How the Fair Housing Act & Washington Housing Policy Act Protect Against Disability Discrimination in Zoning

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.”[1] 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.[2] There are three ways a zoning ordinance or action might violate the FHA:

1. Discriminatory Intent: A zoning ordinance that intentionally discriminates against individuals with a disability violates the FHA.[3] Discriminatory intent can be established through either direct or circumstantial evidence.[4]
2. Discriminatory Impact: Even when no discriminatory intent is present, a zoning ordinance violates the FHA if it results in “a significantly adverse or disproportionate impact” on individuals with a disability.[5]
3. Sure to Make Reasonable Accommodation: The FHA requires municipalities to make reasonable accommodations to zoning regulations when “necessary to afford [those with a disability] equal opportunity to use and enjoy a dwelling.”[6] Municipalities only have a duty to provide accommodations that are both (1) reasonable (meaning the accommodation would not result in any undue hardship on the municipality and would not undermine the basic purpose of the challenged law)[7], and (2) necessary (meaning that without the accommodation, the requester would be “denied an equal opportunity to enjoy the housing of their choice.”)[8]

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).[9]

Unlike the FHA, the WHPA does not address intent or require a showing of discrimination.[10] Equal treatment – in all respects – is the WHPA’s requirement.

Conclusion

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:

1. Enact a facially discriminatory zoning ordinance that explicitly treats individuals with a disability less favorably (discriminatory intent & WHPA),
2. Enact a facially neutral ordinance that nevertheless disproportionately adversely impact those with a disability (discriminatory impact),
3. Enact an ordinance that treats a residence occupied by individuals with a disability differently than a similar residence occupied by members of the same family (WHPA), or
4. Fail to provide a reasonable accommodation that is necessary for an individual with a disability an equal opportunity to enjoy housing (failure to make reasonable accommodation).

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.

[1] Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 93 (1979).

[2] 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).

[3] Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1048 (9^th Cir. 2007).

[4] Pac. Shores Props., Ltd. Liab. Co. v. City of Newport Beach, 730 F.3d 1142, 1156-57 (9^th Cir. 2013).

[5] Pfaff v. HUD, 88 F.3d 739, 745 (9^th Cir. 1996).

[6] 42 U.S.C. § 3604(f)(3)(B).

[7] Ofxord House v. City of Baton Rouge, 932 F.Supp.2d 683, 692 (11^th Cir. 2008).

[8] Giebler v. M&B Assocs., 343 F.3d 1143, 1156 (9^th Cir. 2003).

[9] 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).

[10] Sunderland Family Treatment Services, 107 Wn. App. at 118-119.