Fair Housing is Good Business

1
Fair Housing is Good Business

• How the Fair Housing Act Applies to Zoning and
  Land Use

2
.

• Mission To educate advocate for equal access
  to quality, affordable housing for everyone in
  Southeastern Pennsylvania
• Est. 1956 - Oldest Fair Housing Council in Nation
• Serves Bucks, Chester, Delaware, Montgomery and
  Philadelphia Counties
• Provides enforcement, investigation education
  services

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What Is Fair Housing?
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Some Statistics

• The U.S. Department of Housing Urban
  Development (HUD) estimates that nearly 2.5
  million people in the United States are victims
  of housing discrimination each year
• Housing discrimination complaints are at an
  all-time high
• Race and disability top the list of reasons why
  individuals filed fair housing complaints

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The Fair Housing Act

• Title VIII of the Civil Rights Act of 1968 as
  amended, known as the Fair Housing Act, makes it
  unlawful to discriminate against individuals in
  housing transactions based on
• Race
• Color
• Religion
• National Origin
• Gender
• Disability
• Familial Status

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The Pennsylvania Human Relations Act

• Pennsylvania state law that makes it unlawful to
  discriminate against people in housing
  transactions
• Covers all federally protected classes, as well
  as age (above 40)

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Common Housing Transactions Covered by Fair
Housing Laws

• Rentals
• Sales
• Mortgage Lending
• Homeowners Insurance
• Appraisals

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Advertising Guidelines

• Its illegal to print discriminatory
  advertisements
• Advertisements should describe the property
  itself, rather than the potential occupants
• Both the housing provider and the media are
  liable if discriminatory advertisements are
  published
• Example stating no kids

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Properties Covered Exempted by Fair Housing Laws

• All properties covered except
• Owner occupied buildings with four or less rental
  units when the owner DOES NOT use the services of
  a real estate professional to advertise
• Housing run by religious organizations or private
  clubs that limit occupancy only to members
• CANNOT discriminate based on race

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Properties Covered Exempted by Fair Housing Laws

• Qualified senior citizen communities who meet the
  following guidelines
• 100 of occupants are 62 or older
• 80 of occupants are 55 or older

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Treatment that May Be Considered Discriminatory
in Housing Transactions

• Refusing to rent, sell or negotiate for housing
• Making housing unavailable or denying that
  housing is available
• Setting different terms, conditions or privileges
  for the sale or rental of housing, mortgage loan
  or insurance policy
• Steering or segregating housing
• Refusing to make reasonable accommodations or
  modifications

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Permissible Activities Under the Fair Housing Act

• The Fair Housing Act does not guarantee a person
  the right to a property they cannot afford
• Property owners may set rents at whatever the
  market will bear
• An agent or property owner may refuse to rent to
  a person if they have reliable information that
  the person has a history of violent or disruptive
  behavior
• An agent or property owner can adopt and apply
  uniform, objective and non-discriminatory
  criteria designed to evaluate a prospective
  tenant or buyers credit worthiness, income level
  or criminal history

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Disability Issues

• Disability Defined under the Fair Housing Act
• A physical or mental impairment that
  substantially limits one or more of a persons
  major life activities
• The definition includes people having a history
  of an impairment, and people being perceived as
  having an impairment

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Reasonable Modifications

• Definition Changes to the physical structure of
  a dwelling that are necessary for a person with a
  disability to have an equal opportunity to use
  and enjoy housing
• Example A wheelchair ramp leading to the doorway
  of a dwelling
• Example Grab bars in a bathroom
• Example Lower countertops, wider doors

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Reasonable Modifications

• It is a housing providers responsibility to
  allow modifications to be made for a person with
  a disability, if those requested modifications
  are reasonable.
• Reasonable modifications must be made at the
  expense of the person requesting the
  modifications, not the housing provider
• A housing provider may ask for a reasonable
  deposit to be put in escrow to cover the costs of
  returning the dwelling to its original condition
  (if necessary)

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Reasonable Accommodations

• Definition Changes in rules, policies, practices
  or services that are necessary for a person with
  a disability to have an equal opportunity to use
  and enjoy housing
• Example A person with a mobility impairment
  requests an assigned, accessible parking spot
  when there is normally a first come, first
  served parking policy
• Example A person with a visual impairment
  requires a service animal, when there is normally
  a no pets policy

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Reasonable Accommodations

• Reasonable Accommodations must be made by a
  housing provider when the request is reasonable
• A housing provider must act on a reasonable
  accommodation request within a reasonable amount
  of time, as delay may amount to a denial of the
  accommodation
• When is a request unreasonable? When the
  accommodation would pose an undue financial AND
  administrative hardship on the housing provider,
  OR if the accommodation would fundamentally alter
  the nature of the housing program

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HUD DOJ Joint Statement on Reasonable
Accommodations

• Statement can be found online
• http//www.usdoj.gov/crt/housing/jointstatement_ra
  .php
• This statement provides technical assistance
  regarding the rights and obligations of persons
  with disabilities and housing providers under the
  Fair Housing Act relating to reasonable
  accommodations

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The Purpose of Zoning

• Zoning exists to define and maintain the
  character of urban, suburban and rural
  communities
• Zoning exists to preserve open space, prevent
  overcrowding, ensure adequate parking, enforce
  health and safety regulations, retain historic
  character and attributes of a community, etc.
• Zoning exists to maintain property values in
  communities

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How Does the Fair Housing Act Impact Zoning and
Land Use?

• Sec. 802. 42 U.S.C. 3602(b) "Dwelling" means
  any building, structure, or portion thereof which
  is occupied as, or designed or intended for
  occupancy as, a residence by one or more
  families, and any vacant land which is offered
  for sale or lease for the construction or
  location thereon of any such building, structure,
  or portion thereof.

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How Does the Fair Housing Act Impact Zoning and
Land Use?

• Zoning decisions may not
• Be created based on the race, color, religion,
  national origin, gender, disability or familial
  status of the residents or potential residents
• Be created based on neighbors fears that a
  dwelling may be occupied by members of the
  protected classes
• Contain provisions that treat transitional
  housing, supportive housing, group homes, etc.
  differently than other similar uses
• Provide for stricter enforcement of housing
  occupied by members of the protected classes
• Have a disparate impact, or create a
  disproportional harm to a protected class

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How Does the Fair Housing Act Impact Zoning and
Land Use?

• While the Fair Housing Act does not preempt the
  local zoning authority, case law has proven that
  it can successfully challenge situations where
  local zoning ordinances and practices
  discriminate against a protected class

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Groups Commonly Affected By Discriminatory Zoning
Laws

• Group homes for people with disabilities or
  people recovering from substance abuse
• Residents of supportive housing
• Residents of transitional Housing
• Families with children
• Racial ethnic minorities

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Examples of Illegal Discrimination in Zoning

• Placing conditions on zoning permits that are
  more burdensome than usual due to the nature of
  the housing program
• Rules that require group homes to be within a
  certain distance from each other
• Rules that require group homes to have a
  perimeter of hedges or a fence surrounding the
  property
• Requiring community approval prior to granting
  permits for the development of low-moderate
  income housing
• Stricter code enforcement for housing for people
  with disabilities
• Restricting the development of multi-family
  affordable housing to certain areas to perpetuate
  racial segregation of a community

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Group Homes

• Group homes are small, residential facilities
  located within a community and designed to serve
  children or adults with chronic disabilities
• Most group homes are standard, single-family
  houses, purchased by group home administrators
  and adapted to meet the needs of the residents
• Group homes were designed to provide care in the
  least restrictive environment and to integrate
  individuals with disabilities into the community,
  reducing stigma and improving quality of life

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Group Homes

• With respect to group homes, the Fair Housing Act
  makes it unlawful
• To utilize land use policies/actions that treat
  groups of persons with disabilities less
  favorably than groups of non-disabled persons. An
  example would be an ordinance prohibiting housing
  for persons with disabilities from locating in a
  particular area, while allowing other groups of
  unrelated individuals to live together in that
  area.
• To take action against, or deny a permit, for a
  home because of the disability of individuals who
  would live there.
• To refuse to make reasonable accommodations in
  land use and zoning policies and procedures where
  such accommodations may be necessary to afford
  persons or groups of persons with disabilities an
  equal opportunity to use and enjoy housing.

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United States v. City of Philadelphia

• Project H.O.M.E. was denied a zoning permit to
  convert two commercial buildings into residential
  dwellings for the purpose of housing persons with
  mental illness and persons in recovery from
  substance abuse
• Permit denied because properties did not meet
  zoning requirement of having a backyard
• Reasonable accommodation was requested, asking
  for variance to waive the backyard requirement as
  there was a side yard instead the request was
  denied by the City
• Court order issued stated accommodation request
  was in fact reasonable (no undue financial burden
  on City), and City must issue permit to Project
  H.O.M.E.

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Spacing Requirements for Group Homes in the City
of Coatesville

• City of Coatesville required that group homes be
  at least 500 feet apart from one another
• Request to waive zoning requirement for a
  proposed group home project was denied by the
  zoning board
• Common Pleas Judge Juan Sanchez ruled that the
  ordinance was unenforceable because it is applied
  only to homes for people with disabilities
• Judge Sanchez said, the city seeks to avoid
  saturation of handicapped individuals with its
  residential districts and that the motive in
  enacting a facially discriminatory ordinance is
  irrelevant in determining whether the ordinance
  is lawful
• Adapted from Lowe, Bill. Judge rules
  Coatesville ordinance violates Fair Housing Act.
  Daily Local News, 6 April 2000, Sec. A3.

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• Statement can be found online
• http//www.usdoj.gov/crt/housing/final8_1.php
• This statement provides an overview of the Fair
  Housing Acts requirements for local governments
  regarding zoning/land use in relation to group
  homes
• This statement answers some of the following
  questions

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• Does the Fair Housing Act pre-empt local zoning
  laws?
• No, the Fair Housing Act is not a land use or
  zoning statute however, if that power is
  exercised in a specific instance in a way that is
  inconsistent with a federal law such as the Fair
  Housing Act, the federal law will control

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• What kinds of local zoning and land use laws
  relating to group homes violate the Fair Housing
  Act?
• Laws that treat groups of unrelated persons with
  disabilities less favorably than similar groups
  of unrelated people without disabilities
• Example an ordinance that allows up to six
  unrelated people to live as a household unit in
  any zoning district without special permission,
  but requires group homes with up to six unrelated
  people with disabilities to obtain a special use
  permit to operate

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• When, if ever, can a local government limit the
  number of group homes that can locate in a
  certain area?
• The Department of Justice and HUD take the
  position that density restrictions are generally
  inconsistent with the Fair Housing Act

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• What kinds of health and safety regulations can
  be imposed upon group homes?
• Group homes are subject to state regulations
  intended to protect the health and safety of
  their residents
• Regulation and licensing requirements for group
  homes are themselves subject to scrutiny under
  the Fair Housing Act
• Violations occur when regulators disguise
  discriminatory motives behind attempts to exclude
  group homes from a community

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• Can a local government consider the feelings of
  neighbors in making a decision about granting a
  permit to a group home to locate in a residential
  neighborhood?
• A local government can violate the Fair Housing
  Act if it blocks a group home or denies a
  requested reasonable accommodation in response to
  neighbors' stereotypical fears or prejudices
  about persons with disabilities

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HUD/DOJ Joint Statement on Group Homes, Local
Land Use the Fair Housing Act

• How are zoning and land use matters handled by
  HUD and the DOJ?
• HUD refers matters to the DOJ which, in its
  discretion, may decide to bring suit against the
  respondent in such a case
• The DOJ may also bring suit in a case that has
  not been the subject of a HUD complaint
• The DOJs principal objective in a suit of this
  kind is to remove significant barriers to the
  housing opportunities available for persons with
  disabilities

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Occupancy Standards

• HUD has published guidance stating that generally
  two people per bedroom in a dwelling is
  acceptable (Keating Memo)
• Policies more restrictive than two people per
  bedroom may be considered discriminatory
• This can be disputed however, based on factors
  such as the overall size of the bedrooms,
  configuration of the dwelling, capacity of
  septic/sewer or other building systems, existence
  of state/local laws
• Rules that restrict boys girls from sharing
  bedrooms may be considered discriminatory
• Occupancy limits can have a disparate impact upon
  families with children

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Occupancy Standards and Zoning Code

• Municipalities are free to enact their own
  occupancy standards, as long as they are
  non-discriminatory
• Often, these occupancy standards are determined
  by the square footage of a dwelling
• In some cases, if the occupancy standards amount
  to be more restrictive than the HUD guidelines,
  families with children may be negatively impacted
• Cases can be brought against local government if
  there are restrictions on occupancy that seek to
  keep families with children out, that cannot be
  justified by a legitimate reason (health safety
  concern, etc.)

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Occupancy Standards and Zoning Code

• Zoning codes that determine occupancy standards
  can also affect group home situations for people
  with disabilities
• Example REMED Recovery Care Centers v. Township
  Of Willistown, PA

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ReMed Recovery Care Centers v. Township Of
Willistown, PA

• ReMed acquired a property in Willistown with the
  intention of housing eight disabled residents
• Property in single-family zone, where only five
  unrelated persons were able to reside there under
  the zoning codes definition of family
• ReMed appealed to the zoning board for a
  reasonable accommodation to allow additional
  residents beyond the five person limit
• At zoning board public hearing, many people
  testified against the presence of the group home
  addition of residents
• Zoning board ultimately denied ReMeds request,
  based on discriminatory opinions voiced at public
  hearing
• In conclusion, the court favored ReMed, and
  deemed the denial of the reasonable accommodation
  request a fair housing violation

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Adverse Zoning Action that May Indicate
Discrimination

• Direct evidence that underlying reason may be
  discriminatory
• Perpetuating a pattern of segregation
• Historical background shows zoning patterns or
  decisions came from discriminatory origins
• Timing and sequence of events are unusual or
  suspicious
• Departures from usual procedural steps
• The usual reasons for accepting or denying
  similar approvals are not applied
• The reasons given for rejecting a development are
  not true, or they are not applicable to this
  development
• Housing Alliance of PA, Sara Pratt Michael
  Allen, Addressing Community Opposition to
  Affordable Housing Development A Fair Housing
  Toolkit (2004)

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Exemption to the Fair Housing Act that Relates to
Zoning

• Exemption for qualified senior communities where
  at least 80 of occupants are 55 years of age or
  above
• According to the Housing for Older Persons Act, a
  housing facility or community for older persons
  may include a municipally zoned area

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Recommendations for Avoiding Discriminatory
Treatment

• Review zoning ordinances to make sure they are
  non-discriminatory
• Make sure that zoning ordinances for group homes
  do not indicate density requirements, as HUD
  guidance indicates this is generally unlawful
• Make sure zoning decisions are not made based
  upon the discriminatory viewpoints of people in
  the community
• Enforce all zoning ordinances equally
• Grant reasonable accommodations to group homes
  for people with disabilities when reasonable
• Create standard procedural steps for reviewing
  zoning ordinances

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Resources

• Addressing Community Opposition to Affordable
  Housing Development A Fair Housing Toolkit
  http//www.fhcsp.com/Links/toolkit.pdf
• Includes additional examples of fair housing
  cases involving zoning and land use

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Further Reading

• The Fair Housing Act www.usdoj.gov/crt/housing/t
  itle8.htm
• The Housing for Older Persons Act
  www.fairhousing.com/index.cfm?methodpage.display
  pageID443
• HUD/DOJ Joint Memo on Group Homes, Local Land
  Use, and the Fair Housing Act
  www.usdoj.gov/crt/housing/final8_1.htm
• HUD/DOJ Joint Memo on Reasonable Accommodations
  Under the Fair Housing Act www.usdoj.gov/crt/hou
  sing/jointstatement_ra.htm

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Contact Information

• Sarale Sewell
• Education Specialist, FHCSP
• sewell_at_fhcsp.com
• 610-604-4411 x3
• 225 S. Chester Road, Suite 1
• Swarthmore, PA 19081
• www.fhcsp.com