Recently public awareness has expanded regarding the problems that can result when municipalities adopt so-called crime-free rental housing and nuisance-property ordinances—laws that penalize landlords for criminal activity or calls for police service associated with their rental properties and seek to push out the tenants living at those properties. These ordinances can reduce the supply of rental housing, increase homelessness, displace crime victims and others who call the police for help, chill reporting of crime to the police in the first place, and prevent persons with disabilities and persons with criminal records from accessing stable housing in the community. In the spring of 2013 a survivor of domestic violence sued her town after she was threatened with eviction based on one such ordinance, and that case has garnered national media attention.1 The public is becoming more cognizant of what many in the legal services community have known for years: that these ordinances are not an easy panacea for local problems but rather are fundamentally problematic policies that can generate a host of harmful effects for tenant families and the whole community and undermine public safety.
Even as understanding of the high costs of these ordinances slowly but steadily increases, many within local governments are reluctant to abandon the illusion that they are worth pursuing. Municipalities continue to adopt and enforce these ordinances. The need for aggressive advocacy that will convince municipalities that crime-free rental housing and nuisance-property ordinances have numerous pitfalls remains as great as ever.
The Sargent Shriver National Center on Poverty Law recently published a report that gives an overview of how these ordinances operate, the many problems these ordinances create, and the liability that municipalities expose themselves to when they pursue these ordinances.2 Here I discuss some of the ways that these pitfalls and accompanying liability can translate into strategies for combating the proliferation of such ordinances—by collaborating with a range of advocacy partners, by building the case for holding municipalities liable for intentional discrimination, and by placing municipalities at risk of losing access to federal funds.
These ordinances start from a premise—displacing an entire household if one member calls the police or is accused of a crime—that is inherently unfair to victims of domestic and sexual violence, minority families, and other vulnerable tenants.
Building Advocacy Partnerships
Because the harms resulting from these ordinances can be so varied, a number of groups within a community may be inclined to oppose an ordinance. For example, advocates for victims of domestic and sexual violence may be concerned about the potential for an ordinance to displace or silence victims. Disability advocates may be concerned about the potential for an ordinance to displace tenants because of the disability of a household member. Reentry advocates may be concerned about the potential for an ordinance to prevent persons with criminal backgrounds from finding the stable housing necessary for successful reintegration. Advocates for low-income families may be concerned about the potential for an ordinance to limit affordable rental housing options. Advocates for the homeless may be concerned about the potential for an ordinance to increase the number of homeless individuals and families.3 Neighborhood stabilization advocates may be concerned about the potential for an ordinance to increase the number of vacant properties. Immigrant advocates may be concerned about the potential for an ordinance to increase background screening that excludes undocumented persons from housing. Civil rights advocates may be concerned about the potential for an ordinance to affect protected groups disproportionately or be applied in an unequal manner. Faith-based advocates may share many of these concerns. Furthermore, landlords may object to the fees and other obligations that come along with the requirement in many ordinances that they must obtain a license to rent out their properties and take issue with being held responsible for controlling the conduct of tenants. Collaboration among all the concerned groups can make opposition to an ordinance much more potent and should be pursued.
However, this collaboration can have perils. Most obviously, the interests of tenants and landlords will not necessarily be aligned in negotiations over an ordinance. Landlords may be inclined to accept an ordinance in exchange for changes in eviction processes that make getting rid of tenants easier or in exchange for more access to information about tenants who report crimes or code violations. Such concessions to landlords may put tenants at risk of retaliation or deprive them of due process and other rights. Landlords may also seek to push the penalties imposed by an ordinance off onto their tenants. While tenant advocates should coordinate with landlords, they need to remain vigilant to ensure that the unique interests of tenants are protected throughout the advocacy against an ordinance.
Even various groups advocating on behalf of tenants may not have the same understanding of their ultimate goals because they often focus on serving particular populations.4 A municipality may be willing to include language aimed at protecting certain tenants to try to neutralize one source of opposition, while leaving the rest of an ordinance’s harmful effects intact. Since advocates from the legal services community are positioned to see the whole host of adverse consequences, they may need to take the lead in ensuring that all of those harms are given due consideration and that ally groups are all on the same page about the objectives as collaborative advocacy plays out.5
Furthermore, many groups in the community with concerns about an ordinance may feel they are not in a position to express opposition publicly. Local organizations often rely on the municipality for access to permits, funding, or other resources and therefore may not be willing to get directly involved in advocacy. Nevertheless, these local groups can offer distinct perspectives on how an ordinance does or will cause problems for tenants, service providers, and the community. Therefore lawyers should consult with these groups in the advocacy process to identify all arguments with potential to create traction in opposing the ordinance and all elements of an ordinance that should be included in negotiations with a municipality.
Municipal officials and ally groups alike may hope to identify a template to copy that includes the basic elements of a crime-free rental housing or nuisance-property ordinance but avoids the problematic outcomes. However, no such “model” ordinance exists. These ordinances start from a premise—displacing an entire household if one member calls the police or is accused of a crime—that is inherently unfair to victims of domestic and sexual violence, minority families, and other vulnerable tenants. Starting from this premise and working backward to carve out protections and limitations will not prevent entirely the harms that can result from these ordinances. No ordinance is preferable to any so-called model ordinance for these tenants.
Nevertheless, advocates may assess that a particular municipality is so set on moving forward with some ordinance that the best possible outcome under the circumstances is negotiating a compromise resolution. In such situations advocates should work with municipalities on crafting ordinances that at least mitigate much potential harm.6 Municipalities can and should be substantially narrowing the scope of their ordinances, incorporating safeguards for tenants, and creating procedures to prevent instances of illegal enforcement.7
Developing Discriminatory Intent Liability
By limiting the supply of rental housing in a municipality an ordinance may have a disparate impact on racial and ethnic minorities, female-headed households, or persons with disabilities because those groups are disproportionately likely to rent in many communities.8 By displacing tenants who are accused of criminal activity or making it more difficult for tenants with criminal records to access housing, an ordinance may have a disparate impact on racial and ethnic minorities or persons with disabilities because those groups are disproportionately likely to have contact with the criminal justice system in many communities.9 By harming victims of domestic and sexual violence, an ordinance may have a disparate impact on women because they are disproportionately likely to be the victims of such crimes in most communities.10 An ordinance that yields such a disparate impact on protected groups may violate the federal Fair Housing Act or state and local fair-housing law.11
However, the ability to use the Fair Housing Act to deal with practices that have a disparate impact is under attack. The U.S. Supreme Court has twice recently agreed to hear cases challenging the long-standing recognition that such practices can result in illegal discrimination.12 Even if the Court does not rule on this question in the near future, the opponents of disparate-impact liability have geared up for an ongoing onslaught. By being more careful about which disparate-impact cases are brought and by seeking ways to strengthen claims of intentional discrimination, advocates can prepare to meet the threat to fair housing liability based on a disparate impact.
Proactive advocacy with municipalities in advance of litigation can help build the case for intentional discrimination if the municipality proceeds to adopt or enforce an ordinance. By alerting a municipality that it is pursuing a policy that will result in a disparate adverse impact on a protected group, advocates are developing evidence that the municipality acted with intent to discriminate against that group when the municipality nonetheless pushed forward with the policy.13 Although a municipality’s knowledge of its policy’s disparate impact may not alone establish its discriminatory intent, advocates should not pass up the opportunity at least to buttress an intentional-discrimination claim—particularly in light of the ongoing threat to disparate-impact liability.14 Advocates should weigh in during any discussion of a proposed ordinance to flag a likely disparate impact on protected groups. Not only will this outreach lay the groundwork for a later claim of discriminatory intent if the municipality persists with an ordinance, but also it may even convince the municipality not to push forward with an ordinance in order to avoid the risk of liability.15 Likewise, advocates should reach out to municipalities that already have an ordinance to point out how the ordinance can disproportionately affect protected groups.
Warnings about an ordinance’s disparate impact on protected groups are most compelling and useful when supported by documentation. Although admittedly collecting such municipality-specific documentation can be challenging, advocates have tools to aid them. For example, U.S. Census Bureau data can show the demographics of the population living in rental housing in a community and changes in the availability or cost of rental housing following adoption of an ordinance. Research studies from governmental, educational, or advocacy entities may contain helpful information such as the demographics of victims of domestic abuse or individuals arrested for certain offenses in a community. And advocates can submit freedom-of-information requests to municipalities to gather data about how an ordinance is being enforced; such data may reveal important information such as how many tenants have been displaced, how many victims of domestic or sexual violence have been affected, or which neighborhoods are most frequently involved.16
Restricting Access to Federal Funds
Under federal law recipients of certain housing and community development funds—Community Development Block Grant, HOME Investment Partnerships, Emergency Solutions Grant, and Housing Opportunities for Persons with AIDS—must affirmatively further fair housing as a condition of obtaining these monies.17 Many municipalities have this duty either because they get a direct allocation of these funds or because they are subrecipients of county or state governments that disburse an allocation of funds. A municipality that must affirmatively further fair housing should both refrain from discriminating and take proactive steps to promote integration and eradicate barriers to fair housing in the community.18 These ordinances create obstacles to securing and maintaining housing for a number of protected groups, and municipalities can pursue other tools to improve public safety and housing quality without creating so many problems for these groups.19 A municipality’s adoption or enforcement of an ordinance can be inconsistent with affirmatively furthering fair housing.20
By limiting the supply of rental housing in a municipality an ordinance may have a disparate impact on racial and ethnic minorities, female-headed households, or persons with disabilities because those groups are disproportionately likely to rent.
The last few years have been a time of change in terms of federal government activity to implement the requirement that funding recipients must affirmatively further fair housing, and this period of transition is not over. After years of inaction, the U.S. Department of Housing and Urban Development (HUD) began to be slightly more aggressive in enforcing affirmatively furthering fair housing obligations.21 However, uncertainty remains about what affirmatively furthering fair housing entails and how it is to be enforced. While HUD recently proposed new regulations intended to facilitate implementation of this obligation, nothing final is on the books; how enforcement activities under whatever rule is ultimately promulgated will play out in practice is unclear.22 Nonetheless, advocates can make fruitful use of the affirmatively furthering fair housing obligations of municipalities, even in this time of flux.
For example, advocates can turn state and county governments that disburse federal funds to municipal subrecipients into allies in limiting the spread of these ordinances. These state and county governments are supposed to monitor whether their subrecipients are affirmatively furthering fair housing, and if such states and counties fail in this oversight, then they can be penalized for violating their own affirmatively furthering fair housing obligations.23 Advocates should work with state and county entities on incorporating assessment of whether a municipality has or is considering a crime-free rental housing or nuisance-property ordinance with the potential to create adverse consequences for protected groups as an explicit part of determining whether the municipality is affirmatively furthering fair housing and remains eligible to be a subrecipient of federal funds. Advocates may need to convince the state or county to cooperate by explaining that otherwise it risks liability for insufficiently monitoring whether its subrecipients are affirmatively furthering fair housing. However, advocates may find that departments within these governments—such as those charged with enforcing civil rights laws, promoting access to affordable housing, or protecting vulnerable groups such as victims of domestic and sexual violence, persons with disabilities, and persons with criminal records—appreciate the problems associated with ordinances and are eager to bring their authority to bear on limiting those harms.24 If continued access to the federal funds channeled through states and counties depends on not having these ordinances, more and more municipalities may abandon them in favor of other strategies to promote public safety.
Advocates may be able to enlist HUD’s Office of Fair Housing and Equal Opportunity in holding municipalities accountable for not affirmatively furthering fair housing when municipalities pursue these ordinances. HUD’s Office of Fair Housing and Equal Opportunity will not accept a direct complaint alleging only that a municipality did not affirmatively further fair housing; however, if the office receives, on behalf of genuine complainants, a complaint that asserts violations of the Fair Housing Act and raises concerns about affirmatively furthering fair housing, then it may initiate review of the municipality’s compliance with that obligation.25 Because HUD’s Office of Fair Housing and Equal Opportunity can hold up a local government’s housing and community development funds until the local government affirmatively furthers fair housing, filing such a complaint is one way for advocates to pressure a municipality to eliminate or at least alter an ordinance that is creating discriminatory outcomes.26 To strengthen the review resulting from a complaint and the likelihood that HUD’s fair-housing office will pursue remedial action, advocates should proactively identify the municipality’s other key failings of its affirmatively furthering fair housing obligations, such as any other persistent barriers to fair housing in the community and any deficiencies in the municipality’s “Analysis of Impediments” (possibly to be renamed an “Assessment of Fair Housing” by HUD’s proposed regulation on affirmatively furthering fair housing).27
However, in opposing an ordinance by threatening a municipality’s access to federal funds, advocates need to be alert to the risk of alienating potential allies among the community’s service providers. These providers often rely on the federal funds received by the municipality to make up some part of their own budgets. Before pursuing this route, advocates should evaluate whether a municipality is likely to change course in response to the threat of losing funding or instead to persist in its discriminatory conduct to the point where the community will be deprived of funds to serve persons in need. Advocates will need to decide whether opening the door to the latter outcome makes sense under the circumstances. Further, whenever advocates utilize the strategy of putting a municipality’s federal funds at risk, they should reach out to local service providers to explain why they are taking this step and the benefits that eliminating a harmful ordinance will have for the population(s) served.
This is a moment of great opportunity to stem the tide of the crime-free rental housing and nuisance-property ordinances that create so many problems for low-income tenants. Although the future of some of the legal tools available to advocates is uncertain, public attention to and concern about the harmful consequences of these ordinances is growing. Advocates can and should be building broad coalitions to oppose ordinances, making sure that municipalities confront and can be held responsible for the effects of ordinances on groups protected by fair-housing law, and ensuring that municipalities are affirmatively furthering fair housing. Too many municipalities have pursued ordinances because neighboring jurisdictions promoted purported benefits such as reduced calls for police service while the negative repercussions for tenants and the whole community were obscured or ignored.28 Now is the time for advocates to make municipalities pay attention to those repercussions.
I must acknowledge and thank Kate Walz, director of housing justice, Sargent Shriver National Center on Poverty Law, for her assistance in drafting this article and her leadership and guidance in developing the advocacy strategies discussed herein. Thanks also to Sandra Park of the ACLU Women’s Rights Project for help in drafting this article. Finally, thanks to the Skadden Foundation for supporting my work on this issue and the drafting of this article.
The ideas in this article are mine. I conceived and developed them during my fair-housing practice as a staff attorney/Skadden fellow at the Sargent Shriver National Center on Poverty Law.
Formerly Staff Attorney/Skadden Fellow, Sargent
Shriver National Center on Poverty Law
Currently Fellow, National Women’s Law Center
National Women’s Law Center
11 Dupont Circle NW #800
Washington, DC 20036
1 See, e.g., Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, New York Times, Aug. 16, 2013.
2 See my The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances (Aug. 2013).
3 Advocates for the homeless may be directly at risk of adverse consequences because some ordinances impose penalties on shelter providers whose properties are the site of alleged crime or calls for police service.
4 The body of community lawyering literature gives important insights into the various challenges of and strategies for collaboration between public interest attorneys and community-based organizations (see, e.g., John Bouman, The Power of Working with Community Organizations: The Illinois FamilyCare Campaign—Effective Results Through Collaboration, 38 Clearinghouse Review 583 (Jan.–Feb. 2005)).
5 Municipalities may be particularly receptive to including language ostensibly aimed at protecting victims of domestic and sexual violence in an ordinance. However, because of the complex ways in which domestic abuse plays out, many cases involving victims remain likely to fall through the cracks of such protective language. E.g., often when a victim of abuse calls for police help, her abuser gets arrested for crimes that are not self-evidently related to domestic violence or the victim herself even winds up being arrested; the protections incorporated in ordinances usually do not account for these realities. Victims whose immediate focus is on safety for themselves and their children may not be able to take advantage of protective language even if it clearly would apply to their situation. Legal advocates who are best able to interpret ordinance language should collaborate with service providers who have the best grasp of how such language will practically affect victims, to identify and publicize how an ordinance’s attempts to protect victims of domestic and sexual violence are insufficient. That way a municipality will not be able to claim that it is safeguarding victims as a way of eliminating some of the opposition to an ordinance.
6 See The Cost of Being “Crime Free,” supra note 2, at 20–25, for recommended steps that advocates and municipalities should pursue in this regard.
7 Working locally to mitigate harmful effects of individual ordinances is a slow and incremental mechanism for protecting tenant families. Advocates may therefore want to explore the prospects for achieving statewide legislation that curbs these ordinances in all municipalities (see, e.g., Minn. Stat. § 504B.205, subdiv. 3 (preempting ordinances that require eviction of tenants or penalize landlords when tenants call for emergency assistance with domestic abuse or other conduct); Wis. Stat. § 704.44 (voiding leases that permit landlords to evict tenants who call for police assistance or who could not have reasonably prevented crime at property); see also H.B. 1796, 2013–2014 Reg. Sess. (Pa. 2013) (preempting ordinances that penalize residents or landlords for emergency responses when individual is in need of intervention or assistance)). Whether such efforts will ultimately be fruitful may depend not only on political dynamics in the state but also potentially on other limits placed on municipal authority by existing state law. Advocates may need to consider (1) whether achieving some restrictions on municipal power through the state legislative process is likely to require a compromise that exposes additional tenants to the harms of these ordinances in the first place and (2) whether the restrictions that can realistically be achieved will go far enough to make them worth that risk.
8 E.g., in Illinois only 24.6 percent of non-Hispanic white households rent, while 59.1 percent of African American households, 47.4 percent of Hispanic households, and 38.3 percent of Asian households rent (see U.S. Census Bureau, Table QT-H1, General Housing Characteristics: 2010, 2010 Census Summary File 1). Female-headed households are nearly twice as likely to rent as the general population in Illinois (see U.S. Census Bureau, Table QT-H3, Household Population and Household Type by Tenure: 2010, 2010 Census Summary File 1). Nationally, 41.8 percent of households with a nonelderly person with a disability rent as compared to just 31.6 percent of households that rent overall (Maria Teresa Souza et al., U.S. Department of Housing and Urban Development, 2009 Worst Case Housing Needs of People with Disabilities 17 (March 2011)).
9 See, e.g., International Association of Chiefs of Police, Building Safer Communities: Improving Police Response to Persons with Mental Illness 6–7 (June 2010) (behaviors resulting from mental illness factor in 3 percent to 7 percent of all law enforcement calls for service; studies reflect disproportionate arrest and incarceration rates of persons with mental illnesses); Arthur Lurigio et al., Illinois Disproportionate Justice Impact Study Commission, Final Report 14, 28–38 (Dec. 2010) (nonwhites more likely than whites to be arrested, prosecuted, or incarcerated for drug offenses in various Illinois counties even though they engage in illicit drug use at comparable rates); Marc Mauer & Ryan S. King, The Sentencing Project, Uneven Justice: State Rates of Incarceration by Race and Ethnicity 3–6 (July 2007) (nationally African Americans are incarcerated at nearly six times and Hispanics are incarcerated at nearly two times rate of whites).
10 See Shannon Catalano, U.S. Department of Justice, Intimate Partner Violence, 1993–2010 (Nov. 2012) (between 1994 and 2010 approximately four in five victims of intimate partner violence were female); Jennifer L. Truman, U.S. Department of Justice, Criminal Victimization, 2010, at 10–12 (Sept. 2011) (in 2010 women were 4 times more likely than men to experience intimate partner violence and 13 times more likely than men to experience rape or sexual assault).
11 See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (Feb. 15, 2013) (to be codified at 24 C.F.R. pt. 100) (discussing long-acknowledged principle that Fair Housing Act prohibits practices that have unjustified disparate impact on protected group(s) and formalizing standard for determining liability).
12 In 2011 the U.S. Supreme Court granted certiorari in Magner v. Gallagher on the question of whether disparate impact claims are cognizable under the Fair Housing Act, but the case was settled and dismissed before oral argument (see Magner v. Gallagher, SCOTUSblog (2013)). In 2013 the Supreme Court granted certiorari in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action Incorporated with regard to the same question; that case likewise settled before oral argument occurred (see Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., SCOTUSblog (2013)).
13 See, e.g., United States v. Yonkers Board of Education, 837 F.2d 1181, 1227 (2d Cir. 1987) (government’s pursuit of policy with knowledge of its segregative effect is factor in determining whether policy was undertaken with intent to segregate); United States v. Birmingham, 538 F. Supp. 819, 828 (E.D. Mich. 1982) (“Courts will consider evidence that a decision-making body took certain actions knowing it would have a discriminatory effect. This is some evidence… that the decision-making body intended to cause that effect.”).
14 Advocates should look for other evidence that a municipality acted with discriminatory intent when it adopted or enforced its ordinance. Such evidence could include covert references to race or other language grounded in stereotypes used to explain support for an ordinance, justification for an ordinance based on concern about an influx of residents using housing subsidies or moving from an urban community associated with certain minorities, expression of the need for an ordinance to target perceived problems in a particular housing development or neighborhood associated with certain minorities, expression of the need for an ordinance to address the burden on the police from domestic disturbances, or selective enforcement of the ordinance against members of a protected group but not others who also violated the ordinance. In identifying evidence of intentional discrimination, advocates should look not only at what municipal officials themselves have said about their reasons for pursuing an ordinance but also at what proponents of the ordinance within the community at large have said (see, e.g., Birmingham, 538 F. Supp. at 828 (“In order to demonstrate a city’s racially discriminatory intent, it is sufficient to show that the decision-making body acted for the sole purpose of effectuating the desires of private citizens, that racial considerations were a motivating factor behind those desires, and that members of the decision-making body were aware of the motivations of the private citizen.”)).
15 One way advocates can prompt municipalities to engage on this issue is by offering to assist the municipality in narrowly crafting its housing policies to mitigate the risk of liability for disparate impact or discriminatory intent.
16 A recent study out of Milwaukee is one example of an analysis of how a municipality is implementing its nuisance-property ordinance (Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 American Sociological Review 117 (2013)). Although this analysis is beyond the resources of most legal services organizations, it offers a starting point for thinking about what information is useful for assessing the fair-housing implications of an ordinance.
17 See 42 U.S.C. §§ 3608(e)(5), 5304(b)(2), 5306(d)(7)(B), 12705(b)(15).
18 See Affirmatively Furthering Fair Housing, 78 Fed. Reg. 43710, 43712–13 (proposed July 19, 2013); see also Memorandum from Sara Pratt, Deputy Assistant Secretary for Enforcement and Programs, to Office of Fair Housing and Equal Opportunity Regional Directors and Field Office Directors Compliance Branch Chiefs 1 (March 5, 2013).
19 One way advocates may be able to dissuade municipalities from pursuing these ordinances is by offering to help in identifying and implementing alternative public safety strategies. These strategies might include periodically inspecting rental properties to enforce local codes, registration of landlords, and educating landlords about the use of state eviction laws to address criminal activity (see also The Cost of Being “Crime Free,” supra note 2, at 7 n.18).
20 A municipality should scrutinize, as part of affirmatively furthering fair housing, whether its ordinance may create fair-housing barriers for protected groups and whether it can reduce these barriers (see U.S. Department of Housing and Urban Development, 1 Fair Housing Planning Guide 2-5 to 2-25 (March 1996). Cf. Langlois v. Abington Housing Authority, 234 F. Supp. 2d 33, 78 (D. Mass. 2002)). Most municipalities that pursue these ordinances are not even taking that initial step.
21 See generally Nikole Hannah-Jones, Living Apart: How the Government Betrayed a Landmark Civil Rights Law, ProPublica, Oct. 28, 2012; Lawyers’ Committee for Civil Rights Under Law et al., Affirmatively Furthering Fair Housing at HUD: A First Term Report Card: Part II: HUD Enforcement of the Affirmatively Furthering Fair Housing Requirement (March 2013).
22 What the affirmatively furthering fair housing obligation will require and how its enforcement might be affected is uncertain if the Supreme Court holds that the Fair Housing Act does not prohibit practices that have a disparate impact on protected groups (see supra note 12 and accompanying text). However, advocates might still have an argument that affirmatively furthering the policies of the Fair Housing Act requires actions to overcome patterns of segregation and unequal access to housing regardless of their cause (see 42 U.S.C. § 3608(e)(5); see, e.g., NAACP, Boston Chapter v. Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987) (“[T]he Supreme Court itself has identified the goal of [the Fair Housing Act] as ‘replace[ment of] ghettos by truly integrated and balanced living patterns.’”) (internal quotation omitted) (quoting Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205, 211 (1972))). The affirmatively furthering fair housing obligation at 42 U.S.C. § 3608(e)(5) applies to municipalities that receive U.S. Department of Housing and Urban Development (HUD) funds (see MHANY Management Incorporated v. County of Nassau, 843 F. Supp. 2d 287, 332 (E.D.N.Y. 2012)).
23 See Pratt, supra note 18, at 8–9. In recent years HUD threatened funding sanctions against Delaware and Louisiana unless they addressed discriminatory practices by subrecipient jurisdictions (see id. at Attachment A, Attachment C).
24 State civil rights enforcement officials who are concerned about these ordinances may also be willing to use their investigatory authority to assist in documenting the effects of an ordinance on fair housing and building the case for municipal liability.
25 See Pratt, supra note 18, at 3. A complaint raising issues about affirmatively furthering fair housing is most compelling when it includes evidence of an ordinance’s potential to harm disproportionately one or more protected groups.
26 See id. at 9–14.
27 See id. at 3–8. At the moment advocates should look to HUD’s Fair Housing Planning Guide as the starting point for analyzing the deficiencies of a municipality’s Analysis of Impediments (see U.S. Department of Housing and Urban Development, supra note 20). Further guidance may be found in recent correspondence from HUD to inform municipalities that it is rejecting their Analysis of Impediments (see, e.g., John Henneberger, Texas Housers, HUD Rejects City of Houston Fair Housing Effort (Feb. 8, 2012); Letter from John D. Trasviña & Mercedes M. Márquez, HUD, to Kevin Plunkett, Deputy County Executive, Westchester County (Dec. 21, 2010)). However, if and when HUD finalizes its new regulation on affirmatively furthering fair housing, then this rule and any subsequent guidance issued by HUD will become the starting point for assessing the sufficiency of a municipality’s Assessment of Fair Housing.
28 A reduction in police calls may reflect that an ordinance has discouraged tenants and landlords from seeking out help when they need it (see The Cost of Being “Crime Free,” supra note 2, at 8–12). Such a chilling effect on the reporting of crime only impedes public safety.Download this article