Fair Housing, Zoning and Affirmatively Furthering Fair Housing: What is Required?. 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. Fair Housing Project
Fair Housing, Zoning and Affirmatively Furthering Fair Housing: What is Required?
Human Relations Commission
1318 Mail Service Center
Raleigh, NC 27609
1-866-324-7474 (toll free)
Fair Housing Project
Legal Aid of North Carolina
Post Office Box 26087
Raleigh, NC 27611
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 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
North Carolina State Fair Housing Act
N.C. Gen. Stat. §41A-1
FHA passed April 1968
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”
Non-discrimination based on 7 “protected classes”
Race, color, religion, national origin (1968)
Disability, familial status (1988)
Originally focused on racial & national origin
Administer programs “in a manner affirmatively to further the policies” of the Fair Housing Act
42 U.S.C. §3608(e)(5)
Do “more than simply refrain from discriminating;” must also “assist in ending discrimination & segregation”
NAACP v. Sec. of HUD, 817 F.2d 149 (1st Cir. 1987)
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, ESG, HOPWA, NSP funds
Applies to PHAs
Applies to subgrantees/subrecipients
No regulatory definition of AFFH
But rule has been proposed
78 Fed. Reg. 139 (7/19/13), pp. 43710-43743
Fair Housing Planning Guide Req’ts
Analysis of Impediments to Fair Housing Choice (AI)
Take appropriate actions to overcome effects of any impediments identified
Maintain records reflecting analysis & actions taken
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
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
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
“Utterly failed” to meet obligations
Need to consider where affordable housing is placed
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
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
Ensure land use, zoning, occupancy codes are FH compliant
“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.”
The FHA broadly applies to "dwellings,” which includes almost every residential rental unit.
Single and Multi-family housing
houses, apartments & condos
Assisted living housing
Long-term transient lodging
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
What Acts are Prohibited?
“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)
Increase housing choice & opportunities
Allow people w/ disabilities to live in community settings
Respect unique needs & circumstances
Intentional discrimination/disparate treatment
Policies that have discriminatory effect/disparate impact
Incl. zoning laws or decisions
HUD issued regulation 2/15/13
Denial of reasonable accommodation for person w/ disability
Incl. denials by gov’t officials
Statements indicating preference/limitation
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)
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.
Denial of building, renovation, special use permit or re-zoning based on objections to residents of the development or home
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.
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
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
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
§ 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 (cont’d.)
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.
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
(No requirement to file w/NCHRC first)
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
Statute of Limitations
Fair Housing Project
Legal Aid of NC
1-866-324-7474 (toll free)
This seminar provides general information. For legal advice, please consult an attorney.