City of Austin’s “Stealth Dorm” Resolution Causes Fair Housing Concerns

 

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City of Austin’s “Stealth Dorm” Resolution

Causes Fair Housing Concerns,

Stigmatizes Large Families

November 23, 2013

OVERVIEW

On Thursday, November 21, 2013, City of Austin Council members unanimously approved a resolution that moves towards restricting single-family homes to 4 (currently it is 6) unrelated adults regardless of the size of the property. The resolution characterizes the properties of concern as “stealth dorms” and lists several neighbor concerns:

  1. The proliferation of “stealth dorms” described as:

    1. High-occupancy single family properties

    2. Dorm-style housing in single-family neighborhoods;

  2. Large houses and duplexes, built under single family development regulations, for the purpose of housing six unrelated occupants in a single family neighborhood; and

  3. Nuisance violations such as over-occupancy, noise disturbances, overflow parking, and overflowing garbage cans;

A Stealth Dorm Working Group has been meeting since the beginning of June 2013 consisting of representatives from the Austin Board of Realtors, the Austin Apartment Association, the Real Estate Council of Austin, the Austin Neighborhoods Council, the American Institute of Architects, representatives from impacted neighborhoods and Code Compliance.

The resolution makes no reference to considering the proposed changes impact on fair housing. The resolution does acknowledged the Working Group would benefit from hearing the perspectives of additional stakeholders, including students. If you are a stakeholder around single-family zoning, you may want to consider offering your input.

The resolution was sponsored by Council Member Mike Martinez and Co-sponsored by Members Chris Riley and Kathie Tovo.

(Sources: Austin Redistricted: Progressivism, Zoning, Private Racial Covenants, and the Making of a Segregated City, a report prepared and submitted by Eliot M. Tretter to the Institute for Urban Policy Research and Analysis)

AUSTIN: ONE OF THE MOST SEGREGATED CITIES IN TEXAS

Although the resolution passed unanimously, Council Member Spelman argued that, though occupancy limits could address such problems as stealth dorms in some portions of the city, they might provide unintended consequences for others. Spelman is absolutely correct! There are fair housing consequences to consider.

 

Populations protected under federal fair housing laws disproportionately choose to live in groups of unrelated adults as functionally equivalent families to gain the support they need to live healthy, productive lives. Using relation and/or a limited number of unrelated adults is an faulty and facially discriminatory means of defining a single-family housekeeping unit.

 

“HYDE PARK IS EXCLUSIVELY FOR WHITE PEOPLE” is the caption underneath an old photograph published in a report prepared and submitted by Eliot M. Tretter to the Institute for Urban Policy Research and Analysis entitled, Austin Redistricted: Progressivism, Zoning, Private Racial Covenants, and the Making of a Segregated City. Ironically, Hyde Park is one of the neighborhoods raising concerns around high occupancy single family housing, which is what is driving this resolution. The Tretter report provides a detailed explanation of how Austin’s public and private land use policies have caused the discrimination and segregations that we can still see today.

In 2013, University of Texas Anthropology Professor Cecilia Balli called Austin the most segregated city in Texas. Comparing census data, we can at least acknowledge that it is one of the most segregated cities. The African American community is tightly concentrated in East Austin. As is the Hispanic population.

 

The City should rewrite its single-family landuse code, but it should be written using a framework that affirmatively upholds federal fair housing laws rather than codifies discrimination. The proposed ordinances is taking bad land use code language and making it worse. Further limiting the number of unrelated adults that can live together as a single-family lowers the threshold of fair housing discrimination.

 

Calling “high occupancy” homes “stealth dorms” stigmatizes large families including nuclear families, extended or multi-generational families and functionally equivalent families of unrelated adults. Large families disproportionately are members of a “protected class” under federal fair housing law.

 

Moreover, the proposed ordinance change will not effectively address the concerns raised:

Concerns driving the resolution

Things they many not have considered

The proliferation of “stealth dorms”, dorm-style housing in single-family neighborhoods

The number of unrelated adults living together does not determine whether or not the group is living as a functional equivalent family in a manor that is congruent with the character of the single-family neighborhood.

The development of large houses and duplexes, built under single family development regulations

Large houses and more dwelling increase population density  regardless of relation.  Health and safety standards are based per square footage.

Nuisance violations such as over-occupancy, noise disturbances, overflow parking, and overflowing garbage cans

Occupancy limits of unrelated adults is not an effective solution. Better enforcement of existing ordinances and using of existing infrastructure is a more cost effective and less discriminatory approach to addressing these concerns.

UNPACKING A COMPLEX ISSUE WITH QUESTIONS AND ANSWERS

 

1.  Are large family households “high-occupancy” single homes?

Yes. Examples:

  • Nuclear family: Michelle Duggar and her husband Jim Bob of Tontitown, Arkansas announced that they were expecting their 20th child in November of 2011.

  • Multi-generational / extended family –  Large extended family households are returning. The trend is partially contributed to economic factors and partially due to cultural differences. According to a Pew Research Center analysis of the latest U.S. Census Bureau data, approximately 51 million Americans, or 16.7 percent of the population, live in a house with at least two adult generations, or a grandparent and at least one other generation, under one roof.  And a 2012 survey by national home builder PulteGroup found that 32 percent of adult children expect to eventually share their house with a parent.  In 2009, 9.4 percent of Asian households, 9.5 percent of African American households and 10.3 percent of Latino households were multigenerational (compared with 3.7 percent of non-Hispanic white households).

  • Functional equivalent family – Groups a unrelated individuals who live together as a functional family. More on this below.

 

Occupancy rate is not an indicator of whether or not a household has the characteristics of a family. Insinuating large families, of any make up, are high-occupancy stealth dorms is stigmatizing and discriminatory.

2.  Will limiting the number of unrelated adults living in a single family neighborhood achieve the goal of reducing the nuisances cited in the resolutions?

No.

Restricting occupancy of single-family housing based generally on the biological or legal relationships between its inhabitants bears no reasonable relationship to the goals of reducing parking and traffic problems, controlling population density and preventing noise and disturbance… Their achievement depends not upon the biological or legal relations between the occupants of a house but generally upon the size of the dwelling and the lot and the number of its occupants. Thus, the definition of family employed here is both fatally overinclusive in prohibiting, for example, a young unmarried couple from occupying a four-bedroom house who do not threaten the purposes of the ordinance and underinclusive in failing to prohibit occupancy of a two-bedroom home by ten or twelve persons who are related in only the most distant manner and who might well be expected to present serious overcrowding and traffic problems.” —  McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128 (1985)

3.  Are there less expensive approaches that are more consistent with fair housing law that the City could use to address the nuisance issues identified in the resolution?

Yes. For example:

  • Overcrowding – Enforced health and safety standards equally across the neighborhood in accordance to federal fair housing law

  • Loud noise – Enforce existing nuisance ordinances equally across the neighborhood.

  • Excess garbage – Currently, waste collection services offer additional garbage bins for an additional fee across the neighborhood. The City could offer recycling and composting education to reduced landfill garbage.

  • Parking – Enforce existing parking ordinance equally across the neighborhood.

4.  Does local government have the right to limit occupancy for health and safety reasons?

Yes, and those occupancy restrictions are:

  1. Based on the square footage of the property (e.g. living space square footage or bedroom square footage),

  2. Are enforce equally across all households in the neighborhood, and

  3. Do not take relation into consideration. Limits linked to relation between residents are attempts to define “family” or a “single-family unit”. More on this below.

5.  Does local government have the right to preserve the character of a neighborhood with land use ordinances, such as single-family zoning?

Yes, but not in a way that violates federal fair housing law. This is trickier than it looks. Keep reading.

6.  For purposes of zoning and preserve the characteristic of a single-family neighborhood, can local government restrict single-family housing to just families of individuals related by blood, marriage or adoption?

No. Unrelated individuals often form functionally equivalent family units that live in a manner consistent with the character of a single-family neighborhood.

 

While the preservation of the character of single-family areas remains a legitimate purpose of zoning, an ordinance may not exclude a group which “in every but a biological sense is a single family” City of White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449 (1974)

 

Or a household “which poses no threat to the goal of preserving the character of the traditional single-family neighborhood” —  McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128 (1985)

 

[I]n zoning for stable neighborhoods in a single family district, local governments must include the functional and factual equivalents of natural families, as well as traditional families.” — Group House of Port Washington v. Board of Zoning and Appeals of the Town of North Hempstead, 45 N.Y. 2d 266, at 272 (1978).

 

According to the 2010 US Census, 1 out of 8 homes contain unrelated individuals not related to the householder.

http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf

7.  Can local government affirmatively uphold fair housing law by restricting “single-family” housing to any number of related persons and a restricted number (e.g. 4) of unrelated adults?

No. Local government must allow for functionally equivalent families. The number of adults living in a home, unto itself, does not qualify or disqualify a living arrangement as a functional equivalent family or a household that upholds the character of the neighborhood.

 

On May 15, 1995, the Court ruled that a zoning ordinance provision regulating areas for single-family dwelling units that defined family as “persons [without regard to number] related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons” was not exempt from the Fair Housing Act’s prohibition of discrimination against persons with disabilities.– City of Edmonds v Oxford House (1995) http://www.civilrights.org/monitor/vol8_no2/art3.html

8.  What characteristics would a local government use to determine if a household of individuals are a functionally equivalent family or a “single housekeeping unit”?

The characteristics indicative of a “family” can be very board. In general, residents have established ties and familiarity with each other. They jointly use common areas and interact with each other. They may share meals, housekeeping chores or expenses. They may engage in household or “family” activities. They often make decisions together, and create a stable household.

9.  Aren’t groups of unrelated adults living together really businesses and shouldn’t they be treated as such?

Not if they are a functionally equivalent family.

 

In 2012, the US District generic abilify no prescription Court awarded Saint Paul Sober Living $400,000 and issued a permanent injunction against Garfield County, Colorado for violating federal fair housing law. In 2008, Garfield County zoning code enforcement officer advised St Paul Sober Living (SPSL) that a sober house business is not permitted in Garfield County without a special use permit. SPSL responded, through counsel, that enforcement of the code against (SPSL) for using the House as a sober house would constitute discrimination in violation of two federal statutes, the Fair Housing Act and the Americans with Disabilities Act. SPSL filed for a “reasonable accommodation” based the fact that the residents live “as a family,” make group decisions, and relate to each other “as the functional equivalent of a single family. Garfield County denied SPSL reasonable accommodation and retroactively charged SPSL for commercial utilities rates.  — St. Paul Sober Living v Garfield County Colorado (2012) http://www.leagle.com/decision/In%20FDCO%2020120706591

10.  Many local governments limit the number of unrelated adults living in single-family neighborhoods. How are they able to legally enforce this?

 

  1. They do not enforce it on household that live together as functional equivalent families e.g.

In practice, the boarding houses that are subject to regulation in Austin are student housing and

low income housing facilities. Group homes, such as those that house the developmentally

disabled or individuals with substance abuse problems, largely fall outside of city regulation.

According to the Code Compliance Department, group homes are protected under the federal

Fair Housing Act pursuant to City of Edmonds v. Oxford House, Inc.(1995), a U.S. Supreme Court decision. — Report on Texas Boarding Houses H.B. 1168

 

  1. They make exceptions and accommodations

Some municipalities have attempted to define “family” to comply with court decisions by providing for discretionary review of groups of unrelated persons greater than a specified number to ensure that they are the functional equivalent of a family. Under this approach, the municipality defines all related persons and a specific number (e.g.- four) of unrelated individuals as constituting a “family.” For groups of greater than four (4) unrelated individuals to constitute a “family,” the group would have … to show that are a “functionally equivalent family.” — General Council, State of New York, Definition of “Family” in Zoning Law and Building Codes. (http://www.dos.ny.gov/cnsl/lu05.htm)

 

Local governments must grant requests for reasonable accommodations to modify land use laws and other policies when such policies lessen the ability of persons with disabilities (or members of another protected classes) to live in certain neighborhoods compared to persons without disabilities (or who are not members of a protected class).

http://www.utexas.edu/law/clinics/community/Fair_Housing_Legal_Toolkit.pdf

 

  1. They illegally discriminate.

Discriminatory zoning is common, but that does not make it legal or morally right.

11.  Does the City of Austin have a history of discriminatory land use policies?

Yes.

12. Does the City have to affirmatively uphold fair housing?

Yes.

The City of Austin is a recipient of federal Housing and Community Development funds. As a HUD funded recipient, the City is required to do a number of things (see below)

 

The Housing and Community Development Act of 1974, as amended, is the dominant statute for the Community Development Block Grant (CDBG) program. It requires that each federal grantee certify to HUD’s satisfaction that (1) the awarded grant will be carried out and administered according to the Fair Housing Act, and (2) the grantee will work diligently to affirmatively further fair housing. This certification to HUD may be implemented through the Consolidated Plan process.

 

Under the Consolidated Plan, HUD funded recipients are required to:

(1) examine and attempt to alleviate housing discrimination within their jurisdiction;

(2) promote fair housing choice for all persons;

(3) provide opportunities for all persons to reside in any given housing development, regardless of race, color, religion, sex, disability, familial status, or national origin;

(4) promote housing that is accessible to and usable by persons with disabilities;

(5) and comply with the non-discrimination requirements of the Fair Housing Act.

http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/promotingfh

 

Travis County recently published their latest Consolidated Plan (September 2013) for public comment.

https://www.co.travis.tx.us/health_human_services/cdbg/pdfs/PY12_CAPER_vpublic_comment.pdf

 

HUD funded recipients are also required to submit an Analysis of Impediments (AI) report. Think of it as a report card on how well the city is doing from a fair housing standpoint. In the AI report, the City is expected to identify where they have found fair housing issues and how they are going to address them.

 

Austin’s most recent AI report (September 2013) was recently posted for public comment.

https://www.co.travis.tx.us/health_human_services/cdbg/pdfs/20130927-draft-housing-rpt.pdf

13.  What populations are “protected classes” under fair housing law?

Under the federal Fair Housing Act and its Amendments, “protected classes” include:

  • Race

  • Color

  • National origin / Ethnicity / Ancestry

  • Religion / Creed

  • Gender

  • Family status (e.g. single or with children)

  • Disability / Handicapped (Note: this is the broad Americans with Disabilities Act definition of “disability”, not the narrow Social Security definition of “disabled”)

 

The City of Austin also includes:

  • Sexual orientation

14.  How would restricting the number of unrelated adults who can live in a single-family neighborhood have a discriminatory impact on a “protected classes”?

Unrelated individuals who choose to live together as a functionally equivalent family unit are more likely to be members of a “protected class”. Thus, restricting the number of unrelated adults can have a discriminatory effect by raising barriers to their fair housing choice.

 

Hypothetical examples of functionally equivalent families protected under fair housing law include:

  • 5 friends from China who were recruited to work in Austin lease a large house. They cook traditional Chinese meals for each other and celebrate Chinese Holidays together.

  • 6 Transgendered persons live together in a large house. Most have been rejected by their biological family members and have experienced homelessness. The senior members of the household play the role of parents or grandparents. Together they create a safe, stable and loving household.

  • 7 persons in recovery from addiction living together in a large sober, peer support household. With regards to fair housing, persons in recovery meet the definition of “disabled”. Persons in recovery often choose to live with peers to get the support they need to maintain their recovery. Residents share house chores and engage in weekly activities together such as morning meditation, book studies, or house meetings. There is no limit to how long a they can stay as long as they adhere to the house rules such as maintaining their sobriety.

 

In Oxford House vs City of Baton Rouge, Louisiana (2013), the US District Court ruled that the City violated the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”), the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. (“ADA”), and Oxford House’s civil rights under 42 U.S.C. § 1983 by enforcing discriminatory zoning ordinances that excluded Oxford House from operating in an area zoned for single-family use. The ordinance limited the number of unrelated adults to 2. The City denied the reasonable accommodation request and retaliated against the plaintiffs for exercising their civil rights. http://www.gnofairhousing.org/wp-content/uploads/2013/03/2013.03.19.Brady-Opinion-Granting-Oxford-House-MSJ.pdf

15.  Are local governments required to make reasonable accommodations for “protected classes” households in single-family neighborhoods?

Local governments must grant requests for reasonable accommodations to modify land use laws and other policies when such policies lessen the ability of persons with disabilities (or members of another protected classes) to live in certain neighborhoods compared to persons without disabilities (or who are not members of a protected class). — Fair Housing Legal Toolkit for Permanent Supportive Housing Providers: Addressing Local Opposition to PSH Developments prepared the University of Texas Law School

http://www.utexas.edu/law/clinics/community/Fair_Housing_Legal_Toolkit.pdf

 

Warning, the “reasonable accommodation” process is an administrative process that if structured or implemented incorrectly can have discriminatory effect unto itself. Applicants may want to seek legal counsel or assistance from a fair housing advocate when filing a “reasonable accommodation” application. If you believe your civil rights have been violated by being denied the “reasonable accommodation” process, by being denied a “reasonable accommodation” or by the process being discriminatory, you can file a fair housing complaint at http://www.hud.gov/complaints/

16.  Some “protected class” are not obvious, such as disability. What proof can local government require to determine if someone is disabled?

In general, a local government cannot ask about the nature or severity of an individual’s disability. However, in response to a request for a reasonable accommodation, local government may request reliable disability-related information that:

  1. Is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities)

  2. Describes the needed accommodation, and

  3. Shows the relationship between the person’s disability and the need for the requested accommodation.

 

Depending on the individual’s circumstances, information verifying that the person meets the Act’s definition of disability can usually be provided by the individual himself or herself, such as a credible statement by the individual. A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability. In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary for this inquiry — Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Federal Fair Housing Act (May 17, 2004) http://www.hud.gov/offices/fheo/library/huddojstatement.pdf

16.  Can government take into consideration community input when determining fair housing decisions?

No.

Governments cannot allow neighbors’ objections to influence the decision` making process when such objections are based on discriminatory concerns.

http://www.utexas.edu/law/clinics/community/Fair_Housing_Legal_Toolkit.pdf

17.  Are there other discrimination laws that local government should consider when making developing and enforcing land use ordinances?

Yes.

Supreme Court’s decision in Olmstead v. L.C., which held that the ADA requires public entities to provide community-based services to persons with disabilities when such services are appropriate; the affected persons do not oppose community-based treatment; and community-based services can be reasonably accommodated.  The filing is part of the department’s continuing effort to enforce civil rights laws that require states to ensure that individuals with disabilities are served in the most integrated setting appropriate to meet their needs.  The Justice Department has intervened, brought suit, or filed amicus briefs in support of Olmstead enforcement in 17 different states over the past two years. (2011)

http://www.justice.gov/opa/pr/2011/June/11-crt-825.html

 

For many persons with disabilities, living in a single-family neighborhood is the most integrated setting. And as mentioned earlier, persons with disabilities often choose to life with a group of peers as functionally equivalent families to gain the support they need to live healthier, more productive lives. Ordinances that restrict the number of unrelated adults raise barriers to community integration options.

18.  What should the City of Austin do from here?

  1. Cost effectively and legally enforce 1) current nuisance ordinances and 2) health and safety occupancy codes (which are based on square footage, not relations) equally across the neighborhood to address the existing concerns.

  2. Re-write single-family zoning using a framework that includes functional equivalent families.

  3. Publish a streamlined and readily available “reasonable accommodation” process.

  4. Implement policies that promote community integration through attraction rather than policies that cause segregation through restrictions.

  5. Allow Not In My BackYard (NIMBY) initiatives their first amendment right to free speech, but help educate the public on fair housing rights and the benefits of community integration.

 

19.  What should “protected classes” and stakeholders do?

  1. Know your fair housing rights

  2. Seek out support if you are being stigmatized or bullied

  3. Make your voice be heard

  4. Report fair housing issues

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