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

1. Fair Housing, Zoning and Affirmatively Furthering Fair Housing: What is Required? North Carolina Human Relations Commission 1318 Mail Service Center Raleigh, NC 27699-1318 Main (919) 807-4420 Toll free 1-866-324-7474 Fair Housing Project Legal Aid of North Carolina Post Office Box 26087 Raleigh, NC 27611 1-855-797-FAIR

2. 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.

3. Fair Housing 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

4. Fair Housing Laws Americans with Disabilities Act (ADA) 42 U.S.C. §1201, et seq. Sec. 504, Rehabilitation Act of 1973 29 U.S.C. §794 NC State Fair Housing Act N.C. Gen. Stat. §41A-1

5. 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”

6. FHA goals Non-discrimination based on 7 “protected classes” Race, color, religion, national origin (1968) Sex (1974) Disability, familial status (1988) Ending segregation Originally focused on racial and national origin

7. Affirmatively furthering Fair Housing:HUD obligations 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)

8. 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, ESG, HOPWA, NSP funds Applies to PHAs Applies to subgrantees/subrecipients

9. AFFH: What has been required? No regulatory definition of AFFH But rule has been proposed 78 Fed. Reg. 139 (7/19/13), pp. 43710-43743

10. AFFH: What has been required? Fair Housing Planning Guide Requirements Analysis of Impediments to Fair Housing Choice (AI) Take appropriate actions to overcome effects of any impediments identified Maintain records reflecting analysis & actions taken www.hud.gov/offices/fheo/images/fhpg.pdf

11. AFFH: What has been 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

12. ADC v. Westchester County: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 segregation

13. 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

14. ADC v. Westchester:Court rulings FHA goal = end discrimination and segregation FH Planning Guide is “persuasive” Must consider race in AI and 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

15. 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 with 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 and costs

16. ADC v. Westchester:Implications for HUD recipients • Review your AI • Make sure up-to-date (last 5 yrs.) • Addresses all protected classes, including race, color and national origin • Involve local community and groups • Address segregation in addition to discrimination • Hold sub-recipients accountable • Cities, towns, etc., must also AFFH

17. Examples of local FH activities Update local FH laws with additional protected classes e.g. affordable housing as protected class Support accessibility and visitability Train city staff, officials, landlords and public in FH law Education and outreach to promote FH, knowledge of LL/tenant laws and awareness of disparate impact of certain policies (e.g. criminal background screening)

18. Examples of local FH activities Establish FH complaint processes Affirmative marketing Ensure land use, zoning, occupancy codes are FH compliant FH testing

19. HUD’s proposed AFFH Reg. • Proposed rule published July 19, 2013 • 78 Fed. Reg. 139, pp. 43710-43743 • HUD’s overall goals: • Increase transparency with public involvement and link to public investment plans • Improve compliance so grantees know requirements and standards • Reduce data collection costs

20. HUD’s proposed AFFH Reg. • HUD’s overall goals (continued): • Synchronize assessment process and tie to ConPlan & PHA planning • Encourage regional approaches

21. HUD’s proposed AFFH Reg. • HUD’s Fair Housing goals: • Reduce segregation • Eliminate racially and ethnically concentrated areas of poverty • Reduce disparities in access to important community assets and stressors • Narrow gaps between protected classes/address disproportionate housing needs

22. 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.”

23. Changes with proposed AFFH Reg. • AI Assessment of Fair Housing (AFH) • AFH uses HUD-supplied data • AFH submitted to HUD • 270 days before year prior to 3 or 5 year ConPlan

24. Changes with proposed AFFH Reg. • HUD has 60 days to notify of non-acceptance • Acceptance ≠ met AFFH requirement • Incorporate FH goals into planning • ConPlan, PHA Plan, Annual Action Plan, Capital Fund Plan • Required every 5 yrs (every year for PHAs)

25. Proposed AFFH Reg: Data to be provided by HUD • Demographics of community • Patterns of integration and segregation • Racially and ethnically concentrated areas of poverty (RCAP/ECAP)

26. Proposed AFFH Reg: Data to be provided by HUD • Disparities in access to community assets and stressors • schools, jobs, transportation, recreation, social services, safe streets, health hazard exposure • Disproportionate housing needs based on protected classes • Housing cost burdens, overcrowding, substandard housing

27. Proposed AFFH Reg: AFH elements • Summary of FH issues and capacity to address • Incl. FH enforcement and outreach capacity • Analysis of data • HUD provided + can add own from community • Assessments of determinants of FH issues • Using HUD-supplied tool • ID of FH priorities and general goals • Justify prioritization • Summary of community participation

28. Federal FH Act:Types of property covered The FHA broadly applies to "dwellings,” which includes almost every residential rental unit Single and multi-family housing houses, apartments and condos Group homes Shelters Migrant housing Assisted living housing Long-term transient lodging

29. 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?

30. Fair Housing applies to zoning • “Otherwise make unavailable” • Includes restrictive zoning • As a result, zoning boards, municipalities, and other government entities that take actions in violation of the FHA will be liable

31. 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)

32. Policies underlying FHA and zoning AFFH Increase housing choice and opportunities Integration Olmstead decision Allow people with disabilities to live in community settings Individuality Respect unique needs and circumstances

33. What type of discrimination is illegal? 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 with a disability Includes denials by government officials Statements indicating preference/limitation

34. Disability: • Physical and / or mental impairment which substantially limits one 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

35. Disability: examples • Mobility impairments • Sensory impairments • Mental illness • HIV positive or AIDS • Former drug abuse • Other physical / mental impairments

36. Reasonable Accommodations • Changes in “rules, policies, practices, or services when … necessary to afford … equal opportunity to use and 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

37. Reasonable accommodations and 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)

38. RAs: examples • 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

39. Exceptions 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.

40. Examples of possible intentional discrimination Denial of building, renovation, special use permit or re-zoning based on objections to residents of the development or home Based on race, national origin, familial 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 without justification

41. Examples of possible intentional discrimination Limitation on geographical proximity, where imposed in response to community fears and 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.

42. Examples of possible intentional discrimination 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”

43. Examples of possible intentional discrimination 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

44. Examples of possible disparate impact (discriminatory effect) 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 the number of unrelated persons allowed to live together

45. 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

46. N.C. Fair Housing Act • N.C. Gen. Statutes Ch. 41A • Also NC Real Estate Licensing Act • N.C.A.C. Title 21, §58A-1601 • 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 46

47. 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.” 47

48. What it means • Government bodies involved in land-use planning and regulation cannot refuse approval or otherwise discriminate against proposals because they include affordable housing. • 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. 48

49. What it means (continued) • 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). 49

50. What it means (continued) • Does not state how to determine if housing is “for” such families. • Standard definition of “affordable housing” is 30% of annual income.