SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
THE TOWN OF GRETNA, VIRGINIA
DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-80-88
Department of Justice Press Release
A. Background and Parties
- The parties to this Settlement Agreement ("Agreement") are the United States of America and the Town of Gretna, Virginia. The Town of Gretna is a "public entity" within the meaning of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131(1), and is, therefore, subject to title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.
- This matter was initiated by a complaint filed with the United States Department of Justice pursuant to title II of the ADA. The complainant, who planned to foster adults with developmental disabilities in her home, was told by the Town of Gretna that a Special Use Permit was required. The complainant alleges that the Town denied the permit on the basis of disability, in violation of the ADA.
- Under title II of the ADA, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, such as the Town of Gretna, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132, 28 C.F.R. § 35.130. Title II´s prohibitions include association discrimination, so that a public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. 28 C.F.R. § 35.130(g).
- The Department of Justice is the federal agency responsible for administering and enforcing title II of the ADA with respect to all programs, services, and regulatory activities relating to planning and development by public entities, 28 C.F.R. § 35.190. The Attorney General is authorized to bring a civil action enforcing title II of the ADA if the Department of Justice is unable to secure compliance by voluntary means. 42 U.S.C. § 12133; 28 C.F.R. Part 35, Subpart F.
- The parties have agreed to resolve this matter as set forth below. This Agreement shall not be construed as an admission of liability or wrongdoing by the Town of Gretna.
B. Land Use Approval and Other Injunctive Relief
- The Town of Gretna shall not discriminate on the basis of disability in violation of the ADA in making decisions regarding the presence of, or plans to create, operate, or modify, facilities, businesses, or occupations that provide services for individuals with disabilities. Such non-discrimination includes making reasonable modifications to land use policies, practices, or procedures when such modifications are reasonably necessary to afford individuals with disabilities an equal opportunity to benefit from the Town´s planning and development programs, unless such modification would fundamentally alter the nature of the land use or result in an undue burden to the Town.
- The Town of Gretna shall not illegally interfere with or prevent the complainant from fostering two adult individuals with developmental disabilities in her home at 703 Washington Street, Gretna, Virginia (hereinafter, "the designated property"), as provided for in the permit granted to the complainant by the Town on July 29, 2008, pursuant to the Town´s Home Occupation Ordinance (hereinafter, "the Home Occupation permit").
- The Town of Gretna retains the right to ensure that the complainant conducts her home occupation in conformance with the Home Occupation permit and all other applicable laws and regulations, and that the designated property complies with all applicable codes and legal requirements, except where the application or enforcement of such codes or legal requirements discriminates against the complainant or persons associated with the complainant, in violation of title II of the ADA.
- The Town of Gretna shall inspect and approve modifications or improvements to the designated property that require Town approval in the normal course of business and without undue conditions or delay, in accordance with all applicable building codes and legal requirements, and in accordance with engineering and construction standards generally applied to like properties in the Town. The Town shall not deny any modifications or improvements the complainant seeks to make to the designated property for any reason that violates the ADA.
- The Town of Gretna shall not apply to the complainant any changes to the present or future Town zoning code that would exclude the complainant from using the designated property in conformance with the Home Occupation permit.
- The Town of Gretna shall not retaliate in violation of 42 U.S.C. § 12203 against the complainant or any person on the basis of having cooperated with the United States´ investigation of the Town´s zoning practices, nor on the basis of any person´s involvement in the administration of this Agreement.
- For three years after the effective date of this Agreement, for any land use request involving individuals with disabilities that the Town of Gretna denies or grants with conditions, the Town shall make written findings specifying the basis for the denial or the conditions imposed. The Town shall provide the United States with copies of such written findings at the same time as they are sent to the land use applicant. After receiving such written findings, if the United States determines that additional information is reasonably necessary in order to assess the information provided, the United States shall make such a request in writing to the Town, and the Town shall provide such information to the United States within thirty (30) days of receipt of the request.
- Training. Within 90 days of the effective date of this Agreement, the Town Manager and each member of the Town of Gretna´s Planning Commission or the Town Council shall attend training on the requirements of title II of the ADA. Such training curriculum and the person(s) or organization(s) who will conduct the training shall be selected by the Town and approved by the Department of Justice, which approval shall not be unreasonably withheld, conditioned, or delayed. For three years after the effective date of this Agreement, within three months of appointment of a new Town Manager or member of the Planning Commission or Town Council, each such individual shall receive comparable training on the requirements of title II of the ADA. The Town shall provide documentation confirming training attendance in accordance with this Paragraph within thirty (30) days of the completion of each training.
D. Monetary Relief
- Within thirty (30) days of the effective date of this Agreement, the Town of Gretna will send to the complainant, by certified or overnight mail at the address provided by the United States, a copy of the Agreement and the release form attached as Appendix A. Within thirty (30) days of receiving the signed release form, the Town shall send the complainant a check payable to the complainant for compensatory damages, pursuant to 42 U.S.C. § 12133, in the amount of $60,000.00 (sixty thousand dollars). The check should be sent to the complainant by certified or overnight mail, with a copy sent simultaneously to counsel for the United States.
- In consideration of the terms of this Agreement, the United States agrees to close the investigation of the underlying complaint, D.J. No. 204-80-88, and to refrain from bringing a civil action against the Town for any claim arising out of or in any way related to the facts and circumstances alleged in that complaint or for any claim arising out of or in any way related to the complainant's application for, and subsequent denial of, a special exception permit in 2007, except as provided in Paragraph 18 of this Agreement.
F. Record Retention, Implementation, and Enforcement
- The Town of Gretna shall retain the following records during the term of this Agreement:
(A) Copies of all policies, procedures, and other material developed, implemented, or disseminated in conjunction with the nondiscrimination agreement established in Paragraph 7, above; and
(B) All documents created by the Town or that come into its possession, custody, or control relating to land use requests by or involving individuals with disabilities.
- The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any of its requirements has been violated, the United States will raise its concerns with the Town of Gretna, and the parties will attempt to resolve the concerns in good faith. Prior to instituting any court action, the United States will give the Town thirty (30) days from the date of notification of an alleged breach to cure the breach. If the parties are unable to agree on a satisfactory resolution within that time frame, the United States may bring a civil action in federal district court to enforce this Agreement or title II, and may in such action seek any relief available under law.
- Failure by the United States to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the United States´ right to enforce other deadlines and provisions of this Agreement.
- This Agreement constitutes the entire agreement between the parties, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable regarding the matters raised herein.
- This Agreement does not affect the Town of Gretna´s continuing responsibility to comply with all aspects of the ADA.
- This Agreement shall be in full force and effect for a period of three (3) years after the effective date of the Agreement. The effective date of this Agreement is the date of the last signature below.
- The individual signing this Agreement for the Town of Gretna represents that he or she is authorized to bind the Town to this Agreement.
Agreed and consented to:
FOR THE UNITED STATES OF AMERICA:
THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division
SAMUEL R. BAGENSTOS
Principal Deputy Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
RENEE M. WOHLENHAUS, Deputy Chief
Disability Rights Section
Civil Rights Division
KATHLEEN P. WOLFE, Trial Attorney
Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
FOR THE TOWN OF GRETNA:
GLENNA LINGAFELT, Mayor