Avenue 6E Investments, LLC v. City of Yuma, 2016 WL 1169080 (9th Cir.), involved the denial of a rezoning, notwithstanding the recommendation of approval by both the professional planning staff and the City’s Planning and Zoning Commission. Plaintiff developers brought these proceedings under both the Equal Protection Clause and the federal Fair Housing Act (FHA), alleging the denial was both intentional and also disproportionally deprived Hispanic residents of housing opportunities and perpetuated segregation. The subject denial was the first in three years and 76 rezoning applications.
The City of Bend is in dire need of more housing at all income levels, particularly affordable housing. In a November 2015 presentation to the Housing Land Advocates, Jim Long, the City’s Affordable Housing Manager, reported that the housing market is so tight in Bend that he receives calls from hospitals looking for homes for new doctors, in addition to the low income population his office is meant to serve. Despite the demand for affordable housing, the case of Kine v. City of Bend (LUBA No. 2015-068, December 24, 2015) represents how difficult it is to increase the supply within city limits.
Over the last two years, I have been speaking locally and around the country about affordable housing. My focus has been on the exploration of affirmatively furthering fair housing and disparate impact, through analysis of case law development. One of the themes that has become clear is the need to look at housing as part of our infrastructure. The way to plan for equitable neighborhoods is to plan for affordable housing in neighborhoods with access to good schools, grocery stores with fresh fruits and vegetables, quality public transit, and job opportunities.
On April 14, the Oregon House voted to approve House Bill 2564, which would remove the preemption on local government adoption of inclusionary zoning as a tool to advance affordable housing. Oregon and Texas are the only states that currently maintain such a prohibition and most other states allow this issue to be resolved at the local level. If the ban were lifted, local governments could require that some percentage of units in a development be sold as affordable units to low income buyers as part of any new housing development. No more than 30 percent of the housing units created by a new project could be offered at below-market rates, and local government must provide builders with one or more additional incentives such as additional density, waiver of permit fees or expedited permit review to do so.
There are some who argue that repealing of the ban on inclusionary zoning is somehow incompatible with our State planning system. Nothing could be further from the truth. Goal 10 (Housing) requires that:
Buildable lands for residential use shall be inventoried and plans shall encourage the availability of adequate numbers of needed housing units at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households and allow for flexibility of housing location, type and density.
To assure that this objective is realized, the legislature has imposed an obligation on most local governments to plan and provide for “needed housing,” namely housing types:
* * * determined to meet the need shown for housing within an urban growth boundary at particular price ranges and rent levels…
Needed housing includes attached and detached single-family housing and multiple family housing for both owner and renter occupancy; government assisted housing; mobile home or manufactured dwelling parks; manufactured homes on individual lots planned and zoned for single-family residential use that are in addition to lots within designated manufactured dwelling subdivisions; and housing for farmworkers.
In a case with the unlikely title of In re Adoption of N. J. A. C. 5:96 & 5:97 by N. J. Council on Affordable Housing, the New Jersey Supreme Court put an end to forty years of litigation over the responsibilities of New Jersey local governments to provide for their fair share of affordable housing. As a result of two cases decided in 1975 and 1983 both named Southern Burlington County NAACP v. Township of Mt. Laurel, that Court established a state constitutional right to require local governments exercising land use regulatory powers to “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course, including those of low and moderate income.” In doing so, the Court granted broad relief that included a “builder’s remedy” - allowing an applicant who prevails before a trial court on a constitutional claim of this nature to ask the same court to approve its application.
As President of Housing Land Advocates (HLA), I am pleased to announce that HLA and the American Planning Association have filed a joint amicus brief in the latest case to challenge the Fair Housing Act’s (FHA) disparate impact standard. The Texas Dept. of Housing and Community Affairs case questions whether state administrators of federal low income housing tax credits (LIHTC) programs must consider the location of the housing and whether the location has a disparate impact on protected classes. Ed Sullivan, HLA Board Member and APA Amicus Committee member submitted the brief on behalf of the amici.
Here is an excerpt of the summary of the argument:
From the perspective of professional planners engaged in development efforts across the United States, the benefits of continued recognition of a disparate impact-standard under the FHA substantially outweigh the minimal costs that the standard imposes. Decades of operation under a legal framework that has uniformly recognized disparate-impact claims has taught the institutions and professionals engaged in development to work within the standard’s requirements. Those requirements have proven to be fully consistent with efficient project planning and execution efforts. Reversing course at this point would be disruptive to established practices and, ultimately, would thwart just and effective planning efforts.
The benefits that flow from compliance with the FHA’s disparate-impact standard have been substantial. The legitimacy of public institutions depends, in significant part, on transparent decision making. In the context of urban and rural development efforts, it is inevitable that certain projects will affect some groups of persons more than others. Responsible planners consider the unintended consequences of development projects, explain to the public why a project is necessary and beneficial notwithstanding its disadvantages, and engage in dialogue with affected community members to minimize a project’s drawbacks. Institutions that properly explain the reasoning behind their decisions enjoy greater public support for and participation in their long-term objectives.
The FHA’s disparate-impact framework furthers transparency and legitimacy by committing planning professionals and public institutions to a dialogue with those affected by their actions. Under the most pervasive articulation of the standard, housing plans must serve legitimate, nondiscriminatory interests through the least discriminatory means available. This includes development efforts that are part of the federal low income housing tax credit (LIHTC) program. Over the course of decades, that norm has become an accepted component of the planning process. Today, responsible developers share their objectives with potentially disadvantaged persons and groups and together develop plans to minimize projects’ adverse effects. This kind of transparency makes affected groups more apt to lend their support to projects, view such projects as fair, and regard planners and public institutions as legitimate actors in the public space.
The costs, meanwhile, of the disparate-impact framework have proven to be minimal. Over the course of four decades, complying with the existing legal regime has not thwarted economically beneficial development efforts, including those made as part of the LIHTC program. That is because, properly understood, the possibility of a disparate impact does not make a development project unlawful—it simply requires that institutions provide and articulate nondiscriminatory justifications for projects that adversely affect protected groups.
In sum, the FHA’s disparate-impact standard has promoted just and efficient planning and development efforts for decades. Overturning that standard now would decrease the legitimacy of public institutions and the planning profession, disrupt practices that have advanced under the standard, and ultimately disadvantage the public interests that development projects are designed to serve.
You can read the entirety of the brief here.
Garvey Schubert Barer is pleased to sponsor Housing Land Advocates’ Conference - Equity in Form and Function: Recent Trends in Housing Policy on November 7, 2014. Ed Sullivan and Jennifer Bragar will be featured speakers, and will be joined by other experts from across the nation. Join us for a 10th Anniversary Celebration of Housing Land Advocates’ work!
November 7, 2014, Ed Sullivan and Jennifer Bragar, will present during the Housing Land Advocates Conference on at David Evans and Associates, 2100 Southwest River Parkway, Portland, OR 97201.
See below for more details and links to conference registration, or learn more at www.housinglandadvocates.org.
Equity in Form and Function: Recent Trends in Housing Policy
Cosponsored by: Housing Land Advocates, Garvey Schubert Barer, and David Evans and Associates
Housing features prominently in the public discourse of 2014. The tiny house movement is gaining popularity with DIY builders, private developers are racing to complete micro-apartments, and democratically run self-help homeless communities are are seeking recognition along the West Coast. This year's Housing Land Advocates (HLA) conference continues these conversations but with a focus on the geography of equity. It asks how emerging housing forms can be used to further affordable and fair housing. It emphasizes the function of housing as a means of accessing opportunity. To this end, the conference offers an analysis of the U.S. Department of Housing and Urban Development's new regulations around affirmatively furthering fair housing and updates participants on the legal landscape of inclusionary zoning that is being tested by California Building Industry Association v. City of San Jose. HLA is bringing together national, regional and local experts to explore these concepts and issues and to consider ways to support a community vision that does not leave anyone behind.
Keynote Speaker: Marc Brenman
Teacher, author and policy expert on issues of diversity, equal opportunity employment and social justice, Mr. Brenman previously worked as the Executive Director of the Washington State Human Rights Commission, Senior Policy Advisor at the U.S. Department of Transportation, and Division Director for the Office of Civil Rights at the U.S. Department of Education.
9:00am Welcome from HLA President Jennifer Bragar
9:15am Affirmatively Furthering Fair Housing: Proposed Regulations and Actions to Consider
9:45am Inclusionary Zoning: Legal Developments
10:30am Morning Panel - Housing Affordability & Neighborhood Change
12:00pm Lunch and Keynote Speaker: Marc Brenman - Title VI Transportation Planning and Fair Housing
1:00pm Organized Networking Opportunities
1:30pm Gentrification: A Talk about N/NE Portland
2:00pm Afternoon Panel - There Goes the Neighborhood: Emerging Housing Alternatives
3:30pm Afternoon Panel - Inclusionary Zoning: Threats and Opportunities
AICP and Oregon State Bar CLE credit pending
David Evans and Associates
2100 Southwest River Parkway, Portland, Oregon 97201
Who We Are:
Housing Land Advocates was formed in 2004. We are a 501(c)(3) charitable corporation, and pursue our work as an entirely volunteer-run and -operated organization. We advocate for land use policies and practices that ensure an adequate and appropriate supply of affordable housing for all Oregonians.
Visit the website: http://housinglandadvocates.org/ for updates on conference speakers and registration information. Contact HLA at firstname.lastname@example.org for conference sponsorship opportunities.
In Parkview Terrace Development LLC v. City of Grants Pass, LUBA No. 2014-024 (July 23, 2014), LUBA considered the appeal of a City Council decision that denied the Petitioner site plan approval and a variance from street and block length standards to permit construction of 50 units of federally assisted housing for low-income individuals.
The subject property is zoned High Density Residential (R-3) and includes approximately 3.02 acres. The site is neighbored by residential townhouses, a warehouse, a mini-storage facility and a City park. In 2006, the City approved a planned unit development (PUD) for 88-units, but only 28 townhouses were constructed before the project was shelved during the recession. The Petitioner, a successor-in-interest to the original developer, wanted to build a 50-unit multi-family housing project in place of the second and third phases of the PUD. In contrast to the for sale townhouses, the new units would be rental units. Although the project was supported by staff and the Planning Commission, the City Council denied the application.
The applicant appealed because the City Council applied standards that were not “clear and objective” under the needed housing statute, ORS 197.307(4), and because the City Council erred in its findings related to variance criteria. LUBA agreed and reversed the decision. The following standards were not considered clear and objective:
• A standard that the proposal comply “with applicable elements of the Comprehensive Plan, including: Traffic Plan, Water Plan, Sewer Plan, Storm Drainage Plan, Bicycle Plan, and Park Plan,” where the City Council’s decision focused on the Traffic Plan which is an eight chapter long Master Transportation Plan. Many of the goals and objectives in the Traffic Plan are not clear and objective.
• A standard that requires “potential land use conflicts have been mitigated through specific conditions of development,” where the City Council concluded without explanation that the criterion was not satisfied. LUBA found that mitigation of “potential land use conflicts” is not clear and objective.
• A standard requiring that “adequate basic urban services are available, or can be made available by the applicant as part of a proposed development or are scheduled by the City Capital Improvement Plan.” The terms “adequate,” “basic urban services” and “available” are not explained in the Code, and without some explanation those terms are not clear and objective.
• A standard that the “provision of public facilities and services to the site will not cause service delivery shortages to existing development” was not clear and objective because the Code did not provide guidance regarding the scope of “public facilities and services” or how to go to determine if the proposal will cause service delivery shortages to existing development or what qualifies as a shortage.
• A standard regarding mitigation for special design consideration related to existing adjacent development was not clear and objective because the requirement to “mitigate” and the methods of suggested mitigation (e.g., landscaping, additional setbacks, and screening) were not clear and objective.
• A standard requiring that “traffic conflicts and hazards are minimized on-site and off-site” as provided in an Article of the Code was not clear and objective because the Council’s conclusion that the criterion was not satisfied did not explain minimization to on-site and off-site conflicts and hazards, and the Codes reference to a 32-page Article of the Code was too vague.
• A standard that requires “there are adequate provisions for maintenance of open space and other common areas” was not clear and objective, where the City engaged in a subjective analysis of whether the open space and common areas were “adequate.”
In addition to the failure of the City’s standards to meet the clear and objective requirement, the Council’s denial of a variance application was either similarly tainted, or impacts of a grant of the variance could have been mitigated through conditions.
Not only did LUBA reverse the City’s decision but required that the City approve the project in accordance with the Planning Commission’s decision and associated conditions. Stay tuned! This is the rare case where LUBA may consider a grant of attorney fees because the City Council’s findings were made in complete disregard to the Petitioner’s complaints that the standards were not clear and objective.
On June 10, 2014, the City of San Jacinto, in Riverside County, California, entered into a consent decree with the Department of Housing and Urban Development (HUD) to resolve a lawsuit alleging disability discrimination under the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA). The City agreed to change its land use laws governing group home living, and to pay a total of $746,599 in compensatory damages to housing providers and former residents with disabilities, as well as a $10,000 civil penalty to the United States. The damages also include private plaintiffs’ attorneys’ fees and costs.
The settlement marks an end to an almost two-year-old complaint, but a six–year-old battle, where private group home operators claimed the City enacted an ordinance intended to exclude unlicensed and some licensed homes for persons with disabilities, and by targeting homes for persons with disabilities for enforcement of the ordinance and other local laws.
On October 3, 2008, the City Council amended the San Jacinto Zoning Code (the “Zoning Code") by approving Ordinance 08-14 (the “ordinance"), which was passed by unanimous vote of the council. The ordinance amended the Zoning Code's definition of "Group Home" or "Group Housing" to "[a] residence or dwelling, other than a hotel, wherein two (2) or more rooms, with or without individual cooking facilities, are rented to individuals under separate rental agreements or leases, either written or oral, whether or not an owner, agent, or rental manager is in residence, in order to preserve the residential character of the neighborhood." The ordinance specifically exempted certain state-licensed congregate living facilities, such as "community care facilities," from its definition of "group homes," making those with six or fewer residents permitted uses in residential zones.
Prior to and after the City's enactment of the ordinance, the city's zoning code defined "family" as "an individual or two (2) or more persons related by blood, marriage or legal adoption, or a group of not more than 6 persons who are not related, living together as a single house-keeping unit in a dwelling unit."
In conjunction with the passage of the ordinance, the City’s code enforcement officers, including uniformed officers of the County Sherriff’s Department, investigated group homes. These actions included intrusive and direct questioning of residents about whether they were on parole, on medication and/or recovering from addiction. After these investigations, the City continued to cite providers of group homes for persons with disabilities for illegal operation of a group home in a residential zone.
Thereafter, the City allowed for a reasonable accommodation process to consider placing group homes in residential neighborhoods, but its proposed conditions were not acceptable to group home providers and they filed a complaint.
HUD’s investigation led to findings that the City had, in fact, discriminated against people with disabilities under the FHA and ADA. The consent decree provides the following injunctive relief:
- The City shall not impose restrictions on housing for persons with disabilities not imposed on housing for an equal or greater number of persons without disabilities. Actions prohibited include, but are not limited to, the imposition, through any provision or practice, of numerical occupancy limits on group housing for unrelated persons with disabilities that is more restrictive than numerical occupancy limits for families or other unrelated persons.
- The City was required to adopt new ordinances to establish a new zoning classification, "Group Homes for Persons with Disabilities," and amend the City's reasonable accommodation procedure.
- The City is required to maintain records of all oral and written requests for reasonable accommodation or modification and the City's responses thereto for a period of three (3) years following the date of the request and the group home’s response, as applicable.
- The City shall not impose any additional fees, costs, or otherwise retaliate against any person who has exercised his or her right under the FHA or ADA to make one or more requests for reasonable accommodation or modification.
- Immediately upon entry of the consent decree, the City shall cease any efforts to close or bring other enforcement actions against housing for persons with disabilities operated in accordance with the FHA and the ADA, including but not limited to, homes for persons with disabilities operated by the complainants (City by Aurora Beltran and Rajeeyah Bilal-Vamey located at 325 East Third Street and 1835 Rogers Way, respectively), so long as these homes continue to operate in compliance with all laws.
- The City is required to appoint a Fair Housing Compliance Officer, and City staff, City Council members, Planning Commissioners, and the Sherriff’s officers are required to undergo fair housing training.
HUD’s investigations of fair housing violations are taking an expensive toll on local governments. If you advise a city that is considering restrictive zoning; or differential treatment of the number of family members as compared to the number of unrelated people with disabilities that can live together in the same zone, then consider the San Jacinto consent decree as a warning to take such actions cautiously. If the ordinance ultimately results in unfair treatment to group home providers, then do not be surprised if fair housing advocates complain to HUD.
Garvey Schubert Barer is co-sponsoring with Housing Land Advocates and David Evans and Associates a great day-long conference scheduled for October 18th – On The Street: Transportation and Affordable Housing. The updated agenda is posted here.
Note that HLA’s 2013 conference is intentionally taking place the day after the Fair Housing Council or Oregon’s (FHCO) 2013 Affirmatively Furthering Fair Housing Forum. You can click here to register for FHCO’s October 17th event.
Below you will find a detailed flyer from the Housing Land Advocates.
Your friends at Garvey Schubert Barer and
Jennifer Bragar, Housing Land Advocates President
We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.