Jointly responsible for enforcing the federal Fair Housing Act (“FHA”), the U.S. Departments of Justice and Housing and Urban Development (“the Departments”) have issued numerous guidance documents and policy statements to help the public and state and local governments fully understand the FHA.  In November 2016, the Departments issued a new guidance document (“guidance document”) addressing FHA compliance in connection with state and local land use laws and practices.  The FHA prohibits discrimination in housing on the basis of race, color, religion, sex disability, family status or national origin. 42 U.S.C. §§ 3601-19. The updated guidance document addresses the following issues, among others:

  • How the FHA applies to state and local land use and zoning;
  • When land use/zoning practices can constitute intentional discrimination;
  • How state and local land use laws can violate the FHA by unintentional discrimination;
  • How state and local governments that consider the fears or prejudices of community members when enacting their land use laws on housing can violate the FHA;
  • Who qualifies as a person with a disability under the FHA
  • What are group homes within the meaning of the FHA and the application of the FHA to group homes;
  • Reasonable accommodation under the FHA;
  • Whether a state and local government can impose health and safety regulations on group home operators;
  • Spacing requirements;
  • How a local government can violate the FHA by failing to grant a request for a reasonable accommodation;
  • How the Supreme Court Olmstead Ruling regarding the Americans with Disabilities Act is consistent with the FHA.  (Persons with disabilities have the option to live and receive services in the most integrated setting appropriate to their needs).

Long Island municipalities seeking to regulate multifamily or group housing through their zoning powers must carefully consider the FHA in both their enactment of local laws and treatment of such facilities. Not only does it violate the FHA to yield to community opposition based on fear of, or prejudice towards, such establishments, but governments must be ready to make “reasonable accommodations” to those with disabilities. The guidance document shows how local governments can violate the FHA when they refuse to “grant a reasonable accommodation to its zoning or land use ordinance when such accommodation may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.” (See guidance document, page 8).  Many municipalities limit the number of unrelated persons who can live together in residential zoning districts as part of their definition of a family. These laws are typically valid, provided they are reasonable and do not discriminate on the basis of disability or protected class. However, the guidance document states that such laws, if enacted for the purpose of limiting the number of persons with disabilities who may live in a group home, or exclude or limit group homes in certain zoning districts, can have an unjustified discriminatory effect and may violate the FHA. (See guidance document, page 11). Finally, the guidance document states “…a group home that provides housing for a number of persons with disabilities that exceeds the number allowed under the family definition has the right to seek an exception or waiver. If the criteria for a reasonable accommodation are met, the permit must be given in that instance, but the ordinance would not be invalid.” Id.

Understanding the nuances of the Fair Housing Act as it is applied to state and local land use laws is essential for municipalities enacting and enforcing such laws, a task made easier by the Departments’ comprehensive guidance on the matter.