Zoning Practices and the Arizona Fair Housing Act and the Fair Housing Amendments Act

Transcription

1 Zoning Practices and the Arizona Fair Housing Act and the Fair Housing Amendments Act By Nicholle Harris and Susan Segal Gust Rosenfeld PLC

2 Fair Housing Amendments Act The Fair Housing Act, Title VIII of the Civil Rights Act of 1968, prohibits discriminatory practices in housing based on race, color, sex, religion, national origin or familial status. The Fair Housing Amendments Act (FHAA) was adopted by Congress in 1988 to extend protections to persons with disabilities.

3 Arizona Fair Housing Act (AFHA) Title 41 of the Arizona Revised Statutes Mirrors the FHAA Minor differences- investigate agencies, procedure process

4 Who is protected by the FHAA and the AFHA? Any individual with a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such impairment; or being regard as having such impairment Broad coverage under the FHAA Excluded persons

5 What are the general prohibitions of the FHAA and the AFHA? It is unlawful: To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a disability of the buyer or renter, a person residing in or intending to reside in the dwelling after it is bought or rented, or any person associated with that buyer or renter To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling, because of a disability of that person, a person residing in or intending to reside in the dwelling, or a person associated with that person

6 Prohibitions Under the FHAA and the AFHA (cont d) To refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling

7 Who must comply with the FHAA and the AFHA? Municipalities and other local government entities are prohibited from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against individuals with disabilities.

8 Zoning and the FHAA and the AFHA Municipality regulations may not restrict the ability of individuals with disabilities to live in communities within the municipality. In reviewing zoning decisions, courts look for intentional discrimination, discriminatory classifications, disparate impact and a failure to reasonably accommodate.

9 Intentional Discrimination Land use laws or zoning decisions based on stereotypes, fear about crime or diminution in property values, prejudice about people with disabilities or a malicious desire to discriminate

10 Intentional Discrimination (cont d) Circumstantial evidence showed a city's discriminatory animus against individuals with disabilities. The original version of the city's zoning ordinance banned all youth homes from residential neighborhoods and was only amended after a state administrative body found the ordinance to be discriminatory. The city also amended its ordinance to remove language about integration of special needs housing and replaced it with language about avoiding concentration of such housing and protecting residential neighborhoods from adverse impacts. In addition, the city had no youth homes within its residential areas. Children's Alliance v. City of Bellevue, 950 F. Supp. 1491, 1500 (W.D. Wash. 1997).

11 Intentional Discrimination (cont d) A one-year moratorium on new adult care facilities for persons with disabilities was held to be a "classic case of discriminatory treatment because... the ordinance was passed with the intent to discriminate against" persons with mental impairments. Epicenter of Steubenville v. City of Steubenville, 924 F. Supp. 845, (S.D. Ohio 1996).

12 Discriminatory Classifications Zoning laws that use discriminatory classifications will violate the FHAA. discriminate on their face Burden on the municipality to justify the discriminatory classification. Legitimate, bona fide interest No alternative course of action

13 Discriminatory Classifications (cont d) A zoning ordinance that excluded from single family residential districts group homes for persons with disabilities was deemed to violate the Act. Dr. Gertrude A. Barber Center, Inc. v. Peters Township, 273 F. Supp. 2d 643, (W.D. Pa. 2003).

14 Discriminatory Classifications (cont d) A zoning ordinance that required notice to neighbors of a group home's existence constituted a discriminatory classification in violation of the Act because it was not imposed on any other properly zoned residential unit. Potomac Group Home Corp. v. Montgomery County, 823 F. Supp. 1285, (D. Md. 1993).

15 Disparate Impact Zoning laws that apply to all persons but have a disparate impact or effect on persons with disabilities will violate the FHAA. Facially neutral Family definition FHAA does not pre-empt local law

16 Reasonable Accommodation The failure of zoning officials to make reasonable accommodations in land use policies and procedures to afford persons with disabilities an equal opportunity to use and enjoy housing will violate the FHAA.

17 Reasonable Accommodation (cont d) Party must request a reasonable accommodation from the municipality Accommodation must be reasonable and necessary to provide equal opportunity Highly fact specific inquiry Unreasonable, if undue burden or fundamentally alters zoning scheme

18 Reasonable Accommodation (cont d) A municipality's refusal to permit a nursing home to operate in a mixed residential zone violated the reasonable accommodation mandate. Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, (3d Cir. 1996) Refusal to waive zoning laws that restrictively define "family" and/or limit the number of unrelated persons who may live together so as to bar operation of group facilities have been held to violate the FHAA's reasonable accommodation provision. Tsombanidis v. West Haven Fire Dep t, 352 F.3d 565, 580 (2d Cir. 2003)

19 Reasonable Accommodation (cont d) City s requirement that facility accede to annexation to secure sewer hook-up for expansion of facility for people with disabilities was not a denial of a reasonable accommodation since the requirement would not burden the residents but only had economic consequences for the provider. Sanghvi v. City of Claremont, 328 F.3d 532, 538 (9th Cir), cert. denied, 540 U.S (2003) Traffic safety issues and inadequate access for emergency vehicles raised by site plan for 95-bed nursing facility rendered the requested accommodation unreasonable. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d 442, (3d Cir. 2002)

20 Compliance with FHAA and AFHA Intentional Discrimination Prohibited no exceptions Discriminatory Classifications Must have clear justification for such classification Disparate Impact Must provide for reasonable accommodation Reasonable Accommodations City must accommodate if reasonable and necessary. City can claim unreasonable if undue burden

21 Christopher Hurst v. City of Avondale

22 Hurst v. Avondale (cont d) Procedural history Required fire suppression system Failure to reasonably accommodate Consent Decree Zoning Ordinance

23 Zoning Ordinance Changes Revised the definition of "Family" Any of the following: (A) one (1) or more persons related by blood, adoption, or marriage, living and cooking together as a single nonprofit housekeeping unit, inclusive of household servants, (B) two (2) to six (6) persons living and cooking together as a single housekeeping unit having a continuing non-transient domestic character though not related by blood, adoption, or marriage or (C) a home for independent living with support personnel that provides room and board, personal care and habilitation services in a family environment as a single-housekeeping unit for not more than ten (10) resident elderly or disabled persons in a Group Home for Persons with a Disability (mentally and/or physically impaired) with at least one (1), but not more than two (2) resident staff persons. One (1) or more persons occupying a single dwelling unit, provided that unless all members are related by blood, marriage or legal adoption, no such family contain more than six non-transient unrelated persons, except where disability requires that more than six unrelated persons reside together; in such cases there shall be no requirement for persons with disabilities to petition, apply or experience a process to obtain approval to live in any zoning district in the City.

24 Zoning Ordinance Changes Revised the definition of "Dwelling or Dwelling Unit" A building or portion of a building designed or used by one (1) family for residential purposes as a single housekeeping unit, but not including convalescent homes, hospices, assisted living facilities, hospitals, hotels, motels, and other accommodations for the transient public, but including group homes for the handicapped. A building or portion of a building designed or used by one (1) family, as that term is defined in this section, for residential purposes as a single housekeeping unit, but not including, but not including convalescent homes, hospices, assisted living facilities, hospitals, hotels, motels and other accommodations for the transient public.

25 Zoning Ordinance Changes Deleted the definition of "Group Home for Persons with a Disability replaced with Group Home definition A dwelling shared by up to ten (10) physically or developmentally disabled persons who reside together as a single housekeeping unit and who receive care, supervision or counseling from one (1) or more support staff. This use includes homes for the mentally ill, group care agencies and similar living arrangements for the handicapped. It does not include boarding houses, nursing homes, shelter care facilities, community correctional facilities, substance abuse detoxification centers, substance abuse treatment centers, group recovery homes, or other uses that are not subject to the Federal Fair Housing Act and the Arizona Fair Housing Act. Housing occupied by unrelated persons who live in a dwelling because of disability and may include staff persons, who may or may not be domiciled in the dwelling, who provide support services, including but not limited to domestic, medical, habilitation, rehabilitation, or other similar services.

26 Zoning Ordinance Changes Replaced "Handicapped" as a defined term with "Disability" as a defined term Handicapped: A person who (A) has a physical or mental impairment that substantially limits one (1) or more major life activities to the extent that the person is incapable of living independently; or (B) has a record of having such impairment; or (C) is regarded as having such impairment. Handicapped does not include a person who is illegally using or addicted to a controlled substance as defined in Section 102 of the Controlled Substance Act [21 United States Code 802.] Disability: The term disability means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. For purposes of this definition, a qualified individual with a disability shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use, except as provided in 42 U.S.C The term illegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act, 21 U.S.C Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. The term, disability, shall be interpreted in a manner consistent with the definition of disability in the Americans with Disabilities Amendment Act of 2008.

27 Zoning Ordinance Changes Changed the use designation for "Group Home in residential districts Land Use Matrices for Single Family Districts and Multiple Family Districts and Manufactured Home Park Permitted with Conditions (PC) Permitted (P)

28 Zoning Ordinance Changes Revised definition of Home Occupation Home Occupation: Any occupation or profession carried on by a member of a family residing on the premises that is clearly incidental to the use of the structure for dwelling purposes and which does not change the exterior character of the premises in any way. Home occupation does not include the operation of group homes.

29 Zoning Ordinance Changes Deleted Permitted with Conditions Requirements for Group Home Regulations pertaining to Group Homes included minimum separation requirement and building and fire safety requirements Delete entire section

30 Zoning Ordinance Changes Deleted definition of Residential Care Home Residential Care Home: A private residence that typically serves residents who live together and receive care from live-in caregivers. These homes offer assisted care services for seniors who want a more private, home-like community. Assistance with activities of daily living such as bathing and dressing are typically provided. Also known as: Board & Care Homes, Group Homes, Adult Family Homes Subsumed within Group Home definition

31 Zoning Ordinance Changes Deleted definition of Group Recovery Home Group Recovery Home: A residential facility that provides residence and treatment for two (2) or more persons who are in the process of recovery and adjustment from alcoholism or drug abuse and who receive care, supervision or counseling from one (1) or more support staff. Subsumed within Group Home definition

32 Compliance Tips Moving Forward Reasonable Accommodations Neighborhood Concerns A court found evidence of discriminatory intent in enacting a zoning ordinance requiring that group homes be separated by at least 1,000 feet where the evidence established that the officials imposed the requirement in response to community fears and concerns about property values. Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp. 683, (E.D. Pa. 1992), aff'd mem., 995 F.2d 217 (3rd Cir. 1993). Direct Threat - FHAA affords no protection to disabled individuals who present a direct threat to the persons or property of others.

33 FHAA and AFHA Resources U.S. Housing and Urban Development U.S. Department of Justice Arizona Department of Housing 1110 W. Washington Street, Suite 310 Phoenix Arizona Arizona Attorney General s Office Arizona Fair Housing Act Title 41 of the Arizona Revised Statutes

34 Questions?

35 Thank you!