IZ Workshop 2014: B1 Affirmative Fair Housing

Affirmative Fair Housing -

Marketing and Resident Selection

Plan Highlights

May 2014

Fair Housing Framework

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Classes of Persons Protected Under Fair Housing Laws

Race Color National Origin Religion Sex Disability/Handicap Familial Status; Children Marital Status Age Sexual Orientation Gender Identity Military Status (veteran or member of the armed

forces) Public Assistance/Housing Subsidy Recipiency Genetic Information Ancestry 3

Key Fair Housing Laws

Key federal statutes: Fair Housing Act (Title VIII of the Civil Rights Act of

1968, as amended) Title VI of the Civil Rights Act of 1964, as

amended Section 504 of the Rehabilitation Act of 1973, as

amended Americans with Disabilities Act of 1990, as

amended

Key state statutes: Massachusetts fair housing law (M.G.L. Chapter

151B) Massachusetts public accommodation law (M.G.L.

Chapter 272, section 98) Massachusetts lead paint law (Chapter 111,

section 199A)

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Disparate Impact

HUD final rule, “Implementation of the Fair Housing Act’s Discriminatory Effects Standard” (2013) analysis:

Is it likely that policy or practice will negatively impact on members of a protected class compared to the general population?

Is the policy or practice necessary to achieve substantial, legitimate, non-discriminatory interests?

Is there a less discriminatory alternative that would meet the same interest?

Disparate ImpactExamples:

Municipal plans or zoning bylaws that prioritize 1-bedroom units or strictly limit number of bedrooms by unit rather than by development or lot

Single-family or large lot size requirements Requirements for unlimited local residency

preferences in communities with limited racial/ethnic diversity

[Note: Langlois v. Abington Housing Authority (D. Mass. 2002) (justification of need for local preference;

measures to mitigate impact)] Plans to fund affordable housing for elders only Planning or zoning approval processes that

mandate or prioritize townhouses

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Obligation to Affirmatively Further Fair Housing

“[AFFH] means taking proactive steps beyond simply combating discrimination to foster more inclusive communities…More specifically, it means taking steps proactively to address significant disparities in access to community assets, to overcome segregated living patterns and support and promote integrated communities, to end racially and ethnically concentrated areas of poverty, and to foster and maintain compliance with civil rights and fair housing laws.”

Affirmatively Furthering Fair Housing Proposed Rule July 18, 2013 7

http://www.mass.gov/hed/docs/dhcd/legal/comprehensivepermitguidelines.pdf (section III of Comprehensive Permit guidelines); also available at http://www.mass.gov/hed/docs/dhcd/hd/fair/afhmp.pdf

DHCD Guidelines:Affirmative Fair Housing

Marketing and Resident Selection Plans

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AFHMPAFHMP:

Must be approved by the subsidizing or funding agency

Entity and primary individual responsible for implementation

must have substantial, successful prior experience Contents:

A description of the affirmative fair marketing and outreach methods that will be used, including marketing timeline

Sample advertisements to be used List of publications where ads will be placed Application and informational materials for applicants A description of eligibility requirements Lottery and resident selection procedures A clear description of the preference system to be used and

the basis/need for the preference(s) Fair housing information (i.e., anti-discrimination, reasonable

accommodation/modification, and language access statements)

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AFHMP

AFHMP Updates:

The Developer and contractor, if any, or other delegated entity, shall review and update the AFHMP:

At least every five years, or

More frequently if relevant demographics change, or as otherwise needed in order to ensure compliance with applicable law and DHCD’s AFHMP guidelines (or successor guidelines) as they are amended

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Affirmative Marketing

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Marketing Must be Affirmative An AFHMP, through its marketing and resident

selection, must attract persons protected under fair housing laws that are less likely to apply

Ads must run at least twice over a 60 day period

Ads should be placed in local and regional newspapers, and newspapers that serve minority groups and other protected classes

Notices should also be sent to local fair housing commissions, religious institutions, local and regional housing agencies, local housing authorities, civic groups, lending institutions, social service agencies, and other non-profit organizations

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Marketing Must be Affirmative All marketing should be comparable in

terms of size and the description of the opportunity available

Marketing should be included in non-English publications based on the prevalence of particular language groups in the regional area

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Marketing Must be Affirmative

Required listings of available units with:

The Boston Fair Housing Commission’s Metrolist, for units located in the Boston Metro Area (Boston-Cambridge-Quincy MSA)

CHAPA’s MassAccess Housing Registry (rental and ownership)

MAHA lottery website

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Marketing Must Not Be Discriminatory

Marketing must comply with state and federal fair housing laws

Fair Housing logo and slogan (“Equal Housing Opportunity”) should be included in all marketing materials

Advertising must not indicate any preference or limitation, or otherwise discriminate based on protected class status (exception for valid age-restricted housing)

DHCD requirement: local preferences must not be advertised, as they may discourage non-local potential applicants

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Marketing Must Not Be Discriminatory

Other examples of improper advertising language:

“Perfect for empty nesters” “Great opportunity for young

professionals” “Section 8 vouchers from (named) agency

accepted” “Active lifestyle community” advertising

with photos only depicting non-disabled, physically active adults

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Resident Selection

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Resident Selection

Fairness in application process:

Non-discrimination statement Reasonable accommodation/modification

statement Language access

Language assistance statement(e.g., This is an important document.  Please contact ____________ for free language assistance.”) Translated applicant materials Consistency with language access plan

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Resident SelectionFairness in application process:

The advertisement must indicate that applications can be requested and submitted by mail and include a telephone number for application requests

Applications shall be available at public locations, including one that has some night hours

Informational meeting must be held in the evening or on weekend days in a public accessible location to reach as many potential applicants as possible

Resident selection for affordable units must generally be based on a lottery (and marketed as such) and not based on a “first come, first served” procedure 19

Resident Selection Wait list after the lottery: owner/agent must retain a list

of households who are not awarded a unit, in the order that they were drawn from the general pool

Term of wait list: generally appropriate for up to 1 year; may vary depending on demographic diversity of the list, consistency with regional demographics, and/or if changes to the housing (e.g., changes in tenure, occupancy restrictions, or unit types)

Updating wait list: owner/agent must continually analyze to inform the need to refresh the list through additional affirmative fair marketing over time so that the applicant pool is diverse and representative of the region

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Resident SelectionReopening/remarketing of waiting list in rental multifamily housing:

Generally, when a wait list, for a project or type of unit, is re-opened or units are remarketed, a minimum application period is required (not <10 business days) in accordance with guidelines

“First-come, first-serve” method of generating waiting list order of new applicants during application period generally not allowed

Random selection or other fair and equitable procedure must generally be utilized, subject to approval of the subsidizing agency 21

Resident Selection

If the wait list is not closed and marketing is ongoing in order to generate sufficient applicants:

Procedures still must avoid a disparate impact on persons with disabilities who require a reasonable accommodation with the application process (e.g., additional time to receive, complete and/or submit application)

Application will be date/time stamped prior to being mailed or provided, and upon submission of a complete application, the household shall be placed on the wait list based on the date/time stamp (if submitted within 30 days)

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Resident SelectionPreferences:

In no event may a local preference exceed more than 70% of the affordable units in a Project

If a community wishes to implement a local selection preference, it must demonstrate in the need for the local preference Key inquiry: does demonstrated need correspond to

housing type and eligibility criteria?

The AFHMP should demonstrate what efforts will be taken to prevent discriminatory effects Race/ethnicity: see, e.g., lottery example in guidelines) If local employment preference is the only local

preference, persons with disabilities and/or 62 or older must be given benefit of preference

Local employment preference should cover all types of local jobs to prevent discriminatory effect (e.g., not exclusive of janitors, cafeteria workers, and other lower earning jobs)

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Resident Selection

Examples of sources for evaluating potential discriminatory effects and local need:

[Note: combination of data, including comparative regional data and/or other data may be needed to justify the extent of the local preference in view of regional housing needs]

Wait lists from comparable projectsKey inquiry: are local applicants from the wait lists

likely to apply for the proposed housing based on factors such as housing type, income eligibility and restrictions, and occupancy restrictions (e.g., based on age or services, etc.)

Housing for rent and housing for sale not considered “comparable housing”

U.S. Census data (http://www.factfinder.census.gov )

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Resident Selection

HUD Comprehensive Affordable Housing Strategy (CHAS) compiled data (http://www.huduser.org/portal/datasets/cp.html ), which provides data by income level and housing problems (e.g., rent burden); see also data complied for the community’s Consolidated Plan where applicable

Inventory of comparable subsidized or affordable housing in the community and vacancy rates of the housing

Regional (MSA) racial/ethnic minority statistics: http://www.mass.gov/hed/docs/dhcd/hd/fair/percentracialethicminority.pdf

Applicant pools

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Resident SelectionAllowable Preference Categories:

Current residents (Households in which one or more members is living in the city or town at the time of application. Documentation of residency should be provided, such as rent receipts, utility bills, street listing or voter registration listing

Municipal Employees

Employees of Local Businesses

Households with children attending the locality’s schools, such as METCO students 26

Resident SelectionHousehold Size:

Preference: within an applicant pool first preference shall be given to households requiring the total number of bedrooms in the unit as described in the AFHMP guidelines

Household size shall not exceed, nor may maximum allowable household size be more restrictive than, State Sanitary Code and additional fair housing considerations may apply

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Resident SelectionAccessible and Adaptable units

First preference (regardless of applicant pool) for persons with disabilities who need such units, including single person households

In projects that do not fully accessible units but that have adaptive features, the guidelines do not require the preference to exceed 5% (mobility adaptable) or 2% (sensory adaptable) of the units

When a person with a disability is awaiting an accessible unit and a unit with adaptive features becomes available, owner/management must offer to adapt the unit 28

Resident SelectionAccessible and Adaptable units

In addition, owners have obligations to make modifications to units/premises and make other accommodations (e.g., grant request for a first-floor unit ) in accordance with the law See e.g., http://www.mass.gov/ago/consumer-resources/your-rights/civil-rights/disability-rights/fair-housing.html ; http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (FHA only))

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Additional Preference or Eligibility Criteria Considerations

Other preferences or targeted populations not covered under the guidelines are either:

Not permitted (e.g., prior local residents, family members of local residents, particular disabilities); or

Require special review depending on the nature of the project (e.g., veterans, artists, displaced households, households in need of services) and whether there is a justifiable nexus between the type of housing offered  and the restriction on eligibility 30

Top 5 Reasons AFHMP is Rejected

1. Local Preference criteria2. Marketing that does not address limited

English proficiency3. Timing of marketing4. Advertisements

• Language: “empty-nesters”, local preference• Access to applications• Lottery

5. Eligibility screening policy• CORI policy• Income and Asset determination

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