Business Law Column: Disability Law implications for local land use regulation part II – reasonable accommodations

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.

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