Understanding the Fair Housing Act

The Fair Housing Act provides that it is unlawful:

To … make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status or national origin. (b) To discriminate against any person…in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

42 U.S.C. § 3604(a), (b). As defined under the statue, discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). In 1988, Congress amended the FHA, and expanded coverage of the statutory scheme to those with handicaps, including those persons who have “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.” 42 U.S.C. § 3602(h). Congress had defined handicapped persons as including those “individuals who have recovered from” an addiction or “are participating in a treatment program or self-help group such as Narcotics Anonymous…Depriving such individuals housing, or evicting them, would constitute irrational discrimination that may seriously jeopardize their continued recovery.” H.R. Rep. No. 711, reprinted in 1988 USCCAN at 2183; 42 U.S.C. § 3602(k).

Federal courts have subsequently read the 1988 amendment to apply to drug and alcohol recovery houses. U.S. v. Southern Management Corp., 955 F.2d 914, 918 n.1 (4th Cir. 1992) (affirming injunction against apartment complex that refused to rent apartments to recovering drug addicts, holding that recovering drug addicts were considered handicapped under the FHA based on the attitudes society has against those who are in such recovery.); Tsombanidis v. City of W. Haven, 180 F.Supp.2d 262, 283 (C.D. Conn. 2001) (“There is no dispute in this case that the John Doe plaintiffs, as non-abusing, recovering alcoholics and drug addicts are members of a protected class under the FHAA.”); U.S. v. Southern Management Corp., 955 F.2d 914, 921 (4th Cir. 1992) (“Individuals who have been perceived as being a drug user or an addict are covered under the definition of handicap if they can demonstrate that they are being regarded as having an impairment and that they are not currently using an illegal drug.”).

The House Judiciary Committee has made clear that the FHA was intended to apply to zoning decisions. “The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices.” H.R. REP. No. 711, reprinted in 1988 U.S.C.C.A.N. at 2185. The remedies provided for successfully bringing suit pursuant to the FHA include actual and punitive damages, injunctive relief, and reasonable attorney’s fees and costs. 42 U.S.C. § 3613. There is a two-year statute of limitations on bringing such claims. Id.

Under the FHA, there are three theories of housing discrimination. First, there are FHA claims alleging discriminatory intent on the part of those city officials who decide whether the requested permit will be granted. Oxford House, Inc. v. Town of Babylon, 819 F. Supp. 1179, 1184-85 (E.D. N.Y. 1993). Notably, there is a broad interpretation of what constitutes discriminatory intent under the FHA. Courts have found discriminatory intent when a zoning decision is reversed at the behest of neighbors, as well as intent based on the public comments from city officials or even residents at city meetings. Id. at 1184; Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1342-43 (D. N.J. 1991) (discriminatory intent found after zoning officer reversed determination to grant requested permit based on citizen complaints at city council meeting against issuing the permit.). Discriminatory intent is also present when the government selectively enforces provisions of its zoning ordinance, particularly when it is done so to appease complaining neighbors. Id.; Oxford House, Inc. v. Town of Babylon, 819 F. Supp. 1179, 1184-85 (E.D. N.Y. 1993).

Second, there is a discriminatory impact theory FHA claim, which involves the application of a facially-neutral ordinance that, while uniformly applied, has a discriminatory impact on a protected class. Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996) (holding that “a violation of the FHA may be established not only by proof of discriminatory intent, but also by a showing of significant discriminatory effect.”); Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992). A party alleging a discriminatory impact need not show intentional discrimination. Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000). The party challenging the ordinance first must show a discriminatory impact on the protected class based on statistical evidence that the practice in question has created the adverse effect. Homebuilders Ass’n of Miss., Inc. v. City of Brandon, 640 F. Supp. 2d 835 841 (S.D. Miss. 2009) (citation omitted). Upon such a showing, the burden is on the government to show that the impact is necessary to meet a legitimate state interest. Id. If the government satisfies that burden, the plaintiff must show the defendant’s reason is a pretext, or there is an alternative practice to achieve the government interest in a way that does not result in the discriminatory impact. Id. Restrictive family definitions in zoning ordinances commonly impose a disparate burden on group recovery homes. Moore v. City of East Cleveland, 431 U.S. 494 (1977); Oxford House, Inc. v. City of Albany, 819 F. Supp. 1168, 1176 (N.D. N.Y. 1993) (holding the number of unrelated people in a home to three created a disparate impact on group recovery home).

The third and final category is a reasonable accommodation claim, which at least one commentator has said is the strongest of the three FHA claims.[1] 42 U.S.C. § 3604 (f)(3)(B). While the FHA is thought to afford equal rights to those highlighted protected classes, the reasonable accommodation claim is thought to grant those in the protected classes a preferred status is land use decisions. Id. Under such a claim, “a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.” Groome Resources, Ltd. v. Parrish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000) (quoting Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 602 (4th Cir. 1997)). In other words, a denial from the government for the requested reasonable accommodation can be actual or constructive, “as an intermediate delay has the same effect as an outright denial.” Id. In Groome Resources, an application had been completed and submitted but had been pending without review for more than four months, and there was no indication that the any decision was forthcoming. Id. That was enough to find the matter ripe according to the Fifth Circuit, which noted that housing discrimination causes a uniquely harmful and immediate injury that makes such matters ripe. Id. at 200.

In U.S. v. Jackson, the federal government won enforcement of a consent decree that required the City of Jackson to permit Christians in Action (“CIA”) to operate a home for disabled or otherwise disadvantaged children in a residential neighborhood, pursuant to the reasonable accommodation claim CIA brought under the FHA. 318 F. Supp. 2d 395 (S.D. Miss. 2002).[2] The U.S. and the City of Jackson had originally entered into a consent decree in 1997 based on the City’s alleged violation of the reasonable accommodation provision of the FHA with respect to a land use applicant that sought to operate a group home for Alzheimer’s patients. Id. at 397.

In the enforcement action, the federal government alleged that the City breached the agreement in 2000, when the city council twice voted to deny the non-profit CIA a use permit under the City’s Zoning Ordinance to establish a “group home for the handicapped” in a subdivision. Id. The City, in sending out the “Notice of Hearing”, stated that granting the use permit would not change the zoning classification. Id. at 402. The Planning Board held an evidentiary hearing in June 2000, at which time a number of neighbors expressed concerns that the granting the permit would rezone the area, more businesses would follow, and CIA would alter the character of the surrounding subdivision. Id. at 403-04. Despite reminders that the permit would not rezone the area, and that CIA’s presence would not hurt property values, the City’s Planning Board voted to recommend denial of the use permit. Id. Working off the record from the Planning Board, the City Council voted unanimously to deny the use permit. Id. at 405-06.

The federal government, upon hearing of the denial, brought a motion for civil contempt seeking enforcement of the consent decree, and the court evaluated the merits of CIA’s FHA reasonable accommodations claim. Id. First, the court evaluated whether the accommodation CIA sought from the City was in fact reasonable. Id. at 412. A requested accommodation is reasonable under the FHA unless “it imposes an undue financial and administrative burden on the defendant,” or the accommodation “requires a fundamental alteration in the nature of the program at issue, which in this case is the City’s zoning scheme.” Id. In the case of the use permit CIA had requested, the court found there was not any undue financial or administrative burden on the city to follow its preexisting administrative process to grant the permit. Id. The City already had an administrative process in place for evaluating such requests for permits, so that there was no increased cost or administrative burden on the City. Id.

Additionally, the issuance of the use permit would not have fundamentally altered the City’s zoning scheme or changed the character of the surrounding area. Id. The court noted seven separate reasons for this conclusion: (1) The CIA home would have been consistent with the single-family residential use; (2) group homes, even if they are for-profit businesses, are sometimes the only way for disabled persons to live in residential communities; (3) the use permit would not lead to rezoning or otherwise change the character of the neighborhood, as neighbors had feared; (4) generalized concerns of neighbors about safety were speculative; (5) granting CIA the use permit would create the same impact as that or other residential uses permitted in the same district, as there was no proof CIA’s presence would diminish property values; (6) the “NIMBY” complaints of neighbors is not enough to deny the use permit; and (7) CIA’s application met all six factors the City looked at when determining whether to approve a use permit. Id. at 412-15.

After determining the accommodation was reasonable, the court took the second step in the reasonable accommodation process and looked at “whether the accommodation being sought ‘may be necessary’ to allow disabled person ‘equal opportunity to use and enjoy a dwelling.’” Id. at 412. The court began by noting that the FHA “gives handicapped persons the right to live in the residence of their choice. This right extends to all areas in a city, including single-family neighborhoods.” Id. at 415. Thus, the City could not simply state that it would permit CIA to remain in its current location even though CIA had already stated that it needed to expand, and wanted to do so at the site where it had sought the use permit. “Restricting CIA to that location, based on a desire to accede the insular preferences of residents of Brookhollow place without any legitimate reason, denies persons with disabilities ‘equal opportunity’ to live in the housing of their choice.” Id. at 416. It was not enough that the City would have permitted CIA to operate and expand in other sections of the City. Id.

The court additionally noted that it had previously held that “the concept of ‘necessity’ under the amended FHA includes the concept that the desired accommodation affirmatively enhance the quality of life of a person with a disability by ameliorating the effects of that disability.” Id. at 416-17. Shelters for children, including some who were recovering from addictions, “provide a beneficial living environment for abused and neglected children.” Id. at 417. The accommodation was also necessary because there was a critical need for such housing in the City. Id.

A more recent case out of the Fifth Circuit is Oxford House, Inc. v. City of Baton Rouge, 2013 U.S. Dist. LEXIS 38002 (M.D. La. Mar. 18, 2013). Along with retaliation claims, Oxford House alleged that the City of Baton Rouge violated the FHA by “using and enforcing discriminatory zoning ordinances to exclude Oxford house from operating in an area zoned for single-family use.” Id. at 2. Two Oxford Houses were the subject of the litigation after they had received letters from the City of Baton Rouge stating that the homes were in violation of the City’s zoning ordinance because more than two unrelated people lived in the homes. Id. at 4. Oxford House replied with a request for a reasonable accommodation because the residents in the homes were the “functional equivalent” of a family. Id. At the City’s request, Oxford Houses formally sought the reasonable accommodation but was denied, and its subsequent request for reconsideration was never ruled upon. Id. at 5-6.

In evaluating the claims, the court applied the Eleventh Circuit Court of Appeals method in looking at whether there was a refusal by the city, the requested accommodation was reasonable, and there was a necessity for the accommodation. Id. at 16. As for refusal, the court quickly found the city had refused the accommodation request, even if there had not been a formal response the request for reconsideration. Id. at 18-20. As to reasonableness, the court found that there was no undue burden on the city, primarily because the city failed to raise the argument. Id. at 22. The court then found the accommodation would not alter the zoning scheme, as the complaints of neighbors about increased traffic and that they simply did not want a “halfway house” in their neighborhood did not alter the zoning scheme. Id. at 22-23.

As to the necessity prong, the court found that the reasonable accommodation was necessary for handicapped persons to have an equal opportunity to live where they desire because prior to moving into the home the residents, “prospects for recovery were bleak and the residents were unable to function. However, after moving into Oxford House, the residents are able to care for themselves, hold employment, and pay bills. The residents all stated that the supportive structure of Oxford House has enabled them to turn their lives around.” Id. at 25-26. Therefore, with all three prongs satisfied, the court found that the City of Baton Rouge had violated the FHA by denying the reasonable accommodation request of the Oxford Houses.

Additionally, the court found that the City of Baton Rouge violated the disparate treatment provision of the FHA. Id. at 33-34, 43-44. To show intentional discrimination, Oxford Houses had to show that “a motivating factor behind the City’s refusal to classify [Oxford House] as a single family household was the residents’ status as recovering drug addicts and alcoholics.” Id. at 30. (citation omitted). The court held that the first part of the ordinance at issue that put additional and onerous safety and permit requirements on homes for the developmentally disabled violated the FHA. Id. at 34 (citing Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 46-47 (6th Cir. 1992). In particular, it was impermissible under the FHA for Oxford House to have to take additional steps for a reasonable accommodation simply because its homes were not staffed 24 hours per day. Id. at 35. The court also found discriminatory intent in part based on the fact that the city knew it was in violation of the FHA, based on its knowledge that the oxford House residents were handicapped, as defined under the FHA. Id. at 43-44.