Community Health Law Project gets accessibility settlement, wins zoning lawsuit against New Jersey

Earlier this year, the Community Health Law Project of
South Orange, New Jersey settled an accessibility complaint against K. HovnanianEnterprises, one of the largest residential developers in the United States. Thesettlement agreement required Hovnanian to construct 73 accessible paths to condominiumswhich were built on a hilly site and pay $30,000 to cover the attorneys' fees of the LawProject.

The settlement came in response to a case filed after Hovnanian failed to liveup to the an agreement which settled a previous accessibility claim. In January 1995,Hovnanian negotiated a pre-litigation settlement with HIP, a New Jersey center forindependent living. HIP had been represented by the Law Project.

In the 1995 settlement agreement, the developer agreed to build 140 accessible unitsand accessible "routes of travel" to a number of units as determined by the FairHousing Act's Accessibility Guidelines. The agreement called for Hovnanian to buildaccessible routes to at least 35 of the units. According to the Accessibility Guidelines,routes to at least 73 of the units were needed.

Hovnanian hedged on its agreement with HIP, saying that it was only going to construct35 accessible routes, as that was the number in the agreement. After some negotiationsbetween Hovnanian and the Law Project, the developer agreed to up the number to 54accessible routes. HIP and the Law Project were not satisfied and sued HovnanianEnterprises. Motions for summary judgment were denied in the case and it was set to moveforward. To prevent a lengthy trial, Hovnanian agreed to build all 73 accessible routesand pay the Law Project's legal fees.

David Popiel, the Community Health Law Project's Senior Managing Attorney, said thatthis case was "indicative of how little accessible housing is being built in spite ofthe law." Popiel said that HIP's original complaint involved an inaccessible complexnext to another inaccessible complex built by Hovnanian. Popiel also said that the LawProject surveyed 3,500 newly-constructed complexes in New Jersey and found that only 146were truly accessible under state and federal laws.

Judge finds zoning law violates Fair Housing Act

The Community Health Law Project also recently obtained a favorable judgment againstthe state of New Jersey in a case concerning a discriminatory state zoning law. USDistrict Judge Stanley Brotman ruled that a 

portion of New Jersey's Municipal Land Use Law (MLUL) that dealt with group homes forpersons with disabilities violated the Fair Housing Amendments Act.

The MLUL allowed officials in New Jersey's cities and towns to enact zoning ordinancesthat regulated construction and placed strict occupancy limits on group homes for disabledpersons. The case against the state arose in a case against Voorhees Township, New Jersey.Officials from Voorhees had enacted a zoning ordinance to prevent the construction ofgroup homes for disabled persons after some residents of the town voiced their oppositionto a previous group home.

Judge won't allow state to dismiss case

Several disability rights groups in New Jersey, represented by Susan DiMaria of the LawProject, sued Voorhees and its Township Committee, asserting that the ordinance violatedthe Fair Housing Amendments Act. In 1993, the plaintiffs amended their complaint toinclude the State of New Jersey and to challenge the discriminatory portions of the MLUL.

In February 1995, Voorhees repealed its zoning ordinance in its entirety. The town andits Township Committee were later dismissed from the complaint. The attorney general forthe state of New Jersey also filed a motion to be dismissed from the complaint. JudgeBrotman denied the State's motion for dismissal, keeping them in the case.

The State argued that the portions of the MLUL that dealt with group homes for thedisabled were written to ensure the safety of their residents. The State maintained thatby keeping group homes more than 1,000 feet apart from each other, neighbors would be morelikely to report neglect and maltreatment of disabled residents by the group home's staff.Judge Brotman rejected this argument and ruled in favor of the plaintiffs.

In his decision, Judge Brotman wrote that good neighbors would report abuses againstdisabled persons whether or not there were two group homes within 1,000 feet of eachother. He declared the portions of the MLUL invalid and ordered New Jersey's attorneygeneral to inform the New Jersey legislature and each of New Jersey's 568 municipalitiesof the change in the law.

Popiel said that this decision was "the most powerful decision yet on the subjectof discriminatory zoning against persons with disabilities."

from May 1997 Advocate