CPTC: Fair Housing

Jennifer Raitt, Arlington's Director of Planning and Community Development is the instructor for this module.

There are three categories of fair housing laws: court decisions, statutes, and regulations. All try to prevent discrimination in the sale or rental of housing. These were passed as parties began to challenge the constitutionality of racial discrimination in housing. Segregation by race and income perpetuate today, and this is one source of housing instability.

Massachusetts outlawed racial discrimination in 1957, via a supreme judicial court case.

Congress passed the Fair Housing Act (FHA) in 1968. HUD administers the FHA and the DOJ enforces it.

Fair housing laws address transactions: buying, selling, and renting in federal and state programs. Massachusetts state laws offer more protection than the federal ones.

Public officials must avoid discrimination in the design and implementation of housing programs.

Federal fair housing law comes from the 14th amendment, and the 1968 Fair Housing Act. It prohibits discrimination in any program that receives federal funds. These require actions to remedy past discrimination in programs that receive certain types of federal funds. Violations of the Fair Housing Act can also be seen as violations of constitutional rights.

Title II of the Americans with Disabilities Act prohibits discrimination against people with disabilities. Title III prohibits discrimination in housing programs.

The Violence Against Women Act requires relocation plans for victims of domestic violence.

Federal fund recipients cannot discriminate on the basis of race, color, national origin, religion, sex, familial status (i.e., having children), or disability. Educational fund recipients can't discriminate on the basis of sex.

Recipients of HUD funds must work to correct historical segregation. Fair Housing Action Plans are one way to do this. These plans involve an analysis of a community's current situation: integration and segregation, concentrations of poverty, disparities in access to parks and schools, and reports about fair housing issues.

HUD fund recipients need to perform fair housing assessments. Municipalities must start reporting on these on or after October 2020.

Article 106 of the Massachusetts State Constitution is an equal protection amendment. Chapter 151B Section 4 prohibits housing discrimination. Chapter 40A Section 3 is the Dover Amendment.

In Massachusetts, familial status (having children in the family) is a protected category.

The Massachusetts Commission Against Discrimination (MCAD) investigates charges of discrimination. It may also report on them. MCAD's regulations are in 804 CMR 2.

Many communities have Human Rights Commissions (HRCs) that receive reports of discrimination and notify the MCAD. HRCs can also hold investigative hearings and ask courts for the authority to subpoena witnesses. The HRCs in Boston and Cambridge have extra authority and can file reports to the state Attorney General's office. They can also impose fines, or go to court over cases of discrimination.

Some anti-discrimination laws come from court decisions. Bank of America vs. City of Miami (2017) is one example. Miami accused Bank of America of making loans to black and Latino families at much higher interest rates than these families should have been eligible for.

Municipalities have a responsibility to prevent discrimination based on disability (e.g., against those recovering from substance abuse), children (e.g., due to concern about the impact on schools), or source of income (e.g., recipients of housing assistance). It is not lawful to keep people out.

Court cases have originated from "unfounded fears", where concerns about "crime", etc. are really just thinly veiled forms of racial prejudice. An example is the Texas Department of Housing and Community Affairs vs Inclusive Communities Project (2015). This was a federal case.

Tip 1: avoid discrimination in affordable housing programs. Participation in these programs must be available to persons with disabilities. They must be advertised in a way that accommodates non-english speakers.

Tip 2: Caution the public in discussion about affordable housing. Do not allow discriminatory discussion to occur in public meetings. Permit conditions cannot be discriminatory; this is a direct violation of Chapter 40B.

Tip 3: Housing authorities should exercise caution. They cannot discriminate against applicants or tenants.

Tip 4: Zoning regulations can be unlawful if there is a discriminatory impact, regardless of whether there's a discriminatory intent. Examples include efforts to prohibit families with children and addict rehabilitation.

After Hurricane Katrina, a New Orleans Parish passed a zoning law that created a moratorium on the construction of multi-family housing, and limited rentals to family members. The court determined that the parish had used camouflaged racial discrimination and the laws were invalidated. The case was Greater New Orleans Fair Housing Center vs. St. Bernard Parish (2009).

Ms. Raitt asks if there are any questions.

Question: Can you give an example of zoning regulations that discriminate against housing with children.

Answer: One example is zoning that limits the number of bedrooms. Another example would be regulations on affordable housing that don't mention income levels.

The Massachusetts Attorney General's Office reviews town bylaws for compliance and will provide feedback if they see a potential violation. Codifying local preference requirements could also be seen as discrimination.

ADU restrictions that limit ADU occupancy to family members could be seen as discriminatory, depending on the bylaw's definition of "family".

If your bylaw proposes a moratorium, there must be a clear reason and an analysis of why the moratorium is necessary.

Question: How could a municipality discriminate against housing for recovering addicts.

Answer: Abutters may object to the housing. If the issues go beyond size and massing, then it may be considered discrimination.

Question: Can you talk about local preference and 40B?

Answer: When ruling on a 40B application, a municipality can ask that up to 70% of units be set aside for some locally-defined preference. The municipality must perform an assessment of why this is necessary, and it has to be approved by DHCD. Under certain circumstances, local preference can limit diversity (e.g., a high local preference in a predominantly white community means the housing will mostly be for white households).

Question: Can you expand on your earlier remarks about family and ADUs?

Answer: Most zoning bylaws have some definition of family. Some talk about blood relations, and not in more general terms of household. It's not the business of land use law to consider who lives in a house. Limiting ADU occupancy to family members could raise red flags. It would mean having to enforce (say) a specific relationship.

Question: It sounds like part of the issue is language and the discussions around a policy. If residents lobby to prohibit room rentals with fear-based language, is that discrimination?

Answer: Yes, and it would be covered under fair housing laws, if the language speaks to keeping people out based on a protected class.

Question: If discrimination was found in a 40B or special permit decision, would the case have to be heard again?

Answer: Potentially -- it would depend on the decision of the court.