Community Health Law Project

Laws, Rules and Policies Affecting Community Residences, Apartments, and Houses for People with Disabilities

Authors:

David Lazarus, Esq.

David Popiel, Esq.

Lois Krieger, Esq.

Community Health Law Project

Copyright © 1999, 2004 by Community Health Law Project

Contents

Introduction

Chapter 1

Reviews current federal and state laws prohibiting housing discrimination against persons with disabilities. It briefly summarizes the material presented in more depth in Chapters 3 and 5.

Chapter 2

Provides answers to frequently asked questions regarding community residences.

Chapter 3

Provides an in-depth discussion of the federal Fair Housing Amendments Act, the New Jersey Municipal Land Use Law, the state law requiring licensing of community residences, their regulation, and various other laws governing community residences.

Chapter 4

Provides answers to frequently asked questions about rentals, condominiums, and housing discrimination.

Chapter 5

Provides an in-depth discussion of federal and state law governing house purchases, rentals, evictions, and Section 8 vouchers.

Appendix

Reproduces statutory, regulatory, and other authorities cited in the manual.

Footnotes

Note: All footnotes are superscripted numbers enclosed in parentheses. These footnote indicators link to the footnotes sites at the end of the page. Following the footnote site there is a "return" which will bring you back to just after the footnote indicator in the document.

Introduction

Over the last generation, starting with the Rehabilitation Act of 1973 through the passage of the Americans with Disabilities Act (ADA), the rights of persons with disabilities have changed radically. Laws affecting public accommodations, transportation, education, employment, insurance coverage and government programs and services have all been dramatically impacted. But little has changed as much as the nation's laws regarding housing for persons with disabilities. The right of a person with a disability to be free from discriminatory housing practices has become a civil right that is protected by both State and Federal law. The first edition of this manual focused on laws governing community residences for persons with disabilities, how those residences are defined, the regulations they are subject to, protections afforded them by both Federal and State law, and the extent to which local government may exert control over the residences.

This new, revised edition also discusses housing discrimination laws affecting people with disabilities who live in apartments, condominiums, and houses. We hope that we have presented this material in terms understandable by the layperson. However, it is impossible within the context of a short work to answer and clarify all questions regarding this complicated subject. Therefore, any readers who have questions are invited to call or write the authors at the Community Health Law Project, 185 Valley Street, South Orange, NJ 07079, 973-275-1175, TTY 973-275-1721, Fax 973-275-5210, e-mail chlpinfo@chlp.org.

back to top

Chapter 1

Overview of Housing Discrimination Law

Under New Jersey law a community residence for persons with disabilities is defined as any residential facility, including apartments, group homes, halfway houses and other facilities, that is licensed by the New Jersey Department of Human Services (usually the Division of Mental Health Services, or the Division of Developmental Disabilities). They provide food, shelter and supervision as may be required, to persons with developmental disabilities or mental illness (and to other persons with disabilities) and are usually, but not exclusively, run by nonprofit organizations. From a zoning perspective, they may be located in any zone in which residential uses are permitted and have the same rights and limitations as single-family dwellings. If a community residence is located in a single-family detached home, it can be located in any zone in which single-fami-ly detached homes are allowed. If the residence is located in an apartment house, it is permitted in any zone that would permit that multiple dwelling. It should be noted that a community residence does not have to be located in a residential zone. It can be located in another zone in which residential uses are permitted. Therefore, if a business or commercial zone would permit residential uses, the community residence may be located in that zone as well.

The New Jersey Municipal Land Use Law that permits the location of community residences in residential districts⁽¹⁾is a State law that dictates how municipalities can regulate land use. Because it is a State law, it cannot be superseded by local municipalities.⁽²⁾The power to zone land to determine its use originates with the State, not with municipalities. The power is given by the State to its municipalities and is a grant of authority that can be withdrawn at any time. This is, in fact, what has occurred with respect to community residences. The location, as well as the internal operation and management of community residences and their practices and procedures are established by State law and regulation and are a State function.⁽³⁾ They are not subject to municipal regulation.

Federal law also provides similar protection for persons with disabilities. The Fair Housing Act was initially passed as part of the Civil Rights Act of 1968. The purpose of the Fair Housing Act was to protect certain classes of persons from discrimination in real estate transactions. These included persons who were subject to discrimination because of their race, sex, color, religion, and national origin ⁽⁴⁾ In 1988 the Fair Housing Act was amended to add two new classes of protected persons: persons with disabilities and families with children.

Congress, by enacting the Fair Housing Amendments Act of 1988, gave virtually the same protections to persons with disabilities as it had previously given to other protected classes. Simply put, action that is discriminatory when directed at a person who is Black, Jewish, Asian, Female, etc., is now discriminatory when directed at persons with disabilities.⁽⁵⁾

The Fair Housing Amendments Act not only equated persons who are disabled with other protected classes, but recognized that persons with disabilities might require additional accommodations to enable them to use and enjoy residential dwellings. The definition of disability (referred to as “handicap”) in the Fair Housing Act is exceedingly broad and includes a physical or mental impairment which substantially limits one or more of a person’s major life activities, having a record of such impairment, or being regarded as having such an impairment. ⁽⁶⁾The Act recognized that persons with disabilities might require relaxation of rules or physical renovations to enable them to occupy a dwelling and thus discrimination includes a refusal to allow for reasonable physical renovations to the dwelling or for changes in policies or practices to enable a handicapped person to use and enjoy a dwelling. ⁽⁷⁾ Examples might include allowing a person with a mobility impairment to install a ramp, or allowing a person with a visual impairment a service animal in an apartment building with a no-pet policy. This provision of the Fair Housing Act has even been interpreted to require a zoning board of adjustment to allow the construction of a nursing home in a rural residential adult community zone.⁽⁸⁾

New Jersey's Law Against Discrimination ⁽⁹⁾ is the State law that is analogous to the Federal Fair Housing Act. It was amended after the passage of the Fair Housing Act for the express purpose of incorporating in State law all of the provisions of the Federal law. The two coexist independently, so that even if the Federal Fair Housing Act were repealed, State law would provide protection to all of the protected classes.

back to top

Chapter 2

Frequently Asked Questions and Answers Regarding Community Residences

Q. Can community residences and the organizations that operate them be required to notify a municipality prior to purchasing or renting a home or an apartment?

A. No. The New Jersey Attorney General in an opinion addressing this issue has found that, given the history of community opposition and delay that resulted from prior notification and which tended to limit the housing opportunities for persons with disabilities, prior notification in most all cases would violate the Fair Housing Act. It also would be blatantly discriminatory if required of other protected classes; another indication that it is prohibited under the Fair Housing Act.

Q. Can community residences be required to be a minimal distance from each other, or be limited as to the number of residences in the municipality?

A. No. This practice was found to violate the Fair Housing Act by a U.S. District Court. ⁽¹⁰⁾ The Municipal Land Use Law was subsequently amended to comply with the decision.

Q. Can dangerous persons be excluded from residing in community residences?

A. Yes. The Fair Housing Act does not protect persons who pose a direct threat to others or to property,⁽¹¹⁾and to exclude such persons would not violate the Fair Housing Act. However, such exclusion may not be based upon status (e.g., that someone had been guilty of a crime in the past) or upon dated acts of dangerousness, but must be based upon current evidence and assessments. One should also note that a direct threat is one that cannot be eliminated by a modification of policies, practices or procedures or by the provision of auxiliary aids or services.⁽¹²⁾

Q. Can a community residence be required to obtain a conditional use permit or a special use permit before commencing operation?

A. No. The Fair Housing Act prohibits such requirements, and the State Municipal Land Use Law makes community residences a permitted use. As Congress has said, “The [Fair Housing] Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.” ⁽¹³⁾

Q. Can a municipality regulate the internal operations of the community residence such as determining the number of staff that should be on duty, the amount of supervision, or admission or discharge procedures?

A. No. Community residences are by statute required to be licensed by the Department of Human Services (DHS), and the law provides that DHS also regulate their operations.⁽¹⁴⁾Most persons would agree that this area of regulation has been “pre-empted” by the State and that municipalities have no authority over the internal operations of community residences.

Q. Is there a limit on how many community residences can be placed in one municipality?

A. No. Any attempt at setting quotas would violate the Fair Housing Act. However, the State law requiring licensing of community residences requires that such residences be available statewide without unnecessary concentration.⁽¹⁵⁾ Although this provision of the licensing law has not been tested in the courts, there is at least good authority that the State does have a legitimate interest in assuring that community residences are available statewide.

Q. Can a requirement be imposed upon community residences which would require obtaining approvals from the planning board or the board of adjustment?

A. No. A community residence cannot be treated any differently than a singlefamily residence. Therefore, if the single-family residence were not required to obtain approval, this requirement could not be imposed upon community residences. If a single-family residence were required to obtain approvals such as a variance to build on an undersized lot or encroach on a setback, the same approvals would apply to community residences.

back to top

Chapter 3

Federal and States Laws Governing Community Residences

I. What Are Community Residences?

State licensed community residences⁽¹⁶⁾ provide homes in the community for persons with developmental disabilities, mental illness and head injuries. Their residents receive food, shelter, personal guidance and assistance in maintaining a basic level of self-care and in developing the potential to live independently in the community. Regulations governing the residences aim at assuring that the residents enjoy essential life-safety, health and comfort conditions in a home-like atmosphere.⁽¹⁷⁾ The regulations also govern staffing ratios and staff educational and professional requirements.⁽¹⁸⁾ The residences are not health care facilities.

Residences for persons with developmental disabilities and head injuries are licensed by the State Division of Developmental Disabilities, and may have up to 16 residents. Those for persons with mental illness are licensed by the Division of Mental Health Services and may have up to 15 residents.⁽¹⁹⁾

Though commonly referred to as group homes, community residences come in several varieties. They can include, but are not necessarily limited to, group homes, half-way houses, supervised apartments, hostels, and family care homes.[Link]⁽²⁰⁾

II. Local Regulation of Community Residences

Municipal efforts to regulate community residences are likely to fail. Attempts to utilize local zoning ordinances will run afoul of factors discussed in the next section. Other efforts, such as ordinances that set staffing requirements, are equally unlikely to survive scrutiny. The State’s scheme governing community residences is comprehensive. The licensing of community residences throughout the State as part of the State’s services for persons with disabilities calls for uniformity of regulation. Under such circumstances, it is likely that local regulation is pre-empted.⁽²¹⁾ Any ordinance the policy or effect of which conflicted with State law would also fail, as would any ordinance which stood as an obstacle to accomplishing the Legislature’s “full purposes and objectives.”⁽²²⁾

III. The Treatment of Community Residences for Zoning Purposes

Two watersheds mark the development of the State’s land use or zoning law as it relates to community residences for persons with disabilities. At its inception the first was considered a great step forward for persons with disabilities. But, within a decade, it was eclipsed by the rapid evolution of legal protections for such persons.

In 1978 New Jersey amended its Municipal Land Use Law, the statute that gives zoning authority to municipalities, so as to confer upon community residences for persons with disabilities limited protection from municipal zoning actions. The amendment classified community residences with six or fewer residents as “permitted uses in all residential districts” and mandated that, for zoning purposes, they be treated “the same as . . . single family dwelling[s]”.⁽²³⁾ This effectively immunized small community residences from local zoning authority. However, the amendment left municipalities free to place zoning limitations on larger community residences, those with seven or more residents. These limitations are known in zoning parlance as “conditional uses” - special conditions that must be met before zoning approval can be obtained. In addition, municipalities could deny zoning approval to any community residence located within 1500 feet of another community residence, and could wholly exclude additional community residences when the number of people residing in them exceeded 50 or amounted to 0.5% of the municipality’s population, whichever was greater.⁽²⁴⁾ Nonetheless, the 1978 amendments represented a marked advance for persons with disabilities, since previously they enjoyed virtually no protection from municipal zoning authority.

While they still held the power to differentiate between larger community residences and other types of housing, many municipalities enacted ordinances that effectively “zoned out” the larger residences. One common conditional use provision required community residence operators to obtain a million dollar insurance policy against harm caused by residents. The policy had to waive defenses based on the residents’ mental condition. Such policies cannot be obtained and, consequently, this provision effectively precluded the establishment of larger community residences. Other provisions reflected deep-seated prejudices against persons with disabilities. Thus, numerous municipalities required that community residences be visually “buffered” from their neighbors.

The law changed markedly again in 1988. This time the change came from the Federal level when Congress amended the Nation’s Fair Housing Act.⁽²⁵⁾ The amendment brought persons with disabilities within the Act’s purview.⁽²⁶⁾ Eight years later, in 1996, the Federal District Court for the District of New Jersey, relying on these changes, struck down those portions of the Municipal Land Use Law, including the minimum spacing and maximum population provisions, that permitted localities to impose zoning conditions upon larger community resi-dences.⁽²⁷⁾ A year later the State Legislature conceded the point, eliminating all municipal authority to zone against community residences.

Today, for zoning purposes, the fundamental legal truth regarding community residences for persons with disabilities is that they are single family residences. Regardless of the number of residents,⁽²⁸⁾ they are “permitted uses in all residential districts”, and must be treated “the same as . . . single family dwelling[s]”.⁽²⁹⁾

IV. Notification that Community Residences are Coming to Your Neighborhood;

Community Participation in the Location of Community Residences and the Selection of Residents

The treatment of community residences as single family homes extends even beyond the realm of zoning. It encompasses, too, the controversial issue of notifying communities that a community residence is to be established. Just as there is no legal basis for demanding notification when African-Americans, Jews, Catholics, Italians, women, or persons of Irish descent are coming to a neighborhood, so there is no legal basis for demanding notification that persons with disabilities are moving in. The protection of community residences also precludes efforts by surrounding neighborhoods to have a say in the placement of the residences and in the nature of the persons who reside in them.

In 1998, an effort was made to require community notification of the establishment of community residences for persons with mental disabilities and to require that the surrounding community be afforded the opportunity to participate in locating the residences and selecting their residents. Neighbors of the prospective residence brought an action in Federal District Court.⁽³⁰⁾ They contended that persons with mental disabilities, recently discharged from state psychiatric hospitals to reside in community residences, posed a heightened risk of danger to the surrounding neighborhood. This danger, the neighbors alleged, arose from the fact that, after a generation of reducing the size of psychiatric hospitals, only the most ill and threatening patients remain to be discharged into the community. The threat is such, the argument concluded, that neighbors were constitutionally entitled to know that a residence was coming and to have input into its establishment.

Not so, the court held. The Federal Fair Housing Act⁽³¹⁾ protects persons with mental disabilities in housing matters, and the neighbors’ argument fundamentally misconstrued constitutional law, there being no constitutional basis for overriding the statutory protections. Moreover, New Jersey’s comprehensive regulation of community residences and of discharge procedures for State Psychiatric Hospitals blunted allegations that the residences posed a community threat.

V. Space for Staff as Constituting Prohibited Offices Under Local Zoning Ordinances

Without the option of zoning ordinances aimed directly at community residences as such, municipalities sometimes resort to indirect means that invoke general zoning ordinances or other laws. One of the more common attacks aims at the space that community residences often provide for their staff and for the records kept by the residence. This space may be a room within a residence. It may even be a separate unit within a multi-unit residence. Many local zoning codes prohibit offices in residential districts, and municipal authorities may invoke such provisions against the space provided for staff and records within community residences.

The rebuttal to these efforts is that the space for the residence’s records and staff is not, legally speaking, an office at all. Rather, it is an integral and necessary part of the community residence. The State statutory and regulatory schemes that govern community residences contemplate that provider agencies will provide residents with “food, shelter[,]... personal guidance,...such supervision as [is] required,...[and] assistance” both temporary and permanent.⁽³²⁾ Staff must be on-site to provide these services.⁽³³⁾ Detailed records must be kept.⁽³⁴⁾ Naturally, the staff that attend to community residences must have a place from which to provide the counseling, supervision and support that State law requires of them. There must also be a place where the required records can be recorded and stored, at least temporarily. The space for records and staff serves both these purposes. It is part and parcel of a duly licensed community residence. Consequently, it is part of a use that is permitted “in all residential districts of a municipality.”⁽³⁵⁾ Municipalities cannot move against it.

VI. Community Residences as Boarding Homes

One occasionally encounters the argument that community residences are boarding homes and must meet the statutory and regulatory standards for such homes. In fact, prior to 1987, group homes for persons with mental illness were governed by boarding home laws as well as by the licensing laws for community residences. This anomaly grew from the fact that community residences did not have separate kitchen and bathroom facilities for residents, and they provided services that fit within the definition of a boarding home. However, in 1987 statutory revisions exempted community residences from the scope of boarding home law. They are now governed solely by their own licensing laws.⁽³⁶⁾

VII. Community Residences and Construction Codes

Community residences for persons with disabilities are generally subject to the same construction code requirements as other residential buildings. Only rarely can they be classified as, and held to the more stringent construction requirements imposed on, institutions.

Local construction officials determine construction code classifications. However, they are overseen by and subject to regulation by the State Department of Community Affairs. The Department can also issue what are called Formal Technical Opinions or FTOs. FTOs are binding on local construction officials.⁽³⁷⁾ FTO-8, entitled “Use Group Classification - Department of Human Services Residential Programs”, currently governs the classification of community residences licensed by the State Division of Mental Health Services and the Division of Developmental Disabilities.⁽³⁸⁾

FTO-8 sets out four factors that determine the construction classification of community residences: the number of residents, whether their residency is permanent (typically reside in the residence for 30 days or more) or transient (typically reside in the residence for fewer than 30 days); whether they can self-evac-uate; and the division within the Department of Human Services that licenses the residence.

Community residences virtually never have transients. Usually their residents can self-evacuate. However, that ability is not a strict requirement for classification as a residence. Residences licensed by the Division of Developmental Disabilities may have as many as five residents incapable of self-evacuation and still retain residential classification for construction code purposes if certain compensating measures are taken.⁽³⁹⁾

When residents are permanent and self-evacuation is not an issue, the determining criteria for construction code classification are the number of residents and the licensing agency. Residences licensed by the Division of Mental Health Services or by the Division of Developmental Disabilities that have five or fewer residents are classified with one- and two-family dwelling units. Those with from six to fifteen residents and licensed by the Division of Mental Health Services are dealt with as multi-family dwellings with more than two units, as are residences with six to sixteen residents licensed by the Division of Developmental Disabilities. FTO-8 does not address residences with more than 15 residents licensed by the Division of Mental Health Services. Residences with 17 or more residents licensed by the Division of Developmental Disabilities are treated as institutions.

Current trends in serving persons with disabilities favor smaller community residences. In recent years it is unusual to find newly established community residences that have more than five residents and are therefore subject to anything more than the comparatively lenient construction requirements imposed upon one- and two-family homes.

FTO-8 is intended to preclude local construction officials from making intrusive inquiries into the nature of the disabilities of the residents of community residences. Instead, they are to rely on the Opinion’s four criteria, since State licensure assures that the residence will be occupied by appropriate individuals.⁽⁴⁰⁾ However, the Opinion applies only to State licensed community residences.⁽⁴¹⁾ Unlicensed community residences ⁽⁴²⁾ are subject to construction officials’ careful inquiry into the “characteristics of intended occupants”.⁽⁴³⁾ The residences must then be classified by direct application of relevant provisions from the State’s construction code, rather than by resort to FTO-8.⁽⁴⁴⁾

VIII. Geographic Dispersal of Community Residences

From time to time municipalities claim that too many community residences are being established within their borders. Minimum spacing and maximum population standards are no longer permissible.⁽⁴⁵⁾ However, there remains one statutory provision that addresses this concern, at least indirectly.

One of the State Statutes governing community residences calls upon the Department of Human Services to “monitor” the “geographic location” of community residences and, “through the granting or withholding of licenses”, to “insure” that they are “available throughout the State.”⁽⁴⁶⁾ This provision has not been interpreted by the courts. It can be viewed as a measure to benefit persons with disabilities by assuring that they have easy access to residences statewide. Its purpose may also be to assure that community residences are not so heavily concentrated in a small area that the residences resemble an institutional setting, thereby depriving persons with disabilities of their right to a home in the community. Viewed in either of these manners, the provision no doubt would survive judicial scrutiny. However, if the provision’s purpose is to permit the State to surreptitiously utilize minimum spacing or maximum population requirements of the type that have been struck down in zoning cases,⁽⁴⁷⁾ the courts are not likely to respond favorably. Nor are the courts apt to sustain an interpretation that permits the State to “steer” community residences out of municipalities that complain of their presence.⁽⁴⁸⁾

IX. Unlicensed Community Residences and the Definition of a Single-Family Home

So far the discussion has dealt solely with community residences that are licensed by the State. However, there is a credible argument that community residences for persons with disabilities do not have to be licensed by the State. For example, three or four families may decide to buy a house and establish a residence for their adult children with mental retardation. ⁽⁴⁹⁾ What is the legal status of such homes?

From time to time municipalities have attempted to exclude community residences on the grounds that they do not constitute “families” as required by local zoning ordinances that establish zones for single-family residences. Licensed community residences are immune to these efforts by virtue of their statutorily mandated status as “permitted uses in all residential districts”, uses that must be treated “the same as . . . single family dwelling[s].”⁽⁵⁰⁾ However, unlicensed community residences are subject to local efforts to define what constitutes a family.

A typical ordinance’s definition of “family” might read: “ . . . one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants.”⁽⁵¹⁾ The municipality would argue that an unlicensed community residence such as a group home was not a permitted single-family use because its occupants were not related by blood, adoption, or marriage.

Other efforts to exclude community residences have resorted to imposing differential restrictions on the number of persons who could live in a single-family residence based on whether the residents were related to each other. Such an ordinance might accomplish this objective by defining “family” as persons [without regard to number] related by genetics, adoption or marriage, or a group of five or fewer [unrelated] persons.⁽⁵²⁾

Neither type of effort can succeed. The Federal Fair Housing Act does exempt from its coverage “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.”⁽⁵³⁾ However, the United States Supreme Court has held that differential occupancy limitations based upon relationship by blood, marriage or adoption do not fall within this exemption.⁽⁵⁴⁾

New Jersey’s courts have gone even further. They have entirely prohibited the differential treatment of families based on blood, marriage or adoption. Instead, they have adopted an approach that looks to functional relationships. If the residents of a house “bear the generic character of a family unit as a relatively permanent household,” they must be considered a single family for zoning purposes.⁽⁵⁵⁾ The only municipal limitations that can survive application of this rationale are ceilings on the number of persons who may reside in a house, regardless of their biological or legal relationship. These ceilings may be related to the size of the house, or they may be simple, absolute limitations. Either type would pass muster under New Jersey zoning law.⁽⁵⁶⁾ They would also be exempt from the Fair Housing Act as a reasonable restriction of the number of occupants permitted to occupy a dwelling.⁽⁵⁷⁾

In determining whether, under New Jersey’s functional relationship test, unrelated residents of a residence “bear the generic character of a family unit,” courts look to such things as whether the residents share expenses and use common areas, perform household chores, participate in community activities, and shop together.⁽⁵⁸⁾ Residents of community residences generally have no trouble meeting these criteria. Of course, their disabilities sometimes preclude their performing household chores or independently functioning in other ways indicative of a family unit. However, this does not mean that the residences can be attacked as failing to meet the zoning criteria for families occupying single-family homes. Municipalities must make “reasonable accommodations in rules policies, [and] practices” so as to “afford . . . person[s] [with disabilities] equal opportunity to use and enjoy a dwelling[.]”⁽⁵⁹⁾ Such accommodation requires municipalities to ignore residents’ inability to function independently within a family unit unless the municipality can show that to do so would place an undue burden on the locality or fundamentally alter its zoning scheme. In the end, even unlicensed community residences for persons with disabilities are likely to stand as single-family residences and be afforded all the protections given other single-family residences.⁽⁶⁰⁾

X. Excluding “Dangerous” Residents

Residents of community residences are commonly misperceived to be more dangerous than other neighbors. However, as with the general population, and in similar proportions, there are some residents of community residences whose backgrounds do suggest that caution is appropriate. How to respond to the needs of such persons is a social and political decision. However, that decision must be made within the bounds imposed by law, and the law has much to say on the subject.

While the Federal Fair Housing Act protects persons with disabilities from housing discrimination, it also excepts from protection persons “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”⁽⁶¹⁾ The Act goes into no further detail, but the direct threat exception also appears in the Americans with Disabilities Act where its scope is more precisely defined. The ADA’s exposition of the direct threat exception can guide discussion of the same exception in the Fair Housing Act, since courts are likely to draw on the ADA analogy when interpreting the Fair Housing Act.

The heart of the exception is that it applies to individuals. In other words, it cannot be used to exclude an identified group of persons from the protections of the Fair Housing Act. Thus, an effort to use the direct threat exception to exclude from group homes persons recently discharged from state psychiatric institutions has failed.⁽⁶²⁾ Even New Jersey’s statutory efforts to exclude from community residences persons previously found not guilty by reason of insanity or found unfit to stand trial in criminal cases⁽⁶³⁾ have been struck down. The court focused on the legislature’s attempt to exclude a whole category of persons from community residences and emphasized that the direct threat exception requires person-by-person application.[Link]⁽⁶⁴⁾

Proper application of the exception requires a “careful” and “particularized factual consideration of whether [a] person is currently dangerous.”⁽⁶⁵⁾ Direct threat must be “established on the basis of a history of overt acts or current conduct.” Evidence must be “sufficiently recent as to be credible.”⁽⁶⁶⁾ The danger to be considered is the danger posed in the specific placement under consideration^.(67) Finally, in assessing the prospect of danger, the possibility of reducing the danger by accommodations such as programmatic changes must be explored.⁽⁶⁸⁾

Significantly, municipalities cannot even use the direct threat exception to exclude identified persons from community residences. The exception is available for use only by landlords or sellers of property who may refuse to rent or sell housing on the basis of a lessor’s or buyer’s disability. Presumably, it is also available to the State in selecting residents of community residences.⁽⁶⁹⁾

back to top

Chapter 4

Frequently Asked Questions Regarding Rentals, Condominiums, and Housing Discrimination

Q. May a landlord inquire about the income of a person with a disability when that person applies for an apartment?

A. Yes. A landlord may ask prospective tenants questions about their ability to pay the rent and their creditworthiness, regardless of disability, as long as they ask those questions of all prospective tenants. However, New Jersey law prohibits landlords from refusing to rent to tenants because they will pay their rent with Section 8 vouchers or any other legitimate source.

Q. If a person applies for an apartment in a building available only to people with disabilities, may the landlord ask about the person's disability?

A. Yes. Although landlords are generally prohibited from asking such questions, if a building is available only to persons with disabilities, or preferences are given to people with disabilities, the landlord may ask questions to determine whether the person is eligible to live in the building.

Q. Can a tenant with a disability be evicted for nonpayment of rent without any special warning?

A. Yes. Tenants with disabilities have no special protections from eviction unless the reason for eviction is conversion of an apartment building into a condominium. As with all other New Jersey tenants, a tenant with a disability can be evicted only for "good cause," which includes nonpayment of rent. Tenants cannot be summarily ejected from the apartment, but must be served with a summons and complaint and have an opportunity to appear before a judge on the matter. Tenants with disabilities who are being evicted due to condominium conversion can request "protected tenancy" status of up to 40 years if they have lived in their apartment for at least one year and are low income.

Q. Can a community residence for the developmentally disabled discharge a resident without notice?

A. No. Before a resident of a home for people with developmental disabilities can be forced to leave the home, there must be a determination that the residence is no longer suitable, and a discharge plan must be developed with the participation of the resident and his or her guardian.

Q. Must a condominium association grant a unit owner with a disability a reserved parking space near his or her unit?

A. Yes, if that owner has a physical disability and requests the reserved space as a reasonable accommodation. A condominium association or landlord can refuse to make an accommodation if it would be unduly burdensome or if it would fundamentally alter its policies, but in the case of a reserved parking space it is unlikely that either of these defenses would be considered valid.

Q. May a landlord charge an extra fee to a tenant with a disability who keeps a service animal?

A. No. A landlord may not charge a tenant with a disability an extra fee for keeping a pet who is a service animal (e.g., a guide dog for the blind or a cat who provides emotional support to a person with mental illness).

Q. Must a tenant with a physical disability who renovates the interior of an apartment restore the interior to its prior condition when he or she vacates the apartment?

A. Yes, unless the renovation would not interfere with the landlord's or the next tenant's use of the unit. For example, the widening of a doorway to accommodate a wheelchair would not interfere with a future tenant's use of the apartment, so the landlord may not require that the tenant narrow the doorway at the end of the tenancy.

Q. May a landlord require that a tenant who removed a barrier on the common grounds of an apartment complex restore the grounds to their original condition?

A. No. If a tenant has a ramp constructed where steps previously had created a barrier, the landlord cannot require that the tenant restore the steps when he or she moves away. However, the tenant must bear the cost of the original renovations, unless the architectural barriers were built after the laws prohibiting them went into effect. In that case, the landlord would have to pay for the renovations.

back to top

Chapter 5

Federal and State Laws Governing House Purchases, Rentals, Evictions, and Section 8 Vouchers

I. Persons with Disabilities Are Protected Against Housing Discrimination Just as Other Groups Are

Persons with disabilities are protected against housing discrimination just as are other legally protected groups. Houses must be shown and sold to, and apartments must be shown and rented to, persons regardless of their disabilities and without special terms or conditions. It is unlawful to represent, because of a person's disability, that a dwelling is not available when, in fact, it is. It is unlawful to misrepresent the cost of a dwelling because of a person's disability. Persons with disabilities are entitled to equal enjoyment of the services and facilities associated with a dwelling. These rights apply not only to persons with disabilities, but to anyone who purchases or leases a dwelling with the intention of having a person with a disability live there and to nondisabled persons who are associated in some way with a person with a disability. Thus, a landlord may not discriminate against parents because they live or will live in the apartment with their disabled child. Nor may landlords discriminate against a tenant whose friend is HIV+.⁽⁷⁰⁾

II. "Disability" Is Defined Broadly Under New Jersey Housing Discrimination Law

Both the federal Fair Housing Act (FHA) and the New Jersey Law Against Discrimination (LAD) define "handicap," but the LAD statutory definition is much broader in scope than that of the federal law. Under the FHA, "handicap" means "a physical or mental impairment which substantially limits one or more of such person's major life activities, a record of having such an impairment, or being regarded as having such impairment."⁽⁷¹⁾

The LAD does not require that a disability be so severe as to limit a person's major life activities. Rather, the LAD defines "handicapped" in terms of the nature or cause of the disability: "suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological or development disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise or any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Handicapped shall also mean suffering from AIDS or HIV infection."⁽⁷²⁾

Courts interpreting the LAD have consistently recognized the broad scope of its definition of handicapped.⁽⁷³⁾

III. Landlords and Sellers May Not Inquire about a Prospective Resident's Disability

It is unlawful to ask whether a prospective resident has a disability. It is even unlawful to ask about the nature or severity of a disability that is evident. Nor are such inquiries to be made regarding the disability of persons who may live in the dwelling or be associated with the purchaser, renter, or resident. Thus, to take the examples given at the end of Section I, above, landlords may not ask parents about the disability of a child who will live in the apartment with them; and landlords may not ask whether a prospective tenant's friends are HIV+.⁽⁷⁴⁾

However, inquiries may be made regarding one's ability to meet the requirements of ownership or tenancy that everyone else must meet. For example, a landlord may require information addressing a prospective tenant's creditworthiness, as long as the same inquiries are made of all prospective tenants. And if a dwelling is available only to persons with disabilities or to persons with particular disabilities, or if preferences are given to such persons, questions may be asked to determine whether a person is eligible to live in the dwelling. Inquiries may also be made to determine whether applicants are currently illegal abusers or addicts of a controlled substance and whether they have been convicted of the illegal manufacture or distribution of a controlled substance.⁽⁷⁵⁾

IV. Landlords May not Refuse to Rent to Tenants Who Have Section 8 Vouchers

The LAD "prohibits discrimination against tenants based on the source of income being used for rental or mortgage payments."⁽⁷⁶⁾ The regulations enforcing that statutory prohibition make it "unlawful for any person to fail or refuse to rent to, or to impose different terms of tenancy upon, any person with a disability because that individual is a recipient of Federal, State or local assistance, including medical assistance or housing subsidies." ⁽⁷⁷⁾

The 2002 LAD amendment prohibiting discrimination based on the source of a tenant's income followed a 1999 New Jersey Supreme Court decision holding that New Jersey law requires a landlord to accept a federal Section 8 voucher from a tenant who obtains one during the course of his or her tenancy. ⁽⁷⁸⁾ The LAD amendment does not limit its reach to existing tenants who obtain rental vouchers, but applies to prospective tenants with vouchers as well. The amendment also prohibits discrimination by lending institutions against people holding Section 8 vouchers who are eligible for the federal Section 8 home ownership program.⁽⁷⁹⁾

The prohibition against discrimination based on the source of a tenant's income had existed prior to 2002, but under another statute.⁽⁸⁰⁾ The 2002 amendment repealed the other statute and moved its provisions into the LAD, giving NJ's Attorney General and the NJ Division on Civil Rights authority to bring actions to compel compliance with the law and to exact penalties for violations of it. The LAD amendment also includes important notification requirements: the Attorney General and agencies that issue federal rental assistance vouchers to tenants must notify landlords of the prohibition and provide instructions for those wishing to report violations of the provision.

V. Tenants with Disabilities, Like Those without Disabilities, May not Be Evicted Except for "Good Cause"

Protection from eviction for people with disabilities is generally no greater than that for any other tenant, but in New Jersey that protection is considerable. The state has a strong policy of protecting tenants from unjustified evictions. New Jersey's Anti-Eviction Act requires a showing of "good cause" to terminate a residential tenancy.⁽⁸¹⁾ The statute lists 17 situations that create "good cause," among them, failure to pay rent, failure to pay rent after notice of a rent increase that is not unconscionable, disorderly conduct that disturbs other tenants or neighbors, damage to the premises, breach of a landlord's reasonable rules, demolition or boarding up of the premises due to health code or other safety violations, violation (in public housing) of a landlord's rules on illegal use of drugs, conviction (in private or public housing) of a drug offense involving drug use on the premises or harboring an adult who has been convicted of such an offense, conviction of assault or making terroristic threats against the landlord or members of the landlord's family or harboring such a person, conviction of theft of property located on the premises.⁽⁸²⁾

Even if good cause for eviction exists, New Jersey law provides numerous procedural protections that prohibit landlords from summarily ejecting tenants or their possessions from the premises. In some situations (e.g., tenant's disorderly conduct), landlords must send tenants a notice to cease, a notice to quit, and a demand for possession before evicting them.⁽⁸³⁾ In others (failure to pay rent), no such notices are required, and the landlord can proceed immediately to civil court process, serving a summons and complaint on the tenant. If the matter goes to court and a judge enters a judgment for possession against the tenant, a warrant of removal is issued, but no earlier than three business days later.⁽⁸⁴⁾ A tenant may ask the judge for a "hardship stay" of the warrant of removal of up to six months if the tenant will suffer hardship because other dwellings are not available.⁽⁸⁵⁾

These reasons and procedures for eviction apply to all residential tenancies except: (1) owner-occupied premises with no more than two rental units; (2) hotels, motels, or guests houses rented to transient guests or seasonal tenants; (3) dwelling units held in trust on behalf of a developmentally disabled member of the immediate family.[Link]⁽⁸⁶⁾ This final exception was intended to cover developmental disabled adult relatives who live with a tenant companion or roommate in quarters owned by family members; in cases where the living arrangements are not working out, the relative may evict the companion or roommate without following the statutory procedures of the Anti-Eviction Act.⁽⁸⁷⁾

The Anti-Eviction Act protections apply to residents of rooming and boarding houses.⁽⁸⁸⁾ Although they have not been extended to residents of community residences for the developmentally disabled, community residences for the mentally ill, or residential health care facilities, those residents have other legal protections against inappropriate discharge from the facility in which they live. For example, residents of community residences for mentally ill adults can be discharged only if they behave in a manner that substantially threatens the physical safety or emotional health of others, have received the maximum clinical benefit offered by the program and another living arrangement is available, repeatedly break written rules of the residence, break the law or cause the residence to violate its lease, or refuse to participate in the services agreed upon in their treatment plan.⁽⁸⁹⁾ Before residents of a community residence for the developmentally disabled can be discharged, there must be a determination that the residence is no longer suitable or no longer meets the person's needs and a discharge plan must be developed with the resident and his or her guardian.⁽⁹⁰⁾ Finally, residents of a residential health care facility can be transferred or discharged only for medical reasons, for their welfare and that of other residents upon the written order of the resident's physician, for nonpayment, for repeated violations of the facility's rules, if required by the Department of Health and Senior Services, or for an emergency.⁽⁹¹⁾ Except in emergency situations, they must be given at least 30 days advance notice in writing of a transfer or discharge.⁽⁹²⁾

Tenants with a disability have additional protections if they are living in an apartment that is being converted to a condominium. The Senior Citizens and Disabled Protected Tenancy Act grants people with a disability and seniors (62 or older) protected tenancy status of up to 40 years if they have lived in the apartment for at least one year before the conversion and their household income is no greater than three times the county per-capita personal income.⁽⁹³⁾ The act defines "disabled tenant" as a person who is "totally and permanently unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, including blindness, or a person who has been honorably discharged . . . from active service in any branch of the United States Armed Forces and who is rated as having a 60% disability or higher as a result of that service."⁽⁹⁴⁾

VI. "Dangerous" Tenants May Be Excluded

A dwelling does not have to be made available to persons with disabilities who pose a "direct threat" to the "health or safety of other individuals or" whose residency "would result in substantial physical damage to the property of others." Establishing "direct threat," however, is difficult. The matter is discussed in Chapter 3, Section X.

VII. Persons with Disabilities Must Be Afforded Reasonable Accommodations

Landlords, condominium associations, cooperative boards, and anyone else with authority that impinges upon the residency of a person with a disability must "makes reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [that person] equal opportunity to use and enjoy a dwelling unit." The obligation to accommodate extends to rules, policies, practices, or services that concern "public and common use areas," as well as those that concern the dwelling unit itself.⁽⁹⁵⁾ A common example of a reasonable accommodation is the creation of a reserved parking space near the apartment unit occupied by a tenant who has difficulty walking. Landlords may even have to permit a tenant to implement a new medication regimen before evicting the tenant for actions that stemmed from the ten- ant's mental disability.

There is no obligation to accommodate when the accommodation would unduly burden the person or entity from whom it is sought or would constitute a fundamental alteration of the rules, policies, practices, or services from which relief is requested. Undue burden is often a matter of the landlord's or other entity's ability to afford the cost of the accommodation. Thus, a large landlord may have to grant an accommodation that a smaller landlord, with fewer resources, may not have to grant. Fundamental alteration does not necessarily have anything to do with the cost of the accommodation. Rather, it usually looks to the nature of the accommodation and how greatly it would alter the rules, policies, practices, or services in question.

No discrimination is permitted against persons with disabilities who use guide or service dogs. This protection is not limited to blind persons with guide dogs. It extends to any person with a disability who uses service or guide dogs. As part of this protection, "no-pets" rules are void with respect to such persons, and there is no exception for undue hardship or fundamental alteration.⁽⁹⁶⁾ Nor may a landlord charge "an extra fee . . . for keeping a guide or service dog."⁽⁹⁷⁾

VIII.Persons with Physical Disabilities Must Be Permitted to Make Accessibility Renovations

Many residences were built with architectural barriers such as steps and narrow doors when such construction was still legal. Persons with physical disabilities have the right to remove, at their own expense, legally built barriers when the removal "may be necessary to afford [them] full enjoyment of the premises." In the case of renovations to the interior of a rental apartment, the landlord may condition permission for the renovation "on the renter agreeing to restore the interior . . . to [its previous] condition . . . , reasonable wear and tear excepted." When it is necessary to "ensure with reasonable certainty that funds will be available to pay for the restorations, . . . the landlord may" require that, "over a reasonable period," the tenant pay into an "interest bearing escrow account . . . a reasonable amount of money not to exceed the cost of the restorations." The interest on the account must accrue to the tenant. However, if the interior renovation would not interfere with the landlord's or the next tenant's use and enjoyment of the unit, the landlord may not require that the apartment be restored to its original condition. For example, the widening of a door to meet current accessibility standards would not interfere with the use and enjoyment of the unit. Consequently, the landlord may not require that the door be returned to its original narrow width upon the tenant's departure. Nor may landlords require restoration to original condition when the renovation is to a part of the premises other than the interior of the resident's unit. Thus, a tenant who replaces steps on a walk on the grounds of an apartment complex with a ramp cannot be made to remove the ramp when he or she moves. For any accessibility renovations, interior or exterior, landlords may require "a reasonable description of the proposed modifications . . .[and] reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained."⁽⁹⁸⁾

Architectural barriers that were built after the advent of laws prohibiting them must be removed, at no cost to the tenant, by the original developer or the developer's successor in interest, which may well be the current landlord.

back to top

APPENDIX

New Jersey Statutes Annotated

Title 40. Municipalities and Counties

Subtitle 3. Municipalities Generally

Chapter 55D. Planning, Zoning, Etc.

Municipal Land Use Law -Article 8. Zoning

40:55D-66. 1. Community residences for developmentally disabled or persons with head injuries; community shelters for victims of domestic violence; residential districts; conditional use permits Community residences for the developmentally disabled, community shelters for victims of domestic violence, community residences for the terminally ill and community residences for persons with head injuries shall be a permitted use in all residential districts of a municipality, and the requirements therefore shall be the same as for single family dwelling units located within such districts.

40:55D-66.2. Definitions

As used in this act: a. “community residence for the developmentally disabled” means any community residential facility licensed pursuant to P.L.1977, c. 448 (C.30:11B-1 et seq.) providing food, shelter and personal guidance, under such supervision as required, to not more than 15 developmentally disabled or mentally ill persons, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to: group homes, halfway houses, intermediate care facilities, supervised apartment living arrangements, and hostels. Such a residence shall not be considered a health care facility within the meaning of the “Health Care Facilities Planning Act,” P.L.1971, c. 136 (C.26:2H-1 et al.). In the case of such a community residence housing mentally ill persons, such residence shall have been approved for a purchase of service contract or an affiliation agreement pursuant to such procedures as shall be established by regulation of the Division of Mental Health and Hospitals of the Department of Human Services. As used in this act, “developmentally disabled person” means a person who is developmentally disabled as defined in section 2 of P.L. 1977, c. 448 (C.30: 11B-2), and “mentally ill person” means a person who is afflicted with a mental illness as defined in R.S.30:4-23, but shall not include a person who has been committed after having been found not guilty of a criminal offense by reason of insanity or having been found unfit to be tried on a criminal charge.

b. “Community shelter for victims of domestic violence” means any shelter approved for a purchase ofservice contract and certified pursuant to standards and procedures established by regulation of the Department of Human Services pursuant to P.L.1979, c. 337 (C.30:14-1 et seq.), providing food, shelter, medical care, legal assistance, personal guidance, and other services to not more than 15 persons who have been victims of domestic violence, including, any children of such victims, who temporarily require shelter and assistance in order to protect their physical or psychological welfare.

c. “Community residence for persons with head injuries” means a community residential facility licensedpursuant to P.L. 1977, c. 448 (C.30:11B-1 et seq.) providing food, shelter and personal guidance, under such supervision as required, to not more than 15 persons with head injuries, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to: group homes, halfway houses, supervised apartment living arrangements, and hostels. Such a residence shall not be considered a health care facility within the meaning of the “Health Care Facilities Planning Act,” P.L.1971. c. 136 (C.26:2H-1 et al.).

d. “Person with head injury” means a person who has sustained an injury, illness or traumatic changes to the skull, the brain contents or its coverings which results in a temporary or permanent physiobiological decrease of mental, cognitive, behavioral, social or physical functioning which causes partial or total disability.

e. “Community residence for the terminally ill” means any community residential facility operated as a hospice program providing food, shelter, personal guidance and health care services, under such supervision as required, to not more than 15 terminally ill persons.

New Jersey Constitution, Art. 4, § 6, Par. 2

2. Zoning laws The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature.

30:11B- 1. Legislative findings

The Legislature finds that many developmentally disabled persons who are now housed in large institutions can be better cared for and given training for independent living in small community residences. Such persons have a right to the fuller, more normal life that care in such residences brings, and it is, therefore, the intention of the Legislature, through this act, to encourage the development of community residences for the developmentally disabled and to provide for the licensing and regulation of such residences by the Department of Human Services.

The Legislature further finds that there are many persons who have been hospitalized due to mental illness and are recovered to the extent that they no longer require such hospitalization, but would benefit from the specialized independent-living training available to residents of small community residences for the mentally ill. These community residences for the mentally ill may also be utilized by persons who have not been hospitalized for mental illness but who are participating in community mental health counseling or training programs provided by a State affiliated community mental health agency. These persons have a right to the fuller, more normal life that care in community residences brings, and it is, therefore, the intention of the Legislature through this act, to encourage the development of community residences for the mentally ill and to provide for the licensing and regulation of the residences by the Department of Human Services.

In addition, the Legislature finds that many persons who have sustained head injuries which impair their cognitive, behavioral, social or physical functioning, and who are now housed in large institutions can be better cared for and given training for independent living in small community residences. These persons have a right to the fuller, more normal life that care in these residences brings, and it is, therefore, the intention of the Legislature, through this act, to encourage the development of community residences for persons with head injuries and to provide for the licensing and regulation of these residences by the Department of Human Services.

30:11 B-2. Definitions

“Community residence for the developmentally disabled” means any community residential facility housing up to 16 developmentally disabled persons which provides food, shelter and personal guidance for developmentally disabled persons who require assistance, temporarily or permanently, in order to live independently in the community. Such residences shall not be considered health care facilities within the meaning of the “Health Care Facilities Planning Act,” P.L.1971, c. 136 (C. 26:2H-1 et seq.) and shall include, but not be limited to, group homes, halfway houses, supervised apartment living arrangements and hostels.

“Community residence for the mentally ill” means any community residential facility which provides food, shelter and personal guidance, under such supervision as required, to not more than 15 mentally ill persons who require assistance temporarily or permanently, in order to live independently in the community. These residences shall be approved for a purchase of service contract or an affiliation agreement pursuant to procedures established by the Division of Mental Health Services in the Department of Human Services. These residences shall not house persons who have been assigned to a State psychiatric hospital after having been found not guilty of a criminal offense by reason of insanity or unfit to be tried on a criminal charge. These residences shall not be considered health care facilities within the meaning of the “Health Care Facilities Planning Act,” P.L.1971, c. 136 (C. 26:2H- I et seq.) and shall include, but not be limited to, group homes, halfway houses, supervised apartment living arrangements, family care homes and hostels.

“Community residence for persons with head injuries” means a community residential facility providing food, shelter and personal guidance, under such supervision as required, to not more than 15 persons with head injuries, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to: group homes, halfway houses, supervised apartment living arrangements, and hostels. Such a residence shall not be considered a health care facility within the meaning of the “Health Care Facilities Planning Act,” P1. 197 1, c. 136 (C. 26:2 H -I et seq.).

“Developmental disability” or “developmentally disabled” means a severe, chronic disability of a person which:

a.is attributable to a mental or physical impairment or combination of mental or physical impairments;

b. is manifest before age 22;

c. is likely to continue indefinitely;

d. results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic selfsufficiency; and

e.reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated.

Developmental disability includes, but is not limited to, severe disabilities attributable to mental   retardation, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met.

“Mentally ill” means any psychiatric disorder which has required an individual to receive either inpatient psychiatric care or outpatient psychiatric care on an extended basis.

“Person with head injury” means a person who has sustained an injury, illness or traumatic changes to the skull, the brain contents or its coverings which results in a temporary or permanent physiobiological decrease of cognitive, behavioral, social or physical functioning which causes partial or total disability.

30:11 B-3. Assistance for residents in maintenance of self-care and in development of potential to live independently

Every community residence for the developmentally disabled, every community residence for the mentally ill and every community residence for persons with head injuries shall provide to every person admitted assistance in maintaining a basic level of self-care and in developing the potential to live independently in the community.

30:11B4. Licenses; regulations

All such residences which are operated by any individual or individuals, corporation, partnership, society or association, whether public or private, whether incorporated or unincorporated, whether for profit or nonprofit, shall be licensed by the Department of Human Services under appropriate regulations promulgated by the commissioner. Such regulations shall govern the operation and maintenance of residences, and prescribe conditions for admission and discharge of residents. The regulations shall assure that essential lifesafety, health and comfort conditions exist in a home-like atmosphere.

30:11B4. 1. Application of Uniform Fire Safety Act

The provisions of the “Uniform Fire Safety Act,” P.L.1983, c. 383 (C. 52:27D- 193 et seq.) shall apply to any residence licensed or regulated pursuant to P.L. 1977, c. 448 (C. 30:1113- 1 et seq.).

30:11B4.2. Program standards

a. Within six months of the effective date of this act, the Director of the Division of Mental Health Services in the Department of Human Services shall develop program standards which include criteria for educational and professional experience of employees of a community residence. for the mentally ill and staffing ratios appropriate to the needs of the residents of the community residences for the mentally ill.

b. Within six months after the effective date of P.L. 1993, c. 329, the Commissioner of Human Services shall develop program standards which include criteria for educational and professional experience of employees of a community residence for persons with head injuries and staffing ratios appropriate to the needs of the residents of these community residences.

30:11 B-5. Geographic location

The geographic location of community residences for the developmentally disabled, community residences for the mentally ill and community residences for persons with head injuries shall be monitored by the Department of Human Services. Through the granting, or withholding of licenses the department shall insure that these residences are available throughout the State, without unnecessary concentration in any area.

30:11 B-6. Residents deemed residents of municipality or county

All residents of community residences for the developmentally disabled, community residences for the mentally ill and community residences for persons with head injuries in any municipality and county of the State shall be deemed residents of such municipality and county for all purposes, and shall be entitled to the use and benefit of all health, education, vocational and other facilities of such municipality and county in the same manner and extent as any other persons living in such municipality and county.

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 45-Fair Housing

§ 3601. Declaration of policy

It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.

§ 3602. Definitions     -As used in this subchapter-

(a) “Secretary” means the Secretary of Housing and Urban Development.

(b) “Dwelling” means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building structure or portion thereof.

(c) “Family” includes a single individual.

(d) “Person” includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, receivers, and fiduciaries.

(e) “To rent” includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant.

(f) “Discriminatory housing practice” means an act that is unlawful under section 3604, 3605, 3606, or 3617of this title.

(g) “State” means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or any of the territories and possessions of the United States.

(h) “Handicap” means, with respect to a person

(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,

(2) a record of having such an impairment, or

(3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 802 of Title 21).

(i) “Aggrieved person” includes any person who

(1) claims to have been injured by a discriminatory housing practice; or

(2) believes that such person will be injured by a discriminatory housing practice that is about to occur.

(j) “Complainant” means the person (including the Secretary) who files a complaint under section 3610 of this title.

(k) “Familial status” means one or more individuals (who have not attained the age of 18 years) being domiciled with

(1) a parent or another person having legal custody of such individual or individuals; or

(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.

The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

(l) “Conciliation” means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations involving the aggrieved person, the respondent, and the Secretary.

(m) “Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation.

(n) “Respondent” means

(1) the person or other entity accused in a complaint of an unfair housing practice; and

(2) any other person or entity identified in the course of investigation and notified as required with respect to respondents so identified under section 3610(a) of this title.

(o) “Prevailing party” has the same meaning as such term has in section 1988 of this title.

§ 3603. Effective dates of certain prohibitions

(a) Application to certain described dwellings

Subject to the provisions of subsection (b) of this section and section 3607 of this title, the prohibitions against discrimination in the sale or rental of housing set forth in section 3604 of this title shall apply:

(1) Upon enactment of this subchapter, to

(A) dwellings owned or operated by the Federal Government;

(B) dwellings provided in whole or in part with the aid of loans, advances grants, or contributions made by the Federal Government, under agreements entered into after November 20, 1962, unless payment due

thereon has been made in full prior to April 11, 1968;

(C) dwellings provided in whole or in part by loans insured, guaranteed, or otherwise secured by the credit of the Federal Government, under agreements entered into after November 20, 1962, unless payment thereon has been made in full prior to April 11, 1968: Provided, That nothing contained in subparagraphs

(B) and (C) of this subsection shall be applicable to dwellings solely by virtue of the fact that they are subject to mortgages held by an FDIC or FSLIC institution; and

(D) dwellings provided by the development or the redevelopment of real property purchased, rented, or otherwise obtained from a State or local public agency receiving Federal financial assistance for slum clearance or urban renewal with respect to such real property under loan or grant contracts entered into after November 20, 1962.

(2) After December 31, 1968, to all dwellings covered by paragraph (1) and to all other dwellings except as exempted by subsection (b) of this section.

(b) Exemptions

Nothing in section 3604 of this title (other than subsection (c) shall apply to

(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: Provided further, That in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty-four month period:

Provided further, That such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of, more than three such single-family houses at any one time:

Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this subchapter only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of section 3604(c) of this title; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title, or

(2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

(c) Business of selling or renting dwellings defined

For the purposes of subsection (b) of this section, a person shall be deemed to be in the business of selling or renting dwellings if

(1) he has, within the preceding twelve months, participated as principal in three or more transactions involving the sale or rental of any dwelling or any interest therein, or

(2) he has, within the preceding twelve months, participated as agent, other than in the sale of his own personal residence in providing sales or rental facilities or sales or rental services in two or more transactions involving the sale or rental of any dwelling or any interest therein, or

(3) he is the owner of any dwelling designed or intended for occupancy by, or occupied by, five or more families.

§ 3604. Discrimination in the sale or rental of housing and other prohibited practices

As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful

(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race,color, religion, sex, handicap, familial status, or national origin.

(f) (1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of

(A) that buyer or renter,

(B) a person residing in or intending to reside in that dwelling after so sold, rented, or made available; or it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

(2) To discriminate against any person in the terms, conditions, or privilege3 of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of

(A) that person; or

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that person.

(3) For purposes of this subsection, discrimination includes

(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(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; or

(C) in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings in such a manner that

(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible

locations;

(III) reinforcements in bathroom walls to allow later installation of grab bars; and

(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

(4) Compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people (commonly cited as “ANSI A117.1”) suffices to satisfy the requirements of paragraph (3)(C)(iii).

(B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met.

(C) The Secretary shall encourage, but may not require, States and units of local government to include in their existing procedures for the review and approval of newly constructed covered multifamily dwellings, determinations as to whether the design and construction of such dwellings are consistent with paragraph (3)(C), and shall provide technical assistance to States and units of local government and other persons to implement the requirements of paragraph (3)(C).

(D) Nothing in this subchapter shall be construed to require the Secretary to review or approve the plans, designs or construction of all covered multifamily dwellings, to determine whether the design and construction of such dwellings are consistent with the requirements of paragraph 3(C).

(6) (A) Nothing in paragraph (5) shall be construed to affect the authority and responsibility of the Secretary or a State or local public agency certified pursuant to section 3610(f)(3) of this title to receive and process complaints or otherwise engage in enforcement activities under this subchapter.

(B) Determinations by a State or a unit of general local government under paragraphs (5)(A) and (B) shall not be conclusive in enforcement proceedings under this subchapter.

(7) As used in this subsection, the term “covered multifamily dwellings” means

(A)     buildings consisting of 4 or more units if such buildings have one or more elevators; and

(B)      ground floor units in other buildings consisting of 4 or more units.

(8) Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or other jurisdiction in which this subchapter shall be effective, that requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this subchapter.

(9) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

§ 3605. Discrimination in residential real estate-related transactions

(a) In general

It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.

(b) “Residential real estate-related transaction” defined

As used in this section, the term “residential real estate-related transaction” means any of the following:

(1) The making or purchasing of loans or providing other financial assistance

(A) for purchasing, constructing, improving, repairing, or maintaining a dwelling; or

(B) secured by residential real estate.

(2) The selling, brokering, or appraising of residential real property.

(c) Appraisal exemption

Nothing in this subchapter prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.

§ 3606. Discrimination in the provision of brokerage services

After December 31, 1968, it shall be unlawful to deny any person access to or membership or participation in any multiple-listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against him in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, handicap, familial status, or national origin.

§ 3607. Exemption

(a) Religious organizations and private clubs

Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin. Nor shall anything in this subchapter prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.

(b) Numbers of occupants; housing for older persons; persons convicted of making or distributing controlled substances; good faith defense

(1) Nothing in this subchapter limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. Nor does any provision in this subchapter regarding familial status apply with respect to housing for older persons.

(2) As used in this section, “housing for older persons” means housing

(A) provided under any State or Federal program that the Secretary determines is specifically designed and operated to assist elderly persons (as defined in the State or Federal program); or

(B) intended for, and solely occupied by, persons 62 years of age or older; or

(C) intended and operated for occupancy by persons 55 years of age or older, and

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall-

(I) provide for verification by reliable surveys and affidavits; and

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

(3) Housing shall not fail to meet the requirements for housing for older persons by reason of:

(A) persons residing in such housing as of September 13, 1988, who do not meet the age requirements of subsections (2)(B) or (C): Provided, That new occupants of such housing meet the age requirements of subsections (2)(B) or (C); or

(B) unoccupied units: Provided, That such units are reserved for occupancy by persons who meet the age requirements of subsections (2)(B) or (C).

(4) Nothing in this subchapter prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in section 802 of Title 21.

(5) (A) A person shall not be held personally liable for monetary damages for a violation of this chapter if such person reasonably relied, in good faith, on the application of the exemption under this subsection relating to housing for older persons.

(B) For the purposes of this paragraph, a person may only show good faith reliance on the application of the exemption by showing that

(i) such person has no actual knowledge that the facility or community is not, or will not be, eligible for such exemption; and

(ii) the facility or community has stated formally, in writing, that the facility or community complies with the requirements for such exemption.

New Jersey Administrative Code

Title 13. Law And Public Safety

Chapter 13. Regulations Pertaining To

Discrimination On The Basis Of Disability

Subchapter 3. Real Property

13:13-3.4 Sale or rental

(a) It is unlawful for any person to discriminate on the basis of disability in the actual showing, sale, rental or lease of available real property. For example, a representation to any person, because that person is a person with a disability, that real property is not available for inspection, sale or rental when such real property is in fact so available is a violation of the act.

(b) It is unlawful for any person to misrepresent the price of real property listed for sale, rent or lease or to fail to communicate to the seller or lessor any offer made by a prospective buyer or lessor because the applicant or prospective occupant is a person with a disability, or because of any other person associated with the applicant or prospective occupant is a person with a disability.

(c) It is unlawful for any person to fail or refuse to show, rent or lease any real property to a person because he or she is a person with a disability who is accompanied by a guide or service dog or animal. Policies which restrict the availability of housing accommodations to persons without pets shall be void with respect to the above-mentioned segment of this protected class.

(d) It is unlawful for any person to fail or refuse to show, rent or lease any real property because a person with a disability will be residing or intends to reside in a dwelling or because of the disability of any person associated with a buyer or renter.

(e) It is unlawful for any person to discriminate against any individual because of disability in the price, terms, conditions or privileges of the sale, rental or lease of real property or in the provision of services for facilities in connection therewith. People with disabilities shall not be required to pay extra compensation or additional security deposits as a result of their maintaining or requiring special practices or accessories though such persons may be liable for any specific damage which may be done to the premises by virtue of their requirement.

1. This provision does not require a landlord to install or bear the expense of any such special accessories or practices. Apart from requiring payment for specific damage which may be done to the premises, however, a landlord may not charge a person with a disability an extra fee, for example, for keeping a guide or service dog or animal or maintaining special equipment such as a shower bar.

(f) It is unlawful for any person to:

1. Refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person with a disability, if the modifications may be necessary to afford the person with a disability full enjoyment of the premises, except that, in the case of a rental, the landlord may:

i. Where it is reasonable to do so, condition permission for a modification on the renter's agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

ii. Where it is necessary in order to ensure with reasonable certainty that funds will be available to pay for the restorations at the end of the tenancy, negotiate as part of such a restoration agreement a provision requiring that the tenant pay into an interest bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations and, the interest in such account shall accrue to the benefit of the tenant; and

iii. Condition permission for a modification on the renter providing a reasonable description of the proposed modifications as well as reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained; and

2. Refuse to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.

(g) It is unlawful for any person to fail or refuse to rent to, or to impose different terms of tenancy upon, any person with a disability because that individual is a recipient of Federal, State or local assistance, including medical assistance or housing subsidies.

back to top

Footnotes

1 -      N.J.S.A. 40:55D-66.1, 2        return

2 -    The New Jersey State Constitution Art. 4, Sec. 6, Par. 2, provides that the legislature may enact laws under which municipalities may adopt zoning ordinances, but such laws are within the police power of the state and subject to repeal or alteration by the Legislature.   return

3 -    N.J.S.A. 30:11B-1 et. seq. provides that all community residences shall be licensed by the Department of Human Services and subject to its regulation.  return

4 -     Under the original Fair Housing Act, 42 U.S.C. §3601 et seq., discriminatory housing practices include, but are not limited to, refusing to rent or sell; making a dwelling unavailable; imposing different conditions or terms in sale, rental or financing of a dwelling; making, printing or publishing notices or statements that limit, prohibit, or express a preference based on race, sex, color, religion or national origin.           return

5 -     One good example might be a local ordinance that required 1500 foot spacing between community residences for persons with developmental disabilities. If the municipality enacted an ordinance that required Black, Asian or Jewish families to live 1500 feet from one another, it would be blatantly discriminatory. It is now equally discriminatory when applied to persons with disabilities.    return

6 -     42 U.S.C. §3602 This definition is broad enough to include persons who may have been but are not now handicapped or persons who are perceived as being handicapped.    return

7 -     42 U.S.C. §3604 provides that discrimination includes refusal to permit, at the handicapped person's expense, reasonable modifications necessary to afford a person the full enjoyment of the premises and refusal to make accommodations in policies, practices and procedures when necessary to afford a person an equal opportunity to use and enjoy a dwelling.     return

8 -    In Hovsons v. Township of Brick, 89 F.3d 1096(3d Cir. 1996), the Third Circuit Court of Appeals, a federal appellate court, held that the Township had to grant variances to build a nursing home in a Rural Residential Zone.     return

9 -    N.J.S.A. 10:5-1 et. seq.     return

10 -    Arc v. State of New Jersey, 950 F. Supp. 637 (D.N.J. 1996).     return

11 -    42 U.S.C. §3604.        return

12 -    26 C.F.R. §36.208.      return

13 -    House of Representatives, Judiciary Committee report on the Fair Housing Amendments Act of 1988, Report 100-711, pg. 24.        return

14 -    N.J.S.A. 30:11 B-4.     return

15 -    N.J.S.A. 30:11B-5.      return

16 -    For a discussion of unlicensed community residences, see Section IX, below.     return

17 -    N.J.S.A. 30:11B-2, 3, 4.        return

18 -    N.J.S.A. 30:11B-4.2.    return

19 -    N.J.S.A. 30:11B-2.      return

20 -    Ibid.   return

21 -    Overlook Terrace Mgmt. Corp. v. West New York Rent Control Bd., 71 N.J. 451, 461-62 (1976).     return

22 -    Ibid.   return

23 -    N.J.S.A. 40:55D-66.1.   return

24 -    Ibid.   return

25 -    In 1992 New Jersey’s Law Against Discrimination was amended so as to track the provisions of the Fair Housing Amendments Act of 1988. N.J.S.A. 10:5-9.2, 12.4 and 12.5. See, also N.J.A.C. 13:13-3.1 et seq.     return

26 -    42 U.S.C. sec. 3604(f).         return

27 -    Arc of New Jersey v. State of N.J., 950 F.Supp. 637 (D.N.J. 1996). See also, Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F.Supp. 614 (D.N.J. 1994).         return

28 -    Keep in mind, of course, that the statutory definition of licensed community residences limits their size to 15 or 16 residents, depending on the licensing authority. See Section I, above. return

29 -    N.J.S.A. 40:55D-66.1.   return

30 -    Township of West Orange v. Whitman, 8 F.Supp.2d 408 (D.N.J. 1998). The court found no reason to evaluate the validity of the neighbors’ claim that community residences threatened them. The neighbors’ legal arguments were so flawed, the court held, that they could not stand even if the claims were true. Independent sampling of the materials offered by the neighbors strongly suggests that they do not support the neighbors’ contentions regarding the dangerousness of community residences.       return

31-     42 U.S.C. sec. 3604(f)(1) and (f)(2).   return

32 -    N.J.S.A. 30:11B-2 (definition of “community residence for the mentally ill”); see N.J.S.A. 30:11B-3 (Community residences must provide “assistance in maintaining a basic level of self-care.”) and N.J.A.C. 10:37A-1.2 (definitions of services, including “education,” “individual service coordination,” and “training in daily living skills”).     return

33 -    See N.J.A.C. 10:37A-1.2 (“[S]taff support services” is defined as “interventions provided by on-site staff, which may include verbal support or behavior management, in accordance with the needs of the client(s).” [emphasis added]).         return

34 -    N.J.A.C. 10:37A-4.5 (listing the records that must be kept by the agencies that run community residences for mentally ill adults). return

35 -    N.J.S.A. 40:55D-66.1.   return

36 -    N.J.S.A. 55:13B-3 (Definition of “boarding home” specifically excluding community residences). return

37 -    N.J.A.C. 5:23-3.9(b).   return

38 -    FTO-8 also addresses the classification of community residential facilities licensed by the Division of Youth and Family Services.      return

39 -    FTO-8, at 4.    return

40 -    FTO-8, at 2.    return

41 -    Ibid, at 1.     return

42 -    See Section IX, below. return

43 -    Ibid., at 3. return

44 -    Ibid., at 1, note 1.    return

45 -    See Section II, above.  return

46 -    N.J.S.A. 30:11B-5.      return

47 -    Arc of New Jersey v. State of N.J., 950 F.Supp. 637 (D.N.J. 1996). See also, Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F.Supp. 614 (D.N.J. 1994).         return

48 -    For a case that found racial steering violative of the federal Fair Housing Act, see Fair Housing Council of Bergen County, Inc. v. Eastern Bergen County Multiple Listing Service, 422 F.Supp. 1071, 1075-76 (D.N.J. 1976), relying on 42 U.S.C. sec. 3604(a). For the parallel provision of the Fair Housing Act dealing with discrimination on the basis of disability, see 42 U.S.C. sec. 3604(f)(1).       return

49 -    For just such an instance, see Marbrunak, Inc. v. City of Stow, 974 F.2d 43 (6th Cir. 1992). return

50 -    N.J.S.A. 40:55D-66.1. return

51 -    This was the ordinance at issue in Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).     return

52 -    This was the ordinance at issue in City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). return

53 -    42 U.S.C. sec. 3607(b)(1).      return

54 -    Ibid. This did not mean that such limitations are prohibited. They are simply not exempt, which would render them free from analysis under the Fair Housing Act’s provisions. Rather, they are subject to the Act’s antidiscrimination mandates. City of Edmonds v. Oxford House, Inc., 514 U.S. at 737, 115 S.Ct. at 1783.     return

55 -    State v. Baker, 81 N.J. 99, 108 (1979). return

56 -    State v. Baker, 81 N.J. at 113.         return

57 -    42 U.S.C. sec. 3607(b)(1); City of Edmonds v. Oxford House, 514 U.S. at, 734, 115 S.Ct., 1781, 131 L.Ed.2d 801. In City of Edmonds, the Court concluded that “rules that cap the total number of occupants in order to prevent overcrowding ‘plainly and unmistakably’ fall within” the Fair Housing Act’s “absolute exemption.” City of Edmonds v. Oxford House, Inc., 514 U.S. at 735, 115 S.Ct. at 1782 (internal citation omitted).         return

58 -    Borough of Glassboro v. Vallorosi, 221 N.J. Super. 610, 617 (Ch. Div. 1987), aff’d, 224 N.J. Super. 91 (App. Div. 1988), aff’d 117 N.J. 421 (1990).     return

59 -    42 U.S.C. sec. 3604(f)(3)(B); N.J.A.C. 13:13-3.4(e)2.   return

60 -    See Helen L. v. DiDario, 46 F.3d 325, 337 (3d Cir.1995) (interpreting the reasonable accommodation provision of the Americans with Disabilities Act).   return

61 -    42 U.S.C. sec. 3604(f)(9). New Jersey’s Law Against Discrimination does not have a direct threat exception. This discussion will proceed on the assumption that such an exception would be read into the law, though the assumption can be challenged.  return

62 -    Township of West Orange v. Whitman, 8 F.Supp.2d 408, 428 (D.N.J. 1998).         return

63 -    N.J.S.A. 30:11B-2 and N.J.S.A. 40:55D-66.1. return

64 -    In the Matter of the Commitment of J.W., 288 N.J.Super. 197 (App. Div. 1996).   return

65 -    Ibid. at 202-203, 208. return

66 -    H.R.Rep. No. 711, 100th Cong., 2d Sess. 9 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2181.    return

67 -    In the Matter of the Commitment of J.W., 288 N.J.Super. at 207.         return

68 -    Ibid. at 204.   return

69 -    Township of West Orange v. Whitman, 8 F.Supp.2d at 428.         return

70 -    42 U.S.C. sec. 3604(f)(1), (2); 24 C.F.R. sec. 100.202(a), (b); N.J.A.C. 13:13-3.4.     return

71 -    42 U.S.C. sec. 3602(h).         return

72 -    N.J.S.A. 10:5-5(q).     return

73 -    Santiago v. City of Vineland, 107 F. Supp. 2d 512 (D.N.J. 2000); Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501 (App. Div.), certif. denied, 170 N.J. 211 (2001). return

74 -    24 C.F.R. sec.100.202(c).       return

75 -    24 C.F.R. sec.100.202(c)(1) to (5).       return

76 -    N.J.S.A. 10:5-8.1(a).      return

77 -    N.J.A.C. 13:13-3.4(g).        return

78 -    Franklin Tower One LLC v. N.M., 157 N.J. 602 (1999) (relying on N.J.S.A. 2A:42-100).        return

79 -    Assembly Housing and Local Government Committee Statement, A. 710, L. 2002, c. 82.       return

80 -    N.J.S.A. 2A:42-100. This predecessor to the LAD amendment applied to existing and prospective tenants who obtain rental vouchers. T.K. v. Landmark West, 353 N.J. Super. 353 (Law Div. 2001), aff'd, 353 N.J. Super 223 (App. Div. 2002).        return

81 -    N.J.S.A. 2A:18-61.1 to -61.12.       return

82 -    N.J.S.A. 2A:18-61.1(a)-(q).        return

83 -    N.J.S.A. 2A:18-61.2.        return

84 -    N.J.S.A. 2A:18-57.        return

85 -    N.J.S.A. 2A:42-10.6.        return

86 -    N.J.S.A. 2A:18-61.1.        return

87 -    Senate County and Municipal Government Committee Statement, A.3251, L. 1991, c. 307.       return

88 -    N.J.A.C. 5:27-3.3(c).        return

89 -    N.J.A.C. 10:37A-9.5. Regulations governing discharge procedures are in N.J.A.C. 10:37A-9.6.       return

90 -    N.J.A.C. 10:44A-4.2. See also N.J.A.C.10:44B-2.2, regarding community care residences for clients of the Division of Developmental Disabilities.        return

91 -    N.J.A.C. 8:43-14.2(a)(4).       return

92 -    N.J.A.C. 8:43-14.2(a)(4)(i).       return

93 -    N.J.S.A. 2A:18-61.23 to -61.33.        return

94 -    N.J.S.A. 2A:18-61.24(b).       return

95 -    42 U.S.C. sec. 3604(f)(3)(B); 24 C.F.R. 100.204(a); N.J.A.C. 13:13-3.4(f)2.        return

96 -    N.J.A.C. 13:13-3.4(c).        return

97 -    N.J.A.C. 13:13-3.4(e)1.        return

98 -    42 U.S.C. sec. 3604(f)(3)(A); 24 C.F.R. sec. 100.203; N.J.A.C. 13:13-3.4(f).        return

back to top

Copyright 2000-2003 - Community Health Law Project - South Orange - NJ 07079 USA Phone: (973) 275-1175 | FAX (973) 275-5210

Website Created by Access Point Solutions