Is the Fair Housing Act applicable to Building Code issues?

For developers wanting to create small assisted living group homes, we often talk about the Federal Fair Housing Amendments Act, 42 U.S.C. § 3601, et seq. (FHAA) in the context of a city’s zoning code. It’s not uncommon for a planning jurisdiction to adopt exclusionary zoning that prohibits or severely restricts group homes for the disabled in single-family neighborhoods - something that is clearly violative of the FHAA. In cases like this, Pinkowski Law & Policy Group, LLC helps clients negotiate with local jurisdictions to get approval for their favored locations, often arguing under the FHAA that an exception to the zoning rules (or “reasonable accommodation”) is reasonable and necessary to allow the disabled residents an equal opportunity to live in the neighborhood.

What many people don’t realize is that the reasonable accommodation argument can be applied to more than just zoning. The FHAA defines discrimination to include, “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.” 42 U.S.C. § 3604(f)(3)(B). This requirement is broad enough to encompass building codes that otherwise would restrict a disabled person’s access to housing. Building codes or safety requirements that are not related to a person’s disability may be able to be challenged under a fair housing act argument.

This was the case for a recent PLPG client, whose assisted living homes were reclassified from R-4 (a residential use) to I-4 (an institutional use), imposing additional safety regulations that would have made construction of the homes cost-prohibitive. We showed that the intended residents of the home were not served by the additional requirements and that there were a multitude of safety measures in place to protect all residents. The Fire Marshall agreed and the project is now moving forward.

If you have questions about whether the Fair Housing Act applies to you, please reach out to our assisted living attorneys.

Michelle Pinkowski