LAW DEPARTMENT City of Stamford, Connecticut Inter-Office Correspondence To: Mayor David Martin From: Kathryn Emmett, Director of Legal Affairs & Corporation Counsel Date: April 11, 2017 Re: Senior Residences in Single Family House Zones Concerns about senior residences located at 27 Fox Hill Road, 463 Roxbury Road and 43 Old Logging Road have been brought to the Mayor and the Zoning Enforcement Officer. Each house is located in a single-family house zone and is or will be leased, by the owner of the property which is a business enterprise (Sunshine Care), to four unrelated seniors with non-live- in support services provided. The Zoning Enforcement Officer, James Lunney, has ruled that the rental to four unrelated persons is permitted in a single family house zone under Section 37 of the Zoning Regulations which defines a "family" to include up to "a maximum of four (4) unrelated individuals living together as a single housekeeping unit..." The Section Chief, Facility Licensing and Investigations, Connecticut Department of Health, Barbara S. Cass, responded to the City's inquiries concerning Sunshine Care's model of renting single family homes and providing services under individual contracts to four (4) unrelated elderly people that such homes do not meet the definition of either a Residential Care Home (which requires a state license) or a Managed Residential Care [MRC] facility (which does not require a state license). Barbara Cass indicated that Sunshine was "teetering on the edge" of meeting the definition of an MRC.' Relevant considerations that bear on the legality of the above described senior residences include the following: ^Connecticut General Statutes, Section 19a-693 defines MRC: (4) "Managed residential community" means a for-profit facility consisting of private residential units that provides a managed group living environment consisting of housing and services for persons who are primarily fifty-five years of age or older .... 1
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LAW DEPARTMENT
City of Stamford, Connecticut
Inter-Office Correspondence
To: Mayor David Martin
From: Kathryn Emmett, Director of Legal Affairs & Corporation Counsel
Date: April 11, 2017
Re: Senior Residences in Single Family House Zones
Concerns about senior residences located at 27 Fox Hill Road, 463 Roxbury Road and 43Old Logging Road have been brought to the Mayorand the Zoning Enforcement Officer. Eachhouse is located in a single-family house zone and is or will be leased, by the owner of theproperty which is a business enterprise (Sunshine Care), to four unrelated seniors with non-live-in support services provided.
The Zoning Enforcement Officer, James Lunney, has ruled that the rental to fourunrelated persons is permitted in a single family house zone under Section 37 of the ZoningRegulations which defines a "family" to include up to "a maximum of four (4) unrelatedindividuals living together as a single housekeeping unit..."
The SectionChief, Facility Licensing and Investigations, Connecticut Department ofHealth, Barbara S. Cass, responded to the City's inquiries concerning Sunshine Care's model ofrenting single family homes and providing services under individual contracts to four (4)unrelated elderly people that such homes do not meet the definition of either a Residential CareHome (which requires a state license) or a Managed Residential Care [MRC] facility (whichdoes not require a state license). Barbara Cass indicated that Sunshine was "teetering on theedge" ofmeeting the definition ofan MRC.'
Relevant considerations that bear on the legality of the above described senior residencesinclude the following:
^Connecticut General Statutes, Section 19a-693 defines MRC:
(4) "Managed residential community" means a for-profit facility consisting ofprivate residential units thatprovides a managed group living environment consisting ofhousing and services for persons who areprimarily fifty-five years of age or older....
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Stamford Zoning Regulations
Article II, Definitions, Section 37, defines what constitutesa family for purposes ofzoning:
Family: One or morepersons closely related by blood, marriage or adoption, occupying adwelling unit and livingtogether as a singlehousekeeping unit, or a maximum of four (4)unrelated individuals living together as a single housekeeping unit..
Pursuantto this definition, occupancy of a house in a single-family house zone by four unrelatedindividuals is permitted under the Zoning Regulations.
Article II, Definitions, Section 92.1, defines what constitutes senior housing and nursinghome facility complex:
Senior Housing and Nursing Home Facility Complex: An integrated elderly housingfacility, designed and managed in common,which may include a nursing home, resthome, assisted living residence, elderly housing facilities, progressive levels of supportservices, nursing care, respite care, related medical and/or ancillary support services insuchproportions deemed appropriate by the Zoning Board. Not less than 90%of the unitswithinthe premises shallbe occupied by at leastone elderly resident as defined inSection 3.A,paragraph 4.3 (b) of theseRegulations. Within multi-family districts, area,height and bulkof buildings shall be in accordance withthe standards of Appendix B.Within single family districts, minimum size of plot shall be eight (8.0) acres, principalbuildings shall not exceeda heightof three storiesor thirty-five (35) feet, all buildingsshall be setbackfrom property lines a distance not less than seventy(70) feet from allresidentially usedproperty and all streetlines, and at the discretion of the Zoning Boardthirty-five (35) feet from all other property lines, building coverage shall be inaccordance withAppendix B, andfloor arearatio (including housing) shall notexceed0.35 in the R-10 Zone and 0.25 in the R-20 Zone. Parking requirements shall bedetermined based on the mixed use, operational characteristics and potential shared useof parking of said project. Saidcomplex mayat the discretion of the Zoning Board alsoinclude such other uses allowed by right or by special exception within the underlyingzoning district. When located within the R-HDistrict, saidcomplex may at the discretionof the Zoning Board be combined with otherusesallowed by rightor special exception,may be situatedon contiguous parcelsof land, and may be approved within existingbuildings that are nonconforming withrespect to Appendix B. Theapplication andreview standards of Section 7.2 Site Plan Review and Section 19-3.2 Standards andConditions for Special Exceptions shall apply. (90-031; 95-029)
The definition of senior housingand nursinghome facility complex applies to a facilityof greater magnitude thana single family home. Thedescription of the services providedsuggests that this type of facility wouldbe subject to state licensing.
Connecticut Statutes that apply to zoning and group homes
Connecticut General Statutes § 8-3e [pertaining to the regulation of communityresidences for persons with intellectual disability, child-care residential facilities, communityresidences for persons receiving mental health or addition services and hospice facilities]provides, in part, that:
(a) No zoning regulation shall treat the following in a manner different from any singlefamily residence: (1) Any community residence that houses six or fewer persons withintellectual disability and necessary staff persons and that is licensed under the provisionsof section 17a-227 [licensing of residential facilities for persons with intellectualdisabilities]...
Section 8-3e applies only to licensed Residential Care Homes.
Connecticut General Statutes §§ 46a-64c(a)(6)(A), 46a-64c(a)(6)(C)(i) and 46a-64c(a)(6)(C)(ii)^ prohibit discrimination against the handicapped. Handicapped persons aredefined broadly to include seniors with mobility or other issues such as Alzheimer's disease.
These anti-discrimination statutes supersede zoning regulations. In CHRO ex. Rel CarolWard V. Black Point Beach Club Association, 2002 WL 34249752 (August 30,2002), the Courtheld:
In fact, federal and state disability and fair housing laws do supersede ... municipal andstate, zoning ordinances and laws.... [F]ederal and state laws supersede zoningrestrictions by prohibiting discrimination against handicapped persons in the terms,conditions or privileges of housing.. ..A discriminatory act also arises when there is "arefusal to make reasonable accommodations in rules, policies, practices, or services,when such accommodations may be necessary to afford such person equal opportunity touse and enjoy a dwelling". 42 U.S.C, § 3604(f)(3)(B), See also §§ 46a-64c(a)(6)(A), 46a-
^Connecticut General Statutes §§ 46a-64c(a)(6)(A), 46a-64c(a)(6)(C)(i) and 46a-64c(a)(6)(C)(ii) provide as follows:
(а) It shall be a discriminatory practice in violation of this section:
(б) (A) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to anybuyer or renter because ofa learning disability or physical or mental disability of: (i) Such buyer or renter;(ii) a person residing in or intending to reside in such dwelling after it is so sold, rented, or made available:or (iii) any person associated with such buyer or renter....
(C) For purposes of this subdivision, discrimination includes: (i) A refusal to permit, at the expense of aperson with a physical or mental disability, reasonable modifications of existing premises occupied or to beoccupied by such person if such modifications may be necessary to afford such person full enjoyment ofthe premises; except that, in the case of a rental, the landlord may, where it is reasonable to do so, conditionpermission for a modification on the renter agreeing to restore the interior of the premises to the conditionthat existed before the modification, reasonable wear and tear excepted; (ii) a refusal to make reasonableaccommodations in rules, policies, practices or services, when such accommodations may be necessary toafford such person equal opportunity to use and enjoy a dwelling;...
64c(a)(6)(C)(i), and46a-64c(a)(6)(C)(ii). Therefore, the ZBA must make reasonableacconmiodations in its rules, policies, practices or services whensuchaccommodationsmay be necessary to afford a person equal opportunity to useandenjoy a dwelling.
Litigation expanding the definition of "family" under due process
Courts have found a legitimatepurpose in zoning regulationswhich are aimed atachieving a homogeneous, traditional single-family neighborhood. "A quietplacewhere yardsarev^de, people few, and motor vehicles restricted are legitimate guidelines in a land-use projectaddressed to family needs," according to the U.S. SupremeCourt in Village ofBelle Terre v.Boraas, 416 U.S. 1, 9 (1974), a case which upheld, as constitutional, a zoning definitionoffamily against a challenge that it violated the equal protection clause.
To preserve this quiet neighborhood character,many municipalities have enacteddefinitionsof "family" to exclude groups of individualswho, it is perceived,degrade the singlefamily district. For example, in college towns or resort areas, a concern often arises aboutfraternities or other groups ofunrelated college students living together in single family areas.Some local governments, therefore, have enacted restrictivedefinitionsof family under zoningregulations to exclude such groups from single family zones on the basis that they do not meetthe "family" definition.
However, restrictive zoning definitions of"family" have routinely been overridden bycourts on due process grounds finding, for example, that the unrelated persons living in a homeare the functional equivalent of a family {see,e.g., Borough ofGlassboro v. Vallorosi, 117 N.J.421 (1990), in which the court rejected zoning challengeto house occupied by ten male collegestudents) or that a zoning restriction lacks a rational basis{see, e.g, Baer v. Town ofBrookhaven,73 NY2d 942 (1989), in which the court upheld the right of five elderly women to live in a singlefamily home where the zoning definition allowed no more than four unrelated individuals toconstitute a family).^
'in 1991, theConnecticut Supreme Court rejected a dueprocess challenge to Stratford's zoning regulationrestrictively defining"family" to include only relatedpersons as appliedto the occupancy of a legal non-conformingtwo-family house, locatedin a singlefamilyzone,that was occupied by two groupsof fiveunrelated people. Thisdecision wasexplicitlyrestricted to the factsof the case- "occupancy ofeach floor of the plaintiffs' two-familyhouseby a groupof five unrelated persons." Morerecently, in 2001, the court in CHRO exrei Rowley v.J.E.Ackley, LLC, 2001 WL 1231743 (September 21,2001), held that the court's decision in Dinandid not insulate arestrictive zoning definition of family likeGroton's from challenge underthe fair housing lawsor under a functionalfamily test.
Connecticut Statutes that protect the disabled
General Statutes §§ 46a-64c(a)(6)(A), 46a-64c(a)(6)(C)(i) and 46a-64c(a){6)(C)(ii)'̂whichtrack24 C.F.R. 100.203(a) and 24 C.F.R. 100.204(a), regulations issued underthe FederalFairHousing Act andthe Americans with Disabilities Act, 42 U.S.C. 12101 et seq., protect thehandicapped or disabled. A handicapped home owner successfully sued the Zoning Board ofAppeals for denial of a varianceto connecta garageto her single-family house, anaccommodation she needed because she had difficulty walking. CHRO ex. Rel Carol Ward v.Black Point Beach Club Association, 2002 WL 34249752 (August 30, 2002) (homeowner withmobility issuesis entitled to a variance to connect her house to her garage in violation of zoningrules).
Federal laws that protect the disabled
The Fair Housing Act (FHA) and the Americans with Disability Act (ADA) protectpeoplewith disabilities, including the elderlywho sufferfrom Alzheimer's and those who havemobility issues.
The FHA makes it unlawful "[t]o discriminate in the sale or rental, or to otherwise makeunavailableor deny, a dwelling to any buyer or renter because of a handicap." 42 U.S.C. §3604(f)(1).
The ADA states "no qualified individualwith a disability shall, by reason of suchdisability, be excluded from participation in or be denied the benefits of the services, programs,or activities ofa public entity, or be subject to discrimination by any such entity." 42 U.S.C. §12132.
Both statutes require "that covered entities make reasonable accommodations in order toprovide qualified individuals withan equal opportunity to receive benefits from or to participatein programs run by such entities." RegionalEconomic Community Action Program, Inc. v. CityofMiddletown, 294 F3d 35,45 (2d Cir.2002), cert, denied, 537 U.S. 813 (2002).
A memorandum prepared by HUD and Department ofJustice in 1999 titled "GroupHomes, Local Land Use and The Fair Housing Acf' is attached as Exhibit A. The memorandumexplains that a "handicap" or "disability" includes a "mobility impairmenf'or an inability towalk or care for oneself As an example, the memorandum states that a group home for sevenpersons with disabilities wouldhaveto be giventhe opportunity to seek an exception or waiverfrom the zoning limit of six unrelated persons.
Stamford cannot prohibit a senior group home on the basis that such a home is a"business" or a "nursing home^* or will "devalue property values"
The Stamford Heedth Department, as well as the Fire Marshal, the Building Departmentand others met in 2015 concerningneighborhood complaintsabout 463 RoxburyRoad. After therequired inspections wereperformed, it wasdetermined that the owner complied withhealth.
^See footnote 2 above.
buildingand fire code requirements. While Stamford may require compliance with basichealthand safety codes that apply equally to all homes, it may not, consistentwith its duty to abide bythe dictates of the fair housing laws, attempt to exclude or single out protected group homes forincreased regulation.
Municipal efforts to preventor regulategrouphomes whichare protected by state andfederal anti-discrimination laws have been repeatedly and successfully challenged in court.
There have been many legal battles in Connecticut and elsewhere dealing with grouphomes for people with HIV/AIDS, recovering alcoholics or drug addicts, people with mentaldisabilities, or senior congregate homes for people with disabilities, some of which are for-profitand some of which are state-licensed.
As of 2009 Connecticut had 900 homes serving over 4,000 persons with mental orphysical disorders including substanceabuse disorders. Despite concerns that have beenexpressed about the possibilityofdiminishedproperty values, federal courts have ruled that landuse regulations may not be used to prohibit the opportunityof people with disabilities to "live inthe residence ofchoice in the community." Federal law requires towns to make "reasonableaccommodations" to provide equal housing opportunities.
As a result, exclusionary zoning restrictions and discriminatory applications ofhealth andsafety codes have been stricken by federal courts when local zoning boards fail to grantvariances to allow residency by protected individuals.
For example. West Haven sought to prevent a group home for recovering alcoholics("sober house"), originally classifying it as a single-familyhouse and then reclassifying it as a"boarding house," ordering that four of the seven unrelated persons be evicted, and thatsprinklers and other safety provisions be installed. The federal court ruled against West Havenafter years of litigation. See Tsombanidis v. City ofWest Haven, 129 F.Supp.2d 136(D.Corm.2001){Tsombanidis7); Tsombanidis v. City ofWest Haven, 180 F.Supp.2d 262(D.Conn.2001) {TsombanidisH)\ Tsombanidis v. City of West Haven, 208 F.Supp.2d 263(D.Conn.2002) {Tsombanidis III).
The final orders, including payment of over $230,000 in attorney's fees and costs, wasaffirmed in part, and reversed in part, by the Second Circuit Court of Appeals. Tsombanidis v.City of West Haven, 352 F.3d 565 (2d Cir 2003). Exhibit B.
Other Connecticut towns have tried to stop a group home using zoning, health or firecodes, but have failed.
In Stewart B. McKinney Foundation v. Fairfield, 790 F. Supp. 1197(1992), the plaintiffpurchased a two-family homewith the intentto house sevenhomeless HIV-positive people.After a series of hostile public meetings and inquiries, the zoning commissiondeterminedthatthe proposed use of the facility wouldrequire application for, and granting of, a specialexceptionin order to be sited in the proposed area. The court determined that the publicresistance to the home and the zoning commission's inquiries about its use constituted evidence
of discriminatory motive and the commission's interpretation of the home as requiring a specialuse exception was so unreasonable as to be evidence of discrimination. The court held that theplaintiff need not prove that the residents' HIV status was the sole or even the primarymotivating factor in the zoning commission's decision, only that it was a factor. Consequently,the court upheld the validity of the plaintiffs disparate impact claim, finding that the defendantviolated the FHA by requiring HlV-infected people to satisfy requirements that the non-handicapped did not have to meet. The court also held that requiringa special exceptionpublichearing would subject HIV infectedpersons to public scrutinyto which other, non-disabledpersons would not be subjected. Seealso Conn. Hospice v. CityofNew London, 129F Supp2d123 (D Conn 2001) (sober home, Cease & Desist orders were appealedand affirmedby ZBA;after a lawsuit was filed under ADA and FHA, the court granted a temporary injunction againstthe Cease & Desist orders).
In Sunrise Development Inc v. Town of Huntington, 62 F Supp 2d 762 (EDNY 1999), acase involving a group home for the elderly, a temporary injunction was issued against anamendment to the zoning regulations that prohibited senior group homes in most residentialzones. The Zoning Board was ordered to hold a public hearing on a special permit under theprior zoningregulation. The case involveda congregate care facility for seniorcitizens, many ofwhom were disabled. Testimony revealed significant public hostility based upon a claim that anursing homewoulddecrease property values. Sunshine suedunderthe FHAand the ADA. Thecourt stated, in rejecting the Town's position, that "[a] sudden and dramatic change to an existingzoning ordinance in response to a particular land-use application in a hasty effort to conformlocal zoning law to so-called flmdamental Township land-use policies bespeaks pretext." Seealso Bangerter v. Orem City Corp, 46 F3d 1491 (10^ Cir 1995) (mentally disabled adult suedunder FHAA, 42 U.S.C. 3601, no special requirements through land-use regulations may beimposed to limitthe ability of thehandicapped to live in the residence of theirchoice); SmithLee Associates v. City of Taylor, 102 F3d 781 (6'*' Cir 1996) ( City ofTaylor, Michiganappealed the court's ruling that the City violated the FairHousing Amendments Act of 1988,42U.S.C. §§ 3604(f)(1)(B) and (3)(B), by intentionally discriminating against and failing to makereasonable accommodations for the handicapped and the court's order requiring the City toamend its zoning ordinance,pay an adult foster care home $284,000 in damages,and pay a$20,000 fine. The Sixth Circuit Court ofAppeals affirmed the judgment requiring City to allowgroup homes for the elderly disabled withfewer than nineresidents to operate in single-familyneighborhoods).
Theproperty owner's status as commercial business enterprise is notmaterial to liabilityunder theFHA/ADA.^ Commercial enterprises have standing to sue under the housing antidiscrimination statutes to protect both their existing and their planned future residents:
^TheStamford Zoning Regulations do notaddress thetypeof owner permitted ina particular zone, but rather thetype of uses permitted within each zone. SeeStamford Zoning Regulations, Appendix A,Table 1(Chart listing usespermitted ineach zone). Inaddition to single family dwelling units, permitted uses in single family house zonesinclude public parks and playgrounds, public schools, family day care homes, family estates, home occupations, andprofessional offices/accessory use. Id. Asnoted above, four (4)unrelated individuals living together insingledwelling unit isa permitted use ina single family house zone. The fact that theowner of the house isa businessenterprise does not impact the legal status of the house under the Regulations. What matters iswhether the use ofthehouse - as a "family" residence of four (4) unrelated individuals - is legal under the Regulations.
Congress has provideda causeof actionunder42 U.S.C. § 3613 to a particularly broadgroup of potential plaintiffs: "an aggrievedperson," which is defined to include"anypersonwho (1) claimsto havebeen injured by a discriminatory housing practice; or (2)believes that such person will be injured by a discriminatory housing practice that isabout to occur'' 42 U.S.C. § 3602(i) (emphasis added). Preventing a developer fromproviding housing to the elderly and handicappedby denying the elderly andhandicapped a reasonable accommodation and by resorting to discrimination against thedevelopment's future residents, is not a conjectural injury under the FHA.
AssistedLivingAssociatesofMoorestown, LLC. v. Moorestown Township, 996 F.Supp.409,425 (D.N.J. 1998) (commercial developer has standing to obtain relief against local land useboards from discriminatory housing practices under the FHA).
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JOINT STATEMENT OF THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF HOUSINGAND URBAN DEVELOPMENT
^BROUP HOMES. LOCAL LAND USE, AND THE FAIR HOUSING ACT
Since the federal Fair Housing Act ("the Act") w/as amended by Congress In 1988 to add protections for persons with disabilities andfamilies with children, there has been a great deal of litigation conceming the Act's effect on the ability of local governments toexercise control over group living arrangements, particularly for persons with disabilities. The Department of Justice has taken anactive part in much of this litigation, often following refen^l of a matter by the Department of Housing and Urban Development ("HUD").This joint statement provides an overview of the Fair Housing Act's requirements in this area. Specific topics are addressed in moredepth in the attached Questions and Answers.
The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion,sex, national origin, familial status, and disability.^ TheAct does notpre-empt local zoning laws. However, the Act applies tomunicipalities and other local govemment entities and prohibits them from making zoning or land use decisions or implementing landuse policies that exclude or othenA/isediscriminate against protected persons, including individuals with disabilities.
The Fair Housing Act makes it unlawful -
• To utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of non-disabledpersons. An example would be an ordinance prohibiting housing for persons with disabilities or a specific type of disability,such as mental illness, from locating in a particular area, while allowing other groups of unrelated individuals to live together inthat area.
• To take action against, or deny a pemnit, for a home because of the disability of individualswho live or would live there. Anexample would be denying a building pemiit for a home because it was intended to provide housing for persons with mentalretardation.
• To refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodationsmay be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing.
• What constitutes a reasonable accommodation is a case-by-case detemnination.• Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or
administrative burdenon a local govemment, or ifa modification creates a fundamental alteration in a local govemment's landuse and zoning scheme, it is not a "reasonable" accommodation.
The disability discrimination provisions of the Fair Housing Act do not extend to persons who claim to be disabled solely on the basisof having been adjudicated a juveniledelinquent, having a criminal record, or being a sex offender. Furthenmore, the Fair Housing Actdoes not protect persons who currently use illegal doigs, persons who have been convicted of the manufactureor sale of illegal drugs,or persons with or without disabilities who present a direct threat to the persons or property of others.
HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable dispute resolution procedures,like mediation, as alternatives to litigation.
DATE: AUGUST 18, 1999
Questions and Answers
on the Fair Housing Act and Zoning
Q. Does the Fair Housing Act pre-empt local zoning laws?
No. "Pre-emption" is a legal temi meaning that one level of govemment has taken over a field and left no room for govemment at anyother level to pass laws or exercise authorityin that area. The Fair Housing Act is not a land use or zoning statute; it does not preempt local land use and zoning laws. This is an area where state law typically gives local governments primary power. However, if thatpower is exercised in a specific instance in a way that is inconsistent witha federal law such as the Fair Housing Act, the federal lawwill control. Long before the 1988 amendments, the courts had held that the Fair Housing Act prohibitedlocal governments fromexercising their land use and zoning powers in a discriminatory way.
Q. What is a group home within the meaning of the Fair Housing Act?
The tenn "group home" does not have a specific legal meaning. In this statement, the term "group home" refers to housing occupiedby groups of unrelated individuals with disabilities.^ Sometimes, but not always, housing is provided byorganizations that also offer
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various services forIndividuals with disabilities living in the group homes. Sometimes it Is this group homeoperator, ratherthan theIndividuals who live in the home, that interacts with local government inseeking permits and making requests for reasonableaccommodations on behalf of those Individuals.
The temi "group home" is also sometimes applied to anygroup of unrelated persons who live together in a dwelling - such as a groupof students who voluntarily agree to share the renton a house. TheAct does notgenerally affect the ability of local govemments toregulate housing of this kind, as long as they do notdiscriminate against the residents on the basis of race, color, national origin,religion, sex, handicap(disability) or familial status (families with minor children).
Q. Who are persons with disabilities within the meaning of the Fair IHousingAct?
The FairHousing Act prohibits discrimination on the basis of handicap. "Handicap" has the same legal meaningas the term"disability" which is used in otherfederal civil rights laws. Persons with disabilities (handicaps) are individuals with mental or physicalimpaimients which substantially limit one or more major lifeactivities. The temn mental or physical impaimnent may includeconditionssuch as blindness, hearing impairment, mobility impaimient, HIV infection, mental retardation, alcoholism, drug addiction, chronicfatigue, leaming disability, head injury, and mental Illness. The temn major life activity may include seeing, hearing, walking, breathing,perfomning manual tasks, caring for one's self, leaming, speaking, or working. The Fair Housing Act also protects persons who have arecord of such an impaimient, or are regarded as having such an Impaimient.
Current users of illegalcontrolled substances, persons convicted for illegal manufacture or distribution of a controlled substance, sexoffenders, and juvenile offenders, are not considered disabled under the Fair Housing Act, by virtue of that status.
The Fair Housing Act affords no protections to individuals with or withoutdisabilities who present a direct threat to the persons orproperty of others. Detennining whether someone poses such a direct threat must be made on an individualized basis, however, andcannot be based on general assumptions or speculation about the nature of a disability.
Q. What kinds of local zoning and land use laws relating to group homes violate the Fair Housing Act?
Localzoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups of unrelatedpersons without disabilities violate the Fair Housing Act. For example, suppose a city's zoning ordinance defines a "family" to includeup to six unrelated persons living together as a household unit, and gives such a group of unrelated persons the right to live in anyzoning district without special pemiission. If that ordinance also disallows a group home for six or fewer people with disabilities in acertain district or requires this home to seek a use pennit, such requirements would conflict with the Fair Housing Act. The ordinancetreats persons with disabilities worse than persons without disabilities.
A local govemment may generally restrict the ability of groups of unrelated persons to live together as long as the restrictions areimposed on all such groups. Thus, in the case where a family is defined to include up to six unrelated people, an ordinance would not,on its face, violate the Act if a group home for seven people with disabilities was not allowed to locate in a single family zonedneighboriiood, because a group of seven unrelated people without disabilities would also be disallowed. However, as discussed below,because persons with disabilities are also entitled to request reasonable accommodations in rules and policies, the group home forseven persons with disabilities would have to be given the opportunity to seek an exception or waiver. If the criteria for reasonableaccommodation are met, the pemiit would have to be given in that instance, but the ordinance would not be invalid in allcircumstances.
Q. What is a reasonable accommodation under the Fair Housing Act?
As a general mle, the Fair Housing Act makes it unlawful to refuse to make "reasonable accommodations" (modifications orexceptions) to rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilitiesan equal opportunity to use or enjoy a dwelling.
Even though a zoning ordinance imposes on group homes the same restrictions it imposes on other groups of unrelated people, alocal govemment may be required, in individual cases and when requested to do so, to grant a reasonable accommodation to a grouphome for persons with disabilities. For example, it may be a reasonable accommodation to waive a setback requirement so that apaved path of travel can be provided to residents who have mobility impaimnents. A similar waiver might not be required for a differenttype of group home where residents do not have difficulty negotiating steps and do not need a setback in order to have an equalopportunity to use and enjoy a dwelling.
Not ail requested modifications of njles or policies are reasonable. Whether a particular accommodation is reasonable depends on thefacts, and must be decided on a case-by-case basis. The detenmination of what is reasonable depends on the answers to twoquestions: First, does the request impose an undue burden or expense on the local govemment? Second, does the proposed usecreate a fundamental alteration in the zoning scheme? If the answer to either question is "yes," the requested accommodation isunreasonable.
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What is "reasonable" in one circumstance may not be "reasonable" in another. For example, suppose a local govemment does notallow groups of four or more unrelated people to live together in a single-family neighborhood. A group home for four adults with mentalretardation would very likely be able to show that it will have no more impact on parking, traffic, noise, utility use, and other typical
concerns of zoning than an "ordinary family." In this circumstance, there would be no undue burden or expense for the localgovemment nor would the single-family character of the neighborhood be fundamentally altered. Granting an exception or waiver to thegroup home in this circumstance does not invalidate the ordinance. The local govemment would still be able to keep groups ofunrelated persons without disabilities from living in single-family neighborhoods.
By contrast, a fifty-bed nursing home would not ordinarily be considered an appropriate use in a single-family neighborhood, forobvious reasons having nothing to do with the disabilities of its residents. Such a facility might or might not impose significantburdens and expense on the community, but it would likely create a fundamental change in the single-family character of theneighborhood. On the other hand, a nursing home might not create a "fundamental change" in a neighborhood zoned for multi-familyhousing. The scope and magnitude of the modification requested, and the features of the surrounding neighborhood are among thefactors that will be taken into account in determining whether a requested accommodation is reasonable.
Q. What is the procedure for requesting a reasonable accommodation?
Where a local zoning scheme specifies procedures for seeking a departure from the general njle, courts have decided, and theDepartment of Justice and HUD agree, that these procedures must ordinarily be followed. If no procedure is specified, persons withdisabilities may, nevertheless, request a reasonable accommodation in some other way, and a local govemment is obligated to grant itif it meets the criteria discussed above. A local govemment's failure to respond to a request for reasonable accommodation or aninordinate delay in responding could also violate the Act.
Whether a procedure for requesting accommodations is provided or not, if local govemment officials have previously made statementsor othenwse indicated that an application would not receive fair consideration, or if the procedure itself is discriminatory, thenindividuals with disabilities living in a group home (and/or its operator) might be able to go directly into court to request an order for anaccommodation.
Localgovernments are encouraged to provide mechanisms for requesting reasonable accommodations that operate promptlyandefficiently, without imposing significant costs or delays. The local govemment should also make efforts to insure that the availability ofsuch mechanisms is well known within the community.
Q. When, if ever, can a local government limit the number of group homes that can locate in a certain area?
A concern expressed by some local govemment officials and neighborhood residents is that certain jurisdictions, govemments, orparticular neighborhoods within a jurisdiction, may come to have more than their "fair share" of group homes. There are legal ways toaddress this concern. The Fair Housing Act does not prohibit most governmental programs designed to encourage people of aparticular race to move to neighborhoods occupied predominantly by people of another race. A local govemment that believes aparticular area within its boundaries has its "fair share" of group homes, could offer incentives to providers to locate future homes inother neighborhoods.
However, some state and local govemments have tried to address this concern by enacting laws requiring that group homes be at acertain minimum distance from one another. The Department of Justice and HUD take the position, and most courts that haveaddressed the issue agree, that density restrictions are generally inconsistent with the Fair Housing Act. We also believe, however,that if a neighborhood came to be composed largely of group homes, that could adversely affect individuals with disabilities and wouldbe inconsistent with the objective of integrating persons with disabilities into the community. Especially in the licensing and regulatoryprocess, it is appropriate to be concerned about the setting for a group home. A consideration of over-concentration could beconsidered in this context. This objective does not, however, justify requiring separations which have the effect of foreclosing grouphomes from locating in entire neighborhoods.
Q. What kinds of health and safety regulations can be imposed upon group homes?
The great majority of group homes for persons with disabilities are subject to state regulations intended to protect the health andsafety of their residents. The Department of Justice and HUD believe, as do responsible group home operators, that such licensingschemes are necessary and legitimate. Neighbors who have concerns that a particular group home is being operated inappropriatelyshould be able to bring their concerns to the attention of the responsible licensing agency. We encourage the states
to commit the resources needed to make these systems responsive to resident and community needs and concerns.
Regulation and licensing requirements for group homes are themselves subject to scrutiny under the Fair Housing Act. Suchrequirements based on health and safety concerns can be discriminatory themselves or may be cited sometimes to disguisediscriminatory motives behind attempts to exclude group homes from a community. Regulators must also recognize that not allindividuals with disabilities living in group home settings desire or need the same level of services or protection. For example, it maybe appropriate to require heightened fire safety measures in a group home for people who are unable to move about without
4/10/2017 Joint Statement OfTheDepartment OfJusticeAnd TheDepartment OfHousing And Urban Development | CRT| Department ofJustice
assistance. But for another group of persons with disabilities whodo not desire or need such assistance, it would not be appropriate torequire fire safety measures beyond those nonnally imposed on the size and type of residential building involved.
Q. Can a local government consider the feelings of neighbors In making a decision about granting a permit to a group hometo locate in a residential neighborhood?
In the same way a local governmentwould break the law if it rejected low-income housing in a community because of neighbors' fearsthat such housing would be occupied by racial minorities, a localgovernment can violate the Fair Housing Act if it blocks a grouphome or denies a requested reasonable accommodation in response to neighbors' stereotypical fears or prejudices about persons withdisabilities. This is so even ifthe individual government decision-makers are not themselves personally prejudiced against personswithdisabilities. If the evidence shows that the decision-makers were responding to the wishes of their constituents, and that theconstituents were motivated in substantial part by discriminatory concerns, that could be enough to prove a violation.
Ofcourse, a city council or zoning boand is not bound by everything that is said by every person who speaks out at a public hearing. Itis the record as a wholethat will be determinative. If the recordshows that there were valid reasons for denyingan application thatwere not related to the disability of the prospective residents, the courts will give little weight to isolated discriminatory statements. If,however, the purportedly legitimate reasons advanced to support the action are not objectively valid, the courts are likely to treat themas pretextual, and to find that there has been discrimination.
For example, neighbors and local govemment officials may be legitimately concemed that a group home for adults in certaincircumstances may create moredemand for on-street parking than would a typical family. It is not a violation of the Fair Housing Actfor neighbors or officials to raise this concem and to ask the provider to respond. A valid unaddressed concern about inadequateparking facilities couldjustify denyingthe application, if another type of facility would ordinarily be denied a pennit for such parkingproblems. However, if a group of individuals with disabilities or a group home operator shows by credible and unrebutted evidence thatthe home will not create a need for more parkingspaces, or submits a plan to providewhatever off-street parking may be needed, thenparking concerns would not support a decision to deny the home a permit.
Q. What Is the status of group living arrangements for children under the Fair Housing Act?
In the course of litigation addressing group homes for persons withdisabilities, the issue has arisen whether the Fair HousingAct alsoprovides protectionsfor group living arrangements for children. Such living arrangements are covered by the Fair Housing Act'sprovisions prohibiting discrimination against families with children. For example, a local govemment may not enforce a zoningordinance which treats group living arrangements for childrenless favorably than it treats a similar group living arrangement forunrelated adults. Thus, an ordinance that defined a group of up to six unrelated adult persons as a family, but specifically disallowed agroup living angngement for six or fewer children, would, on its face, discriminate on the basis of familial status. Likewise, a localgovemment might violate the Act if it denied a pennit to such a home because neighbors did not want to have a group facilityforchildren next to them.
The lawgenerally recognizes that children requireadult supervision. Imposinga reasonable requirement for adequate supervision ingroup living facilities for children would not violate the familial status provisions of the Fair Housing Act.
Q. How are zoning and land use matters handled by HUD and the Department of Justice?
The Fair Housing Act gives the Department of Housing and Urban Development the powerto receive and investigate complaints ofdiscrimination, including complaints that a local govemment has discriminated in exercising its land use and zoning powers. HUD isalso obligated by statute to attempt to conciliate the complaints that it receives, even before it completes an investigation.
In matters involving zoning and land use, HUD does not issue a charge of discrimination. Instead, HUD refers matters it believes maybe meritorious to the Department of Justice which, in its discretion, may decide to bringsuit against the respondent in such a case.The Department of Justice may also bring suit in a case that has not been the subject of a HUD complaint by exercising its powertoinitiate litigation alleging a "pattern or practice" of discrimination or a denial of rights to a group of persons which raises an issue ofgeneral public importance.
The Department of Justice's principal objective in a suit of this kind is to remove significant baniers to the housing opportunitiesavailable for persons with disabilities. The Department ordinarily will not participate in litigationto challenge discriminatory ordinanceswhich are not being enforced, unless there is evidence that the mere existence of the provisions are preventing or discouraging thedevelopment of needed housing.
If HUD determines that there is no reasonable basis to believe that there may be a violation, it will close an investigation withoutreferring the matter to the Department of Justice. Although the Department of Justice would still have independent "pattern or practice"authority to take enforcement action in the matter that was the subject of the closed HUD investigation, that would be an unlikelyevent. A HUD or Department of Justice decision not to proceed with a zoning or land use matter does not foreclose private plaintiffsfrom pursuing a claim.
4/10/2017 Joint Statement OfThe Department OfJustice AndThe D^rtment Of Housing AndUrban Development | CRT | Department of Justice
Litigation can be an expensive, time-consuming, and uncertain process for all parties. HUDand the Department of Justice encourageparties to group home disputes to explore all reasonable altematives to litigation, including altemative dispute resolution procedures,like mediation. HUDattempts to conciliate all Fair Housing Act complaints that it receives. In addition, it is the Department ofJustice's policy to offer prospective defendants the opportunity to engage in pre-suit settlement negotiations, except In the mostunusual circumstances.
1. The Fair Housing Act uses the temn "handicap." This document uses the term "disability" which has exactly the same legal
meaning.
2. There are groups of unrelated persons with disabilities who choose to live together who do not consider their living an^angements"group homes," and it is inappropriate to consider them "group homes" as that concept is discussed in this statement.
Tsombanldis v. West Haven Fire Dept., 352 F.3d 565 (2003)
15 A.DrCases"32727l^brR P~M
("FHAA") and Title II of the Americans with Disabilities
Act, 42 U.S.C. §§ 12131-12165 ("ADA").' OHI overseesmore than 900 independent Oxford Houses operatingboth in the United States and abroad that providehomesfor recovering alcoholics and drug addicts. OxfordHousesoperate on the premise that people recoveringfrom drugand alcohol addictions will remain sober if they live in asupportive environment. As noted by the district court,"[s]tatistics indicate that the average length of stay inan Oxford House is thirteen months [and a] founder ofOxford House claims that eighty percent of those whohve in an Oxford House maintain long-term sobriety."Tsombanidis II, 180 F.Supp.2d at 273. Neither theCitynorthe Fire District question these assertions.
The day-to-day affairs of Oxford Houses are governeddemocratically by the residents of each house withoutthe presence of a medical or therapeutic professional.OHI has found that residents are more hkely tosucceed if houses are (1) located *571 in single-familyresidential neighborhoods away from readily availabledrugs and alcohol; (2) close to sites for regular AlcoholicsAnonymous andNarcotics Anonymous meetings; (3) nearcommercial areas substantial enough to provide easyaccessto basicnecessities; (4)near a range of employmentopportunities accessible by public transportation; and (5)large enough for a minimum of six people to live, yetsmall enough that bedrooms are shared by residents.Tsombanidis II, 180F.Supp.2d at 273.
In 1997, Tsombanidis purchased a two-story house in aresidential area of detached single-family houses in WestHaven, Connecticut. She bought the property to startOH-JH and, in July 1997, entered into a lease with four
persons recovering from alcohol and drug addictions. ^Within days after the original residents moved into OH-JH, neighbors began to question Tsombanidis about thehouse. After learning of its purpose, neighbors expressedtheirconcerns and it became apparent throughout thefallof 1997 that there wassignificant community oppositionto OH-JH locatingin the neighborhood. An anonymouscaller to the Citycomplained that OH-JH was operatingas an illegal boarding house. Soon thereafter a groupof local residents visited Mayor H. Richard Borercomplaining about the recovery facility, and a petitionsigned by eighty-four people was presented to the CityCouncil "protesting the use of the property located at421 Platt Avenue in a residential neighborhood ... as arooming house for people in rehabilitation ... in violation
of numerous planning and zoning codes." Tsombanidis II,180F.Supp.2d at 274-75.
West Haven enforces its Zoning Regulations, PropertyMaintenance Code and State Building Code primarilyby responding to complaints. After the City receivedthe first complaint, OH-JH was inspected; city officialsconcluded that Tsombanidis was operating "an IllegalBoarding House in a residential zone" in violation of
the City's zoning regulations. The City also informedTsombanidis that she was in violation of the City'sProperty Maintenance Code § 202.0, regarding one-family dwellings, as well as nine other sections of theMaintenance Code. She was ordered to make alterationsto the property and to reduce the number of tenants to
three within fourteen days in order to avoid penalties foroperating an illegal boarding house. Tsombanidis madethe repairs but refused to evict the tenants. On September22, a City official issued a citation ordering Tsombanidisto pay a fine of $99.00 for every day she was in violationof the zoning and property regulations.
In response to these actions, OHI wrote to City officialsexplaining the concept behind Oxford Houses. OHI alsoinformed the City that it believed the City'senforcementefforts to evict the residents were in violation ofthe FHAA
and ADA. Despite continuing its enforcementactions, theCity never responded to OHI. Later that fall, the Cityturned OH-JH's file over to its counsel and enforcement
proceedings were put in abeyance until further notice.
In December 1997, Richard Spreyer, Inspector for theFire District, inspected OH-JH. Since six unrelatedindividuals were living together in the house, Spreyerinformed Tsombanidis that, as the landlord, she wasrequired to install additional safety measures to ensurecomphance with Chapter 20, the "lodging and rooming"*572 portion of theConnecticut Fire Safety Code ("fire
code"). ^ In March 1998, Spreyer notified Tsombanidisshe had 15 days to comply with the lodging androoming requirements or face possible civil proceedingsand criminal penalties including a fine and incarceration.OHI responded that application of the fire code to OH-JH violated the FHAA and the ADA.
Upon receipt of OHI's letter, Spreyer forwarded theOH-JH file to Douglas Peabody, Deputy State FireMarshal, requesting a determination of the occupancyclassification. Peabody stated that OH-JH should be
Tsombantdis v. West Haven Fire Dept., 352 F.3d 565 (2003)
15 A.D. Cases 32. 27 NDLR P 83
designated as a lodging and rooming house because
six unrelated individuals rented the house. He advised
Spreyer to consult with counsel for the city to determine
whether the FHAA and ADA applied. City coimselreferred Spreyer to Assistant State Attorney Mary Galvinwho advised him that the statutes would have no
application in this instance because the fire code wasat issue rather than a zoning code. On June 15, 1998,Spreyer re-inspected OH-JH, and one day later sent
Tsombanidis a final notice of fire safety hazards, stating
that imprisonment of up to six months and/or criminalfines from $200 to $1,000 would be imposed in the event
she did not comply. He later suspended any enforcementof the abatement during the pendency of this action.
Plaintiffs brought the present case against the FireDistrict and the City alleging that both governmental
entities violated the FHAA and ADA by intentionally
discriminating against plaintiffs, implementing policiesthat disparately impacted plaintiffs, and failing to make
reasonable accommodations. Both defendants moved for
summary judgment. The district court held that there
was sufficient evidence to go forward on plaintiffs'claim of intentional discrimination against the City but
not against the Fire District. See Tsombanidis I, 129
F.Supp.2d at 152-55. The court held that both disparateimpact claims could proceed to trial but held that
the reasonable accommodation claims were not ripe
because plaintiffs had not yet utilized the appropriate
administrative proceedings to obtain an accommodation.See id. at 159-61.
In response to the court's ruling that the reasonableaccommodation claims were not ripe, Tsombanidisapplied to the City of West Haven Zoning Board ofAppeals for a special-use exception to continue to usethe property as OH-JH. The Zoning Board held a publichearing and subsequently *573 denied the application.
Only two months before trial, Tsombanidis requested that
the State Fire Marshal exempt her from the fire code. At
the subsequent bench trial, John Blaschik, a new Deputy
State Fire Marshal, testified that one of the then seven
residents of OH-JH could be considered a member of
a single family, and the other six could be consideredoutsiders, making OH-JH a single-family dwelling under
the fire code. Spreyer promptly informed Tsombanidis
that he would follow this interpretation and that she
should disregard the previous notices.
After an eight day bench trial, the district court heldthat the fire code had a disparate impact on the JohnDoe plaintiffs. See Tsombanidis JI, 180 F.Supp.2d at296-98. The court also found that plaintiffs failed
to prove a reasonable accommodation claim against
the Fire District because the plaintiffs received the
accommodation they requested. See id. at 298. The court
awarded plaintiffs attorney's fees but no compensatorydamages because plaintiffs had not proven intentionaldiscrimination. See id. at 299. The Fire District appeals
the district court's disparate impact holding and amootness issue included in that claim. Plaintiffs cross-
appeal the court's reasonable accommodation ruling andits failure to award compensatory damages upon a findingof disparate impact. Plaintiffs have abandoned theirintentional discrimination claim against the Fire District.
With respect to the City, the court held that: (1) theCity intentionally discriminated against OH-JH; (2) thezoning and maintenance regulations disparately impactedthe residents; and (3) the City failed to reasonably
accommodate the residents' handicap after plaintiffs
had sought a variance through proper govermnentalprocedures. See id.at 284—92. The court awarded plaintiffscompensatory damages and attorney's fees. See id. at 296.The City appeals the intentional discrimination claim,the reasonable accommodation claim and the damages
award. It does not contest the disparate impact claim.
II. Discussion
A. Statutory Framework
[1| Both the FHAA and the ADA prohibit governmentalentities from implementing or enforcing housingpohcies in a discriminatory manner against persons
with disabilities. The FHAA makes it unlawful "[t]o
discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renterbecause of a handicap." 42 U.S.C. § 3604(f)(1). Similarly,the ADA states "no qualified individual with a disabilityshall, by reason of such disability, be excluded fromparticipation m or be denied the benefits of the services,
programs, or activities of a public entity, or be subjectto discrimination by any such entity." 42 U.S.C. §12132. Both statutes require "that covered entities make
reasonable accommodations in order to provide qualifiedindividuals with an equal opportimity to receive benefits
from or to participate in programs run by such entities."
WESTLAW 2017 Thomson Reuters. No claim to original U.S. Government Works.
Tsombanldls v. West Haven Fire Dept., 352 F.3d 565 (2003)15 A.D. Cases 32, 27 NDLR P 83
Reg'l Econ. Cmty. Action Program, Inc. v. City ofMiddletown, 294 F.3d 35, 45 (2d Cir.), cert, denied, 537U.S. 813,123S.Ct. 74,154L.Ed.2d 16(2002). To establishdiscrimination under either the FHAA or the ADA,plaintiffs have three available theories: (1) intentionaldiscrimination (disparate treatment); (2) disparate impact;and (3) failure to make a reasonable accommodation. See
id at 48.'*
*574 |2I 131 |4| Both Statutes apply to municipalzoning decisions. See id. at 45^6 (citing Forest City DalyHous., Inc. V. Town ofNorth Hempstead. 175F.3d 144, 151
{2dC\r.\999)\ Innovative Health Sys., Inc. v. City of WhitePlains. 117 F.3d 37, 44 (2d Cir.1997)). Furthermore, theFire District has not specifically contested theapplicationof either statute to the fire code. Cf Marbrunak. Inc.V. City of Stow, 974 F.2d 43 (6th Cir.1992) (applyingFHAA to a zoning ordinance imposing special safetyrequirements on residences housing individuals with
developmental disabilities).^ In addition, defendantshave not contested that the John Doe plaintiffs, asrecovering alcoholics and drug addicts, are considered"handicapped" or persons with disabilities and thereforeprotected by both the FHAA and the ADA. Finally,defendants concede plaintiffs Tsombanidis and OHI have
standing in this case. ^
B. Claims Against the Fire District(51 The Fire District argues that the case against it
became moot when Blaschik testified he had changedthe interpretation of the fire code, and Spreyer informedTsombanidis he would follow that interpretation. Thus,OH—JH, which has capacity only for seven recoveringindividuals, will not be required to implement the firesafety measures necessary forresidences treated aslodgingand rooming houses. One day after the testimony.Inspector Spreyer informed Tsombanidis and the otherplaintiffs that allenforcement efforts would cease as longas OH-JH did not exceed seven members.
[61 (7| "[FJederal courts may not adjudicate mattersthatno longer present an actual dispute between parties."Catanzano v. fVing, 111 F.3d 99, 107 (2d Cir.2001)."The voluntary cessation of allegedly illegal activitieswill usually render a case moot 'if the defendant candemonstrate that (1) there is no reasonable expectationthat the alleged violation will recur and (2) interimreliefor events have completelyand irrevocablyeradicated the
effects of the alleged violation.' " Granite State OutdoorAdvert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2dCir.2002) (quoting Campbell v. Greisberger, 80 F.3d 703,706 (2d Cir. 1996)). The defendant's burden isa heavy oneto ensurethe allegedly illegal activities do not temporarilycease only to resume after the claims have been dismissed.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610(2000). The Fire District has not met its heavy burdenbecause theinterpretation ofthecode might change again—for example, upon a change in the State Fire Marshal'sadministration. Thus, the claims are not moot.
1. Disparate Impact Analysis|8| (9] [10] [111 1121 113] The district court found
the Fire District in violation of the FHAA and ADAholding the fire code disparately impacted the JohnDoe plaintiffs. Disparate impact analysis focuses onfacially neutral policies or practices that may have adiscriminatory effect. "To estabhsh a prima facie caseunder this theory, the plaintiff *575 mustshow: '(1) theoccurrence of certain outwardly neutral practices, and(2) a significantly adverse or disproportionate impact onpersons of a particular type produced by the defendant'sfacially neutral acts or practices.' " City of Middletown.294 F,3d at 52-53 (quoting Gamble v. City of Escondido,104 F.3d 300, 306 (9th Cir.1997)) (emphasis added).A plaintiff need not show the defendant's action wasbased on any discriminatory intent. Huntington Branch,NAA CP V. Town ofHuntington, 844 F.2d 926, 934-36 (2dCir.1988). When establishing that a challenged practicehas a significantly adverse ordisproportionate impact ona protected group, a plaintiff must prove the practice"actually or predictably results in ... discrimination."Hack V. President & Fellows of Yale Coll., 237 F.3d 81,90 (2d Cir.2000) (quoting Town of Huntington, 844 F.2dat 934). A plaintiff has not met its burden if it merelyraises an inference of discriminatory impact. SeeGamble,104 F.3d at 306. Furthermore, the plaintiff must showa causal connection between the facially neutral policyand the alleged discriminatory effect. See Hack. 237 F.3dat 90-91. If a plaintiff makes a prima facie showing, theburden shifts to the defendant to "prove that its actionsfurthered, in theory and in practice, a legitimate, bonafide governmental interest and that no altemafive wouldserve that interest with less discriminatory effect." TownofHuntington. 844 F.2d at 936.
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2003)
15 A.D. Cases 32,27 NDLR"P^~~' ~ —
In this case, plaintiffs challenge the facially neutralprovisions of Connecticut's Fire Safety Code relating tolodging and rooming houses. If the residence is a lodgingor rooming house, plaintiffs would be required to make anumber of structural changes to the building. The district
court found these requirements to be "prohibitivelyexpensive for OH-JH and that the continued enforcementof these provisions would result in the constructiveeviction of the John Doe plaintiffs from this one-familydwelling and would limit the housing opportunities
available to Oxford House residents." Tsombanidis II, 180
F.Supp.2d at 297. The court further held that plaintiffshad presented "substantial evidence of their need to livein a group home setting in a residential neighborhood,
in order to facilitate their continued recovery from
alcoholism and drug addiction," and that this need for
group living is not shared by "non-handicapped persons"to the same degree. Id. After finding that the fire code
had an adverse impact on plaintiffs, it held that althoughthe Fire District could point to a legitimate interest—fire
safety—the Fire District presented no evidence that the
regulations were the least restrictive means to serve itslegitimate interest. Id.
1141 We disagree with the district court's legal analysisand find as a matter of law that plaintiffs failed to establisha prima facie claim of disparate impact. The basis for a
successful disparate impact claim involves a comparisonbetween two groups—those affected and those unaffected
by the facially neutral policy. This comparison must reveal
that although neutral, the policy in question imposes a
"significantly adverse or disproportionate impact" on a
protected group ofindividuals. When examining disparate
impact claims under the FHAA and ADA, we use Title
VII as a starting point. See Hack, 237 F.3d at 90; see also
Town ofHuntington, 844 F.2d at 934. To establish a prima
facie case for employment discrimination, plaintiffs are
ordinarily required to include statistical evidence to show
disparity in outcome between groups. See, e.g., Smith v.
Xerox Corp.. 196 F.3d 358, 365 (2d Cir.1999).
Statistical evidence is also normally used in cases involving
fair housing disparate *576 impact claims. For example,in Town ofHuntington, the district court found a shortage
of affordable rental housing for low and middle-income
households and that the impact of this shortage was three
times greater on blacks than on the overall population.
Town of Huntington, 844 F.2d at 929. Furthermore, the
town had restricted new low-income housing to an area
consisting of 52%minority residents while the entire townwas 98% white. Id. at 937-38. Thus, the Court concluded
the town's refusal to amend the ordinance restricting
multifamily housing projects to largely minority urbanrenewal areas disparately impacted minorities. Id. at 938.
Similarly, in Resident Advisory Board v. Rizzo, 564 F.2d
126 (3d Cir. 1977), the court held that plaintiffs had proven
discriminatory effect by showing that the defendants'
urban renewal efforts had left the area in question an "all-
white community" whereas the area had previously been
integrated to the extent of having 45% black families. Id.at 149. The court concluded that there was no "doubt that
the impact of the governmental defendants' termination of
the project was felt primarily by blacks, who make up asubstantial proportion of those who would be eligible to
reside there." Id.
By contrast, in Hack, this Court dismissed plaintiffs'disparate impact claims against a university housing
policy that required students to live in co-educational
residence halls, which were objectionable to OrthodoxJews on religious grounds. The court noted that "[t]he
students do not allege that [the university's] policy
has resulted in or predictably will result in under-
representation of Orthodox Jews in [university] housing.Therefore, their claim fails." Hack, 237 F.3d at 91.
Here, plaintiffs did not present any statistical informationnor did they show the fire code actually or predictably
created a shortage of housing for recovering alcoholics
in the community. Although there may be cases where
statistics are not necessary, there must be some analytical
mechanism to determine disproportionate impact. The
district court merely required plaintiffs to show they could
not live in the house they desired because of the code
and that plaintiffs needed this type of housing due to
their handicap. The court's analysis would appear to apply
to any facially neutral housing policy that prevents a
handicapped person from living in a particular house.
Such a standard is not sufficient for disparate impact
purposes. If a handicapped person requested and was
denied a reasonable accommodation to the neutral policy,
there would be a strong argument that the denial violated
the FHAA and ADA, but this would only be true under
a reasonable accommodation theory as opposed to a
disparate impact theory. See Henrietta D. v. Bloomberg,
331 F.3d 261, 276-77 (2d Cir.2003) (holding that the
ADA permits both theories of disparate impact and
reasonable accommodation and that each is a separate
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2003)is A.D. Cases 32, 27 NDLR P"M ~
and distinct claim). To prevail on a theory of disparateimpact, however, there must be some evidence that asignificant number ofpeople suffering the handicap needgroup living and that the fire code restricts a substantialportion of smularly handicapped individuals from doingso. The only evidence the court had in this regard cutsagainst plaintiffs' theory. There are twenty-six OxfordHouses in Connecticut and six, not including OH-JH, inthe greater New Haven area; it does not appear that thestate-wide fire code has adversely affected these homes.See Tsombanidis II, 180 F.Supp.2d at 272.
Whether using statistics or some otheranalytical method,plaintiffs must also utilize the appropriate comparisongroups. They must first identify members of a protectedgroup that are affected by the *577 neutral policy andthen identifysmularlysituated personswho are unaffectedby the policy. It is unclear from itsdecision what groupsthe district court compared. To the extent that the districtcourt compared the handicapped plaintiffs to "a similarlysized family where the individuals were related by blood,marriage or adoption," see Tsombanidis I, 129 F.Supp.2dat 157, that comparison was improper. It fails to includesimilar-sized groups that are not related by blood—sevencollege students wanting to live together, for example—but are still affected by the policy. See Gamble, 104 F.3dat 304. The district court also erredby merely comparinghandicapped and non-handicapped persons. Rather, inthis case, theproper comparison isbetween (1) recoveringalcoholics and recovering drug abusers ("recoverings")and (2) people who are neither recovering alcoholicsnor recoveringdrug abusers ("non-recoverings"). Such acomparison identifies the handicap and allows for a causalanalysis between the claim of discrimination based on the
handicap inquestion and thefacially neutral policy.
In this case, plaintiffs might have been able to meet theirburden by providing statistical evidence (1) that xVo ofallof the recoverings in West Haven need (or have goodreason) to live in the "group settings" prohibited by thefacially neutral fire regulations at issue, (2) that fA of allof thenon-recoverings in West Haven need (or have goodreason) to live in such group settings prohibited by thefire regulations, and, crucially, (3) that a: is significantlygreater than y. There is nothing in the district court'sdecision nor do plaintiffs point to any evidence in therecordalludingto sucha statistical comparison.
Amore qualitative comparison might also have supportedthe disparate impact theory. In such a comparison,plaintiffs would have toshow that the average recoveringin West Haven has a greater need—qualitatively—for group living than does the average non-recoveringresident of West Haven. This would likely require somequantification of what each group "needs" from a livingarrangement standpoint. A court could then concludethat, despite whether the quantitative test is met, there isa qualitatively disproportionate impact on recoverings inWest Haven. "If a significant correlation exists betweenbeing disabled and living in group houses, a disparateimpact on group housing could conceivably establish aprima facie disparate impact claim." Gamble. 104 F.3dat 307 n. 2. No evidence was presented in this casethat establishes a significant correlation between beingdisabled and living in group housing.
Plaintiffs seem to have taken the qualitative track,but again, they have not shown any proof that thereare other recoverings in West Haven who need groupliving of seven or more or any proof about non-recoverings' needs. Thedistrict court found that plaintiffshad established that the Oxford House program was ahighly successful rehabilitation method, especially whenrecoverings were attending Alcoholics Anonymous orNarcotics Anonymous meetings. Tsombanidis II. 180F.Supp.2d at 274. The court also found that oneof the criteria that made this program "much morelikely to succeed" was its desire to use houses "largeenough for a minimum of six people to live, yet smallenough that bedrooms are shared by residents." Id. at273. This was insufficient to establish a " 'comparisonclass' of 'similarly situated individuals given preferentialtreatment.' " Henrietta D.. 331 F.3d at 273 (quotingOlmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119S.Ct. 2176, 144 L.Ed.2d 540 (1999) (plurality opinion)).Oxford House's own experts noted thatnotall recoveringsneed group living and that other factors, includingattending Alcoholics Anonymous meetings *578 andabstinence, also play a substantial factor in recovering.Since no quantitative or qualitative comparison wasproven, plaintiffs did not establish a disparate impactclaim.
2. Reasonable Accommodation Analysis1151 Plaintiffs also assert that the Fire District's refusal
to treat OH-JH as a one-family dwelling qualifies asa failure to reasonably accommodate the John Doe
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2003)
15 A.D. Cases 32, 27 NDLR P 83
plaintifTs' handicap as required by the FHAA and theADA. Plaintiffs contest both the district court's original
ripenessdecisionas wellas the holding that the reasonableaccommodation provisions were not violated. We affirmboth rulings.
[16] |171 Under the FHAA and the ADA, ^ agovernmental entity engages in a discriminatory practiceif it refuses to make a "reasonable accommodation"
to "rules, policies, practices or services when suchaccommodation may be necessary to afford [ahandicapped person] equal opportunity to use and enjoya dwelling." 42 U.S.C. § 3604(0(3)(B); jee also 42 U.S.C. §12131 (2) ("The term 'qualified individual with a disability'means an individual with a disability who, with or
without reasonable modifications to rules, policies or
practices ... meets the essential eligibility requirements forthe receipt of services or the participation in programsor activities provided by a public entity."). Thus, thesestatutes "require that changes be made to such traditionalrules or practices if necessary to permit a person withhandicaps an equal opportunity to use and enjoy adwelling." Shapiro v. Cadman Towers. Inc., 51 F.3d 328,333 (2d Cir.1995) (quoting H.R.Rep. No. 711, reprintedin 1988 U.S.C.C.A.N. 2173, 2186 (footnotes omitted)).
"Plaintiffs must show that, but for the accommodation,
they likely will be denied an equal opportunity to enjoythe housing of their choice." Smith & Lee Assocs., Inc.
V. City of Taylor, 102 F.3d 781, 795 (6th Cir.1996). Adefendant must incur reasonable costs and take modest,
affirmative steps to accommodate the handicapped as
long as the accommodations sought do not pose an unduehardship or a substantial burden. Shapiro, 51 F.3d at
334—35; see also Olmstead v. L.C. ex rel Zimring, 527
U.S. 581, 605 n. 16, 119 S.Ct. 2176, 144 L.Ed.2d 540
(1999); Salute v. Stratford Greens Garden Apartments, 136
F.3d 293, 300 (2d Cir.i998) (requiring landlord to accept
Section 8 housing tenants modified an integral aspect ofthe landlord's rental policy).
PlaintifTs argue that neither statute requires theexhaustion of administrative remedies and, therefore, the
district court erred in requiring plaintiffs to seek a variance
from the State Fire Marshal before bringing this claim.
Under Connecticut General Statute § 29-296, variations
or exemptions from the fire code may be granted by
the State Fire Marshal; similar authority is not vestedin the local Fire District. Appellees never sought an
accommodation. In fact, OHI's March 24, 1998 letter
notified Inspector Spreyer that Oxford House was notseeking an accommodation in this regard and that itsposition was that the code was facially invalid imder theFederal Fair Housing Act as it was being applied toOxford House-Jones Hill.
(18] (191 To prevail on a reasonable accommodationclaim, plaintiffs must first provide the governmentalentity an opportimity to accommodate them throughthe entity's established procedures used to adjust theneutral policy in question. *579 Oxford House-C v.City of St. Louis. 11 F.3d 249, 253 (8th Cir.1996);see also United States v. Vill. of Palatine. 37 F.3d1230, 1234 (7th Cir.1994) (holding that an administrative
procedure must be used unless plaintiff can show suchan action would be futile). Furthermore, requiring OH-JH to utilize facially neutral procedures to request an
accommodation from the fire code is not by itself a
failure to reasonably accommodate plaintiffs' handicaps.A governmental entity must know what a plaintiff seeksprior to incurring Uability for failing to affirmativelygrant a reasonable accommodation. It may be that oncethe governmental entity denies such an accommodation,neither the FHAA nor the ADA require a plaintiff to
exhaust the state or local administrative procedures. See
Bryant Woods Inn, Inc. v. Howard County, 124 F.3d597, 601 (4th Cir.1997) (holding that plaintiffs were notrequired to exhaust county administrative proceduresafter it received a final decision on its application for
a variance to zoning restrictions); see also 42 U.S.C. §
3613(a)(2) (permitting private enforcement of the FHA"whether or not a complaint [to the Secretary] has been
filed"). But a plaintiff must first use the proceduresavailable to notify the governmental entity that it seeks an
exception or variance from the facially neutral laws when8pursuing a reasonable accommodation claim. Here,
OH-JH specifically stated in its original letter it was notseeking an accommodation.
We also affirm the district court's decision that the
accommodation plaintiffs ultimately sought was providedtwo months after it was requested. Plaintiffs did not seek
an exception to the fire code until August 2001. Duringthe trial, the Deputy State Fire Marshal testified thatunder his interpretation of the fire code, seven individualscould live together and still be considered a single-familyresidence. The next day and before the close of thetrial, local Inspector Spreyer informed plaintiffs that allabatement procedures against OH-JH would end. Thus,
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2003)15 A.D. Cases 32, 27 NDLR P 83
the accommodation plaintiffs sought—being classified asingle-family residence—^was granted.
C. ClaimsAgainst the CityAs stated above, the district court found the City inviolation of the FHAA and ADA on all three availabletheories. Since the City did not contest the disparateimpact holding, we do not review the merits of thatclaim and only address the intentional discriminationand reasonable accommodation claims along with thedamages award.
1. Intentional Discrimination
[20] 121] The City argues thatthedistrict court's findingof discriminatory intent wascleariyerroneous. SeeHarrisTrust & Sav. Bank v. John Hancock Mut. Life Ins. Co.,302 F.3d 18, 26 (2d Cir.2002); Joseph v. New York CityBd. ofEduc.. 171 F.3d 87, 93 (2d Cir.1999). To establishintentional discrimination, plaintiffs must prove that amotivating factor behind theCity's refusal to classify OH-JH as a singlefamily household was the residents' status asrecovering drugaddicts andalcoholics. *580 See Vill. ofArlington Heights v. Metro. Housing Dev. Corp.. 429 U.S.252, 265—66, 97S.Ct. 555, 50L.Ed.2d450 (1977). Factorsto be considered in evaluating a claim of intentionaldiscrimination include: "(1) the discriminatory impact ofthe governmental decision; (2) the decision's historicalbackground; (3) the specific sequence ofevents leading upto the challengeddecision; (4)departures from the normalprocedural sequences; and (5) departures from normalsubstantive criteria." Tsombanidis I. 129 F.Supp.2d at 152(citing Vill of Arlington Heights, 429 U.S. at 266-68, 97S.Ct. 555). These factors are not exclusive or mandatorybut merely a framework within which a court conducts itsanalysis.
122j The district court's finding of intentionaldiscrimination was not clearly erroneous. The courtused the appropriate factors and the evidence presentedsupports its findings. Among other things, the districtcourt noted the history of hostility of neighborhoodresidents to OH-JH and their pressure on theMayor andothercity officials. Evidence supports thecourt's findingthat this hostility motivated the City in initiating andcontinumg its enforcement efforts. See Innovative HealthSys., Inc. V. City of White Plains, 117 F.3d 37, 49 (2dCir.1997) overruled on other grounds by Zervos v. VerizonNew York, Inc., 252 F.3d163,171 n.7(2d Cir.2001). There
was also evidence the City rarely took enforcement actionagainst boarding houses in residential neighborhoods.Furthermore, the City failed to acknowledge multipleletters sent by OHI thoroughly explaining OH-JH'spolicies and proceduresand itsargument that the residentshad a right to be treated as a single-family residence. Thecourt also cited the reaction of Michael McCurry, one oftwo Property Maintenance Code Officials for the City.McCurry expressed his personal dissatisfactionwith OH-JH and ordered Tsombanidis to evict the residents withoutany authority in the City Code. Finally, there was recordsupport for the court's finding of bias in the denial of OH-JH's request for a special use exception by the ZoningBoard of Appeals. We therefore affirm the district court'sconclusion that the city intentionally discriminated.
2. Reasonable Accommodation
[23] We also affirm the district court's finding thatplaintifTs requested a reasonable accommodation andthe City failed to grant it. The City is not requiredto grant an exception for a group of people to liveas a single family, but it cannot deny the variancerequest based solely on plaintiffs' handicap where therequested accommodation is reasonable. The district
court found that these plaintiffs operated much hke afamily. Additionally, there isevidence thatthese particularplaintiffs needed to live in group homes located insingle-family areas. See Tsombanidis II. 180 F.Supp.2d at293. The City concedes that, from a municipal servicesstandpoint, it would bear minimal financial cost fromthe proposed accommodation. While legitimate concernsof residential zoning laws include the integrity of theCity's housing scheme and problems associated with largenumbers of unrelated transient persons living together,such as traffic congestion andnoise, see Vill. ofBelle TerreV. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 39 L.Ed.2d 797(1974); Oxford House-C, 11 F.3d at 252, the City pointsto no evidence that thoseconcerns werepresenthere. Thedistrict court's finding wastherefore notclearly erroneous.
3. Damages
|24] We affirm thedistrict court's award ofcompensatorydamages andattorney's *581 fees initsentirety andpausebriefly to discuss its inclusion of a damages award for anattorney's involvementin the Zoning Board appeal. "Thestandardof review of an award of attorney's fees ishighlydeferential to thedistrict court. Because attorney's fees aredependent on the unique facts of each case, the resolution
WESTLAW 2017 Thomson Reuters. No claim to original U.S. Government Works.
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2003)
15 A.D. Cases 32,27 NDLR P 83
of this issue is committed to the discretion of the district
court." Baker v. Health Mgmt. Sys., Inc., 264 F.3d 144,
149 (2d Cir.2001) (quoting Mautner v. Hirsch, 32 F.3d 37,
39 (2d Cir.1994)). The district court's award of attorney's
fees, as well as its entire damages award, was not excessivebut rather carefuUy calculated and reasonable.
(251 The district court awarded plaintiffs' attorney's fees
for work on the Zoning Board appeal. Under 42 U.S.C.
§ 3613(c)(2) a court may award reasonable attorney's feesg
to the prevailing party in a private enforcement action.
We believe the district court correctly analogized this
case to Pennsylvania v. Delaware Valley Citizens' Council.478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986),
which interpreted similar statutory language employedin the Clean Air Act. Both the FHAA, 42 U.S.C. §
3613(c)(2), and section 304 of the Clean Air Act, 42
U.S.C. § 7604(d), allow a prevaiUng party to obtainattorney's fees for private enforcement "actions." Bothstatutes use only the term "action" instead of "action
or proceeding." In Delaware Valley, however, the Court
held that the Clean Air Act should be interpreted in a
manner similar to § 1988. 478 U.S. at 559-61, 106 S.Ct.
3088. Section 1988 permits attorney's fees "for time spenton administrative proceedings to enforce the civil rights
claim prior to the litigation." North Carolina DepH of
Transp. v. Crest Street Cmty. Council, Inc.. 479 U.S. 6,15, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986). To obtain the
fees, the administrative proceeding must be "useful and
of a type ordinarily necessary to secure the final resultobtained from the litigation." Delaware Valley. 478 U.S.
at 561, 106 S.Ct. 3088 (internal quotations omitted). The
Court employed the same reasoning for the Clean Air Act,
because like § 1988, the Clean Air Act was "enacted to
ensure that private citizens have a meaningful opportunity
to vindicate their rights." Id. at 559. The same can be said
for private citizen suits brought pursuant to the FHAA.Thus, an administrative proceeding could be included in
the calculation of reasonable attorney's fees if it is "useful
and ofa type ordinarily necessary to secure the final result
obtained from the litigation." Id. at 561.
As we have noted earlier, see supra at 578-79, plaintiffs
were required to use proper local procedures to request
a reasonable accommodation from a governmental entity
before bringing an action under the FHAA or ADA inthis regard. Plaintiffs used the appropriate channels toseek a variance in the zoning regulations and to cure
their ripeness problem. Thus, we agree with the districtcourt that the proceeding before the Zoning Board was
the type ordinarily necessary to secure the final result inan FHAA enforcement action brought under a reasonable
accommodation theory. Thus, we affirm its inclusion ofthis award.
III. Conclusion
For the above reasons, the district court's order ofJanuary
8, 2002 is hereby *582 AFFIRMED in part andREVERSED and REMANDED in part.
AU Citations
352 F.3d 565, 15 A.D. Cases 32, 27 NDLR P 83
Footnotes
1 in the amended complaint, plaintiff also alleged both defendants violated the Equal Protection Clause, and thus broughta claim under 42 U.S.C. § 1983. In its summary judgment decision, however, the district court dismissed this claim againstboth defendants and plaintiffs have not appealed that decision. See Tsombanidis I, 129 F.Supp.2d at 161-62.
2 More residents moved into OH-JH soon after the original lease was signed. Although the number of residents hasfluctuated since 1997, normally OH-JH has been operating at its capacity, which is seven residents. See TsombanidisII, 180F.Supp.2d at 271.
3 In December 1997, the Connecticut Fire Safety Code defined "lodging or rooming houses" asbuildings that provide sleeping accommodations for a total of 16 or fewer persons on either a transient or permanent
basis, with or without meals, but without separate cooking facilities for individual occupants except as provided inChapter 21.
Chapter 21 defined one and two-family dwellings as
buildings containing not more than two dwelling units in which each living unit is occupied by members or a singlefamily with no more than five outsiders, if any, accommodated in rented rooms.
In April 2000, the Code was amended to define "lodging or rooming houses" as
Tsombanidis v.West Haven Fire Dept., 352 F.3d 565 (2003)15 A.D. Cases 32, 27lgDLR^"83 ' " ~ —
buildings or portions thereof that do not qualify asaone or two-family dwelling that provide sleeping accommodationsfor a total of 16 but not fewer than seven persons on either a transient or permanent basis, with or without meals,but without separate cooking facilities for individual occupants except as provided in Chapter 21.
Chapter 21 wasamended todefine "one and two-family dwellings" asbuildings containing not more than two dwelling units in which each living unit is occupied by members of a singlefamily with no morethan sixoutsiders, ifany accommodated in rented rooms.
Tsombanidis II, 180 F.Supp.2d at 279-80.4 Due to the similarities between the statutes, we interpret them in tandem. See City of Middletown, 294 F.3d at 45-46.
Although there may be differences in the FHAA and ADA, we see no material differences presented in this case andthe parties have not identified any.
5 The Fire District does mention that most other cases also include zoning provisions, but it has not argued that the federalstatutes do not apply to safety codes.
6 As a justiciability issue, it is insufficient that defendants do not contest plainUffs' standing, but it is clear that bothTsombanidis, asowner of the home, and OHI, as the parent organization, will incur an injury and have standing in thiscase. See City of Middletown, 294 F.3d at 46 n. 2.
7 Again, in this case the two statutes are treated similarly.8 Such a holding is not in conflict with our earlier ruling in Huntington Branch, NAACP Town of Huntington, 689 F.2d
391 (2d Cir.1982) {Huntington I). In that case, we held that plaintiffs were not required to exhaust local remedies byfiling a formal application for rezoning. Id. at 393 n. 3. There, however, plaintiffs claimed the local entity's policies werediscriminatory on a disparate impact theory and did not assert failure to reasonably accommodate. Huntington II, 844F.2d at 928. This is not an exhaustion requirement but merely a requirement that plaintiffs first use the proper procedureto seek an exception or variance. If denied this request, they do not need to exhaust the administrative appeal process.
9 We reject the City's argument that we should analyze the availability of attorney's fees for wori< on the Zoning Boardappeal under 42 U.S.C. §3612(p). 42 U.S.C. §3612 applies only to enforcement actions brought by the Secretary ofHousing and Urban Development, not to private actions, as in the instantcase.
