The Free Press, Mankato, MN

July 15, 2013

Belle House appeal denied

North Mankato council again votes 3-2 to set aside request for two more occupants at halfway house

By Dan Linehan

---- — NORTH MANKATO – A halfway house for recovering alcoholics will not be able to increase its occupancy to eight, from six, the City Council decided on a 3-2 decision, its third vote on the matter.

The council heard a petition from the six female residents of the house – referred to as Jane Doe No. 1 through 6 – though owner Darcy Wennes and his attorney did most of the talking. Their request was made under the Americans with Disabilities Act and the Fair Housing Act.

Last year’s petition, which was also voted down 3-2, was brought by Wennes himself. A separate request was also denied earlier this year to change the zoning at Belle House, located in Upper North Mankato at 2107 Northridge Drive.

The two-hour hearing began with a request from Wennes’ attorney, Paul Grabitske, for Councilman Billy Steiner to recuse himself and not vote on this matter.

During a June 17 meeting on how the request would be handled, Steiner said, according to a transcript provided by Grabitske: “Well my opinion is that we have done this before, and we did grant them three times the allotted number of individuals … I think that we made the decision at that time, and I would stand be what we – what we decided at that time.”

Grabitske said the law requires the council to be “fundamentally fair” and “impartial” for cases like this, and that wouldn’t be possible if Steiner had already made up his mind.

On instructions from City Attorney Mike Kennedy, the city clerk polled the councilors before the hearing began, asking them if they could put aside previous opinions and base their decision on the testimony. They each said they could.

Kennedy advised Steiner not to recuse himself, saying it would set a bad precedent.

Then the hearing started, and Grabitske tried to convince the council that the request to increase occupancy at Belle House by a third met the relevant legal standards.

Part of his argument was that academic research shows that occupants of a halfway house stay sober longer if there are more people to lend them support.

To that end, Grabitske questioned three residents of Belle House as a lawyer would question his or her witnesses.

“We have like a sisterhood there,” one of the women said. “We’re there to support each other through hard times.”

“Kind of like a family environment?” Grabitske asked. “Yes,” she responded.

The attorney, attempting to meet his legal standards of reasonableness and necessity, asked Wennes if an occupancy of six people is financially viable in the long-term.

“I can’t predict the future, but it hasn’t been so far,” Wennes said. He said his first year in operation has showed him that he can barely break even with six occupants, but that’s as long as nothing major breaks. And even with a maximum occupancy of six he more often has about four clients.

Kennedy had witnesses of his own, including City Planner Mike Fischer. The law allows opponents of requests like these to succeed if they can prove one of two things: that the request is either a substantial burden to the city’s finances or is a fundamental change to zoning laws.

Fischer admitted the city hasn’t spent a lot of money on services to Belle House. Wennes has called police twice after his clients were very drunk – he said one had drank almost a gallon of vodka in a 24-hour period – but they haven’t broken any laws.

But the second question was different.

“In your opinion, is having eight unrelated persons in a residential unit a substantial change in North Mankato zoning ordinance?” Kennedy asked. Fischer said it was, because the R-1 zone allows for only two unrelated people.

Councilman Kim Spears then asked Fischer if he thought allowing six unrelated people in a home – a requirement of state law for halfway houses like this – was a substantial change. And Kennedy said it was, perhaps creating some confusion about what the “fundamental change” standard meant for this case.

A husband and wife who live near Belle House, Sean and Kate Webb, testified against the proposed change. He said he was a former alcoholic himself, so he understood the cause.

“This isn’t uppity Upper North Mankato snob looking down my nose at a sober house,” he said. “I wish these women the best of luck.”

But he said the house did not need extra residents, in part because other sober houses around the state make do with six clients. And he referenced the state law allowing a minimum of six residents, noting it was already three times the unrelated occupants allowed by local law.

“If three times the number is not reasonably accommodating, I’m not sure what is,” he said.

As the vote was called, there were two votes for and two against when Mayor Mark Dehen got his turn. He considered his vote for perhaps five or 10 seconds, then voted “no.”

Joining him were Councilmen Bob Freyberg and Billy Steiner. Councilman Kim Spears and Councilwoman Diane Norland voted in favor of the occupancy increase.

Grabitske said he’ll almost certainly appeal the decision, to a state appeals court.