Departments of Justice and Housing and Urban Development Release Updated Fair Housing Act Guidance on State and Local Land Use Laws

Mary Kyle McCurdy
Tue, 11/29/2016 - 12:12pm

The US Justice Department and the Department of Housing and Urban Development (HUD) recently released updated guidance on how to apply the federal Fair Housing Act (FHA) to state and local land use and zoning laws.  The FHA prohibits discrimination in housing based on disability, race, color, religion, national origin, sex and familial status (residing with children under 18).  It 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.

Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, explained: “The Fair Housing Act helps protect open, free and integrated communities,” … “Government officials, housing providers and the public need to understand how land use and zoning decisions can create barriers to equal housing opportunity.  We hope this guidance will help communities make these decisions free from discrimination.”

What does this mean for Oregon’s communities as they enact or revise land use plans and zoning codes that impact housing?  A land use law or zoning practice can be discriminatory on its face, but even a law that appears neutral could violate the FHA if enacted with discriminatory intent. And, “even absent a discriminatory intent, state or local governments may be liable under the Act for any land use or zoning law or practice that has an unjustified discriminatory effect because of a protected characteristic.”

Oregon Land Use Goal 10, which requires every city to provide residential land zoned “commensurate with the financial capabilities of Oregon households and allow[ing] for flexibility of housing location, type and density,” shares goals with the FHA.  However, Goal 10 has been weakly enforced by the Land Conservation & Development Commission in recent years. The FHA reinforces the legal imperative for LCDC to ensure more robust implementation of Goal 10.

Following are some examples provided by the Department of Justice and HUD of state and local land use and zoning laws or practices that could violate the Act:

  • Prohibiting or restricting a housing development based on the belief that the residents will be members of a protected class, such as race, disability, or familial status, by, for example, placing a moratorium on the development of multifamily housing because of concerns that the residents will include members of a protected class.
  • A land use or zoning practice that causes or predictably will cause a disparate impact on a group of persons or if it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic.
  • Land use practices that include minimum floor space or lot size requirements that increase the size and cost of housing if the increase has the effect of excluding persons from a locality or neighborhood because of their membership in a protected class, without a legally sufficient justification.
  • City denial of a low-income housing development that meets all zoning and land use requirements because the development may house residents of a protected class or classes whose presence, the community fears, will increase crime and lower property values in the surrounding neighborhood.

Image Credit: David Holt, Creative Commons