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This page contains links to external Web sites. Chapter 3 of TAP 14: Siting Drug and Alcohol Treatment Programs
Chapter 3-Legal Challenges to Siting BarriersIt is clear that efforts to site alcohol and other drug treatment programs will not always be successful, and legal interventions may be necessary to force local officials to approve a zoning variance, grant a special or conditional use permit, implement fire and safety codes fairly, or stop interfering with siting plans. Understanding the various legal grounds for challenging an adverse siting decision is important at all stages of the siting process. If a provider identifies potentially illegal or discriminatory activity early in the process, it can alert local officials and possibly persuade them to comply with the law. This will avoid expensive and protracted legal battles for all. There are several legal avenues that can be pursued to challenge adverse siting decisions by local officials or actions by private individuals or groups that seek to block the establishment of treatment programs. A lawsuit may be filed in State court to appeal a zoning decision as violating local zoning ordinances, State zoning laws, or State constitutional equal protection guarantees. A lawsuit also may be filed in State or Federal court challenging a zoning decision or some action as discriminatory on the basis of disability under the Rehabilitation Act,1 the Fair Housing Act2 (FHA) or the Americans With Disabilities Act3 (ADA). These laws protect individuals with disabilities—including individuals with alcohol and drug problems—against discrimination in housing, in the provision and enjoyment of benefits and services that receive Federal financial assistance, and in any official State or local action. Such official action includes, for example, the way in which a local government implements its zoning ordinances and health and safety codes or decides whether and where a treatment program may be established. Cases may also be brought in Federal court challenging adverse decisions under the equal protection clause of the fourteenth amendment to the U.S. Constitution. The following legal discussion focuses first and primarily on how programs can use the three Federal antidiscrimination laws to challenge refusals to site alcohol and other drug treatment programs. These statutes establish general anti-discrimination principles that apply to all zoning decisions, regardless of a program's location. They have been enacted for the very purpose of challenging actions that are based on irrational fears and stereotypes of persons with alcohol or other drug problems—mistaken assumptions that often underlie opposition to the siting of programs. In addition, these statutes enable individuals and programs with limited resources to initiate legal challenges by permitting the prevailing party to recover attorney fees and many other costs associated with litigation. The legal discussion also briefly addresses State court actions and constitutional challenges to adverse siting decisions. It is difficult to provide more than a general framework for resolving disputes in a State court zoning action, because State and local zoning standards vary dramatically. With regard to constitutional challenges, few cases will be resolved on this basis because most courts will not consider a constitutional claim if a case can be resolved instead on a statutory claim—such as a claim under the Rehabilitation Act, the FHA, or the ADA. (It is a standard principle of jurisprudence that courts should avoid making constitutional decisions unless they are necessary.) In most cases, the statutory claims overlap with the constitutional claims and, indeed, provide greater protection, making a constitutional challenge unnecessary.
Antidiscrimination LawsThe Rehabilitation Act, the FHA, and the ADA are three powerful tools to challenge both official and private barriers to siting treatment programs. Taken together, the three laws establish the basis for challenging virtually all discriminatory siting decisions. The three laws build on one another by applying consistent definitions and nondiscrimination standards. While there is substantial overlap in terms of who is protected against discrimination, who can sue and be sued, and how discrimination is proved, there are important differences in applying each law.
It is important to understand the following seven
issues when deciding how to apply these laws to a particular situation:
The following discussion will answer each question for each of the laws.
Who Is Protected Against DiscriminationDefinition of "Disability"The Rehabilitation Act, the FHA, and the ADA all protect qualified individuals with current, past, or perceived disabilities against discrimination. As a general matter, individuals currently using illegal drugs are not protected against discrimination under any of the laws.4 However, under the Rehabilitation Act and the ADA, even people currently using illegal drugs cannot be excluded from or denied health services or services provided in connection with drug rehabilitation, if they are otherwise entitled to such services.5 Furthermore, individuals with current alcohol problems6 and those with past or perceived alcohol or illegal drug use problems are protected against discrimination under each law, as is anyone participating in a supervised rehabilitation program who is not currently engaging in the illegal use of drugs.7
All three laws define "disability"8
as—
Thus, an individual seeking protection under these
laws must prove—
Drug addiction and alcoholism are
considered physical or mental impairments under all three laws,12
and most courts have concluded, without much analysis, that an
individual with an alcohol or other drug problem has an impairment
that substantially limits a major life activity.13
Courts that have taken a closer look at this issue in the context
of the FHA have identified several ways in which alcohol and drug
problems affect major life activities:
These same analyses can be applied to claims brought under the Rehabilitation Act and the ADA.
"Current" Illegal Use Of DrugsAs noted above, individuals currently engaging in the illegal use of drugs are excluded from protection against discrimination under the FHA. As a result, they, as well as programs that treat individuals who are beginning the recovery process and may still use drugs illegally, would not be able to challenge an adverse siting decision under the FHA, at least on behalf of individuals who are still using drugs illegally (see "Who Can Be Sued" below). In several cases brought under the FHA on behalf of individuals in recovery, the courts have made clear that anyone who resides in a recovery home or a transitional house and seeks to find an appropriate site for the program will not be protected if he or she currently uses drugs illegally.20 In addition, to deal with community opposition, entities that have sought to establish adult care facilities for individuals with acquired immunodeficiency syndrome (AIDS) or to establish recovery homes for individuals who are dependent on alcohol and other drugs have implemented clear policies that require the immediate eviction of individuals who use drugs illegally.21 The ADA and the Rehabilitation Act to a great extent fill the gap left by the FHA, since they protect individuals who currently use drugs illegally to the extent that they seek to obtain health services or other services associated with drug rehabilitation. There may be some cases in which a private entity could discriminate against an individual with a current drug problem but would not be subject to suit under the ADA or the Rehabilitation Act (see "Who Can Be Sued" below). The coverage by the ADA and the Rehabilitation Act is very important for purposes of challenging adverse siting decisions, since the refusal to site a program would deny health services to an individual with a current drug problem. Therefore, even individuals with current problems and programs that seek to provide treatment services to them can challenge discrimination in siting under the Rehabilitation Act and the ADA. To ensure that individuals with drug problems get the maximum protection available under the FHA, it is necessary to understand what constitutes current illegal use of drugs. Neither the FHA nor the regulations enforcing the act define "current." However, the regulations that enforce title II of the ADA—the provisions under which siting challenges would be brought under that act—do provide a definition that can be applied under the FHA.22 "Current illegal use of drugs" is defined as "illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is a real and ongoing problem."23 While the definition is not precise, each person must be assessed on an individual basis to determine whether he or she is using drugs and whether he or she is likely to do so in the future. There may well be a tendency for communities, individuals, and local officials who seek to prevent the siting of treatment programs and recovery homes to try to define "current illegal use of drugs" broadly and thereby exclude protection for individuals who may have indeed stopped using drugs illegally in the recent past. Some may try to establish a blanket period of abstinence, such as the preceding 30 days, as a means for determining who is or is not "currently" using drugs. However, this approach would be inconsistent with the law, because it fails to make an individualized determination and would undoubtedly exclude individuals who have recently entered treatment programs and have actually stopped using drugs illegally. In addition, courts have examined the relevant time frame for determining whether an individual is "currently" using drugs in the context of employment discrimination cases. They have concluded that an individual's drug use status must be evaluated at the point in time at which the adverse decision is actually and finally made. If an individual was using drugs at the time an adverse decision was initiated, but was not doing so when the final decision was made because he or she had received or was participating in treatment, the individual would be protected against discrimination.24 Applying this principle to the program siting context, individuals who were using drugs illegally at the time an initial adverse siting decision was made but who terminated their use by the time of the final decision could sue under the FHA. In addition, they could not be denied housing by a rehabilitation program that decided to exclude current users in response to community opposition.
Individuals Convicted of Drug CrimesOne other group of individuals is excluded from protection under the FHA: those who have been convicted of the illegal manufacture or distribution of a controlled substance.25 As with current illegal drug users, these individuals would not be able to challenge an adverse siting decision if it was based on the fact that they had a prior conviction record. In addition, they could be excluded from a treatment program that was facing siting opposition without being able to challenge such an exclusion as discriminatory. At least one community that fought the siting of an Oxford House in a residential neighborhood used this exception to argue that the Oxford House residents were not protected under the FHA and thus could not challenge the adverse zoning decision under that act.26 This exclusion is potentially dangerous, because many individuals with alcohol and other drug problems have been convicted of drug distribution crimes. However, as with current illegal drug users, the ADA and the Rehabilitation Act do not uniformly exclude these individuals, and therefore they can fill the gap to protect those in or seeking to enter treatment, even if they have been convicted of such an offense. A program would have to prove that such individuals have alcohol or other drug problems and are "disabled" (a conviction record is not considered a disability under the ADA or the Rehabilitation Act, so the program must prove that the individual is disabled by virtue of alcohol or other drug dependence in order to be covered under those laws). In addition, to the extent that the conviction records of a program's prospective participants provide the rationale given for refusing to site a program, the program would have to demonstrate that the alcohol or other drug problems of its participants are either the sole or an additional reason underlying the adverse decision. This should not be difficult to prove, because often communities identify several reasons for making a decision or the facts surrounding a decision will point to more than one reason. To prove a case of disability discrimination under the FHA and the ADA, the program does not have to prove that the desire to exclude individuals with alcohol or other drug problems was the sole reason for the decision; it only has to prove that it was a reason. However, under the Rehabilitation Act a program must arguably prove that the desire to exclude individuals with alcohol or other drug problems was the sole reason for the decision. (See "Proving Discrimination" below.)
Qualified Individuals With DisabilitiesNot all disabled individuals are protected against discrimination under the FHA, the Rehabilitation Act, and the ADA. Both the Rehabilitation Act and the ADA explicitly provide that only "qualified individuals with disabilities" are protected.27 (A "qualified" individual with a disability is one who can, either with or without a reasonable accommodation, meet the essential eligibility requirements for receipt of the services or benefits at issue.28) While the FHA does not contain such a provision, it has a provision that serves a similar purpose by permitting the exclusion of individuals "whose tenancy would constitute a direct threat to the health or safety of other individuals or . . . would result in substantial physical damage to the property of others."29 In the program siting context, a disabled individual's qualifications will most likely be raised as a reason for not permitting a program to be established in a particular location. Prospective neighbors, for example, might allege that persons with alcohol and other drug problems will engage in illegal activities, bring drugs into the neighborhood, or reduce the value of property. All three laws prohibit decisions on the basis of such stereotypes and thus require direct and objective evidence that an individual does not meet tenancy qualifications or qualifications to receive a service.
What Actions Constitute DiscriminationThe FHA, the Rehabilitation Act,and the ADA all prohibit a wide range of activities that discriminate on the basis of disability. The critical fact for purposes of this manual is that under all three laws it is discriminatory to deny an individual or entity the right to site a treatment program because it will serve individuals with alcohol or other drug problems. All three laws are intended to address—and end discriminatory treatment in—the implementation of land use and zoning laws and health and safety codes that have been used to construct barriers to siting programs. The specific provisions under each law that provide the basis for challenging adverse siting decisions are described below.
Fair Housing Act
Three statutory provisions of the FHA have been crafted
specifically to challenge adverse zoning decisions on the basis
of disability30:
In any given case, a treatment program may use one or all three of the above statutory protections to challenge an adverse siting decision, depending upon the particular facts of the case.
Rehabilitation ActSection 504 of the Rehabilitation Act makes it unlawful for any entity receiving federal financial assistance to discriminate on the basis of disability. The law provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency . . . ."52 Section 504 is intended to eliminate discrimination on the basis of disability in a broad range of federally supported activities—specifically, education, employment, housing, transportation, and health and social services—to ensure that disabled individuals enjoy the same benefits as individuals without disabilities. Indeed, discriminatory zoning decisions made and carried out by entities receiving Federal financial assistance have been challenged under the law. In Sullivan v. City of Pittsburgh,53 alcoholics who were enrolled in treatment programs challenged the city's refusal to issue conditional use permits for several existing facilities and to release community development block grant (CDBG) funds needed to renovate the facilities. Without such permits, the programs would be closed pursuant to a city ordinance. While the city's planning department had approved the release of CDBG funds, the city refused to issue permits or release the funds because community organizations opposed the program's presence in the neighborhoods. The city then filed a State court action seeking to close the facilities for failure to meet fire and building codes, which could not be satisfied without the Federal funding. After several attempts by the programs' administrator to obtain zoning approval, which would have resulted in the release of the CDBG funds, program participants who needed treatment services and could not obtain them elsewhere sued under section 504 of the Rehabilitation Act. The court found that the Rehabilitation Act could be used to challenge the city's refusal to issue conditional use permits and CDBG funds. It concluded that section 504 extended to any Federal program or activity, including the Federal CDBG program, which would have provided funding to the program and benefited the plaintiffs but for the city's discriminatory actions.54 Sullivan is a case in which zoning and Federal funding decisions were linked: the Federal funds were to be used to renovate facilities that were at the heart of the siting dispute. It is important to note, however, that a locality's zoning and land use process in general confers the type of benefit—specifically, being able to site and operate a treatment program in a community—that cannot be denied for discriminatory reasons under section 504 of the Rehabilitation Act, even if Federal funds are not at issue in the particular zoning case. As long as the entity making the zoning decision receives Federal funding in some form, it cannot discriminate on the basis of disability. The treatment program or the clients a program serves need not be seeking the Federal funding, as in Sullivan, in order to allege discrimination under the Rehabilitation Act. Thus, a treatment program that was denied a special use permit for an allegedly discriminatory reason by a city zoning board that receives any form of Federal funding could allege a violation of section 504, even if the treatment program did not seek or was not eligible for the particular Federal funding received by the zoning board.55
Regulations that implement section 504 of the Rehabilitation
Act provide several additional bases for challenging discriminatory
siting decisions.56 The
regulations require recipients of Federal funds to make reasonable
accommodations to the known disabilities of qualified individuals
unless the accommodation would impose an undue hardship.57
This provision would impose the same requirements on entities
covered under section 504 as those imposed under the FHA.58
The regulations also prohibit any recipient of Federal funding
from using criteria or methods of administration that have the
effect of discriminating on the basis of disability.59
The term "criteria" clearly encompasses zoning and land
use ordinances that preclude treatment programs from being established
on the basis of disability.
Americans With Disabilities ActTitle II of the ADA prohibits discrimination on the basis of disability by any public entity, such as a State or local government or any unit of the governing body. The law provides that "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, programs, or activities of a public entity, or be subjected to discrimination by any such entity."60 Title II is intended to end discrimination by State and local governments in the same areas of life as the Rehabilitation Act: education, housing, employment, transportation, health, and social services.61 However, title II of the ADA has a greater reach than section 504 of the Rehabilitation Act, because it does not require any Federal funds to flow into the government entity (as noted under "Who Can Be Sued" below, the FHA also does not require any Federal funding link). Therefore, all activities of a State or local government must be free of discrimination on the basis of disability. Zoning and land use decisions clearly fall into the range of activities that must be implemented in a nondiscriminatory fashion.
In addition to the general prohibition
against discrimination, the regulations that implement title II
of the ADA provide several specific grounds for challenging adverse
siting decisions:
Who Can Be SuedThe FHA, the Rehabilitation Act, and the ADA target different, yet overlapping, persons or entities that are prohibited from engaging in discriminatory actions.
Fair Housing ActThe FHA prohibits both public and private entities from discriminating in the sale, rental, or advertising of dwellings, in the provision of brokerage services, and in the availability of residential-real-estate-related transactions.70 In addition to persons who are actually involved in the wide range of activities connected with selling or renting dwellings, third parties who are not related to the transaction can be sued also if they interfere with anyone who is protected under the law or with anyone who is aiding those protected in their efforts to obtain housing of their choice. The FHA does not require any Federal funding link, and it therefore covers a far broader range of persons or entities than does the Rehabilitation Act.
The following are the only people
(in terms of siting activities) who cannot be sued under the FHA:
The most common group to be sued under the FHA for discrimination in siting will be localities and local officials (such as the city council or zoning board members) who are enforcing zoning ordinances that discriminate on the basis of disability or are applying zoning or fire and safety rules in a discriminatory manner. However, private corporations can also establish siting barriers that can be challenged under the FHA, and private individuals can be sued for interfering with the right of disabled individuals to obtain housing. Examples of these cases are provided in the box titled "Who Can Be Sued Under the Fair Housing Amendments Act: Examples" at the right.
Rehabilitation Act
Section 504 of the Rehabilitation Act prohibits any
recipient—public or private—of Federal financial assistance from
discriminating on the basis of disability (the statute uses the
term "program or activity" to define the entities that
are the recipients of Federal financial assistance and, thus,
covered under the act). For purposes of challenging siting decisions,
the relevant entities covered under the law include the following:
The cases in the box titled "Who Can Be Sued Under the Rehabilitation Act: Examples" below illustrate these standards.
Americans With Disabilities ActTitle II of the ADA prohibits any public entity from discriminating in any way against qualified individuals with disabilities, including denying them the benefits of the services, programs, or activities of the public entity. "Public entity" means any State or local government or any department, agency, special purpose district, or other instrumentality of a State or local government.73 As with the FHA, no Federal funding link is required. Therefore, State and local officials who are responsible for siting decisions can be sued if those decisions discriminate against individuals with alcohol and other drug problems on the basis of their disability, even if no Federal funds flow into the planning department, zoning board, or other agency that makes the siting decision. The city officials described in case 1 in the box titled "Who Can Be Sued Under the Fair Housing Act: Examples" above can also be sued under the ADA.
Who Can SueThe FHA, the Rehabilitation Act, and the ADA all permit both disabled individuals and the treatment programs or other providers that seek to serve them to challenge discriminatory siting decisions. The FHA contains explicit statutory language that defines the broad range of persons who can sue. Under the Rehabilitation Act, cases have established a similar standard, and those standards will apply under title II of the ADA.74
Title II of the ADA explicitly protects
individuals and entities from discrimination because of their
association or relationship with an individual with a known disability.
This protection affords those individuals and entities, such as
treatment programs, the ability to sue under the ADA. Finally,
the Attorney General has authority to challenge discriminatory
actions under all three statutes (see the discussion under "Enforcement
Procedures" below). These general principles are discussed
in the following sections.
Fair Housing ActUnder the FHA, an "aggrieved person" has the legal right—commonly known as standing—to sue.75 "Aggrieved persons" include any persons who claim to have been injured by a discriminatory housing practice or who believe that such persons will be injured by a discriminatory housing practice that is about to occur.76 Discriminatory housing practices include denying housing to any buyer or renter because of "a handicap of (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person."77 In the context of a discriminatory siting decision, two groups can sue as "aggrieved persons": (1) the recovering individuals who are or who will be precluded from residing in a dwelling because of the adverse decision and (2) the treatment program or group that is prohibited from renting or purchasing a dwelling because individuals with alcohol and other drug problems will eventually reside in it. Clearly, the FHA has a long reach that enables nondisabled persons and entities to enforce the rights of disabled persons to get housing where the nondisabled persons and entities face discrimination and suffer an injury—the inability to rent or buy a dwelling—because of the disability of another individual. Many cases have affirmed that a provider of housing to disabled individuals has standing to challenge an adverse siting decision under the FHA, even though the provider is not disabled. For example, in Horizon House Developmental Services, Inc. v. Township of Upper Southampton,78 the court found that a corporation that provides residential services to people with mental retardation had standing to challenge a local ordinance that imposed a spacing limitation on group homes. The ordinance precluded the corporation from establishing a new group home in the township and jeopardized the corporation's existing homes for not complying with the spacing requirement.79 In the context of alcohol and other drug services, the court in Oxford House, Inc. v. Township of Cherry Hill held that Oxford House, Inc., a corporation that assists in the establishment of group homes for recovering individuals, had standing to sue because the township's zoning ordinance precluded the establishment of an Oxford House in a single-family residential zone.80 Because the FHA prohibits discrimination in housing, it is also necessary to understand which programs and disabled individuals will be able to claim that "housing" is being denied by an adverse siting decision. The answer to this question turns on the definitions of "dwelling," "dwelling unit," and "residence." A "dwelling" is defined as a building that is occupied as or intended to be occupied as a residence by one or more families.81 A "dwelling unit" is defined as a single unit of residence for a family or one or more persons. Dwelling units include single-family homes, apartment units, and sleeping rooms in buildings in which sleeping accommodations are provided but toilet or cooking facilities are shared by occupants and shelters.82 "Residence" is not defined in the FHA regulations, but it has been defined in cases to be "a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit."83 The cases that have been brought under the FHA make clear that as long as a program can demonstrate that clients will live in a facility for some period, the facility will be considered a "dwelling" under the act. It makes no difference that health services are provided in addition to housing or that treatment staff reside in the same building, nor does it matter that individuals will eventually leave the facility to live elsewhere. The key is whether the facility is or is intended to be a place of residence for individuals with disabilities.
The following are examples of facilities that have
been considered dwellings under the FHA:
It seems clear from these examples that residential alcohol and drug treatment programs, halfway houses, and providers of transitional housing and group homes for individuals in recovery would be able to challenge adverse siting decisions under the FHA because housing is being denied to their program participants. Participants in these programs live in the facilities for more than brief periods, and while they live in these facilities, they intend to return to them each time they leave.88 Thus, the only treatment programs and individuals recovering from alcohol or drug problems who could not use the FHA to challenge an adverse siting decision are those that provide outpatient services or seek such services.
Rehabilitation Act
Unlike the FHA, the Rehabilitation Act does not define
which persons have standing under section 504 to sue to enforce
the rights of individuals with disabilities. Therefore, an individual
or program must satisfy the following three-part standing test
to establish the right to challenge an adverse siting decision.
The individual or program must show that—
This standard was applied in Sullivan v. City of Pittsburgh,90 where recovering alcoholics sued to prevent the closing of several treatment facilities that were not in compliance with the city's zoning ordinances and to require the release of Federal funds needed to renovate the facilities. The court concluded that the plaintiffs had standing to sue under section 504 of the Rehabilitation Act because they had alleged a specific harm to themselves in that they would not be able to receive treatment if the facilities were closed and they would benefit from the court's intervention.91 In the context of siting programs, it is clear that individuals with alcohol or other drug problems who seek to enter a treatment program, a halfway house, or some other treatment facility would have standing to challenge a zoning decision that prevents the establishment of such a program. These individuals would suffer an actual injury by not being able to obtain treatment services from which they are intended to benefit. The injury would be traceable to the adverse siting decision, and a decision overturning the zoning decision would remedy the injury by permitting the establishment of the treatment program. In addition, entities other than individuals with disabilities—treatment programs or entities that seek to provide treatment services—can sue under section 504 of the Rehabilitation Act, as long as they satisfy the three criteria above. Courts have ruled that organizations of or for handicapped persons have standing to sue.92 For example, in Greater Los Angeles Council on Deafness v. Zolin, an organization that was established for the benefit of hearing-impaired individuals had standing to sue the jury commissioner for failing to provide interpreters to deaf individuals selected for jury duty when the organization paid for interpreters and was not reimbursed by the jury commission.93 Similarly, in Williams v. United States, 4 organizations whose purpose included the improvement of the quality of life for disabled individuals had standing to sue 41 Federal agencies and the Postal Service for failing to promulgate regulations implementing changes in the Rehabilitation Act.94 A treatment program that seeks to establish a new facility but is prevented from doing so by an adverse zoning decision should be able to show that it has a real stake in overturning that decision. Examples of such cases are provided in the box titled "Who Can Sue Under the Rehabilitation Act: Examples" at right.
Americans With Disabilities ActTitle II of the ADA, like the Rehabilitation Act, does not define who may sue, but the same standing criteria that are used to determine who may sue under the Rehabilitation Act also apply under the ADA.95 Thus, individuals with alcohol and other drug problems and the entities that seek to establish treatment services for them can challenge adverse siting decisions under the ADA. Individuals would have to prove that they are individuals with disabilities, as defined by the act, who have been subject to discrimination on the basis of disability. A program would have to prove that it has been harmed (unable to provide treatment services or suffered from a loss of funds), that the harm was caused by a public entity's decision (the adverse zoning decision), and that the harm would be remedied by a favorable court decision.
Moreover, the title II regulations
provide explicit grounds on which a treatment program can sue
if it has been denied the opportunity to site a program because
individuals who are dependent on alcohol and other drugs will
use the facility. As noted under "Fair Housing Act"
above, a public entity is prohibited from discriminating on the
basis of an individual's or an entity's known association with
an individual with a disability. This provision creates the same
scope of protection as that under the FHA whereby residential
treatment programs can sue if they have faced discrimination because
individuals with alcohol and other drug problems will reside in
the housing being sought. It also fills a gap left open under
the FHA by giving outpatient programs the same broad right as
a residential program to challenge discriminatory siting practices.
Proving DiscriminationFair Housing Act
A violation of the FHA's general prohibition against
housing discrimination may be proved in four ways:
While programs often will be able to prove discrimination in more than one of the above four ways, proof of any one is sufficient to win the case. The following discussion provides examples of cases in which discrimination was successfully proved. Facially Invalid Zoning Ordinances. Some communities, when faced with the prospect of opening their neighborhoods to individuals with disabilities, will enact and implement ordinances that explicitly limit the right to site housing or care facilities for such individuals. For example, a dispersion ordinance may prohibit group care facilities from being located within 2,500 feet of one another, or a concentration requirement may restrict the number of care facilities per square mile. An ordinance that uses a discriminatory classification, such as disability, is unlawful in most situations, regardless of whether the underlying motives for the decision were benign or malicious. The case of Horizon House Developmental Services, Inc. v. Township of Upper Southampton98 provides an example of how zoning ordinances may be facially discriminatory against individuals with disabilities and thus violate the FHA. A nonprofit corporation leased two houses within 800 feet of each other in a single-family residential area to provide housing to individuals with mental retardation. Professional staff were available 24 hours a day to assist residents. At the time the corporation sought to use the houses as group homes, the township had no spacing requirement or other restrictions on housing for people with disabilities. When the community learned that people who were mentally retarded were to live in the houses, neighborhood residents voiced opposition and submitted a petition to township officials to stop the Horizon House clients from moving into the homes. When residents moved into the first house, the township officials enacted an ordinance governing group homes for disabled persons, entitled "Family Care Home for Disabled Persons," which prohibited such facilities from being spaced within 3,000 feet of one another. The ordinance defined "family care homes" in a way to encompass the Horizon Houses: facilities that provide residential services to persons who, as a result of age, physical disabilities, developmental disabilities, or mental retardation, are unable to live without permanent care or supervision by trained professionals. The township directed Horizon House to comply with the ordinance by getting a use permit, but when the permit was denied, the township suggested that Horizon House apply for a variance. After a long and costly process, the variance was denied because the houses were not spaced 3,000 feet from one another. The township revised its spacing ordinance three times over 4 years, changing the spacing restriction from 3,000 feet to 2,500 feet and then to 1,000 feet. The ordinance was also amended over time to appear facially neutral with regard to disability. For example, the second revision eliminated all references to specific disabilities under the definition of "family care home," but retained the basic definition that the facilities covered under the ordinance were those that provided permanent care or professional supervision. Horizon House sued the township, seeking to enjoin it from enforcing the space limitation. The court found that the spacing ordinance violated the FHA because it created an explicit classification based on disability with no rational basis or legitimate government interest. The court noted that the ordinance clearly referred to people with disabilities, even though the explicit reference to disabilities was removed in the final version, because it covered only those facilities that provide permanent care or professional supervision. According to the court, the ordinance discriminated against the disabled because it restricted their housing choices based on disability and capped the number of people who could live in the township based on disability. The court also ruled that the township had not demonstrated a legitimate reason for imposing the space limitation. While the township claimed that the ordinance was intended to prevent clustering of the disabled and was therefore benign, the court found that the opposition to clustering was based largely on the community's fears of disabled individuals living in its neighborhoods. The court also found that integration of the disabled throughout the community was not an adequate justification if it was to be achieved through an inflexible distance requirement that essentially placed a cap or quota on the number of disabled individuals who could live in the township.99 Similarly, licensing requirements that impose unique procedural requirements on establishing housing for disabled individuals may violate the FHA. For example, in Potomac Group Home Corp. v. Montgomery County, Md.,100 county licensing regulations required a provider of a group home for disabled individuals to notify neighbors and civic organizations of the types of disabilities of the individuals who intended to live in the group home and to invite comments and ongoing input about the compatibility of the home with the neighborhood. This requirement was imposed only on group homes for disabled individuals. The Potomac Group Home Corporation complied with this requirement when seeking licensure for four group homes and received uniformly negative reactions from the community, which stigmatized the residents. Although the group homes were eventually licensed, Potomac challenged the county's neighborhood notification requirement and several other licensing requirements as violative of the FHA. The court found that the notification requirement was facially invalid because it applied only to disabled individuals and was not supported by a legitimate governmental interest. The court interpreted the county's rationale for the notification requirement—that it would facilitate integration of group homes into the neighborhood—as further evidence of the county's effort to treat disabled individuals differently than those without disabilities. Rather than promote integration, the court found that the notification requirement galvanized opposition.101 Finally, health and safety codes—which frequently impose more stringent fire and safety requirements on facilities for individuals with disabilities and thereby make siting prohibitively expensive—may violate the FHA as being facially invalid. For example, in Marbrunak, Inc. v. City of Stow, Ohio,102 a corporation of parents of individuals with mental retardation sought to establish a family consortium home in a single-family residence for four women who were mentally retarded. The parents were informed that they had to comply with an ordinance that required extensive safety protections for family homes housing people with developmental disabilities. The safety requirements included installation of a whole-house sprinkler system with alarms, fire-retardant walls and floor coverings, lighted exit signs above all doorways, push bars on all doors, fire extinguishers, and smoke alarms. With the exception of the smoke alarms, the safety requirements were not imposed on single-family dwellings that were not occupied by developmentally disabled individuals. The parents sued the city to enjoin enforcement of the safety restrictions under the FHA. The court concluded that the safety ordinance violated the FHA on its face and was not tailored to the specific needs of the particular individuals. According to the court, the FHA did not prohibit the imposition of different standards on individuals with disabilities so long as the special protections were warranted by the unique and specific needs and abilities of the particular disabled individuals. The city's ordinance violated this standard, according to the court, because it did not individualize its requirements—such as the safety requirements that would be needed for an individual with hearing impairments or those needed for an individual with sight impairments or mobility impairments—to the particular type of disability. Instead, the ordinance required compliance with all safety features that would be necessary to protect persons disabled by virtually all physical or mental impairments. The court concluded that the cost of complying with the needless safety requirements amounted to an onerous burden that had the effect of limiting the ability of individuals with disabilities to live in the residences of their choice, in violation of the FHA.103
Disparate Treatment (Discriminatory Intent).
Discriminatory intent may be established through direct or circumstantial
evidence that an adverse housing decision was motivated in part
by the alcohol or other drug problems of program residents. In
some cases, it will be clear from the events surrounding a decision
and statements made by the decisionmakers that the residents'
disability was a motivating factor. In other cases, the decisionmakers
will not reveal their true reasons, but intent can still be established
by applying a five-prong test developed by the courts to evaluate
the circumstantial evidence. The factors to be examined are the
following:
While evidence need not be developed on all these factors, taken together, they help flesh out the true intent. A case involving opposition to the siting of an Oxford House provides a good example of how discriminatory intent can be proved. In United States v. Borough of Audubon, N.J.,105 an Oxford House was established in a residential neighborhood. As soon as recovering alcoholics and other drug abusers moved in, neighbors began to file complaints about loud music, uncut grass, and their concern that the residence was being used as a alcohol and other drug rehabilitation center. The neighbors' complaints were mostly that the residents were recovering alcoholics and abusers of other drugs, who supposedly would bring drugs in and ruin the neighborhood. While initially some neighbors were friendly to the residents, when they learned through a newspaper article that the residents were in recovery, they immediately changed their attitude and either ignored or glared at them. Several women moved out of the Oxford House because they could not tolerate the open hostility. City officials investigated the complaints and told the Oxford House residents that they were in violation of town ordinances. They also told the owners of the property that they had to vacate the house or apply for a variance to use it as a boardinghouse. When the owners did neither, city officials began to issue weekly citations alleging violations of ordinances regarding noise, parking, occupancy permits, and zoning. Records from several official town meetings revealed that city officials had brought in all branches of the city government to deal with the problem and had decided to enforce the law zealously in order to get rid of the Oxford House residents. Suit was filed by the U.S. Government claiming a violation of the FHA. The court found that the city had acted with discriminatory intent. It concluded that the zealous enforcement deviated from all previous zoning matters insofar as no citations had been issued for the same violations in any other situation for over 4 years. Moreover, according to the court, the city's decision to make the Oxford House matter a priority of the entire city government could not be explained simply by the fact that the residents were too noisy, violated parking rules, or did not constitute a "single family." Finally, the court pointed to statements by city officials that revealed their view that Audubon should not have to provide housing to recovering individuals. All these facts led the court to conclude that the city sought to exclude the Oxford House residents because of their status as recovering alcoholics and other drug abusers, in violation of the FHA.106 The Audubon case and numerous others illustrate all too clearly that community opposition can play a major role in whether a treatment program will be sited. In many situations, city officials who oppose the establishment of housing for the disabled state that they are simply carrying out the will of their constituents rather than intentionally excluding disabled individuals. For example, the city officials in Audubon argued that their actions were merely a response to community sentiment. This rationale, however, does not immunize local officials from responsibility under the FHA. Many courts have ruled that discriminatory intent may be established if city officials are responding to community opposition that is itself motivated by animus against a protected disabled group. One court noted that "a decisionmaker has a duty not to allow illegal prejudices of the majority to influence the decisionmaking process. A . . . discriminatory act would be no less illegal simply because it enjoys broad political support. . . . [I]f an official act is performed simply in order to appease the discriminatory viewpoints of private parties, that act itself becomes tainted with discriminatory intent even if the decisionmaker personally has no strong views on the matter."107 Thus, in Audubon, the court noted that because city officials were responding to and, in some cases, agreeing with community opposition that was clearly discriminatory, their own actions violated the FHA.108 Disparate Impact (Discriminatory Effect).109 In many cases, a locality will require treatment programs or individuals with alcohol and other drug problems to comply with ordinances that are facially neutral—insofar as they apply to all individuals, not just those with disabilities—but that have the result that individuals with disabilities will be adversely affected and not be able to enjoy the housing of their choice. To prove that such neutral practices constitute discrimination, a program or disabled people must prove that the siting decision or action has a greater adverse impact on them than on others. If this is established, the locality is required to demonstrate that there was some legitimate, nondiscriminatory reason for its action and that no less discriminatory alternatives were available or that a reasonable accommodation could not have been made. Some courts also will evaluate two other factors when balancing a city's justification against the discriminatory effect. First, the court will examine whether there is any evidence of discriminatory intent. Second, some courts will be concerned about whether the program is seeking, on the one hand, to enjoin the imposition of requirements that will create barriers to providing housing or, on the other hand, to compel the city itself to provide housing.110 Courts are much more amenable to removing barriers that will enable people to access housing than to requiring a city to provide the housing.
Several cases provide examples of successful disparate-impact
claims:
The above cases provide the legal
theory upon which programs can base challenges to requirements
to obtain variances and comply with other facially neutral rules
that impose greater burdens on individuals with alcohol and other
drug problems than on nondisabled groups. Siting Restrictions Upheld. While courts have routinely struck down zoning requirements and required modification of rules as reasonable accommodations, not all courts have protected the rights of disabled individuals. Some courts have not been sympathetic to discrimination claims, and others have emphasized the interests of the localities in enforcing their zoning laws. For example, the case of Familystyle of St. Paul v. City of St. Paul117 departs from those that reject spacing limitations that have the effect of limiting the ability of disabled individuals to live in the houses of their choice. In Familystyle, the court rejected a challenge to a city zoning ordinance that required that community residential facilities for mentally ill and mentally retarded individuals be located at least a quarter of a mile from one another. The court ruled that the dispersal requirement was a valid way to meet the State's goal of deinstitutionalizing persons with mental disabilities and providing residential services in mainstream communities rather than segregating them.118 In this particular case, the court probably upheld the spacing limitation because the housing provider, Familystyle, had created a "ghetto" of individuals with mental illness and had failed to carry out a commitment to disperse its facilities. It is clear that courts will reach different conclusions about whether particular zoning restrictions are discriminatory under the FHA. Much will depend on the particular facts of the case and the ability of the parties to develop evidence to prove discriminatory intent or effect and to demonstrate that modifications in policies will not dramatically affect the city's zoning plan or burden resources.
Rehabilitation Act and Americans With Disabilities ActThe standards for proving discrimination under section 504 of the Rehabilitation Act and title II of the ADA are essentially the same, since the language of the antidiscrimination provision in title II, section 12132, was modeled directly after section 504. The primary distinction between the language in the two statutes is that section 504 prohibits discrimination that is based "solely" on an individual's disability, whereas title II prohibits discrimination against a disabled individual "by reason of such disability."119 It could be argued that this difference in the statutory language affects the way discrimination is proved; that is, under the Rehabilitation Act one must show that an individual's disability was the exclusive reason for an adverse action-not just one reason, as under the ADA and the above FHA cases. However, the regulations that implement section 504 in many Federal agencies actually use the language that was adopted in the ADA, and not the Rehabilitation Act's statutory language.120 In addition, section 504 cases have recognized that while several reasons may be put forth for excluding a disabled person from an activity, the key is whether disability was considered improperly in making a decision.121 In many cases, the non-disability-related reasons for a decision are, in fact, linked to the disability and, therefore, cannot be extricated from it or are just pretexts for a decision and not supported by the facts of the case. It is clear that under title II of the ADA, proof of discrimination rests on whether an individual's disability was improperly considered in the decisionmaking process. The existence of non-disability-related factors in the adverse decision does not immunize it from attack.122 Since it is likely that most programs will choose to sue under the ADA rather than the Rehabilitation Act (because the ADA covers more State and local entities and does not impose a Federal-financial-assistance requirement), the following discussion outlines the proof for discrimination using the ADA standard: that disability discrimination is one, but not necessarily the sole, reason for an adverse decision.
Under the ADA, a program that is challenging an adverse
siting decision will most likely claim that it is being denied
equal services or the benefits of the locality's zoning authority
because of its relationship with individuals who have alcohol
and other drug problems. To prove this claim, the program will
have the burden of proving the following four points:
While no siting cases had been decided under the ADA at the time this manual was prepared, the evidence and analysis required to prove the second and third points are the same as that outlined under the FHA cases.123 The key is to show that city officials refused to permit the siting of a program or erected barriers because the persons who will use the facility have alcohol or other drug problems. This requires an examination of the statements and actions by zoning officials, their acquiescence to community opposition that is grounded in discrimination, and the reasons provided for making a siting decision. To the extent that officials imposed special requirements on the program or departed from normal zoning procedures, these facts will support a finding that disability was improperly considered. Similarly, the determination of whether an accommodation to the zoning practices and policies is reasonable will follow the same analysis as that under the FHA. To avoid liability, the locality would have to establish either that its decisions were not based on an improper consideration of disability or that an accommodation would fundamentally alter the nature of the community's character or impose an undue financial and administrative burden on the locality's services.
Enforcement ProceduresFair Housing ActThe FHA establishes a comprehensive enforcement procedure that includes an administrative complaint procedure124 within the Department of Housing and Urban Development (HUD) and a court enforcement procedure.125 In addition, the Attorney General is authorized to file cases when she determines that a pattern or practice of discrimination exists or that the denial of equal housing in a particular case raises an issue of general public importance.126 Entities challenging housing discrimination can choose to file a complaint either in the administrative agency127 or in Federal or State court, and they are not required to exhaust administrative remedies before filing a court action. This means that an individual may file a civil action in court without first having to file an administrative complaint. The only exception to this is that if an administrative hearing has already begun, the complainant may not file a civil action.128 The FHA establishes strict timeframes for filing administrative and court actions and for HUD to process administrative complaints. A complainant has 1 year after a discriminatory practice has occurred or terminated to file a complaint with HUD129 and 2 years to file an action in court.130 If a complaint is filed with HUD, the agency is required to complete its investigation within a brief period—100 days—or notify the parties as to why it cannot do so.131 HUD has the authority to subpoena witnesses and gather extensive information to determine whether a violation has occurred. Throughout the investigation, HUD is required to engage the parties in conciliation to try to resolve the matter. In addition, if at any time during the investigation HUD determines that prompt judicial action is necessary to enforce the law, it can authorize the Attorney General to file suit to obtain a temporary restraining order or other preliminary relief.132 Upon completion of the investigation, HUD is required to either file a charge of discrimination or dismiss the complaint. If HUD files a charge of discrimination, the complainant can choose to have the matter resolved by an administrative law judge or to have the Attorney General file an action in Federal court on his or her behalf.133 One significant exception to this rule relates to challenges to zoning ordinances. Under the FHA, HUD is required to refer any complaint that involves a challenge to the legality of a State or local zoning or land use ordinance to the Attorney General for further action, rather than file a charge.134 Thus, all zoning challenges will be resolved ultimately through a court procedure initiated by either the complainant or the Attorney General, provided the parties have not reached a settlement. Under the FHA, an administrative action must be commenced within 120 days of the issuance of a charge, unless it is impracticable, and the administrative law judge is required to issue a decision within 60 days after the end of the hearing.135 If a charge is to be resolved through the courts, the Attorney General is required to file an action within 18 months of the occurrence or termination of the discriminatory housing action.136 The decision by the administrative law judge or the Federal court judge may be appealed to the Federal court of appeals.
Rehabilitation Act and Americans With Disabilities ActThe enforcement provisions for alleged violations of section 504 of the Rehabilitation Act and title II of the ADA are virtually identical.137 Individuals complaining of discrimination may file a civil action in a State or Federal court or an administrative complaint with the Federal agency designated to resolve such complaints. Complaints filed under section 504 of the Rehabilitation Act are resolved by the Federal agency that provides the Federal funding to the entity that is being sued. Complaints filed under the ADA are resolved by the Federal agency that has authority over the governmental function at issue in the case. The regulations that implement the ADA identify the various functions for which each Federal agency is responsible and vest responsibility for any un-designated function with the Department of Justice.138 Responsibility for complaints alleging discriminatory zoning decisions rests with the Department of Justice.139 An administrative complaint must be filed within 180 days of the date of the allegedly discriminatory action. For alleged violations of title II of the ADA and section 504 of the Rehabilitation Act, the agency is required to investigate the complaint, attempt informal resolution, and, if resolution is not achieved, issue a letter of findings. The letter of findings includes a determination of whether a violation has occurred and a description of the remedy for any violation. If a violation is found, the agency is required to initiate negotiations to secure voluntary compliance. Under title II, if the public entity does not agree to comply, the agency is required to refer the matter to the Attorney General with a recommendation for appropriate action.140 Under section 504, the agency is required to initiate enforcement proceedings that can lead to Federal fund termination. A private civil action may be filed at any time within the applicable statute of limitations.141 As with the FHA, the complainant need not exhaust administrative remedies, even if an administrative action has been initiated. In addition, a civil action may be brought regardless of whether the designated Federal agency finds a violation.142
RemediesFair Housing ActThe FHA establishes three different sets of relief measures, depending upon whether the complaint is resolved through the administrative process, through a private civil action, or through an action filed by the Attorney General. Taken as a whole, the penalties for violations of the FHA are more severe than those permitted under the Rehabilitation Act or the ADA. For actions resolved through the administrative process, the administrative law judge may award actual damages suffered by the aggrieved person and injunctive and other equitable relief. In addition, the administrative law judge may assess a civil penalty to vindicate the public interest. The penalty cannot exceed $10,000 for the first discriminatory action, $25,000 if one previous discriminatory action was found within the previous 5-year period, or $50,000 if two or more discriminatory actions were found within the previous 7-year period.143 For actions resolved through private court actions, the court may award the plaintiff actual and punitive damages and equitable relief, such as a temporary or permanent injunction, a temporary restraining order, an order enjoining the defendant from engaging in the discriminatory practice, or an order requiring affirmative action as appropriate.144 For actions resolved in a court action initiated by the Attorney General, the court may award preventive relief, including a temporary or permanent injunction, a restraining order or some other order necessary to ensure full enjoyment of the rights granted under the FHA; monetary damages to persons aggrieved; and, to vindicate the public interest, a civil penalty not exceeding $50,000 for a first violation and $100,000 for any subsequent violation.145 In addition, regardless of the resolution process, the FHA authorizes the award of attorney fees and costs to the prevailing party.146 This provision is essential to enable private parties to initiate and finance legal challenges.
Cases brought under the FHA provide examples of the
various forms of relief:
Rehabilitation Act and Americans With Disabilities ActThe remedies under the Rehabilitation Act and the ADA are virtually identical and are the same as the remedies provided in other civil rights statutes that prohibit discrimination by federally assisted entities.155 In general, monetary damages to compensate aggrieved individuals and entities and equitable relief in the form of temporary and permanent injunctions and temporary restraining orders may be awarded. In addition, in any court or administrative proceeding, the prevailing party may be awarded attorney fees, including litigation expenses and costs.156 Under the Rehabilitation Act, Federal funds can also be cut.157 The case of Sullivan v. City of Pittsburgh158 provides an example of relief that is available under the Rehabilitation Act and the ADA. In Sullivan, the court granted the residents of a treatment program preliminary injunctive relief, which required the city to grant the treatment program conditional use permits for all facilities, building permits needed to bring the facilities into compliance with city safety codes, and occupancy permits and required the city to release CDBG funds for necessary repairs and renovations.159
Equal Protection Claims Under the U.S. ConstitutionThe equal protection clause of the 14th amendment of the U.S. Constitution also provides protection against discriminatory siting practices.160 While few programs will need to use this vehicle for suits because of the FHA's and the ADA's expansive protections, it is useful to understand the basic legal arguments involved in proving a violation of equal protection. The equal protection clause prohibits States and localities from denying any person the equal protection of the laws. It requires State and local officials to treat individuals who are similarly situated the same. When laws classify individuals into different groups and distinguish between groups, an equal protection violation may exist. Under constitutional case law, three different standards have been established for evaluating whether statutes or official actions violate the equal protection clause. First, as a general rule, legislation is presumed to be valid and will be sustained if the classification between groups under the statute is rationally related to a legitimate State interest. When social or economic legislation, such as regulations or licensure of health providers or zoning ordinances, is challenged, the equal protection clause gives States wide latitude to structure their programs and therefore does not interfere frequently by striking down statutes as unconstitutional. A stricter standard is applied for cases alleging gender discrimination, and an even tougher standard—called strict scrutiny—is used when a statute classifies by race, national origin, or alienage. In City of Cleburne v. Cleburne Living Center,161 a case that challenged a zoning ordinance that required group homes for individuals with mental retardation and mental illness and for individuals who abuse alcohol and other drugs to obtain a special use permit, the Supreme Court held that statutes and official actions that distinguish between individuals with and without disabilities should be reviewed like other legislation that affects social and economic matters. The Court said that such statutes need only be rationally related to a legitimate governmental purpose to satisfy equal protection guarantees. Thus, only arbitrary and irrational distinctions violate the law.162 While this lowest level of scrutiny usually means that the statute will be upheld as valid, the Court in Cleburne found that the zoning ordinance as applied to individuals with mental retardation,163 in fact violated equal protection.164 According to the Court, there was no indication that siting a group home for the individuals with mental retardation in an area in which hospitals, boarding houses, apartment buildings, and many other dwellings were permitted without obtaining a special use permit would pose any special threat to the city's legitimate interests. The Court determined that the city's purported interest in responding to the negative attitudes and fears of neighbors who did not want to live close to a home for individuals with mental retardation was not a legitimate reason for treating a group home differently from other facilities. In addition, the city's health and safety considerations about the home being located on a floodplain or having too many residents were not rational when applied solely to a group home for individuals with mental retardation. According to the Court, these same concerns should have applied to all other facilities in the particular area, but no other facility was required to obtain a special use permit. The Court concluded that the special use permit requirement was based on an irrational prejudice against individuals with mental retardation.165 The Court's analysis of the special use permit requirement in Cleburne is very similar to the analysis under the FHA.166 A court probably would have gone even further under the FHA to invalidate the special use permit requirement entirely, because it discriminated against disabled individuals on its face and did not serve a legitimate purpose. This overlap in analysis and results only reinforces the basic rule that courts will rarely use an equal protection claim to invalidate a discriminatory siting decision when a statutory claim—based on the FHA or the ADA, for example—can be used instead.
Administrative Procedures and State Court ActionsAdverse siting decisions may also be challenged through local administrative proceedings and State court actions. If zoning officials have erred in applying a local zoning ordinance or State law, these forums are usually used, although alleged constitutional violations or State disability law violations also may be challenged in a State court procedure. For example, if the zoning board has applied a set of health and safety standards to a treatment program even though an ordinance exempts that type of treatment program from those standards, the program could challenge the erroneous decision through an administrative hearing and, if necessary, a State court action. Or if local zoning officials have misconstrued the intended use of a group recovery home and impose requirements that apply to treatment programs providing some therapeutic services, but not to group homes, the erroneous application of the zoning law could be challenged. In either case, the program would seek to overturn the decision because it violated the land use regulations. This approach may be a quick way to resolve certain disputes that have led to denial of siting. The procedures for initiating such actions vary from State to State. While it is difficult to provide anything more than general guidance on State court zoning actions, it is useful to understand a few standard principles that can help a program decide whether to use this avenue to challenge an adverse zoning decision.167
Administrative Procedure for Challenging an Adverse DecisionThe procedure for reviewing an adverse zoning decision is generally divided into two parts: administrative review and judicial review. Usually, a claimant must go through the administrative review process—that is, exhaust administrative remedies—and have a final decision before initiating an action in State court. This practice stands in contrast to actions brought under the anti-discrimination statutes, which do not require that administrative review procedures be used before an action is filed in Federal court. The administrative body that reviews zoning decisions has authority to correct errors that local officials have made in implementing land use regulations. The body conducts a hearing, gathers evidence, and then renders a decision that affirms, reverses, or modifies the zoning agency's decision. The administrative body cannot amend a provision of a zoning ordinance, and it thus has no authority similar to that given courts under the FHA, the Rehabilitation Act, and the ADA to waive or modify zoning requirements to accommodate the needs of individuals with disabilities. The administrative body is, however, authorized to grant a variance or a special permit if one is requested as part of the appeal.
Judicial Procedures To Review an Administrative DecisionState courts have authority to review the zoning decisions of administrative bodies. Courts may gather additional evidence, and they must determine whether the administrative decision is supported by "substantial evidence," which means that the facts of the case adequately support the decision. In general, courts will defer to the zoning agency that made the initial decision. Consistent with the deference afforded to the local zoning authority, State courts generally will not decide a case unless the local zoning agency's administrative procedures have been exhausted. In other words, a claimant cannot file a claim in court challenging the application of a zoning ordinance to his or her property without first trying to resolve the dispute by obtaining a variance or some other use permit through the agency that enforces the zoning law. The reason for this is that courts want disputes resolved as quickly as possible by local agencies that have the most expertise in a matter. The only exceptions to this rule are when it would be futile to exhaust administrative remedies, when ordinances provide the right to bypass an agency's administrative processes, or when the constitutionality of a zoning ordinance or official action is challenged. A court may overturn the decision of the local zoning agency on several grounds. The zoning agency's decision may be found to violate constitutional or statutory provisions, to go beyond the statutory authority of the agency, to be affected by an error of law, to be clearly erroneous when considering the reliable and substantial factual evidence, or to be arbitrary and capricious.168
Remedies
Upon overturning a zoning agency's decision, a court
may order various forms of relief. Generally, the relief is more
limited than that provided under the antidiscrimination laws:
Monetary damages are not generally available, except when a zoning decision is found to violate Federal civil rights laws or in cases of flagrant misuse of governmental authority.170 In contrast to actions under the antidiscrimination laws, in State actions attorney fees are not available to the prevailing party.
To the extent that a program is contemplating whether
to use the State administrative and judicial systems to challenge
an adverse siting decision, it is important to analyze decisions
that have been rendered in similar cases to determine whether
State courts will be sympathetic to the type of claim that will
be brought. In some cases, Federal courts may be more sympathetic
to discrimination cases and have more experience enforcing antidiscrimination
laws. Therefore, if the program can choose between filing a suit
in State or Federal court, a review of the case law will reveal
which court system will likely render a more favorable decision.
____________________
2 42 U.S.C. §§ 3601-3631 (1988). The Fair Housing Amendments Act (FHAA), which added the disability protections to the FHA, was enacted in 1988. 3 42 U.S.C. §§ 12101-12213 (Supp. 1991). The ADA was enacted in July 1990. 4 The Rehabilitation Act and the ADA specifically exclude individuals who are currently engaging in the illegal use of drugs when covered entities make decisions on the basis of such current use (29 U.S.C. § 706(8)(C)(i); 42 U.S.C. § 12210(a)). The FHA specifically excludes individuals who currently engage in the illegal use of or are addicted to controlled substances (42 U.S.C. § 3602(h)). 5 Rehabilitation Act (29 U.S.C. § 706(8)(C)(iii)); ADA (42 U.S.C. § 12210(c)). 6 Congress sought to deny protection to only those individuals who engaged in illegal activity. Therefore, all three statutes define "drug" as a "controlled substance," and "illegal drug use" as use that violates the Controlled Substances Act. Individuals who use drugs under the supervision of licensed health care professionals or in other ways that are authorized under the Controlled Substances Act are not considered to be using drugs illegally (29 U.S.C. § 706(22)(A) and (B); 42 U.S.C. § 12210(d); 42 U.S.C. § 3602(h)). Since alcohol is not a controlled substance, individuals who have current alcohol problems enjoy the same protection against discrimination as other individuals with covered disabilities. 7 The Rehabilitation Act and the ADA provide explicit coverage for individuals who have successfully completed supervised drug rehabilitation programs or who have otherwise been rehabilitated successfully and for individuals who are participating in supervised rehabilitation programs (29 U.S.C. § 706(8)(C)(ii); 42 U.S.C. § 12210(b)). The FHA does not contain the same explicit language, but the legislative history makes clear that Congress did not intend to exclude individuals who "have recovered from an addition [sic] or are participating in a treatment program or a self-help group such as Narcotics Anonymous" (H. Rpt. 100-711 (1988), U.S.C.C.A.N. 2173, 2183). In addition, one court has looked to the scope of coverage for individuals with drug problems under the ADA and the Rehabilitation Act to conclude that individuals who are participating in treatment are protected against discrimination under the FHA (United States v. Southern Management Corp., 955 F. 2d 914, 921-23 (4th Cir. 1992)). 8 29 U.S.C. § 706(8); 42 U.S.C. § 12102(2); 42 U.S.C. § 3602(h). The FHAA uses "handicap" instead of "disability," but the terms are synonymous.
9 Federal regulations that implement
the Rehabilitation Act, the FHA, and the ADA define "record
of an impairment" as having a history of or having been misclassified
as having a physical or mental impairment that substantially limits
a major life activity (see 1 CFR § 326.103 (1993); 10 Federal regulations define the "regarded as" prong as having a physical or mental impairment that does not substantially limit a major life activity but that is treated by another person or public entity as constituting such a limitation, having a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward such impairment, or not having an impairment but being treated by another person or public entity as having such an impairment (1 CFR § 326.103; 24 CFR § 100.201; 28 CFR § 35.104). 11 1 CFR § 326.103; 24 CFR § 100.201; 28 CFR § 35.104. 12 1 CFR § 326.103; 24 CFR § 100.201; 28 CFR § 35.104. 13 See, e.g., Sullivan v. City of Pittsburgh, 811 F. 2d 171, 182 (3d Cir.) (recovering alcoholics whose treatment program was being closed because of a denial of a conditional use permit were handicapped individuals), cert. denied, 484 U.S. 849 (1987); Nisperos v. Buck, 720 F. Supp. 1424, 1427 (N.D. Cal. 1989) (attorney who was participating in a drug treatment program was a handicapped individual because his employer regarded him as having an impairment), aff'd, 936 F. 2d 579 (9th Cir. 1991); Whitlock v. Donovan, 598 F. Supp. 126, 129 (D.D.C. 1984) (employee with a current alcohol problem was a handicapped employee), aff'd, 790 F. 2d 964 (D.C. Cir. 1986); Simpson v. Reynolds Metals Co., Inc., 629 F. 2d 1226, 1231 n. 8 (7th Cir. 1980) (employee with a current alcohol problem was a handicapped person); and Wallace v. Veterans Admin., 683 F. Supp. 758 (D. Kan. 1988) (nurse in recovery from a drug problem was a "handicapped individual"). 14 797 F. Supp. 353 (D.N.J. 1991). 15 Id. at 359. 16 799 F. Supp. 450 (D.N.J. 1992). 17 Id. at 460. 18 955 F. 2d 914 (4th Cir. 1992). 19 Id. at 919. 20 Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 460 (D.N.J. 1992); Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1342 (D.N.J. 1991). 21 See, e.g., Support Ministries for Persons With AIDS, Inc. v. Village of Waterford, N.Y., 808 F. Supp. 120, 127 (N.D.N.Y. 1992) (adult care facility for persons with AIDS would be drug and alcohol free, with as-needed testing for use, and the residents, who would be required to sign a contract agreeing to honor the policy, would be evicted for violation of the policy); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. at 453 (under Oxford House policy, individuals who resume the use of alcohol or other drugs would be required to leave the house); Baxter v. City of Belleville, Ill., 720 F. Supp. 720, 733 (S.D. Ill. 1989) (operator of a residence for persons with AIDS would reject any current illegal drug user as a resident). 22 Just as the court in United States v. Southern Management Corp. (955 F. 2d 914, 922 (4th Cir. 1992)) relied on the ADA's statutory language to conclude that Congress intended to protect a rehabilitated addict under the FHA, courts should look to the ADA to fill other gaps. This will be particularly important in developing a consistent interpretation of disability discrimination statutes. 23 28 CFR § 35.104. 24 Teahan v. Metro-North Commuter Railroad Co., No. 91-7431, 1991 WL 279031 (2d Cir. 1991) (employee who sought treatment before receiving a discharge notice and successfully completed treatment before being actually discharged was not a continuing substance abuser, even though an administrative appeal process delayed the termination); Nisperos v. Buck, 720 F. Supp. 1424, 1427 (N.D. Cal. 1989) (attorney who was fired 2 days after completing a treatment program, even though his employer knew of his cocaine use during the previous 3 months and took no action, was considered "rehabilitating or rehabilitated" under the Rehabilitation Act and not a current user), aff'd, 936 F. 2d 579 (9th Cir. 1991). 25 42 U.S.C. § 3607(d)(4). 26 In Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1342-43 (D.N.J. 1991), the court rejected as too speculative the city's argument that it should be permitted to prohibit nine men from residing in an Oxford House because it was likely that they would have been convicted for drug distribution or sale and, thus, not protected under the FHA.
27 Section 504 of the Rehabilitation
Act states that "no otherwise qualified individual with a
disability" shall be subjected to discrimination 28 The Rehabilitation Act does not define "otherwise qualified," but the case law defines it as noted above (School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 287 n. 17 (1987); Southeastern Community College v. Davis, 442 U.S. 3997 (1979)). The ADA incorporated this definition into its statutory definition and provides in relevant part: "The term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity" (42 U.S.C. § 12131(2)). 29 42 U.S.C. § 3604(f)(9). 30 In addition to these three provisions, all other provisions of the Fair Housing Act have been amended so as to prohibit discrimination on the basis of disability. They may provide other statutory bases for suing, and programs should carefully evaluate whether these provisions apply to their particular cases. 31 42 U.S.C. § 3604(f)(1).
32 The legislative history states
that the new subsections, 42 U.S.C. §3604(f)(1) and (2)-
would also apply to state or local land use and health and safety laws, regulations, practices or decisions which discriminate against individuals with handicaps. While state and local governments have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities. This has been accomplished by such means as the enactment or imposition of health, safety or land-use requirements on congregate living arrangements among non-related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities.
The Committee intends that the prohibition against
discrimination against those with handicaps apply to zoning decisions
and practices. The Act is intended to prohibit the application
of special requirements through land-use regulations, restrictive
covenants, and conditional or special use permits that have the
effect of limiting the ability of such individuals to live in
the residence of their choice in the community. (H. Rpt. 100-711 (1988), U.S.C.C.A.N. 2173, 2185) 33 115 S. Ct. 776 (1995). 34 Section 3607(b)(1) of the FHA provides that "[n]othing in this title limits the applicability of any reasonable local, State, or Federal restriction regarding the maximum number of occupants permitted to occupy a dwelling." The legislative history indicates that the exemption was intended to deal with the limitations that jurisdictions frequently impose that "limit the number of occupants per unit based on a minimum number of square feet in the unit or the sleeping areas of the unit. Reasonable limitations by governments would be allowed to continue, as long as they were applied to all occupants, and did not operate to discriminate on the basis of race, color, religion, sex, national origin, handicap or familial status" (H. Rpt. 100-711 (1988), 1988 U.S.C.C.A.N. 2192). 35 In Edmonds, a local ordinance limited the number of unrelated individuals who could live in a single-family residence to five. Oxford House, which had 12 residents, asked the city to provide a reasonable accommodation under the FHA by permitting more than 5 individuals to live in the single-family dwelling. The city refused, claiming that its zoning ordinance was exempt from the FHA because it limited the maximum number of occupants who could reside in a dwelling. The Supreme Court rejected the city's position, finding that its zoning ordinance was the very type of land use requirement the Fair Housing Act intended to regulate. In deciding this case, the Court distinguished two types of zoning laws: laws regulating the use of land and those regulating the number of occupants allowed to live in a dwelling. It reasoned that where land is zoned for single-family residences, a city must define "family," therefore making family composition rules essential parts of land use law. The fact that the ordinance capped the number of unrelated individuals who could live together did not turn it into a maximum occupancy restriction. Such restrictions must apply to all individuals, not just to unrelated individuals. Because the city's ordinance only limited the number of unrelated individuals who could live together in the single-family neighborhood, the court concluded that the city's ordinance was a land use restriction and not exempt from the Fair Housing Act (City of Edmonds v. Oxford House, Inc., 115 S. Ct. 776, 778-80 (1995)). 36 804 F. Supp. 683 (E.D. Pa. 1992), aff'd, 995 F. 2d 217 (3d Cir. 1993). 37 974 F. 2d 43 (6th Cir. 1992). 38 Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450 (D.N.J. 1992); Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.J. 1991). 39 752 F. Supp. 1152 (D.P.R. 1990). 40 740 F. Supp. 95 (D.P.R. 1990). 41 42 U.S.C. § 3604(f)(3)(B). 42 Oxford House, Inc. v. Town of Babylon, 1993 WL 127711 (E.D.N.Y.); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 462-63 (D.N.J. 1992); Horizon House Dev. Servs., Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 699-70 (E.D. Pa. 1992); Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm'n of the Town of Fairfield, 790 F. Supp. 1197, 1221-22 (D. Conn. 1992); United States v. Village of Marshall, 787 F. Supp. 872, 878 (W.D. Wis. 1991). 43 Village of Marshall, 787 F. Supp. at 878. 44 1993 WL 127711 (E.D.N.Y). 45 787 F. Supp. 872, 880 (W.D. Wis. 1991). 46 798 F. Supp. 442 (E.D. Mich. 1992), rev'd and remanded sub nom. Smith & Lee Associates, Inc. v. City of Taylor, Mich., 13 F. 3d 920 (6th Cir. 1993), on remand U.S. v. City of Taylor, Mich. and Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 872 F. Supp. 423 (E.D. Mich. 1995). 47 42 U.S.C. § 3617. 48 This provision regulates activities that may involve first amendment free speech rights of individuals who are affected by, though not involved in, a real estate transaction. In April 1995, following complaints that a FHA investigation interfered with the first amendment rights of individuals who expressed opposition to the siting of a group home for disabled individuals, the Department of Housing and Urban Development (HUD) issued new standards restricting the types of complaints that the Federal Government would investigate. Under Notice 95-2 (April 3, 1995), HUD will not investigate or accept any complaint that involves public activities that are directed at achieving governmental action unless those actions involve force, physical harm, or a clear threat of force or physical harm to one or more individuals. Protected activities include distributing information to the public at large, holding community or neighborhood meetings, writing newspaper articles, demonstrating peacefully, testifying at public hearings and filing nonfrivolous litigation. According to the HUD guidance, hostile, distasteful, and bigoted comments that make individuals protected by the Fair Housing Act feel unwelcome in a neighborhood do not constitute sufficient cause for the Federal Government to file or investigate a claim. While these activities cannot be the basis of a Federal action, HUD investigators still investigate public records and collect evidence of public hostility and opposition to determine whether officials acted with discriminatory intent in making decisions. (See "Facially Invalid Zoning Ordinances.") In addition, while the Federal Government will not file a complaint based on "protected" public activities, private claims may still be filed. The HUD guidance states that it "is not meant to circumscribe the right of any individual who believes that his/her rights under the Fair Housing Act have been violated to seek redress through private legal action" (Notice 95-2 at 1, n. 1). 49 781 F. Supp. 1132; 789 F. Supp. 725 (E.D. Va. 1992). According to Notice 95-2, the public actions in this case would be sufficient for the Federal Government to investigate and file a coercion or intimidation claim. 50 797 F. Supp. 353 (D.N.J. 1991). 51 788 F. Supp. 1555, 809 F. Supp. 1404 (D. Kan. 1992). According to Notice 95-2, the filing of frivolous litigation by the homeowners in this case would provide the basis for Federal action. 52 29 U.S.C. § 794(a). 53 811 F. 2d 171 (3d Cir. 1987). 54 Id. at 183. The case was decided under the Rehabilitation Act. Neither the FHAA nor the ADA had been enacted. If this case were filed today, all three statutes would be applicable. 55 The Civil Rights Restoration Act (Public Law 100-259) redefined the term "program or activity" in section 504 of the Rehabilitation Act to require institutionwide coverage for the public and private entities that receive Federal financial assistance. Thus, when any part of a State or local government receives Federal financial assistance, the entire agency or department is covered. Accordingly, the existence of any Federal funding within a city zoning board is sufficient to cover the board's activities under the Rehabilitation Act. (See 29 U.S.C. § 794(a) and (b); S. Rpt. 100-64 (1988), U.S.C.C.A.N. 3, 18.) 56 Section 41.51 of the Rehabilitation Act's so-called coordinating regulations sets out a long list of activities that constitute discrimination. While this manual identifies several provisions that are most applicable to challenging a siting decision, a program should examine all the provisions to determine whether other protections apply to its particular case. 57 28 CFR § 41.53. 58 While the Rehabilitation Act does not affirmatively state that discrimination includes the failure to provide a reasonable accommodation, as in the FHA, section 504 cases that have applied the reasonable-accommodation requirement have found that the failure to provide a reasonable accommodation constitutes discrimination (see discussion in School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 287-88 (1987)). 59 28 CFR § 41.51(3)(i). 60 42 U.S.C. § 12132. 61 Title II of the ADA was intended to parallel the Rehabilitation Act closely, because most State and local government activities are recipients of Federal financial assistance and, thus, covered under section 504 of the Rehabilitation Act already. Section 203 of the ADA (42 U.S.C. § 12133) explicitly requires that the remedies under title II be the same as those under the Rehabilitation Act for violations of section 504, and section 204 of the ADA (42 U.S.C. § 12134(b)) requires that the title II regulations be consistent with those developed by the then Department of Health, Education and Welfare to coordinate the implementation of section 504 among Federal agencies. 62 28 CFR § 35.130(3)(i). 63 Oxford House, Inc. v. Town of Babylon, 1993 WL 127711 (E.D.N.Y.); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450 (D.N.J. 1991). 64 Horizon House Dev. Servs., Inc., v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992); United States v. Village of Marshall, 787 F. Supp. 872 (W.D. Wis. 1991). 65 28 CFR § 35.130(b)(vii). 66 28 CFR § 35.130(d). 67 28 CFR § 35.130(b)(7). 68 28 CFR § 35.130(g). 69 "Nondiscrimination on the Basis of Disability in State and Local Government Services," 56 F.R. 35694, 35706 (1991). 70 42 U.S.C. §§ 3604, 3605, and 3606; 24 CFR § 100.5(b). 71 24 CFR § 100.10(c)(1) and (2). 72 29 U.S.C. § 794(a) and (b). 73 42 U.S.C. § 12131. 74 Standards developed under the Rehabilitation Act will apply under title II of the ADA because Congress intended title II to "extend . . . the anti-discrimination prohibition embodied in Section 504 to all actions of state and local governments" (H. Rpt. 101-485, part II, at 84 (1990)). To ensure consistency, section 204(b) (42 U.S.C. § 12134(b)) of the ADA specifically requires that the regulations developed to implement title II be consistent with those that implemented section 504 of the Rehabilitation Act. The Department of Justice noted in issuing the title II regulations that the rule "hews closely to the provisions of existing section 504 regulations" for these reasons (56 F.R. at 35694). 75 Individuals who seek to sue must satisfy the "standing" requirement; that is, those individuals who are actually injured by an action must be the ones to challenge it, and the Federal courts will make decisions only when a real controversy exists between the parties. This ensures that courts operate within the authority granted under the Constitution. Some statutes clearly establish who can sue, while others set forth general protections and leave the determination of who can sue to the standards that have been developed under case law. 76 42 U.S.C. § 3602(i). Under the Federal doctrine of "ripeness," an individual must have an actual, concrete injury in order to state a claim under the FHA or other discrimination laws. Depending upon the action that is being challenged, an individual may need to comply with zoning requirements and be denied favorable action before being able to challenge such requirements as discriminatory. For example, in Oxford House, Inc. v. City of Virginia Beach, Va. (825 F. Supp. 1251 (E.D. Va. 1993)), an ordinance required any group of more than four unrelated people to apply for a conditional use permit to establish a group home. Oxford House established a group home that had more than four occupants without obtaining a conditional use permit. Upon learning that the city intended to take action for failing to obtain a permit, Oxford House filed an administrative complaint and thereafter a suit challenging the ordinance as violative of the FHA. The court held that the FHA claim was not ripe, because Oxford House had not applied for a conditional use permit and thus could not demonstrate that it actually had been injured (denied the permit and opportunity to establish a group home). (Id. at 1260-65.) 77 42 U.S.C. § 3604(f)(1). 78 804 F. Supp. 683 (E.D. Pa. 1992). 79 Id. at 691-93. See also Marbrunak, Inc. v. City of Stow, Ohio, 974 F. 2d 43 (6th Cir. 1992) (nonprofit corporation that was prevented from establishing a residence for mentally retarded women because of city's fire and safety codes had standing to sue); Support Ministries for Persons With AIDS, Inc. v. Village of Waterford, N.Y., 808 F. Supp. 120 (N.D.N.Y. 1992) (corporation that was prevented from establishing an adult care facility for persons with AIDS because the facility did not conform to zoning ordinances had standing to sue). 80 799 F. Supp. 450 (D.N.J. 1992). 81 Under the FHA regulations, "[d]welling means any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof" (24 CFR § 100.20). 82 24 CFR § 100.201. 83 United States v. Hughes Memorial Home, 396 F. Supp. 544, 549 (W.D. Va. 1975) (home for needy and dependent children was a dwelling because it was the residence of children); see also Patel v. Holley House Motels, 483 F. Supp. 374, 381 (S.D. Ala. 1979) (motel was not a dwelling because it provided lodging to transient guests); United States v. Columbus Country Club, 915 F. 2d 877, 881 (3d Cir. 1990) (summer bungalows that were occupied 5 months per year were dwellings because the owners were not "mere transients"); Baxter v. City of Belleville, Ill., 720 F. Supp. 720, 731 (S.D. Ill. 1989) (hospice for individuals with AIDS was a dwelling because residents were not living there as "mere transients" even though the length of residence varied).
84 Oxford House, Inc.
v. Town of Babylon, No. CV 91-3591, 1993 WL 127711 (E.D.N.Y.
Apr. 20, 1993); Oxford House, Inc. v. Township of Cherry
Hill, 85 Elliot v. City of Athens, Ga., 960 F. 2d 975 (11th Cir.), cert. denied, 113 S. Ct. 376 (1992). 86 United States v. Commonwealth of Puerto Rico, 764 F. Supp. 220 (D.P.R. 1991). 87 Baxter v. City of Belleville, Ill., 720 F. Supp. 720 (S.D. Ill. 1989). 88 While there is no case law, treatment programs that provide short-term residential services, such as 28-day programs, may have a more difficult time proving that they are a "dwelling," because the program participants would reside at the programs for only brief periods. Therefore, some might claim that a program participant is more of a transient who does not view his or her room as a residence to return to. To counter such a claim, a short-term residential program would argue that no particular length of stay is required to qualify a place as one's "residence." In addition, while residing at a program, the patient considers it a residence, where he or she eats, conducts activities, and sleeps. 89 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 90 811 F. 2d 171 (3d Cir.), cert. denied, 484 U.S. 849 (1987). 91 Id. at 175-76. 92 Greater Los Angeles Council on Deafness v. Zolin, 812 F. 2d 1103, 1115 (9th Cir. 1987). 93 Id. 94 704 F. 2d 1162, 1163 (9th Cir. 1983). 95 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 96 Stewart B. McKinney Found. Inc. v. Town Plan & Zoning Comm'n of the Town of Fairfield, 790 F. Supp. 1197, 1210-11 (D. Conn. 1992). 97 The reasonable-accommodation requirement is discussed below in conjunction with the disparate-impact cases, but it is important to remember that the reasonable-accommodation requirement is a separate and distinct ground for proving discrimination. Therefore, the failure to make a reasonable accommodation is ground for finding discrimination even if there is no discriminatory intent or effect. For example, in United States v. Village of Marshall (787 F. Supp. 872 (W.D. Wis. 1991)), a Federal court found that the village's refusal to grant an exception to a group home spacing requirement in order to permit a group home for individuals with mental illness to be sited within 2,500 feet of another group home constituted a failure to make a reasonable accommodation and was found to be discriminatory under the FHA. The court based its decision exclusively on the reasonable-accommodation provision, even though the plaintiff also claimed that the village intentionally discriminated against individuals with mental illness by bowing to community pressure to exclude the group house.. 98 804 F. Supp. 683 (E.D. Pa. 1992), aff'd, 995 F. 2d 217 (3d Cir. 1993). 99 Id. at 693-95. 100 823 F. Supp. 1285 (D. Md. 1993). 101 Id. at 1296-97. 102 974 F. 2d 43 (6th Cir. 1992). 103 Id. at 47-48. 104 Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F. 2d 1283 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978). 105 797 F. Supp. 353 (D.N.J. 1991). 106 Id. at 360-61. 107 Association of Relatives and Friends of AIDS Patients v. Regulations & Permits Admin., 740 F. Supp. 95, 104 (D.P.R. 1990). 108 Audubon, 797 F. Supp. at 361. See also Support Ministries for Persons With AIDS, Inc. v. Village of Waterford, N.Y., 808 F. Supp. 120, 134 (N.D.N.Y. 1992). (City's passage of a new ordinance requiring boardinghouses to obtain special use permits and its refusal to issue a permit to the plaintiff for the establishment of an adult care facility for persons with AIDS violated the FHA. The court ruled that the city's actions were improperly motivated by the public bias against persons with AIDS and persons recovering from alcohol or other drug problems. The community had expressed fears about the transmission of AIDS and drugs in the neighborhood, and some residents had expressed both moral opposition to persons with AIDS and their belief that because individuals brought the disease on themselves, there was no obligation to treat them compassionately.) See also Association of Relatives and Friends of AIDS Patients, 740 F. Supp. at 104. (City's refusal to grant a special use permit to the plaintiffs to open an AIDS hospice in an area zoned for agriculture was based on discriminatory intent, because the city permitted the illegal prejudices of the community to influence its decisionmaking process. The community opposed the siting because of fears that mosquitoes might transmit human immunodeficiency virus to the community, the undesirability of having former drug users and homosexuals living in the neighborhood, the risk of transmitting AIDS-related diseases, and the risk that the hospice would lower property values and pose a danger to students at a nearby school.) 109 At the time this manual was written (July 1995), the Banking and Financial Services Committee of the House of Representatives was debating the Regulatory Burden Relief Act (H.R. 1362), which included a provision that would eliminate the disparate-impact standard in the Fair Housing Act. Under the revised provision, statistical evidence of a pattern or practice of discrimination would not be sufficient to prove discrimination unless there is additional evidence that the pattern or practice actually discriminated against an individual or group on a prohibited basis and that the person engaged in the conduct with the purpose or intent to discriminate. The bill did not amend or eliminate the "effects" test in either the ADA or the Rehabilitation Act, and it is impossible to predict whether the bill will actually become law. 110 Stewart B. McKinney Found., Inc. v. Town Plan and Zoning Comm'n of the Town of Fairfield, 790 F. Supp. 1197, 1219-21 (D. Conn. 1992). 111 799 F. Supp. 450 (D.N.J. 1992). 112 Id. at 461-63. See also Oxford House, Inc. v. Town of Babylon, 1993 WL 127711 (E.D.N.Y.) (town illegally discriminated when it tried to evict residents of Oxford House because they did not meet the definition of "family" in town's zoning code and failed to accommodate the plaintiffs by modifying the definition of "family" to permit the Oxford House residents to live in a single-family residential zone). 113 790 F. Supp. 1197 (D. Conn. 1992). 114 Id. at 1219-21. 115 1992 U.S. Dist. LEXIS 9124 (E.D. La. June 10, 1992). 116 Id. 117 923 F. 2d 91 (8th Cir. 1991). 118 Id. 119 The ADA's legislative history indicates that Congress intended to exclude the phrase "solely on the basis" because a literal reliance on it could lead to absurd results. As the legislative history points out, an employer could reject an applicant on the grounds that he has a disability and is African American. If a court required proof that the handicap was the sole reason for the rejection, the individual would be subject to discrimination that could not be remedied under section 504. To avoid this result under the ADA, the legislative history indicates that Congress modeled the title II language after that in the Federal regulations that implement section 504, which does not contain the "solely on the basis of" phrase. H. Rpt. 101-485, part II, at 85-86 (1988), U.S.C.C.A.N. 303, 368. 120 For example, the section 504 coordination regulations, which were issued to coordinate the implementation of section 504 across Federal agencies, exclude all reference to discrimination "solely on the basis of handicap" in their general prohibition against discrimination. They provide that "[n]o qualified handicapped person, shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives or benefits from federal financial assistance" (28 CFR §41.51(a)). 121 For example, in Pushkin v. Regents of Univ. of Colo., 658 F. 2d 1372 (10th Cir. 1981), an individual with multiple sclerosis claimed that he was rejected from a residency program on the basis of his disability. While the members of the committee that rejected the plaintiff identified a number of reasons for their decision, the court found that most reasons centered primarily on the disability. 122 H. Rpt. 101-485, part II, at 86 (1990), U.S.C.C.A.N. 303, 368. 123 See analysis of the evidence of discriminatory actions in Sullivan v. City of Pittsburgh, 811 F. 2d 171, 182-83 (3d Cir. 1987), which was decided under section 504. As noted above, the ADA standards are intended to be consistent with those under the Rehabilitation Act. 124 42 U.S.C. §§ 3610-3612. 125 42 U.S.C. § 3613. 126 42 U.S.C. § 3614. 127 Before filing a complaint with HUD, the entity should check with its local human rights commission or HUD to determine whether a State or local agency has responsibility for investigating housing discrimination complaints. Under the FHA, HUD is required to refer housing discrimination complaints to State or local agencies that HUD has certified as being "substantially equivalent" in terms of their procedures for resolving complaints and law. Approximately 30 States have been certified as being substantially equivalent. HUD will not act on any complaint that is filed from one of these States until the State agency has acted. 128 42 U.S.C. § 3613(B)(2) and (3). 129 42 U.S.C. § 3610(a) 130 42 U.S.C. § 3613(a). 131 42 U.S.C. § 3610(B)(iv). 132 42 U.S.C. § 3610. 133 42 U.S.C. § 3612(a) and (o). 134 42 U.S.C. § 3610(g)(2)(C). 135 42 U.S.C. § 3612(g). 136 42 U.S.C. § 3614(b). 137 The ADA provides that the enforcement procedures for title II are the same as those provided under the Rehabilitation Act (42 U.S.C. § 12133). 138 28 CFR § 35.190. 139 Zoning matters are not assigned to any agency, and thus by default would be referred to the Department of Justice (28 CFR § 35.190(b)(6)). 140 28 CFR §§ 35.170, 35.172, 35.173, and 35.174. 141 28 CFR § 35.172(b). 142 Id. 143 42 U.S.C. § 3612(g)(3). 144 42 U.S.C. § 3613(c). 145 42 U.S.C. § 3614(d). 146 42 U.S.C. §§ 3612(p), 3613(c)(2), and 3614(d)(2). 147 872 F. Supp. 423 (E.D. Mich. 1995). 148 Id. at 443-445. 149 797 F. Supp. 353 (D.N.J. 1991). 150 Id. at 362-63. 151 808 F. Supp. 120 (N.D.N.Y. 1992). 152 Id. at 139-40. 153 809 F. Supp. 1404 (D. Kan. 1992). 154 Id. at 1406-08. 155 29 U.S.C. § 794a. 156 29 U.S.C. § 794a and 28 CFR § 35.175. 157 29 U.S.C. § 794a. 158 811 F. 2d 171 (3d Cir. 1987). 159 29 U.S.C. § 794a and 28 CFR § 35.175. 160 Although the discussion focuses on the U.S. Constitution, cases may be brought under the parallel equal protection clause of the various State constitutions. Some States have interpreted their State constitutional provisions to provide greater protection than the Federal Constitution, and therefore those provisions should be considered as grounds for suit. 161 473 U.S. 442 (1985). 162 Id. at 446-47. 163 While the zoning ordinance also restricted the siting of group homes for individuals with alcohol and other drug problems, the case did not challenge the ordinance as applied to such individuals. Therefore, technically, the Court's decision did not affect the rights of individuals with alcohol and other drug problems. 164 Several Justices who wrote opinions in the case noted that the Court was really applying a higher standard of scrutiny than the rational-basis test without admitting it. They noted that under the standard rational basis test, the statute would have been upheld. 165 473 U.S. 442 (1985) at 447-50. 166 Cleburne was decided before the FHAA was enacted. 167 The following discussion relies on information provided in Peter W. Salsich, Jr. (1991), Land Use Regulation, Planning, Zoning, Subdivision Regulation, and Environmental Control, Colorado Springs, CO: Shepard's/McGraw-Hill. 168 Ibid., 410. 169 See United States v. City of Black Jack, 508 F. 2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975).
170 Id. at 411-12.
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