Agenda - Planning Commission - 05/03/2018

Home

April 10, 2018 I Volume 12 I Issue 7 Zoning Bulletin tion for a CPU. Ultimately, the City Zoning and Planning Commis- sion denied the CPU. The City Council later affirmed that denial. A resident of the Hoveys' house and IAG (collectively, the "Plaintiffs") then sued the City. They alleged that the City discrimi- nated against the Hovey home residents on the basis of their dis- abilities in violation of the Fair Housing Act ("FHA") (42 U.S.C.A. §§ 3601-31), Americans with Disabilities Act ("ADA") (42 U.S.C.A. §§ 12101-213), and § 504 of the Rehabilitation Act of 1973 (29 U.S.C.A. § 794(a)). Pursuant to the Fair Housing Amendment Act of 1988 ("FHAA"), the FHA makes it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." (42 U.S.C.A. § 3604(f)(1).) Similarly, Title II of the ADA provides that "no qualified individual with a dis- ability shall, by reason of such disability, be excluded from participa- tion in or be denied the benefits of the services, programs, or activi- ties of a public entity, or be subjected to discrimination by any such entity." (42 U.S.C.A. § 12132.) And, under the Rehabilitation Act, "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." (29 U.S.C.A. § 794(a).) Pursuant to case law, all three statutes apply to municipal zoning decision, and a plaintiff may prove a violation of the FHA, ADA, or Rehabilitation Act by showing: (1) disparate treatment; (2) disparate impact; or (3) a refusal to make a reasonable accommodation. Here, the Plaintiffs claimed that: (1) the City Code facially discriminated against disabled individuals because it imposed a 600- foot spacing requirement on unrelated disabled persons living in family care residences, but not on unrelated non -disabled persons living in single-family dwellings; (2) even if the 600-foot spacing requirement was facially neutral, it had a disparate impact on persons with disabilities; and (3) by refusing to grant the Hovey's home a CPU, the City failed to make a reasonable accommodation. The Plaintiffs sought monetary damages and an order directing the City to grant their requested CPU and permanently refrain from treating the Hovey home as a non-confoiuiing use under the Code. In January 2017, the Plaintiffs moved for a preliminary injunction to enjoin the City from instituting eviction proceedings against the Hovey home residents during the pendency of the case. They limited the bases of their motion to their theories of disparate treatment and reasonable accommodation. 4 © 2018 Thomson Reuters