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.

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

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