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Fort Wayne Metro Human Relations Commission

Michael Middleton: Staff Attorney Dennis Sorg: Investigator

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Who is Metro Fair Housing Act of 1968 (FHA) What is Discrimination History of Segregation and Zoning Discrimination Duty to Affirmatively Further Fair Housing (AFFH) Exclusionary Zoning Zoning and Disabilities under the FHA Group Homes Questions to Consider 2 Privileged and Confidential

Law Enforcement Agency Fort Wayne Ordinance G-21-78 &G-33-92 Title VIII of the Civil Rights Act of 1968 (FHA) Title VII of the Civil Rights Act of 1964 American’s with Disabilities Act Age Discrimination in Employment Act

Takes complaints of discrimination, investigates, mediates, and educates Investigate discrimination complaints

Housing, Employment, Schooling, Public Accommodation

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To enforce civil rights laws and empower the citizens of Fort Wayne through education on

diversity and discrimination issues.


Housing Jurisdiction: Territorial Jurisdiction – City Limits Timing – Complaint must be filed within one year of the last alleged discriminatory act

Housing Exemptions: Owner occupied and less than 4 dwelling units Certain single family housing rented by owner Religious organization or private clubs Housing for older persons


Original Act banned discrimination on the basis of race, color, religion, and national origin in most housing transactions. FHA amendments added sex, disability, and familial status. Enforcement through complaints to HUD, private lawsuits, and actions by the Justice Department.


1. All persons who claim that they have been injured by a discriminatory housing practice; and

2. All persons who reasonably believe that they will be injured by a discriminatory housing practice that is about to occur.


Housing Providers Municipalities City Council Homeowners Association Condominium Association Zoning Commissions Realtors Property Management Companies Advertisers


Treating one item or person or idea different from another, based on some criteria. When is that choice unlawful?

Race or Color Familial Status Disability Religion Sex Sexual Orientation National Origin Ancestry/Place of Birth


The first wave of Supreme Court decisions in housing discrimination was from 1917-1930.

Legal basis for the challenges date back to Reconstruction. 14th amendment (1868) and CRA of 1866 ( §1982). 1917 – Buchanan v Warley -Court struck down Kentucky ordinance which prohibited African Americans from purchasing a home on a predominately white occupied block and vice versa. The defense for the ordinance was that it would protect property values and prevent racial conflict. Court rejected this defense and ruled the ordinance unconstitutional. 1927 Harmon v. Tyler- City of New Orleans tried to skirt the new legal precedent from Buchanan by adding a line that allowed for the sale of homes to people outside a person’s race as long as there was written consent from everyone on the block. Supreme Court made the same finding and struck down the Ordinance


While the Court was ending explicit racial zoning, other types of zoning schemes were upheld. 1926 – The Court began a long stretch of deference to municipal land use restrictions that were challenged on only economic grounds.

Local zoning scheme specifying areas in which certain types of housing could be located Restrictions on lot and building sizes


Racially restrictive covenants were used to maintain housing segregation once the Court struck down racial zoning as unconstitutional. Generally, part of the deed and restricted the property’s use and occupancy to only whites. Federal Housing Administration would not finance loans for non-white applicants. Used well into the 1950’s and 1960’s because they were legally valid absent state action.


1968 Kerner Commission Report Findings Both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. The Commission concluded, that the nation “is moving toward two societies, one black, one white- separate and unequal.” The Commission recommended enactment of “a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of any housing…on the basis of race, creed, color, or national origin.”


April 4, 1968 – Dr. MLK, Jr. assassinated Congress responded by adopting the Kerner Commission’s recommendation April 11, 1968 – President Johnson signed into law the Civil Rights Act of 1968. Even though it was passed quickly by the time the FHA was passed; government mandated patterns of segregation were firmly established throughout the country.


Integration was an important goal of the FHA. The FHA provides for fair housing throughout the United States, and expanded housing choices for African Americans and other minorities. The statute’s principal sponsor noted that the Act was intended to undo the effects of past governmental discrimination.

Noting how the exclusionary attitude of municipalities toward subsidized housing contributed to the segregated housing patterns that the Act was designed to eliminate.


Duty applies to all local governments receiving HUD funding

2015 County of Westchester v. United States HUD 804 F.3d 413- Court found that HUD withholding funds from a County that failed to take steps to overcome impediments to fair housing was appropriate

AFFH means taking meaningful actions that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.


Address significant disparities in housing needs and in access to opportunity.

Removing barriers to and developing affordable housing in areas of high opportunity

Replace segregated living patterns with truly integrated and balanced living patterns.

Promoting greater housing choice within or outside of area of concentrated poverty and greater access to areas of high opportunity


Transforming racially or ethically concentrated areas of poverty into areas of opportunity.

Preservation or rehab of existing affordable housing Enhancing access to opportunity through targeted investment in neighborhood revitalization and stabilization Improving community assets such as quality schools, employment, and transportation

Fostering and maintaining compliance with civil rights and fair housing laws.


The FHA prohibits state and local land use and zoning laws, policies, and practices that discriminate based on a protected characteristic. Section 804(a) and 804(f)

Makes it unlawful to refuse to sell, rent, or otherwise make housing unavailable based on protected classes 804(a) covers all classes except disabilities which is covered under 804(f)

Section 804(c) Makes it unlawful to make discriminatory comments (including in print)


Housing includes: Buildings intended for occupancy as residences, and Vacant land that may be developed into residences


• Extensive single family zoning • Large minimum lot sizes • One residence per lot • Capping amount/quantity of rentals • Zoning prohibiting low income housing, multifamily

housing, subsidized housing • Putting affordable housing into mostly low income

neighborhoods instead of mixing into more affluent areas


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After Katrina a Parish in New Orleans passed two Ordinances, one restricting the rental of housing units to only blood relatives and the other restricting multifamily units to no more than two eight unit buildings per block. The Parish before Katrina was 88.3% white and only 7.6% black. The Parish claimed the Ordinances would maintain the neighborhood’s traditionally single family ownership appeal. This was not found to be a valid reason and the Courts found the Ordinances violated the FHA. 23 Privileged and Confidential

Downzoning by reducing areas zoned for multifamily

Des Moines Iowa passed a zoning plan to increase lot sizes and require homes have at least a 1 car garage, raising the cost of new homes to over $300,000, more than double the current median cost of homes in Des Moines.

Restrictions on the siting of group homes for people with disabilities Land use practices imposing additional costs/fees for infrastructure or other improvements on multifamily developers

National Association of Home Builders found over 30% of the cost of constructing a multifamily home is fees.


Restricting development of housing based on the belief that residents will be of a particular protected group

Placing moratorium on development of multifamily housing because of concerns that the residents will include members of a particular group Moore v. City of East Cleveland, 431 U.S. 494 (1977); The Supreme Court found that prohibiting a second grandchild from living with her grandparents violated constitutional due process protections by intruding upon family sanctity and because the ordinance had only a tenuous relationship to the alleviation of legitimate city goals..

Imposing restrictions or additional conditions on group homes that are not imposed on families or other groups of unrelated individuals

North Shore-Chicago Rehab v. Skokie, 827 F. Requiring a group home to receive an occupancy permit would have a discriminatory impact on disabled individuals that wanted to live in the home.


Imposing restrictions on housing because of alleged public safety concerns that are based on stereotypes

Requiring proposed development to provide additional security measures based on belief that persons of a particular group are more likely to engage in criminal activity

Refusing to provide reasonable accommodations to land use and zoning policies when necessary to allow persons with disabilities equal opportunity to use and enjoy the housing

Trovato v. City of Manchester 992 F. Mother and daughter with muscular dystrophy could not be denied a reasonable accommodation to build a wheelchair ramp solely based on zoning laws.


Zoning practice may be intentionally discriminatory even if there is no personal bias or animus on the part of individual government officials. Village of Arlington Heights v. Metro Housing Dev. Corp 429 U.S. 252

When claiming intentional discrimination in zoning law the factors the Court will look at include but are not limited to:

The “impact” of the municipal practice The “historical background” of segregation in the area Whether the ordinance was adopted after racially-motivated community opposition Whether there were any departures from the “normal” applications or requirements Whether “usual” factors considered should have resulted in a different decision Legislative or Administrative history, such as statements, by legislative bodies


Zoning that functions to unfairly exclude minorities from certain neighborhoods without any sufficient justification No evidence of intent is required

The focus is on the consequence of the decision/causation Texas DHCA v. Inclusive Communities U.S. 135 2507- the Supreme Court found a disparate impact on members of black communities because affordable housing vouchers were being disproportionately assigned to traditionally black neighborhoods, therefore preventing members of those communities from moving to other areas.


Land use or zoning practice results in a discriminatory effect if it…

Caused or predictably will cause a disparate impact on a group of persons; or If it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic.

Local government has opportunity to show that the practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests and these interests could not be served by another less discriminatory practice


Local governments may not act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community members may have about current or prospective residents because of the residents’ protected characteristics. Even if officials do not personally share such bias … still a violation


If a low-income housing development meets all zoning and land use requirements, the city may not deny zoning approval because the development may house residents of a particular protected class whose presence, the community fears, will increase crime and lower property values in the surrounding neighborhood. Known as Not in My Backyard or “NIMBY”- This is a discriminatory attitude based on stereotypes and is emotionally charged rather than factually supported. Local government may not block a group home in response to neighbors’ stereotypical fears and the entire record should be looked at, not just the loudest voices.


Dwelling occupied by unrelated persons with disabilities. Persons with disabilities have the same FHA protections whether or not their housing is considered a group home.


Intentional discrimination: City passes ordinance prohibiting group homes in single-family neighborhoods City prohibits group homes for persons with certain disabilities.

Discriminatory effect: Enacting ordinance that has an unjustified discriminatory effect on person with disabilities who seek to live in a group home in the community

Reasonable accommodation: A reasonable accommodation is a variance to a law that is necessary to allow equal enjoyment and use of dwellings. Must be granted unless an undue hardship can be shown. Must go beyond stereotypical fears or hypothetical scenarios.


Valencia v City of Spfld. 2018 Plaintiff alleges the city discriminated because the City zoning code says family care residences must be located 600 feet away from another such facility. Plaintiffs unknowingly were operating the home within only 157 feet of a similar home. Plaintiff’s asked for, and were denied, a reasonable accommodation to live in the home anyway. The denial was upheld at a hearing in front of the City’s board


Court overturned the decision and noted that the home is necessary to provide residential services to disabled adults in a community-based setting The request is reasonable because it would advance the integration of disabled individuals into the community These benefits outweigh the negligible potential financial and administrative burden


Will any new plans increase or decrease affordable housing? If a decrease, will it be replaced?

Will the new plan displace current residents? Will new projects disparately impact a specific protected class?

If so, are there less discriminatory alternatives? Was the community given a voice in the decision, and were they actively involved? Does the project increase or decrease racial and economic segregation? How does the project address goals or objectives that would further fair housing? If there are public funds being used, what are the benefits to the community?


Fort Wayne Metropolitan Human Relations Commission

Phone: 260-427-1148 Address: 2310 Parnell Ave. Fort Wayne, IN 46805 Website: http://www.fortwaynemetro.org/


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