The previous installment of this series of articles on this topic introduced the idea that federal disability rights laws have some important and possibly surprising consequences for local land use and zoning. It identified three federal statutes, the Americans with Disabilities Act (ADA), Fair Housing Act (FHA), and Rehabilitation Act of 1973 (RHA) that each prohibit discrimination against persons with disabilities. Court cases have confirmed that each of these laws impose non-discrimination obligations on local land use and zoning officials. By far the most common mechanism by which a municipality is likely to be confronted with its obligations under federal disability law is a request for a variance.
In New York State property owners can seek an exemption to the local zoning rules by requesting either a “use variance” or an “area variance.” A use variance is a request by a property owner to engage in some activity on their property that is otherwise prohibited by the zoning code, such as operating a business in a district that only allows residential homes. An area variance is a request to exceed some rule regarding the size of improvements on the property, such as how close the structure can be to the street or how much of the property can be covered by improvements. Requests for variances are typically determined by municipalities’ zoning boards of appeals. These boards are required to evaluate requests for variances under criteria found in New York State statutes. The requirements will be familiar to zoning board members and zoning practitioners. However, where a request for a variance is presented explicitly in reference to an applicant’s need for it due to their bona fide disability, the New York statutory criteria may not be the end of the analysis.
This extra analysis is often a source of confusion for local zoning officials. Due to the supremacy of federal law over state and local statutes, even if a request for a variance would be rejected for failure to meet some part of the local code or New York State criteria, the locality may be required to grant it any due to the supremacy of these federal laws..
Under the FHA, individuals with a disability are entitled to “reasonable accommodations” from the “rules, policies, or practices” of municipalities if necessary to afford them an “equal opportunity to use and enjoy a dwelling.” Similarly, the ADA provides that individuals with disabilities shall not, by reason thereof, “be denied the benefits of the services, programs, or activities of a public entity.” The ADA’s implementing regulations require municipalities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” In the municipal zoning context, courts interpret “accommodations” under the FHAA and “modifications” under Title II, the same. Failure to allow for such a modification or accommodation can amount to disability discrimination(!) against the applicant.
Under the applicable case law, to avoid discriminating against a disabled applicant, zoning boards must grant the requested accommodation or modification so long as the request is 1) reasonable, 2) necessary, and 3) does not fundamentally alter the plan for the community. These elements warrant individual explanation.
Reasonableness is evaluated according to a cost-benefit analysis. Costs may be some undue financial or administrative burden. However, if the applicant is funding the requested accommodation or modification with their own resources, as would be typical where the request is to build, say, a wheelchair ramp on the front of a house, it may be difficult for the municipality to articulate any costs it has to bear as a result of the request. Any municipal costs that can be successfully articulated must be weighed against the benefit in alleviating the applicant’s disability that would result from the requested accommodation.
Necessity is demonstrated by showing that the requested accommodation or modification has a sufficient “nexus” (i.e. is sufficiently related) to the applicant’s disability so that it will have a positive impact on their ability to use and enjoy their property in the same manner as others without a disability. If the applicant successfully produces evidence that this is true, it becomes the legal burden of the municipality to prove that this is not so.
A requested accommodation does not fundamentally alter the plan for the community if no feature of central importance to the community plan is upset. This would have to be something essential or at the very core of the municipality’s zoning scheme. If these explanations sound nebulous to you, they are. This element has not been fully fleshed out by the courts yet. What is clear is that a fundamental alteration isn’t one that merely allows for a few feet here or there. A fundamental alteration would have to involve a highly significant or unusual exception. Things such as a dramatically differing use or extraordinary area variance would likely be required in order to justify a denial on this last ground.
Whether approved or denied, any determination of a local zoning board is subject to challenge by neighbors or the applicant. If federal disability rights are implicated, these challenges could be in the form of an “Article 78” appeal to a New York State court, or directly to federal court, if brought by the applicant. This is among the most important reasons that whatever its determination, local zoning officials should be diligent in collecting evidence on the record that supports their ultimate decision.
The next article in this series will examine a few additional issue that may be useful both for zoning officials and those who wish to exercise their rights under federal disability law to consider. This will include certain issues yet to be definitively resolved by the courts, and steps parties can take to maximize their likelihood of successfully evaluating one of these potentially thorny issues.
If you have questions regarding this topic, seeking advice of experienced legal counsel is well-advised. Christopher Baiamonte, Esq. at the Wladis Law Firm can be contacted at (315) 445-1700 or by e-mail at cbaiamonte@wladislawfirm.com.
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