In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3536

GOOD SHEPHERD MANOR FOUNDATION, INC., an Illinois

not-for-profit corporation, GOOD SHEPHERD MANOR GROUP

HOMES, INC., an Illinois not-for-profit corporation,

GOOD SHEPHERD MANOR, INC., an Illinois not-for-profit

corporation,

Plaintiffs-Appellants,

v.

CITY OF MOMENCE, a municipal corporation,

WILLIAM PETERSON, JAMES SAINDON, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01 CV 2105—Michael P. McCuskey, Judge.

____________

ARGUED FEBRUARY 26, 2003—DECIDED MARCH 24, 2003

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

KANNE, Circuit Judges.

FLAUM, Chief Judge. The City of Momence (“the city”)

shut off the water supply to a property lot, claiming that

the owners had refused to fulfill an agreement to extend

the property’s water and sewage lines to the northern

border of the property. Good Shepherd Manor Foundation, Inc., Good Shepherd Manor Group Homes, Inc., and
2 No. 02-3536

1 Good Shepherd Manor Foundation owns the property. Good

Shepherd Manor Group Homes leases the land and operates the

group homes on the property. Good Shepherd Manor provides

professional services to the residents of the homes.

Good Shepherd Manor, Inc. (collectively “Good Shepherd”),

who own the property and use it to provide housing

for developmentally disabled adults,1

 brought suit against

the city, its mayor, and its aldermen alleging various

federal claims. The district court allowed most of the

claims to proceed to jury trial, but it limited the theories

under which Good Shepherd could press two of their

claims. The jury found in favor of the city. Good Shepherd

now appeals, arguing that the district court erred in

three ways: 1) limiting the theories of liability that Good

Shepherd could present to the jury; 2) refusing certain

jury instructions that Good Shepherd had submitted; and

3) excluding the testimony of Good Shepherd’s expert witness. For the reasons stated herein, we affirm.

I. Background

Good Shepherd provides housing and related services

for developmentally disabled adults. Pursuant to a State

of Illinois mandate, Good Shepherd has moved the disabled adults that it cares for from a shelter care facility

to a group home environment. Group home environments

are highly beneficial for certain developmentally disabled

adults.

Prior to 1998 Good Shepherd constructed six group

homes. It obtained a grant to extend the city’s water

and sewer lines to these homes and the city provided water

and sewage services. In 1998 Good Shepherd purchased

an additional lot for two new homes. They applied to the

city for water and sewage permits. The city requested that
No. 02-3536 3

Good Shepherd extend the water lines on their property

to the northern boundary to provide service to a lot that

was owned by a Jehovah’s Witness Congregation. According to Good Shepherd the lines were to be extended only

on the condition that the Congregation would pay for the

expense of extending the lines. Good Shepherd and the

Congregation were unable to reach an agreement about

paying the costs, and the lines were never extended to

the northern border of Good Shepherd’s property. Good

Shepherd built the new homes, and the city turned on

the water in March 2001. On April 26, 2001, after learning that the lines had not been extended and just prior

to the grand opening of the homes, the city turned off

the water to these two homes. The city claims that it

shut off the water because Good Shepherd would not extend the lines to the northern border as agreed upon.

Because there was no water service, Good Shepherd

was unable to secure occupancy permits for the homes.

Good Shepherd brought suit alleging violations of the

Fair Housing Amendments Act (FHAA), the Americans

with Disabilities Act (ADA), the Rehabilitation Act, and

the Constitution. Good Shepherd sought injunctions as

well as declaratory relief and damages. The court granted

an emergency Motion for Mandatory Preliminary Injunction. Pursuant to this injunction, on May 11, 2001, the city

turned on the water. The city filed lawsuits in state

court attempting to prevent the county from issuing permanent occupancy permits. These attempts failed.

In the federal district court both parties moved for

summary judgment. These motions were denied. The

district court did however limit the theories under

which Good Shepherd could pursue its FHAA and ADA

claims. Good Shepherd was seeking liability for discrimination under the theory of discriminatory intent and

impact and under a theory that the city failed to provide reasonable accommodations. The district court ruled
4 No. 02-3536

that the reasonable accommodation analysis was not

applicable to the facts of the case and thus precluded

Good Shepherd from presenting that theory at trial.

A jury trial followed. The jury found in favor of the

city. Good Shepherd appeals.

II. Discussion

Good Shepherd’s primary challenge on appeal is to the

district court’s ruling that it could not present a theory

of failure to reasonably accommodate. Additionally Good

Shepherd challenges the district court’s decision to exclude Good Shepherd’s expert witness, and the district

court’s rejection of two of Good Shepherd’s proposed jury

instructions. We start our analysis with their primary

challenge.

A. Reasonable Accommodation

As a preliminary matter the requirements for showing

failure to reasonably accommodate are the same under

the ADA and the FHAA so we can treat these issues as

one. Oconomowoc Residential Programs, Inc. v. City of

Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002). These statutes require a public entity to reasonably accommodate

a disabled person by making changes in rules, polices,

practices or services as is necessary to provide that person with access to housing that is equal to that of those

who are not disabled. Id.

Good Shepherd claims that the city failed to provide a

reasonable accommodation when it refused to reconsider

its ad hoc decision to shut off the water supply to the lot

in question. The district court rejected this argument,

basing its holding on Hemisphere Building Co. v. Village

of Richton Park, 171 F.3d 437 (7th Cir. 1999). In that case
No. 02-3536 5

this court explained that we confine “the duty of reasonable accommodation in ‘rules, polices, practices, or services’ to rules, policies, etc. that hurt handicapped people

by reason of their handicap, rather than that hurt them

solely by virtue of what they have in common with other

people, such as a limited amount of money to spend on

housing.” Id. at 440. Focusing on this language, the district court noted:

In this case, the service of water is something that is

needed by all people. Therefore, the City’s failure to

provide the “reasonable accommodation” of providing

water to Plaintiff’s group homes did not hurt Plaintiff’s residents by reason of their handicap but, instead, hurt them solely by virtue of what they have

in common with other people, the need of water.

This conclusion is correct, and is an appropriate application of the legal principle announced in Hemisphere, and

therefore we do affirm.

It is worth noting the city in asking us to affirm inexplicably advances a separate—and unsound—argument,

revealing a misunderstanding of that ruling and of the

law of this circuit. The city suggests that when this court

in Hemisphere said “by reason of their handicap” it was

referring to the motivation behind the failure to accommodate. Thus, the city summarizes their argument as,

“This is not a ‘reasonable accommodation’ case since

there is no evidence that the city’s actions were taken

because of the proposed residents’ handicaps.” This is an

irrelevant argument. The Hemisphere language was referring to the harmful effect that the failure to accommodate has on the handicapped. For example if a city

required all houses to have narrow doorways, and the

city failed to waive this requirement, this might harm

people in wheelchairs by reason of the fact that they are

in wheelchairs. In such a case the city would be required
6 No. 02-3536

to waive this rule for wheelchair-bound residents wherever such waiver was reasonable. This requirement to

reasonably accommodate would exist regardless of the

motivation behind the narrow-doorway rule. If the city

unreasonably refused to waive the rule, the plaintiffs

would be under no obligation to prove that the rule was

motivated by an animus toward handicapped people. The

error in the city’s logic is all the more clear when we

consider that reasonable accommodation is a theory of

liability separate from intentional discrimination. If the

motivation of the city in cutting off the water to Good

Shepherd was based on their handicap, then Good Shepherd would have been entitled to judgment under the

theory of intentional discrimination—this is precisely the

question that was tried to the jury at the district court.

“Failure to reasonably accommodate” is an alternative

theory of liability. The theory would be entirely redundant if it required proof that the defendants’ actions

were motivated by animus towards the handicapped. Indeed for the reasonable accommodation theory to be

meaningful, it must be a theory of liability for cases where

we assume there is a valid reason behind the actions of

the city, but the city is liable nonetheless if it failed to

reasonably accommodate the handicap of the plaintiff.

Good Shepherd argues that the failure to accommodate

in this case did harm the developmentally disabled adults

“by reason of their handicap.” Good Shepherd explains

that developmentally disabled adults gain a specific benefit from group living. This point is uncontested and well

established in our case law. See Brandt v. Village of

Chebanse, 82 F.3d 172, 174 (7th Cir. 1996) (noting that for

many disabled residents “joint living arrangements are

essential”); Oconomowoc, 300 F.3d at 787 (“[G]roup living

arrangements can be essential for disabled persons . . . and

not similarly essential for the nondisabled.”). Good Shepherd then explains that by not supplying their lot with
No. 02-3536 7

water and sewage, the city harmed the disabled adults

by preventing them from living in the group homes. Thus,

Good Shepherd contends, the harm was “by reason of their

disability” because the potential residents were denied

the benefit they, as developmentally disabled adults, receive from group living.

This reasoning is too attenuated. The city did not deny

developmentally disabled adults the opportunity for

group living. The city denied water to a certain lot, and

because that lot has no water it cannot be inhabited

by Good Shepherd’s residents, or by anyone else for that

matter. These developmentally disabled adults are no

differently affected by the lack of water than any other

resident would have been. A residence with no water supply is unlivable. Any resident, handicapped or not, would

have to find another place to live. The whole purpose

behind the FHAA and ADA reasonable accommodation provisions is to “ ‘prohibit[ ] local governments from

applying land use regulations in a manner that will . . . give

disabled people less opportunity to live in certain neighborhoods than people without disabilities.’ ” Oconomowoc,

300 F.3d at 784 (quoting Smith & Lee Association v. City

of Taylor, 102 F.3d 781, 795 (6th Cir. 1996)) (second

alteration in original). Cutting off water prevents anyone

from living in a dwelling, not just handicapped people,

and therefore the prohibitions found in the FHAA and

the ADA do not apply to this case.

Good Shepherd wants us to adopt a principle that because a rule, policy, etc. that adversely affects all residents’ ability to access a dwelling also affects disabled

residents’ access, a city must therefore provide a reasonable accommodation to such a rule, policy, etc. under the

FHAA and the ADA. Good Shepherd’s logic would create

an exemption for the disabled from almost any zoning

rule that creates a general inconvenience or expense.

This circuit has made clear that such an outcome is not
8 No. 02-3536

intended by the statutes: “[I]t would be absurd to think

that the FHAA overrides all local regulation of home

construction.” Hemisphere, 171 F.3d at 440. For that reason, as we explained in Hemisphere, courts do not take

into account financial hardships that zoning rules may

create generally, even if disabled people are more likely

to be poor. Id. Doing so could lead to all sorts of unintended results, for example handicapped people “in the

name of reasonable accommodation, could claim a real

estate tax rebate under the Fair Housing Amendments

Act.” Id. at 441. As we explained in Hemisphere, “To support so radical a result, something more than a spinning

out of the logical implications of ‘reasonable accommodation’ is necessary.” Id. The rule Good Shepherd asserts is

no different from the logic we rejected in Hemisphere.

Good Shepherd’s case is even weaker because it appears that the city would have turned on the water if

Good Shepherd had extended the water and sewage lines

to the northern border. As such, Good Shepherd is really

arguing that the city should have waived the line extension requirement in accommodation to the developmentally disabled adults who wished to live in the house.

But this approach also fails to establish a viable theory

of liability. Such a scenario is analogous to cases where

cities require all residents to install sprinklers. In Hemisphere we explained that such a requirement does not

raise an issue of reasonable accommodation: “We thus

disapprove the district court cases in this circuit which

have held that a city must, if requested by a handicapped person, waive its requirements for the installation

of sprinklers because the requirements make the homes

more expensive for the handicapped—as for everyone.”

Hemisphere, 171 F.3d at 441. In those cases the cities

essentially said that people could not live on the lots

unless they installed sprinklers. In the case before us
No. 02-3536 9

2 Turning off the water supply to a residence has the same

practical effect as a rule that prohibits the residence from being

inhabited.

3 This is not to say that the city did or did not have a right

to make this demand. But that is irrelevant to our analysis. As

the district court noted, the question of whether Good Shepherd

was actually required to extend the pipes to the northern border

was not being decided during the trial. As long as a demand

affects all people equally, then there is no FHAA or ADA issue

regardless of whether that demand was valid under state law. The

question of whether the city could have validly required Good

Shepherd to extend the lines is a question for state court. We

are only concerned here with claims that fall under the FHAA

and the ADA.

the city said essentially the same thing—no one can live2

on the lot in question unless the resident extends the

water and sewage lines to the northern border of the

property.3

The only way Good Shepherd could prevail would be

to show that the city shut off their water and refused

to turn it back on even if Good Shepherd extended the

pipes, and that there were virtually no other lots upon

which group housing could be built. Under such facts

they might have a claim, not for the city’s actions in

shutting off their water, but for the city’s failure to

provide any property upon which a group home could be

built. See, e.g., Oconomowoc, 300 F.3d at 787 (where city

refused to waive an ordinance that prohibited a group

home from being built within 2500 feet of another group

home, the court held that the city failed to provide reasonable accommodation because this rule “precludes

new group homes from opening in most of the City of

Milwaukee, thus preventing disabled adults who cannot

live without some support from residing in almost all

residential neighborhoods within the City”). But that is
10 No. 02-3536

not the case before us. Good Shepherd has made no such

allegations and rests its case solely on the faulty premise that the lack of water in this case somehow affects

the developmentally disabled differently from the rest of

the population.

In the end Good Shepherd has presented nothing to

suggest that the alleged rules or actions of the city affected the developmentally disabled any differently than

they affected all other people. For this reason the district court appropriately prevented them from proceeding

under the reasonable accommodation theory.

B. The Expert Witness

The district court ruled that Susan Connor, Good Shepherd’s expert witness who is a law professor and who

works in urban planning, could not testify. We review

the district court’s decision to exclude expert testimony

for an abuse of discretion. United States v. Crotteau, 218

F.3d 826, 831 (7th Cir. 2000). The proffered testimony

was largely on purely legal matters and made up solely

of legal conclusions, such as conclusions that the city’s

actions violated the FHAA. The district court correctly

ruled that expert testimony as to legal conclusions that

will determine the outcome of the case is inadmissible. United States v. Sinclair, 74 F.3d 753, 757 n.1 (7th

Cir. 1996). Furthermore, Good Shepherd argued that it

wanted to present the testimony to show that the city had

no legal basis for shutting off the water because Good

Shepherd was not required to extend the lines to the

northern boundary. The district court ruled that this

testimony, on top of consisting of legal conclusions, would

have been irrelevant since the issue was not being

tried. This ruling was plainly not an abuse of discretion.

Good Shepherd tries to pursue an alternative argument. The court, over Good Shepherd’s objections, allowed
No. 02-3536 11

the city to claim at trial that the reason it shut off the

water was because Good Shepherd failed to extend the

lines to the northern border. This claim was introduced

to rebut the allegation that they shut off the water with

a discriminatory purpose. Good Shepherd claims that

this was error because the city was allowed to argue

that Good Shepherd had a duty to extend the lines,

while Good Shepherd was prevented from providing an

expert to testify that they had no such duty. Good Shepherd misunderstands the court’s ruling on this point. The

court did not allow the city to argue that Good Shepherd was actually required to extend the lines; instead

the city was only allowed—and the court made this limitation clear—to argue that the dispute over the extension was the motivating factor in shutting off the water.

The district court stated: “[The city] will not be allowed

to turn this case into a trial on whether Plaintiffs [Good

Shepherd] have any obligation to provide the water and

sewer lines which are not at issue.” Given this limitation,

the district court was correct to rule that it was still

irrelevant whether the city was correct in claiming that

Good Shepherd had a duty to extend the lines; the only

relevant question was whether the dispute motivated

the city to shut the water off. In fact it is even irrelevant

to ask if the city thought they were in the right on the

dispute; they could have been trying to squeeze Good

Shepherd. It does not matter as long as the motivation

was not discriminatory against disabled people, and the

district court limited the evidence to that point.

C. Jury Instructions

Good Shepherd raises two challenges to the instructions the district court gave the jury. Their first claim is

that the district court should have instructed the jury

on reasonable accommodation. Because the district court
12 No. 02-3536

was correct in not allowing Good Shepherd to present the

reasonable accommodation theory to the jury, it follows

that the district court was correct in not instructing the

jury on this theory.

Good Shepherd’s second claim is that the district court

erred in not providing the jury with the following instruction:

Plaintiffs are not required to show that Defendant

City of Momence intended to discriminate in order to

establish Plaintiff’s claim in count 1 under the Fair

Housing Act. Plaintiffs must only prove by a preponderance of the evidence that Defendant City of

Momence violated the Fair Housing Act by showing

that Defendants’ conduct actually or predictably had

a substantial adverse impact on the residents of the

group homes.

We review jury instructions to determine if, as a whole,

they were sufficient to inform the jury correctly of the

applicable law. Dadian v. Village of Wilmette, 269 F.3d

831, 839 (7th Cir. 2001). The district court correctly decided that Good Shepherd’s proposed instruction was

deficient because it did not contain a statement that the

adverse impact of the alleged conduct had to arise because of the residents’ handicap. The district court made

note of this and Good Shepherd requested leave to tender

an amended instruction. Good Shepherd never did so. They

are therefore stuck arguing for the instruction as initially proposed. And we agree that the proposed instruction is deficient. It is too broad. The instruction as proposed would encompass almost any housing regulations

the city chose to implement. Additionally, even if the

instructions actually given failed, as Good Shepherd claims,

to instruct the jury on discriminatory effect, this was not

an error. For the same reasons that this is not a reasonable accommodation case, it is not a discriminatory effect
No. 02-3536 13

case and therefore the jury could not have found in favor

of Good Shepherd on a claim of discriminatory effect.

The adverse discriminatory effect alleged by Good Shepherd arose from the city’s act of shutting off their water.

This is essentially the same argument that Good Shepherd made when they claimed that the city had a duty

to reasonably accommodate them by turning their water

back on. Just as we said in that context, water is something that is used by everyone, and therefore the act

of shutting off the water did not adversely affect the

developmentally disabled adults by reason of their handicap. In fact, given the specifics of this case, there can be

no discriminatory effect if there was no discriminatory

intent. Because a lack of water prevents anyone from

accessing a residence, the only way Good Shepherd could

have proven discriminatory effect would have been to

show that the city would not have shut off the water of

similarly situated non-disabled residents. If they had

done that, they would have proven discriminatory intent.

The district court therefore correctly viewed this as a

discriminatory intent case and did not err in refusing

Good Shepherd’s proposed instruction.

III. Conclusion

Cutting off someone’s water does not affect disabled

persons differently from non-disabled persons, and so Good

Shepherd was appropriately prevented from proceeding

under a theory of failure to provide reasonable accommodation. Furthermore, the district court did not err in

excluding the testimony of Susan Connor or in instructing the jury. The judgment of the district court is therefore AFFIRMED.
14 No. 02-3536

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-24-03