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: can’t modify w/o ldld’s [or condo board’s] permission • Can do modifications if “reasonable” & if “necessary” to use housing

4. REASONABLE MODIFICATIONS Landlord’s Interest Protected Because: • Can condition modification on agreement to restore interior(unless wouldn’t 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. Gov’t action against owners of trailer parkfor violation of reasonable modifications provision

6. US v. Freer (Necessity) • 5 steps (needs to be carried or assisted) • can’t 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 • Don’t 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) Defendant’s 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 P’s 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 Roe’s counsel?What safeguards would be necessary to ensure that these accommodations were reasonable?

22. ANNOUNCEMENTS • Exam Workshop Today @12:30 in 209 • Assignment III Available Tomorrow a.m. Outside My Office • Assmts IV & V & Midterm Monday 11/27 • Qs on Grading/Comments • Check Online for New Info Memos & Post-Thanksgiving Office Hours • I’ll Review Old Exam Qs Through 12/10

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 municipality’s refusal to allow permit for home for mentally retarded • SCt said it was doing “rational basis,” but seemed to be stricter • Clear gov’t 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 int’l 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 We’ll focus on Defenses to Intentional Discrimination

31. Bangerter: Overview • Rejects FamilyStyle Defense • Addresses/Limits “Direct Threat” Defense • 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 wFamilyStyle 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 wFamilyStyle 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 gov’t • Would allow strict scrutiny defense to FHA race claims re govt:

35. Problems wFamilyStyle Defense • Odd to use constitutional stds for FHAA • FHA draws no such distinction between protected characteristics

36. Problems wFamilyStyle 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 wFamilyStyle 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. • can’t base on “blanket stereotypes” or “generalized perceptions” • relies on House Report: can’t 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 Bangerter’s “benign” category.

45. Bangerter: “Benign” Discrimination 10th Cir. Recognizes Non-Statutory Defense: Benign Discrimination • Shouldn’t 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 can’t 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 Q’able: • Imagine same re any other listed characteristic • E.g., allow children in complex only w committee to monitor effects on other tenants