Disability and Accessibility News: Housing Discrimination

by Gray Smith AIA AICP

When one thinks of disability and accessibility, the first image that comes to mind is a person in a wheelchair attempting to negotiate a ramp or, even worse, steps. Architectural barriers to accessibility constitute the majority of problems facing people with physical disabilities, including those with sight and hearing impairments. It would appear that most accessibility lawsuits are so directed.

Lesser known, yet significant, are the cases involving people with mental and developmental disabilities and drug and alcohol dependencies. These folks are classified “disabled” in the American with Disabilities Act (ADA) of 1990, and the Fair Housing Amendments Act of 1988. Whereas the U.S. Department of Housing and Urban Development (HUD) issued detailed guidelines for physical accessibility in buildings and on housing sites in 1991, they did not spell out the broader expectations of local planning and zoning practices.

Zoning obstacles: It is fair to say that most local Zoning Codes and Ordinances in the United States have not yet been revised to the standards of fair housing rights, particularly in suburban and rural areas. Many such codes have no allowance in any of their zoning classifications for group homes or “community living arrangements” (CLA’s) that would accommodate a whole host of family-type living for unrelated people with similar afflictions. In some places, there are still Zoning Code provisions that prohibit CLA’s.

Cases: Gray Smith’s Office was recently involved as an expert on zoning and planning in the case of Judy B. v. Tioga Borough, PA wherein the Tioga Zoning Ordinance had no provision for group homes in its residential and commercial zoning classifications. The Borough Council refused, with some rather overt protestations, to grant a variance or a curative amendment for a church-sponsored conversion of a small motel into a CLA for homeless, mentally disabled persons in rehab. The Disabilities Law Project of Philadelphia successfully secured the development of the CLA in the Federal District Court in Williamsport, PA by demonstrating the obvious civil rights flaws in the Zoning Code and the actions of the Borough. (Note: a copy of the report, Site and Land Use Analysis: Downtown Tioga Borough, prepared for the case by Gray Smith’s Office, can be obtained by calling (215) 546-4985.

Some cases in Illinois are of interest:
Naperville, Ill: U.S. District Court Judge Ann C. Williams ruled in favor of the Alliance for the Mentally Ill (AMI) over the City of Naperville, Illinois, concerning a violation with the Fair Housing Amendments Act that was filed in December of 1994 by the AMI of DuPage County. The Fair Housing Amendments Act forbids discrimination with regard to where people can live based on race, sex, color, religion, familial status or national origin. The definition of discrimination within the act is a refusal to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. The violation occurred when a group home for the mentally ill was allegedly unlawfully subjected to certain codes by the City of Naperville.

The AMI accused the City of Naperville of deliberately imposing stringent fire code requirements. Examples of this were the requirements for extensive sprinkler systems and other components that were viewed as excessive for a single-family home. The home was originally purchased as a single-family R-3 residence and was required to meet NFPA 13R sprinkler standards. The City of Naperville was using the 1987 BOCA National Codes as amended by the city. Thus the city was not adhering to the BOCA codes exactly. The BOCA codes did not require sprinkler systems for an R-3 residence. AMI official David Rose stated, “The occupants of the house are perfectly capable of evacuating as fast as any family could.”

Rose also said, “The ruling is absolutely stupendous. It has far-reaching implications...in terms of the way codes are enforced.” The residents of the neighborhood were upset over the fact that a house for the mentally ill was going to exist in the same neighborhood. Rose indicated that the city attempted to make the move difficult with several stumbling blocks.

One of the alleged “stumbling blocks” was when Naperville attempted to hold the AMI to a grant application that was for four to six mentally ill people, while the number of people moving into the home was eight. In 1994, it went to arbitration and the City of Naperville was shown to be in violation with the Fair Housing Amendments Act.

Village of Chebanse: The Fair Housing Amendments Act does not necessarily pre-empt local zoning laws, the 7th U.S. Circuit Court of Appeals at Chicago, ruled in Brandt v. Village of Chebanse, No. 95-3093 (April 26, 1996).

A housing developer sued after village trustees blocked a proposal for a four-apartment building, with the first-floor units for wheelchair-bound residents. The board cited concerns about congestion and water runoff in denying a variance from single-family zoning.

The 7th Circuit held that the refusal did not violate a duty of the Fair Housing Amendments Act to make reasonable accommodations for disabled residents under zoning laws. The court said the developer could build or renovate single-family houses for disabled residents. It also noted that nearby unincorporated land did not raise zoning issues.

The variance was not the only way to make a reasonable accommodation, the court concluded.
Joilet: Access Living is a Chicago independent living center conducting services and advocacy for people with disabilities. They recently filed a federal lawsuit on behalf of Pam Heavens and the Will-Gundy Center for Independent Living in Joilet, Illinois, against designers and builders of Golf View Condominiums in Joilet. Heavens, a wheelchair user, sought to purchase a newly constructed unit and found that the complex was not in compliance with the Fair Housing Amendments Act Accessibility Requirements.

Bucks County, PA: A company that says it was forced to withdraw plans to open a home for mentally ill adults in Bucks County sued a University of Pennsylvania professor who opposed the residence in September.

In its lawsuit, Allentown-based Salisbury House, Inc. accused Paul McDermott and his wife, Andrea L. McDermott, of waging a “campaign of slander, hate and fear against the disabled” in Chalfont Borough. He is a chairman of the Penn Department of Psychology in Education at the Graduate School of Education.

The lawsuit, brought in federal court under the Fair Housing Amendments Act, alleges that the McDermotts led a neighborhood protest against the group home that generated fear and hysteria among residents. The suit, which seeks unspecified damages, contends that McDermott held himself out as an expert and used the university’s name to generate opposition.

Philadelphia: Philadelphians are reminded of the protracted Project HOME case in the Spring Garden/Fairmount neighborhood where residents and the City of Philadelphia blocked Sister Mary Scullion’s homeless shelter development on a relatively minor zoning variance. Ultimately pressure from the Equal Opportunity Section of the U.S. Department of Housing and Urban Development (HUD), and the makings of a successful Fair Housing Amendments Act lawsuit by Scullion, represented by Stephen F. Gold, Esquire, paved the way for a settlement. The shelter is now in operation.

More recently, a proposal to renovate a number of single family houses on Lombard Street, in Philadelphia’s “upscale” Washington Square West neighborhood, for use as a Community Living Arrangement (CLA) for mentally disabled individuals, has fostered a dilemma. Although somewhat away from implementation, the project had moved ahead with very little neighborhood participation. Upset over the rumors that no zoning variances or changes are needed, and that over 20 residents with yet-defined maladies would be moving in, some nearby neighbors have expressed opposition to the development. District Councilman Frank DiCicco and other city officials have been cautious not to tread on the Fair Housing issue while, at the same time, responding to constituent concerns.


Generally considered a politically liberal neighborhood, and one already populated with several group homes, CLA’s and similar institutions, Washington Square West residents are asking when enough is enough.

Unfortunately, Philadelphia’s Zoning Ordinance is also relatively weak in offering a clear recognition and acceptance of CLA’s. There has never been in the Zoning Ordinance a reflection of city-wide policy and planning for group living. Interestingly enough, it was in Pennsylvania where the major civil rights case originated that resulted in the mass de-institutionalization of “mental patients” and their re-integration into the nation’s communities. The development progress of family-homelike settings (group homes, CLA’s personal care homes, intermediate care facilities, etc.) for these folks has been way behind the need.

One of the obstacles on a national level has been the failure of most local zoning codes and ordinances to catch up, based to some degree on the reluctance of locally elected officials to progress beyond their conservative constituents.

An interesting by-product of the unclear aspects of Philadelphia’s Zoning Code and the Project HOPE case is a packet of information and procedures recently developed by the Philadelphia Department of Licenses and Inspections (L & I). Now posted all over L & I offices at the Municipal Services Building concourse is a Notice of Accommodation for Residences of People with Disabilities. It advises developers of CLA’s and other types of group homes of the processes whereby they can take full advantage of the Fair Housing Amendments Act through L & I and various “Advisory” and “Technical” committees. Moreover, individuals who have a discrimination claim in housing (and other areas) can invoke the Philadelphia Fair Practices Ordinance.

On June 20, 1996 City Council passed a bill extending the period to file a discrimination complaint from 90 days to 300 days. The period to file a complaint is part of the Fair Practices Ordinance, which prohibits discrimination in employment, housing, and public transportation because of race, color, religion, nationality, ancestry, gender, sexual orientation, age or disability. Additional protected classes in housing are marital status, source of income, and presence of children.

This bill was signed by the Mayor and became law effective July 1, 1996. (Anyone wishing to file a complaint of discrimination may visit the Philadelphia Commission on Human Relations, 34 S. 11th Street, 6th Floor, or call 686-4692.)

Washington, D.C. Zoning Ordinance: Two years ago, Gray Smith’s Office was engaged to assist a community-oriented Baptist Church in Washington, D.C. to determine how best to use a collection of 4 large houses owned by the church for some good community purpose, not just to rent them for profit. One of the potential reuses explored was: “Community-Based Residential Facilities,” (a term found in the D.C. Zoning Code.) The study gave us the opportunity to get to know what could be the best-written zoning code in any U.S. City. Clearly the group home/CLA dilemma had been dealt with throughout the code, likely as a result of some lawsuit in 1958 regarding such matters.

In Washington, the divergent problems of building enough CLA’s, but not concentrating them too much, is covered by provisions such as in the Residential R-1 classification: There shall be no property containing a community-based residential facility for five (5) or more persons in the same square and no property containing a community-based residential facility for five (5) or more persons within a radius of one thousand (1,000) feet from any portion of the property. And, regarding zoning variances, the D.C. Zoning Board of Adjustment can consider a greater concentration of such facilities: when the Board finds that the cumulative effect of the facilities will not have an adverse impact on the neighborhood because of traffic, noise or operations.

This author strongly recommends the D.C. Zoning Code as a reference to see how the proper balance in this area of potential violations of the Fair Housing Act can be handled.
New Jersey: The state of New Jersey requires property owners to make certain that private housing developments are accessible to the physically disabled. But architects, developers and even local building code officials are frequently ignoring these statutes statewide, a new study indicates — at a time when waiting lists for accessible housing are extensive.

The Community Health Law Project, a nonprofit legal aid society for the disabled, recently determined that 96 percent of some 3,760 new or recently constructed residential housing units it studied did not meet the “barrier-free” sub-code of New Jersey’s Construction Code which is intended to ensure there are enough accessible accommodations for people with disabilities.

“When only 4 percent of the residential units surveyed complied, one can only assume that substantial systemic problems exist in code enforcement,” said David Lazarus, director of litigation for the advocacy group.

Lazarus and state officials blamed the complete breakdown in enforcement of the law not only on the building industry, but on local building code officials as well. The builders, on the other hand, said that such widespread violations indicate the problem rests with how clearly the law is written.

The law project studied only 14 condominium and housing developments in central and northern New Jersey. But Lazarus said he expected the violations were just as widespread statewide.

“South Jersey is a disgrace” when it comes to following housing accessibility laws, said Lorraine Culbertson, director of the Camden City Independent Living Center, a non-profit resource facility for the disabled that helps find transportation and accessible housing. “Nothing is accessible in private housing.”

The state Department of Community Affairs has oversight of local building code enforcement officials, and can even fire them if they let too many violations slip by.

In conclusion, in spite of the Fair Housing Amendments Act, and all the accessibility requirements in local building codes and most state laws, and regardless of the public awareness fostered by the Americans with Disabilities Act (ADA), a large number of housing units are being built today with no accommodations for disabilities. Legislated, but illegal, obstacles still exist throughout the land to residences specifically for disabled persons. Litigation in this area will continue to be the only solution to overcoming those barriers.

(Note: The Fair Housing Council of Washington D.C. offers the Fair Housing Advertising Manual, which might be useful elsewhere; (202) 289-5360.)

HUD Publication: Evaluation of Supportive Housing Programs for Persons with Disabilities. This publication in two volumes assesses the effectiveness of HUD programs in meeting the special housing needs of disabled Americans, including intensive analysis of programs, sponsors, tenants, and supportive services of 30 projects. For more information and an order form call (800) 245-2691.

(Note: Gray Smith’s Office has a good assortment of books and studies on the group-living-arrangements subject and the Fair Housing Act. Try us at 215-546-4985.)


Copyright © 1996-2008 Gray Smith AIA AICP