Fair Housing Advocacy

This page was updated 9/15/00.

This page contains sections on:

• Judicial decisions involving the Fair Housing Act—see also updates in our In court section
• Reasonable accommodations
• American with Disabilities Act

See also resources provided by the Coalition to Preserve the Fair Housing Act to counter Congress' 1998 attack on the law.

A major barrier to housing for people with mental disabilities is NIMBY ("not in my back yard")—opposition based on the stigma of mental disability. Landlords often refuse to rent to tenants with a history of mental illness. Neighbors object when a house becomes a group home. City officials enact and enforce special-permit requirements and other restrictions on land use to deny housing to people with (or perceived as having) a mental disability.

All these actions are prohibited by the federal Fair Housing Act (FHA), amended in 1988 to prohibit discrimination on the basis of disability.

• Zoning laws cannot be used to keep people with disabilities out of a neighborhood. The U.S. Supreme Court's May 1995 decision in City of Edmonds v. Oxford House upheld this provision in its first interpretation of the 1988 amendments to the Fair Housing Act.
• A landlord or condominium/co-op owner may not ask if an applicant or tenant has a disability, or if he or she is "capable of independent living" unless all applicants are asked the same question.
• A landlord or owner can reject an application or evict a tenant only for being unable to meet the obligations that apply to all tenants (paying rent, complying with reasonable rules, etc.) or for directly threatening the health or safety of other individuals.

Federal appeals courts have split on the proper standard for review of local zoning ordinances under the FHA. The Sixth and Tenth Circuits have struck down zoning restrictions that limit housing opportunities for people with disabilities and established a high standard of review that expands housing choice. See Smith & Lee Associates v. City of Taylor, 102 F.3d 781 (6th Cir. 1996); Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995). Despite the clear language of the FHA and strong evidence that Congress intended for courts to use heightened scrutiny, the Eighth Circuit Court of Appeals is alone in adopting a standard for reviewing zoning ordinances that is highly deferential to local governments. It has used a "rational basis" standard to throw out zoning challenges under the FHA. See Familystyle v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991); Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996). Advocates are cautioned about bringing such cases in federal courts in the states governed by Eighth Circuit precedent: Minnesota, Iowa, the Dakotas, Missouri and Arkansas.

The following case descriptions are among those in the Digest of Cases and Other Resources on Fair Housing for People with Disabilities, compiled by the Bazelon Center with the law firm of Stein & Schonfeld. This book contains descriptions of cases (both decided and pending) and other legal resources that housing consumers, advocates and providers can use to oppose exclusionary zoning and rental policies. You can order the 93-page book from our Bookstore and see more information about it on our publications page. Updates to it are on this site.

Judicial decisions involving the Fair Housing Act

Court Rejects Rational Basis Standard, Invalidates Special Requirements for Group Care Facilities. A federal district court in Washington State held that a municipal ordinance was discriminatory in imposing burdens on group facilities for children and people with disabilities that are not placed in families, including a 1,000-foot distance requirement and a limit on the number of residents in certain zones. The court specifically rejected the deferential standard used by the Eighth Circuit. Instead it followed the more favorable standard used by the Sixth and Tenth Circuits, requiring the city to show (1) that its ordinance benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. Under this standard, the ordinance was overturned because the city was not able to show how any specific individuals attempting to live in a group home constituted a direct threat or how the dispersal requirement would actually help group-home residents. Finally, the court invalidated occupancy limits triggered by the number of non-related individuals residing together, citing the Supreme Court's decision in Edmonds v. Oxford House for the proposition that such use of occupancy limits is not within the § 3607(b)(1) exemption. Children's Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. 1997).

County Commission Not Shielded by Legislative Immunity for Denying Land-Use Permit. In one of the first favorable decisions of its kind, a federal district court in Georgia has held that members of a county commission can be sued for discriminatory land-use decisions. Many courts have held that public officials are immune from FHA liability when they make broad land-use policy decisions, see Horizon House Development Services v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992), aff'd without opinion, 995 F.2d 217 (3d Cir. 1993); People Helpers Foundation v. City of Richmond, 789 F. Supp. 725 (E.D. Va. 1992). The Georgia court distinguished between this legislative function and situations in which public officials make decisions that affect only a single parcel of property. In the latter instance, the court held that 1) the members of the county commission who voted to deny the permit were not entitled to absolute legislative immunity because a land-use decision by local legislators which applies only to a specific party is not protected by legislative immunity, 2) defendants were entitled to summary judgment on the FHA disparate impact claim since the permit denial was an isolated decision, not a neutral action with a discriminatory impact, and 3) plaintiff was entitled to summary judgment on the claim that the denial violated the reasonable accommodation provision of the FHA.

This case removes the barrier of absolute immunity in cases where a land-use decision applies only to a specific party, and ought to be read in conjunction with Hemisphere Building Co. Inc. v. Village of Richton Park, FG-FL Rptr. ¶ 16,150, 1996 U.S. Dist. LEXIS 18451 (N.D. Ill. 1996), where a district court in the Seventh Circuit held that actions taken in connection with promulgating zoning ordinances, even a decision about which zoning classification should be applied to a specific parcel of land, are legislative actions for which local legislators are absolutely immune. The case illustrates the kind of fact pattern that amounts to a sure victory under the reasonable accommodation provision. Since the county's zoning laws would have permitted the group home, the only possible basis for denying plaintiff's proposal was that it was a commercial use operating in a residential neighborhood, yet other types of commercial uses were allowed. Therefore, the court reasoned, "there could hardly be a less burdensome accommodation." Smart Homes Inc. v. Douglas County, No. 1:94-CV-3088-GGB (N.D. Ga. Apr. 22, 1996), FH-FL Rptr. ¶ 16,122.

Sixth Circuit Strikes Down Group Home Spacing Requirements. The Sixth Circuit Court of Appeals has struck down a Michigan statute that prohibited the licensing of a residential facility for persons with disabilities within 1,500 feet of another such facility, and required notification of neighbors prior to licensing. Because the statute was discriminatory against people with disabilities, the court held that it could only be valid if the state could demonstrate that its restrictions were "warranted by the unique and specific needs and abilities of those handicapped persons" to whom it applied. The court rejected the state's argument that the spacing requirement was necessary to promote integration of people with disabilities into the community and prevent clustering of group homes. It also found no justification for the notice provision. Most significantly, the court declined to use the "rational basis" test employed by the Eighth Circuit in Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), and Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d. 91 (8th Cir. 1991). Larkin v. State of Michigan Department of Social Services, 89 F.3d 285 (6th Cir. 1996).

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Reasonable Accommodations

Sometimes a housing provider excludes people with disabilities without meaning to discriminate. The Fair Housing Act corrects this by requiring reasonable accommodations to give a person with a disability an equal opportunity to use and enjoy a dwelling unit or common space.

By now we're familiar with ramps as a reasonable modification to make a building accessible to people who use wheelchairs or walkers. The "ramps" that make housing accessible to people with mental disabilities are more likely to be accommodations in rules, policies, practices or services. The following are among court cases that have required accommodations:

Condominium Owner's Right to Accommodation Supersedes Other Owners' Property Interests. When a condominium owner requested exclusive use of a parking space to accommodate his disability, other owners voted to reject the request. The condominium association refused to grant the request, in light of the membership's vote, and on the grounds that giving one owner exclusive use of otherwise common property would diminish other owners' property interests, in violation of state law. The owner requesting an accommodation sued in federal district court. The court ordered the association to grant the request for reasonable accommodation, holding it responsible for taking whatever affirmative steps were necessary to comply with federal law, regardless of state law and private agreements among the owners. The court's strongly worded opinion highlights the fact that the Fair Housing Act sometimes requires overriding private property rights in order to protect an individual from discrimination—a rare and strong protection in our legal system. Gittelman v. Woodhaven Condominium Association, Inc., 972 F. Supp. 894 (D.N.J. 1997).

Landlord Not Required to Accept Section 8 Tenants with Disabilities. A federal appeals court has ruled that a private landlord is not required to accept two tenants with disabilities who proposed to pay the rent with Section 8 voucher assistance. Plaintiffs, who each had physical and mental disabilities and had qualified for Section 8 assistance through a local housing authority, sought to move into an apartment complex on Long Island. The landlord refused to accept them as Section 8 tenants, claiming a uniform business policy of avoiding Section 8. The landlord also refused the tenants' request for a reasonable accommodation of the "no Section 8" rule so that they could live there. The federal court held that requiring the landlord to accept Section 8 tenants would effect a "fundamental alteration of its rental policies and impose a substantial burden," and therefore granted summary judgment for the landlord. The Second Circuit affirmed, using the same reasoning. Salute v. Stratford Greens, 918 F.Supp. 660 (E.D.N.Y. 1996), aff'd, 136 F.2d 293 (2d Cir. 1998).

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Americans with Disabilities Act (ADA)

Title II of the ADA applies to "public entities," including public housing authorities and government-run homeless shelters, while Title III applies to privately run shelters that are supported by public funds. Both titles prohibit discrimination and require that services be provided in the most integrated and least restrictive setting appropriate to the needs of people with disabilities.

Ninth Circuit Uses ADA to Expand Access to Community Programs. Two related treatment programs tried to relocate their methadone clinic to Antioch. After the programs received notice that the proposed location could be used for such a clinic under Antioch's zoning plan, the Antioch City Council enacted an urgency ordinance prohibiting the operation of methadone clinics within 500 feet of residential areas and thus precluding the use of the proposed site. The treatment programs, and people associated with the programs, brought suit against Antioch under the ADA and the Rehabilitation Act. The Ninth Circuit found that the ADA and the Rehabilitation Act did apply to zoning. The court also found that because the ordinance was facially discriminatory, the clinic need only show that its clients were qualified to receive protection under the ADA; the clinic did not also need to show that the city had denied the clinic a reasonable modification. The question of "reasonable modification" would arise only if it were determined that the clients were of significant risk to others; if this risk could not be ameliorated by a reasonable modification, then the clients would not be covered under the ADA.

This case is consistent with recent trend toward finding that zoning ordinances are subject to Title II of the ADA. In fact, this case explicitly adopts the reasoning in Innovative Health Systems, Inc., v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), in which the Second Circuit found that zoning ordinances are subject to the ADA. See also Pack v. Clayton County, 47 F.3d 430 (11th Cir. 1995) (table) (summarily affirming a holding by the district court that the ADA applies to zoning ordinances). But see United States v. City of Charlotte, 904 F. Supp. 482 (W.D.N.C. 1995) (holding that zoning activities are not "public services" covered under the ADA). Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 1999 WL 351126, No. 98-16612 (9th Cir. June 3, 1999).

Second Circuit Upholds Application of ADA to Zoning Decisions. An outpatient drug- and alcohol-rehabilitation treatment center sought a building permit to relocate to a larger, more convenient site. The zoning board denied the permit and the center sued. The Second Circuit Court of Appeals affirmed the district court's order enjoining the city from interfering with the center's occupation of the new site. Giving broad meaning to the phrase "services, programs, or activities of a public entity," the court held that both the ADA and the Rehabilitation Act apply to zoning decisions made by a governmental entity. Specifically, the court held that the center had been denied the benefit of having the city make a zoning decision without regard to disability. The court also held that even where participants in rehabilitation are not entirely drug-free, the "inevitable small percentage of failures should not defeat the rights of the majority of participants" who are drug-free and therefore disabled under both statutes. Finally, the court found evidence of discriminatory motive in that the board had acted on no other ground but to alleviate the political pressure arising from community prejudice. The Second Circuit's application of Title II of the ADA to zoning suggests that advocates may secure favorable results by alleging Title II violations along with violations of the FHA. Innovative Health Systems, Inc. v. City of White Plains, No. 96-7797 (2nd Cir. June 27, 1997), 1997 WL 349853 (2nd Cir. (NY)).

The ADA's principal value to people with mental disabilities is as a tool to challenge discrimination in health care and employment. The Bazelon Center is using it for this purpose and also in litigation to shift treatment resources from institutions to community-based services for people with mental illness or mental retardation. You can use the links above to see how.

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Watch this page for updates on federal housing assistance and fair housing enforcement.