Last month, your community’s Zoning Board of Appeals considered an application for a variance to allow a wheelchair ramp to extend into a front setback area. The ramp was necessary for the applicant to enter their home, which had a door threshold several feet above grade, requiring a long ramp with a turn to maintain the necessary slope. The ZBA, while sympathetic, found that the application did not meet the standards for a variance – the request was not the result of any unique condition of the property, but rather the circumstances of the applicant.
In today’s mail you received a notification from the United States Department of Justice, indicating that it was initiating an investigation for alleged violations of the Americans with Disabilities Act (“ADA”) and Federal Fair Housing Act (“FFHA”), and threatening possible fines, restitution, injunction, mandatory training, and ongoing compliance monitoring. Many years ago, your municipality audited its buildings and facilities and programs to make sure they were accessible to persons with disabilities. What had been missed?
Part II of the ADA prohibits discrimination against disabled persons, or denial of the benefits, services and programs of local government on the basis of disability. (In essence, the requirements of the FFHA are the same as the ADA requirements). According to the regulations implementing the ADA:
“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”
These “policies, practices and procedures” include local zoning ordinances. According to the Title II Technical Assistance Manual published by the Department of Justice includes the following commentary:
“II-306000. Reasonable modifications.
II-3.6100 General. A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public entity can demonstrate, however, that the modifications would fundamentally alter the nature of its service, program, or activity, it is not required to make the modification.
ILLUSTRATION 1: A municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district. In order to install a ramp to the front entrance of a pharmacy, the owner must encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reasonable modification of town policy.”
An example of court cases in which municipalities were found to have violated the ADA by not waiving general ordinance requirements is a situation in which a disabled homeowner sought to build a paved parking space in front of their home. Another example involved an ordinance which prohibited front or side driveways.
The fact that there might be other alternatives which comply with the zoning ordinance is not sufficient; the focus is on whether the modification would afford people with disabilities the same opportunities those without disabilities. Thus, for example, a request to expand a garage to accommodate an indoor wheelchair ramp to an internal door could not be denied merely because an outdoor wheelchair ramp to the front door could be constructed in compliance with the zoning ordinance. The ability to have indoor access from a vehicle, especially during winter months, may be necessary to allow a person with a disability the same enjoyment of their home as other persons.
In order to qualify for a reasonable modification of the zoning ordinance under the ADA, an applicant need not meet the requirements for a variance. Rather, the applicable test is:
- Whether the person to be accommodated has a disability.
- Whether the modification requested is reasonably necessary to accommodate that disability.
- Whether the modification would fundamentally and unreasonably alter the nature or purposes of the zoning ordinance. The burden is on the municipality to prove this would occur.
Few zoning ordinances include procedures for evaluating a request for accommodation under the ADA or FFHA. This leaves zoning administrators and zoning bodies in a quandary between following the requirements of federal law, or the provisions of their own zoning ordinance.
A simple step to cover many situations would be to amend the zoning ordinance to permit the extension of wheelchair ramps and lifts into setback areas. A more comprehensive ordinance could include a procedure for making application for an accommodation under the ADA, assignment of the decision to a zoning official or body such as the Zoning Board of Appeals, and the standards for decision. An ordinance may, in some cases, provide that the accommodation is not transferrable to a new owner, and must be removed if no longer necessary.
It is important that your zoning officials recognize that the ADA and FFHA can require modification of the zoning ordinance, under standards different than those which apply to a request for a variance. In addition, we recommend that you consider amending your zoning ordinance to provide a procedure to consider requests for accommodation under the ADA and FFHA.