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, North Carolina 27609 (919) 807-4420-Office Number 1-866-324-7474-Toll Free 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: 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

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

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, sex, disability, familial status Ending segregation Originally focused on racial & national origin

7. 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 & 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, Emergency Shelter Grant, NSP funds Applies to subgrantees/subrecipients

9. 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 www.hud.gov/offices/fheo/images/fhpg.pdf

10. 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

11. U.S. ex rel. Anti-Discrimination Center v. Westchester County False Claims Act Allows private party to sue in place of US government Remedies Treble damages Attorney’s fees Injunctive relief

12. 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 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: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

15. Holding LocalGovernments 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

16. 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

17. Federal Fair Housing Act What Type of Property is Covered? Who is Protected? What Actions are Prohibited?

18. 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

19. FHA Dwelling Exemptions Rental of a single family home without a broker or advertising. 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.

20. Who is Protected? • Race • Color • National Origin • Sex / Gender • Includes sexual harassment • Religion • Familial Status (1988) • Disability (1988)

21. 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.

22. 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).

23. Policies Underlying FHA & Zoning Increase housing opportunities for people with disabilities Integrate people with disabilities into mainstream (i.e., community) settings

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

25. 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

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

27. 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 housing

28. 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).

29. Reasonable Accommodations: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

30. 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.

31. 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 What Acts are Prohibited?

32. 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 liability

33. Intentional Discrimination: Examples 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

34. 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

35. Discriminatory Classifications: Examples 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

36. 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

37. 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

38. N.C. FAIR HOUSING ACT • 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 38

39. 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.” 39

40. 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. 40

41. 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. 41

42. What It Means (still cont’d) • Allows land-use planners to limit “high concentrations” of affordable housing. • Doesn’t define “high concentrations.” 42

43. 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

44. 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

45. 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? 45

46. Federal Act: 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

47. Questions? Fair Housing Project Legal Aid of NC 1-855-797-FAIR FAX 919-714-6925 This seminar provides general information. For legal advice, please consult an attorney.