Zoning Issues for Home and Dental Practice Renovation

1. Property II: Class #21Wednesday 10/31/18 Power Point PresentationNational Doorbell Day &National Knock Knock Jokes DayKnock, knock! Who's there?The doorbell repair man.Knock, knock! Who's there? A little boy. A little boy who?A little boy who can’t reach the doorbell.Knock, knock! Who's there? Belladonna. Belladonna who? Belladonna work, so I had to knockKnock, knock! Who’s there? Figs. Figs who?Figs your doorbell, it’s not working!

2. Music to Accompany ShapiroAnnie Lennox, Medusa (1995) featuring “I Can’t Get Next to You” [Without a Good Parking Space] On Course Page • Extended Chapter 4 Materials (w Monday’s Assignment) • Updated Syllabus • Info Memo for Chapter 3 (Write-Ups of Most Review Problems) Important Upcoming Dates • Fri 11/2: Fajer Exam Workshop Room E352 @ 1-2:20 p.m. • Sat 11/3-Sun 11/4: Turn Clocks Back 1 Hour (Extra Sleep!!)

3. Review Problem 3F Lawyering

4. li • S inherits house from Great Aunt A • House built in wooded area almost 50 years ago w rooms for medical practice • Now in residential neighborhood • S wants to expand/renovate to use as home & dental practice w apt for key employee • A’s atty’s give her warning re possible zoning issues (Generally: these should be primary focus) • Apt for Employee (Household Composition; Last Time) • Setback Requirements • Continuation of Medical Practice (NCU)

5. li • Continuation of Medical Practice • Check if Currently Allowed in Residence in Zone • Might Confirm Allowable When Built • Assuming Medical Practice is Non-Conforming Use, Major Issues?

6. li • Continuation of Medical Practice • Assuming NCU: Check state law & Z: • Possible Time limits on NCU? • Possibly Change of Use of NCU (Medical to Dental) ? • Limits on Renovation/Repairs of NCU?

7. li • Continuation of Medical Practice • Assuming Medical Practice is NCU: Check state law & Z: • Time limits on NCU? • How long allowed? When Z making it NCU began? • State Law limits on amortization period • Possibly Change of Use of NCU (Medical to Dental) ? • Limits on Renovation/Repairs of NCU?

8. li • Continuation of Medical Practice • Assuming Medical Practice is NCU: Check state law & Z: • Time limits on NCU? • Possibly Change of Use of NCU (Medical to Dental) ? • Check Rules for Change? Substantial? Burden on Claimant? • Compare Medical  Dental to Relevant Test • Get details re A’s practice & compare to S plans (Hours/Days of Operation, # of Patients/Cars, Length of Visit, Noise?) • Get details re possible impact on neighbors & possible change

9. li • Continuation of Medical Practice • Get details re A’s practice • Check published ads or website or literature left in house • Check w former employees & A’s attorneys • Check w neighbors re effects • Check w S

10. li • Continuation of Medical Practice • Assuming NCU: Check state law & Z: • Possible Time limits on NCU? • Possibly Change of Use of NCU (Medical to Dental) ? • Limits on Renovation/Repairs of NCU? • Check rules & compare to S’s plans • Check with Board re Possible Variances/Exceptions

11. li • Setback • Check Rules for Zone & Compare to S Plans • If would violate setback reqmts, check if S can alter plans to fit • Check re Consequences of Violation. Steps (ME)?

12. li • Setback • Check re Consequences of Violation. • Would Local Govt Enjoin or Do Continuing Fine? (S might be OK w 1-time fine) • Availability of Variance (V) • Check w Local Attorneys re ease of getting Vs • Check Hardship Reqmts • Check Negative Criteria (Rules?)

13. li • Setback • Check re Consequences of Violation. • Availability of Variance (V): Check Negative Criteria • State/Local Rules? Harm to Z Plan? Harm to Public Good? Other? • Details re Z Plan?

14. li • Setback • Check re Consequences of Violation. • Availability of (V): Check Negative Criteria: State/Local Rules? • Harm to Z Plan? • Extent of Violation? How Close to closest buildings? • Other violations in n-hood? Look, Ask neighbors, real estate agents • Harm to Public Good? • Effect on S’s & Neighbors’ PV? Check real estate professional • Fence or other buffer?

15. Written Submission #4: Due Tomorrow 11/1 @ 8pm • One 7-Page Question: Lawyering Question M2 • Handout Today with Presentation/Editing Tips Specific to Lawyering Qs (Includes location of relevant slides & Posted Comments/Models) • Comments/Models on 3E & 3F Posted Now in Info Memo for Chapter 3 • Review Formatting Rules Before Submission • I will be in office & available for e-mail Qs 8:30-10:30 am tomorrow; after that I’m not reachable QUESTIONS?

16. Chapter 4: DISABILITY ACCOMMODATIONSIntroduction to Statutes & Legal Claims

17. Chapter 4:Disability Accommodations Introduction: The Statutes • Rehabilitation Act §504,29 USC §701 et seq. (Federal Grantees & Contractors 1973) • Fair Housing Amendments Act, 42 USC §3601 et seq. (FHAA = Housing 1988) (some history of original 1968 FHA and Amendments in my Symposium Introduction) • Americans with Disabilitiea Act, 42 USC §12101 et seq(ADA = Employment, Public Accommodations & Gov’t Programs/ Services/Buildings 1991)

18. Chapter 4:Disability Accommodations Introduction: The Legal Claims Operation of Anti-Discrimination Laws Generally • Intentional Discrimination: • Need to prove: • D did act specified in statute • “because of” a characteristic listed in statute • Generally does not protect classes of people; Instead protects anyone from decisions made for prohibited reasons (bad intent)

19. Chapter 4:Disability Accommodations Introduction: The Legal Claims Operation of Anti-Discrimination Laws Generally • Intentional Discrimination: • Need to prove: • D did act specified in statute • “because of” a characteristic listed in statute • Bad intent cam be hard to prove, especially where plausible neutreal reason for the act in Q

20. Chapter 4:Disability Accommodations Introduction: The Legal Claims Operation of Anti-Discrimination Laws Generally • Intentional Discrimination (Must Prove Bad Intent) • Neutral Policies with Disparate Impacts • Need to prove that a facially neutral practice or policy has a statistically significant negative impact on a group defined by one of the listed characteristics • Always some sort of defense based on important neutral reason supporting practice/policy (e.g., business necessity)

21. Chapter 4:Disability Accommodations Introduction: The Legal Claims Operation of Anti-Discrimination Laws Generally • Intentional Discrimination (Must Prove Bad Intent) • Neutral Policies with Disparate Impacts • Facially neutral practice/policy has a statistically significant negative impact on relevant group • Defense based on importance of underlying reasons • Two possible remedies • Eliminate challenged policy/practice • Allow exceptions (e.g., affirmative action)

22. Chapter 4:Disability Accommodations Introduction: The Legal Claims Operation of Anti-Discrimination Laws Generally • Intentional Discrimination (Must Prove Bad Intent) • Neutral Policies with Disparate Impacts • Specified Acts Unlawful without Proof of Bad Intent • Narrow range of conduct unlawful regardless of motive • E.g., giving employment terms to women different from those given to similarly situated men (absent a statutory defense)

23. Chapter 4:Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604 1. Intentional Discrimination (Must Prove Bad Intent) • Denial of Housing: 3604(a) & 3604(f)(1) • Misinforming re Availability : 3604(d) • Steering: Either or Both of Denial and Misinformation • Harassment/Retaliation: 3617

24. Chapter 4:Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604 1. Intentional Discrimination (Must Prove Bad Intent) Harassment/Retaliation: 3617: . Interference, coercion, or intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [§§ 3603, 3604, 3605, or 3606].

25. Chapter 4:Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604 2. Neutral Policies with Disparate Impacts • Denial of Housing: 3604(a) & 3604(f)(1) • Denial of Reasonable Modifications: 3604(f)(3)(a) • Denial of Reasonable Accommodations: 3604(f)(3)(b)

26. Chapter 4:Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604 3. Specified Acts Unlawful without Proof of Bad Intent • Different Terms: 3604(b) & 3604 (f)(2) • Advertising: 3604 (c) (Would “Ordinary Reader” see Preference) • Blockbusting: 3604€ • Accessibility in New Housing:L 3604(f)(3)(c) NOTE re Circuit Splits & Lack of USSCt Interest

27. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro 3604(f)(3): For purposes of this subsection [MEANS (f) = “Handicap” provisions], discrimination includes— • (B) 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; Language (& legislative history) suggest Congress trying to allow PWDs generally to have real access to most housing units

28. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro 3604(f)(3): For purposes of this subsection [MEANS (f) = “Handicap” provisions], discrimination includes— • (B) 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; As is true for other federal disability statutes, key terms are NECESSARY and REASONABLE. Determining meaning of these terms is heart of Chapter 4.

29. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro Reasonable Accommodations Prima Facie Case • Interested person has a “handicap” & D knew of • Accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling; • Proposed accommodation is reasonable • Housing provider or govt refuse to allow the proposed accommodation

30. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro Reasonable Accommodations Prima Facie Case • Interested person has a “handicap” & D knew of • Determining “Handicap” under statute & regs • Similar under all 3 statutes • Can be difficult issue in some instances • Will not be a testable issue for us; I’ll give you easy examples • D knew of handicap is usually easy in Reasonable Accommodation/Modification cases because P requests & D denies the proposed accommodation

31. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro Reasonable Accommodations Prima Facie Case 2. Accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling; • Statute using “may be” leaves strength of this requirement unlear • We’ll do caselawexploring “necessary, but Shapiro is easy • Nearby parking = substantial part of use & enjoyment of dwelling: • W/o close parkingg: P risks injury, infection, humiliation • Fact claims re street parking & cathetyer fall in this category

32. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro Reasonable Accommodations Prima Facie Case 3. Proposed accommodation is Reasonable • Not explicitly defined in statute or regs • Shapiro is first major case to address and relies on legislative history • Use of Davis standards now is universal (but interpretation of them is not)

33. Chapter 4:Disability Accommodations Reasonable Accommmodations & Shapiro Reasonable Accommodations Prima Facie Case 4. Housing provider or govt refuse to allow the proposed accommodation • Generally not an issue for our class (e.g., Shapiro D clearly denied) • BUT some cases hold that after P proposes an accommodation, D can offer an alternative. • If alternative is reasonable re P and addresses P’s need, P must accept (Congdon facts) • Thus, still doing necessary/reasonable analysis, but reasonable focused on P (since offer cvomes from D, so presumably OK with it)

34. Chapter 4:Disability Accommodations Shapiro Reasonableness Analysis (DQ4.03-4.05) • D relies on Title VII religious accommodations i) more than de minimus cost is undue hardship • ii) no affirmative steops by defdtrequired • Not crazy argument • Many FHA provisions interpreted like parallel T7 provisions • BUT not clearly parallel here (religion v disability)

35. Chapter 4:Disability Accommodations Shapiro Reasonableness Analysis (DQ4.03-4.05) • D relies on Title VII religious accommodations • 2d Cir Rejects based on unusually clear legisl history i) Congress intended to interpret like Rehab Act §504 ii) no reference to TVII cases • Significant because different from Rehab Act standards iii) explicitly adopts Davisstds for §504

36. Chapter 4:Disability Accommodations Shapiro Reasonableness Analysis (DQ4.03-4.05) • D relies on Title VII religious accommodations • 2d Cir Rejects ; clear legisl history pointing to 504 • Examples in regs not especially helpful: very easy case for parking accommodation • D says shows only trivial accommodations req’d • Ct says shows pkg space can be acconn • Examples not exclusive • USSCt says interpret FHA generously • Qs

37. Chapter 4:Disability Accommodations Shapiro Reasonableness Analysis (DQ4.03-4.05) Reasonable Accommodation standards under Davis • Some costs on Dfdt OK • Proposed accommodation not reasonable if A) undue hardship (focus: difficulties for D disproportionate to harm to P) B) substantial burden (focus: magitude of bdn) C) fundamental alteration in nature of program (focus: problems withfhaving exceptions : law school & anxiety disorders)

38. Chapter 4:Disability Accommodations Shapiro Hard Q (DQ4.06) • Would the statute require the Cooperative to give her a parking space if it meant displacing the existing parking rights of another tenant.? • The court never needs to reach the hard question b/c unnecessary here b/c non-tenants using spaces & can be displaced • How should that question be resolved?