Ltr P Neuer 1625

January 6, 2025 Page 2 Page 2 of 4 4902-8209-9981, v. 1 that zoning is a traditionally local activity, Congress has spoken. Accordingly, we hold that the ADA applies to zoning.”). In the zoning context, the ADA and the Fair Housing Act (“FHA”) are generally interpreted the same with respect to potential claims of discrimination. The ADA and FHA prohibit all forms of discrimination by local governments through their exercise of zoning powers, either 1) directly through intentional discrimination, 2) indirectly through application of laws that have a discriminatory effect, or 3) by failure to reasonably accommodate persons with disabilities by granting land use relief. Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1343 (D.N.J. 1991). Lakeside Resort Enterprises, LP v. Board of Sup’rs of Palmyra Tp., 455 F.3d 154 (3d Cir. 2006)(land use board’s denial of conditional use application for drug- and alcohol-treatment facility violated FHA). It has long been established that people with behavioral health issues and/or recovering from substance abuse disorders meet the statutory definition of “qualified persons with disabilities” under the ADA. Lakeside, 455 F.3d at 156 n.5; U.S. v. Borough of Audubon, N.J., 797 F. Supp. 353, 359 (D.N.J. 1991), aff’d, 968 F.2d 14 (3d Cir. 1992)(addictions substantially limited “their ability to live independently and to live with their families,” bringing them within the FHA's definition of disability); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 460 (D.N.J. 1992)(clients of a group home for recovering alcoholics and drug addicts were within scope of protection under the FHA); Oxford House-Evergreen, 769 F. Supp at 1342(same). As stated above, the ADA and FHA provide that a local government must reasonably accommodate persons with disabilities in the context of land use applications. To prevail on a reasonable accommodation claim, a plaintiff must show that the requested accommodation was “(1) reasonable and (2) necessary to (3) afford handicapped persons an equal opportunity to use and enjoy housing.” Lapid-Laurel v. Zoning Bd. Of Adjustment, 284 F.3d 442, 457 (3d Cir. 2002). The burden then shifts to the municipality to prove that making the requested accommodation would impose (1) undue financial and administrative burdens; (2) an undue hardship on the municipality; or (3) a

burden then shifts to the municipality to prove that making the requested accommodation would impose (1) undue financial and administrative burdens; (2) an undue hardship on the municipality; or (3) a fundamental alteration in the nature of the zoning program. Lapid-Laurel, at 462. Courts have addressed the reasonable accommodation standard in the context of proposed behavioral health facilities and alcohol- and drug-treatment facilities. For example, in Giercyk v. City of Estell Manor Plan/Zoning Bd., No. A-2729-15T2, 2017 WL 6421047 (N.J. Super. Ct. App. Div. Dec. 18, 2017), the applicant sought approval from the Board to open a drug and alcohol rehabilitation facility. No new construction or expansion of the building was proposed. Id. at 4. In response to a neighbor’s safety concern, the Board imposed a condition on approval that the applicant construct a fence between the subject property and the neighbor’s property. The applicant applied for an interpretation of the zoning ordinance that the proposed use was identical to the prior use and therefore permitted by a previously granted use variance. In the alternative, the applicant sought a use variance because institutional uses were not permitted in the Zone. Id. at 1.