On Thursday November 10, 2016, the Justice Department (DOJ) and the Department of Housing and Urban Development (HUD) released updated guidance that reasserts and clarifies that land use and zoning decisions can create barriers to equal housing opportunity and may be considered discrimination under the Fair Housing Laws.The FHA prohibits discrimination in housing based on disability, race, color, religion, national origin, sex and familial status (residing with children under 18). The statute bars state and local governments from enacting or enforcing land use and zoning laws, policies, practices and decisions that discriminate against persons because of a protected characteristic, such as race, national origin or disability.
The November 2016 guidance is critical for housing providers, developers, and local entities that are the primary drivers of zoning and land use decisions related to the building and location of certain types of housing, including group homes for residents with disabilities.
Several points in the guidance are particularly important:
- Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups of unrelated persons without disabilities are considered to violate the Fair Housing Act. For example, a city's zoning ordinance that defines a "family" to include up to six unrelated persons living together as a household unit, and gives such a group of unrelated persons the right to live in any zoning district without special permission., but that denies a group home for six or fewer people with disabilities in a certain district or requires this home to seek a use permit, may violate the Fair Housing Act.
- The FHA requires case by case exception and waivers analysis for group homes from otherwise valid land use restrictions based on properly made and supported requests for reasonable accommodation in rules and policies. In some cases, particularly involving group homes, the criteria for reasonable accommodation are met, the permit would have to be given in that instance, but the ordinance would not be invalid in all circumstances.
- Health and safety regulations must be analyzed under the FHA as applied to group homes for persons with disabilities.
- Spacing requirements may be subject to challenge as they relate to group homes for persons with disabilities.
Fennemore Craig’s Real Estate and Zoning groups have attorneys with specific expertise in the Fair Housing laws who can help builders, developers, non-profits, cities and other local entities navigate these difficult and nuanced issues. Our attorneys have decades of experience in working with HUD and the Department of Justice on Fair Housing compliance and defending clients in FHA investigations and litigation.