Ability Housing's COU appeal gets statewide attention

Started by sheclown, October 12, 2015, 11:37:47 AM

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sheclown

#15
October 24, 2015, 07:45:34 AM
A. Statutory and Regulatory Provisions
1.
It is unlawful to discriminate against any person in the terms, conditions, or
privileges of rental of a dwelling, or in the provision of services or facilities in
connection with a dwelling, because of the disability
-  of that person. 42
U.S.C. § 3604(0(2); 24 C.F.R. § 100.202(b) (2012).

Ability Housing houses disabled persons.

2.
Refusal to make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford an
individual with a disability an equal opportunity to use and enjoy a dwelling,
constitutes unlawful discrimination. 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. §
100.204 (2012).

The city uses the essence of Permanent Supportive Housing to refuse this project.  Supportive Housing is necessary and is "reasonable accommodation".

3.
A person has a disability under the Fair Housing Act if he has a physical or
mental impairment which substantially limits one or more major life activities.
42 U.S.C. § 3602(h); 24 C.F.R, §§ 100.20, 100.201 (2012)

People who suffer from Mental illness are a protected class.

sheclown

#16
October 24, 2015, 12:08:02 PM Last Edit: October 24, 2015, 02:07:09 PM by sheclown
Calvin Burney based his decision on the fact that Ability Housing would house people with special needs (ie disabled people) and that to house these people is akin to a group care home.  The Springfield Overlay specifically prevents new group care homes from opening in Springfield

QuoteIn May, the city of Jacksonville contended, according to WJCT, "that the facility's intended use is 'akin' to that of a rooming house or group care home and similar activities." That constitutes "special use" housing, which is prohibited in the area under city zoning laws.

from the JOINT STATEMENT OF THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.  Group Homes.  Local Land Use and the Fair Housing Act

http://www.justice.gov/crt/joint-statement-department-justice-and-department-housing-and-urban-development-1
.  .  .  . 
QuoteQ. 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 government officials and neighborhood residents is that certain jurisdictions, governments, or particular neighborhoods within a jurisdiction, may come to have more than their "fair share" of group homes. There are legal ways to address this concern. The Fair Housing Act does not prohibit most governmental programs designed to encourage people of a particular race to move to neighborhoods occupied predominantly by people of another race. A local government that believes a particular area within its boundaries has its "fair share" of group homes, could offer incentives to providers to locate future homes in other neighborhoods.

However, some state and local governments have tried to address this concern by enacting laws requiring that group homes be at a certain minimum distance from one another. The Department of Justice and HUD take the position, and most courts that have addressed 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 would be inconsistent with the objective of integrating persons with disabilities into the community. Especially in the licensing and regulatory process, it is appropriate to be concerned about the setting for a group home. A consideration of over-concentration could be considered in this context. This objective does not, however, justify requiring separations which have the effect of foreclosing group homes from locating in entire neighborhoods.

So, the "Fair Share" argument only works in the context of the benefit/disadvantage to the disabled residents -- whether they are in a desirable location.  It does not apply to the neighborhoods complaints about too many disabled people in their midst.

The city could have given Ability Housing a financial incentive to move their plans elsewhere.  This would not have been against Fair Housing.  That certainly would have been the cheaper avenue.

QuoteQ. Can a local government consider the feelings of neighbors in making a decision about granting a permit to a group home to locate in a residential neighborhood?

In the same way a local government would break the law if it rejected low-income housing in a community because of neighbors' fears that such housing would be occupied by racial minorities, a local government can violate the Fair Housing Act if it blocks a group home or denies a requested reasonable accommodation in response to neighbors' stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision-makers are not themselves personally prejudiced against persons with disabilities. If the evidence shows that the decision-makers were responding to the wishes of their constituents, and that the constituents were motivated in substantial part by discriminatory concerns, that could be enough to prove a violation.

Of course, a city council or zoning board is not bound by everything that is said by every person who speaks out at a public hearing. It is the record as a whole that will be determinative. If the record shows that there were valid reasons for denying an application that were 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 them as pretextual, and to find that there has been discrimination.

For example, neighbors and local government officials may be legitimately concerned that a group home for adults in certain circumstances may create more demand for on-street parking than would a typical family. It is not a violation of the Fair Housing Act for neighbors or officials to raise this concern and to ask the provider to respond. A valid unaddressed concern about inadequate parking facilities could justify denying the application, if another type of facility would ordinarily be denied a permit for such parking problems. However, if a group of individuals with disabilities or a group home operator shows by credible and unrebutted evidence that the home will not create a need for more parking spaces, or submits a plan to provide whatever off-street parking may be needed, then parking concerns would not support a decision to deny the home a permit.

The only way the city can take the neighborhood's fears and concerns in consideration, without violating Fair Housing, is if the project has legitimate areas of concern which have nothing to to do with a resident's disability.  The fact that the building is currently multifamily and would have continued to be multifamily after Ability Housing took over control, shuts down that argument.  However, the increased traffic by the providers, miscellaneous providers, of the supportive services was brought up as a concern.  In this instance, any increase in traffic would certainly qualify for a reasonable accommodation under ADA is it would be tied directly to the residents' disability

http://www.justice.gov/crt/joint-statement-department-justice-and-department-housing-and-urban-development-1
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