FAIR HOUSING

1. FAIR HOUSING Protection against unlawful practices in the housing market The Federal Housing Administration

2. The Federal Fair Housing Act • Students should use my Planning Law Web Site for a complete overview of the FFHA. This presentation is a short synopsis of the material contained on the web site.

3. Overview • The FFHA is actually a series of amended acts that date back to the original Model Cities Act – 1966 and the Civil Rights Act of 1968 that sought to prevent racial discrimination in housing practices • The act is cited as 42 USC 5301 as amended

4. Amendments • Amendments to the FFHA broadened the sphere of regulation. Once the Act was limited to race, color, creed, and origin • The Act now includes protection for gender, children, elderly, and persons with disabilities

5. Targeted Practices • General Plan Practices – failure and/or conscious effort of the local community to provide an affordable mix of housing for its current or expanding population • Regulatory Practices – Often called a “Pattern and Practice Case” were there is a discernable pattern and practice of local government using its regulatory power to prevent, frustrate, or impede reasonably affordable housing

6. Targeted Practices • Private Practices – the use of private restrictions, practices, threats, harassment, and other means to bar the entry of persons into the housing market • Sales and Marketing Practices – The majority of persons in the U.S. purchase homes through brokers or real state agents. Unfair practices such as bait and switch, block busting, advertising, denying access to multiple listing, are favorite tools

7. History • The FFHA is the primary Federal Law addressing discrimination. Roots of the act date to the Model Cities Act of 1966 but the first act with “teeth” was the Title VIII of the Civil Rights Act of 1968

8. What Is Prohibited • Actions based on refusal to bar housing opportunities because of Race, Color, Creed, National Origin, Gender, Familiar States, Age, Disability • Collectively, these are know as the covered protections

9. What Is Covered • Refusal to rent or sell after a bona fide offer based on … • Discrimination in terms of conditions of sale or rental because of … • Make, print, publish, make statements or advertise any preference because of … • Represent to any person because of … that a covered dwelling unit is not available for sale or rent when it is actually available

10. Covered Terms • Engage in block busting or similar practices • Different provisions such as security deposits or down payments • Limiting the use of privileges or facilities • Engaging in sales because of favors of general/sexual harassment (The Packwood Amendment)

11. Steering • Discouraging … from inspecting, purchasing, renting because of the characteristics of the person or the neighborhood • Exaggerating drawbacks or not informing purchasers of the desirable features of the dwelling, neighborhood, or development • Communicating that …”you” would not be comfortable or compatible with existing residents

12. Practices • Discharging or taking adverse action against an employee for refusing to participate in a discriminatory practice • Refusing to provide municipal services or insurance, or loans (redlining) because of … • Employing city codes or regulating to segregate applicants or renters because of … • Providing inaccurate or untrue information

13. Disability • Provided in the 1988 amendments to the FFHA • Unlawful to discriminate because of a handicap • Handicap is a physical or mental impairment which substantially limits one or more of life's activities.

14. Ugly Is Not A Disability

15. Nor Is Being Stupid

16. Covered Requirements for Multi-Family after 1991 • At least one building entrance on a handicapped accessible route – ANSI 1.117 • A covered building contains four or more units • Disabled persons must be allowed to make reasonable modification to the rental unit at their own expense to gain full benefit of the unit. Renter must also restore at their own expense • Owners must provide handicapped routes, door openings, fixtures, hand rails in bathrooms

17. Some Exemptions to the FFHA • Housing intended to be occupied solely by elderly persons with certain conditions • Act does not apply to religious or certain non-profit organizations when they limit the sale or rental to persons of a particular faith or organization, provided that the limitation is not based on :::: • Does not apply to private sales when owner does not have an interest in more than three single family homes

18. The Bottom Line • All accessibility and modification issues based on a disability fall under the rule of reasonable accommodation

19. Accommodation – The Language • Section 3604(f)(1) of the FHA provides in relevant part that it is unlawful "to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . a person residing in or intending to reside in that dwelling after it is sold, rented, or made available.“ • Section 3604(f)(3)(B) states, "For purposes of this subsection, discrimination includes . . . a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling . . .

20. Enforcement • Courts, local housing offices, and Department of HUD • Complaints must be filed in one year • After filing a practice complaint HUD has 10 days to notify • Investigations must be completed within one year • HUD make use conciliation • Relief may be based on monetary damages, fines, attorney fees or orders to ban future practices

21. Penalties • Penalties can range from $10,000 to $50,000 depending on the number of offenses • Failure to comply can result in penalties up to $100,000

22. The Fair Housing Cases Parking for Disabled Persons Only

23. Ultimate Disability Parking Space

24. Gittelman v Woodhaven Condominiums 1997 • A condominium owner in Old Bridge N.J. requested exclusive use of a parking space to accommodate his disability • The condominium association refused to grant his request because doing so would diminish the other unit owner’s undivided interests in common areas, which was prohibited under state law • The Master Deed expressly provides that parking spaces in the Condominium are common elements for the non-exclusive use of the unit owners

25. Circuit Court of Appeals • The court held that the condominium association should have granted the accommodation even though the association members voted against it because the condominium association was the entity responsible for making sure that the condominium rules were enforced in accordance with the FHAA, and for taking whatever affirmative steps were necessary to ensure compliance with federal law. • The court issued a strongly worded opinion in which it refused to allow the condominium association to rely on the contradictory state law and the private agreement among condominium owners to excuse its refusal to make a reasonable accommodation.

26. Case Significance • This case presents a strong statement regarding the Fair Housing Act’s requirement that an individual’s right to be free from discrimination sometimes supersedes private property interests and state law.

27. Brandt v Chebanse • Mrs. Brandt is a residential developer • She builds a triplex and adapts one unit for her handicapped husband for which the Village granted her a variance since the land was zoned single family residential • She sought another variance for a four unit apartment at the same intersection and planned to equip the bottom units for handicapped rental

28. Mrs. Brandt

29. Basis • The Village offered her an alternative location for the 4 plex but Mrs. Brandt refused • She sues under Section 4, Title VIII of the Fair Housing Act. She says that the Village was bound to make reasonable accommodation for the disabled in its zoning laws and that they failed to do so • The trial court ruled in favor of the Village

30. The Appeals Court • What this case comes down to is: • A claim that the Fair Housing Act renders all single-family zoning unlawful whenever the developer is willing to make the units on the first floor accessible to persons in wheelchairs • Actually, the claim is even broader. Since March 1991 the Fair Housing Act has required developers to make the first floor units of all four-unit residential buildings handicapped-accessible.

31. The Bottom Line • What Mrs. Brandt is asking for is that the court invalidate single family zoning as a municipal tool • The Fair Housing Act does not require this. It only requires that IF the community allows a developer to build a four unit apartment, the first floor must be accessible

32. What Does This Case Say • It reminds us that there are in fact limits as to how far courts will allow groups to wrap themselves in the mantle of the Fair Housing Act in an attempt to avoid municipal zoning restrictions. Developers seeking to use the Act as a sword to cut through municipal restrictions in multiple family housing had better try a new approach. The court concluded: • Unless the Fair Housing Act has turned the entire United States into a multi-family dwelling zone, Brandt must lose. It doesn't, so she does."

33. Leaves Town and Moves to the Country

34. Oxford House Again • U.S. v Palantine, IL • Palatine permits group homes in its’ single family zoning district but restricts them to eight residents and two paid, professional staff in a facility certified by the State • Oxford House operates a facility in Palatine for recovering alcoholics but it contains 11 occupants and the staff are not certified.

35. Background • When Oxford house first leased the facility they were aware that they did not meet the city’s code for group homes • Later, the City amended its code to include a special use permit in single family districts for group homes of nine or more persons and for untrained staff • Oxford House was cited by the City for registration violations and for Life Safety Code violations

36. Current Action • Oxford House requests that the city give them a reasonable accommodation and waive all code enforcement. • Oxford House refuses to apply for a special use permit • The trial court issued an injunction against the City and prevented them from evicting its residents

37. Appeals Court Review • First, Oxford House’ allegation that the city did not grant them reasonable accommodation is not ripe because they never invoked the procedures that would have allowed the City a chance for review • However, like Cleburne, Oxford House claims that they were singled out to apply for a special use permit and that this was contrary to the provisions of the FFHA.

38. Oxford House’s Reply • Part of plaintiff's argument, however, is that requiring Oxford House-Mallard to utilize the procedures for obtaining a special use approval is itself a failure on the part of the Village to make a reasonable accommodation to the needs of the handicapped • This claim is currently ripe. Plaintiff argues that requiring the residents of Oxford House-Mallard to undergo a public hearing on their proposed special use would subject them to "a firestorm of vocal opposition within the neighborhood, that in turn would stigmatize the residents and increase the chances of a relapse.

39. Appeals Court Reply • Public input is an important aspect of municipal decision making; we cannot impose a blanket requirement that cities waive their public notice and hearing requirements in all cases involving the handicapped. • Even though Palatine's procedures do not themselves violate the FFHA, Oxford need not resort to them if it is manifestly futile. The Village has an outstanding record in responding to the needs of the handicapped, including individuals with substance-abuse problems. Indeed, the Village "has made numerous zoning changes in the face of community opposition" in order to accommodate the handicapped.

40. Conclusion • In a case such as this, where plaintiff's sole argument is that the Village failed to make a reasonable accommodation under the Act, the Village must be afforded an opportunity to make such an accommodation pursuant to its own lawful procedures--unless it is clear that the result of such procedures is foredoomed, which is not the case here--before plaintiff will have a ripe claim. The preliminary injunction is vacated and the case is remanded to the district court with instructions to dismiss it.

41. Krueger v Como • Violation of Section 3601 of Title 42 which includes sexual harassment • In law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable

42. Background • In 1992, Debbie Maze was living with her two children, ages four and three, in her sister's two-bedroom apartment, also home to the sister's boyfriend and four children. • So when she saw a "for rent“ sign on an apartment owned by Lyle Krueger, she inquired within and found Krueger, who gave her a rental application and suggested they meet the next morning for breakfast.

43. The Breakfast Meeting • At the breakfast meeting, it became apparent that Maze could not afford the three-bedroom, $547-a month apartment, for her housing voucher provided only $395 for a two-bedroom apartment, to which she was expected to add a personal contribution of $52 per month. • Krueger refuses to rent and the meeting is over. A few days later he traces Ms. Maze through her sister and proposes another breakfast meeting.

44. The Second Breakfast • Krueger told Maze that she could pay money on the side or "fool around or something" to make up the $100 shortfall. She declined this payment scheme, but Krueger nevertheless agreed to rent her the apartment. • Maze did not own a car, and Krueger gave her a ride home from their meeting. In his car, Krueger rubbed Maze's thigh and predicted, "we're going to be close." Maze asked Krueger not to touch her.

45. Home at Last? • Krueger and Maze went to the Kenosha Housing Authority to sign a rental agreement. • In the elevator on the way to the office, Krueger touched Maze, rubbed her, and tried to kiss her. She told him to stop, a request he greeted with laughter. • After the two had signed the lease, an undaunted Krueger once again prophesied that he and Maze "were going to be real close." Maze was so disturbed by Krueger's behavior that, later the same day, she returned alone to the Housing Authority.

46. Housing Authority – Section 8 • She reported Krueger's advances to a Housing Authority official, Paula Lattergrass, who urged her not to take the apartment. Maze felt that she had few alternatives other than to move into the apartment, but she did, at the suggestion of Lattergrass, file complaints against Krueger with the Urban League and HUD.

47. The Next Month • After Ms. Maze moves in Krueger continues to make advances, sometimes in front of her children • Krueger tells her that he is losing money on the apartment, but invites her out for drinks • Ms. Maze tell him that she “does not date white men.”

48. After the Fall Out • Krueger’s relationship deteriorates • Maze no longer makes contact with Krueger and sends the rent checks to the Housing Agency for forwarding • Maze files a series of sexual harassment reports to HUD • Krueger starts sending letters suggesting that Maze move

49. The Battle is Formed • Maze children were sick which proved to be lead poisoning – Krueger has painted over the old lead based paint • Maze moves out to her Mother’s home while the apartment is being repainted • Krueger now sends a letter to vacate because of unpaid rent (money deducted from her rent checks to repaint the apartment)

50. Maze Moves Out • Krueger continues to harass Maze • She moves out • The HUD administrative hearing is held one year later • The administrative hearing board finds Maze testimony credible and Krueger’s “inconsistent” and “untenable.”