Transcript Slide 1

Fair Housing is Good
Business
How the Fair Housing Act Applies
to Zoning and Land Use
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Mission: To educate & advocate for equal access
to quality, affordable housing for everyone in
Southeastern Pennsylvania
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Est. 1956 - Oldest Fair Housing Council in Nation
Serves Bucks, Chester, Delaware, Montgomery
and Philadelphia Counties
Provides enforcement, investigation & education
services
What Is Fair Housing?
Some Statistics…
The U.S. Department of Housing & Urban
Development (HUD) estimates that nearly 2.5
million people in the United States are victims of
housing discrimination each year
Housing discrimination complaints are at an alltime high
Race and disability top the list of reasons why
individuals filed fair housing complaints
The Fair Housing Act
Title VIII of the Civil Rights Act of 1968 as
amended, known as the Fair Housing Act, makes
it unlawful to discriminate against individuals in
housing transactions based on:
Race
Color
Religion
National Origin
Gender
Disability
Familial Status
The Pennsylvania Human
Relations Act
Pennsylvania state law that makes it
unlawful to discriminate against people in
housing transactions
Covers all federally protected classes, as
well as age (above 40)
Common Housing Transactions
Covered by Fair Housing Laws
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Rentals
Sales
Mortgage Lending
Homeowners Insurance
Appraisals
Advertising Guidelines
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It’s illegal to print discriminatory
advertisements
Advertisements should describe the
property itself, rather than the potential
occupants
Both the housing provider and the media
are liable if discriminatory advertisements
are published
Example: stating “no kids”
Properties Covered & Exempted by
Fair Housing Laws
All properties covered except:
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Owner occupied buildings with four or less
rental units when the owner DOES NOT use
the services of a real estate professional to
advertise
Housing run by religious organizations or
private clubs that limit occupancy only to
members
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CANNOT discriminate based on race
Properties Covered & Exempted by
Fair Housing Laws
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Qualified senior citizen communities who
meet the following guidelines:
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100% of occupants are 62 or older
80% of occupants are 55 or older
Treatment that May Be Considered
Discriminatory in Housing
Transactions
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Refusing to rent, sell or negotiate for housing
Making housing unavailable or denying that
housing is available
Setting different terms, conditions or privileges
for the sale or rental of housing, mortgage loan
or insurance policy
Steering or segregating housing
Refusing to make reasonable accommodations
or modifications
Permissible Activities Under the
Fair Housing Act
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The Fair Housing Act does not guarantee a
person the right to a property they cannot afford
Property owners may set rents at whatever the
market will bear
An agent or property owner may refuse to rent
to a person if they have reliable information that
the person has a history of violent or disruptive
behavior
An agent or property owner can adopt and apply
uniform, objective and non-discriminatory
criteria designed to evaluate a prospective
tenant or buyer’s credit worthiness, income level
or criminal history
Disability Issues
Disability Defined under the Fair Housing Act:
A physical or mental impairment that
substantially limits one or more of a
person’s major life activities
The definition includes people having a history of
an impairment, and people being perceived as
having an impairment
Reasonable Modifications
Definition: Changes to the physical structure
of a dwelling that are necessary for a
person with a disability to have an equal
opportunity to “use and enjoy” housing
Example: A wheelchair ramp leading to the
doorway of a dwelling
Example: Grab bars in a bathroom
Example: Lower countertops, wider doors
Reasonable Modifications
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It is a housing provider’s responsibility to allow
modifications to be made for a person with a
disability, if those requested modifications are
reasonable.
Reasonable modifications must be made at the
expense of the person requesting the
modifications, not the housing provider
A housing provider may ask for a reasonable
deposit to be put in escrow to cover the costs of
returning the dwelling to its original condition (if
necessary)
Reasonable Accommodations
Definition: Changes in rules, policies, practices or
services that are necessary for a person with a
disability to have an equal opportunity to “use
and enjoy” housing
Example: A person with a mobility impairment
requests an assigned, accessible parking spot
when there is normally a “first come, first
served” parking policy
Example: A person with a visual impairment
requires a service animal, when there is
normally a “no pets” policy
Reasonable Accommodations
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Reasonable Accommodations must be made by
a housing provider when the request is
reasonable
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A housing provider must act on a reasonable
accommodation request within a reasonable
amount of time, as delay may amount to a
denial of the accommodation
When is a request unreasonable? When the
accommodation would pose an undue financial
AND administrative hardship on the housing
provider, OR if the accommodation would
fundamentally alter the nature of the housing
program
HUD & DOJ Joint Statement on
Reasonable Accommodations
Statement can be found online:
http://www.usdoj.gov/crt/housing/jointstatement_
ra.php
This statement provides technical assistance
regarding the rights and obligations of persons
with disabilities and housing providers under the
Fair Housing Act relating to reasonable
accommodations
The Purpose of Zoning
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Zoning exists to define and maintain the
character of urban, suburban and rural
communities
Zoning exists to preserve open space, prevent
overcrowding, ensure adequate parking, enforce
health and safety regulations, retain historic
character and attributes of a community, etc.
Zoning exists to maintain property values in
communities
How Does the Fair Housing Act
Impact Zoning and Land Use?
Sec. 802. [42 U.S.C. 3602]
(b) "Dwelling" means any building, structure, or
portion thereof which is occupied as, or
designed or intended for occupancy as, a
residence by one or more families, and any
vacant land which is offered for sale or lease for
the construction or location thereon of any such
building, structure, or portion thereof.
How Does the Fair Housing Act
Impact Zoning and Land Use?
Zoning decisions may not:
 Be created based on the race, color, religion, national
origin, gender, disability or familial status of the
residents or potential residents
 Be created based on neighbor’s fears that a dwelling
may be occupied by members of the protected classes
 Contain provisions that treat transitional housing,
supportive housing, group homes, etc. differently than
other similar uses
 Provide for stricter enforcement of housing occupied by
members of the protected classes
 Have a disparate impact, or create a disproportional
harm to a protected class
How Does the Fair Housing Act
Impact Zoning and Land Use?
While the Fair Housing Act does not
preempt the local zoning authority, case
law has proven that it can successfully
challenge situations where local zoning
ordinances and practices discriminate
against a protected class
Groups Commonly Affected By
Discriminatory Zoning Laws
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Group homes for people with disabilities or
people recovering from substance abuse
Residents of supportive housing
Residents of transitional Housing
Families with children
Racial & ethnic minorities
Examples of Illegal Discrimination
in Zoning
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Placing conditions on zoning permits that are more
burdensome than usual due to the nature of the housing
program
Rules that require group homes to be within a certain
distance from each other
Rules that require group homes to have a perimeter of
hedges or a fence surrounding the property
Requiring community approval prior to granting permits
for the development of low-moderate income housing
Stricter code enforcement for housing for people with
disabilities
Restricting the development of multi-family affordable
housing to certain areas to perpetuate racial segregation
of a community
Group Homes
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Group homes are small, residential facilities
located within a community and designed to
serve children or adults with chronic disabilities
Most group homes are standard, single-family
houses, purchased by group home
administrators and adapted to meet the needs
of the residents
Group homes were designed to provide care in
the least restrictive environment and to
integrate individuals with disabilities into the
community, reducing stigma and improving
quality of life
Group Homes
With respect to group homes, the Fair Housing Act makes
it unlawful:
 To utilize land use policies/actions that treat groups of
persons with disabilities less favorably than groups of
non-disabled persons. An example would be an
ordinance prohibiting housing for persons with
disabilities from locating in a particular area, while
allowing other groups of unrelated individuals to live
together in that area.
 To take action against, or deny a permit, for a home
because of the disability of individuals who would live
there.
 To refuse to make reasonable accommodations in land
use and zoning policies and procedures where such
accommodations may be necessary to afford persons or
groups of persons with disabilities an equal opportunity
to use and enjoy housing.
United States v. City of
Philadelphia
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Project H.O.M.E. was denied a zoning permit to convert
two commercial buildings into residential dwellings for
the purpose of housing persons with mental illness and
persons in recovery from substance abuse
Permit denied because properties did not meet zoning
requirement of having a backyard
Reasonable accommodation was requested, asking for
variance to waive the backyard requirement as there
was a side yard instead – the request was denied by the
City
Court order issued – stated accommodation request was
in fact reasonable (no undue financial burden on City),
and City must issue permit to Project H.O.M.E.
Spacing Requirements for Group
Homes in the City of Coatesville
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City of Coatesville required that group homes be at least
500 feet apart from one another
Request to waive zoning requirement for a proposed
group home project was denied by the zoning board
Common Pleas Judge Juan Sanchez ruled that the
ordinance was unenforceable because it is applied only
to homes for people with disabilities
Judge Sanchez said, “the city seeks to avoid saturation
of handicapped individuals with its residential districts”
and that the “motive in enacting a facially discriminatory
ordinance is irrelevant in determining whether the
ordinance is lawful”
Adapted from: Lowe, Bill. “Judge rules Coatesville ordinance violates Fair
Housing Act.” Daily Local News, 6 April 2000, Sec. A3.
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
Statement can be found online:
http://www.usdoj.gov/crt/housing/final8_1.php
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This statement provides an overview of the Fair
Housing Act’s requirements for local
governments regarding zoning/land use in
relation to group homes
This statement answers some of the following
questions:
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
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Does the Fair Housing Act pre-empt local
zoning laws?
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No, the Fair Housing Act is not a land use or
zoning statute – however, if that power is
exercised in a specific instance in a way that
is inconsistent with a federal law such as the
Fair Housing Act, the federal law will control
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
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What kinds of local zoning and land use laws
relating to group homes violate the Fair Housing
Act?
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Laws that treat groups of unrelated persons with
disabilities less favorably than similar groups of
unrelated people without disabilities
Example: an ordinance that allows up to six unrelated
people to live as a household unit in any zoning
district without special permission, but requires group
homes with up to six unrelated people with disabilities
to obtain a special use permit to operate
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
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When, if ever, can a local government
limit the number of group homes that can
locate in a certain area?
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The Department of Justice and HUD take the
position that density restrictions are generally
inconsistent with the Fair Housing Act
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
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What kinds of health and safety regulations can
be imposed upon group homes?
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Group homes are subject to state regulations
intended to protect the health and safety of their
residents
Regulation and licensing requirements for group
homes are themselves subject to scrutiny under the
Fair Housing Act
Violations occur when regulators disguise
discriminatory motives behind attempts to exclude
group homes from a community
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
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Can a local government consider the
feelings of neighbors in making a decision
about granting a permit to a group home
to locate in a residential neighborhood?
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A local government can violate the Fair
Housing Act if it blocks a group home or
denies a requested reasonable
accommodation in response to neighbors'
stereotypical fears or prejudices about
persons with disabilities
HUD/DOJ Joint Statement on
Group Homes, Local Land Use &
the Fair Housing Act
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How are zoning and land use matters handled
by HUD and the DOJ?
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HUD refers matters to the DOJ which, in its
discretion, may decide to bring suit against the
respondent in such a case
The DOJ may also bring suit in a case that has not
been the subject of a HUD complaint
The DOJ’s principal objective in a suit of this kind is to
remove significant barriers to the housing
opportunities available for persons with disabilities
Occupancy Standards
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HUD has published guidance stating that
generally two people per bedroom in a dwelling
is acceptable (Keating Memo)
Policies more restrictive than two people per
bedroom may be considered discriminatory
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This can be disputed however, based on factors such
as the overall size of the bedrooms, configuration of
the dwelling, capacity of septic/sewer or other
building systems, existence of state/local laws
Rules that restrict boys & girls from sharing
bedrooms may be considered discriminatory
Occupancy limits can have a disparate impact
upon families with children
Occupancy Standards and Zoning
Code
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Municipalities are free to enact their own occupancy
standards, as long as they are non-discriminatory
Often, these occupancy standards are determined
by the square footage of a dwelling
In some cases, if the occupancy standards amount
to be more restrictive than the HUD guidelines,
families with children may be negatively impacted
Cases can be brought against local government if
there are restrictions on occupancy that seek to
keep families with children out, that cannot be
justified by a legitimate reason (health & safety
concern, etc.)
Occupancy Standards and Zoning
Code
Zoning codes that determine occupancy
standards can also affect group home
situations for people with disabilities
Example: REMED Recovery Care Centers v.
Township Of Willistown, PA
ReMed Recovery Care Centers v.
Township Of Willistown, PA
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ReMed acquired a property in Willistown with the intention of
housing eight disabled residents
Property in single-family zone, where only five unrelated
persons were able to reside there under the zoning code’s
definition of “family”
ReMed appealed to the zoning board for a reasonable
accommodation to allow additional residents beyond the five
person limit
At zoning board public hearing, many people testified against
the presence of the group home & addition of residents
Zoning board ultimately denied ReMed’s request, based on
discriminatory opinions voiced at public hearing
In conclusion, the court favored ReMed, and deemed the
denial of the reasonable accommodation request a fair
housing violation
Adverse Zoning Action that May
Indicate Discrimination
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Direct evidence that underlying reason may be
discriminatory
Perpetuating a pattern of segregation
Historical background shows zoning patterns or decisions
came from discriminatory origins
Timing and sequence of events are unusual or suspicious
Departures from usual procedural steps
The usual reasons for accepting or denying similar
approvals are not applied
The reasons given for rejecting a development are not
true, or they are not applicable to this development
Housing Alliance of PA, Sara Pratt & Michael Allen, Addressing Community Opposition to
Affordable Housing Development: A Fair Housing Toolkit (2004)
Exemption to the Fair Housing Act
that Relates to Zoning
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Exemption for qualified senior
communities where at least 80% of
occupants are 55 years of age or above
According to the Housing for Older
Persons Act, a housing facility or
community for older persons may include
“a municipally zoned area”
Recommendations for Avoiding
Discriminatory Treatment
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Review zoning ordinances to make sure they are nondiscriminatory
Make sure that zoning ordinances for group homes do
not indicate density requirements, as HUD guidance
indicates this is generally unlawful
Make sure zoning decisions are not made based upon
the discriminatory viewpoints of people in the
community
Enforce all zoning ordinances equally
Grant reasonable accommodations to group homes for
people with disabilities when “reasonable”
Create standard procedural steps for reviewing zoning
ordinances
Resources
Addressing Community Opposition to
Affordable Housing Development: A Fair
Housing Toolkit:
http://www.fhcsp.com/Links/toolkit.pdf
Includes additional examples of fair housing
cases involving zoning and land use
Further Reading
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The Fair Housing Act:
www.usdoj.gov/crt/housing/title8.htm
The Housing for Older Persons Act:
www.fairhousing.com/index.cfm?method=page.
display&pageID=443
HUD/DOJ Joint Memo on Group Homes, Local
Land Use, and the Fair Housing Act:
www.usdoj.gov/crt/housing/final8_1.htm
HUD/DOJ Joint Memo on Reasonable
Accommodations Under the Fair Housing Act:
www.usdoj.gov/crt/housing/jointstatement_ra.ht
m
Contact Information
Sarale Sewell
Education Specialist, FHCSP
[email protected]
610-604-4411 x3
225 S. Chester Road, Suite 1
Swarthmore, PA 19081
www.fhcsp.com