Saturday, July 07, 2012

Tenth Circuit Holds City Did Not Violate ADA or FHA by Denying Zoning Variance to Residential Treatment Center

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Cinnamon Hills Youth Crisis Center, Inc. v. Saint George City.  Cinnamon Hills had run a residential treatment facility in St. George, Utah, for some time.  It sought to create a new residential step-down program that would take up the top floor of a motel that the organization owned.  The city refused, however, to waive two provisions of its zoning code:  one that prohibited the occupancy of a motel room by an individual for more than 29 days, and another that prohibited residential uses in certain commercial zones.  Cinnamon Hills sued in the United States District Court for the District of Utah, alleging violations of the ADA, the Rehabilitation Act, and the Fair Housing Act.  The district court granted summary judgment to the city.

The Tenth Circuit affirmed.  The court concluded that the zoning provisions at issue neither were intentionally discriminatory nor had been shown to have a disparate impact on people with disabilities.  The court also concluded that waiving the 29-day and no-residential-uses-in-commercial-zones rule would not be a reasonable accommodation.  The relevant discussion from the court's opinion:
Of course, in some sense all reasonable accommodations treat the disabled not just equally but preferentially. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002). Think of the blind woman who obtains an exemption from a “no pets” policy for her seeing eye dog, or the paraplegic granted special permission to live on a first floor apartment because he cannot climb the stairs. But without an accommodation, those individuals cannot take advantage of the opportunity (available to those without disabilities) to live in those housing facilities. And they cannot because of conditions created by their disabilities. These examples show that under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining “the same . . . opportunities that those without disabilities automatically enjoy.” Id. (second emphasis added).

But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense. So, for example, a city need not allow the construction of a group home for the disabled in a commercial area where nobody, disabled or otherwise, is allowed to live. See Bryant Woods Inn, 124 F.3d at 604; Wisconsin Cmty. Serv., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006) (en banc); Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 152 (2d Cir. 1999).

And recognizing this necessarily marks the end of the road for Cinnamon Hills’s reasonable accommodation request. As we have already seen, no one, disabled or otherwise, is generally allowed to stay in a motel for more than 29 days or to reside in a C-3 commercial zone. To be sure, and as we have also seen, the city provides some limited exceptions to these rules (for law enforcement personnel and the like). But there is no evidence that the disabled, because of their disabilities, are any less able to take advantage of these exceptions than the non-disabled. Instead, the evidence shows that in seeking to occupy the top floor of a motel in a commercial zone, Cinnamon Hills is seeking an opportunity that isn’t available to others rather than one that is. And that’s a result the statute does not compel.
As in a lot of ADA/FHA zoning cases, the court here essentially collapses the reasonable accommodation inquiry into an inquiry into whether there is intentional discrimination.  There is an interesting law review note to be written comparing the analysis in zoning cases brought under the ADA and Fair Housing Act to that in zoning cases brought by religious groups under the First Amendment or RLUIPA.

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