Fair Housing is Good Business How the Fair Housing Act Applies to Zoning and Land Use

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

What Is Fair Housing?

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

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: RaceColorReligion National Origin GenderDisability Familial Status

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)

Common Housing Transactions Covered by Fair Housing Laws  Rentals  Sales  Mortgage Lending  Homeowners Insurance  Appraisals

Advertising Guidelines  It’s 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”

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

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

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

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 buyer’s credit worthiness, income level or criminal history

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

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

Reasonable Modifications  It is a housing provider’s 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)

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

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

HUD & DOJ Joint Statement on Reasonable Accommodations Statement can be found online: ra.php 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

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

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

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 neighbor’s 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

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

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

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

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

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.

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.

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.

HUD/DOJ Joint Statement on Group Homes, Local Land Use & the Fair Housing Act Statement can be found online:  This statement provides an overview of the Fair Housing Act’s requirements for local governments regarding zoning/land use in relation to group homes  This statement answers some of the following questions:

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

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

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

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

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

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 DOJ’s principal objective in a suit of this kind is to remove significant barriers to the housing opportunities available for persons with disabilities

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

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.)

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

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 code’s 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 ReMed’s 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

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)

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”

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

Resources Addressing Community Opposition to Affordable Housing Development: A Fair Housing Toolkit: Includes additional examples of fair housing cases involving zoning and land use

Further Reading  The Fair Housing Act:  The Housing for Older Persons Act: display&pageID=443  HUD/DOJ Joint Memo on Group Homes, Local Land Use, and the Fair Housing Act:  HUD/DOJ Joint Memo on Reasonable Accommodations Under the Fair Housing Act: m m m

Contact Information Sarale Sewell Education Specialist, FHCSP x3 225 S. Chester Road, Suite 1 Swarthmore, PA