General Note on Legislative History & Zoning

1. Property II: Class #24Monday 11/12/18Power Point PresentationNational Pizza with the Works (Except Anchovies) Day

2. Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims Against Gov’t DefendantsZoning I: Individual Residences ((3603(b) cont’d)

3. 3603(b): Nothing in [§3604] (other than subsection (c)) shall apply to— • (1) [SFH exemption] any single‑family house (SFH) sold or rented by an owner [Note this doesn’t include Dadian]: Provided, That • O doesn’t own more than 3 such SFHs or proceeds from more than 3 SFHs • Exemption on no more than one sale a year • Sale/rental done without use of real estate professional or discriminatory ads • (2) [Boarding House exemption] rooms/units in dwellings intended to be occupied by no more than four families if the owner lives there 4.20. Should Exemption apply to Zoning claims? HELP FROM LEGISLATIVE HISTORY? (PRETTY GENERAL)

4. General Note on Legislative History & Zoning • Like racial issues that motivated the FHA in 1968, what is at stake is integration/segregation & difficulty for PWDs to find appropriate housing in ordinary residential neighborhoods. • Definitions of family, density limits, and direct exclusion or limitation of group homes were common  lots of FHAA cases. • Smith & Lee and Hovson’s (cited in Hemisphere Bldg) both rely heavily on legislative history promoting integrated residential neighborhoods

5. Written Submission #5: Due Sunday 11/18 @ 8 pm • Two 3-Page Questions • See Specific Formatting Instructions on p.13 of Overview Memo (Avoid Add’l Penalties) • Aggregate Penalties on Assmts #3 & #4 (Remember Penalties Double on Final Exam) • Header in wrong font (-0.5) & Whole document in wrong font (-1.0) • 2d Question not started on new page (-1.0) • No Page Numbers (-0.5) & Alias not put into header (-0.5) • Lateness -0.6

6. Written Submission #5: Due Sunday 11/18 @ 8 pm • Two 3-Page Questions • (1) Mixed Chapter Exam Question M1B: Is C entitled under 3604(f)(3)(b) to a waiver from the Z rules (as a reasaccomm) to build his ramp in the front of his house. Not REAS MODIF b/c he owns the house. • Assume 3604(f)(3)(b) governs the problem and no exemptions apply. • Assume the Davis test from the Rehab Act generally governs the meaning of “reasonableness” but the specific cases we read are otherwise persuasive rather than binding. • Discuss both necessity and reasonableness. • QUESTIONS ON M1B?

7. Written Submission #5: Due Sunday 11/18 @ 8 pm • Two 3-Page Questions • (2) Review Problem 3C: Is A entitled to modify the building and/or the parking lot of his NCU restaurant under the legal standard provided? • Although you will not use the legal standards from Gage and Parrillo’s, you can use the analysis, language, and distinctions in those cases to support points you make about the relevant interests of the parties. • Assume that, in order to continue operating a Pizza Knoll outlet, A must offer delivery service and must use the delivery trucks supplied by the national headquarters. • QUESTIONS ON 3C?

8. Written Submission #5: Due Sunday 11/18 @ 8 pm • Two 3-Page Questions • General Points • Job is to find strongest arguments for each side & (ideally) tie-breaker arguments about which set of arguments might be stronger. • Warning re stating result at beginning of discussion • Treat the additional info on slides as part of If your instructions. If you are unsure of the task I’ve assigned for either Q, ASK. • Note re depth of indentations and cutting down you available space.

9. Common Sense For Written Submission #5 & Exam • Think about how I’m likely to structure a Question • Think about whether different aspects of the doctrine fit the facts of the Question Some thoughts (with my back to you!!) • From ASSMT 3; first part of 2I (challenging the original rule) • From ASSMT 4; ZONING SECTION

10. Common Sense For Written Submission #5 & Exam • Think about how I’m likely to structure a Question • From ASSMT 3; first part of 2I (challenging the original rule) • Two Parts to Q Address Different Things: Orig. Rule v. Facebook • Public Policy v. ConstRt: Do Rt to Expression Once & Defend • Not Arbitrary • “in Application:” = “To Apply” (not same as 2d part of Q) • Incredibly hard to meet “arbitrary” standard; if valid purpose, probably OK • Don’t Rely Heavily on Policies Built into Rule • In declaration always means Notice: why important here • Constrts never run ag. HOA; can still give up too much (e.g. voting) • Look for Ways to Challenge: Indoor/Outdoor; Fined for Guests

11. Common Sense For Written Submission #5 & Exam • Think about whether different aspects of the doctrine fit the facts of the Question • From ASSMT 4; ZONING SECTION • Generally: Zoning only by Gov’t (HOA Reghs are not Z) • Non-Conforming Use? No significant investment; removed • Special Exception? Unlikely for aesthetics or for holiday lights • Variance? Need some kind of hardship tied to property value • More generally on Lawyering Q: Don’t Argue. Check instead (possible that city ordinance is not applied to holiday decorations; possible that state limits aesthetic Z, etc.)

12. Heart Of Chapter 4 is Determination of What Constitutes “Necessary” and “Reasonable” for Purposes of 3603(f)(3)(A) & (B)As review for Chapter, you should compile for yourself the range of language anf fact situations that cases say meet the tests (or don’t).

13. Heart Of Chapter 4 is Determination of What Constitutes “Necessary” and “Reasonable” for Purposes of 3603(f)(3)(A) & (B) Notes on ADA Materials for Wed • Purposes on Looking at ADA Public Accommodations Cases • See kind of cases that can arise when clients operate public accommodations • Like FHAA, additional accessibility reqmts for new construction. Facilities in cases built before effective date of ADA • Get ideas about reasonableness, necessity, direct threat, that you could use by analogy in FHAA cases • Key statutes in handout. Note that “reasonable modifications” equivalent to reasaccomm in housing (changes in policies & procedure, not self-funded building)

14. Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims Against Private DefendantsProblems: DQ4.15 & Rev. Prob. 4A

15. DQ 4.15 : Pvt Dfdt Hypo Mandel & McLaughlin • Darcy is a mobility-impaired tenant who lives on the third floor of an apartment complex with an old elevator that breaks down frequently. • When the elevator isn’t working, Darcy needs assistance to go up and down the stairs and these climbs are still long and painful. • Because replacing the elevator is expensive, the landlord has offered Darcy a ground floor apartment in the same building. What additional facts would help you to determine whether this accommodation should be considered sufficient?

16. DQ 4.15 : Pvt Dfdt Hypo Mandel & McLaughlin What additional facts would help you to determine whether this accommodation should be considered sufficient? • Who arranges move & pays moving costs? • Differences between the two apts in layout or amenities • Special problems of new apt (smells, noise, etc.) or difficulties moving around the ground floor • Proximity to parking space (if claimant drives) • Access to common areas on other floors (e,g., laundry room) • CONGDON v. STRINE, 854 F.Supp. 355 (E.D. Penn. 1994) found the new apartment satisfied the reasonable accommodation requirement apparently without any inquiry regarding these types of concerns

17. Rev Prob 4AFriedhoff & Ramos • Generally: V is vision-impaired; buys in complex because easy walking access to bus stop. HOA closes off accessways to stop to prevent vandalism. V now has much longer walk, some on unpaved road • Is some accommodation Necessary (“to afford such person equal opportunity to use and enjoya dwelling”?)

18. Rev Prob 4AFriedhoff & Ramos • Generally: V is vision-impaired; buys in complex because easy walking access to bus stop. HOA closes off accessways to prevent vandalism. V now has much longer walk, some on unpaved road • Is some accommodation Necessary (“to afford such person equal opportunity to use and enjoya dwelling”?) • Relevance of wife taking him to bus stop or work? • Relevance of other residents also losing access to nearer bus stop? • Possible accommodations?

19. Rev Prob 4AFriedhoff & Ramos • Generally: V is vision-impaired; buys in complex because easy walking access to bus stop. HOA closes off accessways to prevent vandalism. V now has much longer walk, some on unpaved road • Possible accommodations? Reasonable? • Putting locks on one of the old gates & (A) giving V a key OR (B) putting staff member there to allow any resident to use at specified times? • Does HOA have golf cart & staff who could take V to bus stop? • Check administrative & vehicle use costs • Compare to staff member walking with him • Other?

20. Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims against Govt DefendantsZoning II: Group Homes

21. Zoning II: Group Homes Smith & Lee Generally • P wants to run home for elderly disabled w Alzheimer’s etc. • State has limit of 6 people in gp home in res n-hood w/o city approval • Z Board denies P’s request for 12 people (somehow morphs to 9) • TCtfinds viol both on intent & reasaccomtheories • CtApp affirms reasaccomm claim; reverses on intent • Shows difficulty of proving bad intent against govt even where some evidence of individual stereotyping (can look at dissent for more info)

22. Zoning II: Group Homes Hemisphere Building Generally • P wants to build multi-unit wheelchair accessible residences for sale • Zoning doesn’t allow requested density • Village denied special use permit; offers smaller density proposal a. P wd have to increase price 10% to cover costs, b. P didn’t think he cd sell at higher price & abandons project • 7th Cir rejects both intent and reasaccomm claims • CtApp Distinguishes Hovson’s (3d Cir) • 3d Cir Held city had to allow nursing home in residential n-hood • Found no evidence to support claim of incompatibility w n-hood

23. Zoning II: Group Homes DQ4.21-4.23 Ramos & McLaughlin 4.21. What does Smith & Lee tell us about the meaning of “necessary”? • “P must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice” • “The concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.” How does the court support its conclusion that rezoning to allow 9 residents is “necessary” under these tests?

24. Zoning II: Group Homes DQ4.21-4.23 Ramos & McLaughlin How does the court support its conclusion that rezoning to allow 9 residents is “necessary” under these tests? • Often only means for disabled elderly to live in resid n-hood • Shortage of facilities b/c need 9 residents to be profitable 4.22: Hemisphere Bldgsays lowering density reqmts is not “necessary” because simply makes to units to be built cheaper; would be fixing lack of $$$, not problem created by disability. • Convincing? How might you distinguish Smith & Lee?

25. Zoning II: Group Homes DQ4.21-4.23 Ramos & McLaughlin Smith & Lee • Findings that higher occupancy needed to have this kind of housing at all in residential n-hoods. • Effect of $$ is on supplier of housing, not on PWDs directly, so supply of housing itself not possible Hemisphere • No evidence that people in wheelchairs (who could otherwise afford to buy condo unit) couldn’t find housing w/o rezoning. • Extra cost falls directly on PWD home-buyers, so CtASpp says problem is $$ not disability

26. Zoning II: Group Homes DQ4.21-4.23 Ramos & McLaughlin 4.22: Hemisphere: Anything in legislative history tell us if this view of “necessity” is OK? • Again, nothing specific. Could argue about thrust of Congress’s intent.

27. Zoning II: Group Homes DQ4.21-4.23 Ramos & McLaughlin • 4.23. Smith & Lee relies on Davis for meaning of “reasonable” • Undue financial or administrative burden • Court says requires balancing) • No evidence of here • Fundamental alteration: • Both Smith & Lee and Hovson’slook to compatibility with single family residential n-hoods • Like negative criteria in zoning

28. Zoning II: Group Homes DQ4.21-4.23 Ramos & McLaughlin • 4.23. Smith & Lee finds no fundamental alteration of n-hood where • Shift from 69 residents in one house • Like family, generally eat & do social activities together • Generally don’t drive, so no traffic/parking issues (but ignores potential for more visitors) OK with this? QUESTIONS on GROUP HOME CASES??