Fair Housing for Elected Officials and Local Governments
The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability. The Act does not pre-empt local zoning laws; however, the Act applies to municipalities and other local government entities and prohibits them from making zoning or land use decisions or policies that exclude or discriminate against protected persons.
The Fair Housing Act makes it unlawful --
To utilize land use policies or actions that treat groups of persons with disabilities less favorably than groups of persons who are not disabled.
For example: A City creates an ordinance prohibiting housing for persons with disabilities or a specific type of disability, such as mental illness, 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 live or would live there.
For example: A local government entity denies a building permit for a home because it was intended to provide housing for persons with mental disabilities.
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.
DOJ's Case Summaries (www.justice.gov) page includes several cases filed against City and County governments due to discriminatory zoning policies (see for example U.S. v. City of New Berlin, U.S. v. City of Fairview Heights, U.S. v. City of Lake Station, and other relevant examples).
Best practices in land use and zoning regulations as provided in the State's Phase 2 Analysis of Impediments should include:
A definition of family that includes unrelated persons living together in residential settings
The inclusion of at least one zone district that allows for small lot single family dwellings
Reasonable lot width and size requirements of residential dwellings
The inclusion of zone districts or overlays that allow the construction of multifamily homes by right. Enough land should be included in such districts/overlays to allow diversity of housing stock through multifamily development
Allowance of manufactured homes meeting HUD safety standards in at least one residential district
Avoidance of minimum house or dwelling unit sizes
Clarification that group housing for protected classes is treated as residential uses and allowance of such homes in a broad range of zone districts
Avoidance of regulations that cast group homes as commercial use and/or require special permits or public disclosure that the homes will serve persons with disabilities
Incentives for diverse housing stock development such as density, reduced parking requirements, fee waivers or reductions, allowance for accessory dwelling units and public land donations or set asides for housing that accommodates low income and special needs populations
Local jurisdictions should review best practices for affirmatively furthering fair housing choice and consider their adoption. Jurisdictions receiving block grant funds directly should also examine the potential barriers caused by their land use laws and practices during the creation of their local AIs and as part of certifying to affirmatively further fair housing choice.
In some instances, zoning or land use practices may be facially neutral but have the effect of limiting the access of one or more protected classes to certain areas or neighborhoods. Land use practices should be reviewed with this in mind and exceptions or less restrictive practices that will assist in promoting diverse neighborhoods and communities should be considered.
HUD’s Affirmatively Furthering Fair Housing Rule
On August 17, 2015, the United States Department of Housing and Urban Development (“HUD”) adopted the Final Affirmatively Furthering Fair Housing Rule (“AFFH” or “the rule”) which governs what block grant recipients of HUD CPD (Office of Community Planning and Development, a division of HUD) funds and Public Housing Authorities funded under 42 U.S.C. §1437e must do to affirmatively further fair housing and the tool by which they can identify those steps. AFFH applies to all Government entities that receive certain types of HUD funds, which include public housing authorities (“PHAs”) and cities and counties receiving Community Development Block Grant Program, Emergency Solutions Grant, HOME Program, and Housing Opportunities for Persons with AIDS program funding. Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act”) requires HUD to administer its programs in a way that affirmatively furthers fair housing and equal opportunity.
The rule replaces the Analysis of Impediments (“AI”) to Fair Housing Choice with a new Assessment of Fair Housing (“AFH”) tool. The AFH Tool uses HUD-generated data, and a significant community participation process, to identify four main areas:
Racially and ethnically concentrated areas of poverty
Patterns of integration and segregation
Disparities in access to opportunity; and
Disproportionate housing needs
With the information generated through the AFH tool and AFFH, Government entities that receive these funds are responsible for:
Identifying fair housing issues and contributing factors
Assigning priorities to contributing factors
Setting goals for overcoming prioritized contributing factors
Maintaining records of progress in achieving goals
The new process directly links the AFH tool and its identified goals with the jurisdiction’s HUD-required program planning document (its Consolidated Plan or for a PHA, its 5-Year PHA Plan). Fair housing goals and priorities from the AFH are expected to be incorporated into the actual programming and proposed use of HUD funds. The AFH is first submitted to HUD for acceptance. Government entities must follow the current AI process until submitting an AFH. Consolidated Plans will not be approved and funds will not be issued without an accepted AFH. The AFH may be submitted by an individual Unit of Government, jointly with a PHA, or in collaboration in a regional area with more than one Unit of Government.