REASONABLE MODIFICATIONS

1
REASONABLE MODIFICATIONS

• (3) For purposes of this subsection,
  discrimination includes
• (A) a refusal to permit, at the expense of the
  handicapped person, reasonable modifica-tions of
  existing premises occupied or to be occupied by
  such person if such modifica-tions may be
  necessary to afford such person full enjoyment of
  the premises

2
REASONABLE MODIFICATIONS

• except that, in the case of a rental, the
  landlord may where it is reasonable to do so
  condition permission for a modifi-cation on the
  renter agreeing to restore the interior of the
  premises to the condi-tion that existed before
  the modification, reasonable wear and tear
  excepted

3
REASONABLE MODIFICATIONS

• Effectively a Variation on Reasonable
  Accommodation Claim
• As though challenged policy is cant modify w/o
  ldlds or condo boards permission
• Can do modifications if reasonable if
  necessary to use housing

4
REASONABLE MODIFICATIONS

• Landlords Interest Protected Because
• Can condition modification on agreement to
  restore interior (unless wouldnt bother future
  tenants (wider doorways))
• Can require escrow to cover cost of restoration

5
US v. Freer (WDNY 1994)

• 1. Wheelchair-bound trailer park resident wants
  to install ramp at her own expense
• 2. Owners refuse to allow.
• 3. Govt action against owners of trailer park
  for violation of reasonable modifications
  provision

6
US v. Freer (Necessity)

• 5 steps (needs to be carried or assisted)
• cant participate in normal activities
• afraid to leave home injured in past while being
  assisted
• Alternative proposed by D much steeper
• Ct no Q that refusal to allow ramp effectively
  denies equal opportu-nity to use home

7
Reasonable Modifications Reasonableness Generally

• Who Bears Burden of Proof?
• Courts Split
• Freer Once Plaintiff Shows Necessity, Burden on
  Defendant to Show Proposed Modification is
  Unreasonable

8
Reasonable Modifications Reasonableness Generally

• Meaning of Reasonableness from Statute Regs?
• Stat. Language Gives Little Guidance
• Regulations
• Dont Define Reasonable
• Two Pretty Easy Examples (little help)

9
US v. Freer (Reasonableness)

• Refers to Undue Financial or Administrative
  Burden
• No Mention of Fundamental Alteration
• What would that mean in a trailer park?
• Might matter if big change to a building or
  interference w fancy architecture
• If ldld renting out personal home, does she get
  more leeway?

10
US v. Freer (Reasonableness)

• Defendants Claims
• Ramp would impede trailer removal
• Ramp would cause parked cars to stick out into
  access road

11
US v. Freer (Reasonableness)

• Court finds ramp reasonable on ltd. record
• Ramp would not impede trailer removal (can
  disassemble in 3 hours)
• Ramp would not cause parked cars to stick out
  into access road (photo sheds doubt on claim)
• No evidence of financial burden

12
DQ149 How Far Can You Go?

• Ramp impedes trailer removal a bit (can
  disassemble in 3 hours ? 9 hours)
• Parked cars stick out into access road a bit (no
  effect on traffic ? most cars have to slow down
  to get around)
• Small financial burden (zero ? 40/year)
• FOR YOU

13
DQ150. Suppose a mobility-impaired tenant in a
multi-unit apartment building installed a ramp on
the exterior of the building that led to the main
lobby pursuant to 3604(f)(3)(A). When the
tenant leaves, must the tenant restore the
building by removing the ramp?
14
24 CFR 100.203(a) It shall be unlawful for any
person to refuse to permit, at the expense of a
handicapped person, reasonable modifications of
existing premises, occupied or to be occu-pied by
a handicapped person, if the proposed
modifications may be necessary to afford the
handicapped person full enjoyment of the
premi-ses of a dwelling. In the case of a
rental, the landlord may, where it is reasonable
to do so, condition permission for a modification
on the renter agreeing to restore the interior of
the premises to the condition that existed before
the modification, reasonable wear and tear
excepted. examples both interior
15
24 CFR 204(a) It shall be unlawful for any
person to refuse to make reasonable
accommodations in rules, policies, practices, or
services, when such accommodations may be
necessary to afford a handicapped person equal
opportunity to use and enjoy a dwelling unit,
including public and common use areas.
16
DEFENSES SPECIFIC TO HANDICAP CLAIMS
17
Statutory Direct Threat Defense

• 42 U.S.C. 3604(f)(9)
• Nothing in this subsection 3604(f) requires
  that a dwelling be made avail-able to an
  individual whose tenancy would constitute a
  direct threat to the health or safety of other
  individuals or whose tenancy would result in
  substan-tial physical damage to the property of
  others.
• No elaboration in regs

18
Roe v. Sugar River Mills Assoc. (D.N.H. 1993)

• P threatened other tenant at apt complex
• P claims his behavior is related to his mental
  illness.

19
Roe v. Sugar River Mills Assoc.

• Q Relationship between direct threat exception
  reasonable accom. requirement?
• D once threat to health/safety, can exclude w/
  no duty to accommodate
• P duty to try to accommodate, and then if still
  threat to health/safety, can evict

20
Roe v. Sugar River Mills Assoc.

• Ct. Adopts Ps Position duty to try to
  accommodate, and then if still threat to
  health/safety, can evict
• Arline (interpreting Rehab Act) must try to
  accommodate tubercular employee help her keep
  job while minimizing contagion risk.
• HRep on FHAA if a reasonable accom. could avoid
  risk, must do so. (citing Arline)

21
Roe v. Sugar River Mills Assoc.

• DQ151 Reaction to Legal Holding?
• DQ152 What accommodations might you propose as
  Roes counsel? What safeguards would be necessary
  to ensure that these accommodations were
  reasonable?

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23
Bangerter v. Orem City Corp. (10th Cir. 1995)
Background

• U.S. Constitutional Equal Protection Review of
  Classification on the Basis of Disability
• City of Cleberne (US 1975)
• SCt strikes down a municipalitys refusal to
  allow permit for home for mentally retarded
• SCt said it was doing rational basis, but
  seemed to be stricter
• Clear govt allowed to draw lines based on
  disability for some purposes

24
Bangerter Background

• U.S. Constitutional Equal Protection Review of
  Classification on the Basis of Disability
• Heller v. Doe (US 1993)
• SCt approves, for the purposes of procedures for
  commitment hearings, treating mental retardation
  differently from mental illness
• Rejects read of Cleberne as rational basis w
  teeth
• Rational basis means near complete deference to
  govt

25
Bangerter Background

• U.S. Constitutional Equal Protection Review of
  Classification on the Basis of Disability
  Possible Distinction
• Heller looks like distinction drawn by experts,
  so great deference
• Cleberne looks like popular animus against group,
  so court less deferential in practice

26
Bangerter Background

• FamilyStyle v. City of St. Paul (8th Cir. 1991)
• Ordinance requires group homes for PWDs to be ¼
  mile apart unless they have a special use permit
  (common anti-ghetto provision)
• FHA Claim explicit discrimin b/c of handicap

27
Bangerter Background

• FamilyStyle v. City of St. Paul (8th Cir. 1991)
• Group homes for PWDs must be ¼ mile apart
• FHA Claim explicit discrimin b/c of handicap
• Ct Since disability not a suspect class like
  race, state can defend by showing reg meets
  rational basis test
• Here furthers legit. purpose avoids ghettoing
  when deinstitutionalizing
• Can view as non-statutory defense to intl
  discrim.

28
Bangerter Overview

• City grants conditional use permit to group home
  for mentally disabled w 2 conditions derived from
  state law
• Operator had to ensure residents had 24-hr
  supervision
• Operator had to set up community advisory
  committee thru which neighbors complaints could
  be addressed

29
Bangerter Overview

• Plaintiff sued claiming the conditions violated
  the FHAA TCt rules for city
• TCt found prima facie case of violation b/c
  facially disparate treatment
• BUT (following Familystyle) found no violation
  because the 2 requirements met the rational basis
  test.
• 10th Cir. Reverses Remands

30
Bangerter Overview

• Thoughtful Well-Written Opinion w Good
  Discussions of
• Relationship between FHAA zoning
• Nature of the various disability causes of action
  
• Which legal questions can be addressed on the
  pleadings
• Well focus on Defenses to Intentional
  Discrimination

31
Bangerter Overview

1. Rejects FamilyStyle Defense
2. Addresses/Limits Direct Threat Defense
3. Adopts Benign Discrimination Defense

32
Bangerter FamilyStyle Defense

• 8th Cir. position rests on disability not being
  a protected class in US Constitutional Law
• 10th Cir. rejects
• Interpreting FHAA, not Constitution
• FHAA makes handicap a protected class
• Other courts have not followed 8th Cir.

33
Problems w FamilyStyle Defense

• Odd to use constitutional stds for FHAA even for
  govt defdt
• Constitution already sets this std under Cleberne
  
• Specific Congr. purpose to address zoning
  interfering w group homes
• No need to legislate if just intended to apply
  Cleberne std

34
Problems w FamilyStyle Defense

• Odd to use constitutional stds for FHAA
• Constitution already sets Cleberne std
• If follow logic
• Would apply intermediate scrutiny to FHA sex
  claims re govt
• Would allow strict scrutiny defense to FHA race
  claims re govt

35
Problems w FamilyStyle Defense

• Odd to use constitutional stds for FHAA
• FHA draws no such distinction between protected
  characteristics

36
Problems w FamilyStyle Defense

• Odd to use constitutional stds for FHAA
• FHA draws no such distinction between protected
  characteristics
• Cf. other non-statutory defenses to FHA
• Furthering integration (strong purpose)
• Some sex discrim. claims (not concerned w access
  or stigma)

37
Problems w FamilyStyle Defense

• Odd to use constitutional stds for FHAA
• FHA draws no such distinction between protected
  characteristics
• Cf. other non-statutory defenses to FHA
• Furthering integration (strong purpose)
• Some sex discrim. claims (not concerned w access
  or stigma)
• Here, by contrast, (i) preventing integration
  (ii) lot of evidence of animus ag. group homes
  (access stigma issues)

38
Bangerter Direct Threat Defense

• Reliance on (3604)(f)(9) must be limited.
• cant base on blanket stereotypes or
  generalized perceptions
• relies on House Report cant rely on
  generalized assumptions or subjective fears or
  speculation must be objective evidence that
  person caused harm or directly threatened harm to
  others

39
Bangerter Direct Threat Defense

• Reliance on (3604)(f)(9) must be limited see
  slightly conflicting language (p389)
• tailored to concerns about individual residents
• individualized to need or abilities of particular
  kinds of developmental disabilities

40
Bangerter Direct Threat Defense

• Reliance on (3604)(f)(9) must be limited
  application here
• No showing in record re specific tailoring/
  individualization
• On remand, need to define 24-hr supervision
  restriction show safety need

41
Direct Threats to Selves

• Statute literally addresses only harm to others.
  Should we cover harm to PWDs?

42
Direct Threats to Selves

• Statute literally addresses only harm to others.
  Should we cover harm to PWDs?
• Normally construe exceptions narrowly.

43
Direct Threats to Selves

• Statute literally addresses only harm to others.
  Should we cover harm to PWDs?
• Normally construe exceptions narrowly.
• Why would Congress not intend this? Concern about
  exclusion through over-protection.

44
Direct Threats to Selves

• Statute literally addresses only harm to others.
  Should we cover harm to PWDs?
• Normally construe exceptions narrowly.
• Why would Congress not intend this? Concern about
  exclusion through over-protection.
• Would seem to get covered to some extent by
  Bangerters benign category.

45
Bangerter Benign Discrimination

• 10th Cir. Recognizes Non-Statutory Defense
  Benign Discrimination
• Shouldnt interpret FHA to preclude special
  restrictions that benefit handicapped
• Relies on Title VII affirmative action cases
  FHA integration maintenance cases
• Must leave some room for flexible solutions
• BUT cant do based on stereotypes or fear

46
Bangerter Benign Discrimination

• Apply on remand to N-hood Advisory Committee
• Check what advisory committee would do
• Check motivations for requiring (as evidence of
  justification)

47
Bangerter Benign Discrimination

• Apply on remand to N-hood Advisory Committee
• Check what advisory committee would do
• Check motivations for requiring (as evidence of
  justification)
• Maybe OK if purpose is
• to dispel irrational fears of n-bors
• give them place to vent get info

48
Bangerter Benign Discrimination

• Apply to N-hood Advisory Committee
• Check what advisory committee would do
• Check motivations for requiring
• Maybe OK if purpose is
• to dispel irrational fears of n-bors
• give them place to vent get info
• Strikes me as very Qable
• Imagine same re any other listed characteristic
• E.g., allow children in complex only w committee
  to monitor effects on other tenants