Dadian, George v. Village of Wilmette ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2674 & 00-2757
George Dadian and Astrid Dadian,
Plaintiffs-Appellees,
v.
Village of Wilmette,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3731--David H. Coar, Judge.
Argued February 23, 2001--Decided October 18, 2001
Before Flaum, Chief Judge, Ripple, and
Williams, Circuit Judges.
Williams, Circuit Judge. George and
Astrid Dadian wanted to reconstruct their
home with an attached, front garage. A
local ordinance allowed a permit for a
front driveway when 50% of the homes on
the homeowner’s block already had front
or side driveways, or when the homeowner
could demonstrate a hardship. Only six of
sixteen homes on the Dadians’ block had
front or side drives, so they petitioned
pursuant to the hardship exception
claiming they had problems with walking
(Mrs. Dadian has osteoporosis and asthma,
and Mr. Dadian has orthopedic problems).
The Village trustees in a 5-2 vote denied
the permit because, among other reasons,
they believed Mrs. Dadian’s problems with
"twisting and turning" would create a
safety hazard to the small children on
the block. The Dadians sued the Village
for disability discrimination under Title
II of the Americans with Disabilities
Act, 42 U.S.C. sec. 12131 et seq.
("ADA"), and the Fair Housing Amendments
Act of 1988, 42 U.S.C. sec. 3601 et seq.
("FHAA"), and for a denial of equal
protection and substantive due process
under 42 U.S.C. sec. 1983./1 The case
went to trial before a jury, which
rendered a verdict in favor of the
Dadians. Because we find that there was
sufficient evidence to support the jury’s
verdict and no error in the jury
instructions or evidentiary rulings, we
affirm.
I. BACKGROUND
A. Facts
The Dadians, who are in their mid-70’s,
have lived in their current house with a
detached garage in Wilmette, Illinois,
since 1959. Mrs. Dadian has had problems
walking for nine years due to
osteoporosis and she also suffers from
asthma. She has been confined to a
wheelchair in the past, but currently
works 2-3 days a week. Mr. Dadian also
claims to have problems walking, and
works as a real estate agent
approximately 6 days a week. Because of
their health problems, they hired an
architect to design a one-story house on
their lot with rooms and hallways wide
enough for a wheelchair. The design also
included an attached, front garage with a
30-foot driveway. An attached, rear
garage would have required an 80-foot
driveway, but because Mrs. Dadian has
problems twisting and turning for long
distances, they believed that the front
garage was the best alternative.
In conjunction with the proposed
redesign of their house, in 1994, the
Dadians sought a 6" side variance from
the Village, which was approved, and a
curb cut for a front driveway. The
Village’s Board of Trustees ("Board")
denied the request for a curb cut
pursuant to a local ordinance that
prohibited front or side driveways when
less than 50% of the houses on a block
had them; only six of sixteen houses on
the Dadians’ block had front or side
driveways. In 1997, the ordinance was
amended to include a "hardship
exception."/2 The Dadians reapplied for
a front driveway permit in 1998.
The Board held a meeting to determine
whether to grant the permit. They heard
from the Dadians’ lawyer and read reports
from two doctors detailing the extent of
Mrs. Dadian’s physical impairments. The
doctors indicated that the front driveway
would be better than a rear one because
Mrs. Dadian was able to twist and turn
for shorter distances. The Board also
heard from residents in the neighborhood.
A next-door neighbor asserted that he was
concerned about the possible loss of
trees but was willing to support the
Dadians, while another neighbor mentioned
that he thought front garages were
unsightly. One neighbor appeared in-
person at the hearing and stated that she
was concerned about the safety of small
children.
Three members of the Board expressly
stated that they were concerned about
whether Mrs. Dadian could safely back out
of a driveway and not cause injury to
small children on the block. Because of
the Board’s safety concerns about her
backing out a front driveway, the Board
proposed that the Dadians construct an
attached, rear garage with a turnabout
(this was not an accommodation because
the Dadians did not need a curb cut
permit to construct a rear driveway). The
Dadians rejected the proposal on the
grounds that it would require almost
complete loss of the grass in the
backyard and give the backyard a "parking
lot feel." The Board voted 5-2 to deny
the permit for the front driveway.
B. District Court Proceedings
The Dadians sued the Village for
disability discrimination and a denial of
equal protection and substantive
dueprocess. The case went to trial before
a jury who heard testimony from multiple
witnesses, including both of the Dadians
and their doctor. The jury also viewed a
videotape of the Board’s meeting. At the
close of the evidence, the Village filed
a motion for judgment as a matter of law
pursuant to Fed. R. Civ. P. 50. The
district court granted the Village’s
motion on the equal protection and
substantive due process claim, but denied
the motion as to the claims premised on
the Village’s violation of the ADA and
FHAA. The jury rendered a verdict for the
Dadians on the remaining claims, and the
Village timely filed a motion for
judgment notwithstanding the verdict, or
alternatively, for a new trial. The court
denied the Village’s motion and enjoined
the Village from enforcing, or
endeavoring to enforce, the ordinance
against the Dadians to prevent them from
constructing a house with an attached,
front garage. The Village appeals from
the jury verdict, the district court’s
denial of its motion for judgment
notwithstanding the verdict or
alternatively for a new trial, and the
entry of the injunction.
II. ANALYSIS
On appeal, the Village argues that the
Dadians failed to prove that: 1) they
were disabled, 2) the Village did
notreasonably accommodate their
disabilities, and 3) the Village
intentionally discriminated against them
because of their disabilities. The
Village also contends that the jury
instructions improperly placed the burden
of proof on the Village as to whether
Mrs. Dadian posed a direct threat to the
safety of others, and that various
evidentiary rulings at trial were
improper. We address and reject each
argument in turn.
A. Disability discrimination
Since the Village’s motion for judgment
as a matter of law (directed verdict) was
denied on the same grounds challenged on
appeal, we interpret the Village’s
argument as a challenge to the court’s
denial, so our review is de novo. See
Hasham v. California State Bd. of
Equalization, 200 F.3d 1035, 1043 (7th
Cir. 2000). But, because there was a jury
verdict, we are "limited to deciding only
whether the evidence presented at trial,
with all the reasonable inferences drawn
there from, ’is sufficient to support the
verdict when viewed in the light most
favorable to the [plaintiff].’" Id.
(citation omitted and alteration in
original). "We will overturn a jury
verdict for the plaintiff only if we
conclude that ’no rational jury could
have found for the plaintiff.’ Indeed,
this standard is applied ’stringently in
discrimination cases where witness
credibility is often crucial.’" Id.
(internal citations omitted).
1. Evidence of the Dadians’
disabilities.
The Village’s first argument is that the
Dadians did not establish a prima facie
case under the McDonnell Douglas method
of proof because they did not prove that
they were disabled. We are baffled as to
why the Village is arguing about the
application of McDonnell Douglas because
once the case has been decided on the
merits, the McDonnell Douglas framework
drops out of the analysis. See United
States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 714-15 (1983);
Hasham, 200 F.3d at 1044. After trial,
the issue becomes whether the jury’s
verdict is against the weight of the
evidence, see Knox v. State of Indiana,
93 F.3d 1327, 1334 (7th Cir. 1996), with
the focus being on whether there was
sufficient evidence on the ultimate
question of discrimination. Hasham, 200
F.3d at 1044; Heerdink v. Amoco Oil Co.,
919 F.2d 1256, 1259-60 (7th Cir. 1990).
Therefore, we recast the Village’s
argument as a challenge to the
sufficiency of the evidence as to whether
the Dadians’ impairments rendered them
disabled.
Title II of the ADA and the FHAA
prohibit housing discrimination because
of a person’s disability or handicap./3
Both acts provide that a person is
disabled, or handicapped, if she has 1) a
mental or physical impairment that
substantially limits a major life
activity, 2) a record of such an
impairment, or 3) is regarded as having
such an impairment. 42 U.S.C. sec.
12102(2); 42 U.S.C. sec. 3602(h). Because
both acts contain the same definition, we
use the terms disabled and handicapped
interchangeably throughout the opinion,
and construe them consistently with each
other. See Bragdon v. Abbott, 524 U.S.
624, 631 (1998). Whether a plaintiff has
an impairment and whether it
substantially limits a major life
activity is to be decided on a case-by-
case basis. Byrne v. Bd. of Educ., Sch.
of West Allis-West Milwaukee, 979 F.2d
560, 565 (7th Cir. 1992).
The jury heard testimony from one doctor
and both of the Dadians about the
disabling and degenerative nature of Mrs.
Dadian’s osteoporosis. Dr. Semerjian
testified that Mrs. Dadian’s osteoporosis
caused her to have a femur fracture, a
total knee replacement, compression
fractures of her vertebrae, and
degenerative disease of the joints. He
further testified that these problems
substantially limited her ability to walk
(a major life activity). Mrs. Dadian
testified that her osteoporosis created
problems with her sense of balance and
that she had to hold onto the rails on
her stairwell to pull herself up the
stairs leading to her bedroom. She also
stated that although she could walk the
80 feet from her rear garage to her home,
she does so "very slowly" and
"carefully." Even so, she has fallen and
fractured her femur on this walk. Mr.
Dadian also testified to the problems
Mrs. Dadian has walking due to her
osteoporosis.
In light of the procedural posture of
this case, it is not our role to come to
a decision as to whether either of the
Dadians was disabled under the ADA or
FHAA. Rather, we only need to decide
after reviewing the testimony in the
light most favorable to the Dadians
whether there was sufficient evidence for
a reasonable jury to come to such a
conclusion. Keeping in mind the jury’s
ability to assess the Dadians’
credibility, we believe there was
sufficient evidence to find that Mrs.
Dadian’s osteoporosis rendered her
disabled. We also recognize that the
evidence could have led reasonable men
and women to reach different verdicts;
therefore, we also conclude that the
court was correct not to grant the
Village’s motion for a directed
verdict./4
Because the permit sought by the Dadians
and the requirements of the FHAA require
only one of the Dadians to be disabled,
we do not consider whether Mr. Dadian
could be considered disabled (although we
express our doubt as to whether a
reasonable jury could have so concluded).
2. Failure of the Village to
reasonably accommodate.
The Village’s next argument is that even
if the Dadians were disabled, there was
insufficient evidence that the Village
failed to reasonably accommodate their
disabilities. A violation of either act
can be established by showing that the
plaintiff was a qualified individual with
a disability, and the defendant either
failed to reasonably accommodate the
plaintiff’s disability or intentionally
discriminated against the plaintiff
because of her disability. Washington v.
Indiana High Sch. Athletic Ass’n, Inc.,
181 F.3d 840, 846-48 (7th Cir. 1999). The
Dadians proceeded to trial under both
theories. Because we find that there was
sufficient evidence to support a jury
verdict under the failure to reasonably
accommodate theory, we affirm the court’s
entry of judgment in favor of the Dadians
and denial of the Village’s motion for
judgment notwithstanding the verdict.
A public entity must reasonably
accommodate a qualified individual with a
disability by making changes in rules,
policies, practices or services, when
necessary. 42 U.S.C. sec. 12131(2); 42
U.S.C. sec. 3604; see Washington, 181
F.3d at 847-48. Whether a requested
accommodation is reasonable is highly
fact-specific, and determined on a case-
by-case basis by balancing the cost to
the defendant and the benefit to the
plaintiff. Bronk v. Ineichen, 54 F.3d
425, 429 (7th Cir. 1995); United States
v. Village of Palatine, Illinois, 37 F.3d
1230, 1234 (7th Cir. 1994). Whether the
requested accommodation is necessary
requires a "showing that the desired
accommodation will affirmatively enhance
a disabled plaintiff’s quality of life by
ameliorating the effects of the
disability." Bronk, 54 F.3d at 429. The
overall focus should be on "whether
waiver of the rule in the particular case
at hand would be so at odds with the
purposes behind the rule that it would be
a fundamental and unreasonable change."
Washington, 181 F.3d at 850. See also 28
C.F.R. sec. 35.130(b)(7) and (8).
The jury heard testimony about the costs
to the Village in granting the front
driveway permit, which included zoning
and land-use concerns but minor
administrative costs, and about the needs
of the Dadians, which included the need
for Mrs. Dadian to avoid twisting and
turning and walking for long distances.
The jury also heard from an architect and
appraiser that an attached, front garage
was a better fit with the new home design
than an attached, rear garage with a
turnabout because of the "parking lot
feel" and implicit loss of aesthetics and
decreased home value that a turnabout
would create. Because six of the sixteen
homes on the block already had curb cuts
(via front or side driveways), a
reasonable jury could have found that the
Dadians’ request was not at odds with the
purpose behind the ordinance and would
not cause a fundamental or unreasonable
change to the ordinance. This is
particularly so because the Dadians were
not requesting a change to the ordinance
itself, but application of the hardship
exception to their case. On the other
hand, a reasonable jury could have
concluded that the Village’s permanent
loss of property outweighed the Dadians’
needs because an attached, rear garage
with a turnabout would have satisfied
their needs and the Dadians should bear
the burden of the resulting decreased
home value, and not the Village.
Thankfully, we are not a zoning court
and our job is not to reweigh the
evidence before the jury. Because reason
able men and women could have reached
different verdicts, the court was correct
not to grant the Village’s motion for
judgment as a matter of law, and when the
evidence is viewed in the light most
favorable to the Dadians, the jury’s
verdict should be sustained.
Because we find that there was
sufficient evidence for a jury to
conclude that the Village failed to
reasonably accommodate the Dadians, we do
not consider the Village’s alternative
argument that there was insufficient
evidence that it intentionally
discriminated against the Dadians.
B. Jury Instructions
The Village also argues that the
district court erroneously instructed the
jury that the Village had the burden of
proof as to whether Mrs. Dadian
constituted a direct threat to safety, so
a new trial is warranted./5
We disagree and find that the court
properly instructed the jury. We review
jury instructions to determine if, as a
whole, they were sufficient to inform the
jury correctly of the applicable law.
Mayall v. Peabody Coal Co., 7 F.3d 570,
573 (7th Cir. 1993). And, we will reverse
a jury verdict only if we find the error
is not harmless, i.e., affected the
substantial rights of the parties. Fed.
R. Civ. P. 61; Crabtree v. Nat’l Steel
Corp., 261 F.3d 715, 719 (7th Cir. 2001).
The Village maintained that it did not
grant the Dadians’ request for a front
driveway permit because, among other
reasons, the Board believed that Mrs.
Dadian posed a direct threat to the
safety of others. In connection with this
asserted reason, the district court
instructed the jury that with regard to
the Dadians’ intentional discrimination
claim:
The Fair Housing Act and the Americans
with Disabilities Acts also prohibit
Wilmette from making a permit decision,
"because of" a citizen’s handicap unless
Wilmette can prove that resident, because
of his or her handicap, poses a
legitimate threat to the health and
safety of others.
The court also instructed:
In order to prevail on [the intentional
discrimination] claim, Plaintiffs must
establish that the Defendant’s refusal to
grant a front driveway permit was based
upon a discriminatory motive. As applied
to this case, Plaintiffs must establish
that Astrid Dadian was a person who was
physically disabled or handicapped, and
that the Village took that into
consideration in denying the permit.
For purposes of this determination, you
may consider the Village’s defense that
Mrs. Dadian was not qualified to operate
a vehicle using a front driveway and that
the refusal was not based upon
discrimination but rather on safety
concerns. As to this defense, the burden
of proof is on the Village to prove by a
preponderance of the evidence, that
Astrid Dadian’s use of a front driveway
posed a legitimate safety risk.
We find no reversible error in the
instruction given./6 First, the text
and legislative history of the FHAA
support imposing the burden of proof on
the public entity that asserts safety as
a defense to a disability
discriminationaction. The FHAA provides
that "nothing in this subsection requires
that a dwelling be made available to an
individual whose tenancy would constitute
a direct threat to the health or safety
of other individuals." 42 U.S.C. sec.
3604(f)(9). The legislative history shows
that this section was intended to
incorporate the standard articulated by
the Supreme Court in School Bd. of Nassau
County, Florida v. Arline, 480 U.S. 273,
288 n.16 (1987), that an individual is
not "otherwise qualified" if she poses a
threat to the safety of others unless the
threat can be eliminated by reasonable
accommodation. H.R. Rep. No. 100-711, at
28-30 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2190. In Arline, the
Court held that to determine if an
individual was "otherwise qualified"
required an individualized inquiry and
should not be "based on prejudice,
stereotypes, or unfounded fear . . . ."
Arline, 480 U.S. at 287. Thus, to comport
with Arline, sec. 3604(f)(9) was enacted
"to require that the landlord or property
owner establish that there is a nexus
between the fact of the individual’s
tenancy and the asserted direct threat."
H.R. Rep. No. 100-711, at 29 (emphasis
added). The legislative history goes on
to state that "[i]f the landlord
determines, by objective evidence that is
sufficiently recent as to be credible,
and not from unsubstantiated inferences,
that the applicant will pose a direct
threat to the health or safety of others,
the landlord may reject the applicant as
a tenant." Id. at 30 (emphasis added).
Based on these statements, we conclude
that a public entity that asserts the
reason it failed to accommodate a
disabled individual was because she posed
a direct threat to safety bears the
burden of proof on that defense at trial.
Second, Titles I (employment) and III
(public accommodations) of the ADA have
been interpreted to place the burden of
proof on the defendant. Although Title II
of the ADA, the chapter at issue here,
does not contain a direct threat
provision, we have held that the methods
of proving discrimination under Titles I
and III should also apply to Title II.
Washington, 181 F.3d at 848 (relying on
the legislative history of Title II). 42
U.S.C. sec. 12113, the employment chapter
of the ADA, specifically provides that:
It may be a defense to a charge of
discrimination under this Act that an
alleged application of qualification
standards . . . that . . . den[ies] a job
or benefit to an individual with a
disability has been shown to be job-
related and consistent with business
necessity . . . . The term "qualification
standards" may include a requirement that
an individual shall not pose a direct
threat to the health or safety of other
individuals in the workplace.
We have interpreted this provision to
mean that it is the employer’s burden to
show that an employee posed a direct
threat to workplace safety that could not
be eliminated by a reasonable
accommodation. EEOC v. AIC Security
Investigations, Ltd., 55 F.3d 1276, 1283-
84 (7th Cir. 1995). Accord Bd. of
Trustees of the University of Alabama v.
Garrett, 531 U.S. 356, 121 S. Ct. 955,
960 (2001) (holding that it is the
employer’s duty to prove that it would
suffer an undue burden by accommodating
the plaintiff, as opposed to "requiring
(as the Constitution does) that the
complaining party negate reasonable bases
for the employer’s decision.").
Likewise, the public accommodations
chapter of the ADA has been interpreted
in a manner consistent with placing the
burden of proof on the defendant. 42
U.S.C. sec. 12182(b)(3) contains language
similar to that found in the FHAA
("Nothing in this subchapter shall
require an entity to permit an individual
to participate in or benefit from the
goods, services, facilities, privileges,
advantages and accommodations of such
entity where such individual poses a
direct threat to the health or safety of
others."). This provision was interpreted
by the Supreme Court in Bragdon v.
Abbott, 524 U.S. 624 (1998), to mean that
a dentist who refused to treat a patient
with HIV in his office "had the duty to
assess the risk of infection based on the
objective, scientific information
available to him and others in his
profession." 524 U.S. at 649.
We find the legislative history of 42
U.S.C. sec. 3604(f)(9) and the reasoning
of courts interpreting the direct threat
provisions under Titles I and III of the
ADA persuasive. And we hold that the
district court did not err in imposing
the burden of proof on the Village to
demonstrate by a preponderance of the
evidence that the Board denied the
Dadians a front driveway permit because
Mrs. Dadian posed a direct threat to the
safety of others./7 Therefore, we see
no reason to order a new trial.
C. Various Evidentiary Rulings
The Village’s final challenge is to the
district court’s admission of various
pieces of evidence, including an
appraisal and testimony regarding the
decreased value of the house if a rear
driveway with a turnabout was
constructed, evidence of the reasons
behind the enactment of the ordinance,
and a memorandum explaining the Director
of Public Works’ initial approval of the
permit application in 1994. We review
challenges to evidentiary rulings for
abuse of discretion and will not reverse
a jury verdict if the error is harmless.
Fed. R. Civ. P. 61; Rehling v. City of
Chicago, 207 F.3d 1009, 1017 (7th Cir.
2000). We find no abuse of discretion in
the admission of this evidence because it
was either relevant for impeachment
purposes or to establish the necessity
element of a reasonable accommodation
claim. And, if there was error, it was
harmless considering the marginal
importance of this evidence in light of
the jury’s ability to assess the
credibility of the Dadians, to hear from
a doctor about the nature of Mrs.
Dadian’s impairment, and to view the
videotape of the Board’s meeting.
III. CONCLUSION
For the foregoing reasons, the judgment
of the district court is affirmed.
FOOTNOTES
/1 The Dadians also sued two officials in their
individual capacities, whose dismissal from the
suit is not challenged on appeal, and also
brought several state law claims for equitable
relief.
/2 The ordinance provides that relief from the
strict application of the ordinance shall be
granted if the petitioner demonstrates that:
(A) The particular physical conditions,
shape, or surroundings of the property
would impose upon the owner a practical
difficulty or particular hardship, as
opposed to a mere inconvenience, if the
requirements of Section 16-10.5 were
strictly enforced; and,
(B) The plight of the property owner was
not created by the owner and is due to
unique circumstances associated with the
property itself; and,
(C) The difficulty or hardship is peculiar
to the property in question and is not
generally shared by other properties in
the same ’neighborhood,’ . . .; and,
(D) The difficulty or hardship resulting
from the strict application of the stan-
dards set forth . . . would prevent the
owner from making a reasonable use of that
the [sic] property; however, the fact the
property could be utilized more profitably
with the requested relief than without the
requested relief shall not be considered
as grounds for granting the requested
relief; and,
(E) The proposed driveway will not create
an unusual danger to pedestrians or other
users of the public sidewalk and/or park-
way, or otherwise endanger the public
health, safety and welfare; and,
(F) The proposed driveway will not require
the removal, relocation or disruption of
public facilities or public utilities, or
require the removal of parkway trees of
such a size that they cannot be replaced
with compensatory plantings of substantial-
ly the same diameter or size . . . .
Strict application of the ordinance was also not
required when it would be inconsistent with
federal or state laws, or there were unusual
circumstances affecting the property or the
owners that would create a substantial and unusu-
al hardship on the owners.
/3 Title II of the ADA provides: "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, pro-
grams, or activities of a public entity, or be
subjected to discrimination by any such entity."
42 U.S.C. sec. 12132. The FHAA provides: "It
shall be unlawful to discriminate against any
person in the provision of services or facilities
in connection with such dwelling because of a
handicap of that person or any person associated
with that person." 42 U.S.C. sec. 3604(f)(2).
/4 Because a plaintiff only has to suffer from one
impairment to be considered disabled, we do not
need to determine if the jury could have also
found that Mrs. Dadian’s asthma constituted a
disability.
/5 Again, the Village relies on the McDonnell Doug-
las burden-shifting method of proof, which as we
stated earlier, does not apply after there has
been a judgment on the merits.
/6 We do find that the district court erred in
limiting the direct threat defense to the inten-
tional discrimination claim. Whether an individu-
al is "otherwise qualified," i.e., poses a direct
threat to the safety of others, is also relevant
to a plaintiff’s failure to reasonably accommo-
date claim. School Bd. of Nassau County, Florida
v. Arline, 480 U.S. 273, 288 n.16 (1987); H.R.
Rep. No. 100-711, at 28-29 (1988), reprinted in
1988 U.S.C.C.A.N. 2173, 2190; 28 C.F.R. sec.
36.208. The error was harmless, however, because
the jury’s verdict in favor of the Dadians shows
that it did not believe that Mrs. Dadian posed a
direct threat to the safety of others under
either theory.
/7 Unlike what the Village urges, this result does
not conflict with Bekker v. Humana Health Plan,
Inc., 229 F.3d 662 (7th Cir. 2000), in which we
agreed with the district court that the terminat-
ed employee, a doctor who was suspected of abus-
ing alcohol, had to prove that she was a quali-
fied individual, i.e., performing the essential
functions of her job, to make out a prima facie
case under the McDonnell Douglas framework.
Because of the nature of her job, whether she
posed a direct threat to the health or safety of
her patients was intertwined with her qualifica-
tions. In this case, we are at a different
decisional posture, and as stated above, McDon-
nell Douglas drops out of the analysis once a
decision on the merits has been reached. More-
over, the Village does not contend that being
able to twist and turn for long distances was a
prerequisite to satisfying the permit require-
ment.