Tag: Land Use Accommodation

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.

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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).

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

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

© 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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