Transcript Slide 1

Fair Housing, Zoning and
Affirmatively Furthering
Fair Housing:
What is Required?
Fair Housing Project
Legal Aid of North Carolina
Post Office Box 26087
Raleigh, NC 27611
1-855-797-FAIR
North Carolina
Human Relations Commission
1318 Mail Service Center
Raleigh, NC 27609
(919) 807-4420
1-866-324-7474 (toll free)
http://www.doa.state.nc.us/hrc
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The work that provided the basis for this publication was
supported by funding under a grant with the U.S. Department of
Housing and Urban Development. The substance and finding of
the work are dedicated to the public. The author and publisher
are solely responsible for the accuracy of the statements and
interpretations contained in this publication. Such
interpretations do not necessarily reflect the views of the
Federal Government.
The material in this presentation is for information and
educational purposes only and does not constitute legal advice.
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Fair Housing Laws
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Fair Housing Act
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Civil Rights Act of 1866
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42 U.S.C. §1201, et seq.
Sec. 504, Rehabilitation Act of 1973
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42 U.S.C. §5309
Americans with Disabilities Act (ADA)
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42 U.S.C. §2000d, et seq.
Sec. 109, Housing & Comm. Dev. Act of 1974
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42 U.S.C. § 1981
Title VI of Civil Rights Act of 1964
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42 U.S.C. §3601, et seq.
29 U.S.C. §794
North Carolina State Fair Housing Act
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N.C. Gen. Stat. §41A-1
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Fair Housing Act
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FHA passed April 1968
Context
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De jure racial discrimination in housing
Housing segregation based on race
Civil Rights Movement
Kerner Commission (1968)
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“our nation is moving toward two societies, one
Black, one white – separate and unequal”
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FHA Goals
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Non-discrimination based on 7 “protected
classes”
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Race, color, religion, national origin (1968)
Sex (1974)
Disability, familial status (1988)
Ending segregation
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Originally focused on racial & national origin
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Affirmatively Furthering Fair Housing:
HUD Obligations
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Administer programs “in a manner
affirmatively to further the policies” of the
Fair Housing Act
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42 U.S.C. §3608(e)(5)
Do “more than simply refrain from
discriminating;” must also “assist in ending
discrimination & segregation”
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NAACP v. Sec. of HUD, 817 F.2d 149 (1st Cir. 1987)
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Affirmatively Furthering Fair Housing:
Grantee Obligations
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CDBG grants “shall be made only if the grantee
certifies” that
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“the grant will be conducted and administered in
conformity with” the FHA
“the grantee will affirmatively further fair housing.”
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42 U.S.C. §5304(b)(2)
Also applies to HOME, ESG, HOPWA, NSP funds
Applies to PHAs
Applies to subgrantees/subrecipients
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AFFH: What Has Been Required?
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No regulatory definition of AFFH
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But rule has been proposed
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78 Fed. Reg. 139 (7/19/13), pp. 43710-43743
Fair Housing Planning Guide Req’ts
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Analysis of Impediments to Fair Housing Choice
(AI)
Take appropriate actions to overcome effects of
any impediments identified
Maintain records reflecting analysis & actions
taken
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www.hud.gov/offices/fheo/images/fhpg.pdf
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AFFH: What Has Been Required?
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HUD Fair Housing Planning Guide
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Affordable housing vs. fair housing activities
Not enough to build or rehab low/mod housing
Primarily symbolic activities not enough
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E.g. FH poster contests
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ADC v. Westchester County:
Plaintiff’s Allegations
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County received > $52 million from 2000-06
County certified meeting AFFH obligations
County did not meet AFFH
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AI did not ID any impediments based on race,
color, national origin
AI did not mention housing discrimination or
segregation
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ADC v. Westchester:
County’s Response
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Race is not required to be considered
Income is a better proxy than race for
determining needs
Race is “not among the most challenging
impediments” in County
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ADC v. Westchester:
Court Rulings
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FHA goal = end discrimination & segregation
FH Planning Guide is “persuasive”
Must consider race in AI & AFFH
AFFH is not “mere boilerplate formality”
Must take “appropriate” actions & maintain records
Westchester made > 1,000 “false or fraudulent”
certifications
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“Utterly failed” to meet obligations
Need to consider where affordable housing is placed
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ADC v. Westchester:
Settlement Agreement
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County to develop 750 affordable units
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660 in predominantly white cities
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County acknowledges it can sue cities who resist
Conduct new AI to comply w/ Planning Guide
HUD Monitor to oversee compliance
Return $30 million to HUD
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<3% African American and <7% Latino
$7.5 million to ADC
Supply additional $30 million for integrative units
Pay $2.5 million attorney’s fees & costs
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ADC v. Westchester:
Implications for HUD Recipients
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Review your AI
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Make sure up-to-date (last 5 yrs.)
Addresses all protected classes, including race,
color & national origin
Involve local community & groups
Address segregation in addition to
discrimination
Hold sub-recipients accountable
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Cities, towns, etc., must also AFFH
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Examples of Local FH Activities
 Update local FH laws w/ add’l protected classes
 e.g. affordable housing as protected class
 Support accessibility & visitability
 Train City staff, officials, landlords & public in FH law
 Education & outreach to promote FH, knowledge of
LL/tenant laws & awareness of disparate impact of
certain policies (e.g. criminal background screening)
 Establish FH complaint processes
 Affirmative marketing
 Ensure land use, zoning, occupancy codes are FH
compliant
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 FH testing
HUD’s Proposed AFFH Reg.
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Proposed rule published July 19, 2013
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78 Fed. Reg. 139, pp. 43710-43743
HUD’s Overall Goals:
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Increase transparency w/ public involvement &
link to public investment plans
Improve compliance so grantees know req’ts &
standards
Reduce data collection costs
Synchronize assessment process & tie to ConPlan
& PHA planning
Encourage regional approaches
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HUD’s Proposed AFFH Reg.
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HUD’s Fair Housing Goals:
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Reduce segregation
Eliminate racially & ethnically concentrated
areas of poverty
Reduce disparities in access to imp’t
community assets & stressors
Narrow gaps between protected
classes/address disproportionate housing
needs
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Proposed AFFH Definition
“taking proactive steps beyond simply combating
discrimination to foster more inclusive communities
and access to community assets for all persons
protected by the FHA. More specifically, it means
taking steps to proactively address significant
disparities in access to community assets, to
overcome segregated living patterns and support
and promote integrated communities, to end racially
and ethnically concentrated areas of poverty, and to
foster and maintain compliance with civil rights and
fair housing laws.”
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Changes w/ Proposed AFFH Reg.
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AI
Assessment of Fair Housing (AFH)
AFH uses HUD-supplied data
AFH submitted to HUD
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HUD has 60 days to notify of non-acceptance
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Acceptance ≠ met AFFH req’t
Incorporate FH goals into planning
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270 days b/4 year prior to 3 or 5 yr ConPlan
ConPlan, PHA Plan, Annual Action Plan, Capital
Fund Plan
Req’d every 5 yrs (every year for PHAs)
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Proposed AFFH Reg:
Data to be Provided by HUD
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Demographics of community
Patterns of integration & segregation
Racially & ethnically concentrated areas of
poverty (RCAP/ECAP)
Disparities in access to community assets &
stressors
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schools, jobs, transportation, recreation, social
services, safe streets, health hazard exposure
Disproportionate housing needs based on
protected classes
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Housing cost burdens, overcrowding, substandard
housing
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Proposed AFFH Reg:
AFH Elements
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Summary of FH issues & capacity to address
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Analysis of data
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Using HUD-supplied tool
ID of FH priorities & general goals
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HUD provided + can add own from community
Assessments of determinants of FH issues
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Incl. FH enforcement & outreach capacity
Justify prioritization
Summary of community participation
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Federal FH Act:
Types of Property Covered
The FHA broadly applies to "dwellings,” which
includes almost every residential rental unit.
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Single and Multi-family housing
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houses, apartments & condos
Group homes
Shelters
Migrant housing
Assisted living housing
Long-term transient lodging
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What Acts are Prohibited?
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Refusal to sell, rent, negotiate, or “otherwise
make unavailable or deny” a dwelling
Discriminate in the terms, conditions, or
privileges of sale or rental of a dwelling, or in
the provision of services or facilities
Statements indicating preference or limitation
Coerce, intimidate, threaten, or interfere with a
person’s right to fair housing
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Fair Housing Applies to Zoning
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“Otherwise make unavailable”
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Includes restrictive zoning
As a result, zoning boards,
municipalities, and other gov’t entities
that take actions in violation of the
FHA will be liable
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Legislative Intent of FHA
“The Committee intends that the prohibition against
discrimination against those with handicaps apply to
zoning decisions and practices. The Act is
intended to prohibit the application of special
requirements through land-use regulations,
restrictive covenants, and conditional or special use
permits that have the effect of limiting the ability of
such individuals to live in the residence of their
choice in the community.”
H. Rep. No. 100-711, at 24 (1988)
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Policies underlying FHA &
zoning
AFFH
 Increase housing choice & opportunities
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Integration
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Olmstead decision
Allow people w/ disabilities to live in community
settings
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Individuality
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Respect unique needs & circumstances
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What Type of
Discrimination is Illegal?
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Intentional discrimination/disparate treatment
Policies that have discriminatory effect/disparate
impact
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Denial of reasonable accommodation for person
w/ disability
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Incl. zoning laws or decisions
HUD issued regulation 2/15/13
Incl. denials by gov’t officials
Statements indicating preference/limitation
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Disability: Definition
 Physical and / or mental impairment which
substantially limits 1 or more major life
activities, or
 Record of having such impairment, or
 Being regarded as having such impairment
 Includes people associated with or residing
with person meeting definition
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Disability: Examples
 Mobility impairments
 Sensory impairments
 Mental illness
 HIV positive or AIDS
 Former drug abuse
 Other physical / mental impairments
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Reasonable Accommodations
 Changes in “rules, policies, practices, or services
when … necessary to afford … equal opportunity to
use & enjoy dwelling”
 Can require proof of covered disability
 Change must be related to disability
 Can be requested at any time
 Not “reasonable” if “undue burden” on housing
provider or “fundamental alteration” of provision of
housing
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RAs & Zoning
FHA mandates that zoning officials
“change, waive, or make exceptions in
their zoning rules to afford people with
disabilities the same opportunity to
housing as those who are without
disabilities.”
Hovsons Inc. v. Township of Brick,
89 F.3d 1096, 1104 (3d Cir. 1996)
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RAs: Examples
 Allow nursing home to operate in
mixed residential zone
 Waive minimum side yard req’t
 Variance to allow facility for people
with disabilities in
commercial/industrial district
 Allow 8-person home (vs. 6-person)
 Exception to dispersion requirement
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Exceptions
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Direct Threat. The FHA does not require a
tenancy that would be a “direct threat” to the
health or safety of other individuals, or result in
substantial damage to the property of others,
unless a reasonable accommodation could
eliminate the threat.
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Drug use. The current use of illegal drugs is
excluded from the definition of disability.
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Examples of
Possible Intentional Discrimination
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Denial of building, renovation, special use permit or rezoning based on objections to residents of the development or
home
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Based on race, nat’l origin, fam. status, or disability
Example: developer denied zoning to build racially diverse
subsidized multifamily housing in white area of town
Moratorium on new adult care facilities w/o justification
Limitation on geographical proximity, where imposed in
response to community fears & concerns about property
values
Treating a group home for people with disabilities different
than a “family” home, even when the group home meets the
“family” home legal definition.
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Examples of
Possible Intentional Discrimination (cont’d)
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Application of fire code to group home for persons
with mental illness who had no problems
evacuating
Conditioning group home permit on 24-hour
supervision and establishment of “community
advisory committee”
Requiring certificate of occupancy for group home
for people with disabilities only (not for other
group homes)
Requiring notice to neighbors of a group home’s
existence where not required for other residential
units
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Examples of Possible
Disparate Impact (Discriminatory Effect)
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Requiring group homes include only persons who
are mobile and capable of exiting a building and
following instructions
Dispersion requirement for group homes
Limitation on # of unrelated persons allowed to live
together
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Examples of
Interference, Coercion, or Intimidation
Denial of special use permit, where
reason for denial proven to be pretext
 Weekly citations for noise, parking,
zoning, etc., where town had been lax,
plus evidence of discriminatory
statements
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N.C. FAIR HOUSING ACT
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N.C. Gen. Statutes Ch. 41A
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Also NC Real Estate Licensing Act
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Essentially mirrors Federal FHA:
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N.C.A.C. Title 21, §58A-1601
Covers all Federal protected classes;
Applies to same properties and transactions;
Prohibits the same discriminatory acts.
In addition, 2009 amendments added another
protected class NOT covered by Fed. FHA
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Affordable Housing as a Protected
Class for Land-Use Decisions
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§ 41A-4(g) ”It is an unlawful discriminatory housing
practice to discriminate in land-use decisions or in the
permitting of development based on race, color, religion,
sex, national origin, handicapping condition, familial
status, or, except as otherwise provided by law, the fact
that a development or proposed development contains
affordable housing units for families or individuals with
incomes below eighty percent (80%) of area median
income. It is not a violation of this Chapter if land-use
decisions or permitting of development is based on
considerations of limiting high concentrations of
affordable housing.”
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What It Means
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Government bodies involved in land-use
planning and regulation cannot refuse
approval or otherwise discriminate against
proposals because they include affordable
housing.
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At a minimum, this section covers decisions by zoning boards,
planning boards, county commissions and municipal councils.
Probably also applies to municipal utilities, highway and other
transportation planning, and soil and water districts.
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What It Means (cont’d.)
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Affordable Housing is defined as housing
intended for families or individuals with
incomes less than 80% of median income in
the area.
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Does not define the size of the area used to
determine median income (but based on HUD
definition, which uses MSA).
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What It Means (cont’d.)
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Does not state how to determine if
housing is “for” such families.
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Standard definition of “affordable
housing” is 30% of annual income.
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What It Means (still cont’d)
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Allows land-use planners to limit “high
concentrations” of affordable housing.
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Doesn’t define “high concentrations.”
New HUD data supplied for the Fair Housing
Assessments will include numbers on racially
concentrated areas of poverty (see slide 20)
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What It Doesn’t Mean
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Does not mean affordable housing
development must be approved.
Does not mean wealthy and poor
neighborhoods must receive identical
services, such as water & sewer.
Does not mean new developments must
include affordable housing.
Landlords do not have to accept Section 8
vouchers or other housing subsidies.
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What We Don’t Know
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Who can bring suit (standing)
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FHA states “any person injured by a
discriminatory practice” may sue.
Standing under the FHA is usually
construed broadly to allow people to bring
suit, but does not stretch infinitely.
For purposes of its investigations, NCHRC
will construe standing broadly until
otherwise instructed by the courts or
legislature.
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What We Don’t Know (cont’d.)
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How will courts define “area”, “for” poor
families, and “high concentrations”?
How will this affect political questions such
as annexation and boundary lines?
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Statute of Limitations
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North Carolina Act:
1 year from date of last act to file an
NCHRC complaint
 1 year from date of last act or Right to Sue
letter to file a lawsuit
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(No requirement to file w/NCHRC first)
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Filing a complaint with HUD or NCHRC
stops the running of the time to file a
lawsuit under the federal and state Fair
Housing Act
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Statute of Limitations

Federal Act:
1 year from date of last act to file a
HUD complaint
 2 years from date of last act to file a
lawsuit
 Filing a complaint with HUD stops the
running of the time to file a lawsuit
under the federal and state Fair
Housing Act
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Questions?
Fair Housing Project
Legal Aid of NC
1-855-797-FAIR
www.fairhousingnc.org
NC Human
Relations Commission
(919) 807-4420
1-866-324-7474 (toll free)
www.doa.state.nc.us/hrc
This seminar provides general information.
For legal advice, please consult an attorney.
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