Fair Housing and Municipal Planning

In addition to protecting people from discrimination, fair-housing laws also prohibit the federal, state, and local governments from undertaking actions that intentionally or inadvertently limit housing opportunities in unfair ways. Municipal practices or policies that appear reasonable on the surface may result in a deeper level of harm. The Fair Housing Act prohibits practices that result in discrimination “regardless of whether there was an intent to discriminate.” The disparate impact rule provides legal recourse if a practice or policy is used without intentional discrimination, but has a disproportionate impact on people in a protected class. (See the list of federal and state protected classes).

Four categories of municipal actions related to housing most frequently trigger a municipality’s fair housing responsibilities:

1. Regulations – When a municipality enacts and administers regulations (e.g., zoning) that affect properties that have been, will be, or could be residential. 
2. Subsidies – When a municipality offers financial incentives (e.g., grants, loans, or loan guaranties) or special services (e.g., special infrastructure projects or housing rehabilitation services) to residential property owners or to residents. 
3. Proprietary Activities – When a municipality buys, sells, or uses real property, particularly if the property has been, will be, or could be residential. 
4. Municipal Services – When a municipality provides services in residential areas or to residents (e.g., infrastructure).

Because a discriminatory intent is not required for there to be a fair housing violation, a violation may result when municipal officials merely fail to recognize that they have special fair housing responsibilities and mistakenly undertake regular activities in routine ways. For example, a municipality may routinely (and mistakenly) deny a request to reduce a setback requirement to provide for a wheelchair ramp for a home because the municipality is unaware of its special obligation to make “reasonable accommodations” in such cases. A municipality must meet its fair housing responsibilities even when doing so adds to the cost and time of undertaking an action and even when an action is not supported by federal or State funds. 

Examples of Municipal Actions Found to be Fair Housing Law Violations 

• Excluding multifamily housing in residential zoning districts with mostly white residents while permitting multifamily housing only in residential zoning districts with mostly minority residents.
• Delays in issuing building permits for residences in a housing development that was generally known to have greater minority ownership than the community-at-large.
• Requiring the approval of neighboring property owners or residents as a condition for issuing a conditional use permit for a group home. 
• Enforcement of building code regulations disproportionately in developments with predominantly minority residents. 
• Failing to make "reasonable accommodations" for residences for people with disabilities (as required by the 1988 Amendments to the Fair Housing Act), as in the following examples: A city's refusal to allow zoning rear yard setback requirements to be met in the side yard of a residence proposed for mentally ill or recovering substance abusers;  Denial of a special use permit for the conversion of an office building to a residence for persons with AIDs. The city argued that this use most closely fit the zoning ordinance’s definition of a "hospice," not permitted in commercial zoning districts. ‘ Attempting to regulate a group home for HIV positive residents as a "chronic nursing home," not permitted in the residential zoning district where the group home was proposed. Examples of Subsidy Activities Found to be Violations
• “Steering" minority applicants for Section 8 housing vouchers to buildings with predominantly minority residents. 
• Using federal Community Development Block Grant funds for water and sewer projects only in areas with predominantly white residents, where areas with predominantly minority residents had a greater need for such projects.
• Providing misinformation and selectively disposing of applications for a residential rehabilitation and energy conservation program. 

Examples of Proprietary Activities Found to be Violations 

• Acquisition and demolition of the only housing occupied predominantly by minority residents as part of a downtown revitalization project where there was no provision of replacement housing. 
• Failure to comply with fair housing regulations in advertising and selling a residence to the highest bidder. 
• Systematic disinvestment in and non-maintenance of existing public housing. 
• Prohibition of "mentally infirm" residents, unwed mothers, and residents dependent on guide dogs from public housing. Examples of Service Activities Found to be Violations 
• Termination of police protection to minority residents following acts of racial violence.
• Selection of a school site near the center of an area with predominantly minority residents, instead of at the edge of such area which would promote integrated enrollment. 

Ways that municipalities can support Fair Housing Opportunities:

• Establish a policy in support of fair housing. The municipal plan should include a policy statement that supports equal housing opportunity as a fundamental principal guiding its land-use policies, for example, “All residents, regardless of race, color, religion, national origin, sex, disability, family status, age, marital status, sexual orientation, gender identity, receipt of public assistance, or being a victim of domestic violence, sexual assault, or stalking, may enjoy fair, equal and affordable access to housing opportunities.”
• Establish policies that support addressing specific local housing needs. The plan should include a policy statement that supports addressing each type of housing need defined by the community.
• Call for land-use bylaws to promote fair housing and affordable housing opportunities. Include language in the plan to institute periodic review of land-use bylaws, to consider all future proposed bylaw revisions for their impacts on housing opportunities, and to encourage that all future revisions with housing impacts should promote opportunities for more affordable housing and housing that meets the needs of diverse households.
• Consider the need to implement specific types of incentives for fair housing and affordable housing opportunities targeted to your community’s situation. The plan could identify the specific types of incentives that would be especially likely to promote the development of affordable housing units, based on the community’s own analysis of barriers (for examples, see the checklist for municipal regulations).
• Consider other municipal initiatives that will further fair housing and affordable housing opportunities. The plan can support other community initiatives, such the creation of a local housing commission, local fair housing enforcement standards, and/or the use of municipal funds and grant funds to subsidize the development of housing targeted to local needs (perhaps in partnership with public, private and nonprofit entities).

Adapted from “Fair Housing and Land Use Planning & Regulation in Chittenden County, Vermont” Developed for CVOEO Fair Housing Project with a grant from HUD Developed by: Chittenden County Regional Planning Commission (CCRPC) Staff (2008)

https://www.cvoeo.org/fileLibrary/file_13.pdf