A Fair Housing Watch List for Federal Neighborhood Stabilization, Stimulus and Recovery Funding Programs

 
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1.  Affirmative Furthering Fair Housing: Fair Housing Act: 

a.  “All executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of this subchapter and shall cooperate with the Secretary to further such purposes.” 42 USC §3608 (d)

b. see also: Executive Order 12892 , requires federal agencies to affirmatively further fair housing in their programs and activities, and provides that the Secretary of HUD will be responsible for coordinating the effort.

c. Enforcement using the False Claims Act: 

In a February 2009 decision, a U.S. District Court has found that Westchester County (N.Y.) falsely claimed that it was meeting its obligation to affirmatively further fair housing (“AFFH”). The ruling rejected the County’s motion for summary judgment and instead granted partial summary judgment to the Anti-Discrimination Center (“ADC”).   The Court found that the County made false or fraudulent claims to the federal government seeking payments totaling $50 million over six years.  A key element was that the County failed to address, in its Analysis of Impediments to Fair Housing, the impact of affordable housing activities on racial segregation or other relevant impacts on protected classes.  Consequently, it was in no position to meet its duty to work affirmatively to overcome impediments to fair housing.  HUD approval of certifications and grants provided no defense.  The case settled in August, 2009 with the County agreeing to pay over $60 million and develop 750 units of affordable housing.  http://www.antibiaslaw.com/sites/default/files/files/ADCrelease20090810.pdf

2.  Limited English Proficiency (LEP):   HUD requires funded programs to address needs of persons with LEP.  See 72 Fed. Reg. 2731, Jan. 22, 2007.   Executive Order 13166
Executive Order 13166 seeks to eliminate, to the extent possible, limited English proficiency as a barrier to full and meaningful participation by beneficiaries in all federally-assisted and federally conducted programs and activities.

http://www.hud.gov/offices/fheo/promotingfh/FederalRegistepublishedguidance.pdf

3.  Accessible Design and Build Obligations:

            a. 42 USC 3604 (f) (3) (C) makes it illegal (for post-1991 covered multi-family buildings) to fail to:

design and construct those dwelling in such a manner that--

(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of adaptive design:

            (I) an accessible route into and through the dwelling;

            (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

            (III) reinforcements in bathroom walls to allow later installation of grab      bars; and

            (IV) usable kitchens and bathrooms such that an individual in a wheelchair             can maneuver about the space.

            b. Some funding recipients may also be subject to 24 C.F.R. § 8.22 which requires that at least five percent of units be fully accessible to people with physical disabilities and another two percent for people with visual and hearing impairments.  Not only must these units be accessible, but they must be targeted to people who require these accessible features.

4.   HUD Section 3 Obligations. Certain HUD contractors, to the greatest extent possible, must provide job training, employment, and contract opportunities for low- or very-low income residents in connection with projects and activities in their neighborhoods.  See: http://www.hud.gov/offices/fheo/section3/section3.cfm

5. New ARRA Protections for Voucher Users.  As with Section 42 (Low Income Housing Tax Credit) and HUD HOME program funding, discrimination against Section 8 voucher users is also prohibited when funds are used from the American Recovery and Reinvestment Act’s (stimulus package) Community Development Fund or from division B, Title III the late 2008 Housing and Economic Recovery Act.  H.R. 1, American Recovery and Reinvestment Act of 2009, pp. 104, 105, (published on the White House website.)  Renters with vouchers have also brought successful claims under the Minnesota Human Rights Act, Minn. Stat. §363A.09, subd. 1, against landlords who refused to rent qualifying units to qualified tenants and who require higher rents on voucher tenancies.

6. Affirmative Marketing: 

            a. HUD seeks to have funding recipients follow the Affirmative Fair Housing Marketing Regulations found at 24 CFR 200.600, Subpart M. This requires each applicant to develop, and put in place an affirmative program that will attract potential consumers or tenants of all minority and non-minority groups within the housing market, regardless of race, color, religion, sex, national origin, disability, or familial status.  Examples of such action include:

• Advertising the availability of housing to the population that is less likely to apply, both minority and non-minority groups, through various forms of media (i.e. radio stations, posters, newspapers) within the marketing area;

• Educate persons within an organization about fair housing and their obligations to follow nondiscrimination laws; and

• Conduct outreach to advocacy groups (i.e. disability rights groups) on the availability of housing.

b. The MHRA has a separate affirmative marketing policy for housing developers receiving more than $50,000 in state or local funds.  Minn. Stat. §363A.39.

7.  Fair Housing Policies Posted and Enforced - Training for Staff – “An ounce of prevention; a pound of cure.”  Sample: 

Owner’s fair housing policy is to treat all customers and tenants with respect and to run its business as an equal housing opportunity provider.   This means that it will deal fairly with all persons on an equal basis without regard to familial status, race, color, religion, sex, national origin, marital status, creed, status with regard to public assistance and sexual orientation while providing necessary reasonable accommodations and modifications to persons with disabilities. 

Owner will regularly instruct all of its employees and agents engaged in the rental of real estate or in the administration of residential real estate business as to the requirements, spirit and purpose of the Fair Housing Act of 1968, as amended, the Minnesota Human Rights Act, and all applicable local human rights ordinances and Owner’s policy of equal housing opportunity.  The purpose of this instruction is to ensure that all employees and agents of Owner understand and implement its policy that rentals and related services are to be provided in accordance with fair housing principles.

All employees and agents are notified that breach of fair housing laws will subject the employee or agent to serious disciplinary action.

Persons who have a concern about discriminatory treatment may contact HUD: 1-800- 669-9777, TTY 1-800- 927-9275, the Minnesota Department of Human Rights: 1-800-657-3704, 651-296-5663, TTY: 651-296-1283); Legal Aid (612 334 5970) or other agencies without fear of reprisal by Owner.

 www.mylegalaid.org.   November, 2009