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HUD and DOJ Update Fair Housing Act Guidance about Land Use Laws

HUD and the U.S. Department of Justice (DOJ) released a Joint Statement updating guidance about how the federal Fair Housing Act applies to state and local land use and zoning laws. The guidance is designed to help state and local governments better understand how to comply with the Fair Housing Act, as well as to help the public understand their rights.

The Joint Statement updates and expands upon DOJ’s and HUD’s Joint Statement on Group Homes, Local Land Use, and the Fair Housing Act, issued on August 18, 1999. The Joint Statement is in the form of 27 questions with answers.

The Fair Housing Act prohibits a broad range of housing practices that discriminate against individuals on the basis of seven protected characteristics: race, color, national origin, sex, disability, family status (families with children), and religion. The Supremacy Clause of the U.S. Constitution gives federal laws, such as the Fair Housing Act, precedence over conflicting state and local laws. Consequently, the Fair Housing Act prohibits state and local land use and zoning laws, policies, and practices that discriminate based on a characteristic protected under the Fair Housing Act. As defined in the Fair Housing Act, prohibited practices include making unavailable or denying housing (including vacant land that may be developed into residences) because of a protected characteristic.

The Joint Statement provides examples of state and local land use and zoning laws or practices that may violate the Fair Act, such as:

  • Prohibiting or restricting the development of housing based on the belief that the residents have a particular protected characteristic, such as race, disability, or family status. An example of such a restriction is a moratorium on the development of multifamily housing because of concerns that residents will include those with a particular protected characteristic.
  • Imposing restrictions on housing because of alleged public safety concerns based on stereotypes about the residents or anticipated residents who have protected characteristics. An example is requiring a proposed development to provide additional security measures based on a belief that persons with particular protected characteristics are more likely to engage in criminal activity.
  • Refusing to provide reasonable accommodations to land use or zoning policies when such accommodations may be necessary to allow persons with disabilities to have an equal opportunity to use and enjoy the housing. An example is denying a request to modify a setback requirement so an accessible sidewalk or ramp can be provided for one or more persons with mobility disabilities.

A land use or zoning practice can result in an unjustified discriminatory effect if it caused or predictably will cause a disparate impact on a group of persons, or if it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic. Examples include minimum floor space or lot size requirements that do not have a legally sufficient justification and that increase the size and cost of housing, if such an increase has the effect of excluding persons from a locality or neighborhood because they have protected characteristics. Similarly, prohibiting low income or multifamily housing may have a discriminatory effect on persons because of their protected characteristics, and if so, would violate the Fair Housing Act, absent a legally sufficient justification.

When enacting or applying zoning or land use laws, state and local governments may not act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community members may have about current or prospective residents because of the residents’ protected characteristics. Doing so violates the Fair Housing Act even if the officials themselves do not personally share such biases. For example, a city may not deny zoning approval for a low income housing development because the development may house residents with a particular protected characteristic that the community fears will increase crime and lower property values. Similarly, a local government may not block a group home or deny a requested reasonable accommodation in response to neighbors’ stereotyping fears or prejudices about persons with disabilities or a particular type of disability.

The Fair Housing Act does not protect an individual whose tenancy would be a direct threat to the health or safety of other individuals, or who might cause substantial physical damage to others’ property, unless the threat or risk to property can be eliminated or significantly reduced by a reasonable accommodation. To determine whether someone poses a direct threat, there must be an individualized assessment based on reliable, objective evidence such as current conduct or a recent history of overt acts. The assessment must consider the nature, duration, and severity of the risk of injury; the probability that injury will actually occur; and whether there are any reasonable accommodations that will eliminate or significantly reduce the direct threat. A state or local government must take into account whether an individual has received intervening treatment or medication that has eliminated or significantly reduced the direct threat.

The Joint Statement is at: http://bit.ly/2emU4kE