Volume 13, No. 1, Winter 2005	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Community Legal Aid Society Works for Fair Housing

Daniel Atkins, Legal Advocacy Director
Laura Waterland, Senior Attorney, Disabilities Law Program

The Disabilities Law Program (DLP) and the Fair Housing Unit (FHU), programs within Community Legal Aid Society, Inc. (CLASI), advocate for the rights of people with disabilities throughout Delaware. In the last few years, the DLP has worked hard to ensure that housing applicants, tenants, and buyers have access to housing free of discrimination. Since the passage of the federal Fair Housing Amendments Act in 1988 (FHAA), which added people with mental or physical disabilities to the protected classes, there has been increased emphasis on addressing the problem of housing discrimination against people with disabilities.

Discrimination typically manifests itself in one of three illegal actions:

• Providing housing which is physically inaccessible for people with disabilities.
• Refusing to make reasonable accommodations to allow people with disabilities to use and enjoy their housing.
• Denying zoning permits to allow congregate housing for people with disabilities.

Accessible Housing

The FHAA has established minimum requirements of accessible design for multi-family housing. In non-elevator-serviced residential buildings with four or more dwelling units, all ground floor units designed and constructed for first occupancy after March 13, 1991 must include basic features of accessible and adaptable design. In properties with elevators, all units must have these features. Examples include accessible common areas; doorways wide enough to accommodate individuals who use wheelchairs; an accessible route into and through the dwelling; accessible light switches, electrical outlets, and thermostats; and kitchens and bathrooms that can be maneuvered in by people in wheelchairs.

The DLP, along with the U.S. Department of Justice, recently settled a federal court case against a large Delaware developer and architects who designed and built large apartment and condominium complexes that did not have adequate accessibility features. These apartments and condominiums had numerous violations of the FHAA, including steps at entrances, narrow doors, high thresholds, and switches and thermostats that were not accessible. In addition to the cost of retrofitting all of these first floor units, the defendants were required to pay over $60,000 to several aggrieved individuals and to place $400,000 in a settlement fund for other aggrieved individuals. This case should serve to inform other builders and developers in Delaware about their responsibility to build accessible housing.

Additionally, individuals with disabilities and their advocates should be aware of the affirmative obligations that owners and developers of housing built with federal money (e.g., public housing, Community Development Block Grant programs, Tax Credit, Section 811, and 202 properties) have under Section 504 of the Rehabilitation Act to make their units accessible for people with disabilities. In newly constructed or substantially renovated properties, 5 percent of all units must be wheelchair accessible. Additionally, owners of these properties must make reasonable modifications to existing units at their expense or offer to transfer the tenant requesting the modification to an accessible unit. Typical modifications include widening doorways, providing accessible appliances, and installing ramps and grab bars.

In private housing or in housing where the rent is subsidized through the Section 8 Voucher Program, landlords must allow tenants to make reasonable modifications at the tenant's expense. Under certain circumstances, landlords and owners may be required to make modifications to common property (e.g., sidewalks, parking lots, and clubhouses) at their own expense.

Advocates should be aware that the Department of Housing and Urban Development has made federal funding available to facilitate home modifications by home owners and renters. It is incumbent upon advocates to make sure that these federal funds, available through the HOME Investment Partnership Program and Community Development Block Grant programs, are being allocated in Delaware.

Reasonable Accommodations

Public and private landlords, as well as condominium and homeowners' associations, must make reasonable accommodations to rules and policies in order to allow tenants and owners with disabilities to use and enjoy their dwellings. Typical reasonable accommodation requests include the creation of designated parking spots, waiver of “no pets” policies, early termination of leases because of medical conditions, and under certain circumstances the acceptance of late rent. The DLP and FHU have handled numerous "reasonable accommodations" cases in federal court and before

administrative agencies. Remediation typically includes monetary settlements in addition to the provision of the accommodation requested.

Public Housing Authorities (PHAs) operating public housing and administering the Section 8 Voucher Program have heightened requirements under Section 504 of the Rehabilitation Act and the FHAA. They must make their programs accessible to people with disabilities. Reasonable accommodations in this context include assisting in the application process, including home visits if necessary, provision of additional time to complete applications, modifying screening criteria for admission, allowing additional time to find an accessible unit once a voucher has been issued, providing a higher payment standard to allow the tenant to lease an accessible unit, allowing the rental of a larger unit if necessary to accommodate a disability, and modifying rules to allow tenants with disabilities to avoid eviction.

The DLP and FHU have worked with Delaware PHAs to encourage them to be flexible when applying rules in all of these contexts, filing complaints when necessary. Moreover, we have prevented evictions and terminations of assistance for many clients when a reasonable accommodation in rules or policies would allow the tenant to remain. A recent example involved an individual terminated from a local Section 8 program as a consequence of behavior resulting from his mental illness. The DLP requested that the tenant be allowed to seek additional treatment and supervision in order to keep his voucher. As a result of litigation filed by the DLP, the individual was reinstated into the voucher program and is no longer homeless. In another case, the DLP persuaded a court to order a local PHA to allow a client tenant with cognitive impairments to be placed back in his unit after establishing that the client would be able to avoid future lease violations if he were allowed to obtain housekeeping services from an outside agency.

Zoning

The DLP has also devoted significant resources over the last few years to cases involving local resistance to congregate living for people with disabilities. Typically, in order for group homes for people

with disabilities to be established, local zoning boards must approve the building plans by issuing a variance. Zoning laws have historically outlawed large groups of unrelated people living in residential areas—hence the need for a variance. The DLP has worked to amend zoning ordinances in several jurisdictions to remove this impediment to construction of congregate housing for people with disabilities.

Unfortunately, it is not uncommon for neighbors and local government officials to resist the location of group homes in their communities. The DLP has been involved in cases throughout the state on behalf of groups trying to open residential homes for adults with mental illness and traumatic brain injury, children with serious mental illness, and a day center for young adults with significant physical disabilities. In each case, the programs have eventually opened, though not without significant transactional and litigation costs for both sides.

The federal and Delaware Fair Housing Acts provide important civil rights and remedies for people with physical and mental disabilities in Delaware. If you or someone you know has been discriminated against in the provision of housing, please contact the Disabilities Law Program, which has offices in each of Delaware's three counties. The Fair Housing Unit is located in our Wilmington office and can be contacted at (302) 575-0660. The DLP may be reached at (302) 575-0690 in New Castle County, (302) 674-8500 in Kent County, and (302) 856-0038 in Sussex County.

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The Fair Housing Unit at CLASI represents all protected classes under the Fair Housing Amendments Act, including race, color, religion, sex, familial status, or national origin, in addition to representing people with disabilities. increased emphasis on addressing the problem of housing discrimination against people with disabilities.