National Association for Rights Protection and Advocacy

FAIR HOUSING UPDATE OF FEDERAL CASES

NARPA 2001

November 2001 
by David J. Popiel, Esq.

Community Health Law Project 

 

1. What is a covered dwelling? 

A county jail is not a dwelling covered by the Fair Housing Act. Garcia v. Condarco, 2000 WL 1460032 (D.N.M. 9/26/00). The jail was not designed or intended for occupancy as a residence. It is a penal facility. Footnotes have good citations to the variety of residences that have been found to be covered dwellings, such as trailers for migrant workers, resort time-shares, nursing homes, summer bungalows run by a country club, and an AIDS hospice.

Note that the ADA does cover prisons. Yeskey. And there is the Civil Rights of Institutionalized Persons Act, 42 U.S.C. * 1997. 

2. HUD Investigations and the First Amendment. 

White v. Lee, 2000 WL 1407125 (9th Cir. 9/27/00). Neighbors’ opposed conversion of a motel to multi-family housing, fearing an influx of mentally disabled persons and drug abusers. In response to an administrative complaint HUD conducted an eight-month investigation that included questioning the neighbors under threat of subpoena about their views and their public statements; directing them to produce documents (such as flyers) and information, including all involved parties’ names, addresses and telephone numbers and all correspondence; and informing them and a major newspaper that they had violated the FHA. The HUD investigators were held to have violated the neighbors’ First Amendment rights. The investigators did not have qualified immunity. 

3. Linking the Accommodation to the Disability 

A tenant seems to be arguing that a rent subsidy program (Section 8) failed to accommodate her by raising the subsidy so she could afford a particular apartment. The Seventh Circuit rejects the argument because the tenant failed to "relate her alleged inability to obtain an affordable apartment to her status as a disabled person." Riggs v. Howard, 2000 WL 1648136 (7TH Cir. 11/1/00). 

4. Occupancy Limitations and Spacing Requirements 

A group home (Alzheimer’s) operator challenged Dallas’ zoning limitations on the number of unrelated persons with disabilities who could reside together and the city’s requirement that such homes be located no closer to each other than 1000 feet. The city argued that the spacing requirement balanced the fact that the zoning ordinances allowed more unrelated persons with disabilities to live together than unrelated persons without disabilities. The court rejected the home’s disparate treatment, disparate impact and equal protection claims, but found triable issues of fact as to whether the city’s refusal to grant zoning variances amounted to a failure to afford reasonable accommodation. Avalon Residential Care Homes, Inc. v. City of Dallas, (N.D. Tex. 12/18/00). For a very different result on the spacing issue, see Arc of New Jersey, Inc. v. State of N.J., 950 F. Supp. 637 (D.N.J. 1996) 

In Frazier v. City of Grand Lodge, Mich, 2001 WL 2899887 (W.D. Mich. 3/19/01), the court rejected equal protection and FHA challenges to a zoning ordinance that, among other things, prohibited the establishment of adult foster care facilities with more than six residents in singe-family neighborhoods. In rejecting the equal protection challenge the court relied in part on the municipality’s assessment that the home’s use, size (12 residents), and generation of traffic would not be compatible with single-family districts. The case illustrates the difficulty of sustaining an equal protection challenge under the rational basis standard with which persons with disabilities are now stuck. The court finds no discriminatory intent or impact under the FHA. Regarding the latter the court is content to note that "[w]hile the [ordinance] restricts where persons with disabilities may live, it does not zone in such a way that these individuals are without housing choices." For the reasonable accommodation challenge, see below. Once again, compare with Arc of New Jersey, Inc. v. State of N.J., 950 F. Supp. 637 (D.N.J. 1996) 

Keys Youth Services, Inc. v. City of Olathe, 248 F.3d 1267 (10 Cir. 2001) found no intentional discrimination in a municipality’s denial of a special use permit to operate a group home for "ten troubled adolescent males" when the reason for the denial appeared to be a legitimate concern for public safety, rather than discrimination based on disability.  

5. Organizational Standing in Federal Court (again and again, forever and ever) 

Louisiana ACORN Fair Housing v. Preferred Equities Corp., 2001 WL 64769 (E.D. La. 1/23/01) finds organizational standing based on drain or diversion of the organization’s resources spent in responding to the defendant’s alleged discrimination. 

Eastern Paralyzed Veterans Assoc. v. Lazarus-Brown Assoc., 2001 WL 256367 (E.D.N.Y. 3/12/01) found one organizational plaintiff lacked standing because it did not allege any injury to the organization itself and because there was no injury to any of its members. The court found that another organizational plaintiff had standing based on the diversion of resources rationale. 

Isaac v. Norwest Mortgage, 2001 WL 327832 (N.D. Tex. 3/30/01). Interesting in that an organizational plaintiff had standing because the other plaintiff, an actual person who had suffered actual injury, was a member. 

U.S. v. Rock Springs Vista Dev., 2001 WL 48884 (9th Cir. 5/8/01). Interesting for the opposite reason that Isaac is interesting. Here the organizational plaintiff did not have standing because the other plaintiff, who was a member, had not been injured. 

6. Reasonable Accommodation 

PGA Tour v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 2001 WL 567717 (2001). Wonderful on the precision with which individual inquiry must be made. Rejects the defense that such inquiry may be difficult. 

One Bite at the Apple: In Frazier v. City of Grand Lodge, Mich, 2001 WL 2899887 (W.D. Mich. 3/19/01), the court rejected a reasonable accommodation challenge to a municipality’s refusal to bend its zoning rules so as to allow the establishment of an adult foster care facility with 12 residents in a singe-family neighborhood. The court relied on the developer*s failure to have requested the accommodation before filing suit, though it is clear that the court would have found the request insufficient in any event. Keys Youth Services, Inc. v. City of Olathe, 248 F.3d 1267 (10 Cir. 2001) is to the same effect. 

Groner v. Golden Gate Garden Apartments, 250 F.3d 1039 (6th Cir. 2001). Plaintiff has the burden of proving that an accommodation is reasonable. This is the majority view, but the Third Circuit disagrees. Hovsons, Inc., 89 F.3d at 1103.


7. Attorneys’ Fees 

You must have a Judgment. The catalyst theory is dead. Buckhannon v. WV Health & Human Resources, 121 S.Ct. 1835 (2001) 


8. THE BEST CASE OF THE YEAR AWARD 

The Best Case of the Year Award goes to U.S. v. City of Chicago Heights, 2001 WL 290420 (N.D.Ill. 3/21/01) in which a group home (mental illnesses) developer mounted facial and reasonable accommodation challenges to a municipality’s community residence zoning ordinance. The case gets this year’s award because the court (Judge James F. Holderman):

a. States that a 1000 foot spacing requirement for community residences of a certain size violates the FHA because similarly sized groups without disabilities are not subject to the same restriction.

b. Rejects the incredibly annoying "You-Can-Live-Somewhere-Else" argument. 

When persons with disabilities seek reasonable accommodations of zoning laws, municipalities often argue that the accommodation is not "necessary" to assure equal opportunity because other, equally satisfactory, properties are available. Some courts actually buy this argument, or at least don’t outrightly reject it. Judge Holderman doesn’t futz around. He rejects it decisively:

i. The FHA talks about denying "a" dwelling, not all dwellings. "[T]he FHAA does not only outlaw discrimination in the denial of all housing; it outlaws discrimination in the denial of particular dwellings."

ii. If you accept the municipality’s argument, plaintiff’s could never prevail because there will always be another comparable property. 

c. Understands that the "anti-clustering" defense of spacing limitations (1000 feet in this case) is very hard to sustain. With one exception, Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991), courts have rejected it. 

d. States that the fundamental alteration defense of a zoning ordinance requires the municipality to show that the sought after accommodation would fundamentally alter "the zoning program as a whole," not the one particular part being challenged (here, the 1000 foot spacing requirement) 

e. Rejects Familystyle’s rational basis test for scrutinizing zoning ordinances under the FHA, and instead requires that the ordinance’s provisions be "warranted by the specific needs and abilities of those handicapped persons to whom they apply." Applying this standard the court strikes down the following zoning provisions:

i. Group homes must occupy a detached single-family dwelling. Other people can live in any type of dwelling they wish.

ii. Community residences must be operated by non-profits.

iii. Occupancy may not exceed one person per room.

iv. Community residences must be inspected for building code compliance prior to any occupancy or re-occupancy.