Both Washington State and federal law protect individuals with disabilities from discrimination, including discrimination that may result from municipal zoning ordinances. Because the scope of the protections afforded under state and federal law differ, it is possible for a zoning action to comply with one while violating the other. As a result, it is important for Washington municipalities to be familiar with both as they adopt, revise, or enforce zoning regulations.
The Federal Fair Housing Act
The Fair Housing Act (“FHA”) (42 U.S.C. §§ 3601 – 3631) is a federal law that “broadly prohibits discrimination in housing throughout the Nation.” Discrimination against individuals with disabilities that results from a zoning ordinance – either because of how the ordinance is drafted or because of how the ordinance is applied in a particular situation – falls within the FHA’s scope. There are three ways a zoning ordinance or action might violate the FHA:
The Washington Housing Policy Act
The Washington Housing Policy Act (“WHPA”) imposes independent state law requirements that overlay the FHA requirements discussed above. Specifically, the WHPA requires a municipality to treat a residence occupied by individuals with a disability no differently than a similar residence occupied by a family:
No county or city that plans or elects to plan under this chapter may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with [disabilities] differently than a similar residential structure occupied by a family or other unrelated individuals. As used in this section, “[disabilities]” are as defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
Unlike the FHA, the WHPA does not address intent or require a showing of discrimination. Equal treatment – in all respects – is the WHPA’s requirement.
These protections afforded to individuals with disabilities place significant limitations on a municipality’s zoning authority. Collectively, the FHA & WHPA make it unlawful for a municipality to:
Municipalities with questions about whether a zoning ordinance or action complies with the requirements of the FHA & WHPA should consult with an attorney experienced in this area of law.
 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 93 (1979).
 The FHA, which was enacted in 1968, uses the dated term “handicap.” The Supreme Court has noted that “disability” has the same legal meaning. See Bragdon v. Abbott, 524 U.S. 524, 631 (1998).
 Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1048 (9th Cir. 2007).
 Pac. Shores Props., Ltd. Liab. Co. v. City of Newport Beach, 730 F.3d 1142, 1156-57 (9th Cir. 2013).
 Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996).
 Ofxord House v. City of Baton Rouge, 932 F.Supp.2d 683, 692 (11th Cir. 2008).
 Giebler v. M&B Assocs., 343 F.3d 1143, 1156 (9th Cir. 2003).
 RCW 36.70A.410 (emphasis added). Note that while the core of the Washington Housing Protection Act is found at RCW 43.185B et seq. However, the requirements of RCW 36.70A.410 (which is part of the Growth Management Act) and the parallel statutes at RCW 35.63.220 (cities), RCW 35A.63.240 (legislative bodies), and RCW 36.70.990 (counties) are treated as part of the WHPA. See Sunderland Family Treatment Services v. City of Pasco, 107 Wn. App. 109, 119, 26 P.3d 955 (2001).
 Sunderland Family Treatment Services, 107 Wn. App. at 118-119.
Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
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