On September 13, 2016, the HUD General Counsel issued guidance on the application of the Fair Housing Act (FHA) to the enforcement of Local Nuisance and Crime Free Housing Ordinances against crime victims and others who require police or emergency services. The guidance was issued to explain how the FHA applies to ensure that the growing number of local nuisance ordinances and crime-free housing ordinances do not lead to discrimination in violation of the FHA. State and local governments use a variety of terms, including “nuisance,” “chronic nuisance,” “crime-free,” or “disorderly behavior” to describe the types of ordinances addressed by this guidance. This guidance is primarily directed toward ordinances relating to rental housing.
The guidance primarily focuses on the impact these ordinances may have on victims of domestic violence. The guidance also describes the obligation of HUD fund recipients to consider the impact of these ordinances in assessing how they will fulfill their affirmative obligation to further fair housing. In other words, local governments and landlords who receive federal funding may violate the FHA and the Violence Against Women Act (VAWA) if they have policies that deny “assistance, tenancy, or occupancy” to domestic violence victims due to these nuisance policies.
Background
A growing number of local governments are enacting a variety of nuisance ordinances that can affect housing in potentially discriminatory ways. In Illinois alone, more than 100 such ordinances have been adopted. These ordinances often label various types of conduct associated with a property – whether the conduct is by a resident, guest or other person – a “nuisance” and require the landlord or homeowner to abate the nuisance under the threat of a variety of penalties. The definition of “nuisance” varies by locality, but can include littering, lawn care, or abandoned vehicles. In addition, prohibitions relating to the conduct of a tenant or guest, disorderly or disruptive conduct, disruption of quiet use of neighboring properties, or any criminal conduct on or near the property may also be included. One of the most troubling aspects of the nuisance ordinances is the penalty for “excessive” calls for emergency services, typically defined as just a few calls within a specified period of time by a tenant, neighbor, or other third party, whether or not directly associated with the property.
In some jurisdictions (such as Spokane, WA), an incident of domestic violence is defined as a nuisance without regard to whether the resident is the victim or the perpetrator of the domestic violence. Some ordinances specifically define “excessive” calls for emergency service as nuisances, even when the person in need of services is a victim of domestic violence or another crime or otherwise in need of emergency assistance.
The ordinances usually require housing providers either to end the alleged nuisance or risk penalties, such as fines, loss of rental permits, condemnation of their properties, and in some extreme cases, incarceration. Some ordinances may require the housing provider to evict the resident. In Cincinnati, OH, three calls for emergency police or medical help within a 30-day period is considered a nuisance, and in St. Louis, two calls for services with one year constitute a nuisance.
In many jurisdictions, domestic-violence related calls are the largest category of calls received by police. On average, 12 million individuals per year are the victims of rape, physical violence, or stalking by an intimate partner, and approximately 80% of victims are women. These “nuisance” ordinances are a factor that operates to discourage victims from reporting domestic violence. A grotesque example of this problem occurred in Norristown, PA in 2014. Police warned a woman who had been the victim of domestic violence by her ex-boyfriend that if she made one more 911 call, she and her young daughter would be evicted from her home. The ordinance operated under a “three-strike” policy, allowing no more than two calls to 911 for help. When the ex-boyfriend returned to her home and stabbed her, the woman was too afraid to call the police, so she ran from the home hoping she would not lose her housing. A neighbor called the police and the woman was airlifted to the hospital with very serious injuries. When she returned home a few days later, she was served with eviction papers for violating the local ordinance.
The Issue of Disparate Impact
A local government’s policies and practices to address nuisances such as those described here, violate the FHA when they have an unjustified discriminatory effect, even when there is no intent to discriminate. A seemingly neutral policy or practice that has a discriminatory effect violates the FHA if it is not supported by a legally sufficient justification. Discriminatory effects liability is assessed under a three-step, burden-shifting standard requiring a fact-specific analysis. The three-steps are:
- Evaluation of whether the challenged nuisance ordinance or practice has a discriminatory effect. If there is a discriminatory effect;
- Evaluation whether the ordinance is necessary to achieve a substantial, legitimate, nondiscriminatory interest. If this is demonstrated;
- The plaintiff must demonstrate that there is a less discriminatory alternative.
Intentional Discrimination
A local government may also violate the FHA if it intentionally discriminates through the adoption or enforcement of a nuisance or crime-free ordinance. Two types of intentional discrimination claims may be brought:
- A local government enacts a nuisance ordinance for discriminatory reasons; or
- The locality selectively enforces a nuisance or crime-free housing ordinance.
In order to make this determination, a number of factors will be examined.
- The impact of the ordinance;
- The historical background of the ordinance;
- The specific sequence of events;
- Departures from the normal procedural sequence;
- Substantive departures; and/or
- The legislative or administrative record.
How Will HUD Assess the Nuisance Ordinances Relative to the FHA?
In 2015, HUD issued a rule of affirmatively furthering fair housing which requires grantees who receive Community Development Block Grant (CDBG), HOME, Housing Opportunities for Persons with Aids, or Emergency Solutions grant funding to conduct an assessment of fair housing for purposes of setting goals to affirmatively further fair housing. In conducting their assessments of fair housing, state and local governments should assess their nuisance ordinances, crime-free housing ordinances, and related policies or practices. If these ordinances, policies, or practices have a discriminatory effect based on a protected characteristic, communities will be expected to examine viable and nondiscriminatory alternatives.