Affirmatively Furthering Fair Housing at the Municipal Level

1. Affirmatively Furthering Fair Housing at the Municipal Level Robert Appel, Executive Director, Vt. Human Rights Commission Julie Kelliher, General Counsel, DHCA Meris Bergquist, Vt. Legal Aid April 26, 2007

2. Federal Fair Housing Act • Enacted in 1968 • Purpose- to promote a full range of housing opportunities for all persons without regard to protected class status • Protected classes- Race, Color, Religion, National Origin, Sex, Disability, & Familial Status

3. Vermont Fair Housing Act • Enacted in 1988, expanded in 1988, 1989 and 1992 • Protected Classes- All the federal protected classes plus Marital Status, Sexual Orientation, and Receipt of Public Assistance

4. Prohibitions • Refusing to sell or rent, refusing to negotiate for the sale or rental of or otherwise making unavailable or denying a dwelling or other real estate because of a protected class. • Setting different terms, conditions, or privileges of the sale or rental of a dwelling or other real estate because of a protected class.

5. Prohibitions • Discriminating or harassing in the sale or rental of a dwelling or other real estate because of a protected class. • Making or causing to be made a statement indicating a preference, limitation, or discrimination based on a protected class. • Discrimination based on a person’s reliance on attendants, assistive devices or support animals.

6. Prohibitions • Refusing to allow reasonable modifications to a dwelling required to provide equal access to a person with a disability. • Refusing to make reasonable accommodations in policies, procedures, practices and services required to allow equal access to a person with a disability. • Coercing, intimidating, threatening or otherwise interfering with a person exercising a right protected under the Fair Housing Law.

7. Exemptions • There are some exemptions, primarily that age and familial status classes do not apply to qualified senior housing as well as owner occupied dwellings with three or fewer living units--VT, four or fewer--US. Also exempt are certain religious organizations for housing their employees.

8. Municipal Issues • Restrictive zoning; • Variance requests as reasonable accommodations; • Group homes; • Unrelated occupants in a dwelling; and • Lead paint issues.

9. Questions??

10. Fair Housing Conceptsfor Municipalities • Affordable Housing Choices • Exclusionary Zoning Practices • Reasonable Accommodations

11. Ch. 117 Definition of Affordable • Affordable housing- means housing that is owned or rented by its inhabitants whose incomes do not exceed 80% of the county median income, and total cost of housing doesn’t exceed 30% of households gross annual income.

12. Ch. 117 Definition of Affordable Housing Development • A housing development of which at least 20% of the units or a minimum of 5 units, whichever is greater, are affordable units. • Covenants or restrictions must guarantee affordability for a minimum of 15 years.

13. Inclusionary Zoning24 V.S.A. s. 4414(7) • To provide for affordable housing, bylaws may require a % of units in a proposed subdivision or PUD be affordable. • Inclusionary zoning must: • Conform with housing element of municipal plan; • Be based on a needs analysis; • Include incentives such as a density bonuses, reductions or waivers of dimensional requirements and permitting fees. • Require income verification of residents, affirmative marketing, and regulation of the price, rent and resale price.

14. Accessory Apartments • Must be treated as a permitted use if: • an efficiency or one-bedroom apartment that is clearly subordinate to an owner-occupied single-family dwelling; and • Contains facilities for independent living and • has sufficient wastewater capacity. • does not exceed 30 percent of the total habitable floor area of the single-family dwelling; and • applicable setback, coverage, and parking requirements are met.

15. Accessory Apartments • bylaws can be less restrictive than the statute • Bylaws may require conditional use review for if: • a new accessory structure, • an increase in the height or floor area of the existing dwelling, or • an increase in the dimensions of the parking areas.

16. Exclusionary Zoning Practices • Large Minimum lot sizes- ex. 10 acres. • Restrictive setbacks, frontage, side yard sizes requirements. • Density restrictions • Exclusion of affordable housing choices • Prohibiting group homes

17. 24 V.S.A. § 4412 Required Equal Treatment of Housing No bylaw shall have the effect of excluding: • Housing that meets the needs of low/mod income population as determined by housing element of the municipal plan; • Mobile homes, modular housing, and pre-fabricated housing; • Mobile home parks;

18. 24 V.S.A. § 4412 Equal Treatment of Housing No bylaw shall have the effect of excluding: • Multiunit/multifamily housing; • Accessory dwelling units; and • Residential care or group homes (licensed & serving 8 or less people).

19. Recent NH Affordable Housing Case:Great Bridge Properties v. Town of Ossipee • Zoning is for the “purpose of promoting health, safety and general welfare of the community.” • Zoning ordinances that operate to exclude lower income residents from living in a municipality “fly in the face of the general welfare purpose of zoning regulation and are not a valid exercise of the police power.”

20. Exclusionary Zoning Wrap-Up • Exclusionary zoning is an impediment to fair housing • Violation of Chapter 117 • May be invalid for not protecting the “general welfare”

21. Fair Housing Act & Reasonable Accommodations • Violation of FHA: • Refusing to make reasonable accommodations in policies, procedures, practices and services required to allow equal access to a person with a disability. • Example- Setback or other dimensional requirements prohibiting construction or installation of accessible ramps or parking facilities.

22. Ch. 117 “Waivers”as Reasonable Accommodation • Section 4414(8)- municipality may allow waivers to reduce dimensional reqmts; must establish standards & procedures; to “allow for waivers for structures providing for disability accessibility…and other requirements of law.”

23. Ways Municipalities can AFFH • Assess needs and impediments • Review income, population, housing cost, and home sales data • Analyze mix of housing units • Assess local population with accessibility or special needs • Research number of housing discrimination complaints

24. Ways Municipalities can AFFH • Remove Barriers to Fair Housing • Review land use regulations for impediments • Review municipal plan language and remove any statements that conflict with fair housing

25. Ways Municipalities can AFFH • Review requirements for minimum lot sizes • Review minimum densities and setbacks • Allow for planned unit developments • Review language that may discriminate against multi-family units, mobile homes and mobile home parks • Include language that allows accessory apartments

26. Ways Municipalities can AFFH • Include language consistent with state law concerning group homes • Explore language that allows reasonable accommodations in rules, policies or practices to afford equal opportunity for all persons to use and enjoy a dwelling.

27. Ways Municipalities can AFFH • Enact inclusionary provisions • Allow density bonuses for affordable units • Provide permit fee waivers and/or expedited permit review processes for developments providing affordable units

28. QUESTIONS???

29. Time for the show….