Fair Housing and Building Code Enforcement
It’s no secret that buildings can kill people. Usually, in the developed world, we have the luxury of forgetting this, but the recent Champlain Tower collapse in Surfside, Florida was a grim reminder. People in the developing world experience such reminders more frequently, such as in Dhaka, Bangladesh, where I recently worked on promoting building safety to improve urban resilience and where fires and building collapses have claimed thousands of lives, including more than 50 in the past week.
In the United States, we pride ourselves on having and enforcing building codes to keep people safe, and there is no question that this is a laudable endeavor. Making sure that people are safe from building hazards is especially important when it comes to vulnerable populations, such as disabled people living in assisted living homes. Municipalities and those who care for people with disabilities alike are united in this goal.
But what happens if safety restrictions are designed or interpreted in a way that does not make a building safer but, rather, makes it so that certain people can’t live in the building at all? Or when safety requirements are applied differently to different types of people, based on generalized perceptions but not the actual capabilities of the residents themselves? In fact, there are certain instances when building codes or other safety requirements are too excessive. This generally happens when the “safety” requirements are established or applied based on stereotypes or misperceptions about a given population’s capabilities. In some cases, it can also be a pretext for trying to keep certain people out of the neighborhood altogether.
In these instances, the building code or safety requirement may run afoul of the federal Fair Housing Amendments Act (“FHAA”). If so, a state or municipality must grant an exception, called a “reasonable accommodation,” to the discriminatory rule. This blog discusses when such an exception is warranted.
The FHAA is “a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals.”[1] In passing the FHAA, Congress recognized that “[t]he right to be free from housing discrimination is essential to the goal of independent living.”[2] To further this goal, the FHAA represents
a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with [disabilities] be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.[3]
When it comes to housing for people with disabilities, the FHAA prohibits certain discriminatory conduct. This includes making a dwelling “unavailable” or actions that discriminate “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling.”
The general rule is that a municipality may impose special safety requirements on homes for the disabled, but these requirements must be "warranted by the unique and specific needs and abilities of those handicapped persons."[4] If they are not, the rules may be discriminatory.
Some examples include:
Imposing higher fire safety requirements on memory care homes than on standard assisted living homes, even though there is no indication that memory care residents in assisted living are less able to care for themselves than other assisted living residents.
Requiring a “sober home” or a home for developmentally disabled adults to install fire sprinkler and fire alarm systems, even though there is no indication that people in recovery or people with developmental disabilities are less able than people living in a single-family home to evacuate in the event of a fire.
Insisting that construction work to convert a single-family home into an assisted living residence be done by a licensed commercial contractor, rather than a residential contractor, as would be required for other single-family home remodels.
If a rule is discriminatory, the governmental entity must make “reasonable accommodations in rules, policies, practices, or services,” if such accommodations are necessary to afford people with disabilities an equal opportunity to use and enjoy the dwelling. The “accommodation” should be designed in a way that assesses the actual danger involved. For example, in Oxford House v. Browning, the court noted that without the requested accommodation, the sober home residents’ recovery from alcoholism and drug addiction—and perhaps even their lives—would be in danger because the home could not afford to meet the safety standards and would have to close. On the other hand, granting the accommodation would not increase the danger from fire, because the residents were as capable as a “family” to keep themselves safe. Thus, to comply with the FHAA, the fire marshal had to grant the requested exemption from the fire sprinkler and alarm system requirements.
We certainly want all people - including those with disabilities – to live in a safe and healthy environment. But we also want them to have an equal opportunity to live in neighborhoods and communities alongside people without disabilities, as we know that this has its own positive outcomes for health and wellbeing. Therefore, if you encounter a building code requirement that you feel is excessive or discriminatory, make sure to talk to your attorney about your options under the Fair Housing Act.
[1] Alliance for Mentally Ill v. City of Naperville, 923 F. Supp. 1057, 1069 (N.D. Ill. 1996), citing Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995).
[2] H.R.Rep. No. 711, 100th Cong., 2d Sess. 18, U.S.Code Cong. & Admin.News 1988, pp. 2173, 2179.
[3] Id.
[4] Marbrunak v. City of Stow, 974 F.2d 43, 47 (6th Cir. 1992); Alliance for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057 (N.D. Ill. 1996).