The Oregon Public Use of Lands Act, ORS 105.672 et seq., provides immunity from tort liability to private and public owners of land that is made available to the public for recreational purposes. The purpose of the Act is to encourage both private and public landowners to open their lands to the public. In Johnson v. Gibson, 358 Or 624 (2016), the Oregon Supreme Court answered the question posed to it by the Ninth Circuit Court of Appeals: Does the recreational immunity provided in the Public Use of Lands Act extend to employees of a landowner? The Oregon Supreme Court found that it did not.
On June 10, 2014, the City of San Jacinto, in Riverside County, California, entered into a consent decree with the Department of Housing and Urban Development (HUD) to resolve a lawsuit alleging disability discrimination under the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA). The City agreed to change its land use laws governing group home living, and to pay a total of $746,599 in compensatory damages to housing providers and former residents with disabilities, as well as a $10,000 civil penalty to the United States. The damages also include private plaintiffs’ attorneys’ fees and costs.
The settlement marks an end to an almost two-year-old complaint, but a six–year-old battle, where private group home operators claimed the City enacted an ordinance intended to exclude unlicensed and some licensed homes for persons with disabilities, and by targeting homes for persons with disabilities for enforcement of the ordinance and other local laws.
On October 3, 2008, the City Council amended the San Jacinto Zoning Code (the “Zoning Code") by approving Ordinance 08-14 (the “ordinance"), which was passed by unanimous vote of the council. The ordinance amended the Zoning Code's definition of "Group Home" or "Group Housing" to "[a] residence or dwelling, other than a hotel, wherein two (2) or more rooms, with or without individual cooking facilities, are rented to individuals under separate rental agreements or leases, either written or oral, whether or not an owner, agent, or rental manager is in residence, in order to preserve the residential character of the neighborhood." The ordinance specifically exempted certain state-licensed congregate living facilities, such as "community care facilities," from its definition of "group homes," making those with six or fewer residents permitted uses in residential zones.
Prior to and after the City's enactment of the ordinance, the city's zoning code defined "family" as "an individual or two (2) or more persons related by blood, marriage or legal adoption, or a group of not more than 6 persons who are not related, living together as a single house-keeping unit in a dwelling unit."
In conjunction with the passage of the ordinance, the City’s code enforcement officers, including uniformed officers of the County Sherriff’s Department, investigated group homes. These actions included intrusive and direct questioning of residents about whether they were on parole, on medication and/or recovering from addiction. After these investigations, the City continued to cite providers of group homes for persons with disabilities for illegal operation of a group home in a residential zone.
Thereafter, the City allowed for a reasonable accommodation process to consider placing group homes in residential neighborhoods, but its proposed conditions were not acceptable to group home providers and they filed a complaint.
HUD’s investigation led to findings that the City had, in fact, discriminated against people with disabilities under the FHA and ADA. The consent decree provides the following injunctive relief:
- The City shall not impose restrictions on housing for persons with disabilities not imposed on housing for an equal or greater number of persons without disabilities. Actions prohibited include, but are not limited to, the imposition, through any provision or practice, of numerical occupancy limits on group housing for unrelated persons with disabilities that is more restrictive than numerical occupancy limits for families or other unrelated persons.
- The City was required to adopt new ordinances to establish a new zoning classification, "Group Homes for Persons with Disabilities," and amend the City's reasonable accommodation procedure.
- The City is required to maintain records of all oral and written requests for reasonable accommodation or modification and the City's responses thereto for a period of three (3) years following the date of the request and the group home’s response, as applicable.
- The City shall not impose any additional fees, costs, or otherwise retaliate against any person who has exercised his or her right under the FHA or ADA to make one or more requests for reasonable accommodation or modification.
- Immediately upon entry of the consent decree, the City shall cease any efforts to close or bring other enforcement actions against housing for persons with disabilities operated in accordance with the FHA and the ADA, including but not limited to, homes for persons with disabilities operated by the complainants (City by Aurora Beltran and Rajeeyah Bilal-Vamey located at 325 East Third Street and 1835 Rogers Way, respectively), so long as these homes continue to operate in compliance with all laws.
- The City is required to appoint a Fair Housing Compliance Officer, and City staff, City Council members, Planning Commissioners, and the Sherriff’s officers are required to undergo fair housing training.
HUD’s investigations of fair housing violations are taking an expensive toll on local governments. If you advise a city that is considering restrictive zoning; or differential treatment of the number of family members as compared to the number of unrelated people with disabilities that can live together in the same zone, then consider the San Jacinto consent decree as a warning to take such actions cautiously. If the ordinance ultimately results in unfair treatment to group home providers, then do not be surprised if fair housing advocates complain to HUD.
Nikolich v. Village of Arlington Heights, 870 F Sup 2d 556 (N.D. Ill., 2012) involved Defendant’s denial of 30 units of housing for those with mental illness, and a Motion for Summary Judgment by Defendant. The Complaint in this case had three theories, including the Fair Housing Act (“FHA”), the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act. Plaintiffs were either developers or prospective users of such housing. Defendant’s housing plan showed an unmet need for 180 units for those with special needs. Upon Staff advice, Plaintiffs applied for nine amendments or variances from the underlying zone, including a Comprehensive Plan Amendment and rezoning. The applications had no historic precedent; nevertheless the Planning Staff recommended approval. The Planning Commission recommended approval by a 4-3 vote; however, the Village Board denied the application on a 4-3 vote.
The Court stated that there was not enough evidence to show that mentally ill residents would be better off at the residential density Plaintiffs proposed and also observed that 16 units could be built without variances; however, Plaintiffs could not have secured public financing to pursue that option. The Court was unimpressed by the notion of charging higher rents to make up the difference. Moreover, the housing tax credits had expired by the time the suit was brought and there were no financial arrangements in place to fund the housing. The court proceeded to test the three theories advanced against Defendant’s action.
Plaintiffs advanced three separate theories under the FHA – disparate treatment, disparate impact, and failure to make reasonable accommodation. Disparate treatment can be intentional (however, there was no such evidence under existing zoning patterns or from what was allowed under the existing zoning – i.e., 16 units without variances). The Court did not find that the dimensional requirements of the underlying zones were unreasonable or aimed at the disabled. The court noted that it was the plaintiff who asked for discretionary amendments and variances and then found that the ordinance was on its face, “fairly debatable.” Thus, there was no showing that the Plaintiffs were treated differently from other applicants. The Defendant was shown to provide housing for some mentally ill now, and proposed to do more in the future. There was also evidence that the Defendant did not, and would not, have made a different decision if the proposed housing did not involve the disabled. The Court concluded:
“In short, Arlington Heights cannot be said to have treated [this project] differently than any other project involving non-disabled residents because no one has ever been granted zoning variances of this scope. Moreover, there are a number of supportive housing projects already serving mentally ill residents in Arlington Heights, and more are planned for the near future * * * facts that buttress the determination that the Village Board is not biased against such projects but rather denied the project at hand for the legitimate zoning reasons identified at the May 17 meeting. Thus plaintiffs’ disparate treatment contention is doomed.”
As to the disparate impact claim, which was to show a facially neutral ordinance, fell disproportionately on a protected class, the Court said that the neutral policy (i.e., the zoning scheme which would require amendments and variances, to get to Plaintiffs’ objective) did not fall disproportionately on the handicapped.
As to Plaintiffs’ failure to accommodate claim, Plaintiffs must show the accommodation was reasonable and also necessary to ameliorate the effects of renters’ disabilities. The rule to which accommodation was requested must be shown to limit the disabled by reason of their handicap. Plaintiffs could not show that this was the result (“but for”) or their hardship – i.e., the variances for density, minimum unit size, and number of parking spaces – if all potential tenants would have been affected, the reasonable accommodation provision does not apply. None of the variances were shown to ameliorate the effects of Plaintiffs’ disabilities, but would only make the project more financially feasible for the developer. The Court rejected this financially feasibility test because it did not apply to any specific disability. The Court also questioned whether an “interactive process” of reasonable accommodation applied to local governments in the exercise of their land use regulatory authority. The fact that the handicapped could live elsewhere, albeit more expensively, was of no matter, particularly if alternatives existed on the very site without variances. The Defendant’s Motion for Summary Judgment was thus granted.
This case may be correctly decided on the facts and the contentions made. However, it may well be true that if there are economies of scale that allows for provision of affordable housing to the disabled, the purposes of the three enumerated acts may be unmet. The realities of development may exclude the disabled from access to housing – apparently with the blessing of the law.
Nikolich v. Village of Arlington Heights, 870 F Sup 2d 556 (N.D. Ill., 2012).
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