“End the unnecessary exclusion of persons with handicaps from the American mainstream”[1]: Safe Harbor Retreat’s Efforts to Ensure Uniform Application of the Fair Housing Act
Editor-in-Chief: Patricia E. Salkin, Esq.
Managing Editor: Emily Howard, Esq.
Under the Fair Housing Act, when does the denial of an applicant’s request for a reasonable accommodation become justiciable? The answer to this question can either support the efforts of disabled individuals to assert their rights in the housing context—or create roadblocks that make such efforts impossible.
Last spring, our firm, Campolo, Middleton & McCormick, LLP in Ronkonkoma, New York, filed a petition with the United States Supreme Court on behalf of our client, Safe Harbor Retreat, LLC, an executive retreat for those in recovery from alcohol and substance abuse addiction. Our petition sought to have the Court answer this question and settle a split among three Circuit Courts. The split undermines one of the principal goals of the Fair Housing Act amendments of 1988, namely, to remove obstacles that prevent handicapped persons from living “in the residence of their choice in the community.”
In a blow to disabled individuals seeking to exercise their rights under the FHA, the petition for a writ of certiorari was ultimately denied, further exposing a Circuit Court split on the issue of justiciability and essentially sanctioning a reality in which how difficult it is for handicapped individuals to assert their rights depends on where they live.
FACTUAL BACKGROUND
How did this case wind up on a clerk’s desk at the United States Supreme Court?
The story begins in 2009, when the founder of Safe Harbor met with the Supervisor of the Town of East Hampton, Suffolk County, New York, a Hamptons community that enjoys the glitz of celebrity and wealth. Safe Harbor proposed opening an “executive retreat” in the Town for persons suffering from alcoholism and other forms of substance abuse. The founder’s idea was to locate the retreat in a leased house in a section of the Town zoned A-3 residential. The supervisor expressed his support and Safe Harbor was eventually referred to the Town’s Senior Building Inspector.
After the building inspector toured the Safe Harbor premises in February 2010, Safe Harbor’s founder summarized his plans for the residence in a letter to the building inspector. Among other things, the letter indicated that the residents would reside in the facility “as a family unit,” for which the Town would need to provide Safe Harbor a reasonable accommodation.
In a March 4, 2010 letter, the building inspector determined that Safe Harbor met the criteria of “functioning as a family unit” under Town Code sections 255-1-20 (Family) and 255-8-50 (Occupancy by a family). The Town supported Safe Harbor’s mission and location, and Town officials wrote letters to the New York State Office of Alcoholism and Substance Abuse Services (OASAS) in support of the state licensing process.
Safe Harbor received its “Community Residence” operating certificate from OASAS and opened the residence in November 2010. Various Town officials visited the premises and made no mention of any zoning violations.
In September 2011, without conducting any investigation or on-site visits, the building inspector reversed his decision and wrote to Safe Harbor that “upon further review…. Your facility could possibly be classified as a Semi-Public Facility, which would require administrative review for a Special Permit.” Safe Harbor contested this sudden reversal and renewed its request to be considered the functional equivalent of a family under the same Code.
Remarkably, the building inspector wrote to Safe Harbor in July 2012 that he would not grant the request for the residents of Safe Harbor to be considered the functional equivalent of a family under the Code (presumably as a result of pressure some elected officials were receiving from local residents). Following the procedure set forth in the Code, Safe Harbor appealed the building inspector’s reversal to the Town Zoning Board of Appeals in August 2012, again seeking a reasonable accommodation.
In March 2013, the ZBA held a full public hearing and took extensive testimony. By a 4-1 decision dated June 6, 2013, the ZBA—the final arbiter of the determinations of the building inspector pursuant to the Town Code—denied Safe Harbor’s appeal and upheld the building inspector’s reversal without any analysis of Safe Harbor’s entitlement to a reasonable accommodation.
In a written dissent, the ZBA Vice Chairman stated that the building inspector is empowered to apply only the existing Code as written, not add standards or definitions to it. He found that the building inspector’s reversal should not “be condoned or approved by the ZBA,” as this action went “well beyond the scope of [his] duties…and instead a reasonable and fair accommodation should have been provided to the applicant.”
After the ZBA’s decision was issued, the Town of East Hampton Division of Public Safety issued a criminal violation to Safe Harbor, which is still pending.
The Town Code provides no further avenue for challenging the denial of a reasonable accommodation. Indeed, the Town Code empowers the building inspector to render a determination in the first instance as to the status of a group seeking to be the functional equivalent of a family. East Hampton, NY, Code § 255-1-20. The Code vests jurisdiction in the ZBA to hear and decide, inter alia, “[a]pplications brought by aggrieved persons from interpretations…made by the Building Inspector,” as well as determinations as to status of family (on appeal from a decision by the building inspector) and relating to the Americans with Disabilities Act (“ADA”). Id. §§ 255-8-30(A)(1), 255-8-32, 255-8-33. No other individual, board, or department has this jurisdiction or the ability to render a decision on the denial of a reasonable accommodation, making the determination of the ZBA the Town’s final determination on the matter. After the ZBA rendered its decision, Safe Harbor simply had nowhere else to go at the municipal level.
Having exhausted all options to challenge the withdrawal of the reasonable accommodation at the municipal level, Safe Harbor filed suit in federal court on March 28, 2014, alleging violations of the Americans with Disabilities Act (“ADA”) and the Fair Housing Act. The district court dismissed the action as unripe on the ground that Safe Harbor had not yet applied for and been denied a “special permit” to operate as something other than the functional equivalent of a family, the reasonable accommodation for which it had applied. Safe Harbor Retreat, LLC v. Town of East Hampton, New York, et. al., 2015 WL 918771 (2015). On appeal, the Second Circuit upheld the ruling despite acknowledging that the ZBA’s decision regarding the withdrawal of the reasonable accommodation was final. Safe Harbor Retreat, LLC v. Town of East Hampton, New York, et. al., 629 Fed.Appx. 63 (2015). Safe Harbor’s subsequent petition for a rehearing en banc was also denied.
Unfortunately, the implications of the Second Circuit’s decision, and of the Supreme Court’s refusal to hear the case, extend well beyond Safe Harbor. Under the same facts, if Safe Harbor had been denied the reasonable accommodation in the Fourth or Fifth Circuits, its claims would have been deemed ripe for judicial review. This contradiction essentially means that depending on where in the United States a disabled individual lives, he or she will have a longer road to pursuing the rights guaranteed under the Fair Housing Act.
THE LEGAL ISSUES
The Circuit Court split that Safe Harbor exposed is a grave problem. Our Petition requested a writ of certiorari to review the Second Circuit’s determination on the basis that, if left to stand, the decision would mean that the justiciability of a denial of a reasonable accommodation would vary depending on the Circuit within which a handicapped person resides. Further, we emphasized that the case represented a frequently recurring issue of substantial importance.
THE FOURTH AND FIFTH CIRCUITS ARE IN CONFLICT WITH THE SECOND CIRCUIT REGARDING WHEN A DENIAL OF A REASONABLE ACCOMMODATION IS RIPE FOR JUDICIAL REVIEW
A. In the Fourth and Fifth Circuits, the Denial of a Reasonable Accommodation Is Justiciable the Moment the Accommodation Is Denied
When a district court may entertain a challenge to a municipality’s denial of a reasonable accommodation under the FHA remains a significant and unresolved question of federal law on which lower courts disagree. In the Fourth and Fifth Circuit Courts of Appeals, an applicant’s challenge is ripe no later than the moment at which the reasonable accommodation is denied.
In the Fourth Circuit, an Applicant May Seek Immediate Judicial Review of a Denied Reasonable Accommodation
In Bryant Woods Inn, Inc. v. Howard County, Maryland, Appellant, the owner of a for-profit group home for persons suffering from Alzheimer’s disease, sued Howard County under the FHA for failing to make a reasonable accommodation to allow it to expand its operations from eight to fifteen residents. 124 F.3d, 597, 599-600 (4th Cir. 1997). Appellant filed an application for a zoning variance, and following a public hearing the planning board denied the application. Id. at 600. The planning board then denied appellant’s motion for reconsideration. Id. at 601.
Under local law, the owner of the group home could have appealed the planning board’s decision to the Howard County Board of Appeals. Id. Instead, he opted to file a federal district court action alleging that the county discriminated against the home and its residents by failing to make a reasonable accommodation in violation of the FHA. Id. On appeal, Howard County argued, inter alia, that appellant’s claims were not ripe because the group home failed to exhaust its state administrative remedies. Id.
The Fourth Circuit ruled that appellant’s claim was ripe, noting that an issue is “sufficiently concrete for judicial review once an accommodation is denied.” Id. at 602. Contrasting takings claims, “which do not ripen until post-decisional procedures are invoked without achieving a just compensation,” id. (citing Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)), with FHA claims,[2] the Fourth Circuit emphasized that a violation of the latter “occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.” Id.[3]
Had Safe Harbor’s challenge to the withdrawal of the building inspector’s reasonable accommodation been filed within the Fourth Circuit, it would unquestionably have received a ruling on the merits.
In the Fifth Circuit, a Denial Is Also Subject to Immediate Review but Denial May Be Actual or Constructive
Three years after Bryant, the Fifth Circuit highlighted that “as to the ‘fitness of the issues for judicial decision,’ we agree with the Court of Appeals for the Fourth Circuit that ‘[u]nder the Fair Housing Act … a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.’” Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000) (citing Bryant, 124 F.3d at 602).
In Groome, the plaintiff-appellee, Groome Resources, a for-profit operator of group homes for individuals afflicted with Alzheimer’s disease, applied for a reasonable accommodation to allow its proposed group home for five non-related individuals to operate as a single-family dwelling in a residential area. Id. at 196. Groome Resources had previously applied for and was granted a similar accommodation on behalf of another home in the same municipality. Id. While the municipality had no formalized procedure for granting or denying reasonable accommodations, Groome Resources’ previous request had been granted within 45 days, the “target timetable” of the Parish of Jefferson’s Department of Inspection and Code Enforcement (“DICE”). Id.
Both the Parish Attorney’s Office and DICE recommended approval of the application. Id. However, after local community organizations voiced opposition to Groome Resources’ application, municipal officials refrained from taking any action on the accommodation request. Id. at 196-97. After providing the Parish with additional, requested information, Groome Resources filed suit in federal court seeking “to enjoin[] and restrain[] the [Parish] from withholding approval of [the] Application for Reasonable Accommodation.” Id. at 197.
In response, the Parish argued, inter alia, that Groome Resources’ petition was premature. Id. Following an evidentiary hearing, the district court held that the municipality had purposefully delayed taking action and thus to “deny plaintiff’s claim as premature would effectively frustrate the clear mandates of the Fair Housing Act.” Id. (internal quotations omitted).
The Fifth Circuit affirmed the district court’s order that the issue was ripe for review, explicitly adopting the holding of Bryant. Id. at 199 (“[W]e agree with the Court of Appeals for the Fourth Circuit that ‘[u]nder the Fair Housing Act … a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.’”). The Fifth Circuit went further, however, finding that the case was ripe for judicial review notwithstanding the fact that the municipality had simply delayed ruling on the request for an accommodation. Thus, the court ruled, denial of a reasonable accommodation “can be both actual or constructive, as an indeterminate delay has the same effect as an outright denial.” Id. The Court emphasized that “[n]umerous courts have stressed that housing discrimination causes a uniquely immediate injury. Such discrimination, which under the FHA includes a refusal to make reasonable accommodations, makes these controversies ripe.” Id. at 200.
The building inspector’s withdrawal of the reasonable accommodation granted to Safe Harbor would have been immediately justiciable in district court in the Fourth or Fifth Circuits. Further, the determination by the building inspector, affirmed by the ZBA, that Safe Harbor had to seek a special permit, and the variance such special permit would require, without considering whether Safe Harbor’s request to be the functional equivalent of a family was a reasonable accommodation required by the FHA, provided sufficient cause pursuant to Groome for a district court within the Fifth Circuit to determine the FHA claim was ripe for judicial review. Because Safe Harbor was compelled to bring its claim within the Second Circuit, however, its ripeness arguments, which were based on Bryant and Groome, were not even considered by the district court or the Second Circuit. Thus, solely because this case and controversy arose within the Second Circuit, Safe Harbor was deprived of its right to a determination on the merits of its FHA claim.
The Supreme Court has held that “[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). In City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1985), a case similar to Safe Harbor, certiorari was granted to review the Ninth Circuit’s holding that the City of Edmonds’ definition of who may reside in its single-family zone, which included “a group of five or fewer persons who are not related by genetics, adoption, or marriage,” was not exempt from the FHA under § 3607(b)(1) as a “reasonable … restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling.” The Ninth Circuit’s determination conflicted with that of the Eleventh Circuit. In that instance, the Supreme Court granted certiorari to resolve the conflict, and affirmed the determination of the Ninth Circuit.
Oxford House rented a house in a single-family zone and proceeded to operate a group home for 10 to 12 adults recovering from alcoholism and drug addiction without first seeking a variance from the definition of “family” in the City code. The City issued criminal citations, and Oxford House then requested permission to continue to house more than five adults as a reasonable accommodation pursuant to the FHA. The City declined to permit the number to be increased, but passed an ordinance permitting such group homes as of right in multi-family zoned areas of the City. The City then sought a declaratory judgment in district court that the reasonable accommodation provisions of the FHA did not apply. Even though Oxford House never sought a variance from the City, in that instance, the Supreme Court did not question whether the lower courts lacked jurisdiction because the case was not ripe.
B. In the Second Circuit, an Applicant Denied a Reasonable Accommodation Who Has Appealed That Denial to the Highest Authority in the Municipality and Received a Final Decision Denying Its Request Is Not Permitted to Challenge the Denial Until It Exhausts All Administrative Remedies
In contrast with both the Fourth and Fifth Circuits, in the Second Circuit an FHA claim for the denial of a reasonable accommodation is not ripe until the court “can look to a final, definitive position from a local authority to assess precisely how [the applicant] can use their property.” Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 121 (2d Cir. 2014) (quoting Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005)). Unlike Bryant and Groome, which each emphasize the unique injuries that can arise in fair housing cases as a basis for immediate review, Sunrise Detox, relied upon by the Second Circuit in the Safe Harbor case, requires finality or the establishment of futility. 769 F.3d at 124 (“We thus see no basis in the record to apply the futility exception to the final-decision requirement in this case.”).
In Sunrise Detox, a drug and alcohol detoxification facility applied for a reasonable accommodation to operate as a “community residence.” Id. at 119. The Commissioner of the city’s Building Department denied the accommodation and the city could take no further action until Plaintiff applied for a variance or appealed the determination. Id. Upon denial of its reasonable accommodation, the plaintiff forewent either alternative and filed suit. The Second Circuit ultimately determined that in light of the plaintiff’s “midstream abandonment of the zoning process, its claim is not yet ripe.” Id. at 124.
The Second Circuit relied almost exclusively on its decision in Sunrise Detox when upholding the district court’s order dismissing Safe Harbor’s complaint as unripe. It did so without consideration of either the Fourth or Fifth Circuit Courts of Appeals precedents which would have required the district court to determine the FHA issue on the merits.
According to the Second Circuit, Safe Harbor’s claims were not ripe because—even after the ZBA issued a final determination and denied the appeal of the building inspector’s decision to withdraw the reasonable accommodation to operate as the functional equivalent of a family—Safe Harbor failed to apply for a “special permit” to operate as a “Semi Public Facility,” a different category than that for which it had originally applied. When the building inspector withdrew his earlier determination that Safe Harbor’s operation was proper within the zone because the residents were the functional equivalent of a family, a determination made with full knowledge of the services offered by Safe Harbor, the building inspector stated that “[y]our facility could possibly … be classified as a Semi-Public Facility, which would require administrative review for a Special Permit” (emphasis added). 629 Fed.Appx. 63.
The Second Circuit’s order explicitly conceded that “[t]he Zoning Board’s decision was final as to whether Safe Harbor is the functional equivalent of a family or a semi-public facility.” 629 Fed.Appx. at 65. Yet without any reference to the divergent decisions in the Fourth and Fifth Circuits, or even to the need to make a determination whether the finding that Safe Harbor’s operation was the functional equivalent of a family was a reasonable accommodation required by the FHA, the Second Circuit reasoned that although Safe Harbor “is correct that ‘[t]he door has definitively closed on the issue of whether [East Hampton] will treat Safe Harbor’s residents as the functional equivalent of a family,’ . . . when there is another, perfectly good door nearby . . . Safe Harbor must try to open it before running to federal court.” Id.
C. After Safe Harbor, the Justiciability of a Denial of a Reasonable Accommodation Varies Depending Upon the Circuit Within Which a Handicapped Person Resides
The FHA is a federal law requiring uniform interpretation. When seeking review of a denial of a reasonable accommodation, where an applicant lives should not determine the justiciability of his or her claim. Unfortunately, the Supreme Court’s refusal to take this case perpetuates this reality.
Safe Harbor not only obtained a complete denial of its request for a reasonable accommodation from the building inspector, but it took the further step of appealing the denial to the ZBA, which affirmed the denial following a full hearing. Had Safe Harbor’s FHA challenge occurred in the Fourth Circuit, or within any of the district courts outside of the Fourth Circuit which relied on Bryant, the district court necessarily would have found the case to be ripe.[4]
Further, Safe Harbor undoubtedly also would have had an immediately justiciable claim under Groome and its progeny had its reasonable accommodation been denied in the Fifth Circuit, which finds justiciability whether the FHA claim is actual or constructive.
The ZBA in the instant case, after a full public hearing, denied Safe Harbor’s request for a reasonable accommodation pursuant to the FHA. It did so without any mention that it was presented with an FHA reasonable accommodation case. Additionally, it went a step further and found that Safe Harbor’s operation constituted a “semi-public facility” which would require Safe Harbor not only to obtain a special permit, but to also obtain a variance from the setback requirements, which were twice as large as those in the residential zone where Safe Harbor operated for almost a year without complaint. Safe Harbor vigorously contested that it could be considered a semipublic facility as defined in the Town Code.[5] The denial and/or delay in making a determination on the request for a reasonable accommodation by the Town of East Hampton would have provided a basis for determining that the action was ripe for judicial review in the Fifth Circuit, or in the district courts which have followed the Groome decision.[6]
Neither the district court nor the Second Circuit mentioned Bryant or Groome when making their determinations that Safe Harbor’s complaint was not ripe for review. It is essential that the lower courts apply a uniform standard when determining ripeness of FHA and ADA reasonable accommodation claims. Sadly, this patchwork of standards continues on.
Safe Harbor represents a frequently recurring issue of substantial importance
The question presented in Safe Harbor was not esoteric or academic. Every day, handicapped individuals across the country are denied reasonable accommodations to afford them equal enjoyment and access to a dwelling. The split among three Courts of Appeals impacts the rights of thousands of handicapped individuals who every year challenge the denial of reasonable accommodations.
The question of whether and when a handicapped applicant may seek judicial review of a decision denying a reasonable accommodation under the FHA is a significant and recurring question of federal law. When Congress amended the FHA in 1988, the stated purpose was to “end the unnecessary exclusion of persons with handicaps from the American mainstream.” H.R. Rep. No. 711, 100th Cong., 2d Sess. 18 (1988). The amendments were crafted specifically to prohibit discrimination in the national housing market for handicapped individuals. If a handicapped applicant is denied a reasonable accommodation under the FHA, and that denial has been appealed to the municipal authority entitled to review the denial and provide a final determination, that applicant should immediately have access to federal courts.
In a recent Annual Report on Fair Housing, the U.S. Department of Housing and Urban Development (“HUD”) reported that in fiscal years 2010-2013, disability was the most frequently protected basis on which individuals have filed complaints with HUD and the Fair Housing Assistance Program (“FHAP”). U.S. Department of Housing and Urban Development, Annual Report on Fair Housing 19 (Nov. 7, 2014), http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf (hereinafter “HUD Report”).[7] During those same years, HUD reports that the second most common issue reported is a failure to make a reasonable accommodation pursuant to 42 U.S.C. § 3604(f)(3)(B). See HUD Report at 22-23. In fiscal year 2013, for instance, the failure to make a reasonable accommodation accounted for approximately 30% of the 8,368 complaints filed that year. Id. at 22.
The frequency with which handicapped persons are denied requests for reasonable accommodations makes access to the courts to challenge those denials of critical importance if the goal of the FHA is not to be undermined. As Groome reminds us, “[n]umerous courts have stressed that housing discrimination causes a uniquely immediate injury.” 234 F.3d at 200.
Ensuring adequate access to the courts was a critical shortcoming in the FHA that the 110th Congress sought to correct with the passage of the FHAA (the 1988 amendments). The FHAA’s legislative history quotes President Reagan, who noted that since the FHA’s passage “a consensus has developed that the [FHA] has delivered short of its promise because of a gap in its enforcement mechanism.” H.R. Rep. No. 711, 100th Cong., 2d Sess. 5 (1988). In arguing for an increased federal enforcement mechanism, the Committee’s Report pointed out that “[i]n order to redress the ordinary individual case of discrimination, the victim of discrimination must bring a lawsuit in court. Although private enforcement has achieved success in a limited number of cases, its impact is restricted by [inter alia] the lack of private resources ….” Id.
The Safe Harbor decision not only sets a significantly more restrictive standard, but it paves the path toward the unintended consequence of allowing municipalities to indefinitely shield themselves from litigation by requiring an applicant denied a reasonable obligation to apply for as many zoning alternatives as the municipality can cite. As is evident by a number of the district court cases relying on Bryant and Groome, the Department of Justice fully supports the FHA justiciability principles set out in those cases.[8]
The Second Circuit’s divergence from the principle animating the Fourth and Fifth Circuits’ reasoning—that denials of reasonable accommodations are immediately ripe for judicial review because the discriminatory injury in the FHA context requires immediate relief—creates the likelihood that handicapped persons in the Second Circuit will more frequently be denied reasonable accommodations.
The facts presented in Safe Harbor are not uncommon. The municipality initially fully supported Safe Harbor’s facility, but as so often happens at local levels of government, completely changed its position in response to community opposition that arose ten months after Safe Harbor opened. Absent immediate access to the courts when reasonable accommodation requests are denied (or, as here, revoked after first being granted), the natural tendency of local boards will be to extend the process as long as they can by suggesting alternative possibilities for obtaining approval whenever the community objects. The Second Circuit’s standard for justiciability, especially when contrasted with those of two other Circuit Courts, will eviscerate the goals of the FHA.
CONCLUSION
Beyond the damage it has inflicted on Safe Harbor itself and its residents, the Second Circuit’s decision as to what constitutes a “final determination” that renders a reasonable accommodation request ripe for judicial review threatens to undermine one of the principal goals of the FHA amendments of 1988, namely, to remove obstacles that prevent handicapped persons from living “in the residence of their choice in the community.” H.R. Rep. No. 711, 100th Cong., 2d Sess. 24 (1988). When we petitioned the Supreme Court for a writ of certiorari, it was with the hope that the Court would understand the need to right such a significant wrong. They did not, effectively slamming the courthouse doors on those applicants whose requests for a reasonable accommodation were denied at the municipal level. Disabled applicants who reside in the Second Circuit were left with no avenue to challenge such determinations when the Supreme Court declined to hear this case.
Joseph N. Campolo, Esq., serves as the Managing Partner of Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Ronkonkoma and Bridgehampton, NY. Under Joe’s leadership, the firm has grown from two lawyers to a robust and highly respected team of over 30 lawyers servicing clients in a wide range of practice areas – and continues to grow – with a deep commitment to the community.
Lauren Kanter-Lawrence, Esq., is the Director of Communications at Campolo, Middleton & McCormick, LLP, where she is responsible for implementing all aspects of the firm’s messaging and communications strategy as well as business development initiatives.
[1] H.R. Rep. No. 711, 100th Cong., 2d Sess. 18 (1988).
[2] It is noteworthy that the Second Circuit expressly considered the applicability of Williamson in the contrast between takings cases and the enforcement of rights under the FHA or ADA, and in so doing implicitly rejected the reasoning in Bryant. See Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 122-23 (2d Cir. 2014) (“Sunrise argues, however, that there are limits to the principle announced in Williamson County, and [] distinctions between the rights at issue … [pointing] out that Williamson County involved a claim of ‘regulatory taking’…. The argument is not without appeal. . . . [However,] the relief sought brings the case squarely within the compass of Williamson County and its progeny.”).
[3] Although the Fourth Circuit determined that the case was ripe for review, on the merits, the Court ruled that the requested accommodation was not reasonable.
[4] See United States v. Town Of Garner, North Carolina, 720 F. Supp. 2d 721, 728 (E.D.N.C. 2010) (Residents of group home for persons recovering from alcoholism and drug addiction found on appeal to the Town Board of Adjustment from planner’s determination not to meet definition of “family” within town code; court rejected ripeness claim, citing Bryant, and stating “[a] reasonable accommodation claim under the FHAA is ripe once the Town has considered and rejected a reasonable accommodation request.”); United States v. District of Columbia, 538 F. Supp. 2d 211, 219 (D.D.C. 2008) (Boys Town resolved requests for reasonable accommodation (not to treat four separate houses for group homes as a single home requiring a special permit) after several denials; U.S. government brought suit against District based, in part, on denials of reasonable accommodations. Citing Bryant, the district court held that “an FHA violation is not cured by subsequent conduct. The Act is violated when a reasonable accommodation is first denied, regardless of remedial steps that may be taken later.”); Pathways Psychosocial v. Town of Leonardtown, M., 223 F. Supp. 2d 699, 713 (D. Md. 2002) (Court rejected motion to reconsider grant of summary judgment on ADA claim based on failure to make reasonable accommodation because Planning and Zoning Commission’s denial of an occupancy permit to Pathways for the C–G zone was not ripe for judicial review. Defendants assert that, because Plaintiffs failed to file for a variance, appeal to the Board of Appeals, or request a zoning text amendment, the case was not ripe. Citing Bryant, the district court rejected the argument, noting that “Plaintiffs did not file suit until after the Commission made its decision denying the occupancy permit [and after they sent letters to various officials requesting reconsideration of the decision based on a need for reasonable accommodation]. Therefore, as in Bryant, the Commission’s decision was a final decision sufficiently concrete for judicial resolution.”); Assisted Living Associates of Moorestown, L.L.C v. Moorestown Township, 996 F. Supp. 409, 427 (D.N.J. 1998) (“Numerous courts have stressed that housing discrimination causes a uniquely immediate injury. Such discrimination, which under the FHA includes a refusal to make reasonable accommodations, makes these controversies ripe.”) (citing Bryant, 124 F.3d at 601); Skipper v. Hambleton Meadows Architectural Review Committee, 996 F. Supp. 478, 483 (D. Md. 1998) (FHA claim by owner of nursing home may be brought in federal district court despite pending state court lawsuit to enforce a restrictive covenant because, as held by the Bryant court, “a violation of the FHA may occur when enforcement of a restrictive covenant or zoning ordinance is used to exclude handicapped persons from a group home—regardless whether or not the local law was violated.”).
District courts outside the Fourth Circuit rely on the court’s reasoning in Bryant. See, e.g., Moates v. Plantation Oaks Homeowners’ Assoc., Inc., No. 2:13-cv-459-WHA, 2013 WL 5532626, at *5 (M.D. Ala. Oct. 7, 2013) (Denying a motion to dismiss a claim of handicap discrimination pursuant to the FHA, the court held, in part, “‘a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings,’” quoting Bryant, 124 F.3d at 602).
[5] The Town Code defines a semipublic facility as “[a] church, community center, day-care center, geriatric home, hospital, library, museum, cemetery, clinic or medical arts building, fraternal brotherhood hall or lodge, college, university, school, nursery school or any similar nongovernmental building or use impressed with a predominantly public character, and all accessory structures and uses associated therewith.” Town Code § 255-1-20.
[6] See, e.g., Weiss v. 2100 Condominium Association, Inc., 941 F. Supp. 2d 1337, 1344 at n. 2 (S.D. Fla. 2013) (“[R]ipeness in the FHA context must be distinguished from ripeness in other contexts. Here, because Plaintiffs requested a change in the existing staircase on May 5, 2011 and Defendants have taken no action to that effect, the Court finds this delay is tantamount to a denial, and Plaintiffs’ claim is ripe at this time.”); U.S. v. City of New Orleans, No. 12-2011, 2012 WL 6085081(E.D. La. Dec. 6, 2012) (After twenty-one months, and the denial of three variance requests, a developer finally obtained permission to construct 40 units. Half for low-income individuals, and the other half of the units would serve as ‘permanent supportive housing’ for homeless persons with mental and physical disabilities. The United States Department of Justice then commenced a lawsuit in the district court pursuant to the FHA and ADA to enjoin the City and Bond Agency from interfering with the project prospectively, and for damages caused the developer from the delay. The court rejected the claim that the action was not ripe or was moot, finding that an FHA violation occurs immediately upon the denial of a reasonable accommodation, and that delay in making a determination can also provide the basis for judicial relief.).
[7] In fact, disability complaints filed with HUD and FHAP totaled 53% of all such complaints filed in fiscal year 2013, more than race, familial status, national origin, sex, retaliation, and religion-based complaints combined. HUD Report at 19.
[8] See United States v. City of New Orleans, No. 12-2011, 2012 WL 6085081 (E.D. La. Dec. 6, 2012) (citing Groome); United States v. Town Of Garner, North Carolina, 720 F. Supp. 2d 721, 728 (E.D.N.C. 2010) (citing Bryant); United States v. District of Columbia, 538 F. Supp. 2d 211, 219 (D.D.C. 2008) (citing Bryant).
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