12/2/2016 Background Bases for AFFH includes: Title 8 of the - - PDF document

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The E volution in Case Law and Policy under the Fair Housing Act’s Duty to Affirmatively Further Fair Housing in Oregon and Beyond

Oregon Chapter of the American Planning Association Legal Issues Workshop December 2, 2016

Speaker: Jennifer Bragar

jbragar@tomasilegal.com 503‐894‐9970

Background

• Bases for AFFH includes:

– Title 8 of the 1968 Civil Rights Act as amended in 1988 – 42 U.S.C. 3601 et. seq. (Fair Housing Act) – Executive Order 12892

• 42 USC 3608(e) sets forth the duties of HUD’s Secretary who shall:

– make studies with respect to the nature and extent of discriminatory housing practices in representative communities throughout the United States; – publish and disseminate reports, recommendations, and information derived from such studies that: – specify the nature and extent of progress made nationally in eliminating discriminatory housing practices and furthering the purposes of this subchapter, obstacles remaining to achieving equal housing opportunity, and recommendations for further legislative or executive action; and – annually report to Congress, and make available to the public, data on the race, color, religion, sex, national origin, age, handicap, and family characteristics of persons and households who are applicants for, participants in, or beneficiaries or potential beneficiaries of, programs administered by the Department to the extent such characteristics are within the coverage of the provisions of law and Executive orders referred to in subsection (f) of this section which apply to such programs (and in order to develop the data to be included and made available to the public under this subsection, the Secretary shall, without regard to any other provision of law, collect such information relating to those characteristics as the Secretary determines to be necessary or appropriate).

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Arlington Heights

• Metropolitan Housing Development Corporation v.

Arlington Heights (“Arlington Heights”) 429 U.S. 252 (1977)

• The U.S. Supreme Court requires intent to make

constitutional claims of housing discrimination.

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Arlington Heights Factors

On remand the 7th Circuit set forth 4 factors to consider whether conduct that produces a discriminatory impact but was taken without a showing of discriminatory intent violates the FHA: 1. How strong is the plaintiff's showing of discriminatory effect; 2. Is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; 3. What is the defendant's interest in taking the action complained of; and 4. Does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977). The case settled, therefore, the U.S. Supreme court did not get to review analysis of the factors. Thus, it is unclear whether disparate impact exists under the FHA as a method of proving a violation.

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Circuit Split About Whether FHA Requires Intent

• r Whether Disparate Impact Is Sufficient

Some cases to consider: Kennedy‐Park Homes Assoc. v. Lackawanna, 436 F2d 108 (2nd

• Cir. 1970), cert. den. (1971).

Decision: Evidence of discriminatory intent in the Town’s actions to block a development marketed to people of color. Griggs v. Duke Power, 401 US 424 (1971). Decision: Disparate impact is sufficient to prove violation of the Civil Rights Act in hiring decisions. Arlington Heights v. MHDC, 429 U.S. 252 (1977). Decision: No evidence of discriminatory intent; disparate impact not sufficient to demonstrate FHA violation.

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USSC Granted Certiorari Twice

• Magner v. Gallagher (St. Paul) and Mt. Holly v. Mt.

Holly Gardens are two recent examples of cases that were going to push the question of disparate impact as a way of proving intent to discriminate. But in the Magner case, the courts dismissed because the case settled, and in Mt. Holly the parties also settled.

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E xecutive Order 12892 on Fair Housing

– The Executive Order gives broad reach to the federalization of many local and state government acts and thereby the duty to affirmatively further fair housing. – HUD adopted rules to implement the requirements of the Executive Order ‐ Department of Housing and Urban Development Implementation

• f the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg.

11460 (Feb. 15, 2013) (to be codified at 24 C.F.R. pt. 100). – The Order and rules require:

• Uniform data systems
• Cover all recipients of federal funds related to housing or urban

development

• Requires AFFIRMATIVELY furthering fair housing, not just non‐

discrimination

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Stated Goals of New Policy

• Improve integrated living patterns and overcoming

historic segregation;

• Reduce racial and ethnic concentrations of poverty;
• Reduce disparities by race, color, religion, sex,

familial status, national origin or disability in access to education, transit and employment and reducing health hazards; and

• Respond to disproportionate housing needs by

protected class.

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Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project

• The Court built on its employment discrimination cases ‐ Griggs v. Duke

Power Co., 401 U.S. 424 (1971) and Smith v. City of Jackson, 544 U.S. 228 (2005) – the focus is on the effect of the action on the employee not the motivation of the employer.

• The tie between, the Title VII of the Civil Rights Act, employment

discrimination (ADEA) “otherwise adversely affect” and the Fair Housing Act is the phrase “otherwise make unavailable” which refers to the consequences of an action rather than the actor’s intent.

• After exploring the 1988 amendments to the FHA, the Court concluded

that Congress presupposed disparate impact under the FHA as it had been enacted in 1968.

• Before rejecting a public interest, a court must determine that a plaintiff

has shown that there is an “available alternative practice that has less disparate impact and serves the entities legitimate interest.

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Proving the Case – the Number Game

• First you show that the local government’s numbers

are off – this could take years to build a record.

• Then the local government tells you what the reason

is for why the numbers are off.

• You then have an opportunity or obligation to

suggest alternative methods for taking care of the legitimate business needs.

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“Consolidated Plan” under 24 C.F .R. Part 91, Subpart C.

• Only recipients of federal housing dollars are required to conduct a

“Consolidated Plan”

• The Consolidated Plan must take into consideration the impediments to fair

housing identified in the Analysis of Impediments‐‐the Fair Housing Plan. The Fair Housing Plan must identify steps the jurisdiction will take to address these barriers. Failure to do either will result in an administrative or civil challenge to the jurisdictions ability to receive federal funds.

• Set Annual Objectives

– Activities to be Undertaken – Outcome Objectives – Geographic Distribution of Housing Assistance – Annual Goals for Affordable Housing, Public Housing, Homelessness – Response to Barriers to Affordable Housing

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Local Comprehensive Plan

• Local comprehensive plans must be consistent with the Consolidated Plan

if federal funds are sought or used by local governments.

• A grantee is required to submit a certification that it will affirmatively

further fair housing, which means that it will: – conduct an analysis to identify impediments to fair housing choice within the jurisdiction; – take appropriate actions to overcome the effects of any impediments identified through that analysis; and – maintain records reflecting the analysis and actions in this regard.

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E xample of Barrier to Affordable Housing

• Inclusionary zoning – new housing developments must offer a portion of

the new units at affordable levels for purchase or rent

• California Building Association v. City of San Jose, S212072 (Cal. Sup. Ct.,

June 15, 2015) – inclusionary zoning is not an exaction – “there can be no valid unconstitutional‐conditions takings claim without a government exaction of property, and the ordinance in the present case does not effect an exaction. Rather, the ordinance is an example of a municipality’s permissible regulation of land under its broad police power.” Id. at 25. Inclusionary zoning is not an example of “coercion” through conditions imposed upon grant of a permit.

• The U.S. Supreme Court did not grant cert.

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Compare to Takings Analysis

Compare to Nollan and Dolan which required a property owner, as a condition of obtaining a sought after permit, to dedicate a portion of the private property to public use: Nollan – public access easement to the beach in exchange for a permit to construct a residence Dolan – bike path in exchange for permit to substantially increase the size of existing retail business Outcome of cases – essential nexus and rough proportionality.

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How Does Koontz fit in?

• The California Supreme Court read Koontz v. St. Johns

River Water Management District, 570 U.S. __ (2013) to limit unconstitutional conditions analysis:

“Nothing in Koontz suggests that the unconstitutional conditions doctrine under Nollan and Dolan would apply where the government simply restricts the use of property without demanding the conveyance of some identifiable protected property interest (a dedication of property or the payment of money) as a condition of approval. It is the governmental requirement that the property owner convey some identifiable property interest that constitutes a so‐called ‘exaction’ under the takings clause and that brings the unconstitutional conditions doctrine into play.”

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Land Use Regulations Affect Property Values

• A municipality could impose a variety of conditions
• n new residential development to increase

affordable housing stock:

– Specify the number of particular unit types – Limitations on density – Limitations on number of bedrooms – Required setbacks – Building height

• Inclusionary zoning requirements are only one

example of regulations to reach housing goals.

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Mhany Mgmt., Inc. v. County of Nassau, (2nd Cir., March 23, 2016)

• Confirmed the Village of Garden City in Long Island intentionally

discriminated under the Fair Housing Act, the United States Constitution, and other civil rights statutes when it enacted an exclusionary zoning

• rdinance in 2004 in the face of race‐based opposition to the prospect of

affordable housing.

• “[t]he tenor of the discussion” at the Village’s public hearings and in the

community showed that Village residents’ opposition to fair housing, “though not overtly race‐based, was directed at a potential influx of poor, minority residents.”

• Reversed the district court’s dismissal of Nassau County, Long Island from

the case, in 2012, before Garden City stood trial. The district court failed to consider the plaintiffs’ claim that the County was deliberately “steering” affordable housing to low‐income, majority‐minority communities, in violation of Section 804(a) of the Fair Housing Act, the Second Circuit held.

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Avenue 6E Investments, LLC v. City of Yuma, 818 F .3d 493 (9th Cir., 2016)

• 9th Circuit held there was sufficient evidence to present to a jury that the

City had rejected the developer's application for an increase in zoning density for reasons of barely disguised animus toward the expected residents of the new development.

• Held that issues of disparate treatment and disparate impact under both

the 14th Amendment's Equal Protection Clause and the federal Fair Housing Act needed to be tried.

• There appeared to be no principled opposition to the requested zone

change.

• As the Court of Appeals put it, the record was replete with "code words"

and "veiled references" for the Hispanic influx that the neighbors anticipated, turning the development into a "low‐cost, high‐crime neighborhood."

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E nforcement

• Enforcement may be undertaken administratively or in State or Federal

Court.

• No individual or entity may file a civil rights complaint based upon a

violation of the obligation to AFFH. However, where such a claim is the basis for another claim, for example, a False Claims Act claim (Westchester), a successful plaintiff would ordinarily have to establish a violation of the obligation to AFFH. In addition, there is the prospect of HUD joining a successful plaintiff in the prosecution or settlement of the case.

• Penalties may include loss of federal housing funds or of support of private

loans or tax credits.

• ALL federal funds require a grantee to promise to abide by ALL civil rights
• laws. A violation of the FHA‐‐and the obligation to AFFH,‐‐may result in the

loss of ANY federal money.

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Westchester Litigation

• County received $52 million+ in CDBG, HOME, ESG

funds from 2000‐2006.

• Receipt of funds required repeated AFFH

Certifications.

• Litigation brought under the False Claims Act:

– AFFH certifications were false because County did not consider race‐ based impediments to fair housing choice – Treble Damages – Share available to “realtor”

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New Federal AFFH Regulations Require:

• Regional data on numbers and concentrations of

economic and social minorities;

• Review of affordable housing impediments, including

barriers to multifamily and increased housing densities;

• Provisions to maintain existing housing;
• Review of policies on improvements; and
• Reasonable accommodations.

Look for a Template from HUD to be released in the next few months.

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In the Words of Former Vice President Walter Mondale

“When high‐income black families cannot qualify for a prime loan and are steered away from white suburbs, the goals of the Fair Housing Act are not fulfilled,” he said. “When the federal and state governments will pay to build new suburban highways, streets, sewers, schools and parks, but then allow these communities to exclude affordable housing and nonwhite citizens, the goals of the Fair Housing Act are not fulfilled. When we build most new subsidized housing in poor black or Latino neighborhoods, the goals of the Fair Housing Act are not fulfilled.” http://www.nytimes.com/2015/09/06/opinion/sunday/the‐ architecture‐of‐segregation.html?_r=0

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Possible Issues

• Homeless Programs
• Transportation Planning
• Allowing Patterns of Intolerance
• Redevelopment
• Economic Development
• Disaster Response
• Public Services and Facilities

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Conclusions

• Additional demands on local governments to go beyond non‐

discrimination.

• New Assessment of Fair Housing focuses on regional assessment of

housing needs by protected class status and income and the role of the local jurisdiction in addressing the determinants of fair housing, identify and address historical patterns of segregation and to promote integration.

• More data on community composition.
• More commitment to plan for affordable housing and turn those plans

into actions.

• Plan for the equitable distribution of affordable housing across a

jurisdiction’s geography, not just a focus on numbers.

• Public and private enforcement, perhaps coupled with civil rights act

claims and attorney fee requests.

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Resources

Federal Statutes

Title 8 of the 1964 Civil Rights Act as amended in 1988 42 U.S.C. 3601 et. seq. (Fair Housing Act)

Executive Order 12892 Federal Regulations:

24 C.F.R. § 570.601(a)(2) 24 C.F.R. § 91.225(a). 24 C.F.R. Part 91, Subpart C. Department of Housing and Urban Development Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (Feb. 15, 2013) (to be codified at 24 C.F.R. pt. 100).

Cases

Arlington Heights v. MHDC, 429 U.S. 252 (1977). Avenue 6E Investments, LLC v. City of Yuma, 818 F.3d 493 (9th Cir., 2016) California Building Association v. City of San Jose, S212072 (Cal. Sup. Ct., June 15, 2015). Griggs v. Duke Power, 401 US 424 (1971).

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Resources (Continued)

Cases (Continued)

Metropolitan Housing Development Corporation v. Arlington Heights (“Arlington Heights”) 429 U.S. 252 (1977). Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977). Kennedy‐Park Homes Assoc. v. Lackawanna, 436 F2d 108 (2nd Cir.,1970), cert. den. (1971). Koontz v. St. Johns River Water Management District, 570 U.S. __ (2013).

• Mt. Holly Gardens Citizens in Action v. Township of Mount Holly, 658 F3d 375 (3rd Cir.

2010). Magner v. Gallagher, 619 F3d 823 (8th Cir. , 2010). Mhany Mgmt., Inc. v. County of Nassau, (2nd Cir., March 23, 2016) Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, __ US __ (2015). United States Anti‐Discrimination Center of Metro New York v. Westchester County, Slip Copy, 2009 WL 970866 (S.D.N.Y.)

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Additional Resources

Websites

HUD’s Affirmatively Further Fair Housing Rule ‐ http://www.huduser.gov/portal/affht_pt.html#final‐rule HUD’s Settlement Agreement with Westchester County ‐

http://www.hud.gov/content/releases/settlement‐westchester.pdf www.housinglandadvocates.org

Letters Among Federal Agencies

Joint Statement of the Department of Housing and Urban Development and the U.S. Department

• f Justice:

https://www.justice.gov/crt/page/file/909956/download

Joint Letter of the U.S. Department of Housing and Urban Development, the U.S. Department of Education and the U.S. Department of Transportation:

https://www2.ed.gov/documents/press‐releases/06032016‐dear‐colleagues‐letter.pdf

HUD_DOT_EPA Partnership for Sustainable Communities:

https://www.epa.gov/smartgrowth/hud‐dot‐epa‐partnership‐sustainable‐communities

HUD‐U.S. Department of Agriculture MOU:

https://www.justice.gov/sites/default/files/crt/legacy/2013/04/23/USDA_HUD_MOU.pdf

Environmental Justice Program/Proposal Links

Draft EJ 2020 Action Agenda (US EPA) ‐ http://www.epa.gov/environmentaljustice/ej2020/ Federal Highway Administration Environmental Justice Reference Guide ‐

http://www.fhwa.dot.gov/environment/environmental_justice/

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Questions?

Jennifer Bragar jbragar@tomasilegal.com 503-894-9970

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