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Slide 1 - the North Carolina Housing Coalition_


									  Fair Housing, Zoning and
  Affirmatively Furthering
  Fair Housing:
                What is Required?

Fair Housing Project        North Carolina Human
Legal Aid of North Carolina Relations Commission
   Post Office Box 26087   1318 Mail Service Center
    Raleigh, NC 27611      Raleigh, North Carolina 27609
     1-855-797-FAIR        (919) 807-4420-Office Number
                           1-866-324-7474-Toll Free

    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.

        Fair Housing: Federal Laws
   Fair Housing Act
       42 U.S.C. §3601, et seq.

   Civil Rights Act of 1866
       42 U.S.C. § 1981

   Title VI of Civil Rights Act of 1964
       42 U.S.C. §2000d, et seq.

   Sec. 109, Housing & Comm. Dev. Act of 1974
       42 U.S.C. §5309

   Americans with Disabilities Act (ADA)
       42 U.S.C. §1201, et seq.

   Sec. 504, Rehabilitation Act of 1973
       29 U.S.C. §794
    Fair Housing: State Law

   North Carolina State Fair Housing Act
       N.C. Gen. Stat. §41A-1
            added Affordable Housing as protected class

    Fair Housing Act
   FHA passed April 1968
   Context
       De jure racial discrimination in housing
       Housing segregation based on race
       Civil Rights Movement
       Kerner Commission (1968)
            “our nation is moving toward two societies, one
             Black, one white – separate and unequal”

    FHA Goals
   Non-discrimination based on 7 “protected
       Race, color, religion, national origin, sex,
        disability, familial status
   Ending segregation
       Originally focused on racial & national origin

     Affirmatively Furthering Fair Housing:
     HUD Obligations

   HUD required to administer programs “in a
    manner affirmatively to further the policies”
    of the Fair Housing Act
       42 U.S.C. §3608(e)(5)
   HUD has obligation “to do more than
    simply refrain from discriminating;” must
    also “assist in ending discrimination &
       NAACP v. Sec. of HUD, 817 F.2d 149 (1st Cir. 1987)
     Affirmatively Furthering Fair Housing:
     Grantee Obligations
   CDBG grants “shall be made only if the grantee
    certifies” that
       the grant will be conducted and administered in
        conformity with” the FHA
       “the grantee will affirmatively further fair housing.”
            42 U.S.C. §5304(b)(2)
   Also applies to HOME, Emergency Shelter Grant,
    NSP funds
   Applies to subgrantees/subrecipients

    AFFH: What is Required?
   No regulatory definition of AFFH
   HUD Fair Housing Planning Guide
       3 General Requirements:
            Conduct Analysis of Impediments to Fair Housing
             Choice (AI) study
            Take appropriate actions to overcome effects of any
             impediments identified
            Maintain records reflecting analysis & actions taken

    AFFH: What is Required?

   HUD Fair Housing Planning Guide
       Affordable housing vs. fair housing activities
       Not enough to build or rehab low/mod housing
       Primarily symbolic activities not enough
            E.g. FH poster contests

    U.S. ex rel. Anti-Discrimination Center
    v. Westchester County

   False Claims Act
       Allows private party to sue in place of US
       Remedies
            Treble damages
            Attorney’s fees
            Injunctive relief

    ADC v. Westchester:
    Plaintiff’s Allegations
   County received > $52 million from 2000-06
   County certified meeting AFFH obligations
   County did not meet AFFH
       AI did not ID any impediments based on race,
        color, national origin
       AI did not mention housing discrimination or

    ADC v. Westchester:
    County’s Response

   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

    ADC v. Westchester:
    Settlement Agreement
   County to develop 750 affordable units
       660 in predominantly white cities
            <3% African American and <7% Latino
       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
       $7.5 million to ADC
   Supply additional $30 million for integrative units
   Pay $2.5 million attorney’s fees & costs

     Holding Local
     Governments Accountable

   Examples of Local FH Activities
        Updating local FH laws w/ add’l protected classes
            e.g. affordable housing as protected class
        Supporting accessibility & visitability
        Training for City staff, officials, landlords & general public in FH
         law & diversity
        Education & outreach to promote FH, knowledge of LL/tenant
         laws & awareness of disparate impact of certain policies (e.g.
         criminal background screening)
        Establishing FH complaint processes
        Affirmative marketing
        Ensuring Land use, zoning, occupancy codes are FH compliant
        FH testing
    ADC v. Westchester:
    Implications for CDBG Recipients
   Review your AI
       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.
   Include specific actions to address barriers to FH.
   Hold sub-recipients accountable
       Cities, towns, etc. must also AFFH

Federal Fair Housing Act

                What Type of
                 Property is
                Who is Protected?

                What Actions are
Types of Property Covered
The FHA broadly applies to "dwellings,” which
  includes almost every residential rental unit.
      Single and Multi-family housing
           houses, apartments & condos
      Group homes
      Shelters
      Migrant housing
      Assisted living housing
      Long-term transient lodging

FHA Dwelling Exemptions
   Rental of a single family home without a broker or
   Units in an owner-occupied building having no
    more than four families living independently of
    each other.
   Private clubs may provide noncommercial lodging
    for their members.
   Religious organizations may limit or give
    preference to persons of the same religion in
    noncommercial dwellings.

Who is Protected?
            National Origin
            Sex / Gender
               • Includes sexual harassment
            Familial Status (1988)
            Disability (1988)

Fair Housing Applies to Zoning

   The FHA prohibits a broad range of activities,
    including restrictive zoning.

   As a result, zoning boards, municipalities, and
    other gov’t entities that take actions in violation of
    the FHA will be liable.

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).                                             22
Policies Underlying FHA &

   Increase housing opportunities for people
with disabilities

Integrate people with disabilities into
mainstream (i.e., community) settings

What Type of
Discrimination is Illegal?
                  Intentional discrimination
                  Discriminatory classification
                   of people w/ disabilities
                  Zoning Laws w/ disparate
                  Failure of local gov’t
                   officials to reasonably
                   accommodate people w/

  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

Disability: Examples
   Mobility impairments
   Sensory impairments
   Mental illness
   HIV positive or AIDS
   Former drug abuse
   Other physical / mental

   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

Reasonable Accommodations
& 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).

   Reasonable Accommodations:
 Allow nursing home to operate in mixed
residential zone
 Waive minimum side yard requirement
 Variance to allow facility for people with
disabilities in commercial/industrial district
 Allow 8-person home (vs. 6-person)
 Exception to dispersion requirement

   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.

   Drug use. The current use of illegal drugs is
    excluded from the definition of disability.
What Acts are Prohibited?
•                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

What Acts are Prohibited?

 Coerce, intimidate, threaten, or
   interfere with a person’s right to
   fair housing

 Attempts by local gov’ts to interfere
with group homes may give rise to

       Intentional Discrimination:
   Denial of special use permit for a halfway house for
    recovering alcoholics, where decision-makers statements show
    that the decision was based on the identity of the residents and
    legitimate reasons for denial were deemed pretextual
   Moratorium on new adult care facilities w/o justification
   Limitation on geographical proximity, where limitation was
    imposed in response to community fears and concerns about
    property values
   Denial of renovations permit based on objections to residents
    of the group home

      Intentional Discrimination:
      Examples (cont’d)
   Requiring a zoning application for a special exception to
    provide a residence for people who are HIV-positive was
    deemed to be intentional discrimination, in part because the
    residence met the town’s zoning criteria for “family” residence
    and zoning officials departed from normal procedures in
    considering the issue

   Treatment of a group home for people with disabilities as a
    “treatment facility” rather than a “family” (even though it met
    the definition), due to widespread community opposition

Discriminatory Classifications:
   Dispersion requirements mandating that group homes be a
    particular distance apart
   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
Disparate Impact: Examples

   Requiring group homes include only persons who
    are mobile and capable of exiting a building and
    following instructions
   Dispersion requirement for group homes
   “Program review board” requirement for group
    home license
   Limitation on # of unrelated persons allowed to
    live together                                     36
Interference, Coercion, or
Intimidation: Examples

   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

   N.C. Gen. Statutes Ch. 41A
   Essentially mirrors Federal FHA:
     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

Adds affordable housing as a
protected class for land-use decisions
   § 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.”
What It Means
   Government bodies involved in land-use
    planning and regulation cannot refuse
    approval or otherwise discriminate against
    proposals because they include affordable
       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.

What It Means (Cont’d.)
   Affordable Housing is defined as housing
    intended for families or individuals with
    incomes less than 80% of median income in
    the area.
       Does not define the size of the area used to
        determine median income (but based on HUD
        definition, which uses MSA).
       Does not state how to determine if housing is
        “for” such families.
What It Means (still cont’d)
   Allows land-use planners to limit “high
    concentrations” of affordable housing.
       Doesn’t define “high concentrations.”

What It Doesn’t Mean
   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.        43
What We Don’t Know
   Who can bring suit (standing).
       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.                              44
What We Don’t Know (Cont’d.)
   How will courts define “area”, “for” poor
    families, and “high concentrations”?
   How will this affect political questions such
    as annexation and boundary lines?

    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

        Filing a complaint with HUD stops the

         running of the time to file a lawsuit
         under the federal and state Fair
         Housing Act

             Fair Housing Project
               Legal Aid of NC
              FAX 919-714-6925

                This seminar provides
               general information. For
             legal advice, please consult
                     an attorney.

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