Zoning laws can pose serious barriers to people with disabilities and their organizations. Setback codes block building ramps. Rules forbidding people who are not related from living together in residential neighborhoods bar group homes. Disability discrimination laws – the ADA, the Fair Housing Act, Section 504 of the Rehabilitation Act, and local laws, often make these zoning laws illegal.[1] Indeed in some cases they violate the U.S. Constitution’s guarantee of equal protection and due process.[2]
These rules are deeply intertwined with our country’s history of “redlining” and other property laws that enforced racial exclusion. Like redlining, zoning barriers blocking access for people with disabilities are often justified as “neutral” laws protecting property values and preventing community disruption. Like redlining, they are often illegal.
Examples include:
- People with disabilities may have the right to live together despite “single-family” residential zoning rules.[3]
- A city may have to relax “set back” requirements to allow for a ramp.[4]
- The law may require an exception to “residential” use rules to for a nursing home. [5]
- Banning facilities that serve disabled people – like psychiatric or methadone clinics – is often illegal if similar facilities are allowed for nondisabled people.[6]
A narrow exception: The FHA allows governments to restrict the “maximum number of occupants” in some circumstances.[7] The Supreme Court has held that this exception must be read narrowly; limits on the number of “unrelated” occupants are not exempt and may violate the FHA.[8]
Facially Discriminatory and Facially Neutral Laws
There are various ways the zoning rules may violate the law. Some restrictions are facially discriminatory—a prohibition on methadone clinics, for example. These ordinances are rarely legal; a government usually would have to show that the discrimination was necessary to eliminate an objective, serious risk.
More often, restrictions are facially neutral, but people with disabilities win the right to a reasonable accommodation or modification of the rule.[9] Often this is a one-time variance, but sometimes—and perhaps a better goal—the ordinance is permanently modified to be nondiscriminatory. (It is also possible, though rarer, to show that the rule has a “disparate impact” on people with disabilities.[10])
True, some courts have been less willing to find disability discrimination in zoning laws.[11] Each case is different. Community concerns can and should be addressed with understanding and dialogue, but they cannot trump our legal commitment to equality. “Not in my backyard” may not be a legal answer.
[1] See generally Joint Statement of The Department of Housing and Urban Development and the Department of Justice State and Local Land Use Laws and Practices and the Application of the Fair Housing Act (Nov. 10, 2016), available at https://www.justice.gov/opa/file/909906/download.
[2] City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); W. Easton Two, LP v. Borough Council of W. Easton, __ F. Supp. 3d __, No. CV 19-801, 2020 WL 5749945, at *23-31 (E.D. Pa. Sept. 25, 2020).
[3] See, e.g. Harmony Haus Westlake, LLC v. Parkstone Prop. Owners Ass’n, Inc., 440 F. Supp. 3d 654, 667 (W.D. Tex. 2020).
[4] See U.S. Department of Justice, The ADA and City Governments: Common Problems (last updated Feb. 24, 2020), at https://www.ada.gov/comprob.htm.
[5] See, e.g. Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3d Cir. 1996).
[6] See, e.g. New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 295 (3d Cir. 2007);W. Easton Two, 2020 WL 5749945, at *20; First Step, Inc. v. City of New London, 247 F. Supp. 2d 135 (D. Conn. 2003).
[7] 42 U.S.C. § 3607(b)(1).
[8] City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 738 (1995).
[9] See, e.g. Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3d Cir. 1996).
[10] See DREDF’s Comments in Opposition to HUD’s Proposed Changes to the “Disparate Impact” Rule (Oct. 18, 2019), at https://dredf.org/2019/10/23/dredfs-comments-in-opposition-to-huds-proposed-changes-to-the-disparate-impact-rule/.
[11] See, e.g. Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 755 (7th Cir. 2006) (remanding for more rigorous showing of “but for” causation); but see Valencia v. City of Springfield, 883 F.3d 959 (7th Cir. 2018).
ADA Update 