Housing For The Disabled – It's A Civil Right

March 31, 2016

In 1998, a federal judge began an opinion as follows:

“This case requires the Court to resolve a conflict between local autonomy and federal power, specifically the conflict between a New Jersey municipality’s power to zone and the federal power to eradicate discrimination against the handicapped.” ¹

It is the purpose of this blog to begin a discussion of that conflict and an analysis of several federal civil rights statutes that give rise to the conflict. The initial postings will outline the prohibitions and mandates of those statutes, followed by a discussion of available remedies. Thereafter a more nuanced analysis of the statutes will be undertaken, together with a discussion of evolving case law. It is the hope of this blogger to enlighten both attorneys and developers of healthcare facilities, assisted living residences, drug and alcohol rehabilitation facilities, hospices and all other types of facilities serving persons with disabilities, with respect to federal remedies available for land use denials. In order to entice you to follow this blog, let me list just a few of the benefits available to those who litigate land use denials in the federal courts.

• Municipalities and their land use boards must make reasonable accommodation in the application of land use regulations, in order to permit the development of facilities serving the disabled in residential zones. ²
• Preliminary Injunctions are available, bringing relief far more rapidly than typically available in state courts. ³
• Irreparable harm need not be shown in order to secure injunctive relief. ⁴
• Prevailing plaintiffs are entitled to counsel fees and may be entitled to damages. ⁵

Although this writer has long represented land use boards and municipalities, I must admit at the outset that my sympathies lie with those who provide shelter and services to persons with disabilities. I will do my level best not to let this admitted bias influence my reporting. However, I invite my readers to alert me when I may stray from that goal. Such criticism aside, I welcome readers to offer comments and questions, all of which I am certain will enhance this effort. I invite such comments and questions via email with the subject line “Land Use Accommodations”.

Thanks, Steve

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¹     Assisted Living Associates of Moorestown, L.L.C. v. Moorestown Township, 996 F.Supp.409 (D.N.J. 1998)
²     42 U.S.C.A. § 3604(f)(3)(B)
³     42 U.S.C.A. § 3613(c)(1)
⁴     Baxter v. City of Belleville, 720 F.Supp 720, 734 (S.D.Ill.1989)
⁵     42 U.S.C.A. § 3613(c)(1) and (2)