEFENDANTS, FOR RETALIATION AGAINST THE PLAINTIFFS LOWREY FOR ASSERTING THEIR RIGHTS UNDER COUNTS 1, 2, & 3 ABOVE
41. The claim in this Count is brought only against Defendant Uptown Invest ors LLC, and the Beztak Defendants. These defendants conspired to retaliate against and/or to otherwise coerce the Lowreys for asserti ng their rights under the three Counts above. This conduct inc luded, but is not lim ited to, threatening to tow Ms. Lowrey’s car, to remove Mr. Lowrey’s c ompanion animal from the Uptown Apartments, to evict Mr. Lowrey, filing a false police report against Mr. Lowrey on August 1, 2009—and then lying by denying any involv ement with the confrontation with police, when in fact it was entirely instiga ted by Up town Apartments Manager Kelly T obin-Smith, by ratifying her retaliatory actions by keeping her employed after receiving inc ontrovertible proof of her retaliatory mendacity in the August 1, 2008 incident, by putting her in charge of driving out Mike Lowrey from the Uptown Apartment s, and by driving in December 2008 Mike Lowrey from his apartment home of three years, into the dead of winter. 42. Each of the three above Counts have s pecific, explicit prohibitions against these Defendants’ coercive, retaliatory conduct against the Lowreys, and entitle the Lowreys to declaratory and injunctive relief and full attorneys fees and c osts under all of the Counts, as well as to compensatory, punitive and e xemplary monetary damages under the FHAA and under Michigan’s PWDCRA.
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COUNT 5: CLAIMS SOLELY AGAINST DEFENDANT WAYNE COUNTY, PURSUANT TO TITLE II OF THE ADA, SECTION 504 OF THE REHABILITIATION ACT AND MICHIGAN’S PWDCRA
43. This claim is brought onl y against Def endants WAYNE COUNTY DEPARTMENT OF PUBLIC SERV ICES, and JAMES A. JACKSON and LORENZO BLOUNT, in their official capac ities. Plaintiffs bring this count under Title II of the Americans wit h Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and under Michigan law. 44. Violations of ADA Title II. Title II of the A DA provides that “no qualified individual with a dis ability shall, by reas on of such disabili ty, be exc luded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject ed to discrimination by any such entity.” 42 U.S.C. § 12132. Title II of the ADA defines Wayne County DPS as a “public entity.” 42 U.S.C. § 12131(1). Within its ROW, Wayne County’s sidewalks are a public “service, program or activity” subject to the Act. 45. Title II of the Americans With Dis abilities Act requires that when any facility (including sidewalks and barrier free parking spaces) is built or altered by, on behalf of, or for the use of a public ent ity after January 26, 1992, it shall to the maximum extent pos sible, be altered so that it is readily usable by and accessible to individuals with disabilities. 42 U.S.C. §§ 12146 & 12147; 28 C.F.R. § 35.151(a), (b) & (e); Ability Center of Greater Toledo v. City of Sandusky, Ohio, 133 F.Supp. 2d 589, 591-92 (N. D.Ohio 2001), aff’d 385 F.3d 901 at 904 (6 th Cir. 2004)(Public entities must install ADA-comp liant curb ramps at all resurfaced intersections). The curb cuts, sidewalks and parking spaces must meet specific
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federal building and design sta ndards, 28 C.F.R. § 35.151(c); Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1993 ( 2004). Many of the districts ’ vehicular ways, parking lots, sidewalks and other facilities within Wayne County’s ROW have been built by, on behalf of, or fo r the use of, Wayne County, pursuant to permits issued by the County. 46. Wayne County has failed to insure that sidewalks, barrier free parking and curb ramps within its ROW inside the District were constructed and/or have beem maintained so that each is “readily us able by and accessible to” Plaintiffs. Among other places in the district, the si dewalks fronting Uptown Investors’ Liner Buildings A and B and within the Wayne County ROW along the north sidewalk of Cherry Hill Road and t he east side of North Ridge Roads, suffer from cross slopes exceeding 11% and running slopes exceeding 14%. T his violates both Title II of the ADA as well as Se ction 504 of the Rehabilitation Act. See Barden v. City of Sacram ento, 292 F.3d 1073, 1076-77 (9 th Cir. 2002), cert. denied, 539 U.S. 958 (2003)(explaining br oad definition of “public service, program, or activity” under the ADA and under Sect ion 504 and finding that “maintaining accessibility of sidewalks for individuals with disabilities” fits that definition). 47. By its actions complained of herein, Defendant Wayne County has engaged in an over-arching pattern and practice of discrimination against Plaintiffs due to the ir disabilities. Plaintiffs are entitled to injunctive relief against Defendant Wayne County ordering it to br ing each of the facilities, services, programs or activities inside the District and also within its ROW i nto compliance
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according to law, to attorneys fees and cost s for pursuing this relief. Plaintiffs do not seek damages under Title II of the ADA against Wayne County. 48. Violations of Section 504 of the Rehabi litation Act. Additionally, the Rehabilitation Act requires that when a public entity that receives federal funding builds or alters any part of a facility, it shall to the maximum extent possible, be made so that it is readily access ible to and usable by individual s with disabilities. 29 U.S.C. § 794. “[n]o otherwise qualified individual with a disability...shall, solely by reason of her or his di sability, be excluded from the participation in, be denied the benefits of, or be subjected to discrim ination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). At all relevant times, Defendant Wayne County has received milli ons of dollars from the federal government. The Rehabilitation Act defines “program or activity” as “all of the operations of” a qualifying local government. 29 U.S.C. § 794(B)(1)(A). 49. As described above, numerous facilities h ave been built by, on b ehalf of, or for the use of defendant Wayne County throughout the distri ct and within the County ROW, without meeti ng the required accessibility standards and codes. Each of these failures by them has made each of these new or altered ser vices, programs or activities not readily accessibl e to and usable by Plaintiffs. By its actions complained of herein, Defendant Wayne County has engaged in an overarching pattern and practice of discrimination against Plaintiffs due to their disabilities. Plaintiffs ar e entitled to injunctive relief against De fendant Wayne County ordering it to bring each of the faci lities, services, programs or activities inside the District and also within its ROW into compliance according to la w, to
22

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attorneys fees and costs for pursuing this relief. Plaintiffs do not seek damages under Section 504 of the Rehabilitation Act against Wayne County. 50. Violations of Michigan’s PW DCRA. Also, the above com plained of failure by Wayne County to construct, alter and maintain services, programs or activities to be accessible to Plaintiffs also violates Michig an law at M.C.L. § 37.1301-02. According to the P WDCRA, Plaintiffs are entitled to compensatory, exemplary and punitiv e damages, as well as injunctive and declaratory relief, attorneys’ fees and c osts. The PWDCRA specifically identifies attorneys’ fees and costs as “damages” under the Act.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that t he Court order against each defendant the appropriate injunctive, declaratory and or damages relief.

Respectfully

submitted,

/s/ J. Denis Heberle 2580 Ann 734-302-3233 734-302-3234
Attorneys

J. Mark Finnegan_______ Mark Finnegan (P68050)
e M. Heberle (P64145) & Finnegan, PLLC
Craig Road Arbor, MI 48103
fax hffirm@comcast.net
for the Plaintiffs Lowrey

23

2:06-cv-13408-NGE-MKM Doc # 164 Filed 05/04/09 Pg 24 of 24 Pg ID 1963

Certificate of Service
I hereby c ertify that on this 4 th day of May, 2009 the foregoing Plaintiffs’ Third Amended Complaint was filed electronically. Parties will receive notice of the filing t hrough the Court’s electr onic filing system and may access the document through the Court’s electronic fili ng system. In addition it was served by hand-delivery upon the Wayne County Defendants at their offices.

/s/

J. Mark Finnegan_________

24

 
 2:06-cv-13408-NGE-MKM Doc # 56 Filed 06/26/07 Pg 1 of 3 Pg ID 347

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWREY, MARILYN LOWREY and FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC.,

Plaintiffs,

CIVIL ACTION NO. 06-13408

v.

DISTRICT JUDGE NANCY G. EDMUNDS

BEZTAK PROPERTIES, INC.;

MAGISTRATE JUDGE VIRGINIA MORGAN

BEZTAK COMPANIES, INC.;

BILTMORE PROPERTIES COMPANIES,

INC.; UPTOWN INVESTORS, LLC;

UPTOWN INVESTORS LLC II;

MONOGRAM HOMES; WARNER,

CANTRELL & PADMOS, INC., and

LOONEY RICKS KISS,

Defendants. ____________________________________/

MEMORANDUM OF PARTIAL SETTLEMENT AND FURTHER SCHEDULING ORDER

This matter was referred to the undersigned as Special Master for Settlement. Following

confidential settlement discussions, the parties reached a partial settlement, resolving a number

of matters related to the plaintiffs’ requests for injunctive relief. A Stipulated Order of Partial

Settlement and Conditional Release was exchanged and in a telephonic conference on June 18,

2007, the court was advised that all parties agreed to both form and content. Counsel will

undertake to obtain all necessary client signatures forthwith and submit the document via

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2:06-cv-13408-NGE-MKM Doc # 56 Filed 06/26/07 Pg 2 of 3 Pg ID 348

electronic filing for signature by the district judge. It is expected that the filing will be made in the next few days.
Therefore, IT IS ORDERED as follows: 1. The June 19th date for placing the settlement on the record with the magistrate judge is vacated. 2. The parties are ordered to submit the Stipulated Order of Partial Settlement and Conditional Release for Judge Edmunds’ signature forthwith and abide by the terms of the same. 3. A further settlement conference is set for September 20, 2007, at 10:00 am in the chambers of the magistrate judge. All counsel are ordered to appear with full settlement authority. The court advises counsel that the date of September 21, 2007 is also available if discussion continues. 4. Clients and/or client representatives are ordered to appear as necessary to effectuate discussions. Unless all counsel agree, the client/client representatives must attend. The court desires that all persons who are part of the decision-making process attend. However, in order to keep costs and inconvenience down, on or before September 13, 2007, counsel may agree among themselves as to a waiver of attendance by a clients/client representatives and/or whether those persons may be available by phone, and so advise the chambers of the magistrate judge. SO ORDERED.

Dated: June 26, 2007

s/Virginia M. Morgan Virginia M. Morgan United States Magistrate Judge
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PROOF OF SERVICE The undersigned certifies that the foregoing Memorandum of Partial Settlement was served upon counsel of record via the Court’s ECF System and/or U. S. Mail on June 26, 2007.
s/Jane Johnson Case Manager to Magistrate Judge Virginia M. Morgan
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 2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 1 of 12 Pg ID 353

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWREY, Plaintiff,
and

Case No.: 2:06-CV-13408-NGE-MKM Hon. Nancy G. Edmunds

FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC.

Intervenor-Plaintiff

vs.

BEZTAK PROPERTIES, INC.; BEZTAK COMPANIES, INC.; BILTMORE PROPERTIES COMPANIES, INC.; UPTOWN INVESTORS, LLC; UPTOWN INVESTORS, LLC II; MONOGRAM HOMES; WARNER, CANTRELL & PADMOS, INC., and LOONEY RICKS KISS,

Defendants.

STIPULATED ORDER OF PARTIAL SETTLEMENT AND CONDITIONAL RELEASE

THIS STIPULATED ORDER O F PARTIAL SETTLEMENT AND CONDIT IONAL RELEASE (hereinafter “Agreement”) is m ade between MICHAEL LOWREY, MARILYN LOWREY (collectively, “the Lowreys”), the FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC. (“ FHC”), and BEZTAK PROPERTIES; BEZTAK COMPANIES; BILTMORE PROPERTIES COMPANIES, INC.; UPTOWN INVE STORS, L.L.C.; UPTOWN INVES TORS II L.L. C.; MONOGRAM HOMES, INC.; WARNE R, CANTRELL & PADMOS, INC.; AND LOONEY, RI CKS, KISS (collectively, “Defendants”) (all parties collectively referred to as the “parties”).
RECITALS
WHEREAS, Michael Lowrey filed a Complaint (the “Lawsuit”) in the United States District Court for the Eastern District of Michigan (the “Court”), Case #06-13408, against Beztak Properties (erroneously named “Beztak Properties, Inc.”), on or about July 21, 2006;
WHEREAS, Michael Lowrey filed a First Amended Complaint (the “First Amended Lawsuit”) in the United States District Court for the Eastern District of Michigan, Case #06-13408NGE-MKM, against Beztak Properties (erroneously named “Beztak Properties, Inc.”), Beztak Companies (erroneously named “Beztak Companies, Inc.”), Biltmore Properties Companies, Inc., Uptown Investors, L.L.C., Uptown Investors II, L.L.C. (erroneously named “Uptown Investors, L.L.C. II”), Monogram Homes, Inc., Warner, Cantrell & Padmos, Inc., and Looney, Ricks, Kiss on or about September 20, 2006;

2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 2 of 12 Pg ID 354
WHEREAS, Michael Lowrey and Marilyn Lowrey filed a Second Amended Complaint (the “Second Amended Lawsuit”) in the United States District Court for the Eastern District of Michigan, Case #06-13408-NGE-MKM, against Beztak Properties (erroneously named “Beztak Properties, Inc.”), Beztak Companies (erroneously named “Beztak Companies, Inc.”), Biltmore Properties Companies, Inc., Uptown Investors, L.L.C., Uptown Investors II, L.L.C. (erroneously named “Uptown Investors, L.L.C. II”), Monogram Homes, Inc., Warner, Cantrell & Padmos, Inc., and Looney, Ricks, Kiss and Canton Township, on or about May 7, 2007;
WHEREAS, the FHC has intervened in the Second Amended Lawsuit as an IntervenorPlaintiff;
WHEREAS, the Lawsuit, First Amended Lawsuit, and Second Amended Lawsuit include allegations that Defendants designed, constructed, and/or operate(d) the Uptown Apartment complex in Canton, Michigan (“Uptown”) in violation of the Americans with Disabilities Act (“ADA”), Fair Housing Act (“FHA”), and/or Michigan Persons With Disabilities Civil Rights Act (“PWDCRA”);
WHEREAS, Defendants deny in their entirety the claims raised in the Lawsuit, First Amended Lawsuit, and Second Amended Lawsuit;
WHEREAS, the Lowreys filed a Motion for Preliminary Injunction, which is pending before the Court;
WHEREAS, the Court assigned United States Magistrate Virginia Morgan as Special Master to assist in facilitation and/or resolution of the Lawsuit, First Amended Lawsuit, and/or Second Amended Lawsuit;
WHEREAS, the parties desire to resolve and settle some of the Lowreys’ and FHC’s claims for injunctive and other relief; specifically, those claims related to interior modifications to the apartment unit in which Michael Lowrey resides in Uptown, the accessible route within Uptown from the apartment unit in which Michael Lowrey resides, accessible parking spaces in certain areas of the Uptown community, and all other claims related to these listed matters that arose anytime before the date on which the Lowreys and FHC sign this Agreement; and
WHEREAS, the parties have not at this time resolved the Lowreys’ or FHC’s claims related to modifications to the Uptown complex other than those specifically addressed in this Agreement, and have not at this time resolved the Lowreys’ or FHC’s claims for damages and attorneys’ fees related to these issues.
STATEMENT OF AGREEMENT
NOW, IN CONSIDE RATION of the m utual promises and covenants contained in this Agreement and other good and valuable considerati on – the receip t and sufficiency of which the parties each respectfully acknowledge – the parties agree as follows:
1. Definitions. As used in this Agreement:
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(a) The term “Michael L owrey” is defined as Michael Lowrey and his representatives, agents, heirs, administrators, executors, successors, personal representatives, and assigns.
(b) The term “Marilyn L owrey” is de fined as Marilyn Lowrey and her representatives, agents, heirs, administrators, executors, successors, personal representatives, and assigns.
(c) The Fair Housing Center of Southeas tern Michigan, Inc. (“FHC”) is defined to include the Fair Housing Center ; the past, present, or f uture parent, affiliated, related, and/or subsidiary entities of FHC; and the past , present, or fut ure directors, shareholders, officers, insurers, em ployees, agents, attorney s, partners, accountants, joint venturers and representatives of FHC.
(d) The term “Beztak Prop erties” is defined to include Beztak Properties; the past, present, or future parent , affiliated, related, and/or su bsidiary companies of Beztak Properties; and the past, present, or future directors, shareholders, officers, insurers , employees, agents, attorneys, partners, accounta nts, joint venturers a nd representatives of Beztak Properties.
(e) The term “Beztak Companies” is defined to include Beztak Companies; the past, present, or future parent , affiliated, related, and/or su bsidiary companies of Beztak Companies; and the past, present, or future directors, shareholders, officers, insurers, employees, agents, attorneys, partners, accounta nts, joint venturers a nd representatives of Beztak Companies.
(f) The term “Biltmore Properties Companies, Inc.” is defined to inc lude Biltmore Properties Companies, In c.; the p ast, present, or future parent, affiliated, related, and/or subsidiary companies of Biltmore Properties Com panies, Inc.; and the past, presen t, or future directors, shareholde rs, officers, insurers, em ployees, agents, attorneys, partners, accountants, joint venturers and representatives of Biltmore Properties Companies, Inc.
(g) The term “Uptown Investors, L.L.C.” is defined to include Uptown Investors, L.L.C.; the past, present, or future parent, aff iliated, related, and/or subsidiary companies of Uptown Investors, L.L.C.; and the past, present, or future d irectors, shareholders, officers, members, insurers, employees, agents, attorney s, partners, accountants , and joint venturers representatives of Uptown Investors, L.L.C.
(h) The term “Uptown Investors II, L. L.C.” is defined to include Uptown Investors II, L.L.C.; the past, pr esent, or future parent, affiliated, related, and/or subsidiary companies of Uptown Investors II, L.L.C.; a nd the past, present, or future directors, shareholders, officers, m embers, insurers, employees, agents, attorneys, partners, accountants, joint venturers and representatives of Uptown Investors II, L.L.C.
(i) The term “Monogram Homes, Inc.” is defined to include Monogram Homes, Inc.; the p ast, present, or f uture parent, affiliated, related, and/or subsidiary com panies of Monogram Homes, Inc.; and the past, present, or future directors, shareholders, officers, insurers, employees, agents, attorneys, partners, acco untants, joint venturers and representatives of Monogram Homes, Inc.
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2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 4 of 12 Pg ID 356
(j) The term “Warner, Cantrell & Pa dmos, Inc.” is defined to include Warner, Cantrell & Padm os, Inc.; th e past, present, or future parent, affiliated, related, and/or subsidiary companies of Warner, Cantrell & Padmos, Inc.; and the past, present, or future directors, shareholders, officers, insurers, employees, agents, attorneys, partners, accountants, joint venturers and representatives of Warner, Cantrell & Padmos, Inc.
(k) The term “Looney, Ricks, Kiss” is de fined to include Looney, Ricks, Kiss; the past, present, or future parent, affiliated, related, and/or subsidiary companies of Looney, Ricks, Kiss; and the past, present, or future directors, shareholde rs, officers, insurers , employees, agents, attorneys, partners, accounta nts, joint venturers a nd representatives of Looney, Ricks, Kiss.
(l) The term “ANSI” is defined as the American National Standards Institute.
(m) The term “Unit” is defined as the apartment unit occup ied by M ichael Lowrey in the Uptown Apartment Complex, Building 15, Unit 103, 50155 Uptown Avenue, Canton, Michigan, on the date Michael Lowrey signs this Agreement.
2. Exterior Modifications. Defendants shall complete the following physical modifications to the Uptown complex:
(a) Clubhouse parking: Defendants shall cr eate a vehicular parking spot located on an accessible route to the Uptown “clubhouse.” The parking spot shall be van accessible and shall (i) include an eight (8) foot wide space, (ii) in clude an eight (8) foot wide acces s aisle on the same level as the parkin g space, and (iii) shall be located on a surface th at does not exceed a 2% slope in all d irections. The parking spot shall also include app ropriate signage indicating that it is available only for disabled individuals, and there shall be at least 72 inches between the ground and the bottom of such sign. On or be fore June 20, 2007, Defendants shall provide to the Lowreys’ attorney a proposal for the location of this parking spot and its connection to the acc essible route as described in S ections 2(c) and (d) of this Agreement. After the p arties reach agreement with respect to th e location of this parking spot, Defendants shall be provided up to ten ( 10) business days to apply for all necessary governmental approvals from Canton Township, Michigan, to perform such work. Defendants shall notify the Lowreys’ attorn ey, in writing, upon receipt of approval by Canton Township, Michigan. Simultaneous with the applic ation for any necessar y governmental approvals from Canton Township, Defendants shall begin soliciting bids from contractors to perform the work identified in Section 2(a) of this Agreem ent. Defendants shall be provided ten (10) business days to select a contrac tor(s) to perform the work described in this Sectio n 2(a) of this Agreem ent. Def endants shall notif y the Lowreys’ attorney, in writing, upon selection of a contractor. Upon receipt of any necessary governmental approvals from Canton Township and following selection of a contractor(s), Defendants shall be provided th irty-two (32) working days to com plete the work described in this Section 2(a) of this Agreement.
(b) Michael Lowrey’s building parkin g: Defendants shall create a vehicular parking spot located on an accessible route to Building 15, Unit 103 in the Uptown complex. The parking spot shall (i) include an eight (8) foot wide space, (ii) include a five (5) foot wide access aisle on the same level as the parking space, and (iii) shall be located a location
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2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 5 of 12 Pg ID 357
on a surface that does n ot exceed a 2% slope in all directions. The parking spot sh all also include appropriate signage indicating that it is available on ly for disabled individuals, and there shall be at least 60 inch es between the ground and the bot tom of such sign. On or before June 20, 2007, Defendants shall provide to the Lowreys’ attorney a proposal for the location of this parking spot and its connect ion to the accessib le route as des cribed in Sections 2(c) and (d) of this Agreement. Af ter the parties reach agreem ent with respect to the location of this parking spot, Defendants sh all be provided up to ten (10) business days to apply for all necessary governm ental approvals from Canton Township, Michigan, to perform such work. Simultaneous with the application for any necessary governm ental approvals from Canton Township, Defendants shall begin soliciting bids from contractors to perform the work identified in Section 2(b) of this Agreement. Defendants shall notify the Lowreys’ attorney, in writing, upon receipt of approval by Canton T ownship, Michigan. Defendants shall be provided ten (10) business days to select a contractor(s) to p erform the work described in this Section 2(b) of this Agreement. Defendants shall notify the Lowreys’ attorney, in writing, upon selection of a contractor. Upon receipt of any necessary governmental approvals and following selecti on of a contractor, Defendants shall be provided thirty-two (32) working days to complete the work described in this Section 2(b) of this Agreement.
(c) Stage 1 con struction: Defendants sh all create an accessible route com pliant with ANSI A117.1-1998 Secs. 303, 402, 403, 405, 406 and 505 along the sidewalks in Uptown outlined in Stage 1 of Exhibit 1 to this Agreement. Notwithstanding the agreement to comply with ANSI A117.1-1998 Sec. 303, 402, 403, 405, 406 and 505, the parties agree that Sections 303, 402, 403, 405, 406 and 505 will not app ly and that no m odification is necessary to any existing portion of the access ible route where (i) the cross-slope is 3% o r less; (ii) the running slope is 6% or less; or (iii) the runni ng slope on a curb ram p is 8.33% or less. The parties agree that thes e slope ranges shall not be adm issible as evidence in any subsequent proceedings. Any modifications to cross-slope, running slope, or slope of ramps along the accessible route will be made to comply with ANSI A117.1-1998 Secs. 303, 402, 403, 405, 406 and 505. Followi ng June 20, 2007, Defendants shall be provided up to ten (10) business days to apply for all neces sary governmental approvals from Canton Township, Michigan, to perform such work. Defendants shall notify the Lowreys’ attorney, in writing, upon receipt of approval by Canton Township, Michigan. Simultaneou s with the application for any necessary governm ental approvals from Canton Township, Defendants shall begin soliciting bids from contractors to perform the work identified in Section 2(c) of this Agreement. Defendants shall be provided ten (10) business days to select a contractor(s) to perform the work de scribed in this Sec tion 2(c) of this Agreement. Defendants shall notify the Lowreys’ attorney, in writing, upon selection of a contractor. Upon receipt of any necessary governmental approvals and following selection of a contractor, Defendants shall be provided thirty-two (32) working days to complete the work described in this Section 2(c) of this Agreement.
(d) Stage 2 con struction: Defendants sh all create an accessible route com pliant with ANSI A117.1-1998 Secs. 303, 402, 403, 405, 406 and 505 along the sidewalks in Uptown outlined in Stage 2 of Exhibit 1 to this Agreement. Notwithstanding the agreement to comply with ANSI A117.1-1998 Sec. 303, 402, 403, 405, 406 and 505, the parties agree that Sections 303, 402, 403, 405, 406 and 505 will not app ly and that no m odification is necessary to any existing portion of the access ible route where (i) the cross-slope is 3% o r less; (ii) the running slope is 6% or less; or (iii) the running slope on a cub ramp is 8.33% or
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less. The p arties agree that these slope rang es shall not be used as evidence in an y subsequent proceedings. Any modifications to cross-slope, running slope, or slope of ramps along the accessible route will be made to comply with ANSI A117.1-1998 Secs. 303, 402, 403, 405, 406 and 505. Defendants shall be provided twenty (20) days following completion of the work described in Section 2(c) of this Agreement to complete the work described this Section 2(d) of this Agreement.
(e) Ramp construction: Defendants shall modify the ramp leading to the Uptown clubhouse as follows:
(i) Defendants will m odify any existin g cross slop e on the ramp to the Uptown clubhouse that is in excess of 3% to no more than 2%;
(ii) Defendants will modify any existing running slope on the ramp to the Uptown clubhouse that is in excess of 7% to no more than 7%; and
(iii) Defendants will prov ide ramp features for the ram p to the Uptown clubhouse, as detailed in ANSI A117.1-1998 Sec. 405.7 and 405.8.
(iv) Defendants shall com plete any m odifications to the clubhouse ram p within the time period set forth in Section 2(c) of this Agreement.
(f) Pursuant to the release of claims outlined in Section 5 of this Agreement, the Lowreys and FHC specifically ag ree to waive any claims seeking an accessible route to the dumpster nearest to th e Unit. Defendants agre e to modify the dumpster nearest to the Unit as needed to ensure that ther e is an unobstructed 36 inch pad, with a slope and cross-slope not to exceed 2%, next to the dumpster to a llow an access ible path of trave l within the dumpster enclosure.
(g) Retail Parking and Accessible Route. Defendants agree to m ake a proposal to the Lowreys and FHC with respect to the accessible public parking intended to serve the retail buildings located at the southwest co rner of the Uptown Apartm ent complex in Canton, Michigan on or before August 15, 2007. Defendants' proposal shall include a proposed accessible route from the accessible public parking spaces to the buildings the parking spaces are intended to serve. Defenda nts' proposal shall also include a deadline for completing any proposed modifications.
(h) Mailbox. Defendants agree to make a proposal to the Lowreys and FHC with respect to the accessible route to the mailbox intended to serve the Unit on or before July 1, 2007. De fendants' proposal shall also include a deadline for com pleting any proposed modifications. The parties agree that Defenda nts' proposal is subject to approval by the United States Postal Service and is subject to United States Postal Service regulations. The Lowreys and FHC agree that, upon com pletion of any modifications to the accessible route to the m ailbox serving the Unit, the m ailbox attached to the side of the Unit will be removed.
(i) The timelines and schedules outlined in this Se ction 2 of this Agreement are subject to change based on factors outside the control of Defendants, including, but not limited to, delays in approval by Canton Townsh ip and in clement weather. Any dispute concerning the parties' good faith com pliance with the tim elines and schedules shall be brought to the attention of the Court.
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2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 7 of 12 Pg ID 359
3. Interior Modifications to the Unit. Defendants shall make the following modifications to the Unit:
(a) Defendants shall modify the thresholds at the prim ary entry door (leading to the “breezeway”) and at the door leading from the Unit into the garage, pursuant to ANSI A117.1-1998 Secs. 404.2.5 and 303.
(b) Defendants shall install off-set hinges at the doors leading to both bedroom s in the Unit and the doors leading to both walk-in closets in the Unit.
(c) Defendants shall modify the interior threshold at the door leading to the front porch to en sure that there is no more than a ¾ inch rise, and with any vertical change of level over ¼ inch beveled at 1:2.
(d) Defendants shall install locks with no more than 5 lbf. within accessible reach ranges on one window in the living room of the Unit, one window in the master bedroom of the Unit, and one window in the second bedr oom of the Unit, in compliance with ANSI A117.1-1998 Secs. 1002.13, 1002.9 and 309.
(e) Defendants shall install door pulls that are operable with one hand and do not require tight grasping, pinchi ng, or twisting of the wrist on the kitchen and bathroom cabinets and drawers, linen closet door, and laundry door in the Unit.
(f) Defendants shall install grab bars at the toilet, tub (if any), and shower in both bathrooms in the Unit, in comp liance with ANSI A117.1-1998 Secs. 1002.11.5.4 and 604.5.
(g) Defendants shall install operating mechanisms that are o perable with one hand and do not require tight grasping, pinching, or twisting of the wrist, including a privacy lock mechanism, on the “pocket” doors leading to both bathrooms in the Unit.
(h) Defendants shall install UL-approved extenders for two outlets in the kitchen to lower the outlets to reach ranges pursuant to ANSI A117.1-1998 Sec. 308.
(i) Defendants shall widen the entry to the coat closet in the Unit to ensure a 32” clearance, pursuant to ANSI A117.1-1998 Secs. 1002.5 and 404.
4. Other Issues. Defendants shall issue to Marilyn Lowrey and/or any aides hired by Michael Lowrey a total of two placards to be pla ced in their vehicles permitting them to park in the driveway behind the Unit for tem porary loading and unloading purposes. Marilyn L owrey and/or any aides hired by Michael Lowrey shall not park their vehicles in the driveway for s uch purposes for more t han fifteen (15) mi nutes at any one tim e, and shall m ake every effort to m inimize any inconvenience or obstruction of dr iving paths to nearby tenants. During such tim es, Defendants shall not issue any tickets or tow such vehicles. Defendants shall retain written records of any complaints received about such vehicles being p arked in such locations during such times. Upon completion of the parking space and its accessible rou te identified in Section 2(b) of th is Agreement, the Lowreys agree to im mediately return both placards to th eir attorney, who in turn, shall promptly return both placards to counsel for Uptown Investors LLC.
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5. Release of Claims. In consideration of the prom ises made by the parties herein, the Lowreys and the FHC forever dis charge and release Defendants from any and all claim s, demands, causes of action, known or unknown, that they ever had or now have against Defendants by reason of any actual or alleged act, om ission, transaction, practice, occurrence, or other matters relating to the Unit, and the areas of Uptown and the matters covered in Sections 2, 3, and 4 of this Agreement that occurred before th e date the Lowreys an d FHC sign this Agreem ent, except as outlined in Sections 5(c) and (d) of this Agreement. This release of claims includes, but is not limited to:
(a) All claims arising out of or related to any federal, state and/or local laws including, without limitation: the federal Civil Rights Acts of 1866, 1871, 1964 and 1991; the Americans with Disabilities Act of 1990; the Michigan Elliott-Larsen Civil Rights Act; the Michigan Persons with Disabilities Civil Rights Act; and the Fair Housing Act, as each may have been amended from time to time; and
(b) All claims arising out of or related to any contract; any and all other federal, state or local constitutions, statutes, rules or regulations, or under any common law right of any kind whatsoever, or under the laws of any county or political subdivision, including, without limitation: all claims for any kind of tortious conduct (including, but not limited to, any claim of defamation or distress or invasion of privacy); violation of public policy; negligence; promissory or equitable estoppel; breach of policies, rules, regulations, handbooks or manuals; breach of express or implied contract or covenants of good faith or fiduciary duty; and/or failure to pay in whole or part any payments of any kind whatsoever.
(c) The release of claims outlined in Section 5 of this Agreement does not include the following with respect to the Lowreys: any claims by the Lowreys for monetary damages arising out of Defendants' alleged violations of the ADA, FHA, and/or PWDCRA related to the matters addressed in Sections 2, 3, and 4 of this Agreement, and any claims by the Lowreys for attorneys’ fees and costs incurred in litigating the Lawsuit, First Amended Lawsuit, and Second Amended Lawsuit related to the matters addressed in Section 2, 3, and 4 of this Agreement.
(d) The release of claims outlined in Section 5 of this Agreement does not include the following with respect to FHC: any claims by FHC for monetary damages arising out of Defendants alleged violations of the ADA, FHA, and/or PWDCRA related to the matters addressed in Sections 2, 3, and 4 of this Agreement, and any claims by FHC for attorneys’ fees and costs incurred in litigating the Lawsuit, First Amended Lawsuit, and Second Amended Lawsuit related to the matters addressed in Section 2, 3, and 4 of this Agreement; any claims for exterior modifications except those expressly identified in Section 2; and any claims by FHC for interior modifications to residential units other than the Unit.
6. No Admission of Liability. This Agreement does not constitute an admission by Defendants (or any one of them individually) of any wrongful action or violation of any federal, state, or local statute or common law rights. Defendants specifically deny any wrongful action or conduct on their part. The parties make this Agreement solely in the interest of avoiding the costs of litigating the Lawsuit, First Amended Lawsuit, and Second Amended Lawsuit related to the matters addressed in Sections 2, 3, and 4 of this Agreement.
Page 8 of 12

2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 9 of 12 Pg ID 361
7. Dismissal of Motion for Preliminary Injunction. The Lowreys authorize and direct their attorney to withdraw without prejudice their Motion for Preliminary Injunction against Defendants that is pending in the Court. The Lowreys further agree that withdrawal of the Motion for Preliminary Injunction is a prerequisite to performance of any of the work performed outlined in Sections 2, 3, and 4 of this Agreement.
8. Consultation with attorneys. T he parties acknowledge that they have been represented by their ow n attorneys throughout all of the negotiations prior to the execution of this Agreement. The parties further acknowledge that they executed this Agreement after being advised to consult with counsel of thei r choice prior to executing the Agreement and after having an opportunity to consult with such counsel. Th e Lowreys and FHC each further acknowledge that they have read this Agreem ent carefully; that they had an opportunity to have its provisions explained to them by their respective attorn eys; that they fully understand the term s and significance of this Agreement; that they have signed it voluntarily and of their own f ree will; and that they intend to abide by its provisions without exception. By exe cuting this Agreement, the Lowreys and FHC represent and acknowledge that they do not rely, and have not relied, upon any representation or statem ent made by Defendants or their respective attorneys with rega rd to the subject matter of the Lawsuit, First Am ended Lawsuit, Second Am ended Lawsuit, other than the written statements set forth in this Agreement.
9. Severability. If any term or provision of this Agreement is declared by any Court of competent jurisdiction to be invalid or unenforc eable, the remaining provisions of this Agreem ent shall remain valid and binding on the parties.
10. Other. This Agreem ent sets forth the en tire agreement among the parties with respect to the m atters set f orth herein and su persedes all prior agreem ents, arrangements, and understandings among the parties. This Agreem ent shall be governed by, and construed and enforced in accordance with, the laws of the st ate of Michigan. Should any provision of this Agreement require interpretation or construction, it is agreed by the parties that the court (or o ther entity) interpreting or constru ing this Agreem ent (or the Exhibits hereto) shall not apply a presumption that the provisions hereof shall be more strictly construed against one party by reason of the rule of construction that a docum ent is to be construed more strictly against the party who prepared the Agreem ent (or Exhibits hereto ), it being agreed that all parties (by their resp ective attorneys) have participated in the preparation of all provisions of this Agreement. This Agreement is binding upon, and shall inure to the benefit of, the parties and thei r respective heirs, distributees, executors, administrators, personal representatives, successors, insurers, and assigns. This Agreement may not be used as evid ence in any subsequent proceeding, or any other matters related to litigation of the Lawsuit, First A mended Lawsuit, and/or Second Am ended Lawsuit, except in a proceeding in which any of the parties alleg es a breach of, or otherwise seek s enforcement of, this Agreement or interposes this Agreement as a defense.
Page 9 of 12

2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 10 of 12 Pg ID 362

11. Counterparts; Facsimiles. This Agreement may be executed in coun terparts which, when taken together and reflect the signatures of all parties, shall be deemed a fully executed agreement for all purposes. Copies and other facsim iles of this Agreement (including any “.pdf” or “fax” copy) including all signatures, shall be deemed the same as the original for all purposes.

IT IS SO ORDERED.

Nancy United

s/Nancy G. Edmunds G. Edmunds States District Judge

Dated: July 26, 2007

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on July 26, 2007, by electronic and/or ordinary mail.

s/Carol A. Hemeyer Case Manager

_____________________ APPROVED AS TO FORM AND CONTENT:
SIGNATURES ON NEXT DOCKET ENTRY

Page 10 of 12

2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 11 of 12 Pg ID 363

AGREED:

MICHAEL LOWREY:

MARILYN LOWREY:

_____________________________________ _____________________________________

Date: _________________________

Date:

_________________________

Explained and Approved by:

_____________________________________ J. Mark Finnegan, Counsel for Michael & Marilyn Lowrey

FAIR HOUSING CENTER:

By: _________________________________

Its: _________________________________

Date: _________________________

Explained and Approved by:

_____________________________________ Stephen M. Dane, Counsel for Fair Housing Center

BEZTAK PROPERTIES

BE

ZTAK COMPANIES

By: _________________________________

By: _________________________________

Its: _________________________________

Its: _________________________________

Date: _________________________

Date:

_________________________

BILTMORE PROPERTIES

COMPANIES, INC.

WARNER,

CANTRELL & PADMOS, INC.

By: _________________________________

By: _________________________________

Its: _________________________________

Its: _________________________________

Date: _________________________

Date:

_________________________

SIGNATURES CONTINUED ON NEXT PAGE

Page 11 of 12

2:06-cv-13408-NGE-MKM Doc # 58 Filed 07/26/07 Pg 12 of 12 Pg ID 364

MONOGRAM HOMES, INC.

UPTOWN INVESTORS, L.L.C.

By: _________________________________

By: _________________________________

Its: _________________________________

Its: _________________________________

Date: _________________________

Date:

_________________________

LOONEY, RICKS, KISS

UPTOWN INVESTORS II, L.L.C.

By: _________________________________

By: _________________________________

Its: _________________________________

Its: _________________________________

Date: _________________________

Date:

_________________________

1416850_1.DOC

Page 12 of 12

 
 2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 1 of 23 Pg ID 473

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Michael Lowery and Marilyn Lowery,

) Case.: 06-13408-NGE-MKM

)

Plaintiffs

)

)

vs.

)

Judge NANCY G. EDMUNDS

)

Beztak Properties, Inc.; Beztak Companies, Inc.)

Biltmore Properties Companies, Inc.

) Magistrate MONA MAZOUB

Uptown Investors L.L.C., Monogram Homes )

Warner, Cantrell, & Padmos, Inc.,

)

Looney, Ricks, Kiss, and Canton Township, ) JURY DEMANDED

)

Defendants

.

)

J. Mark Finnegan (P68050) Denise M. Heberle (P64145) Heberle & Finnegan, PLLC Attorneys for Plaintiffs 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 hffirm@comcast.net
Brett Rendeiro (P64972) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Defendant Warner, Cantrell & Padmos, Inc. 39500 High Pointe Blvd, Suite 150 Novi, MI (248) 567-7400 barendeiro@varnumlaw.com
Gerard Mantese (P34424) Mantese & Associates, PC Attorneys for Defendant Biltmore Properties Companies, Inc. 1361 E. Big Beaver Road, Troy, MI 48083 (248) 457-9200 gmantese@manteselaw.com

Megan P. Norris (P39318) Leigh R. Greden (P61859) Miller, Canfield, Paddock and Stone, Attorneys for Defendants Beztak Properties, Inc., Beztak Companies, Inc., Uptown Investors, LLC, and Monogram Homes 101 N. Main, 7th Floor Ann Arbor, MI 48104 (734) 663-2445 greden@millercanfield.com
Theresa L. Kitay Law Office of Theresa L. Kitay Attorney for Def. Looney, Ricks, Kiss 578 Washington Blvd., Suite 836 Marina Del Ray, CA 90292 (310) 578-9134 tkitay@kitaylaw.net

SECOND AMENDED COMPLAINT

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 2 of 23 Pg ID 474
Preliminary Statement Plaintiffs Michael Lowery and Marilyn Lowery allege: 1. In the state of Michigan and nati onwide there is an acute shortage of accessible rental housing available to persons with disabilities and their families. As a result, Congress directed over ten years ago that newly c onstructed multifamily housing units on ground floors mu st meet accessibility standards. The State of Michigan s oon thereafter iss ued its own laws requir ing the similar accessibility. Unfortunately, many arch itects, builders and apartment companies have wantonly ignored the law, and cont inue to construct ground floor multifamily housing that that is not accessible to persons with mobility impairments. This is illegal discrimination, and denies housing to persons with disabilities. In addition, non-disabled tenants who rent these inaccessible apartments are unable to host friends and family who hav e mobility impairments. This failur e to build apartments so that they are accessi ble stigmatizes persons with disabilities and their families and friends. This lawsuit is brought to help remedy this wanton discrimination in Southeastern Michigan. 2. This action is brought to enforce the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fa ir Housing Amendmen ts Act of 1988 ("FHAA"), 42 U.S.C. §§ 3601-3619; Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181- 12189; and the Michigan Pe rsons With Disabilities Civil Rights Act (“P WDCRA”), MCL Se ction 37.1301-1303 relating to the business office and MCL Section 37.1501-1507 relating to multifamily housing.
2

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 3 of 23 Pg ID 475
3. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345, 42 U.S.C. § 3614(a), and 42 U.S.C. § 12188(b)(1)(B). The Cour t has supplemental jurisdiction over the Michi gan law claim because the claim arises out of the same factual situation as the Federal claims. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the subj ect apartment complex and its adj acent facilities are located in Canton T ownship, Michigan, and each Defendant resides in or does business in the Eastern District of Michigan.
PARTIES 4. Plaintiff Michael Lowery is a U.S. citizen and a resident of the Uptown Apartments in Ca nton Michigan. He has a mobility im pairment and require s a wheelchair for ambulation. He is a person with a disability as that term is defined by the FHAA, ADA, Section 504 of the Rehabilitation Act, and the PWDCRA. 5. Plaintiff Marilyn Lower y is a U.S. citizen and the mother of Plaintiff Mike Lowery. She frequently visits Uptown Apartments to visit and to care for her son. She needs to access his apartment and its adjacent parking, as well as the rental offices and other common use areas of Upto wn Apartments. She has a mobility impairment and for at least ten years has been issued a disability placard by the State of Michigan. She is a pers on with a disability as that term is defined by the FHAA, the ADA and the PWDCRA. 6. Defendant Beztak Properties, Inc. is a corporation organized under the laws of Michigan that conducts business in the Eas tern District of Michigan. Defendant Beztak Properties is responsible for the design, construction, building,
3

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 4 of 23 Pg ID 476
and/or operation of a number of apartment complexes, including the Uptown Apartments, located in Canton Michigan, where Plaintiff Mike Lowery lives. 7. Defendant Beztak Companies , Inc. engaged in a joint venture with Defendant Biltmore Properties Corporat ion and some or all of the other Defendants to design, construct, build an d/or to operate the Uptown Apartments and/or nearby adjacent side walks and facilities that are not reasonably accessible to and usable by Plaintiff Lowery. 8. Defendant Biltmore Properties Companies, Inc. engaged in a joint venture with Defendant Beztak Companies and some or all of the other Defendant s to design, construct, build and/or to oper ate the Uptown Apartments and nearby adjacent sidewalks and facilities that are not reasonably accessible to and usable by Plaintiff Lowery. 9. Defendant Uptown Investors L.L.C. is a corpor ation organized under the laws of Michigan that conduct business in the Eastern District of Michigan. Defendant Uptown Investors L.L.C is or was the owner of Uptown Apartments or is or has been responsible for the design, construction, building, and/or operation of the Upt own Apartments, located in Canton Michi gan, where Plaintiff Mik e Lowery lives. 10. Defendant Monogram Homes is a Michigan Corporation. Defendant Monogram Homes is responsible for the design, construction, building, and/or operation of the Uptown Apar tments, located in Canton Michigan, where Plaintiff Mike Lowery lives.
4

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 5 of 23 Pg ID 477
11. Defendant Warner, Cantrell, & Padmos, Inc., is a civil engineering firm. Upon information and belief, it is responsible for the design, construction, building, and/or operation of the Upto wn Apartments and adj acent facilities, located in Canton Michigan, where Plaintiff Mike Lowery lives. 12. Defendant Looney Ric ks Kiss is t he architect for the Uptown Apartments and adjacent facilities. It is responsib le for the design, construction, build ing, and/or operation of the Uptown Apartments and adjacent facilities, located in Canton Michigan, where Plaintiff Mike Lowery lives. 13. Defendants Beztak Properties, Inc., Beztak Companies, Inc., and Uptown Investors I and have the same address, and upon information and belief, many of the same employees and principals. 14. Each of the above Defendants is s ued under the FHAA (Count 1), Title III of the ADA (Count 2), and under the Mich igan PWDCRA (Count 3). None of the above Defendants is sued under the governmental entity claim (Count 4). 15. Defendant Canton Township is a Defendant onl y and the only Defendant pursuant to Count 4 below, under Title II of the ADA and under Section 504 of the Rehabilitation Act. C anton Township is a Michigan “municipal corporation” pursuant to M.C.L.A. 691.1401( 1)(a) and is a “public entity” as that term is defined under 42 U.S.C. § 12131(1); 28 C.F.R. § 35.1 04. Upon information and belief, the City has received and will c ontinue to receive federal fun ds for purposes of the Rehabilitation Act and fo r the Civil Rights Restoration Act, 29 U.S.C. § 794(b)(1)(A). Upon inf ormation and belief, the inaccessible curb ramps and sidewalks directly adjacent to Up town Apartments and Ridge Road, and
5

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 6 of 23 Pg ID 478

adjacent to Cherry Hill Road and Uptown Apartments, were constructed or

altered by, on behalf of, or for the use of Ca nton Township. Canton Township is

sued pursuant only to Count 4 below, and not sued pu rsuant to the FHAA, Title

III of the ADA, nor the Michigan PWDCRA.

FACTS

16. Each Defendant either designed, built, construct ed, and/or operates the

Uptown Apartments or some of the sidewalks and other facilities adjacent thereto

in Canton, Michigan. These apartment s and facilities suffer from numerous

defects in design or construction that ma ke the facilities not accessible to nor

readily usable to Plaintiffs Lowery nor by most persons with disabilities. The

Uptown Apartment complex consists of approximately 30 apartment buildings,

containing a total of approximately 300 apartments. The complex also contains a

pool, club house, exercise gym, meeti ng areas and a busines s office. The

Uptown Apartments complex has several streets and intersections, and

sidewalks throughout.

17. The Uptown Apartments became

available for first occupanc y

approximately when Mike Lowery moved in late 2005, although several buildings

and ground floor apartments were built for first occupancy well after he moved in.

Plaintiff Mike Lowery has been a tenant there for the last several months. Mr.

Lowery uses a wheelchair to ambulate. Because there are no elevators and no

ramps or any other way for a person using a wheelchair to access the second

and third floor apartments at Uptown, Mr. Lowery needs a ground floor unit.

6

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 7 of 23 Pg ID 479

18. When he first inquired about renting an apartment at Uptown, the rental

agent told Mr. Lowery that the co mplex had “three handicap accessible

apartments” in the complex. The law requires that all ground floor units in a

complex like Uptown must be accessible; Uptown should have had at least ninety

accessible units, not just three.

19. The rental agent showed Mr. Lowery one of the three un its identified by

Uptown’s rental agent as being “ handicap accessible.” The agent assured Mr.

Lowery that this apartment w as specifically designed for tenants who use a

wheelchair. Mr. Lowery agreed to rent the unit. Mr. Lowery disc overed that the

route into the apartment was steeper than 8.33% and threatened to throw his

wheelchair over. A few days later, Upto wn informed Mr. Lowery that another of

the three “handicap accessible” apartm ents was av ailable, and Mr. Lowery

agreed to rent that unit instead. He has lived there at all times since.

20. Soon after taking oc cupancy, Mr. Lowery discover ed that there is no

accessible route into his apartment and fr om his apartment to Uptown’s rental

offices, its clubhouse, its pool, its exercise room, its playground, its picnic area,

or its dog walking park. The curb

ramps, parking spaces , sidewalks and

pathways suffer from cross slopes ex ceeding 2% and approaching 18% in

places, nine times steeper than the maxi mum permitted by law. These items

suffer from running slopes exc eeding 18%, nearly four times steeper than the

maximum permitted by law. In additi on, there are steps throughout the

accessible routes. In sum, the routes into and from his apartment and to

7

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 8 of 23 Pg ID 480
common areas of Upt own Apartments is no t usable by him nor by most persons with disabilities. 21. As a result, Mr. Lowery is v irtually trapped in his apartment and has been since the day he mov ed in. He has no access to the pool, exercise room, c lub house or meeting rooms. Even his mail box is not accessible to him. There is no accessible parking on any accessible route. He has no accessible route to the nearby ice cream shop, barber shop, community theater, and convenienc e store, or to public transportation. His apartment, its sidewalks, parking and ot her common use facilities are not usable by him nor by most other persons wit h disabilities. 22. The inside of his apar tment is not a ccessible to him nor to most persons with disabilities. For example, the bedroom and bathroom door s are too narrow, causing Mr. Lowery to scrape his fingers, toes, knees and chair wheels ag ainst the door frames when he tries to maneuv er through them. Mr. Lowery can not use his some of his closets, because they are deeper than 24 inches but the doors are not at least 31 and 5/ 8 inches wide. He can not unloc k his windows, because the hardware is 60 inches from th e floor. He can reach only one of the electrical outlets in his kitchen, and as a result he often shorts out his electricity when using more than two ap pliances in the kitchen. The thresholds t o his entrance doors are t oo high, jostling him every time he enters or leaves his apartment. Both of his bathrooms lack proper grab bars and also lack pr oper blocking for their later installation, and bot h toilets are improperly located. As a result, transferring from his chair to the toilet and using the showe r are
8

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 9 of 23 Pg ID 481
dangerous activities for Mr. Lowery. Because of these and numerous other accessibility defects, the apartments are no t usable b y Mr. Lowery nor by most persons with disabilities. Upon info rmation and belief, all of the ground floor apartments at Uptown suffer from some or all of these defects. 23. None of Uptown’s apartments is a ccessible to Mr. Lowery, so he can not rent another Uptown unit. Mr. Lowery is unable to visit his neighbors. There are steps blocking the front access to his and to each of the neighboring ground floor apartments. Virtually every ground floor apartment at Up town suffers from these defects. If he enters those apar tments through the garage, he risks damaging the door posts and he scrapes his fingers and toes. Because he can not access Uptown’s common areas, it is virtually impossible for him to meet and int eract with his neighbors. Since he can only use his back door, his only chance to meet his neighbors as they come and go is to lurk behind the apartments in the steeply sloping parking lots, dodging c ars. This is just the sort of isolation the Fair Housing Act and the Americans With Disabilities Act and the Michigan PWDCRA were passed to eradicate. 24. Mr. Lowery has repeatedly complain ed to Uptown about these and other accessibility defects. Mr. Lowery and his mother Plaintiff Marilyn Lowery even gave Uptown’s agent a newspaper clipping from the Detroit Free Press about a lawsuit that the United States Attor ney brought against another Southeastern Michigan apartment builder. The lawsuit was United States vs. Edward Rose and Sons, and was filed in Federal Court in Detroit. The article explains the accessibility requirements for new ap artment complexes, a nd what ha ppens
9

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 10 of 23 Pg ID 482
when builders ignore the law. Despite this notice and Mr. Lowery’s requests, Defendants have consistently refused to correct any of the accessibility defects. 25. The sidewalks and other facilities adjacent to Uptown Apartments lack any accessible route and are not accessible to and readily usable by Mr. Lowery, and are not usable by him nor most other persons with disabilities. 26. Plaintiff Marilyn Lowery Facts: Plaintiff Marilyn Low ery is the mother of Plaintiff Mike Lowery. She is older t han 65 years of age, and is a post polio survivor. For many years, on advice of her medical provider s, the State of Michigan has issued her a disa bility parking placard, permitting her to park in all designated accessible parking. Her mobi lity is never very good, and on some days her condition deteriorates, especially when she is fatigued. On these days, she can not readily navigate a step or a curb, and she must avoid slopes when possible. The steeper the slope, the higher the risk she will harm herself attempting to negotiate it. 27. Mrs. Lowery is a retired nurse. S he visits Mike Lowery often, and when his health aids fail to appear, she is often pr essed into service to minister to her son’s health and hygiene needs. Thus, she must park near his apartment and must enter and leave it often, under all sorts of inclement weather conditions. She needs an acces sible parking spac e as close as possible to Mr. Lowery’s apartment, and on the shortest possible fully accessible route. 28. Defendants have designated two par king spaces as accessible in the parking lot directly adjacent to Mike Lowery’s apartment building. These parking spaces and their acc ess aisle suffer from slopes exceeding 2% and up to nearly
10

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 11 of 23 Pg ID 483
6%, nearly three times the maximum permitt ed by law. In addition, the route from these designated parking spaces to Mr. Lowery’s apartment is not the “shortest possible” as required by the law, and the route contains a step, and contains running slopes in exc ess of 18% and cross slopes in excess of 14%, nearly seven times in excess of the maximu m permitted by law. As a result, this route is not usable by Mrs. Lowery, by Mr. Lowery, nor by the majority of persons with disabilities. 29. Mrs. Lowery often assists Mike Lo wery with his financial affairs. Sometimes she needs to access Uptown’s Rental offices. Originally, Uptown’s rental office was in building # 1X. T he designated accessible parking spaces for the rental office suffered from sl opes in excess of 2% up to exc eeding 9%, four and one half times the maximum permitted by law. The adjacent curb ramp had no level landing, and the ramp to t he office lacked required handrails and suffered from cross slopes exc eeding 4% (twice that permitted by law), and running slopes exceeding 7%, much mo re than the maximum 5% permitted by law. Therefore, the ol d rental offices violated federal and Mic higan minimum accessibility standards, and were never ac cessible to, nor read ily usable by, the Plaintiffs Lowery. 30. Compounding problems, around the beginning of year 2007, Defendants moved their rental office from building 1X into the Clubhouse, Building 65 XIII. This building has no designated acce ssible parking whatsoever, and lacks any accessible parking space on any accessible route into the office. Its front door is blocked by several steps. There is a large concrete ramp leading from a
11

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 12 of 23 Pg ID 484
sidewalk to the porch of t he Clubhouse. The sidewalk is not c onnected in any way to any accessible parking space. Th e large ramp suffers from cross slopes exceeding 4% (double the pe rmitted maximum cross sl ope) and suffers from running slopes exceeding 9%, nearly do uble the permitted maximum running slope of 5%. Therefore, the rental offi ces were never accessible to, nor readily usable by the Plaintiffs Lowery, and ar e not currently accessible to t hem. Plaintiffs need the offices to be made accessible immediately. 31. Defendant Canton Tow nship Facts. The Uptown Apar tments sit at the intersection of Cherry Hill Road with Ridge Road in Canton Township. When the Plaintiffs Lowery leav e the Upt own Apartments site, the first sidewalks they encounter run adjacent to those two roads . Upon inf ormation and belief, t hese sidewalks and their c urb ramps were built “by, on behalf of, or for the use of” Canton Township. Canton Township failed to ensure that these sidewalks were built in strict conformanc e with the ADAAG or the UF AS, because the sidewalks suffer from cross slopes in excess of 2% and running slopes in excess of 5% and even in excess of 8.33%. These sidewalks and curb ramps are not accessible to and readily usable to the Plaintiffs Lower y, and must be made co mpliant so that the Lowery’s can access the sidewalks and the businesses and facilities adjacent thereto. Upon information and belief, thes e violations are part of an overarc hing pattern and practice of discrimination by Canton To wnship by failin g to ensure that its sidewalks and curb ramps meet accessibility standards.
12

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 13 of 23 Pg ID 485
COUNT 1: FAIR HOUSING ACT CLAIMS 32. This claim is brought against all Defendants except Canton Township. Uptown Apartments contains residential apartment units that are "dwellings" within the meaning of 42 U.S.C. § 3602(b). 33. The ground floor units at Uptown Apartments that were designed and constructed for first occupancy after Ma rch 13, 1991 are "covered multi-family dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(A ) and are subject to the requirements of 42 U.S.C. § 3604(f)(3)(C). 34. Uptown Apartments comprises appr oximately 30 buildings containing residential rental dwellings built since the effective date of the acc essible design requirements of the Fair Housing Act. T hese buildings contain approximately 100 ground floor units that are subject to t he accessibility requirements of the Fair Housing Act. These units, including the one rented by Mr. Lowery were built for first occupancy close to the time Plaintiff Lowery moved in, and after. 35. Defendants failed to design and to c onstruct the covered dwelling units, their parking, sidewalks, dog walking areas, clubhouse, pool and other common use and public use areas in the Uptown Apartments in such a manner that:
(a) the public us e and common use portions of such dwellings are readily accessible to and usable by handicappe d persons, and are usable by most persons with disabilities;
(b) all the doors designed to allow pa ssage into and within all premises within such dwellings are sufficiently wi de to allow passage by most persons in wheelchairs; and
13

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 14 of 23 Pg ID 486
(c) all premises within such dwellings contain the following features of adaptive design:
(i) an accessible route into and through the dwelling; (ii) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (iii) reinforcements in bathroom walls to allo w later installatio n of grab bars; and (iv) usable kitchens and bathrooms such that an in dividual in a wheelchair can maneuver about the space. 36. Defendants, through the actions described above, have: (a) Discriminated in the rental o f, or ot herwise made unavailable or denied, dwellings to Plaintiffs and to per sons because of handicap, in violation of 42 U.S.C. § 3604(f)(1); (b) Discriminated against Plaintiff Mike Lowery in the t erms, conditions, or privileges of rental of a dwe lling, or in the provision of services or facilitie s in connection with the rental of a dwelling, because of handic ap, in violation of 42 U.S.C. § 3604(f)(2); and (c) Failed to design and cons truct dwellings in compliance with the requirements mandated by 42 U.S.C. § 3604(f)(3)(C). 37. The conduct of Defendants described above constitutes a violation of the Fair Housing Act. 38. As persons who have been the vi ctims of Defendants' disc riminatory housing practices, Plaintiffs Michael Lowery and Marilyn Lowery are aggrieved
14

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 15 of 23 Pg ID 487

persons as defined in 42 U. S.C. § 3602(i) and have suffered injuries as a res ult

of Defendants’ conduct described above.

39. Defendants’ conduct described above wa s intentional, willful, and taken in

disregard for the rights of others, including the Plaintiffs Lowery.

COUNT 2: TITLE III OF THE AMERICANS WITH DISABILITIES ACT CLAIMS

40. This count is brought against all Defendants except Canton Township.

The two rental offices at the Uptown

Apartments are a sales or renta l

establishment, the operations of whic h affect commerce, and therefore are

"public accommodations" within the meaning of 42 U.S.C. § 12181(7).

41. The rental offices at the Upto wn Apartments were each designed and

constructed for first occupancy after J anuary 26, 1993. The rental offices and the

facilities, privileges, and accommodations provided for the pu blic appurtenant to

the use of the rental offices, including the parking and sidew alks are covered by

the prohibition on discrimination in 42 U. S.C. § 12182(a), and ar e subject to the

design and construction requirements of 42 U.S.C. § 12183(a)(1).

42. The Defendants failed to design and co nstruct both rental offices and their

appurtenant parking and sidewalks in such a manner that the facilities are readily

accessible to and useable by individuals with disabilities.

43. The actions of the Defendants, as described above, constitute:

(a) Discrimination against Plaintif fs and against the majority of individua ls

with disabilities in th e full an d equal en joyment of the services, facilities,

privileges, and accommodations of a place of public accommodation, in violation

of 42 U.S.C. § 12182(a); and

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(b) A failure to design and construct public accommodations in compliance with the requirements mandated by 42 U.S.C. § 12183(a)(1). 44. The conduct described in paragr aphs above constitutes a violation of the Americans With Disabilities Act, entitling Plaintiffs to declara tory and injunctive relief, and a reasonable attorneys fee and costs.
COUNT 3: MICHIGAN PERSONS WITH DISABILITIES CIVIL RIGHTS ACT (PWDCRA)
45. Covered Multifamily Ground Floor Apartments. This claim is brought against all Defendants except Canton Town ship. Plaintiffs bring this claim pursuant to the Article 5 of the M ichigan PWDCRA, M.C.L. §§ 37.1501-37.1507, which requires all ground fl oor apartments at Uptown A partments in Canton to meet detailed accessibility requirements, including, among others, those set forth in the Michigan Building Code, adopting the ICC/ANSI A117.1-1998. Defendants have constructed and continue t o operate all of the gr ound floor apartments— including Plaintiff Mike Lowery’s apartment—to violate all applicable Michigan accessibility standards. 46. Defendants discriminated against Plai ntiffs by designing, constructing and/or maintaining Uptown ’s ground floor apartments, and/or their on-site facilities, common use areas, features, parking, and sidewa lks serving the Uptown Apartments in violation of the applicable accessibility standards and not to be accessible to and readily usable by Plaintiffs. 47. Uptown’s Rental/Business Offices. This claim is brought against all Defendants except Canton Township. Plaintiffs bring this claim pursuant to the
16

2:06-cv-13408-NGE-MKM Doc # 73 Filed 09/07/07 Pg 17 of 23 Pg ID 489

Article 3 of the Michigan PWDCRA, M. C.L. §§ 37.1301-37.1303, which requires

the rental/business offices at Uptown Apartments in Canton to meet detaile d

accessibility requirements including, among others, the Michi gan Building Code,

incorporating the ICC/ANSI A117.1-1998, or the ADAAG, whichev er provides for

greater accessibility.

48. When Mike Lowery first rent ed his apartment at Uptown, the

rental/business office lacked ac cessible parking on an accessible route int o the

offices. The designated par king and route into the offices suffered from cross

slopes well in excess of 2%, the ramps were too steep, and the route into the

offices was not usable by Plaintiffs and most persons with di sabilities, and was

not accessible to and readily usable by Plaintiffs and others.

49. Within the last few months, Defendants moved Uptown Apar

tments’

Rental/Business offices from their orig inal location and in to the Club house

building. The Clubhouse violates applicab le Michigan accessibility requirements,

including but not limited to, that there is no accessible parking, an d no accessible

route into the Rental/Business offices. Defendants were well a ware that the

Clubhouse lacks any accessible parking, an d has no parking on any access ible

route into the rental office s, but Defendants transferred their rental offices into

this inaccessible Clubhouse anyway.

50. Defendants’ conduct described above wa s intentional, willful, and taken in

disregard for the rights of others, includi ng Plaintiffs. Neither the ground floor

apartments, their adjacent fac ilities, nor their rental o ffices are accessible to, nor

readily usable by Plaintiffs nor other persons with disabilities. These facilities are

17

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not usable by most pe rsons with disabilities. Plaintiffs are entitled to declaratory and injunctive relief, compensatory, puniti ve and exemplary damages, as well as a reasonable attorneys fee and costs.
COUNT 4: CLAIMS AGAINST CANTON TOWNSHIP 51. This claim is brought only against Defendant Canton Township. Plaintiffs bring this count und er Title II of the Americans With Disab ilities Act (ADA), Section 504 of the Rehabilitation Act, and under Michigan law. These claims are for declaratory and injunctive relief, and for damages. 52. Title II of the ADA pr ovides that “no qualified indiv idual with a disability shall, by reason of such disabilit y, be excluded from participation in or be denied the benefits of the s ervices, programs, or activities of a pub lic entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II of the ADA defines Canton Township as a “ public entity.” 42 U. S.C. § 12131(1). Canton Township’s sidewalks are public “ser vice, program or activity” subject to the Act. 53. Title II of the Americans With Dis abilities Act requires that when a public entity builds or alters any part of a facility a fter January 26, 1992 , it shall to the maximum extent possible, be altered so that it is readily accessible to and usable by individuals with disabilities. 42 U.S.C. §§ 12146 & 12 147; 28 C.F.R. § 35.151(a), (b) & (e); Ability Center of Gr eater Toledo v. City of Sandusky, Ohio, 133 F.Supp. 2d 589, 591-92 (N. D.Ohio 2001), aff’d 385 F.3d 901 at 904 (6 th Cir. 2004)(City must i nstall ADA-compliant curb ramps at all resurfaced intersections). The c urb cuts m ust meet specific federal building and design
18

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standards, 28 C.F. R. § 35.151(c); Tennessee v. Lane , 541 U.S. 509, 124 S.Ct. 1978, 1993 (2004). Canton Township ha s resurfaced or other wise altered the intersections and sidewalks described ab ove, but failed to install proper sidewalks and curb cuts. 54. Also, Canton Township has f ailed to construct and to maintain its sidewalks and curb ramps in a f orm that is “accessible to and readily usable” by Plaintiffs. Among other pl aces in Canton Township, the sidewalks adjacent to Uptown Apartments, and to Ch erry Hill a nd Ridge Roads, ha ve cross slope s exceeding 2% and running slopes exceeding 8.33%. This violates both Title II of the ADA as well as Section 504 of the Rehabilitation Act. See Barden v. City of Sacramento, 292 F.3d 1073, 1076-77 (9 th Cir. 2002), cert. denied, 539 U.S. 958 (2003)(explaining broad definit ion of “public service, program, or activity” under the ADA a nd under Section 50 4 and finding that “maintaining accessibility of sidewalks for individuals with disabilities” fits that definition). 55. By their ac tions complained of herein, Defendant Canton Township has intentionally discriminated against Plaintiffs due to their disa bilities. Plaintiffs are entitled to injunctive r elief ordering Canton Township to bring t hese and f uture services, programs or activities into compliance, com pensatory damages and attorneys fees and costs. 56. Additionally, the Rehabilitation Act r equires that when a public entity that receives federal funding build s or alters any part of a facility, it shall to the maximum extent possible, be made so that it is read ily accessible to and usable by individuals with dis abilities. 29 U.S.C. § 794. “[n]o otherwise qualified
19

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individual with a disability...sha ll, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any pr ogram or activity rece iving Federal financial assistance.” 29 U.S.C. § 794(a). U pon information and belief, the Canton Township receives Federal financial assi stance. The Rehabilitation Act defines “program or activity” as “all of the operat ions of” a qu alifying local government. 29 U.S.C. § 794(B)(1)(A). 57. As described above, Canton Township has created, maintained, or altered intersections and sidewalks inc luding those adjacent to Uptown Apartments, without installing sidewalks and curb cuts that meet the requ ired accessibility standards and codes. Each of these failu res by the Canton Township has made each of these new or altered services , programs or activities not readily accessible to and us able by Plaintiffs. By their acti ons complained of herein, Defendant has intentionally discrimi nated against Plaintiffs due to their disabilities. Pla intiffs are entitled to injunctive relief orderin g the Ca nton Township to bring these services, progr ams or activities int o compliance, individual compensatory damages, and attorneys fees and costs. 58. Also, the above complained of fa ilure by the Canton Township to construct, alter and maintain its services, programs or activities to be accessible to Plaintiffs also violates Michigan law at M.C.L. § 37.1301-02. Plaintiffs are entitled to compensatory damages, as well as injunctive and declaratory relief, attorneys fees and costs.
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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court enter an order that:

1. Declares that Defendants’ policies and practices, as alleged herein,

violate the Fair Housing Act, the Amer icans With Disab ilities Act and the

Michigan Persons With Disabilities Civil Rights Act;

2. Enjoins Defendants, their offi cers, employees, agents, successors,

and all other persons in active concert or participation with Defendants, from:

(a) Failing or refusing to br ing the bus iness office, the cover ed

dwelling units, their ac cessible routes, and public use and common us e areas at

Uptown Apartments into immediate complia nce with the requirem ents of the Fair

Housing Act, including but not limited to, 42 U.S.C. § 3604(f )(3)(C), and also

applicable Michigan law;

(b) Failing or refusing to take such affirmative steps as may be

necessary to restore Plaintiff to the pos ition he would have been in but for the

discriminatory conduct; and

(c) Failing or refusing to des ign and construct any covered multi-

family dwellings in the future in compli ance with the requirement s set forth i n 42

U.S.C. § 3604(f)(3)(C), its implementing guidelines, and with applicable Michigan

accessibility standards;

3. Awards such damages as woul d fully compensate Plaintiff for his

injuries and damages resulting from

Defendants’ discriminatory conduct,

pursuant to 42 U.S.C. § 3614(d)(1)(B) and applicable Michigan law;

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4. Awards Plaintiff punitive and or exemplary damages becaus e of the

intentional and willf ul nature of Defendants ’ conduct, pursuant to 42 U.S.C. §

3614(d)(1)(B) and applicable Michigan law; and

5. Declares that practices of

the Defendants relating to their

rental/business offices, as alleged her ein, violate Title III of the ADA and

applicable Michigan law;

6. Enjoins the Defendant s and all other persons in active c oncert or

participation with it, from:

(a) Failing or refusing to bring the rental offices at the subject complex and

others, and the parking, side walks leading to and from the rental offices, into

compliance with the requirement s of 42 U.S.C. § 12183(a)(1) and applic able

Michigan standards;

(b) Failing or refusing to take such affirmative steps as may be necessary

to restore Plaintiff, as nearly as practicable, to the position he would have been in

but for the discriminatory conduct; and

(c) Failing or refusing to design and construct any public accommodations

in the future in compliance with t he requirements of 42 U.S.C. § 12183(a)(1) and

applicable Michigan law;

7. For C anton Township, order the Township to correct all defective

sidewalks and curb ramps, and to ensure in the future that all resurfacing or other

alterations result in sidewalks and curb ramps that are r eadily usable by and

accessible to Plaintiffs; Ensure that a plan is in place to correct all sidewalks and

curb ramps that violate the ADAAG and the UFAS.

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Plaintiff requests a jury trial of all issues triable thereby. Plaintiff further prays for such additional relief as the interests of justice may require.

Respectfully

submitted,

J. Denis Heberle 2580 Ann 734-302-3233 734-302-3234

/s/ J. Mark Finnegan_______ Mark Finnegan (P68050) e M. Heberle (P64145) & Finnegan, PLLC Craig Road Arbor, MI 48103
fax hffirm@comcast.net
Attorneys for Plaintiff

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 2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 1 of 19 Pg ID 685

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Michael Lowrey,

)

)

Plaintiff

)

)

)

Beztak Properties, Inc., et al

)

)

Defendants

.

)

J. Mark Finnegan (P68050)

Denise M. Heberle (P64145)

Heberle & Finnegan, PLLC

Attorneys for Plaintiff

2580 Craig Road

Ann Arbor, MI 48103

(734) 302-3233

hffirm@comcast.net

Brett Rendeiro (P64972) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Defendant Warner, Cantrell & Padmos, Inc. 39500 High Pointe Blvd, Suite 150 Novi, MI (248) 567-7400 barendeiro@varnumlaw.com

Gerard Mantese (P34424) Mantese & Associates, PC Attorneys for Defendant Biltmore Properties Companies, Inc. 1361 E. Big Beaver Road Troy, MI 48083 (248) 457-9200 gmantese@manteselaw.com

Case No.: 06-13408-NGE-MKM
Judge NANCY G. EDMUNDS
Magistrate MONA MAZOUB
Megan P. Norris (P39318) Leigh R. Greden (P61859) Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendants Beztak Properties, Inc., Beztak Companies, Inc., Uptown Investors, LLC, and Monogram Homes 101 N. Main, 7th Floor Ann Arbor, MI 48104 (734) 663-2445 greden@millercanfield.com
Theresa L. Kitay Law Office of Theresa L. Kitay Attorney for Defendant Looney, Ricks, Kiss 578 Washington Blvd., Suite 836 Marina Del Ray, CA 90292 (310) 578-9134 tkitay@kitaylaw.net

PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST ALL DEFENDANTS EXCEPT CANTON TOWNSHIP TO COERCE DEFENDANTS’ COMPLIANCE
WITH JULY 26, 2007COURT ORDER (Doc. 58) PARAGRAPHS 2(b), 2(c), 2(d), 2(f), 2(g) and 2(h)

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 2 of 19 Pg ID 686
Plaintiffs respectfully move this Court to find all Defendants except Canton Township)1 in civil contempt of the July 26, 2007 Order (Doc. 58) paragraphs 2(b), 2(c), 2(d), 2(f), 2(g) and 2(h), and/or to take all st eps necessary to enforce several of that Order’ s provisions and to compensate Plaintiffs for Defendants’ ten-month delay in complying with the Order.
Plaintiffs state in support: 1. On July 26, 2007 the Court ordered all Defendant s, except Canton Township which was not yet party to the case, to make several hundred thousand dollars’ worth of accessibility retrofits, and set deadlines for completion. (Order, Doc. 58) Defendants made many of the ordered retrofits, but in several instances violated the construction standard s set by the Order. Plaintiffs now move the Court to find these Defendants in civil contempt and to fashion all relief necessary to force them to immediately comply with the Order as to the following facilities: A. Paragraph 2(c): Five newly constructed in accessible sidewalk ramps along Defendants “Stage 1 cons truction.” These five sidewalk ramps lack required handrails along both s ides, lack required edge protec tion, and lack required landings; B. Paragraphs 2(c) and 2(d): Eleven newly c onstructed inaccessible curb ramps along Defendants’ “Stage 1 and Stage 2 construction.” These curb ramps suffer from vertical changes in excess of ¼ inch which caus e
1 Defendant Canton Township is not a party to the July 26 Order. All other Defendants are parties to that Order, and are the subjects to which this motion is directed.
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water and debris to pool on the curb ramp surfaces obscuring t he curb ramps and making them slippery. Thes e curb ramps also suff er from transitions which are not on the same level; C. Paragraph 2(b): Plaintiff Lowrey’s designated parking space is too narrow and too steep and he must use the defective sidewalk ramp heading west from his apartment to access it; D. Paragraph 2(h): Plaintiff Lowrey’s mail kiosk is too steep and relies on the defective sidewalk ramp heading west from his apartment; E. Paragraph 2(f): Plaintiff Lowrey’s tras h dumpster pad is too steep; and; F. Paragraph 2(g): Defendants’ propos al to create accessible retail parking and an accessible route to and from their public theater and the retail establishments served by that parking does not meet applicable standards. The proposed routes stop well short of the entrances to eac h of Defendants’ retail establishments, and the proposal lacks any deadlines for completion. Moreover, Def endants propose to follow the ANSI standards for these facilities th ough it is the much stricter ADAAG standards which apply to commercial establishments and their accessible parking. 2. The Order specifies that any di sputes concerning compliance shall be brought to the Court for resolution (Doc. 58 ¶ 2(i)). 3. Plaintiffs ask the Court to se t a hearing to determine all necessary sanctions to coerce Defendants to co mply with the Order and to determine
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damages owing to Plaintiffs for Defendant s’ failure f or the last ten months to

timely comply with the Court’s Order.

Respectfully

submitted

/s/ J. Mark Finnegan________ J. Mark Finnegan (P68050) Denise M. Heberle (P64145) Heberle & Finnegan PLLC 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 (734) 302-3234 fax hffirm@comcast.net
MEMORANDUM IN SUPPORT
SCOPE OF MOTION
Plaintiffs Mike and Marilyn Lowrey are seeking an Order from the Court—
through a finding of civil contempt or otherwise—to enforce paragraphs 2(b),
2(c), 2(d), 2(f), 2(g) and 2(h) of the Court’s Order entered on July 26, 2007 (Doc.
58.) This motion applies to all Defendant s except Canton Township who was not
a party to the lawsuit at the time the Order was entered.
I. PROCEDURAL HISTORY
Throughout the years 2006 and 2007, t he parties negotiated a p otential
resolution to this lawsuit. On July 26, 2007 the Court ent ered its “Stipulated
Order of P artial Settlement and Conditional Release” (Doc. 58). At Section 2,
“Exterior Modifications”, Defendants were ordered to complete hundreds of
thousands of dollars’ worth of exterior co nstruction retrofits to the Uptown at
Canton complex. (Doc. 58, pp. 4-6) The Order contains very detailed and
4

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 5 of 19 Pg ID 689
specific construction standards to be strictly met. Id. The construction was to be completed by October 2007. Massive retrofitting occurred throughout August and September 2007, stopping in October 2007.
Magistrate Morgan convened a post -retrofitting facilitated s ettlement conference in late October 2007 and counsel for all parties attended. During that conference, Plaintiffs’ counsel told all defense counsel that there were numerous accessibility violations in the j ust-completed retrofitting, and orally prov ided several examples. Counsel for Defendants , and som e Defendants themselves replied that they underst ood, and “would invest igate” and g et back to Plaintiffs. Defendants made no corrections, and winter set in.
Now warm weather has returned, but t en months after entry of the Court’s Order Defendants have left the r etrofitting defects uncorrected. Indeed, the only retrofitted defect Defendants have touched is one s idewalk ramp leading into the park (“Defective Sidewalk Ramp # 5). Sadly, they rebuilt this ramp so that it yet again violates the accessibility standards. Plaintiffs now bring this motion.
II. FACTS RELEVANT TO MOTION The facilities relevant to this motion are shown on a detailed map attached hereto as Exhibit 2, and are verified by the sworn declaration of Marguerite Claire Finnegan attached hereto as Exhibit 1.2
2 Plaintiffs present their evidence herein through s worn written declarations. “Affidavits are appropriate on a preliminary injunction motion and typically will be offered by both parties”. See 11 A.C. W right, A. Miller & M. Kane, Federal Practice & Procedure , § 2949 at 214-15 (1995), and numerous cases collected therein. Indeed, a prelimin ary injunction may issue entir ely based on affidavits. See, e.g., Ross-Whitney Corp. v. S mith, Kline & French Laboratories , 207 F.2d
5

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II. Inaccessible Sidewalk Ramps: Defendants’ “Stage 1 Construction”.

The Order, ¶2(c) requires Defendants to retrofit an accessible route from

Plaintiff Lowrey’s apartment east and then north through the central park and into

the rental offices, the clubhouse,

the swimming pool and the

recreation/playground area, and west to Ridge Road’s sidewalk s leading to the

theater and Defendants’ other comme rcial establishments. Defendants

designated these routes as “Stage 1 constr uction.” Id. (Attachment A to Ex . 1)

These accessible routes were requi red to meet the American National

Accessibility Standards (ANSI A-117.1-1998). (Doc. 58, ¶2(c). ) But Defendants

retrofitted Stage 1 leaving the following violations of the ANSI and the Order:

II. A. Court-ordered Construction Standards for the Sidewalk Ramps.

The Order, ¶2(c) requires all “Stage 1” construction to meet ANSI A117.1-

1998’s accessibility standards. Here is what the ANSI requires. When any

sidewalk surface exceeds a maximum steepness, these steeper portions are

designated “ramps” and eac h is requir ed to have additional featur es..3

190, 198 (9th Cir. 1953). Pursuant to federal st atute, written sworn declarations are properly substituted for notarized affida vits in federal court proceedings. 28 C.F.R. Section 1746(2)(2006).
3 Sidewalk “ramps” vs. “curb ramps.” Sidewalk ramps should not be confused with curb ramps. Curb ramps are much shorter, and always mount a curb of some sort. Sidewalk “ramps” do not cross any curbs and can be up to 72 feet in length, with total rises in level up to 30 inches and can require handrails on both sides. Curb ramps, on the other hand, seldom have total rises exceeding 6 inches, and never under any circumstances require handrails. Defendants created eleven defective curb ramps as part of “Stage 1 and 2 construction” in addition to the five defective sidewalk ramps discussed here. Plaintiffs discuss Defendants’ eleven defective curb ramps later in this brief. See this brief’s sections II C and II D below at pp. 11-12.
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According to the ANSI: “Walking surfac es on accessible routes with a running slope [slope heading up the direction of tr avel] steeper than 1:20 [5%] are ramps and shall comply with Section 405.” ANSI § 405.1. Landings are required at the top and bottom of each ramp run, and the landings shall be at least 60 inc hes long, and be as wide as the sidewalk, and must be level, having a slope no steeper than 1:48 [2.08%]. ANSI § 405.7. Any ramp run having a total ris e greater than 6 inches must have handrails on both sides. ANSI § 405.8. In addition no ramp is permitted under any circumstances to have a total rise exceeding 30 inc hes. ANSI § 405.6. Finally, some ra mps must include edge protection to keep wheelch airs from ro lling off the sides of ramps and their landings. ANSI § 405.9.
Defendants have built five sidewalk ramps as part of their “Stage 1 construction.” These ramps violate t he Order and the ANSI and are inaccessible because they lack required handrails, edge protection and landings. The specific violations for each of the five sidewalk ramps follow here.
II. B. Defendants’ Five Defective Sidewalk Ramps: Full Details B. 1. Defective Sidewalk Ramp # 1. Beginning near the fire hydrant next to the North side of Apartment Building “1/X” and heading West along Uptown Avenue’s South sidewalk porti ons of the walk ing surfaces on the sidewalk have a running slope exceeding 1:20 or 5%. De claration of Marguerite Claire Finnegan (Ex. 1) ¶5(a ). Indeed, some of the walking surfaces exceed 8.33%. Id. This is never allowed in new construction. ANSI § 405.2. The distance between the landing at the top of the ramp run and the landing at the
7

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bottom of the ramp run is approximately 40 feet, with a total ris e exceeding 20

inches. Id. There are no handrails on the ramp. Id. Finally, within 10 inc hes

horizontally of the edge of portions of the ramp ther e are vertical drop-offs

exceeding ½ inch, but no edge protection. Id.

B. 2. Defective Sidewalk Ramp # 2. Beginning n ear the No rth side of

Apartment Building “6/I” and heading We st along Uptown Avenue’s South

sidewalk, portions of the walking surfac es on the sidewalk have a running s lope

exceeding 1:20 or 5% . (Ex. 1, ¶5(b)). The distance between the landing at the

top of the ramp run and the landing

at the bottom of the ramp run is

approximately 64 feet , with a total rise exc eeding 36 inches. Id. A ramp rise

exceeding 36 inches is never allowed under any circumst ances. ANSI § 405.6.

Also, there are no handrails on the ramp. Id.

B. 3. Defective Sidewalk Ramp # 3. From Plaintiff Lowrey’s apartment

door in the building’s west breezeway, a sidewalk heads north for a short

distance to intersect with Uptown Aven ue’s south sidewalk. Heading west,

portions of the walking surfaces on t he sidewalk have a running s lope exceeding

1:20 or 5%. (Ex. 1, ¶5(c)). The dist ance between the landing at the top of the

ramp run and the landing at the bottom of the ramp ru n is approximately 15 f eet,

with a total rise exceeding 6 inches. Id. Yet, there are no handrails on the ramp.

Id. Finally, within 10 inches horizontally of the edge of approxim ately 10 feet of

the ramp run there are vertical dr op-offs exceeding ½ inch, but no edge

protection. Id. This is the sidewalk ramp the Lowreys must use to get to his mail

kiosk, parking space and dumpster. This ramp is very difficult for Mike Lowrey to

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use on his own, and he is afraid he might lose control and plunge off the ramp onto Uptown Avenue below. He has only used this ramp a few times since it was retrofitted, because it is so dangerous. Likewise, this ramp is very difficult for Ms. Lowrey to use, and s he is afraid that she will lose control of her son’s wheelchair and he and possibly s he will plunge off the ramp onto Uptown Avenue below. In fact, she slipped and nearly fell of the ramp onto Uptown Avenue this past winter. Handrails would have been much safer for her.
B. 4. Defective Sidewalk Ramp # 4 . From Plaintiff Lowrey’s apartment building’s east breezeway, a s idewalk heads north for a short distance to intersect with Uptown Avenue’s south side walk. Heading east, portions of the walking surfaces on the sidewalk have a running slope exceeding 1:20 or 5%. (Ex.1, ¶5(d)). The dis tance between the landing at the top of the ramp run and the landing at the bottom of the ramp run is approxim ately 22 fe et, with a total rise exceeding 13 inches. Id. Yet, there are no ha ndrails on the ramp. Id. Finally, within 10 inches horizontally of the edge of appr oximately 15 feet of the ramp run there are vertical drop-offs exceeding ½ inc h, but no edge protection. Id.
B. 5. Defective Sidewalk Ramp # 5. Uptown Av enue’s north sidewa lk intersects with the eight-f oot-wide sidewalk entering in to the so uth entrance of the central park dog walking ar ea. Heading north from th is intersection, portions of the walking surfaces on the sidewalk have a running slope exceeding 1:20 or 5%. (Ex. 1, ¶5(e)). The distanc e between the landing at the top of the ramp run
9

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and the landing at the bottom of the ramp run is approximately 42 feet, with a total rise exceeding 23 inches. Id. Yet, there are no handrails on the ramp. Id.
B. 6. Summary: The Five Defective Sidewalk Ramps. The Lowreys can not leave the breezeway without immediately encountering defective sidewalk ramps # 3 or # 4. (Attachment A to Ex. 1) Even if they overcome those defective ramps, they soon encounter one or more of the remaining three defective sidewalk ramps, as well as s ome or all of the elev en defective curb ramps described below. Each of the five defective sidewalk ramps clearly violates the terms of the July 26, 2007 Order, ¶2(c). Each also vio lates Michigan’s Building Code and the FHAA constructions standards. These ramps are very difficult or impossible for Mike Lowrey to use on his own, and he is afraid he might lose control and plunge off t he ramp onto Uptown Avenue below. Likewise, this ramp is very difficult for Ms. Lowrey to use, and s he is afraid that she will lose control of her son’s whee lchair and he and possi bly she will plu nge off the ramp onto Uptown Avenue below. The Court must order Defendants to co rrect each of these five defective sidewalk ramps immediately. II. C. Defective Transitions: “Stage 1 and Stage 2” The Order ¶¶2(c) and 2(d) requires Defendants to build two separate accessible routes, “Stages 1 and 2.” Defendants built approximately 25 curb ramps as a part of this St age 1 and 2 construction. Ex . 1, ¶6. Each of these curb ramps must meet ANSI-1998 standards . Order ¶¶2(c) and 2(d). The ANSI defines a curb ramp as “[a] short ramp cu tting through a curb or built up to it.”
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2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 11 of 19 Pg ID 695
ANSI § 106.5. “Transitions from [curb] ramps to wal ks, gutters, or streets shall be at the same level.” ANSI § 406.3. Unfortunately, 10 of the 25 curb ramps along Stages 1 and 2 have transitions where the ramp is higher that the adjoining surface, sometimes up to a 1.5 inches diffe rence. (Ex. 1, ¶6) Curb ramps with transitions at different levels cause great difficulty to Plaintiff Mike Lowrey, jarring his wheelchair as he attempts to enter or to exit a curb ramp.
II. D. Defective Surfaces: “Stage 1 and Stage 2”. The Order ¶¶2(c) and 2(d) requires Defendants to build two separate accessible routes, “Stages 1 and 2”. Defendants built approximately 25 curb ramps as a part of this Stage 1 and 2 cons truction. (Ex. 1, ¶6) Each of these curb ramps must meet ANSI-1998 st andards. Order ¶¶ 2(c) and 2(d). Unfortunately, the surfaces of 11 of t he 25 curb ramps al ong Stages 1 and 2 suffer from vertical c hanges in level great er than ¼ inch. (Ex. 1, ¶7) T hese changes are jarring to Mike Lowr ey’s wheelchair. These vertical changes in the surface of the curb ramps cause debris and water to pool on the ramps. Id. This makes the curb ramp surfaces slippery dur ing and after rains, and in the wint er when the water freezes on the ramp, maki ng it dang erous for Plaintiffs. Thes e defects in the curb ramp surfaces viol ate the ANSI at §§ 406.6; 302.1; 303.2 and 303.3. II. E. The Trash Dumpster Pad. The Order ¶2(f) requires Defendants to modify the dumpster to create an unobstructed 36 inch-wide pad next to it, with a slope and cross slope not to exceed 2% . Order ¶2(f). However, Defendants
11

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 12 of 19 Pg ID 696
reconstructed the pad in suc h a way t hat some portions of the surface hav e slopes nearly triple the maximum 2% permitted. (Ex. 1, ¶8)
II. F. Plaintiff Lowrey’s Parking Space. The Order ¶2(b) requires Defendants to create a parking space next to Mike Lowrey’s apartment. The space must be 8 feet (96 inches) wi de, and its surface must have no slope exceeding 2%. Id. In violation of the Order , Defendants reconstructed the parking space so that it is only 92 inc hes wide and so that some portions of its surface have slopes nearly double the ma ximum 2% permitted. (Ex. 1, ¶10) These defects make the space v ery difficult for Ms. Lowrey to use, especially in the winter when Defendants fail to clear the snow from the parking space. Also, the “accessible route” from the apartment to the parking spac e includes the sidewalk ramp with all defects—lack of handrails and edge protection—described here in Section II,.B. 3.
II. G. The Mail Kiosk. The Order ¶2(h) requires that by July 1, 2007 Defendants were to have submitted a propos al for an accessible route to an accessible mail kiosk for Pl aintiff Lowrey. (Doc. 58, ¶2(h)) Defendants’ route was to meet ANSI A117.1-1998 standards. However, Defendants retrofitted the route to include defective sidewalk ramp # 3 which lack s required handrails and edge protection. See Section II B. 3 above. Also, the pad in front of the mail kiosk has cross slopes in excess of 2%, which violates ANSI. ( Ex.1, ¶ 9.)
II. H. Defendants’ Proposal for Parking for and Accessible Route to Their Retail Establishments. The Order ¶2(g) requires that by August 15, 2007 Defendants were to have submitted a pr oposal to create accessible parking
12

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 13 of 19 Pg ID 697
spaces and an accessible r oute from those spaces to the Defendants’ retail establishments this parking was intended to serve. Order ¶2(g). The Court also ordered that Defendants’ pr oposal include a deadline for completion of any proposed modifications. Id. Defendants’ proposal lacked any deadlines. Defendants’ August 15, 2007 pr oposal announced that Defendants would fo llow the ANSI A117.1-1998 as the standar d for accessibility for parking and accessible routes to and from commercial establishments. As is more fully argued in Section III B below, the legally controlling accessibilit y standards for retail establishments and their parking is no t the ANSI but the stricter American With Disabilities Act Accessibility Guidelines (the ADAAG), set forth at 28 C.F.R Part 36, Appendix A. Finally, the pr oposed accessible routes end far from the commercial entrances the parking spaces ar e designed to serve. Each entrance to each commercial establishment enters from the sidewalks running along either Cherry Hill Road or Ridge Road. (Attachment A to Ex . 1) Defendants’ proposal fails to include any p ortion of the si dewalks running along Cher ry Hill or Ridge and leading into the retail establishm ents and the theater. Thus, Defendants have failed to propose an accessible route from any accessible parking spaces to the retail establishments those s paces are intended to serve. This violates the Order.
LEGAL SUPPORT COMPLIANCE WITH LOCAL RULE 7.1 Plaintiffs allege that Defendants have v iolated the July 26, 2007 Order (Doc. 58), and have r efused to correct any of the violations after being notified i n
13

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 14 of 19 Pg ID 698
person more than seven months ago by undersigned counsel. Rather than argue with each of the seven Defendants and their counsel, Plaintiffs assume that Defendants do not acquiesce in this motion.
III. APPLICABLE LAW III. A. Civil Contempt Standards Defendants have violated the clear term s of the July 26, 2007 Order (Doc. 58). Civil contempt sanctions are desi gned to enforce compliance with court orders and to compensate injured parties for losses sustained. The Court should properly use the remedy of civil c ontempt “to coerce the defendant into compliance with the court’s order, and to compensate the complainants for losses sustained.” Electrical Workers Pension Trust Fund of Local Union # 58, IBEW, et al., v. Gary’ s Electric Service Company , 340 F.3d 373, 378-79 (6 th Cir. 2003)(internal citations omitted.) Accord ingly, a fine that is payable to the complainant as compensation for damages caused by the contemnor's noncompliance or that is contingent upon performing the act required by the court's order is civil in nature. United States v. Koubriti , 305 F.Supp.2d 723 (E.D.Mich. 2003). The Court should coerc e Defendants into complying with its July 26, 2007 Order. III. B. The July 26, 2007 Order ¶2(g): Defendants’ Proposal for Accessible Retail Establishments and Accessible Parking Serving Them Must Meet the ADA/ADAAG Standards, Rather than Defendants’ Proposed Weaker ANSI Standards The Lowreys are unable to ac cess Defendants’ retail establishments, theater and the public-use parking and sidewa lks serving those establishm ents.
14

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 15 of 19 Pg ID 699

Title III of the ADA requires Def endants to make these facilities accessible. 42

U.S.C. § 12183(a)(1). In violation of Title III, Defendants’ proposal pursuant t o

the July 26, 2007 Order ¶2(g) calls fo r these accessible rout es and parking

serving them to meet only the weaker ANSI standards. T he ANSI standards

apply only to Defendants’ apart ment buildings and the parking and sidewalks

serving those apartments. The ADAAG governs construction of the retail

establishments and t he public-use parking serving them, and the public-use

sidewalks connecting them. 42 U.S.C. § 12183(a)(1); 28 C.F.R § 36.406; 28

C.F.R. § 36.401(a)(1); 28 C. F.R. Part 36, App. A (t he “ADAAG”.) The legal

support is set out below.

III. B. 1. Defendants’ Public-Use Facilities Are Subject to the ADA

Defendants have retail establishments, public-use parking and public-us e

sidewalks serving those establis hments for the use of their tenants and als o for

the general public. T hese public facilities are located throughout the southwest

quadrant of the Uptown Apartments. (Attach ment A to Ex. 1). According to Title

III of the ADA, these publ ic-use sidewalks must m eet ADAAG standards. The

United States Department of Justice illustrates this pr incipal in its Title III

Technical Assistance Manual, III-1.2000:

“Places of public ac commodation within residential facilities”…[T]hus,

areas [public parking lots, retail

establishments, theaters] within

multifamily residential faci lities [like Uptown’s a partment complex] that

qualify as places of pub lic accommodation are cover ed by the ADA if use

of the areas is not limited exclusiv ely to owners, [Uptown Apartments’]

residents and their guests.”

15

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 16 of 19 Pg ID 700

Defendants’ retail establishments, their public-use parking spaces and the public-

use sidewalks connecting them are not

“limited exclusively to [Uptown’s ]

residents and their guests.” Rather, this parking and its connecting sidewalks are

expressly for the routine daily us e of the public patronizing the retail shops and

theater, in addition to the tenants of Uptown and their guests, and are “public

accommodations” subject to Title III of the ADA and its ADAAG.

III. B. 2. “Readily Accessible to and Usable by Persons with Disabilities” Defined

Title III of the ADA requires Def endants’ public-use parking and sidewalks

to be “readily accessible to and usable by persons with di sabilities”. 42 U.S.C. §

12183(a)(1); 28 C.F.R. § 36.401(a)(1). Lega lly binding implementing regulations

and statutory guidanc e define what is “read ily accessible to and usable” by the

Lowreys and other persons with disabilities. According to the USDOJ:

“What is ‘readily accessible and usable?’ This means that the facility4 must be built in strict compliance with the Am ericans with Disabilities Act Accessibility Guidelines (ADAAG). There is no cost defense to the new construction requirements.”

United States Department of Justice ADA Title III Te chnical Assistance Manual,

Section III-5.1000. USDOJ’s Technica l Assistance Manual is entitled to “substantial deference”. Johnson v. City of Saline , 151 F.3d 564, 570 (6 th Cir.

1998). Thus, only when Uptown’s public-u se sidewalks and parking “strictly

comply” with the ADA AG is it “readily acces sible to and usable” by the Plaintiffs Lowrey. See e.g. , Ability Center v. City of Sandusky , 385 F.3d 901 at 904 (6 th

4 The ADAAG def ines “facilities” as including, among other things ,”site improvements…roads, walks, passageways, [and] parking lots.” 28 C.F.R. Part 36, App. A, Section 3.5 (ADAAG).
16

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 17 of 19 Pg ID 701
Cir. 2004) citing Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 1993 (2004), which holds: “In the case of facilities built …after 1992, the [ADA impleme nting] regulations require compliance with specific architectural accessibility standards.” Those “specific architectural acce ssibility standards” are the ADAAG. See 28 C.F.R. 36.406. See also Deck v. City of Toledo, 29 F.Supp.2d 431 (same).
“Because [the ADA] was enacted with br oad language and directed to the Department of Justice to promulgate regulations [thereunder], the regulations which the Department [of Justice] pr omulgated are entitled to substantia l deference.” Niece v. Fitzner , 941 F.Supp. 1497, 1507 (E.D.Mich. 1996) citing Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.), cert. denied, 116 S.Ct. 64 (1995). Accord, Johnson v. City of Saline , 151 F .3d 564, 570 (6 th Cir. 1998), citing Thomas Jefferson Univ. v. Shalala , 512 U.S. 504. 512 (1994). Thus, the ADAAG, and not the ANSI, gov ern Defendants’ retail establishments, as well as the public-use sidewalks and parking serving those establishments.
CONCLUSION Defendants violated the July 26, 2007 Order (Doc. 58), and 10 months later, the myriad accessibility violations remain uncor rected. The Court should find the Defendants in cont empt and/or fashion all appropriate sanctions to coerce Defendants int o meeting the standar ds required by the July 26, 2007 Order. The Court should award Plaintiffs their damages for Defendants’ my riad violations of the Court-ordered accessibility retrofits, and the isolation of Plaintiffs caused by Defendants’ delays.
17

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 18 of 19 Pg ID 702

Respectfully
J. Denis Heberle 2580 Ann 734-302-3233 734-302-3234
Attorneys

submitted,
/s/ J. Mark Finnegan_______ Mark Finnegan (P68050) e M. Heberle (P64145) & Finnegan, PLLC Craig Road Arbor, MI 48103
fax hffirm@comcast.net
for Plaintiffs Lowrey

Certificate of Service I hereby certify that on this 17 th day of June, 2008 the foregoing Motion

and Memorandum In Support, along with all ex hibits and declarations in support

were filed electronica lly. Partie s will receive notice of the filing through the

Court’s electronic filing system and ma y access the document through the

Court’s electronic filing system . In addition, I served the foregoing by first class

mail upon counsel for all Defendants at the following addresses

Brett Rendeiro (P64972) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Defendant Warner, Cantrell & Padmos, Inc. 39500 High Pointe Blvd, Suite 150 Novi, MI (248) 567-7400 barendeiro@varnumlaw.com
Gerard Mantese (P34424) Mantese & Associates, PC

Megan P. Norris (P39318) Leigh R. Greden (P61859) Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendants Beztak Properties, Inc., Beztak Companies, Inc., Uptown Investors, LLC, and Monogram Homes 101 N. Main, 7th Floor Ann Arbor, MI 48104 (734) 663-2445 greden@millercanfield.com

18

2:06-cv-13408-NGE-MKM Doc # 93 Filed 06/17/08 Pg 19 of 19 Pg ID 703

Attorneys for Defendant Biltmore Properties Companies, Inc. 1361 E. Big Beaver Road Troy, MI 48083 (248) 457-9200 gmantese@manteselaw.com

Theresa L. Kitay Law Office of Theresa L. Kitay Attorney for Defendant Looney, Ricks, Kiss 578 Washington Blvd., Suite 836 Marina Del Ray, CA 90292 (310) 578-9134 tkitay@kitaylaw.net

/s/ J. Mark Finnegan____________

19

 
 2:06-cv-13408-NGE-MKM Doc # 94 Filed 06/23/08 Pg 1 of 1 Pg ID 713
MIE 310 Order of Reference to a Magistrate JudgeRev. 3/98)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWERY, et al.,

Plaintiff(s),

Case Number: 06-13408

v.

Honorable Nancy G. Edmunds

BEZTAK PROPERTIES, INC., et al.,

Magistrate Judge Virginia M. Morgan

Defendant(s), /

ORDER OF REFERENCE TO UNITED STATES MAGISTRATE JUDGE

IT IS ORDERED that this matter is referred to United States Magistrate Judge Virginia M. Morgan for the following purpose(s):

# Hearing and Determination pursuant to (28 USC 636 (b)(1)(A)) on:

MOTION FOR SANCTIONS [93]

s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge
Dated: June 23, 2008
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on June 23, 2008, by electronic and/or ordinary mail.
s/Carol A. Hemeyer Case Manager

 
 2:06-cv-13408-NGE-MKM Doc # 97 Filed 07/02/08 Pg 1 of 1 Pg ID 722

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOWERY, et al., Plaintiffs,
v. BEZTAK PROPERTIES, INC., et al.,
Defendants. /

CIVIL NO. 06-13408 HON. NANCY G. EDMUNDS

ORDER DENYING MOTION FOR RESCISSION OF ORDER OF REFERRAL TO MAGISTRATE JUDGE MORGAN [96]

This matter came before the Court on Plai ntiffs’ motion for rescission of order of reference to Magistrate Judge Morgan and the Court having read the motion and brief and being fully advised in the premises;
IT IS ORDERED that the motion is DENIED. The Magistrate Judge shall prepare a Report and Recommendation pursuant to 28 U.S.C. 636 (b)(1)(B).

SO ORDERED.
s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge
Dated: July 2, 2008
I hereby certify that a copy of the foregoni g document was served upon the parties and/or counsel of record on July 2, 2008, by electronic and/or ordinary mail.
s/Carol A. Hemeyer Case Manager

 
 Clo:sd 2:06-cv-13408-NGE-MKM Doc # 169 Filed 07/20/09 Pg 1 of 4 Pg ID 1983

EXHIBIT A

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL & MARILYN LOWERY,
Plaintiffs, and FAIR HOUSING CENTER,
Intervenor-Plaintiff,
v.
BEZTAK PROPERTIES, INC., BEZTAK COMPANIES, INC., BILTMORE PROPERTIES COMPANIES, INC., UPTOWN INVESTORS, L.L.C., UPTOWN INVESTORS, L.L.C. II, MONOGRAM HOMES; WARNER, CANTRELL & PADMOS, INC.; LOONEY, RICKS, KISS, and CANTON TOWNSHIP,
Defendants.

Case #06-13408-NGE-MKM Hon. Nancy G. Edmunds Special Master Virginia Morgan
FtL'I!D
JUL 20 2009 U.SC.LDEIRSKTR'SI'COTF\N~Ua~a•T
EASTERN M1CHIBAM

STIPULATED ORDER OF DISMISSAL WITH PREJUDICE AND WITHOUT COSTS OR ATTORNEY FEES AS TO CLAIMS BY PLAINTIFFS MICHAEL LOWREY AND MARILYN LOWREY AGAINST ONLY Defendants BEZTAK PROPERTIES, INC.; BEZTAK COMPANIES, INC.; UPTOWN INVESTORS L.L.C.; MONOGRAM HOMES; WARNER, CANTRELL, & PADMOS, INC.; LOONEY, RICKS, KISS, ARCHITECTS; JAMES A. JACKSON, in his official
capacity as DIRECTOR, WAYNE COUNTY DEPARTMENT OF PUBLIC SERVICES; and LORENZO BLOUNT, in his official capacity as WAYNE
COUNTY DIRECTOR OF ROADS ("the Seven Defendants")

At a session of Court, held in the United States Courthouse,

-1/ 7zcot in the City of Detroit, State of Michigan, on -May .·

. 2609

:ze

PRESENT: Akft:':tH~ofa'"~ G. Edmunds

United States District Judge

1

2:06-cv-13408-NGE-MKM Doc # 169 Filed 07/20/09 Pg 2 of 4 Pg ID 1984
This matter having come before the Court upon the stipulation of Plaintiffs MICHAEL and MARILYN LOWREY, and Seven Defendants BEZTAK PROPERTIES, INC.; BEZTAK COMPANIES, INC.; UPTOWN INVESTORS l.L.C.; MONOGRAM HOMES; WARNER, CANTRELL, & PADMOS, INC.; LOONEY, RICKS, KISS, ARCHITECTS; JAMES A. JACKSON, in his official capacity as DIRECTOR, WAYNE COUNTY DEPARTMENT OF PUBLIC SERVICES; and LORENZO BLOUNT, in his official capacity as WAYNE COUNTY DIRECTOR OF ROADS, and the Court being fully advised in the premises and finding these Parties' intentions to be just and equitable,
IT IS HEREBY ORDERED that Plaintiffs Michael and Marilyn Lowrey's claims against the above listed Defendants only are dismissed with prejudice and each party shall bear its own costs and attorney's fees, except as set forth in the Settlement Agreement ~xecuted just prior to the entry of this Order.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction to enforce the terms of the Settlement Agreement.
IT IS SO ORDERED.
STIPULATION SIGNATURES ON NEXT PAGE
2

2:06-cv-13408-NGE-MKM Doc # 169 Filed 07/20/09 Pg 3 of 4 Pg ID 1985

So stipulated:

z· L- ;L~~

vIC( (c/)'{Jl./Vf-f

Theresa L. Kitay

Theresa L. Kitay Attorney at Law

Attorney for Defendant Looney, Ricks, Kiss

/1 "3

-~-~-" C011~ ·-g- ;;= ..· ___ff_·*

_ _ _tl_r-_(A_

I /1ry

Brett A Rendeiro, Esq.

Varnum LLP

Attorneys for Defendant Warner, Cantrell & Padmos, Inc.

pr<.~

~iris Ahmad, Esq.
Assistant Corporation Counsel, Wayne County A orney for Defendant Wayne County

3

2:06-cv-13408-NGE-MKM Doc # 169 Filed 07/20/09 Pg 4 of 4 Pg ID 1986 ACKNOWLEDGMENT AND AGREEMENT OF PLAINTIFFS' LEGAL COUNSEL
J. Mark Finnegan hereby agrees to waive any claims he or his firm may have to recovery of costs or attorneys' fees as a result of the resolution of this dispute between the Lowreys and the Seven Defendants. J. Mark Finnegan is authorized to make this acknowledgment and agreement on behalf of the law firm of Heberle and Finnegan PLLC
ark Finnegan berle and Finnegan PLLC
8

 
 2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 1 of 13 Pg ID 1987
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL & MARILYN LOWERY, Plaintiff,
and FAIR HOUSING CENTER,
Intervenor-Plaintiff, v.
BEZTAK PROPERTIES, INC., BEZTAK COMPANIES, INC., BILTMORE PROPERTIES COMPANIES, INC., UPTOWN INVESTORS, L.L.C., UPTOWN INVESTORS, L.L.C. II, MONOGRAM HOMES; WARNER, CANTRELL & PADMOS, INC.; LOONEY, RICKS, KISS, and CANTON TOWNSHIP, Defendants.

Case #06-13408-NGE-MKM Hon. Nancy G. Edmunds Special Master Virginia Morgan

J. Mark Finnegan (P68050) Heberle & Finnegan, PLLC Attorneys for Plaintiffs Lowery 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 hffirm@comcast.net
Brett Rendeiro (P64972) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Defendant Warner, Cantrell & Padmos, Inc. 39500 High Pointe Blvd, Suite 150 Novi,MI (248) 567-7400 barendeiroC.ilvarnumlaw.com
Stephen M. Dane Reiman & Dane, PLLC Attorneys for Fair Housing Center 1225 191h Street, NW, Suite 600 Washington, D.C. 20036 sdane@relmanlaw .com

Megan P. Norris (P39318) Leigh R. Greden (P61859) Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendants Beztak Properties, Inc., Beztak Companies, Inc., Uptown Investors, LLC, and Monogram Homes 101 N. Main, 7th Floor Ann Arbor, MI 48104 (734) 663-2445 greden@millercanfield.com
Theresa L. Kitay Law Office of Theresa L. Kitay Attorney for Defendant Looney, Ricks, Kiss 578 Washington Blvd., Suite 836 Marina Del Ray, CA 90292 (31 0) 578-9134 tkitay@kitaylaw.net

STIPULATED ORDER OF FINAL SETTLEMENT AND FULL RELEASE BETWEEN FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN AND
CERTAIN DEFENDANTS

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 2 of 13 Pg ID 1988
THIS STIPULATED ORDER OF FINAL SETTLEMENT AND FULL RELEASE (hereinafter "Agreement") is made between the FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC. ("FHC"), and BEZTAK PROPERTIES; BEZTAK COMPANIES; UPTOWN INVESTORS, L.L.C.; UPTOWN INVESTORS II L.L.C.; MONOGRAM HOMES, INC.; WARNER, CANTRELL & PADMOS, INC.; and LOONEY, RICKS, KISS, INC. (collectively these parties are referred to as "Defendants").
RECITALS
WHEREAS, Michael Lowrey filed a Complaint (the "Lawsuit") in the United States District Court for the Eastern District ofMichigan (the "Court"), Case #06-13408, against Beztak Properties (erroneously named "Beztak Properties, Inc."), on or about July 21, 2006;
WHEREAS, Michael Lowrey filed a First Amended Complaint (the "First Amended Lawsuit") in the United States District Court for the Eastern District of Michigan, Case #06-13408-NGE-MKM, against Beztak Properties (erroneously named "Beztak Properties, Inc."), Beztak Companies (erroneously named "Beztak Companies, Inc."), Biltmore Properties Companies, Inc., Uptown Investors, L.L.C., Uptown Investors II, L.L.C. (erroneously named "Uptown Investors, L.L.C. II"), Monogram Homes, Inc., Warner, Cantrell & Padmos, Inc., and Looney, Ricks, Kiss (aka Looney Ricks Kiss Architects, Inc.) on or about September 20, 2006;
WHEREAS, the FHC intervened in this case as an Intervenor- Plaintiff on June 6, 2007;
WHEREAS, Michael Lowrey and Marilyn Lowrey filed a Third Amended Complaint (the "Third Amended Lawsuit") in the United States District Court for the Eastern District of Michigan, Case #06-13408-NGE-MKM, against Beztak Properties (erroneously named "Beztak Properties, Inc."), Beztak Companies (erroneously named "Beztak Companies, Inc."), Biltmore Properties Companies, Inc., Uptown Investors, L.L.C., Monogram Homes, Inc., Warner, Cantrell & Padmos, Inc., Looney, Ricks, Kiss (aka Looney Ricks Kiss Architects, Inc.), Canton Township, and other parties, on or about May4, 2009;
WHEREAS, FHC's Complaint as an Intervenor-Plaintiff includes allegations that Defendants designed, constructed, and/or operate(d) the Uptown Apartment complex in Canton, Michigan ("Uptown") in violation of the Americans with Disabilities Act ("ADA"), Fair Housing Act ("FHA"), and/or Michigan Persons With Disabilities Civil Rights Act ("PWDCRA");
WHEREAS, Defendants deny in their entirety the claims raised by FHC;
WHEREAS, Defendants and the FHC desire to resolve and settle all of the FHC's claims that arose anytime before the date on which the FHC signs this Agreement; and
Page 2 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 3 of 13 Pg ID 1989
WHEREAS, Defendants and the FHC shall be referred to herein as "Settling Parties";
STATEMENT OF AGREEMENT
NOW, IN CONSIDERATION ofthe mutual promises and covenants contained in this Agreement and other good and valuable consideration -the receipt and sufficiency of which the Settling Parties each respectfully acknowledge- the Settling Parties agree as follows:
1. Definitions. As used in this Agreement:
(a) The term "Michael Lowrey" is defined as Michael Lowrey and his representatives, agents, heirs, administrators, executors, successors, personal representatives, and assigns.
(b) The term "Marilyn Lowrey'' is defined as Marilyn Lowrey and her representatives, agents, heirs, administrators, executors, successors, personal representatives, and assigns.
(c) The Fair Housing Center of Southeastern Michigan, Inc. ("FHC") is defined to include the Fair Housing Center; the past, present, or future parent, affiliated, related, and/or subsidiary entities ofFHC; and the past, present, or future directors, shareholders, officers, insurers, employees, agents, attorneys, partners, accountants, joint venturers and representatives ofFHC.
(d) The term "Beztak Properties" is defined to include Beztak Properties; and the past, present, or future parent, affiliated, related, and/or subsidiary companies of Beztak Properties.
(e) The term "Beztak Companies" is defined to include Beztak Companies; and the past, present, or future parent, affiliated, related, and/or subsidiary companies of Beztak Companies.
(f) The term "Uptown Investors, L.L.C." is defined to include Uptown Investors, L.L.C.; and the past, present, or future parent, affiliated, related, and/or subsidiary companies ofUptown Investors, L.L.C.
(g) The term "Monogram Homes, Inc." is defined to include Monogram Homes, Inc.; and the past, present, or future parent, affiliated, related, and/or subsidiary companies of Monogram Homes, Inc.
(h) The parties identified in paragraphs 1(d)-(g) above shall be referred to collectively as the "Owner/Contractor Defendants".
(i) The term "Warner, Cantrell & Padmos, Inc." is defined to include Warner, Cantrell & Padmos, Inc.; and the past, present, or future parent, affiliated, related, and/or subsidiary companies of Warner, Cantrell & Padmos, Inc. Warner, Cantrell & Padmos, Inc. shall be referred to as the "Engineer Defendant".
Page 3 ofll

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 4 of 13 Pg ID 1990
G) The term "Looney, Ricks, Kiss" is defined to include Looney, Ricks, Kiss Architects, Inc.; and the past, present, or future parent, affiliated, related, and/or subsidiary companies of Looney, Ricks, Kiss Architects, Inc. Looney, Ricks, Kiss shall be referred to as the "Architect Defendant".
(k) The term "ANSI" is defined as the American National Standards Institute.
(1) The term "Units" is defined as all ground floor residential units located in the development known as Uptown Apartments, located in Canton, Michigan, 48187, as well as all residential units located in Liner Buildings A and B located at the comer of Cherry Hill Road and Ridge Road, Canton, Michigan.
2. Exterior Modifications. The Owner I Contractor Defendants and the Engineer Defendant shall complete the following physical modifications to the Uptown complex:
(a) Phase 2 Accessible Route Plan and Parking Construction:
(i) The Owner I Contractor Defendants and the Engineer Defendant shall create an accessible route compliant with ANSI A117.1-1998 Sees. 303, 402, 403, 405, 406 and 505 along the sidewalks in Uptown outlined in Exhibit 1 to this Agreement (the "Phase 2 Accessible Route Plan"). Notwithstanding the agreement to comply with ANSI A117.1-1998 Sec. 303, 402, 403, 405, 406 and 505, the Settling Parties agree that Sections 303, 402, 403, 405, 406 and 505 will not apply and that no modification is necessary to any existing portion of the accessible route where (1) the cross-slope is 3% or less; and/or (2) the running slope is 6% or less. The parties agree that these slope ranges shall not be admissible as evidence in any subsequent proceedings. Any modifications to cross-slope, running slope, or slope of ramps along the accessible route will be made to comply with ANSI A117.11998 Sees. 303, 402, 403, 405, 406 and 505.
(ii) The Owner I Contractor Defendants shall ensure that at least two dumpsters on the north side of the accessible route in the Uptown complex have a side opening accessible to persons with disabilities.
(iii) The Owner I Contractor Defendants shall place three signs indicating the accessible route of travel in the locations identified on Exhibit 1 near the comer of Uptown Avenue and North Roosevelt.
(iv) The Owner I Contractor Defendants and the Engineer Defendant shall create vehicular parking spots located on accessible routes in the locations indicated on Exhibit 1. The parking spots shall (i) include an eight (8) foot wide space, and (ii) shall be located on a surface that does not exceed a 2% slope in all directions. At least two of the parking spots shall be van accessible and marked as such, as indicated on Exhibit 1. The parking spots shall also include appropriate signage indicating that they are available only for disabled individuals, and there shall be at least 72 inches between the ground and the bottom of such signage. Upon request of an existing or prospective tenant, the Owner I Contractor Defendants shall also
Page 4 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 5 of 13 Pg ID 1991
provide one accessible parking spot in a covered carport, at the same cost then offered to other tenants.
(v) Following the Court's approval ofthis Stipulated Order of Final Settlement, the Owner I Contractor Defendants shall be provided up to thirty (30) days to apply for all necessary governmental approvals from Canton Township, Michigan, to perform such work. The Owner I Contractor Defendants shall notify the FHC's attorney, in writing, upon receipt of approval by Canton Township, Michigan. Simultaneous with the application for any necessary governmental approvals from Canton Township, the Owner I Contractor Defendants shall begin soliciting bids from contractors to perform the work identified in Section 2(a) of this Agreement. The Owner I Contractor Defendants shall be provided sixty (60) days from the Court's approval of this Stipulated Order ofFinal Settlement to select a contractor(s) to perform the work described in this Section 2(a) ofthis Agreement. The Owner I Contractor Defendants shall notify the FHC's attorney, in writing, upon selection of a contractor. Upon receipt of any necessary governmental approvals and following selection of a contractor(s), the Owner I Contractor Defendants and the Engineer Defendant shall commence construction, and in any event, construction shall commence within ninety (90) days following the Court's approval of this Stipulated Order ofFinal Settlement, and the Owner I Contractor Defendants and the Engineer Defendant shall complete all work described in this Section 2(a) by November 30, 2010.
(b) The timelines and schedules outlined in Paragraph 2 of this Agreement are subject to change based on factors outside the control of the Owner I Contractor Defendants and Engineer Defendant, including, but not limited to, delays in approval by Canton Township and inclement weather. Any dispute concerning the parties' good faith compliance with the timelines and schedules shall be brought to the attention of the Court.
3. Interior Modifications to the non-Liner Building Units. The Owner I Contractor Defendants and the Architect Defendant shall make the following modifications to the covered residential Units in the non-Liner Buildings in Uptown:
(a) Upon request of any tenant, decrease the depth or widen the door of closets that measure greater than 26" from the rear of the closet to the rear of the jamb and have doors that provide less than nominal 32" opening;
(b) Upon request of any tenant, relocate the door to the rear of the jamb on closets that measure from 24" to 26" from the rear of the closet to the rear of the jamb and have doors that provide less than nominal32" clear opening;
(c) Relocate toilets so that the centerline is at least 16" from the side wall (this would not apply to any bathroom not required to meet the Fair Housing Act's requirement for maneuvering space, meaning a second bathroom in a unit that has a "B" specification bathroom as defined by the 1991 Fair Housing Act Accessibility Guidelines);
Page 5 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 6 of 13 Pg ID 1992
(d) Bevel the exterior side of primary entry door thresholds to no more than Yz" change in level, with any change in level greater than 1'4'' beveled at 1:2;
(e) Increase the turning space in U-shaped kitchens that provide less than a 58" clear turning space;
(f) Lower thermostats so operating controls are no more than 54" from the floor;
(g) Lower outlets located over any obstructions (such as a kitchen cabinet) that are higher than 47" to maximum 46" AFF, or provide extenders to the same height, if no comparable outlet is available in an accessible location.
(h). Timing ofModifications. With respect to any ANSI Type A units, items 3.(a)-(g) above shall be completed within 90 days after entry of the Court's approval of this Stipulated Order ofFinal Settlement, without request by any current occupant and without awaiting turnover of possession to a new tenant. With respect to all other covered Units, items 3.(c)-(g) above shall be completed when the current occupant vacates the Unit and prior to any re-let of the Unit; provided, however, that the modifications set forth in items 3.(c)-(g) shall be completed in all covered Units above within 3 years after entry of the Court's approval of this Stipulated Order of Final Settlement, regardless of whether the Unit has been re-let within that period. With respect to the remaining items, they should be completed within sixty (60) days of tenant request.
(i) Notice to Current Tenants. Within 60 days after entry of the Court's approval of this Stipulated Order ofFinal Settlement, the Owner I Contractor Defendants shall notify all current tenants that the modifications set forth in items 3.(a)-(g) above will be made at the tenant's request, and without cost to the tenants.
(j) Model Units or Units Shown to Prospective Tenants. All Model Units or Units used for viewing by prospective tenants of Uptown shall have all modifications identified in items 3.(a)-(g) above completed within ninety (90) days after entry of the court's approval ofthe Stipulated order of Final Settlement. The Owner I Contractor Defendants shall inform prospective tenants that modifications identified in items 3.a.(l through 2) above shall be made at the tenant's request, and without cost to the tenant.
4. Interior Modifications to the Liner Building Units. The Owner I Contractor Defendants shall make the following modifications to all residential units located in Liner Buildings A and B located at the corner of Cherry Hill Road and Ridge Road, Canton, Michigan:
a. Doors:
(i) All balcony sliding doors shall be modified so as to provide for a nominal 32" width. All balcony doors shall be surveyed and all noncompliant doors shall be brought into compliance according to the timetable in paragraph 4.(f) below.
Page 6 ofll

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 7 of 13 Pg ID 1993

(ii) All bedroom closet doors shall be modified so as to provide a minimum of a nominal 32" clear opening space. All bedroom closet doors shall be surveyed and all non-compliant doors shall be brought into compliance according to the timetable in paragraph 4.(f) below.

(iii) All linen closets that do not allow for full wheelchair passage (nominal 32" clear minimum and if greater than nominal 24" deep) shall have deeper shelves installed, upon any tenant's request, so as to bring the shelves closer to the door.

b. Thermostats:

All units will be surveyed and all non-compliant thermostats shall be brought into compliance with the Fair Housing Act Accessibility Guidelines according to the timetable in paragraph 4.(f) below..

c.

Accessible Routes:

(i) All entry thresholds shall be surveyed and modified (beveled) according to the timetable in paragraph 4.(f) below so as to provide for a
maximum Yz" above the hallway floor or in the alternative the threshold
must be ramped and must slope no greater than 1:2. .

(ii) Upon request of any tenant, all balcony thresholds shall be modified, if necessary, so as to provide for an exterior maximum 4" from the interior floor level.

d. Bathrooms:

(i) All bathrooms shall be surveyed and modified, if necessary, according to the timetable in paragraph 4.(f) below so as to allow a minimum 16" clearance from the side wall to the centerline of the toilet.

(ii) Upon request of any tenant, Specification A bathrooms or the designated Specification B bathrooms shall be modified, if necessary, so as to allow 30" x 48" clear floor space.

e. Other Modifications Based on Accessibility Requests to Be Made By Owner I Contractor Defendants.

Owner I Contractor Defendants will make reasonable modifications to any liner unit occupied or to be occupied by a person with a disability if such modifications may be necessary to afford such person full enjoyment of the premises at tenant's expense.

(f). Timing ofModifications. Any modifications in items 4.(a)(i) & (ii), (b), (c)(i), and (d)(i) above that are required under this Stipulated Order shall be completed when the current occupant vacates the Unit and prior to any re-let of the Unit; provided, however, that these required modifications shall be completed in all

Page 7 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 8 of 13 Pg ID 1994
covered Units above within 3 years after entry of the Court's approval of this Stipulated Order of Final Settlement, regardless ofwhether the Unit has been re-let within that period. With respect to the remaining items in paragraph 4, above, all of which are available on request, they shall be completed within sixty (60) days of tenant request.
6. Other Relief Defendants agree to pay the total sum of Forty Five Thousand Dollars ($45,000.00) to FHC for damages incurred by it in prosecuting this action through the signing ofthis Stipulated Order ofFinal Settlement, for programs undertaken to counteract the effect of allegedly inaccessible units and routes at Uptown, to conduct educational programs concerning accessibility, to promote best practices in the design and construction of covered multifamily properties, and to reimburse them for expenses related to their investigation, inclusive of their attorneys' fees. The Defendants agree to pay said money within ten (10) business days of the date of entry of this Stipulated Order ofFinal Settlement by wire transfer of that amount to counsel for Plaintiff at Reiman and Dane, PLLC 1225 19th Street, N.W. Suite 600, Washington, D.C. 20036-2456.
7. Release ofClaims. In consideration of the promises made by the parties herein, FHC forever discharges and releases, individually and collectively, all Defendants and their respective past, present, or future directors, shareholders, officers, insurers, employees, members, agents, attorneys, partners, accountants, joint venturers and representatives (collectively, "Released Parties") from any and all claims, demands, causes of action, known or unknown, that it ever had or now has against the Released Parties by reason of any actual or alleged act, omission, transaction, practice, occurrence, or other matters relating in any way to Uptown, and the areas of Uptown and/or the matters covered in Sections 2, 3, and 4 of this Agreement that occurred before the date ofthis Stipulated Order of Final Settlement. This release of claims includes, but is not limited to: (a) All claims arising out of or related to any federal, state and/or local laws including, without limitation: the federal Civil Rights Acts of 1866, 1871, 1964 and 1991; the Americans with Disabilities Act of 1990; the Michigan Elliott-Larsen Civil Rights Act; the Michigan Persons with Disabilities Civil Rights Act; and the Fair Housing Act, as each may have been amended from time to time; and (b) All claims arising out of or related to any contract; any and all other federal, state or local constitutions, statutes, rules or regulations, or under any common law right of any kind whatsoever, or under the laws of any county or political subdivision, including, without limitation: all claims for any kind of tortious conduct (including, but not limited to, any claim of defamation or distress or invasion of privacy); violation of public policy; negligence; promissory or equitable estoppel; breach of policies, rules, regulations, handbooks or manuals; breach of express or implied contract or covenants of good faith or fiduciary duty; and/or failure to pay in whole or part any payments of any kind whatsoever.
8. No Admission ofLiability. This Agreement does not constitute an admission by any of the Released Parties (or any one of them individually) of any wrongful action or violation of any federal, state, or local statute or common law rights. The Released Parties specifically deny any wrongful action or conduct on their part. The parties make this Agreement solely in the interest of avoiding the costs of litigating the Intervenor's Complaint related to the matters addressed in Sections 2, 3, and 4 of this Agreement.
Page 8 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 9 of 13 Pg ID 1995
9. Consultation with attorneys. The parties acknowledge that they have been represented by their own attorneys throughout all of the negotiations prior to the execution of this Agreement. The parties further acknowledge that they executed this Agreement after being advised to consult with counsel of their choice prior to executing the Agreement and after having an opportunity to consult with such counsel. FHC further acknowledges that it has read this Agreement carefully; that it had an opportunity to have its provisions explained to them by its attorneys; that it fully understands the terms and significance of this Agreement; that it has signed it voluntarily and of its own free will; and that its intends to abide by its provisions without exception. By executing this Agreement, FHC represents and acknowledges that it does not rely, and has not relied, upon any representation or statement made by Defendants or their respective attorneys with regard to the subject matter of the Lawsuit, First Amended Lawsuit, Third Amended Lawsuit, other than the written statements set forth in this Agreement.
10. Severability. If any term or provision of this Agreement is declared by any Court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain valid and binding on the parties.
11. Other. This Agreement sets forth the entire agreement among the Settling Parties with respect to the matters set forth herein and supersedes all prior agreements, arrangements, and understandings among the parties. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the state ofMichigan. Should any provision of this Agreement require interpretation or construction, it is agreed by the parties that the court (or other entity) interpreting or construing this Agreement (or the Exhibits hereto) shall not apply a presumption that the provisions hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the Agreement (or Exhibits hereto), it being agreed that all parties (by their respective attorneys) have participated in the preparation of all provisions of this Agreement. This Agreement is binding upon, and shall inure to the benefit of, the parties and their respective heirs, distributees, executors, administrators, personal representatives, successors, insurers, and assigns. This Agreement may not be used as evidence in any subsequent proceeding, or any other matters related to litigation of the Lawsuit, First Amended Lawsuit, and/or Third Amended Lawsuit, except in a proceeding in which any of the parties alleges a breach of, or otherwise seeks enforcement of, this Agreement or interposes this Agreement as a defense.
12. Counterparts; Facsimiles. This Agreement may be executed in counterparts which, when taken together and reflect the signatures of all parties, shall be deemed a fully executed agreement for all purposes. Copies and other facsimiles of this Agreement (including any ".pdf' or "fax" copy) including all signatures, shall be deemed the same as the original for all purposes.
SIGNATURES ON NEXT PAGE
Page 9 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 10 of 13 Pg ID 1996

07/13/2BB9 12:21 7349944913

FHC

PAGE l"l2/B3

So agreed: FAIR HOUSING CENTF.R OF SOUTHEAST .MICHIGAN, INC.

b By:f-~ Q._·

.

Its: t:X~GVT\\/S: P112-E.CT 0 P..
Date: L.),~ 1~r · 1.-0 D 9

So Agreed: BEZTAK PROPERTIE~---··

./td_. {( By:

~

~--c:::

.Its: _ ___,Q""'-'-e«...l'b.PI:.L',n,.....,.Q._,_ _( _C"'=-'·.(J,=l.!~II:....:S:;_-e~[--=--·- - - - - - - - -

Date; _ ~: __......]_:......._;/ ....!(.-_..,L_ 'l _

So Agreedo BEZTAK COM!'ANI:~~ . .

·By: ,/lu,£ t/( ~

Its~

(; 'f!/lt.Y'() (

C Ol/Jf.St: ( .

.. -

---=-=~~~~~~---------------------

C_ ( _ Date: _ __,_7-1--/o---'-(--+.

.

.

..

So Agreed: UPTOWN INVESTORS L.L.C.

-----

By: /1twC. a .~

Its: _ _____,_G._~_:n_-e.:....~___.:;.__r ____{_t~_fJ_L-_-b_·~--(---'--------·-------

~ Date: -2ri-L-/___::::_o......_{t+-.__

So Agreed~ MONOGRAM HOMES

__ __

By:.·~.·-~

Its: _ _..o..:.:_·.r..!.:...'t?_,_f(jt...:'tl:L......:.._.( __·-=L:;_,O:;_l.<.:.:..l..:;:~__ec-__:__( _____________
Date: ___._2-f--I.(PL4-f-,/--f-r~-

SIGNATURES CONTINUED ON NEXT PAGE

Pag~ lO ofll

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 11 of 13 Pg ID 1997
ARNER, CANTRELL, & PADMOS, INC. By: Its: ~1()¢&)=1
Date: 1 -I (.. - ~
So Agreed: LOONEY, RICKS, KISS, ARCHITECTS
By: ----------------------------------------------
Its: ----------------------------
Date: _________________
Page 11 of 11

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 12 of 13 Pg ID 1998
So Agreed: WARNER, CANTRELL, & PADMOS, INC.
By: ---------------------------------------------Its: ------------------
Date: - - - - - - -
So Agreed: LOONEY, RICKS, KISS, ARCIDTECTS
By: r;~;·
Its: P/?C.fJJ:?tJ/r
Date: th.ifJ
Page 11 ofll

2:06-cv-13408-NGE-MKM Doc # 170 Filed 07/28/09 Pg 13 of 13 Pg ID 1999
CERTIFICATE OF SERVICE I hereby certify that on July 28, 2009, I presented the foregoing paper to the Clerk of the Court for filing and uploading to the ECF system which will send notification of such filing to the following: Denise M. Heberle of Heberle & Finnegan PLLC, Theresa L. Kitay, Brett Rendeiro, Stephen M. Dane and John Mark Finnegan, and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participant: none.
MILLER CANFIELD PADDOCK and STONE, P.L.C. By: s/Leigh R. Greden (P61859)
101 North Main, 7th Floor Ann Arbor, Michigan 48104-1400 Phone: 734-663-2445 Email: greden@millercanfield.com
AALIB:563459.1\016321-00268

 
 2:06-cv-13408-NGE-MKM Doc # 171 Filed 07/29/09 Pg 1 of 3 Pg ID 2000
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL & MARILYN LOWERY, Plaintiff,
and FAIR HOUSING CENTER OF SOUTHEAST MICHIGAN,
Intervenor-Plaintiff, v.
BEZTAK PROPERTIES, INC., BEZTAK COMPANIES, INC., BILTMORE PROPERTIES COMPANIES, INC., UPTOWN INVESTORS, L.L.C., UPTOWN INVESTORS, L.L.C. II, MONOGRAM HOMES; WARNER, CANTRELL & PADMOS, INC.; LOONEY, RICKS, KISS, and CANTON TOWNSHIP,
Defendants.

Case #06-13408-NGE-MKM Hon. Nancy G. Edmunds Special Master Virginia Morgan

STIPULATED ORDER DISMISSING WITH PREJUDICE ALL CLAIMS OF INTERVENOR-PLAINTIFF FAIR HOUSING CENTER OF SOUTHEAST MICHIGAN AND CLOSING CASE

This matter having come before the Court upon entry of the “Stipulated Order of Final Settlement and Full Release Between Fair Housing Center of Southeast Michigan and Certain Defendants” (the “Settlement Order”) which was filed simultaneously with this Order;
Intervenor-Plaintiff Fair Housing Center of Southeast Michigan (“FHC”) and Defendants Beztak Properties, Beztak Companies, Uptown Investors LLC, Monogram Homes, Warner Cantrell & Padmos, and Looney Ricks Kiss (collectively, “Defendants”) having all stipulated in writing in the Settlement Order to the dismissal with prejudice of all claims that FHC brought or could have brought against Defendants;
This Court having previously entered an Order (ECF 169) dismissing with prejudice all claims brought by Plaintiffs Michael Lowrey and Marilyn Lowrey against certain defendants; and

2:06-cv-13408-NGE-MKM Doc # 171 Filed 07/29/09 Pg 2 of 3 Pg ID 2001
The Court being otherwise advised; IT IS HEREBY ORDERED, that all claims brought, or that could have been brought, by FHC against Defendants are DISMISSED WITH PREJUDICE pursuant to the terms of the Settlement Order, with no costs or fees assessed to any party other than those included in the terms of the Settlement Order; IT IS FURTHER ORDERED that this matter is CLOSED.

IT IS SO ORDERED.

Nancy United

s/Nancy G. Edmunds G. Edmunds States District Judge

Dated: July 29, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on July 29, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer Case Manager

Page 2 of 3

2:06-cv-13408-NGE-MKM Doc # 171 Filed 07/29/09 Pg 3 of 3 Pg ID 2002

CERTIFICATE OF SERVICE
I hereby certify that on July 28, 2 009, I presented the foregoing paper to the Clerk of th e Court for fili ng and uploading to the E CF system which will send notification of such filing to the following: Denise M. Heberle of Heberle & Finnegan PLLC, Theresa L. Kitay, Brett Rendeiro, Stephen M. Dane and John Mark Finnegan, and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participant: none.

MILLER
By 101 Ann Phone: E

CANFIELD PADDOCK and STONE, P.L.C.
: s/Leigh R. Greden (P61859) North Main, 7th Floor Arbor, Michigan 48104-1400 734-663-2445
mail: greden@millercanfield.com

Page 3 of 3

 
 2:06-cv-13408-NGE-MKM Doc # 163 Filed 04/27/09 Pg 1 of 3 Pg ID 1937

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Michael Lowrey and Marilyn Lowrey

)

)

Plaintiffs

)

)

)

Beztak Properties, Inc.,Beztak Companies, Inc;)

Biltmore Properties Companies, Inc.

)

Uptown Investors L.L.C.; Monogram Homes, )

Warner, Cantrell, & Padmos, Inc.

)

Looney, Ricks, Kiss; and, Canton Township )

)

Defendants

.

)

Case No.: 06-13408 NGE-MKM
Honorable: NANCY G. EDMUNDS
Magistrate Judge MONA MAZOUB

STIPULATED ORDER OF DISMISSAL WITH PREJUDICE AND WITHOUT COSTS OR ATTORNEY FEES AS TO CLAIMS AGAINST ONLY DEFENDANT
CHARTER TOWNSHIP OF CANTON, MICHIGAN
At a session of Court, held in the United States Courthouse, in the City of Detroit, State of Michigan, on
April 27, 2009

PRESENT:

Nancy G. Edmunds_____________ The Honorable Nancy G. Edmunds
United States District Judge

This matter having c ome before the Court upon the stipulation of Plaint iffs

Michael and Marilyn Lowrey, and Defendant the Charter Township of Canton,

Michigan, and the Court being fully advised in the premises and finding thes e

Parties’ intentions to be just and equitable, IT IS HEREBY ORDERED that

Plaintiffs Michael and Marilyn Lowrey’s claims again st Defendant the Charter

Township of Canton, Michigan only are dis missed with prejudice and each party

shall bear its own costs and attorney’s fees, except as set forth in the Settlement

Agreement executed just prior to the entry of this Order..

2:06-cv-13408-NGE-MKM Doc # 163 Filed 04/27/09 Pg 2 of 3 Pg ID 1938

IT IS FURTHER ORDERED that the Cour t shall retain jurisdiction for the limited purposes of ensuring the Township makes prompt payment of the $75,000.00 as set forth in the settlement agreement and promptly transmits all documents identified and marked for transmittal by Plaintiffs during the just-concluded document production at Township Hall, pur suant to the terms of the Settlement Agreement among the parties.
The Lowreys and the Township warrant, and the Court recognizes that this Order merely dismisses with prejudice the Township from the lawsuit; this Order does not resolve the last pending c laim and it does not close the case against any other Defendants, current or future. IT IS SO ORDERED.

Nancy United

s/Nancy G. Edmunds G. Edmunds States District Judge

Dated: April 27, 2009

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on April 27, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer Case Manager

So stipulated:
By: /s/ Timothy L. Cronin (P26417) HEMMING, POLACZYK, CRONIN, SMITH, WITTHOFF & BENNETT, P.C. 217 W. Ann Arbor Road - Suite 302 Plymouth, MI 48170 Attorneys for Defendant Charter Township of Canton, Michigan
2

2:06-cv-13408-NGE-MKM Doc # 163 Filed 04/27/09 Pg 3 of 3 Pg ID 1939 By: /s/ J. Mark Finnegan (P68050) HEBERLE & FINNEGAN, PLLC 2580 Craig Road Ann Arbor, MI 48103 hffirm@comcast.net Attorneys for the Plaintiffs Lowrey
3

 
 Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 1 of 16

U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:06−cv−13408−NGE−MKM

CLOSED

Lowery v. Beztak Properties, Incorporated Assigned to: District Judge Nancy G. Edmunds Referred to: Magistrate Judge Mona K. Majzoub
Magistrate Judge Virginia M. Morgan (Settlement) Cause: No cause code entered
Plaintiff

Date Filed: 07/27/2006 Date Terminated: 07/20/2009 Jury Demand: Both Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Michael Lowery

represented by Denise M. Heberle Heberle &Finnegan 2580 Craig Road Ann Arbor, MI 48103 734−302−3233 Email: hffirm@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Mark Finnegan Heberle &Finnegan 2580 Craig Road Ann Arbor, MI 48103 734−302−3233 Fax: 734−302−3234 Email: jmarkfinnegan@comcast.net ATTORNEY TO BE NOTICED

Plaintiff Marilyn Lowrey

represented by Denise M. Heberle (See above for address) ATTORNEY TO BE NOTICED

John Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Beztak Properties, Incorporated
Defendant Beztak Companies, Incorporated
Defendant

represented by Leigh Greden − INACTIVE Miller, Canfield, 101 N. Main Street 7th Floor Ann Arbor, MI 48104−1400 734−668−7749 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leigh Greden − INACTIVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 2:06-cv-13408-NGE-MKM Biltmore Properties Companies, Incorporated TERMINATED: 04/20/2009
Defendant Uptown Investors L. L. C. Defendant Uptown Investors L. L. C. II Defendant Monogram Homes Defendant Warner, Cantrell and Padmos, Incorporated
Defendant Looney Ricks Kiss

As of: 07/02/2012 11:03 AM EDT 2 of 16
Gerard V. Mantese Mantese Assoc. 1361 E. Big Beaver Road Troy, MI 48083 248−457−9200 Fax: 248−457−9201 Email: gmantese@manteselaw.com TERMINATED: 04/20/2009 ATTORNEY TO BE NOTICED
Leigh Greden − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
Mark C. Rossman Mantese Assoc. 1361 E. Big Beaver Road Troy, MI 48083 248−457−9200 Email: mrossman@manteselaw.com TERMINATED: 05/06/2009 ATTORNEY TO BE NOTICED
represented by Leigh Greden − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Leigh Greden − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Brett A. Rendeiro Varnum, Riddering, 39500 High Pointe Boulevard Suite 350 Novi, MI 48375 248−567−7400 Email: barendeiro@varnumlaw.com ATTORNEY TO BE NOTICED
Leigh Greden − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. Gleeson Sullivan, Ward, 25800 Northwestern Highway Suite 1000 Southfield, MI 48075−1000 248−746−0700 Email: kgleeson@swappc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Craig S. Thompson

Case: 2:06-cv-13408-NGE-MKM
Defendant Canton, Township of TERMINATED: 04/27/2009

As of: 07/02/2012 11:03 AM EDT 3 of 16
Sullivan, Ward, 25800 Northwestern Highway Suite 1000 Southfield, MI 48075−1000 248−746−0700 Email: cthompson@swappc.com ATTORNEY TO BE NOTICED
John M. Simmerer Sullivan, Ward, 25800 Northwestern Highway Suite 1000 Southfield, MI 48075−1000 248−746−0700 Email: jsimmerer@swappc.com ATTORNEY TO BE NOTICED
Leigh Greden − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
Theresa L. Kitay 578 Washington Boulevard Suite 836 Marina Del Rey, CA 90292 310−578−9134 Fax: 770−454−0126 Email: tkitay@kitaylaw.net ATTORNEY TO BE NOTICED
represented by Carol A. Rosati Johnson, Rosati, 34405 W. Twelve Mile Road Suite 200 Farmington Hills, MI 48331−5627 248−489−4100 Email: crosati@jrsjlaw.com TERMINATED: 04/27/2009 ATTORNEY TO BE NOTICED
Daniel A. Klemptner Johnson, Rosati, LaBarge, Aseltyne &Field, P.C. 34405 W. Twelve Mile Road Suite 200 Farmington Hills, MI 48331 248−489−4100 Fax: 248−489−1726 Email: dklemptner@jrlaf.com TERMINATED: 04/27/2009 ATTORNEY TO BE NOTICED
Gregory R. Grant Cummings McClorey 125 Park Street Suite 415 Traverse City, MI 49684 231−922−1888 Fax: 231−922−9888 Email: ggrant@cmda−law.com TERMINATED: 04/27/2009 ATTORNEY TO BE NOTICED

Case: 2:06-cv-13408-NGE-MKM
Defendant James A. Jackson Director, WCDPS Defendant Lorenzo Blount Defendant Wayne County Department of Public Services

As of: 07/02/2012 11:03 AM EDT 4 of 16
Kevin L. Bennett Hemming, Polaczyk, 217 W. Ann Arbor Road Suite 302 Plymouth, MI 48170 734−453−7877 Fax: 734−453−1108 Email: kbennett@hpcswb.com TERMINATED: 04/27/2009 ATTORNEY TO BE NOTICED
Laura S. Amtsbuechler 34405 W. Twelve Mile Road Suite 200 Farmington Hills, MI 48331−5627 248−489−4100 Email: lamtsbuechler@jrlaf.com TERMINATED: 04/27/2009 ATTORNEY TO BE NOTICED
Timothy L. Cronin Hemming, Polaczyk, 217 W. Ann Arbor Road Suite 302 Plymouth, MI 48170 734−453−7877 Fax: 734−453−1108 Email: tcronin@hpcswb.com TERMINATED: 04/27/2009 ATTORNEY TO BE NOTICED

V.
Movant
Fair Housing Center of Southeastern Michigan, Incorporated

represented by Stephen M. Dane Relman, Dane &Colfax PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036−2456 202−728−1888 Fax: 202−728−0848 Email: sdane@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/27/2006

# Docket Text
1 COMPLAINT filed by Michael Lowery against Beztak Properties, Incorporated, Receipt No: 6215−AA − Fee: $ 350.(BSoc, ) (Entered: 07/28/2006)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 5 of 16

09/20/2006 12/01/2006 12/12/2006 01/25/2007
02/07/2007 02/09/2007 02/14/2007 02/14/2007 02/15/2007 02/20/2007 02/20/2007 02/21/2007 02/22/2007 03/05/2007 03/08/2007 03/15/2007 03/20/2007
03/20/2007 03/20/2007

2 AMENDED COMPLAINT filed by Michael Lowery against all defendants.(Heberle, Denise) (Entered: 09/20/2006)
3 STIPULATED ORDER Extending time to: Respond by 1/31/2007 to Amended Complaint as to Beztak Companies and Beztak Properties. Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 12/01/2006)
4 NOTICE of Appearance by Leigh Greden on behalf of Beztak Companies, Incorporated, Beztak Properties, Incorporated. (Greden, Leigh) (Entered: 12/12/2006)
5 ORDER for Plaintiff to Show Cause why defendants (see order for names) should not be dismissed for failure to prosecute. Show Cause Response due by 2/14/2007. Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 01/25/2007)
6 NOTICE of Appearance by Kevin J. Gleeson on behalf of Looney Ricks Kiss. (Gleeson, Kevin) (Entered: 02/07/2007)
7 NOTICE TO APPEAR: Settlement Conference set for 2/22/2007 10:00 AM before Honorable Nancy G Edmunds. (CHem, ) (Entered: 02/09/2007)
8 RESPONSE TO ORDER TO SHOW CAUSE by all plaintiffs. (Heberle, Denise) (Entered: 02/14/2007)
9 STIPULATED ORDER extending time to answer as to Looney, Picks, Kiss: Responsive Pleading due by 3/12/2007. Signed by Honorable Nancy G Edmunds. (CHem, ) (Entered: 02/14/2007)
10 SECOND STIPULATION AND ORDER Extending Deadline for Defendants to Respond to First Amended Complaint. Signed by Honorable Nancy G Edmunds. (SMar, ) (Entered: 02/16/2007)
Re−Set Deadline: Settlement Conference re−set (time only)for 2/22/2007 02:00 PM before Honorable Nancy G Edmunds. (CHem) (Entered: 02/20/2007)
11 NOTICE of Appearance by John M. Simmerer on behalf of Looney Ricks Kiss. (Simmerer, John) (Entered: 02/20/2007)
12 NOTICE of Appearance by Craig S. Thompson on behalf of Looney Ricks Kiss. (Thompson, Craig) (Entered: 02/21/2007)
Minute Entry −Settlement Conference held on 2/22/2007 before Honorable Nancy G Edmunds. Disposition: held and continued to 4/5/2007 at 2:00 p.m. (CHem) (Entered: 02/22/2007)
13 NOTICE of Appearance by Brett A. Rendeiro on behalf of Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 03/05/2007)
14 ATTORNEY APPEARANCE: Theresa L. Kitay appearing on behalf of Looney Ricks Kiss (Kitay, Theresa) (Entered: 03/08/2007)
15 STILULATED ORDER extending deadline to respond to first amended complaint to 4/13/2007. (CHem) (Entered: 03/15/2007). Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 03/15/2007)
16 [FILING ERROR− WRONG PARTY SELECTED, CORRECT PARTY FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INCORPORATED; R11 PROPOSED ORDERS] MOTION to Intervene by Michael Lowery. (Attachments: # 1 Exhibit Exhibit A − Complaint# 2 Document Continuation Attachment − Order) (Dane, Stephen) Modified on 3/20/2007 (Martin, S.). (Entered: 03/20/2007)
17 SUPPLEMENTAL BRIEF re 16 MOTION to Intervene filed by Fair Housing Center of Southeastern Michigan, Incorporated. (Dane, Stephen) (Entered: 03/20/2007)
18 MOTION Unopposed motion for relief from obligation to specify local counsel by Fair Housing Center of Southeastern Michigan, Incorporated. (Dane, Stephen) (Entered: 03/20/2007)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 6 of 16

04/03/2007 04/04/2007 04/05/2007 04/06/2007
04/06/2007 04/06/2007 04/06/2007 04/10/2007 04/13/2007 04/13/2007
04/16/2007 04/16/2007 04/19/2007
04/25/2007 04/27/2007
05/04/2007 05/06/2007 05/07/2007 05/07/2007

Re−Set Deadlines: Settlement Conference re−set for 4/16/2007 01:00 PM before Honorable Nancy G Edmunds (CHem) (Entered: 04/03/2007)
19 ATTORNEY APPEARANCE: Leigh Greden appearing on behalf of Uptown Investors L. L. C., Monogram Homes (Greden, Leigh) (Entered: 04/04/2007)
20 CERTIFICATE OF SERVICE by Uptown Investors L. L. C., Monogram Homes Beztak Properties, Inc., and Beztak Companies, Inc. (Greden, Leigh) (Entered: 04/05/2007)
21 [FILING ERROR − R18; EXHIBITS, LABELING] RESPONSE to 16 MOTION to Intervene filed by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated. (Attachments: # 1 Index of Exhibits Exhibit 1# 2 Exhibit Exhibit 2) (Greden, Leigh) Modified on 4/6/2007 (Martin, S.). (Entered: 04/06/2007)
22 NOTICE by Warner, Cantrell and Padmos, Incorporated re 16 MOTION to Intervene Notice of Opposition to Motion to Intervene (Rendeiro, Brett) (Entered: 04/06/2007)
23 RESPONSE to 16 MOTION to Intervene filed by Looney Ricks Kiss. (Kitay, Theresa) (Entered: 04/06/2007)
24 RESPONSE to 16 MOTION to Intervene filed by all plaintiffs. (Heberle, Denise) (Entered: 04/06/2007)
25 NOTICE of Appearance by Gerard V. Mantese on behalf of Biltmore Properties Companies, Incorporated. (Mantese, Gerard) (Entered: 04/10/2007)
26 STIPULATED ORDER Extending Deadline to Respond to First Amended Complaint. Responses due by 4/27/2007 Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 04/13/2007)
27 REPLY to Response re 16 MOTION to Intervene filed by Fair Housing Center of Southeastern Michigan, Incorporated. (Attachments: # 1 Index of Exhibits Exhibit Table of Contents# 2 Exhibit Exhibit A − Fair Housing Center v. Vilalge of Olde St. Andrews) (Dane, Stephen) (Entered: 04/13/2007)
Minute Entry −Settlement Conference held on 4/16/2007 before Honorable Nancy G Edmunds. (CHem) (Entered: 04/16/2007)
28 ORDER REFERRING OTHER MATTERS to Magistrate Judge Morgan: Serve as Special Master. Signed by Honorable Nancy G Edmunds (SMar) (Entered: 04/16/2007)
29 NOTICE of Joinder/Concurrence in 21 Response to Motion, filed by Beztak Properties, Incorporated, Monogram Homes, Uptown Investors L. L. C., Beztak Companies, Incorporated by Biltmore Properties Companies, Incorporated (Mantese, Gerard) (Entered: 04/19/2007)
30 STIPULATION AND ORDER extending time to respond to 2 Amended Complaint Response due by 5/7/2007 Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 04/25/2007)
31 NOTICE of hearing on 18 MOTION Unopposed motion for relief from obligation to specify local counsel, 16 MOTION to Intervene. Motion Hearing set for 6/13/2007 02:00 PM before Honorable Nancy G Edmunds (CHem) (Entered: 04/27/2007)
32 ANSWER to Amended Complaint with Affirmative Defenses by Biltmore Properties Companies, Incorporated. (Mantese, Gerard) (Entered: 05/04/2007)
33 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Looney Ricks Kiss. (Kitay, Theresa) (Entered: 05/06/2007)
34 NOTICE TO APPEAR: Settlement Conference set for 6/5/2007 10:30 AM before Honorable Virginia M Morgan (BRad, ) (Entered: 05/07/2007)
35 MOTION for Leave to File Second Amended Complaint and Memorandum in Support by Michael Lowery. (Attachments: # 1 Proposed Second Amended

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 7 of 16

05/07/2007 05/07/2007 05/10/2007 05/14/2007 05/14/2007 05/16/2007 05/18/2007 05/24/2007
05/30/2007 05/30/2007 05/30/2007 05/30/2007 05/31/2007
05/31/2007
05/31/2007 06/05/2007

Complaint) (Heberle, Denise) (Entered: 05/07/2007)
36 ANSWER to Amended Complaint with Affirmative Defenses by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated. (Greden, Leigh) (Entered: 05/07/2007)
37 ANSWER to Amended Complaint with Affirmative Defenses by Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 05/07/2007)
38 NOTICE TO APPEAR: Settlement Conference rescheduled to 6/7/2007 10:00 AM before Honorable Virginia M Morgan (BRad, ) (Entered: 05/10/2007)
39 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Warner, Cantrell and Padmos, Incorporated (Rendeiro, Brett) (Entered: 05/14/2007)
40 CERTIFICATE OF SERVICE by Warner, Cantrell and Padmos, Incorporated for Statement of Disclosure of Corporate Affiliations &Financial Interest (Rendeiro, Brett) (Entered: 05/14/2007)
41 NOTICE of hearing on 35 MOTION for Leave to File Second Amended Complaint and Memorandum in Support. Motion Hearing set for 6/13/2007 02:00 PM before Honorable Nancy G Edmunds (CHem) (Entered: 05/16/2007)
42 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Looney Ricks Kiss (Kitay, Theresa) (Entered: 05/18/2007)
43 MOTION for Preliminary Injunction Under Title III of the ADA by all plaintiffs. (Attachments: # 1 Exhibit Declaration of Mike Lowery# 2 Exhibit Declaration of Marilyn Lowrey# 3 Exhibit Declaration of Megan Buffington) (Heberle, Denise) (Entered: 05/24/2007)
44 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Beztak Companies, Incorporated (Greden, Leigh) (Entered: 05/30/2007)
45 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Beztak Properties, Incorporated (Greden, Leigh) (Entered: 05/30/2007)
46 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Monogram Homes (Greden, Leigh) (Entered: 05/30/2007)
47 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Uptown Investors L. L. C. (Greden, Leigh) (Entered: 05/30/2007)
48 NOTICE by Beztak Companies, Incorporated, Biltmore Properties Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Warner, Cantrell and Padmos, Incorporated, Looney Ricks Kiss, Beztak Properties, Incorporated of Concurrence with Third−Party Fair Housing Center's Motion to Intervene (Greden, Leigh) (Entered: 05/31/2007)
49 NOTICE by Beztak Companies, Incorporated, Biltmore Properties Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Warner, Cantrell and Padmos, Incorporated, Looney Ricks Kiss, Beztak Properties, Incorporated of Defendant's Concurrence with Plaintiff's Motion to File Second Amended Complaint (Greden, Leigh) (Entered: 05/31/2007)
50 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Biltmore Properties Companies, Incorporated (Mantese, Gerard) (Entered: 05/31/2007)
51 ORDER Staying Response and Reply deadlines re 43 MOTION for Preliminary Injunction Under Title III of the ADA filed by Michael Lowery. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 06/05/2007)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 8 of 16

06/05/2007 06/06/2007
06/18/2007 06/25/2007
06/26/2007 07/10/2007 07/26/2007 07/26/2007 07/30/2007 08/06/2007 08/10/2007 08/23/2007 08/23/2007 08/24/2007
08/24/2007

52 ORDER granting unopposed 35 Motion for Leave to File; granting unopposed 16 Motion to Intervene; granting unopposed 18 Motion for relief from obligation to specify local counsel. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 06/05/2007)
53 INTERVENOR COMPLAINT filed by Fair Housing Center of Southeastern Michigan, Incorporated against Beztak Companies, Incorporated, Biltmore Properties Companies, Incorporated, Uptown Investors L. L. C., Uptown Investors L. L. C. II, Monogram Homes, Warner, Cantrell and Padmos, Incorporated, Looney Ricks Kiss, Beztak Properties, Incorporated. (Dane, Stephen) (Entered: 06/06/2007)
54 STIPULATED ORDER extending deadline to respond to Intervenor Plaintiff's Complaint: Response due by 8/1/2007 Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 06/18/2007)
55 CERTIFICATE OF SERVICE by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated re 35 MOTION for Leave to File Second Amended Complaint and Memorandum in Support of proposed Stipulated Order Extending Deadline for Certain Defendants to Respond to Plaintiffs' Second Amended Complaint (Greden, Leigh) (Entered: 06/25/2007)
56 MEMORANDUM of Partial Settlement and Further Scheduling Order: Continuation of Settlement Conference set for 9/20/2007 10:00 AM before Honorable Virginia M Morgan − Signed by Honorable Virginia M Morgan. (JJoh) (Entered: 06/26/2007)
57 ORDER to Extend Time to answer Second Amended Complaint as tgo Certain Defendants; Answers due by 8/1/2007 Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 07/10/2007)
58 STIPULATED ORDER OF PARTIAL SETTLEMENT and CONDITIONAL RELEASE. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 07/26/2007)
59 Signature Pages to re 58 Stipulated Order Of Partial Settlement. (CGre) (Entered: 07/27/2007)
60 Stipulated Order extending deadline for certain defendants to respond to second amended complaint: response due 9/21/2007. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 07/30/2007)
61 [FILING ERROR − RULE 18 − NO INDEX OF EXHIBITS AND LABELING OF EXHIBITS] MOTION for Attorney Fees by Michael Lowery. (Attachments: # 1 # 2 # 3) (Heberle, Denise) Modified on 8/7/2007 (Greyerbiehl, C.). (Entered: 08/06/2007)
62 INDEX of Exhibits re 61 MOTION for Attorney Fees by Michael Lowery and Marilyn Lowery (Heberle, Denise) (Entered: 08/10/2007)
63 RESPONSE to 61 MOTION for Attorney Fees and Costs filed by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated. (Greden, Leigh) (Entered: 08/23/2007)
64 RESPONSE to 61 MOTION for Attorney Fees filed by Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 08/23/2007)
65 [FILING ERROR − WRONG EVENT SELECTED; DOCUMENT IS CONCURRENCE]RESPONSE to 61 MOTION for Attorney Fees in Concurrence with Defendants Beztak Properties, Beztak Companies, Uptown Investors and Monotram Homes' Response filed by Biltmore Properties Companies, Incorporated. (Rossman, Mark) Modified on 8/24/2007 (Martin, S.). (Entered: 08/24/2007)
66 NOTICE of Appearance by Mark C. Rossman on behalf of Biltmore Properties Companies, Incorporated. (Rossman, Mark) (Entered: 08/24/2007)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 9 of 16

08/28/2007 08/28/2007 09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/07/2007 09/19/2007
10/04/2007
10/04/2007 10/04/2007 10/22/2007 10/23/2007 11/01/2007 11/13/2007
11/14/2007 11/15/2007 01/25/2008

67 MOTION to Withdraw 43 MOTION for Preliminary Injunction Under Title III of the ADA Without Prejudice by Michael Lowery. (Heberle, Denise) (Entered: 08/28/2007)
68 NOTICE TO APPEAR: Settlement Conference continued to 10/23/2007 10:00 AM before Honorable Virginia M Morgan (BRad, ) (Entered: 08/28/2007)
69 ORDER granting 67 Motion to Withdraw Document 43.. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 09/05/2007)
70 RESPONSE to 61 MOTION for Attorney Fees filed by Looney Ricks Kiss. (Kitay, Theresa) (Entered: 09/05/2007)
71 NOTICE of Appearance by John Mark Finnegan on behalf of Michael Lowery. (Finnegan, John) (Entered: 09/05/2007)
72 REPLY to Response re 61 MOTION for Attorney Fees filed by Michael Lowery. (Attachments: # 1 Exhibit Supplemental Declaration of Attorney J. Mark Finnegan) (Finnegan, John) (Entered: 09/05/2007)
73 AMENDED COMPLAINT (Second) filed by Michael Lowery against all defendants. (Heberle, Denise) (Entered: 09/07/2007)
74 [FILING ERROR − RULE 11] STIPULATION Stipulated Order Extending Deadline for Certain Defendant's to Respond to Plaintiffs' Second Amended Complaint and Intervnor−Plaintiff's Complaint by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated (Greden, Leigh) Modified on 9/19/2007 (Greyerbiehl, C.). (Entered: 09/19/2007)
75 [FILING ERROR APPEARANCE IS FOR ATTY TIMOTHY CRONIN NOT MR GRANT WILL BE REFILED ] ATTORNEY APPEARANCE: Gregory R. Grant appearing on behalf of Canton, Township of (Grant, Gregory) Modified on 10/4/2007 (Socia, B.). (Entered: 10/04/2007)
76 ANSWER to Amended Complaint with Affirmative Defenses by Canton, Township of. (Grant, Gregory) (Entered: 10/04/2007)
77 ATTORNEY APPEARANCE: Timothy L. Cronin appearing on behalf of Canton, Township of (Cronin, Timothy) (Entered: 10/04/2007)
78 ORDER Extending Deadline to respond;. Responses due by 11/16/2007 Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 10/22/2007)
Minute Entry −Settlement Conference held on 10/23/2007 before Honorable Virginia M Morgan. Disposition: Partial settlement. (Tape #VMM 07−135) (JJoh) Modified on 10/24/2007 (Johnson, J.). (Entered: 10/24/2007)
79 ORDER denying 61 Motion for Attorney Fees. Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 11/01/2007)
80 CERTIFICATE OF SERVICE by Beztak Companies, Incorporated, Biltmore Properties Companies, Incorporated, Uptown Investors L. L. C., Uptown Investors L. L. C. II, Monogram Homes, Warner, Cantrell and Padmos, Incorporated, Looney Ricks Kiss, Canton, Township of, Beztak Properties, Incorporated (Greden, Leigh) (Entered: 11/13/2007)
81 Sealed Matter (BSoc) (Entered: 11/15/2007)
82 STIPULATED ORDER Extending Deadline to respond to Second Amended Complaint; Responses due by 1/25/2008 Signed by Honorable Nancy G Edmunds. (CHem) (Entered: 11/15/2007)
83 ANSWER to Amended Complaint with Affirmative Defenses Answer to Second Amended Complaint by Beztak Companies, Incorporated, Biltmore Properties Companies, Incorporated, Uptown Investors L. L. C., Uptown Investors L. L. C. II, Monogram Homes, Beztak Properties, Incorporated. (Greden, Leigh) (Entered: 01/25/2008)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 10 of 16

01/25/2008
01/25/2008 01/25/2008 01/26/2008 01/27/2008 01/29/2008 01/29/2008 04/02/2008 05/19/2008 06/17/2008 06/23/2008 06/26/2008 07/01/2008 07/02/2008 07/24/2008
07/24/2008 07/24/2008 07/24/2008 07/25/2008

84 ANSWER to Intervenor Complaint with Affirmative Defenses ANSWER TO INTERVENOR−PLAINTIFF FAIR HOUSING CENTER OF SOUTHEASTERN MICHIGAN, INC.S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF by Beztak Companies, Incorporated, Biltmore Properties Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated. (Greden, Leigh) (Entered: 01/25/2008)
85 ANSWER to Amended Complaint with Affirmative Defenses (Second Amended) by Biltmore Properties Companies, Incorporated. (Rossman, Mark) (Entered: 01/25/2008)
86 ANSWER to Intervenor Complaint with Affirmative Defenses by Biltmore Properties Companies, Incorporated. (Rossman, Mark) (Entered: 01/25/2008)
87 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Looney Ricks Kiss. (Kitay, Theresa) (Entered: 01/26/2008)
88 ANSWER to Intervenor Complaint with Affirmative Defenses with Jury Demand by Looney Ricks Kiss. (Kitay, Theresa) (Entered: 01/27/2008)
89 ANSWER to Intervenor Complaint with Affirmative Defenses by Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 01/29/2008)
90 ANSWER to Amended Complaint with Affirmative Defenses by Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 01/29/2008)
91 NOTICE TO APPEAR: Status Conference set for 4/15/2008 02:45 PM before District Judge Nancy G Edmunds (CHem) (Entered: 04/02/2008)
92 ATTORNEY APPEARANCE: Kevin L. Bennett appearing on behalf of Canton, Township of (Bennett, Kevin) (Entered: 05/19/2008)
93 MOTION for Contempt and Sanctions by Marilyn Lowrey, Michael Lowery. (Attachments: # 1 Exhibit Declaration of Marguerite Claire Finnegan) (Finnegan, John) (Entered: 06/17/2008)
94 ORDER REFERRING MOTION to Magistrate Judge Virginia M Morgan: 93 MOTION for Contempt and Sanctions filed by Michael Lowery, Marilyn Lowrey. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 06/23/2008)
95 NOTICE of hearing on 93 MOTION for Contempt and Sanctions: Responses due by 7/24/2008 and Motion Hearing set for 8/11/2008 at 10:00 AM before Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 06/26/2008)
96 MOTION for Order Rescinding Order of Referral by Marilyn Lowrey, Michael Lowery. (Heberle, Denise) (Entered: 07/01/2008)
97 ORDER denying 96 Motion for Order to rescind order of reference and including that Magistrate Judge Morgan shall prepare a report and recommendation.. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 07/02/2008)
98 RESPONSE to 93 MOTION for Contempt and Sanctions filed by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit) (Greden, Leigh) (Entered: 07/24/2008)
99 RESPONSE to 93 MOTION for Contempt and Sanctions filed by Biltmore Properties Companies, Incorporated. (Rossman, Mark)[NOTICE OF CONCURRENCE] Modified on 7/25/2008 (PPau). (Entered: 07/24/2008)
100 RESPONSE to 93 MOTION for Contempt and Sanctions filed by Looney Ricks Kiss. (Kitay, Theresa) (Entered: 07/24/2008)
101 RESPONSE to 93 MOTION for Contempt and Sanctions filed by Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 07/25/2008)
102 RESPONSE to 93 MOTION for Contempt and Sanctions AMENDED RESPONSE BRIEF WITH EXHIBITS filed by Warner, Cantrell and Padmos, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: As−Built Survey, # 3 Exhibit B: Delisle, # 4 Exhibit C: ANSI 1998, # 5 Exhibit D: Lonberg) (Rendeiro, Brett)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 11 of 16

07/25/2008 07/29/2008 07/31/2008 08/01/2008
08/05/2008 08/07/2008
08/08/2008
08/15/2008 08/15/2008 08/15/2008 08/15/2008
08/19/2008 08/26/2008

(Entered: 07/25/2008)
103 Notice of Failure to Comply with ECF Policies and Procedures as to attorney Gregory R. Grant. (DHam) (Entered: 07/25/2008)
104 Joint MOTION for Extension of Time to File Response/Reply as to 102 Response to Motion, 93 MOTION for Contempt and Sanctions, 100 Response to Motion, 99 Response to Motion, 98 Response to Motion by Marilyn Lowrey, Michael Lowery. (Finnegan, John) (Entered: 07/29/2008)
105 ORDER granting 104 Motion for Extension of Time to File Reply re 93 MOTION for Contempt and Sanctions: Replies due by 8/5/2008 −Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 07/31/2008)
106 MOTION for Preliminary Injunction by Marilyn Lowrey, Michael Lowery. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Map of Retail and Theater District, # 3 Exhibit Declaration of Mike Lowrey, # 4 Exhibit Declaration of Marilyn Lowrey, # 5 Exhibit Declaration of Marguerite Finnegan, # 6 Document Continuation Finnegan Photos 1−40, # 7 Document Continuation Finnegan Photos 41−81, # 8 Document Continuation Finnegan Photos 81−116) (Finnegan, John) (Entered: 08/01/2008)
107 ORDER REFERRING MOTION to Magistrate Judge Virginia M Morgan: 106 MOTION for Preliminary Injunction filed by Michael Lowery, Marilyn Lowrey. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 08/05/2008)
108 STIPULATED ORDER WITH MOTION Setting New Deadlines and Hearing Date re: 93 MOTION for Contempt and Sanctions :Affidavit in support of Response due by 8/15/2008, Plaintiff's Reply due by 9/2/2008, and Motion Hearing set for 9/15/2008 at 01:30 PM before Magistrate Judge Virginia M Morgan − Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 08/07/2008)
109 ORDER Regarding Procedures for 106 MOTION for Preliminary Injunction filed by Michael Lowery, Marilyn Lowrey :Plaintiff's Brief including proposed findings of fact due by 8/15/2008, Defendants' Responses due by 8/29/2008, Plaintiff's Reply due by 9/11/2008, and Motion Hearing set for 10/1/2008 at 01:30 PM before Magistrate Judge Virginia M Morgan − Signed by Magistrate Judge Virginia M Morgan. (See image for additional deadlines) (JJoh) (Entered: 08/08/2008)
110 NOTICE of Appearance by Laura S. Amtsbuechler on behalf of Canton, Township of. (Amtsbuechler, Laura) (Entered: 08/15/2008)
111 ATTORNEY APPEARANCE: Carol A. Rosati appearing on behalf of Canton, Township of (Rosati, Carol) (Entered: 08/15/2008)
112 DECLARATION by George R. Hirth, PE re 102 Response to Motion, filed by Warner, Cantrell and Padmos, Incorporated (Attachments: # 1 Exhibit 1: As−Built Survey, # 2 Exhibit 2_Engineering Plans) (Rendeiro, Brett) (Entered: 08/15/2008)
113 Proposed Findings of Fact by Marilyn Lowrey, Michael Lowery (Attachments: # 1 Index of Exhibits, # 2 Exhibit Ex. A Map of Retail and Theater District, # 3 Exhibit Ex. B Declaration of Mike Lowrey, # 4 Exhibit Declaration of Marilyn Lowrey, # 5 Exhibit Ex., # 6 Document Continuation Ex. D Photos, # 7 Document Continuation Finnegan Photos 41−81, # 8 Document Continuation Finnegan Photos 81−116, # 9 Exhibit Ex. E Warner Cantrell Padmos Projects, # 10 Exhibit Ex. F Village Theater FAQs and Parking Map, # 11 Exhibit Ex. G fedspending.org) (Finnegan, John) (Entered: 08/15/2008)
114 MOTION for Extension of Time to File Response/Reply as to 109 Order,,, Set Motion and RRDeadlines/Hearings,, by Canton, Township of. (Attachments: # 1 Document Continuation Ex parte order) (Bennett, Kevin) (Entered: 08/19/2008)
115 NOTICE of Joinder/Concurrence in 114 MOTION for Extension of Time to File Response/Reply as to 109 Order,,, Set Motion and RRDeadlines/Hearings,, filed by Canton, Township of by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated Concurrence with

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 12 of 16

08/27/2008 09/02/2008
09/12/2008
09/12/2008 09/12/2008 09/15/2008 09/18/2008 09/18/2008 09/18/2008 09/18/2008 09/18/2008 09/19/2008

Defendant Canton Township's Motion to Extend Deadline for Filing Response to Plaintiffs' Motion for Preliminary Injunction Against Canton Township (Greden, Leigh) (Entered: 08/26/2008)
116 ORDER granting 114 Motion for Extension of Time to File Response/Reply re 106 MOTION for Preliminary Injunction : Responses due by 9/12/2008 and Replies due by 9/19/2008 − Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 08/27/2008)
117 REPLY to Response re 93 MOTION for Contempt and Sanctions filed by Marilyn Lowrey, Michael Lowery. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Ex. 1 Survey Tools and Techniques, # 3 Exhibit Ex.2 Designing Sidewalks, # 4 Exhibit Ex.3 Handbook of Construction Tolerances, # 5 Exhibit Ex. 4 Declaration of David Esau pt.1, # 6 Document Continuation Ex. 4 Declaration of David Esau pt.2, # 7 Document Continuation Ex. 4 David Esau resume, # 8 Document Continuation Ex. 4 Esau Photo 1, # 9 Document Continuation Ex. 4 Esau Photo 2, # 10 Document Continuation Ex. 4 Esau Photo 3, # 11 Document Continuation Ex. 4 Esau Photo 4, # 12 Document Continuation Ex. 4 Esau Photo 5, # 13 Document Continuation Ex. 4 Esau Photo 6, # 14 Document Continuation Ex. 4 Esau Photo 7, # 15 Exhibit Ex. 5 Fair Housing Act Design Manual, # 16 Exhibit Ex. 6 Declaration of Marguerite Claire Finnegan, # 17 Exhibit Ex. 7 U.S. v. Shanrie, # 18 Exhibit Ex. 8 U.S. v. Tanski, # 19 Exhibit Ex. 9 Memphis CIL v. Grant) (Finnegan, John) (Entered: 09/02/2008)
118 RESPONSE to 106 MOTION for Preliminary Injunction filed by Canton, Township of. (Attachments: # 1 Exhibit Affidavit of Ann Conklin, # 2 Exhibit Affidavit of Lawrence Ancypa, # 3 Exhibit Wayne County Road Jurisdiction Map, # 4 Exhibit Wayne County Permit Manual, # 5 Exhibit Affidavit of Thomas Casari, # 6 Exhibit Uptown Agreement, # 7 Exhibit Cherry Hill Agreement) (Bennett, Kevin) (Entered: 09/12/2008)
119 RESPONSE to 106 MOTION for Preliminary Injunction Defendants Response Brief to Plaintiffs Motion for Preliminary Injunction filed by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated. (Greden, Leigh) (Entered: 09/12/2008)
120 RESPONSE to 106 MOTION for Preliminary Injunction filed by Warner, Cantrell and Padmos, Incorporated. (Rendeiro, Brett) (Entered: 09/12/2008)
Minute Entry −Motion Hearing held on 9/15/2008 re 93 MOTION for Contempt and Sanctions filed by Michael Lowery, Marilyn Lowrey before Magistrate Judge Virginia M Morgan. Disposition: Taken under advisement. (Tape #VMM 9/15/2008) (JJoh) (Entered: 09/16/2008)
121 DEFENDANT'S WITNESS LIST FOR HEARING ON PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION WITNESS LIST by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated (Greden, Leigh) (Entered: 09/18/2008)
122 Hearing on Plaintiffs' Motion for Preliminary Injunction WITNESS LIST by Canton, Township of (Bennett, Kevin) (Entered: 09/18/2008)
123 Defendant Biltmore Properties Companies, Inc.'s Concurence with STATEMENT of Defendant Beztak Properties, Beztak Companies, Uptown Investors, LLC, and Monogram Homes' Statements Regarding Witness List for Plaintiffs Motion for Preliminary Injunction by Biltmore Properties Companies, Incorporated (Rossman, Mark) (Entered: 09/18/2008)
124 MOTION for Prehearing Conference re 118 Response to Motion, 106 MOTION for Preliminary Injunction, 109 Order,,, Set Motion and RRDeadlines/Hearings,, by Canton, Township of. (Bennett, Kevin) (Entered: 09/18/2008)
125 WITNESS LIST by Marilyn Lowrey, Michael Lowery (Finnegan, John) (Entered: 09/18/2008)
126 RESPONSE to 124 MOTION for Prehearing Conference re 118 Response to Motion, 106 MOTION for Preliminary Injunction, 109 Order,,, Set Motion and RRDeadlines/Hearings,, filed by Marilyn Lowrey, Michael Lowery. (Finnegan,

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 13 of 16

09/19/2008 09/24/2008 10/01/2008
10/01/2008 10/10/2008 12/31/2008 01/08/2009 01/08/2009 01/09/2009
01/14/2009 01/16/2009 01/16/2009
01/16/2009 01/20/2009 01/21/2009 01/22/2009
01/23/2009

John) (Entered: 09/19/2008)
127 REPLY to Response re 106 MOTION for Preliminary Injunction filed by Marilyn Lowrey, Michael Lowery. (Finnegan, John) (Entered: 09/19/2008)
128 Joint Exhibit List by Warner, Cantrell and Padmos, Incorporated, Marilyn Lowrey, Canton, Township of, Michael Lowery. (Finnegan, John) (Entered: 09/24/2008)
Minute Entry −Motion Hearing held on 10/1/2008 re 124 MOTION for Prehearing Conference re filed by Canton, Township of − Granted in Part; and 106 MOTION for Preliminary Injunction filed by Michael Lowery, Marilyn Lowrey − Taken Under Advisement before Magistrate Judge Virginia M Morgan. (Court Reporter Leann Lizza) (JJoh) (Entered: 10/01/2008)
TEXT ORDER granting in part 124 Motion for Prehearing Conference − Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 10/01/2008)
129 Proposed Findings of Fact by Marilyn Lowrey, Michael Lowery (Finnegan, John) (Entered: 10/10/2008)
130 REPORT AND RECOMMENDATION to Deny 93 MOTION for Contempt and Sanctions filed by Michael Lowery, Marilyn Lowrey − Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 12/31/2008)
131 OPINION AND ORDER Granting Oral Motion to Quash Subpoena to Supervisor Yack and Denying Sanctions Against Canton Township for His Non−Appearance − Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 01/08/2009)
132 REPORT AND RECOMMENDATION to Deny 106 MOTION for Preliminary Injunction filed by Michael Lowery and Marilyn Lowrey − Signed by Magistrate Judge Virginia M Morgan. (JJoh) (Entered: 01/08/2009)
133 SCHEDULING ORDER: Final Pretrial Conference set for 5/26/2009 02:00 PM before District Judge Nancy G Edmunds Jury Trial set for 6/9/2009 09:00 AM before District Judge Nancy G Edmunds Signed by District Judge Nancy G Edmunds. (Refer to image for additional dates) (CHem) (Entered: 01/09/2009)
134 MOTION Objection to Magistrate's Report (Doc. 130) by Michael Lowery. (Finnegan, John) Modified on 1/15/2009 (DTyl).[OBJECTIONS] (Entered: 01/14/2009)
135 NOTICE TO APPEAR: Pretrial Conference set for 1/22/2009 11:00 AM before District Judge Nancy G Edmunds (CHem) (Entered: 01/16/2009)
136 TRANSCRIPT of Excerpt of Motion Hearing held on 10/01/2008. (Court Reporter/Transcriber: Leann S. Lizza) (Number of Pages: 52) Redaction Request due 2/6/2009. Redacted Transcript Deadline set for 2/17/2009. Release of Transcript Restriction set for 4/16/2009. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 01/16/2009)
137 Notice of Filing Transcript. (Lizza, L.) (Entered: 01/16/2009)
Re−Set Deadlines/Hearings: Status Conference re−set for 1/23/2009 11:00 AM before District Judge Nancy G Edmunds (CHem) (Entered: 01/20/2009)
138 ATTORNEY APPEARANCE: Daniel A. Klemptner appearing on behalf of Canton, Township of (Klemptner, Daniel) (Entered: 01/21/2009)
139 MOTION Objections to Document 132 Magistrate's Report and Recommendation Concerning Preliminary Injunction by Michael Lowery. (Finnegan, John) Modified on 1/23/2009 (NHol). [OBJECTIONS ONLY, DOCUMENT IS NOT A MOTION] (Entered: 01/22/2009)
140 AMENDED SCHEDULING ORDER: Discovery due by 6/1/2009 Dispositive Motion Cut−off set for 7/1/2009 Final Pretrial Conference set for 8/20/2009 02:00 PM before District Judge Nancy G Edmunds Jury Trial set for 9/8/2009 09:00 AM before District Judge Nancy G Edmunds Signed by District Judge

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 14 of 16

01/27/2009 01/28/2009
01/28/2009 02/03/2009 02/19/2009 02/25/2009 03/02/2009 03/02/2009 03/02/2009 03/02/2009 03/02/2009 03/02/2009 03/02/2009 03/04/2009 04/01/2009 04/01/2009
04/07/2009
04/07/2009

Nancy G Edmunds. (Refer to image for additional dates) (CHem) (Entered: 01/23/2009)
141 ORDER denying 93 Motion for Contempt; adopting 130 Report and Recommendation. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 01/27/2009)
142 TRANSCRIPT of Motion Hearing held on 10/01/2008. (Court Reporter/Transcriber: Leann S. Lizza) (Number of Pages: 117) Redaction Request due 2/18/2009. Redacted Transcript Deadline set for 3/2/2009. Release of Transcript Restriction set for 4/28/2009. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 01/28/2009)
143 Notice of Filing Transcript. (Lizza, L.) (Entered: 01/28/2009)
144 ORDER denying 106 Motion for Preliminary Injunction; adopting 132 Report and Recommendation and cancelling 2/19/2009 hearing.. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 02/03/2009)
145 MOTION to Amend/Correct by Michael Lowery. (Attachments: # 1 Exhibit Proposed Third Amended Complaint) (Finnegan, John) (Entered: 02/19/2009)
146 NOTICE of hearing on 145 MOTION to Amend/Correct. Motion Hearing set for 4/22/2009 02:00 PM before District Judge Nancy G Edmunds. (CHem) (Entered: 02/25/2009)
147 WITNESS LIST by Canton, Township of (Klemptner, Daniel) (Entered: 03/02/2009)
148 WITNESS LIST by Biltmore Properties Companies, Incorporated (Rossman, Mark) (Entered: 03/02/2009)
149 Preliminary WITNESS LIST by Warner, Cantrell and Padmos, Incorporated (Rendeiro, Brett) (Entered: 03/02/2009)
150 WITNESS LIST by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated (Greden, Leigh) (Entered: 03/02/2009)
151 WITNESS LIST by Michael Lowery (Finnegan, John) (Entered: 03/02/2009)
152 Preliminary WITNESS LIST by Looney Ricks Kiss (Kitay, Theresa) (Entered: 03/02/2009)
153 Preliminary WITNESS LIST by Fair Housing Center of Southeastern Michigan, Incorporated (Dane, Stephen) (Entered: 03/02/2009)
154 RESPONSE to 145 MOTION to Amend/Correct filed by Canton, Township of. (Bennett, Kevin) (Entered: 03/04/2009)
155 MOTION to Compel Documents Requested from Defendant Canton Township by Michael Lowery. (Attachments: # 1 Exhibit Document Request from Plaintiffs Lowrey to Defendant Canton Township) (Finnegan, John) (Entered: 04/01/2009)
156 ORDER REFERRING MOTION to Magistrate Judge Mona K Majzoub: 155 MOTION to Compel Documents Requested from Defendant Canton Township filed by Michael Lowery. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/01/2009)
157 NOTICE of hearing on 155 MOTION to Compel Discovery. Responses due by 4/17/2009; JOINT STATEMENT of Resolved/Unresolved Issues due by 5/4/2009 and Motion Hearing set for 5/11/2009 @ 02:00 PM before Magistrate Judge Mona K Majzoub. (LBar) (Entered: 04/07/2009)
Set Deadlines as to 155 MOTION to Compel Discovery. Responses due by 4/17/2009; JOINT STATEMENT of Resolved/Unresolved Issues due by 5/4/2009 and Motion Hearing set for 5/11/2009 @ 02:00 PM before Magistrate Judge

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 15 of 16

04/17/2009 04/20/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009
04/23/2009 04/24/2009 04/27/2009 04/30/2009 05/04/2009
05/04/2009 05/05/2009 05/05/2009
05/05/2009 05/06/2009 05/07/2009 05/12/2009

Mona K Majzoub (LBar) (Entered: 04/07/2009)
158 RESPONSE to 155 MOTION to Compel Documents Requested from Defendant Canton Township filed by Canton, Township of. (Attachments: # 1 Exhibit) (Bennett, Kevin) (Entered: 04/17/2009)
159 STIPULATED ORDER dismissing Biltmore Properties Companies, Inc., only; as to Plaintiffs and Fair Housing Center against Biltmore Properties. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/20/2009)
160 ORDER REFERRING OTHER MATTERS to *Magistrate Judge Virginia M Morgan* : *Facilitation with Defendants only*. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/22/2009)
Minute Entry −Motion Hearing held on 4/22/2009 re 145 MOTION to Amend/Correct filed by Michael Lowery before District Judge Nancy G Edmunds. (Court Reporter Suzanne Jacques) (CHem) (Entered: 04/22/2009)
TEXT−ONLY ORDER extending discovery and dispositive motion cut off dates; ( Discovery due by 8/21/2009, Dispositive Motion Cut−off set for 9/22/2009) Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/22/2009)
CORRECTED TEXT−ONLY ORDER extending discovery and dispositive motion cut off: ( Discovery due by 8/3/2009, Dispositive Motion Cut−off set for 9/1/2009) Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/22/2009)
161 NOTICE TO APPEAR: Facilitation with Defendants only set for 4/30/2009 01:30 PM before Magistrate Judge Virginia M Morgan (BRad) (Entered: 04/23/2009)
162 ORDER granting 145 Motion to Amend/Correct. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/24/2009)
163 STIPULATED ORDER of Dismissal as to Charter Township of Canton. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 04/27/2009)
Minute Entry −Facilitation Conference held on 4/30/2009 before Magistrate Judge Virginia M Morgan. Disposition: Case did not settle − to be continued. (JJoh) (Entered: 05/01/2009)
164 AMENDED COMPLAINT with Jury Demand Adding Wayne County, James A. Jackson in his official capacity, and Lorenzo Blount, in his offical capacity filed by Michael Lowery against James A. Jackson, Lorenzo Blount, Wayne County. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Finnegan, John) (Entered: 05/04/2009)
REQUEST for SUMMONS for James A. Jackson. (Finnegan, John) (Entered: 05/04/2009)
165 SUMMONS Issued for *James A. Jackson* (DHam) (Entered: 05/05/2009)
166 ORDER REFERRING OTHER MATTERS to *Magistrate Judge Virginia M Morgan* : *MANDATORY Settlement Conference TO BE HELD THE WEEK OF MAY 11, 2009*. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 05/05/2009)
167 NOTICE TO APPEAR: Settlement Conference set for 5/12/2009 09:30 AM before Magistrate Judge Virginia M Morgan (BRad) (Entered: 05/05/2009)
Attorney Mark C. Rossman is discontinued from receiving Notices of Electronic Filing. (Rossman, Mark) (Entered: 05/06/2009)
168 NOTICE by plaintiffs of withdrawal of 155 MOTION to Compel Documents Requested from Defendant Canton Township. (LBar) (Entered: 05/07/2009)
Minute Entry −Settlement Conference held on 5/12/2009 before District Judge Nancy G Edmunds. Disposition: Settlement Placed on the Record(Court Reporter Suzanne Jacques) (CHem) (Entered: 05/13/2009)

Case: 2:06-cv-13408-NGE-MKM As of: 07/02/2012 11:03 AM EDT 16 of 16

07/20/2009 07/28/2009 07/29/2009

169 STIPULATED ORDER Of Dismissal with Prejudice and without Costs or Attorney Fees. Signed by District Judge Nancy G Edmunds. (CGre) (Entered: 07/23/2009)
170 STIPULATION of Dismissal Stipulate Order of Final Settlement and Full Release between FHC and Certain Defendants by Beztak Companies, Incorporated, Uptown Investors L. L. C., Monogram Homes, Beztak Properties, Incorporated (Greden, Leigh) (Entered: 07/28/2009)
171 STIPULATED ORDER Dismissing all Claims of Intervenor−Plaintiff Fair Housing Center. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 07/29/2009)