Property Law Developments—Joseph William Singer

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly celebrated in other states.

The United States Supreme Court announced its decision in Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, — U.S. — (2015), upholding disparate impact claims under the Fair Housing Act (FHA), 42 U.S.C. §3601 et seq. The case involved a challenge to criteria used by a state agency on where to give tax credits that subsidize construction of  low-income housing. Plaintiff is a nonprofit organization that promotes housing for low-income families. It claimed that the agency’s formula steered housing to poorer areas and thus perpetuated or aggravated racial segregation in housing. The specific question taken by the Supreme Court was whether disparate impact claims are at all available under the Fair Housing Act. The Court decided that they are but limited them because of constitutional principles.

The Court noted that earlier cases had upheld disparate impact claims in employment discrimination when the statutes focused on consequences of actions rather than just motivation. Those statutes were Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act of 1967. The FHA makes it unlawful to “otherwise make unavailable” housing because of race or other characteristics. 42 U.S.C. §3604(a). That wording refers to consequences and thus supports a disparate impact approach. The mere fact that the statute makes actions illegal if they are undertaken “because of race” does not mean the statute requires a showing of intentional discrimination. Moreover, the 1988 amendments to the Fair Housing Act (which added “handicap” as a protected class among other things) showed that Congress approved of the uniform case law that had interpreted the FHA to include a disparate impact claim. Justice Kennedy’s opinion refers to Congress’s explicit consideration of disparate impact claims by reference to  legislative history and its rejection of a proposed amendment that would have eliminated disparate impact claims. Moreover, the 1988 Act included 3 exemptions from disparate impact claims that would have been superfluous had they not been available. For example, the 1988 amendments provided that “[n]othing in [the FHA] limits the applicability of any reasonable . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” 42 U.S.C. §3607(b)(1).

At the same time, the Court held that the Constitution prohibits enforcing a disparate impact claim based solely on statistical evidence of a disparity; rather, plaintiffs must show that defendant’s policy causes the disparity and that “there is an alternative practice that has less disparate impact and serves the [defendant’s] legitimate needs.” Because actors must be able to achieve legitimate government or private policies, such policies are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers” to equal access to housing. Mainly because of this limitation on the applicability of disparate impact claims, the Court remanded for consideration of whether the Texas policies met this standard.

Remedial orders must be limited to eliminating the offending practice and should be race-neutral where possible.

The Court’s recognition of disparate impact claims preserves their function in the context of zoning laws. In explaining the “discriminatory practices” the disparate impact claim was intended to eradicate, the Court explained: “These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability,” (citing the foundational case of Huntington Branch, NAACP v. Huntington, 844 F. 2d 926, 935–936 (2d Cir 1988), among other cases).

Importantly, the Court clarified that disparate impact claims are available against both private and governmental defendants, rejecting a theory that at least one Circuit had adopted in the past.

It appears that the recent regulations of the Department of Housing and Urban Development that define disparate impact claims are largely consistent with the Supreme Court’s analysis but whether that is actually so may need to await further litigation. Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (2013), 24 C.F.R. §100.500.

The California Supreme Court has upheld the inclusionary zoning ordinance of the City of San Jose against a challenge that it constitutes an illegal exaction and violates the state constitution’s takings clause or the federal constitution’s takings clause. Cal. Bldg. Indus. Ass’n v. City of San Jose, 2015 Cal. LEXIS 3905 (Cal. 2015). The ordinance required all new development projects containing 20 housing units or more to reserve 15 percent for sale at affordable prices to low- or moderate-income families. San Jose Mun. Code, §§ 5.08.010 to 5.08.730. The Court held that the municipal government had the power to enact reasonable land use regulations designed to increase the amount and dispersion of affordable housing and that this ordinance served those ends. Because it regulated land use, it did not constitute an “exaction” or forced donation of land to public use. The Court held that so long as a land use regulation does not deprive the owner of all economically viable use of the property or mandate a forced physical taking, there is no violation of the takings clause when restrictions govern an owner’s use of property. The Court also interpreted the Supreme Court’s requirements in the cases of Dolan v. City of Tigard, 512 U.S. 374 (1994) & Nollan v. Cal. Coastal Comm’n, 483 U.S> 825 (1987), that mitigation fees must bear a reasonable relationship to externalities caused by the development of land did not apply when the law simply regulates the uses to which land can be put.

The Supreme Court has taken certiorari in a Fifth Circuit case to address the question of whether disparate impact claims are available under the Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq. Tex. Dep’t of Hous. & Comty. Affairs v. The Inclusive Communities Project, Inc., 135 S.Ct. 46 (2014), on appeal from The Inclusive Communities Project, Inc. v. Tex. Dep’t of Hous. & Comty. Affairs, 747 F.3d 275 (5th Cir. 2014). All federal Circuit Courts to address the issue have found such claims to be available and the Department of Housing and Urban Affairs has fairly recently promulgated a regulation defining the test for disparate impact claims under the FHA. 24 Code Fed. Reg. Part 100, §§100.5 to 100.500.

The Supreme Court’s refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages include Alaska, Montana, Arizona, North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Louisiana, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Georgia and Florida. Jessica Meyers, Appeals rejected, way cleared for wider same-sex marriage: court action likely to affect 11 more states, Boston Globe, Oc. 6, 2014.

In another case in a long-running saga, the Patent and Trademark Office cancelled the federal registration for the “Washington Redskins” on the ground that the name is disparaging in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. §1052(a). Blackhorse v. Pro-Football, Inc., U.S. P.T.O. Canc. No. 92046185 (June 18, 2014).

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to do so. Geiger v. Kitzhaber, 2014 U.S. Dist. LEXIS 68171 (D. Ore. 2014); Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. 2014); That seems to place those states in the same-sex marriage column bringing the total number of jurisdictions with same-sex marriage to twenty (19 states plus the District of Columbia). The list includes California, Connecticut, Delaware, District of Columbia, Hawai`i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington.

A federal district court judge in Utah struck down the state’s marriage laws to the extent they disallowed same-sex couples to marry. Kitchen v. Herbert, (D. Utah 2013). Holding the right to marry to be a fundamental constitutional right and denial of that right to same-sex couples a violation of the equal protection clause in the U.S. Constitution, the judge refused to stay his opinion. As a result hundreds of couples began applying for and receiving marriage licenses. The decision is being appealed by the state of Utah and may be overturned by the Tenth Circuit. In a related ruling, a federal district court judge in Ohio ruled it unconstitutional for Ohio to deny marriage status to same-sex couples married out of state when one dies in-state. Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio 2013).  the judge ordered that the death certificates record the fact that the decedent was married. read article

The Supreme Court of New Mexico opened the state to same-sex marriages in the case of Griego v. Oliver,  2013 WL 6670704 (N.M. 2013). It interpreted New Mexico statutes as denying the right of same-sex couples to marry and then held those statutes unconstitutional under the equal protection clause in Article 18 of Section II of the New Mexico Constitution. The court unanimously held that the statutes created a classification based on sexual orientation and that such statutes should be subject to intermediate scrutiny because the class of gay and lesbian persons has a history of being subject to discrimination and “deep-rooted prejudice against their integration into society.”

Applying that standard of review, the court found the classification unconstitutional. The state justified denying same-sex couples the right to marry on the ground that male-female marriages promoted “responsible procreation and child-rearing.” Although this is a legitimate government interest, the court found no relation between it and the decision to deny marriage to same-sex couples, partly because “fertility has never been a condition of marriage” and even if it was, same-sex couples can procreate and raise children responsibly. The court found that the “purpose of the New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children.” Given that purpose, the state could show no legitimate government interest in denying the civil status of marriage to same-sex couples.

A number of recent cases has revealed the persistence of racial discrimination affecting municipal decisions about housing. The Sixth Circuit found, for example, in Hidden Village, LLC v. City of Lakewood, Ohio, 734 F.3d 519 (6th Cir. 2013), that town officials may have engaged in a campaign of harassment designed to induce African American residents to move out of town. The case involved a Lutheran religious organization that helped young people released from foster care or juvenile detention to enter society. The organization found a helpful landlord willing to rent apartments to the organization’s clients. At first the town officials argued that this amounted to an institutional use in violation of the zoning law but the town planning commission found otherwise. At that point, the complaint alleges that town officials began a campaign of police harassment that involved citations for minor offenses and unreasonable searches of apartments.

The Sixth Circuit concluded that the landlord had standing to sue to claim violations of the Civil Rights Act of 1866, 42 U.S.C. §§1981-1982 and the Fair Housing Act, 42 U.S.C. §3601 et seq. The court also held that plaintiffs had presented a viable substantive due process claim. The court noted that the due process clause “protects landlords against irrational restrictions on how they use their property. Rationality may be a low bar. But the government flunks even that test when it tries to prevent a landlord of any race from renting to tenants based on their race.

The court also found a potential violation of §3617 of the Fair Housing Act, 42 U.S.C. §3617 which makes it illegal “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected [by the Fair Housing Act].” Although federal courts have been confused on the issue, the Sixth Circuit held that a §3617 violation could be shown even if there was no underlying violation of another section of the Fair Housing Act. In this case, for example, no one denied the youths housing or granted them discriminatory terms. Nonetheless, the facts sufficiently alleged that the town sought to interfere with their enjoyment of the right to obtain housing without regard to race.

In a second case, the Eastern District of New York held that a city violated the Fair Housing Act when it rezoned several parcels to prevent the building of low- and middle-income housing. The court found that the facts supported a finding of liability under both a discriminatory treatment and disparate impact theory. MHANY Mgmt Inc. v. Incorporated Village of Garden City, 2013 WL 6334107 (E.D.N.Y. 2013). read article The court found a discriminatory treatment claim (intentional racial discrimination) because there was sufficient evidence  to conclude that animus because of race was a significant factor in the denial of the housing opportunity. Evidence to that effect was shown by the fact that exclusion of low-income housing would impose a greater impact on African Americans than on whites, there was a history of racial bias in the city, and the sequence of events leading up to the denial of the housing opportunity that suggested a racially discriminatory motive. Although the city gave legitimate nondiscriminatory reasons for the change in the zoning law, the plaintiffs undermined those justifications by showing that the proposed development would not significantly affect traffic and that other reasons given by the city were not supported by the available evidence. The court thus found that the proffered justifications were pretextual.

The court also found a disparate impact claim. Although the city gave legitimate nondiscriminatory reasons for its decision (reducing traffic and providing for townhouse construction), it did not show that these goals could not be achieved in a less discriminatory manner or in a manner that did not perpetuate racial segregation.

The Supreme Court has twice in recent years accepted certiorari in cases to decide whether disparate impact claims are available under the Fair Housing Act. Both cases settled before the Supreme Court could determine the issue. The most recent was Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375 (3d Cir. 2011). The prior case was Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010). Another lawsuit is in process called Am. Ins. Ass’n v. U.S. Dep’t of Hous. & Urban Dev. (D.D.C., filed 06.26.13),  brought by the insurance industry to challenge the disparate impact regulations promulgated this year by the Department of Housing and Urban Development (HUD). read article Those regulations define when disparate impact claims are available and are consistent with the general outlines of the doctrine as it been developed by all the Circuit courts.  24 C.F.R. § 100.500(a)–(b).

In Houston v. Marod Supermarkets, 2013 WL 5859575 (11th Cir. 2013), the Eleventh Circuit ruled that testers have standing to bring suits claiming violation of the public accommodation provisions of the Americans with Disabilities Act. The mere fact that one enters property for the purpose of testing compliance with the ADA rather than to purchase products does not deprive the plaintiff of standing to sue for violation of the law. In an odd coda, however, the court noted that injunctive relief was only appropriate if the plaintiff could show injury from the store’s failure to comply with access requirements. The fact that he claimed he would return to the store in the future and that it was located 30 miles from his house was sufficient to show “injury in fact” and give him standing to seek injunctive relief.

After passage of same-sex marriage laws in both Hawai`i and Illinois and constitutional litigation in New Jersey, seventeen (17) jurisdictions in the US recognize and allow same-sex marriage. The list includes: California, Connecticut, Delaware, District of Columbia, Hawai`i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington.

The Sixth Circuit has held that §3617 of the Fair Housing Act, 42 U.S.C. §3601 et seq., prohibits conduct intended to encourage residents to move even if they are not denied housing or induced to move. Hidden Village, LLC v. City of Lakewood, 2013 WL 5811642 (6th Cir. 2013). The basic provisions of the FHA (embodied in §3604) prohibit denying housing for discriminatory reasons, providing unequal and discriminatory terms and conditions for housing, and expressing an invidious preference for buyers or renters of a particular race, sex, etc. Section 3617 prohibits coercion, intimidation, threats, or any interference with any person’s right to exercise the fair housing rights protected by 3604. Federal courts have been confused and divided over whether §3617 provides a remedy when there is no underlying §3604 violation.

In Hidden Village, municipal officials were unhappy with a religious youth service that helps young people released from foster care or juvenile detention enter society. It planned to house its clients in apartments leased from a private landlord. Following a zoning controversy over whether the use was a lawful “residential” use or a prohibited “institutional” use, municipal officials engaged in a campaign to make life difficult for the charity’s beneficiaries by issuing numerous citations for minor offenses and conducting a warrantless search of the housing premises.

The Sixth Circuit acknowledged that there had been uncertainty about the meaning of §3617 but held that it prohibits conduct intended to interfere with someone’s ability to obtain or enjoy housing whether or not there is an independent violation of one of the terms of §3604. The Court explained:

“[D]efendants argue that they may not be charged with violating § 3617 unless they separately violated at least one of the provisions in §§ 3603–3606. We disagree. Section 3617 nowhere says that it comes into play only when a violation of one of these other sections has also occurred. An example confirms the freestanding nature of some § 3617 claims. Suppose Alice says to Bob, a prospective home buyer, “If a seller ever discriminates against you because of your race, sue him!” Eve, a racist eavesdropper, becomes enraged upon hearing this conversation and threatens to assault Alice. At this point, Eve has violated § 3617, regardless of whether she discriminated against Bob or otherwise violated the fair housing rights secured by §§ 3603–3606. Eve has “threaten[ed] … [a] person,” namely Alice. And this threat was “on account of [Alice’s] having aided or encouraged any other person in the exercise or enjoyment of [a fair housing right].” Eve threatened Alice because Alice had encouraged Bob to protect himself against discrimination relating to housing. The statute requires no more.”

The Illinois House has passed a marriage equality bill that is virtually certain to become law in some form in the near future given the support in the Senate and by the Governor. Once that happens, 15 states will have same-sex marriage along with the District of Columbia. The outcome is more uncertain in Hawai`i but the legislature may vote in favor of a same-sex marriage bill in the next days.

Once again a federal court has held that the Civil Rights Act of 1866 (as amended in 1991) provides no relief to a store customer who was subjected to racial insults while trying to buy merchandise. The First Circuit held, in Hammond v. Kmart Corp., 2013 WL 5763267 (1st Cir. 2013), that the “right to contract” protected by 42 U.S.C. §1981 only protects the ability to enter a contract; it provides no relief for racially disparate treatment when one is in a store. Because the customer was able to complete the transaction (laying away merchandise), the store did not prevent her from “contracting.” Being subjected to “racial slurs and insults” as she was engaged in the transaction did not deter her from completing the transaction.

The ruling oddly protects those who are deterred from completing the sale but not those who insist on going through with it despite the discriminatory treatment. It also fails to consider the wording of §1982 which protects the “right to purchase personal property.” Nor does it comprehend that treatment while in the store is part of the contractual process; contracting does not happen at a discrete magic moment.

The federal public accommodations law, 42 U.S.C. § 2000a, does not cover retail stores so with no §1981 remedy, the plaintiff found herself wholly unprotected by federal statutes. The plaintiff did make a state common law claim of infliction of emotional distress, although it was not clear why she did not also make a claim under the state public accommodations statute, Mass. Gen. Laws ch. 272, §98 which provides: “Whoever makes any distinction, discrimination, or restriction on account of race…relative to the admission of any person to, or his treatment in any place of public accommodation…shall be liable to any person aggrieved thereby…”

The Cheyenne and Arapaho Tribes have allowed several same-sex couples to marry under tribal law. The tribal code is neutral with respect to the gender of persons who can get married and merely require one of the parties to be a tribal citizen. read article

Given the clear statement by the Supreme Court of New Jersey on how it was likely to rule in the pending marriage equality case, (see Garden State Equality v. Dow (N.J. 2013). Governor Chris Christie decided to drop the appeal. read article. That leaves the lower court ruling (read opinion here) in place with its conclusion that civil unions are not equal to marriages now that the federal government provides same-sex married couples the same federal rights as male-female married couples but does not confer such rights on partners to a civil union. The New Jersey Supreme Court’s prior ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2005), had found it to be a violation of the state constitution not to grant same-sex couples the same rights as married couples but left it to the legislature whether to call the resulting unions “marriages” or “civil unions” or something else. While New Jersey conferred equal rights under state law to “civil union” couples, they could not grant them the federal benefits of married couples; that would have been true even if they had allowed “marriages.” But after United States v. Windsor, married same sex couples do have the same federal benefits and married male-female couples so that created an inequality between married New Jersey couples and civil union New Jersey couples that could not stand under the state constitution.

The Supreme Court of New Jersey unanimously upheld the decision of a trial judge to allow same-sex marriage to proceed pending appeal of the trial judge’s ruling that the New Jersey civil union law violates equal protection by denying same-sex couples the same rights as granted to married couples under federal law. Garden State Equality v. Dow, (N.J. 2013). The court had previously held that same-sex couples were entitled under the state constitution to the same rights and privileges as married male-female couples but allowed the legislature to determine whether to accomplish this end by extending marriage rights to same-sex couples or adopting a civil union law. Because the legislature adopted a civil union law, such couples had the same rights under state law as did male-female couples; they had different rights under federal law but that was because federal law refused to recognize any same-sex couples as married for any federal purposes and the state could not change that situation.

However, after the Supreme Court decision in United States v. Windsor, 133 S.Ct. 2675 (2013), required the federal government to treat couples as married for federal purposes if they were married under state law, an inequality has now been introduced into New Jersey law. Before Windsor, civil union couples had the same rights as married male-female couples under state law but unequal rights with regard to federal law; that was something state law could not fix. But now that federal law gives married same-sex couples the same rights under state and federal law, it has been true that civil union couples in New Jersey are denied federal rights they would have if they were married under state law. The court determined that this likely violated the equal protection clause and that the state had no legitimate state interest to violate the constitution while the appeal proceeded. Same sex marriages will begin on Monday Oct 21 while the appeal in the NJ Supreme Court will take place in January 2014.

The Ninth Circuit affirmed that an action intended to discriminate in violation of the Fair Housing Act (FHA) creates a claim for which relief can be granted even if it has not had any other impact on the plaintiff. Pac. Shores Props., LLC v. City of Newport Beach, 2013 WL 5289100 (9th Cir. 2013). In this case, a city passed an ordinance intended to exclude group homes for recovering alcohol and drug users; it had terms that had the practical effect of prohibiting group homes from opening in most residential areas. The court held that a claim could be brought even if the plaintiff could not prove that the ordinance actually prevented it from acquiring property and operating. The ruling tracks prior case law which allow a damages claim for a prospective tenant denied housing because of her race even if she finds an apartment across the street five minutes later that is cheaper and better. Zoning practices that discriminate against individuals with disabilities can be discriminatory and violate the FHA if they contribute to making unavailable or denying housing to those persons.

A patron who knew he could not enter a diner because the diner did not have wheelchair access could sue the diner and its landlord for violating the Americans with Disabilities Act even though he never went to the diner and tried to get in. Kreisler v. Second Ave. Diner Corp., 2013 WL 5340465 (2d Cir. 2013). The mere fact that he was deterred from going to the diner is enough to give him standing to bring a claim for violating the public accommodation provisions of the ADA. Moreover, once he had standing to sue for one violation, he could sue the diner for other violations of the statute that relate to his particular disability even if he has never been inside.

The Supreme Court of New Mexico has held that the state public accommodations law applies to a photography business that offers its services to the public. Because that law prohibits discrimination based on sexual orientation, the business could not lawfully refuse to take pictures at a same-sex commitment ceremony because of the owner’s religious beliefs. Elane Photography v Willock, — P.3d — (N.M. 2013). The state public accommodations law does not violate the owner’s free speech rights since professions involving creativity or expression are not exempt from those laws. The court explained that “Elane Photography believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. Nor did the owner’s religious beliefs offer a reason to engage in discriminatory conduct. “Under established law, the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),” the court explained, citing Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) .

In 2011, Governor Chris Christie purported to abolish the Council on Affordable Housing (COAH), an agency set up by legislation and designed to implement the state’s Mount Laurel obligations; he planned to transfer its responsibilities to the Department of Community Affairs. The Supreme Court of New Jersey had held in the Mount Laurel litigation that towns were required to implement zoning laws in a manner that made room for all kinds of housing, including housing affordable by low and moderate-income families. S. Burlington County, NAACP v. Twp. of Mount Laurel (Mount Laurel II), 456 A.2d 390 (N.J. 1983); S. Burlington County, NAACP v. Twp. of Mount Laurel (Mount Laurel I), 336 A.2d 713 (N.J. 1975). When the legislature created an agency to manage those obligations, the court held that it constituted a legitimate institutional mechanism for complying with those constitutional obligations. Hills Dev. Co. v. Twp. of Bernards, 510 A.2d 621 (N.J. 1986). In In re Plan for Abolition of Council on Affordable Housing, 2013 WL 3717751 (N.J. 2013), the court interpreted the statute establishing COAH and the statute providing for reorganization of state government and determined that COAH was an independent agency that could not be abolished or reorganized without new authorizing legislation.

In 2012, HUD adopt an Equal Access Rule that prohibits lenders from discriminating on the basis of actual or perceived sexual orientation, gender identity or marital status in granting mortgages insured by the Federal Housing Administration (FHA). 24 C.F.R.Parts 5, 200, 203, 236, 400, 570, 574, 882, 8991, 982 (77 Fed. Regis. 5662 (Feb. 3, 2012). The rule applies to all housing programs administered by the department. In January 2013, HUD entered a settlement with Bank of America over a claim that it refused to grant a mortgage to a lesbian couple. See article. It was promulgated under HUD’s general statutory authority to promote the “goal of a decent home and a suitable living environment for every American family,” 42 U.S.C. §1441.

The Ninth Circuit held that the Americans with Disabilities Act grants a woman the right to use a Segway in Walt Disney World unless the park owners can show that its use is dangerous. Baughman v. Walt Disney World, Inc., 685 F.3d 1131 (9th Cir. 2012). The court found that allowing Segway use might constitute a reasonable modification of the park’s policies that were “necessary” to allow her to enjoy the facilities on an equal basis with others. Such modifications are not required if they cannot be consistent with safety requirements.