1. Property II: Class #21 Wednesday 10/31/18 Power Point Presentation National Doorbell Day & National Knock Knock Jokes Day Knock, knock! Who's there? The doorbell repair man Knock, knock! Who's there? A little boy. A little boy who? A little boy who can’t reach the doorbell Knock, knock! Who's there? Belladonna. Belladonna who? Belladonna work, so I had to knock Knock, knock! Who’s there? Figs. Figs who? Figs your doorbell, it’s not working!

2. Important Upcoming Dates
Music to Accompany Shapiro Annie Lennox, Medusa (1995) featuring “I Can’t Get Next to You” [Without a Good Parking Space]
On Course Page
Extended Chapter 4 Materials (w Monday’s Assignment)
Updated Syllabus
Info Memo for Chapter 3 (Write-Ups of Most Review Problems)
Important Upcoming Dates
Fri 11/2: Fajer Exam Workshop Room 1-2:20 p.m.
Sat 11/3-Sun 11/4: Turn Clocks Back 1 Hour (Extra Sleep!!)

3. Review Problem 3F
Lawyering

4. li S inherits house from Great Aunt A
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3F
Lawuering
& Zoning
Key Facts
S inherits house from Great Aunt A
House built in wooded area almost 50 years ago w rooms for medical practice
Now in residential neighborhood
S wants to expand/renovate to use as home & dental practice w apt for key employee
A’s atty’s give her warning re possible zoning issues (Generally: these should be primary focus)
Apt for Employee (Household Composition; Last Time)
Setback Requirements
Continuation of Medical Practice (NCU)

5. Continuation of Medical Practiceli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
NCU
Issues
Mandel
Fleming
& Friends
Continuation of Medical Practice
Check if Currently Allowed in Residence in Zone
Might Confirm Allowable When Built
Assuming Medical Practice is Non-Conforming Use, Major Issues?

6. Continuation of Medical Practiceli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
NCU
Issues
Mandel
Fleming
& Friends
Continuation of Medical Practice
Assuming NCU: Check state law & Z:
Possible Time limits on NCU?
Possibly Change of Use of NCU (Medical to Dental) ?
Limits on Renovation/Repairs of NCU?

7. Continuation of Medical Practiceli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
NCU
Issues
Mandel
Fleming
& Friends
Continuation of Medical Practice
Assuming Medical Practice is NCU: Check state law & Z:
Time limits on NCU?
How long allowed? When Z making it NCU began?
State Law limits on amortization period
Possibly Change of Use of NCU (Medical to Dental) ?
Limits on Renovation/Repairs of NCU?

8. Continuation of Medical Practiceli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
NCU
Issues
Mandel
Fleming
& Friends
Continuation of Medical Practice
Assuming Medical Practice is NCU: Check state law & Z:
Time limits on NCU?
Possibly Change of Use of NCU (Medical to Dental) ?
Check Rules for Change? Substantial? Burden on Claimant?
Compare Medical  Dental to Relevant Test
Get details re A’s practice & compare to S plans (Hours/Days of Operation, # of Patients/Cars, Length of Visit, Noise?)
Get details re possible impact on neighbors & possible change

9. Continuation of Medical Practiceli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
NCU
Issues
Mandel
Fleming
& Friends
Continuation of Medical Practice
Get details re A’s practice
Check published ads or website or literature left in house
Check w former employees & A’s attorneys
Check w neighbors re effects
Check w S

10. Continuation of Medical Practiceli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
NCU
Issues
Mandel
Fleming
& Friends
Continuation of Medical Practice
Assuming NCU: Check state law & Z:
Possible Time limits on NCU?
Possibly Change of Use of NCU (Medical to Dental) ?
Limits on Renovation/Repairs of NCU?
Check rules & compare to S’s plans
Check with Board re Possible Variances/Exceptions

11. Check Rules for Zone & Compare to S Plansli
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
Issues
re Sertback
Ramos
McLaughlin
& Friends
Setback
Check Rules for Zone & Compare to S Plans
If would violate setback reqmts, check if S can alter plans to fit
Check re Consequences of Violation. Steps (ME)?

12. li Setback Check re Consequences of Violation.
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
Issues
re Sertback
Ramos
McLaughlin
& Friends
Setback
Check re Consequences of Violation.
Would Local Govt Enjoin or Do Continuing Fine? (S might be OK w 1- time fine)
Availability of Variance (V)
Check w Local Attorneys re ease of getting Vs
Check Hardship Reqmts
Check Negative Criteria (Rules?)

13. li Setback Check re Consequences of Violation.
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
Issues
re Sertback
Ramos
McLaughlin
& Friends
Setback
Check re Consequences of Violation.
Availability of Variance (V): Check Negative Criteria
State/Local Rules? Harm to Z Plan? Harm to Public Good? Other?
Details re Z Plan?

14. li Setback Check re Consequences of Violation.
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3E
Issues
re Sertback
Ramos
McLaughlin
& Friends
Setback
Check re Consequences of Violation.
Availability of (V): Check Negative Criteria: State/Local Rules?
Harm to Z Plan?
Extent of Violation? How Close to closest buildings?
Other violations in n-hood? Look, Ask neighbors, real estate agents
Harm to Public Good?
Effect on S’s & Neighbors’ PV? Check real estate professional
Fence or other buffer?

15. Written Submission #4: Due Tomorrow 11/1 @ 8pm
One 7-Page Question: Lawyering Question M2
Handout Today with Presentation/Editing Tips Specific to Lawyering Qs (Includes location of relevant slides & Posted Comments/Models)
Comments/Models on 3E & 3F Posted Now in Info Memo for Chapter 3
Review Formatting Rules Before Submission
I will be in office & available for Qs 8:30-10:30 am tomorrow; after that I’m not reachable
QUESTIONS?

16. Chapter 4: DISABILITY ACCOMMODATIONS Introduction to Statutes & Legal Claims

17. Chapter 4: Disability Accommodations Introduction: The Statutes
Rehabilitation Act §504,29 USC §701 et seq. (Federal Grantees & Contractors 1973)
Fair Housing Amendments Act, 42 USC §3601 et seq. (FHAA = Housing 1988) (some history of original 1968 FHA and Amendments in my Symposium Introduction)
Americans with Disabilitiea Act, 42 USC §12101 et seq(ADA = Employment, Public Accommodations & Gov’t Programs/ Services/Buildings 1991)

18. Chapter 4: Disability Accommodations Introduction: The Legal Claims
Operation of Anti-Discrimination Laws Generally
Intentional Discrimination:
Need to prove:
D did act specified in statute
“because of” a characteristic listed in statute
Generally does not protect classes of people; Instead protects anyone from decisions made for prohibited reasons (bad intent)

19. Chapter 4: Disability Accommodations Introduction: The Legal Claims
Operation of Anti-Discrimination Laws Generally
Intentional Discrimination:
Need to prove:
D did act specified in statute
“because of” a characteristic listed in statute
Bad intent cam be hard to prove, especially where plausible neutreal reason for the act in Q

20. Chapter 4: Disability Accommodations Introduction: The Legal Claims
Operation of Anti-Discrimination Laws Generally
Intentional Discrimination (Must Prove Bad Intent)
Neutral Policies with Disparate Impacts
Need to prove that a facially neutral practice or policy has a statistically significant negative impact on a group defined by one of the listed characteristics
Always some sort of defense based on important neutral reason supporting practice/policy (e.g., business necessity)

21. Chapter 4: Disability Accommodations Introduction: The Legal Claims
Operation of Anti-Discrimination Laws Generally
Intentional Discrimination (Must Prove Bad Intent)
Neutral Policies with Disparate Impacts
Facially neutral practice/policy has a statistically significant negative impact on relevant group
Defense based on importance of underlying reasons
Two possible remedies
Eliminate challenged policy/practice
Allow exceptions (e.g., affirmative action)

22. Chapter 4: Disability Accommodations Introduction: The Legal Claims
Operation of Anti-Discrimination Laws Generally
Intentional Discrimination (Must Prove Bad Intent)
Neutral Policies with Disparate Impacts
Specified Acts Unlawful without Proof of Bad Intent
Narrow range of conduct unlawful regardless of motive
E.g., giving employment terms to women different from those given to similarly situated men (absent a statutory defense)

23. 1. Intentional Discrimination (Must Prove Bad Intent)
Chapter 4: Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604
1. Intentional Discrimination (Must Prove Bad Intent)
Denial of Housing: 3604(a) & 3604(f)(1)
Misinforming re Availability : 3604(d)
Steering: Either or Both of Denial and Misinformation
Harassment/Retaliation: 3617

24. 1. Intentional Discrimination (Must Prove Bad Intent)
Chapter 4: Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604
1. Intentional Discrimination (Must Prove Bad Intent)
Harassment/Retaliation: 3617: . Interference, coercion, or intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [§§ 3603, 3604, 3605, or 3606].

25. 2. Neutral Policies with Disparate Impacts
Chapter 4: Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604
2. Neutral Policies with Disparate Impacts
Denial of Housing: 3604(a) & 3604(f)(1)
Denial of Reasonable Modifications: 3604(f)(3)(a)
Denial of Reasonable Accommodations: 3604(f)(3)(b)

26. Chapter 4: Disability Accommodations
Chapter 4: Disability Accommodations The Legal Claims Under the FHA/FHAA: 42 USC §3604
3. Specified Acts Unlawful without Proof of Bad Intent
Different Terms: 3604(b) & 3604 (f)(2)
Advertising: 3604 (c) (Would “Ordinary Reader” see Preference)
Blockbusting: 3604€
Accessibility in New Housing:L 3604(f)(3)(c)
NOTE re Circuit Splits & Lack of USSCt Interest

27. Chapter 4: Disability Accommodations
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
3604(f)(3): For purposes of this subsection [MEANS (f) = “Handicap” provisions], discrimination includes—
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling;
Language (& legislative history) suggest
Congress trying to allow PWDs generally
to have real access to most housing units

28. Chapter 4: Disability Accommodations
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
3604(f)(3): For purposes of this subsection [MEANS (f) = “Handicap” provisions], discrimination includes—
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling;
As is true for other federal disability statutes,
key terms are NECESSARY and REASONABLE.
Determining meaning of these terms is heart of Chapter 4.

29. Reasonable Accommodations Prima Facie Case
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
Reasonable Accommodations Prima Facie Case
Interested person has a “handicap” & D knew of
Accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling;
Proposed accommodation is reasonable
Housing provider or govt refuse to allow the proposed accommodation

30. Reasonable Accommodations Prima Facie Case
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
Reasonable Accommodations Prima Facie Case
Interested person has a “handicap” & D knew of
Determining “Handicap” under statute & regs
Similar under all 3 statutes
Can be difficult issue in some instances
Will not be a testable issue for us; I’ll give you easy examples
D knew of handicap is usually easy in Reasonable Accommodation/Modification cases because P requests & D denies the proposed accommodation

31. Reasonable Accommodations Prima Facie Case
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
Reasonable Accommodations Prima Facie Case
2. Accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling;
Statute using “may be” leaves strength of this requirement unlear
We’ll do caselawexploring “necessary, but Shapiro is easy
Nearby parking = substantial part of use & enjoyment of dwelling:
W/o close parkingg: P risks injury, infection, humiliation
Fact claims re street parking & cathetyer fall in this category

32. Reasonable Accommodations Prima Facie Case
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
Reasonable Accommodations Prima Facie Case
3. Proposed accommodation is Reasonable
Not explicitly defined in statute or regs
Shapiro is first major case to address and relies on legislative history
Use of Davis standards now is universal (but interpretation of them is not)

33. Reasonable Accommodations Prima Facie Case
Chapter 4: Disability Accommodations Reasonable Accommmodations & Shapiro
Reasonable Accommodations Prima Facie Case
4. Housing provider or govt refuse to allow the proposed accommodation
Generally not an issue for our class (e.g., Shapiro D clearly denied)
BUT some cases hold that after P proposes an accommodation, D can offer an alternative.
If alternative is reasonable re P and addresses P’s need, P must accept (Congdon facts)
Thus, still doing necessary/reasonable analysis, but reasonable focused on P (since offer cvomes from D, so presumably OK with it)

34. Chapter 4: Disability Accommodations
Chapter 4: Disability Accommodations Shapiro Reasonableness Analysis (DQ )
D relies on Title VII religious accommodations i) more than de minimus cost is undue hardship
ii) no affirmative steops by defdt required
Not crazy argument
Many FHA provisions interpreted like parallel T7 provisions
BUT not clearly parallel here (religion v disability)

35. Chapter 4: Disability Accommodations
Chapter 4: Disability Accommodations Shapiro Reasonableness Analysis (DQ )
D relies on Title VII religious accommodations
2d Cir Rejects based on unusually clear legisl history
i) Congress intended to interpret like Rehab Act §504
ii) no reference to TVII cases
Significant because different from Rehab Act standards
iii) explicitly adopts Davis stds for §504

36. Chapter 4: Disability Accommodations
Chapter 4: Disability Accommodations Shapiro Reasonableness Analysis (DQ )
D relies on Title VII religious accommodations
2d Cir Rejects ; clear legisl history pointing to 504
Examples in regs not especially helpful: very easy case for parking accommodation
D says shows only trivial accommodations req’d
Ct says shows pkg space can be acconn
Examples not exclusive
USSCt says interpret FHA generously Qs

37. Reasonable Accommodation standards under Davis
Chapter 4: Disability Accommodations Shapiro Reasonableness Analysis (DQ )
Reasonable Accommodation standards under Davis
Some costs on Dfdt OK
Proposed accommodation not reasonable if
A) undue hardship (focus: difficulties for D disproportionate to harm to P)
B) substantial burden (focus: magitude of bdn)
C) fundamental alteration in nature of program (focus: problems withf having exceptions : law school & anxiety disorders)

38. Chapter 4: Disability Accommodations Shapiro Hard Q (DQ4.06)
Would the statute require the Cooperative to give her a parking space if it meant displacing the existing parking rights of another tenant.?
The court never needs to reach the hard question b/c unnecessary here b/c non-tenants using spaces & can be displaced
How should that question be resolved?