However, municipalities must make reasonable accommodations to zoning for people with disabilities, and may have to make accommodations not available to others. In that regard, the “fundamental alteration” argument by DH Resident is, while creative, not supported by case law. There are plenty of ADA and FHA zoning cases where the courts have held that cities must make exceptions to local codes to accommodate halfway houses, shelters, and other sorts of facilities catering to individuals with disabilities.

Here’s a statement of the rule by the 11th Circuit:

Whether a particular rule is “essential” to a zoning scheme will, of course, turn on the facts of each case, but a few general principles guide us. The basic purpose of zoning is to bring complementary land uses together, while separating incompatible ones. Thus, ordering a municipality to waive a zoning rule ordinarily would cause a “fundamental alteration” of its zoning scheme if the proposed use was incompatible with surrounding land uses. In determining whether the reasonableness requirement has been met, a court may consider the extent to which the accommodation would undermine the legitimate purposes and effects of existing zoning regulations. On the other hand, if the proposed use is quite similar to surrounding uses expressly permitted by the zoning code, it will be more difficult to show that a waiver of the rule would cause a “fundamental alteration” of the zoning scheme. Similarly, if the municipality routinely waives the rule upon request, it will be harder to show that the rule is “essential.”

Now, the PSWC went well beyond this and cited specific cases and the facts of those cases and showed how the case considerations from previous cases apply to the PSWC.

This was not simply a matter of relying on Olmstead, in spite of its great rhetorical flourish, really don’t control zoning matters. This is a matter of relying on a large foundation of case law, much of which came from the 11th Circuit.

If the City had tried to oust the PSWC here, they would have had a very real and very problematic ADA and FHA claim on their hands. An argument like this: “the Board in my mind confused the necessity to modify policies to ensure equal acess to benefits with the benefit itself, and what it modified was the benefit; therefore fundamentally altering the nature of the program” is interesting, but losing, argument.

http://www.bazelon.org/issues/disabilityrights/incourt/olmstead/index.htm

The application may not be direct, but the integration mandate in the ADA is very clear as is the expansion of this mandate directly to the disabled.

The Board may have lifted the “fundamental alteration” language from Ginsberg’s opinion in Olmstead, but she in turn lifted that language from the regulations of the ADA, which were being interpreting in Olmstead. The ADA contains a general requirement that reasonable modifications in policies are required when necessary to avoid discrimination, unless it would “fundamentally alter the nature of the service, program, or activity.” That’s what I was referring to and what I assumed the Board and the Concerned Decaturite were referring to.

Olmstead was about a specific ADA regulation that requires services to be provided in the most integrated setting. The Court found in Olmstead that the unnecessary institutionalization of persons may be a form of discrimination, but then put limits on what states were expected to do by crafting a defense for states from the reasonable accommodation and fundamental alteration language in the law and regulations. In the Olmstead decision, fundamental alteration referred to state programs and state budgets, and applying the use of that term here to a City of Decatur zoning spat, doesn’t make sense.

But applying Olmstead to this case doesn’t make sense to me. Olmstead refers to State obligations not city obligations. The State has an obligation to treat persons in the most integrated setting, but the City of Decatur is not treating anyone in this case. If anyone is providing treatment to anyone, it’s the state, which contracts with the PSWC to provide an alternative to hospitalization (or institutionalization). The State thus has an obligation to provide these services in the community and there are other areas zoned for services like this that the State could provide those services in. I don’t think the City has any Olmstead obligations in this case whatsoever.