Cases

Conditional Use Permits

• Sharpvisions, Inc. v. Borough of Plum, 475 F.Supp.2d 514 (W.D Pa. 2007)
  • The Borough of Plum subjected Sharpvisions, Inc., the operator of residential homes for disabled persons, to disparate treatment in violation of Fair Housing Act (FHA). The borough concluded that home was a “group home,” under its zoning code, and thus required the operator to seek special conditional use permit, even though only one resident lived in the home and the home satisfied all the elements of a “family” home as set forth in borough ordinance. The borough used the presence of staff as proxy for disparate treatment, and stated the presence of staff necessitated treating the home differently from a family residence. Fair Housing Act, § 804(f)(1)(B)
• See more Conditional Use Permit cases…

Special Use Permits

• See more Special Use Permit cases…

Area Variances

• Ward v. Cuyahoga Falls Bd. of Zoning 2015 Ohio Misc. Lexis 636 (Ct. Com. Pl. May 28, 2015).
  • Jonathan Ward was granted a permit to construct a shed on his property. The shed which was constructed exceeded the restrictions under the permit and Ward requested area variances to keep the sheds as is on the property.
  • The court in this case discusses that in situations where a zoning requirement is argued to be unreasonable, the applicant for an area variance must show practical difficulties. The court must determine whether the private interest outweighs the countervailing public interest to establish practical difficulties.
• See more Special Use Permit cases…

Use Variances

• Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th. Cir. 2002).
  • Oconomowoc operated group living homes for people with developmental disabilities, chronic mental illness, and traumatic brain injuries. However, the City of Milwaukee’s zoning code contained an ordinance requiring there be 2,500ft. between “community living arrangements.” Anyone operating such a community group home could apply for a variance, and Oconomowoc applied for such a variance. The City denied the variance, citing public safety concerns and increased administrative costs. Ultimately, the 7th Circuit held the ordinance denied disabled persons a reasonable accommodation because it denied them the equal opportunity to live in the community of their choice.
• See more Use Variance cases…

Vested Rights

• A Helping Hand, LLC v. Baltimore County, MD, 515 F.3d 356 (2008)
  • A Helping Hand, LLC (“Helping Hand“) was a for-profit methadone clinic located in Baltimore County, Maryland. Like many other methadone clinics, the Clinic provided methadone maintenance treatment to eligible, admitted patients, along with services such as counseling. Helping Hand asked the county whether it could operate such a clinic at a particular property.
  • The county told Helping Hand its counseling and treatment center was permitted “as of right,” and Helping Hand proceeded to obtain the necessary permits to operate the clinic. The same day Helping Hand received its permit, the County passed an ordinance requiring such clinics to apply for a special permit. While the ordinance contained a grandfathering exception, it only applied to centers already in operation. Since A Helping Hand was not in operation before the ordinance, the County moved to prevent the clinic from opening.
  • The Clinic filed an action on its own behalf, alleging two claims for violation of Title II of the ADA — one for intentional discrimination and one for disparate impact — and one claim that the County violated the Due Process Clause.
  • The Court found that the Clinic had standing to bring suit under Title II of the ADA. However, the Fourth Circuit remanded the case back to the District Court for a to determine whether the community (and therefore the county) regarded the Clinic’s clients as disabled, a required element of both ADA claims. Finally, the court held that Helping Hand had a vested right in operating its clinic at location it chose because it had a vested right to operate before the County enacted its ordinance.
• See more Vested Rights cases…

Grandfather Provisions

• Rourke v. Rothman, 448 Mass. 190, 859 N.E.2d 821 (2007).
  • A property owner wanted to build a single family residence on his property, but the commissioner denied the permit because the lot did not meet the minimum area and frontage required.
  • The court upheld the decision of the zoning board of appeals that the plot was buildable under the “grandfather” provision.
• See more Grandfather Provision cases…

Inclusionary Zoning

• Cal. Bldg. Indus. Ass’n v. City of San Jose, 61 Cal. 4th 435 (2015).
  • The City of San Jose’s inclusionary housing ordinance required new development projects to sell 15% of units at affordable prices.
  • The building association claimed that the ordinance was unconstitutional because the conditions resulting in exaction under the Takings Clause.
  • The court held that the validity of the ordinance depended on whether the restrictions were reasonably related to the broad general welfare purpose of increasing affordable housing and having the housing in economically diverse developments.
• See more Inclusionary Zoning cases…

Private Land Regulation

• Vorchheimer v. Philidelphian Owners’ Association, No. 17-1738, 2018 U.S. App. LEXIS 25148 (3d Cir. Sep. 5, 2018).
• Abdus-Sabur v. Hope Village, Inc., 221 F.Supp.3d 3 (D.C. Cir. 2016).
  • The plaintiff was a quadriplegic man at the end of a prison sentence. He entered a pre-release program, which allowed him to live in a halfway house for the last few months of his term. A privately-owned corporation offered such housing to eligible persons. The plaintiff required a wheelchair to move freely. However, the shower in the halfway house was not very friendly to the plaintiff’s wheelchair. After he fell trying to maneuver from his wheelchair to the shower bench, he was transferred back to the Correctional Treatment Facility. After several falls at the facility, the man requested different equipment that would allow him to more safely manage showering.
  • The D.C. Circuit held first, the plaintiff failed to state a claim against the private halfway house under Title II of the ADA. The halfway house was a private facility, not accessible to the general public, and not a place of public accommodation. Next, the court held that the plaintiff failed to state a claim under § 504 of the Rehabilitation Act because the private halfway house did not receive earmarked federal support. Finally, the D.C. Circuit determined the plaintiff could not bring a claim under the FHA because the statute only applies to “buyers or renters,” and pre-release prisoners do not fall into either category of individuals.
• See more Private Land cases…

Private Clubs

• Ring v. Boca Ciega Yacht Club, Inc., 2020 U.S. Dist. LEXIS 53685 (M.D. Fla. March 27, 2020).
  • The Boca Ciega Yacht Club, a nonprofit corporation that leases a clubhouse and grounds from the City of Gulfport, was considered a private club (and thus exempt for the ADA), after a member asserted the club failed to make a reasonable accommodation for her service animal.
• See more Private Clubs cases…

Housing

The following cases concern the ways Land Use Law and Disability apply to different forms of housing:

Condominiums

• Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277 (11th Cir. 2014)
  • Ajit Bhogita, a U.S. Air Force veteran, had post-traumatic stress disorder (PTSD). To cope with the immense stress, he obtained an emotion support dog. However, the condominium unit in which Bhogita lived prohibited dogs weighing more than twenty-five pounds. His dog weighed more than the allowed limit, so the Association asked him to remove the dog. After Bhogita’s doctor wrote the Association to detail why Bhogita needed his service dog, the Association requested more information.
  • Bhogita claimed the Association failed to provide a reasonable accommodation in violation of the FHA.
  • The court held the Association constructively denied Bhogita’s accommodation, that Bhogita provided enough evidence to support a jury’s finding that he had a disability, and Bhogita provided enough evidence to show how his dog affirmatively enhanced his quality of life and reduced the effects of his disability.
• See more Condominiums cases…

Single-family

• Caron Foundation of Florida, Inc. v. City of Delray Beach, 879 F.Supp.2d 1353 (S.D. Fla. 2012)
  • Caron ran alcohol and substance abuse rehabilitation centers in Palm Beach County, Florida. To expand their operations, Caron bought two single-family homes in the City of Del Ray Beach, FL. However, the community opposed the rehab centers and began to protest their operation. Zoning board members and the Mayor of Del Ray made discriminatory comments about the rehab centers, saying the centers were “a cancer” in the town. In response to the community’s opposition, the City amended its “transient use ordinance,” which limited the number of times a single-family home could be leased in a year. The new ordinance limited turnover to three times a year in single-family zoning districts and clarified that the turnover rate applied to the entire dwelling or any part thereof. Caron applied for an accommodation that would allow them to keep running its rehab centers. The City requested additional information from Caron, but Caron refused to provide certain information. Additionally, Caron did not provide any information as to whether allowing seven residents in one single family home was necessary for the homes to provide therapeutic relief to Caron’s patrons.
  • The court found Caron’s reasonable accommodation claim was not yet ripe because they did not provide the City all the requested information to make its decision. The transient ordinance was not facially discriminatory, but the court found substantial likelihood that Caron could successfully demonstrate the City acted with unlawful discriminatory intent.
• See more Single-family cases…

Multi-family

• Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008)
  • Gulf Coast Recovery, Inc. and its principal, Matthew Schwarz, operate six halfway houses for recovering substance abusers in the City of Treasure Island, Florida. Following complaints from neighbors about excessive noise, constant turnover, and the use of the properties for recovering addicts, the City investigated one of the houses and cited Schwarz for violating a City zoning ordinance that limited occupancy turnover. The City’s zoning code distinguishes residential from tourist dwellings and does not allow tourist dwellings in certain areas. The Schwartz homes were located in the areas that prohibit tourist dwellings and limit the number of times a property may be leased per year. The Board fined Schwartz $250 per day for the violation and cited two more of Schwartz and Gulf Coast Recovery, Inc.’s properties for the same violation. Gulf Coast operated a total of six halfway houses, and requested the turnover ordinance not apply to any of those properties
  • Schwartz, Gulf Coast Recovery, Inc., and their residents alleged that enforcement of the occupancy-turnover rule against the halfway houses amounted to disparate treatment, disparate impact, and a failure to reasonably accommodate the disabled under the ADA, FHA, and RHA. The court only heard the reasonable accommodation claim under the FHA.
  • Ultimately, the court could not determine whether Treasure Island had to accommodate four of the six halfway houses because a genuine issue of material fact may exist about whether living in the halfway houses is “necessary” to afford recovering substance abusers an “equal opportunity to use and enjoy” the halfway houses. Since this is an element that a plaintiff must show under 42 U.S.C. § 3604(f)(3)(B) of the FHA, the court remanded the case to the district court below.
• See more Multi-family cases…

Group Homes

• City of Edmonds v. Oxford House Inc., 514 U.S. 725 (1995)
  • The City of Edmonds’ zoning code contained a provision that required family dwelling units to house a “family,” defined as “persons related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons.” Under the code, Oxford House, which operates a group home for 10-12 adults recovering from alcoholism and drug addiction in a neighborhood zoned for single-family residences, was issued a citation. Oxford House claimed the City violated the Fair Housing Act (FHA), which prohibits discrimination in housing against persons with handicaps, because the City failed to make reasonable accommodations to allow the group home to operate in a single-family zone.
  • The City of Edmonds sought a declaration that the FHA did not apply to the city’s zoning code because the “family provision” only limited the number of occupants permitted in a certain zone. Oxford House argued that the code section was not a maximum occupancy provision and therefore not exempted from the FHA.
  • The court held that the provision was a family composition rule and was not a maximum occupancy restriction exempt from FHA scrutiny. The definition of family may have capped the number of unrelated persons allowed to occupy a single-family dwelling at five, but it did not cap the total number of people permitted to live in such a dwelling. The court also said the ordinance was intended to foster the “family character of a neighborhood,” so it described family living arrangements, not living space per occupant.
• See more Group Homes cases…

Rehabilitation Facility

• Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565 (2nd Cir. 2005)
  • Mrs. Tsombanidis wanted to open an “Oxford House” facility in Connecticut. Oxford Houses are rehabilitation facilities that believe persons suffering from alcoholism and drug addiction will recover quicker if they live with others who are trying to get clean. In order to operate such facilities, Tsombanidis purchased a two-story house in a residential area of detached single-family houses in West Haven, Connecticut. She then entered into a lease with four persons recovering from alcohol and drug addictions. However, the homes violated the West Haven zoning code prohibiting the number of persons who may reside in a single-family residential home. After neighbors reported the illegal use to city officials, a City official inspected the properties and determined the properties violated the zoning code and ten other municipal ordinances. A City official issued a citation ordering Tsombanidis to pay a fine of $ 99.00 for every day she was in violation of the zoning and property regulations. Furthermore, a Fire Department official determined that under the Connecticut Fire Code, the Oxford Houses were “lodging or rooming houses,” and the fire code was not subject to the FHA or ADA. The Fire Marshal sent Tsombanidis a final notice of fire safety hazards, stating that imprisonment of up to six months and/or criminal fines from $ 200 to $ 1,000 would be imposed in the event she did not comply.
  • Tsombanidis brought claims against the Fire District and the City alleging they both violated the FHAA and ADA by intentionally discriminating against plaintiffs, implementing policies that disparately impacted plaintiffs, and failing to make reasonable accommodations.
  • First, the Second Circuit found, as a matter of law, that plaintiffs failed to establish a prima facie claim of disparate impact against the Fire District and did not have a claim for failure to grant a reasonable accommodation.
  • The court also upheld the District Court’s finding that the City intentionally discriminated against the Tombanidis properties and their residents.
• See more Rehabilitation Facility cases…

Misc. Issues

Sidewalks

• Hamer v. City of Trinidad, Civil Action No. 16-cv-02545-NYW, 2020 U.S. Dist. LEXIS 29844 (D. Colo. Feb. 21, 2020)
  • The plaintiff, Mr. Hamer, alleged the City’s noncompliant sidewalks violated the ADA. The City argued that sidewalks are not services, programs, or activities, so the ADA doesn’t provide Mr. Hamer with a claim. However, the court determined that that statutory interpretation of services leads to the conclusion that sidewalks are services under the ADA. The City also argued that an undue financial burden would be caused because Mr. Hamer sought to have an immediate remedy for all City sidewalks to be fixed in an all-or-nothing claim. However the Court found that the city did not meet their burden of showing an undue burden.
• See more Sidewalks cases…

Parking

• Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995)
  • Plaintiff apartment owner suffered from a disability and lived in defendant corporation’s building. Plaintiff filed a complaint alleging violations of the Fair Housing Amendments Act (FHAA), 42 U.S.C.S. § 3613, and a motion that sought a preliminary injunction requiring that defendant corporation and defendant official provide her with a parking space in her building’s garage regardless of their traditional waiting list policy.
  • The court held in favor of plaintiff apartment owner, and affirmed the order granting plaintiff’s motion for a preliminary injunction entered in the lower court. The court found that defendants had discriminated against plaintiff in violation of the Fair Housing Amendments Act, that nearby parking was a substantial factor in plaintiff’s use of her dwelling, and that changes had to be made to defendant corporation’s traditional parking rules.

Transportation

• Baughman v. Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012).
  • A disabled person claimed that she had a physical impairment which causes her to rely upon a power scooter or wheelchair for her mobility. In her lawsuit against the Disney World’s theme park, she claimed that using a wheelchair would have been impractical, painful, and difficult. That the disabled person’s earlier statements were not made under oath did not matter. Her ADA claim was analyzed on the presumption that she could use a wheelchair. The theme park argued that because the disabled person can access the theme park by using a wheelchair or scooter, the two-wheeled personal transportation system she wanted to use was not necessary for her to use the park.
  • The 9th Circuit ejected this argument holding that the ADA guaranteed more than mere access to public facilities; it guaranteed full and equal enjoyment under 42 U.S.C.S. § 12182(a). The theme park could still prove that the system the disabled person wanted cannot be operated safely in its parks.

Snow

•  Papen v. Karpow, 56 Or. App. 673 (1982).
  • A pedestrian in an Oregon county filed an action against the owner and the municipality for damages and injuries sustained when she slipped and fell on an icy sidewalk attached to the owner’s property in the municipality.
  • The lower court held that the municipality failed to impose a duty and liability on abutting landowner.
• See more Snow cases…

Historic Preservation

•  Gibbons v. Historic Dist. Comm’n, 285 Conn. 755 (2008).
  • The owner of a property located in a historical district of the town sought to move an outbuilding, attach it to the house, and make additional alterations to the main house.
  • The application was denied on the grounds that the proposed relocation of the outbuilding would damage the historical integrity of the historical district.
  • The court found that objectively the outbuilding was not found to have any historic significance of its own.
• See more Historic Preservation cases…

Emotional Support & Service Animals

• Furbee v. Wilson, No. 19A-PL-1756, 2020 Ind. App. LEXIS 122 (Ct. App. Mar. 30, 2020)
  • After a tenant did not provide additional requested information beyond a doctor’s letter to a landlord who needed to make a determination as to whether to accommodate a tenant’s emotional support animal, the tenant decided to bring the emotional-support animal into the apartment and was fined and ultimately evicted.
  • The tenant argued her reason for not responding to the landlord’s request was because the request went beyond what was permitted to be asked.
• Boffoli v. Swalko, No. 3:16-cv-01463-YY, 2018 U.S. Dist. LEXIS 55981 (D. Or. Jan. 22, 2018).
  • Anastasia Boffoli, tenant, brought a suit against her landlord, Mark Swalko, for violating the Federal Fair Housing Act by discriminating against her son refusing to make reasonable accommodations in the rules when her son needed the support of a companion pet.
  • Mark Swalko’s motion for summary judgment was denied due to an issue of material fact as to whether the tenants claims were sufficient to prevail on a claim under the FHA.
• See more Emotional Support & Service Animals cases…

Physical Barriers

• Disabled in Action v. City of New York, No. 16-CV-08354 (VEC), 2020 U.S. Dist. LEXIS 19666 (S.D.N.Y. Feb. 4, 2020).
  • In 2015, the NYPD adopted a public safety approach called neighborhood policing to help engage and connect the community with local police officers. Individuals would we welcome into the station to get to know local police officers. Plaintiffs claim that due to pervasive architectural barriers across NYPD’s 77 precinct stations, mobility impaired individuals are excluded from critical public-safety services and programs offered from stations.
• See more Physical Barriers cases…