In 1983, the New Jersey Supreme Court, in the landmark case, Burlington NAACP v. Mt. Laurel Township, limited the use of exclusionary zoning as a means of preventing the construction of affordable housing in wealthy communities. The Mt. Laurel case shaped zoning law across the country in the ensuing decades and the Mt. Laurel Doctrine is established precedent. Over the last 3 plus decades, we have seen the growth of low and moderate income housing in the suburbs, giving lower income families access to ownership of homes, in many cases for the first time. As such, these families have had access to crime free neighborhoods and better schools and to better long term success that come with these opportunities.

Mt. Laurel, in many respects, was the next logical step following the passage of the Fair Housing act in 1968 which outlawed racial discrimination in the sale and rental of housing. While that Act certainly helped many people of color move to more affluent suburban communities, it didn’t do enough for lower income families. It was, and is only a single law dealing with discrimination. Mt. Laurel exposed a problem. Local governments manipulated zoning laws to segregate communities by income and consequently, by race.

Despite the Mt. Laurel Doctrine, local governments have done nothing to encourage economic desegregation. Recognizing this problem, Senator Cory Booker (D-NJ) recently introduced the Housing, Opportunity, Mobility and Equity Act (HOME Act) (not yet assigned a bill number). The bill would close the loop on Mt. Laurel and take the Fair Housing Act to its natural next step. It would promote more inclusive zoning policies in order to economically and thus racially desegregate housing and make it more affordable.

The Act provides that states, cities and counties receiving funding under the Community Development Block Grant Program for infrastructure and housing would be required to develop new strategies to reduce barriers to housing development and creating the housing supply. Governments would be required to support new, inclusive zoning policies which create a “more affordable, elastic and diverse housing supply.” Best practices should include: authorizing higher density, eliminating off street parking requirements, establishing density bonuses, removing height limitations, prohibiting income discrimination, relaxing size restrictions and allowing accessory dwelling units. This list is not complete and are examples of things you don’t see in the suburbs and in planned communities.

The Act would also create a new refundable tax credit for renters who pay more than 30% of their income on rent and utilities.

The legislation would also provide local governments with incentives to allow “by right development” so that projects meeting zoning requirements could be administratively approved. If developers can save on the costs of lengthy hearings, the costs could be passed on to the end users, further reducing housing costs. Local elected officials (and staff, for that matter) are painfully blind to their role in the end cost of rents and sale price.

The topic of economic segregation in housing is not often talked about. The fact that it leads to racial segregation means that it should be discussed and addressed. That is not yet addressed by the Fair Housing Act makes it an important topic. President Obama sounded the warnings and Senator Booker’s proposed legislation goes a long way to addressing this important issue. However, ultimately, it will be up to the states to mandate that local governments eliminate economic segregation and take steps similar to Senator Booker’s proposals.

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        A Florida Condo Association is on the losing end of a disability discrimination case for the second time after HUD settled a case at the end of August. Del Vista Towers Condominium Association and its management company, AKAM On-Site, entered into a Conciliation Agreement with HUD on August 23, 2016, agreeing to compensate an aggrieved resident and to make a donation to a non-profit disability rights organization. In addition, the association and management company have agreed to develop a reasonable accommodation policy which must be approved by HUD.

             The complaint stems from an investigation launched by HUD in April of 2014 following HUD’s receipt of numerous reposts of rights violations from Del Vista Towers residents. One resident complained that she had requested that her disabled son be given accommodation for use of a service dog. She was denied accommodation because the association was defending several expensive lawsuits regarding service animals. Later, her lease was not renewed. The resident alleged retaliation. Other residents had similar complaints. Many reported that they feared requesting accommodation because of the history of retaliation by the association.

             This was not Del Vista Towers’ first loss in a disability discrimination case. In 2014, the Association was a defendant in a federal lawsuit. A resident, aware of the condo’s no-pet policy, sought accommodation for his pit bull as a service animal. The board denied the request on the basis that pit bulls are restricted breeds in Miami-Dade County. The resident brought suit in Federal Court in Miami. The court ruled in the resident’s favor. In denying the association’s motion for summary judgment, the court held that “emotional support animals need not be specifically trained, because the symptoms the animal ameliorates are mental and emotional rather than physical.” If the county ordinance were to be enforced, housing discrimination would exist in practice.

             Condo associations and landlords need to be aware of the Fair Housing Act in all respects and careful in its application as it pertains to disabilities and service animals. Courts and HUD will give deference to “reasonable accommodation” language in the statute and the burden is on the housing provider to show why accommodation would be “unreasonable”. Del Vista Towers has lost cases twice now, likely at a high cost to its residents.

MCA-picture-header_small-1024x351[1] (00157543)

The Religious Land Use and Institutional Persons Act of 2000 (42 U.S.C. Section 2000, et. seq.) (“RLUIPA”) protects individuals, houses of worship and other religious institutions from discrimination in zoning laws. The law prohibits zoning which burdens the religious exercise of churches and assemblies or institutions unless there is a compelling governmental state interest, but even then, the burden must be the least restrictive burden possible. The RLUIPA applies when the state or local government that imposes the burden 1) receives federal funding, 2) the burden or the removal of the burden would affect interstate commerce, or 3) the substantial burden originates from the government’s formal or informal procedures for making individualized assessments of a property’s uses.

Zoning under the Act is prohibited that 1) treats houses of worship and other institutions on less than equal terms with non-religious institutions, 2) discriminates against any assemblies or institutions on the basis of religion or religious denomination, 3) totally excludes religious assemblies from a jurisdiction, or 4) unreasonably limits religious assemblies, institutions or structures within a jurisdiction. An RLUPIA case can therefore have any one or more of 4 main components:

    • Equal terms,
    • Discrimination,
    • Exclusion, or
    • Unreasonable limitation.

 

A recent case in the Sixth Circuit involved Equal Terms and Discrimination. Though the Court, in Muslim Community Association of Ann Arbor & Vicinity, a/k/a MCA, d/b/a Michigan Islamic Academy, a/k/a MIA v. Pittsfield Charter Township, et.al, Case No. 12-1803 (E.D. Mich.), did not fully adjudicate the case and remanded on mostly procedural grounds, the Court, did make an interesting ruling as to the Plaintiff’s burden in pleading a case for Discrimination under the RLUIPA. In its Motion for Summary Judgment, the Township argued that the Plaintiff had not alleged any facts which asserted that the Township had acted in a discriminatory manner in denying the Plaintiff’s zoning application to construct a Muslim school. The Court cited only one case, Church of Scientology of Georgia v. City of Sandburg, Georgia, 843 F.Supp. 2d, 1328 (N.D. Ga. 2012) in which the Court the court indicated that a plaintiff need only show that a violation of the non-discrimination through indirect evidence or through the establishment of an inference of discrimination. More importantly, the Muslim Community Court drew an analogy to employment discrimination cases where the law is settled that establishing discrimination is an evidentiary standard, not a pleading requirement. The plaintiff has the right to use discovery to establish the existence of the discriminatory conduct. Therefore, the Court denied the Defendant’s Motion for Summary Judgment.

Going forward, Plaintiffs will have an easier time getting over the initial threshold in establishing a case for discrimination in RLUPIA cases. As many local governments do not like to litigate these cases, this may further encourage early settlement.

 

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