5.16.2006

D.N.M. Notes Split Re Burden of Proof in “Reasonable Accommodation” Claims under the Fair Housing Act

Per Jama Investments, L.L.C. v. Incorporated County of Los Alamos, Slip Copy, 2006 WL 1228771 (D.N.M. February 16, 2006):

The Plaintiffs assert … that the Defendants have the burden of proving that the Plaintiffs' proffered accommodation [for a residential group home] is unreasonable…



The Tenth Circuit has not provided guidance on which party bears the burden of proof in a reasonable accommodation claim. Other Circuits have split on this question. In the Third Circuit, “the plaintiff bears the initial burden of showing that the requested accommodation is necessary to afford handicapped persons an equal opportunity to use and enjoy a dwelling, at which point the burden shifts to the defendant to show that the requested accommodation is unreasonable.” Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d at 457

The United States Courts of Appeals for the Fourth, Fifth, Sixth, and Eleventh Circuits allocate the reasonable accommodation burden differently. These Circuits require the plaintiff to show that an accommodation is reasonable, rather than forcing the defendant to show that an accommodation is unreasonable. See Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir.2002) (citations omitted); Groner v. Golden Gate Gardens Apts., 250 F.3d at 1045; Bryant Woods Inn v. Howard County, 124 F.3d at 603-04 (citation omitted); Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir.1996).

…[A] plaintiff's burden with respect to the plausibility of reasonable accommodation is one of production only... It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has made this facial showing that accommodation is possible, the burden shifts to the defendant to prove that accommodating the plaintiff would pose an undue hardship. Woodman v. Runyon, 132 F.3d 1330, 1334 (10th Cir.1997).

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