Owner attorney says denial would be discrimination
By Dan McLeister For The Elmhurst Independent
The Federal Housing Amendments Act (FHAA) prohibitions clearly extend to discriminatory zoning practices, according to Scott Day, attorney for Elmhurst Extended Care (EEC). Day spoke at an April 24th meeting of the Development, Planning and Zoning (DPZ) Committee.
All three aldermen on the DPZ Committee rejected the EEC plan to expand. Previously the Zoning and Planning Commission (ZPC), an advisory entity, voted by a 3-2 margin against the plan.
The final vote will come from the City Council, which will likely consider the topic at its second meeting in May.
It is possible that the owner of EEC could file a lawsuit against the City if the City Council also rejects the expansion plan, Day contended.
The owner has paid for a court reporter to take notes not only at DPZ meetings but also at the deliberation session of the ZPC. Normally, the City pays for a court reporter only at a public hearing.
Day said that the Federal House Committee Report states that the FHAA “is intended to prohibit the application of special requirements through land-use regulation, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of (the handicapped) to live in the residences of their choice in the community.”
“It is within the FHAA context that EEC challenges the unsupported neighbor claims of diminished land value, unsupported fears of flooding, unsupported allegations of detrimental traffic, false assertions of detrimental lighting and insistence that housing the disabled is a commercial land use,” the attorney said.
Day noted that Federal courts have ruled that such stereotypical unsupported assertions about housing for the disabled legally constitute discrimination under the FHAA.
Discrimination in the context of the FHAA is far more broadly defined than is commonly understood by either laymen objectors or even many zoning officials, Day said.
“The type of discrimination prohibited by the FHAA and the American Disabilities Act (ADA) includes not only intentional, actual animus against the disabled, which is commonly understood, but also includes zoning regulations which inflict disparate treatment of the disabled.
“Discrimination also includes the failure of zoning officials to take reasonable accommodations for the disabled when necessary.
“In order to prove discrimination it is not even necessary to show an evil or hostile motive. It is a violation of the FHAA to discriminate in land use regulation even if the motive is benign.”
Day concluded that based upon the testimony and evidence submitted, EEC submits it has met all standards such that the requested conditional use, with appropriate conditions, should be granted.
When the vote was taken, all three Committee members voted against the plan. It will now go before City Council.
