What Constitutes Handicap?

At this point in our discussion of land use accommodations, I must address the essential question, what constitutes a handicap?

However, before I do, I must explain that I would much prefer to use the more acceptable term “disability”.  Unfortunately that term was not in vogue when Congress enacted the Federal Fair Housing Act (the “Act”).

The definition of handicap, as used in the Act is as follows:  “a physical or mental impairment which substantially limits one or more of such person’s major life activities, a record of having such an impairment or being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in Section 802 of Title 21).”1 In the land use context, courts have applied that definition to a variety of institutional settings and held that skilled nursing facilities2, assisted living facilities,3 and drug and alcohol rehabilitation facilities4 all serve handicapped individuals.

Although sponsors of such facilities can take comfort in these cases, sponsors of drug and alcohol rehabilitation facilities should address the drug use qualification in the definition. That is best done by creating a factual record which includes a description of policies and practices which assure that those under treatment are effectively denied access to controlled substances, and should a resident secure such substances, they are removed from the facility.

My next blog post will address the question of standing, or who may bring an action to protect the rights of the handicapped.

Thanks, Steve.


1 42 U.S.C. 3602(h).

2 Hovsons v. Twp. of Brick, 89 F.3d 1096 (3d Cir. 1996).

3 Assisted Living Assocs. Of Moorestown, L.L.C. v. Moorestown Twp., 996 F. Supp. 409 (D.N.J. 1998).

4 United States v. Borough of Audubon, 797 F. Supp. 353 (D.N.J. 1991); Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.J. 1991).


Reasonable Accommodation

As was observed in Post # 3, failure to make a reasonable accommodation is the most common basis for claims under the Federal Fair Housing Amendments Act (the “Act”).  In the context of land use, an accommodation typically takes the form of a variance, special use permit, plan approval or other relief from the strict application of law, state or municipal.  Inevitably the issue always becomes, is the requested relief “reasonable”?

The Act places two limits upon the obligation to make a reasonable accommodation:[1]

  1. A requested accommodation must not impose “undue financial and administrative burdens” on government, and
  2. The requested accommodation must not “require a substantial or fundamental alteration in the nature of a program.” (Here “program” means the land use scheme as established by statutes and/or ordinances.)

Readers who provide housing and services in more institutional settings (skilled nursing and assisted living), will undoubtedly be concerned with the application of these limitations.  Case law recognizes that an accommodation will involve some cost and local governments may be required to make “reasonable modification” to their programs.  Moreover, the modification required of programs can be substantial where individuals require services, which can only be delivered in an institutional setting.  An example of such a relatively substantial modification is found in the frequently cited Hovsons case.  In that case, the Third Circuit approved the construction of a 210-bed nursing facility in a residential zone.[2]

The reasonableness of requested accommodations will frequently be the topic of future blogs.


[1] 42 U.S.C.A. Section 3604(f)

[2] Hovsons v. Township of Brick, 89 F.3d 1096 ( 3rd Cir. 1996).

How Land Use Boards Discriminate Against SNFs, ALFs and Other Forms of Supportive Housing

There are three ways that municipalities and their land use boards may violate the civil rights acts which are the subject of this blog.[1]  (See post #2 for a discussion of the subject acts.)

  1. They may engage in “disparate treatment.” In other words, intentional discrimination.
  2. Their actions may have a “disparate impact” upon the handicapped.
  3. They have failed to make a reasonable accommodation in land use regulations and practices so as to allow the handicapped to reside in communities of choice. In layman’s words, they have failed to grant a variance.

Although disparate treatment is often encountered, failures to make reasonable accommodation are far more frequently the basis for successful claims for relief.  Claims of disparate impact are less often a basis for relief and require more complicated proofs.  Each of these bases for relief, and the ability to recover counsel fees, will be discussed in greater detail in subsequent posts.

Thanks, Steve


[1] Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997)

Three Powerful Statutes

In my analysis of federal civil rights remedies for land use denials, I will be discussing three statutes.  Those statutes are the Federal Fair Housing Amendments Act of 1988[1] (an amendment of the Fair Housing Act, Title VIII of the Civil Rights Act of 1968), The Americans With Disabilities Act (“ADA”)[2] and The Rehabilitation Act.[3]  All of these enactments are intended to protect persons with disabilities and all three apply to local Governments and their land use boards in the application of land use regulations.[4]

In enacting the Fair Housing Amendments Act, a committee of the House of Representatives in part expressed the congressional intent as follows:

“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.” (Emphasis mine.)

In speaking of the ways that otherwise neutral land use rules and regulations can be employed to discriminate, the Committee went on to state as follows:

“Such discrimination often results from false or overprotective assumptions about the needs of handicapped people, as well as unfounded fears of difficulties about the problems that their tenancies may pose.  These and similar practices would be prohibited.”[5]

In succeeding posts I will discuss how these statutes addressed such discrimination, and how they have been applied by the courts when developers provide housing and services to the disabled in an “institutional” setting, in residential zones.

Thanks, Steve


[1] 42 U.S.C.A. § 3601, et seq.

[2] 42 U.S.C.A. § 12132, et seq.

[3] 29 U.S.C.A. § 701, et seq.

[4] Assisted Living Assocs. L.L.C. v. Moorestown Twp., 996 F. Supp. 409, 1998 U.S. Dist. LEXIS 3480 (D.N.J. 1998); Saunders v. Horn, 960 F. Supp. 893 (E.D. Pa. 1997).

[5] H.R. Rep. No. 100-711, at 25, 1988 U.S.C.C.A.N. at 2185.

Housing For The Disabled – It’s A Civil Right

In 1998, a federal judge began an opinion as follows:

“This case requires the Court to resolve a conflict between local autonomy and federal power, specifically the conflict between a New Jersey municipality’s power to zone and the federal power to eradicate discrimination against the handicapped.” 1

It is the purpose of this blog to begin a discussion of that conflict and an analysis of several federal civil rights statutes that give rise to the conflict. The initial postings will outline the prohibitions and mandates of those statutes, followed by a discussion of available remedies. Thereafter a more nuanced analysis of the statutes will be undertaken, together with a discussion of evolving case law. It is the hope of this blogger to enlighten both attorneys and developers of healthcare facilities, assisted living residences, drug and alcohol rehabilitation facilities, hospices and all other types of facilities serving persons with disabilities, with respect to federal remedies available for land use denials. In order to entice you to follow this blog, let me list just a few of the benefits available to those who litigate land use denials in the federal courts.

  • Municipalities and their land use boards must make reasonable accommodation in the application of land use regulations, in order to permit the development of facilities serving the disabled in residential zones. 2
  • Preliminary Injunctions are available, bringing relief far more rapidly than typically available in state courts. 3
  • Irreparable harm need not be shown in order to secure injunctive relief. 4
  • Prevailing plaintiffs are entitled to counsel fees and may be entitled to damages. 5

Although this writer has long represented land use boards and municipalities, I must admit at the outset that my sympathies lie with those who provide shelter and services to persons with disabilities. I will do my level best not to let this admitted bias influence my reporting. However, I invite my readers to alert me when I may stray from that goal. Such criticism aside, I welcome readers to offer comments and questions, all of which I am certain will enhance this effort. I invite such comments and questions via email with the subject line “Land Use Accommodations”.

Thanks, Steve

1     Assisted Living Associates of Moorestown, L.L.C. v. Moorestown Township, 996 F.Supp.409 (D.N.J. 1998)
2     42 U.S.C.A. § 3604(f)(3)(B)
3     42 U.S.C.A. § 3613(c)(1)
4     Baxter v. City of Belleville, 720 F.Supp 720, 734 (S.D.Ill.1989)
5     42 U.S.C.A. § 3613(c)(1) and (2)

© 2020 Steven C. Rother, Esq., Roseland, NJ. Any person wishing to reproduce this content must obtain the must first obtain permission from the author. Any fair use must attribute proper credit to the author in the form and substance consistent with the copyright notice above.


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