HomeMy WebLinkAboutZoning Text Amendment 13-002 - Introduction of Ordinance 401 � /-Z& r T
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Dept. ID PL 14-003 Page 1 of 5
Meeting Date:3/3/2014
gIC
CITY OF HUNTINGTON BEACH
¢" REQUEST FOR. CITY COUNCIL ACTION
MEETING DATE: 3/3/2014
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Scott Hess, AICP, Director of Planning and Building
SUBJECT: Approve Zoning Text Amendment No. 13-002 and Approve for Introduction
Ordinance No. 4019 (SR Senior Residential Mobilehome Park Overlay)
Statement of Issue:
Transmitted for your consideration is Zoning Text Amendment No. 13-002, a City-initiated request
to amend the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) to establish a Senior
Residential (-SR) Overlay zoning district for mobilehome parks. The purpose of the —SR Overlay
district is to establish criteria that will protect those mobilehome parks primarily occupied by seniors,
55 years of age and older, from conversion to family (non age-restricted) parks. Planning
Commission and staff are recommending the City Council approve the request.
Financial Impact:
Not Applicable
PLANNING COMMISSION AND STAFF RECOMMENDED ACTION:
Approve Zoning Text Amendment No. 13-002, with findings for approval (Attachment No. 1) and
approve for introduction Ordinance No. 4019, "An Ordinance of the City Council of the City of
Huntington Beach Adopting Zoning Text Amendment No. 13-002 and Amending the Huntington
Beach Zoning and Subdivision Ordinance by Adding New Chapter 228 Thereto Entitled "SR Senior
Residential Overlay District." (Attachment No. 2).
Alternative Action(s):
The City Council may make the following alternative motions:
1. Deny Zoning Text Amendment No. 13-002 with findings for denial.
2. Continue Zoning Text Amendment No. 13-002, and direct staff accordingly.
Analysis:
A. PROJECT PROPOSAL:
Applicant: City of Huntington Beach
Property Owners: The ordinance applies citywide. (Note: A list of the property owners of the 10
existing mobilehome parks that qualify as Senior parks is provided in Attachment No. 3)
HB -199- 1 Item 8. - I
Dept. ID PL 14-003 Page 2 of 5
Meeting Date:3/3/2014
Location: The ordinance applies citywide. (Note: The location of the 10 existing mobilehome parks
is provided in Attachment No. 4, page 2.0).
Zoning Text Amendment No. 13-002 is a City-initiated request to amend the Huntington Beach
Zoning and Subdivision Ordinance (HBZSO) to establish a Senior Residential (-SR) Overlay zoning
district for mobilehome parks pursuant to Section 247 of the HBZSO (Attachment No. 2). The
purpose of the —SR Overlay district is to establish criteria that will protect those mobilehome parks
primarily occupied by seniors 55 years of age and older from conversion to family (non age-
restricted) parks in an effort to preserve housing options for seniors. The proposed —SR Overlay
may overlay any property that allows mobilehome park uses.
This draft Senior Mobilehome Park Overlay ordinance was directed by the City Council in order to
retain existing senior mobilehome parks in response to the concerns expressed by park residents.
B. BACKGROUND:
On July 15, 2013, City Council directed staff to prepare a draft interim ordinance to commence the
process of retaining 10 existing senior mobilehome parks citywide.
On August 5, 2013, the City Council adopted Ordinance No. 3986, an Interim Ordinance
establishing a moratorium on the conversion of senior mobilehome parks due to the lack of senior
housing options in and around the City of Huntington Beach. At that meeting residents asked the
City Council to consider the financial impacts that a family park conversion would have on seniors
with fixed incomes. One person spoke in opposition to the proposal and submitted a copy of the
Final Notice of New Rules and Regulations including a Notice of Amendment to Rental Agreement
and letter dated July 16, 2013 distributed to residents of Rancho Huntington Mobilehome Park
(included in Attachment No. 4).
On September 16, 2013, the City Council adopted Ordinance No. 3990, an Interim Urgency
Ordinance extending the moratorium on the conversion of senior mobilehome parks (established by
Ordinance No. 3986 on August 5, 2013) for an additional 10 months and 15 days. The moratorium
was extended to allow the City time to create a regulatory framework (i.e. the proposed —SR
Overlay district) to address the City's senior housing issues and was set to expire on July 31, 2014.
However, the City Council reduced the processing time to expire on April 30, 2014.
The project was discussed with the Mobilehome Advisory Board on December 9, 2013. Staff gave
an overview of the project and responded to citizen inquiries. A total of 43 citizens attended the
meeting along with the members of the Advisory Board and City staff. On January 27, 2014, the
Mobilehome Advisory Board held its regular meeting and voted to support the Senior Residential
Mobilehome Park Overlay by a vote of 5-1. They supported the draft ordinance at the Planning
Commission public hearing as well.
C. PLANNING COMMISSION MEETING:
The Planning Commission held a public hearing on the draft -SR Senior Residential Mobilehome
Park Overlay and Negative Declaration No. 13-001 on January 28, 2014. There were a total of 20
speakers. Two additional speakers donated their time to allow for a power point presentation in
support of the -SR designation. Eleven speakers were in favor of the overlay, while nine people
spoke in opposition. The majority of those in opposition to the overlay live in Huntington Harbor
Mobilehome Park (16400 Saybrook Street). They stated that they own interest in their park, as they
have purchased their mobilehomes through a condominium map process. The Request for Council
Action report (RCA) for Zoning Map Amendment No. 13-002 elaborates further on this issue.
Resident owners from other mobilehome parks reiterated that the conversion of their senior parks
to non-age restricted parks would adversely impact their quality of life by adding more noise, traffic
and creating less safety for senior residents.
Item 8. - 2 HB -200-
Dept. ID PL 14-003 Page 3 of 5
Meeting Date:3/3/2014
Two speakers representing Western Manufactured Housing Communities Association and
Manufactured Housing Educational Trust and also representing the various mobilehome park
owners spoke in opposition to the proposed overlay. They stated that the overlay is not necessary
and would burden the park owners as they have every intention of retaining their parks as senior
parks with the exception of Rancho Huntington Mobilehome Park (19361 Brookhurst Street).
During the Planning Commission meeting, one of the owner representatives suggested an
alternative method to create a memorandum of understanding to assure the City that these existing
senior parks would be retained as senior parks. The other speaker stated that this is a property
rights issue and cited the potential adverse impacts should the overlay be adopted. She also stated
that Rancho Huntington should not be included in the overlay as an existing senior park because
they converted prior to the adoption of the moratorium and provided the proper noticing to residents
for the conversion.
Prior to the public hearing the City received one letter in support and four letters in opposition,
which included attached letters of opposition from the various mobilehome park owners. Also,
several letters of opposition were received as a late communication at the public hearing meeting
(Attachment No. 6).
The Planning Commission discussed the importance of retaining affordable housing and discussed
that affordable housing for seniors is an issue of public welfare and deserving of consideration.
Staff clarified that the ordinance references affordable housing in comparison to other housing
options offered within the City but does not propose or imply any type of rent control. The Planning
Commission also inquired about the need to reference Chapter 234 of the Zoning and Subdivision
Ordinance. It was concluded that the amendment provisions of Chapter 247 were the only
processes necessary to remove the -SR Overlay designation in the future. Both the Planning
Commission and staff support the correction. Subsequently, Zoning Text Amendment No. 13-002
reflects this change. The Planning Commission voted to approve the Negative Declaration and
recommended approval of Zoning Text Amendment No. 13-002.
Planninq Commission Action on January 28, 2014:
The motion made by Franklin, seconded by Pinchiff to approve Negative Declaration No. 13-001
with findings carried by the following vote:
AYES: Franklin, Pinchiff, Bixby, Kalmick
NOES: Peterson, Dingwall
ABSENT: Posey
ABSTAIN: None
MOTION PASSED
The motion made by Franklin, seconded by Bixby to approve Zoning Text Amendment No. 13-002
with findings and a modification to remove reference to Chapter 234 Conversion of Mobilehome
Parks carried by the following vote:
AYES: Franklin, Bixby, Pinchiff, Kalmick
NOES: Peterson, Dingwall
ABSENT: Posey
ABSTAIN: None
MOTION PASSED
D. STAFF ANALYSIS AND RECOMMENDATION:
Proposed Ordinance
11B -201- Item 8. - 3
Dept. ID PL 14-003 Page 4 of 5
Meeting Date:3/3/2014
In February 2013, the United States Court of Appeals, Ninth Circuit, determined that a city may
establish protections for senior mobilehome parks under both federal and state law. The case
established the ability for a city to adopt a Senior Residential Mobilehome Park Overlay district to
restrict a senior mobilehome park from becoming a family park. The City Attorney's Office drafted
the proposed ordinance similar to the City of Yucaipa's senior overlay ordinance, which was the
subject of the recent Ninth Circuit Court of Appeals action. The court issued a ruling in which it was
determined that the City was not preempted from creating an overlay district that restricted the age
of certain mobilehome park residents to 55 and above. Additionally, it was determined that Yucaipa
did not discriminate in housing on the basis of familial status.
The proposed design and performance standards require each senior mobilehome park to have
procedures in place for qualifying the parks as a senior mobilehome park pursuant to applicable
federal and State laws. The proposed regulations require that at least 80 percent of the spaces in a
— SR Overlay designated mobilehome park be occupied by at least one person 55 years of age or
older or where one hundred (100) percent of the spaces are occupied or intended for occupancy by
person sixty-two (62) years of age or older. The signage, advertising, park rules, regulations, rental
agreements and leases for spaces in a senior mobilehome park with the —SR Overlay designation
are required to state that the mobilehome park is a senior mobilehome park. A senior mobilehome
park must also maintain age verification documentation, which must be readily available for City
inspection upon reasonable notice. The provisions of the —SR Overlay district do not require any
construction or reconfiguration of existing mobilehome parks. No operational changes to a senior
mobilehome park would be required other than those described above. In addition, the proposed
SR Overlay district would not change the allowable uses of the base zoning district. The ordinance
also provides for the transition of residents or spaces that do not meet the required age restrictions.
♦ Compatibility
Senior residents of the mobilehome parks have attended both the Mobilehome Advisory Board
meetings held on December 9, 2013, and January 27, 2014, and the Planning Commission Study
Session held on January 14, 2014. At all meetings, seniors raised significant concerns related to
their quality of life should their parks be converted to family parks. They discussed differences in
noise and traffic between senior and family parks. Residents have stated that a senior park is
quieter and has slower traffic, which results in greater compatibility for seniors' lifestyle. The
proposed ordinance fosters compatibility since the land use and operation of existing senior
mobilehome parks remain the same.
♦ Retention of Senior Housing
At the meetings referenced above, residents stated that mobilehomes provide a more affordable
housing option for seniors wanting to live in detached housing. Concerned with increased rents if a
park conversion took place, some residents have described the inability of their mobilehomes to be
relocated elsewhere, as they are not motorized and in some cases are quite large. Many own their
mobilehome and only rent a space, and relocation of the mobilehome would also be cost
prohibitive. Typically seniors are on fixed incomes and have used their retirement funds or
proceeds from previous home sales to purchase their mobilehome.
There are a total of 18 mobilehome parks that provide 2,949 mobilehome spaces located within the
City of Huntington Beach. The overlay district would enable 1,543 spaces (52%) to be designated
as existing senior mobilehome parks.
Per the 2010 Census, senior households (defined by the Census as those 65 and older) comprise
23 percent of the City's households, and between 2000 and 2010 the senior population increased
from 10 to 14 percent of the total City population. The goals and policies of the General Plan
Item 8. - 4 KB -202-
Dept. ID PL 14-003 Page 5 of 5
Meeting Date:3/3/2014
Housing Element encourage the retention of senior housing to address this demographic trend.
The proposed ordinance is in keeping with the Housing Element and addresses a community need.
Staff believes the adoption of the SR Senior Residential Overlay ordinance is consistent with City
Council direction to draft an ordinance that will retain the existing senior mobilehome parks in
compliance with federal and state law. The SR designation would be placed on existing senior
mobilehome parks only. The amendment accomplishes the desire to retain senior housing found
citywide and is recommended for approval based on the following reasons:
- Consistent with City Council direction and City Attorney's Office recommendations;
- Conforms to the General Plan Land Use and Housing Elements to provide and retain
senior housing options; and
- Compatible with the existing base zoning and standards for mobilehome parks.
Environmental Status:
Staff reviewed the environmental assessment and determined that no significant impacts are
anticipated as a result of the proposed project. Subsequently, Negative Declaration No. 13-001
(Attachment No. 4, page1-3.1) was prepared pursuant to Section 240.04 of the HBZSO and the
provisions of the California Environmental Quality Act (CEQA). The Planning and Building
Department advertised draft Negative Declaration No. 13-001 for 30 days commencing on
November 14, 2013, and ending on December 16, 2013. Three written comments were received
from residents/mobilehome owners within the parks of Los Amigos and Del Mar Mobilehome Parks.
Comments are in support of the pending ordinance and related map amendments. No
environmental issues were raised. On January 28, 2014, the Planning Commission approved
Negative Declaration No. 13-001 with findings.
Strategic Plan Goal:
Enhance quality of life
Attachment(s):
1. Suggested Findings of Approval
2. Draft City Council Ordinance No. 4019 for Zoning Text Amendment No. 13-002
3. List of Mobilehome Park Owners
4. Planning Commission Staff Report dated January 28, 2014
5. Power Point Presentation Slides
6. Communications received after Planning Commission Staff Report
SH:MBB:RM:kdc
xB -203- Item 8. - 5
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ATTACHMENT # 1
ATTACHMENT NO. 1
SUGGESTED FLNDINGS OF APPROVAL
ZONING TEXT ANIENDMIENT NO. 13-002
SUGGESTED FINDINGS FOR APPROVAL NEGATIVE DECLARATION NO. 13-001
Negative Declaration No. 13-001 was prepared in compliance with Article 6 of the California
Environmental Quality Act (CEQA) Guidelines, It was advertised and available for a public comment
period of thirty (30) days. Any comments received during the comment period were considered by the
Planning Commission prior to action.on the Negative Declaration, Zoning Text Amendment No. 13-002
and Zoning Map Amendment Nos. 13-001 and 13-002, There is no substantial evidence in light of the
whole record before the Planning Commission that the prqJJect would have any significant effects on the
environment.
SUGGESTED FINDINGS OF APPROVAL ZONING TEXT ANIENDM- ENT NO. 13-002
1. Zoning Text Amendment No. 13-002 to amend the Huntington Beach Zoning and Subdivision
Ordinance (HBZSO) to establish criteria for the SR Senior Residential Overlay District is consistent
with the objectives. I he General Plan and any, policies, general eneral land uses and programs specified in t
applicable specific plan. The goals and policies of the General Plan Housing Element state that the
City should promote, retain and provide for affordable housing. Zoning Text Amendment No. 13-
002 would amend the HBZSO to establish the SR Senior Residential Overlay District to ensure that
senior housing is retained.
In the case of a general land use provision, Zoning Text Amendment No. 1.3-002 is compatible with
the uses authorized in, and the standards prescribed for, the zoning district for which it is proposed.
The proposed new Chapter 228 SR Senior Residential Overlay District would not affect the base
zoning designation, development standards or allowable density for any affected property.
Presei7ving senior parks as such maintains the operational compatibility for senior residents and is
responsive to issues related to noise and vehicular and pedestrian traffic within the designated parks.
A community need is demonstrated for the proposed amendment as seniors have submitted letters
supporting the SR Senior Residential Overlay District. The changes to the HBZSO would establish
ZD
operational criteria requiring that at least eighty (80) percent of the spaces are occupied by, or
intended for occupancy by, at least one person who is fifty-five (55) years of age or older, or where
one hundred (100) percent of the spaces are occupied or intended for occupancy by person sixty-two
(62) years of age or older. The City has identified that the senior segment of the population is an
ever increasing group with seniors at 65+ years of age representing 14% of the population. The
overlay district ensures that senior housing options are retained.
4. Its adoption will be in conformity with public convenience, general welfare and good zoning
practice. The proposed amendment to the HBZSO would allow for the retention of existing senior
mobilehome parks, including 10 existing senior mobilehome parks, which would maintain the
public's convenience and general welfare. The goals and policies of the General Plan encourage the
retention of senior housing.
Item 8. - 6 1413 -204-
ATTACHMENT 2
ORDINANCE NO. 4019
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON
BEACH ADOPTING ZONING TEXT AMENDMENT NO. 13-002 AND AMENDING
THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE BY
ADDING NEW CHAPTER 228 THERETO ENTITLED "SR SENIOR RESIDENTIAL
OVERLAY DISTRICT"
WHEREAS, the lack of affordable housing options in and around the City of
Huntington Beach continues to create housing problems for senior citizens living in the
City; and
One affordable housing option for senior citizens is a mobilehome park that
permits exclusive residence by those individuals age fifty-five (55) years and older; and
The City of Huntington Beach Housing Element has identified that the senior
segment of the City's population is an ever increasing group with seniors at 65+years of
age representing 14%of the population; and
By the Senior Residential Overlay District permitting the senior category to
commence at age 55 addresses cost and affordability for a large segment of our senior
population; and
The conversion of ten(10) existing senior mobilehome parks may unduly burden
and irreparably harm senior citizens within the community; and
Pursuant to California State Planning and Zoning Law, the Huntington Beach
Planning Commission and Huntington Beach City Council have held separate, duly
noticed public hearings to consider Zoning Text Amendment No. 13-002, which
establishes the Senior Residential Overlay District; and
After due consideration of the findings and recommendations of the Planning
Commission and all other evidence presented,the City Council has determined that the
aforesaid amendment is proper and consistent with the General Plan;
NOW, THEREFORE, the City Council of the City of Huntington Beach does
hereby ordain as follows:
SECTION 1. That Zoning Text Amendment No. 13-002, establishing the
Senior Residential Overlay District as more fully described herein, is hereby adopted and
approved.
SECTION 2. That the Senior Residential Overlay District will promote,retain,
and provide affordable housing, and is consistent with the Housing Element of the
General Plan.
1
13-3994/102646
Ordinance No. 4019
SECTION 3. That the Huntington Beach Zoning and Subdivision Ordinance is
hereby amended by adding new Chapter 228 thereto, entitled"SR Senior Residential
Overlay District"to read as follows:
Chapter 228
SR SENIOR RESIDENTIAL OVERLAY DISTRICT
Sections:
228.02 Senior Residential Overlay District Established
228.04 Zoning Map Designator
228.06 Definition
228.08 Land Use Regulations
228.10 Minimum Design and Performance Standards
228.12 Removal of the Senior Residential Overlay District or Change of Use
228.02 Senior Residential Overlay District Established
The Senior Residential Overlay District is intended to promote the maintenance and
viability of existing mobilehome parks through appropriate zoning. It is an overlay
district where mobilehome parks are established as the primary land use in order to limit
conversion of existing affordable housing to other land uses. The Senior Residential
Overlay District may overlay any property which provides for mobilehome park
developments.
The Senior Residential Overlay District is established and shall be designated by the
symbol (SR). The (SR) designation applies to all of the ten (10) senior residential
mobilehome parks that existed in the City of Huntington Beach as of the approval on
August 5, 2013 of the City's moratorium ordinance regarding senior mobilehome park
conversions.
228.04 Zoning Map Designator
The Zoning Map shall show all property subject to the provisions of this chapter and
overlay district by adding a"SR" designator to the underlying base zone.
228.06 Definition
Except where the context clearly indicates otherwise, the definition given in this section
shall govern the provisions of this chapter.
Senior Residential Park. A"senior residential park"means a mobilehome park in which
at least eighty(80)percent of the spaces are occupied by, or intended for occupancy by,
at least one person who is fifty-five (55) years of age or older, or where one hundred
(100) percent of the spaces are occupied or intended for occupancy by persons sixty-two
(62) years of age or older.
2
13-3994/102646
Ordinance No. 4019
228.08 Land Use Regulations
At least eighty (80) percent of the spaces in mobilehome parks in the Senior Residential
Overlay Districts shall be occupied by at least one person fifty-five (55) years of age or
older. If an existing mobilehome park met this qualification on August 5, 2013, and fell
below the eighty (80) percent requirement between that date and the effective date of this
ordinance codified in this section, the Senior Residential Overlay District shall be applied
to that mobilehome park and the park shall be required to operate as a senior residential
park by renting spaces and mobilehomes only when at least one occupant of the
mobilehome is fifty-five (55) years of age or older. The signage, advertising, park rules,
regulations,rental agreements and leases for spaces in a senior residential park in the SR
Overlay District shall state that the park is a senior residential park. Pursuant to Section
228.06 Definitions and as of the effective date of the ordinance codified in this section,
the senior residential parks in the SR Zoning District are: Rancho Del Rey Mobilehome
Park, Skandia Mobilehome Park, Huntington Harbor Mobilehome Park, Sea Breeze
Mobilehome Park, Beachview Mobilehome Park, Los Amigos Mobilehome Park,
Brookfield Manor, Del Mar Mobilehome Park, Mariners Pointe, Rancho Huntington
Mobilehome Park.
Spaces and mobilehomes in senior residential parks shall be rented only to occupants
who meet the age requirement set forth in Section 228.08 above; provided, however, that
if the occupants of a space or mobilehome who do not meet this requirement rented the
space or mobilehome before the effective date of the ordinance codified in this section,
they shall be allowed to remain, and provided further that when such occupants cease to
occupy a space or mobilehome, the mobilehome and space cannot thereafter be rented
except to occupants who meet the age requirements set forth in this section.
228.10 Minimum Design and Performance Standards
The signage, advertising, leases, and park rules and regulations for spaces in senior
residential parks shall state that the park is a senior residential park. Each senior
residential park shall have procedures for verifying that it qualifies as a senior facility
under applicable federal and/or state law, including documentation establishing that at
least eighty (80) percent of the mobilehomes or spaces in the mobilehome park are
occupied by at least one resident who is fifty-five (55) years of age or older. These
procedures shall provide for regular updates, through surveys or other means of initial
information supplied by the occupants of the mobilehome park. Such updates must take
place at least once every two years. A summary of this occupancy verification
documentation shall be available for inspection upon reasonable notice and request by
City officials.
228.12 Removal of the Senior Residential Overlay District
A zoning map amendment to remove the SR overlay designation shall be subject to the
provisions of Chapter 247.
3
13-3994/102646
Ordinance No. 4019
SECTION 4. This ordinance shall take effect thirty days following its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach
at a regular meeting held on Nrlrch 17 2014
�r
Mayor
ATTEST: ROVED AS TO FORM:
City&Ierk C3ty ttorney
REVIE D APPROVED: INITIAT1D APPROVED:
Ci �I age r Director of Planning and Building
4
13-3994/102646
Ord. No. 4019
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of Huntington
Beach is seven; that the foregoing ordinance was read to said City Council at a regular
meeting thereof held on March 3, 2014, and was again read to said City Council at a
regular meeting thereof held on March 17, 2014, and was passed and adopted by the
affirmative vote of at least a majority of all the members of said City Council.
AYES: Katapodis, Hardy, Shaw, Boardman, Sullivan, Carchio
NOES: Harper
ABSENT: None
ABSTAIN: None
I,Joan L.Flynn,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance has been
published in the Huntington Beach Fountain Valley
Independent on March 27,2014.
In accordance with the City Charter of said City
Joan L. Flynn, City Clerk CityVlerk and ex-officio Merk
Senior Deputy City Clerk of the City Council of the City
of Huntington Beach, California
ATTACHMENT #3
MOB0UEHOME PARKS PROPERTY OWNERS LIST
' Stephen B. Fabeck, Beach View Mobile Home Park, 80 South Lake#719, Pasadena, CA 91101 (Senior Park)*
2. Joanna Bruce, Mariners Point Mobile Home Park, 1837 Pine St, Huntington Beach, CAS2G48 (Senior Park)*
3. Sea Breeze Mobile Estates LLC. Sea Breeze Mobile Estates, 52OO Heil Ave.. Huntington Beach, C/\ Q2G47 (Senior
Park)*
4� Brookfield Manor Inc., Brookfield Manor Mobile Home Park, 9850 Garfield Ave.. Huntington Beach, CA92G4G (Senior
Park)*
5� Rancho Del Mar Mobile Home Estates, Inc., Del Mar Mobile Home Esbabas, 921 Emerald Bay, Laguna Beach, CA
g2G5i'12GO (Senior Park)°
G. Houser Brothers Company, LP, Rancho Del Rey Mobile Home Park, 17810 Beach Blvd., #32. Huntington 8each, CA
92847 (Senior Park)*
T Sierra Corporate Management Inc., Rancho Huntington Mobile Home Park, 320 N. Park Vista St., Anaheim, CA,,
928OS (Senior Parh)°
8. Hubbell Family LUC, Skandia Mobile Home Park, i1Si Bryant Rd.. Long Beach, C/4908O5 (Senior PerN°
9. Kato&Associates LLC, Los Amigos Mobile Home Park, 18182 Bushard St., Fountain Valley, CA 92708 (Senior Park)*
10. Huntington Mobile Home Inv., LLC, Huntington Harbour Village'17300 Red Hill Ave., Suite 280, Irvine, CA 92614
(Senior Park)*
11� Mills PCHLLC. Cabrillo Mobile Home Park, 430S. San Dimas Ave- San Dimas, CA81733
12, Mills H8S. Huntington by the Sea Mobile Home Park, 4308. San Dimas Axe.. San Dimas, CA91733
13. John Sanders Property, Huntington Shorecliff Mobile Home Park, PO Box 11427, Santa Ana, CA 92711
14. City of Huntington Beaoh, Ocean View Eotates, Economic Development, 2000 Main 8L, Huntington Baach, CA
92648�
.
15, Huntington Mobile Home Inv LUC. Huntington Harbour Village, 43OS. San Dimas/ve.. San Dimas, CA81733
1& JS Stadium LLC. Pacific Mobile Home Park, P(J Box 1i427. Santa Ana, CA92711
1T Sea Aina Mobile Home LP, Sea Ains Mobile Home Park, 05S7 Central Montclair, CA91763
18, Villa Huntington Beach LP, Villa Huntington Mobile Castles, 1818 Gi|berth Rd., Sha24O. Burlingame, CA84O1O-
1217
*Existing Senior park, asof August 5, 2O13. analyzed for—SR Overlay.
T+�,�, 8 11
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ATTACHMENT #4
City of Huntington each Planning and Building Department
STAFF REPORT
TO: Planning Commission
FROM: Scott Hess, -.A-ICP, Director of Planning and Building
BY: Rosemary Medel, Associate Planner
DATE: January 28, 2014 eA
SUBJECT: NEGATIVE DECLARATION NO. 13-001 /ZONING TEXT AMENDMENT NO.
13-002 (SENIOR RESIDENTIAL MOBILEHOME PARK,OVERLAY)
APPLICANT: City of Huntington Beach
PROPERTY
OWNERS: The ordinance applies citywide. Negative Declaration No. 13-001 includes an analysis
of applying the overlay to 10 existing mobilehorne parks that are currently occupied
primarily by persons -�5 years of age or older. A list of these property ovm' ers is
provided in Attachment No. 7.
LOCATION: The ordinance applies citywide. The location of the 10 existing mobile.home parks is
provided on page 2.
STATEMENT OF ISSUE:
* Negative Declaration No. 13-001 request:
- Analyzes the potential environmental impacts associated with the adoption of the SR Senior
Residential. Overlay District for mobilebome parks and the designation of 10 mobilehome parks
as SR Parks.
+ Zoninc- Text.Amendment(ZTA)No. 13-0021 request:
4.1�
- To amend the Zoning and Subdivision Ordinance to create Chapter 228 SR Senior Residential
Overlay District.
+ Staff s Recommendation:
Approve Negative Declaration No. 13-001 based on the following:
- It was prepared in accordance with.the California Environmental Quality Act; and
- It adequately analyzes the potential enNdronmental impacts associated with the prqjject.
Approve Zoning Text Amendment No. 13-002 and forward to the City Council for adoption for
the following reasons:
- Consistent with City, Council direction and City Attorney's Office recommendations;
- Conforms to the General Plan Land Use and Housing Elements to provide and retain senior
housing options; and
- Compatible with.the existing base zoning and standards for mobilehorne parks.
RECOMMENDATION:
Motion to:
A. "Approve Negative Declaration No. 13-001 with findings for approval (Attacl-unent No. 1)."
B. "Approve Zoning Text Amendment No. 13:)-002 with findings (Attachment o 1) and forward
i tt hme t N n
Draft Ordinance (Attachment No. 2) to the City Council for adoption."
Item 8. - 12 HB -210- #B-1a
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VICINITY 4 R
NEGATIVE DECLARATION NO. I3- 1/
ZONING TEXT AMENDMENT 13-002
SENIOR A S I-
PC Staff Retort-01/28/2014 HB -21 1- (14srU s-Item 8- - 13
ALTERNATIVE ACTION(S):
The Planning Commission may take alternative actions such as:
A. "Deny Negative Declaration No. 13-001 and Zoning Text Amendment No. 13-002 with findings
for denial."
B. "Continue Negative Declaration No. 13-001 and Zoning Text Amendment No. 13-002 and direct
staff accordingly."
PROJECT PROPOSAL:
Negative Declaration.No. 13-001. analyzes the potential environmental impacts associated with,the
adoption of the SR Senior Residential Overlay District for Mobilehome Parks and Zoning Map
Amendrnerit Nos. 13-001 and 13-002, which are analyzed in separate reports(Attachment No. 3).
Zoning Text Amendment No. 13-002 is a City-initiated proposal to amend the Huntington Beach Zoning
and Subdivision Ordinance (HBZSO) to establish a Senior Residential (-SR:) Overlay zoning district for
mobilehome parks pursuant to Section 247 of the HBZSO (Attachment No. 2). The purpose of the-SR
Overlay district is to establish criteria that v�dll protect those mobilehome parks primarily occupied by
seniors 55 years of age and older from conversion to family (non age-restricted) parks, in an effort to
preserve housing options for seniors. The proposed_SR Overlay may overlay any property that allows
mobilehome park uses.
The City Council directed staff to prepare a draft Senior Mobilehome Park Overlay ordinance in order to
retain existing senior mobilehome parks in response to the concerns expressed by park residents.
Back,groun
On July 15, 2013, City Council directed staff to prepare a draft interim ordinance to commence the
process of retaining 10 existing senior mobilehome parks city-wide.
t� I
On August 5, 2013, the City Council adopted Ordinance No. 3986, an Interim Ordinance establishing a
moratorium on the conversion of senior mobilehome parks due to the lack of senior housing options in
and around the City of Huntington Beach. At that meeting residents asked the City Council to consider
the financial impacts that a family park conversion would have on seniors with fixed incomes. One
person spoke in opposition to the proposal and submitted a copy of the Final Notice of New Rules and
Regulations including a Notice of Amendment to Rental Agreement and letter. dated July 16, 20131
distributed to residents of Rancho Huntington Mobilehome Park(included in Attachment No. 5).
On Sept-ember 16, 2013, the City Council adopted Ordinance No. 3990, an Interim Urgency Ordinance
extending the moratorium on the conversion of senior mobilehome parks (established by Ordinance No.
39
86 on August 5. 2013) for an additional 10 months and 15 days. The moratorium was extended to
allow the City time to create a regulatory framework (i.e. the proposed -SR Overlay district) to address
the City's senior housing issues and was set to expire on July 3L 2014. However, the City Council
reduced the processing time to expire on.April 30,2014.
Item 8. - 14 HB -212-
.1 --.-,.--eport-0 1/28,1201.4 - (14srO2 SR Overlay)
The project was discussed with the Mobilehome Advisory Board on December 9, 2013. Staff gave an
overview of the proji ect and responded to citizen inquiries. A total of 43 citizens attended the meeting
along with the members of the Advisory Board and City staff.
Stud j7 Session
The Planning Commission held a study session on January 14, 2014. Staff introduced the proposed
overlay district ordinance and provided background as described. The Planning,, Con-emission asked
various questions regarding the initiation of the proposed ordinance. Additionally, a commissioner
asked for clarification regarding the reference to affordability in the ordinance. Interim Ordinance No.
39
6, which adopted the temporary moratorium. on the conversion/change of the existing senior
mobilehome parks, stated that mobilehome parks represent one of a few affordable housing options left
to senior citizens. While the ordinance does not propose rent restrictions, the term is used to represent
that inobilehome parks offer a more affordable (i.e. less costly) housing alternative in comparison son to
standard housing options within the City. Five members of the public spoke at the study session, one
person was opposed, citing the potential adverse impacts on the mobilehome park property owners if the
City adopts the ordinance.
ISSUES:
General Plan ConLormance:
The project creates the overlay to designate existing senior mobilehome parks as senior parks in an
effort to retain existing senior housing. The proposed project would be consistent with the goals,
objectives and policies of the City's Land Use Element and Housing Element of the General Plan as
follows:
A. Land L,7Fe Element
L U 5.1.2: Establish procedures, requirements, and programs for Huntington's Beach's compliance
with regional, State, and Federal environinental requirements, including such legislation as, but not
limited to, the Clean Air Act, Clean Water Act, and the Congestion Management Plan.
ObieVive L U.9.5: Provide for the development of housing for senior citizens, the physically and
mentally challenged, and very-low, low, and moderate income families.
Objective LC 15.6: Facilitate the preservation and development of Residential Mobilehome Parks.
B. Housing Element
Policy HE 5.2: Housing Options for Seniors-. Support development and maintenance of affordable
senior rental and ownership housing and supportive sendces to facilitate maximum independence
and the ability of seniors to remain in their homes and/or in.the community.
Zoning Text Amendment No. 13-002 would amend the HBZSO to establish a Senior Residential
SR) Overlay for mobilehome parks. The purpose of the—SR Overlay is to establish criteria that will
protect mobilehome parks primarily occupied by persons 55 years of age and older from conversion
PC Staff Report—0 1/2 8/2014 HB -213 (14sr02 s.jtem 8. - 15
to family (non age-restricted) parks in an effort to preserve affordable housing for older persons.
Negative Declaration No. 13-001 analyzes the proposal to be consistent`with the General Plan goals
and policies and demonstrates no environmental impacts associated with the project.
Zoning Compliance:
The project proposes a nevr HBZSO chapter., Chapter 228, SR Senior Residential Overlay District,
which provides standards for senior mobilehome parks. The base zoning-designations of any
C
mobilehome park so designated Nvill not be altered as a result of this ordinance. No construction or
alteration is proposed to the existing mobilehome parks.
U'rban Des%gn Guidelines Conformance: Not applicable.
Environmental Status:
Staff has reviewed the environmental assessment and determined that no significant impacts are
anticipated as a result of the proposed project. Subsequently, Negative Declaration No. 13-001
(Attachment No. 3) was prepared pursuant to Section 240.04 of the HBZSO and the provisions of the
California Environmental Quality Act(CEQA).
The Planning and Building Department advertised draft Negative Declaration No. 13-001 for 30 days
commencing on November 14, 20131 and ending on December 16. 2013. Three written comments were
received from residents/i-nobilehome owners within the parks of Los Amigos and Del Mar Mobilehome
Parks. Comments are in support of the pending ordinance and related map amendments. No
environmental issues were raised.
The Environmental Board was notified of the Negative Declaration. As of December 16, 2013, no
response had been received.
Prior to any action on Zoning Text Amendment No. 13-002 and Zoning Map.4%niendment Nos. 13)_
001/13-002, it is necessary for the Planning Commission to review and act on Negative Declaration No.
135-001. Staff, in its initial study of the project, is reconitnending that the negative declaration be
approved with findings.
Coastal Status:
Although none of the senior mobilehome parks are located within the Coastal Zone. the zoning district
map for Rancho Del Rey and Huntington Harbor senior mobilehome parks includes the Coastal Zone
boundary and are being processed under Zoning Map Amendment No. 13-002. If ultimately approved
by the City Council, the City will forward Zoning Map Amendment. No. 13-002 to the Coastal
Commission at the end of the year bundled with any other amendments as a minor amendment to the
City's certified Local Coastal Program.
RedelKlo - Not applicable.
Rinent Status
Design Revien,Board. Not applicable.
Item 8. - 16.eport-01/28/2014 HB -214- (1 4si-02 SR Overlay)
Subdivision Committee: Not applicable.
OtherDoartinents Concerns and Requiremen : The City Attorney's Office prepared the ordinance to
create Chapter 228 -SR Senior Residential Overlay District. There were no comments from other City
Departments.
Public iNo ffileation:
Legal notice was published in the Huntington Beach,,Fountain Valley Independent on January 16. 2014,
.Notices were sent to all property owners and tenants within the existing senior mobilebomes as well as
interested. agencies/organizations, including the property owners of all existing mobilehome parks. As
of January 21, 2014,no other communications regarding Negative Declaration ,No. 13-001 and ZTA No.
13-002 have been received.
Application Processing Dates: This is a City Council directed prqject and mandatory processing dates
are not applicable.
ANALYSIS:
Proposed Ordinance
In tT February 2013, the United States Court of Appeals, Ninth Circuit, determined that a city may
establish protections for senior mobilehome parks under both federal and state law. The case established
the ability for a city to adopt a Senior Mobilehome Park Overlay District to restrict a senior mobilehome
park from becoming a family park, The City Anomey's Office drafted the proposed ordinance similar
to the City of Yucaipa's senior overlay ordinance, which was the subject of the recent Ninth Circuit
Court of Appeals action. The court issued a ruling in which it was determined that the City was not
preempted from creating an overlay district that restricted the age of certain mobilehome residents to 55
and above. Additionally, it was determined that Yucaipa did not discriminate in housing on the basis of
familial status.
The proposed design and performance standards require each senior mobilehome park to have
procedures in place for qualifying the parks as a senior mobilehome park pursuant to applicable federal
and State laws. The proposed regulations require that at least 80 percent of the spaces in a— SR Overlay
designated.mobilehome park be occupied by at least one person 55 years of age or older or where one
hundred(100) percent of the spaces are occupied or intended for occupancy by person sixty-two (62)
years of age or older. The signage, advertising, park rules, regulations, rental agreements and leases for
spaces in. a senior mobilehome park with the—SR Overlay designation are required to state that the
mobilehome park is a senior mobilehome park. A senior mobilehome park must also maintain age
verification documentation, which must be readily available for City inspection upon reasonable notice.
The provisions of the—SR Overlay district do not require any, construction or reconfiguration of existing
mobilehome parks. No operational changes to a senior mobilehome park would be required other than
those described above. In addition, the proposed—SR Overlay district would not change the allowable
uses of the base zoning district. The ordinance also provides for the transition of resident--, or spaces that
do not meet the required age restrictions.
PC Staff Report—0 1/281/2 0 14 HB -215- (14srO2 S1 Item,& - 17
Compatibility
Seniors residents have attended both the Mobilehome Advisory Board meeting held on December 9.
2013 and the Planning Commission Study Session held on January 14, 2014. At both meetings, seniors
raised significant concerns related to their quality of life should their parks be converted to family parks.
Thev discussed differences in noise and traffic between senior and family parks. Residents have stated
that senior park is quieter and has slower traffic., -which results in greater compatibility for seniors'
lifestyle. The proposed ordinance fosters compatibility since the land use and operation of existing
senior mobilehome parks remain the same.
Retention of Senior Housh�g
At the meetings referenced above, residents stated that mobilehomes provide a more affordable housing
option for seniors wanting to live in detached housing. Concerned with increased rents if a park
conversion took place, some residents have described the inability of their mobilehomes to be relocated
elsewhere, as they are not motorized and in some cases are quite large. Many own their mobilehome
and only rent a space, and relocation of the mobilehome would also be cost prohibitive. Typically
seniors are on fixed incomes and have used their retirement funds or proceeds from previous home sales
to purchase their mobilehome.
There are a total of 18 mobilehome parks that provide21,949 niobilehome spaces located within the City
of Huntington Beach. The overlay district would enable 1.543 spaces (52%) to be designated as existing
senior inobilehoine parks.
Per the 22010 Census, senior households (defined by the Census as those 65 and older) comprise 23
percent of the City's households, and between 2000 and 2010 the senior population increased from 10 to
14 percent of the total City population. The goals and policies of the General Plan Housing Element
encourage the retention of senior housing to address this demographic trend. The proposed ordinance is
in keeping with the Housing Element and addresses a community need.
C)
Staff believes the adoption of the SR Senior Residential Overlay ordinance is consistent with City
Council direction to draft an ordinance that will retain the existing senior mobilehome parks in
compliance with federal and state law. The SR designation would be placed on existing senior
mobilehome parks only. The amendment accomplishes the desire to retain senior housing found
citywide and is recommended for approval based on the following reasons:
Consistent with City Council direction and City Attorney's Office recommendations;
Conforms to the General Plan Land Use and Housing Elements to provide and retain senior
housing options, and
Compatible with the existing base zoning and standards for mobilehome parks.
Item 8. - 18-eDort—01/N/12014 HB -216- (14srOl' SR Overlay)
ATTACH-MENT-TS:
2. Draft City Council Ordinance No. for Zoning Text Amendment No. 13-002
3. Draft Negative Declaration No. 13-001, including three letters received during the public comment
period
4. City Council Coinmunication dated July 8, 2013
5. City Council Notice of Action letter dated August 5, 2013, Interim Ordinance Establishing a
Moratorium on Conversion of Senior Mobile Home Parks and supplemental information
6. City Council Notice of Action letter dated September 16, 2013
SH2\41313:rin
PC Staff Report—0 1/28,12014 HB -217- (14sr02 s:Item 8. - 19
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HU TTINGTON
BEACH ADOPTING ZONING TEXT AMENDMENT NO. 13-002 AND A-MENDING
THE HUNTINGTON BEACH ZONING AND SUBDIVISION CODE BY ADDING
NEW CILAPTER 228 THERETO ENTITLED "SR SENIOR RESIDENTIAL
OVERLAY DISTRICT"
WHEREAS, the lacy of affordable housing options in and around the City of
Huntington Beach continues to create housing problems for senior citizens living in the
City; and
One affordable housing option for senior citizens is a mobilehome park,that
permits exclusive residence by those individuals age fifty-five (55) years and older; and
The City of Hunting-ton Beach Housing Element has identified that the senior
segment of the City's population is an ever increasing group with seniors at 5+years of
age representing 14% of the population; and
By the Senior Residential Overlay District permitting the senior category to
commence at age 55 addresses cost and affordability for a large segment of our senior
population; and
The conN-ersion of ten (10) existing senor mobilehome parks may unduly burden
and irreparably harm senior citizens within the community: and
Pursuant to California State Planning and Zoning Lave, the Huntington.B each
Planning Commission and Huntington Beach City Council have held.separate, duly
noticed public hearings to consider Zoning Text A3nendment No. 13-002,v,=hich
establishes the Senior Residential Overlay District; and
After due consideration of the findings and recommendations of the Planning
Commission and all other evidence presented,the City Council.has determined that the
aforesaid amendment is proper and consistent with the General Plan;
NOW, THEREFORE,the City Council of the City of Huntington Beach does
hereby ordain as follows:
SECTION 1. That Zoning Team Amendment No. 13-002, establishing the
Senior Residential Overlay District as more fully described herein, is hereby adopted and
approved.
SECTION 2. That the Senior Residential Overlay District will promote,retain,
and provide affordable housing, and is consistent with the Housing Element of the
General Plan.
Item 8. - 20 HB -218-
SECTION-3. That the Huntington Beach Zoning and Subdivision Code is
hereby amended by adding new Chapter 228 thereto, entitled "SR Senior Residential
Overlay District"to read as follows:
Chapter 228
SR SEN'IOR RESIDENTLkL ON7ERLAY DISTRICT
Sections:
228.02 Senior Residential Overlay District Established
228.04 Zoning Map Designator
228.06 Definition
228.08 Land Use Regulations
228.10 Minimum Design and Performance Standards
228.12 Removal of the Senior Residential Overlay District or Change of Use
228.02 Senior Residential Overlay District Established
The Senior Residential Overlay District is intended to promote the maintenance and
viability of existing mobilehome parks through appropriate zoning. It is an overlay
district where mobilehome parks are established as the primary land use in order to limit
conversion of existing affordable housing to other land uses. The Senior Residential
Overlay District may overlay any property which provides for mobilehome park
developments.
The Senior Residential Overlay District is established and shall be designated by the
symbol (SR). The (SR) designation applies to all of the ten (10) senior residential
mobilehome parks that existed in the City of Huntington Beach as of the approval on
Aug
ust 5, 201' of the City's moratorium ordinance regarding senior mobilehome park
conversions.
228.04 Zoning Map Designator
The Zoning Map shall show all property subject to the provisions of this chapter and
overlay district by adding a"SW' designator to the underlying base zone.
228.06 D efinition
Except NNhere the context clearly indicates othemrise, the definition given in this section.
shall govern the provisions of this chapter.
Senior Residential Park. A-'senior residential park"means a mobilehome park in which
at least eighty (80)percent of the spaces are occupied by, or intended for occupancy by,
at least one person who is fifty-five (5 5) years of age or older, or where one hundred
(100) percent of the spaces are occupied or intended for occupancy by persons sixty-tvo
(62)years of age or older.
2 E . -n
D-3994/102646 E N1
HB -219- —Item 8. - 21
228.08 Land Use Regulations
At least eighty(80) percent of the spaces in mobilehome parks in the Senior Residential
Overlay Districts shall be occupied by at least one person fifty-five (55)years of age or
older. If an existing mobilehome park met this qualification on Au
gust5, 2013, and fell
below the eighty(80) percent requirement bet-,veep that date and the effective date of this
ordinance codified in this section, the Senior Residential Overlay District shall be applied
to that mobilehome park and the park shall be required to operate as a senior residential
park by renting spaces and mobilehomes only when at least one occupant of the
mobilehome is fifty-five(55)years of age or older. The signage, advertising,park rules,
regu
lations, rental agreements and leases for spaces in a senior residential park in the SR
Overlay District shall state that the park is a senior residential park Pursuant to Section
228.06 Definitions and as of the effective date of the ordinance codified in this section,
the senior residential parks in the SR Zoning District are: Rancho Del Rey Mobilehome
Park, Skandia Mobilehome Park, Huntington Harbor Mobilehome Park, Sea Breeze
Mobilehome Park, Beaeliview'Mobilehome Park,Los Amigos-N- Mobilehome Park-,
Brookfield Manor,Del.Mar Mobilehome Park-, Mariners Pointe, Rancho Huntington
Mobilehome Park.
Spaces and mobilehomes in senior residential parks shall be rented only to occupants
who meet the age requirement set forth in Section 228.08 above; provided, however, that
if the occupants of a space or mobilehome Who do not meet this requirement rented the
space or mobilehome before the effective date of the ordinance codified in this section,
they shall be allowed to remain, and provided further that when such occupants cease to
occupy a space or mobilehome, the mobilehome and space cannot thereafter be rented.
except to occupants'"4io meet the age requirements set forth in this section.
228.10 Minimum Design and Performance Standards
The signage, advertising, leases, and park rules and regulations for spaces in senior
residential parks shall state that the park is a senior residential park. Each senior
residential park shall have procedures for verifying that it qualifies as a senior facility
under applicable federal and/or state law, including documentation establishing that at
least eighty (80) percent of the mobilehomes or spaces in the mobilehome park are
occupied by at least one resident who is fifty-five (515) years of age or older. These
procedures shall provide for regular updates, through surveys or other means of initial
information supplied by the occupants of the mobilehome park. Such updates must take
place at least once every two years. A summary of this occupancy verification
documentation shall be available for inspection upon reasonable notice and request by
City officials.
228.12 Removal of the Senior Residential Overlay District or Change of Use
A zoning map amendment to remove the SR overlay designation or approve a change of
use shall be subject to the provisions of Chapter 234 and 247.
3
Item 8. - 223-39941102646
HB -220-
SECTION 4. This ordinance shall take effect thirty days following its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach
at a regular meeting held.on 20_.
Mayor
ATTEST: ROVED AS TO FORM-
yyZ-1
City Clerk City
ttorney L .
REVIEWED AND APPROWD: INTITUTED LN'D APPROVED:
City Manager Director of Planning and Building
4 NE--NN No.,
13-3994/10-2646 HB -22 1- Item 8. - 23
_
'Y F NT GT N' EACH,
L IN EP T
DRAFT T .1 - 001 ._
. PROJECT TITLE: Senior Residential(-SR) Overlay District for Mobilehome Parks
Concurrent Entitlements: Zoning Map Amendment No. 1.3- 01 and 13-002.
Zoning Text Amendment No. 13-002
2. LEAD AGENCY: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Contact: Rosemary Medel, Associate Planner
Phoney (714) 536-5271
3. PROJECT LOCATION: The Senior Residential (-SR) Overlay District is a Citywide zoning
overlay district that may overlay any property that allows for mobilehonie park uses. The-SR Overlay
designation is proposed to be added to 10 existing senior mobilehome parks. The locations of the 10
senior mobilehome parks are described in Table 1 and shown on the attached location map
(Attachment'No. 1).
Table 1—Location of Mobilehome Parks
PARK PARK NAME ADDRESS/ IP CODE NIA Eh-
NO. OF
SPACES
1. Rancho Del Rey-Mobilehome Park 16222 Monterey bane,92647 403 j
2. Skandia Mobilehome Park 16444 Bolsa Chica Street, 92649 167
3. i Huntington.Harbor Mobilehome Park 16400 Saybrook Lane, 92649 106
f Sea Breeze Mobilehome Park 5200 Heil Avenue, 9/- 65
5. Beachvie«Mobilehome Park 17261 Gothard Street, 92647 82
6. Los Amigos Mobilehome Park 18601 e-wland Street, 92646 - 145 -
7, i Broo1:-fieldManor 9850 Garfield Avenue, 92646 139
8. Del Mar Mobilehomes 19251 Brookhurst Street, 92646 142
9. Mariners Pointe 19350 Ward Street 92646 98
10. 1 Rancho Huntington Mobilehome Park 19361 Brookliurst Street, 92646_1 194
I Total 1,541
Park numbers correspond to mobilehome park locations shwwn on Attachment No. 1
JMICHCCKLS I
Item 8. - 24 HB -222-
4. PROJECT PROPONENT: City of Huntington Beach,
2000 Main Street
Huntington Beach, CA 92648
Contact: Rosemary-N-ledel, Associate Planner
Phone/Email: (714) 374-1684/rmedel@surfeitv-hb.or,,
5. GENERAL PLA N DESIGNATION: Refer to Table 2 below
6. ZO1\JNG: Refer to Table 2 below
Table 2
PARK PARK NATNIE PARK ADDRESS 1, GENERAL PLAN
NO.
1. - --TI-6222 11vi
Rancho Del Rey Monterey RINI-15 (Residential
Par
k
(Residential
RMP
Mobilehome Park Lane Medium Density-15 Mobilehome
units/acre) -RL-7 m1p
(Residential Low Park)
Density-7 units/acre -
Residential
Mobilehome Park
Overlay-)
2. Skandia'Xiobilehome I 16444 Bolsa Chica. i RM- 5 pl-vip
P ark Street
3. f Huntin gton Harbor 16400 Saybrook 1i PAL.-7 mip (Residential RN
i
Mobilebome Park Lane Low Density-7
units/acre-Residential
1 Mobilehome Park 1
Overlay)
4. Sea Breeze 5200 Heil Avenue R.M-1.5 R-\4P
Mobilehome Park
15. BeaclaNiew 17261 Gothaxd
RL-7-rinp R'-\,,IP-FP2
Mobilehome Park Street (Residential
Mobilehome
Park-Flood
Plain 2)
6. Los Amigos 18601 Newland i RL-7 RMP
-Mobilehome Park Street
7. Brookfield'Manor 9850 Garfield RL-7-nnp R-N14P
Avenue
S. Del Mar Mobilehomes 19251 Brook-hurst RL-7 I RMP
Street
9. 1 Mariners Pointe 19350 Ward Street RM-15 R-MP
10. Rancho Huntington 19361 Brookh-Lirst RL.-7-rmp 1 RTNIP
Mobilehome Park Street
T T NC1-
IJB -223- A C H1 KAIE N Item 8. - 25
7. PROJECT DESCRIPTION:
Project Backgfound
On August 5, 2013, the City Council adopted Ordinance No. 3986, an Interim Ordinance establishing
a moratorium on the conversion of senior mobilehome parks due to the lack of senior housing options
in and around the City of Huntington Beach. On September 16, 2013, the City Council adopted
Ordinance No. 3990, an Interim Urgency Ordinance extending the moratorium on the conversion of
senior mobilehome parks (established by Ordinance No. 3986 on August 5,2013) for an additional 10
month -and 1-5 days. The moratorium was extended to allow the City time to create a regulatory
fTamew,orfz (i.e. the proposed —SR Overlay district) to address the City's senior housing issues and is
set to expire on July 31, 2014.
Project Description
The project involves a City-initiated proposal to amend the Huntington Beach Zoning and Subdivision
Ordinance to establish a Senior Residential (-SR) Overlay zoning district for mobilehome parks
(Zoning Text Amendment No. 13-002) (Attaclunent No. 2). The purpose of the —SR Overlay district
is to establish criteria that will protect those mobilehome parks primarily occupied by seniors 55 years
of age and older from conversion to family (non age-restricted) parks in an effort to preserve
affordable housing for seniors. The proposed —SR Overlay may overlay any property -d-iat allows
mobilehome park uses.
The project also consists of Zoning Map )\mendments to apply the Senior Residential (-SR) Overlay,
designation to 10 existing (as of July 31, 2013) senior mobilehome parks in the City. The eight
rem aining'family parks in the City will not be affected. by the proposed —SR Overlay district.
However,-they could apply to have the -SR Overlay designation in the future. In addition, a senior
mobilehome park with the —SR Overlay designation could apply to remove the overlay designation
pursuant to applicable city code requirements.
-Although none of the senior inobilehome parks is located within the Coastal Zone, the zoning district
map for Rancho Del Rey and Huntingt
on.Harbor senior mobilehome parks includes the Coastal Zone
boundary. As such, the City is processing a separate Zoning Map Amendment (No. 13-002) for this
park as it will require a minor amendment to the City's certified Local Coastal Program and approval
f gr n
ftom the California Coastal Commission.
-,S-ROh,erlay-District Provisions-
The proposed regulations of the Senior Residential Overlay district require that at least 80 percent of
the spaces in a—SR Overlay designated mobilehome park be occupied by at least one person 55 years
of age or older. The signage, advertising, park rules, regulations, rental agreements and leases for
spaces in a-senior mobilehome park with the —SR Overlay designation are required to state that the
mobile-�6me park is a senior mobilehome park. The proposed design and performance standards
require each senior mobilehome park to have procedures in place for qualifying the-parks as a senior
mobilehome park pursuant to applicable federal and State laws. A senior mobilehome park must also
maintain age verification documentation, v,,hich must be readily available for City inspection upon
reasonable notice. The provisions of the —SR Overlay district do not require any construction or
reconfiguration of existing mobilehome parks. No operational changes to a senior mobilehome park
would be required other than those described above. In addition, the proposed —SR Overlay district
would not change the allowable uses of the base zoning district
Item 8. - 26 1113 -2124-
8. SURROUNDING LAND USES AND SETTING: The —SR Overlay is a City-,�ide overlay district.
The proposed Zoning Map Amendments include 10 existing senior mobilehome parks that are
identified in Attachment No. 1. The sites are identified by the—SR designation. Surrounding uses for
each ofthe 10 parks is as follows:
FP NORTHNORTH EAST SOUTH WEST
No.
Multiple family, and Residential single Mobile Home park site 1 Across Saybrook
City of Seal Beach family #3 j Ln./residential
single family
2. Residential sin-le Residential single Commercial general Across Bolsa
family family and multifamily across Chica is
Heil Ave. commercial and
single family
residential
3. Mobile Home park Multiple family Across Heil Ave. public Across Saybrook
site#1 open space. Ln. multifamily
residential
4. Across Heil Ave, Meadoivlark 1 MeadoNOark Multifamily
I
single family Development (SFR) Development(SFR) Residential
residential
PS Ocean View Across Gothard is Municipal City Yard I Single Family
High School industrial Residential
development.
16, Across Ellis. single Across Newland. Single family 'multifamily
farnih,residential Single Family Residential I Residential
Residenti&Citv of
Fountain Vallev
7. Single family vacant Existina'-1\4obile Home Single Family
residential/City of I LandlCominerical I Park,
Residential
Fountain Valley Development
8
Single Family
' Existing Mobile Home. Existing Mobile Vacant
Home Park Land,/Commerical 1 Park Residential
De-velopment
1 9. Industrial Nursery Operation Single Family/Nursery Single Eamily
Development I Operation I Residential
10. Existing Mobile Single Family Single Family Single Familv
Home Park Residential j Residential,"Commerical Residential
Development
9. OTHER PRENJOUS RELATED ENVIROINVINIENTAIL DOCUMENTATION:None
10. OTHER AGENCIES NVHOSE APPROVAL IS REQUIRED: California Coastal.Conunission-
Zoning Map Amendment No. 13-002 as a minor amendment.
P,
HB -225- Item 8. - 27
EN- VMONT -MENTAL FACTORS POTENTIALLY AFFECTED:
The environmental factors checked below would be potentially affected by this project involving at least one
impact that isa,"Potentially Significant Impact"or is"Potentially Significant Unless Mitigated," as indicated by
the checklist on the following pages,
Land Use/Planning 0 Transportation/Traffic El Public Services41-
❑ Population/Housing El Biological Resources ❑ Utilities/Service Systems
Geology,/Soils 0 Mineral Resources ❑ Aesthetics
Hydrology/Water Quality El Hazards and Hazardous Materials Cultural Resources
❑ Air Quality 1:1 Noise El Recreation
❑ Agriculture Resources Mandatory Findings of Significatice
DETERTMINATION
(To be comp bated by the Lead Agency)
On the basis of this initial evaluation:
I find that the proposed project COULD NOT have a significant effect on the environment,
and a NEGATIVE DECLARATION will be prepared.
I find that although the proposed project could have a significant effect on the environment,
there will not be a significant effect in this case because the mitigation measures described on ❑an attached sheet have been added to the project. A MITIGATED NEGATIVE
DECLARATION will be prepared.
I fold that the proposed project—MAY have a significant effect on the environment, and an
ENVIRONTNIENTAL IMPACT REPORT is required.
I find that the proposed vroject?vLkY have a"potentially significant impact''or a"potentially
significant unless mitigated impact" on the environment,but at least one impact(1)has been
adequately analyzed in an earlier document pursuant to applicable legal standards, and(2)has El
-been addressed by mitigation measures based on.the earlier analysis as described on-attached
sheets. An'ENV IRONMENTAL IMPACT REPORT is required,but it must analyze only
the effects that remain to be addressed.
I find that although the proposed project could have a significant effect on the environment,
because all potentially significant effects(a)have been. analyzed adequately in an earlier EIR
or NEGATIVE DECLARATION pursuant to applicable standards, and(b)have been avoided
or mitigated pursuant to that earlier EIR or MEGA THE DECLARATIONTIT, including revisions
Ll-
ormitic, on measures that are imposed upon the proposed project nothing further is
required.
Signatare Da
Rosemary Medel 77,
Printed Name Title
Item 8. - 28 HB
EVALUATION OF E'N171RONTMENTAL DIPACTS:
1. A brief explanation is required for all answers except"'No Impact'answers that are adequately supported by
the infon-nation sources a lead agency cites in the parentheses following each question. A"No Impact"answer
is adequately supported if the referenced information sources show that the impact simply does not apply to the
project. A"No Impact" answer should be explained where it is based on project-specific factors as well as
general standards,
2. AJl answers must take account of the whole action involved. Answers should address off-site as well as on-,
A as well as direct,and construction as well as operational
site. cumulative as well as project-level,indirec erati
impacts.
3. "Potentially Significant Impact"is appropriate, if an effect is significant or potentially significant, or if the lead
agency lacks information to make afinding of insignificance. If there are one or more'Potentially Significant
Impact" entries when the determination is made, preparation of an Environmental Impact Report is warranted.
4. Potentially Significant Impact Unless Mitigated" applies where the incorporation of mitigation measures has
reduced an effect from"Potentially Significant Impact"to a"Less than Significant Impact." The lead agency
must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant
level (mitigation measures may be cross-referenced).
5 program EIS
or other CEQA process, an effect
Earlier analyses may be used where, pursuant to the tiering.
has been adequately analyzed in an earlier E1R or negative declaration, Section 15063(c)(3)(D). Earlier
analyses are discussed in Section XIX at the end of the checklist.
6. References to information sources for potential impacts(e.g.. general plans, zoning ordinances)have been
incorporated into the checklist. A source list has been provided in Section XLK Other sources'-used or
individuals contacted have been cited in the respective discussions.
7. The following checklist has been formatted after Appendix G of Chapter 3, Title 14, California Code of
Regulations,but has been augmented to reflect the City of Huntington Beach's requirements.
SA JUPLE Q UESTIOA�' potentially
signrlcw2t
Potentially Unless Less Than
Significant Mitigation Signrf,cort
ISSUES(and Supporting Iqfornzation Sources): Impact Incorporated In-irpact No Impact
Would the proposal result in or expose people to potential impacts
involving:
Landslides? (Sources: 1, 6) F-1
Discussion: Thx attached source list explains that I is the Huntington
Beach General Plan and 6 is a topographical snap of the area which
show that the area is located in aflat area (Note: 777.is response
probably would not require further explanation).
V - 29
HB -227- Item 8.
Potentially
Significant
Potentially Unless Less Than
Significant Mitgation Significant
ISSUES (and Supporting Information Sources): Impact Incorporated Impact No Impact
I. LAND USE AND PLANTINTING. Would the project:
a) Conflict with any applicable land use plan,policy, or El 11 El
regulation of an agency with jurisdiction over the project
(including, but not limited to the general plan, specific plan,
local coastal program, or zoning ordinance) adopted for the
purpose of avoiding or mitigating an environmental effect?
(Sources:1,3,4)
Discussion: The proposed project involves the establishment of a Senior Residential Overlay Zoning District
and designation of 10 existing senior mobilehome parks with.the Senior Residential Overlay, The proposed
project would be consistent with the following goals and policies of the Land Use and Housing Elements of the
City's General Plan:
Policy,HE 1.5 Protection of Existing Affordable Housing: Work.with property owners,tenants, and non-profit
purchasers to facilitate preservation of assisted rental housing at risk of conversion to market rents.
Policy HE 2.1 Variety of Housing Choices: Provide site opportunities for development of housing types, cost
and location, emphasizing locations near services and transit that promote walkability.
Policy HE-5.2 Housing Options for Seniors: Support development and maintenance of affordable senior rental
and ownership Housing and supportive services to facilitate maximurn independence and the ability of seniors
to remain in their homes mid/or in the community.
0 ectiveLU9,5: Provide for the development of housing for senior citizens,the physically and mentally
challenged, and very low, low, and moderate income famili es.
0bjecdveLU15.6: Facilitate the preservation and development of Residential Mobilehome Parks.
The project would be consistent with.the goals, objectives and policies listed above because the project creates
an overlay to designate existing senior mobilehome parks with the Senior Residential designation in an effort
to retain existing senior housing. The proposed project.does not propose an increase in densities and does not
include any construction activities. None of the 1.0 parks are located within the Coastal Zone. The eight
existing family parks would, not-ot be affected
d by.1 the overlay.-No impact would occur.
b) Conflict with any applicable habitat conservation plan or
natural community conservation.plan?(Sources:1,3,4)
Discussion: See discussion under c.
c) Physically divide an established community? (Sources:1,3,4) ❑ El
Item 8. - 30 IIB -228- ATT 0 -3
Potentially
SierZ�nificaut
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting Information Sources): linpact Incorporated Impact No Impact
Discussion b-c: The establishment of a Senior Residential Overlay District and designation of 10 existing
senior mobilehome parks with the—SR Overlay does not involve any physical changes to,existing senior or
family mobilehome parks. The project would not change the allowable uses on any property and would not
necessitate any operational changes to existing senior mobilehome parks that would physically divide an
established mobilehome park community. In addition,the project Nvould not conflict with aqy',4pplicgble
habitat conservation plan or natural community conservation plan as there are none adopted for the City of
Huntington Beach. No impacts would occur.
H. POPLTATIO SANDRQU SING. Would the project:
a) Induce substantial population growth in.an area,either El El ❑
directly(e.g.,by proposing new homes and businesses)or
indirectly(e.g.,through extensions of roads or other
infrastructure)? (Sources:-'))
Discussion: The proposed proj ect is for the irriplementation of a Senior Residential Overlay District. The
proposed project does not include the construction of any new homes or businesses that would introduce any
new population growth and would.not result in any impacts to existing infrastructure or necessitate any new
infrastructure. No infrastructure upgrades are proposed as a result of this project. No impact would occur.
b) Displace substantial numbers of existing housing, El El ❑
necessitating the construction of replacement housing
Z-1
elsewhere? (Sources-3)
c) Displace substantial numbers of people, necessitating the El
construction of replacement housing elsewhere? (Sourees:3)
Discussion b-c: The project would not result in the displacement of any existing housing or people. The-
SR Overlay, designation.would be placed on 10 existing senior mobilehome parks and would not affect
existing family parks such that the existing residents would be displaced. Within the proposed—SR Overlay,
at least 80 percent of the spaces in a—SR designated mobilehome park are required to be occupied by at least
one person 55 years of age or older. The 10 existing senior mobilehome parks proposed to be designated
with the—SR Overlay met this requirement as of July 31,1. 2,013. However, if any of the 10 senior
mobilehome parks falls below the minimum 80 percent requirement prior to the proposed—SR Overlay
becoming effective,non-qualifying residents would be allowed to continue living in the mobilehome park. If
and when non-qualifying residents cease to occupy a space or mobilehome in the park,that - -
space/mobilehome would be required to be rented to age qualifying occupants. Therefore, no residents
would be displaced as a result.of the adoption of the-SR O-verlay, district. NLo impact would occur.
1ILGEOLOGY-A—N-D SOILS. Would the project:
a) Expose people or structures to potential substantial adverse
effects, including the risk of loss, injury, or death involving:
i) Rupture of a known earthquake fault, as delineated on El El El
the most recent Alquist-Priolo Earthquake I Fault-9-Zoning
HB -22
EN
N1 ` Item 8- - 31
P V
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting Information Sources):
Impact Incorporated Impact NTTo Impact
Map issued by the State Geologist for the area or based
on other substantial evidence of a known fault 9
(Sources:1,3,511)
ii) Strong seismic ground shaking?(Sources:1,3,55,11) E] El
iii) Seismic-related ground failure, including liquefaction? El ❑
(Sources:1, 2)
iv) Landslides? (Sources:l, 3) El El ❑
b) Result in substantial soil erosion,loss of topsoil, or changes in
topog aphy or unstable soil conditions from excavation, ❑ El
grading, or fill? (Sources:1.3,5)
c) Be located
cated on a geologic unit or soil that is unstable, or that
would become unstable as a result of the project, and El El El
potentially result iii on or off-site landslide, lateral spreading,,
subsidence. liquefaction or collapse? (Sources:1,3,5)
d) Be located on expansive soil, as defined in Table 1.8-1-B of
the Uniform Building Code(199A), creating substantial risks
r El 11 El
to life or property? (Sources:1,31,55)
e) Have soils in-capable of adequately supporting the use of
septic tanks or alternative waste water disposal systems El ❑ El
where sewers are not available for the disposal of
wastewater') (Sources:1,3,55)
DIsWssion a-e: The proposed Senior Residential.Overlay District and designation of 10 existing senior
mobilehome parks with the Overlay designation:does not propose or necessitate construction or development
with the potential to result in geology and soils impacts. The provisions of the proposed Senior Residential
Overlay District ordinance are limited to occupant and age verification criteria and related operational
standards: No physical or operational changes that could affect geological conditions result in soil
disturbance, or expose people to risks related to seismic hazards and unstable soil conditions would be
required. Therefore, no impacts would occur.
IN7.HN-DROLOGY AND WATER QUALITY. Would the
project:
a) Violate any water quality standards or waste discharge
requirements? (Sources:3)
b) Substantially deplete groundwater supplies or interfere
substantially with groundwater recharge such that there
lowering would be a net deficit in-aquifer volume or a I ower .1 of the
4 r i
1, -7
P N I f`l
Item 8. - 32 H B -2'3'0- z V ----
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
IS SUES (and Supporting Information Sources): Impact Ln.corporated Impact No Impact
local groundwater table level(e.g.,the production rate of
pre-existing nearby wells would drop to a level which would
not support existing land uses or planned uses for which
permits have been granted? (Sources:3)
c) Substantially alter the existing drainage pattern of the site or
area, th
rough hrough the alteration of the course of a
t� 11 ❑ El
i stream or river, n a manner which would result in substantial
erosion or siltation on or off-site? (Sources:3)
d) Substantially alter the existing drainage pattern of the site or
area, including through the alteration of the course of a
stream or river, or substantially increase the rate or amount
or surface runoff in a mamier which would result in flooding
on or off-site"' (Sources: 3)
e) Create or contribute runoff water which would exceed the
capacity of existing or planned storm-ivater drainage systems ❑ El El yt
or provide substantial additional sources of polluted runoff?;
(Sources:3)
f) Otherw,ise substantially degrade water quality? ❑ El
(Sources:3,6)
g) Place housing within a 100-year flood hazard area as mapped
on a federal Flood Hazard Boundary or Flood Insurance Rate
Map or other flood hazard delineation map? (Sources-3,6) El El
h) Place within a I 00-year flood hazard area structures which ❑ El ❑
would impede or redirect flood flows? (Sources: 3,6)
i) Expose people or structures to a sicyn ificant risk of loss,
,--
injury or death involving flooding, including flooding as a
El El El
result of the failure of a levee or dam? (Sources: 3,6)
j) Inundation by seiche,tsunami, or mudilow? (Sources: 3, 6) 11 El El
k-) Potentially impact stormwater runoff from construction F-1
activities? (Sources:3)
1) Potentially impact stormwater runoff from post-construction El
activities? (Sources: 3)
m) Result in a potential for discharge of stormwater pollutants ❑ El El
from areas of material storage,vehicle or equipment fueling,
vehicle or equipment maintenance(including washing),
waste handling,hazardous materials handling or storage,
delivery areas, loading docks or other outdoor work areas?
- 33
IJB -23 1- Item 8.
✓
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting Information Sources): Impact Incorporated Impact No Impact
(Sources:3)
n) Result in the potential for discharge of stormwater to affect El El 11
the beneficial uses of the receiving waters? (Sources:3)
o) Create or contribute significant increases in the flow velocity El 0 El FX-1
or volume of storinwater runoff to cause environmental
harm? (Sources:3) i
p) Create or contribute significant increases in erosion of the D
project site or surrounding,areas? (Sources:3)
Discussion a-p: The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the-SR Overlay designation would not result in any construction or development with
the potential to impact hydrology and water quality. The provisions of the proposed.Senior Residential
Overlay ordinance are limited to occupant and age verification criteria and related operational standards. No
physical or operational changes that could affect hydrology or water quality would be required.with
implementation of the proposed project.No impacts would occur.
V. AIR QUALITY. Would the project:
a) Violate any air quality standard or contribute substantially to
11 El El
an existing or projected air quality violation? (Sources: 1,7)
b) Expose sensitive receptors to substantial pollutant
concentrations? (Sources: 1,.7)
c) Create objectionable odors affecting a substantial number of
people? (Sources:1,7) El
d) Conflict with or obstruct implementation,of the applicable
air quality plan? (Sources:7) El
e) Result in a cumulatively considerable net increase of any
criteria pollutant for which the project region is non- El ❑ F1
attainment under an applicable federal or state ambient air
quality standard(including releasing emissions which exceed
quantitative thresholds for ozone precursors)? (Sources:1,1/)
Item 8. - 34 HB -232-
Potentiallv
Significant
Potentially Unless Less Tban
Significant Mitigation Significant
ISSUES (and Supporting Information Sources): Impact Incorporated lnnpact No Impact
Discussion a-e: The city has identified the significance criteria established by the applicable air quality
management district as appropriate to make the following determinations. The proposed Senior Residential
Overlay District and designation of 10 exi-sting senior mobilebome parks with the—SR Overlay will not result
in.construction or development nor necessitate the reconfiguration of existing mobilehome parks such that the
impacts to air quality would occur. Sensitive receptors, including senior residents of the inobileboine parks,
would not be exposed to pollutant concentrations in excess of current exposure conditions. In addition,as
discussed in Section I implementation of the Senior Residential Overlay would be consistent with the General
Plan and would not induce population growth, Therefore, the project would not conflict with the AQ_NI4P and
no impacts to air quality will occur.
N71. TRANSPORTATIONnTUFFIC. Would the project:
a) Cause an increase in traffic which is substantial.in relation to
the existing traffic load and capacity of the street system
Z-1
(e.g..result in a substantial increase in either the number of
vehicle trips,the volume to capacity ratio on roads, or
congestion at intersections? (Sources:1,3,4)
b) Exceed., either individually or ciunulatively, a level of service
standard established by the county congestion management ❑ El 11
agency for designated roads or hi-CnhNvays? (Sources:1,3,4)
c.) Result in a change,in air traffic patterns, including either an
increase in traffic,levels or a change in location that results in 11 El El
substantial safety risks? (Sources; 1,3,4)
d) Substantially increase hazards due to a design feature(e.g.,
n El El 11
sharp curves or dangerous intersections)or iicompatible
z1_
uses? (Sources:1,3,4)
e) Result in inadequate emergency access? (Sources:1,3,4) El
f) Result in inadequate parking capacity? (Sources:1,3,4) El El ❑
g) Conflict with adopted policies supporting alternative El El ❑
transportation(e.g.,bus turnouts,bicycle racks)? (Sources:
1,3,4)
Discussion a-cr: The proposed Senior Residential Overlay District and designation of 10 existing senior,
mobilebome parks with the—SR Overlay designation would not result in any construction or development with
the potential to impact traffic and circulation. The provisions of the proposed Senior Residential Overlay
ordinance are limited to occupant and age verification criteria and related operational standards. No physical
or operational changes that could affect traffic, access, circulation or parking would be required. No impacts
would occur.
Item 8. - 3 5
HB -233- 1A
Potentially
Sign cant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting information Sources): Impact Incorporated Impact No Impact
''II. BIOLOGICAL RESOURCES. Would the project:
a) Have a substantial adverse effect either directly or through ❑ 11 El
habitat modifications, on any species identified as a
candidate, sensitive, or special status species in local or
regional plans, policies, or regulations, or by the California
Department of Fish and Wildlife or U.S,Fish and Wildlife
Service? (Sources:1,3)
b) H4,Np,a substantial adverse effect on any riparian habitat or
other sensitive.natural community identified in local or El El El
regulations,regional plans, policies re, ons, or by the Califoi-nia
Department of Fish and Wildlife or US Fish and Wildlife
Service? (Sources: 1,32)
c) Have a substantial adverse effect on federally protected
wetlands as defined by Section 404 of the Clean Water Act El El El
(including but not limited to,marsh,vernal pool,coastal,
etc.)through direct removal, filling;hydrological
interruption, or other means'? (Sources:1, 3.)
d) Interfere substantially with the movement of any native ❑ El
resident or migratory fish or wildlife species or with
established native resident,or migratory wildlife.corridors or
impede the use of native wildlife nurser),sites? (Sources:
location map)(Sources: 1,3)
e) Conflict with any local policies or ordinances protecting
biological resources,such as a tree preservation policy or
El El ❑
ordinance? (Sources: 1,3)
f) Conflict with the provisions of an adopted Habitat
Conservation Plan,Natural Community Conservation Plan, El El
or other approved local, regional, or state habitat
conservation plan? (SouTees:1,3)
Discussiona-f: The proposed project would establish a Senior Residential(-SR)Overlay district and
designate 10 existing senior mobilehome parks with the proposed—SR Overlay. No construction is proposed
or required as part of the—SR Overlay implementation. The existing senior mobilehorne park sites are
developed and implementation would not effect existing vegetation on these sites or impact any local or
regional. sensitive habitats. The project will not result in the disturbance of nesting species protected by the
-Migratory Bird Treaty Act QN—IBTA),-,which protects over 800 species, including geese,ducks, shorebirds,
raptors, singbirds,and many relatively common species. T'he project therefore,has no impact potential for any
adverse effects to plant and wildlife recourses or their habitat.
4
Item 8. - 36 HB -234-
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and SuTporting Information Sources):
Impact Incorporated Impact No Impact
V111. ARNER-A-L RESOURCES. Would the project:
a) Result in the loss of availability of a known mineral resource
F1
that would be of value to the region and the residents of the
state? (Sources-.3)
b) Result in the loss of availability of a locally-important
mineral resource recovery site delineated on a local.general El El D MR
plan, specific plan, or other land use plan? (Sources: 3)
Discussion a-b: The proposed Senior Residential Overlay district and designation of 10 existing senior
mobilebome parks with the—SR Overlay designation does not propose or necessitate construction or
development with the potential to result in impacts to mineral resources. There will be no loss of availability
of a known mineral resource or recovery site. Therefore, no impacts would occur.
IX.HAZARDS AND HAZARDOUS MATERIALS.
Would the project:
a) Create a significant hazard to the public or the environment 11 El
through the routine transport, use, or disposal of hazardous
materials? (Sources: 2,9)
b) Create a.significant hazard to the public or the environment
through reasonably foreseeable upset and accident conditions 13 El
involvinc,the release of hazardous materials into the
L,
environment? (Sources: 3),10)
c) Emit hazardous emissions or handle hazardous or acutely
hazardous material,substances, or waste within one-quarter El QD 5-cl
mile of an existing or proposed school? (Sources: 3,10)
d) Be located on a site which is included on a list of hazardous
materials sites compiled pursuant to Government Code ❑ El
Section 659621.5 and,as a result would it create a significant
hazard to the public or the environment? (Sources:3,10)
e) For a project located within an airport land use plan or,
where such a plan has not been adopted,within two miles of
a public airport or pubic use airport,would the project result 11 El rX
in a safety hazard for people residing or working in the
project area? (Sources:3,10)
f) For a project within the vicinity of a private airstrip,would
the project result in a safety hazard for people residing or El
working in the project area? (Sources: 3,10)
1413 -235- i7l, Item 8. - 3 7
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting Information Sources): Impact Incorporated Impact No Impact
g) Impair implementation of or physically interfere with an
adopted emergency response plan or emergency evacuation
El El 11
plan? (Sources: 3,10)
h) Expose people or structures to a significant risk of loss,
injury, or death involving wildland fires, including where ❑
Z� - El 11
wildlands are adjacent to-urbanized areas or where
residences are intermixed with wildlands? (Sources: '),10)
Discussion a-lay The proposed Senior Residential Overlay District and designation of 10 existing senior
mol5ileh.ome parks with the—SR Overlay designation would not result in any construction or development
--vith the potential to create hazards or increased risks from the release of hazardous materials. The
provisions of the proposed Senior Residential Overlay ordihance are limited to occupant and age verification
criteria and related operational standards. No physical or operational changes that could increase impacts
due to hazards or hazardous materials would be required. Therefore,no impacts would occur.
X. NOISE. Would the project result in:
a) Exposure of persons to or generation of noise levels in ❑
excess of standards established in the local general plan or
noise ordinance, or applicable standards of other agencies?
(Sources:3,12)
b) Exposure of persons to or generation of excessive
groupidborne vibration or groundbome noise levels? ❑ El ❑
(Sources:'),12)
c) A substantial permanent increase in ambient noise levels in
the project vicinity above levels existing without the project? El ❑ El
(Sourc.es:3.12)
............-------- ..........
d) A substantial temporary or periodic increase in ambient
noise levels in the project vicinity above levels existing El 11 ❑
without the project? (Sources:2,12)
e) For a project located within an airport land use plan or,
where such a plan has not been adopted,within two miles of
a public airport or public use airport,would the project ❑ El El
expose people residing or working in the project area to
excessive noise levels? (Sources: 3,12)
f) For a project within the vicinity of a private airstrip,would
�j �3,
Item 8. - 38 HB -23 3 6-
—1-
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting Information Sources): Impact Incorporated Impact No Impact
the project expose people residing or working in the project El MY-
area to excessive noise levels? (Sources:3, 12)
Discussion a-f. The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the—SR Overlay designation would not result in any construction or development
which.would increase or generate noise to surrounding uses. The provisions of the—SR Overlay ordinance
would not require physical or operational changes to any existing mobilehome park such that permanent or
temporary increases in noise levels would result. No impacts would occur.
-X1.PUBLIC SERVICES. Would the project result in substantial
adverse physical impacts associated with the provision of new or
physically altered governmental facilities,the construction of
which could cause significant environmental impacts, in order to
maintain acceptable service ratios,response times or other
performance objectives for any of the public services:
a) Fire protection? (Sources:1,3) El
b) Police Protection? (Sources 1,33) El ❑ 0 FRI
c) Schools? (Sources:1,3) El
d) Parks? (Sources:1,3) El ❑ El
e) Other public facilities or governmental services? L1 El ❑
(Sources:1,3)
Discussion a-e: The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the—SR Overlay would not result in any construction or development with the
potential to impact public services. The provisions of the proposed Senior Residential Overlay ordinance are
limited to occupant and age verification criteria and related operational standards. Additionally, existing
family parks would not be required to convert to senior parks and potentially increase calls for police and fire
service.
The proposed ordinance would require monitoring and inspections by City staff. However,the provisions of
the
—SR Overlay require,updates every two years and would involve a minimal number of sites relative to the
entire City. There-fore,monitoring and inspections as a result of the proposed project would not place
substantial additional demand on public services resulting in decreased performance objectives or the need
for additional funding for staff. No other physical or operational changes that could affect public services
are anticipated. Therefore, less than significant impacts would occur.
XII. UTILITIES AND SERVICE SYSTEMS. Would the
project: -17
HB -237-
Item 8. - 39
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and,Supporting Information Sources): Impact Incorporated Impact No Impact
a) Exceed wastewater treatment requirements of the applicable
Regional Water Quality Control Board? (Sources-3)
b) Require or result in the construction of neNv water or
wastewater treatment facilities or expansion of existing
C> El E] El
facilities,the construction of which Could cause significant
environmental effects? (Sources:3)
c) Require or result in the construction of new storin water
drainageI I facilities or expansion of existing facilities,the ❑ El ❑
construction of which could cause significant environmental
effects? (Sources:3)
d) Have sufficient water supplies available to serve the project
from existing entitlements and resources, or are new or El El ❑
expanded entitlements needed? (Sources:3)
e) Result in a determination by the wastewater treatment
provider which serves or may serve the project that it has El El El DWI
adequate capacity to serve the projeef s projected demand in
addition to the provider's existing commitments?
(Sources:3))
f) Be served.by a landfill with sufficient permitted capacity to
accommodate the project's solid waste disposal needs? El
(Sources-.3)
g) Comply with federal, state, and loCal statutes and regulations
related to solid waste? (Sources:3) El El
h-)---Jmc-lude a new orretro-filted-storm water-treatment-control ............
Best Management Practice (BNV), (e.g.water quality
treatment basin, constructed tTeatment wetlands?)
(Sources:3)
Discussiona-h- The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the Overlay designation would not result in any construction or development with the
potential to impact utilities or service systems. The provisions of the proposed Senior Residential Overlay
ordinance are limited to occupant and age verification criteria and related operational standards. No physical
or operational Charges that could affect utilities or service systems are anticipated,thus no impacts would
occur.
XHL AF-.STHETICS. Would the project.
a) Have a substantial adverse effect on a scenic vista? El D
(Sources:1, 3)
47-k jT r--qqp1
Item 8. - 40 H13 -238-
;�-k
Potentially
Siziaificant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Suppoiting,Information Sources): Impact Incorporated Impact No Impact
b) Substantially damage scenic resources, including,but not
limited to, trees,rook outcroppings,and historic buildings ❑ El El Fx�
within a state scenic highway*? (Sources:1,3)
c) Substantially degrade the existing visual character or quality
of the site and its surroundings'? (Sources:1,3) El 0 El
d) Create a new source of substantial light or glare arewhich
FRI
would adversely affect day or nighttime views in the area?,
(Sources:1.3)
Discussion a-d: The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the Overlay desic,,nation would not result hi any construction or development with the
potential to impact aesthetics. The provisions of the proposed Senior Residential Overlay, ordinance are
limited to occupant and age verification criteria and related operational standards. No physical or operational
r
changes are proposed that.could impact aesthetics. Therefore,no impacts would occur.
V. CULTURAL RESOURCES. Would the project:
a) Cause a substantial adverse change in the significance of a
historical resource as defined in 815064.5? (Sources:1,3)
b) Cause a substantial adverse change in the significance of an
archaeological resource pursuant to 815064.59 (Sources:
F1 El El
1.3)
c) Directly or indirectly destroy a unique paleontological
resource or Site Unique geologic feature9 (Sources:1, 3)
Z� D El 11
d) Disturb any human remains, including those interred outside
of formal cemeteries? (Sources:I,3) El
Discussiona-d. The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the Overlay designation would not result in any physical changes to the environment,
includinc, construction or demolition,with the potential to have significant impacts to cultural or historic
resource I s or disturb human.remains. The provisions of the proposed Senior Residential Overlay ordinance are
limited to occupant and age verification criteria and related operational standards. No physical or operational
changes that could affect cultural.resources will occur. Therefore,no impacts would occur.
V. RECREATION. Would the project:
a) Would the project increase the use of existing neighborhood, El
community and regional.parks or other recreational facilities
such that substantial physical deterioration of the facility
would occur or be accelerated;' (Sources:1,3)
HB -239- P-1 Item 8. - 41
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant
ISSUES (and Supporting Information Sources):
Impact Incorporated Impact No Impact
b) Does the project include recreational facilities or require the
construction or expansion of recreational facilities which
might have an adverse physical effect on the environment?
(Sources:1)
c) Affect existing recreational opportunities?(Sources:1,3) El 11 0 . my-
Discussion a-c: The proposed Senior Residential Overlay District and designation of 10 existing senior
mobilehome parks with the Overlay designation would not result in any construction or development with the
potential to impact recreation facilities. The provisions of the proposed Senior Residential Overlay ordinance
are limited to occupant and age verification criteria and related operational standards. No physical or
operational changes that could affect recreation resources will occur. Therefore,no impacts would occur.
.XV1. AGRICULTURE RESOURCES. In determining whether
impacts to agricultural resources are significant environmental
effects, lead agencies mav refer to the California Agricultural
Land Evaluation and Site.Assessment Model(1997)prepared
by the California Dept. of Conservation as an optional model to
use in assessing irripacts on agriculture and farmland. Would
the project:
a) Convert Prime Farmland.Unique Farmland, or Farmland of El El 11
Statewide Importance(Farmland), as shown on the maps
prepared pursuant to the Farmland Mapping and Monitoring
Program of the California Resources Agency,to non-
agricultural use? (Sources: 3,4)
b) Conflict with existing zoning for agricultural use, or a
Williamson Act contract? (Sources:'),4) El El El
c) Inv,olve other changes in the existing environment which,
.....................
Farmland,to non-agricultural use? (Sources: 3.4)
Discussion a-c: The proposed Senior Residential Overlay District and designation of 10 existing senior
mob ilehome parks with the Overlay designation would not result in any construction or development with the
potential to impact agricultural resources. The provisions of the proposed Senior Residential Overlay ordinance
are limited to occupant and age verification criteria and related operational standards and could apply to
properties that allow mobilehome park uses. The—SR Overlay would not convert any property designated as
Prime Farmland or Unique Farmland or zoned for agricultural use. No physical or operational changes that
could affect agricultural resources are proposed. Therefore,no impacts would occur.
Item 8. - 42 HB -240-
Potentially
Significant
Potentially Unless Less Than
S ignificant Mitigation Significant
IS SUES (and Supportin,:,,Information Sources): Impact Incorporated Impact No Impact
-XVII. MANDATORY FINDINGS OF SIGNIFICANCE
a) Does the project have the potential to degrade the quality of the 1:1 El El
environment, substantially reduce the habitat of a fish or wildlife
species, cause a fish or wildlife population to drop below self-
sustaining levels,threaten to eliminate a plant or animal
community,reduce the number or restrict the range of a rare or
endangered plant or animal or eliminate important examples of
the major periods of California history or prehistory? (Sources:1,
3)
Discussion: The proposed—SR Overlay district and designation of 10 existing senior mobilehome parks with the
—SR Overlay would not result in any construction or development with the potential to impact wildlife or cultural
resources. Since no development is proposed,the project does not have the potential to reduce the habitat of a
fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to
eliminate a plant or animal community., or reduce the number or restrict the range of a rare or endangered plant or
animal. No significant, adverse environmental impacts are anticipated from the project. Therefore,no impacts
would occur.
b) Does the project have impacts that are individually limited,but
cumulativeby,considerable") (-Cumulatively considerable"means
that the incremental effects of a project are considerable when
viewed in connection with the effects of past projects,the effects
of other current projects, and the effects of probable future
projects.) (Sources:1,3)
Discussion b &c: As discussed in Sections I through XVL the project does not propose or require new
construction or uses nor change the allowable uses of the base zoning district on any property. The proposed—
SR Overlay designation would be placed on existing senior mobilehome parks(as of July 31,2013)only."The
project would not contribute to population increase or increases in traffic, air pollutants,noise or other
environmental.effects. Therefore,the project would not have any adverse effects on human beings nor contribute
to cumulatively considerable environmental impacts,
c) Does the project have environmental effects which will cause
substantial adverse effects on human beings, either directly or
indirectly? (So-urces:1,3)
Discussion: See discussion under b,
P�t'A
118 -241- Item 8. - 43
XJX. EARLIER A-NTALYSIS/SOURCE LIST.
Earlier analyses may be used where,pursuant to tiering,program EIR, or other CEQA process, one or more effects
have been adequately analyzed in an earlier EIR or negative declaration. Section 15063 (c)(3)(D). Earlier
documents prepared and utilitized in this analysis,as well.as sources of information are as follows:
Reference 9 Document Title Available for Re-view, at:
I Project Area Location Map Attachment No. I
Legislative Draft-Proposed Senior Residential Attachment No.2
2 (-SR)Overlay District
City of Huntington each General Plan City of Huntington Beach Planning Dept,
Plaiming'Zoning Information Counter,3rd
Floor
2000 Main St
Huntington Beach
4 City of Huntington Beach Zoning and Subdivision
Ordinance
5 City of Huntington Beach Geotechnical Iriputs Report City of Huntington Beach Planning Dept.,
Planning./Zoning Information Counter,3`1
Floor
2000 Main St
Huntington Beach
6 FEMA Flood Insurance Rate Map(February 18,. 2004)
7 CEQA Air Quality Handbook
South Coast Air Quality 1XIanagement District(1993)
8 City of Huntington Beach CEQA Procedure Handbook
Airport 11 r t Forces Training
_ _ Environs Land Use Plan for Join
Base Los Alamitos(Oct. 17,2002)
10 Hazardous Waste and Substances Sites List
11 State Seismic Hazard Zones Map
12 City of Huntington Beach Municipal Code
_7
4
Item -8. - 44 HB -242-
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTIN'GTON
BEACH ADOPTING ZONING TEXT AMENDMENT NO. 13-002 AND AMENDING
THE HUNTINGTON BEACH ZONING AND SUBDIVISION CODE BY ADDING
NEW CHAPTER 228 THERETO ENTITLED"SR SENIOR RESIDENTIAL
OVERLAY DISTRICT"
WHEREAS,the lack of affordable housing options in and around the City of
Huntington Beach continues to create housing problems for senior citizens living in the
City; and
One affordable housing option for senior citizens is a mobilehome park that
permits exclusive residence by those individuals age fifty-five(55)years and older; and
The City of Huntington Beach Housing Element has identified that the senior
segment of the City's population is an ever increasing group with seniors at 65+years of
age representing 14%of the population; and
By the Senior Residential Overlay District permitting the senior category to
commence at age 55 addresses cost and affordability for a large segment of our senior
population; and
The conversion of ten(10) existing senior mobilehome parks may unduly burden
and irreparably harm senior citizens within the community; and
Pursuant to California State Planning and Zoning Law,the Huntington Beach
Planning Commission and Huntington Beach.City Council have held separate,duly
noticed public hearings to consider Zoning Text Amendment No. 13-002,which
establishes the Senior Residential Overlay District; and
After due consideration of the findings and recommendations of the Planning
Commission and all other evidence presented,the City Council has determined that the
aforesaid amendment is proper and consistent with the General Plan,
NOW, THEREFORE,the City Council of the City of Huntington Beach does
hereby ordain as follows:
SECTION1. That Zoning Text Amendment No. 13-002, establishing the
Senior Residential Overlay District as more fully described herein,is hereby adopted and
approved.
SECTION2. That the Senior Residential Overlay District will promote,retain,
and provide affordable housing, and is consistent-,A-ith the Housing Element of the
General Plan.
13-3994/102646
1,ts
1-113 -243- Item 8. - 45
SECTION 3. That the Huntington Beach Zoning and Subdivision Code is
hereby amended by adding new Chapter 228 thereto, entitled"SR Senior Residential
Overlay District"to read as follows:
Chapter 228
SR SENIOR RESIDENTIAL OVERLAY DISTRICT
Sections:
228.02 Senior Residential Overlay District Established
228.04 Zoning Map Designator
228.06 Definition
228.08 Land Use Regulations
228.10 TMinimum Design and Performance Standards
228.12 Removal of the Senior Residential Overlay District or Change of Use
228.02 Senior Residential Overlay District Established
The Senior Residential. Overlay District is intended to promote the maintenance and
viability of existing mobilehome parks through appropriate zoning. It is an overlay-
district where mobilehome parks are established as the primary land use in order to limit
conversion of existing affordable housing to other land uses. The Senior Residential
Overlay District may overlay any property which provides for mobilehome park-
developments.
The Senior Residential Overlay District is established and shall be designated by the
symbol (SR). The (SR) designation applies to all of the ten (10) senior residential
mobilehome parks that existed in the City of Huntington Beach as of the approval on
August 5, 2013 of the City's moratorium ordinance regarding senior mobilehome park
conversions.
228.04 Zoning Map Designator
The Zoning Map shall show all property subject to the provisions of this chapter and
overlay district by adding a**SW' designator to the underlying base zone.
228.06 Definition
Except where the context clearly indicates otherwise,the definition given in this section
shall.govern the provisions of this chapter.
Senior Residential Park. A"senior residential park"means a mobilehome park in which
at least eighty(80)percent of the spaces are occupied by,or intended for occupancy by,
at least one person who is fifty-five (55)years of age or older, or where one hundred
(100)percent of the spaces are occupied or intended for occupancy by persons sixty-two
(62)years of age or older.
2
13-3994/102646
A TTL
Item 8. - 46 HB -244-
228.08 Land Use Regulations
At least eighty(80)percent of the spaces in mobilehome parks in the Senior Residential
Overlay Districts shall be occupied by at least one person fifty-five (55)years of age or
older. If an existing mobilehome park met this qualification on August 5, 2013, and fell
below the eighty(80)percent requirement between that date and the effective date of this
ordinance codified.in this section,the Senior Residential Overlay District shall be applied
to that mobilehome park and the park shall be required to operate as a senior residential
part`by renting spaces and mobilehomes only w1en at least one occupant of the
mobilehome is fifty-five (55)years of age or older. The signage, advertising,park rules,
regulations,rental agreements and leases for spaces in a senior residential park in the SR
Overlay District shall state that the park is a senior residential park. Pursuant to Section
228.06 Definitions and as of the effective date of the ordinance codified in this section,
the senior residential parks in the SR Zoning District are: Rancho Del Rey Mobilehome
Park, Skandia Mobilehome Park,Huntington Harbor Mobilehome Park, Sea Breeze
Mobilehome Park,Beachview Mobilehome Park,Los Amigos Mobilehome Park,
Brookfield Manor,Del Mar Mobilehome Park,Mariners Pointe,Rancho Huntington
Mobilehome Park.
Spaces and mobilehomes in senior residential parks shall be rented only to occupants
who meet the age requirement set forth in Section 228.08 above,provided, however,that
if the occupants of a space or mobilehome who do not meet this requirement rented the
space or mobilehome before the effective date of the ordinance codified in this section,
they shall be allowed to remain;and provided further that when such occupants cease to
occupy a space or mobilehome;the mobilehome and space cannot thereafter be rented
except to occupants who meet the age requirements set forth in this section.
228.10 Minimum Design and Performance Standards
The signage, advertising, leases, and park rules and regulations for spaces in senior
residential parks shall state that the park is a senior residential park. Each senior
residential park shall have procedures for verifying that it qualifies as a senior facility
under applicable federal and/or state law, including documentation establishing that at
least eighty (80) percent of the mobilehoznes or spaces in the mobilehome park are
occupied by at least one resident who is fifty-five (55) years of age or older. These
procedures shall provide for regular updates, through surveys or other means of initial
information supplied by the occupants of the mobilehome park. Such updates must take
place at least once every two years. A summary of this occupancy verification
documentation shall be available for inspection upon reasonable notice and request by
City officials.
228.12 Removal of the Senior Residential Overlay District or Change of Use
A zoning map amendment to remove the SR overlay designation or approve a change of
use shall be subject to the provisions of Chapter 234 and 247. Removal of the SR overlay
designation or approval of a change of use within the coastal zone shall require an
amendment to the Local Coastal Program approved and effectively certified by the
Coastal Commission.
13-39941102646
L }'HB -245-
` Item 8. - 47
SECTION 4. This ordinance shall take effect thirty days following its adoption.
PASSED ARID ADOPTED by the Cite-Council of the City of Huntington Beach
at a regular meeting held on >20
Mayor
ATTEST: APPROVED S TO FORM:
City Clerk. CZ, City Attoruey
REVIEWED AND APPROVED: INITIATED AN?D APPROVED:
City Manager Director of Planning and Building
I3-3994/102646
Item 8. - 48 1413 -246-
{
I
Mobile Home Parks
I
` City of
r`� ---- Huntington Beach
Ji
\ , u I
]1 r�
❑ I /vk,\
�,. w; e
s
I
3� 3
]ZJ 2
Seniors Mobile Home Park \
v
All Ages ivSot le Home Parks
f C:rastat Zone Boundary
L ,
Pack.,Idar ,Carnra.s., iddre Sgaces .'Atre Spaeesperfiiie I
I Rancho Pei Rey Mobile Hoare Pari: I(i..22 Mo.,erey 379 49.7 7.6 -
2 Skar3i Mobile FIsrx Park 15444 Boka Chicx 167 17.4 9.5' \
Fiun9on Harbor 3'L^bile Fiorc>z P�-k 16400 Saybrook 130 15.0 8.7 \ � �`a i
4 Sea Breeze Mohk Home Palk 5200 Heil 66 4.7 14.0
5 Beech'new Mobile Home Park 17261 Gotiarc 83 5.6 14.9 \ \ I
6 i.os Arrgos MoNc Home Park 18601 New'and 145 19.1 7 6 _ - -
I BRiek%:d Manor 9850 Ga:fvld 139 16.4 8.5
8 Pel3dar Mobuz Homes 19251 IIrooklnas[ 142 1.5.7 9.0 -� a
o Ma:mers Pointe 19350 Ward 98 10,8 9.0
10 Raiho Hudxngen Mobile Home Park 19361 Bry Snrst 194 223 F,D:
ourl l. 1,543 17»
.Par'k=.'Game,Jr*
11 Sc Aua MobHe Home Park 6241 63CI Wamer 231 22.5 103
12 'Vlla Hwdmgton Mobie Iiome Park 7850 S1afe.- 125 13.7 91
\ t
13 Ooam Vi wEsratc 7051 Eks 44 9.0 4.9 ,
14 H nt m.3,o..Ivlobk I:sta'es 7652 Gc:n.l3 I.5 7.E 13 8 cnUTION
IS Ii>r,tin,;:an Shu:ec3rt1 20701 Brach Blvd. 304 372 £2 WHEN USING Tv,S MAP
E5 Pacific MobileHe—Parr, 80 Fiumington 257 1£.2 141
17 Cabrillo Mgt Group 217a2 Pa:oc Coast 33 50r
]8 Hrmtmgzn By The Sea 21851 New�nd 307 31.9 9.6
SubtoW(.5 Ages) 1,40E 4;
-47 �HB -247-
Item 8. - 49
Print Request Page 1 of I
Request: 16873 Entered on: 1211112013 12:39 PM
— Customer Information
Name:Jane Patterson Phone:(714) 965-7820
Address: 18601 Newland St#35 Alt. Phone:
Huntington Beach, CA Email:jn,patterson@verizon.net
92646
Request Classification
To pic:Planning Commission-Comments Request type:Comment
on Agenda Items
Status:Open Priority:Normal
Assigned to:Rosemary Medel Entered Via:Web
Description
Comment on the Draft Mitigated Negative-Declaration for SR Overlay District for Mobile Home
Parksdirected to Rosemary Medel, Associate Planner- My husband and I have just returned from the
Central Library where we had the opportunity to review and copy the proposed declaration-We live in Los
Amigos Park and are very much in support of the declaration and took forward to attending the study
session in January. Sincerely, Jane & Gene Patterson
18601 Newland Street Spc 35, HB 92646
—Reason Closed
Date Expect Closed: 12/21/2013
Enter Field Notes Below
Notes:
Notes Taken By: —Date:
T_r'lrPIMENT N .
Item 8. - 50 HB -248-
Ppc=fvsD r� 1-71
t. of Play,"I,n
Ace-
E ,Z
14
LL/Vvn'✓1(/( �i
HB -249- " � 1tem 8. - 51
November 23, 2013 DEC 02 2013
Attn: Rosemary Medel, Associate Planner Oept. of Planning
& Bulling
City of Huntington Beach Planning &
Building Department
2000 Main Street
Huntington each, CA 92648
Dear Ms. Meel,
As residents of Los Amigos Mobilehome Park, 18601 Newland St.,
Huntington each, we strongly support the proposed (-SR ) Overlay.
We moved into this mobilehome park specifically because it was
designated as a senior mobilehome park.
The protection of affordable senior housing is essential so that elderly
citizens can continue to live in Huntington each.
We appreciate the efforts of the City of Huntington each to
establish criteria to preserve and protect our designation as a senior
mobilehome park.
Sincerely,
The residents of Los Amigos Mobilehome Park
(See attached signatures)
No.
Item 8. - 52 HB -250-
As residents of Los Amigos Mobilehome Park,
18601 Newland St., Huntington Beach
we support the proposed
Senior Residential(-SR) Overlay District for Mobilehome Parks.
ame Space
. �
w
SIB -251- 1
TAC, _ #, 'g YT � , ..Item 8. - 53
�� ,,.f:�
As residents of Los Amigos Mobilehome Park,
18601 Newland St., Huntington each
we support the proposed
Senior Residential(-SR) Overlay District for Mobilehome Parks.
Name space #
................
44
z
WT Ni
Item 8. - 54 HB -252-
As residents of Los Amigos Mobilehome Park,
18601 Newland St., Huntington Beach
we support the proposed
Senior Residential{-SR) Overlay District for Mobilehome Parks.
Name Space #
'7 )
9 i
Z7
2-
14B -253- Item 8. - 55
As residents of Los Amigos Mobilehome Park,
18601 Newland St., Huntington Beach
we support the proposed
Senior Residential{-SR} Overlay District for Mobilehome Parks.
Name Space #
C-7
71
Item 8. - 56 MB -254-
As residents of Los Amigos lobilehome Park,
18601 Newland St., Huntington Beach
we support the proposed
Senior Residential(-SR) Overlay District for Mobilehome Parks.
Name Space
EY
14
-R" "'z
J�r
cam. s:a�' 1
�:r P !�'"�..'�Sty �t"�r�j, � P F ~,
HB —255— !r`,.. .r a,t;>. ,. "� ° Item 8. - 57
ATTACHMENT #5
2/14/2014
ZONING TEXT AMENDMENT NO. 13-002,
ZONING MAP AMENDMENT NO. 1 -0 1, and
ZONING MAP AMENDMENT NO. 13- 02
Senior Residential Mobilehome
Park Overlay
City Council Meeting
March 3, 2014
e
® Zoning Text Amendment No. 1.3-002:
To amend the Zoning and SubdiAsion Ordinance to
create Chapter 228 SR Senior Residential Mobilehome
Park Overlay.
* Zoning Map Amendment No. i3-ooi and Zoning Map
Amendment No. 13-002:
Establish the Senior (-SR) Overlay designation for the
ten existing senior mobilehome parks.
1
Item 8. - 58 xB -256-
2/14/2014
• July 15, 2013, City Council directed staff to prepare a
draft interim ordinance to commence the process of
retaining io existing senior mobilehome parks
citywide as senior parks.
• August 5, 2013 City Council adopted Ordinance No.
3986, establishing a moratorium.
• September 16, 2013, moratorium was extended until
April 30, 2014, reflecting a reduction in the processing
time.
nonCommission
• Study Session held with the Planning Commission on
January 1.4, 2014.
• Public Hearing conducted by the Planning Commission on
January 28, 2014.
• The Planning Commission:
• Approved Negative Declaration No. 13-001:
• No significant impacts
• Prepared pursuant to HBZSO and CEQA
• Recommended approval of Zoning Text Amendment
No. 13-002, Zoning Map Amendment No.13-oo1 and
Zoning Map Amendment No. 13-002.
HB -257- Item 8. - 59
2/14/2014
Mobile Home Parks There are total of 18
T T
,-- - F� mobilehome parks located
i�
within the City of
Huntington Beach.
i -Establish the Senior
Residential{-SR)Overlay
designation on eight
k existing senior
mobilehome parks
(excludes parks r and 3).
_ �Q
Y�
5�
°Ten existing senior
mobilehome parks are
1'
located within the city.
{J (two parks processed cruder
jL 1i
�
+-- `1 +a'
a
z A No. 13-002
• Establishes—SR Senior Residential Mobilehome Park
Overlay designation for Rancho Del Rey and
Huntington Harbor Mobilehome Park.
• No mobilehome parks are located within Coastal
Zone,these two parks are located adjacent to the
Coastal Zone boundary.
• if approved, City must forward Zoning Map
Amendment No. 13-002 to Coastal Commission, as a
minor amendment to the City's certified Local
Coastal Program.
® Ordinance becomes effective 30 days after the
second reading because no changes occur within the
coastal zone.
3
Item 8. - 60 HB -258-
2/14/2014
Project sis
• February 2013, United. States Federal Court of Appeals,
Ninth Circuit, determined that a city may establish
protections for senior mobilehome parks under both
federal and state law
• Established the ability for a city to adopt a Senior
Mobilehome Overlay District to restrict a senior
mobilehome from becoming a family park.
• Zoning Text Amendment No. 13-002 was drafted similar to
City of Yucaipa's senior overlay ordinance.
41,
roject
Analysis (cony
• Ordinance requires:
• Design and performance standards procedures.
• Demonstrate that at least 8o%of spaces are occupied 55 years of age
or older or wliere r00%of the spaces are occupied by a person 6r
years of age or older.
• These two exemptions are pursuant to federal.housing l.aw.
• Compatibility:
• Seniors raised significant concerns related to their quality of life
should parks be converted to family parks.
• The proposed ordinance fosters compatibility since land use and
operations remain the same in.senior parks.
xB -259- Item 8. - 61
2/1.4/201.4
W m"' �
Project a sis cont'd)
• Zoning Map Amendment No. i3-ooz and No. 13-002
would amend City zoning maps to add -SR Senior.
Residential Mobilehome Park Overlay designation to
these io mobilehome parks.
® These parks are existing senior parks be age restricted.
® The overlay designation will prevent the conversion of
these existing senior parks to family parks.
® The eight remaining non-senior parks would not be
affected by the proposed -SR Overlay district.
ar
• Mobilehomes provide a more affordable housing option
for seniors.
® The 18 mobilehome parks found citywide provide 2,949
mobilehome spaces.
• Overlay will enable 1,543 spaces (52%) to be designated
as existing senior mobilehome parks.
• Senior Mobilehome Park Ordinance is consistent with
City Council direction to draft an ordinance that will
retain existing senior mobilehome parks in compliance
with federal and state law.
5
Item 8. - 62 HB -260-
2/14/2014
07-
® Staff recommends approval of Zoning Text Amendment
No. 13-oo2., Zoning Map Amendment No. 13-ooi.and Zoning
Map Amendment No. 13-002 based on the follouving
findings:
* Consistent with.City Council direction and City
Attorney's recommendations.
* Conforms to the General Plan Land Use and Housing
Elements to provide and retain senior housing options.
Compatible urith existing base zoning and standards for
mobileborne parks.
HB -261- Item 8. - 63
ATTAC W M E fd T #6
Western
Manufactured Housing Communities
January 27, 2014
Chairman Mark Bixby, Planning Commission
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Dear Chariman Bixby:
I am writing in opposition to item number Al Senior Residential Overlay Zone for
Senior Mobile Home Parks.
My organization represents many of the impacted parks that will be affected by
this zoning change. There has been quite a bit of discussion at previous city
council meetings and in the newspapers about issues surrounding Rancho
Huntington. That community is not a member of my association.
I have met personally with several residents concerned about the future status of
their park. Park owners can appreciate the concern and stress that rumors and
speculation of uncertainty can bring residents. Admittedly, there are many
aspects of keeping a community senior that owners enjoy. However, permanently
zoning the communities senior is wrong.
First, it ignores market forces that exist in the housing market. There may come a
time in the future when there isn't a robust market for senior housing in mobile
home parks in Huntington Beach. Seniors may decide that the mobile home
living isn't for them and choose another one of their various housing options.
These communities are a business and now the city has placed an undue burden
on these business owners by restricting whom they can rent to.
Secondly, the ordinance discriminates. Perhaps a vacant space cannot be filled
by a senior but by a family that needs affordable housing and finds the
community meets their needs. Why not allow that family an opportunity for home
ownership? Why would the city want to tell that family where they can and can't
afford and what is or is not acceptable.
The city is using this tactic to deal with one park—Rancho Huntington. Without a
doubt, residents from other communities are expressing that this is important to
them too. There is no evidence to suggest that other communities are ready to
convert.. If that were true, there would have been others that noticed residents in
the same manner Rancho Huntington did. From our informal survey of senior
operators they are happy operating as senior but are perplexed as to why they
would be combatively regulated.
AnR?5 Winchester Road,#E-1 65 'Temecula,CA92591
Item 8. - 64 e951.926.0631 ) tax 951.926.8770 1 email julie@paulei f1B -262- 1 web wvvw.wma.org
It would seem there is a sincere disagreement between whether or not Rancho
Huntington is all age or senior. The draft of the city ordinance refers to it as one
of the senior communities. The owner/operator considers Rancho Huntington an
all age community. This is certainly headed to court.
Wouldn't it be a shame if after fitiqation, Rancho Huntington was determined to
have met all requirements to convert tq_al!2age? Forcing this overlay zone to be
applicable to the other owner/operators will unfairly subject them to this
unnecessary regulation.
I wish to offer up a possible middle ground that might meet the needs of the city
and many of the park owners. Perhaps a voluntary MOU or Accord with those
senior operators who agree to remain senior for an agreed amount of time
in lieu of being part of the overlay? A sort of an exemption from the overlay
while at them same time a guarantee to the city and their residents that they will
intent to and will remain senior.
This is a reasonable and sensible approach and accomplishes two important
goals. First, it gives a guarantee to the city that the spaces will remain senior—
the stated purpose from the beginning of this ordinance process. Secondly, the
voluntary agreement doesn't give a heavy-handed regulation that the effected
park owners object to. This idea deserves consideration and the proper vetting
process.
Please reject this overlay map and focus on a solution that is workable for all
parties.
Sincerely,
Julie Paule, Regional Representative
CC' Vice-Chair Erik Peterson
Commissioner Bob Dingwall
Commissioner Mike Posey
Commissioner Dan Kalmick
Commissioner Robert Franklin
Commissioner Edward Pinchiff
HB -263- Item 8. - 65
mHeT
—,)-uF)of DiRECTms
Execative.3aard
presl€"ta
V;emr I3ornburg
Ya,sH sou'.^nf January 2..,8, 2014
Rod Ander,.an
7§•eastaaar
Lee Miller
8rrret¢ni
Nazlie Castagia
Est P es dc,at. Chairman Mark Bixby
Eileencirillo Members of the Planning Comn-lission
'Laur Rscheser City of Huntington Beach
Lauren I'1SChEr ,
StanYagl;l,3r. '1000 Main Street
Lm..McAdoo
Board 17embers Huntington Beach, California 92648
Bob Bendettl
Reber,.,Celdmn
JohnFatrbrother Benda Items B-1a B-1h and B-le
4ay Greening
Richard Hat? Oppose Senior N ohilehome Park Overlay Zoninz
Bill xarks
Jerry Crsi;`claus(s
i�obsnn Honorable Chairman and Members of the Planning Commission:
J.m!§artin
Dd'hnfl l''aT':elieri
Aduicory Corruruttee The Manufactured Housing Educational Trust (MHET) represents mobile home park.
Ta Dnwd ll owners in the Southern California Counties of Orange, Riverside and San Bernardino.
rerrr Dr:wdau g
David Firestone e have been actively involved in opposing the City's efforts to rezone ten
Dave 7 ne,.ita
6residenrs Huntington Beach mobile home parks for the purpose of restricting them as "Senior
ris Residential".
2hillips
W Lee Miller
Robert Olauder Sr.
Gerry Dougl:er,Sr, The owners of the ten mobile home parks impacted by this proposal oppose the
Paul Bostrriek
Janet Gilbert rezoning of their property, Letters are attached from several of the owners expressing
Clarke Fairbrothex
BUeeJone� their opposition to the City taking action to restrict their property rights and stating
Ghe u Tim17
Lars McAdoo that they plan to continue to operate a"senior"community.
,Ihmes Jones
Kektti casenhser
Graig Hauser Robert otander 11 Prior to the City,s action to adopt a moratorium on converting an existing Park from
Stan Magill,Jr.
Eileen cirlllo Housing;for Older Persons (ate 55 and older),no parks were contemplating changing
Lifetime their existing"senior" status.
Achievement
Award Reripients
(A tread°° However, the City's action did cause one Park to notice a change in use to protect
Ro fit',N.West their property right to do so. This was Rancho Huntington. The notice to the park
Loganan A, tenants was legally served and given before the City Council adopted the moratorium..
Lnga,r A.Boggs
rpry E.Harecen e"
harry E.I� Therefore it is not impacted by this change, although the City continues to imply that
Jess Maxon CM PA it does—witness Its inclusion on this action tonight. Rancho Huntington is
VMLk represented by legal counsel who will surely address these issues. However,the Park.
Above and Beyond should not be included in the rezoning because it is not an "existing senior Park".
Award Recipient9
Willis Miller
[tarJ agill
-obs There is no need to adopt this extra layer of government regulation on private
Dar.Jacobs
PaulBostwick
c. property.
Brent SWN�aneon
Jim?efar in
Jaa,es Jones
(Ulu Tra%ge.80
Went,Iser
B.Bonick
Executive Director
Vickie S`�11�=, ,�,§,�41 Pagea de RtfCi:o-Suite 120+Lagectuzr`.'•i.dIs,Gatr'Frri.ia 92655+I'i;.an.r,9Q.v 480.830i•Fc.x:94a.ritiG�.33i C1
y Rvwit:i*r1focIm tat om Hybsite.u u itztict.org
Item 8. - 66 Southern Qd,?fbnaia JVHET St�°t;ing Oran,HB -264-sazd Sau Eernardiizv Covent os sir2-ce 19,52
Page. Two
The following reasons support our request to not adopt the proposed zoning
ordinances regulating and preventing parks from changing from senior to all-age
communities.
The terminology of"Senior Residential" is not accurate.
The proper Federal terminology is"Housing for Older Persons",not"Senior
Residential'. Federal law defines "Senior"housing as housing for elderly, age 62
and older. This designation would be an incredibly severe restriction of property
rights.
The proposed ordinance hurts senior mobile home owners
e When a park is a senior park the mobile home owners who want to sell their
homes are restricted to selling to only 25% of the senior buyers who live in
Huntington Beach and are not allowed to sell to the other 75%of willing buyers
who are not seniors, Countywide the senior population is only 16.5%. Without
the senior restriction,the seller has access to 100% of the buyers. This rezoning
is a dramatic disadvantage to the owners of mobile homes and.will likely result in
a reduction in the value of the mobile homes owned by seniors.
• When mark is designated as a senior-park homes may only be sold to seniors. if
an underage person inherits a mobile home upon the death of a tenant,the
underage person may not move into the park and is forced to sell the home. This
is only one example of the"unintended consequences"of the City trying to
regulate who can and cannot live in mobile home parks. Who will police and
enforce the regulations? Conduct required surveys? Qualify new tenants?Defend
the park owners in housing discrimination complaints?Advertise housing to
conform to zoning as required?Undertake all the requirements of the operation of
the parks required of the city when a zoning law is proposed?The City assumes
all responsibilities for intent to operate,yet there is no direction,budgeting;or
manpower devoted to paying for these new city services.
The findings in the proposed ordinance cannot be supported by facts.
• The reference to the need to protect"Affordable Senior Housing"is misleading
and disingenuous.
• No Huntington Beach mobile home park is designated as affordable housing.
There are absolutely no restrictions on the amount of rent that may be charged,
HB -265- Item 8. - 67
Page Three
the amount a mobile home may be sold for, or the income of the people who may
live in the parks.
• Findings cannot be made that there is a need to preserve the fewer than 1500
mobile home units in Huntington Beach mobile home parks that may be occupied
by seniors. These 1500 units make up only 2% of the total 78,000 total housing
units in the Citv that are available to seniors city-VNride. Additionally, the seniors
living in these mobile homes are an extremely small special interest,group of only
.03% of all of the 47,426 seniors living in the City. And, residency by families
and children,per se, cannot possibly pose a serious or immediate threat to public
health.and safety.
• This proposed zoning action to protect less than .03% of the seniors livinlz in the
City is a potentially extremely costly action for a City with far more important
and pressing financial challenges and, as previously stated, is completely
unnecessary. The City Attorney has already put on the Council's agenda
discussions regarding the threat of litigation by mobile home park owners over
this issue.
The proposed spot zoning targets only mobile home parks,which account for
less than.03% of the City's senior population.
• There is no need to force a very small segment of the City's housing providers to
provide housing onlyfor seniors. There are currently a significant number of
senior housing opportunities in Huntington Beach to provide for the seniors. A
quick search for"senior housing in Huntington Beach" resulted in a variety of
senior apartments, condominiums, and other facilities. Of course,the vast
majority of Huntington Beach seniors live in single-family detached housing.
• The City should not be in the business of telling..propeLty and business avNmers
how to run their business operations when it comes to whom they must choose as
customers. Would the City adopt a similar ordinance that would require
apartment owners, restaurant owners, and other businesses to serve only seniors
who make up only 25% of the City's population?
Better yet, if the city is so concerned about protecting senior housing then perhaps
they should consider identifying the largest apartments in the city and adding the
overlay zoning to those properties as well—or other existing senior housing in the
community! There certainly is an abundance of senior housing that would
qualify.
Item 8. - 68 HB -266-
Page Four
In Huntington Beach the City's 18 mobile home parks are almost evenly split
between all-age and senior communities. The free market system is working.
The City does not have to "fix''it.
For the above reasons we respectfully urge the Planning Commission to reject the
proposal.to regulate mobile home park housing and to not adopt the proposed
rezoning regulations before you that would restrict those who can and cannot live in
the City's mobile home parks.
Sincerely,
Vickie, M. Talley
Executive Director
cc: Huntington Beach Mobile Home Park 0-,A,-ners
Attachments: Mobile Home Owner Letters:
- Rancho Del Rey
- Sea Breeze Mobile Estates
- Skandia Mobile Country Club
- Los Amigos Mobile Home Park
-Huntington Shorecliffs
- Brookfield Manor, Inc.
- Del Mar Mobile Estates, Inc.
-Mariner's Point
HB -267- Item 8. - 69
MOBILE HOME ESTATES
16222 MONTEREY LANE
HUN-nNGTON BEACH,CA 92649
PHONE:(714)846-1429
Januaiy 27.2014
Chairman Mark Bixby
Members of the Planning Commission
City c f Fltm tin_4o n Beach
2000 Main Strteet
Huntdrigon B each,California 92648
RE, Agenda Items B-la,B-lb,and B-1 c
Opposed to Senior Mobile home Park Overlay Zoning
Honorable Chairman Bixby and Members of the Planning Commission;
I am writing as the General Partner on behalf of Houser Bros. Co-,the owners of Rancho Del R07
Mobile Home Estates(- R) and I am oppose to the senior overlay zonin,<,-,plan..
RDR opened in 1965 as an home park and changed that designation to the Federally
defined"Housing for Older Persons" in 1998 in compliance Nvilth Federal law.At no time has RDR
operated as a Federally defined"Senior"mobile home park.
The purchasing o-ILmobile homes in RDR has met the requirements of"Ho using for Older Persons"
under Federal Law since 1988 and has required tbat at least once person living in the mobile home be
at least 55 years of age and any additional residents in the home be 18 years or older,
In2013,half of our-mobile home sales were to buyers under the age of 6_0 but who qualif.cd-Linder the
"H ousing for Older Persons"requirements set by the Federal government.
Requiringl R to identif;,itself as a"Senior residential park"instead of the correct Federal
designation of"Housing for Older PUSODS"is a disservice to the current and future residents of our
mobile home park who find themselves Jim-iing to s edl their mobile homes.This change in identity for
RDR will have a negative effect in the sales of mobile homes to non-senior buyers who Could easily
assume that they will not qualify in a"Senior"park-The rezoning requirements-YNM directly diminish
the market of prospective buyers,to our current and future itsidtnts.
Under Federal Law for"Senior"housing,all residents must be 62 or older.Combining both
designations(Housing for Older Persons and Senior)and calling them"Senior residential pare,ignores
the fact that even though we have seniors-(62+)E ving in RDR we also have resi dents under The age of
62 but are oirer 18 years of age. We still operate in the spirit of the original"Adult"designation we
started Nkri in 1965.
Item 8. - 70 HB -268-
It isxnybeliefthat there is not a single Federally defined"Senior"mobile home park(all resider-is
minimum fit years of age.)in the City of Huntingto-nBeach and that the city position to create a
"Senior"zoning change is nothing more than way to create,the perception that there ara"Senior"
mobile home parks in a city where none.exist.I would also question the legality of taking the tsvo
Federal designations and combining them into one and requiring our park to use a designation that does
not apply to oiz park.
I strongly oppose there z o nm. g of any park in Huntington Beach i us t t o create"Senior"p arks,.RDR has
no plans to convert to family usage as has been e:videut in our neady 50 year history.
Sincerely,
Craig Houser,Gencral Partner
Houser Bros.Co.
Rancho Del Rey Mobile Home Estates
HB -269- Item 8. - 71
Sea Breeze Mobile Estates
aril A 14-0,31-b,i*. CA
January 27, 2014
Chairman Mark Bixby
Members of the Planning Commission
City of Huntington Beach
2000-Main Street
Huntington Beach, California 92648
RE: Agenda Items B-1a,B-1b, and B-le
Oppose Senior Mobilehome Park Overlay Zoning
Honorable Chairman Bixby and Members of the Planning Commission:
I am writing as a Huntington Beach mobile home park owme-rwhose property you are planning to
rezone to require ire to provide"senior"housing on my property.
We are currently operating a mobile home Park for older persons; age 55 and older. Wedonot
have plans to change our rules and regulations to modify the age restrictions of our Park.
However, times chance and it is impossible to know if this will always be a good business model.
1'fiere is no need to have the City become involved in the management of our businesses by
regulating who we can or cannot rent to.
We strongly oppose the City of Huntington Beach taking steps to single out our Park and others
in the City to restrict the property use to"seni or"housing. This is a classic example of spot
zoning,which is supposed to be illegal. No other property ovirer in the City is being subjected
to age restrictions on their businesses. Why not rezone entire sections of the City with an
overlay restricting only"senior"housing instead of spot zoning ten separate pieces of prope.1y in
the City?
The free market works best without government intervention and restrictions that are not needed.
HoNv's it that the City proposes to tell some mobile home park owners that it is okay for there to
have all age communities and restrict other Parks*0 senior only?
We respectFullyi-equest that you do not extend the moratorium on mobile home parks,
Sincerelv
Jj
Leland Jay
Sea Breeze Mobile Estates
Item 8. - 72 HB -270-
Mar.12.2011 03:38 PM darling 5625971958 PAGE. 2/ 2
SKANDIA NIOKLE COUNTRY CUT
A Division of Huh bell Family,LLC
16444 Bolsa Chica Road
Huntington each,CA 92649
January 26,2014
Chairman Mark Bixby
Members of the Planning Commission
City of Huntington Beach
2000 Main Street
Huntington Beach,California 92648
Agenda Items B-la,B-lb,and B-1c
Oppose Senior Mobilehom e Park Overlay Zoning
Honorable Chairman Bixby and Members of the Planning Co=-nission:
t any writing as a Huntington Beach mobile home park owner whose property you are
planning to rezone to require me to provide"senior"housing on.my property.
We are currently operating a mobile home Park for older persons,age 55 and older- We
do not have plans to change our rules and regulations to modify the age restrictions of our
Park. However,times change and it is impossible to know if this will always be.a good
business model, There is no need to have tine City become involved in the management
Of OUT businesses by regulating who we can or cannot rent to.
We strongly oppose the City of Huntington Beach taking steps to single out our Park and
others in the City to restrict the property use to"senior"housing. This is a classic
example of spot zoning,Nvhieb is supposed to be illegal. No other property owner in the
City is being subjected to age restrictions on their businesses. Why not rezone entire
sectioas of the City with an overlay restricting only"senior"housing instead of spot
zoning ten separate pieces of property in the City?
The free market works best without government intervention and restrictions that are not
needed- How is it that the City propose$to tell some mobile home park owners that it is
okay for them to have all age communities and restrict other Parks to senior only?
We respectfully request that you do not extend the moratorium on mobile home parks.
Sincerely,
Sandra H, Darling
QwneT,Skandia Mobile Country Club
HB -271- Item 8. - 73
01/27/2014 15:57 7140,626155 KATO ASSOC PAGE 011
Lef5 Fmigas Mobile 5ome Park
January 27, 2014 18601 NEWLAND STREET,HUNTINGTON SFACH,CALIFORNIA 92946
Telephone 962-7422
Chairman Mark Bixby
Menibcrs of the Planning Cornnussion
City of Jfu-ntington Beach
2000 Main Street
Huntington Beach,California 92648
RE: Agenda Items B-Tal B-1b,and B-It
Oppose Senior Mobilehome Park Overlay Zoning
Flonorable Chairman Bixby and Members of the Pfimming Commission:
I am writing as a 14untington Beach mobile home park owner whose property you are
planning to reZOne tea require the to provide"senior"housing on rry property.
We are currently operating a mobile home Park for older persons,,age 55 and older. We
do.not have plans to change our rues and regWations to modify the age rcstt1ctions of our
Park. However,times cliatige and it is impossible to know if this WIR alwkv.,5 be a good
business model. There is no need to have the City become in-volvedin the management
of out businesses by regulath-ig who we cat).or cannot rent to,
We strongly oppose the City of 14tintington Beach taking steps to single out our Parkand
offiers in the City to restrict the property use to"senior"housing. This is a classic
example of spot zoning,which is supposed to be illegal. No oilier property owner in the
City is being subjected to age restrictions on tlicit businesses. Why not rezone entire
sectiow of the City with an overlay restricting ov ly "senior"bousing instead of spot
zoning ten separate pieces of property in the City?
The free market works best without-government intervention and restrictions that are not
needed. How is it that the City proposes to tell some mobile home park owners,that it is
okay for t171.cm to have all age communities and,restrict other Parks to senior Only?
We respectfully request that you do not extend the moratorium.on mobile home parks.
Sincerely,
Jim Kato
Los Amigos Mobile Home Park,LLC
Item 8. - 74 1113 -272-
on oared LP
4040 MacArthur Blvd-Suite 300
Newport Beach, CA 92660
949251-0444
(fax)949�251-0888
September 12,2013
Mayor
&yor Connie Boardman
',Mayor Pro Tem.Matthew Harper
Members of the City Council
City of',-IiIntington,Beach
2000 Main Street
Huntington Beach,California 92648
RE: City Council Item 21
oppose Extension oft Park Moraturium
Mayor Connie Boardman and Members of the City Council,
I am vvjitinga as a Huntington Beach mobile home park owner to urge You to not extend
the moratorium and urgency ordinance regulating age restrictions in the city's mobile
home parks. The owners of the city's mobile home parks are responsible business
operators who offer housing to both seniors and families. We do not need to be
regulated.
There is no need fo-—have�EE-Cii S,�ecoffCiftv-6-NW-
by regulating-wfiov.,D can or cannot rent to. The free market place provides those
business incentives and today the city's mobile home parks are almost evenly Split
between senior and all age housing.
While we have no plans to modify our current business plan,we believe that there is 110
place for government to step in and tell us how to op M. Le our, business.
We respe mobile otLiffly request that you do not extend the moratorium on mob ebomepa
Sincerely,
JoiRK. Saunders
Manager
Huntington Shorecliffi LP
HB -273- Item 8. - 75
Brookfield Manor,Inc. Del Mar Mobile Estates,Inc-
9850 Garfield Avenue 19251 Brookhurst Street
Huntington Beach,CA 92646 Huntington Beach,CA 92646
September 12,2013
Mayor Connie Boardman
Mayor Pro Tem,.N4atthew Harper
Members of the City Council
City of Huntington Beach
2000 Main Street
Huntington.Beach,California 92648
RE: CRY COO CH Item 21
oppose Extension of NM Park Momtorium
Mayor Connie Boardman and Members of the City Council,
I am Writing as a Huntington Beach mobile home park owner to urge you to not extend
the moratorium and urgency ordinance regulating age restrictions in the city's mobile
home parks. The owners of the city's mobile home parks are responsible business
operators-who offer housing to both seniors and families. We do not need to be
regulated.
There is no need.to have the City become involved in the management of our businesses
by regulating who we can or cannot rent to. The free market place provides those
business incentives and today the city's mobile home parks are almost evenly split
between senior and all age housing.
While we have no plans to modify our current business plan,we believe that there is no
place for government to step in and tell us how to operate our business.
We respectfully request that you do not extend the moratorium on mobile home parks.
Sincerely,.
Gregory C.Hexberg
President
Item 8. - 76 HB -274-
gill Bruce
Mariner's Point
19350 Ward SL
�iuntiagtun each, CA 9264-6
January 23, 2014
Chairman Mark Bixby, Planning Commission
City of Huntington Beach
2000 Main Street
Huntington each, GA g2648
Re: Senior Overlay Map for Mobile Home Parks
Dear Chairman Bixby:
I am writing in opposition to the proposal to change the zoning of Mariners Point
to a Senior Mobile Home Park.
We have owned Mariners Pinint since 1974 and have no intention of changing to
all age or fsmi!y, We have every intention on continuing to operate as a senior
park. However, I do not understard why it is necessary to regulate the
communities that have no intention of converting, haven't been aggressive with
rents and don't have complaints from our residents. It just doesn't seem fair.
f hope.you will abandon this heavy-Oanded approach and work with our industry
2
organ i ation that wishes to develop a more fair approach that gives assurances
to-seniors in Huntington Beach but doesn't over regulate your affordable housing
providers or place undue burdens on us,
Sincerely,
Bill Bruce
cc: Vice Chair Erik Peterson
Commissioner Bob Dingwall
Commissioner Mike Posey
Commissloner Dan Kairnick
Commissioner Robert Franklin
Commissioner Edward Pinchiff
HB -275- Item 8. - 77
Benefits of keeping this park Senior
Traffic — It is est. that a family park would increase the number of Overn!Lht
parking by 1 car for every 2 spaces or an additl 97 cars in the park
No additional visitor parking needed —
No additional parking spaces needed for owners—
No traffic light would be necessary for entrance to Brookhurst—
No extra access and or exit needed for emergency vehicles—
No additional increase in liability insurance would need to be added —
No need to move Mobile homes out to create space for play area —
No need to expand clothes wash/dry area—
No need to expand Club House / fire dept. max people to 194—
No need for school buses to enter and exit RHMHP —
No need for additional pool maintenance people or added hours—
No add-on maint. Employees needed for increase in residents —
No need for additional on-site management including weekends—
On-Site Mgmt. is unable to keep up with current resident needs—
Today there is less danger from cars and police intervention —
Today the MHP itself is much quieter with more mature residents —
No additional lighting needed in common area for younger renters --
The purpose of this one page document is to point out the positives of
what we are today verses the negatives of what we could face in future.,
Created by and presented by Gary,Thiessen
Item 8. - 78 HB -276-
Beachview Community
17261 Gothard Street
Huntington Beach, CA 92647
January 28, 2014
To The City of Huntington Beach Planning Commission:
As the owner representative of Beachview community, located in
Huntington Beach, I go on record as opposed to the proposed Private
Property Overlay Zone pertaining to our Mobilehome Park. it is
another example of the government intruding on Private Property
rights.
To force the owners of all Mobilehome Parks in the city of Huntington
Beach to forever grant "Adults only" status to all current and future
residents is an unfair and unjust position.
It is grossly selective to "cherry pick" just landlords of Mobilehome
Parks in Huntington Beach.
I don't believe you doing the same for all Apartment Buildings in
Huntington Beach?
Is it any wonder why so many citizens no longer trust the government
anymore.
Sincerely,
Jonathan Boggs
Property Supervisor
Beachview Community
HB -277- Item 8. - 79
DOWDALL LAW OFFICES
A F ROFESS€CNAL COP, PORATION
ATTORNEYS AT LA0,'
TERRY R. DOWDALL 28A NORTH GLAS5ELI SjBEET SACRAMFWC OFF3CE:
lrd4dowdolllaw.ref ORANGF,CALIFORNIA 928 6 6-1409 980 9"'S-1 MEET, 16"FLOOR
ROBIN G. EIFLER AREA CODE 774 PW 1638
robin@dow',jafttaw.net TELEPHONE 532.2222 SACRAMEN10,CA 958':.4
DIANE W.MEDINA FACSIMILE: AREA CODE 916
diane,;adowdofflow.net 532.3238 532,5381 TELEPHONE 444.0777
KASEY C. PHILLIPS DOWDAIULAW.NET FACSIWULE 444.2983
kcp@do,,vda!11aw.nef
RENY REFER TO:
VIA MESSENGER
January 27,2014
City of Huntington Beach
Planning and Building Department
Mark Bixby Chairperson JAN 2 7 2014
Erik Peterson Vice-Chair
Robert Franklin Commissioner apt.of Planning
Edward Pinchiff Commissioner Building
Bob Dingwall Commissioner
Dan Kalmick Commissioner
Mike Posey,Commissioner
2000 Main Street
Huntington Beach,CA 92649
Re. NEGATIVE DECLARATION NO. 1.3-001/ZONING TEXT AMENDMENT NO. 13-002
(SENIOR RESIDENTIAL MOBILEHOME PARK OVERLAY)
These offices represent the owners and management of Rancho Huntington Mobilehome Park and I write
in opposition tothe proposed zoning ordinance as it purports to apply tip Rancho Huntington Mobilehome
Park.
This letter is in three parts,
Rancho Huntington MHP is Exempt from Regulation,as the Housing Converted to
All Age as of July, 2013, It Is Exempt from the Overlay. . . . . . . . . . . . . . . . . . .... . . .. . 2
II. Zoning for Older Persons E�tquires Intent on the Part of the Municipality. The
Overlay Ordinance Is Imp
roper Per Se,..Does Not Reguire, as Requisite to
Enforceable "Older Persons" Zoning,That the City Evidence Continuing Intent . . . . .. 7
Ill. Older Persons Housing Is.a Myopic Reaction to the Demands of Active Elders of
Keep Kids Out, Older Persons Housing Absent Significant.Services for Seniors "Aging in
Place" Is a Disservice to the Elderly,Which Devalues Their Property-and Dimind-es
Their Quality of Li . . . . . . . . . . .. . . . . . . .. .. . .. . . ... .. .. . . . . . . . . . . . . . . . . . . . . .
A, Applicable Law . . . . . . . . .. . . . . . . . . . .. .. . . . . . . . . . . . . . . . . ...
B. Applicable State Law Incorporates Pub. L. 100-4,30 .. .�. . .. . . . . . . . . . . . . 12
C. Pub . 100-430 Requires City to Provide Significant Facilities and Services 14
D. Assumption of Responsibility for Complying with"Older Persons'Housing
Means Providing Services and Facilities for a Population Aging in Place, 16
E. Senior Lifestyles and HomeValues Will Eventually Sufferfrom the Current
Proposal.Are, Elders Are Better off Because of an..Exemption? . . . . . . . 19
Item 8. - 80 flB -278-
DOWDALL LAW OFFICES
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.ATTORNEYS AT LAW
City of Huntington Beach
Planning and Building Department
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Page 2
F. Significant Services and Facilities for Seniors Aging in Place . . . . . .. . ... . . . . 19
G. Depreciation of Older Persons Housing . .. . . . . . . . . . . ... .. . . . ... .. . . ... 24
H. Hardships on Residents . . . .. . . . . .. . . .. .. .. . . . . . . . . .. . .. . . . . . .. . . . . . 25
I Rancho Huntington MHP is exempt from regulation as the housin converted to all age
as of July.2013. It is exempt from the overlay.
Rancho Huntington MHP is exemptfrom the zoning law because it is an"all age"community.Once
a community has converted to an "all age" community, it is beyond the province of government to
reclassify it into a older persons park,which is an election only to be made by a park owner.
Since July 2013, the park has been open to residents of all age. The operative language of the
current rule, published several times weekly in the Orange County register, is the following:
FAIR HOUSING POLICY OF RANCHO HUNTINGTON (REVISED) IS AS FOLLOWS: WE DO
BUSINESS IN ACCORDANCE WITH THE STATE AND FEDERAL FAIR HOUSING LAWS. IT IS
ILLEGAL TO DISCRIMINATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR, RELIGION,
SEX,SEXUAL ORIENTATION OR PREFERENCE,HANDICAP OR DISABILITY,FAMILIALSTATUS,
SOURCE OF INCOME,NATIONAL ORIGIN,ANCESTRY OR FOR ARBITRARY REASONS UNDER
STATE LAW - DISCRIMINATORY ACTIONS OF THE MANAGEMENT, HOMEOWNERS,
RESIDENTS, GUESTS OR OTHERS MAY BE REPORTED TO OWNER'S AGENTS, OR THE
DEPARTMENTOF FAIR EMPLOYMENTAND HOUSING OR DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT. MANAGEMENT WILL NOT AT ANY TIME UNLAWFULLY
ADMINISTER, ENFORCE OR EXPRESS ANY PREFERENCE WITH RESPECT TO EXISTING OR
PROSPECTIVE TENANTS,RESIDENTS,OR GUESTS BASED ON ANY PROTECTED CLASS STATUS
AS DEFINED UNDER SUCH LAWS. NO SUCH UNLAWFUL ACTIVITY BY OTHER PERSONS
WHETHER RESIDING IN OR DOING BUSINESS IN THE COMMUNITY OR OTHERWISE IS
PERMITTED;ANY UNLAWFUL DISCRIMINATION KNOWN OR REASONABLY SUSPECTED MAY
BE REPORTED TO APPROPRIATE GOVERNMENT AUTHORITIES FOR PROSECUTION.
The proposed zone may not be applied to an area already zoned for seniors in the case of Rancho
Huntington. Rancho Huntington is not operated as senior housing.
Further, such zoning policies do not undermine the FHAA's protection of families with
children. Especially when the housing entities within the zoned area already operate as
senior housing, municipal zoning does not represent as significant an expansion of the
federal senior exemption as Putnam fears. Here, the City must ensure that the Overlay
District meets the fairly rigorous statutory requirements of maintaining an eighty-percent
senior population, publishing and adhering to policies, and complying with occupancy
verification rules, see 42 U.S.C, § 3607(b)(2)(C), and that the Overlay District does so in
advance of engaging in what would otherwise be discriminatory conduct, . . .
Putnam Family Partnership v. City of Yucaipa, 73 17.3d 920,931(9"Cir. 2012).
xB _279_ Item 8. - 81
DOWDALL LAW OFFICES
A P R O F E S 5 1 0 N A L C O R P O R A T. I O N
ATTORNEYS AT LAW
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Planning and Building Department
January 27,2014
Page 3
City may not assert that the Putnam Family Partnership case provides all the guidance needed for
the assertion of senior zoning.Putnam was a pure federal question case on the jurisdiction of HUD to alter
HOPA. No state law issues were presented.State law issues concern the FFHA under the Government Code,
which is the thrust of this objection to the zoning law and its environmental consequences. Moreover,in
the instant case,there is still an opportunity to provide City involvement to manifest its requisite intent.'
Further, State law(post) incorporated Pub.L. 100-430, not the Housing for Calder Persons Act of
1995, It enforces the FFHA of 1988, which says nothing about zoning.Thus, whether the City of Yucaipa
complied with HOPA adds nothing to the issues relevant to the Planning Commission. The question is
whether the proposed zoning law complies with the FFHA.Yucaipa did not have this problem.Huntington
Beach does.
Adifferent question may be presented if the Ordinance required parks thatdid not already
maintain an eighty-percent senior population or describe themselves as senior parks to do
so, but we leave that question for another day.We do note, however,that the fact that
Putnam already operates as senior housing in compliance with the federal senior
exemption further distinguishes this case from our pre-HOPA decision in City of Hayward,
36 F.3d at 836-38.
Putnam,supra at 933, n.3.
In the City of Hayward,which may not therefore be distinguished from the instance case,the City
was found liable for breach of the FFHA by punishing a park owner due to change to"all age"status.This
case,as was Hayward,is a pre-HOPA case. In that case,the park owner's choice to change to all age was
enforced in a judgment against the City.
Boreilo had a choice to terminate the adults-only policy or to convert to senior housing.
We refuse to adopt a rule that would deprive landowners of this choice.
U.S. v. City of Hayward, 36 F.3d 832, 838(9th Cir. 1994).
The park does notqualify for older persons housing because it does not comply with requirements
for"older persons" housing.On or about July 16,2013,the management notified all residents that it was
no longer going to enforce rules and regulations which provided for housing for"older persons." A week
later, management held a meeting to take comments on a change in rules rescinding "older persons
housing." Management then served notice of rule amendments to effectuate the rule change, affording
each resident the right, as guaranteed by the Mobilehome Residency Law (Civil Code §§798, et sea.) to
individually consent.
For example,City's proposed ordinance does not qualify for the a senior exemption because the
proposed zoning laws do not contain a mechanism for meeting occupancy-verification rules.This matter
in respect to operation of the law was not part of the Putnam lawsuit.Putnam, at 931.
Item 8. - 82 xB -290-
DOWDALL LAW OFFICES
A PR OF ESS10NAL CCRPORA.T10N
ATTORNEYS AT LAW
City of Huntington Beach
Planning and Building Department
January 27,2014
Page 4
Management has also advertised its status as"all age"housing.It has no inte ntto operate as"older
persons" housing.The change to"all age" housing is now in full force and effect for any resident seeking
to consent to the rules as guaranteed by Civil Code§798,25. All actions required for enforcement of"all
age" housing are completed.There is no intent to enforce"older persons"housing restrictions.It is legally
barred from holding itself out as"older persons" housing or enforcing rescinded restrictions providing for
same.The park owners have no intent to operate in accordance with the mandates of Civil Code§798.76
("Management may require that a prospective purchaser comply with any rule or regulation limiting
residency based on age requirements for housing for older persons,. . .'°).
Moreover, a disproportionately high percentage of family residents in Huntington Beach and
surrounding areas are Hispanic/Latino,The residents in the park are virtually, exclusively, Caucasian,The
law also has a disparate impact on Hispanic people.
Underage people live in the park, management has come to find out.
Management has no policies or procedures for admission based on age.
Management has no verification procedure based on age.
There are no rules respecting occupancy restrictions,
40 There is no census taking as required by the 9th circuit Balvadge case.
• There are no written restrictions for tenancy guests, or home sharing based on
age
• "All age" housing existed prior to the passage of the municipality's ordinance and
extensions thereof.
• City does not manifest procedures for age qualification, enforcement and other
manifestation of intent. Bolvage v. Ryderwood Improvement and Service Assn,
642 F.3d 765, 778 (9th.Cir.2011)("We agree with the HUD Secretary that "[t he
mere possession of various records collected over the years...,without more,is
inadequate to satisfy the verification obligation. A community must collate
information from its files to assess whether, in fact, it has verifiable data of all
current occupants and it satisfies the 80%occupancy requirement." Id.at 20-21.
Here, RISA "has not shown that it has compiled a list of RISA members and
compared[the membership]data with occupants for any given year to verify that
the 80%occupancy requirement was met."Id.at 22.Merely requiring residents to
fill out membership forms,"absent any compilation of data, is. .. insufficient to
meet the verified survey requirement").
My clients may now not bar children in light of their antecedent"all age" regulations(despite the
Putnam case),absence of statutory"intent"to be an"older persons"community,regular advertising in the
Orange County Register attracting families with kids,absence of verification procedures forage,lack of any
zoning maps,absence of distribution of"intent literature,"absence of a census as required under 9th circuit
precedent(Balvadge),absence of any signage,and absence of any count for the 80-20 federal requirement.
xB -?8 1- Item 8. - 83
DOWDALL LAW OFFICES
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Page 5
My clients are therefore not subject to the requirements of the FFHA.
As for other parks still operating,the proposed zone does not include procedures as required for
the intent to operate older persons housing to be manifested by the City. E.g., HUD v. Nelson, 1993
WL498882 (H.U.D.A,U.),which in part says:
"Publication and Adherence to Policies and Procedures
The third statutorytest requiresthe housing provider to demonstrate that it published and
adhered to policies and procedures which demonstrated an intent to provide housing for
persons 55 years or older. Six factors set forth in HUD's regulations are to be used in
determining whether a housing facility meets this requirement.These six factors are.
(1) written rules and regulations;
(2) the manner in which the housing is described to prospective residents;
(3) the nature of advertising;
(4) age verification procedures;
(5) lease provisions;and
(6) the actual practices of the owner or manager in enforcing relevant lease
provisions and relevant rules and regulations.
24 C.F R.s 100.304( c)(2).
"These tests are designed to establish whether a housing provider has
demonstrated an intentto provide housing for persons 55 or older by its adoption
and adherence to policies and procedures which manifest that intent."
"The focus of the tests is on whether: (1) the housing provider holds itself out as
providing housing for persons 55 or older, and (2) the housing provider has
demonstrated that it has consistently done so."
Murphy,2 Fair Housing-Fair Lending at 25,050;see also Massaro v.Mainlands Section 1&2 CivicAss`n,Inc.,
3 F.3d 1472, 1476(11th Cir. 1993).
"The record evidence establishes that, rather than demonstrating an intent to
provide housing for persons 55 and older,the focus of Respondents' regulations,
description to prospective residents,and age verification procedures was merely
to exclude children under 18." [FN25]
Item 8. - 84 HB -282-
DOWDaLL LAW OFFICES
A P R O F E S S 1 4 N A L C O R P O R A T I O N
.ATTORNEYS AT LAW
City of Huntington Beach
Planning and Building Department
January 27,2014
Page 6
The park management may not disregard HUD v. Ocean Parks Jupiter Condominium Association,
Inc. 1993 WL 316543 (H.U.D.A.L.J.),where the Court said:
"At no time did the rules and regulations make any mention whatsoever
of Ocean Parks being housing for persons 55 or older, including all the
attendant requirements.Thus,Respondent's written rules and regulations
do not demonstrate an intent to provide housing far persons 55 and older.
1993 WL 316543, *28(H.U.D.A.U.»Since rejected families may question
whytheyare being rejected(which will be predominantly Hispanicfamilies
if the application rate is per Census probabilities based on population),
your notification may be used to show that DFEH's position,as a policy,is
not to take action if a city drives the discrimination by ordinance(makes
it"legal discrimination" as you have said).Knowledge that this protection
from liability exists is instructive in determining the course of action for all
property owners in the future. I also presume that the underage
individuals may remain in place and are not required to vacate to avoid
prosecution.
Government Code Section 65008(a)(1) enacted in 1994 reads in pertinent part:
Any action pursuant to this title by any...county...in this state is null and
void if it denies to any individual or group of individuals the enjoyment of
residence,landownership,tenancy,or other land use in this state because
of any of the following reasons: The race, sex, color, ethnicity, national
origin, ancestry, lawful occupation, or age of the individual or groups of
individuals.
Government Code§ 65008(a)(1) (emphasis added).
In the Gibson'case,the district court properly held that the plain language of§65008(a)rendered
the County's age-based zoning restrictions"null and void."The court therefore held that Section 65008(a)
was clear on its face and requires no assistancefrom any other source in interpreting its meaning.Following
the trial court decision, Riverside County was exempted from the Zoning law by the state legislature.
Orange County is not so exempted.
11 Zoning for older persons requires intent on the part of the municipality.The overlay ordinance
does not require as requisite to enforceable older persons zoning thatthe city evidence continuing
intent including screening census taking enforcement evictions of violators.
"Just as the intent of a mobilehome park might be the intent of the company that awns the
'Gibson v Riverside, 181 F.Supp.2d 1057(C.D.Cal. 2002).
xB -283- Item 8. - 85
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`
DDWI}Al.L LAW OFFICES �
^ rnor ^, s / vx^ LcoR , onm' ow
/
^nooNc,, AT LAW
|
City ofHuntington Beach
Planning and Building Department �
January Z7, 2O14 �
Page | �
�
park or the intent of the residents who live there, the intent of a municipally zoned area
b the intent of the city that created it." '
Putnam Partners x City ofYucaipa.
In Gibson,the zoning lawfailed because,inter alia,the county could not prove the county enforced
it. In the instant case,there is no provision or procedure for enforcement by the City whatsoever.
For two independent reasons,the Court concludes asa matter of law that
the County did not qualify as55-or-over HOP at any time from March 1J,
1989 to November6, 1995. First, the County has failed to present
sufficient probative evidence to establish asa genuine issue of fact that at
any time during that period, eighty percent of the dwelling units in the
areas zoned asl[D. were occupied by at least one person aged 55 or
over. Second,the County has offered no evidence that at anytime during
that period it adhered tn policies and procedures demonstrating its intent
to provide housing for persons 55 years or older' The Court also
concludes asa matter of law that the County did nctquaiifyas55-opnver
HOP from March 12,1989to May 19,1993 for a third reason. Du/ing1hat
period, the County failed to publish a policy and procedure which
sufficiently demonstrated its intent toprovide housing for persons 55
years orolder,
Gibson vRiverside, 181F.Supp2d1057'1077(C.DIaL2002).
,The requirements for manifestation of intent are clear.As the court states,the question is whether
dpublished d dhemedtopoUc(esandpnocedu/es
�he"peoon"(City) c|a\min��heSG-or+r�erexemp on an a
demonstrating its intent to provide 55-oroverhoudng, not merely whether it had such an intent. The `
"poUdes and procedures" requirement is thus prophylactic innature. /t requires a person ([hY)seeking
to qualify as56-or-o|de/housingto take the affirmative steps set forth in43U.6l.§ }6O7(b)(2)(C)(iii)(ie,
publication and adherence to policies and procedures)
discrimination"(Id., at1U78, n. 18/ and prevents the person (City) from claiming the exemption to the
extent that it failed to take these steps.
Of the three statutory requirements thatmustbernetbyentitiesseekin8
to qualify asS5'or-o|der HOP,the"policies and procedures" requirement
is the one that most explicitly focuses on the actions of the entity seeking
to claim the HOP exemption. See,e4,Massaro,3F3dat1478(holding
that district court was correct|n disregarding regulatory factors that did
not relate to actions which could be undertaken by the entity claiming the
55-ora|der HOP exemption itself). By requiring that an entity seeking
55-or-over HOP status-publish and adhere to policies and procedures
which demonstrate that entity's intent to provide housing for persons 5S
�fern Q Q��
^°=, °' - °u UB -284-
DOWDrALL LAW OFFICES
A P R O F E s 5 1 0 N A L C 0 R P O R A 7 1 0 N
ATTORNEY5 AT -AN
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January 27, 2014
Page 8
years of age or older, Congress sought to preclude entities accused of
discrimination based on familial status from retroactively claiming the HOP
exemption because of the fortuitous actions of others.
Gibson v Riverside, 181 F.Supp.2d 1057, 1080(C.D.Cal,2002).
To the extent the person(City)publishes and adheres to sufficient policies and procedures,that
person (City)will have demonstrated its"intent"to provide housing for persons 55 years of age or older.
In Gibson, the County painted to language within the Appendix accompanying the April 2, 1999
regulations interpreting the December 28, 1995 statutory amendments to the FHA which it says supports
its position that it satisfied the "intent test" by merely affixing the S.C.D.label to zoning maps.
However,as noted earlier,the April 2,1999 regulations and the Appendix
thereto have no affect on this Court's interpretation of the statutory
requirements which existed prior to December 28, 1995.
Id.
The County did not measure up to these standards.Indeed,it appears as in the present case,that
there were no procedures in place to require compliance and enforce the rules and otherwise evidence
intent,The county expected the park owners to do so. However,that is not the test for sufficient zoning
in California.
At 181 F.Supp.2d 1079-1080,the court describes the shortcomings which caused the County to be
held liable for familial status violations of the FHAA.In summary:
Priorto,and at'the time of,the discriminatory acts alleged by Plaintiffs,the County
did not have in place any"procedure"to assure its compliance with the statutory
and regulatory prerequisites for qualifying as 55-or-older housing.
For example, until the lawsuit was filed, the County took no action to verify the
ages of the residents in the areas zoned for senior housing.
The County itself admitted that at no relevant time did the County make any
investigation or analysis to determine whether any of the housing units zoned by
Riverside County of senior citizen occupancy, pursuant to Section 18.6 or 18.7 of
Ordinance No. 348,qualified as housing for older persons within the meaning of
the Federal Fair Housing Act,42 U.S.C.,Section 3607(b)."
It is true that the uncontradicted evidence reveals that the County,through its
agents, did investigate, on occasion, complaints of zoning violations. But the
complaints were in response to written complaints to the County and not as a
HB -285- Item 8. - 87
DOWDALL LAW OFFICES
A PROFESSIONAL C0RP0R ,4T10N
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Page 9
result of any systematized investigatory procedure of the County; and 57°I of the
communications(i.e., 13 of 23) characterized the age restriction as being 50-or-
older, not 55-or-older.
The Court condemned the inaction of the County. "These actions" do not satisfy
the statutory requirements in that they were neither sufficiently reliable to insure
the County's compliance with the EHA's HOP provisions nor performed on a
consistent basis.
The communications which characterized the age restriction as being 50-or-older,
not 55-or-older,do not reflect an intent to provide housing for individuals 55 years
of age or older.
• A reasonable jury could not find from this evidence that the County, at any time
between March 12, 1989 and November 6, 1995, "adhered to a procedure
demonstrating its intent to provide housing for persons 55 years of age or older."
• The County attempts to rely on actions taken by various associations in the four
S.C.D.-zoned areas to satisfy the "procedures" requirement. Evidence submitted
by the County suggests that these associations had in place at least some age-
verification procedures atthe time of the allegedly discriminatory actions taken by
the County. That is irrelevant to the action needed to be taken by the County:
"While such actions may be relevant to whether the associations can
independently qualify for the 55-or-older HOP exemption, they have no legal
bearing on whether the County's zoning practices meet the procedures
requirement."
Hence the City must show each of the following things as it must supply "intent" in lieu of the
property owner in the case of a municipal zoning issue.The proposal must further,therefore,affirmatively
include procedures in order to continue to show intent of the City,from inception and before the facility
is enforcing"all age" requirements,to administer, require and enforce "older persons" housing.
(c)***(2)The(City) owneror managerof a housingfacility publishes and adheres
to policies and procedureswhich demonstrate an intent bythe ownerormanager
to provide housing for persons 55 years of age or older. The following factors,
among others, are relevant in determining whether the owner or manager of a
housing facility has complied with the requirements of this paragraph(c)(2)of this
section:
(i) The manner in which the housing facility is described to prospective
residents.
Item 8. - 88 HB -286-
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A PR. OFE S S 1 O N A.L CORP0RAT1 ON
ATTORNEYS AT LAW
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Page 10
(ii) The nature of any advertising designed to attract prospective residents.
(iii) Age verification procedures.
(iv) Lease provisions.
(v) Written rules and regulations.
(vi) Actual practices of the owner or manager in enforcing relevant lease
provisions and relevant rules or regulations.
"Actual practices of the owner or manager in enforcing relevant lease provisions and relevant rules or
regulations"means procedures fordemanding compliance,monitoring compliance,and evicting violators
of the zoning requirements. The proposed ordinance does not so provide.
The City must provide for intent to operate. It may not relegate costs of compliance and
enforcement to the park owners.
III. Older Persons Housing Is A MVooic Reaction To The Demands Of Active Elders Of Keep Kids Out.
The Overlay Fails To Protect The Intent To Foster Akin In Place And To Comirly With State Law
Because It Omits All Consideration Of Services Facilities,,Amenities And Attention To The heeds
Of Seniors As They Age(as required by Government Code§12955.9).
After considering the Council Meetings during which older persons housing zoning was being
debated, it is clear that the motivation for urging action is not to advance the interests of older persons,
but rather to exclude children with families.3 Further, in light of the demographic characteristics of
Huntington Beach, the result of the demand for age homogeneous housing will, if approved, result in a
disparate impact against Hispanic voters in the City. In other words,the push for older persons housing is
intended to exclude children(which is freely admitted by the many residents who spoke out in favor of
older persons housing),and will if allowed, result in a disproportionate exclusion of Hispanic families.This
result is also contrary to sound public policy and long term planning. If promotion of opportunity to"age
in place" is the ultimate objective, it will be frustrated for lack of inclusion of services and facilities for
seniors.
This sentiment has been common since the inception of Pub.L. 100-430. In the Code of Federal
Regulations referring to comments received during the pendency of Pub.L 100-430,HUD noted this
common theme.24 C.F.R.Ch. 1,Subch.A,App. 1 (1989),44(". . . if children are admitted there will in
most cases be no place for them to play. Furthermore,many commenters made it plain that they do
not want or need special services or facilities. Rather,they want mobile home parks to provide an
environment where they can be with others of their age group..,").
HB -287- Item 8. - 89
DO WDALL LAW OFFICES
A P R 0 F E S S I 0 N A L C O R P O R A T{0 N
ATTORNEYS AT LAW
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Page 11
A. Applicable Law
State law(Government Code§12955.9,and§65008)i mp(e ments an exemption from the guarantees
of fair housing based on familial status,as provided in the Federal Fair Housing Amendments Act of 1988
(Pub.L.100-430.').The subsea uentlyenacted Housing for Older Persons Act of 1995("HOPA"),has not been
implemented into California law. Pub.L 100-430 as specified in Government Cade§12955,9, remains the
allowable "older persons" housing in California mobilehome parks,
The "older persons" housing exemption from the familial status guarantee is a narrow exception
to the bar on discrimination against families or"all age" housing. Moreover, the California version under
Government Code§12955.9 and§65008 better protects the elderly seeking to"age in place," by retaining
the carefully defined requirements for "significant" "facilities and services" responsive to the
accommodation of the elderly's needs as they transition into their 60's, 70's,80's and beyond.'
B.Applicable State Law Incorporates Pub. L. 100-430
Title VIII of the Civil Rights Act of 1968(42 U.S.C, §§3601-3619) made it unlawful to discriminate
in any aspect relating to the sale, rental or financing of dwellings or in the provision of brokerage services
or facilities in connection with the sale or rental of a dwelling because of race, color, religion, sex, or
national origin. Under the provisions of Title Vill, persons who believed that they had been subjected to,
orwere aboutto be subjected to,a discriminatory housing practice could file a complaint with the Secretary
of Housing and Urban Development.Title VIII required the Departmentof Housing and Urban Development
to investigate each complaint and,where the Department determined to resolve the matters raised in a
complaint, to engage in informal efforts to conciliate the issues in the complaint. However,where these
informal efforts to conciliate a case were unsuccessful,Title VIII did not provide the Secretary with any
administrative mechanism for redressing acts of discrimination against an individual.In addition,while the
Secretary could refer a case involving a pattern or practice of discrimination to theAttorney Genera(for the
a Please see Exhibit"A" attached to this letter.
5
It is observed that California has chosen to ignore a federal relaxation of the"needs" criteria set forth in
the original iteration of the FHAA exemption for older persons housing which continues to be law in
California today.The California legislature has often addressed age regulations since 1995 (when federal
law was relaxed by President Clinton's signing of HR 660) and continues to use the more protective
standard of the FHAA, presumably understanding and intending to offer seniors greater protections,
perhaps in recognition to the heavy concentration of seniors in this state, This understanding is also
acknowledged in some civil rights organization literature; e.g.
http://ifhmb.accountsupport.com/cros/home/fair-housingica-law ("Mobile home parks that meet the
standards for"housing for older persons"as defined in the Federal Fair Housing Amendments Act of 1988
and related regulations"), last visited January 26,2014.
Item 8. - 90 xB -288-
DOWDALL LAW OFFICES
A P R O r E S S 1 0 N A I C 0 F P O R A T 1 0 N
ATTORNEYS AT LAW
City of Huntington Beach
Planning and Building Department
January 27, 2014
Page 12
initiation of a civil action, Federal courts did not award individual relief to the victims of discrimination in
such cases.
The Fair Housing Amendments Act of 1988(Pub. L. 100-430, approved September 13, 1988)was
enacted to strengthen the administrative enforcement provision of Title Vlll,to add prohibitions against
any person,entity, municipality,for the commission of discrimination in housing on the basis of handicap
and familial status,and to provide for the award of monetary damages,injunctive relief,civil penalties and
attorney's fees and costs where discriminatory housing practices are found. Pub. L. 100-430 became
effective on March 12, 1989.
Thus,with respect to the new protection for families with children,the Fair Housing Act prohibits
discrimination because offamilial status(generally,the presence of children under 18 in a family)in the sale
or rental of housing. However, the act provides an exemption from this prohibition for housing which
qualifies as"housing for older persons."
Government Code§§ 12995.9 was adopted through SB 137 in 1993 in order to make California a
cognizable enforcement agency for purposes of obtaining federal fundingfor civil rights law enforcement.
The law specifically incorporates Pub.L. 100-430,to read:
§12955.9. (a)The provisions of this part respecting discrimination on the basis of familial
status do not apply to housing for older persons, as defined in subdivision (b).
(b) "Housing for older persons," for purposes of subdivision (a), means any of the
following:
(1) Housing provided under any state or federal program that the United
State Secretary of Housing and Urban Development determines is
specifically designed and operated to assist elderly persons,as defined in
the state or federal program.
(2) Housing that meets the standards for senior housing specified in Section
51.2 and Section 51.3 or 51.4 of the Civil Code,except housing as to which
those provisions are preempted by the prohibition against familial status
discrimination in the federal Fair Housing Amendments Act of 19 (P.L.
100-430)and implementing regulations.
(3) Mobilehomes in mobilehome parks that meet the standards for"housing
for older persons,"as defined inthe federal Fair Housing Amendments Act
of 1988(P.L. 100-430)and implementing regulations.
(Emphasis added).
The City Is bound to the same standard under the Planning and Zoning lava.
xB -2189- Item 8. - 91
| `
` |
DOWDALL LAW OFFICES
^ r , ore,s/ uw^' coepoo^,` ow
enonwm, ^` LAW
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' Planning and Building Department '
' January Z7, ZUl4
Page13 i
§65008. (a)Any action pursuant to this title by any city,county, and county,or other
local governmental agency in this state is null and void if it denies to any individual or group
of individuals the enjoyment of residence,landownership,tenancy,or any other land use
\n this state because uf any of the following reasons:
(l) (A)The lawful occupation,age, or any characteristic of the individual or �
group ofindividuals listed in subdivision (a) or (d) of Section 12955' as '
those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph(1) of subdivision(p)of Section 1ZQ5S and Section 1JQS5.2. �
(8) Notwithstanding subparagraph (A), with respect tmfamilial status, �
subparagraph (A) shall not be construed to apply to housing or older
persoos,as6e�nedin6ecbon12955.9, |
' �
(Emphasis added). �
�
b /
Thu�the Staff report� innomect^The uver�yis not consi�entwith the requirement of Pu �L |
10O'45O.Consider Gibson by Gibson,where/n the court stated:
At least two district courts have held that, under the Fair Housing Act, a
municipality cannot compel owners within a zoned area tu manage their
property as housing for older persons. See Mobile Home VJloge, Inc. u
Township uƒJackson,Civil No. 9S'DUQ4, Fair Housing-Fair Lending(P-H)11
16018 at Cedor660sDewe/opec� /ncu �
. ' |
Township of Wyckoff,Civil No.8g-6391, Fair Housing-Fair Lending(P'H)� �
�
1S'G75,at16,467-68(D.Nl Dec.11,299O).According 0o the Mobile Home
Village court,"The FHA exclusively grants discretion regarding the method
of compliance[with the HOP requirements]tothe'awnerurmanager'[uf !
a property]. . The owner or manager may either
provide housing una nondiscriminatory basis o/show that itis entitled to !
an exemption. Jackson Township cannot compel plaintiff tu meet the �
/
�
6 '
.StaffReportatpage6: "AoeniormobUehomeparkmustabomaintanagewehficatondocumentation, �
which must be readily available for City inspection upon reasonable notice.The provisions of the SROverlay !
district do not'require any construction or reconfiguration of existing mobilehome parks. No operational �
changesto a senior mobilehome parkwould be required other than those described above,"Sincethe City
is assuming the"intent"prong of the requirements for"older persons housing,"these arecluties which the �
Citymustundertake.Parkowner'smaynotberequ|redtomaintain"intent"underazoning/estriction.The
City must doso. |
Them @ 92
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requirements of the FHA exemption." T The conclusions of these courts
seem to be contradicted bythe latest regulations interpretingthe FHA.See
Implementation of the HousingforOlder Persons Act of 1995,63 Fed.Reg.
16,324, 16,327(1999) (noting that, in HUD's view, municipal zoning was
a permissible way to establish HOP).
Gibson v Riverside, 181 F.Supp.2d 1057, 1073, n.13 (C.D.Cal. 2002)
However,undercatifornia law,Pub.L.100-430 applies,not"HOP."Hence,the conclusions of"these
courts" are not contradicted by the latest regulations interpreting the FHA in HOPA.
C. Pub L 100-430 Requires City to Provide Significant Facilities and Services
In California, "older persons" housing must provide services and facilities for "older persons."
Pub.L. 100-430 enacted 42 U.S.C, §3607:
As used in this section, "housing for older persons" means housing
(A) provided under any State or Federal program that the Secretary
determines is specifically designed and operated to assist elderly persons
(as defined in the State or Federal program); or
(B) intended for,and solely occupied by, persons 62 years of.age or older;or
(C) intended and operated for occupancy by at least one person 55 years of
age or older per unit.In determining whether housing qualifies as housing
for older persons under this subsection, the Secretary shall develop
regulations which require at least the following factors:
N the existence of significant facilities and services
specifically designed to meet the physical or social needs
of older persons,or if the provision of such facilities and
services is not practicable,that such housing is necessary
to provide important housing opportunities for older
persons;and
(ii) that at least 80 percent of the units are occupied by at
least one person 55 years of age or older per unit;and
(iii) the publication of, and adherence to, policies and
procedures which demonstrate an intent by the owner or
manager to provide housing for persons 55 years of age
or older.
(Emphasis added) Please see, Exhibit"A," page 7,11-13:40.
HB -291- Item 8. - 93
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The regulations implementing Pub.L.100-430'discuss the provision of these requirements(as they
continue therefore to apply in California by express reference thereto in Government Code§12995.5).
Paragraph (b)(1) of the proposed rule states that "significant facilities and services
specifically designed to meet the physical or social needs of older persons" include an
accessible physical environment, congregate dining facilities, social and recreational
programs, emergency and preventive health care or programs, continuing education,
welfare,information a nd counseling,recreational,homemaker,outside maintenance and
referral services,transportation to facilitate accessto social services,and services designed
to encourage and assist residents to use the services and facilities available to them.The
list of significant facilities and services designed to meet the physical or social needs of
older persons in the proposed rule is drawn from section 202(f)of the Housing Act of 1959,
12 U.S.C. § 1701q, listing examples of facilities and services for older persons.The House
Report(at p.32) relies heavily upon the listing in section 202(f)of the Housing Act of 1959
in its discussion of such facilities. . .
Exhibit"A," page 49, line 40,et seq.
The implementing regulations forthe Pub.L.100-430(referred to in Government Code§12995.9)
provide, in particular,two specific regulations which the housing must comply with.In respect to a zoning
overlay,the City has taken on the burden of supplyingthe(1)intent forthe qualification of"older persons"
housing, and the (2) assurance of sufficient and significant services and facilities, the implementing
regulations provide as follows(§ 100.304 55 or over housing).
First, the City must grapple with the issues of whether or not the housing involved provides
significant services and facilities to address the needs of the seniors as they age in place. Since the City
proposes a zoning overlay on mobilehome parks, the burden to satisfy all duties and conditions of
compliance with Pub.L. 100-430 at inception of the zoning lies with the City,as it is no longer the choice of
the park owner; park owners are legally compelled to allowtheir parks to be senior set-asides and private
sector discretion has been eliminated. This means the City will have assumed the requirements of
compliance with"older persons housing."
D. Assumption of Responsibility for Complying with "older persons' housing means providing
services and facilities for a population aging in place._
Thus,City provision of significant services and facilities focuses on the expectation of the seniors
to age in place.Housing for"older persons"is not justa stepto another destination.It is a permanent place
to retire.Unless one fatuously succumbs to the fallacy of"Peter Pan"housing,the recognition of changing
7 See Exhibit"B" (54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988)
Item 8. - 94 xB -292-
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Page 16
needs in unavoidable.The needs of the elderly change as they grow older.Significant services and facilities
must be provided, under California law, to address these evolving physical changes. The regulations
recognize these plain realities when they say:
(a) The provisions regarding familial status shall not apply to housing intended
and operated for occupancy by at least one person 55 years of age or older per
unit, Provided,That the housing satisfies the requirements of§ 100.304(b)(1)or
(b)(2) and the requirements of§100.304(c).
(b) (1) The housing facility has significant facilities and services specifically
designed to meet the physical or social needs of older persons. "Significant
facilities and services specifically designed to meet the physical or social needs of
older persons" include; but are not limited to, social and recreational programs,
continuing education, information and counseling, recreational, homemaker,
outside maintenance and referral services, an accessible physical environment,
emergency and preventive health care of programs, congregate dining facilities,
transportation to facilitate access to social services, and services designed to
encourage and assist residents to use the services and facilities available to them
(the housing facility need not have all of these features to qualify for the
exemption under this subparagraph);. . .
Exhibit "A", page 149, lines 14-26.
HUD"s comments underpinning the statute also reference the fact that significant services and
facilities may cover the gamut of aids to the retired and elderly,from "active"seniors to the seniors may
not be capable of independent living.
Rased upon the reaction hundreds of commenters had to the proposed definition of
"significant facilities and services designed to meet the physical or social needs of older
persons" it appears that the presence early on in the definition of "congregate dining
facilities"and an"accessible physical environment"may have created an impression that
only housing for older persons who are not capable of living independently would satisfy
the requirements of paragraph (b)(1). The Department wishes to stress that a housing
facility may have significant facilities and services designed to meet the physical or social
needs of older persons and still provide housing for active older persons who live very
independently.A housingfacility,forexample,need not necessarilyhave congregate dining
facilities or an accessible physical environment in order to qualify, In fact, many of the
facilities and services on the list can readily be associated with active older persons.These
include social and recreational programs, preventive health care, information and
counseling, recreational services,and transportation to facilitate access to social services.
Moreover,the list of services on this list was not intended to be exclusive.As a result of
this reaction,the Department has reordered the list of services and facilities in the final
rule.in addition,"welfare" has been deleted from the list because it appears only to have
HB -293- Item 8. - 95
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January 27, 2014
Page 17
relevance in the context of governmental programs for elderly persons which are covered
by§ 100.301,
Exhibit"A" page 50, lines 9-22.
The services and facilities suggested are not exclusive;however,the facilities and services must be
designed to meet the needs of seniors, not all adults.And the services and facilities must be significant.
The facilities and services designed to meet the physical or social needs of older persons
must be "significant" in order to satisfy paragraph (b)(1). It is not possible for the
Department to define precisely what services and facilities must be present before they are
considered "significant." The services and facilities will necessarily vary based on the
geographic location and the needs of the residents. However,it is clear,for example,that
the installation of a ra mp at the front entrance of a housing facility would not constitute
a"significant"facility designed to meet the physical needs of older persons. Similarly,the
provision of minor amenities--such as putting a couch in a laundry room and labeling it a
recreation center--would not constitute a"significant"facility designed to meetthe social
needs of older persons. House Report at 32.
Exhibit"A" page 50, lines 23-31.
This requirements posits a real challenge for a City which forces a property to operate "older
persons"housing.The City's intent,to besufficient,mustcontinue to satisfythe requirements foroperating
a legally compliant "older persons" housing opportunity. The City must clarify how it intends to provide
compliance with this requirement.
The proposed senior zone does not presently define"significant services and facilities"required to
pass muster under Pub.L.100-430. In virtually all previous cases,private housing providers could not pass
that test.$ See, e.g., Rogers v. Windmill Pointe Village Club Ass'n, Inc., 967 F.2d 525, 527-28 (11th Cir.
1992);Park Place Home Brokers v.P-KMobile Horne Park,773 F.Supp.46,51-52(N.D.Ohio 1991);Lanier
v. Fairfield Communities Inc., 776 F. Supp. 1533, 1535-37 (M.D. Fla. 1990); U.S. v. Winters, Fair
Housing—Fair Lending Rptr.$15,903,at p.15,903.6(D.N.M.1993),aff'd,38 F.3d 1221(10th Cir.1994);U.S.
v.Keck,1990 WL 357064(W.D.Wash.1990);HUD v.Ocean Parks Jupiter CondominiumAss'n,Inc.,1993 WL
316543, Fair Housing—Fair Lending Rptr. 1125,054, at pp. 25,519-20 (HUD AU 1993); HUD v. TEMS
Association, Inc., 1992 WL 406528, Fair Housing--Fair Lending Rptr. ¶25,028, at pp. 25,08--09 (HUD AU
1992);HUD v.Murphy,1990 WL456962,Fair Housing—Fair Lending Rptr.¶25,002,at pp.25,044-47(HUD
AU 1990); see also U.S. v. City of Hayward, 36 F.3d 832, 837 (9th Cir. 1994).According to a 1995 Senate
report, "it has been unclear what the phrase`significant facilities and services'means....There have been
a If the city requires senior zoning, and enforces it as it must(infra),at least the liability to the likely
plaintiffs (all age families,their brokers,family members, associates, civil rights organizations)will be
efficiently shifted to the City as the source of the discrimination.
Item 8. - 96 HB -294-
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Page 18
so many lawsuits that the exemption Congress intended is now being revoked as a practical matter by
threat of litigation."9 If the city intends for a senior zone to mean anything, it must define California's
version of"significant services and facilities."Without such specification,the proposed law is notiustfataily
vague and uncertain, it is missing an entire appendage of content.
As the proposed zoning does not address whatservices and facilities must be provided in order to
provide a qualification allowing older persons housing, the zoning proposal is bereft of a key requisite
condition for allowable senior housing.in the past when challenged,the individual park ownerwas able to
abandon an"older persons"regulation if challenged.Under the proposed zone,the City will be a litigation
"magnet"called on to defend all claims from third parties seeking to reside in a community because it fails
to meet the test under Pub.L. 100-430 for significant services and facilities.The City lay open and barren
of defenses, because the proposed zone does not provide any specification or requirement forthe housing
to provide.
Moreover, without specification and provision of significant services and facilities provided bythe
City,a great disservice is being done to the seniors in the parks.
E.Senior lifestyies and home values will eventually suffer from the current proposal.Are elders are
better off because of an exemption for"older persons" housing?
A modicum of scrutiny reveals that any advantages for the younger retirees perceived today are
greatly outweighed by the personal and societal costs for the extreme aged trying to"age in place."
In some respects much of the 55-plus housing advocacy is reliant on a fallacious notion of"Peter
Pan housing." "Peter Pan housing" refers to a type of construction that"presumes the owners will never
grow old—housing that includes no concerns for obstacle free common areas for social activities and
entertainment, congregate dining, inside and outside stairways and steps, bathrooms, corridors and
doorways too narrow for wheelchairs and walkers, and other barriers to the aged or infirm.'° Peter Pan
housing also includes homes in far-flung suburbs and gated communities without access to public
transportation,or other means of mobilityfor elders who have given up driving."11 For example,one of the
U.S. Senate,Committee on the Judiciary,S.Rep. No.104-172, 104th Cong., 2nd Sess.3 (1995),
reprinted in U.S.Code Congressional and Administrative News 779 to 780.
1° All Things Considered, National Public Radio(Jon Pynoos, professor of gerontology policy and
planning at the University of Southern California),September 29, 2011,available at http://www.npr.org
/2011/09/29/14093 2807/pynoos-discusses-senior-housing.
See generally, Bauer, Stetson University College of Law "Peter Pan" as Public Policy: Should
Fifty-Five-Plus Age- Restricted Communities Continue to be Exempt from Civil Rights Laws and
Substantive Federal Regulation? http://papers.ssrn.com/so13/papers.cfm?abstract_id=2131816, last
xB -295- Item 8. - 97
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Planning and Building Department
January 27, 2014
Page 19
"significant servicesandfacilities"listed by HUD is transportation of the residents,provided bythe housing,
to shoppingand doctor`sappointments.Will the City provide this single amenity,among all others required,
to address seniors aging in place?
F. Significant Services and Facilities for Seniors Aging in Place
55-plus housing is,by definition,constructed for elders; many mobilehome parks,constructed in
the 1960's through the 1970's were built for "adults only" (which proved to become de facto "older
persons" housing before the FHAA) or at minimum,without regard for aging seniors. The allowance for
older persons housing today wasintendedto addressshortco mings in accommodationsfor"older persons"
by requiring"significant facilities and services."This remains the law in California.In terms of a involuntary
zoning regulation,the City must assume the duties of enforcement,as the housing has now been ascribed
a requirement for"older persons" housing which the City intends, not necessarily the park owner.
Despite the expectation and desire of the seniors'x to age in place, common areas, facilities and
services in mobilehome parks homeswere seldom if everconstructed with an eye toward aging in place.'
When originally constructed, there was no such requirements, as "adult housing" was the general rule
implemented to exclude children in the 1970's and before.Common areas did not provide for the infirmities
that often accompany aging. And of the scant number of housing facilities,generally, limited to 55 years
of age and up, due to changing tastes between different generations, many 55-plus communities quickly
become out of style, and the homes lose much of their resale value.The baby boomers of today are not
rushing to retire into mobilehome parks.
visited January 26,2014.
�x Kevin DeGood, Aging in Place,Stuck without Captions: Fixing the Mobility Crisis Threatening the Baby
Boom Generation,Transportation for America, available at http:/it4america.org/docs/Seniors
obilityCrisis.pdf at 9;See Supportive Services Programs to Naturally Occurring Retirement
Communities,Congressional Research Reporting Service Report for Congress, December 18, 2007,
available at http://aging.senate.gov/crs/agingl5,pdf[hereinafter Supportive Services Programs].
Y3 During the debate on HOAA,Senator Jan Kyl (R-AZ)referred to "significant facilities and services"as
"in a sense too frivolous." 141 Cong, Rec.S. 18063, December 6, 1995. See also n. 251-254 supra and
accompanying text. In fact, 66%of older Americans will need help with one or more daily essential
activities, but do not get the assistance they need. Government Accountability Office, Report to the
Chairman,Special Committee on Aging, U.S.Senate, More Should Be Done to Measure the Extent of
Unmet Need for Services(February 2011)at 18-19, available at http://www.gao.gov/new.items/
d11237.pdf.See also Administration on Aging, U.S. Department of Health and Human Services,A Profile
of Older Americans: 2011 at 15,available at http://www.aoa.gov/aoaroot/aging_statistics/Profile
/2011/does/2011 profile.pdf(16%of older Americans needed assistance;29%of older Americans over
age 80 needed assistance).
Item 8. - 98 HB -296-
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The image of even high quality mobilehome parks as other than "trailer parks" still escapes the
general public's eye. This locks many elders into homes ill-equipped to allow them to live safely and
independently as they age, often shifting much of the costs for their care to the local, state, and federal
governments.it is common knowledge that a home inhabited by elders are not kept and maintained as well
as income earners.Value declines forhousing units in mobilehome parks.As between two parkside-by-side
and identical in appearance,the "all age"community will always enjoy superior resale values. Over time,
the vacancies are harder to fill,and prices drop all the more.This phenomenon caused many park owners
to sigh a breath of relief when the FHAA forced abandonment of"adult only" or"older persons" housing
to an "all age" housing which justified the abandonment of these regulations to the waning tenant
populations.
Today,outside California,SS-plus communitiesthat offerlittie beyond a restriction against children.
In California, Pub.L. 100-430 assures that such an exclusion is not enough.The Housing for Older Persons
Act of 1995 may have relaxed and eliminated the significant services and facilities requirements in other
states, but California's state law enforcement maintains these requirements and compels the City to add
significant services and facilities if not present,and other evidence intent to ape rate older persons housing.
Post.These services and facilities must be relevant to the seniors as they age.This is no simple task. For
example, despite being advertised as congenial places for persons at the same stage in life to grow old
together, most SS-plus communities today cater to the younger and more active retiree. In fact, most
housing for elders is"designed for people who are never going to age nor grow old"—Peter Pan housing.
This proposition simply ignores the reality of aging.
While a fifty five year old couple may find they enjoy their new home's recreational amenities,
which might include access to a swimming pool or golf course (neither of which are facilities specifically
designed to meet the needs of the elderly)they may find that as they age their environment fails to meet
their changing needs. Specifically,they may find,after it is too late,that their new homes steps are difficult,
that there are barriers to entry at the clubhouse and other facilities(the ADA does not apply to private
housing not open to the public),and other impediments to aging in place. And they may also find that their
community includes no safety devices for emergencies,to which seniors are far more likelyto experience.
For example,the parks may not have significant facilities and services as the seniors age in place for:
1. No Life safety devices
• defibrillators
• automatic sprinklers or
• fire extinguishers
40 trained medical or health personnel
• no emergency equipment(such as generators to run elevators,lights)
• no oxygen equipment for those requiring it),
2. No age-appropriate social programming
no program to assist the infirm or shut-in.
HB -297- Item 8. - 99
DOWD AL.L LAW OFFICES
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January 27, 2014
Page 21 '
congregate dining
educational opportunities
means of communication
But these features often do not appeal to younger retirees who have yet to experience their own
infirmities; a horne with no obstacles to aging in place may be priced similarly to a home.with more
attractive kitchen countertops, bathrooms,and appliances.'`
It is the desire of most Americans to stay where they are,for as long as they are able to do so, '
This phenomenon is increasingly called "Aging in Place."-5 Barriers to aging in place include homes
constructed without accessibility, safety, security and usability measures required for many elders. As
people age,these barriers present serious threats to independence and increase caregiver burden.
Unsafe Peter Pan housing adds to Medicare costs, and further burdens the federal and state
governments. According to the U.S Centers for Disease Control and Prevention,persons 75 and older have
a fall rate of 115 for every 1000 people"and one out of every three Americans age 65 and older fall each
year." In 2009, 2.2 million nonfatal fail injuries among older adults were treated in emergency
departments and more than 581,000 of these patients were hospitalized.'-4 In 2000,direct medical costs
of falls totaled a little over$19 billion—$179 million forfatal falls and$19 billion for nonfatal fall injuries."
14 Home "features specifically designed to address a disability remain stigmatized and unpopular,and do
not increase a new home's market value."Lehning,supra n.49(citing Connell&Sanford, 2001).
i5 Pynoos,supra n.7,at 78; Kevin Debood,Aging in Place,Stuck without Options:Fixing the Mobility
Crisis Threatening the Baby Boom Generation,Transportation for America,available at
http://t4america.org/docs/SeniorsMobilityCrisis.pdf at 9;See Supportive Services Programs to
Naturally Occurring Retirement Communities,Congressional Research Reporting Service Report for
Congress,December 18,2007,available at http://aging.senate.gov/crs/agingl5.pdf.
15 Pynoos,supra n.7,at 78;
17 Falls, O/derAdults, U.S.Centers for Disease Control and Prevention, available at
http://www.cdc.gov/HomeandRecreationalSafety/Falls/index.html. The average fall rate for all age
groups is 43. ld.
1S Casts of Foils Among Older Adults, U.S.Centers for Disease Control and Prevention, available at
http://www.cdc.gov/HomeandRecreationalSafety/Falls/fallcost.htmi.
19 id.20 id.
Item 8. - 100 xB -298-
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January 27, 2014
Page 22
This equals$28.2 billion in 2010 dollars.21 By 2020,the annual direct and indirect cost of fall injuries is
expected to reach$54.9 billion(in 2007 dollars).``
Direct costs are paid by Medicare, Medicaid, patients and private insurance companies, but they
do not account for disability dependence,inabilityto participate in household duties,and reduced quality
of life.zs
These obstacles force elders into less desirable, more expensive, and more restrictive housing
options,such as assisted living facilities and nursing homes. Indeed,there is often an all-or-nothing choice
between a cost-prohibitive retrofit of a current home versus a move into an expensive supervised facility
that may offer more restrictions and services than the elder actually needs.`A Of course, many elders
cannot afford to retrofit their homes or move into housing offering the services they need.`
Absent City provision of significant services and facilities as required by Pub.L.100-430,the purpose
of fostering aging in place is thwarted and frustrated. Such a finding vitiates any conclusion that extant
services and facilities are significant to meet, specifically,the needs of seniors.
". . . significant facilities and services.specifically designed to meet the physical or social
='id.
22 Id
23 id.
24 A recent survey shows annual assisted care living fees to average$39,600 annually. 2020
Genworth's 9th Annual Cost of Care Survey,available at
http://www,genworth,com/content/etc/medialib/genworth_v2/pdf/itc_cost_of_care.Par.20922,File.da
t/USAJgnw.pdf. Annual fees at Century Village are approximately$5,000, not including taxes or
insurance. See generally Kelly Greene, Retiree Havens Turn Younger To Combat Housing Bust, South
Florida Sun-Sentinel(Ft. Lauderdale, FL), December 1, 2008.
According to the 2010 Census,the poverty rate for those 65 and older is approximately 9%.
Income, Poverty, and Health Insurance Coverage in the United States; 2010, available at
http://www.census.gov/newsroom/releases/archives/income_wealth/cbll-157,htmi (last visited May
16, 2012). More than 15%of elders live at or near poverty levels, ranging from 8.1%in Nevada to
29.5% in Mississippi. Patricia E. Salkin,A Quiet Crisis In Americo:Meeting the Affordable Housing Needs
of the Invisible Low-income Healthy Seniors, 16 Geo.J. on Poverty L. &Poly 295,291-92 (2009)
HB -299- Item 8. - 101
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January 27,2014
Page 23
needs of older persons""
Exhibit"B," Page 49, line 40.
Indeed,there is often an all-or-nothing choice between a cost-prohibitive retrofit of a current home
versus a move into an expensive supervised facility that may offer more restrictions and services than the
elder actually needs. To age in place requires a community where:
1) age is not a significant barrier to participation in life-Song interests and activities;
2) there is support for elders with age-related infirmities to meet critical health and social
needs;and
3) there are opportunities for elders to engage in fulfilling act.ivities.Z'
An importantaging in place initiative is the phenomenon known as"naturally occurring retirement
communities" ("NORC")." "Officially,the NORC designation now connotes a community that is bringing
in necessary social services, and receives government funding to better address the needs of older
residents,"although the term is used casually to referto many informal communities comprised largely of
elders.z9 Studies consistently show that the majority of elders today wish to stay in their own homes as
zG Exhibit"B," page 50, line 25-31("It is not possible for the Department to define precisely what
services and facilities must be present before they are considered"significant."The services and
facilities will necessarily vary based on the geographic location and the needs of the residents.
However, it is clear, for example,that the installation of a ramp at the front entrance of a housing
facility would not constitute a "significant"facility designed to meet the physical needs of older persons.
Similarly, the provision of minor amenities--such as putting a couch in a laundry room and labeling it a
recreation center--would not constitute a"significant'facility designed to meet the social needs of
older persons. House Report at 32").
2
7 Bauer,Stetson University College of Law "Peter Pan" as Public Policy:Should Fifty-Five-Plus Age-
Restricted Communities Continue to be Exempt from Civil Rights Laws,supra.
�s Id,
Rebecca Darcy rAulhare,The NORCs are Coming!The Cooperator, May 2002,available at
http.//cooperator.com/articles/729/1/The-NORCs-Are-Coming/Pagel.htm1. The federal government
defines a NORC as "a community with a concentrated population of older individuals, which may
include a residential building, a housing complex, an area (including a rural area)of single family
residences, or a neighborhood composed of age-integrated housing--where 40 percent of the heads
of households are older individuals; or a critical mass of older individuals exists,based on local factors
that, taken in total, allow an organization to achieve efficiencies in the provision of health and social
services to older individuals living in the community;and that is not an institutional care or assisted
living setting." P.L.109-365,Section 409.
Item 8. - 102 IJB -_300-
DOWDALL LAW OFFICES
A PROSES S; ONP.L. CO RPC)RATIO N
ATTORNEYS AT LAW
City of Huntington Beach
Planning and Building Department
January 27, 2014
Page 24
they age. The challenge is to bring medical and social services, age-appropriate activities, and
transportation to these elders,where they currently live, rather than necessitating their move elsewhere
in order to receive these benefits.
NORCs do more than provide medical services,or help elders with housekeeping. A NORC can"also
foster a sense of community by engaging volunteers to help seniors and encouraging seniors to become
involved in community activities." "Ironically, to some degree now, and certainly in the future, old
neighborhoods in cold northern cities with plentiful NORCs may offer a better lifestyle for elders than do
Sunbelt communities developed specifically for those older than fifty fi+re."o
G. Depreciation of Older Persons Housing
As life spans continue to grow, a process of reverse migration has developed for many retirees.2"
Rather than spend their final years in a 55-plus community, many of the extreme aged find they cannot
continue to live alone. The most fortunate ones are able to sell their 55-plus homes. Many failed to
anticipate living well into their 80's,to an age when declining health and"loneliness would compel them
to pull up roots again.„st
55-plus communities worked for a time because the Greatest generation had a comfortable
retirement premised on federal benefits and pensions,and did not live long enough to exhaust their money
or need more services.33 The current recession has forced many retirees to live on significantly less due
to lower returns on stocks, bonds, and other investment instruments. Now that people are living longer,
at some point a substantial number will find that their 55-plus community no longer meets their needs.
Many find their options at that point to be quite limited because of their income and savings.One problem
is that 55-plus housingfails to appreciate,and even declines invalue.a4 In 2010,Forbes magazine noted,that
`,ld.
J Ruth La Feria,Retirees Come Full Circle,The New York Times(New York,N.Y.), November 28, 2004.
12ld. See also Susan Donaldson James,Seniors Find Sun,Sin and Sorrow in a Fla. Retirement Village,ABC
News (July 30, 2012),available at littp:Habcnews.go.com/Health/kings-point-aging-america-
lonely/story?id=16873524.
33 Fran Hathaway,At Third State'Boomers Act Well,The Palm Beach Post(Palm Beach, FL), February 6,
2000.
34 See generally Diane Lade,Low Prices Keep the Market Moving, South Florida Sun-Sentinel(Ft.
Lauderdale, FL),April 27, 1997;Zack O'Malley Greenburg, Florida Retirement Horses on Sale, Forbes,
December 6, 2010; Daniel Vasquez,Living with Rules,A Dilemma; What to do with Inherited Condo,
South Florida Sun-Sentinel(Ft. Lauderdale, FL), December 17,2008;Greene,supra n.47.
xB -3 Q 1_ Item 8. - 103
DOWDALL LAW OFFICES
A PROFESSIONAL C O R P O R A T 10 N -
ATTORNEYS AT LAW
City of Huntington Beach
Planning and Building Department
January 27,2014
Page 25
the price of a basic one bedroom condominium inthe Century Villages in West Palm Beach and Boca Raton
was"as little as$8,500."35 Unless the retiree has source of money beyond a Century Village condominium,
leaving fora facility offering additional services forthe extreme aged,such as independent orassisted living,
may be financially impossible.36 The lesson learned here is that the retiree may not be able to sell the
mobilehome for what was invested,as it declines in value to the point that independent living is no longer
possible.Forbes notes that while one bedroom condominiums at Century Village Boca Raton were selling
for as little as$8,500,the median price for one-bedroom condominiums in all of Boca Raton was$50,000.37
At the time,five to six percent of the units in Century Village were vacant."'
Since mobi►ehomes are vehicles, built for travel and do, especially in this rescission, move
frequentlyaround the state,they depreciate overtime.Com pared to"all age"housing,their values are less.
Because of the diminished market of buyers,the senior mobilehome will always be less.As seniors ar eon
fixed incomes and have less discretionary capital,they are unable to care for and to maintain and repair
their homes. And failure to repair brings consequences for greater than ordinary conventional housing.A
plumbing leak,unrepaired, maylead to a rotting of the entire particle board sub-floorof the home.Itis not
uncommon that untreated leaks may cause a commode or water heater,for example,to fall through the
floor of the home onto the ground below.As seniors continue to age,this"triple whammy"effect takes its
toll.
H. Hardships on Residents.
Bauer(id.) reports that the news media is replete with tragic stories of children barred from living
with their grandparents in a 55-plus community.
Chaz Chope made national headlines after he moved into his grandparents' home to
escape his stepfather's physical and emotional abuse;he wastold to leave bytown officials
enforcing the restriction against children.39 Desarae Carrie, whose mother was dying of
cancer,was initially barred from living with her grandparents, her only living relatives,in
35 Greenburg,supra n. 106.
3�See generally La Ferla,supra n. 22.
37 Gree nburg,supra n.25.
38 Id.
39 See Youngtown;Kid's Stuff,Ariz. Republic,Aug. 21, 1996, at B4;Retirement Town Evicting Residents'
Grandson, 16, Chi,Trib., Dec. 24, 1996,at N6; Youngtowvn to Hold Off on Evicting Teenager,Ariz.
Republic,Jan. 22, 1997, at B1.
Item 8. - 104 HB -302-
DC3WDALL LAB% OFFICES
A PR 0 -E SS I O N A L COR P OR A.T 1 0 N
.ATTOR14EEYS Al LAN
City of Huntington Beach
Planning and Building Department
January 27, 2014
Page 26
their 55-plus community 40 Kimberly Broffman's mother was a substantive abuser; her
grandparents took her in and then faced eviction proceedings from their 55-plus
homeowner's association.A
Consider:
• Parents may be out of work or losing their home.
• The parents may be divorcing and need to rely on the grandparents until they are
resettled.
• One or both parents may be criminals, drug-addicted, or abusive, and the
grandparents step in to help.°`
• In these situations,the grandparents(and 55-plus community) may be pulled into
expensive litigation."
• Or the grandparents may be forced to sell their homes,often at a loss because of
the time pressure to get out"4
Conclusion
The proposed ordinances must exempt Rancho Huntington because it is an"all age"facility.It has
been since July,2013.The proposed ordinances must be rectified in the manner provided in this letter to
withstand muster under California law before they may be applied to any park owner.Thank you for your
kind attention to the foregoing matter.
Very Truly-Yours,
Terry R, Dowdall
for
DOWDALL LAW OFFICES,A.P.C.
ENCL:Exhibits"A," agar
4°Adult Community Told to Let Teen-Alter Stay, N.Y.Times, Feb. 23, 1997,at 19.
as Stephanie Chen, The Minor Threat.,Age-Restricted Commu,;ities Evicting Children,AOL Real Estate,
available at http.//realestate.aol.com/blog/2012/01/06/the-minor-threat-age-restricted-communities-
evicting-children (last visited May 18,2012); Drew Harwell,8-Fear-Old Can Stay in Grandparents'Age-
Restricted Neighborhood Judge Rules,Tampa Bay Times, May 15,2012.
4` Under the FHA, 20%of the units in 55-plus housing can serve those under age 55 without sacrificing
the community's exempt status.See 42 U.S.C. § 3607(b)(2)(C)(i), (ii), (iii).
43 Id,
4a Id, 1113 -303- Item 8. - 105
DOWWDALL LAW OFFICES
A P R O F E 5 5 1 0 N A L C O R P G R A 1 1 O N
ATTORNEYS Al LAW
City of Huntington Beach
Planning and Building Department
January 27,2014
Page 26
their 55-plus community," Kimberly Broffman's mother was a substantive abuser; her
grandparents took her in and then faced eviction proceedings from their 55-plus
homeowner's association.41
Consider:
• Parents may be out of work or losing their home.
• The parents may be divorcing and need to rely on the grandparents until they are
resettled.
• One or both parents may be criminals, drug-addicted, or abusive, and the
grandparents step in to help.42
• In these situations,the grandparents(and 55-plus community)may be pulled into
expensive litigation.43
• Or the grandparents may be forced to sell their homes, often at a loss because of
the time pressure to get out.44
Conclusion
The proposed ordinances must exempt Rancho Huntington because it is an"all age"facility. It has
been since July,2013.The proposed ordinances must be rectified in the manner provided in this letter to
withstand muster under California law before they may be applied to any park owner.Thank you for your
kind attention to the foregoing matter.
Ve T ul Yours
Terry R. Dowdail
for
DOWDALL LAW OFFICES, A.P.C.
C\\ HRH-01-26-1<_V 2
ENCL:Exhibits"A,,, "B
4°Adult Community Told to Let Teen-Ager Stay, N.Y.Times,Feb.23, 1997,at 19.
"Stephanie Chen, The Minor Threat:Age-Restricted Communities Evicting Children,AOL Real Estate,
available at http://reaIestate.ao1.com/biog/2012/01/06/the-minor-threat-age-restricted-communities-
evicting-children(last visited May 18,2012); Drew Harwell,8-Year-Old Can Stay in Grandparents'Age-
Restricted Neighborhood Judge Rules,Tampa Bay Times, May 15,2012.
42 Under the FHA, 20%of the units in 55-plus housing can serve those under age 55 without sacrificing
the community's exempt status.See 42 U.S.C. §3607(b)(2)(C)(i),(ii), (iii).
4s id.
Item 8. - 106 HB -304-
`
`
`
[
z Fair Housing Act '
}
z As Amended 6vPu�.LlOO-4�O /
^ �
s (Federal Fair Housing Amendments Act ofI488) �
4
s It is the policy of the United States to provide, within constitutional limitations, for fair housing
s throughout the United States.
7 4ZU.SI.S. §3GOl Declaration nfpolicy
u
e !
zn Az used in this dde-- '
|
11 (a) "Secretary" means the Secretary nf Housing and Urban Development,
zz (b) "DvveUng" means any building, structure,nr portion thereof which is occupied as, or
zo designed or intended for occupancy as, a residence by one or more families,and any vacant land |
|
14 which is offered for sale or lease for the construction or location thereon of any such building, �
15 structure, nr portion thereof. |
16 (c) "Famik" includes single individual. i
o (d) "Person" includes one nrmore individuals, corporations, partnerships, associations, �
is labor organizations, legal representatives, mutual companies, joint-stock companies trusts !
zy unincorporated organizations,trustees,trustees in cases undertb|e11of the United States Code �
m [1lUSCSg§1Oletseq], receivers,and fiduciaries. /
z' (e)"To rent"includesto lease,tosublease,to let and otherwise tograntfora consideration
zz the right tn occupy premises not owned by the occupant. i
23 (f)"Discriminatory housing practice"means an act that is unlawful under section 804,805,
(
24 806, nr818 [42U6CS §§3604 3605, 3606 nr3G1D].
zs (g) "6tate" means any nf the several 5tates the the `
' ' |
26 of Puerto Rico, nr any of the territories and possessions nf the United States. !
zr (h) "Handicap" means,with respect to a pe/snn--
zu (l)a physical or mental impairment which substantially limits one nr more of such �
�
z, pemnn's major life activities, |
ao (2)a record nf having such an impairment,or
31 (3) being regarded ao having such animpairment,
32 but such term does not include current, illegal use of or addiction to a controlled substance (as
32 defined in section lOZof the Controlled Substances Act(2lUlC. 002)).
34 (i) "Aggrieved person" includes any person vvho-- �
�
35 (])claims tn have been injured bya discriminatory housing practice;nr i
36 (2)believes that such personwill be injured bya discriminatory housing practice that �
z, io about tnoccur.
38 (j)"Complainant"means the person (including the Secretary)who files a complaint under )
�
ay section 8lO [4ZU5C5§36lO]. /
^m (k) "Familial status" means one or more individuals (who have not attained the age of 18 '
/o years\ beinQdnmid�eds�h-- |
� '
m (1)a parent or another person having legal custoclyof.such individual orindividuals; �
's or `
4-4 (2) the designee nfsuch parent or other person having such custody, with the .
1+5 written permission nf such parent nr other person.
EXHIBIT"A"
Fair Housing Act.As Amended by Publ.100-430 Page4-
T+�rn Q 187
l{B -3U�- ^�*'^^ �'^ - ^» '
EXHIBIT"A"
Fair HousingAct,As Amended by Publ. 100.430
1 The protections.afforded against discrimination on the basis of familial status shall apply to any
2 person who is pregnant or is in the processof securing legal custody of any individual who has not
3 attained the age of 18 years.
4 (1)"Conciliation"means the attempted resolution of issues raised by a complaint,or by the
5 investigation of such complaint,through informal negotiations involving the aggrieved person,the
6 respondent, and the Secretary.
7 (m)"Conciliation agreement"meansa written agreement setting forth the resolution of the
s issues in conciliation.
9 (n)"Respondent" means-
10 (1)the person or other entity accused in a complaint of an unfair housing practice;
1s and
12 (2)any other person or entity identified in the course of investigation and notified
13 as required with respect to respondents so identified under section 810(a) (42 USCS §3610(a)).
14 (o)"Prevailing party"has the same meaning as such term has in section 722 of the Revised
15 Statutes of the United States (42 U.S.C. 1988).
16 42 USCS § 3602. Definitions
17 (Apr. 11, 1968,P.L.90-284,Title Grill, §802,82 Stat.81; Nov.6, 1978,P.L.95-598,Title III,§331,92
1s Stat. 2679.)
1a (As amended Sept. 13, 1988, P. L. 100-430, §5, 102 Stat, 1619.)
20
21
(a)Application to certain described dwellings. Subject to the provisions of subsection (b)
23 and section 807 [42 USCS §3607], the prohibitions against discrimination in the sale or rental of
24 housing set forth in section 804[42 USCS §3604] shall apply:
25 (1) Upon enactment of this title [enacted April 11, 19681,to—
es (A) dwellings owned or operated by the Federal Government;
27 (B)dwellings provided in whole or in part with the aid of loans, advances,
2v grants,or contributions made by the Federal Government, under agreements entered into after
29 November 20, 1962, unless payment due thereon has been made in full prior to the date of
30 enactment of this title [enacted April 11, 1968];
31 (C)dwellings provided in whole or in part by loans insured,guaranteed,or
32 otherwise secured by the credit of the Federal Government,under agreements entered into after
33 November 20, 1962,unless payment thereon has been made in full prior to the date of enactment
34 of this title [enacted April 11, 1968]: Provided,That nothing contained in subparagraphs (B) and
3; (C) of this subsection shall be applicable to dwellings solely by virtue of the fact that they are
36 subject to mortgages held by an FDIC or FSLIC institution, and
37 (D) dwellings provided by the development or the redevelopment of real
38 property purchased, rented, or otherwise obtained from a State or local public agency receiving
119 Federal financial assistance for slum clearance or urban renewal with respectto such real property
40 under loan or grant contracts entered into after November 20, 1962.
41 (2) After December 31, 1968, to all dwellings covered by paragraph (1) and to all
42 other dwellings except as exempted by subsection (b).
43 (b) Exemptions. Nothing in section 804[42 USCS §3604) (other than subsection (c))shall
EXHIBIT"A"
Fair Housing Act AS Amended by Pub.L.100-430 page-2-
Item 8. - 108 FIB -306-
EXHIBIT"A"
Fair Housing Act,As Amended by Pub.L.100--430
1 apply to-
2 (1)any single-family house sold or rented by an owner:Provided,That such private
3 individual owner does not own more than three such single-family houses at any one time:
4 Provided further,That in the case of the sale of any such single-family house bya private individual
5 owner not residing in such house at the time of such sale or who was not the most recent resident
6 of such house prior to such sale,the exemption granted by this subsection shall apply only with
7 respect to one such sale within any twenty-four month period: Provided further,That such bona
s fide private individual owner does not own any interest in, nor is there owned or reserved on his
9 behalf, under any express or voluntary agreement, title to or any right to all or a portion of the
10 proceeds from the sale or rental of, more than three such single-family houses at any one time:
11 Provided further,That after December 31,1969,the sale or rental of any such single-family house
12 shall be excepted from the application of this title only if such house is sold or rented (A) without
13 the use in any manner of the sales or rental facilities or the sales or rental services of any real
14 estate broker,agent,or salesman, or of such facilities or services of any person in the business of
1s selling or renting dwellings, or of any employee or agent of any such broker,agent, salesman, or
16 person and (B) without the publication, posting or mailing, after notice, of any advertisement or
17 written notice in violation of section 804(e) of this title [42 USCS §3604(e)]; but nothing in this
is proviso shall prohibit the use of attorneys,escrow agents, abstractors,title companies,and other
19 such professional assistance as necessary to perfect or transfer the title, or
20 (2) rooms or units in dwellings containing living quarters occupied or intended to
21. beoccupied by no more than fourfamilies living independently of each other,if the owneractually
22 maintains and occupies one of such living quarters as his residence.
23 (e) Business of selling or renting dwellings defined. For the purposes of subsection (b), a
24 person shall be deemed to be in the business of selling or renting dwellings if-
25 (1) he.has, within the preceding twelve months, participated as principal in three
26 or more transactions involving the sale or rental of any dwelling or any interest therein, or
27 (2) he has, within the preceding twelve months, participated as agent, other than
28 in the sale of his own personal residence in providing sales or rental facilities or sales or rental
29 services in two or more transactions involving the sale or rental of any dwelling or any interest
30 therein, or
3..1 (3) he is the owner of any dwelling designed or intended for occupancy by, or
32 occupied by,five or more families.
33 42 USCS§ 3603. Effective dates of certain prohibitions
34 (Apr. 11, 1968, P. L. 90-284,Title VI 11, §803, 82 Stat.82.)
35
36
37 As made applicable byseetion 803[42 USCS§36031 and except as exempted by sections 803(b)and
38 807 [42 USCS §§3603(b), 3607], it shall be unlawful-
39 (a)To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate
40 for the sale or rental of,or otherwise make unavailable or deny,a dwelling to any person because
41 of race, color, religion, sex,familial status, or national origin.
42 (b)To discriminate against any person inthe terms,conditions,or privileges of sale or rental
43 of a dwelling, or in the provision of services or facilities in connection therewith, because of race,
EXHIBIT"A"
Fair Housing Act As Amended b'v Pub.L.100-430 Page-3-
xB -3107- Item 8. - 109
'
—`.
�
|
EXHIBIT"A"
1 color, religion,sex,familial status,ornational origin. !
z (6To make, print, or publish, or cause to be made; printed, or published any notice,
a statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any
4 preference limitation, or discrimination based on race, color, religion, sex, handicap, familial
!
' ' !
s status,or national origin,oran intentionto make anysuch preference,limitation,or discrimination. !
o (d)To represent to any person becauseof race,color,religion,sex, handicap,familial status,
r or national origin that any dwelling is not available for inspection, sale, or rental when such |
o dwelling isin fact soavailable. '
s (e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by /
1m representations regarding the entry o, prospective entry into the neighborhood of person or /
11 persons of particular race, color, religion,sex, handicap, familial status, or national origin. �
zz (f) �zy (1)To discriminate in the sale or rental,or to otherwise make unavailable or deny, �
14 adweUing to any buyer or renter because ofa handicap of-- '
zs (A)that buyer renter,
' �
16 (B)a person residing in or reside |n that�vxe�Un�after it so '
' |
zr sold, rented,or made available; o, �
18 ([)any person associated with that buyer or renter.
�
1e (2)To discriminate against any person in the terms,conditions,or privileges of sale i
zo or rental of a dwelling,or in the provision of services or facilities in connection with such dwelling, �
zz because ofa handicap of-- �
xz (A)that person; or
o /8\a person residing in or intending to reside in that dwelling after itisso
z^ sold, rented,or made available; or
zs ([)any person associated with that person.
zo (3) For purposes of6is subsection, discrimination indmdes--
ar (A) a refusal to permit, at the expense of the handicapped person,
zy reasonable modifications of existing premises occupied or to be occupied by such person ifsuch
e modifications may be necessaryto afford such person full enjoyment of the premises exceptthat,
au in the case ofarenta| the landlord |
' ' |
az a modification on the renter agreeing to restore the interior of the premises to the condition that �
sz existed before the modification, reasonable wear and tear excepted. [J /
�
sa (B)a refusal to make reasonable accommodationsin rules,policies,practices, !
34 or services,when such accommodations may be necessaryto afford such person equal opportunity |
|
s to use and enjoy a dwelling; or '
36 (C) in connection with the design and construction of covered multifamily
�r dwellings for first occupancy after the date that is 30 months after the date of enactment of the |
so Fair Housing Amendments Act of 1988[enacted Sept. 13,19S81, a failure to design and construct j
ay those dwellings in such a noannerthat�--
*n (i) the public use and common use portions of such dwellings are
41 readily accessible to and usable by handicapped persons;
42 (ii) a(( the doors designed to allow passage into and within a|| |
' i
e premises within such dwellings are sufficiently wide to allow passage by handicapped persons in !
|
`
EXHIBIT"A` ,
Page 4- |
Xfw�, & 1 1 /�
"^�,^^ u. - / /v }{B -308-
/
EXHIBIT"A"
Fair Housing Act,As Amended bV Publ.'00-430
1 wheelchairs; and
2 (iii)all premises within such dwellings contain the following features
3 of adaptive design:
4 (1) an accessible route into and through the dwelling;
s (11) light switches,electrical outlets,thermostats, and other
6 environmental controls in accessible locations;
7 (111) reinforcements in bathroom walls to allow later
8 installation of grab bars;and
9 (IV)usable kitchens and bathrooms such that an individual in
10 a wheelchair can maneuver about the space.
1.1 (4) Compliance with the appropriate requirements of the American National
12 Standard for buildings and facilities providing accessibility and usability for physically handicapped
13 people (commonly cited as "ANSI A117.1") suffices to satisfy the requirements of paragraph
14 (3)(C)(iii).
1s (5) (A) If a State or unit of general local government has incorporated into its
16 laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed
17 to satisfy the requirements of that paragraph.
18 (B) A State or unit of general local government may review and approve
19 newly constructed covered multifamily dwellings for the purpose of making determinations as to
20 whether the design and construction requirements of paragraph (3)(C) are met.
21 (C)The Secretary shall encourage, but may not require,States and units of
22 local government to include in their existing procedures for the review and approval of newly
23 constructed covered multifamily dwellings, determinations as to whether the design and
24 construction of such dwellings are consistent with paragraph (3)(C), and shall provide technical
25 assistance to States and units of local government and other persons to implement the
26 requirements of paragraph(3)(C).
27 (D) Nothing in this title shall be construed to requirethe Secretaryto review
zs or approve the plans, designs or construction of all covered multifamily dwellings, to determine
29 whether the design and construction of such dwellings are consistent with the requirements of
30 paragraph 3(C).
31 (6) (A) Nothing in paragraph(5)shall be construed to affect the authority and .
32 responsibility of the Secretary or a State or local public agency certified pursuant to section
33 810(f)(3)of this Act(42 USCS§3610(f)(3)]to receive and process complaints or otherwise engage
34 in enforcement.activities under this title.
35 (B) Determinations by a State or a unit of general local government under
36 paragraphs (5)(A) and(B)shall not be conclusive in enforcement proceedings under this title.
37 (7)As used in this subsection, the term"covered multifamily dwellings"means-
38 (A)buildings consisting of or more units if such buildings have one or more
39 elevators; and
40 (B) ground floor units in other buildings consisting of 4 or more units.
41 (8)Nothing in this title shall be construed to invalidate or limit any law of a State or
42 political subdivision of a State, or other jurisdiction in which this title shall be effective, that
43 requires dwellings to be designed and constructed in a manner that affords handicapped persons
EXHIBIT"A"
Fair Housing Act.As Amended by Pub.L.100-430 Page-5-
HB -309- Item 8. - I I I
�
EXHIBIT"A"
� greater access than b required by this title.
z (S) Nothing in this subsection requires that a dwelling be made available to an �
3 individual whose tenancy m/muid constitute a direct threat to the health or safety of other �
* individuals orwhose tenancywould result in substantial physical damage tothe property of others. !
s 43 W3CS 6 3604. Discrimination in the sale mrrental of housing and other prohibited practices. �
<
s (Apr. 11, 1968 P. L. 90'284 Tb>eV1)[ §804 02 Stat. 83; Aug. ZZ, 1974, P. L. 93-383 Title Vili
r §808(b)(I), 085tat. 729')
o (As amended Sept. l3, l9QA, P� LlOO-43Q, §§6(a)-(b)(Z), (e[ l5, 1D25tat. l6Z2, l623, 1636)
* '
�
� |
cz (o) |n general. It shall be unlawful for any person or other entity whose business includes �
ia engagingin residential real estate-related transactions to discriminate againstany person inmaking �
14 available such a transaction,or in the terms or conditions of such a transaction, because of race, `
zs color, religion, sex, handicap,familial status, or national origin.
za (b) Definition.As used in this section,the term"residential real estate-related transaction"
zr means any mf the following: �
zu (l)Thenaakingmrpurchasingmf|mansorproxdingmtherfinanda| assistence-- �
1s (/) for purchasing, constructing, improving, repairing, or maintaining a |
o` dvueUin�-; or |
21 (13) secured by residential real estate
o (Z)The selling, brokering,or appraising oƒresidential real property.
za (c)Appraisal exemption. Nothing in this title prohibits a person engaged in the business of \
24 furnishing appraisals of real property totake into consideration factors other than race, color,
zs religion, national origin,sex, handicap,mr familial status. (
zs 42US[S § 3605. Discrimination 'nresidential real estate-related transactions /
�
z, U\pc 11, 1968, P. L. 90-284 Tb|eVU|, 6805, QZStat. 83; Aug. 22, 1974, P. L. 93-383, Title V1<[ �
zu §808(b)(2), 88Stat. 728.) !
zy (As amended Sept. l3, 198O, P. LlO0-43O, §6(c[ IOZStat. 16Z2.) �
m �
�
32 After Decennber31, 1968 it shall be unlawful to deny any person access to or membership or
ss participation in any multiple-listing service, neal estate brokers' organization or other service, |
34 organization, or or �
' !
35 against him in theterms or conditions of such access,membership,or participation,on account of �
ua race, color, religion, sex, handicap,familial status, or national origin. |
317 42US[S § 36O6. Discrimination ln the provision of brokerage services i
sn (Apr. ll, 1960, P. L. 80-284, T)t|eV|U, §806, 825te1. 84; Aug. 33, 1974, P. L 93-3O3, Title VU[ \
39 §808(b)(3), 88Sta1. 729.} '
*o (As amended Sept. I3, l98O, P. LlOO-43[\ §6(b)(D, lO3Stat. 16ZZ]
41 `
«z �
'o (a)Nothing in this title shall prohibit a religious organization,association,or society,or any i
�
�
|EXHIBIT"A" i
Fair Housing Act.As Amended by Pub-L 100-430 F3qe-6- '
/
�
T+�n� Q l l '�
^^�.,^ m' - ^ ^^~ BO3 -3l0-
EXHIBIT"A"
Fair Houalnq Act
As Amended bvPub.L- 139-430
I nonprofit institution or organization operated, supervised or controlled by or in conjunction with
2 a religious organization, association, or society, from limiting the sale, rental or occupancy of
3 dwellings which it owns or operates for other than a commercial purpose to persons of the same
4 religion,orfrom giving preferenceto such persons,unless membership in such religion is restricted
5 on account of race,color, or national origin. Nor shall anything in this title prohibit a private club
6 not in fact open to the public, which as an incident to its primary purpose or purposes provides
lodgings which it owns or operates for other than a commercial purpose,from limiting the rental
8 or occupancy of such lodgings to its members or from giving preference to its members.
9 (b) (1) Nothing in this title limits the applicability of any reasonable local, State, or
10 Federal restrictions regardingthe maximum number of occupants permittedto occupy a dwelling.
11 Nor does any provision in this title regarding familial status apply with respect to housing for older
persons.
(2)As used in this section,"housing for older persons" means housing-
14 (A) provided under any State or Federal program that the Secretary
15 determines is specifically designed and operated to assist elderly persons(as defined in the State
16 or Federal program);or
17 (B)intended for,and solely occupied by,persons 62 years of age or older;
or
19 (C)intended and operated for occupancy by at least one person 55 years
20 of age or older per unit. In determining whether housing qualifies as housing for older persons
21 under this subsection,theSecretary shall develop regulations which require at least the following
22
factors:
23 (i) the existence of significant facilities and services specifically
24 designed to meet the physical or social needs of older persons, or if the provision of such
23 facilities and services is not practicable, that such housing is necessary to provide important
26 housing opportunities for older persons;and
27 (ii)that at least 80 percent of the units are occupied by at least one
28 person 55 years of age or older per unit;and
29 (iii)the publication of,and adherence to, policies and procedures
30 which demonstrate an intent by the owner or manager to provide housing for persons 55 years
32 of age or older.
32 (3)Housing shall not fail to meet the requirements for housing for older persons
33 by reason of:
34 (A)persons residing in such housing as of the date of enactment of this Act
35 who do not meet the age requirements of subsections (2)(8) or (Q: Provided, That new
316 occupants of such housing meet the age requirements of subsections (2)(B)or(C);or
37 (B)unoccupied units:Provided,That such units are reserved for occupancy
38 by persons who meet the age requirements of subsections (2)(13)or(C).
39 (4)Nothing in this title prohibits conduct against a person because such person has
40 been convicted by any court of competent jurisdiction of the illegal manufacture or distribution
41 of a controlled substance as defined in section 102 of the Controlled Substances Act(21 U.S.C.
42 802).
43 42 USCS§ 3607. Religious organization or private club exemption
EXHIBIT"A"
Fair Housing Act As Amended by Pub-L. 100-430 Page-7-
HB -311- Item 8. - 113
—.'
`
EXHIBIT"N'
Fair Hou.qnp Act,As Amended by Pub.L.100-4.10
� (Apr. 11, 1968, P. L 90-284,Title\#U^ §807, 82Stat. 84.\ �
z (As amended Sept. 13, 1838, P. L. I00'430 §6N\, 102Stat 1623] i
u |
*
5 �
* (a)Authority and responsibility.The authority and responsibility for administering this Act �
7 shall bein the Secretary of Housing and Urban Development,
o (b) Assistant Secretary. Department Housing and Urban Deve\opmentsh�U 6e |
� �
e provided an additional Assistant Secretary. �
( ) Delegation of appointment hearing examiners; location of conciliation
zo `c , !
o meetings; administrative review. The Secretary may delegate any of his functions, duties, and i
12 powersto employees of the Department of Housing,and Urban Development orto boards of such �
3.3 employees, including functions, duties, and powers with respect to investigating, conciliating, �
m hearing, determining,or.dering,certifying, reporting, or otherwise acting as to work,business, or
is matter under this title.The persons to whom such delegations are made with respect to hearing
zs f u nctions,duties,and powers shall be appoi nted and shall serve in the Department of Housi ng and �
zr U rban Development in compliance with sections 3105,3344,5372,and 7521 of title 5 of the U nited �
18 States Code[SUSCS§§3105 ��4�53�J,762l].|nsafaraspnssib|e'cnndUatinnnneedn�ssbaUbe .
' �
zy held in the cities or other localities where th e discriminatory housing practices al legedly occu rred, !
zn The Secretary shall by rule prescribe such rights of appeal from the decisions of his hearing
zi examiners to other hearing examiners or to other officers inthe Department,to boards of officers !
zz ortn himself, as shall be appropriate and in accordance with law. '
zu (d)Cooperation of Secretary and executive departments and agencies in administration of i
z* housing and urban development programs and activities tn further fair housing purposes. Al}
zs executive departments and agencies shall administer their programs and activities relating to i
zo housing and urban development (including any Federal agency having regulatory nrsupervisory �
z, authority over financial institutions) in a manner affirmatively to furtherthe purposes of this title �
zo and shall cooperate with the Secretary to further such purposes. |
zy (e) FunctionsnfSecretary.TheSecretarynfHousingandUrban0eve(opnneotsha|l -- �
au (1) nnake studies with respect tn the nature and extent of discriminatory housing
31 practices in representative communities,urban,suburban,and rural,throughoutthe UnitedStates;
az (2) publish and disseminate reports, recommendations, and information derived �
3a from such studies, including an annual report to the Congress-- |
�4 (A) specifying the nature and extent of progress made nationally in �
ss eliminating discriminatory housing practices and furthering the purposes of this title, obstacles !
as remainingto achieving equal housing opportunity,and recommendations forfurther legisative or �
,r executive action; and
yu (B) containing tabulations ofthe number nfinstances (and the reasons !
as therefor) in the preceding year in wh\ch-- |
'm A) investigations are not completed as required by section �
' ' i
'u 810(a)(I)(B) [42USCS §3610(a)(1)(B)]| |
42 (ii)determinations are not made within the time specified insection |
^o 81O(e) N2USCS§36l0(g)];and �
�
�
EXHIBIT"A"
Fair Poge�� i
!
Item Q 114
EXHIBIT"A"
Fair!-lousing Act,As Amended by Pub.L 100-430
1 (iii)hearings are not commenced or findings and conclusions are not
2 made as required by section 812(g) [42 USCS §3612(g)]
3 (3)cooperate with and render technical assistanceto Federal,State,local,and other
4 public or private agencies, organizations, and institutions which are formulating or carrying on
s programs to prevent or eliminate discriminatory housing practices;
6 (4)cooperate with and render such technical and other assistance to the Community
7 Relations Service as may be appropriate to further its activities in preventing or eliminating
s discriminatory housing practices [;]
9 (5) administer the programs and activities relating to housing and urban
10 development in a manner affirmatively to further the policies of this title; and
1i (6) annually report to the Congress, and make available to the public, data on the
12 race, color, religion,sex,national origin, age, handicap, and family characteristics of persons and
13 households who are applicants for, participants in, or beneficiaries or potential beneficiaries of,
14 programs administered by the Department to the extent such characteristics are within the
15 coverage of the provisions of law and Executive orders referred to in subsection(f)which apply to
16 such programs (and in order to develop the data to be included and made available to the public
17 u n der this s ubsection,the Se c reta ry s hal 1,with out regard to a ny oth er provision of law,col le ct su ch
is information relating to those characteristics as the Secretary determines to be necessary or
19 appropriate).
20 (f) Provisions of law, etc., to which subset. (e)(6) applies. The provisions of law and
21 Executive ordersto which subsection (e)(6) applies are-
22 (1)title Vl of the Civil Rights Act of 1964[42 USCS §§2000d et seq.];
23 (2)title Vill of the Civil Rights Act of 1968;
24 (3)section 504 of the Rehabilitation Act of 1973 [29 USCS §794];
25 (4)the Age Discrimination Act of 1975 [42 USCS §§6101 et seq.];
25 (5)the Equal Credit Opportunity Act [15 USCS§§1691 et seq.];
27 (6)section 1978 of the Revised Statutes (42 U.S.C. 1982);
28 (7)section 8(a) of the Small Business Act [15 USCS §637(a)];
29 (8)section 527 of the National Housing Act [12 USCS §1735f-51;
3Q (9)section 109 of the Housing and Community Development Act of 1974[42 USCS
31 §5309];
32 (10)section 3-of theHousing and Urban Development Act of 1968[12 USCS§1701u];
33 (11) Executive orders 11063, 11246, 11625, 12250, 12259, and 12432 [42 USCS
34 §§1982 and 2000e notes,15 USCS§631 note, 42 2000d-1 note,42 USCS§§1982 and 3608 note 15
35 USCS §631 note];and
36 (12)any other provision of law which the Secretary specifies by publication in the
37 Federal Register for the purpose of this subsection.
38 42 USCS § 3608.Administration
39 (Apr. 11, 1968, P. L. 90-284, Title Vill, §808(a), (b) in part, (c)—(e), 82 Stat. 84;Oct. 13, 1978, P. L.
40 95-454,Title Vill, §801(a)(3)(J), 92 Stat. 1222.)
41 (As amended Sept. 13, 1988, P. L. 100-430, §7, 102 Stat. 1623.)
42
43
EXHIBIT"A"
Fair Housing Act,As Amended by?ub.L.100-430 Page-9-
xB _313_ Item 8. - 115
!
EXHl BIT"A" |
Fair Housing Act,As Amonded by Publ. 100-430
�
1 (a) In general.To assess the extent of compliance with Federal fair housing requirements �
z (including the requirements established under title VI of Public Law 88-352 and title Vill of Public /
3 Law 90-284),the Secretary of Housing and Urban Development and the Secretary of Agriculture '
4 shall each collect, not less than annually, data on the racial and ethnic characteristics of persons !
s eligible for, assisted, or otherwise benefi11inB under each community development, housing
s assistance, and mortgage and loan insurance and guarantee program administered by such |
�
r 5eu,etary. Such data shall be collected on a building by building basis if involved
� |
u determines such collection tobeappropriate. !
y (b) Reports to Congress. The Secretary of Housing and Urban Development and the
\
zo Secretary of Agriculture shall each include in the annual report of such Secretary to the Congress
zz a summary and evaluation of the data collected by such Secretary under subsection(a)during the |
zz preceding year.
13 42USCS § ]6O8a. Collection of certain data
14 (Feb. S, 1988, P. L. 100'242,lldeV,SubtideC, §SGZ, 101SiaL 1944)
15
n,
o Immediately after the enactment of this title [enacted April 11, 1968]the Secretary shall
m commence such educational and conciliatory activities as in hisjudgment will furtherthe purposes
za of this tide. He shall call conferences of persons in the housing industry and other interested
zm parties to acquaint them with the provisions of this title and his suggested means of implementing
zz it, and shall endeavor with their advice towork out programs of voluntary compliance and of
zz enforcernent.Henoaypayperdiem,trave{,andtransportadonexpensesforpeoonsattendinQsuch
23 conferences as provided in section 5703 of title S of the United States Code [S USC6§5703]. He `
z* shall consult with State and local officials and other interested parties to learn the extent, if any,
25 to which housing discrimination exists,in their State or locality,and whether and howState or local
26 enforcement programs might be utilized to combat such discrimination in connection with or in
zr place of, the Secretary's enforcement of this title. The Secretary shall issue reports on such
zx conferences and consultations ashe deems appropriate,
zy 42 USCS§ 3609. Education and conciliation;conferences and consultation; reports
30 ` (Apr. l1, 196O, P. L9O'ZO4,Title V|I|, §OO9,DZStaL85.)
31
32
s
m (a) Complaints and answers.
35 (l) (A) (1) An aggrieved person may, not later than one year after analleged
ss discriminatory housing practice has occurred o,terminated,file a complaint with the Secretary
sr alleging such discriminatory housing practice.The Secretary,on the Secretary's own initiative,may
38 also file such acomplaint.
39 (li)Such complaints shall bein writing and shall contain such information and
*o bein such form ar the Secretary requires.
*z (iii) The Secretary may also investigate housing practices to determine
m whether a complaint should be brought under this section.
/a (8) Upon the filing of such a complaint—
EXHIBIT'N`
Fair Housing Act,As Amended bv Pub.L. 100-430 Page 0-
�+�n� � 11 »�
�^~^^^ °, - ^ ^`, }|R -3l4-
I
EXHIBIT"A"
Fair Housing AcL As Amended by Pub.L.100 130
1 (i)the Secretary shall serve notice upon the aggrieved person acknowledging
2 such filing and advising the aggrieved person of the time limits and choice of forums provided
3 under this title;
4 (ii) the Secretary shall, not later than 10 days after such filing or the
s identification of an additional respondent under paragraph (2),serve on the respondent a notice
6 identifying the alleged discriminatory housing practice and advising such respondent of the
7 procedural rights and obligations of respondents under this title, together with a copy of the
s original complaint;
9 (iii)each respondent may file, not later than 10 days after receipt of notice
10 from the Secretary,an answer to such complaint; and
11 (iv) the Secretary shall make an investigation of the alleged discriminatory
12 housing practice and complete such investigation within 100 days after the filing of the complaint
13 (or,when the Secretary takes further action under subsection (f)(2)with respect to a complaint,
1.4 within 100 days after the commencement of such further action), unless it is impracticable to do
1s so.
16 (C)If the Secretary is unable to complete the investigation within 100 days afterthe
17 filing of the complaint(or, when the Secretary takes further action under subsection (f)(2) with
18 respect to a complaint, within 100 days after the commencement of such further action), the
.9 Secretary shall notify the complainant and respondent in writing of the reasons for not doing so.
20 (D) Complaints and answers shall be under oath or affirmation, and may be
21 reasonably and fairly amended at any time.
22 (2) (A)A person who is not named as a respondent in a complaint,butwho is identified
23 as a respondent in the course of investigation, may be joined as an additional or substitute
24 respondent upon written notice, under paragraph(1),to such person,from the Secretary.
2- (B) Such notice, in addition to meeting the requirements of paragraph (1), shall
26 explain the basis for the Secretary's belief that the person to whom the notice is addressed is
27 properly Joined as a respondent.
28 (b) Investigative report and conciliation.
29 (1) During the period beginning with the filing of such complaint and ending with
30 the filing of a charge or a dismissal by the Secretary, the Secretary shall, to the extent feasible,
31 engage in conciliation with respect to such complaint.
32 (2)A conciliation agreement arising out of such conciliation shall be an agreement
33 between the respondent and the complainant, and shall be subject to approval by the Secretary.
34 (3) A conciliation agreement may provide for binding arbitration of the dispute
35 arising from the complaint.Any such arbitration that results from a conciliation agreement may
36 award appropriate relief, including monetary relief.
37 (4) Each conciliation agreement shall be made public unless the complainant and
33 respondent otherwise agree and the Secretary determines that disclosureis notrequired tofurther
39 the purposes of this title.
40 (5) (A)At the end of each investigation under this section,the Secretary shall
41 prepare a final investigative report containing-
42 (i) the names and dates of contacts with witnesses;
43 (R)a summary and the dates of correspondence and other contacts
EXHIBIT'.Ass
Fair Housing Ack,As Amended by Pub.L,F 00-430 Page-9 t-
HB -31 s- Item 8. - 117
EXHIBIT"A"
Fair Housing AcL As Amended by Pub.L.100-430
1 with the aggrieved person and the respondent;
2 (iii) a summary description of other pertinent records;
3 (iv) a summary of witness statements; and
4 (v)answers to interrogatories.
5 (B) A final report under this paragraph may be amended if additional
6 evidence is later discovered.
(c)Failure to comply with conciliation agreement.Wheneverthe Secretary has reasonable
s cause to believe that a respondent has breached a conciliation agreement,the Secretary shall refer
s the matter to the Attorney General with a recommendation that a civil action be filed under
io section 814[42 USCS§36141 for the enforcement of such agreement.
u (d) Prohibitions and requirements with respect to disclosure of information.
12 (1) Nothing said or done in the course of conciliation under this title may be made
13 public or used as evidence in a subsequent proceeding underthis title without the written consent
of the persons concerned.
15 (2) Notwithstanding paragraph (1), the Secretary shall make available to the
16 aggrieved person and the respondent, at any time, upon request following completion of the
17 Secretary's investigation, information derived from an investigation and any final investigative
is report relating to that investigation.
is (e) Prompt judicial action.
20 (1) If the Secretary concludes at anytime following the filing of a complaint that
21 prompt judicial action is necessary to carry out the purposes of this title, the Secretary may
22 authorize a civil action for appropriate temporary or preliminary relief pending final disposition of
23 the complaint underthis section,Upon receipt of such an authorization,the Attorney General shall
24 promptly commence and maintain such an action.Any temporary restraining order or other order
25 granting preliminary or temporary relief shall be issued in accordance with the Federal Rules of Civil
25 Procedure.The commencement of a civil action underthis subsection does not affect the initiation
27 or continuation of administrative proceedings under this section and section 812 of this title [42
28 USCS§8612].
29 (2) Whenever the Secretary has reason to believe that a basis may exist for the
30 commencementof proceedings againstany respondent under sections 814(a)and814(c)[42 USCS
31 §3614(a), (c)] or for proceedings by any governmental licensing or supervisory authorities, the
32 Secretary shall transmit the information upon which such belief is based to the Attorney General,
33 or to such authorities, as the case may be.
34 (f) Referral for State or local proceedings.
3s (1)Whenever a complaint alleges a discriminatory housing practice-
36 (A)within the jurisdiction of a State or local public agency; and
37 (B) as to which such agency has been certified by the Secretary under this
38 subsection; the Secretary shall refer such complaint to that certified agency before taking any
39 action with respect to such complaint.
40 (2)Except with the consent of such certified agency,the Secretary,after that referral
41 is made, shall take no further action with respect to such complaint unless-
42 (A)the certified agency has failed to commence proceedings with respect
43 to the complaint before the end of the 30th day after the date of such referral;
EXHIBIT"A"
Fair Housinq Act.As Amended by Pub.L.100-430 gage-12-
Item 8. - 118 HB -316-
EXHIBIT"A"
Fair Housing Act,As Amended by Pub.L.100-430
(B) the certified agency, having so commenced such proceedings, fails to
2 carry forward such proceedings with reasonable promptness; or
3 (C)the Secretary determines thatthe certified agency no longer qualifies for
4 certification under this subsection with respect to the relevant jurisdiction.
s (3) (A)The Secretary may certify an agency under this subsection only if the
s Secretary determines that--
7 (i)the substantive rights protected by such agency in the jurisdiction
s with respect to which certification is to be made;
9 (ii) the procedures followed by such agency;
10 (iii)the remedies available to such agency; and
1.1 (iv) the availability of judicial review of such agency's action; are
.2 substantially equivalent to those created by and under this title.
13 (B) Before making such certification, the Secretary shall take into account
14 the current practices and past performance, if any, of such agency.
15 (4)During the period which begins on the date of the enactment ofthe Fair Housing
16 Amendments Act of 1988 [enacted Sept. 13, 1988) and ends 40 months after such date, each
17 agency certified (including an agency certified for interim referrals pursuant to 24 CFR 115.11,
is unless such agencyis subsequently denied recognition under 24 CFR 115.7)forthe purposesof this
13 title on the day before such date shall for the purposes of this subsection be considered certified
20 under this subsection with respect to those matters for which such agency was certified on that
21 date. If the Secretary determines in an individual case that an agency has not been able to meet .
22 the certification requirements within this 40-month period due to exceptional circumstances,such
23 as the infrequency of legislative sessions in that jurisdiction,the Secretary may extend such period
24 by not more than 8 months.
25 (5) Not less frequently than every 5 years, the Secretary shall determine whether
26 eachagency certified underthis subsection continues to qualifyfor certification.The Secretaryshall
27 take appropriate action with respect to any agency not so qualifying.
29 (g) Reasonable cause determination and effect.
29 (1)The Secretary shall,within 100 days after the filing of the complaint(or,when
30 the Secretary takes further action under subsection (f)(2)with respect to a complaint,within 100
31 days after the commencement of such further action), determine based on the facts. whether
32 reasonable cause exists to believe that a discriminatory housing practice has occurred or is about
s3 to occur, unless it is impracticable to do so, or unless the Secretary has approved a conciliation
34 agreement with respect to the complaint. If the Secretary is unable to make the determination
35 within 100 days afterthe filing of the complaint(or,when the Secretary takes further action under
36 subsection (f)(2)with respect to a complaint, within 100 days after the commencement of such
37 further action),the Secretaryshall notifythe complainant and respondent in writing of the reasons
38 for not doing so.
39 (2) (A) If the Secretary determines that reasonable cause exists to believe that
40 a discriminatory housing practice has occurred or is about to occur, the
41 Secretary shall,except as provided in subparagraph (C), immediately issue
42 a charge on behalf of the aggrieved person,for further proceedings under
43 section 812 [42 USCS§3612].
EXHIBIT"A"
Fatr Housing Act,As Amended by Pub.t.100 30 Page-13-
HB -317_ Item 8. - 119
EXHIBIT"A"
Fair Hof sing Act,As Amended by RAL_ 100-43C1
1 (B)Such charge-
2 (i)shall consist of a short and plain statement ofthe facts upon which
3 the Secretary has found reasonable cause to believe that a discriminatory housing practice has
4 occurred or is about to occur;
s (ii) shall be based on the final investigative report; and
(iii) need not be limited to the facts or grounds alleged in the
7 complaint filed under section 810(a) [subsec. (a) of this section].
8 (C) If the Secretary determines that the matter involves the legality of any
4 State or local zoning or other land use law or ordinance,the Secretary shall immediately refer the
10 matterto the Attorney General for appropriate action under section 814[42 USCS§3614],instead
11 of issuing such charge.
12 (3) If the Secretary determines that no reasonable cause exists to believe that a
13 discriminatory housing practice has occurred or is about to occur, the Secretary shall promptly
14 dismiss the complaint.The Secretary shall make public disclosure of each such dismissal.
is (4)The Secretary may not issue a charge under this section regarding an alleged
16 discriminatory housing practice after the beginning of the trial of a civil action commenced bythe
17 aggrieved party under an Act of Congress or a State law, seeking relief with respect to that
is discriminatory housing practice.
19 (h)Service of copies of charge.After the Secretary issues a charge under this section, the
20 Secretary shall cause a copy thereof, together with information as to how to make an election
21 under section 812(a) [42 USCS §3612(a)] and the effect of such an election,to be served-
22 (1)on each respondent named in such charge,together with a notice of opportunity
23 for a hearing at a time and place specified in the notice, unless that election is made; and
24 (2) on each aggrieved person on whose behalf the complaint was filed.
2s 42 USCS § 3610.Administrative enforcement; preliminary matters
26 (Apr. 11, 1968, P. L.90-284,Title Vlll,§810,as added Sept. 1.3, 1988,P.L.100-430,§8(2), 102 Stat.
27 1625.)
28
29
34
31 (a)In general.The Secretary may,in accordance with this subsection,issue subpoenas and
32 order discovery in aid of investigations and hearings under this title.Such subpoenas and discovery
33 may be ordered to the same extent and subject to the same limitations as would apply if the
34 subpoenas or discovery were ordered or served in aid of a civil action in the United States district
35 court for the district in which the investigation is taking place.
36 (b)Witness fees.Witnesses summoned by a subpoena under this title shall be entitled to
37 the same witness and mileagefees as witnesses in proceedings in United Statesdistrict courts.Fees
38 payable to a witness summoned by a subpoena issued at the request of a party shall be paid by
39 that party or,where a party is unable to pay the fees, by the Secretary.
40 (c) Criminal penalties.
41 (1)Any person who willfully fails or neglects to attend and testify onto answer any
42 lawful inquiry or to produce records,documents, or other evidence,if it is in such persons power
43 to do so, in obedience to the subpoena or other lawful order under subsection (a),shall be fined
EXHIBIT"A"
Fair Housing Act.As Amended by Pub L.100-430 Page-14
Item 8. - 120 HB -318-
i
EXHIBIT"A"Fair Housing Act,As Amended by Pub.L. 10a430
|
'
|
z not more than$1OOD03orinnphsonednotnnorethanoneye�� orbot6� �
' |
2 G1 Any person who, with intent thereby to mislead another person in any
a proceeding under this thde-- i
|
* (/) makes or causes tobe made any false entry or statement of fact inany �
s report,account,record,or other document produced pursuant hosubpoenaorother|awfu)onder |
a under subsection (a); '
r (B) willfully neglects or fails to make orto cause tobe made full,true, and |
o correct entries in such reports, accounts, records or other documents; or �
y (C) willfully mutilates, alters, or by any other means falsifies any !
�
uz documentary evidence; .
11 shall be fined not more than$100,000 or imprisoned not more than one year, or both. /
12 42USCS§ 36l1. Subpoenas;giving ofevidence �
13 (Apr. I1, 196O,P. L9O-I84,Title V8L§O1l,as added Sept. l],1988, P.L1OO-430, §8(2), lO2Stat.
,m I628.) �
^'
zs '
�
'
z/ '
18 (a) Becton of judicial determination, When a charge is filed under section Q1O [4JUSCS �
2e §3610, a complainant,o respondent, oranaggrieved person onwhose behalf the complaint was �
zo filed,may electto have the claims asserted in that charge decided in a civil action under subsection �
z� (o)in lieu of a hearing under subsection(b).The election must be made not later than 20 days after '
zz the receipt by the electing person of service under section 810(h) [42 USCS§810(h)]or,in the case
zs of the Secretary, not later than 20 days after such service.The person making such election shall
zw give notice of doing so to the Secretary and to all other complainants and respondents to whom
25 the charge relates. �
|
26 (b)Administrative lawjudge hearing in absenceof election.If an election is not made under
zr subsection(a)with iespecttoa charge filed undersec1ion81O[42U6CS§361O],the Secne aryshaU �
zo provide an opportunity for a hearing on the record with respect to a charge issued under section |
zs 810 [42 USCS 636101.The Secretary shall delegate the conduct ofe hearing under this section to �
30 an administrative )avv judge appointed under section 3105 of title S, United States Code. The '
�
3' administrative law judge shall conduct the hearing at a place in the vicinity in which the �
az discriminatory housing practice is alleged to have occurred or to be about to occur. �
aa (c) Rights of parties.At a hearing under this section, each party may appear in person, be �
so represented by counsel, present evidence, cross-examine witnesses, and obtain the issuance of /
35 subpoenas under section 811[42 USCS§36111.Any aggrieved person may intervene as a party in |
ao the proceeding. The Federal Rules of Evidence apply to the presentation of evidence in such
sr hearing as they would in acivi| action in a United States district court.
sx (d) Expedited discovery and hearing.
ay (1) Discovery in administrative proceedings under this section shall be conducted �
/m as expeditiously and inexpensively as possible, consistent with the need of all parties to obtain
/u relevant evidence. �
m (I) A hearing under this section shall be conducted as expeditiously and �
43 inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair
EXHIBIT"A"
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EXHIBIT"'A"
Fai;Housing Act.As Afnended by Pub.L. 100-430
1 hearing and a complete record.
2 (3)The Secretary shall, not later than 180 days after the date of enactment of this
3 subsection (enacted Sept. 13, 19881, issue rules to implement this subsection.
4 (e)Resolution of charge.Any resolution of a charge before a final order under this section
s shall require the consent of the aggrieved person on whose behalf the charge is issued.
0 (f) Effect of trial of civil action on administrative proceedings.An administrative lawjudge
7 may not continue administrative proceedings under this section regarding any alleged
s discriminatory housing practice after the beginning of the trial of a civil action commenced by the
s aggrieved party under an Act of Congress or a State law, seeking relief with respect to that
10 discriminatory housing practice.
11 (g) Hearings,findings and conclusions, and order.
12 (1)The administrative law judge shall commence the hea ring under this section no
13 later than 120 days following the issuance of the charge, unless it is impracticable to do so.,.If the
14 administrative lawjudge is unable to commence the hearing within 120 days after the issuance of
15 the charge,the administrative lawjudge shall notify the Secretary,the aggrieved person on whose
16 behalf the charge was filed, and the respondent, in writing of the reasons for not doing so.
17 (2)The administrative law judge shall make findings of fact and conclusions of law
18 within 60 days after the end of the hearing under this section, unless it is impracticable to do so.
25 If the administrative lawjudge is unable to makefindings of fact and conclusions of law within such
20 period, or any succeeding 60-day period thereafter, the administrative lawjudge shall notify the
21 Secretary, the aggrieved person on whose behalf the charge was filed, and the respondent, in
22 writing of the reasons for not doing so.
23 (3) If the administrative law judge finds that a respondent has engaged or is about
24 to engage in a discriminatory housing practice,such administrative lawjudge shall promptly issue
25 an order for such relief as may be appropriate,which may include actual damages suffered by the
26 aggrieved person and injunctive or other equitable relief.Such order may,to vindicate the public
27 interest, assess a civil penalty against the respondent-
28 (A) in an amount not exceeding $10,000 if the respondent has not been
29 adjudged to have committed any prior discriminatory housing practice;
30 (B)in an amount not exceeding$25,000 ifthe respondent has been adjudged
31 to have committed one other discriminatory housing practice during the 5-year period ending on
32 the date of the filing of this charge; and
33 (C)in an amount not exceeding$50,000 if the respondent has been adjudged
34 to have committed 2 or more discriminatory housing practices during the 7-year period ending on
35 the date of the filing of this charge;
326 except that if the acts constituting the discriminatory housing practice that is the object of
37 the charge are committed bythe same natural person who has been previously adjudged to have
33 committed acts constituting a discriminatory housing practice,then the civil penalties set forth in
39 subparagraphs(B)and(C) may be imposed without regard to the period of time within which any
40 subsequent discriminatory housing practice occurred.
41 (4) No such order shall affect any contract, sale, encumbrance, or lease
42 consummated before the issuance of such order and involving a bona fide purchaser,
43 encumbrancer, or tenant without actual notice of the charge filed under this title.
EXHIBIT"A"
Fair Housing Act.As Amended by Pub.L. 1,00430 Page-16-
Item 8. - 122 HB -320-
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/
EXHIBIT"A" '
Fair Housing Act,As Amonded by PuLL 100-430
z (5) In the case of an order with respect to a discriminatory housing practice that
z occurred in the course of a business subject to a licensing or regulation by a governmental agency,
a the Secretary shall, not later than 30 days after the date of the issuance of such order(or, if such
4 order is judicially reviewed,3O days after such order isin substance affirmed upon such reWew�-- }
' \
s (A)send copies nf the findings offact,conclusions nflaw,and the order, to i
a that governmental agency; and
r (8)recommend tn that governmental agency appropriate disciplinary action
8 (including,where appropriate,the suspension or revocation of the license of the respondent).
s (6) In the case of an order against a respondent against whom another order was
10 issuedwithin the preceding5years underthis section,the Secretary shall send a copyof each such |
/
11 order tn the Attorney General. !
|
12 (7) |f the administrative law judge finds that the respondent has not engaged or is �
zs not about to engage in a discriminatory housing practice, as thecase maybe,such administrative
14 lawjudge shall enter an order dismissingthe charge.The Secretary shall make public disclosure of (
i
is each such dismissal.
16 (h)Review by Secretary;service uf final order. �
zr (]) The Secretary may review any0ndin& conclusion, or order issued under i
m subsection(g).Such review shall be completed not later than 30 days after the finding,conclusion, |
19 or order is so issued; otherwise the finding, conclusion, or order becomes final. �
|
m (3)The lecretaryshaU cause the findings nffact and conclusions nf law made with �
zz respect to any final order for relief under this section, together with a copy of such order, to be |
zz served nn each aggrieved person and each respondent in the prooeedinQ. '
zs (0 Judicial review.
24 (l) Any party aggrieved by final order for relief under this section granting or �
zs denying}n whole nrinpart the relief sought may obtain o review nf such order underchopterl58
zo of title 38' United States Code [38US[l��334letseql !
' |
z' (3) Notwithstanding such chapter,venue nf the proceeding shall beinthejudkja( i
zs circuit in which the discriminatory housing practice is alleged to have occurred, and filing of the
zs petition for review shall be not later than 30 days after the order is entered.
ao (j) Court enforcement nf administrative order upon petition bySecretary. �
31 (1)The Secretary may petition any United States court of appeals for the circuit in �
az which the discriminatory housing practice is alleged to have occurred or in which any respondent �
33 resides or transacts business for the enforcement of the order of the administrative lawjudge and '
a" for appropriate temporary relief or restraining order, by filing in such court o written petition �
35 praying that such order be enforced and for appropriate temporary relief or restraining order.
aa (2)The Secretaryshall file in court with the petition the record in the proceeding. .
ar A copy nf such petition shall befnrthwith transmitted by the clerk nf the court tn the parties tothe �
aa proceeding before the administrative law judge. .
sy (k) Relief which may begranted, �
40 (1) Upon the filing nfa petition under subsection (i)orU),the court may-- �
^u (A) grant tn the petitioner, or any other party, such temporary relief,
m restraining order, or other order as the court deems just and proper; �
'o (B)affirm, modify,or set aside,in whole or in part,the order,or remand the �
EXHIBIT"A '
Fair Housing Act,As Amended by PubAL.100-430 PaQe-17-
BB -321- ^ �
�
T+� @, - ^^.�1 '��
=�^n, o
-- —_
�
/
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�EXHIBIT"A"Fair Housing Act,As Amended by PuL L 100-430
�
z order for further proceedings;and '
|
z (C)enforce such order to the extent that such order is affirmed or modified.
a (2)Any party to the proceeding before the administrative lawjudge may intervene �
4 in the court ofappeals. i
|
s (3)No objection not made before the administrative lawjudge shall be considered �
o by the court unless the failure or neglect to urge such objection is excused because of
z extraordinary circumstances.
n (|) Enforcement decree in absence of petition for review. |fno petition for review|sfiled
s under subsection |)6eforetheexpirationof45d�ys�fterthed�tethe�dmin�s�rative|�u/judge's |
� /
zo order is entered, the administrative law judge's findings of fact and order shall be conclusive in /
11 connection with any petition for enforcement -- |
zz (1)which is filed 6v the Secretary under subsection after the end nf such day;or |
za (2) under subsection (m). /
14 (m) Court enforcement of administrative order upon petition of any person entitled to |
i
15 relief. If � administrative u/ve |� judge.sonderis �
zo entered, no petition for review has been filed under subsection (i), and the Secretary has not |
z, sought enforcement of the order undersubsecdon 0),any person entitled to relief undertheorder �
�
18 may petition for a decree enforcing the order in the United States court of appeals for the circuit �
zy in which the discriminatory housing practice is alleged to have occurred. �
zo (n) Entryofdecree��hederhofthecourt �fappe�b�nxxhichape�itionforenforcennen� �
. �
zz is filed under subsection (|) or (m) shall forthwith enter a decree enforcing the order and shall �
zz transmit a copy of such decree to the Secretary,the respondent named in the petition,and to any
za other parties to the proceeding before the administrative law judge. |
24 (o) Civil action for enforcement when election is made for such civil action. �
zs (1)If an election is made undersubsection(a),theSecretaryshall authorize,and not i
|
zo later than 30 days after the election is made the Attorney General shall commence and maintain, .
z, a civil action on behalf of the aggrieved person in a United States districtcourt seeking relief under .
zu this subsection.Venue forsuch civil action shall be determined underchapter 87 of title 28,United
zs States Code[4ZUS[3 §§1391etseq].
ao (2)Any aggrieved personwith respectto the issuesto be determined in a civil action '
31 under this subsection may intervene asof right in that civil action.
az (3) In a civil action under this subsection, if the court finds that a discriminatory
sa housing practice has occurred oris about tooccur, the court may grant as relief any relief which
a« a court could grant with respect to such discriminatory housing practice in a civil action under
o section 813 [42 USCS§3613].Any relief sognantedthatvou|d�ccruetoanag8heved person i na
as civil action commenced by that aggrieved person under section Q13 [42 LBC5 §3613] shall also
ar accrue to that aggrieved person in a civil action underthis subsection. If monetary relief is sought
au for the benefit of an aggrieved person who does not intervene in the civil action,the court shall not
ay award such relief ifthat aggrieved person has not complied with discovery orders entered bythe
«o court.
m (p) Attorney'sfees In any administrative proceeding brought under this section, or any
42 court proceeding arising therefrom, or any civil action under section 812 [42 USCS §3612], the
*a administrative lawjudge orthe court,asthe case may be,in its discretion,may allowthe prevailing
EXHIBIT"A"
Fair Housing Act.As Amended by Publ,100-430 Page-18-
�+�n° � 1 �z1
^`�^,` m. - ,.�-, BB -322-
EXHIBIT"A"
Fair Housing Ad,As Amended by Pub.L. 100-430
1 party,other than the United States,a reasonable attorney's fee and costs.The United States shall
2 be liable for such fees and costs to the extent provided by section 504 of title 5, United States
Code, or by section 2412 of title 28, United States Code.
4 42 USCS § 3612. Enforcement by Secretary
s (Apr. 11,1968,P. L. 90-284,Title Vill, §812,as added Sept. 13, 1988, P.L. 100-430,§8(2),102 Stat.
6 1629.)
7
s
9
10 (a) Civil action.
11 (1) (A) An aggrieved person may commence a civil action in an appropriate
12 United States district court or State court not later than 2 years after the occurrence or the
13 termination of an alleged discriminatory housing practice, or the breach of a conciliation
14 agreement entered into under this title,whichever occurs last, to obtain appropriate relief with
15 respect to such discriminatory housing practice or breach.
16 (B)The computation of such 2-year period shall not include anytime during
17 which an administrative proceeding under this title was pending with respect to a complaint or
is charge under this title based upon such discriminatory housing practice.This subparagraph does
19 not apply to actions arising from a breach of a conciliation agreement.
20 (2)An aggrieved person may commence a civil action underthis subsection whether
21 or not a complaint has been filed under section 810(a) [42 USCS §3610(a)]and without regard to
22 the status of any such complaint, but if the Secretary or a State or local agency has obtained a
23 conciliation agreement with the consent of an aggrieved person,no action may befiled underthis
24 subsection by such aggrieved person with respect to the alleged discriminatory housing practice
25 which forms the basis for such complaint except forthe purpose of enforcing the terms of such an
26 agreement.
27 (3)An aggrieved person may not commence a civil action underthis subsection with
28 respect to an alleged discriminatory housing practice which forms the basis of a charge issued by
29 theSecretaryif an administrative lawjudge has commenced a hearing on the record underthistitle
30 with respect to such charge.
3; (b) Appointment of attorney by court. Upon application by a person alleging a
32 discriminatory housing practice or a person against whom such a practice is alleged, the court
33 may-
34 (1) appoint an attorney for such person; or
35 (2)authorizethe commencement orcontinuation of a civil action undersubsection
36 (a) without the payment of fees, costs, or security, if in the opinion of the court such person is
37 financially unable to bear the costs of such action.
38 (c) Relief which may be granted.
39 (1) In a civil action under subsection (a), if the court finds that a discriminatory
40 housing practice has occurred or is about to occur,the court may award to the plaintiff actual and
41 punitive damages, and subject to subsection (d), may grant as relief, as the court deems
42 appropriate,any permanent or temporary injunction,temporary restraining order,or otherorder
43 (including an order enjoining the defendant from engaging in such practice or ordering such
EXHIBIT"A"
Fair Housing Act.As Amended by?ub.L 100-430 Page-1
HB -323- Item 8. - 125
EXHIBIT"A"
Fair H-nusing Fact,As Amended by Pub.L.100- 30
1 affirmative action as may be appropriate).
2 (2) In a civil action under subsection(a),the court, in its discretion, may allow the
3 prevailing party, other than the United States, a reasonable attorney's fee and costs.The United
4 States shall be liable for such fees and costs to the same extent as a private person.
s (d) Effect on certain sales, encumbrances, and rentals. Relief granted under this section
6 shall not affect any contract,sale,encumbrance,or lease consummated before the granting of such
7 relief and involving a bona fide purchaser, encumbrancer, or tenant,without actual notice of the
s filing of a complaint with the Secretary or civil action under this title.
9 (e) Intervention by Attorney General. U pon timely application,the Attorney General may
to intervene in such civil action, if the Attorney General certifies that the case is of general public
11 importance. Upon such intervention the Attorney General may obtain such relief as would be
12 available to the Attorney General under section 814(e)[42 USCS§3614(e)]in a civil action to which
13 such section applies.
14 42 USCS §3613. Enforcement by private persons
is (Apr. 11, 1968, P.L.90-284,Title VIII,§813,as added Sept. 13, 1988,P.L.100-430,§8(2), 102 Stat.
16 1633.)
17
1$
19 (a) Pattern or practice cases. Whenever the Attorney General has reasonable cause to
20 believe that any person or group of persons is engaged in a pattern or practice of resistance to the
21 full enjoyment of any of the rights granted by this title, or that any group of persons has been
22 denied any of the rights granted by this title and such denial raises an issue of general public
23 importance,the Attorney General may commence a civil action in any appropriate United States
24 district court.
25 (b) On referral of discriminatory housing practice or conciliation agreement for
26 enforcement.
27 (1) (A)The Attorney General may commence a civil action in any appropriate
28 United States district court for appropriate relief with respect to a discriminatory housing practice
29 referred to the Attorney General by the Secretary under section 810(g) [42 USCS§3610(g)].
30 (B)Acivil action underthis paragraph maybe commenced not later thanthe
31 expiration of 18 months after the date of the occurrence or the termination of the alleged
32 discriminatory housing practice.
33 (2) (A)The Attorney General may commence a civil action in any appropriate
34 United States district court for appropriate relief with respect to breach of a conciliation agreement
35 referred to the Attorney General by the Secretary under section 810(c) [42 USCS§3610(c)].
36 (B)Acivil action may be commenced underthis paragraph not later thanthe
37 expiration of 90 days after the referral of the alleged breach under section 810(c) (42 USCS
38 §3610(c)].
39 (c) Enforcement of subpoenas.The Attorney General, on behalf of the Secretary, or other
40 party at whose request a subpoena is issued, under this title, may enforce such subpoena in
41 appropriate proceedings in the United States district court for the district in which the person to
42 whom the subpoena was addressed resides, was served, or transacts business.
43 (d) Relief which may be granted in civil actions under subsections(a) and (b).
EXHIBIT"A"
Fair Housing Act As Amended by Fub1..100-430 Page-20-
Item 8. - 126 HB -324-
EXHIBIT "A"
Fair Housing Act,As Am.ended by Publ.100430
1 (1) In a civil action under subsection (a) or(b),the court-
2 (A) may award such preventive relief, including a permanent or temporary
3 injunction, restraining order, or other order against the person responsible for a violation of this
4 title as is necessary to assure the full enjoyment of the rights granted by this title;
s (B) may award such other relief as the court deems appropriate, including
6 monetary damages to persons aggrieved; and
7 (C) may, to vindicate the public interest, assess a civil penalty against the
a respondent-
9 (1) in an amount not exceeding$50,000,for a first violation; and
10 (ii) in an amount not exceeding $100,000, for any subsequent
11 violation.
12 (2) In a civil action under this section, the court, in its discretion, may allow the
13 prevailing party, other than the United States, a reasonable attorney's fee and costs.The United
14 States shall be liable for such fees and costs to the extent provided by section 2412 of title 28,
15 United States Code.
16 (e)Intervention in civil actions.Upon timely application,any person may intervene in a civil
17 action commenced by the Attorney General under subsection(a) or(b)which involves an alleged
18 discriminatory housing practice with respect to which such person is an aggrieved person or a
19 conciliation agreement to which such person is a party:The court may grant such appropriate relief
20 to any such intervening party as is authorized to be granted to a plaintiff in a civil action under
21 section 813 (42 USCS§3613].
22 42 USCS§ 3614. Enforcement by the Attorney General
23 (Apr. 11, 1968, P.L.90-284,Title VIII,§814,as added Sept. 13, 1988,P.L. 100-430, §8(2), 102 Stat.
24 1634.)
2s
26
27 The Secretary may make rules (including rules for the collection, maintenance, and analysis of
28 appropriate data)to carry out this title.The Secretary shall give public notice and opportunity for
29 comment with respect to all rules made under this section.
30 42 USCS §3614a. Rules to implement title
31 (Apr. 11, 1968, P.L.90-284,Title Vill,§815,as added Sept. 13,1988, P.L. 100-430,§8(2), 102 Stat.
32 1635.)
33
34
35 Nothing in this title shall be construed to invalidate or limit any law of a State or political
36 subdivision of a State, or of any other jurisdiction in which this title shall be effective,that grants,
37 guarantees, or protects the same rights as are granted by this title; but any law of a State, a
38 political subdivision, or other such jurisdiction that purports to require or permit any action that
39 would be a discriminatory housing practice under this title shall to that extent be invalid.
40 42 USCS §3615. Effect on State laws
41 (Apr. 11, 1968, P. L.90-284,Title VIII, §816(815], 82 Stat.89; Sept. 13, 1988,P. L. 100-430,§8(1),
42 102 Stat. 1625.)
43
EXHIBIT"A"
Fatr Housing Ark As Amended by Pub_L 100-430 Page-21-
HB -325- Item 8. - 127
EXHIBIT"A"
Fair Housing Act,As Amended by Fub.L.100-430
1 The Secretary may cooperate with State and local agencies charged with the administration of
2 State and local fair housing laws and,with the consent of such agencies,utilize the services of such
3 agencies and their employees and,notwithstanding any other provision of law,may reimburse such
4 agencies and their employees for services rendered to assist him in carrying out this title. In
s furtherance of such cooperative efforts, the Secretary may enter into written agreements with
6 such State or local agencies. All agreements and terminations thereof shall be published in the
7 Federal Register.
s 42 USCS § 3616. Cooperation with State and local agencies administering fair housing laws;
9 utilization of services and personnel;reimbursement;written agreements;publication in Federal
10 Register
11 (Apr. 11, 1968, P. L.90-284,Title Vlll, §817[816], 82 Stat. 89;Sept. 13, 1988, P. L. 100-430, §8(1),
12 102 Stat. 1625.)
13
14
1s
16 It shall be unlawful to coerce,intimidate,threaten,or interfere with any person in the exercise or
17 enjoyment of, or on account of his having exercised or enjoyed,or on account of his having aided
18 or encouraged any other person in the exercise or enjoyment of, any right granted or protected
19 by section 803, 804, 805,or 806[42 USCS§§3603, 3604, 3605, or 3606].
20 42 USCS § 3617. Interference, coercion,or intimidation
21 (Apr.11, 1968, P. L. 90-284,Title Vlll, §818[817],82 Stat.89;Sept. 13,1988,P.L 100-430,§§8(1),
22 10, 102 Stat. 1625, 1635.)
23
24
25
26 Whoever, whether or not acting under color of law, by force or threat of force willfully injures,
27 intimidates or interferes with,or attempts to injure, intimidate or interfere with-
28 (a)any person because of his race,color,religion,sex, handicap(as such term is defined in
29 section 802 [42 USCS §3602] of this Act),familial status(as such term is defined in section 802 of
30 this Act [42 USCS§3602]), [,]or national origin and because he is or has been selling,purchasing,
3i renting,financing,occupying,orcontracting or negotiatingfor the sale,purchase,rental,financing
32 oroccupation of anydwelling,or applyingfor or participating in anyservice,organization,or facility
33 relating to the business of selling or renting dwellings;or
34 (b)any person because he is or has been,or in order to intimidate such person or any other
35 person or any class of persons from-
36 (1) participating, without discrimination on account of race, color, religion, sex,
37 handicap (as such term is defined in section 802 of this Act [42 USCS §3602]), familial status(as
38 such term is defined in section 802 of this Act[42 USCS§3602]), [,] or national origin,in any of the
35 activities, services, organizations or facilities described in subsection 901(a) [subsec. (a) of this
40 section];or
41 (2) affording another person or class of persons opportunity or protection so to
42 participate; or
43 (c)any citizen because he is or has been,or in order to discourage such citizen or any other
EXHIBIT"A"
Fair Housing Act.As Amended by Pub.L.?00-430 Page-22-
Item 8. - 128 HB -;26-
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EXHIBIT"A"
Fair Housing Act,As AmendedbyPub.L. 100-430
1 citizen from lawfully aidingor encouraging other persons toparticipate,without discrimination on �
, account of race,color, religion,sex,handicap(as such term is defined in section 802 of this Act[42 �
3 USCS§36O2]),familial status(as such term is defined,in section 8O2of this Act[42US[S§3602]),
4 [] or national origin, in any ofthe activities, services, organizations or facilities described in
s subsection 901(a) [subsec. (a) of this section], or participating lawfully in speech or peaceful
» assembly opposing any denial of the opportunity tosoparticipa1e--
r shall be fined not more than$1,OOO or imprisoned not more than one year, or both; and
w ifbndi|yin]uryresults shall befined not more than$1O,OOOorlmphsoned not morethan ten years, |
�
p or both; and if death results shall be subject to imprisonment for any term of years or for life. /
10 42USCS §363lVlo|�t�on� bodi|yin]u�� death�'penalties
� |
11 (Apr. 11, 1968, P. L. 90'284 Title |}( §901, 82Sta1. 89; Aug. 22, 1974 P. L. 93-383 Tit|eV|!|, !
zz §808(b)(4), 88Stat. 729.) �
13 (As amended Sept. l3, l98lP. LlOU-43<l §9, 1O2Stat. 1O35.)
14
is |
za �
o All dtizensoftheUnitedStates shall have the same right,ineveryStateandTerhtory,asisenjoyed /
o/ by white citizens thereof toinherit, purchase, lease, sell, hold, and convey real and personal |
19 property. �
20 42USCS§ 1982 Property rights ofcitizens
21 �
o '
!
23 Everyper onwho,undercolorofanystatute,ordinanceregu|adon,custon\orusage ofanyState |
m or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
zs United States or other person within the jurisdiction thereof to the deprivation of any rights,
26 privileges,or immunities secured by the Constitution and laws, shall be liable to the party injured
z, inan action at|av« suit �
' |
zo section,any Act of Congress applicable exclusively to the District of Columbia shall be considered �
zy tobea statute of the District ofColumbia. �
!
m 42 USCS§ 1983. Civil action for deprivation of rights |
o i
az �
33 (l) Preventing officer from performing duties. K two or more persons in any State or �
m Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or |
as holdingany office, trust, or place of confidence under the United States, or from discharging any �
ao duties thereof; or to induce by like means any officer of the United States to leave any State,
ar district or place,where his duties asan officer are required tobe performed,orto injure him in his
ao person or property on account of his lawful discharge of the duties ofhis office,or while engaged
ys in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or |
40 impede him in the discharge of his official duties; �
^u (2) Obstructing justice; intimidating party,witness,orjuror. If two or more persons in any
42 State or Territory conspire to deter,by force, intimidation, orthreat, any party or witness in any
m court of the United States from attending such court, or from testifying to any matter pending ,
�
EXHIBIT"A"
Fair Housing Act As Amended by P ub.L,100-4-30 Page'23-
f{l3 -327- TfeD0 8` - 129
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EXHIBIT"A"
Fair Housing Act,As Amcpded by PuLL. 100-430
I therein,freely,fully, and truthfully,or to injure such party or witness in his person or property on |
z account of his having so attended or testified, or to influence the verdict, presentment, or �
3 indictment of any grand or petit juror in any such court, or to injure such juror in his person or '
�
* property on account of any verdict,presentment,or indictment lawfully assented to by him,or of |
s his being or having been such juror, or if two or more persons conspire for the purpose of ,
u impeding,hindering,obstructing,or defeating,in any mannerthe due course oflustice inany State
/ orTerritory,with intent to deny to any citizen the equal protection of the laws,orto injure him or
o his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of !
�
x persons,to the equal protection of the laws; `
oo (3)Depriving persons of rights or privileges.If two or more persons in anyState orTerritory
o conspire, or go in disguise on the highway or on the premises of another, for the purpose of �
|
12 depriving,either directly or indirectly,any person orclass of persons of the equal protection of the �
13 laws, orof equal privileges and immunities under the laws, or for the purpose of preventing or `
m hindering the constituted authorities of anyState or Territory from giving or securing to all persons �
zs within such State orTerritory the equal protection of the laws;or if two or more persons conspire �
zo to prevent byforce,intimidation,orthreat,any citizen who is lawfully entitledtovote,from giving �
z/ his support or advocacy in a legal manner, toward or in favor of the election of any lawfully '
�n qualified person as an elector for President or Vice-P'resident,or as a member of Congress of the
!
iy United States; or to injure any citizen in person or property on account of such support or
20 advocacy;in any case of conspiracy setforth in this section,if one or more persons engaged therein /
o do, orcause to be done, any act in furtherance ofthe objectof such conspiracy,whereby another (
zz is injured in his person or property, or deprived of having and exercising any right or privilege of '
�
o a citizen of the United States,the party so injured or deprived may have an action forthe recovery )
m of damages,occasioned by such injury or deprivation,againstanyone ormore of the conspirators. �
25 42 U3[5 § 1985. Conspiracy to interfere with civil rights
26
zr �
zo (a) The jurisdiction in civil and criminal matters conferred on the district courts by the �
ze provisions of thisTitle, and of Title"CIVIL RIGHTS,"and of Title"CRIMES,"for the protection of all |
30 persons in the United States in their civil rights, and for their vindication, shall be exercised and �
31 enforced in conformity with the laws of the United States,so far as such laws are suitable tocarry |
�
32 the same into effect;but in all cases where they are not adapted to the object, or are deficient in /
33 the provisions necessarytofurnish suitable remedies and punish offenses against law,thecommon
34 law, as modified and changed by the constitution and statutes ofthe State wherein the court }
35 having jurisdiction of such civil or criminal cause is held,so far as the same is not inconsistent with i
as the Constitution and laws of the United States, shall be extended to and govern the said courts in �
�
zr the trial and disposition of the cause,and,if itisofa criminal nature,in the infliction ofpunishment �
<
so on the party found guilty.
-3o (b)\n any action or proceeding to enforce a provision of sections 1977 1977A,1978,1979
40 198D, and 1981of the Revised Statutes[42U3[5§§19Q1,-1983, 1985, 1886],title [Xof Public Law |
41 92-318[20 USCS§§1681 et seq], the Religious Freedom Restoration Act of 1993, or title VI of the �
42 Civil Rights Act of 1964 [4I USC3 §§IOOOd et seq.], the court, in its discretion, may allow the �
m prevailing party, other than the United States, a reasonable attorney'sfee as part of the costs.
�
EXHIBIT"A"
Fair Housing Act,As Amended by Pub.L.100-430 Page-24 /
�
T+�rn � 1 �/\
^^=^,^ u. - ^_'v }{B -328- '
--
'
EXHIBIT"A"
Fair Housing Act As Amended bV Publ 100-430
x (c) In awarding an attorney'sfee under subsection (b) in any action or proceeding to enforce a
z provision of sections l977or1977Aof the Revised Statutes[42U3[S§§19O1or198Ia],the court,
s in its discretion, may include expert fees as part of the atCorney'sfee.
4 42US[S § 19%0. Proceedings in vindication of civil rights;attorney'sfees �
r (R.5.§722;Oct. 19,1976,P.L.94-559,§2,g0StaL2641;Oct.2I,1S8\P.L96-481,Title U,§2O5(c),
s 94StaL2330j
r (As amended Nov. 21, 1991, P. L. 102-166,Tit|e |, §§103, 113(a), 105 StaL 1074, 1079; Nov. 16,
u 1993, P. L103-141,§4(a), 107Skat. 1489j
EXHIBIT"A"
FaIr Housing Act.As Amended by PUb.L.1 OD-430
=_DO����
I1B -329- ^ u
Tf� Q. - ^-,,1 �1
1 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
2 Office of the Secretary
3 Office of the Assistant Secretary for Fair Housing and Equal Opportunity
4 AGENCY:Office of the Secretary and Office of the Assistant Secretary for Fair Housing and Equal Opportunity,HUD.
s 24 CFR Parts 14,100, 103, 104, 105, 106,109,110,115, and 121
6 Implementation of the Fair Housing Amendments Act of 1988
7 [Docket No.R-89-1425;FR-2565]
s 54 FR 3232
a January 23, 1989
10 ACTION: Final rule.
11 SUMMARY. HUD is adopting regulations to implement the changes made in Title Vlll of the Civil Rights Act
z of 1968 by the Fair Housing Amendments Act of 1988, which was enacted September 13. 1988 and will
13 become effective on March 12, 1989.Title VI ll has prohibited discrimination in the sale,rental,and financing
a of dwellings based on color, religion, sex,or national origin.The Fair Housing Amendments Act expands the
15 coverage of Title VIII to prohibit discriminatory housing practices based on handicap and familial status,
i6 establishes an administrative and judicial enforcement mechanism for cases where discriminatory housing
17 practices cannot be resolved informally, and provides for monetary penalties in cases where housing
i3 discrimination is found. The Fair Housing Amendments Act also establishes design and construction
19 requirements for certain new multifamily dwellings for first occupancy on or after March 13, 1991 (30 months
20 after the date of enactment) and an exemption from the prohibitions against discrimination on the basis of
21 familial status for certain housing for older persons.
22
23 This final rule adopts new regulations describing the nature of conduct made unlawful with respect to the sale,
24 rental and financing of dwellings or in the provision of services and facilities in connection therewith(24 CFR
26 Part 100);establishing procedures for the investigation of complaints of discriminatory housing practices(24
26 CFR 103); and establishing procedures for administrative proceedings involving discriminatory housing
27 practices(24 CFR Part 104).
28
29 HUD is also revising existing regulations issued under Title VIII to reflect the expanded coverage of Title Vil1.
3o I n addition,HUD is amending the regulations providing forthe recognition of substantially equivalent state and
31 local fair housing laws(24 CFR Part 115)to provide forthe new certification procedure established by the Fair
32 Housing Amendments Act.
33
34 DATE; This rule will become effective on March 12, 1989. The incorporation by reference of the American
35 National Standard for buildings and facilities providing accessiblity and usability for physically handicapped
36 people (ANSI A117.1-1986)is approved by the Director of the Federal Register as of March 12, 1989,
37
38 FOR FURTHER INFORMATION CONTACT-Harry L.Carey((202)755-5570,Office of the General Counsel,
39 Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC, 20410-0500.
40 (The telephone number set forth above is not a toll-free number.) The toll-free TDD number is
41 1-800-543-8294.
42 This rule will be available in braille and on tape for persons with vision impairments in the Office of the Rules
43 Docket Clerk, Room 10276, Department of Housing and Urban Development, at the above location.
EXHIBIT" "
54 FIR 3232- =mplementatlon of the lair Housing Amendments Act of 1988 Page -1-
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Item 8. - 132 HB -330-
EXHIBIT°; "
54 FR 3232-amn,ementaticn of the Fair Housing A,mend.m?ents Act of 1988
1 TEXT.
2 SUPPLEMENTARY INFORMATION:The inforrnation collection requirements contained inthis rule have been
2 submitted to the Office of Management and Budget(OMB)for review under the Paperwork Reduction Act of
4 1980. The OMB control number, when assigned, will be announced in a separate notice in the Federal
s Register.The public reporting burden for each of these collections of information is estimated to include the
s time for reviewing the instructions, searching existing data sources, gathering and maintaining the data
7 needed, and completing and reviewing the collection of information. information on the estimated public
8 reporting burdens is provided under the preamble heading,Other Matters. Send comments regarding these
9 burden estimates or any other aspect of these collections of information, including suggestions for reducing
io this burden,to the department of Housing and Urban Development, Rules Docket Clerk,451 Seventh Street,
i1 SW,, Room 10276,Washington, DC 20410;and to the Office of Information and Regulatory Affairs,Office of
12 Management and Budget,Washington, DC 20503.
2�
14 Background
15 Title Vill of the Civil Rights Act of 1968 (42 U.S.C, 3601-3619)made it unlawful to discriminate in any aspect
is relating to the sale, rental or financing of dwellings or in the provision of brokerage services or facilities in
17 connection with the sale or rental of a dwelling because of race, color, religion,sex, or national origin. Under
Is the provisions of Title Vill, persons who believed that they had been subjected to, or were about to be
14 subjected to,a discriminatory housing practice could file a complaint with the Secretary of Housing and Urban
20 Development. Title Vill required the Department of Housing and Urban Development to investigate each
21- complaint and, where the Department determined to resolve the matters raised in a complaint,to engage in
22 informal efforts to conciliate the issues in the complaint.
23 However, where these informal efforts to conciliate a case were unsuccessful, Title Vill did not provide the
24 Secretary with any administrative mechanism for redressing acts of discrimination against an individual. In
zs addition,while the Secretary could refer a case involving a pattern or practice of discrimination to the Attorney
26 General for the initiation of a civil action, Federal courts did not award individual relief to the victims of
27 discrimination in Such cases.
28
z9 The Fair Housing Amendments Act of 1988(Pub, L. 100-430, approved September 13, 1988)was enacted
3o to strengthen the administrative enforcement provision of Title VIII,to add prohibitions against discrimination
31 in housing on the basis of handicap and familial status, and to provide for the award of monetary damages
31. where discriminatory housing practices are found.The amended law, referred to as the Fair Housing Act,will
sa become effective on March 12, 1989.
34
35 The provisions in the Fair Housing Act describing the nature of conduct which constitutes a discriminatory
sE housing practice have been revised to extend the protections of the Fair Housing Act to persons with
37 handicaps and to families with children. in this respect, sections 804, 805, and 806 of the Fair Housing Act
3a prohibit discrimination in any activities relating to the sale or rental of dwellings,in the availability of residential
ss real estate-related transactions, or in the provision of services and facilities in connection therewith because
40 of race, color, religion, sex, handicap, familial status, or national origin.
41
42 The Fair Housing Act also specifically makes it unlawful to refuse to permit,at the expense of the handicapped
43 person, reasonable modifications to existing premises occupied or to be occupied by such a person if such
EXHIBIT"B"
54 FR 3232-Implementation ofthe Fair Housing Amendments Act of 1988 Paqe-2-
hp/Ivivvw.fa!rho us!ng.comiind ex.cfm?method=page,display&pagename=regs_52fr3232
HB -331- Item 8. - 133
EXHIBIT"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988
1 modifications are necessary to afford such person full enjoyment of the premises(section 804(f)(3)(A)).With
2 respect to rental housing, the Fair Housing Act provides that a landlord may, where reasonable; condition
3 permission for a modification on the renters agreeing to restore the interior of the premises to the condition
4 that existed before the modification, reasonalbe wear and tear excepted. The Act also makes it unlawful to
s refuse to make reasonable accommodations in rules,policies, practices, or services to afford a handicapped
6 person equal opportunity to use and enjoy a dwelling.
7
s Further,the Fair Housing Act makes it unlawful to design and construct certain multifamily dwellings for first
9 occupancy after March 13, 1991, in a manner that makes them inaccessible to persons with handicaps. All
10 premises within such dwelling also are specifically required to contain several features of adaptive design so
11 that the dwelling is readily accessible to and usable by persons with handicaps.
12
13 With respect to the new protection for families with children, the Fair Housing Act prohibits discrimination
14 because of familial status (generally, the presence of children under 18 in a family) in the sale or rental of
15 housing.However,the act provides an exemption from this prohibition for housing which qualifies as"housing
16 for older persons".
17
18 Section 805 of the Fair Housing Act, as revised, prohibits discrimination related to "residential real
19 estate-related transactions"rather than merely referring to"financing". In addition, the definition of the term
20 residential real estate-related transaction specifically indicates that the Fair Housing Act applies to the selling,
21, brokering and appraising of dwelling and to secondary mortgage market activities with respect to securities
22 affected or supported by dwellings, as well as to the making and purchasing of loans and other financial
23 assistance for dwellings.The Act, however,does not prohibit a person engaged in the business of furnishing
24 appraisals from taking into consideration factors otherthan race,color,religion,national origin,sex,handicap;
25 or familial status.
26
27 Section 810 of the Fair Housing Act provides that any person who believes that he or she has been, or will
28 be, subjected to a discriminatory housing practice because of race, color, religion, sex, handicap, familial
29 status, or national origin may file a complaint with the Secretary of Housing and Urban Development. The
3o section also authorizes the Secretary of Housing and Urban Development to file complaint on the Secretary's
31 own initiative and to investigate housing practices in order to determine whether a complaint should be filed.
32 Complaints must be filed not later than one year afteran alleged discriminatory housing practice has occurred
33 or terminated.
34
35 Upon the filing of a complaint,the Secretary is required to notify any respondent named in the complaint of
36 the acceptance of the complaint and the discriminatory housing practice alleged in the complaint. The
37 respondent may file, not later than 10 days after receipt of the notice of a complaint, an answer to the
39 complaint.The Secretary is required to make an investigation of the alleged discriminatory housing practice
39 and to complete the investigation within 100 days after the filing of the complaint, unless it is impracticable
4o to do so.
41
42 Atthe end of each investigation,theSecretary is required to prepare a final investigation report.Undersection
43 810(d),the final investigation report will be available to an aggrieved person or a respondent, upon request,
EXHIBIT"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988 Page -3-
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Item 8. - 134 HB -332-
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!
EXHNB0F °B"
i
1 at any time after the investigation ka complete.
i
z
i
a Section 81[Kb> cf the Act directs the Seoretary, bo the extent feasible, to engage )n efforts to conciliate the !
4 matters raised in the complaint at any time after the filing of the complaint.
�
o Section 81O(eA of the Act empowers the Secretary to authorize the Attorney General to file a civil action |
r seeking appropriate preliminary or temporary relief pending final disposition ofa complaint if,at any timaafter �
/
n the filing cf such complaint,the Secretary concludes that such action is necessary to carry out the purposes
e of the Act. !
/
�
zi Whenever a complaint alleges a discriminatory housing practice withinState or locality which has a Fair �
m Housing law cx ordinance which has been certified uy the Secretary a=being substantially equivalent `°the. .
1� Fair Housing Act, the Secretary must refer the complaint to the agency administering such law or ordinance i
i/- before taking any action with respect to the complaint. Except with the consent of certified agency, or in !
is other limited situations such as where a complaint is not being processed in a timely fashion or the State or �
is local law orordinance isfound no longerto be substantially equivalent,the Secretary may not take anyfudher |
o action with respect to complaints referred tosuch agencies.
zu
/
19 Section 81D(f)of the Act permits the Secretary bocertify an agency only where the Secretary determines that �
zo the Cighta protected by the agency, the procedures followed by the agenoy. the naonodiee available to the i
21 agenoy, and the availability of judicial review of the agency's actions are substantially equivalent to those |
zz created in the Fair Housing Act. �
za This section also provides that agencies which the Secretary has determined administer State and local fair
24 housing laws which provide rights and remedies for discriminatory housing practices that were substantially
zs equivalent to those contained in Title Vi\| of the Civil Rights Act of 1968. or agencies which had been
zo recognized for interim referral of complaints under llUe V|!|, will be considered certified for a period not to !
�
zr exceed 48 months for the purpose of referring complaints under the Fair Housing Act with respect to matters /
za for which they had been certified on the day before the date of enactment of the Fair Housing Act (i.e., �
zy September 12. 1Q88). �
su |
sz Section 81O(g)of the Act requires the Secretary, in cases where the matters raised in a complaint cannot be |
az resolved by conciliation, to determine, based upon the facts, whether reasonable cause exists to believe a |
sa discriminatory housing practice has occurred or is about to occur. Such afind\ng must be made by the �
i
34 Secretary within 1OOdays afterthe filing of a complaint or within 100 days after the Secretary has commenced �
3s action onm complaint which had been referred toa certified agency, unless itis impracticable hodo so.Where �
as the Secretary makes a determination that reasonable cause exists to believe that m discriminatory housing '
|
sr practice has occurred or is about to occur, the Secretary must immediately issue a charge on behalf of the
uo aggrieved person commencing mformal administrative proceeding before an administrative law judge.
ae /
^n Section 812(a)of the Act provides any complainant, aggrieved person,or respondent with an opportunity to |
'z elect not to proceed before an administrative lawjudge but to move the case to an appropriate Federal district �
42 court,Such mn election must be made within 2Odays after the receipt of the service upon such person of the .
EXHIBIT =B° (
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hun:0www.rai'nousi,n,uom/muex.cm,r*et»uo~naoe.uiop|ay&pooenam°~,enx_52fr3232 .
�
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Uf�rn � l ��
T�8 `3��- "^�^^^ m' - ^-,^
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EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 charge filed by the Secretary.Upon notification that a person has elected to proceed to Federal district court,
2 the Secretary will authorize the Attorney General to file a civil action on behalf of the aggrieved person.An
3 action authorized by the Secretary must be brought within 30 days after the election is made.
4
5 Where no election is made,the case will be heard by an administrative law judge.Under section 812(c)of the
6 Act, the Federal Rules of Evidence will apply to the presentation of evidence in the same manner that they
7 applyto evidence presented in a civil action in Federal district court.Section 812(g)requires the administrative
8 law judge to issue findings of fact and conclusions of law within 60.days after the end of a hearing.
9
io Where the administrative lawjudge finds that a respondent has engaged in a discriminatory housing practice,
11 the Fair Housing Act provides for the issuance of an order for such relief as is appropriate,which may include
12 actual damages and injunctive or other equitable relief. In order to vindicate the public interest, the order of
13 an administrative law judge may assess a civil penalty against the respondent.
14
15 The decision of the administrative law judge can be reviewed by the Secretary.However,this review must be
16 completed within 30 days afterthe decision is issued.Any final agency decision on the issue of discrimination
17 is subject to review on appeal by the United States Courts of Appeals.
1$
19 The Fair Housing Amendments Act directs the Secretary of Housing and Urban Development to issue
20 regulations implementing the Fair Housing Act.Section 13 of the Fair Housing Amendments Act providesthat
21 "[I]n consultation with other appropriate Federal agencies, the Secretary shall, not later than the 180th day
22 after the enactment of this Act, issue rules to implement title Vill as amended by this Act."That section also
23 required the Secretary to give notice and opportunity for comment with respect to such rules.
24
25 On November 7, 1988,the Department published in the Federal Register(53 FR 44992) a proposed rule to
26 provide the interpretation of the Secretary of Housing and Urban Development on the scope of the coverage
27 provided and the nature of activities made unlawful by the Fair Housing Act.The proposed rule also contained
28 the procedures which would be applicable to the receipt and processing of complaints and the initiation and
29 conduct of formal enforcement proceedings.
30
31 Specifically, the Department proposed to add the three new parts to Subtitle B of Title 24 of the Code of
32 Federal Regulations.The new Part 100 described the conduct made unlawful underthe Fair Housing Act.The
33 new Part 103 set forth the procedures for the receipt, investigation and conciliation of complaints and for the
34 issuance of charges commencing formal administrative proceedings.The new Part 104 established rules for
3s the conduct of administrative hearings before administrative law judges and provided rules of discovery in
36 connection with such administrative proceedings.
37
38 It was further proposed that the existing departmental regulations authorizing the Secretary to collect racial,
39 sex and ethnic data in departmental programs, located at 24 CFR Part 100, be redesignated as 24 CFR Part
40 121. These regulations were revised in the proposal to reflect the additional data requirements for HUD
41 programs to meet the Department's responsibility to provide reports to Congress and to make available to the
42 public data on persons eligible to participate and who are participating in HUD programs.
EXHIBIT"B"
54 FIR 3232-Implementation of the Fair Housing Amendments Act of 1988 Page-5-
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Item 8. - 136 xB -334-
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EXHDBR"B"
i The proposed rule also made revisions in four existing departmental regulations implementing the Fair !/
|
2 Housing Act to reflect the expansion of the coverage of the law bzinclude handicap and familial status,Those |
a regulations are: Fair Housing Administrative Meetings under Title Vill of the Civil RightsAct of 1968(24 CFR
4 Pod 1OG). Fair Housing Advertising /24 ��F� Part �Ug). Fair Housing Poster (24 CF� Part 11D\ and
!|
' ` ' �i
s Certification oueamd�|k Eq
uivalent quk/a| tAe emgm�ee(24 CFR Part 11��'
. of Substantially ..
s
'
r The proposal provided a 30-day period for the submission of comments by the public, ending December 7,
n 1988. The Department received 6,425 public comments on the proposed rule by the end of the comment !�
s period. |n addition, a substantial number of comment were received by the Department after the December �
zn 7 deadline. Even though those comments were not timely filed,they were reviewed to assure that any major
issues raised were adequately addressed in comments that were received by the deadline.
/
12 '
|
-La Despite the extraordinary number of comments submitted(there were several thousand comments just from |
14 mobile home owners and operators of mobile home park�) �a�hof�heUm�yconnn�*m�vv�aread amd�|��� '
��'' ' |
is of all significant issues neked by those comments was compiled. Al! these issues were considered in the
�a development ofthis rule.
o
zo In addition to consideration of public comments,HUD staff members metwith representatives of several major '
zy interest groups who requested an opportunity to elaborate on the views expressed in theirwritten comments. !
zo These staff members (with responsibility for the development of this rule) met with representatives of the �
az National Apartment Association,the Society of Real Estate Appraisers,the American Institute of Real Estate �
zz Appraisers,the National Association of Home Builders,the Western Mobile Home Association,the Leadership �
za Conference on Civil Rights, National Association for the Advancement of Colored Peop|e, NAACP Legal '
zv Defense Fund, ChUdren'eOefenee Fund, American Civil Liberties Union, Mental Health Law Project, and '
zs representatives of various other Fair Housing Organizations. In each instance, the organization or
zs organizations presented views identical to or consistent with positions taken in previously submitted written
zr comments.A record of each meeting was made, including the names of persons attending,the date, and a |
zo brief summary of the issues discussed.These meeting records appear in the Department's public comment �
z* file. The staff members also met with staff of the Senate Judiciary Committee. |
an .
31 Part 1U0~~Discriminatory Conduct Under the Fair.Hoasing Act �
|
32 Part 100is e new part titled Conduct Under The Fair Housing Act".The new Part 100: !
i
33 — |mdicatesdhemndudwhich is made unlawful under the Fair Housing Act; ,
34 Includes guidance as to the responsibility of persons to permit reasonable modifications to dwellings and �
is to make reasonable accommodations to rules and practices for persons with handicaps and further provides
sa information as to the design and construction requirements applicable to certai n new construction multifamily |
�
yr housing for first occupancy after March 13, 1091; and
an — Describes the requirements which must be met for housing to be exempted from the prohibitions against �
se discrimination based on familial status because it qualifies as housing for older persons. i
^o `
41 The comments received with respect to Subparts A, B. and C of Pad 100 raised sewaod issues of general i
*z importance.
�
EXHlBIT"B"
54 FR3232- implementation ofthe Fair Housing Amendments Act of 1988 Page'G- /
^�n://www,m,irxovnmo.com/inoax.omrmemoo~nooa,msn/evanananamm~n,om_o2frucou |
�f�r� Q 1 �7
T�0 -33�- �^=^^^ w. - ^-' ,
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EXH0BIT"B"
z Standard for Proving aViolation �
z The proposed rulemaking indicated that the descriptions of unlawful conduct contained in this part generally i
3 mirrored the language of the statutory prohibitions against discrimination under the Fair Housing Act. The i
4 proposed rule indicated that the opedUo prohibitions in each section of the nagu|adnna were amplified by �
s examples of unlawful conduct provided in those sections.The preamble to the proposed rule stated that many !
s of the practices so identified have been the subject of court decisions since the passage of Title Vill of the
r Civil Rights Act of1Q68.The preamble further stated that other examples reflect the interpretation of HUD �
o based nn its experience since 10G8in the investigation nfconno|aintanfdionhnninatoryhouoingpraoticeo� |n |
. |
* addition,the preamble cautioned that the illustrations in Part 100 were only examples of the types of conduct �
�o made unlawful under the Fair Housing Act.
(
z� \
12 Although the Department viewed the illustrations of conduct unlawful under the Fair Housing Act in Part 100 �
�a to be descriptive of the types of conduct prohibited, several commenters suggested that, in some instances, |
z^ the illustrations could be read to suggestthatthe Departmentwas using them to establish the legal standards |
|
zs for determining liability in the adjudication of matters under the Fair Housing Act.
1s
z, 3pec0caUy, these commenters asserted that four illustrations in the proposed rule were susceptible to �
zo misinterpretation.With regard to§§ 100.70(c)(3). 100'75(c)(3)and 1OO.8O(b)(3).they asserted that the use i
zs of the phrases "in order to discourage", "in order to deny" and ''|n order to preclude" could be viewed as �
zn limiting the types of activities which would constitute unlawful conduct.Similarly,these commenters asserted �
z/ that. in § 17O.7O(d)(1). the phrase "to encourage. permit or reward" could �|an imply that intentional
�
�
zz discriminatory conduct was necessary to establish that a discrimi natory housing practice occurred.While the .
23 Department believes that the cited illustrations do not in any way imply the standard for determiningthe liability �
z^ of persons,these regulations are not designed to resolve the question of whether intent is or is not required
zs to show aviolation and in order to assure that there will be no confusion aoto the scope ofPart 100. the �
za illustrations in § 100.70(c)(3). 100.75(c)(3) and 100.80(b)(3) have been revised. The illustration in �
zr 100.70(d)(1) has been deleted from the final rule for the reasons discussed in the following section of this �
zo preamble. !
|
~
3m Affirmative Fair Housing Acthvites �
az Several commenters suggested that the proposed rule did not address affirmative efforts by localities to �
|
32 further the achievement of the goal of fair housing through the implementation of programs to promoter
sy integrated housing.Several commenters,including fair housing groups,persons and organizations involved /
m in promoting fair housing and a numberof local governments,interpreted certain illustrationsof conductmade
35 unlawful in the proposed rule as prohibiting the use of governmentally approved programs designed to |
36 promote greater housing opportunities for persons. �
37
so On the other hand, a comment from an association representing persons involved in the sale and rental of !
ay dwellings urged that the proposed rule be revised to make it clear that such practices are prohibited by the
/m Fair Housing Act. !
/
41 |
'o The Department does not believe that the proposed rule could be interpreted to make affirmative marketing
m programs, designed to make available information which broadens housing choices for persons, a violation
EXHIBIT"^B"
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^°�^ m. - ^�m HB -336-
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EXHIBIT"B"
z of the Fair Housing Act. i
2
u The Department of Housing and Urban Development, shortly after the enactment of Title VlO of the Civil
« Rights Act of 1968,published regulations designed to promote greater opportunities for persons to participate
s in its housing programs.These AffinnuUveFair Housing Marketing Regulations(24CFR2DO.6O8)implement
s the Department's policy of assuring that persons of similar income levels inu housing market area have ulike
7 range of housing choices available to them, regardless of race, color, re!|gion, sex, or national origin.
|
o '
y The regulation provides forthe development and implementation ofunaffinnuUve fair housing marketing plan.
x» As part ofthis p|un, participants in HUD housing programs must carry out un affirmative program to attract
/z buyers or tenunto, regardless of sex, of all minority and majority groups to the housing. In uddition, the i
12 Department requires program participants to identify any groups of persons who are not likely to be aware of �
zx the.available housing and to undertake special marketing efforts designed to make such persons aware of
14 the available housing and their ability to obtain it on nondiscriminatory basis, �
!
3.6 Nothing in the amendments to the Fair Housing Act or their legislative history would support a conclusion that
zr Congress sought to make choice-broadening activities, such um the Department's/ffinmutive Fair Housing �
in Marketing P,ognym, unlawful discriminatory housing practices.
e |
zo .Beyond these activities,both groups of commenters recommended that the final rule should indicate whether i
2.1 other practices designed to promote integrated housing patterns are permissible under the Fair Housing Act. �
/
zz Generally, these "pro-integrative" programs involve practices which are designed and operated to provide
zo incentives for persons to make housing choices in a manner which results in the furtherance of integrated
z* housing patterns.
2s
26 The issue of programs designed to promote integrated housing patterns was considered by the Congress in
z/ connection with un amendment to the Fair Housing Amendments Act offered in the House which would have
zn made it unlawful to use any preferences in the provision of any dwelling based on race,color,religion,gender
zo or national origin. Before the amendment was defeated, [bngnaaarnen Don Edwu,ds, one of the chief
su sponsors of the Fair Housing Amendments Act, agreed to hold hearings on the subject ofpro-integrative �
yz programs. (See 134Cong. Rec. H4QO3 (daily ed. June2Q. 1Q88)]
az i
sa Very recently, on December 12. 1888. the House Committee on the Judiciary Subcommittee on Civil and
34 Constitutional Rights held oversight hearings on Fair Housing. In this heuhng, the subcommittee heard
ss testimony concerning the issues raised in pro-integration efforts. In fact, much of the testimony involved |
ao activities which are the same usur similar to those referred toin the comments on the proposed nu|e !
' |
37 .
ax In view of the legislative history concerning pro-integration programs and the Congressional action in this !
se area, the Department has determined that it would not be appropriate to address the issue of pro-integration �
4m programs in this final rule. �
zu !
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Item 8 139
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EXHIBIT"B"
54 FR 3232-imp slemerta tic n of the Fair Housing Amon dtrents Act of 1988
z Commenters pointed to several of the illustrations in the proposed rule which they believed could be read oe i
!
z indicating that the Department would view pro-integration activities as constituting unlav&I conduct. �
3 .
4 The Department believes that the illustrations contained in the proposed rule accurately reflect the types of
s activities which,when they result in choice limitations,would constitute unlawful conduct. However, in order �
e to assure that the Department's rule implementing the Fair Housing Act does not impact on the consideration |
r of the scope of permissible affirmative activities to promote integration, the Department has removed the `
o illustrations that the cornmenters asserted could be construed as impacting either positively or negatively on �
�
o the Congressional evaluation. Specifically, the illustrations in §§ 100.8Q(b)(5)' 1M85(b)C2). 100.70(o)(1). /
io 10O.7Q(d)(1)and(2). 10U.12O(b)(1).(3). W\.(5). 8.and(7). 1Q0.13O(b)(1)and(4)and1OQ.135kd\(1).(2).and }
,z (3)have been removed.Further,the Department has rejected comments suggesting changes\n§ 1O0.7O(a). �
zz and the addition of new illustrations in §§ 108.70(c). 100.75(c). 100.130(o). and 100.135(d)to indicate that �
�
zs pro-integration practices are unlawful,
m
� In addition, several commenters requested that the provisions of the proposed mk» regarding unlawful �
ic advertising practices in §100.50b)(4)be revised.The languageinthis section has been changed to mirrow
zr the language contained in section 804(c)of the Fair Housing Act relating to unlawfuladvertising with respect �
,_n ho the sale or rental ofadwelling. �
19 �
zo Protection of New Covered Classes /
i
21 |n the preamble to the p nuky.the��pe�m�nt���sd�dthotd\nb�rpnyb�dU�epo��oUon�ef�xd�d0o �
�_,_-� !
zz handicapped persons and families with children inthe same manner as the protections provided tuothers |
23 under the Fair Housing Act. A number of commenters suggested that }t was unreasonable to assume that `
24 Congress intended to provide the same protections to the new classes of persons afford ed protection under !
zs the amendments. One �
� �
zo to utilize standards developed under the Equal Pndedicm Clause of the Fourteenth Amendment to the
z, Constitution in determining the nature of the protections provided to handicapped persons and families with (
zo children.This commenter indicated that, under such a standard,classifications based on race and sex would �
zy stand on o different footing from classifications based on handicap and tsnnilio| status, and that differential �
30 treatment of the handicapped or families with children in some particular contexts could be justified by a �
uz rational relationship to legitimate )nhanemto even where similar �i��nant}a| treatment based on race or '
` i
sz could not be justified. i
`
33 '
34 While'it ka true that the Congress, in enacting Title\0Uof the Civil Rights Act of1Q68. sought to assure that /
35 persons would be accorded equal protection ofthe law, the Constitutional underpinnings of the law are also i
|
/6 rooted in the Commerce Clause. '
37 .
.
ao |no memorandum cm the constitutionality of the Fair Housing Lsm/ the Department ofJustice set forth the `
�
ae support |n the Commerce Clause for the legislation, stating: �
40 �
^a "Discrimination|n housing affects this interstate commerce in several ways.The confinement of Negroes and �
*z other minority groups to older homes in ghettoes restricts the number nfnew homes which are built and �
�
EXHIBIT"B" �
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54 FR 3232-tmxlarnentafian of the Fair Housing Amondments Act of 1988
i consequently reduces the amount of building materials and residential financing which moves across state
2 lines, Negroes, especially those in the professions or in business, are less likely to change their place of
3 residence to another state when housing discrimination would force them to move their families into ghettoes.
4 The result is both to reduce the interstate movementof individuals and to hinderthe efficient allocation of labor
s among the interstate components of the economy.
6
r "The Commerce Clause grants Congress plenary power to protect interstate commerce from adverse effects
s such as these.The power is not restricted to goods or persons in transit.It extends to all activities which affect
4 interstate commerce, even it the goods or persons engaged in the activities are not then, or may never be,
i0 traveling in commerce. The power exists even when the effects upon which it is based are minor, or when
si taken individually, they would be insignificant. It is sufficient if the effects, taken as a whole, are present in
12 measureable amounts.And it does not matter that when Congress exercises its power under the Commerce
13 Clause, its motives are not solely to protect commerce. It can as validly act for moral reasons." (footnotes
14 omitted) 114 Cong. Rec. 2536-2537. (February 7, 1968)
is
16 The Department believes that the legislative history of the Fair Housing Act and the development of fair
17 housing law after the protections of that law were extended in 1974 to prohibit discrimination because of sex
is (Congress amended sections 804,805,and 806 by adding sexto the classes of persons protected underTitle
19 VII€,see section 808(b)(1)of the Housing and Community Development Act of 1974, Pub.L.93-383)support
20 the position that persons with handicaps and families with children must be provided the same protections
21 as other classes of persons.
22
23 Increased Liability
24 A significant number of commenters asserted that providing protections to persons with handicaps and
25 families with children would restrict their ability to establish reasonable rules relating to the availability and the
26 use of facilities provided in connection with dwellings. These commenters also suggested that a regulation,
27 requiring full access of handicapped persons and children to all facilities provided in connection with dwellings,
28 and requiring the rental of dwellings on upper floors of a high-rise building, would result in increased tort
29 liability.
30
M The Department does not believe that, in enacting the Fair Housing Amendments Act, the Congress sought
32 to limit the ability of landlords or other property managers to develop and implement reasonable rules and
33 regulations relating to the use of facilities associated with dwellings for the health and safety of persons.
34 However, there is no support for concluding that it is permissible to exclude handicapped persons or families
35 with children from dwellings on upper floors of a high-rise,based on the assertion that such dwellings per se
36 present a health or safety risk to such persons.Further,to permit such a practice would render meaningless
37 the provisions of the law requiring that all dwellings in buildings consisting of 4 or more units and having one
38 or more elevators be accessible to and usable by handicapped persons.
39
4c A number of commenters also urged the Department,in its final rule,to provide that a high-rise building could
41 be exempted from the familial status provisions of the Act if it were certified that the high-rise building did not
42 provide a safe and healthy Irving environment for children. In support of this type of exemption, several
43 commenters pointed to language contained in Section 201 of the Housing and Community Development Act
EXHIBIT"B"
54 FR 3232- Implemeritation of the Fair Housing Amendments Act of 1988 Page-10-
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Ns _339_ Item 8. - 141
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z of 1977 which directed that the Secretary of HUD"prohibit high-rise elevator projectsfor families with children �
!
z unless there is no practicable alternative." (See section 8(o)(1) of the Housing Act of 1937 (42 USC
3 1437f(c)(1)).). There is nothing in the Fair Housing Actto indicatethat Congress in anywaysoughtto limit i
4 the ability of families with children to obtain dwellings in a building other than those specifically exempted �
s under the Act, Further,the department does not believe that the language in the Housing and Community
o Development Act of 1977. requiring HUD approval of the use ofhigh-rise projects for providing housing for
r families with children would support a provision in this final rule which would provide an exemption from
o coverage of the Fair Housing Act for such buildings, As a result,these comments have not been adopted.
|
, /
uz However,there io nothing in the provisions of the Fair Housing Amendments Act or its legislative history that �
ii indicates that Congress sought to impose any new liability on the owners and managers of housing. This
z, interpretation is supported by a colloquy between Senator Specter and SenatorKennedy regarding the issue |
1.3 of liability: |
|
m |
zs Mr. Specter. biemy understanding that, ame result of this bill, a property owner does not assume agreater !
16 degree of vicarious liability as a result of injuries that may be caused by the tenants in the expanded �
rr categories of protected classes established under this bill. | believe it would be useful for the manager to `
is confirm that it is not the intent of Congress that property owners will incur greater vicarious tort liability as a
19 result of this statute because of the physical or mental characteristics of the tenants covered by this bill. �
zo �
zi Mr, Kennedy.The Senator is correct.Congress does not intend to alter vicadous or secondary State tort law �
zz through the provisions of this bill.There is no objective evidence to linkconcerns about increased liabilitywith .
za any of the protected classes,and none should be assumed.Thus,we are stating,as a matter of clarification, !
24 that there imno relationship between this bill and existing State vicarious and secondary|iabi|itytort laws. 134 �
�
zs Cong. Rec. S1O54Q (daily ed. Aug. 2. 1Q8B). `
zs
zr SubpertA—Genera|
2s Section 100.1 Authohty.
zs The Fair Housing Amendments Act authorizes the Secretary of Housing and Urban Development toissue !
ao regulations implementing the provisions of the Fair Housing Act (42 U.S.C. 3800-3620). The regulations '
az contained in Part 100 are being issued underthe Secretarys authority forthe administration and enforcement �
o of the Fair Housing Act. �
33 �
m Section 10O5Scope. �
!
ss The Fair Housing Act provides,within constitutional limitations.forfair housing throughoutthe United States.
36 It providesthat no person shall, on the basis of race,color,religion,sex,handicap,familial status,or national �
37 ohgin, be subjected to discrimination in the sale, rental or advertising for sale or rental of dwellings, in the �
3s provision of brokerage aervioee, or in residential real estate-related transactions. Section 100.5(a) and (b) �
as indicates that this part provides guidance as to the Department's interpretation of the coverage of the Fair '
/w Housing Act regarding d|enhminotion related to the sale or rental of dwellings, the provision of services in �
m connection therewith, and the availability ofreal estate-related transactions. |
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54 FR 3232-fmp)ementeNon of the Fair Housing Amendments Act of 1358
1 Section 100.10 Exemptions. j
2 The Fair Housing Act exempts certain types of housing from the coverage of the law.Section 807 of the Fair
3 Housing Act provides that, under certain circumstances, religious organizations and private clubs may limit
4 the sale, rental or occupancy of housing, owned or operated for other than a commercial purpose, to their
s members.Section 807 also provides that nothing in the provisions regarding familial status applies to housing
e for older persons.Section 803 of the Fair Housing Act provides that nothing in the Fair Housing Act,other than
7 the prohibitions against discriminatory advertising, applies to the sale or rental by an owner of certain single
s family houses without the use of a real estate broker or to the rental of rooms in dwellings containing living
s quarters occupied by no more than four families, provided that the owner actually occupies one of the units.
0 Section 100.10 of this part reflects these exemptions to the coverage of the law.
11
12 Section 100.10(a)(3)states that nothing in this regulation limits the applicability of any reasonable local,State
13 or Federal restrictions on the maximum number of occupants permitted to occupy a dwelling unit. This
14 paragraph incorporates into the regulation the revisions to section 807 of the Fair Housing Act contained in
15 section 6(d) of the Fair Housing Amendments Act of 1988, That provision is intended to allow reasonable
26 governmental limitations on occupancy to continue as long as they are applied to all occupants, and do not
17 operate to discriminate on the basis of race, color, religion, sex, handicap,familial status, or national origin.
is H.R. Rep. No. 711, 100th Congress, 2d Sess. 31 (1988)("House Report"). No changes have been made in
1g this section of the regulations.
20
22 A number of commenters indicated that the proposed rule did not adequately address the question of what
22 occupancy standards,if any,can be used by persons in connection with the sale and rental of dwellings.Many
23 of these commenters, generally persons involved in the rental of dwellings and associations representing
24 owners and managers of rental dwellings, recommended that the final rule include a HUD-developed
25 occupancy standard,and state that in the absence of a State or local occupancy code, owners or managers
26 complying with the HUD standard would be considered to be in compliance with the Fair Housing Act with
27 respect to the treatment of families with children. In the alternative, several commenters recommended that
28 HUD indicate in the final rule that owners and managers of rental housing would be in compliance with the
29 Fair Housing Act if they developed and implemented occupancy standards which are no less stringent than
30 occupancy guidelines currently used in connection with HUD-assisted housing programs.
31
32 While the statutory provision providing exemptions to the Fair Housing Act states that nothing in the law limits
33 the applicability of any reasonable Federal restrictions regarding the maximum number of occupants, there
34 is no support in the statute or its legislative history which indicates any intent on the part of Congress to
35 provide for the development of a national occupancy code.This interpretation is consistentwith Congressional
36 reliance on and encouragement for States and localities to become active participants in the effort to promote
37 achievement of the goal of Fair Housing.Further,while the Department has developed occupancy guidelines
38 for use by participants in HUD housing programs,these guidelines are designed to apply to the types and
39 sizes of dwellings in HUD programs and they may not be reasonable for dwellings with more available space
4o and other.dwelling configurations than those found in HUD-assisted housing.
41
42 On the other hand, there is no basis to conclude that Congress intended that an owner or manager of
43 dwellings would be unable in any way to restrict the number of occupants who could reside in a dwelling.
44 Thus, the Department believes that in appropriate circumstances, owners and managers may develop and
EXHIBIT"B"
54 FIR 3232- Imolementation of the Fair Housing Amendments Act of 1988 Page -12-
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
\.
!
z implement reasonable occupancy requirements based on factors such as the number and size of sleeping
z areas or bedrooms and the overall size of the dwelling unit. In this regard,it must be noted that, in connection i
a with a complaint alleging discrimination on the basis of familial status,the Department will carefully examine |i
^ any such nongovernmental restriction to determine whether it operates unreasonably to limit or exclude �(
]
s families with children. `
s [/ Several commenters requested advice regarding the application of the Far Housing Act to the sale of
o condominium and cooperative units and mobile homes bv private persons. �
!.
o �
zo As indicated in the proposed ru|e, the prohibitions against discrimination apply to all types of dweUnga,
z/ including condominiums, cooperatives and mobile homes. Thus, discrimination in the sale or rental of such �
17 dwel|ingawnu|dbeunlawful.However the Fair Housing Actiprovides a limited exemption forthe saleof certain �
13 single family houses,and§ 1OO.1O(c)describes this statutory exemption.Specifically,this section indicates !�
14 that the Fair Housing Act exempts from the provisions prohibiting discrimination any single family house sold
s by an owner,subject to certain conditions:the owner may not own or have an interest in more than three such
zo houses at any one time;in the case of the sale of a single family house in which the owner was not the most �
17 recent occupant prior to its ae|e, the owner may not have made any other such ao|e within the preceding �
is twenty-four months; and the unit must be sold or rented without the use of a real estate broker or agent, and '
za without the use of any discriminatory advertisement. �
�
zo
z, Thus, the sale of a single family house, including the sale of a condominium or cooperative unit or a mobile �
zz hnme, by an owner would not be covered by the provisions of the Fair Housing Act, provided that the �
aa limitations in§ 100.10(c) are met. Hmwevar, it must be noted that the exemption in this section applies only '
z* to the owner of such a dvveUring, and that the cooperative or condominium or mobile home park would be
zs prohibited from engaging in any discriminatory conduct with respect to the dwelling notwithstanding the fact
zs that the conduct nf the owner was not covered. |
zr
m Section 1DO.2DDefinitions.
/
zy Section 100.20 provides definitions to be used for terms in Part 100. The definition of the term"dwelling" in |
so the proposed rule statedthatthe term include mobile home parks,condominiums and cooperatives.A number |
a, of comments arugad that cooperatives, condominiums and mobile homes are not."dwellings" within the
32 meaning of the statutory definition of the term. The Department disagrees. The statutory definition of a .
o dwelling is "any bu\|d\ng, atnuctunm, or portion thereof which is occupied as, or designed or intended for
34 occupancy as,a residence by one or more families, and any vacant land which is offered for sale or lease for �
e the construction or location thereon of any such building,structure,or portion thereof."This definition is clearly
»x broad enough to cover each of the types of dwellings enumerated in the proposed rule: mobile home parks,
sr trailer courts,condominiums,cooperatives,and time-sharing properties.Several commenters suggested that
yx the definitions of the terms "dwelling" and "person" should be expanded to provide some illustrations,
ay particularly\n the areas relating tn handicap and familiar status.
*»
41 Other commenters recommended that the final rule should contain the same definitions as those provided in �
42 the Fair Housing Act. These commenters indicated that the addition of certain types of persons, or certain
43 examples of dwellings, could be viewed as indicating a restriction not contemplated in the law.
EXHIBIT"B"
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[
z The Department has determined that,on balance,the need to leave open the extent and scope of the terms !
|
z defined in the Fair Housing Act outweighs the need to provide comprehensive examples in connection with
y this rulemaking.As a result,the definitions of the terms"dwelling"and"person"have been revised to read as
4 set forth in the statute.
�
s A number of commenters objected to the incfu sion of the phrase"is about to occur in the definition of the term
, "aggrieved person".These commenters suggested that the addition of this phrase was inappropriate in that
u it would make unlawful acts that have not occurred, |
y
m The definition of the term "aggdaved person", as any person who claims to have been injured by a
iz d/aohminatory housing practice, or who believes that he or she will be injured by a discriminatory housing |
�z practice that in about to occur, ia statutory and has not been changed in the fina| rule.The phrase"is about !
z3 to occur"applies to a number of situations in which it is clear to a person that,if he or she takes an action, he !
14 or she will bo subjected toa discriminatory act which will result inan injury. !n such cases,the Fair Housing |
Act does not require these persons to expose themselves to the injury involved with the actual act of i
/
1e discrimination before filing acomplaint. '
o '
zo A number of commeters suaaested that the definition of aggrieved person be expanded to incorporate into
a the text of the rule the statement in the preamble to the proposed rule that an"aggrieved person includes a !
zo fair housing organization as well as a tester or other person who seeks information about the availability of !
i
21 dwellings to determine whether discriminatory housing practices are occurring." In addiUon, several
zz commenters suggested that references to providers of group homes for handicapped persons also be added
23 to the definition,
24
2s As indicated above,the Department has determined that the definitions in these regulations which are terms
26 defined in the Fair Housing Act should contain the statutory language. However, the Department has
zr consistently interpreted the provisions of the fair housing law to permit the filing of a complaint by any person
zx or organization which alleges that adiachmintory housing practice has occurred oriaabout to occur and which �
zy will result\nan injury tothem. �
3m �
31 The proposed rule defined the "broker"or"agent" as any person authorized to perform an action on behalf !
32 of another person regarding any matter related to the sale or rental of dwellings, including offers, solicitations |
33 or oonbacta, and the administration of matters regarding such offena, solicitations or contracts or any naai i
a: estate-related transactions. Several commenters pointed out that the Fair Housing Act did not contain a
a5 definition of these terms. These commenters also pointed out that the specific defini'don of these terms,for
36 the purpose of this regulation, could result in a limitation on the types of persons who would be considered
»r as brokers or agents in connection with any other aspect of a housing transaction. |
)
38
s The Department did not intend, in the proposed rule,to establish a universal definition of the terms"broker"
/m or"agent."However the Department believes that since these terms appear in numerous places throughout �
m the rule, guidance is necessary with respect to the scope of persons who are considered to be brokers and `
42 agents, particularly when such persons are involved in the sale or rental of dwellings.Therefore, a definition
EXH|BIT^'B"
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^ w. - ���
EXHIBIT L5B"
54 FR 3232- Implementation o`the Fair Housing Arne,rdrrentsJOActof 1988
1 of the terms"broker"or"agent" has been retained in the final rule. In order to avoid confusion as to whether
2 persons otherwise involved in housing transactions are acting as brokers or agents,the definition has been
a revised to provide that a broker or agent"includes" rather than "means"persons described in the definition.
4
s Several persons indicated that the terra "person in the business of selling or renting dwellings", which was
6 included as a defined term in the proposed rule, was never used in the text of the rule. These commenters
7 suggested that the definition of this term be deleted.These commenters are in error, since the term appears
s in the exemption for the sale or rental of a single family house by an owner,in§100.10(c)(1)(ii).The definition,
s which is taken from section 803(c)of the Fair Housing Act, has been retained in the final rule.
10
11 The remaining definitions in the proposed rule have not been changed in the final rule.
12
13 Subpart B--[Discriminatory Housing Practices
14
is Section 100.50 Real estate practices prohibited.
i6 Section 100.50 of the rule states that Subpart B provides the Department's interpretation of the conduct made
17 unlawful under section 804 and section 806 of the Fair Housing Act. In general, these provisions describe
1s conduct made unlawful with regard to any aspect related to the sale, rental, or advertising of dwellings and
19 to the provisions of brokerage services and facilities in connection with the sale or rental of dwellings.
20
21 Section 100.50(b)describes the specific conduct made unlawful in relation to the sale or rental of dwellings.
22 The conduct described in this section forms the basis for the subsequent sections in Subpart B. Each of the
23 subsequent sections provides illustrations of the scope and applicability of the ruleto specific sales,rental and
24 brokerage activities.
25
26 While the illustrations are set forth under the section of Subpart B which is most applicable to the
27 discriminatory conduct described, § 100.50 indicates that an action described in one section can constitute
2s a violation under other sections as well. In addition,the illustrations of discriminatory conduct in this subpart
29 are only examples of discriminatory conduct that violates the Fair Housing Act and are not intended to limit
3o the scope of discrimination in housing made unlawful under the Fair Housing Act,
31
32 With the exception of the revision of§100.50(b)(4),which was discussed earlier in this preamble, no changes
33 have been made in the text of§ 100.50.
34
35 Section 100.60 Unlawful refusal to sell or rent or to negotiate for the sale or rental.
36 Section 100.60 describes the actions which constitutes a refusal to sell or rent a dwelling when a bona fide
37 offer is made or a refusal to negotiate with persons for the sale or rental of a dwelling and which are unlawful
3s when they are taken because of race, color, religion, sex, handicap,familiar status, or national origin.
39
4o As discussed earlier, the illustration contained in § 100.60 (b) (5) has-been removed, and the subsequent
EXHIBIT«B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1983 Page -15-
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EXHKB[T"B"
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�
i illustration has been renumbered accordingly. No other changes have been made in this section of the final
z rule. �
2
/
* Section 100.65 Discrimination in terms, conditions and privileges and in services and facilities. �
'
s Section 100 85 pmv�ma �� ��mn�� in �o ���o� of persons � connection �� �e pmv�m o�
. � �
a services and facilities orin the terms or conditions relating to the sale or rental ofm dwelling because ofrace, �
r color, ndigion, sox handicap,familial status, or national origin constitute discriminatory housing practices. �
y The illustrations in § 100.65(b) indicate that the coverage of this section extends beyond restrictions or
zo dVforonooa in m |omae or sales contract and the provision of different levels ofmaintenance. This section
11 provides that denials of, or limitations on the use of privileges, services or facilities, relating to the am|o or
zz rental of a dwelling because of race, color, religion,sex, handicap,familial status, or national origin are also
za discriminatory housing practices.
14
is In order to indicate the broad range of conduct which would constitute different terms and oonditions, the
is department has added another illustration to this section (§ 100.65(b)(5)) indicating that denying or limiting
zr services or facilities to persons based on a person failing or refusing to grant sexual favors can constitute a
zo discriminatory housing practice.
zs
m A large number of comments received from persons owning or managing rental housing and moaoombona
zz representing such persona disagreed with the Department's interpretation of the Fair Housing Act as
zz precluding different security deposit requirements for persons with handicaps and familieswith children,These
zs comments generally took the position that mobility impaired persons in wheelchairs and small children would
24 cause more damage to the interior of dwellings, thus justifying the need for additional security to cover the
25 exposure of the owneror managerto make needed repairs when units occupied bysuch persons are vacated.
zu Since the Department has determined that in enacting the Fair Housing Act,Congress sought to provide the
zr same protections to persons with handicaps and families with children as were made available to other
zu classes of protected persons, no change in the illustration |n§ 100,65(a)(1) has been made.
29
ao A number of commenters indicated that they customarilyprovided for reduced security depositsfor elderly
sz persons renting units and asked whether continuing such practice would place them in violation of the Fair
32 Housing Act.As long as such a policy is based solely on age, is available to persons if there are children in
33 the family, and is not otherwise operated in a manner that results in the exclusion of families with children,
s* such m practice would not bounlawful.
3s
o, Another commenter indicated that charges for the provision nf water, electricity, refuse collection and other
37 services have have been based on the number cfpersons who occupy m dwelling and asked whether such |
sa m policy would be permissible. In order to determine whether such m policy is ponnimoib|o, it would be �
39 necessary to understand more fully why it was implemented and how it actually opootoa. Further, since |
40 policies such as this would require review on m cmao by cmeo basis, the Department has dohanninad that �
*z addressing this issue|n the final rule would not boappropriate.
*z
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!
|
z As discussed earlier in the preamble, the illustration in § 100 has been removed, pending i
2 Congressional review of pro-integration programs.
� .
4 Section 1OU.78 Other prohibited sale and rental conduct.
i
s Section 100.70 provides that restricting or attempting to restrict the housing choices of persons,or engaging
s in any conduct relating to the sale or rental of a dwelling that otherwise makes unavailable ordenies dwellings, !
7 because of race, oo|or, religion, eex, handicap,familial etatus, or national ohgin, is discriminatory housing �
o pnoc8m*. !
y m Section 100.70(c) describes actions which result in limitations of housing choice that would violate the Fair �
i�_ HouaingAct. Theaepnooticee. whichareoomnnonlyrefenedtoam°steehnQ,°imJudepracticesdesignedto
12 discourage persons from seeking housing in a particular community,neighborhood,or development because �
za of race, mdor, na|iQion, eex, handicap,familial etatuo, or national origin. �
,4 .
IS The illustrations in § 100.70(c)(1). (d)(1) and(d)(2)of the proposed rule have been removed in response to �
16 comments regarding Congressional activity in the area of affirmative action to promote integrated housing.
`o In addiUon, it should be pointed out that the Department did not intend in the illustration 1n§ 100.70(d)(2) of �
zx the proposed rule to imply that language or sign interpreters were required with respect to transactions �
zy involving a person who can not speak English or who has a hearing or vision impairment, The remaining �
�
2n illustrations in the section have been renumbered. �
|
21
22 In the preamble discussion of § 10070 in the proposed nde, it was sbohed, as an example, that private i
2-i developer's market-based decision to include only efficiency apartments in a new development would not �
m violate the FairHousingAct even though,"as a practical matter, such housing would be unavailable tofamilies �
25 with children." Acommenter pointed out be possible a|nQ|e parent and live in �n i
� i
za efficiency or one bedroom apartment,and thatthe example was not illustrative of a situation in which housing �
zr would be unavailable to farni||ao with children. The Department agrees with the comnnantar'o assertion. |
zn However, even though the example may have been flawed, the Department wishes to reiterate that it does
|
zy not interpret the Fair Housing Act as precluding the construction of apartment buildings with small units.
so /
31 |nondertodarifythetan unlawful refusal to deal with bnokenaendagen(sindudesa refusal based mntherace, �
32 color, religion,sex, handicap,familial status,or national origin of the broker oragentas well as the race,color, !
s-3 re|igion, aex, hondicap, familial otatus, or national origin of one or more of their clients the illustration in § '
34 1OUJO(d)(2) has been revised. �
as
as A number of commenters suggested that the rule specifically proposed !
o families are discouraged from obtaining housing because of the presence or possible presence of children. �
sa As discussed earlier inthis preamble, the illustrations provided in the final rule are intended todescribed !
sy discriminatory housing practices generally and are not intended to be exhaustive descriptions of all conduct
w/ made unlawful under the Fair Housing Act. For this remson, the deportment has determined not to odd a '
m separate illustration with respect to steering conduct booed on familial status. Further, the illustrations in § .
*z 100.70(c) (2) and (3) indicate conduct designed to discourage persons from obtaining a dwelling by '
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54 FR 323 2-lmplemertation of the Fair Housing Amendrrnents Act of 1988
i exaggerating drawbacks or by communicating that certain persons are incompatible with existing residents
2 is unlawful. The department believes that these illustrations make it clear that representing that certain
3 housing would not be appropriate for,or would not be available to families with children would be prohibited
4 under the Act.
6 Several commenters also noted that the proposed rule did not address discriminatory local land use, health
7 and safety; and zoning rules that eliminate community housing opportunities.As indicated in the preambles
s discussion relating to Subpart D of this rule, the department has determined not to publish rules regarding
9 issues relating to local government exercise of police powers in the areas of land use and zoning. However,
so as discussed in the preamble to the proposed rule, discrimination in the provision of those services and
11 facilities which are prerequisites to obtaining dwellings, including refusals to provide municipal services or
12 adequate property or hazard insurance because of race, color, religion, sex, handicap, familial status or
13 national origin render housing unavailable in violation of the Fair Housing Act. in order to indicate that the
14 refusal to provide,orthe provision of different municipal services or facilities and property or hazard insurance
ss for dwellings because of race,color,religion,sex, handicap,or national origin can constitute a violation of"the
16 otherwise make unavailable or deny"provisions in the Act,the language in§100.70(d) has been revised and
17 a new illustration (§ 100.70(d)(4)) has been added. In addition, the illustration relating to discriminatory
is advertisements in § 100.70(d)(6) of the proposed rule has been removed, since such practices are more
i9 appropriate to the conduct made unlawful under§ 100.75 of the rule.
2a
21 Section 100.75 Discriminatory advertisements, statements, and notices.
22 Although the Fair Housing Advertising Regulations (24 CFR Part 109) apply to all advertising for dwellings,
23 the Department believes that it is appropriate, in connection with regulations describing prohibited conduct
24 related to the sale or rental of housing,to include additional guidance as to prohibited conduct regarding this
25 specific area.Section 100.75 describes prohibited conduct related to advertisements,notices and statements
26 by persons engaged in the sale or rental of housing or in the printing and publishing of such advertisements,
27 notices and statements.
288
29 No comments raised substantial issues regarding this provision,and it has been included in the final rule as
39 it was proposed.
32 Section 100.80 Discriminatory representations on the availability of dwellings.
33 Section 100.80 states that the provision of inaccurate or untrue information about the availability of dwellings
34 for sale or rent because of race,color, religion,sex, handicap, familial status,or national origin constitutes a
35 violation of the Fair Housing Act.A person who receives the inaccurate or untrue information need not be an
36 actual seeker of housing in order to be the victim of a discriminatory housing practice under this section.
37
m A number of commenters requested that the final rule specifically indicate that the provision of inaccurate
39 information to "testers" because of race, color, religion, sex, handicap, familial status, or national origin is
40 unlawful under the Fair Housing Act.These commenters also recommended that the final rule should state
41 that "testers"who are provided inaccurate information are persons aggrieved by a discriminatory housing
42 practice who may file a complaint with the Secretary.
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Implementation�
1 In to these oomnentm, an additional illustration has been added to this oechonvhich indicates that
�
z the provision of false or inaccurate information regarding the availability of dwellings to any person, including
3 testa/s, because of race, co|or, re|igion, sex, handicap,familial otatum, or national origin would be unlawful !
* under the Fair Housing Act.
�
s |
o Section 1DQ.85B|ockbuotng. '
/
r Blockbusting consists of any effort,for profit,to induce or attempt to induce a person to sell or rent a dwelling �
n by representations regarding the entry into a neighborhood of a person or persons of a particular race, color, '
y religion,sex,handicap,familial status,or national origin,orwith a handicap.Proposed§100.85(b)stated that
zn itwas not necessary thatthere be in fact a profit realized as a result of blockbusting, as long asthe availability
11 of profit was a factor involved in the blockbusting activity. A number of commenters indicated that the term |
zz "blockbusting"was archaic and could be misread as meaning only effortsto get people to move out of a block. �
i
1.3 In addition,these commenters suggested that the language"as long as the availability of profit was a factor" ,
24 would be confusing,since most law in the area has focused on whether a profit-oriented business is involved !
!
15 as vvaUaa whether the actions were taken for profit.
16 `
17 The description of the conduct made mdavvhd under $ 1OD85 follows the statutory prohibitions against |
is discrimination under section 804(e)ofthe Fair Housing Act.These practices have generally been referred to �
s as b(ockbusdng, and the term appears in the statute. The specific activities made unlawful under section |
zo 804(e)would not be limited merely because of the use of the term"blockbusting",Therefore,the Department
zi has determined that, while another more current term also may aptly describe the type of activities covered (
zz by this section (eg panic selling and panic buying). changing the terminology in this area could result |
. � /
23 substantial confusion as to whether the change in accepted terminology implied any change in the coverage
24 of the provision. In addition,the Department believes that the language in the proposed nu\o regarding profit 1
zs as a factor in unlawful blockbusting activities accurately describes the breadth of activities covered. /
�
26 |
zr Because the illustration in § 100.85(d(9) could be misinterpreted as implying that b|ockbumtnA activity !
zn involving uninvited solicitations for listings would violate the Act only if different or more intensive solicitation |
zy acUvityvvere involved,this illustration has been removed inthe final rule,However,inorderto make daar1ha1 |
so such practices can constitute discriminatory housing practices, the illustration in § 100.85(o)(1) has been .
sz revised to include a specific reference to uninvited solicitation for listings which would constitute a violation �
32 of the Act. �
a3 ,
|
m Section 100.90 Discrimination in the provision of brokerage services. �
as Section 100.80 reflects the prohibition inthe Fair Housing Act against denying any person access to, or �
se membership or participation in,any multiple listing service,real estate broker�organization orfacility relating �
ar to the business of selling or renting dwellings on account of race,color,religion,sex,handicap,familial status,
3s or national origin.This section also states that it im unlawful todiscriminate against any person in the terms |
so or conditions of such accnse, membership or participation because of race, co|or, re|ig{on, sax. handicap. |
^m familial status, |
' �
'u example of unlawful conduct relating to restrictions on access to service through area limitations. In response
42 to these commenters, a new illustration describing unlawful discrimination in establishing geographic
^a boundaries or office or residence requirements because of race,color,refigion,sex,handicap,familial status, �
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.1 or national origin has been added to this section.
`
z
i
s Subpart C— Discrimination in Residential Real Estate-Related Transactions
4 Section 1QO.11O Discriminatory practices in residential real estate-related transactions.
s Section 100.110 indicates the general prohibition against discrimination in the availability of, or in the terms |
a or conditions imposed in, any residential real estate-related transaction because of race,color, religion, sex !
r handicap,familial status,or national origin.The prohibitions against discrimination in Subpart C apply to any �
o person nr other entity whose business includes engaging in naeidential real estate-related transactions,
y /
io Several commenters recommended that the statement of general prohibition against discrimination in
zi residential real-estate related transactions incorporate by reference,into the Fair HousingAct regulations,the
zz regulatory implementation of the Equal Credit Opportunity Act by Federal financial regulatory agencies. |
13
|14 The Equal Credit Opportunity Act(15US.C. 18&1)makes it unlawful, in part,to discriminate against persons .
zs on the basis of race,color, religion,sex, national origin, marital status or age in any aspect related to a credit �
is transaction, �
�
27 !
is The Equal Credit Opportunity Act provides for administrative enforcement by specified Federal financial
!
ig regulatory agencies and empowers the Federal T rade Commission to provide for overall enforcement of the
zn Act. |
!
21 |
'
zz HUD has noan0zncemantauthohtyunde/the Egua/CxedkOpportunity Act and noenforuan ""xamt�aaponsbUdy '
/
za with respect to implementing regulations published by the Federal financial regulatory agencies under the /
�
24 Equal Credit Opportunity Act.As a result,the inclusion of such regulations in this section by reference would
zs have no legal effect.This comment has been rejected. �
zs /
o Section 1UQ.115 Residential realestate-re|atedbmmsactiona.
2s This section incorporates into Part 100 the definition of the term"residential realestate-related transaction" i
zs contained in section O(o) of the Fair Housing Amendments Act of 1988.
30
sz Section 100.120 Discrimination in the making of loans and in the provision of other financial assistance. |
sz Section 100'120 states that it in unlawful for a person or entity engaged in residential real estate-related
aa transactions to discriminate against persons because of race,color, religion sex,handicap,familial status,or
34 national origin in making available loans or other financial assistance relating to dwellings.The prohibitions
a» against discrimination in the making of loans and in the provision of other financial assistance reflects the
as language relating to discrimination in the financing of housing underTitle Vill of the Civil Rights Act of 1968.
37
'
38 in connection with the development of § 100.120, the Department has been guided by its experience in .
39 connection with the past administration and enforcement of Title VlH. Since the definition of the term
40 "residential real estate-related transactions" oovane loans and other financial assistance which are secured
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54 FR 3232-Implementation of the Fair Housing Amendments Act c`1988
i by residential real estate,the defininition expands the types of financing transactions which were previously
2 covered by the nondiscrimination requirements of Title Vill.However,there is nothing in the legislative history
3 of the Fair Housing Amendments Act of 1988 to indicate that the Congress intended that loans and other
4 assistance secured by a dwelling be treated any differently than loans for the purchase, construction,
5 improvement, repair, or maintenance of a dwelling.Thus,this section applies equally to both types of loans.
6
7 As discussed earlier in this preamble, the illustrations of the application of this section that were contained
s in§ 100.120(b)(1), (3),(4)1(5),(6),and(7)of the proposed rule have been removed, pending Congressional
9 action on the issue of pro-integration activities.
10
ii Section 100,125 Discrimination in the purchasing of loans.
12 The principal change in the nature of the conduct made unlawful regarding loans and other assistance with
i3 respect to dwellings is the inclusion of activities relating to the purchase of such loans. In prohibiting
14 discrimination inthe purchasingof loans,Congress extended the coverage of the Fair Housing Actto conduct
15 inthe secondary mortgage market.However,the House Reportonthe Fair Housing Amendments Act of 1988
16 states, with regard to this expanded coverage, "The Committee does not intend that those purchasing
17 mortgage loans be precluded from taking into consideration factors justified by business necessity(including
is requirements of Federal law)which relate to the financial security of the transaction or the protection against
9 default or diminution in the value of the property." House Report at 30.
20
21 Section 100.125 sets forth the new coverage of secondary mortgage market activities under the Fair Housing
22 Act. Since the protections provided under this section are new, the illustrations of discriminatory housing
23 practices in this section focus on general areas of unlawful conduct under the Act. In this respect, the
24 illustrations indicate thatconduct made unlawful with regard to secondary mortgage market activities includes
25 actions taken with respect to the purchase and pooling of mortgage loans as well as with respect to the terms
26 and conditions of the sale of securities issued on the basis of such loans.
27
2s Commenters on this section were in general agreement with the overall content of the provisions in the
29 proposed rule but recommended that certain language in the House Report,which they pointed out was also
30 used by Senator Kennedy in a colloquy with Senator Sasser on the floor of the Senate, see 134 Cong. Rec.
31 S10549 (daily ed. Aug. 2, 1988), be included in the text of the rule. Since there is a clear indication of
32 congressional intent with respectto transactions involving the purchasing of loans,language relatingto factors
33 justified by business necessity have been added. Thus, this provision would not preclude considerations
34 employed in normal and prudent transactions provided that no such factor may in any way relate to race,
35 color, religion, sex, handicap, familial status or national origin.
3G
37 One commenter representing mortgage bankers indicated that the term"purchasing"of housing loans in the
38 mortgage banking business could involve a number of different and unrelated types of activities. This
39 commenter described mortgage loan activities engaged in by mortgage bankers as involving the originating,
40 selling and servicing of mortgages. This commenter pointed out that, in mortgage banking, the term
4a "purchasing"has been used loosely to describe the purchase of rights to service mortgages. in this process,
42 the equitable interest in the loan remains unaffected but the legal title to the loan and the right to service the
43 loan and retain servicing fees has been purchased. Based on this description, the commenter indicated its
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EXHIBIT"B"
54 FR 3232-Implementa tic,n of,lie Fair Housing Amendments Act of 1958
1 belief that such transactions would be outside the coverage ofthe Fair Housing Act because such transactions
2 did not involve any financing decision by the purchaser(since the loan had been closed prior to the purchase
3 of servicing rights)and suggested that the final rule define the term"purchase"in a manner to exclude such
a transactions from the Fair Housing Act.
5 Section 805 of the Civil Rights Act of 1968 made it unlawful "to deny a loan or other financial assistance to
7 a person applying therefor or to discriminate against him in the fixing of the amount, interest rate,
s duration, or other terms or conditions of such loan or other financial assistance "
9
10 in amending this section of the Fair Housing Act, Congress revised the thrust of the prohibitions covered
11 under Section 805 to protect persons from discrimination in residential real estate-related transactions which
3.z were defined to include"the purchasing of loans secured by residential real estate."
13
14 Under the Fair Housing Act,the nature of discriminatory conduct no longer can be limited to matters relating
is to the actual provision of financing. Further,the fact that the interest transferred in the servicing transaction
15 involves only the legal title to the loans would not be a basis for concluding that there has not been a
17 residential real estate-related transaction, For these reasons the recommendation in the comment has not
1s been adopted in the final rule.
19
20 Section 100,130 Discrimination in the terms and conditions for making available loans or other financial
21 assistance.
22 Section 100.130 states that it is unlawful to impose different terms or conditions for the availability of a loan
23 or other financial assistance for a dwelling or which is,or will be secured by a dwelling because of race,color,
24 religion, sex, handicap, familial status, or national origin.
25
26 As discussed earlier in the preamble, the illustrations proposed in § 100A30(b) (1) and (4) have been
27 removed from the final rule in order to avoid anticipating the results of ongoing congressional analysis of
28 issues relating to pro-integrative programs. Other illustrations and the general provision regarding
23 discriminatory conduct under this section were not the subject of significant comment and have been retained
3o in the final rule.
31
32 A substantial number of commenters had significant concerns relating to the issue of"redlining" as it was
33 discussed in the preamble to the proposed rule. Much of the concern relating to this discussion focused on
34 the statement that financial transactions in many cases involve"legitimate business judgments and complex
3s financial, economic and social issues and problems". Many of the commenters asserted that this statement
36 could be read to indicate that proof of actual intent to discriminate would be required in order to establish
97 unlawful redlining under the Fair Housing Act. Other commenters indicated that the quoted language could
38 be read as creating other considerations beyond those necessary in the business of making a decision on a
39 loan (i.e., economic and social issues and problems) which have not been traditionally evaluated in the
40 investigation of fair housing complaints and which are not relevant to the making of loans.
41
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z The Department agreeswith the commenters that economic and social issues and problemsare not relevant !
z in connection with the review and analysis of cases under the Fair Housing Act. However, the Department �
3 dmaanntbeUevethmtthereferenceto|egitimatebuoneoo]udgmentoimp||aothatprncfnf|nbanktndiochminede
4 is or is not required in redlining cases. The language in the preamble was intended to indicate that, in the
|
s decision to provide loans or other financial assistance, a lender may consider factors justified by business
s neceooity, provided that such factors are unrelated to nsce, color, reUginn, sex, handicap,familial status, or |
r national origin.This articulation is consistentwith the preamble discussion relating to the purchasing of loans |
|
o and the revised text of§ 100.125 of the final rule.
�
'
zo Several commenters urged that the prohibition against redlining be included in the rule text.However,in view !
iu nf the removal nf the illustrations in§100.130(1)(b)and(4),the Department has determined that it would not .
cz be appropriate to add such anillustratio
n. !
13 �
14 Section 1OO.135 Unlawful practices in the selling, brokering, or appraising of residential real property.
�
is The prohibitions against discrimination because nfrace, oo|or, naUgion, sex, handicap' familial status, or �
zs national origin in connection with residential real estate-related transactions apply tothe selling,brokering and �
zr appraising ofresidential real property. Section 100.i35(m) of the proposed rule stated that itio unlawful for `
is any person whose business includes engaging in the oe||ing, brokering or appraising of residential n*a|
zy property to discriminate against any person in making available such services, or in the terms orconditions
|
zo of such services, because of race,color,religion,sex,handicap,familial status,or national origin. Paragraph
zz (a) ofthe final rule has been revised for the sake of clarity. It states that it is unlawful for any person or other �
zz entity whose business includes engaging in the selling, brokering or appraising of residential real property to
zs discriminate against any person in making available such services or in the performance of such services |
�
m because of race, color, religion, sex, handicap, familial status or national origin. !
Z5
zo For the purpose cf this rule, the term "appraisal"means an estimate or opinion of the value of a specified <
zr residential ,em| property made in m commercial context in connection with the sale, ,enta|. financing or �
zn refinancing of a dwelling or with any other residential real estate-related transaction,whether the appraisal !
ze io oral or written, or transmitted formally nrinformally. �
ao
sz The Fair Housing Act provides a specific exemption related to'appraisals, stating that nothing in the Act
32 prohibits person in the business offurnishing appraisals nfreal property to take into consideration factors �
�
yo other than rama, color, na|ig|on, max, handicap, familial stabuu, or national origin. However, the Department !
so indicated in the preamble to the proposed rule its position that consideration of any factor because of race, �
as color, religion, uex, handicap, familial utatuy, or national origin does constitute a discriminatory housing
36 practice, �
/
3/ .
�
au Two professional organizations representing appraisers agreed with the description of the coverage of !
ae appraisal practices but suggested that the language used in the illustrations could be read as precluding, in �
40 certain instances,the use of observable, verifiable data that affect the marketvalue of property in a particular
41 area,such as the proximity of certain facilitiesor services.Inthis respect,they suggested thatthe illustrations �
42 in this section should be revised to reflect more clearly the fact that appraisers can consider anyfactors other
e than race, color, religion, sex, handicap, familial status, or national origin in the appraisal of residential real �
!
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54 FR 3232- Implementation ofthe Fair Housing Amendments Act of 1988 Page -23' !
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z property.
» The illustrations in § 100.135kA (1). (2). and (3) have been removed in the final nu|e, pending the result of
4 congressional action with respect to the issue of pro-integrative activities, and since the regulation
5 incorporates the statutory language onthe use of otherfactors.In addition,paragraph(d)has been shortened
s and revised mo that itvviU not inadvertently prohibit appraisers from considering factors which may lawfully be
7 considered. Paragraph(d)of the final rule states that practices which are unlawful under§1UO.135include,
o but are not limited to, using an appraisal of residential real property in connection with the ma|e, nanta|, or
n financing of any dwelling where the person knows or reasonably should know that the appraisal improperly
zu takes into consideration naoe, color, re/igiun, sex, hond)map, familial status or national origin. The word
zz "improperly" was added ou that it will be absolutely clear that on appraisal may, for example, consider an �
zz adaptable physical environment as a positive factor in estimating the value of residential real property. |
za However, the Department wishes to mtnaon that itwould not be proper or lawful, for exonop|e, to consider
m factors such as race, sex ornational origin inappraising residential real pnnpedy, |
�
m These commenters also indicated that the use of the term "commercial context"in §100.1360dvvo�dlead
|
_ �
zr to confusion within the appraisal industry as to the type of structures to which the nondiscrimination
j_o requirements in the Fair Housing Act apply. �
ze
/
zo The use of the term"commercial context"inthe regulation was intended toindicatethatthe situations covered
zz were directly related to conduct of the business of appraising and were not intended to diminish the rights of |
!
22 persons with respect to their private rights under the First Amendment.TnavmidthepossbiNyofconfusiom '
za in this area, the word"business" has been substituted for"commercial"in this section.
-
zs Subpart 0—Prohibitions Against Discrimination Because mfHandicap
26 i
n Section 1UD.2U0Purpose.
m Section 100.200 in unchanged from the proposed rule. It explains that the purpose of Subpart O is to (
e effectuate the provisions concerning handicap inthe Fair Housing Amendments Act of10G8. No comments i
Bo were received on § 1OO2O0. |
sz |
az Section 1OO.2U1Definitions, |
33 Section 100.201 proposed definitions to be used forterms used only in Subpart D.The definitions in Subpart
34 A also apply to Subpart D. Substantial comments were received on the definitions in the proposed rule that >
as are discussed below.The other definitions have not been modified. '
|
»s �
37 An editorial change has been made to the final definition of"accessible". The proposed rule stated that a
sn public or common use area that complies with the appropriate requirements of ANSI A117.1 or another
39 standard that affords handicapped persons access essentially equivalent to or greater than that required by |
|
*n ANSI A117.1 is"accessible".Thefinal rule states more simply that a public or common useareathat complies
41 with the appropriate,requirements of ANSI A117.1-10G8ora comparable standard|o^acceonib|e"'The fima| |
�
EXHIBIT''B" �
54 FR 3232 - Implementation'ofthe Fair Housing Amendments Act of 1988 Page'24'
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EXHIBIT"B"
.54 17R 3232 1221.e men*atior, of the Fair Housing Amendments Act of 1988
.. .........
sentence of the definitions of"accessible route" and "building entrance on an accessible route" have also
been changed for the sake of consistency.
3
4 "ANSI Al 17.1"means the American National Standard for buildings and facilities providing accessibility and
s usability for physically handicapped people. The American National Standards Institute, Inc. (ANSI) is a
6 private, national organization that publishes standards on a wide variety of subjects. The Secretariat that
7 developed the 1986 edition of the ANSI standard was composed of the National Easter Seat Society, the
8 President's Committee on Employment of the Handicapped,and HUD.The current version of these standards
9 was published in 1986 and is referred to as "ANSI Al 17.1-1986".
10
ii The preamble of the proposed rule explained that whenever ANSI Al 17.1 is used in Subpart D,the reference
12 is to the most recently published edition of ANSI Al 17.1 as of the date bids for.construction of a particular
13 building are solicited.A number of commenters suggested that this statement should appear in the text of the
14 regulation. Other commenters objected that an"open-ended"reference to future ANSI standards represents
15 an unlawful delegation of the Department's rulemaking authority.According to these commenters,HUD should
1.6 refer to a specific edition of theAMS1 standards in its rule and should incorporate future editions only through
17 rulemaking proceedings. Because of this concern the definition of ANSI Al 17.1 in the final rule is defined as
18 the 1986 edition of ANSI("ANSI Al 17.1-1986.").The Department intends to propose to amend the definition
iq of ANSI as future editions of ANSI are published.
20
21 "Building" means a structure,facility or the portion thereof that contains or serves one or more dwelling units.
22 For example, a structure that serves one or more dwelling units includes a structure containing recreational
23 facilities for residents of an apartment complex. A substantial number of comments were received on this
24 definition as it applies to townhouses.The application of Subpart D to townhouses is discussed in connection
2s with the definition of the term "covered multifamily dwellings". The definition of "building" has not been
26 changed from the proposed rule,
27
28 "Common use areas"means rooms, spaces or elements inside or outside a building that are made available
19 for the use of residents of a building or the guests thereof, The proposed rule cited as examples of common
n- areas hallways, lounges, lobbies, laundry rooms, refuse rooms and passageways among and between
31 buildings. A number of commenters suggested that mailrooms and recreational areas be added to this list.
32 Other comm enters,including the National Apartment Association,argued that the definition should not include
33 "Public amenities"such as swimming pools,Jacuzzis,hottubs,saunas or exercise facilities.They suggest that
34 the legislative history is silent with respect to such facilities.
35
36 The definition of common use areas in the rule is a close adaptation of the definition of the term"common use"
-17 MANSI Al 1 7,1-1986.Since theAct makes specific reference to ANSI,the Department believes that Congress
3a intended that the ANSI definition apply.Furthermore,the House Report states that the Acts requirement that
39 the public and common use portions of covered multifamily dwellings be readily accessible to and usable by
4o handicapped persons"means that hallways, lounges, lobbies, passageways among and between buildings
41 and other common areas and facilities not contain barriers to entrance and use by handicapped persons
42 House Report at 26(emphasis supplied).Mailrooms and recreational areas can fairly be read as failing within
43 this description.Therefore,these two additional examples have been added to the list of common use areas
EXHIBIT"B"
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EXHIBIT"B"
174 FR 3232-Imple-men,a tic n of fre Fait Housing Anendments Act of 1988
1 because they fall within the definition.The list in the final rule is illustrative and not exclusive. In this regard,
2 the Department notes that the House Report states that the Act does not require that all entrances to public
3 and common use areas be made accessible to handicapped persons. Rather, the Act requires that "one
4 regular entrance to such areas be accessible to handicapped persons for the same purpose for which it is
5 used by others."Id. Further,the Act does not require that amenities be installed."The intent of the language
6 is that only if such amenities are provided,then they must be readily accessible to and usable by handicapped
7 persons." Id.
9 A"covered multifamily dwelling"means buildings consisting of 4 or more dwelling units if such buildings have
lo one or more elevators;and ground floor dwelling units in other buildings consisting of 4 or more dwelling units.
ii The preamble of the proposed rule explained that a single structure consisting of 5 two-story townhouses is
12 not a"covered multifamily dwelling" if the units do not have elevators, because the entire dwelling unit is not
13 on the ground floor. In contrast, a single-story townhouse is a covered multifamily dwelling. A number of
14 commenters agreed with this interpretation; some reasoned that townhouses are not multifamily buildings
15 because each unit typically has a separate outside entrance.
16
17 Other commenters objected to this interpretation, arguing that townhouses are covered because Congress
is intended that there be a broad interpretation of the Act. They believe that Congress intended to exempt
is otherwise covered dwellings from accessibility requirements only if no part of the dwelling unit touched the
20 ground floor. These commenters cited in support of their position a statement made by Senator Kennedy
21 during the Senate debate on the Act, in which he referred to the need to make the ground floor of multi-level
z2 housing accessible so that friends and relatives with mobility impairments can visit. Specifically, Senator
23 Kennedy stated as follows:"This legislation does not affect the single-family home.Whatwe are talking about
24 is the multifamily dwelling with four or more units. You only have to meet these very simple [accessibility]
2s requirements if you actually have an elevator,or, if you do not have an elevator, only the bottom floor unit is
26 covered." 134 Cong. Rec. S. 10538(daily ed.August 2, 1988)(emphasis added). Senator Kennedy's later
27 reference to the importance of making units accessible so that friends and relatives can visit was in response
2s to Senator Humphrey's proposal to limit the scope of the Act's accessibility requirements to 20 percent of the
29 units. Id. The Department believes that the Senate debate referenced by these commenters supports its
3o interpretation because Senator Kennedy spoke of "bottom floor units." The first floor of a multi-story
31 townhouse is not a bottom floor unit because the entire unit is not on the bottom or ground floor.
33 Most significantly,the accessibility requirements of the Act itself extend onlyto"ground floor units"in buildings
34 without elevators. The commenters' position would require reading "ground floor units" as "ground floor
35 portions of units." The Act also requires that all premises within covered multifamily dwellings have an
36 accessible route into and through the dwelling.A"covered"townhouse of more than one story would in most
37 cases require an elevator in order to provide an accessible route throughout.This result would make the Act's
3a distinction between buildings with elevators and buildings without elevators meaningless. Beyond this, the
39 House Report(at p. 25)makes it clear that the Act was not intended to require the installation of elevators.
40
41 For these reasons the Department continues to believe that townhouses consisting of more than one story
42 are covered only if they have elevators and if there are four or more such townhouses. Accordingly, the
43 definition of"covered multifamily dwellings" in the final rule is unchanged from the proposed rule.
44
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54 FP 3232- In7eiementallo;, c`the FOr Housing Arnendrnents Ac?of 1985
1 "Dwelling unit" was defined in the proposed rule as "any building, structure or portion thereof, which is
2 occupied as, or designed or intended for occupancy as, a residence by one person or family." 53 FR 45029
3 (November 7,1988).A significant numberof comments,including comments submitted by Senators Kennedy
4 and Specter and Representative Edwards,were concerned that the phrase"one person orfaily"would be
s too restrictive in that individuals with handicaps may require a personal attendant to live with them, or may
6 find it beneficial to live with another individual, who is or is not also handicapped. For example, an individual
7 with a disability may live with an attendant who is not a member of his or her family.Other commenters were
s concerned that the definition of"dwelling unit" is too similar to the definition of"dwelling" in§ 100,20. They
g found the similarity confusing. In order to accommodate these concerns the definition of"dwelling unit` has
10 been revised substantially in the final rule,The final rule defines"dwelling unit"as"a single unit of residence
11 for a family or one or more persons."The definition in the final rule also contains a more comprehensive list
12 of examples of dwelling units in order to further clarify the types of units that may be covered. Examples of
1.3 dwelling units include a single family home and an apartment unitwithin an apartment building.In other types
14 of dwellings(as defined in§ 100.20)in which sleeping accommodations are provided but toileting or cooking
is facilities are shared by occupants of more than one room or portion of the dwelling, rooms in which people
16 sleep are "dwelling units". For example, dormitory rooms and sleeping accommodations intended for
17 occupancy as a residence in shelters for homeless persons are"dwelling units".
xg "First occupancy" means a building that has never before been used for any purpose. This definition is
20 unchanged from the proposed rule. A number of commenters stated that HUD should state explicitly that
21 substantial rehabilitation is not covered. The Department believes that the definition clearly excludes a
22 substantially rehabilitated building because one could not reasonably argue that such a building "has never
23 before been used for any purpose."
24
2s "Ground floor"means any floor of a building with a building entrance on an accessible route.A building may
26 have more than one ground floor. This definition was the subject of considerable public comment. Many
27 commenters interpreted the proposed rule as requiring that covered buildings have more than one ground
28 floor. This is not what the Department proposed. Section 100.205(a) requires that covered multifamily
29 dwellings for first occupancy after March 13, 1991,be designed and constructed to have at least one building
3o entrance on an accessible route unless it is impractical to do so because of the terrain or unusual
31 characteristics of the site.The regulation does not require that any building have more than one ground floor;
32 a covered building with one building entrance on an accessible route (i.e., ground floor) satisfies the
33 requirements of the regulation with regard to accessibility to the building. However, if a covered building in
34 fact has more than one floor with a building entrance on an accessible route,then the rule requires that the
35 units on each floor with an accessible building entrance satisfy the Act's accessibility requirements,
36
37 Other commenters correctly interpreted the proposed rule as requiring that there be one building entrance on
38 an accessible route but nonetheless argued that even if a particular building, because of the terrain, has
39 accessible entrances to more than one floor, the units on only one such floor should be required to meet the
4o Act's accessibility requirements. The Department does not believe that Congress intended to exempt from
41 the Act's accessibility requirements dwelling units that are on a floor of a building that can be entered through
42 a building entrance on an accessible route. If a building does not have an elevator, then all of the units on
43 accessible floors must meet the Act's accessibility requirements.
44
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54 FR 3232 -Implementation ofthe Hair Housing Amendments Act of 59H Page-27-
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54 FR 3232-in;Cilementafion of fhe Fair Housing Amendrments Act of 1988
1 Definition of "Handicap". The term "handicap" means, with respect to a person, a physical or mental
2 impairmentwhich substantially limits one or more of such person's major life activities;a record of having such
3 an impairment;or being regarded as having such an impairment.However,this term does not include current,
4 illegal use of or addiction to a controlled substance. The term also does not include an individual solely
5 because that individual is a transvestite. Paragraphs (a), (b), (c) and (d) of the definition clarify the key
6 phrases in the definition: "physical or mental impairment"; "major life activities"; "has a record of such an
7 impairment; and "is regarded as having an impairment"
a
9 A substantial number of comments were received on the definition of"handicap"in the proposed rule. They
la fall generally into two different groups.
11
12 One group of commenters,including the National Association of Homebuilders and the National Association
13 of Realtors, requested that paragraphs (a), (b), (c) and (d)of the definition in the proposed rule be deleted.
14 These commenters are concerned that these paragraphs broaden the definition of handicap"far beyond"the
is intent of Congress as expressed in the plain language of the statute. Moreover,they are concerned that the
1.6 definition of handicap is so broad that housing providers will be powerless to exclude handicapped persons
17 with a tendency toward antisocial or dangerous behavior.
18
i3 With the exception of current, illegal use of or an addiction to a controlled substance, the definition of
20 "handicap"in the Act is very similarto the definition of the term"individual with handicaps"in the Rehabilitation
21 Act of 1973. 29 U.S.C. 706. Congress intended that the definition of "handicap" in the Pair Housing
22 Amendments Act be interpreted in a manner that is consistent with regulations interpreting the meaning of
23 the similar provision found in section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. House Report at
24 22; 134 Cong. Rec. S10492 (daily ed.August 1, 1988)(statement of Sen. Chafee); 134 Cong, Rec, H4689
25 (daily ed. June 23, 1988) (statement of Rep. Peiosi); 134 Cong. Rec. H4612 (daily ed. June 22, 1988)
25 (statement of Rep. Schroeder).
27
23 Section 504 of the Rehabilitation Act prohibits discrimination against otherwise qualified individuals with
29 handicaps in programs or activities receiving federal financial assistance as well as in federally conducted
s+o programs and activities.The Department of Justice's section 504 coordination regulation forfederally assisted
31 programs is at 28 CPR Part 41. HUD's section 504 regulation for federally assisted programs is at 24 CFR
32 Part 8. Paragraphs(a),(b),(c)and(d)of the definition of"handicap"closely follow the definitions of these key
33 phrases used in regulations interpreting section 504. In light of the clear legislative history indicating that
34 Congress intended that the definition of"handicap" be fully as broad as that provided by the Rehabilitation
3s Act, the Department does not believe that it would be appropriate to delete paragraphs (a), (b), (c) and (d)
36 from the definition.
37
38 Some of the commenters who requested this change appear erroneously to assume that a housing provider
3g must admit any person who has a handicap as defined in the rule. This is not the case. Just because an
Ors applicant for housing has a handicap does not preclude a housing provider from lawfully rejecting that
41 particular applicant. For example, alcoholism is considered a"physical or mental impairment"and therefore
42 alcoholics frequently will fall within the definition of"handicap". However, the fact that alcoholism may be a
43 handicap does not mean that housing providers must ignore this condition in determining whetheran applicant
EXHIBIT`°B"
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EXHIBIT r"B"
54 FR 3232-fmpfementation of fhe Fair Nous)rne Amendments Act of 1988
1 for housing is qualified. On the contrary, a housing provider may hold an alcoholic to the same standard of
2 performance and behavior(e.g.,tenant selection criteria)to which it holds others, even if any unsatisfactory
performance or behavior is related to the applicant's alcoholism. In other words, while an alcoholic may not
4 be rejected by a housing provider because of his or her alcoholism, the behaviorial manifestations of the
s condition may be taken into consideration in determining whether or not he or she is qualified.
6
7 Thus, a housing provider mayjudge handicapped persons on the same basis it judges all other applicants
s and residents. A housing provider may consider for all applicants, including handicapped applicants, such
concerns as past rental history, violations of rules and laws, a history of disruptive, abusive, or dangerous
1.o behavior. However, a housing provider may not treat handicapped applicants or tenants less favorably than
i1 other applicants ortenants.For example,a housing provider may not presume that applicants with handicaps
12 are less likely to be qualified than applicants without handicaps.
1.3
14 Another group of commenters asked HUD to clarify that persons who are infected with the Human
15 Immunodeficiency Virus("HIV or"AIDS virus"}are understood to be persons with a"handicap"protected by
16 the Act. The legislative history of the Act contains numerous statements that HIV-infected individuals are
1.7 covered by the Act. See House Report at 22, n. 55; 134 Cong. Rec. H4922 (daily ed. June 29, 1988)
18 (statement of Rep.Owens); 134 Cong.Rec.at H4221 (daily ed.June 29,1988)(statement of Rep.Waxman);
1q 134 Cong.Rec. H4612(daily ed.June 22, 1988)(statement of Rep.Schroeder);134 Cong.Rec.H4613(daily
2r, ed. June 22, 1988)(statement of Rep. Coelho); 134 Gong. Rec. H4689(daily ed. June 23, 1988)(statement
21 of Rep. Pelosi). In addition,the Office of Legal Counsel of the U.S. Department of Justice issued an opinion
22 dated September 17,1988 concluding that section 504 of the Rehabilitation Act of 1973 protects symptomatic
23 and asymptomatic HIV-infected individuals against discrimination in any covered program or activity on the
24 basis of any actual, past or perceived effect of HIV infection that substantially limits any major life activity,so
25 long as the HIV-infected individual is "otherwise qualified" to participate in the program or activity, as
26 determined under the"otherwise qualified"standard set forth by the U.S. Supreme Court in School Board of
27 Nassau County v.Arline, 107 S. Ct. 1123 (187)(Arline). This opinion is significant because, as previously
2s noted,the legislative history of the Fair Housing Amendments Act makes it clear that Congress intended the
29 same definition of the term handicap that applies under section 504 to apply to the Fair Housing Act. In light
30 of these authorities„the Department has added"Human Immunodeficiency Virus infection"to the illustrative
31 list of"physical or mental impairments" in the final rule's definition of handicap.
32
33 "Interior" means the spaces, parts, components or elements of an individual dwelling unit. The comments
34 received relative to this definition are discussed in connection with comments received on§ 100.203 of the
as proposed rule relating to modifications of existing premises.The definition of"interior"has not been changed
36 from the proposed rule.
37
33 "Premises" means the interior or exterior spaces, parts, components or elements of a building or a dwelling
3s unit, including individual dwelling units and the public and common use areas of a building. The comments
ao received relative to this definition are discussed in connection with the comments received on § 100.203 of
41 the proposed rule relating to modifications of existing premises.The definition has not been changed from the
42 proposed rule.
43
EXHIBIT"B"
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Item 8. - 160 xB -358-
- i
EXHIBIT"B"
z Section 1OO.202 General prohibitions against discrimination because nf handicap.
!
�
z Section 1U0.202cnntanmthe general prohibitions against discrimination because nf handicap and serves em �
a the analytical foundation for the remaining sections of the subpart. The remaining sections of Subpart
4 explain in greater detail whet conduct is discriminatory. Thus, whenever a person has violated any of the
s subsequent sections nfSubpart D. that person has also violated Q1OO.2O2
r Paragraph(a)is unchanged from the proposed rule.It restates the Fair Housing Amendments Act's mandate
o of nondiscrimination in the sale or rental of dwellings..Under paragraph (a), it is unlawful to discriminate
y againstany person inthe sale or rental of,ortootherwise make unavailable or deny,a dwellingtoany buyer |
!
az or renter because of a handicap of that buyer or renter, a person residing in or intending to reside in that '
zz dwelling after it is mn mn|d, renbed, or made unewai|ab|e, or any person associated with that buyer or renter.
zz
'zs Paragraph A6 is also unchanged from the proposed rule. It restates that Act's ban of discrimination in the i
»` tennm, conditions, or privileges of the sale or rental of a dwelling. Paragraph (b) makes it unlawful to �
is, discriminate against any person in the terms, conditions,or privileges nf the sale nr rental ofa dwelling,nrin �
zs the provision nf services nr facilities in connection with such dwelling because nfa handicap nf that buyer nr �
o renter, aperson residing innr intending tn reside in that dwelling after itismosold, rented,nr made available, '
is nr any person associated with that person. �
zu Land Use and Zoning Rb|ma and Practices. |
�z The thrust of the public comments received on the general prohibitions in paragraphs(a)and (b)is that the '
zz rule does not address explicitly discriminatory local land use, health and safety, and zoning rules that '
!
23 "eliminate" community housing opportunities for persons with disabilities. These commenters ask that the �
24 Department add to the regulation aprohib|tion on rules and practices which establish unique requirements /
|
25 forhousing for personswith disabilities and which create bardersto the development of such housing.These �
za commenters correctly point out that the House Report discusses such matters in considerable detail. �
zr Specifically,the House Reportstates thatthe prohibition against discrimination againstthose with handicaps !
ze was intended to apply to zoning decisions and practices: "The Act is intended to prohibit the application of �
zs special restrictive covenants,and conditional or special use permits that have the effect of limiting the ability '
ao of such individuals to live in the residence of their choice in the community." House Report at 24. |
!
31 '
sz The Department does not believe that it would be appropriate to address the issue inthese regulations. This �
sa concern is heightened since,undersection 81 O(g)(2)(C)of the Fair Housing Act,asamended,if the Secretary �
-44 determines that a matter involves the legality of any State or local zoning or other land use law or ordinance, �
3s the Secretary shall immediately refer the matter to the Attorney General for appropriate action under section
an 814 of the Fair Housing Act.Since the Secretary has no power to issue a charge of discrimination in matters
ar invn}vingznningnrnther|andume|aw.dheDepartmentbe|ievemthatitisinapprnphatetnaddressth)aapeciho
sx issue in these regulations. However, it should be noted that failing nr refusing tn provide municipal services
ay for dwellings or providing such services differently because of race, on|nr, re|igion, mcx, handicap, familial
'm status nr national origin imaviolation of§ 100.70(c)(8) nf these regulations. �
41
/o Applicant Selection Inquiries. Paragraph(c)is an adaptation of the"pre-employment inquiries" provision in �
'
i
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-' - -
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EXHIBIT"B"
i the section 604regulations; it prohibits inquiries to determine whether an applicant for a dwelling, a person
z intending to reside in that dwelling afterit is sold,rented or made available,or any person associated with that !
3 person has a handicap o/ho make inquiry amto the nature or severity ofa handicap of such pernon /
' |
^ |
s Paragraph / ' also states that it does not prohibit five types of inquiries, provided these inquiries are made '
s of all applicants,whetherorncttheyhavehandioapm.Paoagnaph(n)remu|bedinoonmiderab|epub|i000mnnnent.
r �
o Paragraph (o)(1) dahOem that a housing provider may inquire into an applicant's ability to meet the �
e requirements of ownership or tenancy. Commenters generally considered this particular inquiry helpful in �
/
o/ providing guidance to both housing providers and housing applicants.
12 Paragraph (c)(2) states that paragraph (d does not prohibit inquiry to determine whether an applicant is
13 qualified for a dwelling that is available only to persons with handicaps or to persons with a particular type of
14 handicap. Paragraph(c)(3)provides that paragraph(c)does not prohibit an inquiry to determine whether an |
1s applicant for a dwelling is qualified fora priority available to persons with handicaps or to persons with a .
zs particular type of handicap.These two inquiries where criticized by organizations representing persons with .
17 disabilities,including the Consortium for Citizens with Developmental Disabilities.Thesecommenters fearthat
is such inquiries will be abused by housing providers as a means of impermissibly inquiring about the extent or �
(
iy severity of a disability. Nonetheless, some of these commenters recognized that the ability to make these �
zo inquiries often is necessary to determine eligibility for government housing programs; for example, some �
21 Federal and State housing is designed for, and occupied by, persons with handicaps. Only persons with
zz handicaps are eligible to live in such dwellings. Beyond this, ao the Department explained |n the proposed
23 rule, the Fair Housing Amendments Act does not prohibit the exclusion of non-handicapped persons from
z* dwellings. A privately owned unsubsidized housing facility may lawfully restrict occupancy to persons with
zs handicaps. The owner or operator of such a housing facility must therefore be permitted to inquire of i
zo applicants to determine whether they have a handicap for the purpose of determining eligibility. �
o !
zo A housing provider may also choose to offer some or all of its units to persons with handicaps on a priority �
ze basis and may inquirewhether applicants qualify forsuch a priority.Forexample,a housing providermay offer |
m accessible units hopenaonmwjth mobility impairments ona priority basis and may ask applicants whetherthey '
i
31 have a mobility impairment which would qualify them for such a priority but maynot in such circumstances
sz ask applicants whether they have other types ofimpairments.
33
34 After carefully considering the comments received the Department continues to believe that the inquiries
a permitted by paragraphs(c)(2) and (3) are consistent with the Act and that the benefits of permitting these
36 inquiries outweigh the potential for abuse, because the circumstances in which such inquiries can be made
37 are carefully circumscribed.A dwelling must either be available only to personswith handicaps orto persons i
is with a particular type of handicap or the dwelling must genuinely be available on a pr*iority basis to persons !
�
39 with a handicap or to personswith a particular type of handicap.Otherwise, such an inquiry cannot be made. i
i
"° �
41 Paragraph (c)(4) provides that paragraph (c) does not prohibit inquiring whether an applicant for a dwelling �
^z is a current illegal abuser of or addict to a controlled substance. The definition of"handicap" in the Fair �
'
EXHIBIT"B" �
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988 Page -31'
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�+�r� � 1 �� |
"^�^^^ m' - �n.� H8 -36O- �
`
EXHN0IT"B"
|
i Housing Amendments Act does not include current,illegal use ofnr addiction toa controlled substance.See '
z House Report at 30. Paragraph(c)(4)was not the subject of substantial comment and is unchanged from the
a proposed rule.
s Paragraph (c)(5) provides that paragraph (c) does not prohibit inquiring whether an applicant has been |
o convicted of the illegal manufacture or distribution of a controlled substance. Section 807(b)(4) of the Fair
r Housing Act states that nothing in the Act prohibits conduct against a person because such person has been
o convicted by any court nf competent jurisdiction of the illegal manufacture or distribution of controlled �
e substance.Paragraph(c)(5)was notthe subject of substantial commentand is unchanged from the proposed .
zm rule.
12 Paragraph (d) restates new section O04(f)(Q) nf the Fair Housing Act which provides that nothing insection
a3 804(f) requires that dwelling be made available to an individual vxhnee tenancy would constitute a direct
z» threattothe health or safety of other individuals orwhose tenanGywould resultin substantial physical damage |
xs to the property of others. This paragraph was criticized by organizations representing disabled persons
zo because it simply repeats the statutory language and provides no guidance concerning its proper
sr implementation. Furthermore,the placement of the language contained in paragraph(d)was questioned,in �
is that it follows a list of questions that housing providers are permitted to ask to determine the qualifications of
zs applicants. These commenters fear that the absence of any detail beyond the statutory language might
zo suggest that a housing provider need not follow any objective method for determing that an applicant"would
z, constitute a direct threat to the health or safety of other individuals." At the same time, theme commenters
zz recognized that the preamble of the proposed rule contained considerable explanation of paragraph(d). 53
zs FIR 45001-02 (November 7. 1QOO). The preamble discussion was considered by these commenters tnbe �
m consistent with the intent of the statute.A number of commenters suggested that the preamble language be
zs incorporated inthe rule.
zo
z/ On the other hand, organizations representing housing providers any concerned that property owners or
zo managers will not be able to determine whether ornot an applicant poses a threat tothe safety of others �
ze without substantial amounts of information and that they ultimately will be subject to increased liability, They
ao ask that the regulations be revised expressly to permit a property owner or manager to inquire into a
ax prospective tenant's "history of antisocial behavior or tendencies."Alternatively, it was suggested that HUD
az promulgate a regulation that absolves a property owner or manager of liability for any injury caused by reason
|
33 ofa condition ofa person with ahandicap. '
a*
ss The Department does not believe that it is necessary nr appropriate tn incorporate detailed preamble
ao language discussing the Supreme Court decision in School Board of Nassau County v.Arflne,107SCt. 1123
ar (1987), into the regulation. This is especially true since the case law in this area continues to develop at a
ae relatively rapid pace. However, the Department wishes to stress that it will interpret and enforce paragraph
ay (d) consistent with the discussion inthe preamble of the proposed rule and evolving case law.
40
m TheOepadmenta|oodneanotbeUswethatitwnuldbeapprnphsdetonyviae@100,202expnena|ytnpennit
*z inquiries into"antisocial" behavior or"tendencies."Language such as this mightwell be seen as creating or
*a permitting a presumption that individuals with handicaps generally pose a greater threatto the healthor safety
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54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988
i of others than do individuals without handicaps. Such a presumption is unwarranted and would run counter
2 to the intent and purpose of the Act. House Report at 28.Likewise,a regulatory provision stating that housing
3 provides shall not be liable for personal injury or property damages caused by reason of another person's
a handicap could also be seen as creating a presumption that persons with handicaps are more likely to pose
5 a threat to persons or property that are other persons and would run counter to the intent of the Act, since
6 Congress made no such presumption. For example,the House Committee on the Judiciary stated that it did
7 not "foresee that the tenancy of any individual with handicaps would pose any risk, much less a significant
s risk„ to the health or safety of others by the status of being handicapped *.'" Id.
9
io For these reasons, § 100.202 is unchanged from the proposed rule.
11
12 Section 100.203 Reasonable modifications of existing premises.
13 Paragraph(a) implements section 804(f)(3)(A) of the Fair Housing Act, as amended.Under paragraph(a),
14 it is illegal to refuse to permit a tenant with disabilities to make reasonable modifications, at his or her
15 expense, of existing premises if the proposed modifications are necessary for the full enjoyment of the
15 premises. In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for
17 a modification on the renter agreeing to restore the interior of the premises to the condition that existed before
18 the modification, reasonable wear and tear excepted.
19
20 Paragraph (a) allows reasonable modifications at the expense of the individual with handicaps to existing
21. "premises"."Premises"is defined in§100.201 to mean the interior or exterior parts,components or elements
22 of a building or a dwelling unit, including the public and common use areas of a building. Thus, an individual,
23 with handicaps would be able, at his or her own expense, to make reasonable accommodations to lobbies,
24 main entrances of apartment buildings, laundry rooms and other common and public use areas necessary
2s to the full enjoyment of the premises.The department proposed to define the term"premises"to encompass
26 the public and common use areas because it appears that this is what Congress intended. The Act allows
27 reasonable modifications of"existing premises"if necessary to afford the handicapped person full enjoyment
28 of the premises. If the laundry room is not accessible, for example, a person with a mobility impairment will
29 not have"full enjoyment" of the premises."interior"is defined as the spaces, parts,components or elements
30 of an individual dwelling unit.
31
32 Restoration of Modifications to Public and Common Use Areas. The Department specifically invited public
33 comment on the definitions of the terms"premises"and"interior", especially in light of the fact that section 15
34 of the Fair Housing Amendments Act provides that, in the case of a rental, the landlord may, where it is
35 reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of
36 the premises to the condition that existed before the modification, reasonable wear and tear excepted.
37
38 Many of the comments received on this question were in agreement with the Department's definitions of these
39 terms. For example,the American Institute of Architects stated that since the types of modifications made to
ao the public and common use areas of a building's interior are on the order of those made to the exterior of the
41 building, it would not be reasonable for the landlord to require the tenant to restore such modifications to the
42 preexisting condition.
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i Other commenters argued that public and common use areas should not be excluded from the restoration
2 requirement, suggesting that the interpretation proposed by the Department will have the effect of forcing
3 owners to take a narrow view of what constitutes a reasonable modification of a public or common use area.
4
s After careful consideration, the Department continues to believe that the proposed rule's treatment of these
6 issues is faithful to the statute.As the Department stated in the preamble of the proposed rule, reasonable
7 modifications to public and common use areas will not detract significantly from the public and common use
s areas modified, and may be of benefit to other persons with and without handicaps.
9
io Some commenters complained that the proposed rule did not discuss how a landlord's responsibilities under
n §100.204 to make reasonable accommodations meshwith§100.203.These commenters note that§100.204
12 applies to services, and interpreted the proposed rule as assuming, for example, that if a laundry room is
13 inaccessible, the only option open to the tenant is to pay for physical modifications necessary to make the
14 room accessible. One commenter requested that the Department clarify that if the tenant chooses to ask a
is friend to do his or her laundry in the laundry room, the landlord must accommodate this situation by waiving
16 any rule that prohibits non-tenants from gaining access to the laundry room.The Department agrees that this
17 is the sort of accommodation required by§ 100.204.
ss
19 "Security Deposits."The final sentence of paragraph(a)of the proposed rule stated that a landlord may not
20 increase for handicapped persons any customarily required security deposit for the purpose of securing
21 payment for modifications. The Department invited public comment on this question as well, 53 FR 45003
22 (November 7, 1988), and received substantial comments on both sides of this issue.
23
24 A number of commenters stated their belief that a prohibition on an increased security deposit for
25 handicapped persons who make modifications at their own expense is required by the Fair Housing Act.They
26 point out that section 804(f)(2) of the Act makes it unlawful to discriminate in the terms, conditions, or
27 privileges of the rental of a dwelling because of handicap and state that such deposits should not be
2s necessary and would create an undue burden on persons with handicaps not intended by the Act.
29
30 On the other side of this issue, commenters speaking from the standpoint of housing providers urged the
32 Departmentto provide that a landlord may require a reasonable additional security deposit to secure a renter's
32 agreement to restore the interior of the premises to the condition that existed before the modification,
33 reasonable wear and tear excepted.These commenters point out that such a deposit is particularly necessary
34 in case of the occupant's death, or abandonment of the unit without any notice.The National Association of
35 Homebuilders stated that it is standard practice to require additional security deposits as a condition of a
36 housing provider's granting permission for modifications to be made to a dwelling unit.These commenters
37 argue that deposits are necessary so that all tenants, handicapped and non-handicapped alike, are treated
3s equally and fairly.
39
40 Upon further consideration of this question, the Department has come to the view that this is not truly a
41 question relating to a traditional security deposit. Security deposits are generally paid at the time a tenant
42 moves in. A tenant with handicaps may request a landlord's permission to make modifications at any time.
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54 FR 3232-Implennentaption of the Fair Housing Arnendmen is Act of 1988
1 For example, a tenant may become disabled during his or her tenancy and then ask for permission to make
2 modifications.At this point the tenant has already paid any customarily required security deposit. Further,the
3 Department agrees that there is no basis for requiring that handicapped persons pay a higher customarily
4 required security deposit than is paid by non-handicapped persons. However, the Department is mindful of
s the financial exposure of a landlord who may be required to permit a tenant to make extensive modifications
6 to the interior of a dwelling unit that can reasonably be expected to interfere with the landlord's or the next
7 tenant's use and enjoyment of the premises.The Department believes that there are specific instanceswhere
s it would be reasonable for a landlord to condition permission for making modifications on the tenant paying
9 into an interest bearing escrow account a reasonable amount of money to ensure that funds will be available
io to pay for those restorations that the tenant is legally required to make at the end of the tenancy.Accordingly,
I paragraph (a)of§ 100.203 has been revised to reflect this view.
12
13 The third sentence of paragraph (a) continues to state that the landlord may not increase, for handicapped
14 persons,any customarily required security deposit.A new fourth sentence states that,where it is reasonable
is to do so,the landlord may negotiate as part of a restoration agreement a provision requiring that the tenant
16 pay into an interest bearing escrow account, over a reasonable time period, a reasonable amount of money
17 not to exceed the cost of restoring the modifications. The interest in any such account shall accrue to the
is benefit of the tenant.
19
20 The language added to paragraph (a) balances the interests of a handicapped person seeking to make
21 modifications to a dwelling unit so that he or she will be able to'live in the unit with the interests of the landlord
Z-2 in assuring that all required restorations are made at the end of the tenancy at the expense of the tenant.The
23 new language makes it clear that escrow payments may be negotiated only where it is reasonable to do so.
24 Thus, a landlord may not routinely require that escrow payments be made. Rather, the landlord must make
2s a case-by-case determination based upon such factors as the extent and nature of the proposed
26 modifications,the expected duration of the lease,the credit and tenancy history of the individual tenant, and
27 other information that may bear on the risk to the landlord that the premises will not be restored. It can be
28 expected that generally a tenant making extensive modifications to a unit at his or her own expense will plan
29 to live in that unit for more than a brief period of time. Both the amount and terms of the escrow payment are
3o subject to negotiation between the landlord and the tenant.For example,if the proposed modifications which
31 are subject to restoration are minor and the tenant has a good credit history or otherwise can provide
32 reasonable assurances that he or she will be able to ensure that the restorations are carried out,then it would
33 not be reasonable for the landlord to require any payment. On the other hand, if the tenant wishes to make
34 extensive modifications that must be restored and has only a"fair"credit history,or other factors suggest that
3s the tenant would not be able to ensure that the restorations are carried out, then it might be reasonable for
36 a landlord to require a payment. Of course, the landlord may not require that the total amount to be paid
37 exceed the reasonable cost of restoring the modifications that must be restored at the end of the tenancy.The
3s Department expects that frequently a smaller amount will suffice to protect the interests of the landlord.
39 Furthermore, landlords may not assume that persons with handicaps are less creditworthy than persons
4a without handicaps.Just because the facts warrant requiring a payment does not mean that the landlord may
41 reasonably require that the full restoration costs be paid before the modifications are even made.
42
43 If a person with handicaps seeking to make modifications believes that a landlord is unreasonably withholding
44 permission to make the requested modifications or has required an unreasonable escrow payment he or she
45 may file a complaint with HUD,
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54 FEZ 3232- fmplomentafion of fine Fair f-(ousina An,eno'ments Act of 1988
i The Department wishes to stress that the Fair Housing Act does not require a tenant to restore all
2 modifications. For example, as example (2)in paragraph (b) makes clear, if a handicapped tenant seeks a
3 landlord's permission to widen a doorway for a wheelchair to pass, it is unlawful forthe landlord to refuse to
4 permitthe applicantto make the modification.Further,the landlord may not,in usual circumstances,condition
s permission for the modification on the applicant paying for the doorway to be narrowed at the end of the lease
6 because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment of the
7 premises. However, if a tenant seeks, for example, to lower the kitchen cabinets to a height suitable for a
8 person in a wheelchair,the landlord may condition permission on the tenant agreeing to restore the cabinets
9 to their original height and, if it is reasonable to do so considering the financial resources and
io credit-worthiness of the tenant, may seek a reasonable escrow deposit.At the end of the lease the landlord
11 may require that the tenant restore the cabinets to their original height unless the next occupant prefers that
12 the cabinets remain where they are. If the next occupant does not wish that the modification be restored then
13 the landlord must promptly return the tenant's escrow deposit,if any,in full.The landlord, in such a situation,
14 may, Where it is reasonable to do so, require that the new tenant establish a new interest bearing escrow
15 account.
16
17 Comments from housing providers also asked that the rule state that housing providers have an "absolute
18 right"to reject any proposed modifications if they are unreasonable and that the housing provider should have
19 the authority to select or approve the party making the modifications.These commenters point out that prior
20 approval is necessary so that the housing provider can be assured of quality workmanship done in
21 accordance with local building code specifications.
22
23 Paragraph (a) makes it plain that the applicant or tenant must seek the landlord's approval before making
24 modifications. A landlord, of course, is entitled to know what the proposed modifications are as well as
2s reasonable assurances from the tenant that any required building permits will be obtained and that the work
2e will be performed in a workmanlike manner. In order to address these concerns the Department has added
27 a new paragraph(b)to§100.204, It states that a landlord may condition permission for a modification on the
28 renter providing a reasonable description of the proposed modifications as well as reasonable assurances
29 that the work will be performed in a workmanlike manner and that any required building permits will be
30 obtained. The description may be oral or written depending on the extent and nature of the proposed
31 modifications.The Department does not believe it would not be possible, as some commenters suggested,
32 to spell out a detailed approval procedure that would be applicable in all instances. What is reasonable will
33 vary with .the extent, location and nature of the modifications a particular tenant wishes to make.Some
34 requested modifications will be simple and the approval process in such instances should be straightforward
35 (e.g., installation of grab bars in a bathroom that already has the requisite blocking). Other requested
36 modifications to the interior of a unit or public or common use area will be more complex. I n such instances,
37 the landlord may withhold permission until the tenant has described in reasonable detail the modifications to
38 be made and identified to the landlord a responsible party to perform the work in question. However, since
39 the tenant is paying for the modification,the landlord may not specify that only one particular contractor make
40 the modifications.The modifications may be accomplished by any party reasonably able to complete the work
41 in a workmanlike manner.
42
43 Paragraph(c)contains two examples that illustrate the application of paragraph(a). Some commenters felt
44 the examples in paragraph(c)(paragraph(b)of the proposed rule)"raise more questions than they answer."
45 These examples are intended to be illustrative and not exhaustive.The Department continues to believe that
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54 FR 3232- tmplemenfation of the Fair HOI/S t7o Amendments Act of-,988
1 the regulation is clearer with these examples than without there. Therefore, they have been retained
2 unchanged from the proposed rule.
3
4 -Section 100.204 Reasonable accommodations.
s Section 100.204 implements section 804(0(3)(6) of the Fair Housing Act which makes it unlawful to refuse
6 to make reasonable accommodations in rules, policies, practices, or services if necessary to afford a person
7 with handicaps equal opportunity to use and enjoy a dwelling.The concept of"reasonable accommodation"
s is also used in regulations and case law interpreting section 504 of the Rehabilitation Act of 1973. See, 28
s CFR 41.53; 24 CFR 8.11 and 8.33; Southeastern Community College v. Davis, 442 U.S. 397 (1979);
i.o Alexander v. Choate, 469 U.S. 287(1985).
11
12 The principal comments received on this section discuss the relationship between§§ 100.204 and 100.203
13 relating to reasonable modifications of existing premises.These comments were discussed in connection with
14 § 100.203.
15
16 Paragraph(a)closely follows the statutory language and is unchanged from the proposed rule. It states that
17 it is unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices or
is services,when such accommodations may be necessary to afford a handicapped person equal opportunity
19 to use and enjoy a dwelling unit, including public and common use areas. A number of commenters were
20 concerned that this language could be interpreted as requiring that housing providers provide a broad range
21 of services to persons with handicaps that the housing provider does not normally provide as part of its
22 housing. The Department wishes to stress that a housing provider is not required to provide supportive
23 services, e.g., counseling, medical, or social services that fall outside the scope of the services that the
24 housing provider offers to residents.A housing provider is required to make modifications in order to enable
25 a qualified applicant with handicaps to live in the housing, but is not required to offer housing of a
26 fundamentally different nature. The test is whether,with appropriate modifications,the applicant can live in
27 the housing that the housing provider offers; not whether the applicant could benefit from some other type of
2s housing that the housing provider does not offer.
29
30 Paragraph(b) illustrates the application of paragraph(a)with two examples of reasonable accommodations.
31 No substantial comments were received on these examples and they remain as they were proposed.
32
33 Section 100.205 Design and construction requirements.
34 Section 100.205 implements section 804(0(3)(C) of the Fair Housing Act which places accessibility
,is requirements on "covered multifamily dwellings" designed and built for first occupancy 30 months after
36 enactment.
37
3s The term"covered multifamily dwellings"means buildings consisting of 4 or more dwelling units if the building
39 has one or more elevators,and"ground floor"dwelling units in other buildings consisting of or more dwelling
40 units. The ground floor is any floor of a building with a building entrance on an accessible route. A building
41 may have more than one ground floor.A"building"is a structure, facility or the portion thereof that contains
42 one or more dwelling units.
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54 FR.3232-l;np?em.entation of the Fair Housing Amend mer7ts Act of 1968
1 Unusual Terrain or Site Characteristics.Paragraph(a)ofthe proposed rule provided that"covered multifamily
2 dwellings"for first occupancy after March 13, 1991 be designed and constructed to have at least one building
3 entrance on an accessible route unless it is impractical to do so because of the terrain or unusual
4 characteristics of the site. Paragraph(a)was the subject of considerable public comment.
s
6 Some commenters objected to the portion of paragraph(a)that exempts buildings from having an accessible
7 building entrance where it is impractical to provide such an entrance because of the terrain or unusual
8 characteristics of the site.These commenters argue that the statute contains an"absolute"requirement that
9 "covered multifamily dwellings" for first occupancy after March 13, 1991 be made accessible. They believe
10 that paragraph (a) introduces an exception not found in the Act.
11
12 Other commenters did not altogether object to an "impracticality" standard but considered the standard of
13 "impracticality"proposed by the Department to be too broad.These commenters feel that the"impracticality"
14 standard in paragraph(a)allows designers and builders to use their own standards and claim that because
is it is"impractical"to do so,they need not make their buildings accessible. In the view of these commenters,
16 this "loophole" was not intended by Congress; they suggest that HUD establish a more specific standard.
17 Some commenters stated that, where feasible, grading be made mandatory. Other commenters urged that
18 the"impracticality"exemption accrue to dwellings where the only access is stairs which are higher than 10
i9 feet. At this point they argue it is impractical for a ramp to be built.
20
21 Representative Barney Frank of Massachusetts submitted a comment stating his belief that the word
22 "impractical"could be more of a loopholethan was intended by Congress.Mr.Frank suggested tightening the
23 standard by modifying the word "impractical" with adverbs such as "highly" or "extremely". Mr. Frank also
24 stressed that it ought to be made clear that only unusual physical characteristics of the site would justify the
25 invocation of the tighter standard of impracticality he suggested.
25
27 Other commenters argued for a broader standard than the one proposed by the Department. They did not
a interpret the proposed standard as relating in any way to the economic impact of designing and constructing
29 a building on a particular site to have an accessible building entrance. These commenters argued that the
3o Department should consider the economic impact of requiring at least one building entrance on an accessible
3i route and not only whether access is physically impractical. These commenters noted that if the cost of
32 providing an accessible entrance is too great,the project may become economically infeasible.They pointed
33 out that Congress was sensitive to the impact of the Act's requirements on housing affordability.Forexample,
34 the Act's accessibility provisions"carefully facilitate the ability of tenants with handicaps to enjoy full use of
35 their homes without imposing unreasonable requirements on homebuilders, landlords and non-handicapped
36 tenants." House Report at 27.These commenters suggest that economic loss beyond a de minimis amount
37 is in many cases a viable and fair determinant of the impracticality of providing an accessible entrance.
38
39 Congress did not intend to impose an absolute standard that all covered multifamily dwelling units be made
4.3 accessible without regard to the impracticality of doing so. Even though the statute itself does not contain an
41 impracticality standard the legislative history makes it clear that Congress"was sensitive to the possibility that
42 certain natural terrain may pose unique building problems." House Report at 27. For example, the House
43 Report explicitly recognizes that in some locales it is common to construct housing on stilts because of
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54 FR 3232- 1mplomentatfon of the Fair Nousinct Amer,dMo Its Act of',988
i flooding problems.A requirement that housing on such sites have an accessible entrance on an accessible
2 route may be tantamount to prohibiting the construction of covered multifamily housing on such sites.This
3 is not what Congress intended. The House Report further states that the "Committee does not intend to
4 require that the accessibility requirements of this Act override the need to protect the physical integrity of
s multifamily housing that may be built on such sites." Id.
6
7 Further,the Department does not believe that it would be appropriate to constrain designers by adopting a
3 highly specific building accessibility standard, as suggested by some commenters. For example, some
commenters suggested that the rule statethat,where feasible,grading be mandatory.A developer is required
io by paragraph(a)to design and construct one building entrance on an accessible route unless it is impractical
11 to do so because of the terrain or unusual characteristics of the site.As a practical matter,it may sometimes
12 be necessary to provide grading for persons in wheelchairs so that the requirements of paragraph(a)will be
13 met and in many cases it will be the least expensive means of doing so. However, in other instances, it may
14 be possibleto design and construct an accessible building entrance in some other fashion.Designers are free
_s to use any reasonable design that obtains the required result.The Department does not believe that Congress
16 intended to dictate the method a designer must use to provide an accessible entrance. Innovative designs
17 that are accessible to handicapped persons should be encouraged.
sa
19 Since the statute itself does not contain an exemption,the Departmentfeels constrainedto follow closely the
20 intent of Congress on this issue as expressed in the Act's legislative history. The discussion in the Douse
21 Report on this issue is of"unique building problems"along the order of examples(1)and(2)in paragraph(b).
22 The impracticality standard in paragraph(a), however, does not go so far as to require that it be"impossible"
23 to design and construct a building entrance on an accessible route,because the Department does not believe
24 that Congress intended that the standard be limited to such extreme instances.
2s
2.6 On balance, and after carefully considering the various comments received on this issue, the Department
27 believes that, based upon specific language in the House Report, Congress intended to apply the test the
28 Department proposed for determining when the burdens of providing an accessible entrance are too great.
29 Only when the terrain or unusual site characteristics make it impractical to design and construct an accessible
3o building entrance at a particular site did Congress consider the burdens of providing such an entrance to be
31 unreasonable. Since the standard in paragraph (a) already takes into account the burdens of making a
a building accessible, the Department does not believe that it would be faithful to the statute to revise the
33 standard to refer to an open-ended"economic impracticality"standard unrelated to the sorts of unusual site
34 problems Congress expressly considered relevant.
3s
36 Determining"First Occupancy"After March 13,1991.A number of commenters stated thatwhile the proposed
37 rule properly limits the Act's design and construction requirements to covered multifamily housing for first
38 occupancy after March 13, 1991, it fails to indicate how it will be determined whether covered multifamily
39 housing is"for first occupancy after March 13, 1991."These commenters are concerned that coverage of the
4o design and construction requirements must be determinable at the beginning of planning and development,
41 arguing that it is unreasonable to base this determination on the actual date of first occupancy since this date
42 may be affected by a variety of unexpected and uncontrollable events occurring during the lengthy planning
4a and development process. In order to accommodate these legitimate concerns on the part of the building
44 industry, the Department has added a sentence to paragraph (a). It states that,for purposes of; 100.205,
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EXHIBIT"4 „
54 rR 3232-imp#emenfafion of the Fair Ho using Amendments Act Of ,988
i covered multifamily dwellings shall be deemed to be designed and constructed for first occupancy on or
2 before March 13, 1991 if they are occupied by that date or if the last building permit or renewal thereof for the
3 covered multifamily dwellings is issued by a State,County or local government on or before January 13,1990.
4 In other words, if a developer obtains a building permit on or before January 13, 1990(which is not renewed
s after that date)and completes construction under that permit, the building in question need not comply with
6 the accessibility requirements of§ 100.205.Thus, a developer will not be penalized if a strike or Act of God
7 prevents occupancy by a certain time. The date of January 13, 1990 was selected because it is fourteen
s months before March 13, 1991. Fourteen months represents a reasonable median construction time for
multifamily housing projects of all sizes based upon data contained in the"Marshall Valuation Service."The
10 Department considered adopting different construction times for different sized projects but ultimately found
ii this approach cumbersome from an administrative and enforcement standpoint. The Department chose the
12 issuance of a building permit as the appropriate point in the process, since such permits are issued in writing
13 by governmental authorities.Such a standard has the advantage of being clear and objective.In addition,any
14 project that actually achieves first occupancy before March 13, 1991 will be judged to have met this standard
is even if the last building permit or renewal thereof was issued after January 13, 1990.
16
17 Accessibility Guidelines. Paragraph(b) contains three examples that illustrate the application of paragraph
18 (a). Some commenters stated that the examples illustrating the application of paragraph (a) may reduce
1g noncompliance atthe extremes butdo not satisfactorily indicatewhat constitutes sufficient compliancein most
20 day-to-day situations. The Department does not believe that it is feasible to publish more specific guidance
21 at this time. However,the Department will endeavor to provide as much additional guidance as possible in
22 the accessibility guidelines HUD plans to develop. Many commenters expressed a desire to have an
23 opportunity to comment on these guidelines.HUD intends to publish these guidelines in the Federal Register
24 for full public comment as soon as they are ready.
ds
26 The only change made to these three examples is a minor change to example (1). In the proposed rule
-7 example(1) related to a developer who planned to construct six townhouses on a site with hilly terrain.Some
t3 commenters were confused by the reference to townhouses, in view of the Departments interpretation that
25 four or more townhouses are not covered multifamily dwellings unless the entire unit is on the ground floor
3o or unless the townhouses have an elevator. In order to avoid this confusion,the referenceto townhouses has
31 been deleted. Instead, the example refers simply to six units of covered multifamily dwelling units. The
3i purpose of the example is to explicate site impracticality because of hilly terrain.
33
34 Example(3), which describes an instance where building accessibility can be achieved only at the cost of a
35 4.7 percent density loss,was the subject of criticism by builders.They argued that a 4.7 percent density loss
36 may render a project economically infeasible. Even though this may well be the case in some situations,the
37 Department does not believe, in light of the discussion above, that Congress necessarily intended that a
38 reduction of five units in a 105-unit building would be sufficient to exempt that building from the accessibility
39 requirements of the Act.A more stringent standard was intended. (However,this example was not intended
4o to mean that any loss of density, no matter how great, would be insufficient to establish site impracticality.)
41
42 Paragraph(c) requires that all covered multifamily dwellings for first occupancy after March 13, 1991 with a
43 building entrance on an accessible route satisfy certain accessibility requirements set forth in paragraph(c).
44 Paragraphs(c) (1) and(2) set forth the specific accessibility requirements for covered multifamily dwellings
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z for first occupancy after March 13, 1991 with a building entrance on an accessible route. Many commenters
2 complained that the guidance provided in paragraph (o) is inadequate. Some commenters made highly
3 detailed suggestions thatthe Departmentwill carefully consideras itdevelops accessibility guidelines to help
^ builders understand and comply with the specific accessibility requirements of the Fair Housing Act. The
s guidelines would, of course, not be mandatory. Rather, they would provide technical assistance to persons
o who must comply with paragraph(c). Until these guidelines are published for public comment, designers and
r builders may be guided by the requirements of ANSI in meeting the specific accessibility requirements of the
u Act,
e
zc, Paragraph (d) provides two examples that illustrate the application of paragraph (c), These examples were
o not the subject of substantial public comment and are unchanged from the proposed rule.
zz
z-; Paragraph(e)states that compliance with the appropriate requirements of ANSI Al 17.1 suffices to satisfy the
14 requirements of paragraph(o)(3). Paragraph (e) implements section Q04(f)(4)nfthe Fair Housing Act.This `
zs section does not require that designers and builders follow ANSI A11T.1 exclusively. However, if designers
16 and builders do followANSI Al 17.1,then they will have satisfied the requirements of paragraph(c)(3). House �
o Report at 27. Paragraph (e)was not the subject of substantial public comment, closely foilows the statutory i
zo language and iy unchanged from the proposed rule.
19
zo Paragraphs Ul and(g)inplenxentthepnovyiomaof the FairHousing Amendments AotdeyiQnedboencourage
2-1 enforoenxert, by the States and local governments, of the provisions of the Act regarding adaptability and
zz accessibility requirements for newly constructed multifamily dwellings. 134 Cong. Rec. S10456 (daily ed,
23 August 1. 1Q88\(K8anooramdunoofSen/doryKennedyandSpeobarRegardingTheirSubyUtubeAnoendnoan0� |
' ' |
24
zs Paragraph (f)states that compliance with a duly enacted law of a State or unit of general local government |
26 that includes the requirements of paragraphs(a)and(o)yatieheathenaquinanoentyofparagnapha(a\and(u) '
` ' ' i
z, Paragraph 0l was not the subject of substantial public comment and iy unchanged from the proposed rule. i
28
29 Paragraph(g)(1)was notthe subject of substantial public comment and is unchanged from the proposed rule.
ao It declares that it is the policy of HUD ho encourage States and units of|ocal government to include in their
az existing procedures for the review and approval of newly constructed covered multifamily dwellings,
32 determinations as to whether the design and construction of such dwellings are consistent with paragraphs
.33 (a) and (o).
'*
35 Paragraph (g)(2) states that a State or unit of general local government may review and approve newly
aa constructed multifamily dwellings forthe purpose of making determinations as to whether the requirements !
ar of paragraphs (a) and (u) are met. Paragraph (g)(�)vvaynottheyubjeoto�yubytandi�| pub)i000mmentand |
. .
3s iy unchanged from the proposed rule. !
'
sy �
zm Determinations of Compliance by State or Local Agencies. Paragraph (h)^ which is unchanged from the �
41 proposed rule,states that determinations of compliance or noncompliance by a State or a un'it of general local
42 government under paragraph(f)or(g)are not conclusive in enforcement proceedings underthe Fair Housing
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54 FIR 3232 -implementation of the Fair Hcusing Amendments Act of 1988 Page'41' '
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EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amer,dmen.ts Act of 1966
1 Act. Some commenters argued that this paragraph should be revised to state that determinations by State
2 and local governments will be given substantial weight.These comments concede that neither the statute nor
3 its legislative history indicates the weight to be given to such determinations. The Department believes it
4 would be inappropriate to accord particular"weight"to determinations made by a wide variety of State and
s local government agencies involving a new civil rights law,without first having the benefit of some experience
6 reviewing the accuracy of the determinations made by State and local authorities under the Fair Housing Act.
7
s Paragraph(i)states that subpart D does not invalidate or limit any law of a State or political subdivision of a
9 State that requires dwellings to be designed and constructed in a manner that affords handicapped persons
io greater access than is required by this subpart. Paragraph (I) was not the subject of substantial public
ii comment. It is unchanged from the proposed rule.
12
13
14 Subpart E-- Housing for Older Persons
is The Fair Housing Act prohibits discrimination because of familial status. However, the Act exempts"housing
16 for older persons"from the prohibitions against discrimination because of familial status.The purpose of the
17 prohibitions against discrimination because of familial status and the housing for older persons exemption is
1a to protect families with children from discrimination in housing, without unfairly limiting housing choices for
19 elderly persons. 134 Cong. Rec. S10465-66 (daily ed. August 1, 1988) (statement of Sen. Karnes). The
20 statutory definition of"housing for older persons"comprisesthree categories of housing:(1)Housing provided
21 under any State or Federal program that the Secretary of HUD determines is specifically designed and
22 operated to assist elderly persons;(2)housing intended for,and solely occupied by, persons 62 years of age
23 or older; and (3) housing intended for, and solely occupied by, at least one person 55 years of age or older
24 per unit, provided that various criteria are met.
2s
26 Mobile Home Parks. The Department received thousands of comments relating to the housing for older
27 persons exemption.A significant portion of these comments came from people who live in mobile home parks
28 which are currently restricted to adults.These commenters point out that mobile home park living is unique.
z9 Mobile home park residents typically own their own homes but rent the space. Frequently,there is relatively
30 . little space between homes.Many of these commenters state thatthey preferto live in an all-adult atmosphere
31 and that if children are admitted there will in most cases be no place for them to play. Furthermore, many
32 commenters made it plainthatthey do not want or need special services orfacilities.Rather,they want mobile
33 home parks to provide an environment where they can be with others of their age group,while at the same
34 time remaining independent and self-sufficient.
35
36 Some commenters asked that mobile home parks be exempted outright from the Fair Housing Act. Mobile
37 home parks are covered by the Fair Housing Act.The Fair Housing Act makes it unlawful to refuse to sell or
38 rent a"dwelling"because of race,color,religion,sex,handicap,familial status,or national origin.The statutory
33 definition of"dwelling"includes vacant land which is offered for sale or lease for the construction or location
no thereon of a structure. In addition,the legislative history of the Fair Housing Amendments Act indicates that
41 Congress intended that mobile home parks would be covered bythe Act,and specifically by the familial status
42 provisions. See 134 Cong. Rec. S10551 (daily ed. Aug. 2, 1988) (colloquy between Sens. Wilson and
43 Specter). Thus, the Department has no basis for exempting mobile home parks from the prohibition of
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54 FR 3232-impie:^nentation of the Fa;,Housing Amendments Act of 1988
1 discrimination against families with children.
2
3 Other commenters asked HUD to create an additional exemption for"over 40"or for"all-adult"mobile home
4 parks.There is nothing in the Fair Housing Amendments Act or its legislative history to indicate that Congress
s intended that mobile home parks be afforded a housing for older persons exemption that is broader than the
6 exemption that applies to other types of housing (e.g., apartments and condominiums). To the contrary,the
7 legislative history indicates that "mobile home parks ar eligible for the same exemptions as are other
8 communities under the 'housing for older persons' provisions ` *" of the Act. Id. Therefore, mobile home
9 parks are subject to the same rules that apply to other types of housing. More specific comments received
io on this subpart will be discussed in connection with the exemption for"55 or over" housing.
11
12 "Dual Purpose Housing Facilities."A number of commenters raised the question of whether it is permissible
13 to operate a "dual purpose" housing facility. In a"dual purpose" housing facility specified units or sections
14 would be designated for older persons and other units or sections would be open to everyone. For example,
is one commenter representing the interests of mobile home park owners suggested that regulations be
16 promulgated to permit the operation of"dual purpose" properties, so that certain sections or units are not.
17 restricted to persons of a certain age and others are designated for housing for older persons. This
is commenter stated that the proposed rule did not address this question. However,this issue was addressed
19 in the proposed rule.Section 100.70(c)(5)of the proposed rule(53 FR 45025,November 7, 1988)stated that
20 it is unlawful to assign"any person to a particular section of a community, neighborhood or development or
21 to a particular floor of a building because of* t '` familial status* * *." This same prohibition appears as §
22 100.70(c)(4) of the final rule. As the Department explained in connection with public comments received on
23 subpart A, the legislative history of the Fair Housing Act and the development of fair housing law after the
24 protections of the Fair Housing Act were extended in 1974 to prohibit discrimination because of sex support
25 the position that persons with handicaps and families with children are entitled to the same protections as
26 other classes of persons. For example, "dual housing"facilities segregated by race, color or religion clearly
27 would violate the Fair Housing Act.Similarly,the Department believes that it is unlawful for a housing facility
28 to segregate because of familial status.
29
3o Section 100.300 Purpose.
31 Section 100.300 explains that the purpose of subpart E is to effectuate the housing for older persons
32 exemption in the Fair Housing Amendments Act. This section was not the subject of public comment and is
33 unchanged from the proposed rule.
34
35 Section 100.301 Housing for Older Persons Exemption.
36 Section 100.301 provides the analytical framework for subpart E. Paragraph (a) implements the second
37 sentence of section 807(b)(1) of the Fair Housing Act, as amended. it states that the prohibitions against
3s discrimination because of familial status in this part do not apply to housing which satisfies the requirements
39 of§§ 100.302("State and Federal Elderly Housing Programs"), 100.303("62 or Over Housing"), or 100.304
40 ("55 or Over Housing"). Paragraph (a) was not the subject of public comment and is unchanged from the
41 proposed rule.
47_
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Amen.dmenfs Act of 1988
i Parmgnaoh��stateothatnothng |ndhiapa�|hnUathemppUm�bi�yofmnyreaoonaNe�cm[Stmte,urFederm |
' ` ' |
z ���� regarding the maximum number of occupants permitted occupy a dwelling. Paragraph (b)
�
s implements the first sentence of section 807(b)(1)of the Fair Housing Act.Manyjurisdictions limit the number �
4 of occupants per unit based on a minimum number of square feet in the unit or the sleeping areas of the unit; |
s HUD also issues occupancy guidelines in its assisted housing programs,Reasonable limitations do notviolate
a the Fair Housing Act as long as they apply equally to all occupants.A substantial number of comments were
r received asking that the Department adopt occupancy restrictions that housing providers can apply in
o jurisdictions that do not have governmentally-adopted occupancy restrictions, and in jurisdictions where the
s governmentally-adopted restrictions are tantamount to no restrictions.There comments are discussed in the
zo preamble discussion relating to Subpart A.
�z |
'
iz Section 100.302 State and Federal Elderly Housing Programs. �
!
13 Section 100.3O2 implements section 807(b)(2)(a)of the Fair Housing Act.Section 100.302 exempts housing
z^ provided under any Federal or State program that the Secretary determines is opecifinedk/ designed and �
zs operated to assist elderly persons, as defined in the State or Federal program from the prohibitions against �
16 discrimination because of familial status in this part. Section 100.302 was not the subject of substantial public �
o comment and is unchanged from the proposed rule. It should be noted that the eligibility requirements for �
us housing for elderly persons in HUD-assisted and insured programs differfrom the requirements in§§ 100.303 |
iy and 100.304. State or Federal definitions are not superseded by those established in this Part for other !
|
zo housing. .
`
'
21 '
zz Section 10O.3O3S2or Over Housing. i
23 Section 100.303innpJement Q8UTkV2)UBofUleAnt |texemptshnm the prohibitions against discrimination
24 because of familial status housing intended for, and solely occupied by, persons 62 years of age or older.
25
zs Transition Provision, Paragraph(a)(1) contains a transition provision to ensure that the interests of current /
zr reaidentobfhuusingthatexdudesnhi|drenvvU| notbeundu|ydioturbedbytheFairHous|ng/kct. 134Cong.
zn Rec. 810458 (daily ed. August 1. 1988) (Memorandum of Sens. Kennedy and Specter Regarding Their
zs Substitute Amendment). It provides that housing satisfies the requirements of§ 103.303 even though there |
so were persons residing in such housing on September 13. 1Q88 who are under 62 years orage.Provided That |
31 all new occupants thereafter are persons 82years of age or older. |
az
33 Section 8(d)of the Fair Housing Amendments Act provides that housing shall notfail to meet the requirements
s^ for housing for older persons by reason of"persons residing in such housing aoof the date of enactment of
.3e this Act[i.e., September 13, 1988]"who do not meet the age requirements of the housing for older persons
aa exernpUon, provided that all new occupants meet the age requirements of the housing for older persons !
ar exemption.SenUon13(a)ofthoAciprov��e�thmt"[�hioActandtheAmendme��madebythi�An shall take
i
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sa effect on the 180th day beginning after the date of enactment of this Act."The date described in section 13(a) |
ay is March 12, 1989.Several commenters questioned whether the appropriate date for the transition provision �
40 in G 100.303(a)(1) is September 13, 1988or March 12. 1989. i
*z
m |n the preamble of the proposed rule the Department explained that if section 0(d)of the Act is applied literally, �
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
i then housing providers, in order to avail themselves of this transition provision, had to begin filling units in
2 accordance with the age requirements of the housing for older persons exemption on September 13, 1988,
3 which is before the effective date of the Act.The proposed rule adopted this interpretation, but in view of the
4 consequences of such a determination, invited public comment on the question. Comments were received
5 on both sides of the issue.
s
7 One group of commenters argued that the transition rule should become effective on March 12, 189 instead
s of September 13, 1988 as proposed by the Department. Some of these commenters conceded that the
9 proposed rule followed the plain meaning of the statute, but argued that this is a case where adherence to
to the statute's plain language will frustrate Congress'intent to provide a workable transition rule that ensures
11 thatthe interests of current residents of housing that excludes children will not be unduly disturbed by passage
2 of the bill. 134 Gong. Rec.S10456(daily ed. August 1, 1988)(Memorandum of Sens. Kennedy and Specter
13 Regarding Their Substitute Amendment).These commenters also stated that a March 12,1989 transition date
14 would be fairer.
15
lc, A different group of commenters agreed with the Department's interpretation of the transition provision that
17 appeared in the proposed rule as consistent with the plain meaning of the Act and Congressional intent.
1s These commenters agreed with the Department's statement in the preamble of the proposed rule that the
1g general language in section 13(a)was not intended to render the more specific language in section 6(d) a
20 nullity. Moreover, under the interpretation of the Act in the proposed rule there is no inconsistency between
1 sections 6(d)and 13(a)of the Fair Housing Act.The Act will take effect on March 12, 1989 and, by its terms,
2z the housing for older persons exemption will be satisfied even though, on September 13, 1988, there were
23 persons in the housing facility who did not meet the age requirements, provided that all new occupants after
24 September 13,1988 meetthe age requirements.Some commenters added that under fundamental principles
zs of statutory construction the more specific language of the Act prevails over more general language covering
26 the same subject. See e.g., Ginsberg &Sons.v. Popkin,285 U.S. 204,208 (1932)("General language of a
27 statutory provision,although broad enough to include it,will not be held to apply to a matter specifically dealt
2s with in another part of the same enactment.").Therefore,these commenters concluded that the more general
29 language in section 13(a) describing the effective date of the Act as a whole should not be interpreted to
3o delete the specific language in section 6(d) defining the appropriate date for the transition provision.
31
32 After carefully considering the comments received on this question, the Department has determined not to
33 modify its interpretation of the transition provision that was included in the proposed rule because it appears
34 that this is what Congress intended. The transition provision in section 805(b)(3) of the statute relating to
35 persons residing in a housing facility who do not meet the age restrictions for housing for older persons is
36 expressly limited to"persons residing in such housing as of the date of enactment of this Act."The same date
37 (September 13, 1988)is, for the same reasons, referenced in §100.304(d)(1)("55 or Over Housing").
38
39 In addition, some commenters proposed that the rule state that a mobile home park may change its age
4o requirements to either family, 55 or over or 62 or over, at any time--arguing that such a provision would be
41 consistent with the legislative intent of the Act to stop discrimination against families with children but to allow
42 for distinct housing opportunities for older persons.As previously explained, the Department sees no legal
43 basis for providing special treatment or exceptions for mobile home parks in light of the legislative history to
4 the contrary.Furthermore,the transition provision in section 807(b)(3)(A)makes specific reference to the date
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i of enactment. In light of this temporal limitation in the sbabda the Department does not baUava it would be
2 faithful to the statute to oraeta in this nda o procedure permitting o housing provider to change its age
a requirements at any time in order to exclude families With children.
�
s A related issue raised by some commenters is the relationship between the AoL and various State laws that
o regulate existing relationships between landlords and tenants.For example,underthe California Mobilehome |
r Residency Law, a rule or regulation of a mobile home park may be amended at any time with the consent of �
u ohomaovvnar, orvvithouthisorharuonsantuponvvhttannoboatohimorharofncd |assthonsizmonths. �
s Co|fornio Civil Code§78D.25(1Q82&Supp' 1QO8).These commenters pointed out that this and other notice
in requirements made it vary difficult, and in some Gases, impossible for mobile home park owners to avail
themselves of the transition provision in section 807(b)(3)(A) of the Act. On October 21, 1988 the General �
Counsel of HUD, J. W1(choa| Oomay, issued o legal opinion nn this question. In that opinion, Mr. Dorsey |
13 concludes that the Fair Housing Act does not preempt or supersede § 798.25 of the California Civil Coda
14 since there is no language in the Fair Housing Act, as amended, or its |agis|ed|va history to support o
zs conclusion that the Act was intended to invalidate or limit any State |ovv' unless that State |ovv requires or
16 permits a discriminatory housing practice.42 U.S.C.3616(as redesignated by the AGt).Section 798.25 of the
�r California Civil Code neither requires nor permits o discriminatory housing practice: it simply sets forth o
is procedure that o mobile home pork must follow in order to change o nu|a or regulation. In oddition, the
zy comments submitted by Senators Kennedy and Specter and Representative Don Edwards state as follows:
zo
21 Since enactment of the 1Q88 Amendments to the Fair Housing Act, many mobile home parks have changed
zz their status from on eighteen and older "adult" park, which is allowed under existing California |ow, but
23 prohibited by the Fair Housing Amendments AGt to a"housing for older persons" park in order to qualliy for
m an exemption underthe Act. Many of these parks have claimed that the Act preempts California law,and thus
zs six months'notice of a change in policy is not required.This is an incorrect interpretation of the Act.It was not
zs the intent of Congress to preempt this notice requirement, and the regulations should so specify,(Footnotes
z, omitted.)
28
zn Paragraph(a)(2)states that housing satisfies the requirements of§100.303 even though there are unoccupied
so units(at any time), provided that such units are reserved for occupancy by persons 62 years of age or over.
31 Paragraph(a)(2)was not the subject of substantial comment and is unchanged from the proposed rule.
,z
33 A new paragraph (a)(3) has been added to the final rule. It states that housing satisfies the requirements of
34 Q1OO.3O3 even though there are units oGoupiad by employees of the housing (and their family members
ss residing in the same unit)who are under 62 years of age provided they perform substantial duties directly
uo related to the management or maintenance of the housing.This paragraph was added by the Department in
sr recognition of the fact that it is common for a manager of a housing facility or maintenance worker to reside
sx in one of the units. Frequently, such arrangements benefit the residents of the housing facility. The
so Department does not believe that Congress intended for a housing owner to lose its"62 or over"exemption
40 simply because the manager of the facility or a maintenance worker resides there. However,the Department
m wishes to stress that any employees who live at the housing facility must perform substantial duties directly
42 related to the management or maintenance of the housing in question. For example, if the employee works
^o primarily at a different housing facility, then that employee does not satisfy the requirements of paragraph
/w (b)(3) and the housing facility where that employee lives will not qualify for the"62 or over" exemption.
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1 Paragraph(b) contains two examples that illustrate the application of paragraph (a).These examples were
2 not the subject of substantial comment and are unchanged from the proposed rule.
3
4 Section 100.304 55 or Over Housing.
s Section 100.304 implements section 807(b)(2)(C)of the Fair Housing Act,which exempts housing intended
6 and operated for occupancy by at least one person 55 years of age or over per unit that satisfy certain criteria.
7 This section of the proposed rule was the subject of many public comments. As an initial matter, a number
s of commenters asked that the Department clarify the meaning of the phrase"housing intended and operated
for occupancy by at least one person 55 years of age or older, per unit **" in paragraph(a).
1g
i1 Specifically,these commenters asked that HUD address the issue of the age of any other person occupying
12 the unit along with a person 55 years of age or older per unit. A housing provider may, use any
13 non-discriminatory method of qualifying for the exemption that comports with applicable State and local laws.
14 Since the Fair Housing Amendments Act does not prohibit discrimination because of age, nothing in the Act
is prohibits a housing provider seeking to qualify for the exemption for"55 or over" housing from setting age
16 restrictions that are more stringent than those set forth in the Act.Thus, a housing provider may,for example,
17 require that all residents be 55 years of age or older, provided that such a rule is consistent with applicable
18 State and local laws.The other comments on § 100.304 fall within four areas,
7o First, some commenters stated that§ 100.304(c)(1)should state that all units, upon initial occupancy, must
21 be occupied by at least one person 55 years of age or older. Under the Act, the exemption for housing for
22 persons 55 years of age or older requires,among other things,that 80 percent of the dwellings have at least
23 one resident who is 55 years of age or older and that the housing complex adhere to policies demonstrating
24 an intent to provide housing to persons of that age group.Section 807(b)(2)(C).The Children's Defense Fund
2s and other commenters state that Congress'purpose in permitting up to 20 percent of the units to be occupied
26 solely by persons under the age of 55 was to prevent disruption of the lives of surviving spouses and
27 cohabitants under age 55,when the over 55 member of a household dies or otherwise leaves the unit.See
28 134 Cong. Rec. H 6498(daily ed.August 8, 1988)(statement of Representative Edwards);House Report at
z� 31,Specifically,these commenters argue that the"55 or over"exemption was not meant to permit the owner
30 of housing for older persons to "set aside" 20 percent of its units for incoming households (as opposed to
a1 surviving spouses or companions). These commenters feel that such a"set aside" is inconsistent with the
32 exemption's requirement that the owner or manager demonstrate an intentto provide housing for persons 55
33 years of age or older.
34
35 These commenters correctly point out that statements in the legislative history discuss the need to permit up
36 to 20 percent of the units to be occupied by persons all of whom are under 55 years old in 55 or over housing
37 in order to accommodate persons such as surviving spouses under the age of 55 and nurses and other
38 personnel to care for the elderly. 134 Cong. Rec. H 6498 (daily ed. August 8, 1988) (statement of
39 Representative Edwards);House Report at 31.However,the Department does not believe that the examples
40 that appear in the legislative history were intended to be exhaustive.Particularly,the Department is not of the
41, view that these units for persons under 55 years of age cannot be occupied by incoming households (as
42 opposed to surviving spouses or companions). Indeed, some incoming households may be persons under
43 55 related in some way to residents who are over 55 years old. For example, an elderly owner of a
44 condominium might die and leave the condominum to a relative who is under 55 years old. If the 20 percent
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i of the units available to persons under 55 years old were not open to incoming households then the recipient
2 of the legacy would be in the anomalous situation of not being able to live in a condominium he or she owns.
3 Further, the Department does not believe that the proposed rule can fairly be characterized as establishing
4 a 20 percent "set-aside" for persons under 55 years of age. In order to be assured of preserving the
s exemption, an owner of"55 or over" housing will not, as a practical matter, be able to sell or rent a full 20
6 percent of the units to incoming persons, all of whom are under 55 years of age, because if the owner does
7 so he or she will risk losing the exemption if some of the over-55 occupants die with surviving spouses who
s are under 55 years old. In this regard, a number of commenters expressed concern about the last sentence
9 of example 1 A in paragraph(e). This sentence indicates that a housing provider could rent a unit to persons
io (John and Mary in the example) all of whom are under 55 years old even if doing so would reduce the
11 percentage of units occupied by at least one person 55 years of age or older to just a fraction above 80
12 percent. Although the housing provider in fact could rent to John and Mary without hosing the "55 or over"
13 exemption the Department agrees that doing so is not advisable under the circumstances described in the
14 example. Since the owner would be just a fraction above the 80 percent minimum required to maintain the
is "55 or over"exemption, renting to John and Mary could lead to the owner losing the exemption if some of the
16 over-55 occupants die with surviving spouses who are under 55. In order to avoid any confusion.therefore,
17 the last sentence of example 1A in paragraph (e) of the proposed rule has been deleted in the final rule.
18
is Beyond this,the owner must take care to publish and adhere to policies and procedures which demonstrate
20 an intent to provide housing for persons 55 years of age or older. For example, this requirement would
21 preclude an owner or manager from marketing 80 percent of the units for persons 55 years of age or older
22 and marketing the remaining 20 percent in a radically different way (e.g., young adults). The policies and
23 procedures for the housing facility as a whole must demonstrate an intent to provide housing for persons 55
24 years of age or older."in essence,this means that the housing in question must in its marketing to the public
25 and in its internal operations, hold itself out as housing for persons aged 55 or older." 134 Gong.Rec.510456
2:, (Memorandum of Senators Kennedy and Specter Regarding Their Substitute Amendment).Accordingly„the
27 Department has determined not to revise paragraph(d)(2).
28
29 The second major issue relating to 55 or over housing concerns paragraph(c)(1),which requires that at least
3o 80%of the units in the housing facility be occupied by at least one person 55 years of age or older unit except
31 that a newly constructed housing facility for first occupancy after March 12, 1989 need not comply with
32 paragraph(c)(1) of this section until 25% of the units.in the facility are occupied. The exception for partially
33 occupied newly constructed housing facilities was proposed by HUD to deal with the practical problem of filling
34 units in a new and unoccupied housing facility in a reasonable manner, consistent with the "55 or over"
3s exemption. For example, it would be unreasonable for a large newly constructed housing facility that intends
a6 to qualify for the exemption to lose its right to claim the exemption simply because the first unit happens to
37 be filled with persons all of whom are under 55 years of age.However,once a certain percentage of units has
3s been filled the housing facility can reasonably be expected to comply with the percentage requirement in
39 paragraph (c)(1). Thus, the Department proposed to require that a housing facility comply with the 80% ,
4,1_ requirement in paragraph (c)(1) once 25% of the units in the housing facility have been filled and invited
41 comment on the question of whether the 25% point is too high or too low.
42
43 The National Association of Homebuilders, among other commenters, felt this percentage was too low to
44 make a meaningful assessment of a particular housing facility. The National Multi Housing Council argued
4s that a building should be eligible for the"55 and Over"exemption during initial occupancy so long as not more
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z than 20 percent of thetotal units are occupied by non-qualifying residents.The Council argues that marketing '
2 and market conditions will vary widely throughout the country and suggest that it is unnecessary for HUD to �
3 attempt to fix a universal demarcation point on this subject, The Council proposes that the final rule permit
* an owner to sell or rent the first 20 percent of the units to non-qualifying occupants, if he or she wishes,
s On the other hand,the Children's Defense Fund and the Leadership Conference on Civil Rights,among other
r commenters, objected to paragraph (c)(1)since the 25 percent point referenced in the proposed regulation
n is not contained intheAotor its legislative history.These commenters further argue thetthie25 percent point
s of reference be deleted because it stemsfrom whatthey regard as an Incorrect interpretation of the 55 or over
zo exemption. In other words, if the 20 percent of the units for non-qualifying households were restricted to �
zi surviving spouses, nurses and companions there would be no need for the 25 percent point of reference for '
zz initial occupancy. |
13 '
14 Since the Department has not adopted the narrow interpretation of the 20 percent limitation urged by some
15 commenters, the Department continues to believe that the regulation must contain some point of reference '
za so that everyone concerned will know how to calculate whether a housing facility has complied with the 80
17 percent requirement during initial occupancy. However. the Department does not believe K would be �
is consistent with the intent of the statute to permit an owner or manager seeking to qualify for the"55 or Over" |
.o exemption to sell or rent the first 20 percent of the units to persons all of whom are under 55 years of age. �
zu Filling so many units with non-qualifying persons might create an impression thatthe housing is not intended '
21 for older persons. Further' the owner would not have any leeway to provide for units occupied bv under 55 |
zz surviving spouses and nurses or companions. For these reasons, the Depe� re
tained
paragraph �
za (o)(1) eeit was proposed. |
i
24
25 |n addition, aein8188303(a)(3). a new paragraph (d)(3) has been added to § 1U8.384of the final rule. It �
za states that housing satisfies the requirements of this section even though there are unite occupied by !
zr employees of the housing (and family members residing in the same unit) who are under 55 years of age �
zu provided they perform substantial duties directly related to the management or maintenance of the housing. '
zy Thus, as in§ 100.303, units occupied by employees of the housing who do not meet the age threshold are �
m not considered in determining a project's eligibility as housing for older persons.
!
az ,
sz "Significant Facilities and Services". Third. the Department received a great many comments asking for '
33 clarification of the phrase"yignifioantfacilities and services designed to meet the physical or social needs of �
m older persons."A large numberof commenters viewed the definition in proposed paragraph(b)(1)as requiring |
ys facilities and services on the order of what one might expect to find in a facility for severely disabled elderly /
3s persons who are not able to care for themselves. Other commenters want to qualify for the "55 or Over' �
37 exemption and want to know vvhateervioe�endfeoiUt�aemuetbeprovidedinorder�oquai�yforthe /
precisely |
3s exemption. .
39 '
^m Paragraph (b)(1)of the proposed rule stated that"significant facilities and services specifically designed to �
'u meet the physical or social needs of older persons"include an accessible physical environment,congregate
^o dining faci|ibee, eo(je| and recreational progrems, emergency and preventive health care or programs,
/a continuing education, welfare, information and counseling, recreational, homemaker, outside maintenance
�
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i and referral services,transportation tofacilitate accessto social services,and services dasignadtoencourage (
z and assist residents to use the services and facilities available to them.The list of significant facilities and �
s services designed to meet the physical or social needs of older persons in the proposed rule is drawn from
4 section 202(f) of the Housing Act of1g58. 12U.8.C. § 17O1q. listing examples of facilities and services for
s older persons.The House Report(at p.32)relies heavily upon the listing in section 202(f]i of the Housing Act |
s of 1959 in its discussion of such facilities. In addition,the proposed rule made it clear thatthe housing facility �
r need not have all of these features to qualify for the exemption.
i
a '
y Based upon the reaction hundreds of commenters had to the proposed definition of"significant facilities and
m services designed to meet the physical or social needs of older persons" it appears that the presence early
zz on in the definition of "congregate dining facilities" and on "accessible physical environment" may have
12 created an impression that only housing for older persons who are not capable of living independently would !
zs satisfythe requirements of paragraph(b)(1).The Department wishes to stress that a housing facility may have �
14 significant facilities and services designed to meet the physical or social needs of older persons and still �
|
zs provide housing for active older persons who live very independently,A housing facility,for example, need i
zs not necessarily have congregate dining facilities or an accessible physical environment in orderto qualify. In �
zr fact, many of the facilities and services on the list can readily be associated with active older persons.These �
is include social and ranraobono| programs, preventive health care, information and counseling, nooraotiono| �
zy services,and transportation to facilitate access to social services.Moreover,the listof services on this listwas
zo not intended to be exclusive.As a result of this reaction,the Department has reordered the list of services and
21 fooi|diasinthafino| ru|a. |noddiUon."mmlhare"hosbaanda|atedfronnthaUstbecaumaitoppaoreon|ytohova
zz relevance in the context of governmental programs for elderly persons which are covered by§ 100.301. {
'
zs i
24 The facilities and services designed to meetthe physical orsocial needs of older persons must be"significant"
zs in order to satisfy paragraph(b)(1). It is not possible forthe Department to define precisely what services and �
za foci|itiasmuutbaprasantbeforathayoranonsidared°signUivant."Thasarvinamondfoni|ibeswiUnanessoNy �
zr vary based on the geographic location and the needs of the residents. However,it is clear,for example,that \
zo the installation ofo ramp otthe front entrance ofo housing facility would not constitute o"siAmUicent"facility �
zy designed to meet the physical needs of older persons. Similarly, the provision of minor amenities--such as i
3u putting o couch in o laundry room and labeling it recreation nantar— would not constitute o"signifinent" |
31 facility designed to meet the social needs of older persons. House Report at 32.
32 }
33 "Important Housing Opportunities for Older Parsona". Some commenters suggested that the Deportment �
34 establish a"precertifi cation"procedure which would enable housing providers to seek HUD certification that �
ss a housing facility has"significant facilities and services designed to meet the physical or social needs of older |
se persons" or that the housing facility moUsfias the requirements of paragraph (b)'2\. One commenter
ar representing the interests ofmobile home pork owners argued that such o procedure would prevent many
3s lawsuits and"frivolous"administrative Gomplaintsof discrimination from beingfiled.The Department does not
ay believe at this early stage of the enforcement of the Fair Housing Amendments Act that there is a reasonable �
*o basis to conclude that many "frivolous" complaints mjU be filed unless o "pre-certification" procedure is .
41 established. Further, the Department does not believe that it has sufficient resources to support such o �
442 procedure. However, if experience with enforcement of the exemption for"55 or over" housing shows that
za such a procedure would be cost-effective the Department will consideradding a"pre-certification"procedure
/w in the future. /
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54 FF 3232- fmplemenfafion of the Fair Hoasina Amendments Act of 1988
1 The fourth area of major public comment concerns paragraph (b)(2) of the proposed rule.A housing facility
2 may qualify for the "55 or over"exemption even if it does not satisfy the requirements of paragraph (b)(1).
3 Under paragraph (b)(2), a housing facility that does not provide significant facilities and services specifically
4 designed to meet the physical or social needs of older persons may nonetheless qualify for the"55 or over"
s exemption. Such a housing facility must demonstrate that it is not practicable for it to provide significant
6 facilities and services designed to meet the physical or social needs of older persons, and must also
demonstrate that the housing facility is necessaryto provide important housing opportunities for older persons.
8
1 The proposed rule contained eight factors, among others, that the Department proposed to consider in
10 determining whether a housing facility satisfies the requirements of paragraph (b)(2). Paragraph(b)(2)was
n criticized by many commenters for not being sufficiently precise.These commenters state that listing eight
12 factors is not sufficient,especially since the proposed rule did not state how many(or how few)of the factors
13 must be fulfilled in order to obtain a waiver of the requirement of providing significant services and facilities.
14
1s Further, some commenters cited legislative history which they believe is helpful in construing the exception.
16 Senator Kennedy stated that the exception was intended "to be narrowly used only when it can be
17 demonstrated that the costs of providing the facilities and services would result in depriving low- and
is moderate-income persons of needed and desired housing. Independent and objective evidence must be
19 provided to establish impracticability." 134 Cong. Rec. S1549(daily ed.August 2, 1988)(statement of Sen.
20 Kennedy). Representative Edwards explained that § 807(b)(2)(C)(i) was "not intended to provide a broad
7.1 exemption * *"' 134 Cong. Rec. H6498(daily ed.August 8, 188) (statement of Representative Edwards).
z Mr. Edwards went on to explain the impracticability test as follows:
23
24 The fact that the facilities and services are expensive to provide is not alone sufficient to meet the standard
zs of impracticability. This standard cannot be satisfied only by estimates of increased costs, business
26 inefficiency or loss of profit.Independent and objective evidence must be provided to establish impracticability.
27 Mere opinion that the provision of such facilities and services is impracticable is not sufficient. Id.
zs
29 With regard to the requirement that the housing qualify as an"important housing opportunity for older persons"
3o Representative Edwards stated that it must be shown that"[ajffordable housing for older persons of low or
31 moderate incomes must not be otherwise available in the community." Id.
s2
33 The Department agrees that additional guidance is needed and the Department has been guided by this
34 legislative history in revising paragraph (b)(2) to provide for a somewhat more precise definition of this
35 exception.The first sentence of paragraph(b)(2),which mirrors the statute, is unchanged from the proposed
36 rule. The following sentence explicates this statutory test in a manner that is consistent with the legislative
37 history regarding this exception. It states that an owner or manager, in order to satisfy the requirements of
38 paragraph(b)(2), must demonstrate through credible and objective evidence that the provision of significant
30 facilities and services designed to meet the physical or social needs of older persons would result in depriving
40 older persons in the relevant geographic area of needed and desired housing.The Department believes that
41 the revised standard is both clearer and consistent with the intent of Congress.
42
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54 FR 3232-lmclementatian of the Fair Housing Amendments,Act of 1968
i. The eight factors in the proposed rule have been reduced to seven factors in the final rule. Specifically,the
2 first and second factors that appeared in the proposed rule have been consolidated and clarified in the final
3 rule. The seven relevant factors in the final rule are as follows'.
4
s (i)Whether the owner or manager of the housing facility has endeavored to provide significant facilities and
6 services designed to meet the physical or social needs of older persons either by the owner or some other
7 entity. Demonstrating that such services and facilities are more expensive to provide is not alone sufficient
s to demonstrate that the provision of such services is not practicable. The preceding sentence relating to the
9 cost of providing significant services and facilities is based on the legislative history. See 134 Cong. Rec.
10 H6498 (daily ed. August 8, 1988) (statement of Representative Edwards) ("The fact that the facilities and
ijL service[sic] are expensive to provide is not alone sufficient to meet the standard of impracticability.")
12
13 (ii) The amount of rent charged, if the dwellings are offered for rent. The price of the dwellings, if they are
14 offered for sale.
15
16 (iii)The income range of the residents of the housing facility.
17
1s (Iv)The demand for housing for older persons in the relevant geographic area.
19
20 (v) The range of housing choices for older persons within the relevant geographic area.
21
22 (vi) The availability of other similarly priced housing for older persons in the relevant geographic area. If
23 similarly priced housing far older persons with significant facilities and services is reasonably available in the
24 relevant geographic area,then the housing facility does not meet the requirements of paragraph (b)(2). The
2s second sentence is new and has been added to clarify the appropriate application of this factor.
26
27 (vii) The vacancy rate of the housing facility.
23
29 Subpart F--Interference, Coercion or Intimidation
3o Section 100.400 Prohibited interference, coercion or intimidation.
3j_ Subpart F provides the interpretation of the Department as to the conduct which constitutes a discriminatory
32 housing practice under section 818 of the Fair Housing Act.
33
34 Section 100.400(b)states that it is unlawful to coerce, intimidate,threaten or interfere with any person in the
3s exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that
36 person having aided or encouraged any person in the exercise or enjoyment of,any right granted or protected
37 by Part 100. Such conduct can also involve harassment of persons because of race, color, religion, sex,
3$ handicap, familial status, or national origin.
39
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3 The illustrations in this section also indicate that a broad range of activities can constitute a discriminatory
2 housing practice.Threatening or intimidating actions include acts against the possessions of persons, such
3 as damage to automobiles or vandalism,which limit a persons ability to have full enjoyment of a dwelling. In
4 addition, the protections against discrimination reach any person, including persons selling or renting
s dwellings and persons engaged in activities promoting fair housing. Further, persons who are not involved
6 in any aspect of the sale or rental of a dwelling are nonetheless prohibited from engaging in conduct to coerce,
7 intimidate,threaten or interfere with persons in connection with protected activities,or from retaliating against
s any person involved in anyway in a proceeding under the Fair Housing Act.
s
ao Part 10 -- Fair Housing Complaint Processing
11
12 Enforcement responsibility within HUD
is Generally,the proposed regulations placed the responsibilityforthe reasonable cause determination and the
14 prosecutorial functions with the General Counsel,while retaining the investigation and conciliation functions
ss with the Assistant Secretary for Fair Housing and Equal Opportunity.
16
17 Several commenters urged that the Department modify the rule to leave all aspects of Fair Housing
lh enforcement responsibility with the Assistant Secretary for Fair Housing and Equal Opportunity.Among other
1g arguments, the experience of the Assistant Secretary in administering the several civil rights-related
2o responsibilities of HUD was cited -- particularly the twenty years of experience in administering the Fair
21 Housing Act itself. In addition, commenters pointed out that the Civil Rights Act of 1968 provided for the
22 creation of a new HUD assistant secretary position -- clearly intended to serve as the lead official for civil
23 rights responsibilities of the Department.
24
2s The Department agrees with the commenters that full utilization of the Assistant Secretary's experience must
26 be assured, and that the original Fair Housing Act indeed intended that there be appointed an assistant
27 secretary specializing in civil rights concerns.Had the proposed rule suggested removal of the responsibilities
2.8 of the Assistant Secretary for Fair Housing and Equal Opportunity and the awarding of those responsibilities
29 to the General Counsel,the above-summarized arguments would be well-taken. No such proposal has been
30 made, however. Under the enforcement scheme set out in the proposed rule, the responsibilities of the
31 Assistant Secretary as they relate to Fair Housing enforcement have been retained,The Assistant Secretary
32 continues to have full responsibility for complaint intake, investigations, conciliations and for all related
33 communications with the parties concerning their procedural rights and obligations. Quite clearly, given the
34 greatly increased enforcement authority provided by the Fair Housing Amendments Act and the addition of
35 important newly protected classes, the responsibilities of the Assistant Secretary have been augmented
36 greatly.
37
38 It proves too much,however,to argue that the creation of a new assistant secretary's position in the 1968 Act
ss somehow implies a duty in the Secretary to delegate subsequently enacted authority to that single officer.
4o First,we note that the 1968 statute creating the new assistant secretary did not provide for administration or
41 judicial enforcement of the Act, but only for the investigation and attempted conciliation of complaints. More
42 importantly, both the 1968 Act and the 1988 Amendments Act refer, in all their substantive provisions, to
43 responsibilities of the Secretary of Housing and Urban Development,Nothing in either Act purports to require
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54 FR 3232- ttrn+emeotation of the Fair Housfrg Amendments Act of 1968
the Secretary to delegate this responsibility to any particular officer or officers. It is clear, then, that an
2 argument that the Secretary is legally bound to delegate his authority in a particular manner cannot be
3 supported.
4
s Commenters also argued that as a matter of policy, the delegation to the General Counsel is inappropriate.
6 Commenters noted that the Assistant Secretary for Fair Housing and Equal Opportunity does not share
7 responsibility with any other office of the Department relative to the Assistant Secretary's exercise of authority
s under other civil rights statutes.These commenters are correct--up to a point--although they ignore the fact
3 of HUD General Counsel participation in any and all matters involving civil rights and equal opportunity at the
10 stage where the Department becomes involved in formal enforcement, either through the initiation of
i1 administrative enforcement proceedings or the referral of matters to the Departmentof Justicefor the initiation
12 of civil actions.
1s
14 Given the clear intention of the amended Act that a HUD reasonable cause determination will create a virtual
15 certainty of litigation,either in an administrative tribunal or in a Federal District Court,it is not only rational and
1.6 sensible but consistent with current delegations of authority in the area of civil rights to provide that
17 responsibility for such determinations be in the hands of the Department's legal officer. Similarly, the
18 delegation of authority to the General Counsel to conduct hearings before administrative law judges under
19 the Fair Housing Act seems to the Department not only to be a rational decision, but a rather obvious one.
20 Such a division of responsibility is consistent with the practice of other agencies whose administrative
21 processes make a separation of functions necessary or desirable.
22
23 One commenter noted that proposed§109.16(a)provided thatthe Assistant Secretary is to make reasonable
24 cause determinations in advertising cases. The proposed rule intended to delegate all responsibility for
25 reasonable cause determinations to the General Counsel.This section has been revised.
26
27 Under the final rule, the General Counsel is delegated the responsibility for making the reasonable cause
2s determination and for prosecuting administrative cases underthe 1988 Amendments.One commenter noted
29 that the General Counsel also has the responsibility to defend against charges that HUD has violated the Fair
3o Housing Act.Whilethe number of such cases may be small,the commenter argued that proposed procedures
31 cast suspicion on the impartiality of the General Counsel in such matters.In the rare instances thatcomplaints
32 involving such circumstances are filed,the Secretarywill delegate the General Counsel's responsibility for the
33 reasonable cause determination and,where an administrative proceeding is conducted, HUD's prosecuting
34 duties to another qualified employee of the Department. Since such circumstances will rarely, if ever,occur,
3s the text of the rule has not been revised to reflect this eventuality.
36
37 The division of responsibility in the final rule has been modified slightly to transfer certain duties from the
38 General Counsel to the Assistant Secretary.These include:(1)The ability to elect to have the claims asserted
39 in a charge decided in a civil action where HUD is the complainant(§§ 103A10 and 104,410);(2)the duty to
4o notify the aggrieved person and the respondent when a reasonable cause determination can not be made
41 within described time periods(§104.400(c)); and (3)the duty to notify Federal,State and local licensing and
42 regulatory agencies under§ 104.935(a). In addition,the final rule has been revised to require the notification
43 of the Assistant Secretary at certain points during the administrative proceeding (see e,g. §§ 104.700(a),
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54 FR 3232-Implementation of the Fair Housing Amenndments Act of 1968
1 104.910(d), 104.920 and 104.930(d)).
2
3 Statutory limitations on HUD's complaint processing authority.
4 I n several instances,commenters suggested revisions to the proposed rules that cannot be adopted because
s they conflict with statutory limitations contained in the Fair Housing Act. The statutorily imperm"Issable
s proposals included:
7
s 1.Some commenters argued that the rules should require complainants to file their complaint within 60 days
9 of the date that an alleged discriminatory practice has occurred or terminated. Section 810(a)(1)(A)(i)of the
10 Act permit complainants to submit complaints not later than one year after an alleged discriminatory housing
11 practice has occurred or terminated. (See Subpart A.)
12
13 2.Commenters argued that respondents should havefrom 20 to 30 days to respond to the complaint.Section
14 810(a)(1)(B)(iii) of the Act provides that each respondent may file an answer to the complaint not later than
is 10 days from the date of receipt of the notice. (See§§ 103.50(b)(3)and 103.55.)
16
17 3. Commenters argued that the final rule should not permit the referral of cases to agencies until they are
1s found to be substantially equivalent under the new law, or should be revised to permit the complainant to
19 choose whether to permit the referral under such circumstances. Under section 810(f)(4), each agency
20 certified for the purposes of Title VI ll on the day before the enactment date must be considered certified with
21 respect to those matters for which the agency was certified on that date.The transition period is 40 months
22 from the date of enactment.Under section 810(f)(1),HUD is required to make these referrals.(See Part 115)
23
24 4. Several commenters urged HUD to retain the existing practice of making'a threshold determination to
25 resolve based on facts developed in the investigation before commencing conciliation,Such procedureswould
25 be contrary to section 810(b)(1)which requires HUD to engage in conciliation with respect to the complaint,
27 to the extent feasible,during the period beginning with the filing of the complaint and ending with the filing of
2e the charge or dismissal by HUD.
29
3o 5.Commenters objected to§103.330(b)which permits the nondisclosure of conciliation agreements,where
31 the aggrieved person and the respondent request the nondisclosure and the Assistant Secretary determines
32 that disclosure is not required to further any purpose of the Fair Housing Act. Under section 810(b)(4),
33 nondisclosure is permitted under such circumstances.
34
3s 6. Commenters objected to the requirement for the public disclosure of complaints dismissed based on a
35 finding of no probable cause.Section 810(g)(3) requires public disclosure.
37
38 Subpart A--Purpose and Definitions
39
4o Section 103.1 Purpose and applicability.
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
i Applicability. Except for complaints involving allegations of discriminatory housing practices occurring before
z and continuing afterthe effective date of the 1988 Amendments(March 12, 1989),the proposed rule provided
3 that:
a.
s -- Complaints alleging discriminatory housing practices that occurred before the effective date of the 1988
6 Amendments are governed by the procedures in Part 105.
7
8 --Complaints alleging discriminatory housing practices that occur on or after the effective date of the 1988"
9 Amendments are governed by the procedures in Part 103.
I6
ii For complaints alleging violations that occur before and continue after March 12, 1989, the proposed rule
72 provided:
14 --Complaints filed after March 12, 1989 would be processed under Part 103.
15
16 -- Complaints filed before March 12, 1989 would continue to be processed under Part 105; however, the
17 Department would provide the complainant with a reasonable opportunity to elect to have the complaint
18 processed under Part 103 in lieu of the Part 105 procedures.
I9
zc Commenters argued that the final rules must be revised to provide retroactive application of the Act's new
21 remedies and enforcement procedures to all complaints pending on March 12, 1989, including those that do
22 not involve continuing violations. Other commenters argued that the regulations should not apply to any
23 complaints filed under part 105 prior to March 12, 1989.
24
zs HUD has reviewed its determination regarding the applicability of the 1988 Amendments. Upon
26 reconsideration, HUD believes that the proposed rules unduly restrict the cases to which the new remedies
27 under the 1988 Amendments will be applied. it is clear that Congress did not intend the Act to receive the
z8 restricted application proposed by HUD.Significantly,the plain language of section 815 places no limitation
29 upon its applicability, but rather provides: "This Act and the amendments made by this Act shall take effect
m on the 180th day beginning after the date of enactment of the Act."At no point does the Act suggest that its
31 provisions should receive less than the broadest application of the effective date provision.
32
33 The general rule of statutory construction isthat remedial and procedural legislation not affecting vested rights
34 must be applied to any claim cognizable under the prior law that Is pending on the effective date orthat is filed
35 thereafter. Bradley v.Richmond School Board, 416 U.S.696 715-16(1974).While It is true that statutes that
36 affect substantive rights ordinarily may not be applied retroactively,United States v.Security Industrial Bank,
37 459 U.S. 70, 79 (1982), this principle has no applicability here. The 1988 Amendments (except as to
m discriminatory housing practices involving handicap and familial status) do not create new legal duties or
39 responsibilities. Rather,they merely provide a new process by which aggrieved persons may enforce existing
40 rights protected under Title Vill.Le.,The 1988Amendments create new procedures for the filing,investigation
47 and conciliation of complaints concerning discriminatory housing practices and strengthen the remedies
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54 FR 3232 - !m'!lernentation of the Fair Housing Am,endmonts Act of 19c"5
1 available to victims of housing discrimination by providing for administrative hearings, and by increasing the
2 availability of civil penalties,attorney's fees,etc.Because the new remedies and enforcement procedures do
3 not affect vested rights,retroactive application is entirely appropriate,unless a manifest injustice would result.
4 See,e.g.,Bradley,supra.(increased availability of attorney's fees);Friel v.Cessna Aircraft Co.,751 F.2d 1037
s (9th Cir. 1985)(extension of limitations period); Montana Power Co.,v.Federal Power Comm.,445 F.2d 739
6 (D.C. Cir. 1970) (change in tribunal); and Grummitt v. Sturgeon Bay Winter Sports Club, 354 F.2d 564(7th
7 Cir. 1965 (change in procedure)).
s
U To bring the final rule into conformance with the Act and the well-settled law, Parts 103 and 105 have been
10 revised. Under the final rule, Part 103 will be applicable to all complaints alleging discriminatory housing
11. practices on account of race, color, religion, sex or national origin pending on March 12, 1989 or filed
12 thereafter; and to all complaints alleging discriminatory housing practices on account of handicap or familial
13 status occurring on or after March 12, 1989. Part 105 will have no continuing validity and will be removed.
14
1s One ,commenter asked for clarification whether complaints that allege discriminatory housing practices
16 involving handicap and familial status that occur before March 12, 1989 and will continue after that date may
17 be filed priorto March 12, 1989. Discriminatory housing practices involving handicap or familial status do not
13 violate the Act until March 12, 1989. Since it will be impossible to predict whether an individual will continue
19 a previous practice after the practice becomes a violation of the Act, HUD will not accept any complaints
20 alleging such discrimination filed before March 12, 1989.To ensure that complainants are aware of their right
21 to file if the practice continues,the rejection will be accompanied by an explanation of the complainant's right
22 to refile after March 12, 1989.
23
24 Applicability of Part 103 to State and local agencies.Several commenters sought clarification concerning the
25 applicability of various requirements in Part 103(and Part 104)to complaints filed with or referred to State and
26 local agencies. Part 103 contains the procedures for the investigation and conciliation by HUD of complaints
27 filed under section 810 of the Act and Part 104 contains the rules of practice and procedure applied by HUD's
28 ALJs in administrative proceedings adjudicating charges issued under Part 103. These parts do not, by
2s themselves, impose any requirements on the processing of complaints at the State or local level. Part 115,
30 on the other hand, sets forth the criteria for HUD's certification that a State or local law is substantially
31 equivalent, and its requirements parallel many of the requirements contained in Parts 103 and 104.
32
33 Some commenters urged language specifically stating that certain provisions(e.g., HUD procedures for the
34 investigation of complaints)are not binding on State and local agencys.HUD believes that§§103.1, 104.10
3s and 115.1 clearly state the applicability of the parts and that further clarification is unnecessary,
36
37 Complaint processing and Section 504. Proposed§ 103.1(c) provided that HUD will conduct investigations
3s and conciliations in accordance with section 504 of the Rehabilitation Act of 1973 (29 US.C. 794). One
39 commenter argued that this paragraph should only apply when a complaint involves an allegation of
4o discrimination that is based on handicap.The proposed section was designed to provide for the reasonable
41 accommodation of persons with disabilities who are participants in the fair housing complaint process.The
42 provisions of this section were not intended to be limited to complaints involving allegations of discrimination
43 based on handicap. This section has been clarified in the final rule.
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EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of i 988
1 Section 103.9 Definitions.
2 In addition to revisions of aggrieved person, dwelling unit and person discussed in the comments to Part 100
3 above, comments on the definitions of personal service and receipt of notice were received.
4
5 One commenter argued that HUD should delete these proposed definitions and incorporate requirements for
6 personal service and for receipt of service contained in the Federal Rules of Civil Procedure. Another i
7 commenter urged HUD to abandon certified mail as a permissible means of service on non-agency
s participants because service maybe frustrated by an addressee's refusal to claim.HUD's current rules provide
9 for the service of documents by certified mail or through personal service. (see § 105.18). These methods
10 have not, as yet, presented significant practical difficulties in the processing of complaints and have been
i1 retained in the final rule.
12
13 Subpart B--Complaints
14
15 Section 103.10 Submission of information.
16 Proposed § 103.10 contains provisions governing the submission of information concerning alleged
17 discriminatory housing practices and notes that,if the submitted information warrants.HUD may concurrently
1s initiate compliance reviews under other civil rights authorities. In response to commenters, the Age
19 Discrimination Act of 1975 has been added to the list of civil rights authorities in this section and §103.5,and
20 minor editorial change has been made for clarity.
21
22 Section 103.15 Who may file complaints.
23 Section§103.15 permits any aggrieved person or the Assistant Secretary to file a complaint.One commenter
24 noted that individuals who are subject to housing discrimination are likely to be low-income persons who
25 cannot read,write,or express themselves articulately.The commenter suggested that§103.15 be amended
m to require HUD personnel to provide full and comprehensive assistance throughout the complaint process,
27 including assignment ofan attorney.Similar revisions were requested for§§103.10(a),103.30(b),103.300(b),
2s and 104.10(b).Section 103.15 also provides that a complaint maybe f led with the assistance of an authorized
29 representative of an aggrieved person, including any organization acting on behalf of an aggrieved person.
30 One commenter would modify this provision to require HUD to notify the authorized representative acting on
31 behalf of the aggrieved person, concerning the status of cases.
32
33 The Department agrees that it is vital that HUD provide full assistance to persons who wish to file a complaint
34 and that HUD continue to provide assistance throughout the complaint processing procedure. Accordingly,
35 the Department intends to pursue its current practice of providing appropriate assistance to such persons. In
36 addition,HUD will,at the request of a complainant,provide information concerning the status of the complaint
37 to an authorized representative in the same manner as such notification is provided to complainants.While
38 the Department intends to provide such information,HUD does not believe that it is necessary to codify these
39 policies in the regulations,
40
41 Section 103.20 Persons against whom complaints may be filed.
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54 FR 3232-tmolerrentaflor of the Fair.Housing Amendments Act of 1988
1 Under proposed § 103.20(a), a complaint may be filed against any person alleged to be engaged, to have
2 engaged, or to be about to engage in a discriminatory housing practice. Commenters urged the deletion of
3 language permitting complaints against respondents that are"about to engage" in a discriminatory housing
4 practice.The cited language is a necessary adjunct to the definition of aggrieved person found in the statute
5 ("Aggrieved person means any person who***believes that such person will be injured by a discriminatory
6 housing practice that is about to occur.")The cited regulatory provision is retained.
7
8 Proposed§103.20(b)provides that a complaint may also be filed against any person who directs or controls
9 or has the right to direct or control, the conduct of another person with respect to any aspect of the sale,
io rental,advertising, orfinancing of dwellings or the provision of brokerage services relating to the sale or rental
ii of dwelling, if that other person, acting within the scope of his or her authority as employee or agent of the
12 directing or controlling person, is engaged, has engaged or is about to engage in a discriminatory housing
13 practice.
14
15 Commenters argued that the definition of agency relationships described inthis paragraph is confusing,may
16 be too narrow, and does not correspond to the standards established by case law. Other commenters
17 suggested that this provision could be improved by the provision of examples drawn from case law and that
is problems concerning this section could be remedied by the deletion of the language"within the scope of his
i9 or her authority".
20
21 Paragraph (b) expands on the general provisions contained in § 103.20(a). This provision reflects HUD`s
22 current rules governing the types of persons against whom complaints may be filed (see § 105.13(b)).This
23 Part 105 regulation was adopted in the final rule issued June 27, 1988 (53 FR 24184). in that rule, HUD
24 explained that the provision was based on judicial precedent to the effect that persons involved in the sale,
2s rental or financing of dwellings have a nondelegable duty to assure that all conduct relating to any aspect of
26 the sale,rental orfinancing of dwellings complies with the Fair Housing Act and that a person who supervises,
27 directs or employs other persons can be legally responsible for actions of such other persons which violate
28 the Fair Housing Act.See U.S.v.Youhtan Construction Co.,370 F.Supp.643(N.D,Calif. 1973),modified as
29 to relief and affirmed,509 F.2d 623(9th Cir. 1975);Northside Realty v. U.S., 605 F.2d 1348(5th Cir. 1979);
3o Marr v. Rife, 503 F.2d 735(6th Cir. 1974); U.S. v. Northside Realty,474 F.2d 1164(5th Cir. 1973); Moore v.
31 Townsend, 525 F.2d 482 (7th Cir. 1975); Johnson v.Jerry Pals, Real Estate, 485 F.2d 528(7th Cir. 1973);
32 Dill°son v.AFBIC Development Corp.,420 F.Supp.572(S.D.Ala. 1976),and U.S.v.Real Estate Development
33 Corp., 347 F.Supp. 776 (N.D. Miss. 1972). Commenters on that rule asserted that the judicial decisions did
34 not establish a rule of liability without fault as the proposed rule(published October 16, 1984(49 FR 40528))
35 suggested; and that the decided cases focused only on the liability of a broker for conduct of his or her
36 salepersons, but did not manage absolute liability on the mere basis to direct or control without reference to
37 instructions, policies, compliance programs, and other actions of the principal. In response to these
38 comments, HUD announced that it was not its intent to impose absolute liability on any principal, but rather
39 to follow the existing case law of the liability of the principal. As a result of this discussion, the language
40 "acting within his or her authority"was added.The commenters on the proposed rule implementing the 1988
41 Amendments have presented no argument that convinces the Department that its current analysis of the case
42 law on this point is incorrect.
43
44 Section 103.25 Where to file complaints.
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EXHIBIT"B"
54 FR 3232- lmplomentatlo-r of the Falr Housing Amendments Act of 1988
z Section 103.25 permits aggrieved persons to provide information to be contained in a complaint by telephone
2 to HUD Regional and Field Offices.While some commenters have argued for the deletion of this procedure,
3 HUD does not believe that the filing of complaints should be limited in the manner the commenters suggest.
4 The final rule continues HUD's practice of reducing information provided by telephone to writing on the
s complaint form and sending the form to the aggrieved person for signature and affirmation.
6
7 A substantially equivalent agency complained that HUD's proposed procedures do not recognize that State
s and local agencies may have their own filing procedures and complaint formats. The agency argued that
9 HUD's regulations should state that complaints may be filed with such agencies in accordance with their filing
so procedures and that complaints submitted on the agency forms will be accepted if they meetthe requirements
11 of § 103.30(c). These requirements are contained in the regulation at §§ 103.25(a)(3) and 103.30(b). The
12 regulation is unchanged on this point.
13
14 Section 103.30 Form and content of the complaint.
15 In response to a commenter,§§103.30(a)and 103.55(a)have been amended to delete the requirement that
16 complaints and answers must be attested to before a notary public or a duly authorized representative of the
17 Assistant Secretary. This attestation burden is unnecessary. Section 810(a)(1)(D) requires only that
is complaints and answers be under oath and affirmation. Under 24 U.S.C. 1746, the oath and affirmation
ig requirement is satisfied if the complainant (or respondent) signs the following statement: "I declare under
20 penalty of perjury that the foregoing is true and correct."
21
22 Section 103.42 Amendment of complaint.
23 Section 103.42 has been revised to clarify that complaints may be reasonably and fairly amended at any time
24 and that the list of circumstances under which complaints may be amended is illustrative only.
u
26 Sections 103.45 Service of notice on aggrieved person and 103.50 Notification of respondent; joinder of
27 additional or substitute respondents.
2s
29 Section 810(a)(1)(13)(1) of the Act requires the Secretary to serve notice upon the aggrieved person
3o acknowledging the filing of a complaint and advising the person of the time limits and choice of forums
31 provided under Title Vill. Section 810(a)(1)(B)(ii) of the Act requires the Secretary to serve a notice on the
32 respondent within 10 days of the filing of the complaint(or within 10 days of the identification of a substitute
33 or additional respondent).This notice must identify the alleged discriminatory housing practice and advise the
34 respondent of the procedural rights and obligations of respondents under Title Vill,and include a copy of the
35 complaint.These sections are implemented at§§ 103.45 and 103.50 respectively.
36
37 Commenters emphasized the importance of the notice to aggrieved persons and respondents and suggested
38 various additions to and modifications of the proposed regulations. The suggested changes included the
39 addition of a requirement forthe service of copies of Title Vill,applicable regulations and forms,and revisions
40 of the description of the procedural rights and obligations under Title Vill and related laws to provide greater
41 detail.
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 The regulation at§§ 103.45 and 103.50 describes, in general terms,the notification that will be provided to
2 aggrieved persons and respondents. HUD intends to develop forms consistent with these regulatory
3 provisions that will define with greater detail the procedural rights and obligations of the parties under the
4 complaint processing procedures, and that will describe the additional information that will be provided to
s assistthe parties.While HUD does not believethat it is necessary to detail these provisions in the regulations,
6 HUD will take the comments on these sections into consideration in developing its notification forms.
8 Section 103.55 Answer to complaint.
s One commenter argued that§ 103.55(Answer to complaint) should be revised to state that the respondent
10 is under no obligation to file an answer and that a decision not to answer will have no impact on the
11 respondent's position in the case.This section clearly provides that the filing of an answer is permissive.Since
12 answers will generally expedite complaint processing,the regulations should not include provisions that would
13 discourage their filing.
14
1.s Subpart C --Referral of Complaints to State and Local Agencies
5
:-7 Section 103.100 Notification and referral to substantially equivalent State or local agencies.
s Section 103.100 states the pro cedu res fo r t he notification and referral of complaints to substantially equivalent
19 State and local agencies and provides for the notification of the aggrieved person and the respondent of the
2a referrals, including the notification of the right of the aggrieved person to commence a civil action under
21 section 813 of the Fair Housing Act. A commenter suggested that the notification under this section (and
22 under§ 103.115--Notification upon reactivation)also state that a suit may be filed in State court as well as
23 Federal court.The proposed revision has not been made since State and local jurisdictions must provide such
24 notifications to the complainant and the respondent as a requirement of certification(see§115.3(a)(1)(ii)and
25 (iii).
26
27 Section 103.110 Reactivation of referred complaints.
29 Under§ 103.110, HUD will reactivate a referral complaint under three circumstances. Comments regarding
29 each of these circumstances are discussed below.
30
31 Consensual reactivation. The complaint may be reactivated when a substantially equivalent State or local
32 agency consents to the reactivation.In response to a comment,this section has been clarified to add that the
33 Assistant Secretary may reactivate a complaint with the consent or at the request of the agency.
34
35 Prompt processing.The complaint may be reactivated if the substantially equivalent State or local agencyfails
36 to commence proceedings with respect to the complaint within 30 days of the date that the agency received
37 the notification and referral of the complaint,orthe agency commenced proceedings within this 30-day period.
3s but the Assistant Secretary determines that the agency has failed to carry the proceedings foRvard with
39 reasonable promptness. HUD will not reactivate a complaint under these conditions, however, until the
4o appropriate HU D Regional Office has conferred with the agency to determine the reason for the delay in the
41 processing of the complaint. If the Assistant Secretary believes that the agency will proceed expeditiously
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EXHOB0F"B"
z following the conference, HUD may leave the complaint with the agency for a reasonable time.
2 `
3 While commenters supported the provision for consultation prior to reactivation, several changes were �
* recommended. Commenters suggested that the regulations should provide for a written notice announcing `
s the time and place for the conference and stating the reasons that the proceeding may be reactivated.
s Consultation contemplated underthis section will be an informal process.In many instances,HUD anticipates ..
r that the consultation will be best accomplished through such maamunaa as ate|aphone. rather than a
n face-to-face,consultation.To ensure that the procedures to be used are flexible and best suited to the certified
e agency,the procedures for consultation will be negotiated with each certified agency and incorporated in the
zn memorandum of understanding.The proposed change is not included in the final rule.
12 In order to prevent arbitrary actions by the regional offices, commenters recommended that HUD establish |
m criteria for determining when an agency has failed to act with reasonable promptness.Specific suggestions
14 included placing an upper limit on the amount oftime that HUD may leave a complaint with an agency; and
15 establishing procedures for the identification and time limits for processing of specific types of cases that
/
16 require a greater processing time(i.e.` systemic maaea). .
z,
.8 The determination that an agency has failed to act with reasonable promptness is one that must be made on !
19 a case-by-case basis through consultation With the certified agency. Given the numerous factors that must �
m be considered (a.g., the subject matter, the number of aggrieved peraona, the complexity of the issues �
zz involved in the mmp�aintth�prognaaamad�bythaaA�no�ainwath� ns��rna| fth n �caae. ihemmrk|oadand i
complaint, |
zz resources available to the certified agency,scheduling difficulties between the agency,the aggrieved person �
z» and the respondent, e1o.). HUD does not believe that h would be worthwhile to set forth the list ofall relevant
24 factors that may reflect a determination that an agency has failed to act with reasonable promptness. (
25
26 Some commenters have argued that HUD's failure to provide greater specificity with regard to the issue of
zr reasonable promptness and the reactivation of complaints is contrary to the goal of the 1988 Amendments |
zo to achieve expeditious resolution of complaints. HUD notea, however, that certified agencies must meet
h performance standards for initial and continued certification, including limitations on the time for
�
zn various p� rman ' (
so processing of complaints(see§115.4).HUD believes that these limitations and the provisions for reactivation
az for failure to act with reasonable promptness are sufficient to serve the purposes of the Act. �
|
uz /
33 Aoommen&ar requested regulatory clarification dofiningwhat ia meant by=oommenoed proceedings".Because �
»* the 1888 Amendments provide for conciliation beginning aa early aathe filing of the charge,this term,aaused
ss in the final rule, could mean the start of investigation or the start of conciliation.Since the initial investigation
aa or conciliation activity tobe conducted will vary from agency to agency,HUD has not defined commencement |
sr of proceedings in the regulation. This term will be defined in the memorandum ofunderstanding with each /
3s agency and will be based on the individual agency's procedures.
3» !
'm Oeoertifiouhon.Complaints may also be reactivated if the Assistant Secretary determines that the agency no '
*z longer qualifies for recognition as a substantially equivalent State or local agency and may not accept interim '
*z referrals with respect to the alleged discriminatory housing practice. No comments were received on this
EXHIBIT 1113"
Pege -G2-
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�f�n, Q l K��
8B -3ql- ""~". u. - ���
EXHIBIT."B"
54 FR 3232-Implementation of thp.Fair Housing Amendments Act of.!988
1 issue.
2
3 Section 103.115 Notification upon reactivation.
4 Under§103.115,the Assistant Secretary is required to notify the certified State or local agency,the aggrieved
s person and the respondent of the reactivation of a complaint. A commenter noted that HUD staff often will
6 notify the parties that they do not need to continue to cooperate with the certified agency after reactivation.
7 The commenter argued that the notification in§103.115 should clearly indicate that the agency may continue
s to process the complaint after reactivation and that the parties should continue to cooperate with such efforts.
10 HUD recognizes the certified agency's responsibility under State and local law to continue processing
1i complaints following reactivation. The final rule has been amended to assure that the parties are aware of
12 these responsibilities.
13
14 Subpart D --Investigation Procedures
15
16 Procedural steps prior to investigation and conciliation
17 One commenter, a mortgage banking association, feared that individuals frustrated by the rejection of loan
1s applications for legitimate underwriting reasons will use the fair housing complaint process to appeal their
19 rejection. The commenter urged HUD to provide a screening process to eliminate those complaints that fall
20 outside of the fair housing area. If a complaint,on its face,sets forth an allegation of a discriminatory housing
21 practice,HUD is obligated to accept the complaint and process it under its procedures.HUD cannot,and has
22 not, provided a"screening process" to eliminate such complaints.
23
24 Section 103.200 Investigations.
25 HUD-initiated investigations. Upon the filing of a complaint, the Assistant Secretary is required to initiate an
26 investigation.In addition to investigations initiated by complaints,the 1988 amendments permit HUD to initiate
27 an investigation of housing practices to determine whether a complaint should be filed under Subpart B(see
28 section 810(a)(1)(A)(iii) of the Act). The proposed rule would permit such investigations upon the written
29 direction of the Assistant Secretary.
30
31 While many commenters supported the provisions permitting HUD to initiate complaints, they opposed the
32 requirement that these investigations may be initiated only upon the written direction of the Assistant
33 Secretary. Commenters argued that the requirement is impractical, will delay investigations and should be
34 stricken. As an alternative, the commenters suggested that the regulations provide that the Assistant
35 Secretary may delegate authority to the regions to initiate investigations.under certain circumstances.
36
37 HUD emphasizes that the requirement for prior approval applies only to those investigations that are initiated
38 by HUD. in the absence of a complaint alleging a discriminatory housing practice made by an aggrieved
39 person, HUD believes that the approval of the Assistant Secretary is necessary to ensure that sufficient
4o grounds for investigation exist and to ensure the efficient utilization of resources. While the text of the rule
41 states that the Assistant Secretary will make such approvals, as the Department develops uniform internal
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'
EXMNB0F"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1.988
1 standardsto govern the initiation of investigations and gains experiencewith HUD-initiated investigations,the |
z Assistant Secretary will make appropriate delegations of authority for the initiation of investigations to the
3 regional offices.Such delegations of authority can be made by Federal Register notice without the necessity
4 of ru|emaNng procedure.
s
o Testing duhng investigations. One commenter argued that aeodun 103.200 should provide that HUD will |
r conduct professional testing nr will fund other groups to conduct testing during the investigation stage. In
u connection with this revioinn, the commenters urge HUD to establish (with the assistance of housing
p professionals)the standards for conducting tests,what the tests should measure and the criteria to be used
iu in determining whether discrimination exists. !
12 Testing has been aunodnnad by court decisions as an appropriate and essential tool of fair housing i
13 enforcement, and HUD will consider evidence developed through testing or auditing by fair housing groups `
14 or representatives of an aggrieved person in its investigations. HUD staff, however, does not engage in |
zs testing. Funding for private entities conducting projects designed to enforce the Fair Housing Ad and �
zo substantially equivalent fair housing laws will be permitted under the Fair Housing Initiatives Program /
�
17 (proposed rule published July 7, 1988 (53 FFl2567S)). �
�
zu �
zy Section 1U3.205 Systemic processing. |
|
zu Section 1O3.2O5 provides fnrthesystemic processing of complaints.One commenter objected tn the inclusion i
zz of this provision. The commenter argued that HUD's processing should be limited to the specific complaint, �
22 not other fair housing issues.
2.3
24 Section 810 clearly contemplates the investigation of matters related to.but notspecificallyaUegedin,the filed
25 oomp|aint. (E.g.. section 810(g)(2)(B) provides that the charge need not be limited to the facts or grounds
zs alleged in the filed complaint.) The purpose of systemic processing is to provide for the investigation of |
27 discriminatory housing practices that are pervasive or institutional in nature and for the processing of |
zo complaints that involve complex issues, involve novel questions of fact or law, or affect a large number of .
persons. HUD �
ze ' ` ~ �
�u ' ndwnuldundermnineHUD'eabi\hyboaddnaaeonmplexiaauea.Thepnopnaadohangehaonntbeenmadein !
31 the final nu\e-
3z /
!
sa Section 1O3.215 Conduct nfinvestigations. /
34 Section 103.215(a) continues HUD'a existing practice of seeking the voluntary nnnpenaUnn of persons to |
us obtain access to information necessary to further the investigation. One commenter argued that this sectI on
36 serves no useful purpose. Much of the information obtained through HUD's investigations is provided through |
/
ar cooperative efforts ratherthan through procedural discovery techniques.In recognition of the success of these �
an efforts, paragraph (a) ie being retained.
ay |
*u Section 103,215(b)states that the Assistant Secretary and the respondent may conduct discovery in aid of
41 the investigation by the same methods and to the same extent that parties may conduct discovery in an
42 administrative hearing under Part 104. except Secretary would have the power to issue
i
. �
EXHIBKT"B" `
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EXHIBIT"B"
54 FR 3242-tmpterrerta°ion of the Pair Houstng Amendments Act of 1988_
z. subpoenas as described in§ 104.590 in support of the investigation or at the request of the respondent.One
2 commenter argued that paragraph (b) does not comport with the statute and appears to unnecessarily
3 complicate discovery. The commenter suggested the substitution of language directing that discovery and
4 subpoenas be issued in the same manner as in civil actions in the United States District Court for the district
s in which the investigation is taking place.
7 The reference in the rule to the Part 104 procedures provides uniformity in discovery techniques while
s assuring compliance with the statutory requirement in section 811, which provide that discovery and
9 subpoenas be issued in the same manner as civil actions in the United States for the district in which the
i.o investigation is taking place. (See§§ 104.500(a) and 104.590(a)).The rule is unchanged.
iT
12 Another commenter argued that since HUD should be neutral with respect to the parties during the
13 investigation,there is no reason to deny the aggrieved person the right to conduct discovery while providing
14 this same right to the respondent.While HUD is neutral with respectto the parties,the parties'positions during
is the investigation are not equal.The respondent is the focus of an investigation aimed at determining whether
16 he or she has committed a discriminatory housing practice and,thus, must be offered the ability to discover
17 information in its own defense. The complaining party, on the other hand, by filing a complaint rather than
m pursuing its own civil action under section 813, places the conduct of the investigation in HUD's hands and
i9 will not be allowed to conduct separate discovery. HUD notes that the Fair Housing Act does not foreclose
29 a discovery avenue to aggrieved persons who have filed complaints, since the complainant may file a civil
21 action under section 813(a)with regard to the alleged discriminatory housing practice and obtain discovery
2 through the court proceeding.
23
24 Subpoenas issued by the Assistant Secretary would require the approval of the General Counsel before
is issuance. Some commenters argued that only one entity should be involved in the issuance of subpoenas
26 during the investigation. These commenters would delete the references to General Counsel's approval of
27 subpoena issuances. Subpoenas issued by HUD in furtherance of an investigation may be challenged or
zs enforced through judicial proceedings. Since the legal sufficiency of the subpoena will be at issue, it is
29 necessary to ensure that the issuance is justified.Accordingly,the rule continues to provide for review by the
3o General Counsel,A minor clarifying change has been included limiting the General Counsel's review to legal
s: issues.
32
33 Section 103.220 Cooperation of Federal, State and local agencies.
34 Section § 103.220 reflects provisions currently contained in Part 105 which permit the Assistant Secretary,
35 in processing Fair Housing Act complaints,to seek the cooperation and utilize the services of State and local
3e agencies and of other appropriate Federal agencies.Proposed§103,220 also contained language designed
37 to ensure that other Federal agencies are aware of their responsibility under section 808(d)and(e)of theAct
38 and under Executive Order No, 12259.
39
40 Upon review,HUD has concluded that proposed§103.220 may generate confusion concerning the agencies'
41 obligations to provide information during the investigation process and their duty to ensure that programs and
42 activities are administered in a manner that will affirmatively further fair housing and their duty to cooperate
43 with the Assistant Secretary in furthering the purposes of the Fair Housing Act, including the conduct of
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54 FR 3232- implementation of the Fa-r.Housing Amendments Act of 1988
1 investigations.To clarify these provisions, § 103.220 has been revised to state that the Assistant Secretary,
2 in processing Fair Housing Act complaints,may seek the cooperation and utilize the services of Federal,State
3 or local agencies, including any agency having regulatory or supervisory authority over financial institutions.
4 Provisions governing other agencies' duties to affirmatively further fair housing and for cooperating in
5 furthering the purposes of the Fair Housing Act have been moved to a new§ 103.515 entitled 'Actions by
5 other agencies".
7
s One commenter argued that this section does not dearly announce what type of cooperation HUD will
9 generally expect of banking regulators, or what role these agencies will play in providing material for
io investigations. The commenter also asserted that it is unclear whether material generated by banking
ii regulators or financial institutions in response to regulatory requirements and for purposes unrelated to the
12 proposed rule would, contrary to existing banking policy, become public documents. Another commenter
13 supported the aims of§ 103.220 but suggested specific regulatory provisions designed to address the duty
14 of other agencies to cooperate in investigations and procedures to be followed in pursuing discovery from
i5 such agencies.
16
17 HUD intends to review and upgrade its memoranda of understanding with covered agencies to cover our
is cooperative understandings concerning the provision of in formation to HUD under the Fair Housing Act,
19 including information to be provided pursuant to investigations.All terms and conditions of HUD access will
20 be addressed in these agreements. Accordingly, it is not necessary to provide more specific regulations in
21 this area.
22
23 Section 103.225 Completion of investigation.
24 Completion of investigation.Section 103.230 states that the investigation will remain open until the reasonable
v cause determination is made. A commenter argued that the General Counsel, who is charged with making
25 the reasonable cause determination, could remove a case from the Assistant Secretary's control by issuing
27 a determination on reasonable cause before the complaint is fully investigated. This commenter felt that
2s conciliation should be available until the complaint is transferred by the Assistant Secretary to the General
2s Counsel for a reasonable cause determination and the General Counsel has filed a charge or dismissed the
3o complaint. To remedy this problem, § 103.400(c)(1) has been revised to provide that the General Counsel
31 shall make the reasonable cause determination only after the Assistant Secretary forwards the matter for
32 consideration.
33
34 Deadline for completion of investigation. Section 810(a)(1)(B)(iv) and (C) provide that HUD must complete
35 investigations within 100 days after the filing of the compliant(or,when a complaint has been referred to a
36 substantially equivalent State or local agency and reactivated,within 100 days after service of the notification
37 of reactivation), unless it is impracticable to do so. If the investigation cannot be completed within this time
38 limit,HUD is required to notify the aggrieved person and the respondent of the reasons forthe delay.Section
39 810(g)(1) requires HUD to make the reasonable cause determination within the same 100-day time period,
4o and to provide notification of the reasons for any delay.These requirements were included in§§ 103.225 and
41 103.400(c)of the proposed rule.
42
43 Several commenters requested deletion of the impracticability exception.The impracticability exception was
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1 a recognition by Congress that there may be circumstances where investigations may not be completed,and
2 the reasonable cause determination made,within the prescribed 100-day period.While HUD intends to meet
3 these deadlines whenever it is within its power to do so, it is concerned that the imposition of a strict 100-day
4 deadline will not recognize the need for a lengthier investigation in complaints involving complex issues or
s recalcitrant respondents, and that respondents could argue for the dismissal of an otherwise meritorious
a complaint based on the failure to complete an investigation. Since HUD perceives that no valid fair
7 housing-related goal would be served by imposing a strict 100-day deadline in all cases,the impracticability
standard has been retained.
J
io Other commenters argued that the regulation must clearly identify the circumstances under which it will be
11 impracticable to complete the investigation or issue a reasonable cause determination within the 100-day
12 period.These commenters suggested that impracticability be defined as extraordinary circumstances in the
13 specific case and that the rule should state that the routine processing of other cases will not be grounds for
14 a finding of impracticability. The range of circumstances that could legitimately cause delay in a case is
is numerous, and HUD is not prepared to identify all possible circumstances that would make it"impracticable"
is to take the described actions within the prescribed time period. Moreover, even if HUD were to articulate all
17 such circumstances, it would not preclude the consideration of the demands upon HUD's resources caused
18 by other docketed cases.Such a definition would fail to recognize that even the best-managed case inventory
ig system may not posses sthe excess capacity to respond to extraordinary demands upon resources.
20
Section 103.230 Final investigative report(FiR).
22 Requirements governing the contents of the investigative report are codified at§ 103,230. Paragraph(a)(1)
23 of this section provides that the investigative report will disclose the names and dates of contacts with
24 witnesses,but wi Il not disclose the names of witnesses that request anonymity.As noted in the rule,however,
25 HUD may be required to disclose the names of such witnesses during the course of an administrative hearing
26 under Part 104 or in a civil action under Title Vlll. Commenters argued that the provision for nondisclosure
27 of the identity of witnesses should be eliminated. The questioned provision merely continues HUD's current
28 policy with regard to the disclosure of the identity of witnesses.Contrary to the allegations of the commenters,
29 this policy has not undermined the credibility of HUD's investigations nor has it stifled conciliation efforts.The
30 provision has been retained in the final rule.
31
32 One commenter argued that the regulations also should bar the disclosure of personal information about third
33 parties and safeguard information that potentially could endanger the physical safety of the parties or of third
34 party.While HUD's final investigative report will avoid the inclusion of extraneous information,it is impossible
35 for HUD to bar the disclosure of all information about third parties and to guarantee the individual safety of
36 parties or of a third party.The proposed provision has not been included.
37
3s One commenter was concerned that the format for the investigative report may not provide an adequate basis
39 for a reasonable cause determination. The investigative report will not be the only document available in
40 connection with the making of a reasonable cause determination. The actual statements of witnesses and
41 documentary evidence as well as the analysis of the investigation also will be considered.Internal procedures
42 relating to these matters will be developed by HUD.Such procedures are not appropriate for inclusion in this
43 rule.
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i Commenters urged that the FIR requirements be expanded to include a recommendation by the investigator
2 on the reasonable cause determination and to include the facts and legal basis for the investigator's
3 recommendation.As a matter of internal policy, HUD anticipates that the views of the investigator with regard
4 to the reasonable cause determination will be communicated to the General Counsel's office.HUD does not
s believe that it is necessary to incorporate this requirement in the regulation.
6
7 As required under section 810(d)(2)of the Act,§103.230(c)provides that the Assistant Secretary shall make
s information derived from an investigation, including the final investigative report, available to the aggrieved
9 person and the respondent, upon request, at any time following the completion of the investigation. In
io response to a commenter, the final rule has been revised to require HUD, following the completion of the
si investigation,to notify the aggrieved person and the respondent that the FIR is complete and will be provided
12 or upon request.Under most circumstances,the notification will be provided with the charge,where a charge
13 is issued under§ 103.405, or with the notice of dismissal under§ 104.400(a)(2).
24
is Subpart E --Conciliation Procedures
16
17 Section 103.310 Conciliation agreement.
Is If conciliation is successful, the terms of the settlement are reduced to a written conciliation agreement.
ig Section 810(b)(2) of the Act provides that a conciliation agreement shall be an agreement between the
20 respondent and the complainant, and shall be subject to the approval of the Secretary. Section 103.310(b)
21 incorporates these requirements and states that the Assistant Secretary will indicate HUD approval of the
22 conciliation agreement by signing the agreement.
23
24 The final rule makes a minor revision to this provision. Under the proposed rule, if HUD is the complainant,
25 the Assistant Secretary would execute the agreement only if the aggrieved person is satisfied with the relief
26 provided to protect his or her interest.The final rule recognizes that there may be circumstances where HUD
27 may file a complaint that identifiesa class of aggrieved persons,ratherthan specific aggrieved persons.Under
28 such circumstances it would be impossible to determine if all aggrieved persons in the class are satisfied with
29 the relief accorded.Accordingly,the final rule permits the Assistant Secretary to execute the agreement if all
3c aggrieved persons named in the compliant filed by HUD are satisfied with the relief provided to protect their
31 interests.
32
33 Section 103.310(b)(2)would preserve the General Counsel's ability to issue a charge under§103.405,where
34 the aggrieved person and the respondent have executed a conciliation agreement that has not been approved
3s by the Assistant Secretary.
36
37 Commenters argued that HUD should not be permitted to commence or continue the investigation once an
38 agreement is reached between the aggrieved party and the respondent. The commenters argued that the
39 retention of this provision would "chill" conciliation agreements between the aggrieved person and the
4e respondent and would serve no purpose since the Assistant Secretary will have right to initiate complaints
41 under the 1988 Amendments. HUD could lose the ability to initiate a new complaint if the time period for the
42 filing of the complaint has passed. Moreover,it would be wasteful of administrative resourcesto require HUD
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1 to file another complaint and to maintain a second case file under these circumstances.The final rule does
z not adopt the commenter's suggestion.
3
4 Section 103.315 Relief sought for aggrieved persons.
5 Section 103.315 lists the types of relief that maybe sought for the aggrieved person during conciliation.Under .
6 paragraph (a)(1), monetary relief in the form of damages, including damages caused by humiliation or
7 embarassment and attorneys fees. One commenter argued that monetary relief should be limited to
s "compensatory" damages. Another commenter argued against the provision of damages for humiliation or
9 embarrassment,stating that such a practice would result in extraordinary and unreasonable damage awards.
10
11 HUD has left paragraph (a)(1) unchanged. Damages for humiliation and embarrassment and
12 noncompensatory damages.(i.e.., punitive and exemplary damages) can be awarded in civil actions brought
13 under Title Vill. Since respondents will seek a full release of all claims as a part of the conciliation, the
14 regulation should permit negotiations thattake such factors into account as a part of the settlement.Although
i5 monetary damages other than actual damages are usually not provided for in a conciliation agreement, it is
16 HUD's intent that the rule not preclude the possibility of seeking punitive or exemplary damages for an
17 aggrieved person in an appropriate situation.
is
i9 Paragraph (a)(2) provides for other make-whole relief, including access to the dwelling at issue or to a
zo comparable dwelling,the provision of services orfacilities in connection with a dwelling,or other specific relief.
21 This provision has been amended to provide for"other equitable relief, including but not limited to"the listed
22 actions.While one commenter felt that the provision for access to a comparable dwelling was redundant,HUD
23 believes that the inclusion of this provision is appropriate to cover situations where the original dwelling at
24 issue is no longer available.
25
26 Commenters argued that the provisions permitting the binding arbitration of disputes arising out of the
27 complaint could be improved by the addition of a description of the rules and procedures that Wil be used in
28 arbitration. This change has not been made. HUD wishes to keep the arbitration remedy as flexible as
z9 possible in order that individual aggrieved persons and respondents will have the opportunity to adopt the
30 procedures that will best suit their circumstances.
31
32 Section 103.320 Provisions sought for the public interest.
33 Section 103.320 lists the types of provisions that may be sought for the vindication of the public interest.
34 Commenters argued that the regulations should announce the standards that HUD will use in determining
35 whether a conciliation agreement will adequately vindicate the public interest. No useful purpose would be
36 served by listing every form of public interest that HUD may protect with conciliation agreement provisions.
37 These provisions are often tailored to the circumstances of particular cases.The suggested change has not
3s been adopted.
39
40 One commenter noted that civil penalties may be assessed in the administrative proceeding and the civil
41 action.This commenter urged HUD to add a new provision permitting the seeking of civil penalties of up to
42 $50,000 in conciliation.As noted above,HUD has not precluded the negotiation of damages in lieu of possible
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1 court-awarded punitive damages on behalf of the aggrieved person in conciliation,because such agreements
z are made in return forthe full release by the aggrieved person of all claims against the respondent.However,
3 since the public interest is vindicated by ensuring future compliance and by rectifying the effects of past
4 discriminatory housing practices,ratherthan penalizing the respondent for such practices,civil penalties have
s not been added under§103.320.
6
7 One commenter argued that HUD should be permitted to seek compensation for private fair housing groups
a that have participated in mediation or investigation before the complaint is filed.HUD recognizes that private
9 fair housing groups often play a significant role in assisting and referring complaints on a Federal and State
10 level, and in providing initial investigation and mediation assistance that is often useful in handling the
11 complaint after it is filed. However, HUD does not believe that the conciliation agreement is an appropriate
12 device forthe recovery of such compensation on behalf of the fair housing group in any case where the group
13 is not an aggrieved person. In other instances, HUD fears that attempts to recover compensation for such
14 groups would be viewed as collusion between HUD and the groups.
15
16
17 Section 103.330 Prohibitions and requirements with respect to disclosure of information obtained during
18 conciliation, and§ 103.300(a) Participation as conciliator and investigator.
14 Under section 810(d), nothing said or done in the course of conciliation may be made public or used as
zo evidence in a subsequent proceeding under Title Vill without the written consent of the persons concerned.
21 Proposed§ 103.330(a) implemented this provision with the additional statement that information disclosed
zz during conciliation would not be used in the investigation of the complaint.
23
24 Upon reconsideration,HUD has decidedto remove the additional statement concerning information disclosed
zs during conciliation.By barring the use of conciliation statements or conduct"in an investigation",the proposed
zs rule imposed greater restraints on the use of such information than are imposed under the statute. The
27 statutory language represents a balance between the need to encourage candor in conciliation discussions
za and the need for a full development of the facts in the investigation and litigation of the complaint. The '
zo proposed language, in staking a different balance, may not conform to the statutory intent.
30
31 Although it is fairly obvious that statements made during conciliation might provide useful investigative leads,
37 Congress did not preclude the use of such statements. The real concern of Congress was the effect on
33 conciliation if statements made or conduct exhibited during conciliation were admissible in a later
34 administrative proceeding or civil action.
35
36 By barring the investigative use of conciliation statements and conduct, HUD invites both complainants and
37 respondents to argue that the investigation has somehow been"tainted" by information obtained during the
3s conciliation. This would invite wasteful litigation concerning whether HUD conducted its conciliation and
33 investigation activities in accordance with its own regulations and would provide parties with an incentive to
40 insulate themselves from the use of evidence at trial, by disclosing key facts during conciliation.
41
4z in the final rule, the prohibition against the use of conciliation information in investigations will be dropped.
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54 FR 323'-impiementation of the Fair Housing Amendments Act of 1988
1 HUD notes that the use of such information in administrative hearings and civil actions will be governed by
2 Rule 408 of the Federal Rules of Evidence. (See§ 104.730) Rule 408 makes inadmissible at trial "evidence
3 of conduct or statements made in compromise negotiations," but "does not require the exclusion of any
4 evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."
s
6 As a related matter,§103.300(c)limits the participation of officers,employees,and agents of HUD engaged
7 in the investigation of a complaint under Part 103 in the conciliation of the same complaint or in any factually
a related complaint.While the original purpose of this general limitation was to ensure that information gathered
9 during the conciliation process is not used in the investigation of the complaint, HUD continues to believe that
10 conciliation of individual complaints can be best promoted where the investigation and conciliation functions
ii are kept separate, so§103.300(c)is being retained despite the adjustments made in§ 103.330, discussed
12 above.
13
14 Section 103.300(c) continues to recognize that there may be circumstances where a dual role for the HUD
1s employee may be necessary. This section permits the investigator to suspend fact finding and engage in
16 efforts to resolve the complaint by conciliation where the rights of the aggrieved person and the respondent
17 can be protected and the prohibitions with respect to the disclosure of information obtained during conciliation
19 can be observed.HUD emphasizes that such conciliations will generally occurwhere the investigator,during
19 the course of investigation, is requested by the parties to conciliate and will rarely be initiated by the
20 investigator.
21
22 One commenter, concerned that any suspension of fact finding would unduly delay the completion of the
23 investigation, opposed this provision. The suspension of the investigation envisioned under this provision
24 should not delay the investigation appreciably and should not prevent the Department from fulfilling its
2s 100-day deadline for investigation and the reasonable cause determination.
26
27 Section 103.330(b)provides an exception to the prohibition against disclosure of conciliation information.This
28 section provides that conciliation agreements will be made public, unless the aggrieved person and the
29 respondent request nondisclosure and the Assistant Secretary determines that disclosure is not required to
3o further the purposes of the Fair Housing Act.One commenter suggested that the provision should note that
31 one of the purposes to be considered in determining whether disclosure should be required is the education
32 of people about their fair housing rights and remedies and to show that meaningful redress can result from
33 reporting possible violations to HUD and utilizing the conciliation process. While HUD agrees that the cited
34 factor is significant in determining whether disclosure of a conciliation agreement will further the purposes of
3s the Fair Housing Act,HUD its required to consider other purposes in making the disclosure determination.The
36 final rule has not been changed to highlight this purpose.
37
38 One commenter asked how conciliation agreements would be made public.Where the terms of a conciliation
39 agreement do not otherwise provide, HUD intends to issue a press release setting out the fact of successful
40 conciliation and outlining the major terms of the agreement.The statute also requires"public disclosure" in
41 the case of any complaint where the Secretary has determined that no reasonable cause exists to believe that
42 a discriminatory housing practice has occurred or is about to occur, and has dismissed the complaint. The
43 Department intends to employ press releases for this purpose as well.Where a complaint is dismissed on a
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EXHIBIT"B"
54 FR 3232-Implementation of.the Farr Housinq Amendmenfs Act of 1988
3 finding of no reasonable cause and the respondent specifies that even public disclosure absolving the
2 respondent would be unwelcome,the Department will refrain from issuing a press release. However, HUD
3 interprets the Amendments Act as requiring some form of public disclosure on the occasion of a dismissed
4 complaint,and accordinglythe Department's policy will be to disclose this information to the public if a specific
s request is received.
6
7
s Section 103.335 Review of compliance with conciliation agreements.
9
zo Proposed § 103.335 stated that HUD may, from time to time, review compliance with the terms of any
11 conciliation agreement.Whenever HUD has reasonable cause to believe that a respondent has breached a
12 conciliation agreement,HUD shall refer the matter to the Attorney General with a recommendation that a civil
13 action be filed under section 814(b)(2) of the Act for the enforcement of the terms of the conciliation
14 agreement.
1s
16 One commenter argued thatthe language used in this section indicates that reviewof compliance agreements
i7 will be"haphazard and perfunctory."The commenter recommended the deletion of the phrase from time to
18 time"and would make compliance review mandatory and periodic(at least once a year)whether or not HUD
19 has reasonable cause to believe that a breach has occurred.
20
21 Requiring HUD staff to monitor every conciliation agreement on a mandatory and periodic basis is not the
22 most effective used of HUD's limited resources.Compliance reviews under this section will not be performed
23 on a haphazard or perfunctory basis. Rather, compliance reviews will be performed on a random sampling
24 basis, or if HUD has reason to believe that the signatories are not complying with the terms of a particular
2-5 agreement.The final rule is unchanged. -
26
27 Subpart F--Issuance of Charge
28
29 Section 103.400 Reasonable cause determination. .
3o Reasonable cause standard. Proposed§ 103.400(a) provided that if a conciliation agreement has not been
31 executed by the complainant and the respondent and approved by the Assistant Secretary, the General
32 Counsel,within specified time limits,shall determine,based on the totality ofthefactual circumstances known
,3 at the time of the decision,whether reasonable cause exists to believe that a discriminatory housi ng practice
34 has occurred or is about to occur. The reasonable cause determination shall be based on all the facts
35 concerning the alleged discriminatory housing practice,provided by the complainant and respondent and
36 otherwise, disclosed during the investigation. In making the reasonable cause determination, the General
37 Counsel shall considerwhether the facts concerning thealleged discriminatory housing practice are sufficient
38 to warrant the initiation of a civil action in federal court
39
4o A number of commenters objected to the reasonable cause standard announced in this section.Some argued
41 that the standard is overly restrictive and may unduly limit the number of charges that will be issued by HUD.
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1 Others alleged that the meaning of the proposed standard is unclear and may open the door for subjective
2 decisions and may permit the consideration of irrelevant factors.(Le., Some commenters suggested that the
3 proposed language would permit HUD to consider any matters that could have a bearing on a decision to
a bring a lawsuit, including:an assessment of the strength of the suit,the amount of anticipated damages,the
s government's resources that would be devoted to the proceeding, the availability of witnesses, docket
6 scheduling, and other factors generally bearing on the exercise of prosecutorial discretion). Commenters
7 argued that language of the statute and relevant legislative history limit HUD's assessment to the issue of
s liability alone.
io Contrary to the allegations of the commenters, a fair reading of the regulation clearly demonstrates HUD's
11 "intentto limit the reasonable cause assessment to the issue of whether a discriminatory housing practice has
12 occurred or is about to occur. HUD,by repetition in the regulation,expressed its position thatthe reasonable
13 cause determination is to be based solely on the issue of liability. No less than three passages state this
14 proposition. (i.e., the regulation states that the determination will be "based on the totality of the factual
15 circumstances";that the reasonable cause determination"shall be based on all facts concerning the alleged
16 discriminatory housing practice"; and"the General Counsel shall consider whether the facts concerning the
17 alleged discriminatory housing practice are sufficient to warrant the initiation of the civil action."While the
is proposed language would foreclose the consideration of extraneous matters not related to the factual
1g determination of liability,HUD has made an additional modification in the final rule to reflect HUD's intent that
20 the reasonable cause determination is to be based solely on the facts determined during investigation.
21
22 The source of many commenters' dissatisfaction is the provision that requires the General Counsel to
23 determine whether the facts concerning the alleged discriminatory housing practice are sufficient to warrant
24 the initiation of a civil action. Rather than permitting consideration of the probability of winning the case,this
25 standard is merely intended to require that the charge is well-grounded in the facts and that the conduct that
26 is the subject of the complaint appears to constitute a violation of the Act.
27
28 Commenters suggested several alternative standards.These standards are, in some cases, identical to the
29 standard contained in the proposed rule.For example,some commenters proposed that the standard should
3o be whether the information disclosed warrants the initiation of a civil action or an administrative proceeding
31 under Part 104.In othercases,the alternative standards are substantially the same asthe standard contained
32 in the proposed rule (e.g., whether a reasonable and fair-minded trier of fact could conclude that a
33 discriminatory housing practice has occurred or is about to occur,etc.).Accordingly,the proposed standards
34 have not been incorporated in the final rule.
35
36 Other commenters argued that, in addition to the reasonable cause standard, HUD should make certain
37 presumptions in favor of the aggrieved person when making the determination(e.g.,to construe the facts in
39 favor of the aggrieved person or to assume that the evidence offered by the aggrieved person is true)or that
39 HUD should reserve all issues of material fact for determination at the hearing or trial.Such presumptions and
40 reservations are inconsistent with HUD's duty to analyze and make a reasoned judgment concerning the
41 alleged discriminatory housing practice and would obviate any need for a HUD investigation, as required by
42 the statute. For this reason, the suggestions are rejected.
43
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
Written reasonable cause determination.Commenters argued that all determinations of reasonable cause or
2 lack of reasonable cause must be in writing and set forth in an opinion which states the facts and legal
3 conclusions. The commenters argued that such a requirement would discourage subjective determinations
4 and establish accountability on the part of the fact finder and respect for the administrative process.
5
6 HUD has made minor changes to the final rule to clarify that all determinations will be made in writing and will
7 set forth a brief summary of the factual basis of the determination. An extensive factual recitation will be
s unnecessary, since the complete investigative report will contain this information and will be available to the
s aggrieved person and the respondent. (The rules already provide that where a finding of reasonable cause
10 is made,the charge will include a short and plain statement of the facts upon which the General Counsel has
11 found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur).
12 The notification will not state the legal theory upon which the determination is made since the Department
13 feels that such a statement would encourage needless litigation by encouraging the participants to mount
14 collateral attacks on the reasonable cause determination.
15
15 Appeal of reasonable cause determination. The regulation provides no right to appeal a reasonable cause
17 determination.Commenters argued that such an appeal is necessary to permit review of errors of law orfacts,
is and thatfailure to provide such an appeal is contrary to standard administrative procedure.Some commenters
ig would limit appeals to determinations of no reasonable cause.
20
21 The statute does not contemplate a review of the reasonable cause determination.Section 810(g)(1)requires
22 HUD to make the reasonable cause determination within a 100-day time period from the filing of the complaint
23 and to take specified actions immediately(or promptly)after the determination is made. (The statute directs
24 HUD to "immediately" issue a charge on behalf of the aggrieved person after reasonable cause is found
25 (section 810(g)(2))and to"promptly dismiss"the complaint and make public disclosure of the dismissal where
26 no reasonable cause is found (section 810(g)(3)).) In light of these directions, HUD believes that it is
27 significant that the Act does not specifically provide for an appeal of the reasonable cause determination,
28 particularly where such procedures are specified within other sections. (See section 812(h), which provides
29 for Secretarial review of the ALTs initial decision.)Moreover, HUD believes that appeals of the determination
3o of reasonable cause would be contrary to the legislative history of the 1988 Amendments,which supports the
31 expeditious resolution of complaints.The additional review would delay the resolution of proceedings by civil
32 action or administrative hearings under Part 104.
33
34 HUD notes that the failure to provide for the review of the reasonable cause determination will not preclude
35 an aggrieved person from filing a civil action under section 813 of the Act. Nor will the dismissal prevent an
36 aggrieved person from refiling a complaint based on newly discovered or previously unavailable information,
37 provided the one-yeartime limit for the firing of a complaint is met.(In this regard,one commenter argued that
3s the regulations should permit HUD to toll the statutory one-year statute of limitation forfiling where a complaint
39 is refiled.This change has not been made since there is no statutory authority for such an action.)
40
41 Reasonable cause determination and State and local zoning cases. Under proposed § 103.400(a)(1), if the
42 General Counsel determines that reasonable cause exists, the General Counsel shall immediately issue a
43 charge on behalf of the aggrieved person, unless the matter involves the legality of a State or local zoning.or
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I
1 other land use law or ordinance. If such a law or ordinance is involved, HUD is required to refer the matter to
2 the Attorney General for appropriate action under section 814(b)(1) of the Act. One commenter argued that
3 the rule should state that the referral of such a case will not be made until an investigation has been.
4 completed and conciliation has been attempted. it is HUD's intention to investigate complaints alleging
s discriminatory housing practices that involve the legality of a State or local law and to forward its investigation
6 to the Department of Justice. This section has been revised to provide further clarity on this point. See §
7 103.400(a)(2) of the final rule. i
a
9 Adoption of a reasonable cause determination made by a certified agency. Commenters argued that the final
io rule should state that a finding of reasonable cause by a substantially equivalent agency will automatically be
11 adopted by HUD,and require the Secretary to issue a charge.Commenters argued that the failure to include
12 this provision will deny complainants the full protection of the new law during the 40-month period that
13 currently substantially equivalent agencies have to conform their procedures and remedies.
14
is The 1988 Amendments require HUD to make referrals for up to 40 months following the date of enactment
16 to agencies that are certified(including agencies that are certified for interim referrals under Part 115)on the
17 date of enactment. As noted in the preamble to the proposed rule, it is unlikely that such agencies will
1s immediately provide thefull range of remedies accorded to complainants underthe 1988Amendments.Given
19 the limited statutory authorization for reactivation provided under section 810(f)(2) of the Act, it does not
20 appear that HUD has unilateral authority to reactivate the complaint to provide the full range of remedies
21 available under the Act absent other circumstances.
22
23 Under the limited circumstance where HUD will be able to reactivate and where the State or local agency has
24 issued a reasonable cause determination (the existence of such a determination is highly unlikely until the
25 State or local agency has modified its existing procedures to conform to the 1988 Amendments),HUD cannot
26 automatically adoptthe local agency's determination. HUD must ensure that the determination rests on a firm
27 factual basis. While HUD may use the information gathered by such agencies (with appropriate
2s supplementation through a HUD investigation) to make its independent evaluation of the factual
29 circumstances surrounding the alleged discriminatory housing practice, the responsibility for making the
3C) reasonable cause determination cannot be delegated in such a manner.
31
32 Deadline for reasonable cause determination. Issues regarding 100-day deadline for the reasonable cause
33 determination are discussed above.
34
35 Participation of the Assistant Secretary in the reasonable cause determination.Several commenters argued
36 that the regulations should state that the reasonable cause determination will be made in consultation with
37 the Assistant Secretarys office, and with due regard to the recommendations of the investigator. Another
38 commenter feared that the investigation report,without further supporting data, may not be sufficient for the
39 General Counsel to make the reasonable cause determination.The commenter asked whether the General
40 Counsel would have access to the complete file,whether the General Counsel may send the case back for
41 further investigation, and whether the General Counsel would be permitted to conduct his or her own
42 independent investigation.
43
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EXHIBIT"B"
54 FR 3232 -Implementation of the Fair Housing Amendments Act of 1988
i
1 As noted under the discussion of the investigation report,the General Counsel will provide due deference to
2 the recommendations of the Assistant Secretary and the investigator.There obviously will be communications
3 between the two offices concerning this determination and access to files and additional investigative
4 materials. Since such communications will be a matter of internal administrative procedures at HUD, it is not
5 necessary to set forth the procedures in the regulation.
6
7 With regard to the investigation of additional matters,the final rule provides that the investigation will remain
s open until the reasonable cause determination is made.This provision was intended to permit the General
9 Counsel to request the Assistant Secretary to make a further investigation where the investigative report is
10 insufficient to determine whether reasonable cause exists, and to make direct inquiries to supplement the
11 investigation.
12
13 Several commenters asserted that permitting the General Counsel to conduct his or her own investigation
14 would be contrary to the intention of the legislation,would undermine the Assistant Secretary's investigative
15 function; may needlessly duplicate investigative activity; and would delay the disposition of cases. The
16 General Counsel does not have the resources to engage in extensive fact-finding.Accordingly,where such
17 fact-finding is required, the Assistant Secretary will be requested to conduct further investigation.Whenever
18 there are minor issues capable of expeditious resolution,however,nothing prevents the General Counsel from
i9 resolving the issues through direct inquiries.The internal procedures for the conduct of such further inquiries
20 will be worked out through agreements between the Assistant Secretary and the General Counsel.
21
22 Section 103.405 Issuance of charge.
23 Section 103.405 governs the issuance of the charge.Paragraph(a)(5)of this section provides that the charge
24 need not be limited to the facts or grounds that are alleged in the complaint.A commenter argued that HUD
zs should not be able to set forth new facts or new grounds in the charge. The commenter argued that HUD
26 should be required to amend the complaint if new acts or grounds are found. Following the amendment, the
27 respondent and aggrieved person should be given an opportunity to enter a conciliation agreement based
28 upon the additional facts or grounds.
29
30 Section 810(g)(2)(B)expressly provides that the charge need not be based on the facts or grounds alleged
31 in the complaint. Where additional grounds are discovered during the processing of the complaint, HUD
32 intends to inform the respondent of the additional grounds and to seek information from the respondent
33 concerning such matters. HUD will not require the amendment of the complaint as long as the record of the
34 investigation clearly indicates that the respondent has been given notice and an opportunity to respond to the
35 new allegations. The final rule at§ 103.405(a)(3) has been amended to reflect this policy.
35
37 Section 103.410 Election of civil action or provision of administrative proceeding.
3s Section 103.410 governs the election of a civil action under section 810(o)or the provision of an administrative
39 proceeding under Part 104.
40
41 One commenter stated that the rule should clarify whether the agreement of the complainant and the
42 respondent is necessary for Part 104 procedure to apply. If no person makes a timely election to proceed with
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xB -405- Item 8. - 207
EXHIBIT«B"
54 FR 3232-Imp!cmentatio.n of fhe Fa1r Hausina Amendments Act of 1988
1. a civil action under section 810(o)of the Act, Part 104 will apply.The Department has made minor revisions
2 to the regulations to clarify this point.
3
4 Paragraph (e) of the proposed rule provided that the General Counsel shall be available for consultation
s concerning any legal issues raised by the Attorney General regarding how best to proceed in the event that
6 commencement of a civil action would implicate Rule 11 of the Federal Rules of Civil Procedure. Numerous
7 commenters claimed that paragraph (e) is unnecessary, serves no useful purpose, may be used by the
a Department of Justice(DOJ)to reduce its litigation caseload,is not required by statute,and should be deleted.
9
€� Following the reasonable cause determination and an election,the statute provides that the Attorney General
11 shall commence and maintain a civil action not later than 30 days from the election (section 810(o)).While
12 we believe that the need for such consultation will be infrequent, we do not believe that Congress intended
13 to preclude the two Federal agencies from discussing an appropriate method of proceeding in light of new
14 relevant factual information or court decisions. Allowing 20 days for the election, the Attorney General's
15 complaint may be fled as many as 50 days following the issuance ofthe charge. During that time period, new
1.6 facts may be discovered or court decisions rendered which demonstrate that there is no reasonable cause
17 to believe that a discriminatory housing practice has occurred or is about to occur. In such circumstances, it
is would be senseless for the Attorney General to institute a civil action. Under such circumstances, HUD will
19 take such action as is necessary to supplement the investigative report (see section 810(b)(5)(B) which
20 provides that a final investigative report may be amended if additional evidence is later discovered) and, if
21 further evidence to support a finding is not developed, to void the reasonable cause determination ab initio.
22 This procedure is designed for the sole purpose of assuring that all civil actions are supportable at the time
23 of filing and, in line with the intention of Congress, to ensure that the Secretary is the official making the
24 determination whether to proceed with a charge or civil action. At the same time, the procedure helps to
2s ensure that the Secretary will have the necessary information to make the required decision.
26
27 Some commenters argued that the reference in paragraph (e) to Rule 11 of the Federal Rules of Civil
28 Procedure is unnecessary.As discussed above,the purpose of the DOJIUD consultation is to examine new
29 court decisions and newly discovered evidence that are relevant to the reasonable cause determination.While
Bo the Rule 11 standard might be implicated if a civil action is filed where a new decision or evidence indicates
31 a lack of a basis for a reasonable cause determination, HUD agrees that the specific reference to this rule of
s2 procedure should be excluded.from the final rule. The final rule has been revised to emphasize that the
33 General Counsel will be available for"consultation concerning any legal issuesraised by the Attorney General
34 as to how best to proceed in the event that a new court decision or newly discovered evidence is regarded
3s as relevant to the reasonable cause determination."
36
37 Several commenters argued that DOJ must publish regulations or make public all proposed procedures for
3s handling the civil actions authorized,under section 812(o). DOJ`s procedures for pursuing such actions are
39 beyond the jurisdiction of the Secretary, and thus not appropriate for addressing in this rule.
40
41 Subpart G -- Other Actions by the Department
42
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EXHIBIT"B"
54 FR 3232-!mplementatior, of the Fair Housing Amendments Act of 1968
1 Section 103.500 Promptjudicial action.
2 Proposed § 103.500(a) provided: "if at any time following the filling of a complaint, the General Counsel
3 concludes that prompt judicial action is necessary to carry out the purposes of Part 103 or Part 104, the
a General Counsel will request that the Attorney General commence a civil action for appropriate temporary or
s preliminary relief pending the final disposition of the complaint."
6
7 One commenter objected to the language stating that the General Counsel would "request" the Attorney
s General to commence a civil action. The commenter argued that the language implies that following the
9 request,it is within the Attorney General's discretion to file the civil action.The commenter noted that section
0 810(e)requires the Attorney General promptly to commence action after the Secretary authorizes the action.
11 The statute does provide that when the Secretary authorizes the civil action, the Attorney General shall
12 promptly commence and maintain such action and the final rule has been revised to track the statute.
13
14 Before making the determination to request such action, the proposed rule stated that the General Counsel
15 would consult with the Assistant Attorney General for the Civil Rights Division. Commenters urged deletion
16 of the consultation requirement.Commenters argued thatthe provision:(1)Adds time-consuming steps to the
57 process of seeking emergency relief;(2)is not necessary, since HUD is free to consult with DOJ at any time;
ae (3)will be unnecessarywhen HUD acquires enforcement experience; and(4)is inconsistent with the statute
14 and with the legislative intent to provide the simplest and fastest method to obtain emergency relief for
20 discrimination victims.
21
22. The final rule is unchanged on this point.As noted above,once the general Counsel issues the authorization,
23 the Attorney General is required to commence and maintain the action. In light of this mandate, it is crucial
24 that authorized civil actions are justified on both the facts and the law. As noted in the preamble to the
25 proposed rule, prior consultation will ensure that the civil action can be maintained by providing HUD with
26 access to DOJ"s extensive experience in seeking relief in different factual situations and in different forums.
27
28 Commenters' fears that the consultation requirement will impede the process of obtaining temporary and
29 preliminary relief are unfounded.The consultation envisioned underthis section will not be a time-consuming
3o process, Rather, HUD and DOJ plan to consuitthrough informal contacts between representative,of the two
31 agencies. Moreover, HUD expects and intends that the conferences will expedite, rather than delay,..
32 proceedings by providing DOJ with important background information in individual proceedings before the
33 issuance of an authorization and by providing DOJ with advance information concerning upcoming litigation.
34 With such information,DOJ should be better prepared to act expeditiously to preserve the aggrieved persons
35 rights when the authorization is issued. To emphasize this point, § 103.500(a) has been revised to provide
36 that the purpose of the DOJ consultation is to ensure the prompt initiation of the civil action.
37
38 Section 103.500(b),which implements section 810(e)(2)of the Act, has been revised slightly to more closely
39 reflect the statutory provision.
40
41 Section 103,510 Other action by HUD.
42 Section 103,510 addresses other actions that HUD may take with respect to matters asserted in a complaint.
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HB -407- Item 8. - 209
EXHIBIT"B"
54 FR 3232-lmotementat%on of the Fair Housing Amendments Act of 1988
1 A commenter felt that the proposed rule's list of proceedings that may be initiated under other civic rights
2 authorities was incomplete. The commenter urged the addition of the Age Discrimination Act of 1975 (42
3 U.S.C.6101)and Executive Order 12259.The final rule has been amended to add the Age Discrimination Act.
4 The cited executive order addressesHUD'sauthoritytocoordinatethefairhousingeffortsoffederalagencies,
s is hot an enforcement authority, and has not been added.
6
7 Part 104--Administrative Proceedings Under Section 812 of the Fair Housing Act
3
9 Statutory limitations applicable to administrative procedures
io In many instances,commenters suggested revisions to the proposed administrative procedures that cannot
11 be adopted because they conflict with statutory requirements contained inthe Fair Housing Act.The statutorily
12 impermissible suggestions included:
13
14 1. The deletion of the provision contained in§ 104.590(e)which states that HUD will pay witness fees and
1s mileage if the party requesting the issuance of the subpoena is unable to pay. Section 811(b) of the Act
16 requires HUD to pay the fees under such circumstances.
17
18 2. The increase or decrease of the amount of the ceiling on civil penalties that may be awarded. Section
lg 812(g)(3) provides for civil penalty ceilings ranging from $10,000 to$50,000. These ceilings are reflected in
20 § 104.910(b)(3).
21
22 3. The deletion of provisions contained in § 104.940 requiring HUD to pay attorney's fees to the extent
23 provided under the Equal Access to Justice Act(5 U.S.C. 504). Section 812(p) imposes this liability on the
24 United States.
25
26 4.The reconciliation of the proposed deadline for a petition for review of the final decision in a United States
27 Court of Appeals(30 days from issuance of decision);and the date that findings of fact and the final decision
28 become conclusive in connection with a petition for enforcement(45 days after the date of issuance of the
29 decision,if no petition for review is filed).These time periods are imposed under sections 812(i)and(I)of the
3o Act.
31
32 Subpart A--General Information
33
34 Section 104.20 Definitions
35 Section 104.20 contains the definitions used in Part 104.In addition to the comments on definitions addressed
36 above, a commenter urged HUD to define separately"hearing" and"hearing on the record".While"hearing"
37 is defined and used in Part 104, the phrase"hearing on the record" does not appear in the part. While the
38 commenter noted that a civil action under section 813 is barred after the commencement of"a hearing of the
39 record" by the ALJ (see 813(a)(3)), it is inappropriate to prescribe by HUD regulation the limitations on the
40 jurisdiction of the United States District Court imposed under section 813 of the Act.
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EXHIBIT"B"
54 FR 3232-implementation of the Fair Housing Amendments,Act of 1988
i
2 Section 104.30 Computation of time.
3 Section 104.30 governs the computation oftime periods.A commentersuggested a clarification in§104.30(a)
4 to provide that the time computations relate onlyto filing and serving papers.The section is intended to apply
s to all computations of time(e.g.,deadlines forthe commencement of the hearing(§104.700);issuance of the
6 initial decision(§104.910(d));and the notification of appropriate governmental entities following the issuance
7 of the final decision(§ 104.935(a)(2)). Accordingly, the proposed change has not been made.
s
9 Section 104.40 Service and filing.
to Section 104.40 requires the filing of all documents in Washington, DC. One commenter argued that this
11 provision places a burden on the aggrieved person,could have a chilling effect and is contrary to legislative
12 intent to provide relief to persons in outlying areas.This commenterwould revise§ 104.40(a)to require filing
13 in Washington, DC until the Assistant Secretary designates local addresses for filing. While HUD intends to
14 conduct the hearing at a place in the vicinity in which the discriminatory housing practice is alleged to have
16 occurred or to be about to occur(§104.700),all other administrative functions will be performed at the Office
16 of the Administrative Law,fudges in Washington, DC.Since service and filing can be accomplished by mail,
17 HUD does not believe thatthis requirement v011 impose an undue burden on persons outside the Washington,
18 DC area.
19
20 Subpart B--Administrative Law Judge
21
22 Section 104.100 Designation,
23 Section 104.100 provides that a presiding ALJ forthe proceeding shall be appointed by HUD's Chief ALJ.One
24 commenter argued that,consistent with statutory intent for the expeditious handling of complaints,the rules
25 must include procedures for the appointment of the presiding ALJ. HUD believes that the deadlines for the
26 commencement of the hearing are sufficient to ensure the timely appointment of a presiding ALJ and that
27 there is no need to impose a regulatory deadline for appointments by the presiding ALJ.
2a
25 The commenter also argued that the rules must prescribe the qualifications for ALJ.The qualifications for the
3o appointment of ALJs are fully set forth in 5 U.S.C. 3105, which is specifically cited at § 104.100. Section
31 104.100 is unchanged.
32
33 Section 104.130 Ex parte communications.
34 Section 104.130 governs the prohibitions of ex parte communications.One commenter argued that the listed
ss sanctions for ex parte communications are too harsh,particularly where an aggrieved person is unrepresented
36 by counsel and inadvertently makes an improper contact. To remedy this problem, the commenter would
37 delete the list of sanctions from the regulations.This section places the decision to sanction and the choice
3s of sanctions within the sound discretion of the ALJ. The rule clearly provides that the listed sanctions are
39 illustrative and that the ALJ may provide for other, more appropriate, sanctions.
40
41 Section 104.140 Separation of functions.
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HB -409- Item 8. - 211
EXHIBIT"B"
54 FR 3232- Imnlementation of the Fair Housing Amer,dments..Act.o.f.-I 988
i Under§ 104.140, no officer, employee or agent of the Federal government engaged in the performance of
2 investigative,conciliatory,or prosecutorial functions in connection with the proceeding or any factually related
3 proceeding under Part 104 may participate or advise in the decision of the ALJ, except as witness or counsel
4 during the proceedings. One commenter would revise this section to provide that no officer, employee, or
s agent may participate or advise in the decision of the ALJ, except as a witness or counsel to a party
c during the proceedings.Persons filing amicus briefs are not"parties"to the proceedings under§104.200.The
7 proposed change has not been made since it could have the effect of prohibiting participation by such
8 persons.
io Subpart C Parties
11
12 Section 104.200 In general,
13 Under§ 104.200 the parties to the proceedings are HUD,the respondent named in the charge and against
14 whom relief is sought, and any intervenors. In accordance with section 812(c)of the Act, the proposed rule
is permitted the intervention by any aggrieved person. No other interrivention is permitted in the proceedings,
16 although briefs of amicus curiae may be permitted at the discretion of the ALJ(§ 104.200(a) and (c)).
17
1;,7 Commenters objected to the proposed rules governing intervention.One commenter noted thatthe proposed
19 rule would permit any potential complainant to intervene without regard to the relevance of his or her concerns
20 in the case. HUD agrees that the proposed rules governing intervention are too broad and has revised this
21 section to permit any aggrieved person to file a timely request for intervention(see discussion below on the
22 timeliness of petitions for intervention). Intervention shall be permitted where the intervenor is the aggrieved
23 person on whose behalf the charge is issued. Intervention shall also be permitted where the intervenor is an
24 aggrieved person who claims an interest relating to the property or transaction that is the subject matter of
25 the charge and the disposition of the action may, as a practical matter, impair or impede the aggrieved
26 person's ability to protect that interest, unless the aggrieved person's interest is adequately represented by
27 the existing parties. The revised provisions are based on the rules of intervention as of right under Rule 24
28 of the Federal Rules of Civil Procedure.
29
3D The commenters also noted that the rule would not permit non-aggrieved persons to intervene.The statute
31 addresses intervention only by aggrieved persons (see section 812(c)). HUD is reluctant to expand the
32 classes of persons that may be permitted to intervene,particularly in light of the statutory time limitations on
33 the issuance of administrative decisions.HUD notes, however,that other persons may be permitted to submit
34 briefs of amicus curiae under§ 104.205(c).
35
36 Section 104.210 Representation.
37 Section 104.210 governs representation of the parties. Under§ 104.21 0(b)(5), parties may be represented
3s by an attorney admitted to practice before a Federal Court or before the highest court in any State. One
39 commenter would permit representation only by attorneys who are admitted to practice before a Federal
40 Court.Attorneys in good standing before State or Federal courts may be sufficiently qualified to represent the
41 parties in a Part 104 proceeding. It is unnecessary to limit the parties'choice of representatives as proposed
42 by the commenter,
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'
EXHUBIT"B"
-
�
�
� Under G1C�1(�.���r�m�� m�fi�a����������� �
z from the- proceeding. One commenter urged HUD to limit the representative's ability to withdraw. The nu|o �
a does not prescribe such limitations.To the extent that the commenter fears that withdrawals may be used to �
4 delay the proceeding, wm note that such dilatory tactics would bo prohibited under the standards ofoondunt- �
s 104'220).Th000mmontoreuggostodthatthoru|onaquina'ataminimum,aorvicaofthevvrdtonnoUfioahon
o of withdrawal on all parties. This service ie already required under G1D44O.
r .
u One commenter argued that the regulations do not unambiguously provide that complainants may employ |
x private counsel to represent their interests inthe administrative hearingo, im addition tothe napnaoon1aOon �
io provided by HUD. The regulations n|oady provide that aggrieved persons may intervene as parties (� {
o 1D42DCKb)\ andthatpa�ioon�aybonoproaontodbycounse| (� 1D421O(a)(5)), HUD does not boUovothat
!
� ^ '' i
,z further clarification isnecessary.
13 /
m Subpart D—Pleadim0s and motions �
.
�
zs Section 104.410Tho charge. |
17 The requirements governing thefiling.service and contents of the charge are found at§104.410. Paragraph
is 0� '� �t���on����"�o��n°� ^� u�t�admi��d� ����."A�mmo��ob�med {
zy ' ' the administrative procedure will bo used Kno election io made to have the claim litigated ina civil action �
m and may not be the result of a deliberate election by the parties.The final rule has been revised to clarify this �
21 point /
!
zz .
zs Section 104.430 Requests for intervention, i
m Within 30 days after the service of the charge, any agg.rieved person may file a request for intervention and |
zs participate as a party to the proceeding. No other intervention was permitted under the proposed m|o. �
i
zo Commenters suggested the revision of this 000don to permit intervention after the expiration of the 30-day
zr period. �
uu
29 While the 1988 Amendments require the commencement ofe hearing and the issuance ofam initial decision
3o within specified periods,the statute imposes noabsolute deadline for intervention.To ensure that aggrieved
yz persons will not be unnecessarily excluded from a proceeding,the final rule has been amended to permit the �
-4z filing of timely request for intervention after the 30-dey period. In determining whether intervention will be
xs ponn|bed. the ALJ may consider such factors as. the progress of the litigation when intervention is sought �
34 the delay in seeking intervention and the reasons for the delay; and the prejudice to other padioo if {
35 intervention io permitted.All requests for intervention submitted within 30 days of the fiKngof the complaint '
�
as will bo considered tobo timely filed. .
ar
so Section 1O4.45QMotions. '
ao Section 104.450(b)statesthatany party mayfile an answerto awritten motion.Further responsive documents .
4m are prohibited, unless otherwise ordered by the ALJ. One commenter would clarify further that prohibited |
41 responsive documents would not include exhibits, memoranda, or briefs, The Department does not believe
" .
E�EXHIBITB'," .
Page-O2'
mtp:« .mop|av&nwooname~reoo_ecr,ouoz
T+�n� Q �� �
K8 4l l- ^^�^" u. - ����
EXHIBIT"B"
54 FR 3232-tmplemeniation of the Farr Housing Amen:?ments Act of 1988
1 that it is necessary to list all types of responsive documents that would be excluded under this rule.The final
2 rule is unchanged.
3
4 Subpart E--Discovery
5
6 Section 104.500 Discovery
7 Section 104.500 contains the general provisions governing discovery. Paragraph (d) provides that the
8 frequency and sequence of the discovery methods are not limited, unless otherwise ordered by the ALJ or
q restricted under Subpart E. One commenter suggested that the final rule require that the ALJ hold an initial
io pretrial conference addressing discovery issues as a part of the prehearing procedures under Subpart G.At
11 the pretrial conference,the parties would be required to describe the nature and amount of discovery to be
12 undertaken. The discovery plans would be reduced to a written order and all discovery would be completed
13 in accordance with the order. The commenter noted that this procedure is consistent with limitations on
14 discovery imposed in the United States District Courts.
15
16 It is not necessary to provide a pretrial discovery conference and order for every proceeding.Where such a
17 procedure is required to expedite the proceeding,however,a pretrial discovery conference may be conducted
18 and a discovery order issued as a part of a prehearing conference under proposed§ 104.610. The final rule
ig is unchanged on this point.
20
21 Section 104.500(e)provides that all discovery must be completed 15 days before the date scheduled for the
22 hearing.A commenter argued that this date was too close to the hearing. As an alternative,the commenter
23 suggested that the rule provide that all discovery be completed within 80 days of the issuance of the charge.
24
25 The 15-day deadline was imposed to ensure that parties"final preparation for hearing will not be interrupted
26 by late-filed discovery requests, and HUD continues to believe that the 15-day time period is a sufficient
27 buffer.The Department notes thatthe proposed 80-day deadline would not alwaysensure more uninterrupted
28 time for trial preparation, since hearings may be commenced at any time within 120 days following the
29 issuance of the charge.
30
31 Several commenters noted that the proposed rule will not always permit discovery from a non-intervening
32 aggrieved person on whose behalf the complaint was filed and who is the real party in interest. The
33 commenters argued that such persons should be required to comply with discovery requests (and that the
34 results of this discovery should be admissible in the hearing) as if the aggrieved person were a party to the
35 charge.
36
37 Because the administrative decision will depend upon the course of dealings between the respondent and
38 the aggrieved person and the extent of damage will depend upon the injury suffered by the aggrieved person,
39 HUD believes that it is appropriate to allow all forms of discovery tote used against nonintervening aggrieved
40 persons. Accordingly, the final rule includes a new § 104.500(f) stating that for the purposes of obtaining
41 discovery from a non-intervening aggrieved person, the term "party" as used in the subpart includes the
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EXHIBIT"B"
54 FR 3232-implementation of the Fair Housing Amendments Act of 1988
s aggrieved person on whose behalf the charge was issued.
z
3
4 Section 104.510 Depositions.
5 Section 104.510 govern depositions upon oral examination and written interrogatories. At the request of a
6 commenter, paragraph (d), which explains the procedures and grounds for requesting suspension of a
7 deposition, has been clarified to permit the suspension of a deposition for improper conduct in addition to
s improper questioning.(For example,a deposition may be suspended if the party makes improper objections
9 or improper instructions to a witness during the deposition.)
7.a
si Section 104.520 Use of deposition at hearings.
12 Section 104.520 governs the use of depositions at hearings.One commenter would amend this provision to
13 deny third parties the right to use information contained in depositions.The 1988 Amendments contemplate
14 that the administrative proceeding is a public proceeding. As such, HUD cannot preclude the use of
15 information contained in the record of the proceeding.HUD notes, however,that the discovery of information
16 and the use of discovered information may be limited in accordance with protective orders issued under§§
17 104.570 and 104.740.
ss
;9 Section 104.530 Interrogatories.
20 The proposed rule permitted unlimited use of interrogatories.One commenter suggested that the number of
21 interrogatories that may be served without an ALJ order should be limited to 20 interrogatories.A rule limiting
22 the number of interrogatories is consistent with practice in Federal courts and will force the parties to focus
23 on pertinent issues when drafting interrogatories. HUD believes, however,that a 20-interrogatory limitation
24 would unduly restrict discovery under this section. As revised, § 104,530 permits a party to serve up to 30
2.5 interrogatories on any other party without an ALJ order.Where necessary forfull and complete discovery,the
26 parties are permitted to serve additional interrogatories with an ALJ order.
27
2s Section 104.570 Protective orders.
29 One commenter argued that the ALJ must narrow discovery to specific matters raised by the complaint. Part
30 104 contemplates that discovery will be pursued through the voluntary efforts of the parties and that the ALJ
31 will intervene in the process only where it is necessary to protect a party or person from annoyance,
32 embarrassment, oppression or undue burden or expense. Where necessary to protect the person or party,
33 the ALJ may issue an appropriate protective order directing that certain irrelevant matters may not be the
34, subject of discovery(see § 104.570(d)).
35
36 Section 104.580 Failure to make or cooperate in discovery.
37 Section 104.580 governs motions to compel discovery and the imposition of sanctions. One commenter
3s requested the deletion of§ 104.580(d)(1), which permits an inference to be drawn in favor of a requesting
39 party if another party fails to comply with a discovery order issued by the ALJ.The cited provision provides
40 the ALJ with an effective method of compelling compliance with orders by parties or persons who unjustifiably
41 resist discovery. It is retained in the final rule.
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 Subpart F--Subpoenas
2
3 Section 104.590 Subpoenas.
4 Section 104.590 provides for the issuance of subpoenas in aid of administrative hearings. Paragraph (f) of
s the proposed rule addressed motions to quash or limit subpoenas.One commenter argued that all evidence
6 must be allowed into discovery and urged the deletion of this provision.While Part 104 is designed to permit
7 the discovery of any matter, not privileged, that is relevant to the subject matter involved in the proceeding,
s § 104.590 recognizes that there may be occasions where a subpoena should be quashed because it is
9 unreasonable and oppressive or for other good cause, or where the subpoena should be conditioned upon
o the discovering parry's advancing the reasonable cost of producing subpoenaed books,papers or documents.
ii The proposed provision is retained.
12
13 Subpart G —Prehearing procedures
14 Subpart G governs prehearing statements(§104.600); prehearing conferences(§104.610); and settlement
15 negotiations before a settlement judge (§ 104.620). Except for comments addressing the addition of a
16 discovery conference discussed above, no commenters addressed this subpart.
17
is Subpart H --Hearing Procedures
19
2c Section 104.720 Waiver of right to appear.
21 Section 104.720 permits the parties to waive the right to an oral hearing and present the matter for decision
22 on a written record. Commenters urged the revision of this section to prohibit waiver unless non-party
23 aggrieved persons agree to the waiver.Alternatively,the commenters would provide notice of the proposed
24 waiver to non-party aggrieved persons and would permit such persons to intervene within 15 days of the
2s notice.
26
27 Those aggrieved persons interested in participating in the proceeding as an intervenor and controlling the
2s procedural conduct of the litigation as a party are permitted to intervene of right(aggrieved persons on whose
29 behalf the charge is issued)or by permission of the ALJ(other aggrieved persons).Where such persons have
3o not filed timely requests for intervention, or where their interest is not sufficient to justify intervention, HUD
31 does not believe that any purpose would be served by a regulation permitting the person the right to control
32 the conduct of selected aspects of the proceeding. Part 104 was drafted with the expectation that the HUD
33 representative, in the absence of intervention by the aggrieved person on whose behalf the charge is issued,
34 will keep that person informed of the course of the proceedings where necessary for the proper disposition
35 of the charge.Therefore, provision for notification to such persons of this procedural step is not mandated by
36 the rules.
37
38 Section 104.740 In camera and protective orders.
39 Section 104.740, which governs in camera inspections and protective orders contains a minor editorial
4o revision suggested by commenters.
41
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54 FR 3232-tmplemartat;cr c%the Fat fdous=rp Amendments Act of 1988
i Section 104.750 Exhibits.
2 Section 104.750 providesforthe preheating exchange ofexhibitsto be offered into evidence.One commenter
3 noted that some parties may attempt to use the requirement for the prehearing exchange of exhibits to prevent
4 the use of rebuttal exhibits that have not been exchanged.At the request of the commenter,HUD has revised
s this section to exclude unanticipated rebuttal exhibits from the exchange requirement.
s
r Section 104.760 Authenticity.
s At the request of a commenter, § 104.760 has been clarified to state that the authenticity of all documents
submitted "and furnished to the parties as required under§ 104.750"as proposed exhibits in advance of the
zo hearing shall be admitted.
11
12 Section 104.790 Record of hearing.
13 Under§ 104,780,all oral hearings must be recorded and transcribed by a reporter designated by and under
14 the supervision of the ALJ. One commenter observed that this section requires all hearings to be transcribed
1s and argued that this requirementwill be expensive.The commenter recommended that this section be revised
16 to require transcripts only if requested by a party or an aggrieved party,or ordered by the ALJ.HUD believes
17 that the provision of a transcript is necessary for the full and complete record in the case and to ensure the
1s adequate review of the proceeding by the Secretary under§104.930,and by the courts under section 812(i),
1s and to permit court enforcement of the Administrative order under section 8120).
20
21 Subpart I -- Dismissals and Decisions
22
23 Section 104.900 Dismissal.
24 Under§ 104.900, the ALJ is required to dismiss the proceeding:
2s
26 --Where the complainant,the respondent or the aggrieved person on whose behalf the complaint was filed
2.7 makes a timely election to have the claims asserted in the charge decided in a civil action under section
28 812(o) of the Act(see §104.900(a)); or
24
301 --Where an aggrieved person has commenced a civil action under an Act of Congress or a State law seeking
31 relief with respect to the discriminatory housing practice and the trial of the civil action has commenced.The
32 commencement of a civil action for appropriate temporary or preliminary relief under section 810(e) or
33 proceedings foe such relief under section 813 of the Fair Housing Act do not affect administrative proceedings
34 under Part 104. (see § 104.900(b)). At the suggestion of a commenter, this provision has been clarified to
35 provide that the administrative proceeding will not be affected by such proceedings as a hearing on the
36 temporary or preliminary relief or the issuance of a decision or order granting or denying such relief.
37
38 One commenter noted that Part 104 procedures are applicable where the respondent and the aggrieved
39 person do not act (i.e., neither the respondent not the aggrieved person elects the civil remedy). The
4€} commenter argued that Part 104 should include a procedure for an ALJ order by default. Even though the
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54 FR 3232-implementation of the Fair Housing Amendments Act of 1968
i aggrieved person and the respondent may choose not to participate actively in a case, HUD's representative
2 will be required to present sufficient evidence to make a prima facie case that a discriminatory housing
3 practice has occurred or is about to occur.Accordingly, there are no provisions for default in the regulation.
4
s Section 104.910 Initial decision of administrative law judge.
6 Under § 104.910, if the ALJ determines that the respondent has engaged, or is about to engage in a
7 discriminatory housing practice,the ALJ is required to issue an initial decision against the respondent and to
s order appropriate relief including damages; injunctive or other equitable relief; and civil penalties. The
9 following issues were raised regarding relief.
10
11 Injunctive or such other equitable relief. Under proposed§ 104.910(b)(2)the ALJ may impose injunctive or
12 such other equitable relief as may be appropriate.One commenter argued that the regulations should discuss
13 the types of affirmative relief(e.g.,the posting of fair housing posters)that may be ordered by the ALJ.Given
1.4 the range of affirmative remedial activities that may be accorded to overcome discriminatory housing
is practices, HUD believes that it would be counterproductive to undertake a listing of all types of such relief
16 under this section.
17
1s The proposed rule provides that no order for injunctive or other relief may affect any contract, sale,
19 encumbrance, or lease consummated before the issuance of the initial decision that involves a bona fide
20 purchaser, encumbrancer, or tenant without actual knowledge of the charge.
21
22 Commenters noted that a considerable.amount of the time may elapse between the filing of the complaint and
23 the issuance of the charge, and from the issuance of the charge to the issuance of the initial decision.They
24 argued that the regulations do not provide a mechanism for providing third parties with notice that a complaint
25 or charge has been filed. They charged that the failure to include such requirements threatens the efficacy
26 of the equitable relief provisions.Commenters asserted that a respondent seeking to avoid the injunctive or
27 other equitable relief will have sufficient time to contract for the sale, encumbrance or lease to another during
28 this period. The commenters suggested the addition of provisions requiring the respondent to give actual
29 notice to such persons.Alternatively, commenters suggested that the rule provide that;simultaneously with
3o the issuance of the charge, the Secretary will exercise the authority under section 810(e) to secure an
31 injunction which preserves the status of all property identified in the charge until final resolution of the charge.
32
33 HUD agrees that the proposed rule did not adequately address this issue.To remedy this problem,the final
34 rule requires the respondent to give actual notice to third parties with whom the respondent engages in a
35 contract, sale, encumbrance,or lease involving the property that is the subject of the charge.The copy of the
36 charge would be provided before the respondent and the third party enter into the contract,sale,encumbrance
37 or lease.
38
39 Commenters also recommended that the final rule should provide that the failure to give the notice would
40 constitute a separate discriminatory housing practice. HUD does not believe that such actions constitute an
41 actionable discriminatory housing practice.This change has not been made.
42
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54 FR 3232-fmalememation of the Fair Housing Amendments Act of 1985
1 Some commenters suggested that the respondent be required to provide the notice to third parties following
2 the issuance of the charge while others would require notice following the filing of the complaint. Section
3 812(g)(4) provides that no order shall affect the described transactions consummated before the order and
4 involving a third party without actual notice of the charge. Accordingly, the notice will be required only after
s the issuance of the charge. The proposed change is included at§104.410(b)(3).
6
7 Civil penalties.finder§104.910(b)(3),the ALJ may assess a civil penalty againstthe respondent.The amount
a of the civil penalty is subject to ceilings of $10,000 to $50,000. The ceiling will depend on the number of
9 previous discriminatory housing practices the respondent has been adjudged to have committed within
io designated time periods in any administrative hearing or civil action permitted under the Fair Housing Act or
u any State or local fair housing law,or in any licensing or regulatory proceeding conducted by a Federal,State
12 or local governmental agency.
13
14 Under the proposed rule,if the ALJ determines that more than one respondent has been engaged or is about
is to engage in a discriminatory housing practice,the ALJ would be permitted to assess the civil penalty, up to
16 the maximum permitted under the rule, against each respondent. One commenter argued that this provision
17 penalizes the respondent who has not committed a prior act, simply for an association with another
18 respondent that has committed such act.The commenter alleged that such a penalty is unfair.This section
i9 was intended to address civil penalties where multiple respondents are involved and to permit the ALJ to
20 assess a civil penalty against each respondent. The section has been revised for clarity.
21
22 Section 104.925 Resolution of the charge.
23 The resolution of the charge prior to the issuance of a final decision by the ALJ is addressed in§ 104.925.
24 Commenters argued that the proposed language does not account for the possibility that some, but not all,
2s of the aggrieved persons of whose behalf the charge is issued may agree to resolve the charge.The final rule
26 has been revised to provide for such resolutions.
27
28 Section 104.930 Final decision.
29 Section 104.930 permits the Secretary to review the ALJ's initial decision and issue a final decision. The
3,o Secretary may affirm,modify or set aside,in whole or in part,the initial decision,or remand the initial decision
31 for further proceedings. If no final decision is issued by the Secretary within 30 days after the initial decision,
32 the initial decision of the ALJ would become the final decision of the Department.
33
34 The proposed rule does not place any time limitation for issuance of the ALJ decision on remand.
35 Commenters claimed that this omission creates the possibility for substantial delay in decisionmaking which
36 is contrary to the congressional goals of assuring expedited processing.The regulation has been revised to
37 state that the ALJ is required to issue the decision on remand within 60 days of the date of issuance of the
38 Secretary's decision, unless it is impracticable to do so. if the ALJ is unable to issue such a decision on
39 remand within this time period(or within any succeeding 60-day period following the initial 60-day period),the
4o ALJ is required to notify all parties and the aggrieved person on whose behalf the charge was filed in writing
41 of the reasons for the delay. This approach is consistent with section 812(g)(2) of the Act. All remanded
42 proceedings will be conducted in accordance with the requirements of Part 104.
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�
EXHU3KT'1B° '
z Section812(h)provides that the Secretary may review any finding,conclusion or order issued by the AI-J. In |
z accordance with this sention,the fimd rule has not been revised to include a standard for Secretarial review �
s of the initial decision, assuggested by one commenter. �
\
s Section 104.D40AUnrn sfesmandnnsts. �
s Several commenters addressed § 104.940, which provides for the recovery of fees and costs.While some `
r commenters argued that the rules regarding sttonne/s fees and costs were proper and identical to those |
o governing the Federal courts, others argued that the spenifinityofthis section was unnecessary, |
|
e
zo HUD continues to believe thatthe regulation should provide some regulatory direction concerningthe amount �
zz of attorney's fees that may be awarded.There appears to be no specific objection to§ 104.940(b)(1)which �
zz governs the payment of attorneys fees by HUD to the respondent(see section 812(p)which makes the Equal �
13 Access to Justice Act applicable to such payments)or to§104.940(b)(2)which states that intervenors should /
14 be liable to the respondent for reasonable attorney's fees only to the extent that the intervenors participation
zs in the administrative proceeding was frivolous or vexatinus, or was for the purposes of harassment. (see �
za Hughes v. Rowe, 449U.S. 5. 11 (1980) and Chriot(anberQ Garment Co. v. EE'(].C.. 434 U.S' 412. 422
zr (1978)). !
zo �
ie Numerous commenters raised the issue of the appropriate standard for the recovery of attorney's fees by �
zo prevailing intervenors. The Act provides in section 812(p)that the ALJ or the court may allow the prevailing �
zz party a reasonable ettonne/s fee. That statutory direction is applicable to prevailing intervenors. This !
22 entitlement to fees is identical to that provided in a private enforcement action under section 813 and an '
\
23 enfnnGennerd action bv the Attorney General under section 814.The Department believes that such factors |
24 as the appropriateness,necessity and effectiveness of any work performed by a prevailing party are among
zs the factors relevant to the factual determination by anALJ or courtas to whether orwhatamount of attorney's |
26 fees are "reasonable". Sini|ady, the issue of whether the amount of fees sought by a prevailing party is
zz reasonable given the particiption of federal attorneys is a question of fact to be determined by the ALJ or the �
zu court.Accordingly, the rule isunchanged. �
zy �
so Wart 100~- Fair Housing Administrative Meetings Under Title ViU of the Civil Rights Act mf19G8 �
o Part 100 establishes procedures for public meetings or conferences hn gather information to assist the �
32 Assistant Secretary in achieving the aims of the Fair Housing Act for the promotion and assurance of equal i
ss housing opportunity under the Fair Housing Act. No substantive comments were received on the proposed |
sw part. his adopted without change. /
'
35 |
36 84Part:189 --Fair Housing Advertising �
37 The Fair Housing Advertising Regulations(Part 109)are being revised to reflect the expansion of the classes '
so of persons protected under the Fair Housing Act from discriminatory advertising.
»»
/
/o General
*1 The purpose of the HUD Fair Housing Advertising Regulations is to assist all advertising media,advertising |
EXHIBIT "B"
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'
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54 FR 3232 Imnierrentatior of the Farr Housing Amendments Act of 1995
1 agencies and advertisers in complying with the requirements of the Fair Housing Act with respect to
2 advertisements for the sale,rental orfinancing of housing.These regulations also describe the matters which
3 the Department will consider in evaluating compliance with the Fair Housing Act in connection with the
4 investigation of complaints alleging discrimination in advertising.
s
6 Section 804(c) of the Fair Housing Act has been amended to expand the prohibitions or discrimination in
7 advertising for the sale or rental of a dwelling.The amendment added"handicap" and"familial status"to the
s existing prohibitions of discrimination on the basis of race, color, religion, sex, or national origin.
9
10 The Department is revising the Fair Housing Advertising Regulations to reflect the expanded coverage of the
11 Fair Housing Act with respect to discrimination in advertising. Following is a section-by-section description
12 of the changes made in Part 109.
13
14 Section 109.5 Policy.
is This section describes the statutory provisions on which the Fair Housing Advertising Regulations are based.
16 The two new protected coverages of the amended statute — "handicap" and "familial status"-- have been
17 added in two places to the existing list of bases on which discrimination is prohibited. In addition,a reference
18 to appraisal services has been inserted in the list of discriminatory practices specifically made unlawful under
19 the Fair Housing Act.Because of the exemption in section 807(b)of the Fair Housing Act for"housing for older
20 persons", a sentence has been added to§ 109.5 to explain that the prohibitions of the act regarding familial
21 status do not apply with respect to such housing.
22
23 In addition, references to Title VIII of the Civil Rights Act of 1968 have been changed to the new short title of
24 the statute,the "Fair Housing Act", both in this section and throughout the regulations.
2s
26 Section 109.10 Purpose.
27 The Department has made only editorial changes in this section.
28
29 Section 109.15 Definitions.
3o This section contains definitions of the major terms used in Part 109.The Department has added definitions
31 of the terms"handicap"and"familial status"in paragraphs(h)and(i), respectively.These new definitions are
32 the same as the definitions contained in the Fair Housing Act. In addition, the definition of"Secretary" has
33 been eliminated since the term is not used in the regulations, a definition of"General Counsel" has been
34 added, and the definitions of "person" and "discriminatory housing practice" have been revised to reflect
35 statutory changes.
36
37 Section 109.16 Scope.
38 This section explains the use of the criteria contained in Part 109 by the Department with regard to action on
39 complaints alleging discriminatory advertising with respect to advertising media and persons placing
4o advertisements.The Department has made changes in the introductory language of paragraph(a)and in the
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XHI I T'L"B"
54 FR 3232-implementation of the Fair Housing Amendments Act of 1988
i language of paragraphs(a)(1)and(a)(2)to reflect the changes in complaint processing brought about by the
2 Fair Housing Act amendments.Under the new procedure,the General Counsel will make determinations as
3 to whetherthere is reasonable cause to believethat a discriminatory housing practice has occurred oris about
4 to occur. Thus, § 109,16 would indicate that the General Counsel will consider the use or the failure to use
5 the criteria in this part in making a determination of reasonable cause to believe that a discriminatory housing
6 practice has occurred or is about to occur.
s Section 109.20 Use of words, phrases, symbols, and visual aids.
9 Several commenters objected to the statement in the first sentence of proposed § 109.20 that the words,
10 phrases, symbols, and fowls set forth in this section have been used in advertising to"convey either overt
1i or tacit discriminatory intent"and that therefore their use should be avoided,because that statement appears
12 to focus solely on the intentthat may lie behind discriminatory real estate advertising.The Department agrees
13 that the language,which was already contained in § 109.20,could be construed as a limitation on the types
14 of activities considered to constitute unlawful conduct. Since the Department wishes to maintain a neutral
i5 position on the issue of whether discriminatory intent is necessary for advertising to be considered violative
16 of the Fair Housing Act,the statement has been revised. In addition, similar revisions have been made in §
17 109.20(e) and (f). These revisions also make it clear that this regulation does not prohibit the use of any of
1s the wards, phrases, symbols or visual aids in this section, but instead is intended to suggest that the use of
19 such words, phrases and symbols can indicate a preference in particular contexts.
20
21 The undesignated introductory paragraph in§109.20 has also been revised to state that the Department will
22 consider whether,in a particular case,there is a need for"further proceedings on"the complaint, rather than
23 a need for "seeking resolution of the complaint. This change reflects the new complaint processing
24 procedures under the amended act.
25
26 In paragraph (a), which provides examples of words descriptive of dwelling, landlord, and tenants which
27 should not be used in advertising, the Department has added the phrase"adult building".
2s
29 In paragraph(b),which lists examples of words indicative of persons in the protected groups covered by the
3o Fair Housing Act, the Department has added specific provisions on words relating to handicap and familial
31 status. In paragraph (b)(6),.the rule provides that nothing in Part 109 restricts.the inclusion of information
32 aboutthe availability of accessible housing in advertising of dwellings,In paragraph(b)(7),concerning familial
33 status, the Department has included a statement making it clear that nothing in Part 109 would restrict
34 advertisements of dwellings which are intended and operated for occupancy by older persons and which
3s constitute "housing for older persons" as defined in section 807(b) of the Fair Housing Act. In addition,
36 paragraph(b)(8) has been revised and the word"exclusive" has been substituted for the words"ghetto"and
37 "disadvantaged".
38
39 In paragraphs(c)and(d),the words"handicap'and familial status" have been added to the list of protected
4o groups.
41
42 With regard to paragraph (e), one commenter expressed doubt that directions to real estate could imply a
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54 FR 3232-Jmp!ementation of the Fair 1-lousinc Amendments Act of 1988
1 discriminatory preference. However, it has been the Department's experience that references to real estate
2 location in terms of landmarks significant with respect to race, national origin or religion may indicate a
s preference to certain homeseekers or convey a negative implication to others. Accordingly, this paragraph
4 has not been changed.
s
6 Section 109.25 Selective use of advertising media or content.
7 This section indicates examples of how the selective use of advertising media or content can be used
s exclusively with respect to particular housing developments or sites, with discriminatory results.
9
10 In paragraph (c),which concerns selective use of human models when conducting an advertising campaign,
11 the Department has made changes in the last two sentences of the paragraph to provide an example of
12 selective advertising with respect to familial status.
13
14 Section 109.30 Fair housing policy and practices.
1s This section discusses actions that advertisers can take which would be considered as evidence of
16 compliance with the prohibitions against discrimination in advertising under the Fair Housing Act.
v
18 The Department has added the words"handicap" and "familial status"where appropriate in paragraphs(a)
19 and(b). In addition,the Department has added language in paragraph(b),concerning use of human models,
20 to indicate that models used in display advertising should represent families with children,when appropriate,
21 as well as both majority and minority groups in the metropolitan area and both sexes.
22
23 Two commenters suggested that paragraph(a)be revised to provide that use of the equal housing opportunity
24 logotype,without more,would be sufficient to indicate compliance with the advertising provisions of the Fair
2s Housing Act. However,the use of the logotype(or the equal housing opportunity statement or slogan)is only
26 one indication of compliance,and such use would not preclude the use,in the same advertisement,or words,
27 phrases,symbols,orforms which convey a discriminatory preference or limitation(see§109.20).Accordingly,
28 suggested change has not been made.
29
3o Minor editorial changes have been made in paragraphs (c)and (d)of§ 109.30.
31
32 Appendix to Part 109
33 The appendix to Part 109 contains three tables intended to serve as a guide for the use of the Equal Housing
34 Opportunity logotype, statement, slogan,and publisher's notice for advertising.The Department has added
35 the words"handicap"and "familial status"where appropriate in the three tables.
36
37 Wart 110-- Fair Housing Poster
3R Part 110 sets forth the procedures established by the Secretary of Housing and Urban Development with
39 respect to the display of a fair housing poster by persons subject to sections 804 through 806 of the Fair
4o Housing Act. The Department has amended Part 110 to reflect the changes made by the Fair Housing
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54 FR 3232- Implementation offhe Fair Housing Americiments Act of 1988
1 Amendments Act of 1988. The major changes in the poster regulations are in § 110.25, Description of
2 Posters, The legend of the poster has been revised to add "handicap" and "familial status"to the bases of
3 illegal discriminatory acts. The legend has also been revised to show that discrimination in the appraising of
4 housing is illegal.In addition to the above amendments,editorial modification has been made for clarification
5 purposes and for consistency in terminology.
6
7 8413art 115--Recognition of Jurisdictions With Substantially Equivalent Laws
8 Part 115 has been revised to comply with the requirements of the Fair Housing Act. This part: (1) Provides
9 a revised process for certifying agencies as substantially equivalent in place of the recognition process as
lo provided in the current Part 115;(2)defines the requirements for certification with the specificity required by
11 the Act; (3) defines the effect of the Act on agencies recognized on September 12, 1988 as substantially
12 equivalent under current Part 115; (4) requires that in order to become certified. agencies must provide
13 protection against discrimination based on "handicap" and "familial status"; and (5) provides a prohibition
14 against coercion, intimidation and threats.
1(i To obtain certification State and local agencies must administer laws which prohibit all discriminatory housing
17 practices which are prohibited by the Act and must include as protected classes all classes protected by the
is Act.Discrimination on the basis of handicap is described in the statutory language and only those provisions
2-9 of section 804(f)of the Act which clearly do not apply to State or local agencies may be omitted from the law
20 or ordinance the agency administers if certification is to be granted. Further, the remedies available to a
21 certified agency must be substantially equivalent to the remedies available underthe Act.Final agency actions
22 must be subject to judicial review and aggrieved persons must have the right of access to a State or local
23 court.The Act also requires that the procedures followed by a certified agency be shown to be substantially
24 equivalent to those created by the Act. Such procedures as: Filing of complaints by the agency;
2-s acknowledgment of receipt of complaints and notice of procedural rights and obligations, completion of
26 investigation and investigative report within 100 days and notice of cause for delay; provision for conciliation
27 and a conciliation agreementwhich shall be made public under certain conditions;were provided as examples
28 of procedural matters which must be included in the law or ordinance administered by a certified agency.
29
3o The regulations require that the law or ordinance provide for resolution of a complaint by a body empowered
31 to grant relief substantially equivalent to the relief which may be granted by the Secretary under the Act.
32
33 The Department received a number of comments.These comments can be divided intofive major categories:
34 (1)Should procedures in Fair Housing laws of States and localities be required to mirror the Fair Housing Act
35 ratherthan be"substantially equivalent"to the Act;(2)Should an agency be certified which protects less than
36 all of the classes protected by the Act;(3)Should building codes and other laws or ordinances administered
37 by State or local agencies other than the agency administering the fair housing law be considered in
3s determining the adequacy of the law; (4) Should State or local fair housing laws be required to include an
39 exemption from discrimination based on familial status for housing of the elderly; and(5) Should State and
4o local agency enforcement mechanisms be required to be substantially equivalent to the Act. Significant
41 comments in these areas were focused principally on §§ 115.3 and 115.3a of the proposed rule.
42
43 It appears that many commenters misunderstood the requirements in§ 115.3(e)for a determination that a
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EXHIBIT"B::
54 FR 3^32- mp;emen`ai%or of the Fair Housing,Amendments Act of 1988
State or local law"on its face"satisfies the criteria for certification,indicating that they believed the ordinance
2 or law standing alone must meet the criteria. Both the preamble and the proposed rule indicate that a
3 determination as to whether a State or local law"on its face" is adequate, is not limited to an analysis of the
4 literal text of the law but must take into account regulations, directives and rules of procedure of a State or
s local agency,as well as other relevant matters of State or local law or interpretations by competent authorities.
9 However, in order to avoid any possible confusion as to matters which will be considered as part of a
determination of the adequacy of a law"on its face,"§115.3(e)has been clarified by substituting the word"all"
for the word "such" in the second sentence thereof.
9
io Procedures for Investigations
11 Several commenters suggested that time limits, provisions for notices to complainants and respondents and
12 similar procedural criteria are inappropriate,burdensome and may require substantial amendments to current
13 laws or ordinances. Under section 804(f)(3)(A) the Secretary is required to determine that the procedures
4 followed by an agency administering a fair housing law are substantially equivalent to those in the Act. The
,s Department believes the procedural aspects which were contained in the proposed rule are essential to
�6 providing adequate procedural protections to persons and that the absence of such protections would
17 substantially weaken a fair housing law.These requirements have been retained in the rule.
is
is A number of commenters objected to the requirement that investigations be commenced within 30 days of
20 thefiling of a complaint and that the processing of such complaints be completed within one yearof filing.Both
21 the Act and the regulations refer to commencement of proceedings within 30 days of filing. The proposed
27 regulations do not refer to a date for commencement of the investigation, and requiring that the disposition
23 of the complaint be completed within one year of filing of the complaint is reasonable.
24
25 Protected Glasses
25 A number of commenters urged that the final rule provide that State and local fair housing laws should be
27 eligible for certification even though they do not include coverage of the new classes of persons protected by
zs the Act, if they meet all other requirements for recognition. Some commenters suggested in the alternative
29 that certification should be permitted based on protections of a certain number of protected classes (e.g.
3o coverage for five or six of the seven protected classes).
31
32 The Department believes that the legislative history of the Fair Housing Act supports the position in the
33 proposed regulation that coverage of all protected classes is essential to a substantial equivalency
34 certification.
35
36 In connection with the inclusion in section 810(f) of the Act of a provision relating to the grandfathering of
37 substantially equivalent agencies,the House Judiciary Committee Report on the Fair Housing Amendments
3s Act described the process as follows:
39
4o Presently, there are 36 states and 76 local agencies certified by the Secretary as substantially equivalent
41 under existing federal law. Many of these states provide for some degree of administrative enforcement, as
42 well as protecting handicapped persons and families with children.The Committee expects that many states
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HB -423- Item 8. - 225
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54 FR 3232-Implementation of the Farr Housing Amendments Act of ,988
will be able to maintain their substantial equivalency status within the time period provided.
3 In order to provide a reasonable transition period for states to adjust to the new law, agencies currently
4 certified on the day before the date of enactment will continue to remain certified for 40 months.This allows
s most jurisdictions sufficient time to conform their laws to the new federal standards so that they may remain
a certified. The Committee recognizes that some jurisdictions may need additional time because of the
7 infrequency of legislative sessions, and the Secretary may grant an additional 8 months for this purpose.
s Report p. 35.
9
7o Thus, it appears clear that Congress intended to provide grandfathered agencies time to broaden their
11 protections to encompass the new protected classes. For this reason the final regulation retains the
12 requirement that State and local laws provide protection to all the classes of persons protected under the
13 Federal law.
1.4
15 Enforcement Procedures
16 Comments that the proposed regulations unreasonably require certified agencies to amend their laws to
17 provide relief which they are currently not authorized to grant appear to be objections to the Act rather than
1s to the regulations. The Fair Housing Amendments Act put "teeth" into the fair housing law. It grants the
1g Department authority to take action against those who commit acts made unlawful by the Fair Housing Act.
20 Consequently,those agencies to which the Department must refer complaints must administer laws which
21 provide the State or local agency with the same authority to take action against those who commit unlawful
22 acts.
23
24 Some commenters in this area insisted that agencies be required to provide for administrative judges and
25 alternative choices--administrative tribunal or civil court—by either complainant or respondent as well as an
26 independent right to go immediately to civil court. We believe.it is sufficient that a certified agency be
27 authorized to obtain relief by whatever procedure its law or ordinance provides as long as those procedures
2s provide rights and protections substantially equivalent to those in the Fair Housing Act. This articulation
29 recognizes that it is possible that agencies will be authorized to provide more effective relief on behalf of
3o aggrieved persons through judicial enforcement mechanisms, which are no more burdensome on
31 complainants, without any administrative enforcement procedure. Under the final rule States and localities
32 are permitted to provide such judicial enforcement mechanisms as an alternative to an administrative
33 enforcement--civil action mechanism such as that in the Fair Housing Act.
34
35 Building Codes
3e Several commenters indicated that incorporating into the certification procedures a requirement that States
37 and localities provide accessibility requirements for new construction which are substantially equivalent to
38 section 804(f) of the Act was onerous and inconsistent with State and local fair housing enforcement
39 procedures.These commenters pointed out that building code ordinances and mechanisms are not part of
40 fair housing enforcement in most areas and that generally,enforcement of requirements is not handled in the
41 same manner as fair housing cases.These commenters suggested that the requirement in§115.3a(b)(3)be
42 deleted.
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Item 8. - 226 HB -424-
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54 FR 3232-implementation of the Fair Housina Amendments Act of 1988
1 The Department is aware that enactment of accessibility requirements will in some cases present problems
2 for States and localities. However, the Department believes that the legislative history of the Act and
3 particularly the discussion of the importance of the involvement of States and localities in the implementation
4 of new construction accessibility requirements in the Statement of Managers in the Senate, 134 Cong. Rec.
s 510456 (daily ed. Aug. 1, 1988)supports the determination of the Department to require local construction
6 requirements as part of the HUD certification process.
7
s Protection against housing discrimination because of handicap including accessibility requirements has been
9 made a part of the Fair Housing Act and must be a part of a fair housing act of a State or locality which obtains
io certification.A certified agency must have authority and responsibility to receive and process complaints of
11 discrimination based on handicap including complaints of violations of the accessibility standards.
12
13 Housing for Older Persons
14 The Fair Housing Act exempts from the familial status provisions certain housing for older persons. This
15 exemption reflects the unique status of housing for older persons described in the House Report on the Fair
16 Housing Amendments Act:
17
1s The bill specifically exempts housing forolder persons.The Committee recognizesthat some olderAmericans
19 have chosen to live together with fellow senior citizens in retirement-type communities. The Committee
20 appreciates the interest and expectation these individuals have in living in environments tailored to their
21 specific needs. (Report p.21).
22
23 The Act delineates with specificity the nature of housing for older persons which is exempt from the
24 prohibitions against discrimination because of familial status, in the proposed rule, the department indicated
25 that it intended to require that the State or local law assure that no prohibition based on familial status applies
26 to housing for older persons as a condition for certification. The preamble noted that, while HUD had not
27 previously required States or localities to include in their laws or ordinances any exceptions or exemptions
28 which the Federal law contains, in view of the Congressional concern that the prohibitions against
29 discrimination because of familial status not impinge on housing for older persons, provisions providing for
3o housing for older persons should be required in State or local fair housing laws.
31
32 Many commenters objected to the requirement that certified agencies administer a fair housing law which
33 provides the same protections for housing for older persons as those contained in the Falr Housing Act.Some
34 commenters pointed out that as a result of the proposed requirement their fair housing laws would have to
35 be amended to limit existing protections for families with children in order to obtain certification.
36
37 While the Department believes that Congress intended to promote housing opportunities to address the needs
38 of older persons, there is nothing in the statute or legislative history to indicate that Congress sought to limit
39 the ability of States and localities to provide additional protections. For this reason, the final rule has been
4o revised to delete the requirement for an exemption for housing for older persons in State or local laws.
41
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xB -425- Item 8. - 227
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54 FP 3232-Implementation of the Fair Housing Amendments Act of 1988_
i However, in order to reflect the congressional interest in the protection of housing opportunities for older
z persons,the final rule specifically indicates that State and local fair housing laws may include an exemption
3 for housing for older persons. This provision is intended to encourage States and localities to consider the
4 needs of older persons in connection with the development of fair housing laws.
:
5
6 In addition to the above comments some commenters objected to the provision that certified agencies
7 administer a law requiring that conciliation agreements be made public. (Section 115.3(a)(2)(vi)).
s
9 The Department is aware that there are strong arguments for and against disclosure of conciliation
1c) agreements. However, Congress has chosen to require such disclosure (The Fair Housing Act (Sec.
11 810(b)(4))). Uniformity of procedures, in this regard, followed by the Department and certified agencies is
12 preferable to dissimilar practices from State to State and locality to locality. Both complainants and
13 respondents will have the knowledge that no matter the location of the discriminatory housing practice
14 resulting in a Title Vill complaint, any conciliation agreement arising out of conciliation engaged in by the
15 Department or any certified agency will.be governed by the same disclosure rules.
16
17 Finally, in order to provide consistency in connection with State and local enforcement procedures, §
1.s 115.3(b)(1)(iv)has been amended to clarify that a certified agency must have authority to seek injunctive or
19 other equitable relief in a court of competent jurisdiction,as an alternative to the stated authority to grant such
20 relief. This change allows the agency an alternative similar to the alternatives provided in§ 115.3(b)(1) (iii)
71 and M.
�2
23 Part 121 —Collection of Data
24 The Department is recodifying 24 CFR Part 100,entitled"Racial,Sex, and Ethnic Data", as a new Part 121
2s of Title 24. Part 100 was originally adopted in 1971 under the heading'Racial and Ethnic Data",to enable the
76 Secretary of Housing and Urban Development to obtain information concerning minority-group identification
27 to assist the Secretary in carrying out responsibility for administering the national policies prohibiting
28 discrimination and providing for fair housing. in 1975, in light of the 1974 amendment of Title Vill to prohibit
79 discrimination on the basis of sex,Part 100 was amended to provide for obtaining information on sex,as well
30 as minority-group, identification.
31
32 Section 562 of the Housing and Community Development Act of 1987(Pub. L. 100-242, approved February
33 5, 1988) requires the Secretary of Housing and Urban Development to collect data on the racial and ethnic
34 characteristics of persons eligible for,assisted,or otherwise benefitting under each community development,
3s housing assistance,and mortgage and loan insurance and guarantee program administered bythe Secretary,
36 and to include a summary and evaluation of such data in the Secretary's annual report to the Congress.
37
38 Section 808(e)(6) of the Fair Housing Act, 42 U.S.C. 3608(e)(6), as added by section 7(b)(1)(D) of the Fair
39 Housing Amendments Act of 1988, requires the Secretary to collect data on the race, color, religion, sex,
4>7 national origin, age, handicap and family characteristics of persons and households who are applicants for,
41 participants in,or beneficiaries or potential beneficiaries of,programs administered by the Department,to the
4z extent that such persons and households are within the coverage of the civil rights laws and executive orders
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Item 8. - 228 xB -426-
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amenementa Act of 1988
1 referred to in section 808(f)of the Fair Housing Act or specified by the Secretary by publication in the Federal
2 Register and to the extent that the Secretary determines the data to be necessary or appropriate.
3
4 Since Part 100 is now being used for regulations setting forth the coverage of the Fair Housing Act, the
s regulations concerning collection of data have been moved to a new Part 121 -- Collection of Data. The
6 Department proposed a revision of the provisions contained in the old Part 100 to provide a more specific
7 regulatory framework for the Secretary to use in carrying out the new data collection and reporting
8 responsibilities mandated by the legislation described above.
io A number of commenters asserted that the Department has had authority for some time to collect the types
11 of data which are needed for reporting to Congress but that it has failed to generate such data. These
12 commenters offered various suggestions for the restructuring of Part 121 to accomplish that purpose.
13
14 The Department does not believe that any restructuring of Part 121 is necessary.The language of proposed
15 § 121.2 was drawn largely from that contained in section 808(e)(6)of the Fair Housing Act,described above,
16 to enable HUD to meet the responsibilities mandated by that legislation. HUD remains committed to that
17 objective and believes that the provisions of Part 121,as proposed,will enable HUD to achieve that purpose.
ss
19 Accordingly,the Department has adopted Part 121 in this final rule with no changes from the proposed rule.
74
21 Legislative review issues
22 A number of commenters, including members of the Banking Committees of the House and Senate and two
23 leading Senate Judiciary Committee proponents of the Fair Housing Amendments Act, asserted that the
24 Department violated section 7(o)of the Department of HUDAct--HUD's legislative review statute--byfailing
25 to supply the Banking Committees with copies of HUD's proposed rule for 15 session days before the rule's
26 publication.
27
28 Aside from the substantial constitutional question whether the section 7(o) rule-request process is valid and
29 enforceable against HUD(See INS v.Chadha,462 U.S. 910(1983)), HUD had no duty to submit this rule for
ao prepublication review for two reasons, either of which is dispositive:
as
32 — the explicit direction contained in the Fair Housing Amendments Act regarding publication of rules for
33 comment, and for effect within 180 days of enactment, coupled with the then-pending adjournment of the
34 Congress, made compliance with section 7(o)(2) impossible (and therefore unnecessary); and
35
36 -- there was no timely request from either Committee for prepublication review of the rule, as required by
37 section 7(o)(2)of the Department of HUD Act.
38
39 Impossibility of compliance with section 7(o). In the proposed rule, the Department compared the specific
4o rule-production requirements set out in the Fair Housing Amendments Act with the legislative review
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- - _- '
EXHIBIT"B°
'
z requirements in7(u) The0epa�mmnt|ookadatdho1S88�gia�t�ems|emju�w��hmd�d��Oo�ubar |
section ` '' i
z 5, 1988 adjournment sine die,The Department looked at the September 13, 1988 approval datefor the Fair '
z Housing Amendment Act, and concluded that the Congress mm'dd not possibly have intended for HUD to |
« adhere bo the requirements uf both Acts, !
s ^
s If the Department had waited for the opening of the new session to expose its rule to the required |
r 15+session-dayrev\ew. a proposed rule could not have been published before FebruaryG. 1989. (HUO '
o published its proposed rule at its earliest opportunity, after developing it on an accelerated schedule. The �
y Department could not possibly have completed the 15-day prepublication review before the Con0naaa �
m adjourned on October 22, 1988, notwithstanding the fact that adjournment was delayed beyond the earlier �
�
zi October Spnojectionj !
`u
i--i HUO's long expehence with aenton7(o)comp|ianne does not nomport with the nommenden(suggesdonthat �
14 HUD could have followed the dictates of both |mwva - the rapid-pace rulemaNng requirements of the
is Amendments Act, and the |eiaune|y, all-purpose dictates of section 7(o). The requirements uf these two �
16 statutes could not be in greater oonOiot, and the Department followed the correct onunae in choosing the �
zr Amendment/kct`s particularity over section 7(c)'agenerality. �
!
zo �
1e Many of the same public commenters who insisted that prepublication review should have been afforded to �
zo the Banking Committees under section 7(o) also complained that the Department should have afforded the i
2z public a longer period for public comment on its published proposed rule. HUD notes that if both of these
zz requests had been honored the public comment period would have expired approximately one month after
23 the March 12. 1AOQ effective date nf the Amendments Act, and that no rules for implementation uf the rights
m granted by the Fair Housing Amendments Act could have been published for effect until at least June 1989. !
|
2S |
is Lackoftimely request for congressional review.Beyond the question mf statutory interpretation,prepublication �
zr review under section 7(o)was not required because the Banking Committees failed to make atimely request
zo for such review. The following facts are relevant to this issue: i
ao 1.By letterof September 14, 1988,the General Counsel submitted tothe Bankinq Committees of both Houses 1
sz HUD's semiannual agenda of rules, as required by section 7(o).This agenda,normally submitted in October �
32 of each year, was provided to the Committees one-month early because adjournment was scheduled for !
s October 5. 1Q88. (UnderaeoUon7(o).the Committees have a period of15 session days tuneviewtheagenda |
34 and request that particular HUD rules be submitted to the Committees for prepublication review.) |
�ss `
so 2. In the letter transmitting the semiannual agenda' the General Counsel asked for committee restraint in �
ar requesting proposed rules from the agenda, since the effect of any such request made during September |
so would betn delay HUD publication of the requested rules until the following February.The General Counsel |
i
ao also notified the Committees that HUD did not regard certain rules arising out of statutory enactments that /
'm contained theirov*n rules-production deadlines am subject tnthe requirements of legislative review."Nu1ab|y." i
41 the General Counsel's letter continued, "the Fair Housing Amendments Act and the Indian Housing Aot i
vz contain difficult production deadUneaforru!ernak(ng that ouinoidevith congressional recess and acUuurnmant |
' !
EXHIBIT"B"
PaGe-9S-
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T+��, @ ��A
^^",^. ". - .�-,w IL8 -42X-
EXHIBIT" „
54 Fly 3232-Implementation of fte Fair Housing Amendments Act of;988
1 periods. Since it is clearly not possible to honor these deadlines and those in the legislative review statute,
2 we intend to focus our efforts on meeting the explicit production deadlines contained in these statutes."
3
4 3.The Committees'statutory review period forthe submitted agenda expired on September 30,1988.Neither
s the House nor the Senate Banking Committee made a timely response to HUD's semiannual agenda
6 submission by that date.
7
s By letter dated October 18, 1988(and apparently forwarded to HUD six days later), the Secretary received
9 a request from the Chairmen of the House and. Senate Banking Committees that HUD "follow the
10 requirements of section 7(o)and provide the proposed Fair Housing Amendments Act rules for review by the
i1 Committees before publication."A similar letter was received from Senators Kennedy and Specter of the
1.2 Senate Judiciary Committee.In deference to these requests,the Banking Committees and Senators Kennedy
13 and Specter were provided copies of the proposed rule shortly before its publication. The Department,
14 however,did not delay the rule's publication for 15 session days,or for any other designated period, pending
35 their review.
15
17 Public comment period
is Section 13 of the 1988 Amendments requires the Department to provide an opportunity for public notice and
19 comment.While HU D's general policy is to afford the public not less than 60 days for the submission of public
20 comments(see 24 CFR 10.1),based on the 180-day prod action schedule and the requirement that a final rule
zi be effective by March 12, 1989, the Department provided 30 days for public comment on this proposed rule.
22
7.3 The Department agrees with the commenter that the period available for public comment, coupled with the
24 size and scope of the proposed rule,made public response difficult.Despite the abbreviated comment period,
25 however, the rule attracted more than 6,400 timely comments--by far the greatest number in H UD's recent
ai history. Many hundreds of these comments reflected thoughtful consideration of the rule and the issues it
27 raised,and lengthy analytical commentswere received fromvirtually all major housing industry organizations,
29 civil rights and handicapped rights groups, and other interested organizations. Hundreds of additional
29 comments have been received since the close of the December 7, 1988 public comment period, and all of
3o these have been read to determine whether any novel issues were raised that were not treated in the timely
31 comments. The Department is convinced that the public comment period permitted full exploration of the
32 issues.
33
34 Equally important, as a result of providing less time for the receipt of public comments,the Department has
3s been able to issue this final rule in advance of the law's March 12, 1989 effective date. It is vital that persons
36 subject to the law's greatly increased penalties and newly proscribed conduct have as much advance notice
37 as possible concerning the types of conduct made illegal under the amended statute. Issuance of this rule on
38 or near the effective date of the statute would have ill-served housing suppliers subject to the law's
39 requirements and to HUD regulations interpreting those requirements.
40
41 As indicated earlier, HUD found it impossible to follow both the regulation-writing requirements specified in
42 the Amendments Act and the more general requirements of section 7(o) of the Department of HUD Act.
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HB -429- Item 8. - 231
EXHIBIT"B"
54 FR 3232-implementation of the Fair Housing Amendments Act of 1988
s Nevertheless, publication of this rule in January permits the Department to provide for a waiting period
2 following publication before the final rule takes effect--a procedure that comports with HUD's rule on rules,
3 24 CFR fart 10, and which meets the requirements of section 7(o)(3) of the Department of HUD Act,which
4 requires 30 session days after publication before HUD final rules may become effective.While HUD does not
s believethatthis rule,With its difficult statutory pro duction schedule,istechnically subjectto the 30-session-day
6 waiting period required by section 7(o)(3), we nevertheless believe that given the controversial issues
7 involved, it is useful and helpful to provide the Congress with.time to consider whether any facet of this rule
8 making calls for a legislative response.
9
.0 In summary,the Department believes that the public interest was well-served by HUD's early publication of
11 a proposed rule, that the public comments received on that rule were of unusually high quality and were
i2 complete in their exploration of legal and policy issues,and that early publication of the final rule--well before
13 its scheduled effectiveness -- also serves the public interest and provides the Congress time to assess
14 whether the rule comports fully with congressional intent.
15
16 The Department regrets that resource constraints prevented the proposed rule's being made more widely
17 available on tape. However,the Regulations Division of HUD(the Office of the Rules Docket Clerk)received
,s no requests that the tape be made available for the specific use of any person outside the Washington, DC
r9 area.
20
21 Codification of analysis of regulations
22 One commenter recommended that the final regulations include, as an appendix, an analysis of the
23 regulations, similar in form to the preamble to the proposed rule.
24
2s The Department has attempted to make the guidance provided by its rule text as helpful as possible,and has
26 provided examples of conduct where appropriate to assist in understanding the text. In addition, we have
27 added the analytical guidance contained in the preamble to the final rule as an appendix to the regulation.The
2s preamble will, thus, be codified in the 1989 edition of the Code of Federal Regulations, This will assure the
29 availability of the preamble to interested persons in the future.
30
31 Regulatory Impact Analysis
32 One commenter argued that a preliminary regulatory impact analysis should have been prepared based upon
33 the proposed rule's impact on consumers. The Director of the Office of Management and Budget waived the
34 requirement for the preparation of a preliminary Regulatory Impact Analysis under section 3 of the Executive
3s Order based on a determination that compliance with the requirement for a preliminary Regulatory Impact
36 Analysis may unduly delay the rule and may prohibit the issuance of a final rule effective by March 12, 1989.
37 The proposed rule announced that the final Regulatory Impact Analysis would be prepared before the
38 publication of the final rule.
39
40 Commenters argued that the effects of the proposed rule on consumers and the housing industry are
41 significant and complex.Commenters also argued that HUD's finding that the proposed rule would not cause
42 a major increase in costs or prices for consumers is incorrect. A commenter noted that the changing of
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|
z all-adult communities tofamilyoommun0enwiU result in major expendituremwhichw0requirecommensurate |
z increases in rents.Increased costswould include redesign of advertising,brochures,signs,etc.,rewriting and
i
a reprinting of management documents, increased management and maintenance yhaff, the addition of i
4 playgrounds and play areasfor children, higher repair and maintenance expenses because of children,higher
s potential legal liability and increased insurance rates. One commenter argued that a housing affordability �
i
o analysis based upon current data should beconducted. �
r .
x The Department agrees that this rule constitutes a"major rule"am defined in section I(b)of Executive Order i
n 122Q1 and has prepared a final Regulatory I mpactAnalysis as required by the Executive Order.This analysis �
m is available in the Office of HUD's Rules Docket Clerk at the address
cited above. |
z�
o Environment '
.
13 /\Finding ofNo Significant Impact with respect tm the environment has been made in accordance with HUD
m regulations in24CFR Part 5O,which implements section 1O2(C)of the National Environmental Policy Act of
15 1969.The Finding of No Significant Impact is available for public inspection during regular business hours in �
16 the Office of General Counsel, Rules Docket Clerk, at the address listed above.
i
zr .
18 Regulatory Flexibility Act
:a Several commenters objected toHUCys fimdingthat this rule making would not have a significant economic
zo impact on amsd| entities.The commenters argued that the date in the Ste|nfe|d study(cited in the proposed �
zn. ru/e) vvemovertenyeans old, and the ,tudy'maaaumpUons did not reflect common construction practices.
zz Because HU D did not update this datafor OMB, neither HUD norOMB have considered the major increases
zs incostmorphceaadvense|yimpactinQhousingaObndabUityforconsumena. anommenterda|med. Inoontrast !
z* to the Steinfe|d study, the commenter asserted that 1988data indicates a25 percent loss in profitability of �
zs garden-style multifamily units alone. The commenter asserted that it could find no basis for the minimal '
i
za increases in costs contemplated by the Steinfeld study, unless exterior design site planning and construction |
zr considerations bearing on density loss were omitted from the calculations. The minimal expenditure of funds '
zo envisioned by HUD is therefore seriously flamed and the impact of the rule upon consumers is vastly
z» understated. �
30 |
31 In addition bo these issues,commenters also felt that the proposed rule did not adequately consider the fimoal `
az impact on small governmental entities. The commenter stated that there will be an increase in costs to �
aa become certified a substantially equivalent,to make required changes,and to handle the increased caseload �
34 associated with the addition of handicap and familial ntatus. The commenter noted that this will require �
�s additional FHAP funds to permit the increase in staff once local laws are amended. �
as
ar Other commenters argued that the regulatory flexibility analysis should have considered the economicimpact '
ao on communities and municapalities planned for senior citizens,(i.e.,The designofmuchhomononsmal}lots |
ss with significant common areas and facilities and which have a direct effect on the demand for service from '
/m municipalities in which they are |ocated. Such communities also have significantly reduced demand for ,
*1 schools and certain recreational aotivitieo). Each of these factors will have an impact on the organization of
42 municipal governments and their budgets and facilities, a commenter asserted.
EXHIBIT=B° �
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988 Page -1O2. �
mtp: xzonvmemod~naoo�uionlavavaoanamv~reoa_ozfraooc
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EXHIBIT"B"
54 FP 423'-Implementation of the Foi;Hcusing A.meno'menPs Act of 1988
i While all of these comments reflect what may well be realistic difficulties associated with compliance with the
2 requirements of the Fair Housing Amendments Act,and while the economic impact of the statute may in fact
3 be greater than HUD's preliminary analysis indicated, the Department fails to see what latitude exists for
4 affording regulatory relief based upon the fact that some businesses or governmental entities affected by the
s statute's requirements are"small entities".The purpose of the Regulatory Flexibility Act is to establish, as a
s principle of regulatory issuance,
7
s that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit
a regulatory and informational requirements to the scale of the businesses,organizations, and governmental
io jurisdictions subject to regulations. (5 U.S.C. 601 note)
�.a
12 The Department has reviewed the objectives of the Fair H ousing Amendments Act and finds that its principal
13 objective is stepped-up law enforcement and the expansion of civil rights.There is no suggestion in the statute
14 that HUD is being provided with discretion to apply the law's requirements differentially, depending upon
is whethera prospective respondent is a large corporation,or a small entity within the meaning of the Regulatory
to Flexibility Act.While it is true that future regulation by HUD in such limited areas as compliance reporting or
17 other record-maintenance functions may permit provisions calling for lesser burdens on small entities, the
le basic prohibitions, compliance procedures, discovery procedures, hearing rights, and other requirements of
ig this final rule are not of a nature that invites regulatory flexibility. To the extent that small entities are subject
20 to the Fair Housing Act's requirements,they are subject as well to the requirements of the rule--to the same
21 extent and in the same manner that larger entities are so subject. Accordingly, HUD's Regulatory Impact
2z Analysis and Regulatory Flexibility Analysis are concerned with the costs of compliance with the law, but
23 having accomplished those analyses, the Department sees its discretion to alter the impact of this rule on
24 small entities as extremely limited by the statute.There are no significant alternatives to the regulatory scheme
2s provided for in the rule that are consistent with the objectives of the Fair Housing Amendment Act.
26
27 "Takings"Analysis
2s A commenter suggested that HUD should conduct a"takings analysis"in accordance with Executive Order
29 12630 of March 15, 1988,"Governmental Actions and Interference with Constitutionally Protected Property
3o Rights"
sl
32 A takings analysis involves assessing the economic impact of a proposed policy or action to determine,to the
33 extent possible, what economic or property interests are likely to be affected by the proposed action of
34 government.
3s
36 The economic impact of this rule on identified property interests,according to many commenters,is expected
37 to be significant, but this fact alone does not end the inquiry. Additionally, in accordance with Guidelines
38 issued by the Attorney General relative to agency analyses under Executive Order 12630, consideration is
35 to be given to:
40
41 . . . Whether the proposed policy or action carries benefits to the private property owner that offset or
42 otherwise mitigate the adverse economic impact of the proposed policy or action; and
EXHIBIT"B"
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Item 8. - 234 xB -432-
EXHIBIT"B„
54 FR 3232- Implementation of tha Fair Housing Amendments Act nt 1988
1 Whether alternative actions are available that would achieve the underlying lawful governmental objective and
z would have a lesser economic impact(Emphasis Added)
3
4. As indicated earlier in our discussion of Regulatory Impact and Regulatory Flexibility Act considerations,the
s Department does not perceive any "alternative actions" available to the rule maker except to follow the
s expressed intention of the Congress and provide for enforcement of the Fair Housing Amendments Act. Nor
7 does the Department regard the effects of this rule on private property rights as being sufficiently severe as
s to"effectively deny economically viable use of any distinct legally protected property interest of[a properly
s owner], or to have the effect of, or result in, a permanent or temporary physical occupation, invasion, or
io deprivation." (The quoted phrase is part of the Attorney General's advisory to agencies with reference to
ii determinations of policies having"takings"implications.)
lz
13 Agencies conducting takings analyses are encouraged by the Executive Order and the accompanying
14 Guidelines to strive,to the extent permitted by law,to undertake policies or actions in a waywhich minimizes
is their takings implications. This,the Department has done. Compliance with the Fair Housing Amendments
16 Actwill,in some circumstances,limit owner discretion concerning admissions policies and will require builders
v of multifamily housing to comply with additional construction-related criteria associated with accessibility by
is handicapped persons.There are other aspects of the Amendments Act that will have some economic impact
19 and will thus affect property rights. None of these impacts, in the Department's view, rises to the level of a
7o "taking"within the meaning of the Fifth Amendment of the United States Constitution.
u
22 Paperwork Reduction Act
23 The information collection requirements contained in this rule have been submitted to OMB for review under
24 section 3504(h)of the Paperwork Reduction Act of 1980.Sections 100.304.(c)(2), 103.30, 115,3(a)(i), 115.5,
zs 115.7 and 115.9 of this proposed rule have been determined by the Department to contain collection of
26 information requirements. Information on these requirements are provided as follows:
27 Tabulation of Annual Reporting Burden Proposed Rule— Fair Housing Amendments Act of 1988
23 Description of Number of Number of Total Hours Total
29 information respondents responses annual per hour
30 collection and per responses response
31 section of 24 CFR respondent
32 affected
33
34 Policy and Procedures—Housing for Persons 55 years and older-- § 100,304(c)(2) 1,231 1 1,231 1 1,231
3s
36 Housing Discrimination Complaint Forms HD-903 & 903A Spanish Version (2529-0011) — §§ 103,30 &
37 115.3(a)(1) 8,400 1 8,400 1 8,400
38 Certification Request Documentation(2529-0025)--§§ 115.5, 115.7 & 115.9 30 1 30 17 510
39 Total annual burden 10,141
40
EXHIBIT"B"
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'
' |
!
EXHBBIT "Br
[
|
z Collections of information conducted or sponsored by HUD during the conduct of an administrative action or �
2 investigation against specific individuals or entities after a case file is opened are not covered by 5 CFR Part !
y 1220 — Cordno||ing Paperwork Burdens on the Public (see 5 CFFl 1320.3(d). Accnnding|y. the tabulation
« above,does not include the information collection hours associated with§§ 1O4.42O. 1O4.530.104.54O(b)(4). \
s 104.540(c). 104.660(a). 104.550(b). 104.590. 104.600(b). 104.620(b)(2). 104.700(u)` 104.720. 104790(b).
* 1O4.01U(d).115.3(u)Aii(iiA and(iv).and 1154(b)(2) burden hours are reported for Part 11O since public
r disclosure of information originally supplied by the Federal Government to the recipient for the purposes of
a disclosure ie not u collection of information- (See 5CFR123O.7(c)(2)\. No burden hours are included for§
p 121.2 i
� |
zo and family characteristics will be imposed under the regulations applicable to the specific HUD program.
zz
,z Impact on Family !
The General Counsel, as the Designated Official under Executive OrdarNo. 12SOG — Tha Fum8y, has |
14 detarm\nadthutthieru|' �)mp|an�antad may significant impact family �
"" ' ~'~~~'�''"— —' -�� i
15 general well-being because the rule provides Federal law enforcement assistance to families confronting �
z* housing discrimination based on ruca, color, ra|igion, national ohgin, familial status or handicap. However, �
z, review under the Order is not required because the statutory mandate leaves little effective discretion in the '
zu Department to lessen the family impact. In any event,the purpose of the statute is to have a positive impact �
zo on family values by offering a measure of protection to persons confronting illegal discrimination.
zo
|
21 Federalism i
zz The 8anaru| Counsel, as the Designated CXfficiu| under section G(a) of Executive Order No. 12612
23 Faderu|iem, has determined that the policies contained in this rule would, if implemented, have federalism �
zn implications and aresubjectto review undertheOrder.Specifically,the amended statute continuesto provide
zs for referral to State and local fair housing enforcement agencies.However, inthafutura the determination of
zo substantial equivalency will depend upon State and local enforcement machinery that matches up with the �
27 much-strengthened Federal law.Accordingly,theeffectof theamended Fair HousingActwill beto encourage
28 Stutaeund|ooa|biaetoumandthair|mwetomatchtheFadara|enfhrcamantmuchinary.oreufh* the eventual
zy loss of recognition as substantially equivalent State or local agencies and possible loss of function if citizens
3o of the jurisdictio n do not choose to file complaints with State or local officials.Additionally,jurisdictions losing �
31 equivalency status will lose eligibility for grant funds available to co-enforcers of fair housing laws. �
3 2 �
yy While the rule would have federalism impacts, review under the Federalism Executive Order is not required |
|
m because the implementation of the statute leaves little discretion with HUD to lessen these impacts. HU D's .
ys etututorymundutaiadaur—itnnustucceptcornu|uintenudonwide. and refer complaints for processing(after
3* the initial grandfather period) only tojuhediot\one with eubntundu||y equivalent laws. Moreover, since the
yr statute addresses the Federalism issue by dac|uhnQ that certain conduct will be illegal and by providing
38 machinery for referral to State and local authority under appropriate cinoumetancae, further study of
sy Federalism implications could not appreciably affect the approach taken in the implementing regulations. |
'm '
41 Other matters |
m This rule was listed in the Departments Semiannual Agenda of Regulations published October 24, 1988(53 �
*3 FR 41974, 42605) under Executive Order 12291 and the Regulatory Flexibility Act. |
'
EXHIBIT"B"54 FR 3232- Implementation of the Fair Housing.Amendments Act of 1988 '
Page-1O5- `
mtp1 ou~pnoo.mon/ay&naooname=,eon_scfraooc �
Item @. - 236 BB -434-
'
EXHIBIT"B"
54 FR 3232- lrnclemertat?on,of the Fair Houslne Amendments Act of 1988
1 The Catalog of Federal Domestic Assistance program number and title is 14.400 Equal Opportunity in
2 Housing.
3 List of Subjects
4 24 CFR Part 14
s Equal access to justice, Lawyers, Claims
s 24 CFR Part 100
7 Fair housing, Incorporation by reference, Nondiscrimination
s 24 CFR Part 103
9 Administrative practice and procedure, Fair housing
io 24 CFR Part 104
ii Administrative practice and procedure, Fair housing
12 24 CFR Part 105
13 Administrative practice and procedure, Fair housing
14
15 24 CFR Part 106
15 Administrative practice and procedure, Fair housing
17 24 CFR Part 109
1s Advertising, Fair housing, Signs and symbols
1S 24 CFR Part 110
20 Fair housing, Signs and symbols
21 24 CFR Part 115
22 Fair housing. Intergovernmental relations.
23 24 CFR Part 121
24 Fair housing. statistics, Reporting and Recordkeeping requirements.
2s Accordingly„ Title 24 of the Code of Federal.Regulations is amended as follows:
2s
27
29 PART 14 -- IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN ADMINISTRATIVE
29 PROCEEDINGS
3o 1. The authority citation for Part 14 is revised to read as follows:
31 Authority:Sec. 504(c)(1)of the Equal Access to Justice Act(5 U.S.C. 504(c)(1); sec. 7(d)of the Department
..32 of Housing and Urban Development Act (42 U.S.C. 3535(d)).
33 2. In§14.115,the phrase"or" at the end of paragraph (a)(8)is removed,the period at the end of paragraph
34 (a)(9) is removed and in its place the phrase"; or"is added, and new paragraph (a)(10)is added to read as
35 follows:
36
EXHIBIT"B"
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xB -435- Item 8. - 237
EXHIBIT"B„
54 FR 3232-implementation of the Fair Ho us in:g'Amendmenis Act of 1988
1 § 14.115 Proceedings covered.
2 (a) *
3 (10)Title Vill of the Civil Rights Act of 1968(42 U.S.C. 3600-3620) and 24 CFR Part 104.
* * * **
5
6 3. Part 100 is revised to read as follows:
7
s PART 100-- DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
9 Subpart A--General
zo Sec.
11 100.1 Authority.
12 100.5 Scope.
13 100.10 Exemptions.
14 100.20 Definitions.
15 Subpart B-- Discriminatory Housing Practices
15 100.50 Real estate practices prohibited.
17 100.60 Unlawful refusal to sell or rent or to negotiate for the sale or rental.
is 100.65 Discrimination in terms, conditions and privileges and in services and facilities.
19 100.70 Other prohibited sale and rental conduct.
zo 100.75 Discriminatory advertisements, statements and notices.
21 100.80 Discriminatory representations on the availability of dwellings.
zz 100.85 Blockbusting.
z3 100.90 Discrimination in the provision of brokerage services.
24 Subpart C-- Discrimination in Residential Real Estate-Related Transactions
zs 100.110 Discriminatory practices in residential real estate-related transactions.
zs 100.115 Residential real estate-related transactions.
27 100.120 Discrimination in the making of loans and in the provision of other financial assistance.
zs 100.125 Discrimination in the purchasing of loans.
zs 100.130 Discrimination in the terms and conditions for making available loans or other financial assistance.
30 100.135 Unlawful practices in the selling, brokering, or appraising of residential real property.
31 Subpart D-- Prohibitions Against Discrimination Because of Handicap
32 100200 Purpose.
33 100.201 Definitions.
34 100.202 General prohibitions against discrimination because of handicap.
EXHIBIT"B"
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EXHIBIT"B"
54 FR 3232- ImNlementat;on of the Fair Housing Amendments Art of 1988
1 100.203 Reasonable modifications of existing premises.
2 100.204 Reasonable accommodations.
3 100,205 Design and construction requirements.
4 Subpart E — Housing for Older Persons
5 100.300 Purpose.
6 100.301 Exemption.
7 100.302 State and Federal elderly housing programs.
s 100.303 62 or over housing.
9 100.304 55 or over housing.
io Subpart F-- Interference, Coercion or Intimidation
11 100.400 Prohibited interference,coercion or intimidation.
12 Autority:Title Vill, Civil Rights Act of 1968,42 U.S.C. 3600-3620; section 7(d), Department of HUD Act, 42
13 U.S.C. 3535(d).
1.4
15 Subpart A-- General
16 § 100.1 Authority.
17 This regulation is issued underthe authorityof the Secretary of Housing and Urban Developmeritto administer
is and enforce Title Vill of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of
19 1988 (the Fair Housing Act).
20
21 § 100.5 Scope.
22 (a) It is the policy of the United States to provide,within constitutional [imitations,forfair housing throughout
23 the United States. No person shall be subjected to discrimination because of race, color, religion, sex,
24 handicap,familial status, or national origin in the sale, rental, or advertising of dwellings, in the provision of
25 brokerage services, or in the availability of residential real estate-related transactions.
26
27 (b) This part provides the Department's interpretation of the coverage of the Fair Housing Act regarding
2s discrimination related to the sale or rental of dwellings,the provision of services in connection therewith,and
29 the availability of residential real estate-related transactions.
30
31 (c) Nothing in this part relieves persons participating in a Federal or Federally-assisted program or activity
32 from other requirements applicable to buildings and dwellings.
33
34 § 100.10 Exemptions.
35 (a)This part does not:
36
37 (1) Prohibit a religious organization, association, or society, or any nonprofit institution or organization
EXHIBIT"B"
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HB -437- Item 8. - 239
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Ho using Amendments act of 1988
1 operated, supervised or controlled by or in conjunction with a religious organization,association, or society,
2 from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial
3 purpose to persons of the same religion,or from giving preference to such persons, unless membership in
4 such religion is restricted because of race, color, or national origin;
6
6 (2) Prohibit a private club, not in fact open to the public, which, incident to its primary purpose or purposes,
7 provides lodgings which it owns or operates for other than a commercial purpose,from limiting the rental or
a occupancy of such lodgings to its members or from giving preference to its members;
9
10 (3)Limitthe applicability of any reasonable local,State or Federal restrictions regarding the maximum number
1i of occupants permitted to occupy a dwelling; or
12
13 (4) Prohibit conduct against a person because such person has been convicted by any court of competent
14 jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in Section 102 of the
is Controlled Substances Act(21 U.S.C. 802).
16
17 (b) Nothing in this part regarding discrimination based on familial status applies with respect to housing for
18 older persons as defined in Subpart E of this part.
19
20 (c) Nothing in this part, other than the prohibitions against discriminatory advertising, applies to:
21
22 (1)The sale or rental of any single family house by an owner, provided the following conditions are met:
23
24 (i)The owner does not own or have any interest in more than three single family houses at any one time.
25
26 (ii)The house is sold or rented without the use of a real estate broker, agent or salesperson or the facilities
v of any person in the business of selling or renting dwellings. If the owner selling the house does not reside
28 in it at the time of the sale or was not the most recent resident of the house prior to such sale,the exemption
29 in this paragraph(c)(1)of this section applies to only one such sale in any 24-month period.
30
31 (2) Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more
32 than four families living independently of each other,if the owner actually maintains and occupies one of such
33 living quarters as his or her residence.
34
35 § 100.20 Definitions.
36 As used in this part:
37
38 "Aggrieved person" includes any person who--
EXHIBIT "B"
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Item 8. - 240 HB -438-
EXHIBIT"B"
54 FR 3232-Imnlemenfation of tree Fair Housir a Amendr»ents Act of 1988
(a)Claims to have been injured by a discriminatory housing practice; or
2
3 (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur.
4
5 "Broker"or"Agent"includes any person authorized to perform an action on behalf of another person regarding
6 any matter related to the sale or rental of dwellings, including offers, solicitations or contracts and the
7 administration of matters regarding such offers,solicitations or contracts or any residential real estate-related
s transactions.
9
io "Department" means the Department of Housing and Urban Development.
22
12 "Discriminatory housing practice"means an act that is unlawful under section 804,805,806,or 818 of the Fair
13 Housing Act.
14
15 "Dwelling" means any building, structure or portion thereof which is occupied as,or designed or intended for
16 occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for
1.7 the construction or location thereon of any such building, structure or portion thereof.
1S
:.9 "Fair Housing Act" means Title Vlll of the Civil Rights Act of 1968, as amended by the Fair Housing
23 Amendments Act of 188(42 U.S.C. 3600-3620).
z1
22 "Familial status"means one or more individuals(who have not attained the age of 18 years) being domiciled
23 with--
24
2- (a)A parent or another person having legal custody of such individual or individuals; or
26
27 (b) The designee of such parent or other person having such custody,with the written permission of such
28 parent or other person.
29
3e The protections afforded against discrimination on the basis of familial status shall apply to any person who
31 is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18
32 years.
33
34 "Handicap" is defined in § 100.201.
35
36 "Person"includes one or more individuals,corporations,partnerships,associations,labor organizations,legal
37 representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees,
3 trustees in cases under Title 11 of the United States Code, receivers, and fiduciaries.
EXHIBIT"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988 Page -11 -
h Up:(lwww.fairho us!ng.cemi;ndex.cfm?methcd=page_display&pagename=regs_52fr3232
xs -439- Item 8. - 241
EXHIBIT °B"
54 Ff2 3232-Implementation of the Fair Housing Amendments Act of 1988
i "Person in the business of selling or renting dwellings" means any person who:
2
3 (a)Within the preceding twelve months, has participated as principal in three or more transactions involving
4 the sale or rental of any dwelling or any interest therein;
5
5 (b) Within the preceding twelve months, has participated as agent, other than in the sale of his or her own
7 personal residence,in providing sales or rental facilities or sales or rental services in two or more transactions
s involving the sale or rental of any dwelling or any interest therein; or
4 '
io (c)is the owner of any dwelling designed or intended for occupancy by,or occupied by,five or more families.
1z "Secretary"means the Secretary of the Department.
13
14 "State" means any of the several states, the District of Columbia,the Commonwealth of Puerto Rico, or any
15 of the territories and possessions of the United States.
15
17
in Subpart B -- Discriminatory Housing Practices
19 § 100.50 Real estate practices prohibited.
20 (a)This subpart provides the Department's interpretation of conduct that is unlawful housing discrimination
21 under section 804 and section 806 of the Fair Housing Act. In general the prohibited actions are set forth
22 under sections of this subpart which are most applicable to the discriminatory conduct described. However,
23 an action illustrated in one section can constitute a violation under sections in the subpart. For example,the
24 cond uct described in§100.60(b)(3)and(4)would constitute a violation of§100.65(a)as well as§100.60(a).
25
25 (b) It shall be unlawful to:
27 (1)Refuse to sell or rent a dwelling after a bona fide offerhas been made,or to refuse to negotiate forthe sale
28 or rental of a dwelling because of race,color, religion,sex,familial status,or national origin,or to discriminate
29 in the sale or rental of a dwelling because of handicap.
30
31 (2) Discriminate in the terms, conditions or privileges of sale.or rental of a dwelling, or in the provision of
32 services orfacilities in connectionwith sales or rentals,because of race,color,religion,sex,handicap,familial
33 status, or national origin.
34
35 (3)Engage in any conduct relating to the provision of housing which otherwise makes unavailable or denies `
35 dwellings to persons because of race, color, religion, sex, handicap, familial status, or national origin.
37
38 (4)Make, print or publish,or cause to be made, printed or published, any notice, statement or advertisement
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of":.988 Page-111-
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Item 8. - 242 HB -440-
EXHIBIT"B"
54 FR 3232- implementation of the Fair Housing Amendments Act of 1988
i with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination
2 because of race,color, religion, sex, handicap,familial status, or national origin,or an intention to make any
3 such preference, limitation or discrimination.
4
5 (5) Represent to any person because of race,color,religion, sex, handicap,familial status, or national origin
6 that a dwelling is not available for sale or rental when such dwelling is in fact available.
7
s (6)Engage in blockbusting practices in connection with the sale or rental of dwellings because of race,color,
9 religion, sex, handicap,familial status, or national origin.
10
11 (7) Deny access to or membership or participation in,.or to discriminate against any person in his or her
12 access to or membership or participation in, any multiple-listing service, real estate brokers' assocation, or
13 other service organization or facility relating to the business of selling or renting a dwelling or in the terms or
14 conditions or membership or participation, because of race, color, religion, sex, handicap,familial status, or
1s national origin.
16
17 (c)The application of the Fair Housing Act with respect to persons with handicaps is discussed in Subpart D
18 of this part.
5.9
20 100.60 Unlawful to sell or rent or to negotiate for the sale or rental.
21 (a) It shall be unlawful for a person to refuse to sell or rent a dwelling to a person who has made a bona fide
22 offer, because of race, color, religion, sex, familial status, or national origin or to refuse to negotiate with a
23 person for the sale or rental of a dwelling because of race, color, religion, sex, familial status, or national
24 origin, or to discriminate against any person in the sale or rental of a dwelling because of handicap.
2
26 (b) Prohibited actions under this section include, but are not limited to:
27 (1) Failing to accept or consider a bona fide offer because of race, color, religion, sex, handicap, familial
28 status, or national origin.
29
3o (2) Refusing to sell or rent a dwelling to, or to negotiate for the sale or rental of a dwelling with, any person
31 because of race, color, religion, sex, handicap, familial status, or national origin.
32
33 (3) Imposing different sales prices or rental charges for the sale or rental of a dwelling upon any person
34 because of race, color, religion, sex, handicap, familial status, or national origin.
35
36 (4) Using different qualification criteria or applications, or sale or rental standards or procedures, such as
37 income standards, application requirements, application fees, credit analysis or sale or rental approval
38 procedures or other requirements,because of race,color, religion,sex, handicap,familial status,or national
39 origin.
EXHIBIT"B"
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HB -441_ Item 8. - 243
EXHIBIT"B"
54 FR 3232-?mplemer,tation of the Fair Housing Amendments Act of 98
1 (5) Evicting tenants because of their race, color, religion, sex, handicap,familial status,or national origin or
2 because of the race, color, religion, sex, handicap, familial status, or national origin of a tenant's guest.
3
4 §100.65 Discrimination in terms, conditions and privileges..and.in services and facilities.
s (a) It shall be unlawful, because of race, color, religion, sex, handicap,familial status, or national origin, to
6 impose different terms, conditions or privileges relating to the sale or rental of a dwelling or to deny or limit
7 services or facilities in connection with the sale or rental of a dwelling.
8
9 (b) Prohibited actions under this section include, but are not limited to:
10
11 (1)Using different provisions in leases or contracts of sale, such as those relating to rental charges,security
12 deposits and the terms of a lease and those relating to down payment and closing requirements, because of
13 race, color, religion, sex, handicap,familial status, or national origin.
14
1s (2)Failing or delaying maintenance or repairs of sale or rental dwellings because of race,color,religion,sex,
16 handicap, familial status, or national origin.
17
1s (3) Failing to process an offer for the sale or rental of a dwelling or to communicate an offer accurately
19 because of race, color, religion, sex, handicap, familial status, or national origin.
20
21 (4) Limiting the use of privileges, services or facilities associated with a dwelling because of race, color,
22 religion, sex, handicap,familial status, or national origin of an an owner,tenant or a person associated with
23 him or her.
24
2s (5) Denying or limiting services or facilities in connection with the sale or rental of a dwelling, because a
26 person failed or refused to provide sexual favors.
27
28
29 § 100.70 Other prohibited sale and rental conduct.
30 (a) It shall be unlawful, because of race, color, religion, sex, handicap,familial status,or national origin, to
31 restrict or attempt to restrict the choices of a person by word or conduct in connection with seeking,
32 negotiating for, buying or renting a dwelling so as to perpetuate,or tend to perpetuate,segregated housing
,3 patterns, or to discourage or obstruct choices in a community, neighborhood or development.
34
3s (b) It shall be unlawful, because of race, color, religion, sex, handicap, familial status, or national origin, to
36 engage in any conduct relating to the provision of housing or of services and facilities in connection therewith
37 that otherwise makes unavailable or denies dwellings to persons.
3s
EXHIBIT"B"
54 FR 3232 -implementation of the Fair Housing Amendments Act of 1988 Page -113-
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Item 8. - 244 Hs -442-
EXHIBIT"B"
54 FR 3232-lrnplernentallon of the Fair Housing Am,enernenis Act of 1986
i (c)Prohibited actions under paragraph(a)of this section,which are generally referred to as unlawful steering
2 practices, include, but are not limited to:
3
4 (1)Discouraging any person from inspecting,purchasing or renting a dwelling because of race,color,religion,
5 sex,handicap,familial status,or national origin,or because of the race,color, religion,sex,handicap,familial
6 status, or national origin of persons in a community, neighborhood or development.
7
s (2)Discouraging the purchase or rental of a dwelling because of race,color, religion, sex, handicap,familial
9 status, or national origin, by exaggerating drawbacks or failing to inform any person of desirable features of
10 a dwelling or of a community, neighborhood, or development.
11
12 (3)Communicating to any prospective purchaser that he or she wold not be comfortable or compatible with
13 existing residents of a community, neighborhood or development because of race, color, religion, sex,
14 handicap, familial status, or national origin.
15
16 (4) Assigning any person to a particular section of a community, neighborhood or development, or to a
17 particular floor of a building, because of race, color, religion, sex, handicap,familial status,or national origin.
1s
i9 (d)Prohibited activities relating to dwellings under paragraph(b)of this section include, but are not limited to:
20
21 (1) Discharging or taking other adverse action against an employee, broker or agent because he or she
22 refused to participate in a discriminatory housing practice.
23
24 (2)Employing codes orotherdevices to segregate or reject applicants,purchasers or renters,refusing to take
25 or to show listings of dwellings in certain areas because of race,color, religion,sex,handicap,familial status,
26 or national origin, or refusing to deal with certain brokers or agents because they or one or more of their
27 clients are of a particular race, color, religion, sex, handicap,familial status, or national origin.
28
29 (3)Denying or delaying the processing of an application made by a purchaser or renter or refusing to approve
30 such a person for occupancy in a cooperative or condominium dwelling because of race,color, religion,sex,
31' handicap, familial status, or national origin.
32
33 (4) Refusing to provide municipal services or property or hazard insurance for dwellings or providing such
34 services or insurance differently because of race, color, religion, sex, handicap,familial status, or national
3s origin.
36
37
3s § 100.75 Discriminatory advertisements, statements and notices.
39 (a) It shall be unlawful to make, print or publish, or cause to be made, printed or published, any notice,
EXHIBIT"B"
54 FIR 3232- 1rnolameniation of the Fair Housing Amendments Act of 1988 Page -114-
http:l;www.fa!rho us!ng.corn find ex.cfm%method=page.display&pagename=regs_62fr32'32
HB -44'_ Item 8. 245
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 statement or advertisement with respect to the sale or rental of a dwelling which indicates any preference,
2 limitation or discrimination because of race,color, religion, sex, handicap,familial status, or national origin,
3 or an intention to make any such preference, limitation or discrimination.
4
s (b)The prohibitions in this section shall apply to all written or oral notices or statements by a person engaged
s in the sale or rental of a dwelling.Written notices and statements include any applications,flyers,brochures,
7 deeds, signs, banners, posters, billboards or any documents used with respect to the sale or rental of a
s dwelling.
9
to (c) Discriminatory notices, statements and advertisements include, but are not limited to:
11
12 (1) Using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are
13 available or not available to a particular group of persons because of race, color, religion, sex, handicap,
14 familial status, or national origin.
1s
16 (2) Expressing to agents, brokers, employees, prospective sellers or renters or ,any other persons a
17 preference for or limitation on any purchaser or renter because of race, color. religion,sex,handicap,familial
18 status, or national origin of such persons.
19
20 (3)Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments
21 of the housing market information about housing opportunities because of race,color,religion,sex,handicap,
22 familial status, or national origin.
23
24 (4) Refusing to publish advertising for the sale or rental of dwellings or requiring different charges or terms
2s for such advertising because of race, color, religion, sex, handicap,familial status, or national origin.
25
27 (d) 24 CFR Part 109 provides information to assist persons to advertise dwellings in a nondiscriminatory
28 manner and describesthe matters the Department will review in evaluating compliance with the Fair Housing
29 Act and in investigating complaints alleging discriminatory housing practices involving advertising.
30
31
32 § 100.80 Discriminatory representations on the availability of dwellings.
33
34 (a) It shall be unlawful, because of race, color, religion, sex, handicap, familial status, or national origin, to
35 provide inaccurate or untrue information about the availability of dwellings for sale or rental.
36
37 (b) Prohibited actions under this section include, but are not limited to:
38 !
EXHIBIT"B"
54 FR 3232- Imp_iementation of the Fair Housing Amendments Act of 1988 Page-115-
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Item 8. - 246 x8 -444-
i
|
EXHIBIT"B"
|z (1) Indicating through words ornonduntthatadvve|Ung which is available for inspection, sale, or rental has \
2 been sold or rented, because ofrace, ookv' religion, sex, handicap,familial status, or national origin. |
* (2)Representing that covenants or other deed,trust or lease provisions which purport to restrict the sale or |
s rental of dwellings because of race,color, religion, sex, handicap,familial status,or national origin preclude
a the sale of rental of dwelling to a person. |
r
o (3)Enforcing covenants or other deed,trust,orlease provisionswhich precludethe sale or rental ofa dwelling |
y to any person because of race, color, religion, sex, handicap,familial status, or national origin. �
1» |
11 (4)Limiting information, by word or conduct,regarding suitably priced dwellings available for inspection,sale !
zz or rental, because of race, no|or, ne|igion, oex, handinap,familial status, or national origin.
1s �
m (5) Providing false or inaccurate information regarding the availability of a dwelling for sale or rental to any
zs poraon, including teotero, regardless of whether such person is actually seeking housing, because of race,
za color, religion, oex, handicap,familial status, or national origin. �
zr .
zo § 1OU.85Blonkbuabng. !
19 �
zm (a) It shall be unlawful, for profit, to induce orattempt to induce a person to sell or rent a dwelling by |
zz representations regarding the entry or prospective entry into the neighborhood of a person or persons of a
zu particular race, color, religion, sex, familial status, or national origin or with a handicap. |
zs i
24 (b) In establishing a discriminatory housing practice under this section it is not necessary that there was in i
zs fact profit as long as profit was a factor for engaging in the blockbusting activity. �
zs |
i
o (n) Ppohi�tedocbonounderthioaecUoninn|ude but '
` . . \
zp (1)Engaging'�xpnz�t incondunt(indudingun�nv�edoohc�d�no��|�dnoo)vvhnhoonveyotoaperoond�at
' ` - |
about d change i the no�r, religion, sex, handicap
ao aneighbo�ood ka undergongoria a undergo a ge n race, ' . . . |
az familial status, or national origin of persons residing in it, in order to encourage the person to offer a dwelling �
32 for sale or rental, �
33
a« (2)Encouraging,for profit,any personto sell or rent a dwelling through assertions that the entry or prospective
ss entry of persons of a particular race,color, religion,sex, familial status,or national origin, or with handicaps, |
m can or will result in undesirable consequences for the project,neighborhood or community,such as a lowering �
37 of property val ues,an increase in criminal or antisocial behavior,or a decline in the quality of schools or other
Bs services orfacilities. i
3»
EXHKB0[^^B"S4 FR 3232 -Imp I e men tation of the Fair Housing A mend me rts Ac�of 1988 i
Page -11G' �
mtn:/ rho rmemou=naov.mvn/avanaoenamo~reoe_oufru000
Th�n� � ��7
QO� -445- ��*^'^ ~". - ^�-`'
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Houslnc Amendments Act of 1966
i § 100.90 Discrimination in the provision of brokerage services.
2
3 (a) It shall be unlawful to deny any person access to or membership or participation in any multiple listing
4 service, real estate brokers' organization or other service, organization, or facility relating to the business of
s selling or renting dwellings, or to discriminate against any person in the terms or conditions of such access,
6 membership or participation,because of race,color,religion,sex,handicap,familial status,or national origin.
7
s (b) Prohibited actions under this section include, but are not limited to:
9
10 (1) Setting different fees for access to or membership in a multiple listing service because of race, color,
11 religion, sex, handicap,familial status, or national origin.
12
13 (2) Denying or limiting benefits accruing to members in a real estate brokers'organization because of race,
14 color, religion, sex, handicap, familial status, or national origin.
1s
16 (3) Imposing different standards or criteria for membership in a real estate sales or rental organization
17 because of race, color, religion, sex, handicap,familial status, or national origin.
18
i9 (4) Establishing geographic boundaries or office location or residence requirements for access to or
20 membership or participation in any multiple listing service, real estate brokers'organization or other service,
21 organization or facility relating to the business of selling or renting dwellings,because of race,color, religion,
22 sex, handicap, familial status, or national origin.
23
24 Subpart C-- Discrimination in Residential Real Estate-Related Transactions
25
26 § 100.110 Discriminatory practices in residential real estate-related transactions.
27
28 (a)This subpart provides the Department's interpretation of the conduct that is unlawful housing discrimination
29 under section 805 of the Fair Housing Act.
30
31 (b) It shall be unlawful for any person or other entity whose business includes engaging in residential real
32 estate-related transactions to discriminate against any person in making available such a transaction, or in
33 the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status,
34 or national origin.
35
36 § 100.115 Residential real estate-related transactions.
37
38 The term residential "real estate-related transactions" means:
EXHIBIT"B"
54 FIR 3232- Implementation of the Fair Housing Amendments Act of 1968 Page -117-
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Item 8. - 248 HB -446-
EXHIBIT"B"
59 FR 3232-tmNemer^tation of the Fair Housing Amendments.Act of 1988
(a)The making or purchasing of loans or providing other financial assistance—
2
3 (1)For purchasing, constructing, improving, repairing or maintaining a dwelling; or
a
s (2)Secured by residential real estate;or
6
7 (b)The selling, brokering or appraising of residential real property.
s
9 § 100.120 Discrimination in the making of loans and in the provision of other financial assistance.
1®
11 (a) It shall be unlawful for any person or entity whose business includes engaging in residential real
12 estate-related transactions to discriminate against any person in making available loans or other financial
1.3 assistance for a dwelling, or which is or is to be secured by a dwelling,because of race, color,religion, sex,
14 handicap, familial status, or national origin.
1s
16 (b) Prohibited practices under this section include, but are not limited to,failing or refusing to provide to any
17 person, in connection with a residential real estate-related transaction, information regarding the availability
1.s of loans or other financial assistance,application requirements, procedures or standards for the review and
19 approval of loans or financial assistance, or providing information which is inaccurate or different from that
20 provided others, because of race, color, religion,sex, handicap,familial status, or national origin.
21
22 § 100.125 Discrimination in the purchasing of loans.
23
24 (a)It shall be unlawful for any person or entity engaged in the purchasing of loans or other debts or securities
2s which support the purchase, construction, improvement, repair or maintenance of a dwelling, or which are
26 secured by residential real estate,to refuse to purchase such loans,debts,or securities,orto impose different
27 terms or conditions for such purchases, because of race, color, religion, sex, handicap, familial status, or
2s national origin.
29
3o (b) Unlawful conduct under this section includes, but is not limited to:
31
32 (1)Purchasing loans or other debts or securities which relate to,or which are secured by dwellings in certain
33 communities or neighborhoods but not in others because of the race, color, religion, sex, handicap,familial
34 status, or national origin of persons in such neighborhoods or communities.
3s
36 (2)Pooling or packaging loans or other debts or securities which relate to,or which are secured by,dwellings
37 differently because of race, color, religion, sex, handicap,familial status, or national origin.
38
EXHIBIT"B"
54 FIR 3232-irroiementation of the Fair Housing Amendments Act of 1988 Page-118-
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HB -447- Item 8. - 249
'-,
| `
EXHIBIT"B"
54 FR 3232-Imp lemon tation of the Fair Housing Amer-,drnerts Act of 1988
'
1 (3) Imposing or using different terms or conditions on the marketing or sale of securities issued on the basis |
z of loans or otherdebts or securitieswhich relate to,or which are secured by,dwellings because of race,color, !
3 religion, sex, handicap,familial status, nr national origin. /
^ �
s (c) This section does not prevent consideration, in the purchasing ufloans, nf factors justified bybusiness !
|
o necessity, including requirements of Federal)aw,relating to a transaction's financial security or to protection �
r againstdefault or reduction of the value of the security.Thus,this provision would not preclude considerations
u employed in normal and prudent transactions, provided that no such factor may in any way relate to naoe,
y on|nr, neliginn, mex, handicap, familial status wrnational origin. �
|
10
11 100.130 Discrimination in the terms and conditionsfor making available loans or otherfinancial assistance.
13 (a) |t shall be unlawful for any person nrentdyengaged in the making of loans or in the provision of other
|
14 financial assistance relating to the purchase, construction, improvement,repair or maintenance of dwellings �
zs or which are secured by residential real estate to impose different terms or conditions for the availability of �
16 such loans nr other financial assistance because nfrace, ou|nr, ne|iginn, sex, hand\oap, familial status, or
17 national origin. |
}
�
zs (b) Unlawful conduct under this weodnn includes, but im not limited to: �
20
zz (1) Using different policies, practices or procedures in evaluating or in determining creditworthiness of any !
zz person in connection with the provision of any loan orother financia assistance for a dwelling nrfor any loan �
za or other financial assistance which is secured by residential real estate because of race,color, religion, sex, �
z^ handicap,familial status, nr national origin. |
25 |
zs (2)Determining thetype of loan or otherfinancial assistance to be provided with respect to a dwelling,orfixing �
zr the amount,interest rate,duration or othertermsfor a loan or otherfinancial assistance for a dwelling orwhich i
zn ia secured by residential real estate,beoaumeofnaoe,co|nr.ne|iginn'mex.handioap.farni|ia|etatua.nrnationa| �
ze origin. |
ao
!
az § 100.135 Unlawful practices in the selling, brokering, nrappraising nf residential real property. |
yz
33 (a) It shall be unlawful for any person or other entity whose business includes engaging in the selling,
34 brokering orappraisingof residential real property to discriminate against any personinmaking availablesuch
35 aen/ioea, or in the performance of such services. because of race, onlnr, ne|iginn, oex, handicap, familial
s ntatun, or national origin.
i
sr i
au (b) For the purposes of this section, the berm appraisal means an estimate or opinion of the value of a �
39 specified residential real property made in a businesscontext in connection with the sale, rental,financing nr !
41) refinancing nfadvw*||ing nrinonnneotinnwith any activity that otherwise affects the availability nfaremidential !
EXHIBIT"B" /
Page -11Q' �
mtp/ m?method~paue.divp/ayunaoonemo=r*gv_oo,prucoz �
>`
Tf�n� Q 7�/�
^^=,'^ u. - ^.�v H8 -448- '
--
EXHIBIT"B"
i reae�ute-na�tedtnunoau�nn.vvhe�/ertheappnd�dionranrwr��n. nrtnunomU±edfnrma/|ynr�nfnnnaUy |
_ )
z The appraisal includes all written comments and other documents.submitted as support for the estimate or `
s opinion nfvalue,
s (c) Nothing in this section prohibits a person engaged in the business of making or furnishing appraisals of �
s residential real property from taking into consideration factors other than race,color, religion,sex, handicap, '
r familial status, nr national origin.
» .
e (d) Practices which are unlawful under this section include, but are not limited to, using an appraisal of !
m residential real property in connection with the oale, nanta|, or financing of any dwelling where the person
11 knows or reasonably should knowthat the appraisal improperly takes into consideration race,color, religion, .
zz sex, handicap. familial staius, or national origin. i
|
-~
1" Subpart K]— Prohibition Against Discrimination Because ofHandicap
is § 100.200Purpose. /
16 The purpose of this subpart is to effectuate sections 6(a) and (b) and 15 of the Fair Housing Amendments i
17 Act nf1Q88.
:m
|
zy § 100.2D1 Definitions.
|
/
2o Ao used in this subpart:
�
za "Acceuoible". when used with respect tn the public and common use areas nfa building containing covered
zz multifamily dwellings,meansthatthe public orcommon useareas ofthe buildingcan be approached,entered, |
24 and used by individuals with physical handicaps. The phrase ^n*ad||y accessible to and usable by" is i
o synonymous with accessible.A public or common use area that complies with the appropriate requirements !
26 of ANSI A117.1-1Q88nra comparable standard io°acoemaib|e"within the meaning of this paragraph.
z/ �
zn Accessible route" means a continuous unobstructed path connecting accessible elements and spaces in a
zy building or within a site that can be negotiated by a person with a severe disability using a wheelchair and that i
ao io also safe for and usable by people with other disabilities. Interior accessible routes may include corridors, !
.0 floors, ramps, elevators and lifts.Exterior accessible routes may include parking access aisles, curb ramps, �
az walks, ramps and lifts. A route that complies with the appropriate requirements of ANSI AJ17.1-1Q86 or
b| standard s an "accessible rnute^
sa comparable a .
34 (
as "ANSI Al 17.1-1986" means the 1986 edition of the American National Standard for buildings and facilities �
36 providing accessibility and usability for physically handicapped people. This incorporation by reference was �
zr approved by the Director nf the Federal Register in accordance with 5U S.C. 552/a\ and 1 CFR Part 51. �
38 Copies may be obtained from American National Standards Institute, Inc., 1430 Broadway, New York, New .
ae York 10018. Copies may be inspected at the Department of Housing and Urban Development,451 Seventh
4m Street, S.W., Room 10276,Washington, D,C., or at the Office of the Federal Register, 1100 L Street, N.W.,
41 Room 84D1' Washington, D.C}.
GXHUB0F'`B,
54 FR 3232 - implementation of the Fair Housing Amendments Act of 1988 Pa0a'12U'
mtn:/iw^ww.m/,xovung.rom/muex.cm?momvu=vano,mvn|ava»aoonu�v=n,os_sufrxcoc
Item 8 251
EXHIBIT"B"
54 FR 3232- Imp!ementation of the Fair Housing,Amendments Act of 1988 i
1 `Building" means a structure,facility or portion thereof that contains or serves one or more dwelling units.
2
3 'Building entrance on an accessible route"means an accessible entrance to a building that is connected by
4 an accessible route to public transportation stops,to accessible parking and passenger loading zones, or to
s public streets or sidewalks, if available. A building entrance that complies with ANSI A117.1-1986 or a
6 comparable standard complies with the requirements of this paragraph.
7
s "Common use areas" means rooms, spaces or elements inside or outside of a building that are made
9 available for the use of residents of a building or the guests thereof.These areas include hallways, lounges,
io lobbies,laundry rooms,refuse rooms,mail rooms,recreational areas and passageways among and between
11 buildings.
12
a.3 "Controlled substance"means any drug or other substance,or immediate precursor included in the definition
14 in section 102 of the Controlled Substances Act(21 U.S.C. 802).
15
16 "Covered multifamily dwellings"means buildings consisting of or more dwelling units if such buildings have
17 one or more elevators;and ground floordwelling units in other buildings consisting of or more dwelling units.
1&
19 "Dwelling unit" means a single unit of residence for a family or one or more persons. Examples of dwelling
20 units include: a single family home; an apartment unit within an apartment building; and in other types of
21 dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by
22 occupants of more than one room or portion of the dwelling, rooms in which people sleep. Examples of the
23 latter include dormitory rooms and sleeping accommodations in shelters intended for occupancy as a
24 residence for homeless persons.
25
26 "Entrance" means any access pointto a building or portion of a building used by residentsforthe purpose of
n entering.
2s
29 "Exterior" means all areas of the premises outside of an individual dwelling unit.
30
31 "First occupancy" means a building that has never before been used for any purpose:
32
33 "Ground floor" means a floor of a building with a building entrance on an accessible route. A building may
34 have more than one ground floor.
35
36 "Handicap" means,with respect to a person, a physical or mental impairment which substantially limits one
a7 or more major life activities;a record of such an impairment;or being regarded as having such an impairment.
38 This term does not include current, illegal use of or addiction to a controlled substance. For purposes of this
39 part, an individual shall riot be considered to have a handicap solely because that individual is a transvestite.
4o As used in this definition:
EXHIBIT`B"
54 FIR 3232- Implementation of the Fair Housing Amendments Act of 1988 Page-121-
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Item 8. - 252 xB -450-
EXHIBIT"B"
54 FR 3232- im pie mentation of the Fair Noun nq Amendments Act of?988
1 (a) "Physical or mental impairment" includes:
2
3 (1)Any physiological disorder or condition,cosmetic disfigurement,or anatomical loss affecting one or more
4 of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including
s speech organs; cardiovascular; reproductive; disgestive; genito-urinary; heroic and lymphatic; skin; and
6 endocrine; or
7
a (2)Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or
9 mental illness,and specific learning disabilities.The term"physical or mental impairment"includes, but is not
io limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral
11 palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human
12 Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction(other than addiction
13 caused by current, illegal use of a controlled substance)and alcoholism.
14
is (b) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking,
i6 seeing, hearing, speaking, breathing, learning and working.
17
is (c) "Has a record of such an impairment" means has a history of, or has been misclassified as having, a
is mental or physical impairment that substantially limits one or more major life activities.
20
21 (d)"Is regarded as having an impairment".means:
22
23 (1) Has a physical or mental impairment that does not substantially limit one or more major life activities but
za that is treated by another person as constituting such a limitation;
2s
26 (2) Has a physical or mental impairment that substantially limits one or more major life activities only as a
27 result of the attitudes of other toward such impairment; or
za
29 (3) Has none of the impairments defined in paragraph (a) of this definition but is treated by another person
3o as having such an impairment.
31
32 "Interior"means the spaces, parts,components or elements of an individual dwelling unit.
33
34 "Modification"means any change to the public or common use areas of a building or any change to a dwelling
35 unit.
36
37 "Premises" means the interior or exterior spaces, parts, components or elements of a building, including
38 individual dwelling units and the public and common use areas of a building.
EXHIBIT"B"
54 FP 3232 -[mplementaticn of the Fair Housing Amendments Act of 1988 Page-122-
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HB -451- Item 8. - 253
EXHIBIT"B"
54 FR 3232-fr+p1c mentation c;the Fair Housing Amendments Act o;;988
1 "Public use areas" means interior or exterior rooms or spaces of a building that are made available to the
2 general public. Public use may be provided at a building that is privately or publicly owned.
3
4 "Site" means a parcel of land bounded by a property line or a designated.portion of.a public.right or way. .
5
6 § 100,202 General prohibitions against discrimination because of handicap.
7
s (a) It shall be unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a
9 dwelling to any buyer or renter because of a handicap of--
10
11 (1) That buyer or renter;
12
13 (2)A person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
14
15 (3)Any person associated with that person,
16
17 (b) It shall be unlawful to discriminate against any person in the terms,conditions, or privileges of the sale or
is rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of
19 a handicap of--
20
21 (1)That buyer or renter;
22
23 (2)A person residing in or intending to reside in that dwelling after it is so sold, rented,or made available; or
24
25 (3)Any person associated with that person.
26
27 (c)It shall be unlawful to make an inquiry to determine whether an applicantfora dwelling,a person intending
28 to reside in that dwelling after it is so sold, rented or made available, or any person associated with that
24 person, has a handicap or to make inquiry as to the nature or severity of a handicap of such a person.
3o However, this paragraph does not prohibit the following inquiries, provided these inquiries are made of all
31 applicants, whether or not they have handicaps:
32
33 (1) Inquiry into an applicant's ability to meet the requirements of ownership.or tenancy;
34
35 (2) inquiry to determine whether an applicant is qualified for a dwelling available only to persons with
36 handicaps or to persons with a particular type of handicap;
37
EXHIBIT "B"
54 FR 3232 - Implementation of the Fair Housing Amendments Act of 1988 Page -123-
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Item 8. - 254 xB -452-
EXHIBIT"B"
54 FR 3232-fmaiemen'ation of the Fair.lousing Amendments Act of 1988
1 (3)Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with
2 handicaps or to persons with a particular type of handicap;
3
4 (4)Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance;
s
6 (5) Inquiring whetheran applicant has been convicted of the illegal manufacture or distribution of a controlled
7 substance.
fi
9 (d) Nothing in this subpart requires that a dwelling be made available to an individual whose tenancy would
io constitute a direct threat to the health or safety of other individuals or whose tenancy would result in
ii substantial physical damage to the property of others.
12
13 § 100.203 Reasonable modifications of existing premises.
14
is (a)It shall be unlawful far any person to refuse to permit,at the expense of a handicapped person,reasonable
16 modifications of existing premises, occupied or to be occupied by a handicapped person, if the proposed
17 modifications may be necessary to afford the handicapped person full enjoyment of the premises of a
18 dwelling. In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for
i9 a modification on the renter agreeing to restore the interior of the premises to the condition that existed before
20 the modification,reasonable wear and tearexcepted.The landlord may not increase for handicapped persons
21 any customarily required security deposit. However,where it is necessary in order to ensure with reasonable
22 certainty that funds will be available to pay for the restorations at the end of the tenancy,the landlord may
23 negotiate as part of such a restoration agreement a provision requiring that the tenant pay into an interest
24 bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of
25 the restorations.The interest in any such account shall accrue to the benefit of the tenant.
26
27 (b)A landlord may condition permission for a modification on the renter providing a reasonable description
2a of the proposed modifications as well as reasonable assurances that the work will be done in a workmanlike
29 manner and that any required building permits will be obtained.
30
31 (c) The application of paragraph (a)of this section may be illustrated by the following examples:
32
33 Example (1): A tenant with a handicap asks his or her landlord for permission to install grab bars in the
34 bathroom at his or her own expense. It is necessaryto reinforce the walls with blocking between studs in order
35 to affix the grab bars.It is unlawful for the landlord to refuse to permit the tenant,at the tenant's own expense,
36 from making the modifications necessary to add the grab bars. However, the landlord may condition
37 permission for the modification on the tenant agreeing to restore the bathroom to the condition that existed
3s before the modification,reasonable wear and tear excepted. It would be reasonable for the landlord to require
39 the tenant to remove the grab bars at the end of the tenancy.The landlord may also reasonably require that
4o the wall to which the grab bars are to be attached be repaired and restored to its original condition,reasonable
41 wear and tear excepted. However, it would be unreasonable for the landlord to require the tenant to remove
EXHIBIT"B"
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HB -453- Item 8. - 255
EXHIBIT"B"
54 FP 3232-Implementation of the Fair Housing Amendments Act of 1988
1 the blocking, since the reinforced walls will not interfere in any way with the landlord's or the next tenant's use
2 and enjoyment of the premises and may be needed by some future tenant.
3
4 Example (2): An applicant for rental housing has a child who uses a wheelchair.The bathroom door in the
s dwelling unit is too narrow to permit the wheelchair to pass.The applicant asks the landlord for permission
6 to widen the doorway at the applicant's own expense. It is unlawful for the landlord to refuse to permit the
7 applicant to make the modification. Further, the landlord may not, in usual circumstances, condition
8 permission forthe modification on the applicant paying for the doorway to be narrowed atthe end of the lease
9 because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment of the
to premises.
11
12 § 100.204 Reasonable accommodations.
13
14 (a) It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies,
15 practices, or services,when such accommodations may be necessary to afford a handicapped person equal
16 opportunity to use and enjoy a dwelling unit, including public and common use areas.
17
18 (b)The application of this section may be illustrated by the following examples:
19
20 Example (1): A blind applicant for rental housing wants live in a dwelling unit with a seeing eye dog. The
21 building has a "no pets" policy. It is a violation of § 100.204 for the owner or manager of the apartment
22 complex to refuse to permit the applicant to live in the apartment with a seeing eye dog because,without the
23 seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling.
24
2s Example(2):Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are available
26 to tenants and guests of Progress Gardens on a"first come first served" basis. John applies for housing in
27 Progress Gardens.John is mobility impaired and is unable to walk more than a short distance and therefore
28 requests that a parking space near his unit be reserved for him so he will not have to walk very far to get to
29 his apartment. It is a violation of§100.204 forthe owner or manager of Progress Gardens to refuse to make
3o this accommodation. Without a reserved space, John might be unable to live in Progress Gardens at all or,
31 when he has to park in a space far from his unit, might have great difficulty getting from his car to his
32 apartment unit. The accommodation therefore is necessary to afford John an equal opportunity to use and
33 enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the
34 circumstances.
3s
36 § 100.205 Design and construction requirements.
37
38 (a)Covered multifamily dwellings for first occupancy after March 13,1991 shall be designed and constructed
39 to have at least one building entrance on an accessible route unless it is impractical to do so because of the
4o terrain or unusual characteristics of the site.For purposes of this section,a covered multifamily dwelling shall
41 be deemed to be designed and constructed for first occupancy on or before March 13, 1991 if they are
EXHIBIT "B"
54 FR 3232 - Implementation of the Fair Housing Amendments Act of 1988 Page -125-
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Item 8. - 256 HB -454-
EXHIBIT"B"
54 FR 3232- imDlementation of the Fair Housing Amendments Act of 1958
1 occupied by that date or if the last building permit or renewal thereof for the covered multifamily dwellings is
z issued by a State, County or local government on or before January 13, 1990. The burden of establishing
3 impracticality because of terrain or unusual site characteristics is on the person or persons who designed or -
4 constructed the housing facility.
s
6 (b)The application of paragraph(a)of this section may be illustrated by the following examples:
7
s Example (1):A real estate developer plans to construct six covered multifamily dwelling units on a site with
9 a hilly terrain.Because of the terrain, it will be necessary to climb a long and steep stairway in order to enter
a the dwellings.Since there is no practical way to provide an accessible route to any of the dwellings,one need
11 not be provided.
1z
13 Example(2):A real estate developer plans to construct a building consisting of 10 units of multifamily housing
14 on a waterfront site thatfloods frequently.Because of this unusual characteristic of the site,the builder plans
15 to construct the building on stilts. It is customary for housing in the geographic area where the site is located
16 to be built on stilts.The housing may lawfully be constructed on the proposed site on stilts even though this
17 means that there will be no practical way to provide an accessible route to the building entrance.
18
is Example(3):A real estate developer plans to construct a multifamily housing facility on a particular site.The
20 developer would like the facility to be built on the site to contain as many units as possible.Because of the
zi configuration and terrain of the site, it is possible to construct a building with 105 units on the site provided
22 the site does not have an accessible route leading to the building entrance. It is also possible to construct a
23 building on the site with an accessible route leading to the building entrance.However,such a building would
24 have no more than 100 dwelling units. The building to be constructed on the site must have a building
2s entrance on an accessible route because it is not impractical to provide such an entrance because of the
26 terrain or unusual characteristics of the site.
n
zs (c)All covered multifamily dwellings for first occupancy after March 13, 1991 with a building entrance on an
29 accessible route shall be designed and constructed in such a manner that—
30
31 (1)The public and common use areas are readily accessible to and usable by handicapped persons;
32
33 (2)All the doors designed to allow passage into and within all premises are sufficiently wide to allow passage
34 by handicapped persons in wheelchairs; and
35
36 (3)All premises within covered multifamily dwelling units contain the following features of adaptable design:
37
38 (i) An accessible route into and through the covered dwelling unit;
39
4o (ii) Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
EXHIBIT"B"
54 FIR3232-implementation of the Fair Housing Amendments Act of 1985 Page-126-
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HB -455- Item 8. - 257
EXHIBIT "B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 (iii)Reinforcements in bathroom walls to allow later installation of grab bars around the toilet,tub,shower,stall
2 and shower seat, where such facilities are provided; and
3
a (iv) Usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
5
6 (d)The application of paragraph (c)of this section may be illustrated by the following examples:
7
s Example (1).A developer plans to construct a 100 unit condominium apartment building with one elevator.
9 In accordance with paragraph (a), the building has at least one accessible route leading to an accessible
to entrance.All 100 units are covered multifamily dwelling units and they all must be designed and constructed
ii so that they comply with the accessibility requirements of paragraph(c)of this section.
12
13 Example(2):A developer plans to construct 30 garden apartments in a three story building.The building will
14 not have an elevator.The building will have one accessible entrance which will be on the first floor.Since the
15 building does not have an elevator, only the "ground floor` units are covered multifamily units. The"ground
16 floor'is the first floor because that is the floor that has an accessible entrance.All of the dwelling units on the
17 first floor must meet the accessibility requirements of paragraph(c) of this section and must have access to
1s at least one of each type of public or common use area available for residents in the building.
19
20 (e) Compliance with the appropriate requirements of ANSI A117.1-1980 suffices to satisfy the requirements
21 of paragraph (c)(3)of this section.
22
23 (f) Compliance with a duly enacted law of a State or unit of general local government that includes the
24 requirements of paragraphs(a)and(c)of this section satisfies the requirements of paragraphs(a) and (c)of
2s this section.
26
27 (g)(1) It is the policy of HUD to encourage States and units of general local government to include, in their
28 existing procedures for the review and approval of newly constructed covered multifamily dwellings,
29 determinations as to whether the design and construction of such dwellings are consistent with paragraphs
3o (a) and (c)of this section.
31
32 (2) A State or unit of general local government may review and approve newly constructed multifamily
33 dwellings for the purpose of making determinations as to whether the requirements of paragraphs(a)and(c)
34 of this section are met.
35
36 (h) Determinations of compliance or noncompliance by a State or a unit of general local government under
37 paragraph (f) or(g)of this section are not conclusive in enforcement proceedings under the Fair Housing
38 Amendments Act.
39 (1)This subpart does not invalidate or limit any law of a State or political subdivision of a State that requires
4o dwellings to be designed and constructed in a manner that affords handicapped persons greater access than
EXHIBIT"B"
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Item 8. - 258 HB -456-
|�
�
EXHIB[T"B"
,
i is required by this subpart.
|
z |
n
« Subpart E— Housing for Older Persons
s §100.300Purpooa. }
s The purpose of this subpart is to effectuate the exemption in the Fair Housing Amendments Act of 1988 that
r relates to housing for older persons.
a �
�
y § 1DD.3U1Exemption.
lm (e) The provisions regarding familial status in this part do not apply to housing which satisfies the |
ii requirements of§§ 1DD.3D2' 1DD.3D3or§ 1DD.3D4.
12
zs (b)Nothing in this part limits the applicability of any reasonable local,State, or Federal restrictions regarding '
x* the maximum number of occupants permitted to occupy adwelling. �
�
zs ,
16 § 100.3B2 State and Federal elderly housing programs.
17
m The provisions regarding familial status in this part shall not apply to housing provided under any Federal or
1.9 State program that the Secretary determines is specifically designed and operated to assist eld erly persons,
zo aodefined \n the State or Federal program.
zz
22 § 100.303 62 or over housing. |
|
^~
24 bd The provisions regarding familial status in this part shall not apply to housing intended for, and solely �
zs occupied by,persons 62 years of age oroldac Housing oatiofieothe requinement ofthiooecUonaventhoug|z �
zo |
zr (1\ There are persons residing in such housing on September 13. 198� who are under�S� years ofa�e. ) '
' ' |
2u provided that all new occupants are persons G2 years of age ornldar;
29
m (2)There are unoccupied units, provided that such units are reserved for occupancy by persons 62 years of |
sz age orover; `
|
32 !
33 (3)There are units occupied by employees ofthe housing(and family members residing in the same unit)who \
34 are under 02 years of age provided they perform substantial duties directly related to the management or �
as maintenance of the housing. '
3s
37 (b)The following examples illustrate the application of paragraph (a)of this section: �
EXHIBIT"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988 Page-128'
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Item 8 259
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
i Example (1): John and Mary apply for housing at the Vista Heights apartment complex which is an elderly
2 housing complex operated for persons 62 years of age or older. John is 62 years of age.Mary is 59 years of
3 age. If Vista Heights wishes to retain its "62 or over" exemption it must refuse to rent to John and Mary
4 because Mary is under 62 years of age.However,if Vista Heights does rentto John and Mary,it might qualify
s for the "55 or over" exemption in§ 100,304
6
7 Example (2): The Blueberry Hill retirement community has 100 dwelling units. On September 13, 1988, 15
s units were vacant and 35 units were occupied with at least one person who is under 62 years of age. The
9 remaining 50 units were occupied by persons who were all 62 years of age or older.Blueberry Hill can qualify
10 for the"62 or over"exemption as long as all units that were occupied after September 13, 1988 are occupied
i1 by persons who were 62 years of age or older.The people under 62 in the 35 units previously described need
12 not be required to leave for Blueberry Hill to qualify for the "62 or over" exemption.
13
14 § 100.304 55 or over housing.
15
16 (a)The provisions regarding familial status shall not apply to housing intended and operated for occupancy
17 by at least one person 55 years of age or older per unit,Provided That the housing satisfies the requirements
is of§ 100.304 (b)(1) or(b)(2) and the requirements of§ 100.304(c).
19
20 (b)(1)The housing facility has significant facilities and services specifically designed to meet the physical or
21 social needs of older persons. "Significant facilities and services specifically designed to meet the physical
22 or social needs of older persons"include, but are not limited to,social and recreational programs,continuing
23 education,information and counseling,recreational,homemaker,outside maintenance and referral services,
24 an accessible physical environment, emergency and preventive health care of programs,congregate dining
25 facilities,transportation to facilitate access to social services,and services designed to encourage and assist
26 residents to use the services and facilities available to them (the housing facility need not have all of these
27 features to qualify for the exemption under this subparagraph); or
28
29 (2) It is not practicable to provide significant facilities and services designed to meet the physical or social
3o needs of older persons and the housing facility is necessary to provide important housing opportunities for
31 older persons. In order to satisfy this paragraph (b)(2) of this section the owner or manager of the housing
32 facility must demonstrate through credible and objective evidence thatthe provision of significant facilities and
33 services designed to meet the physical or social needs of older persons would result in depriving older
34 persons in the relevant geographic area of needed and desired housing.The following factors,among others,
35 are relevant in meeting the requirements of this paragraph (b)(2) of this section--
36
37 (i)Whether the owner or manager of the housing facility has endeavored to provide significant facilities and
3s services designed to meet the physical or social needs of older persons either by the owner or by some other
39 entity. Demonstrating that such services and facilities are expensive to provide is not alone sufficient to
4o demonstrate that the provision of such services is not practicable.
41
42 (ii)The amount of rent charged, if the dwellings are rented, or the price of the dwellings, if they are offered
EXHIBIT"B"
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'
`
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1986
[
z for sale.
!
'
z
x Ui0 The income range of the residents of the housing facility.
{
4
i
s (iv)The demand for housing for older persons in the relevant geographic area. �
'
s i
i
r (v)The range of housing choices for older persons within the relevant geographic area. !
'
-
9 (vi) The availability of other similarly priced housing for older persons in the relevant geographic area. If
io similarly priced housing for older persons with significant facilities and services is reasonably available in the i
zu relevant geographic area then the housing facility does not meet the requirements of this paragraph(b)(2)of |
z this section. .
13
m (vii)The vacancy rate of the housing facility. `
�
~5 �
zo (o)(1\At least 8U%of the units in the housing facility are occupied bya1 least one person 55 years of age or |
zr older per unit except that e newly constructed housing facility for first occupancy after March 12, 1g8Aneed �
is not comply with this paragraph (c)(1)of this section until 25%of the units in the facility are occupied; and !
i9
zu (2) The owner or manager ofa housing facility publishes and adheres to policies and procedures which |
21 demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older.The !
>
o following haotora, among others, are relevant in determining whether the owner or manager ofa housing
zs facility has complied with the requirements ofthis paragraph (o)(2)of this section: �
^° !
zs (i)Th� mannerin�h(chthehoua|ngfmd|ityiadeochbedtoproap�ot�eread�ntn. �
` /
z» |
27 U0 The nature of any advertising designed to attract prospective residents. {
.
— i
zs (iii)Age verification procedures. �
yu |
/
31. (iv)Lease provisions. �
sz `
i
33 (v)Written rules and regulatkxna_ �
�
y* .
35 (vi) Actua| practices of the owner or manager in enforcing relevant lease provisions and relevant rules or �
as regulations. !
sr
EXHIBIT"B"54 FIR 3232- Implementation ofthe Fair Housing Amendments Act of 1988 �
/
Page '130- �
mtp:xwww.fa/rxnu^mo.00m/inuex.mrnrrnamvu~»ao*,uiupmy&nagenamo=roo,_sofraxoo �
�
'
�f��� Q ���1
UB ��A- ^p�. m. - ��u�
EXHIBIT"B"
54 FR 3232- Implementation of the Fair Hovsirg,Amerdmorts Act of 1966
1 (d) Housing satisfies the requirements of this section even though-
2
3 (1) On September 13, 1988, under 80% of the occupied units in the housing facility are occupied by at least
4 one person 55 years of age or older per unit, provided that at least 80%of the units that are occupied by new
s occupants after September 13, 1988 are occupied by at least one person 55 years of age or older.
6
7 (2) There are unoccupied units, provided that at least 80%of such units are reserved for occupancy by at
s least one person 55 years of age or over.
e
10 (3)There are units occupied by employees of the housing(and family members residing in the same unit)who
11 are under 55 years of age provided they perform substantial duties directly related to the management or
12 maintenance of the housing.
3.3
14 (e) The application of this section may be illustrated by the following examples:
15
16 Example 1:A.John and Mary apply for housing at the Valley Heights apartment complex which is a 100 unit
17 housing complex that is operated for persons 55 years of age or older in accordance with all the requirements
1s of this section.John is 56 years of age.Mary is 50 years of age. Eighty(80)units are occupied by at least one
19 person who is 55 years of age or older. Eighteen (18) units are occupied exclusively by persons who are
20 under 55. Among the units occupied by new occupants after September 13, 1988 were 18 units occupied
21 exclusively by persons who are under 55. Two (2) units are vacant. At the time John and Mary apply for
22 housing, Valley Heights qualifies for the"55 or over"exemption because 82%of the occupied units(80198)
23 at Valley Heights are occupied by at least one person 55 years old or older. If John and Mary are accepted
24 for occupancy,then 81 out of the 99 occupied units(82%)will be occupied by at least one person who is 55
2s years of age or older and Valley Heights will continue to qualify for the"55 or over" exemption.
26
27 B. If only 78 out of the 98 occupied units had been occupied by at least one person 55 years of age or older,
28 Valley Heights would still qualify for the exemption, but could not rent to John or Mary if they were both under
24 55 without losing the exemption.
30
ss Example 2: Green Meadow is a 1,000 unit retirement community that provides significant facilities and
32 services specifically designed to meet the physical or social needs of older persons.On September 13, 1988,
33 Green Meadow published and thereafter adhered to policies and procedures demonstrating an intent to
34 provide housing for persons 55 years of age or older.On September 13, 1988, 100 units werevacant and 300
35 units were occupied only by people who were under 55 years old.Consequently,on September 13,1988 67%
36 of the Green Meadow's occupied units(600 out of 900)were occupied by at at least one person 55 years of
37 age or older. Under paragraph(d)(1)of this section, Green Meadow qualifies for the"55 or over"exemption
3s even though,on September 13, 1988, under 80%of the occupied units in the housing facility were occupied
39 by at least one person 55 years of age or older per unit, provided that at least 80% of the units that were
4lj occupied after September 13, 1988 are occupied by at least one person 55 years of age or older. Under
41 paragraph (d) of this section, Green Meadow qualifies for the "55 or over" exemption, even though it has
42 unoccupied units, provided that at least 80% of its unoccupied units are reserved for occupancy by at least
EXHIBIT
"B"
54 FP 3232 -impiementa`ion of the Fair Housing Amendments Act of 1988 Page -131-
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Item 8. - 262 HB -460-
EXHIBIT"B"
!
z one person 55 years of age orover.
z
3 Example 1 Waterfront Gardens isa2UOunit housing facility 0obe constructed after March 12. 1SO0 The
^ owner and manager of Waterfront Gardens intends to operate the new facility in accordance with the |
s requirements ofthis section.Waterfront Gardens need not comply with the requirement in paragraph (o)(1) '
a of this section that at least 80% of the occupied units be occupied by at least one person 55 years of age or �-
!
r older per unit until 50 units(25%)are occupied.When the 50th unit is occupied,then 80%of the 50 occupied
n units(i.e., 40 units) must be occupied by at least one person who is 55 years of age or older for Waterfront
n Gardens to qualify for the"55or over" exemption. |
~ /
zz Subpart F— Interference, Coercion or �
|
12
i
|
13 § 100408 Prohibited interference, ooeroionorintimidatiom. '
14 .
15 (a)This subpart provides the Department's interpretation of the condmctthatia unlawful under section 0Oof �
za the Fair Housing Act.
�
17
is (b)Itshall be unlawful to coerce,intimidate,threaten,or interferewith any person in the exercise or enjoyment
s of, or on account of that person having exercised or enjoyed, or on account of that person having aided or
2m encouraged any other person in the exercise or enjoyment of, any right granted or protected by this part.
21
zz (o) (�onduotmadeun|av�u| underthissectionindudea, butisnc�Um�edtu, thefnUo�ing� �
/
|
_
23
24 (1) Coercing a person, either orally, in writing, or by other means, to deny or limit the benefitsprovided that
zs person in connection with the sale or rental of a dwelling or in connection with a residential real estate-related
zs transaction because ofrace, color, religion, mex, handicap,familial status, or national ohgin, i
zr |
`
zo (2)Threatening,intimidating or interfering with persons in their enjoyment of a dwelling because of the race, �
zy co!or, religion,sex, handicap,familial status,or national origin nf such persons,orof visitors or associates of �
an such persons.
,z .
yz (3) Threatening an employee or agent with cKamiaua| or an adverse employment action, or taking such |
33 adverse employment action,for any effort to assist a person seeking access to the sale or rental of a dwelling
34 or seeking access to any residential real estate-related transaction, because of the race,color, religion, sex, i
�
3.5 handicap,familial status,or national origin of that person or of any person associated with that person. `
)
36 �
37 (4) Intimidating or threatening any person because that person is engaging in activities designed to make
m other persons aware of, or encouraging such other persons to exercise, rights granted or protected by this
�y part.
EXHIBIT"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1968 Pago'132-
mtn�//ww=.n^irhouamo.xom/moox.amrmamod=naon.mvn/*»unaoonome~rego_nzoauoz
BB 461- T+e " m. - 263
EXHIBIT"B"
54 FR 3232-fmp?ementatfon of the Fafr Housing Amendments Act of 1988
1 (5) Retaliating against any person because that person has made a complaint, testified, assisted, or
2 participated in any manner in a proceeding under the Fair Housing Act.
3
4 4. Part 103 is added to read as follows:
s
5 PART 103-- FAIR HOUSING --COMPLAINT PROCESSING
7
s Subpart A--Purpose and Definitions
a
io Sec.
11
12 103.1 Purpose and applicability.
13
14 103.5 Other civil rights authorities.
1s
16 103.9 Definitions.
17 Subpart B--Complaints
1s 103.10 Submission of information.
19 103.15 Who may file complaints.
20 103.20 Persons against whom complaints may be filed.
21 103.25 Where to file complaints.
22 103.30 Form and content of complaint.
23 103.40 Date of filing of complaint.
24 103.42 Amendment of complaint.
25 103.45 Service of notice on aggrieved person,
26 103.50 Notification of respondent;joinder of additional or substitute respondents.
27 103.55 Answer to complaint.
28 Subpart C-- Referral of Complaints to State and Local Agencies
24 103.100 Notification and referral to substantially equivalent State or local agencies.
30 10&105 Cessation of action on referred complaints.
31 103.110 Reactivation of referred complaints.
32 103.115 Notification upon reactivation.
33 Subpart D-- Investigation Procedures
34 103.200 Investigations.
35 103.205 Systemic processing.
EXHIBIT"B"
54 FR 3232- Imp lementation of the Fair Housing Amendments Act of 1988 Page-133-
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Item 8. - 264 uB -462-
EXHIBIT"B"
54 FR 3232-Implementation of the Fair/-lousing Am.end.monts Art of 1968
103.215 Conduct of investigation.
2 103.220 Cooperation of Federal, State and local agencies.
3 103.225 Completion of the investigation.
4 103.230 Final investigative report.
s Subpart E--Conciliation Procedures
6 103.300 Conciliation,
7 103.310 Conciliation agreement.
s 103.315 Relief sought for aggrieved persons.
9 103.320 Provisions sought for the public interest.
10 103.325 Termination of conciliation efforts.
11 103.330 Prohibitions and requirements with respect to disclosure of information obtained during conciliation.
12 103.335 Review of compliance with conciliation agreements.
13 Subpart F-- Issuance of Charge
14 103.400 Reasonable cause determination.
15 103.405 Issuance of charge.
16 103.410 Election of civil action or provision of administrative proceeding,
17
18
t9 Subpart G -- Prompt Judicial Action
20 103.500 Prompt judicial action.
21 Subpart H—Other Action
22 103.510 Other action by HUD.
23 103.515 Action by other agencies.
24 Authority:Title VII I,Civil Rights Act of 1968,42 U.S.C.3600-3620; section 7(d), Department of HUD Act,42
2s U.S.C.3535(d).
26 Subpart A-- Purpose and Definitions
27 § 103,1 Purpose and applicability.
29 (a)This part contains the procedures established by the Department of Housing and Urban Development for
29 the investigation and conciliation of complaints under section 810 of the Fair Housing Act,42 U.S.C. 3610.
30 (b)This part applies to:
31 (1)Complaints alleging discriminatory housing practices because of race,color,religion,sex or national origin;
32 and
33 (2) Complaints alleging discriminatory housing practices on account of handicap or familial status occurring
34 on or after March 12, 1989,
35 (c) Part 104 governs the administrative proceedings before an administrative law judge adjudicating charges
36 issued under§ 103.405.
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1 (d)The Department will reasonably accommodate persons with disabilities who are participants in complaint
2 processing.
3
4 § 103.5 Other Civil Rights authorities.
s In addition to the Fair Housing Act, other civil rights authorities may be applicable in a particular case.Thus,
6 where a person charged with a discriminatory housing practice in a complaint fled under section 810 of the
7 Fair Housing Act is also prohibited from engaging in similar practices under Title VI of the Civil Rights Act of
s 1964(42 U.S.C.2000d-2000d-5), section 109 of the Housing and Community Development Act of 1974(42
s U.S.C. 5309), Executive Order 11063 of November 20, 1962. on Equal Opportunity in Housing (27 FR
io 1 1 527-1 1 530, November 24, 1962),section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),the Age
11 Discrimination Act(42 U.S.C.6101)or other applicable law,the person may also be subject to action by HUD
12 or other Federal agencies under the rules, regulations, and procedures prescribed under Title VI (24 CFR
13 Parts 1 and 2),section 109 (24 CFR 570,602)), Executive Order 11063(24 CFR Part 107),section 504(24
14 CFR Part 8), or other applicable law.
�s
1.6 § 103.9 Definitions.
17 As used in this part,
is Aggrieved person includes any person who:
ig (a) Claims to have been injured by a discriminatory housing practice; or
20 (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur.
21 Assistant Secretary means the Assistant Secretary for Fair Housing and Equal Opportunity in HUD.
22 Attorney General means the Attorney General of the United States.
23 Complainant means the person(including the Assistant Secretary)who files a complaint under this part.
24 Conciliation means the attempted resolution of issues raised by a complaint, or by the investigation of a
2s complaint, through informal negotiations involving the aggrieved person,the respondent, and the Assistant
26 Secretary.
27 Conciliation agreement means a written agreement setting forth the resolution of the issues in conciliation.
28 Discriminatory housing practice means an act that is unlawful under section 804,805, 806 or 818 of the Fair
29 Housing Act, as described in Part 100.
3o Dwelling means any building,structure,or portion thereof which is occupied as, or designed or intended for
31 occupancy as, a residence by one or more families, or any vacant land which is offered for sale or lease for
32 the construction or location thereon of any such building, structure, or portion thereof.
33 Fair Housing Act means Title VIII of the Civil Rights Act of 1968,42 U.S.C. 3600-3620.
34 General Counsel means the General Counsel of HUD.
3s HUD means the United States Department of Housing and Urban Development.
36 Person Includes one or more individuals, corporations,partnerships, associations,labor organizations,legal
37 representatives, mutual companies,joint-stock companies, trusts, unincorporated organizations, trustees,
36 trustee in cases under Title 11 of the United States Code, receivers and fiduciaries.
39 Personal service means handing a copy of the document to the person to be served or leaving a copy of the
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1. document with a person of suitable age and discretion at the place of business,residence or usual place of
2 abode of the person to be served.
3 Receipt of notice means the day that personal service is completed by handing or delivering a copy of the
4 document to an appropriate person or the date that a document is delivered by certified mail.
s Respondent means:
6 (a)The person or other entity accused in a complaint of a discriminatory housing practice; and
7 (b)Any other person or entity identified in the course of investigation and notified as required under§103.50.
s State means any of the several States, the District of Columbia,the Commonwealth of Puerto Rico, or any
g of the territories and possessions of the United States.
io Substantially equivalent State or local agency means a State or local agency certified by HUD under24 CFR
.ii Part 115 (including agencies certified for interim referrals).
12 To rent includes to lease, to sublease, to let, and otherwise to grant for consideration the right to occupy
13 premises not owned by the occupant.
14
15
16 Subpart B--Complaints
17 § 103.10 Submission of information.
1s (a)The Assistant Secretary will receive information concerning alleged discriminatory housing practices from
1g any person. Where the information constitutes a complaint within the meaning of the Fair Housing Act and
20 this part and is furnished by an aggrieved person, it will be considered to be filed under§ 103,40, Where
21 additional information is required for purposes of perfecting a complaint under the Fair Housing Act, HUD will
22 advise what additional information is needed and will provide appropriate assistance in the filing of the
23 complaint.
24 (b)HUD may also concurrently initiate compliance reviews under other appropriate civil rights authorities,such
25 as E.O. 11063 on Equal Opportunity in Housing, Title VI of the Civil Rights Act of 1964, section 109 of the
26 Housing and Community Development Act of 1974, section 504 of the Rehabilitation Act of 1973 or the Age
27 Discrimination Act(42 U.S.C.6101).The information may also be made available to any other Federal,State
28 or local agency having an interest in the matter. In making available such information, steps will be taken to
29 protect the confidentiality of any informant or complainant where desired by the informant or complainant.
30
31 § 103.15 Who may file complaints.
32 Any aggrieved person or the Assistant Secretary may file a complaint no later than one year after an alleged
33 discriminatory housing practice has occurred or terminated.The complaint may be filed with the assistance
34 of an authorized representative of an aggrieved person, including any organization acting on behalf of an
3s aggrieved person.
36
37 § 103.20 Persons against whom complaints may be filed.
3s (a)A complaint may be filed against any person alleged to be engaged,to have engaged, or to be about to
39 engage, in a discriminatory housing practice.
40 (b) A complaint may also be filed against any person who directs or controls, or has the right to direct or
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—_
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z control,the conduct of another per on with respect to any aspect of the sale, rental, advertising orfinancing
7 of dwellings or the provision of brokerage services relating to the ue(e or rental of dwellings if that other
s person, acting within the scope of his or her authority as employee or agent of the directing or controlling
4 person, is has or inadiuchnn�netoryhouuingpnacUce. |
` ' ' !
s '
s § 1O3.26 Where Uu file complaints. /
r (a)(1) Aggheved persons may file complaints in person with. orby mail to: Fair Housing, Department of �
u Housing and Urban Development,Washington DC 2O41O.or any HUD Office.A list of Regional Offices(with !
|
s addresses and areas of urisdiction)and Field Offices(with addresses)is contained in an appendix to this part. !
�
�
o (2)Aggrieved persons may provide information tobe contained inacomplaint by telephone to any Regional �
zz or Field Office of HUD. HUD will reduce information provided by telephone towriting on the prescribed i
13 complaint form and send the form tothe aggrieved person to be signed and affirmed as provided in § `
z* 103.30(a).
zs
zs (3) Complaints may be filed in person or by ma( with any substantially equivalent State or local agency.
o Complaints filed with a substantially equivalent State or local agency will be considered to be complaintsdual
is filed with the agency under its own(aw and' |
a i
'
zn (b) Generally, complaints will be processed through HUO's Regional Administrator having jurisdiction in the �
zz State in which the alleged discriminatory housing practice occurred. However,where a complaint has been i
zz identified for systemic processing under § 103.205, that complaint may be processed in the Office of the
23 Assistant Secretary inWashington, DC. �
z* (
zs § 103.3O Form and content ofcomplaint. �
~ |
z, (a) Each mun�cJaintn�uut6e in and signed by the peruon ��ngthe |
' . �
28 complaint or, if the complaint im filed by HUD,bythe Assistant Secretary.The signature and affirmation may
zy be made at any time during the investigation.The affirmation shall state: "I declare Linder penalty of pedury |
so that the foregoing iu true and correot." �
sz
37 (b)The Assistant Secretary may require complaints to be made on prescribed forms,Complaint forms will be
ss available in any HUD office orinany substantially equivalent State or local agency. Nctw|thstanding any
34 requirementfor use of a prescribed form,HUD will accept any written statementwhich substantially sets forth i
3s the allegations of a discriminatory housing practice under the Fair Housing Act(including any such statement �
36 filed with a substantially equivalent State or local agency)as a Fair Housing Act complaint.Personnel in these .
a, offices will provide appropriate assistance in filling out forms and infiUn0acomplaint. '
yu
ay (c) Each complaint must contain substantially the following information: .
�
40
�
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!
'
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54 FR.32:32- Implementation of the Fair Housing Amendments Act of 1988_
(1)The name and address of the aggrieved person.
z
3 (2)The name and address of the respondent.
s (3)A description and the address of the dwelling which is involved, if appropriate.
5
7 (4)A concise statement of the facts,including pertinent dates,constituting the alleged discriminatory housing
s practice.
9
io § 103.40 Date of filing of complaint.
12 (a)Except as provided in paragraph(b)of this section,a complaint is filed when it is received by HUD,or dual
n filed with HUD through a substantially equivalent State or local agency, in a form that reasonably meets the
za standards of§ 103.30.
is
16 (b)The Assistant Secretary may determine that a complaint is filed for the purposes of the one-year period
17 for the filing of complaints, upon the submission of written information (including information provided by
is telephone and reduced to writing by an employee of HUD)identifying the parties and describing generally the
19 alleged discriminatory housing practice.
21 (c)Where a complaint alleges a discriminatory housing practice that is continuing,as manifested in a number
22 of incidents of such conduct,the complaint will be timely if filed within one year of the last alleged occurrence
23 of that practice.
24
2s § 103.42 Amendment of complaint.
26
27 Complaints may be reasonably and fairly amended at any time. Such amendments may include, but are not
28 limited to.amendments to cure technical defects or omissions, including failure to sign or affirm a complaint,
29 to clarify or amplify the allegations in a complaint, or to join additional or substitute respondents. Except for
3o the purposes of notifying respondents under§103.50,amended complaints will be considered as having been
31 made as of the original filing date.
3z
33 § 103.45 Service of notice on aggrieved person.
34
3s Upon the filing of a complaint,the Assistant Secretary will notify, by certified mail or personal service, each
36 aggrieved person on whose behalf the complaint was filed. The notice will:
37
33 (a)Acknowledge the fling of the complaint and state the date that the complaint was accepted for filing.
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1 (b) Include a copy of the complaint.
2
3 (c)Advise the aggrieved person of the time limits applicable to complaint processing and of the procedural
4 rights and obligations of the aggrieved person under this part and Part 104.
s
5 (d)Advise the aggrieved person of his or her right to commence a civil action under section 813 of the Fair
7 Housing Act in an appropriate United States District Court, not later than two years after the occurrence or
s termination of the alleged discriminatory housing practice. The notice will state that the computation of this
9 two-year period excludes any time during which a proceeding is pending under this part or Part 104 with
10 respect to a complaint or charge based on the alleged discriminatory housing practice. The notice will also
11 state that the time period includes the time during which an action arising from a breach of a conciliation
12 agreement under section 814(b)(2) of the Fair Housing Act is pending.
13 '
14 (e)Advise the aggrieved person that retaliation against any person because he or she made a complaint or
15 testified, assisted, or participated in an investigation or conciliation under this part or an administrative
16 proceeding under Part 104,is a discriminatory housing practice that is prohibited under section 818 of the Fair
17 Housing Act.
18
19 § 103.50 Notification of respondent;joinder of additional or substitute respondents.
20
21 (a)Within ten days of the filing of a complaint under§ 103.40 or the filing of an amended complaint under§
22 103,42,the Assistant Secretary will serve a notice on each respondent by certified mail or by personal service.
23 A person who is not named as a respondent in a complaint, but who is identified in the course of the
24 investigation under Subpart D of this part as a person who is alleged to be engaged,to have engaged, or to
25 be about to engage in the discriminatory housing practice upon which the complaint is based may be joined
20 as an additional or substitute respondent by service of a notice on the person under this section within ten
27 days of the identification.
2s
29 (b)(1)The notice will identify the alleged discriminatory housing practice upon which the complaint is based,
3o and include a copy of the complaint.
31
32 (2)The notice will state the date that the complaint was accepted for filing.
33
34 (3)The notice will advise the respondent of the time limits applicable to complaint processing under this part
35 and of the procedural rights and obligations of the respondent under this part and Part 104, including the
35 opportunity to submit an answer to the complaint within 10 days of the receipt of the notice.
37
38 (4)The notice will advise the respondent of the aggrieved person's right to commence a civil action under
39 section 813 of the Fair Housing Act in an appropriate United States District Court, not later than two years
ao after the occurrence or termination of the alleged discriminatory housing practice. The notice will state that
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i It-he computation of this two-year period excludes any time during which a proceedingks pending under this i
2 part or Part 104 with respect to a complaint or charge based on the alleged discriminatory housing practice.
s The notice will also state that the time period includes the time during which an action arising from a breach
4 of a conciliation agreement under section 814(b)(2)of the Fair Housing Act is pending. i
i
s (5) Kthaparmonimnotnomedinihecomp|a|ntbutimbeinOjoinedomanaddKiona|oraubs�tuteremponden� �
r the` ' notice will explain the basis for the Assistant Secretary's belief that the joined person is property joined
a as a respondent. /
)
e (
zn (0) The notice will advise the respondent that retaliation against any person because he or she made a (
zi complaint or testified, assisted or participated in an investigation or conciliation under this port or on �
12 administrative proceeding under Part 104,is a discriminatory housing practicethat is prohibited under section �
zs 818of the Fair Housing Act. /
'
14 '
za § 1O3.55 Answer to complaint. !
za �
o, (a)The respondent nnayfOeanonavver not|�erthan ten days after receipt of the not�edemohbedin 1O�50
zs 'e respondent may assert any defense that might be available to a defendent in a court of law,The answer
zy must bm signed and/ nned by the respondent.The affirmation must state:"[declare under penalty of perjury
zo that the foregoing is true and mzrn*ot.° �
�
zz /
o (b)4m answer may be reasonably and fairly amended at any dmewith the consent of theAssistant8ecretary. �
zs i
24 Subpart C—RefenralnfCompaintstuState and Local Agencies
zs
zs 103.100 Notification and referral to substantially equivalent State or local agencies. �
z/ i
za (e) Whenever o complaint alleges o discriminatory housing practice that � xvdNn the jurisdiction of n i
' ' - }
29 substantiallyequivalent State or local agency and the agency is certified m may accept interim referrals under |
3o 24CFRPart 115 with regard to the alleged discriminatory housing practice,the Assistant Secretary will notify !
31 the agency of the filing of the complaint and refer the complaint to the agency for further processing before |
.3z HUD takes any action with respect to the complaint. The Assistant Secretary will notify the State or local �
sa agency ofthe referral by certified mail. i
�
aw "
/5 (b)The Assistant Secretary will notify the aggrieved person and the respondent,by certified mail or personal
so service,of the notification and referral under paragraph(a)of this section.The notice will advise the aggrieved
ar person and the respondent of the aggrieved person's right to commence a civil action under section 813 of |
38 the Fair Housing Act in an appropriate United States District Court. not later than two years after the �
39 occurrence or termination of the alleged discriminatory housing practice. The notice will state that the �
�
m computation excludesany time during which o proceeding ie pending under this part \
/
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1 or Part 104 with respect to complaint or charge based on the alleged discriminatory housing practice. The
2 notice will also state that the time period includes the time during which an action arising from a breach of a
3 conciliation agreement under section 814(b)(2) of the Fair Housing Act is pending.
4
5 § 103.105 Cessation of action on referred complaints.
6
7 (a)After a complaint is referred under§103,100,the Assistant Secretary will take no futher action with respect
s to the complaint, except as provided in § 103.110.
s
10 (b) A referral under § 103.100 does not prohibit the Assistant Secretary from taking appropriate action to
11 review or investigate matters in the complaint that raise issues cognizable under other civil rights authorities
12 applicable to departmental programs (see§ 103.5).
13
14 § 103.110 Reactivation of referred complaints.
15
16 The Assistant Secretary may reactivate a complaint referred under§ 103.100 for processing by HUD if:
17
1s (a)The substantially equivalent State or local agency consents or requests the reactivation;
20 (b)The Assistant Secretary determines that,with respect to the alleged discriminatory housing practice,the
21 agency no longer qualifies for certification as a substantially equivalent State or local agency and may not
22 accept interim referrals; or
23
24 (c)The substantially equivalent State or local agency has failed to commence proceedings with respect to the
25 complaint within 30 days of the date that it received the notification and referral of the complaint;orthe agency
26 commenced proceedings within this 30-day period, but the Assistant Secretary determines that the agency
27 has failed to carry the proceedings forward with reasonable promptness.HUD will not reactivate a complaint
28 under this paragraph (c) of this section until the appropriate HUD Regional Office has conferred with the
29 agency to determine the reason for the delay in processing of the complaint. If the Assistant Secretary
3o believes that the agency will proceed expeditiously following the conference, the Assistant Secretary may
31 leave the complaint with the agency for a reasonable time,notwithstanding the expiration of the 30-day period
32 or a previous failure to carry the proceedings forward with reasonable promptness.
33
34 § 103.115 Notification upon reactivation.
35
36 (a)Whenever a complaint referred to a State or local fair housing agency under§103.100 is reactivated under
37 § 103.110,the Assistant Secretary will notify the substantially equivalent State or local agency,the aggrieved
3s person and the respondent of HUD°s reactivation.The notification will be made by certified mail or personal
39 service.
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1 (b)The notification to the respondent and the aggrieved person will:
2
3 (1)Advise the aggrieved person and the respondent of the time limits applicable to complaint processing and
a the procedural rights and obligations of the aggrieved person and the respondent underthis part and Part 104.
5
6 (2) State that HUD will process the complaint under the Fair Housing Act and that the State or local agency
7 to which the complaint was referred may continue to process the complaint under State or local law.
s
9 (3)Advise the aggrieved person and the respondent of the aggrieved person's rightto commence a civil action
10 under section 813 of the Fair Housing Act in an appropriate United States District Court, not later than two
11 years after the occurrence or termination of the alleged discriminatory housing practice.The notice will state
12 that the computation of this two-year period excludes any time during which a proceeding is pending under
13 this part or Part 104 with respect to a complaint or charge based on the alleged discriminatory housing
14 practice under Part 104. The notices will also state that the time period includes the time during which an
is action arising from a breach of conciliation agreement under section 814(b)(2) of the Fair Housing Act is
16 pending.
17
18 Subpart D-- Investigation Procedures
19
20 § 103.200 Investigations.
21 (a) Upon the filing of a complaint under § 103.40, the Assistant Secretary will initiate an investigation. The
22 purpose of an investigation are:
23
24 (1) To obtain information concerning the events or transactions that relate to the alleged discriminatory
2s housing practice identified in the complaint.
26
27 (2)To document policies or practices of the respondent involved in the alleged discriminatory housing practice
zs raised in the complaint.
29
i
30 (3) To develop factual data necessary for the General Counsel to make a determination under§ 103.400
31 whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about
32 to occur, and to take other actions provided under this part.
33
34 (b)Upon thewritten direction ofthe Assistant Secretary,HUD may irritate an investigation of housing practices
35 to determine whether a complaint should be filed under Subpart B of this park. Such investigations will be
36 conducted in accordance with the procedures described under this subpart.
37
38 §103.205 Systemic processing.
39 Where the Assistant Secretary determines that the alleged discriminatory practices contained in a complaint
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are pervasive or institutional in nature, or that the processing of the complaint will involve complex issues,
2 novel questions of fact or law, or will affect a large number of persons, the Assistant Secretary may identify
3 the complaint for systemic processing. This determination can be based on the face of the complaint or on
4 information gathered in connection with an investigation. Systemic investigations may focus not only on
s documenting facts involved in the alleged discriminatory housing practice that is the subject of the complaint
6 but also on review of other policies and procedures related to matters under investigation,to make sure that
7 they also comply with the nondiscrimination requirements of the Fair Housing Act.
s
9 § 103.215 Conduct of investigation.
io (a) In conducting investigations under this part, the Assistant Secretary will seek the voluntary cooperation
n of all persons to obtain access to premises, records, documents, individuals, and other possible sources of
12 information; to examine, record, and copy necessary materials; and to take and record testimony or
a3 statements of persons reasonably necessary for the furtherance of the investigation.
14
A (b)The Assistant Secretary and the respondent may conduct discovery in aid of the investigation by the same
16 methods and to the same extent that parties may conduct discovery in an administrative proceeding under
n 24 CFR Part 104, except that the Assistant Secretary shall have the power to issue subpoenas described in
is 24 CFR 104.590 in support of the investigation or at the request of the respondent.Subpoenas issued by the
1g Assistant Secretary must be approved by the General Counsel as to their legality before issuance.
20
21 103.220 Cooperation of Federal, State and local agencies.
22 The Assistant Secretary,in processing Fair Housing Act complaints,may seekthe cooperation and utilize the
23 services of Federal,State or local agencies, including any agency having regulatory or supervisory authority
24 over financial institutions.
25
26 § 103.225 Completion of investigation.
27 The investigation will remain open until the reasonable cause determination is made under§ 103,400, or a
29 conciliation agreement is executed and approved under§ 103.310. Unless it is impracticable to do so, the
29 Assistant Secretary will complete the investigation of the alleged discriminatory housing practice within 100
3o days of the filing of the complaint(or where the Assistant Secretary reactivates the complaint,within 160 days
31 after service of the notice of reactivation under§ 103.115). If the Assistant Secretary is unable to complete
32 the investigation within the 100-day period,the Assistant Secretary will notify the aggrieved person and the
33 respondent, by certified mail or personal service, of the reasons for the delay.
34
3s §103.230 Final investigative report.
36 (a)At the end of each investigation under this part,the Assistant Secretary will prepare a final investigative
37 report. The investigative report will contain:
3a
39 (1) The names and dates of contacts with witnesses, except that the report will not disclose the names of
40 witnesses that request anonymity. HUD, however, may be required to disclose the names of such witnesses
41 in the course of an administrative hearing under Part 104 or a civil action under Title Vill of the Fair Housing
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Act;
2
3 (2) A summary and the dates of correspondence and other contacts with the aggrieved person and the
4 respondent;
i
s
6 (3)A summary description of other pertinent records;
7
s (4)A summary of witness statements; and
9
i.o (5) Answers to interrogatories.
11
12 (b)A final investigative report may be amended at any time, if additional evidence is discovered.
13
14 (c) Notwithstanding the prohibitions and requirements with respect to disclosure of information contained in
15 § 103.330, the Assistant Secretary will make information derived from an investigation, including the final
16 investigative report, available to the aggrieved person and the respondent. Following the completion of .
17 investigation, the Assistant Secretary shall notify the aggrieved person and the respondent that the final
18 investigation report is complete and will be provided upon request.
19
20 Subpart E--Conciliation Procedures
21 § 103,300 Conciliation.
22 (a) During the period beginning with the filing of the complaint and ending with the filing of a charge or the
23 dismissal of the complaint by the General Counsel,the Assistant Secretary will,to the extentfeasible,attempt
24 to conciliate the complaint.
25
26 (b) In conciliating a complaint, HUD will attempt to achieve a just resolution of the complaint and to obtain
27 assurances that the respondentwill satisfactorily remedy any violations of the rights of the aggrieved person,
28 and take such action as will assure the elimination of discriminatory housing practices, or the prevention of
29 their occurrence, in the future.
30
31 (c) Generally, oftwcers, employees,and agents of HUD engaged in the investigation of a complaint under this
32 partwill not participate or advise in the conciliation of the same complaint or in any factually related complaint.
33 Where the rights of the aggrieved party and the respondent can be protected and the prohibitions with respect
34 to the disclosure of information can be observed, the investigator may suspend fact finding and engage in
3s efforts to resolve the complaint by conciliation.
36
37 § 103.310 Conciliation agreement.
38 (a) The terms of a settlement of a complaint will be reduced to a written conciliation agreement. The
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i conciliation agreement shall seek to protect the interests of the aggrieved person, other persons similarly
2 situated,and the public interest.The types of relief that may be sought for the aggrieved person are described
3 in § 103.315.The provisions that may be sought for the vindication of the public interest are described in §
4 103.320.
6 (b)(1) The agreement must be executed by the respondent and the complainant.The agreement is subject
7 to the approval of the Assistant Secretary,who will indicate approval by signing the agreement.The Assistant
3 Secretary will approve an agreement and, if the Assistant Secretary is the complainant, will execute the
9 agreement, only if:
10
11 (i) The complainant and the respondent agree to the relief accorded the aggrieved person;
12
13 (ii)The provisions of the agreement will adequately vindicate the public interest; and
14
15 (iii) If the Assistant Secretary is the complainant, all aggrieved persons named in the complaint are satisfied
16 with the relief provided to protect their interests.
17
18 (2) The General Counsel may issue a charge under§ 103.405 if the aggrieved person and the respondent
19 have executed a conciliation agreement that has not been approved by the Assistant Secretary.
20
21 § 103.315 Relief sought for aggrieved persons.
22 (a) The following types of relief may be sought for aggrieved persons in conciliation:
23
24 (1)Monetary relief in the form of damages,including damages caused by humiliation or embarrassment,and
25 attorney fees;
26
27 (2) Other equitable relief including, but not limited to, access to the dwelling at issue, or to a comparable
28 dwelling,the provision of services or facilities in connection with a dwelling, or other specific relief; or
29
30 (3) Injunctive relief appropriate to the elimination of discriminatory housing practices affecting the aggrieved
31 person or other persons.
32
33 (b)The conciliation agreement may provide for binding arbitration of the dispute arising from the complaint.
34 Arbitration may award appropriate relief as described in paragraph(a)of this section.The aggrieved person
35 and the respondent may, in the conciliation agreement, limit the types of relief that may be awarded under
36 binding arbitration.
37
38 § 103.320 Provisions sought for the public interest.
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54 Fr?3232- Implementation of the Fair Housing Amendments Act of 1988
1 The following are types of provisions may be sought for the vindication of the public interest:
2
3 (a)Elimination of discriminatory housing practices.
4
s (b)Prevention of future discriminatory housing practices.
6
7 (c) Remedial affirmative activities to overcome discriminatory housing practices.
s
9 (d) Reporting requirements.
10
i1 (e) Monitoring and enforcement activities.
12
13 § 103.325 Termination of conciliation efforts.
14 (a)HUD may terminate its efforts to conciliate the complaint if the respondent fails or refuses to confer with
7.s HUD;the aggrieved person or the respondent fail to make a good faith effort to resolve any dispute;or HUD
16 finds, for any reason,that voluntary agreement is not likely to result.
17
18 (b) Where the aggrieved person has commenced a civil action under an Act of Congress or a State law
1g seeking relief with respect to the alleged discriminatory housing practice, and the trial in the action has
20 commenced, HUD will terminate conciliation unless the court specifically requests assistance from the
21 Assistant Secretary.
22
23 §103,330 Prohibitions and requirements with respect to disclosure of information obtained during conciliation.
24
2s (a)Except as provided in paragraph (b) of this section and § 103.230(c), nothing that is said or done in the
26 course of conciliation underthis part may be made public or used as evidence in a subsequent administrative
27 hearing under Part 104 or in civil actions under Title VI11 of the Fair Housing Act, withoutthe written consent
2s of the persons concerned.
29
30 (b) Conciliation agreements shall be made public, unless the aggrieved person and respondent request
31 nondisclosure and the Assistant Secretary determines that disclosure is not required to further the purposes
32 of the Fair Housing Act. Notwithstanding a determination that disclosure of a conciliation agreement is not
33 required, the Assistant.Secretary may publish tabulated descriptions of the results of all conciliation efforts.
34
35 § 103.335 Review of compliance with conciliation agreements.
36 HUD may,from time to time,review compliance with the terms of any conciliation agreement.Whenever HUD
37 has reasonable cause to believe that a respondent has breached a conciliation agreement, the General
3s Counsel shall refer the matter to the Attorney General with a recommendation for the filing of a civil action
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54 FR 3232-Imp lementation of the Fair Housing Amendments Act of 1988
1 under section 814(b)(2)of the Fair Housing Actfor the enforcement of the terms of the conciliation agreement.
2
3 Subpart F--Issuance of Charge
4
s § 103.400 Reasonable cause determination.
s (a) If a conciliation agreement under § 103.310 has not been executed by the complainant and the
7 respondent,and approved by the Assistant Secretary,the General Counsel,within the time limits set forth in
s paragraph (c) of this section, shall determine whether, based on the totality of the factual circumstances
9 known at the time of the decision, reasonable cause exists to believe that a discriminatory housing practice
10 has occurred or is about to occur. The reasonable cause determination will be based solely on the facts
n conceming the alleged discriminatory housing practice, provided by complainant and respondent and
12 otherwise, disclosed during the investigation. In making the reasonable cause determination, the General
13 Counsel shall consider whether the facts concerning the alleged discriminatory housing practice are sufficient
14 to warrant the initiation of a civil action in Federal court.
15
16 (1) In all cases not involving the legality of local zoning or land use laws or ordinances:
17
18 (i) If the General Counsel determines that reasonable cause exists, the General Counsel will immediately
19 issue a charge under§103.405 on behalf of the aggrieved person,and shall notify the aggrieved person and
20 the respondent of this determination by certified mail or personal service.
21
22 (ii) If the General Counsel determines that no reasonable cause exists, the General Counsel shall: issue a
23 short and plain written statement of the facts upon which the General Counsel has based the no reasonable
24 cause determination;dismiss the complaint; notify the aggrieved person and the respondent of the dismissal
25 (including the written statement of facts)by certified mail or personal service; and make public disclosure of
26 the dismissal. Public disclosure of the dismissal shall be by issuance of a press release, except that the
27 respondent may request that no release be made. Notwithstanding a respondents request that no press
2s release be issued, the fact of the dismissal, including the names of the parties, shall be public information
29 available on request.
30
31 (2)If the General Counsel determines that the matter involves the legality of local zoning or land use laws or
32 ordinances, the General Counsel, in lieu of making a determination regarding reasonable cause,shall refer
33 the investigative materials to the Attorney General for appropriate action under section 814(b)(1)of the Fair
34 Housing Act, and shall notify the aggrieved person and the respondent of this action by certified mail or
3s personal service.
36
37 (b)The General Counsel may not issue a charge under paragraph (a) of this section regarding an alleged
3s discriminatory housing practice, if an aggrieved person has commenced a civil action under an Act of
39 Congress or a State lawseeking reliefwith respect to the alleged discriminatory housing practice,and the trial
4e in the action has commenced. If a charge may not be issued because of the commencement of such a trial,
41 the General Counsel will so notify the aggrieved person and the respondent by certified mail or personal
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54 FR 3232-Implementation of"lie Fair Housing Amendments Act of 1988
z service.
^ |
3 (oX1) The General Counsel ehoU make the reasonable cause determination after the Assistant Secretary
'
`—` /
4 forwards the matter for consideration. The General Counsel shall make a reasonable cause determination .
�
s within 100 days after filing of the complaint(or where the Assistant Secretary has reactivated a complaint, �
s within 100 days after service of the notice of reactivation under§ 103.115),unless it is impracticable to do so. !
r )
u (2) If the General Counsel is unable to make the determination within the 100-doy period specified in !
e paragraph(c)(1)ofthinneohnn'theAooimtantSecnatoryvviUnnUƒytheaggriavedparmnnandthanampondent. �
/
zu by certified mail or personal service, nf the reasons for the delay. !
z�
zz § 1O34O5 Issuance nfcharge. �
13 kJAcharge: '
14 (1)Shall consist nfoshort and plain written statement of the facts upon which the General Counsel has found
is reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur; �
16
o O9 Shall ba based on the final investigative report; and �
|
� (3)Need not ba limited ho facts oxg rounds that are alleged(n the complaint filed under Subpart Bof this part. |
zo If the charge is based on grounds that are alleged in the complaint, HUD will not issue a charge with regard �
zz to the grounds unless the record of the investigation demonstrates that the respondent has been given notice
zz and an opportunity to respond to the allegation.
23 |
|
z4 (b)Within three business days after the issuance of the charge, the General Counsel shall: �
zs /
za (1) Obtain a time and place for hearing from the Chief Docket Clerk of the Office of Administrative Lovv |
z/ Judges;
zn
zy (2)File the charge along with the notifications described I n§104.41 0(b)with the Office of Administrative Law �
sm Judges; �
31
32 (3) Serve the charge and notifications in accordance with 24 CFR104.40| and �
as �
34 (4) Notify the Assistant Secretary of the filing of the charge. �
/
35
|
so � 1O3.41O Election of civil action nr provision nfadministrative proceeding. |
ur (a) If a charge is issued under§ 103.405, a complainant(including the Assistant Secretary, if HUD filed the �
3s onmp\oinA)'orespondent, nran aggrieved person nn whose behalf the complaint imfiled may elect,in lieu nf
EXHIBIT"B",54 FFZ 3232- Implementation of the Fair Housing Amendments Act of 1988 �
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m'p:/ onu|vp}uv�puo*nome~,�oo sofrueou `
'=�~^�""""`"'e^," '~~^^^^'^'~^^~~�~~ � - |
'
'
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54 FR 3222- Implementation of the Fair Housing Amendments Act of 1988
1 an administrative proceeding under 24 CFR Part 104,to have the claims asserted in the charge decided in
2 a civil action under section 812(o) of the Fair Housing Act.
3
4 (b)The election must be made not later than 20 says after the receipt of service of the charge, or in the case
s of the Assistant Secretary, not later than 20 days after service.The notice of the election must be filed with
6 the Chief Docket Clerk in the Office of Administrative Law Judges and served on the Genera! Counsel,the
7 Assistant Secretary,the respondent,and the aggrieved persons on whose behalf the complaintwas filed.The
s notification will be filed and served in accordance with the procedures established under 24 CFR Part 104.
9
10 (c) If an election is not made under this section, the General Counsel will maintain an administrative
11 proceeding based on the charge in accordance with the procedures under 24 CFR Part 104.
12
13 (d) If an election is made under this section,the General Counsel shall immediately notify and authorize the
14 Attorney General to commence and maintain a civil action seeking relief under section 812(o) of the Fair
is Housing Act on behalf of the aggrieved person in an appropriate United States District Court,Such notification
16 and authorization shall include transmission of the file in the case, including a copy of the final investigative
17 report and the charge, to the Attorney General
is
is (e)The General Counsel shall be available for consultation concerning any legal issues raised by the Attorney
20 General as to how best to proceed in the event that a new court decision or newly discovered evidence is
21 regarded as relevant to the reasonable cause determination.
22
23 Subpart G -- Prompt Judicial Action
24 § 103,500 Prompt judicial action.
2s (a)If at any time following the filing of a complaint,the General Counsel concludes that prompt j udicial action
26 is necessary to carry out the purposes of this part or 24 CFR Part 104,the General Counsel may authorize
27 the Attorney General to commence a civil action for appropriate temporary or preliminary relief pending final
2s disposition of the complaint,To ensure the prompt initiation of the civil action,the General Counsel will consult
29 with the Assistant Attorney General for the Civil Rights Division before making the determination that prompt
30 judicial action is necessary.The commencement of a civil action by the Attorney General under this section
31 will not affect the initiation or continuation of proceedings underthis part or administrative proceedings under
32 Part 104.
33
34 (b) If the General Counsel has reason to believe that a basis exists for the commencement of proceedings
3s against the respondent under section 814(a)of the Fair Housing Act(Pattern or Practice Gases),proceedings
36 under section 814(c) of the Fair Housing Act (Enforcement of Subpoenas), or proceedings by any
37 governmental licensing or supervisory authorities, the General Counsel shall transmit the information upon
3s which that belief is based to the Attorney General and to other appropriate authorities.
39
4o Subpart H --Other Action
41
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54 FR 3232-lmafemenfation of the Fair Housing Amendments.Act of 1988
1 § 103.510 Other action by HUD.
2 In addition to the actions described in § 103.500, HUD may pursue one or more of the following courses of
3 action:
4
s (a) Refer the matter to the Attorney General for appropriate action (e.g., enforcement of criminal penalties
6 under section 811(c) of the Act).
7
a (b)Take appropriate steps to initiate proceedings leading to the debarment of the respondent under 24 CFR
9 Part 24, or initiate other actions leading to the imposition of administrative sanctions where HUD determines
to that such actions are necessary to the effective operation and administration of Federal programs or activities.
11
12 (c)Take appropriate steps to initiate proceedings under:
13
14 (1)24 CFR Part 1, implementing Title VI of the Civil Rights Act of 1964;
15
16 (2)24 CFR 570.912, implementing section 109 of the Housing and Community Development Act of 1974;
17
1$ (3)24 CFR Part 8, implementing section 504 of the Rehabilitation Act of 1973;
L9
20 (4)24 CFR Part 107, implementing Executive Order 11063; or
21
22 (5)The Age Discrimination Act, 42 U.S.C. 6101.
23
24 (d) Inform any other Federal, State or local agency with an interest in the enforcement of respondent's
25 obligations with respect to nondiscrimination in housing.
26
27 § 103.515 Action by other agencies.
28 In accordance with section 808 (d) and (e) of the Fair Housing Act and Executive Order No. 12259, other
29 Federal agencies, including any agency having regulatory or supervisory authority overftnancial institutions,
3o are responsible for ensuring that their programs and activities relating to housing and urban development are
31 administered in a manner affirmatively to further the goal of fair housing,and forcooperating with the Assistant
32 Secretary in furthering the purposes of the Fair Housing Act.
33
34 5.A new Part 104 is added to read as follows:
35
36 PART 104--ADMINISTRATIVE PROCEEDINGS UNDER SECTION 812 OF THE FAIR HOUSING ACT
37 Subpart A--General information
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54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 Sec.
2 104.10 Scope.
s 104.20 Definitions.
4 104.30 Time computations:
s 104.40 Service and filing.
6 Subpart B —Administrative Law Judge
7 104.100 Designation.
s 104.110 Authority.
9 104.120 Disqualification.
10 104.130 Ex Parte communications.
11 104.140 Separation of functions.
12 Subpart C— Parties
13 104.200 In general.
14 104.210 Representation.
15 104.220 Standards of conduct.
16 Subpart D--Pleadings and motions
17 104.400 In general.
1s 104.410 The Charge.
19 104,420 Answer to charge.
20 104.430 Request for intervention.
21 104.440 Amendments and supplemental pleadings.
22 104.450 Motions.
23 Subpart E -- Discovery
24 104.500 Discovery.
2s 104.510 Depositions.
26 104.520 Use of Deposition at hearings.
27 104.530 Written interrogatories.
28 104.540 Production of documents and other evidence;entry upon land for inspection and other purposes;and
29 physical and mental examinattons.
so 104.550 Admissions.
sz. 104.560 Supplementation of responses.
32 104.570 Protective orders.
as 104.580 Failure to make or cooperate in discovery.
34 Subpart F--Subpoenas
35 104.590 Subpoenas.
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54 FR 3232- jrrplementation of the Fair Housing Amendments Act of 1988_
1 Subpart G -- Prehearing Procedures
2 104,600 Prehearing statements.
3 104.610 Prehearing conference.
4 104.620 Settlement negotiations before a settlement judge.
5 Subpart H -- Hearing procedures
6 104.700 Date and place of hearing.
7 104.710 Conduct of hearings.
s 104.720 Waiver of right to appear.
a 104.730 Evidence.
io 104,740 In camera and protective orders.
11 104.750 Exhibits.
12 104.760 Authenticity.
13 104,770 Stipulations.
14 104.780 Record of hearing.
15 104.790 Arguments and briefs.
16 104,800 End of hearing.
17 104.810 Receipt of evidence following hearing.
is Subpart I -- Dismissals and Decisions
19 104.900 Dismissal.
zo 104.910 Initial decision of administrative law judge.
21 104.920 Service of initial decision.
zz 104.925 Resolution of charge.
23 104.930 Final decision.
24 104,935 Action upon issuance of final decision,
25 104.940 Attorney's fees and costs.
25 Subpart J --Judicial Review and Enforcement of Final Decision
27 104.950 Judicial Review of Final Decision.
zs 104.955 Enforcement of Final Decision.
24 Authority:Title Vill,Civil Rights Act of 1968(42 U.S.C.3600-3620);section 7(d),Department of Housing and
3o Urban Development Act(42 U.S.C. 3535(d)).
31
32 Subpart A--General Information
33 § 104.10 Scope.
34 (a) Applicability. This part contains the rules of practice and procedure established by the Department of
35 Housing and Urban Development for administrative proceedings before an Administrative.Law Judge
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54 FR 3232- lm.)'smentaticr c'the Fair Housing Amens€melts fact of 1988
1 adjudicating the claims asserted in a charge issued under 24 CFR Part 103, where no party -- the
2 complainant,the respondent, or an aggrieved party—elects to have the claims decided in a civil action under
3 section 812(o) of the Fair Housing Act.
s (b) General application of rules. Hearings under this subpart shall be conducted as expeditiously and
6 inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and a
7 complete record.
a
9 (c)Conduct of proceedings.The Department will reasonably accommodate persons with disabilities who are
io participants in the hearing process or interested members of the general public.
li
12 § 104.20 Definitions.
13 Aggrieved person includes any person who:
14
is (a) Claims to have been injured by a discriminatory housing practice; or
16
17 (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur,
1fi
19 Attorney General means the Attorney General of the United States.
20
21 Complainant means the person (including the Assistant Secretary for Fair Housing and Equal Opportunity)
22 who filed the complaint under 24 CFR Part 103.
23
2e¢ Complaint means a complaint filed under 24 CFR Part 103.
2s
26 Charge means the statement of facts issued under 24 CFR 103,405 upon which HUD has found reasonable
27 cause to believe that a discriminatory housing practice has occurred or is about to occur.
28
29 Discriminatory housing practice means an act that is unlawful under section 804,805, 806 or 818 of the Fair
3o Housing Act.
31
32 Fair Housing Act means Title Vlll of the Civil Rights Act of 1968, 42 U.S.C. 3600-3620.
33
34. General Counsel means the General Counsel of HUD.
3s
36 Hearing means that part of an administrative proceeding that involves the submission of evidence,either by
87 oral presentation or written submission, and includes the submission of briefs and oral arguments on the
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54 FR 3232-fmplemontation of the Fair Housing Amendments Act of 1988
2 evidence and applicable law.
2
3 HUD means the United States Department of Housing and Urban Development.
4
s Party means a person or agency named or admitted as a party to a proceeding. Party includes an aggrieved
6 person who intervenes under§ 104,430.
7
a Person includes one or more individuals, corporations,partnerships,associations,labor organizations, legal
s representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees,
io trustees in cases under Title 11 of the United States Code, receivers and fiduciaries.
i2 Personal service means handing a copy of the document to the person to be served or leaving a copy of the
23 document with a person of suitable age and discretion at the place of business, residence or usual place of
14 abode of the person to be served.
15
is Prevailing party has the same meaning as the term has in section 722 of the Revised Statutes of the United
i7 States(42 U.S.C. 1988).
lIi
,q Respondent means the person accused in a charge of discriminatory housing practice.
20
21 State means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or any
22 of the territories and possessions of the United States.
23
24 § 104.30 Time computations.
25 (a) In general. In computing time under this part, the time period begins the day following the act, event, or
26 default and includes the last day of the period, unless the last day is a Saturday, Sunday, or legal holiday
27 observed by the Federal Government, in which case the time period includes the next business day.When
28 the prescribed time period is seven days or less, intermediate Saturdays,Sundays, and legal holidays shall
29 be excluded from the computation.
30
31 (b)Modification of time periods.Except for time periods required by statute,the administrative law judge may
32 enlarge or reduce any time period required under this part where necessary to avoid prejudicing the public
33 interest or the rights of the parties.
34
35 (c)Entry of orders.In computing any time period involving the date of the issuance of an order or decision by
3ei an administrative law judge, the date of issuance is the date the order or decision is served by the Chief
37 Docket Clerk.
38
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54 FR 3232-implementation of the Fair Housing Amendments Act of 1988
i (d)Computation of time for delivery by mail. (1) Documents are not filed until received by the Chief Docket
2 Clerk. However,when documents are filed by mail, three days shall be added to the prescribed time period.
3
4 (2)Service is effected at the time of mailing. .
s
6 (3)When a party has the right or is required to take an action within a prescribed period after the service of
7 a document upon the party, and the document is served by mail,three days shall be added to the prescribed
8 period.
9
io § 104.40 Service and filing.
n (a)Generally.Copies of all filed documents shall be served on all parties of record.All filed documents shall
12 clearly designate the docket number, if any, and title of the proceeding. All documents to be filed shall be
13 delivered or mailed to the Chief Docket Clerk,Office of Administrative Law Judges,Room 2158,451 Seventh
14 Street, SW.,Washington, DC 20410.
ss
16 (b)By parties. Parties shall file all documents with the Office of Administrative Law Judges with a copy to all
17 other parties of record. Service of documents upon any party may be made by personal service or by mailing
18 a copy to the last known address. When a party is represented by an attorney, service shall be made upon
.i9 the attorney.The person serving the document shall certify to the manner and date of service.
20
21 (c) By the Office of Administrative Law Judges. The Office of Administrative Law Judges shall serve all
22 notices, orders, decisions and all other documents by mail to the last known address.
23
24 Subpart B—Administrative Law Judge
25 § 104.100 Designation.
26 Proceedings under this part shall be presided over by an administrative law judge appointed under 5 U.S.C.
27 3105. The presiding administrative law judge shall be designated by the chief administrative law judge at
28 HUD.
29
30 § 104.110 Authority.
M The administrative law judge shall have all powers necessary to the conduct of fair and impartial hearings
32 including, but not limited to, the power:
33 (a)To conduct hearings in accordance with this part.
34
35 (b)To administer oaths and affirmations and examine witnesses.
36
37 (c)To issue subpoenas in accordance with § 104,590.
38
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54 FR 3232-implementation of the Fair Housing Amendments Act of 1988
1 (d)To rule on offers of proof and receive evidence.
2
3 (e)To take depositions or have depositions taken when the ends of justice would be served.
4
s (f)To regulate the course of the hearing and the conduct of parties and their counsel.
6
7 (g)To hold conferences for the settlement or simplification of the issues by consent of the parties.
s
s (h)To dispose of motions, procedural requests, and similar matters.
10
11 (i)To make initial decisions as described under Subpart I of this Part.
12
13 6)To exercise such powers vested in the Secretary as are necessary and appropriate for the purpose of the
14 hearing and conduct of the proceeding.
15
16 § 104.120 Disqualification.
17 (a) Disqualification. 1f an administrative law judge finds that there is a basis for his or her disqualification in
1s a proceeding, the Administrative lawjudge shall withdraw from the proceeding.Withdrawal is accomplished
19 by entering a notice in the record and by providing a copy of the notice to the chief administrative law judge.
20
21 (b)Notion for recusai. If a party believes that the presiding administrative law judge should be disqualified in
22 a proceeding for any reason, the party may file a motion to recuse with the administrative law judge. The
23 motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The
24 administrative law judge shall rule on the motion. If the administrative law judge denies the motion, the
25 administrative law judge shall incorporate a written statement of the reasons for the denial in the record.
26
27 (c) Redesignation of administrative law judge. If an administrative law judge is disqualified, the chief
28 administrative law judge shall designate another administrative lawjudge to preside overfurther proceedings.
29
30 § 104.130 Ex Parte communications.
31 (a) General. An ex parte communication is any direct or indirect communication concerning the merits of a
32 pending proceeding, made by a party in the absence of any other party, to the administrative law judge
33 assigned to the proceeding and which was neither on the record nor on reasonable prior notice to all parties.
34 Ex parte communications do not include communications made forthe sole purpose of scheduling hearings,
3s requesting extensions of time, or requesting information on the status of cases.
36
37 (b) Prohibition. Ex parte communications are prohibited.
38
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54 FR 3232- tmnlementation of the Farr Housing Amendments Pict of 1988
1 (c) Procedure upon receipt. If the administrative law judge receives an ex parte communication that the
2 administrative law judge knows or has reason to believe is prohibited, the administrative law judge shall
3 promptly place the communication,or a written statement ofthe substance of the communication,in the record
4 and shall furnish copies to all parties. Unauthorized communications shall not be taken into consideration in
s deciding any matter in issue. Any party making a prohibited ex parte communication may be subject to
6 sanctions including, but not limited to, exclusion from the proceeding, and adverse ruling on the issue that is
7 the subject of the prohibited communication.
s
9 § 104.140 Separation of functions.
1a
11 No officer, employee, or agent of the Federal Government engaged in the performance of investigative,
12 conciliatory, or prosecutorial functions in connection with the proceeding shall, in that proceeding or any
13 factually related proceeding under this part, participate or advise in the decision of the administrative law
14 judge, except as a witness or counsel during the proceedings.
15
16 Subpart G--Parties
17 §104.200 In general.
18 (a) Parties. Parties to the proceeding include:
19
20 (1) HUD. HUD files the charge under 24 CFR 103.405 seeking appropriate relief for an aggrieved party and
21 vindication of the public interest.
22
23 (2) Respondent.A respondent is a person named in the charge issued under 24 CFR 103.405 against whom
24 relief is sought.
25
26 (3) Intervenors.Any aggrieved person may file a request for intervention under§104.430. Intervention shall
27 be permitted if the request is timely and;
28
29 (I)The intervenor is the aggrieved.person on whose behalf the charge is issued; or
30
31 (ii) The intervenor is an aggrieved person who claims an interest in the property or transaction that is the
32 subject of the charge and the disposition of the charge may as a practical matter impair or impede the
33 aggrieved persons ability to protect that interest, unless the aggrieved person is adequately represented by
34 the existing parties.
35
36 (b)Rights of parties.Each party mayappearin person,be represented by counsel,examine orcross-examine
37 witnesses, introduce documentary or other relevant evidence into the record, and request the issuance of
38 subpoenas.
39
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1 (c)Amicus Curiae.Briefs of amicus curiae may be permitted atthe discretion of the administrative law judge.
2 Such participants are not parties to the proceeding.
3
4 § 104,210 Representation.
s (a) Representation of HUD. HUD is represented by the General Counsel.
e
7 (b) Representation of other parties. Other parties may be represented as follows:
9 (1) Individuals may appear on their own behalf.
io
11 (2)A member of a partnership may represent the partnership.
12
1.3 (3)An officer of a corporation, trust or association may represent the corporation, trust or association.
14
is (4)An Officer or employee of any governmental unit, agency or authority may represent that unit, agency or
1E authority.
17
is (5)An attorney admitted to practice before a Federal Court or the highest court in any State. The attorney's
ig representation that he or she is in good standing before any of these courts is sufficient evidence of the
20 attorney's qualifications under this section, unless otherwise ordered by the administrative law judge.
21
22 (c) Notice of appearance. Each attorney or other representative of a party shall file a notice of appearance.
23 The notice must indicate the party of whose behalf the appearance is made. Any individual acting in a
24 representative capacity may be required by the administrative lawjudge to demonstrate authority to act in that
25 capacity.
2s
27 (d) Withdrawal. An attorney or other representative of a party must file a written notice of intent before
28 withdrawing from participation in the proceeding.
29
3o § 104.220 Standards of conduct.
31 (a) In general. All persons appearing in proceedings under this.part shall act with integrity and an ethical
32 manner.
33
34 (b)Exclusion.The administrative law judge may exclude parties or their representatives for refusal to comply
35 with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and
36 ethical conduct,failure to act in good faith, or violations of the prohibitions against ex parte communications.
37 If an attorney is suspended or barred from participation in a proceeding by an administrative law judge,the
38 administrative law judge shall include in the record the reasons for the action.An attorney that is suspended
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I
1 or barred from participation may appeal to the chief administrative law judge. The proceeding will not be
2 delayed or suspended pending disposition on the appeal, except that the administrative law judge shall
3 suspend the proceeding for a reasonable time to enable the party to obtain another attorney.
4 ..
s Subpart D--Pleadings and motions
e § 104.00 In general.
7 (a)Form. Every pleading, motion, brief, or other document shall contain a caption setting forth the title of the
s proceeding,the docket number assigned by the Office of Administrative Law Judges,and the designation of
9 the type of document(e.g., charge,answer or motion to dismiss).
1
11 (b)Signature. Every pleading, motion, brief, or other document filed by a party shall be signed by the party,
12 the party's representative, or the attorney representing the party,and must include the signer's address and
13 telephone number.The signature constitutes a certification that the signer has read the document;that to the
14 best of the signer's knowledge,information and belief there is good ground to support the document;and that
is it is not interposed for delay.
1s
17 (c)Timely filing.The administrative law judge may refuse to consider any motion or other pleading that is not
i3 filed in a timely fashion and in compliance with this part.
19
20 § 104.410 The charge.
21 (a) Filing and service.Within three days after the issuance of a charge under 24 CFR 103.405,the General
22 Counsel shall file the charge with the Chief Docket Clerk in the Office of Administrative Law Judges and serve
23 copies (with the additional information required under paragraph (b) of this section)on the respondent and
24 the aggrieved person on whose behalf the complaint was filed.
2s
25 (b) Contents. The charge shall consist of a short and plain written statement of the facts upon which the
27 General Counsel has found reasonable cause to believe that a discriminatory housing practice has occurred
28 or is about to occur. The following notifications shall be served with the charge:
29
30; (1)The notice shall state that a complainant(including HUD,if HUD filed the complaint),a respondent,or an
31 aggrieved person on whose behalf thecomplaint was filed may elect to have the claims asserted inthe charge
32 decided in a civil action under section 812(o)of the Act,in lieu of an administrative proceeding under this part.
33 The notice shall state that the election must be made not later than 20 days after the receipt of the service
34 of the charge.Where HUD is the complainant,the Assistant Secretary must make the election not later than
35 20 days after the service of the charge. The notice shall state that the notification of the election must be
3s served on the Chief Docket Clerk in the Office of Administrative Law Judges, the respondent, the aggrieved
37 party on whose behalf the complaint was filed, the Assistant Secretary and the General Counsel.
is
39 (2) The notice shall state that if no person timely elects under paragraph (b)(1) of this section to have the
40 claims asserted in the charge decided in a civil action under section 812(o) of the Act, an administrative
41 proceeding will be conducted.The notice shall state that if an administrative hearing is conducted:
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1 (i)The parties will have an opportunity for a hearing at a date and place specified in the notice.
z
3 (ii) The respondent will have an opportunity to file an answer to the charge within 30 days of the date of
4 service of the charge.
s
e (iii)The aggrieved person may participate as a party tothe administrative proceeding by fling a timely request.
7 for intervention.
s
9 (iv)All discovery must be concluded 15 days before the date set for hearing.
1�r
11 (3) The notice shall state that if at any time following the service of the charge on the respondent, the
12 respondent intends to enter into a contract, sale, encumbrance, or lease with any person regarding the
1.3 property that is the subject of the charge, the respondent must provide a copy of the charge to the person
14 before the respondent and the person enter into the contract, sale, encumbrance or lease.
15
16 § 104.20 Answer to charge.
17
1.s Within the 30 days after the service of the charge, a respondent contesting material facts alleged in a charge
1s or contending that the respondent is entitled to judgement as a matter of law shall file an answer to the
zo charge. An answer shall include:
21
zz (a) A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient
23 information to admit ordeny,each allegation made in the charge.A statementoflack of information shall have
24 the effect of a denial.Any allegation that is not denied shall be deemed to be admitted.
25
zs (b)A statement of each affirmative defense and a statement of facts supporting each affirmative defense.
27
zs § 104.30 Request for intervention.
z-9
30 Upon timely application, any aggrieved person may file a request for intervention to participate as a party to
31 the proceeding. Requests for intervention submitted within 30 days after the filing of the charge shall be
32 considered to be timely filed.
33
34 § 104.440 Amendments and supplemental pleadings.
3s (a) Amendments — (1) By right. HUD may amend its charge once as a matter of right prior to filing of the
35 answer.
37
3s (2)By leave. Upon such conditions as are necessary to avoid prejudicing the public interest and the rights of
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i'B"
54 FR 3232- lmplemontation of the Fair Housing Amendments Act of 1988
i
i the parties, the administrative lawjudge may allow amendments to pleadings upon motion of the party.
2
3 (3)Conformance to the evidence.When issues not raised by the pleadings are reasonably within the scope
A of the original charge.andhave_been.tried by the express or.implied consent of the parties,the issues shall j
s be treated in all respects as if they had been raised in the pleadings and amendments may be made as
6 necessary to make the pleading conform to evidence.
7
8 (b)Supplemental pleadings.The administrative lawjudge may,upon reasonable notice,permit supplemental
9 pleadings concerning transactions, occurrences or events that have happened or been discovered since the
10 date of the pleadings and which are relevant to any of the issues involved.
11
12 § 104.450 Motions.
13 (a) Motions. Any application for an order or other request shall be made by a motion which, unless made
14 during an appearance before the administrative lawjudge,shall be made in writing.Motions or requests made
15 during an appearance before the administrative law judge shall be stated orally and made a part of the
16 transcript.All parties shall be given a reasonable opportunity to respond to written or oral motions or requests.
17
1s (b)Answers to written motions.Within five days after a written motion is served, any party to the proceeding
1g may file an answer in support of,or in opposition to the motion.Unless otherwise ordered bythe administrative
20 law judge, no further responsive documents may be filed.
21
22 (c) Oral argument.The administrative lawjudge may order oral argument on any motion.
23
24 Subpart E--Discovery
25 § 104.500 Discovery.
26 (a)In general.This subpart governs discovery in aid of administrative proceedings underthis Part.Except for
27 time periods stated in these rules,to the extent that these rules conflict with discovery procedures in aid of
2s civil actions in the United States District Court for the District in which the investigation of the discriminatory
29 housing practice took place,the rules of the United States District Court apply.
30
31 (b) Scope. The parties are encouraged to engage in voluntary discovery procedures. Discovery shall be
32 conducted as expeditiously and inexpensively as possible, consistent with the needs of all parties to obtain
33 relevant evidence.Unless otherwise ordered bythe administrative lawjudge,the parties may obtain discovery
34 regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding,
35 including the existence,description,nature,custody,condition,and location of documents or persons having
36 knowledge of any discoverable matter. It is not grounds for objection that information sought will not be
37 admissible if the information sought appears reasonably calculated to lead to the discovery of admissible
38 evidence.
39
40 (c) Methods. Parties may obtain discovery by one or more of the following methods:
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54 FR 3232-tmniementat`on of the Rntr Housino Amendments Act of 1988
(1) Deposition upon oral examination or written questions.
2
3 (2)Written interrogatories.
4
s (3) Requests for the production of documents or other evidence, for inspection and other purposes, and
6 physical and mental examinations.
7
s (4) Requests for admissions.
9
10 (d)Frequency and sequence. Unless otherwise ordered by the administrative law judge or restricted by this '
11 subpart,the frequency or sequence of these methods is not limited.
12
13 (e)Completion of discovery.All discovery shall be completed 15 days before the date scheduled for hearing.
14
1s (f) Not intervening aggrieved person. Foe the purposes of obtaining discovery from a non-intervening
16 aggrieved person,the term'party"as used in this subpart includes the aggrieved person on whose behalf the
17 charge was issued.
1s
19 § 104.510 Depositions.
20 (a) In general. Depositions may be taken upon oral examination or upon written interrogatory before any
21 person having the power to administer oaths.
22
23 (b)Notice.Any party desiring to take the deposition_of a witness shall indicate to the witness and to all parties
24 the time and place of the deposition, the name and post office address of the person before whom the
2s deposition is to be taken,the name and address of the witness,and the subject matter of the testimony of the
26 witness. Notice of the taking of a deposition shall be given not less than five days before the deposition is
27 scheduled.The attendance of a witness may be compelled by subpoena under§ 104.590.
2s
29 (c)Procedure at deposition.Each witness deposed shall be placed under oath or affirmation,and other parties
30 shall have the right to cross-examine.The questions propounded and all answers a nd objections made to the
31 propounded questions shall be reduced to writing;read by orto,and subscribed by,the witness;and certified
32 by the person before whom the deposition was taken.
33
34 (d)Objections.During a deposition,a party or deponent may request suspension of the deposition on grounds
35 of bad faith in the conduct of the examination,oppression of a deponent or party,or improper questioning or
36 conduct. Upon the request for suspension,the deposition will be adjourned.The objecting party or deponent
37 must immediately move the administrative law judge for a ruling on the objections.The administrative law
38 judge may then limit the scope or manner of taking the deposition.
39
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1 (e) Payment of costs of deposition.The party requesting the deposition shall bear all costs of the deposition.
2
3 § 104.520 Use of deposition at hearings.
4 (a) In general.At the hearing,any part or all of a deposition;so far as admissible under the Federal Rules of
s Evidence, may be used against any party who was present or represented at the taking of the deposition or
6 who had due notice of the taking of the deposition, in accordance with the following provisions:
7
s (1)Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of
9 the deponent as a witness.
10
11 (2)The deposition of expert witnesses, may be used by any party for any purpose, unless the administrative
1.2 law judge rules that such use is unfair or a violation of due process.
13
14 (3) The deposition of a party or of anyone who at the time of the taking of the deposition was an officer,
15 director;or duly authorized agent of a public or private corporation, partnership,or association that is a party,
16 may be used by any other party for any purpose.
17
1s (4) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the
i.s administrative law judge finds:
20
21 (i)That the witness is dead;
22
23 (ii)That the witness is out of the United States or more than 100 miles from the place of hearing, unless it
24 appears that the absence of the witness was procured by the party offering the deposition;
2s
26 (iii)That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment;
27
28 (iv) That the party offering the deposition has been unable to procure the attendance of the witness by
2s subpoena; or
30
31 (v)Whenever exceptional circumstances exist as to make it desirable, in the interest of justice and with due
32 regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the
33 deposition to be used.
34
35 (5)If a part of a deposition is offered in evidence by a party,any other party may require the party to introduce
36 all of the deposition that is relevant to the part introduced. Any party may introduce any other part of the
37 deposition.
38
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54 FR 3232-ltnplementatlon cf fhe Fair Housing Amendments Act of 1.958
1 (5) Substitution of parties does not affect the right to use depositions previously taken. If a proceeding has
2 been dismissed and another proceeding involving the same subject matter is later brought between the same
3 parties or their representatives or successors in interest, all depositions lawfully taken in the former
4 proceeding may be used in the latter proceeding.
s
b (b) Objections to admissibility. Except as provided in this paragraph, objection may be made at the hearing
7 to receiving in evidence any deposition or part of a deposition for any reason that would requirethe exclusion
s of the evidence if the witness were present and testifying.
9
io (1)Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are
i1 not waived by failure to make them before or during the taking of the deposition, unless the basis of the
12 objection is one which might have been obviated or removed if presented at that time.
13
14 (2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the
is form of the questions or answers,in the oath or affirmation,or in the conduct of parties,and errors of any kind
is which might be obviated, removed or cured if promptly presented, are waived unless reasonable objection
17 is made at the taking of the deposition.
1$
19 (3) Objections to the form of written interrogatories are waived unless served in writing upon the party
20 propounding the interrogatories.
21 § 104.530 Written interrogatories.
22
23 (a) Written interrogatories to parties. Any party may serve on any other party written interrogatories to be
24 answered by the party served. if the party served is a public or private corporation, a partnership, an
25 association, or a governmental agency, the interrogatories may be answered by any authorized officer or
25 agent who shall furnish such information as may be available to the party.A party may serve not more than
27 30 written interrogatories on another party without an order of the administrative law judge.
28
29 (b)Responses to written interrogatories. Each interrogatory shall be answered separately and fully in writing
3o under oath or affirmation, unless the party objects to the interrogatory. If a party objects to an interrogatory,
31 the response shall state the reasons for the objection in lieu of an answer.The answer and objections shall
32 be signed by the person making them, exceptthat objections may be signed bythe counsel forthe party.The
33 party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all
34 parties within 15 days after service of the interrogatories.
35
3s § 104,540 Production of documents and other evidence; entry upon land for inspection and other purposes;
37 and physical and mental examinations.
38
39 (a) In general.Any party may serve on any other party a request to:
4a
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(1) Produce and permit the party making the request,or a person acting on the party's behalf,to inspect and
2 copy any designated documents, or to inspect and copy,test, or sample any tangible things that are in the
3 possession, custody, or control of the party upon whom the request is served;
4
5 (2) Permit entry upon designated land or other property in the possession or control of the party upon whom
6 the request is served for the purpose of inspection and measuring, photographing,testing,or other purposes
7 stated in paragraph(a)(1) of this section; or
s
s (3) Submit to a physical or mental examination by a physician.
1d
ii (b) Contents of request. The request shall:
12
13 (1) Set forth the items to be inspected by individual item or by category of items;
14
is (2) Describe each item or category with reasonable particularity;
15
17 (3)Specify a reasonable time, place and manner for making the inspection and performing the related acts;
is and
19
20 (4) Specify the time, place, manner, conditions, and scope of the physical or mental examination, and the
21 person or persons who will make the examination. A report of the examining physician shall be made in
22 accordance with Rule 35(b)of the Federal Rules of Civil Procedure.
23
24 (c) Response to request. Within 15 days of the service of the request, the party upon whom the request is
2s served shall serve a written response on the party submitting the request. The response shall state, with
26 regard to each item or category:
27
28 (1)That inspection and related activities will be permitted as requested; or
29
30 (2)That objection is made to the request in whole or in part. If an objection is made,the response must state
3-1 the reasons for the objection.
32
33 § 104.550 Admissions.
34 (a) Request for admissions.A party may serve on any other party a written request for the admission of the
35 genuineness and authenticity of any relevant document described in or attached to the request, or for the
35 admission of the truth of any specified relevant matter of fact.
37
38 (b) Response to request. (1)Each matter for which an admission is requested is admitted unless, within 15
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z days after service of the request, the party to whom the request is directed serves on the requesting party:
2
(i)A written statement specifically denying the relevant matters for which an admission is requested;
4
s (ii)A written statement setting forth in detail why the party cannot truthfully admit or deny the matters; or
6
7 (iii)Written objections to the request alleging that the matters are privileged or irrelevant,or that the request
s is otherwise improper.
9
10 (2) The party to whom the request is directed may not give lack of information or knowledge as a reason for
11 failure to admit or deny,unless the party states that it has made a reasonable inquiry and that the information
i2 known or readily obtainable is insufficient to enable the party to admit or deny.
13
14 (c)Sufficiency or response.The party requesting admissions may move fora determination of the sufficiency
is of the answers or objections.Unless the administrative lawjudge determines that an objection is justified,the
16 administrative lawjudge shall orderthat an answer be served. If the administrative law judge determines that
17 an answer does not comply with the requirements of this section,the administrative lawjudge may order either
18 that the matter is admitted or that an amended answer be served.
19
20 (d) Effect of admission.Any matter admitted under this section is conclusively established unless, upon the
21 motion of a party,the administrative lawjudge permits the withdrawal or amendment of the admission.Any
22 admission made under this section is made for the purposes of the pending proceeding only, is not an
23 admission by the party for any other purpose,and may not be used against the party in any other proceeding.
24
2s (e)Service of requests. Each request for admission and each written response must be served on all parties
26 and filed with the Office of administrative lawjudges.
27
28 § 104.560 Supplementation of responses.
29 (a) In general. A party who responded to a request for discovery with a response that was complete when
30 made is under no duty to supplement the response to include information acquired after the response was
31 made except:
32
33 (1) A party is under a duty to timely supplement responses with respect to any question directly addressed
34 to:
3S
36 (i)The identity and location of persons having knowledge of discoverable matters; and
37
3s (ii)The identity of each person expected to be called as an expert witness at the hearing, the subject matter
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1 on which the expert witness is expected to testify, and the substance of the testimony.
2
3 (2)A party is under a duty to timely amend a previous response if the parry later obtains information upon the
d basis of which:
s
5 (i)The party knows the response was incorrect when made; or
7
s (ii)The party knows the response though correct when made is no longer true and the circumstances are such
9 that a failure to amend the response is, in substance, a knowing concealment.
10
11 (b) By order or agreement.A duty to supplement responses may be imposed by order of the administrative
12 law judge or by agreement of the parties.
13
14 § 104.570 Protective orders.
is Upon motion of a party or a person from whom discovery is sought or in accordance with§ 104.580(c), the
16 administrative law judge may make appropriate orders to protect a party or person from annoyance,
17 embarrassment,oppression,or undue burden or expense as a result of the requested discovery request.The
1s order may direct that:
14
20 (a)The discovery may not be had;
21
22 (b) The discovery may be had only on specified terms and conditions, including a designation of time and
23 place for discovery;
24
25 (c) The discovery may be had by a method of discovery other than that selected by the party seeking
26 discovery;
27
25 (d) Certain irrelevant matters may not be the subject of discovery,or that the scope of discovery be limited
29 to certain matters;
30
31 (e)Discovery may be conducted with no one present other than persons designated by the administrative law
32 judge;
33
34 (f)A trade secret or other confidential research,development or com mercial information may not be disclosed,
3s or may be disclosed only in a designated way; or
36
37 (g)To protect privileged matters,the administrative law judge may take such other action permitted under§
3s 104.740.
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54 FR 3232-implementation of the Fair Heusinq Amendments Act of 1988
1 § 104.580 Failure to make or cooperate in discovery.
2 (a)Motion to compel discovery. If a deponent fails to answer a question propounded, or a party upon whom
3 a request is made under§§104.530 through 104.550 fails to respond adequately,objects to a request,orfails
4 to permit inspection as requested,the discovering party may move the administrative law judge for an order
5 compelling a response or an inspection in accordance with the request.The motion shall:
6
7 (1)State the nature of the request;
8
9 (2)Set forth the response or objection of the party upon whom the request was served;
10
11 (3) Present arguments supporting the motion; and
12
13 (4)Attach copies of ail relevant discovery requests and responses.
14
15 (b) Evasive or incomplete answers. For the purposes of this section, an evasive or incomplete answer or
16 response will be treated as a.failure to answer or respond.
17
1s (c)Administrative law judge ruling. In ruling on a motion under this section,the administrative law judge may
19 enter an order compelling a response or an inspection in accordance with the request, may issue sanctions
20 under paragraph (d)of this section; or may enter a protective order under§ 104,570.
21
22 (d)Sanctions.If partyfails to complywith an order(including an orderfortaking a deposition,the production
23 of evidence within the party's control, a request for admission, or the production of witnesses) the
24 administrative law judge may:
25
26 (1) Draw an inference in favor of the requesting party with regard to the information sought;
27
28 (2) Prohibit the party failing to comply with the order from introducing evidence concerning, or otherwise
29 relying upon,testimony relating to the information sought;
30
31 (3) Permit the requesting party to introduce secondary evidence concerning the information sought;
32
33 (4)Strike any appropriate part of the pleadings or other submissions of the parry failing to comply with such
34 order; or
3s
36 (5)Take such other action as may be appropriate.
37 Subpart F--Subpoenas
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I `.
i
i § 104.590 Subpoenas
2
3 (a)In general.This section governs the issuance of subpoenas in administrative proceedings underthis part.
a Except for time periods stated in these rules, to the extent that this rule conflicts with procedures for the
s issuance of subpoenas in civil actions in the United States District Court for the District in which the
6 investigation of the discriminatory housing practice took place,the rules of the United States District Court
7 apply.
s
4 (b) Issuance of subpoena. Upon the written request of a party, the chief administrative law judge or the
io presiding administrative law judge may issue a subpoena requiring:
11
12 (1)The attendance of a witness for the purpose of giving testimony at a deposition;
i3
1 (2)The attendance of a witness for the purpose of giving testimony at a hearing; and
is
16 (3)The production of relevant books, papers,documents or tangible things.
17
18 (c) Time of request. Requests for subpoenas in aid of discovery must be submitted in time to permit the
1s conclusion of discovery 15 days before the date scheduled for the hearing. If a request for subpoenas of a
20 witness for testimony at a hearing is submitted three days or less before the hearing,the subpoena shall be
21 issued at the discretion of the chief administrative law judge or the presiding administrative law judge, as
2z appropriate.
23
24 (d)Service.A subpoena may be served by any person who is not a party and is not less than 18 years of age.
25 Service on a person shall be made by delivering a copy of the subpoena to the person and by tendering
26 witness fees and mileage to that person.When the subpoena is issued on behalf of HUD,witness fees and
27 mileage need not be tendered with the subpoena.
28
29 (e)Amountof witnessfees and mileage.Awitness summoned by a subpoena issued underthis part is entitled
3o to the same witness and mileage fees as a witness in proceedings in United States District Courts, Fees
31 payable to a witness summoned by a subpoena shall be paid by the party requesting the Issuance of the
32 subpoena, or where the administrative law judge determines that a party is unable to pay the fees,the fees
33 shall be paid by the Department
34
35 (f) Motion to quash or limit subpoena. Upon a motion by the person served with a subpoena or by a party,
36 made within five days of the service of the subpoena (but in any event not less than the time specified in the
37 subpoena for compliance), the administrative law judge may:
38
39 (1)quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or
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(2) condition denial of the motion upon the advancement, by the party on whose behalf the subpoena was
2 issued, of the reasonable cost of producing subpoenaed books, papers or documents. Where the
3 circumstances require, the administrative law judge may act upon such a motion at any time after a copy of
a the motion has been served upon the party on whose behalf the subpoena was isssued.
s
6 (g) Failure to comply with subpoena. If a person fails to comply with a subpoena issued under this section,
7 the party requesting the subpoena mayreferthe matterto the Attorney General for enforcement in appropriate
s proceedings under section 814(c) of the Fair Housing Act.
9
io Subpart G -- Prehearing Procedures
,3 § 104.600 Prehearing statements.
12 (a) In general. Before the commencement of the hearing, the administrative lawjudge may direct parties to
13 fide prehearing statements.
14
15 (b)Contents of statement.The prehearing statement must state the name of the party or parties presenting
is the statement and, unless otherwise directed by the administrative law judge, briefly set forth the following:
17 j
is (1) Issues involved in the proceeding.
1�
20 (2) Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate
21 to the greatest extent possible.
22
23 (3) Facts in dispute.
24
25 (4) Witnesses (together with a summary of the testimony expected) and exhibits to be presented at the
26 hearing.
27
28 (5)A brief statement of applicable law.
29
3o (6)Conclusions to be drawn.
31
32 (7) Estimated time required for presentation of the party's case.
33
34 (8)Such other information as may assist in the disposition of the proceeding.
35 § 104.610 Prehearing conference.
36
37 (a) In general. Before the commencement or during the course of the hearing,the administrative law judge
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1 may direct the parties to participate in a conference to expedite the hearing.
2
3 (b) Matters considered.At the conference,the following matters may be considered:
4
.9 (1)Simplification and clarification of the issues.
6
7 (2) Necessary amendments to the pleadings.
s
9 (3)Stipulations of fact and of the authenticity, accuracy, and admissibility of documents.
10
11 (4) Limitations on the number of witnesses.
12
13 (5) Negotiation, compromise, or settlement of issues.
14
15 (6)The exchange of proposed exhibits.
i6
17 (7) Matters of which official notice will be requested.
is
19 (8)A schedule for the completion of actions discussed at the conference.
20
21 (9)Such other information as may assist in the disposition of the proceeding.
22
23 (c) Conduct of conference. The conference may be conducted by telephone, correspondence or personal
24 attendance. Conferences, however, shall generally be conducted by a conference call, unless the
25 administrative lawjudge determines thatthis method is impracticable.The administrative lawjudge shall give
26 reasonable notice of the time, place and manner of the conference.
27
28 (d)Record of conference.Unless otherwise derected by the administrative law judge,the conference will not
29 be stenographically recorded.The administrative law judge will reduce the actions taken at the conference
30 to a written order or, if the conference takes place less than seven days before the beginning of the hearing,
31 may make a statement on the record summarizing the actions taken at the conference.
32
33 § 104.620 Settlement negotiations before a settlement judge.
34
35 (a)Appointment of settlement judge.The administrative law judge, upon the motion of a party or upon his or
36 her own motion, may request the chief administrative law judge to appoint another administrative law judge
37 to conduct settlement negotiations. The order appointing the settlement judge may confine the scope of
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i settlement negotiations to specified issues. The order shall direct the settlement judge to report tothe chief ~
z administrative law judge within specified time periods.
z
4 (b) Duties of settlement judge. (1) The settlement judge shall convene and preside over conferences and
s settlement negotiations between the parties and assess the practicalities of a potential settlement.
s
` d describing h status of r (2) The aed|amerd judge shall report to the chief administrative law}u g� �an ng the � ua �
m aetUementnegotiations,evaluating se&|omentprospects, andrecommendingthebanminatinnoroontinuatimn
e of the settlement negotiations,
10
ii (c)Termination of settlement negotiations.Settlement negotiations shall terminate upon the order of the chief
zz administrative law judge issued after consultation with the settlement judge. The conduct of settlement
zs negotiations shall not unduly delay the commencement of the hearing.
14
zs Subpart H —Hearing Procedures
n, § 1O4.7OD Date and place ofhearing.
o (a) Date.The hearing shall commence not later than 120 days following the issuance of the charge under
�
m 103,405, unless it is impracticable to do so. If the hearing cannot be commenced within this time period,the
ze administrative law judge shall notify in writing all pates,the aggrieved persons on whose behalf the charge
2m was filed, and the Assistant Secretary, of the reasons for the delay.
zz
22 (b)Place.The hearing will be conducted at a place in the vicinity in which the discriminatory housing practice
zs ia alleged to have occurred ortohe about tooccur.
24
25 (c)Notification of time and place for hearing.The charge issued under 24 CFR 103.405 will specify the time,
zs date and place for the hearing. The administrative law judge may change the time, doba or p{aoe of the
zr hearing, or may temporarily adjourn nrcontinue a hearing for good cause shown, |f such a change iamade
za or the hearing is temporarily adjourned,the administrative law judge shall give the parties at least five days
29 notiueofthereviaedbme. dateandpiaceforUheh*ahnA. un|*aaotherwiaeagnaedbyUhepartiea.
�o
sz § 1O4.71O Conduct ofhearings.
az The hearing shall be conducted in accordance with the Administrative Procedure Act(5 US.C. 551-559).
33
34 § 1O4.72O Waiver of right toappear.
as If all parties waive their right to appear before the administrative law judge or to present evidence and
ya arguments,itis not neoessaryforthe administrative\awjudgat000nduotan oral hearing,Guchvvmiversshall
sr be made in writing andfiled withthe administrative lawjudge.Where waivers are submitted by all parties,the
su administrative law judge shall make a record of the relevant written evidence submitted by the parties and
�y pleadings submitted by the parties with respect to the issues in the proceeding. These documents shall
«n constitute the evidence in the proceeding and the decision shall be based upon this evidence,Such hearings
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54 FR 3232-irnpfementetion offhe Fair Housing Amendments Act of 1988
shall be deemed to commence on the first day that written evidence may be submitted for the record.
z
3 § 104.730 Evidence.
4 The Federal Rules of Evidence apply to the presentation of evidence in hearings under this part.
s
s § 104,740 In camera and protective orders.
7 The administrative law judge may limit discovery or the introduction of evidence,or may issue such protective
s or other orders necessary to protect privileged communications. If the administration law judge determines
-9 that information in documents containing privileged matters should be made available to a party, the
1a administrative law judge may order the preparation of a summary or extract of the nonprivileged matter
1i contained in the original.
--z
zs § 104.750 Exhibits.
14 (a) Identification. All exhibits offered into evidence shall be numbered sequentially and marked with a
15 designation identifying the party offering the exhibit.
16
17 (b) Exchange of exhibits. One copy of each exhibit offered into evidence must be furnished to each of the
1s parties and to the administrative lawjudge.If the administrative lawjudge does not fix a time for the exchange
19 of exhibits, the parties shall exchange copies of exhibits at the earliest practicable time before the
zu commencement of the hearing. Exhibits submitted as rebuttal evidence are not required to be exchanged
21 before the commencement of the hearing if the submission of such evidence could not reasonably be
22 anticipated at that time.
23
24 § 104.760 Authenticity.
2s The authenticity of all documents furnished to the parties as required under § 104.750 and submitted as
26 proposed exhibits in advance of the hearing shall be admitted unless a party files a written objection to the
27 exhibit before the commencement of the hearing. Upon a clear showing of good cause for failure to file such
zs a written objection, the administrative law judge may permit the party to challenge the authenticity.
29
3o § 104.770 Stipulations.
si The parties may stipulate to any pertinent facts by oral agreement at the hearing or by written agreement at
32 any time. Stipulations may be submitted into evidence at any time before the end of the hearing. When
33 received into evidence, the stipulation is binding on the parties.
34
35 § 104.780 Record of hearing.
36 (a)Hearing record.All oral hearings shall be recorded and transcribed by a reporter designated by,and under
37 the supervision of,the administrative law judge.The original transcript shall be a part of the record and shall
3s constitutethe sole official transcript.All exhibits introduced as evidence shall be marked for identification and
39 incorporated as a part of the record. Transcripts may be obtained by the parties and by the public from the
40 official reporter at rates not to exceed the applicable rates fixed by the contract with the reporter.
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i (b) Corrections. Corrections to the official transcript will be permitted upon motion of a party. Motions for
2 correction must be submitted within five days of the receipt of the transcript. Corrections of the official
3 transcript will be permitted only where errors of substance are involved and upon the approval of the
4 administrative law judge.
s
6 § 104.790 Arguments and briefs.
7 (a)Arguments.Followingthe submission of evidenceat an oral hearing,the administrative lawjudge may hear
s oral arguments at the hearing.The administrative lawjudge may limit the time permitted for such arguments
9 to avoid unreasonable delay.
10
1i (b) Submission of written briefs. The administrative law judge may permit the submission of written briefs
12 following the adjournment of the oral hearing.Written briefs shall be simultaneously filed by all parties and
13 shall be due not later than 30 days following the adjournment of the oral hearing.
1-0
1s § 104.800 End of hearing.
16 (a)Oral hearings.Where there is an oral hearing,the hearing ends on the day of the adjournment of the oral
17 hearing or,where written briefs are permitted, on the date that the written briefs are due.
1s
1g (b)Hearing on written record.Where the parties have waived an oral hearing,the hearing ends on the date
20 set by the administrative law judge as the final date for the receipt of submissions by the parties.
2
22 § 104.810 Receipt of evidence following hearing.
23 Following the end of the hearing, no additional evidence may be accepted into the record, except with the
24 permission of the administrative lawjudge.The administrative lawjudge may receive additional evidence upon
2s a determination that new and material evidence was not readily available before the end of the hearing,the
26 evidence has been timely submitted, and its acceptance will not unduly prejudice the rights of the parties.
27 However, the administrative lawjudge shall include in the record any motions for attorney's fees (including
28 supporting documentation), and any approved corrections to the transcripts.
29
34 Subpart I-- Dismissals and Decisions
31 § 104.900 Dismissal.
32 (a)Election of judicial determination. If the complainant, the respondent, or the aggrieved person on whose
33 behalf a complaint was filed makes a timely election to have the claims asserted in the charge decided in a
34 civil action under section 812(o) of the Act, the administrative law judge shall dismiss the administrative
35 proceeding.
36
37 (b) Effect of a civil action on administrative proceeding. An administrative law judge may not continue an
38 administrative proceeding under this part regarding an alleged discriminatory housing practice after the
39 beginning of the trial of a civil action commenced by the aggrieved person under an act of Congress ora State
4o law seeking relief with respect to that discriminatory housing practice. If such a trial is commenced, the
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i administrative law judge shall dismiss the administrative proceeding.The commencement and maintenance
2 of a civil action for appropriate temporary or preliminary relief under section 810(e)or proceedings for such
3 relief under section 813 of the Fair Housing Act does not affect administrative proceedings under this part.
a
s § 104.910 Initial decision of administrative law judge.
6 (a) In general.Within the time period set forth in paragraph(d)of this section, the administrative law judge
7 shall issue an initial decision including findings of fact and conclusions of law upon each material issue of fact
s or law presented on the record. The initial decision of the administrative law judge shall be based on the
9 record of the proceeding.
10
11 (b) Finding against respondent. If the administrative law judge finds that a respondent has engaged, or is
1.2 about to engage, in a discriminatory housing practice, the administrative law judge shall issue an initial
13 decision against the respondent and order such relief as may be appropriate.The relief may include, but is
14 not limited to, the following:
15
16 (1)The administrative lawjudge may order the respondent to pay damages to the aggrieved person(including
17 damages caused by humiliation and embarrassment).
1�
i9 (2) The administrative law judge may provide for injunctive or such other equitable relief as may be
20 appropriate. No such order may affect any contract, sale, encumbrance or lease consummated before the
21 issuance of the initial decision that involved a bona fide purchaser, encumbrancer or tenant without actual
22 knowledge of the charge issued under§ 104.405.
23
24 (3) To vindicate the pubtiic interest, the administrative law judge may assess a civil penalty against the
2s respondent.
26
27 (i)The amount of the civil penalty may not exceed:
28
29 (A) $10,000, if the respondent has not been adjudged to have committed any prior discriminatory housing
30 practice in any administrative hearing or civil action permitted under the Fair Housing Act or any State or local
31 fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State or local
32 governmental agency.
33
34 (B) $25,000, if the respondent has been adjudged to have committed one other discriminatory housing
3s practice in any administrative hearing or civil action permitted under the Fair Housing Act,or any State or local
36 fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State, or local
37 government agency, and the adjudication was made during the five-year period preceding the date of filing
38 of the charge.
39
40 (C) $50,000, if the respondent has been adjudged to have committed.two or more discriminatory housing
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i practices in any administrative hearings or civil actions permitted under the Fair Housing Act or any State or
2 local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State, or local
3 government agency,and the adjudications were made during the seven-year period preceding the date of the
4 filing of the charge.
5
6 (ii)If the acts constituting the discriminatory housing practice that is the subject of the charge were committed
7 by the same natural person who has previously been adjudged, in any administrative proceeding or civil
s action, to have committed acts constituting a discriminatory housing practice, the time periods set forth in
9 paragraphs(b)(3)(i) (B)and(C) of this section do not apply.
1.0
i i (iii)In a proceeding involving two or more respondents,the administrative lawjudge may assess a civil penalty
12 as provided under paragraph (b) of this section against each respondent that the administrative law judge
13 determines has been engaged or is about to engage in a discriminatory housing practice.
14
15 (c) Finding in favor of respondent. If the administrative law judge finds that a respondent has not engaged,
16 and is not about to engage, in a discriminatory housing practice, the administrative lawjudge shall make an
17 initial decision dismissing the charge.
1s
19 (d)Date of issuance_The administrative lawjudge shall issue an initial decision within 60 days after the end
20 of the hearing, unless it is impracticable to do so. If the administrative lawjudge is unable to issue the initial
21 decision within this time period (or within any succeeding 60-day period following the initial 60-day period),
22 the administrative lawjudge shall notify inwriting all parties,the aggrieved person onwhose behalf the charge
23 was filed, and the Assistant Secretary, of the reasons for the delay.
24
25 § 104.920 Service of initial decision.
26 Simultaneously with the issuance of the initial decision, the administrative law judge shall serve the initial
27 decision on all parties,the aggrieved person on whose behalf the charge was filed,the Assistant Secretary
28 and the Secretary of HUD.The initial decision will include a notice stating that the initial decision will become
29 the final.decision of,the Department unless the Secretary issues a final decision under§ 104.930 within 30
3o days of the date of issuance of the initial decision.
31
32 § 104.925 Resolution of charge.
33 At any time before the issuance of a final decision under§ 104,930, the parties may submit an agreement
34 resolving the charge. The agreement must be signed by the General Counsel, the respondent, and the
35 aggrieved person upon whose behalf the charge was issued. The administrative lawjudge shall accept the
36 agreement by issuing an initial decision based on the agreed findings. The submission of an agreement
37 resolving the charge constitutes a waiver of any right to challenge or contest the validity of a decision entered
3s in accordance with the agreement.
39
40 § 104.930 Final decision.
41 (a) Issuance of final decision by Secretary.The Secretary of HUD may review any finding of fact, conclusion
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1 of law, or order contained in the initial decision of the administrative law judge and issue a final decision in
2 the proceeding. The Secretary may affirm, modify or set aside, in whole or in part, the initial decisiion or
3 remand the initial decision for further proceedings.The Secretary shall serve the final decision on all parties
4 no later than 30 days from the date of issuance of the initial decision of the administrative law judge.The final
5 decision shall be served on all parties,the aggrieved person on whose behalf the charge was filed, and the
Assistant Secretary.
7
8 (b) No final decision by Secretary. If the Secretary of HUD does not serve a final decision within the time
9 period described above,the initial decision of the administrative law judge will become the final decision of
10 the Department. For the purposes of this part, such a final decision will be considered to have been issued
11 30 days following the date of issuance of the initial decision.
12
13 (c) Public disclosure. HUD shall make public disclosure of each final decision.
14
is (d)Decisions on remand.If the Secretary remands the decision for further proceedings,the administrative law
16 judge shall issue an initial decision on remand within 60 days of the date of issuance of the Secretary's
17 decision, unless it is impractical to do so.if the administrative law judge is unable to issue the initial decision
-8 within this time period (or within any succeeding 60-day period following the initial 60-day period), the
1.9 administrative law judge shall notify in writing the parties,the aggrieved person on whose behalf the charge
20 was filed, and the Assistant Secretary,of the reasons for the delay.
21
22 § 104.935 Action upon issuance of a final decision.
23 (a)Licensed or regulated businesses.(1)If a final decision includes a finding that a respondent has engaged
24 or is about to engage in a discriminatory housing practice in the course of a business that is subject to
25 licensing or regulation by a Federal, State or local governmental agency, the Assistant Secretary will notify
26 the governmental agency of the decision by.
27
28 (i)Sending copies of the findings of fact,conclusions of law and the final decision to the governmental agency
29 by certified mail; and
30
31 (ii)Recommending appropriate disciplinary action tothe governmental agency,including,where appropriate,
32 the suspension or revocation of the license of the respondent.
33
34 (2) The Assistant Secretary will notify the appropriate governmental agencies within 30 days after the date
35 of issuance of the final decision, unless a petition for judicial review of the final decision as described in §
36 104.950 has been filed before the issuance of the notification of the agency. If such a petition has been filed,
37 the Assistant Secretarywill provide the notification to the governmental agency within 30 days of the date that
38 the final decision is affirmed upon review.If petition for judicial review istimelyfiled following the notification
39 of the governmental agency, the Assistant Secretary will promptly notify the governmental agency of the
40 petition and withdraw his or her recommendation.
41
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}
.i (b) Notification to the Attorney General. If a final decision includes a finding that a respondent has engaged �
z or is about to engage in a discriminatory housing practice and another final decision including such aOnding |
o was issued under this part within the five years preceding the date of issuance of the final decision, the �
* General Counsel will notify the Attorney General of the decisions by sending a copy of the final decisions in
s each administrative proceeding.
o
r § 1O4.A4OAMorney's fees and costs.
n Following the issuance of the final decision under§ 104.930, any prevailing party, except HUD, may apply
o for attorney's fees and costs.The administrative law judge will issue an initial decision awarding or denying
zo suchfees and costs.The initial decision Will become the final decision of HUD unless the Secretary reviews
o the initial decision and issues a final decision on fees and costs within 30 days. The recovery of reasonable |
zz uttorney'a fees and costs will be permitted uafollows:
13 |
14 (u) |f the respondent ia the prevailing party: '
15
�
zs (1)HUD will be liable for reasonable attorney's fees and costs to the extent provided underthe Equal Access
z, to Justice Act(5 U.S.C� 504) and HU[Ys regulations ut24 CFR Part 14; and {
zo (2)An intervenor will be liable for reasonable attorney's fees and costs only to the extent that the intervenor's
zo participation in the administrative proceeding was frivolous or vexatious, or was for the purpose of
21 harassment.
zz '
23 (b)To the extent that an intervenor is a prevailing party,the respondent will be liable for reasonable attorney's
24 fees unless special circumstances make the recovery of such fees and costs unjust. i
zs |
za Subpart J -Judicial Review and Enforcement of Final Decision
/
z, § 1O4.95O Judicial review of final decision. �
zu (a) Petition for review.Any party adversely affected by a final decision under§ 104.930 may file a petition in �
zy the appropriate United States Court of Appeals for review of the decision under section 812(i) of the Fair
ao Housing Act,The petition must bafi|ad within 3O days of the date of issuance of the final decision. �
oz (b)NopetKion�v review. If �
` ' .~ � � ' ' �
as issuance of the final decision, the findings offacts and final decision shall be conclusive in connection with �
34 unyoatdonforemfoncesnerddaaohbedundar§ 1O4Q55(u) fi|adtheraufterbytheGenera| Counae|. endin '
35 connection with any petition for enforcement described under§ 104.955(b). �
ss |
/
ar § 1O4055 Enforcement of final decision. �
su (u) Enforcement by HUD. Following the issuance ofa final decision under§ 1O4.g3O. the General Counsel �
sy may and for i
oo appropriate temporary relief or restraining order in accordance With section 812A) oftheFuirHousingAnt. !
- /
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54 FR 3232-Implementation cf the Fair Housing Amendments Act of 1988
1 (b) Enforcement by others. If before the expiration of 60 days from the date of issuance of the final decision
2 under§ 104.930, no petition for review of the final decision described under § 104.950 has been filed, and
3 the General Counsel has not sought enforcement of the final decision as described in paragraph(a) of this
4 section,any person entitled to relief under the final decision may petition the appropriate United States Court
s of Appeals for the enforcement of the final decision in accordance with section 812(m)of the Fair Housing Act.
e
7 PART 105-- FAIR HOUSING
s 6. The appendix to Part 105 is redesignated as the appendix to Part 103 and the remainder of Part 105 is
s removed.
10
11 PART 106-- FAIR HOUSING ADMINISTRATIVE MEETINGS UNDER THE FAIR HOUSING ACT
12 7. The title to Part 106 is revised as set forth above.
13 8. The authority citation for Part 106 is revised to read as follows:
14 Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C. 3600-3620); sec. 7(d), Department of Housing and
is Urban Development Act(42 U.S.C. 3535(d)).
15
ri 9. Section 106.1 is revised to read as follows:
1s § 106.1 Purpose.
is The purpose of this part is to establish procedures for public meetings or conferences that may be used to
20 assist the Assistant Secretary in achieving the alms of the Fair Housing Act for the promotion and assurance
21 of equal opportunity in housing with regard to race, color, religion, sex, handicap,familial status, or national
22 origin,and,specifically,to carry out those responsibilities delegated to him or herby the Secretary of Housing
23 and Urban development under sections 808(e) (1), (2), and (3), and 809 of the Fair Housing Act.
24
25 10. Section 106.2 is revised to read as follows:
2e § 106.2 definitions.
27
2s As used in this part:
29 (a) "Assistant Secretary" means the Assistant Secretary for Fair Housing and Equal Opportunity in the
3a department of Housing and Urban development.
31 (b)"Meeting"means a public meeting or conference held under the authority of the Fair Housing Act and this
32 part.
33 (c) "Fair Housing Act" means Title Vlll of the Civil Rights Act of 1968, as amended by the Fair Housing
34 Amendments Act of 1988,42 U.S.C. 3600-3620.
3s
36 11. Part 109 is revised to read as follows:
37
38 PART 109-- FAIR HOUSING ADVERTISING
EXHIBIT"B"
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EXHIBIT``B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
i Sec.
z 109.5 Policy.
3 109.10 Purpose.
4 109.15 Definitions.
s 109.16 Scope.
6 109.20 Use of words, phrases, symbols, and visual aids.
7 109.25 Selective use of advertising media or content.
s 109.30 Fair housing policy and practices.
9
io Appendix I to Part 109— Fair Housing Advertising.
11 Authority: Title Vill, Civil Rights Act of 1968(42 U.S.C. 3600-3620), sec. 7(d), Department of Housing and
12 Urban Development Act(42 U.S.C. 3535(d)).
13
14 § 109.5 Policy.
is It is the policy of the United States to provide,within constitutional limitations,for fair housing throughout the
16 United States. The provisions of the Fair Housing Act (42 U.S.C. 3600, et seq.) make it unlawful to
17 discriminate in the sale, rental, and financing of housing, and in the provision of brokerage and appraisal
is services, because of race, color, religion, sex, handicap,familial status, or national origin.Section 804(c)of
19 the Fair Housing Act,42 U.S.C. 3604(c), as amended, makes it unlawful to make, print, or publish,or cause
20 to be made, printed, or published, any notice, statement, or advertisement,with respect to the sale or rental
21 of a dwelling,that indicates any preference, limitation, or discrimination because of race,color,religion, sex,
22 handicap, familial status, or national origin, or an intention to make any such preference, limitation, or
23 discrimination. However, the prohibitions of the act regarding familial status do not apply with respect to
24 "housing for older persons", as defined in section 807(b)of the act.
25 § 109.10 Purpose.
26
27 The purpose of this part is to assist all advertising media,advertising agencies and all other personswho use
2s advertising to make,print,or publish,or cause to be made,printed,or published,advertisements with respect
29 to the sale,rental,or financing of dwellings which are in compliance with the requirements of the Fair Housing
3o Act. These regulations also describe the matters this Department will review in evaluating compliance with
31 the Fair Housing Act in connection with investigations of complaints alleging discriminatory housing practices
32 involving advertising.
33
34 § 109.15 Definitions,
3s As used in this part:
36
37 (a) "Assistant Secretary" means the Assistant Secretary for Fair Housing and Equal Opportunity.
38
EXHIBIT`B"
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xB -509- Item 8. - 311
EXHIBIT`B"
54 FR 3232-imolementation of the Fair Housinn Amendments Act of 1988
3 (b) "General Counsel" means the General Counsel of the Department of Housing and Urban Development_
z
3 (c)"Dwelling"means any building,structure, or portion thereof which is occupied as,or designed or intended
4 for occupancy as, a residence by one or more families,and any vacant land which is offered for sale or lease
s for the construction or location thereon of any such building, structure, or portion thereof.
6
7 (d) "Family" includes a single individual.
8
s (e)"Person"includes one or more individuals,corporations, partnerships, associations, labor organizations,
io legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations,
33 trustees, trustees in cases under Title 11 of the United States Code, receivers, and fiduciaries.
1z
13 (f)"To rent"includes to lease,to sublease,to let and otherwise to grant for a consideration the right to occupy
14 premises not owned by the occupant.
1s
16 (g)"Discriminatory housing practice"means an act that is unlawful under section 804,805,806, or 818 of the
17 Fair Housing Act.
38
19 (h)"Handicap" means,with respect to a person—
20
21 (1)A physical or mental impairmentwhich substantially limits one or more of such person's major life activities,
22
23 (2)A record of having such an impairment, or
24
2s (3) Being regarded as having such an impairment.
26
27 This term does not include current, illegal use of or addiction to a controlled substance(as defined in section
28 102 of the Controlled Substances Act(21 U.S.C. 802)). For purposes of this part, an individual shall not be
29 considered to have a handicap solely because that individual is a transvestite.
30
31 (i) "Familial status" means one or more individuals (who have not attained the age of 18 years) being
32 domiciled with--
33
34 (1)A parent or another person having legal custody-of such individual or individuals; or
35
36 (2) The designee of such parent or other person having such custody, with the written permission of such
37 parent or other person. The protections afforded against discrimination on the basis of familial status shall
EXHIBIT"B"
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EXHIBIT"B"
54 FR 3232-Imp lemon`ation of the Fair Housir,o Arnendmews Act of 1988
i apply to any person who is pregnant or is in the process of securing legal custody of any individual who has
z not attained the age of 18 years.
3
4 § 109.16 Scope.
s (a)General.This part describes the matters the Departmentwill review in evaluating compliance with the Pair
6 Housing Act in connectionwith investigations of complaints alleging discriminatory housing practices involving
7 advertising. Use of these criteria will be considered by the General Counsel in making determinations as to
s whether there is reasonable cause to believe that a discriminatory housing practice has occurred or is about
9 to occur.
10
1i (1)Advertising media.This partprovides criteriafor use by advertising media in determining whether to accept
12 and publish advertising regarding sales or rental transactions. Use of these criteria will be considered by the
13 General Counsel in making determinations as to whether there is reasonable cause to believe that a
14 discriminatory housing practice has occurred or is about to occur.
15
if (2)Persons placing advertisements.Afailure by persons placing advertisements to use the criteria contained
17 in this part, when found in connection with the investigation of a complaint alleging the making or use of
is discriminatory advertisements, will be considered by the General Counsel in making a determination of
i9 reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur.
zo
21 (b)Affirmative advertising efforts.Nothing in this part shall be construed to restrict advertising efforts designed
zz to attract persons to dweliingswho would not ordinarily be expected to apply,when such efforts are pursuant
23 to an affirmative marketing program or undertaken to remedy the effects of prior discrimination in connection
24 with the advertising or marketing of dwellings.
zs
26 § 109.20 Use of words, phrases, symbols, and visual aids.
27 The following words, phrases, symbols, and forms typify those most often used in residential real estate
zs advertising to convey either overt or tacit discriminatory preferences or limitations.In considering a complaint
z9 under the Fair blousing Act, the Department will normally consider the use of these and comparable words,
30 phrases, symbols, and forms to indicate a possible violation of the act and to establish a need for farther
31 proceedings on the complaint, if it is apparent from the context of the usage that discrimination within the
32 meaning of the act is likely to result.
33
34 (a)Words descriptive of dwelling, landlord, and tenants. White private home, Colored home, Jewish home,
3s Hispanic residence,adult building.
36
37 (b) Words indicative of race, color, religion, sex, handicap, familial status, or national origin -- (1) Race --
3s Negro, Black, Caucasian, Oriental, American Indian.
39
40 (2) Color—White, Black,Colored.
EXHIBIT "B"
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EXHIBIT"B"
54 FR 3232-In7pler-7entafion of the Fafr Ho usina Amendments Act of 1988
(3) Religion-- Protestant, Christian, Catholic, Jew.
2
3 (4) National origin--Mexican American, Puerto Rican, Philippine, Polish, Hungarian, Irish, Italian, Chicano,
a African,Hispanic, Chinese, Indian, Latino.
5
6 (5)Sex--the exclusive use of words in advertisements, including those involving the rental of separate units
7 in a single or multi-family dwelling, stating or tending to imply that the housing being advertised is available
s to persons of only one sex and not the other, except where the sharing of living areas is involved. Nothing in
9 this part restricts advertisements of dwellings used exclusively for dormitory facilities by educational
io institutions.
u
12 (6) Handicap —crippled, blind, deaf, mentally ill, retarded, impaired, handicapped, physically fit. Nothing in
3 this part restricts the inclusion of information about the availability of accessible housing in advertising of
:a dwellings.
Ss (7) Familial status --adults, children,singles, mature persons. Nothing in this part restricts advertisements
17 of dwellings which are intended and operated for occupancy by older persons and which constitute"housing
:s for older persons" as defined in Part 1€ 0 of this title.
-9
20 (8)Catchwords--Words and phrases used in a discriminatory context should be avoided, e.g.; "restricted",
2 "exclusive", "private„ "integrated", "traditional", "board approval"or"membership approval".
22
23 (c)Symbols or logotypes. Symbols or logotypes which imply or suggest race, color, religion, sex, handicap,
24 familial status,or national origin.
25
26 (d) Colloquialisms. Words or phrases used regionally or locally which imply or suggest race, color, religion,
27 sex, handicap,familial status, or national origin.
2s
29 (e) Directions to real estate for sale or rent (use of maps or written instructions). Directions can imply a
3o discriminatory preference, limitation, or exclusion. For example, references to real estate location made in
31 terms of racial or national origin significant landmarks, such as an existing black development (signal to
32 blacks)or an existing development known for its exclusion of minorities(signal to whites).Specific directions
33 which make reference to a racial or national origin significant area may indicate a preference. References to
34 a synagogue, congregation or parish may also indicate a religious preference.
35
35 (f)Area(location) description.Names of facilities which caterto a particular racial, national origin or religious
37 group,such as country club or private school designations,or names of facilities which are used exclusively
3s by one sex may indicate a preference.
39
4o § 109.25 Selective use of advertising media or content.
EXHIBIT;B"
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EXHIBIT"B"
54 FR 3232-Implementation of fhe Fair Housira A men dmants Act of 1988
1 The selective use of advertising media or content when particular combinations thereof are used exclusively
2 with respect to various housing developments or sites can lead to discriminatory results and may indicate a
3 violation of the Fair Housing Act.For example,the use of English language media alone orthe exclusive use
4 of media catering to the majority population in an area, when, in such area, there are also available
5 non-English language or other minority media, may have discriminatory impact. Similarly,the selective use
6 of human models in advertisements may have discriminatory impact. The following are examples of the
7 selective use of advertisements which may be discriminatory:
s
(a)Selective geographic advertisements.Such selective use may involve the strategic placement of billboards;
10 brochure advertisements distributed within a limited geographic area by hand or in the mail; advertising in
ii particular geographic coverage editions of major metropolitan newspapers or in newspapers of limited
12 circulation which are mainly advertising vehicles for reaching a particular segment of the community; or
13 displays or announcements available only in selected sales offices.
14
.is (b)Selective use of equal opportunity slogan or logo.When placing advertisements, such selective use may
16 involve placing the equal housing opportunity slogan or logo in advertising reaching some geographic areas,
17 but not others, or with respect to some properties but not others.
is
19 (c) Selective use of human models when conducting an advertising campaign. Selective advertising may
20 involve an advertising campaign using human models primarily in media that cater to one racial or national
21 origin segment of the population without a complementary advertising campaign that is directed at other
22 groups. Another example may involve use of racially mixed models by a developer to advertise one
2.3 development and not others. Similar care must be exercised in advertising in publications or other media
24 directed at one particular sex,or at persons without children. Such selective advertising may involve the use
25 of human models of members of only one sex, or of adults only, in displays, photographs or drawings to
26 indicate preferences for one sex or the other, or for adults to the exclusion of children.
27
2s § 109.30 Fair housing policy and practices.
20 In the investigation of complaints, the Assistant Secretary will consider the implementation of fair housing
3o policies and practices provided in this section as evidence of compliance with the prohibitions against
31 discrimination in advertising under the Fair Housing Act.
32
33 (a)Use of Equal Housing Opportunity logotype, statement,orsiogan.All advertising of residential real estate
34 for sale, rent, or financing should contain an equal housing opportunity logotype, statement,or slogan as a
35 means of educating the homeseeking public that the property is available to all persons regardless of race,
36 color, religion, sex, handicap,familial status,or national origin.The choice of logotype, statement or slogan
37 will depend on the type of media used (visual or auditory) and, in space advertising, on the size of the
38 advertisement. Table I (see Appendix 1)indicates suggested use of the logotype, statement, or slogan and
30 size of logotype, Table 11 (see Appendix 1) contains copies of the suggested Equal Housing Opportunity
40 logotype, statement and slogan.
41
42 (b)Use of human models.Human models in photographs,drawings, or other graphic techniques may not be
EXHIBIT "B"
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_
|
EXHIBIT"B"
,.
i
1 used to indicate exclusiveness because of race, color, reUgion, sex, handicap, familial statue or national |
z origin. If models are used in display advertising campaigns, the models should be clearly definable es �
y reasonably representing majority and minority groups in the metropolitan area, both aexem, and, when
* appropriate, families with children, Models, if used, should portray persons in an equal social setting and
s indicate to the general public that the housing is open to all without regard to race, oo|or, naUg\on, max,
s handicap, familial status, or national origin, and is not for the exclusive use of one such group.
r |
a (c)Coverage of local laws.Where the Equal Housing Opportunity statement is used,the advertisement may
y also include e statement regarding the coverage of any local fair housing or human rights ordinance |
|
�o prohibiting discrimination in the sale, rental or financing ofdwellings. .
o (d)Notification nf fair housing po|icy-(1)Employees.All publishers of advertisements,adwartimngagencies, �
o and firms engaged in the sale, nsnte\ or financing of real estate should provide a printed copy of their �
14 nondiscrimination policy to each employee and officer.15
zs (2) Clients, All publishers or advertisements and advertising agencies should post a copy of their |
o nondiscrimination policy ina conspicuous location wherever persons place advertising and should have !
zo copies available for all firms and persons using their advertising services. !
19
/
zn (3) Publishers' notice. All publishers should publish at the beginning of the real estate advertising section a
21 notice such as that appearing in Table III(see Appendix 1).The notice may include a statement regarding the
zz coverage of any local fair housing or human rights ordinance prohibiting discrimination in the sale, rental or
za financing ofdwellings. |
a*
}
� Appendix | to Part 108- Fair Housing Advertising
|
ze The following three tables may serve as a guide for the use of the Equal Housing Opportunity logotype, !
27 atabonnent, e�gan, and puNimhersnodnefor adve�sing- |
zo �
29 Table
uo |
a� A simple formula can guide the nma| estate advertiser in using the Equal Housing Opportunity logotype,
32 statement, orslogan.
/
~~ �
s^ \n all space advertising (advertising \n regularly printed media such as newspapers or magazines) the �
as following standards should beused: '
ss |
ar Size of advertisement Size of |
�38 logotype
ys in inches
EXH|BIT"B"
|
PaQn-1D5' '
xop:// rho othou=n age,uisn/ayunauvname~renv...s2,m2ua /
T+�n� � �1 ��
^`~^" o. - �/�/ UR '5l4-
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 198E
1
2 1/2 page or larger 2 X 2
3 118 page up to 112 page 1 X 1
4 - 4 column inches to 118 page 1/2 X 1/2
s Less than 4 column inches ( 1 }
6 1 Do not use.
7
s In any other advertisements, if other logotypes are used in the advertisement, then the Equal Housing
9 Opportunity logo should be of a size at least equal to the largest of the other logotypes; if no other logotypes
io are used, then the type should be bold display face which is clearly visible. Alternatively, when no other
n logotypes are used,3 to 5 percent of an advertisement may be devoted to a statement of the equal housing
12 opportunity policy.
i3
14 In space advertising which is less than 4 column inches (one column 4 inches long ortwo columns 2 inches
zs long)of a page in size,the Equal Housing Opportunity slogan should be used.Such advertisements may be
16 grouped with other advertisements under a caption which states that the housing is available to all without
17 regard to race, color, religion, sex, handicap,familial status, or national origin.
�s
i9 Table If
20 Illustrations of Logotype, Statement, and Slogan. Equal Housing Opportunity Logotype:
21 (See Material in original]
22 Equal Housing Opportunity Statement: We are pledged to the letter and spirit of U.S. policy for the
23 achievement of equal housing opportunity throughout the Nation.We encourage and support an affirmative
24 advertising and marketing program in which there are no barriers to obtaining housing because of race,color,
25 religion, sex, handicap,familial status, or national origin.
26 Equal Housing Opportunity Slogan: "Equal Housing Opportunity."
27
2s Table III
29 Illustration of Media Notice—Publisher's notice:All real estate advertised herein is sub}ectto the Federal Fair
3o Housing Act,which makes it illegal to advertise"any preference,limitation,or discrimination because of race,
31 color, religion, sex, handicap, familial status, or national origin, or intention to make any such preference,
32 limitation, or discrimination."
33 We will not knowingly accept any advertising for real estate which is in violation of the law. All persons are
34 hereby informed that all dwellings advertised are available on an equal opportunity basis.
35
36 PART 110 -- FAIR HOUSING POSTER
37 12. The authority citation for Part 110 is revised to read as follows:
3s Authority: Title Vlll, Civil Rights Act of 1968 (42 U.S.C. 3600-3620); sec. 7(d), Department of Housing and
EXHIBIT"B"
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EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 Urban Development Act(42 U.S.C. 3535(d)).
2
3 13. Section 110.1 is revised to read as follows:
4 § 110.1 Purpose.
s
6 The regulations set forth in this part contain the procedures established by the Secretary of Housing and
7 Urban Development with respect to the display of a fair housing poster by persons subject to sections 804
s through 806 of the Fair Housing Act, 42 U.S.C. 3604-3606.
9
to 14. In§ 110.5, paragraphs(b), (e), (g) and(h) are revised to read as follows: I
ii § 110.5 Definitions.
12 a
13 (b)"Discriminatory housing practice"means an act that is unlawful under section 804, 805,806,or 818 of the
14 Act.
15 *** *
16 (e)"Person"includes one or more individuals, corporations, partnerships,associations,labor organizations,
17 legal representatives, mutual companies, joint-stock companies, .trusts, unincorporated organizations,
is trustees,trustees in cases under Title 11 of the United States Code, receivers and fiduciaries.
19 ` **
m (g) "Fair housing poster" means the poster prescribed by the Secretary for display by persons subject to
21 sections 804-806 of the Act.
22 (h) "The Act" means the Fair Housing Act(The Civil Rights Act of 1968, as amended by the Fair Housing
23 Amendments Act of 1988), 42 U.S.C. 3600, et seq.
24
25 15. In§ 110.10, paragraph (a) introductory text and paragraph (c) is revised to read as follows:
26
27 § 110.10 Persons subject.
2s (a)Except to the extent that paragraph(b)of this section applies,all persons subject to section 804 of the Act,
29 Discrimination in the Sale or Rental of Housing and Other Prohibited Practices,shall post and maintain afair
3o housing poster as follows:
I
31
32 (c) All persons subject to section 805 of the Act, Discrimination In Residential Real Estate-Related
33 Transactions shall post and maintain a fair housing poster at all their places of business which participate in
34 the covered activities.
35
36
37 16. Section 110.15 is revised to read as follows:
EXHIBIT"B"
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|�
' !
'
EXHIB[T"B"
54 FR 3232- lmpfemen ta lion ofhe Fair Housing Amendments Act of 1988
� � 11O.15 Location ofposters.
o All fair housing posters shall be prominently displayed so an to be readily apparent to all persons seeking '
u housing accommodations or seeking to engage in residential real estate-related transactions or brokerage
« services an contemplated bv sections 8U4 through OOGof the Act.
s
o 17. !n § 11O.25, paragraph(a) in revised to read onfollows:
r Q110.25 Description cfposters
e (a)The fair housing poster shall be 11 inches by 14 inches and shall bear the following legend-
9 [See Material inoriginal]
TO |
EQUAL HOUSING OPPORTUNITY
12 VVedo Business in Accordance With the Fair Housing Act !
za (The Civil Rights Act of 1988. an amended by the Fair Housing Amendments Act of 1988) �
�
14 IT IS ILLEGAL TO DISCRIMINATE AGAINST i
'
-Is ANY PERSON BECAUSE OF RACE,COLOR, RELIGION,SEX,HANDICAP,FAMILIAL STATUS(HAVING |
is ONE OR MORE CH|LDREN), OR NATIONAL ORIGIN
n — |n the sale or rental of housing or residential lots.
In advertising the sale or rental of housing.
19 — |n the financing ofhousing. |
'
oo — In the appraisal of housing. �
�
21 — |n the provision of real estate brokerage services. |
/
za —B|ockbuntingim also illegal. �
23 Anyone should �
!
z* U.G. Department of Housing and Urban Deve|opment, Assistant Secretary for Fair Housing and Equal '
25 Opportunity, Washington, DC2O41U �
`
zn or �
|
27 HUD Region or[Area Officestamp] |
zy
uu 18. Pert 115 is revised to read an fdkmvo )
yz PART 11S—CERTFUC�3%�y� �������l�`�����������\����T�������� �
' i
az Sec �
/
zs 115.1 Purpose.
-34 115'2 Basis of determination. i
o 115.3 Criteria for adequacy o[law.
�
ss 115.3a Criteria for adequacy of law—discrimination because ofhandicap. �
/
EXHIBIT"B° i
Page-188-
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'
'
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EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments A--to f 1988
1 115.4 Performance standards.
2 115.5 Request for certification.
3 115.6 Procedure for certification.
4 115.7 Denial of certification.
5 115.8 Withdrawal of certification.
6 115.9 Conferences.
7 115.10 Consequences of certification.
8 115.11 Interim referrals.
9 Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C. 3600-3620); sec. 7(d), Department of Housing and
10 Urban Development Act, 42 U.S.C. 3535(d)).
11
12 § 115.1 Purpose.
13 (a) Section 810(f) of the Fair Housing Act, (The Civil Rights Act of 1968, as amended by the Fair Housing
14 Amendments Act of 1988 (the Act)) provides that: whenever a complaint alleges a discriminatory housing
15 practice within the jurisdiction of a State or local public agency that has been certified by the Secretary as
16 substantially equivalent, the Secretary shall refer the complaint to that certified agency before taking any
17 action with respect to the complaint. Except with the consent of the certified agency, the Secretary, after
18 referral is made, shall take no further action with respect to the complaint unless:
19
20 (1) The certified agency has failed to commence proceedings with respect to the complaint before the end
21 of the 30th day after the date of'referral;
22
23 (2)The certified agency,having commenced proceedings,fails to carry forward proceedings with reasonable
24 promptness; or
25
26 (3)The Secretary determines that the certified agency no longer qualifies for certification.
v
28 The Secretary has delegated the exercise of functions and duties under section 810(f} of the Act to the
29 Assistant Secretary for Fair Housing and Equal Opportunity (the Assistant Secretary).
30
31 (b)The purpose of this part is to set forth:
32
33 (1)The basis for agency certification.
34
35 (2)The procedure by which a determination to certify is made by the Assistant Secretary.
36
37 (3)The basis and procedure for withdrawal of certification.
EXHIBIT"B"
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-- _-
|EXHNB[T°B"
-
|
1 WH The consequences ofcertification. /
�
z |
!
a G 115�2 Basis �
- /
4 A determination to certify an agency aa substantially equivalent involves atwo-phase procedure. The /
s determination requires examination and an affirmative conclusion by the Assistant Secretary on two separate
o inquiries: i
r �
u � \����e|mw,�mi��d �t� agency, |
`�' ' ~ �
y �
zo (1) Theaubs��bveh�h�� pndectedbytheagencyinthejur�dicbonv�threapecttovxhichm*d�c�Uoniato |
' !
ii be made', '
12 !
`
13 (2)The procedures followed by the agency; �
m
zs CB The remedies available to the agency; and !
zs
o � .�Theovailability of judicial review of the agency's actions; !
�
m |
19 Are Substantially substantively equivalent to those created by and under the act; and
zo
21 (b)Nhethe thecurrent practices and past performance ofthe agency demonstrate that,in operation,the law |
22. in fact provides rights and remedies which are substantially equivalent to those provided in the Act. !
zs '
!
24 -� 115.3Chteria for adequacy of law.
�
�
zs (a) In order for a determination to be made that a State or local fair housing agency administers a law which, �
zs on its face, provides rights.and remedies for alleged discriminatory housing practices that are substantially
27 equivalent to those provided in the Act, the law or ordinance must: '
|
zu '
zy (1) Provide for an administrative enforcement body to receive and process complaints and provide that: .
i
sz (1) Complaints must be in writing; �
32. |
i
us U0 Upon thefilingofaoo theagencyahoUaen^enoticeuponthecomplainant acknowledging the filing `
34 and advising the complainant of the time limits and choice of forums provided under the law; �
35
aa (iii)Upon the filing of a complaint the agency shall promptly serve notice on the respondent or person charged
ar with the commission of dischminabory housing practice advising of his or her procedural rights and
EXHIBIT"B"
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�f�r� G �'�1
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EXHIBIT"B"
54 FR 3232-implementation of the Fair Housing Amendments Act of 1988
i obligations under the law or ordinance together with a copy of the complaint;
2
3 (iv)A respondent may file an answer to a complaint.
s (2)Delegate to the administrative enforcement body comprehensive authority,including subpoena power,to
Ei investigate the allegations of complaints, and power to conciliate complaint matters, and require that:
7
s (i) The agency commence proceedings with respect to the complaint before the end of the 30th day after
g receipt of the complaint;
10
11 (ii) The agency investigate the allegations of the complaint and complete the investigation in no more than
12 100 days after receipt of the complaint, unless it is impracticable.
13
14 (iii) If the agency is unable to complete the investigation within 100 days it shall notify the complainant and
is respondent in writing of the reasons for not doing so;
16
17 (iv)The agency make final administrative disposition of a complaint within one year of the date of receipt of
is a complaint, unless it is impracticable to do so. If the agency is unable to do so it shall notify the complaintant
lg and respondent, in writing, of the reasons for not doing so;
20
21 (v)Any conciliation agreement arising out of conciliation efforts by the agency shall be an agreement between
22 the respondent and the complainant and shall be subject to the approval of the agency;
23
24 (vi)Each conciliation agreementshall be made public unlessthe complainant and respondent otherwise agree
2s and the agency determines that disclosure is not required to further the purposes of the law or ordinance.
70
27 (3) Not place any excessive burdens on the complainant that might discourage the filing of complaints, such
2s as:
29
3o (1) A provision that a complaint must be filed within any period of time less than 180 days after an alleged
31 discriminatory housing practice has occurred or terminated;
32
33 (ii)Anti-testing provisions;
34
35 (iii)Provisions that could subject a complainant to costs, criminal penalties or fees in connection with filing of
36 complaints.
37
EXHIBIT"B"
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Item 8. - 322 HB -520-
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments.Act of 1988
1 (4)Not contain exemptions that substantially reduce the coverage of housing accommodations as compared
2 to Section 803 of the Act (which provides coverage with respect to all dwellings except, under certain
3 circumstances, single family homes sold or rented by the owner and units in owner-occupied dwellings
4 containing living quarters for no more than four families).
5
6 (5)Be sufficiently comprehensive in its prohibitions to be an effective instrument in carrying out and achieving
7 the intent and purposes of the Act, i.e., prohibit the following acts:
s
9 (i) Refusal to sell or rent based on discrimination because of race, color, religion, sex, familial status, or
10 national origin;
11
12 (ii) Refusal to negotiate for a sale or rental based on discrimination because of race, color,, religion, sex;
i3 familial status, or national origin;
14
15 (iii) Otherwise making unavailable or denying a dwelling based on discrimination because of race, color,
16 religion, sex,familial status, or national origin;
17
1s (iv) Discriminating in the terns, conditions, or privileges of sale or rental of a dwelling, or in the provision of
19 services or facilities in connection therewith; based on discrimination because of race, color, religion, sex,
20 familial status, or national origin;
21
22 (v)Advertising in a manner that indicates any preference,limitation, or discrimination because of race, color,
23 religion, sex, familial status, or national origin;
24
25 (vi)Falsely representing that a dwelling is not available for inspection,sale,or rental because of discrimination
26 because of race, color, religion, sex, familial status, or national origin;
27
2s (vii) Coercion, intimidation, threats, or interference with any person in the exercise or enjoyment of, or on
29 account of his or her having exercised or enjoyed,or on account of his or her having aided or encouraged any
30 other person in the exercise of enjoyment of any right granted or protected by section 803,804, 805, or 806
31 of the Act;
32
33 (viii) Blockbusting based on representations regarding the entry or prospective entry into the neighborhood
34 of a person or persons of a particular race, color, religion, sex,familial status, or national origin;
35
36 (ix)Discrimination in residential real estate-related transactions by providing that: It shall be unlawful for any
37 person or other entity whose business includes engaging in residential real estate-related transactions to
3s discriminate against any person in making available such a transaction,or in the terms or conditions of such
39 atransaction,because of race,color,religion,sex,familial status,or national origin.Such transactions include:
EXHIBIT`sB"
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BB _521- Item 8. - 323
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing_Amendments Act of 1988
1 (A) The making or purchasing of loans or the provision of other financial assistance for purchasing,
2 constructing, improving, repairing; or maintaining a dwelling; or the making or purchasing of loans or the
3 provision of other financial assistance secured by residential real estate; or
4
s (B)The selling, brokering, or appraising of residential real property;
6
7 (x) Denying a person access to, or membership or participation in, a multiple listing service, real estate
s brokers'organization, or other service because of race, color, religion,sex, familial status or national origin.
9
10 (b) In addition to the factors described in paragraph(a) of this section,the provisions of the State or local law
11 must afford administrative and judicial protection and enforcement of the rights embodied in the law.
12
13 (1)The agency must have authority to:
14
15 (i) Seek prompt judicial action for appropriate temporary or preliminary relief pending final disposition of a
16 complaint if the agency concludes that such action is necessary to carry out the purposes of the law or
17 ordinance;
18
19 (ii) Issue subpoenas;
26
21 (iii) Grant actual damages or arrange to have adjudicated in court at agency expense the award of actual
22 damages to an aggrieved person;
23
24 (iv) Grant injunctive or other equitable relief, or be specifically authorized to seek such relief in a court of
25 competent jurisdiction.
26
27 (v)Assess a civil penalty against the respondent,or arrange to have adjudicated in court at agency expense
28 the award of punitive damages against the respondent.
29
30 (2) Agency actions must be subject to judicial review upon application by any party aggrieved by a final
31 agency order.
32
33 (3)Judicial review of a final agency order must be in a court with authority to grant to the petitioner,or to any
34 other party,such temporary relief,restraining order,or other order as the court determines is just and proper;
3s affirm, modify, or set aside, in whole or in part, the order, or remand the order for further proceedings; and
36 enforce the order to the extent that the order is affirmed or modified.
37
3s (c)The requirement that the State or local law prohibit discrimination on the basis of familial status does not
EXHIBIT"B"
54 FR 3232- Imolementation of the Fair Housing amendments Act of 1988 Page-193-
ht:p:iiwww.fairtrousing.comiindex.cfm7method=page_display&pagen2me=regs_52fr3232
Item 8. - 324 HB -522-
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 require that the State or local law limit the applicability of any reasonable local.State or Federal restrictions
2 regarding the maximum number of occupants permitted to occupy a dwelling.
3
4 (d) The State or local law may assure that no prohibition based on discrimination because of familial status
5 applies to housing for older persons substantially as described in Part 100, Subpart E.
6
7 (e)A detemination of the adequancy of a State or local fair housing law"on its face" is intended to focus on
s the meaning and intent of the text of the law, as distinguished from the effectiveness of its administration.
9 Accordingly, this determination is not limited to an analysis of the literal text of the law but must take into
1f1 account all relevant maters of State or local law, e.g., regulations, directives and rules of procedure, or
11 interpretations of the fair housing law by competent authorities, as may be necessary.
12
13 (f)A law will be held to be not adequate"on its face"if it permits any of the agency's decision making authority
14 to be contracted out or delegated to a non-governmental authority. For the purposes of this paragraph,
15 "decision making authority" shall include:
16
17 (1) acceptance of the complaint;
is
19 (2)Approval of the conciliation agreement;
20
21 (3) Dismissal of a complaint;
22
23 (4) Any action specified in Section 115.3(a)(2)(iv)or 115.3(b)(1).
24
25 (g) The State or local law must provide for civil enforcement of the law or ordinance by an aggrieved person
26 by the commencement of an action in an appropriate court not less than 1 year after the occurrence or
27 termination of an alleged discriminatory housing practice.The court should be empowered to:
28
29 (1)Award the plaintiff actual and punitive damages;
30
31 (2) Grant as relief, as it deems appropriate, any temporary or permanent injunction, temporary restraining
32 order or other order;
33
34 (3) Allow reasonable attorney's fees and costs.
35
36 § 115.3a Criteria for adequacy of law—discrimination because of handicap.
37 (a) In addition to the provisions of§ 115.3, in order for a determination to be made that a State or local fair
ss housing agency administers a law which,on its face,provides rights and remedies for alleged discriminatory
EXHIBIT"B"
54 FP. 3232- Implementation of the Fair Housing Amendments Act of 1988 ?age-194-
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xs -523- Item 8. - 325
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 housing practices, based on handicap, that are substantially equivalent to those provided in the Act, the law
2 or ordinance must be sufficiently comprehensive in its prohibitions to be an effective instrument in carrying
3 out and achieving the intent and purposes of the Act, i.e., it must prohibit the following acts:
s (1)Advertising in a manner that indicates any preference, limitation, or discrimination because of handicap;
fi
7 (2)Falsely representing that a dwelling is not available for inspection;sale, or rental based on discrimination
s because of handicap;
9
o (3)Blockbusting,based on representations regarding the entry or prospective entry into the neighborhood of
a person or persons with a particular handicap;
i2
13 (4) Discrimination in residential real estate-related transactions by providing that: It shall be unlawful for any
14 person or other entity whose business includes engaging in residential real estate-related transactions to
15 discriminate against any person in making available such a transaction,or in the terms and conditions of such
i5 a transaction, because of handicap. Residential and real estate-related transactions include:
17
as (i) The making or purchasing of loans or the provision of other financial assistance for purchasing,
19 constructing, improving, repairing, or maintaining a dwelling; or the making or purchasing of loans or the
20 provision of other financial assistance secured by residential real estate; or '
21
22 (ii) The selling, brokering, or appraising of residential real property;
23
24 (5)Denying a person accessto,or membership or participation in,multiple listing services,real estate brokers'
25 organizations, or other services because of handicap;
26
27 (6) Discrimination in the sale or rental, or otherwise making unavailable or denying, a dwelling to any buyer
28 or renter because of a handicap of that buyer or renter, or of a person residing in or intending to reside in that
29 dwelling after it is sold, rented, or made available, or of any person associated with the buyer or renter,
30
31 (7) Discrimination against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or
32 in the provision of services or facilities in connection with the dwelling, because of a handicap of that person,
33 of a person residing in or intending to reside in the dwelling after it is sold,rented,or made available,or of any
34 person associated with that person.
35
36 (b) For purposes of this section, discrimination includes —
37
3s (1) A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing
39 premises occupied or to be occupied by the handicapped person, if the modifications may be necessary to
EXHIBIT "B"
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EXHIBIT"B"
�
i afford the handicapped person full enjoyment ufthe premises,exceptthat,inthe case of rental,the landlord �
z may, vvhena it is reasonable tu du so, condition permission for a modification on the renters agreeing to �
3 restore the interior of the premises to the condition that existed before the modification, reasonable wear and
4 tear excepted; |
|
, .
6 (2) A refusal to make reasonable accommodations in ru|eo, puikdms, practices, urservices, when such �
r accommodations may be necessary to afford m handicapped person aqual opportunity to use and enjoy
n dwelling; or i
s
zo (3) in connection with the design and construction of covered multifamily dwellings furfkst000upanoyufter �
iz Maroh13. 10D1.m failure tu design and construct dwellings in such e manner that
-
zz /
zu (i)The dwellings have at least one building entrance on an accessible route, unless it is impractical to do so �
14 because of the terrain or unusual characteristics of the site;
zs �
z» (ii)With respect to dwellings with a building entrance on an accessible route
17 '
is A The public use and common use the dwellings are readily accessible to and usable by
�
19 handicapped persons,
m |
�
21 (B)All the doors designed to allow passage into and within all premises are sufficiently wide to allow passage /
zz by handicapped persons in wheelchairs; and �
za |
24 (C) All premises within covered multifamily dwelling units contain an accessible route into and through the |
zs dwelling; light switches, electrical uut|ab;, thennuotats, and other environmental controls are in accessible )
26 locations;there are reinforcements in the bathroom w-alls to allow later installation of grab bars;and there are /
zr usable kitchens and bathrooms such that an individual in wheelchair can maneuver about the spaoa �
. /
28 �
zo (c)The law or ordinance administered by the State or local fair housing agency may providethat compliance �
ao with the appropriate requirements uf the American National Standard for buildings and faoU0beo providing �
az accessibility and usability for physically handicapped people(oummunlyoUadms"ANG|A117.1-1086")suffimes |
32 tu satisfy the requirements uf paragraph(b)(3)(ii)(C) uf this section. �
33 .
/
m (d)Ao used inthissacUun thatann"oovanadmu dwellings" �
' '-~'-` ` consistingi
as units if such buildings have one or more elevators and ground floor units in other buildings consisting of four �
as or more units. �
z/ �
38 § 115'4 Performance standards.
e (a)The initial and continued martiffiomtiun that e State ur local fair housing law provides rights and remedies �
EXHIBIT^'B"
Page-1SG'
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EXHIBIT°B"
54 FR 3232-Imp!ementation of the Fair Housing Amendments Act of 1988
1 substantially equivalent to those provided in the Act will be dependent upon an assessment of the current
z practices and past performance of the appropriate State or local agency charged with administration and
3 enforcement of the law to determine that, in operation, the law is in fact providing substantially equivalent
4 rights and remedies. The performance standards set forth in paragraph (b) of this section will be used in
s making this assessment.
fi
7 (b)A State or local agency must:
8
9 (1)Engage in comprehensive and thorough investigative activities; and
10
11 (2)Commence proceedings with respect to a complaint before the end of the 30th day after the receipt of the
12, complaint,carry forward proceedings with reasonable promptness,and in accordance with the memorandum
13 of understanding described in section 115.6 of this part, make final administrative disposition of a complaint
14 within one year of the date of receipt of the complaint and, within 100 days of receipt of the complaint,
15 complete the following proceedings:
16
17 (i) Investigation, including the preparation of a final investigative report containing--
18
19 (A)The names and dates of contacts with witnesses;
20
21 (B) A summary and dates of correspondence and other contacts with the aggrieved person and the
2z respondent;
23
24 (C)A summary description of other pertinent records;
25
26 (D)A summary of witness statements; and
27
28 (E)Answers to interrogatories.
29
30 (ii)Conciliation activity.
31
32 (3)Conduct compliance reviews of all settlements,conciliation agreements and orders issued by or entered
33 into to resolve discriminatory housing practices.
34
35 (4)Consistently and affirmatively seek and obtain the type of relief designed to prevent recurrences of such
36 practices;
37
EXHIBIT"B"
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Item 8. - 328 xB -526-
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}
�EXHUB0F"B,
z (5)Consistently and affinnativalyseek the elimination of all prohibited practices under its fair housing law:
z |
s (c) Where the State or local agency has duties and responsibilities in addition to administration of the fair �
* housing law,the Assistant Secretary may consider such matters ae the relative priority given to fair housing
s administration,as compared to such otherdutiesand responsibilities,and the compatibility or potential conflict !
s of fair housing obia�tivaavWththaaganoy'eothar6u�anan6rampon�ib�|idae� i
^ |
/
o § 115.5 Request for certification. !
9 (a)A request for certification under this part may be fl led with the Assistant Secretary by the State or local �
zo official having principal responsibility for administration of the State or local fair housing law.The request shall !
zz ba supported by the following materials and |nformation'
� �
12 (
13 (1)The text oftha]uha6ioUon's fair housing law,the law creating an6ampowahngthaagency.mnyragu(aUona �
s and directives issued under the law, and any formal opinions of the State Attorney General or the chief legal �
:a officer of the jurisdiction that pertain to the jurisdiction's fair housing (avx �
(2) (]rganizabonof�h� aganoyra�ponmib�foradmh�ataringan6anforoingd�a(avv
zr ' !
zo
zo (8) Funding and personnel made available to the agency for administration and enforcement of the fair
zo housing law during the current operating year,and not less than the preceding three operating years(or such
21 lesser number during which the law was inefect).
22
23 (4)Data demonstrating that the agency's current practices and past performance comply with the performance |
z* standards described in§ 115.4. |
cs
z« (5)Any additional information which the submitting official may wish to be considered.
o
28 (b)The request and supporting materialsshall befiled with the Assistant Secretaryfor Fair Housing and Equal �
�
zo Opportunity, Department of Housing and Urban Development, 451 Seventh Street, 8NL,Washington, O{}
ao 20410. A copy of the request and supporting materials will be kept available for public examination and
|
31 copying at: .
32
�
'
33 (1)The offimaof the Assistant Secretary, and �
34 �
3s (2)the HUD Regional Offimain whose jurisdiction the State or local]uha6iction seeking recognition ialocated, �
36 and
37
/
sm (3) the office of the State or local agency charged with administration and enforcement of the State or local �
EXNIBIT"B= |
Page '188' |
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�
EXHIBIT"B"
54 FR 3232-Implementation of the Fair Housing Amendments Act of 1988
1 law.
2
3 § 115.6 Procedure for certification.
4 (a)Upon receipt of a request for certification filed.under§115.5,the Assistant Secretary may request further
s information that he or she considers relevant to the determinations required to be made under this part.
6
7 (b)If the Assistant Secretary determines,after application of the criteria set forth in§§ 115.3 and 115.3a,that
s the State orlocal fair housing law,on itsface,provides rights and remedies foralleged discriminatory housing
g practices which are substantially equivalent to the rights and remedies provided in the Act, the Assistant
10 Secretary shall inform the submitting State or local official in writing of that determination. Except under
i1 circumstances where the Assistant Secretary determines that interim referrals or other utilization of services
12 under§ 115.11 is appropriate, the Assistant Secretary shall publish a notice in the Federal Register which
13 advises the public of the determination that the law, on its face, is substantially equivalent, and shall invite
14 interested persons and organizations, during a period of not less than 30 days following publication of the
is notice, to file written comments relevant to the determination whether the current practices and past
16 performance of the State or local agency charged with administration and enforcement of such law
17 demonstrates that, in operation, the State or local law in fact provides rights and remedies which are
1s substantially equivalent to those provided in the Act.The Federal Register notice shall also invite comments
1g on the Department's determination as to the adequacy of the law on its face.
20
21 (c) If the Assistant Secretary determines, on the basis of the standards specified in § 115.4 and after
22 considering the materials and information submitted pursuant to § 115.5,additional material obtained under
23 paragraph (a) of this section, and any written comments filed under paragraph (b) of this section, that, in
24 operation, a State or local fair housing law in fact provides rights and remedies which are substantially
25 equivalent to those provided in the Act, the Assistant Secretary shall offer to enter into a written agreement
26 with the appropriate State or local agency providing for referral of complaints to the agency and for procedures
27 for communication between the agency and HUD that are adequate to permit the Assistant Secretary to
28 monitor the continuing substantial equivalency of the State or local law.The written agreement may, but need
2g not, be incorporated in a Memorandum of Understanding as described in 24 CFR 111.104(a)(2). Upon
3o execution of a satisfactory agreement,the Assistant Secretary shall publish notice of certification under this
31 part in the Federal Register.
32
33 (d)During the period which begins on September 13, 1988 and ends January 13, 1992,each State or locality
34 recognized as substantially equivalent under 24 CFR Part 115 (including any State or locality which had
35 entered into an agreement for interim referrals under§ 115.11, unless the State or locality is subsequently
36 denied recognition under 24 CFR 115.7)forthe purposes of the Fair Housing Act before September 13, 1988
37 shall,for the purposes of this paragraph, be considered certified under this part with respect to those matters
3s for which the agency was previously recognized. If the Secretary determines in an individual case that a State
39 or locality has not been able to meet the certification requirements within this 40-month period because of
4o exceptional circumstances(such as the infrequency of legislative sessions in that jurisdiction),the Secretary
41 may extend the period of temporary certification to no later than September 13, 1992.
42
43 (1) No State, locality or agency thereof shall be considered certified under this paragraph for the purpose of
EXHIBIT "B"
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Item 8. - 330 xs -528-
-'- ' --'
' - !
�
EXHIBIT"B"
z prnmamminQ complaints alleging -
3 A> Discrimination based on familial status;
*
s UU Discrimination based nn handicap; or
r /i0 Coercion, intimidation nr threats eo described in 115.3(a)(5)(vii).
u
a (2) Certification under this paragraph is n�� a that the ednoirJotn��e or judicial ran/ed��o |
determination !
lo provided by the State or locality is oubstantially�equivalent to those provided by the Act.
^- |
12 (e)Certification ofe State nrlocal fair housing agency under this part shall remain in effect until withdrawn `
o under§ 115.8.
=
15 (�Not less frequently than annually,the Assistant Secretary will cause to be published in the Federal Register !
zo o notice which sets fodb�
17
is U>An updated, consolidated list of all certified agencies;
�
20 (2) A list of all agencies whose certification under this port has been withdrawn since publication of the
21 previous notice;
22
o (3)Alistof agencies with respecttowhich notice of denialof certification has been published under§115.7(c)
m since issuance of the previous notice;
zs (4)A list of agencies with respect to which a notice for comment has been published under paragraph(b)of
o this section whose request for certification remains pending; |
zu |
|
zo (5) A list of agencies for which notice of proposed withdrawal of certification has been published under §
so 115.8(n)whose proposed withdrawal remains pending; and
o
az (6)A list of agencies with which an agreement for interim referrals or other utilization of services has been i
aa entered under§ 115.11 and remains in effect. �
~
35 § 115.7 Denial of certification. �
os
�
37 (a)If the Assistant Secretary determines, after application ofthe criteriametforthin 115.3and 115.3a.8hat .
EXHIBIT"B"
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EXHIBIF"B"
54 FR 3232- Implementation of the Fair Housing Amendments Act of 1988
�
!
i e State or local fair housing lav , on its face, fails to provide rights and remedies for alleged discriminatory �
/
z housing pnanUnen which are substantially equivalent tothe rights and remedies provided in the Act. the �
o Assistant Secretary shall inform the submitting State or local offidpd in writing of the reasons for that |
v determination.The Assistant Secretary's advice may include specification of the manner in which the State '
s or local law could be amended in orderto provide substantially.equivalent rights and remedies,The Assistant �
i
a Secretary shall extend to the State or local official an opportunity to submit data, viewva, and arguments in
/ opposition to the Assistant Secretary's determination and to request an opportunity for e conference in
o accordance with§ 115.9.If no submission or request is made, no further action shall be required to be taken
o by the Assistant Secretary. If the State or local official submits materials but does not request a conference, �
�
m the Assistant Secretary shall evaluate any arguments in opposition or other materials received from the State �
11- or local agency. If, after that evaluation,the Assistant Secretary is still of the opinion that the law,on its face, �
12 feUn to provide rights and remedies for alleged discriminatory housing practices that are substantially
o equivalent to the rights and remedies provided in the AM the Assistant Secretary shall inform the submitting |
14 State or local offinia| in writing that certification iodenied. �
�
zs
zo (b) If the Assistant Secretary determines, after considering the materials and information submitted under§ �
17 115.5, any additfonal information obtained under§ 11 5.6(a), an assessment of the current practices and past
za peformance of the agency in meeting the standards of§ 115.4(b),and any written comments received under '
19 § 11 5.6(b), that it has not been demonstrated that, in operation, a State or local fair housing agency infact |
}
zo provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent �
zz to those provided in the Act. the Assistant Secretary shall communicate this determination in writing to the |
zz State or local agency and sh all allow the agency not less than 15 days to submit data,views, and arguments �
23 in opposition and to request an opportunity for e conference in accordance with § 115.9. If request for e !
24 conference is not received within the time provided,the Assistant Secretary shall evaluate any argumentsin �
)
zs opposition or other materials received from the State or local agency and,if afterthat evaluation the Assistant
zs Secretary is nUU of the opinion that certification should be denied, the Assistant Secretary nhe|| inform the |
zr submitting State mr local official inwriting that certification indenied. �
!
os
29 (d Where nommentonarequasthornertifinatimnwasinvitedinaccordencewith§ 115.13(b notice of denial .
so of certification under this section shall ba published |n the Federal Register.
31 �
�
32 § 115.8 Withdrawal of certification. .
33 (e) Not less frequently than every 5yaem, the Assistant Secretary shall determine whether each agency |
34 certified under this part continues to qualify for certification.The Assistant Secretary shall take appropriate |
ss action with respect to any agency not nnqualifying. |
36
37 (b)The Assistant Secretary shall periodically review the administration of fair housing laws recognized under �
so this pert If the Assistant Secretary finds, as e result of a periodic review, upon the petition of an interested !
39 person or organization,or otherwise,that taken as a whole,the agency's administration of its fair housing law
/m or the |ew'on its face, no longer meets the requirements ofthis pert, the Assistant Secretary nhe\| propose
vz to withdraw the certification previously granted.
m
m (c)The Assistant Secretary shall propose withdrawal of certification unless review establishes that the current
EXHIBIT"B"
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T+�mn G ��'�
^~=,^^ °, - -'-'^~ FlB -530-
EXHIBIT"B"
54 FR 3232- Jmelementation of fire Fair Houstng Amsendmeats Act of 1988
i fair housing law administered by the certified agency meets the criteria of§ 115.3 and that current practices
2 and past performance of the agency meet the standards of§ 115.4.
4 (d) Before the Assistant Secretary publishes notice of a proposed withdrawal of certification, the Assistant
s Secretary shall inform the State or local agency in writing of his or her intention to withdraw certification,The
6 communication shall state the reasons forthe proposed withdrawal and provide the agency not less than 15
7 days to submit data, views, and arguments in opposition and to request an opportunity for a conference in
8 accordance with§ 115.9.
s
10 (e)Notice of a proposed withdrawal shall be published in the Federal Register.The notice shall allowthe State
11 or local agency and other interested persons and organizations not less than 30 days in which to file written
12 comments on the proposal.
13
14 (f) If a request for a conference in accordance with § 115.9 is not received within the time provided, the
15 Assistant Secretary shall evaluate any arguments in opposition or other materials received from the State or
15 local agency and other interested persons or organizations,and ifafterthat evaluation the Assistant Secretary
17 is still of the opinion that certification should be withdrawn,the Assistant Secretary shall withdraw certification
18 and shall publish notice of the withdrawal in the Federal Register.
19
20 § 115.9 Conferences.
21 (a)Whenever an opportunity for a conference is timely requested by a State or local agency in accordance
22 with§ 115.7 or§ 115.8,the Assistant Secretary shall issue an order designating an officer who shall preside
23 at the conference, The order shall indicate the issues to be resolved and any initial procedural instructions
24 that might be appropriate for a particular conference. It shall fix the date,time and place of the conference.
25 The date shall not be less than 20 days after the date of the order. The date and place shall be subject to
26 change for good cause.
27
29 (b)A copy of the order shall be served on the State or local agency and:
2.9
eo (1) In the case of a denial of certification, on any person or organization that files a written comment in
31 accordance with§ 115.6(b); or
32
33 (2)in the case of a withdrawal of certification, on any person or organization that files a petition in accordance
34 with § 115.8(a) or written comment in accordance with § 115,8(c). The agency and all such persons and
a5 organizations shall be considered to be participants in the conference.After service of the order designating
36 the conference officer,and until the officer submits a recommended determination,all communications relating
37 to the subject matter of the conference shall be addressed to that officer.
38
39 (c)The conference officer shall have full authority to regulate the course and conduct of the conference. A
40 transcript shall be made of the proceedings at the conference.The transcript and all comments and petitions
41 relating to the proceedings shall be made available for inspection by interested persons.
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54 FR 3232-Implementation of the Fair Housing AmendmerttstAct of 1958
1 (d) The conference officer shall prepare proposed findings and a recommended determination, a copy of
2 which shall be served on each participant. Within 20 days after service, any participant may file written
3 exceptions.After the expiration ofthe period for f ling exceptions,the conference officer shall certify the entire
4 record,including the proposed findings and recommended determination,and any exceptions to the findings
s .and recommendations,to the Assistant Secretary,who shall review the record and issue a final determination
6 within 30 days. Where applicable,this determination shall be published in the Federal Register.
7
R § 115.10 Consequences of certification.
9 (a)Where all alleged violations of the Act contained in a complaint received by the Assistant Secretary appear
io to constitute violations of a State or local fair housing law administered by an agency that has been certified
ii as substantially equivalent,the complaint shall be referred promptly to the appropriate State or local agency,
12 and no further action shall be taken by the Assistant Secretary with respect to such complaint, except as
13 provided for by the Act, this Part, and by §§ 103,100 through 103.115 or § 105.20 through 105.22 of this
14 chapter.
2S
16 (b) Notwithstanding paragraph (a) of this section, no complaint based in whole or in part on allegations of
17 discrimination on the basis of familial status or handicap shall be referred to any State, locality or agency
18 thereof whose certification was granted in accordance with§115.6(d)orsection 810(f)(4)of the Act,without
io regard to whether the fair housing law administered by such certified agency appears to prohibit discrimination
2a based on familial status or handicap.
21
22 (c) Notwithstanding paragraph (a) of this section, whenever the Secretary has reason to believe that a
23 complaint shows a basis may exist for the commencement of proceedings against any respondent under
24 section 814(a) of the Act, or for proceedings by any governmental licensing or supervisory authorities, the
2s Secretary shall transmit the information upon which that belief is based to the Attorney General, or to
26 appropriate governmental licensing or supervisory authorities.
27
2s § 115.11 Interim referrals.
29 If the Assistant Secretary determines after application of the criteria set forth in§ 115.3, that a State or local
30 fair housing law on its face provides rights and remedies for alleged discriminatory housing practices which
ai are substantially equivalent to those provided in the Act, but that the law has not been in effect, or the
32 appropriate State or local agency in operation,for a sufficient time to permit a demonstration of compliance
33 with the performance standards described in § 115.4, the Assistant Secretary may enter into a written
34 agreementwith the State or local agency providing for referral of complaints to the agency on such terms and
35 conditions as the Assistant Secretary shall prescribe, or providing for other utilization of the services of the
36 State or local agency and its employees upon agreed terms, and providing further for procedures for
37 communications between the agency and HUD that are adequateto permitthe Assistant Secretary to monitor
38 the agency's administration and enforcement of its law and to assist the Assistant Secretary in making the
39 determination required in § 115.2(b).The agreement may provide for reactivation of referred complaints by
40 the Assistant Secretary without regard to the limitations described in § 115.10. If such an agreement for
41 interim referrals or other utilization of services is entered, the Assistant Secretary may defer final
42 determination under§ 115.6 or§115.7 for a reasonable period determined by the Assistant Secretary to be
43 necessary in order to permit a fair assessment of the agency's performance. In no event shall this period
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54 FR 3232- tmpiementatlo;, of the Fair HOUSIl7q Amendments Act of 1988
i extend more than two years beyond the date of entry into the agreement for interim referrals or other utilization
2 of services. This two-year limitation does not apply to agencies certified in accordance with § 115.6(d).
3 However, an agreement under this section shall not be extended beyond the date of certification under §
a 115.6 or denial of recognition under§ 115.7. Notice of entry into an agreement under this section shall be
s published in the Federal Register.
6
7 19. Part 121 is added to read as follows:
s PART 121 --COLLECTION OF DATA
9 Sec.
io 121.1 Purpose.
11 121.2 Furnishing of data by program participants.
12 Authority:Title Vlll, Civil Rights Act of 1968(42 U.S.C.3600-3620); E.O. 11063,27 FR 11527;sec.602,Civil
n Rights Act of 1964 (42 U.S.C. 2000d-1); sec. 562, Housing and Community Development Act of 1987 (42
14 U.S.C. 3608a); sec. 2, National Housing Act, 12 U.S.C. 1703; sec. 7(d), Department of Housing and Urban
is Development Act, 42 U.S.C. 3535(d).
16
17 § 121.1 Purpose.
zs The purpose of this part is to enable the Secretary of Housing and Urban Development to carry out his or her
19 responsibilities under the Fair Housing Act,Executive Order 11063,dated November 20, 1962,Title VI of the
20 Civil Rights Act of 1964, and section 562 of the Housing and Community Development Act of 1987. These
authorities prohibit discrimination in housing and in programs receiving financial assistance from the
22 Department of Housing and Urban Development,and they direct the Secretary toadministertheDepartment`s.
23 housing and urban development programs and activities in a manner affirmatively to further these policies and
24 to collect certain data to assess the extent of compliance with these policies.
zs
26 § 121.2 Furnishing of data by program participants.
27 Participants in the programs administered by the Department shall furnish to the Department such data
2s concerning the race,color, religion,sex, national origin,age,handicap, and family characteristics of persons
n and households who are applicants for, participants in, or beneficiaries or potential beneficiaries of, those
30 programs as the Secretary may determine to be necessary or appropriate to enable him or her to carry out
31 his or her responsibilities under the authorities referred to in § 121.1.
32
33 20. The text of the preamble to this rule beginning at the heading "BACKGROUND" and ending before the
34 heading "Legislative review issues," is added as Appendix I to Subchapter A of Chapter I as follows:
35
36 Appendix I to Subchapter A--Preamble to Final Rule Implementing Fair Housing Amendments Act of 1988
37 (Published January 19, 1989)
39
39 Dated: January 12, 1989.
4o Samuel R. Pierce, Jr.,
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54 FR.3232- Implementation of the Fair Houslra Amendments Act of 1,988
3 Secretary.
2 [FR Doc. 89-1211 Filed 1-19-89; 8:45 am]
s BILLING CODE 4210-32-M
4 [See Material in original
s ---- --------------------------------------------------------------------------
6 -
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Item 8. - 336 xB -534-
COMMUNICATIONS RECEIVED REGARDING THE
FOLLOWING AGENDA ITEM:
ZMA 13-001, ZTA 13-002 & ZMA 13-002
Seni®r Residential Mobilehome Park Overlay
Esparza, Patty
From: Surf City Pipeline [noreply@user.govoutreach.com]
Sent: Thursday, March 06, 2014 3:16 PM
To: CITY COUNCIL; Agenda Alerts
Subject: Surf City Pipeline: Comment on an Agenda Item (notification)
Request# 17562 from the Government Outreach System has been assigned to Agenda Alerts.
Request type: Comment
Request area: City Council -Agenda& Public Hearing Comments
Citizen name: Jane Patterson
Description: My husband and I are residents of Los Amigos Mobilehome Park on Newland and
attended the January Planning Commission meeting and this weeks City Council
Meeting and would like to compliment those of you who supported the overlay for
keeping senior parks for seniors. All but one of the planning commission members were
well informed as were those of you on the council. We appreciate your support and look
forward to the coming election season....Most sincerely, Jane & Gene Patterson
Expected Close Date: March 7, 2014
Click here to access the request
Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not
monitored and will be ignored.
i