VII. Fair Housing Act Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

VII. Fair Housing Act Claims

In addition to looking at federal and state constitutional provisions, a religious entity may also wish to consider the Fair Housing Act (FHA)⁴⁰⁰ to determine if a cause of action exists. This is particularly true if the ministry of the church, temple, or mosque is a homeless shelter or drug and alcohol rehabilitation facility.

The Fair Housing Act⁴⁰¹ provides that it is unlawful:

a. To . . . make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status or national origin.
b. To discriminate against any person . . . in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.⁴⁰²

As defined under the statute, discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."⁴⁰³

In 1988, Congress amended the FHA, and expanded coverage of the statutory scheme to those with handicaps, including those persons who have "a physical or mental impairment which substantially limits one or more of such person's major life activities, a record of having such impairment, or being regarded as having such an impairment."⁴⁰⁴ Congress had defined handicapped persons as including those "individuals who have recovered from" an addiction or "are participating in a treatment program or self-help group such as Narcotics Anonymous. . . . Depriving such individuals housing, or evicting them, would constitute irrational discrimination that may seriously jeopardize their continued recovery."⁴⁰⁵

Federal courts have subsequently read the 1988 amendment to apply to drug and alcohol recovery houses.⁴⁰⁶ The House Judiciary Committee has made clear that the FHA was intended to apply to zoning decisions: "The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices."⁴⁰⁷ The remedies provided for successfully bringing suit pursuant to the FHA include actual and punitive damages, injunctive relief, and reasonable attorney's fees and costs.⁴⁰⁸ There is a two-year statute of limitations to bring such claims.⁴⁰⁹

Under the FHA, there are three theories of housing discrimination. First, there are FHA claims alleging discriminatory intent on the part of those city officials who decide whether the requested permit will be granted.⁴¹⁰ Notably, there is a broad interpretation of what constitutes discriminatory intent under the FHA. Courts have found discriminatory intent when a zoning decision is reversed at the behest of neighbors, as well as intent based on the public comments from city officials or even residents at city meetings.⁴¹¹ Discriminatory intent is also present when the government selectively enforces provisions of its zoning ordinance, particularly when it is done so to appease complaining neighbors.⁴¹²

Second, there is a discriminatory impact theory FHA claim, which involves the application of a facially neutral ordinance that, while uniformly applied, has a discriminatory impact on a protected class.⁴¹³ Although the legitimacy of disparate impact theory under FHA was not always clear, the Supreme Court recently affirmed that such claims are cognizable in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.⁴¹⁴ In doing so, the Court acknowledged that FHA plays an important role in "uncovering discriminatory intent" by "permit[ting] plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment."⁴¹⁵ A party alleging a discriminatory impact need not show intentional discrimination.⁴¹⁶ The party challenging the ordinance first must show a discriminatory impact on the protected class based on statistical evidence that the practice in question has created the adverse effect.⁴¹⁷

If government can show that the disparate-impact claim is not caused by government policy, the disparate-impact claim fails.⁴¹⁸ But if a sufficient showing is made, the burden is on the government to show that the impact is necessary to meet a legitimate state interest.⁴¹⁹ If the government satisfies that burden, the plaintiff must show that the defendant's reason is a pretext or that there is an alternative practice to achieve the government interest in a way that does not result in the discriminatory impact.⁴²⁰ Restrictive family definitions in zoning ordinances, for example, commonly impose a disparate burden on group recovery homes.⁴²¹

The third and final category is a reasonable accommodation claim, which at least one commentator has said is the strongest of the three FHA claims.⁴²² While the FHA is thought to afford equal rights to those highlighted protected classes, the reasonable accommodation claim is thought to grant those in the protected classes a preferred status in land use decisions.⁴²³ Under such a claim, "a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings."⁴²⁴ In other words, a denial from the government for the requested reasonable accommodation can be actual or constructive, "as an intermediate delay has the same effect as an outright denial."⁴²⁵ In Groome Resources, an application had been completed and submitted but had been pending without review for more than four months, and there was no indication that any decision was forthcoming.⁴²⁶ That was enough to find the matter ripe according to the Fifth Circuit, which noted that housing discrimination causes a uniquely harmful and immediate injury that makes such matters ripe.⁴²⁷

In United States v. Jackson,⁴²⁸ the federal government won enforcement of a consent decree that required the City of Jackson to permit Christians in Action (CIA) to operate a home for disabled or otherwise disadvantaged children in a residential neighborhood, pursuant to the reasonable accommodation claim that CIA brought under the FHA.⁴²⁹ The United States and the City of Jackson had originally entered into a consent decree in 1997 based on the city's alleged violation of the reasonable accommodation provision of the FHA with respect to a land use applicant that sought to operate a group home for Alzheimer's patients.⁴³⁰

In the enforcement action, the federal government alleged that the city breached the agreement in 2000 when the city council twice voted to deny the nonprofit CIA a use permit under the city's zoning ordinance to establish a "group home for the handicapped" in a subdivision.⁴³¹ The city, in sending out the "Notice of Hearing," stated that granting the use permit would not change the zoning classification.⁴³² The planning board held an evidentiary hearing in June 2000, at which time a number of neighbors expressed concerns that granting the permit would rezone the area, more businesses would follow, and CIA would alter the character of the surrounding subdivision.⁴³³ Despite reminders that the permit would not rezone the area and that CIA's presence would not hurt property values, the city's planning board voted to recommend denial of the use permit. Working off the record from the planning board, the city council voted unanimously to deny the use permit.⁴³⁴

The federal government, upon hearing of the denial, brought a motion for civil contempt seeking enforcement of the consent decree, and the court evaluated the merits of CIA's FHA reasonable accommodations claim.⁴³⁵ First, the court evaluated whether the accommodation CIA sought from the city was in fact reasonable.⁴³⁶ A requested accommodation is reasonable under the FHA unless "it imposes an undue financial and administrative burden on the defendant," or the...