FEDERAL HOUSING ACT AMENDMENTS AND OTHER DEVELOPMENTS IN PLANNING AND ZONING

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FEDERAL HOUSING ACT AMENDMENTS AND OTHER
DEVELOPMENTS IN PLANNING AND ZONING

• Presented by
• Suitter Axland, PLLC
• Michael W. Homer, Esq.
• Brian D. Bolinder, Esq.

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COUNTY LAND USE, DEVELOPMENT, AND MANAGEMENT ACT

• The purposes of this chapter are to provide for
  the health, safety, and welfare, and promote the
  prosperity, improve the morals, peace and good
  order, comfort, convenience, and aesthetics of
  each county and its present and future
  inhabitants and businesses, to protect the tax
  base, to secure economy in governmental
  expenditures, to foster the states agricultural
  and other industries, to protect both urban and
  nonurban development, to protect and ensure
  access to sunlight for solar energy devices, to
  provide the fundamental fairness in land use
  regulation, and to protect property values.
  U.C.A. 17-27a-102(1)(a).

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FEDERAL LAWS, REGULATIONS AND PROGRAMS AFFECTING
LOCAL LAND USE DECISION MAKING

• Must comply with
• National Environmental Policy Act (NEPA)
• Federal Endangered Species Act
• National Historic Preservation Act
• Homeland Security considerations
• Religious Land Use and Institutionalized Persons
  Act (RLUIPA)
• Federal and State Fair Housing Act (FHA)
• AND SEVERAL OTHERS.

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IMPACT OF FEDERAL LAWS ADDRESSING ENVIRONMENTAL
HAZARDS

• - Cleanup of Former Federally-Owned Factories
  during World War II is responsibility of federal
  government. See E.I. duPont de Nemours Co. v.
  U.S., 365 F.3d 1367 (Fed. Cir. 2004).
• Unified National Strategy for Animal Feeding
  Operations to reduce impact on water quality of
  unmanaged animal waste. See http//cfpub.epa.gov/
  npdes/afo/ustrategy.cfm?program_id7

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Federal Endangered Species Act (ESA)

• The ESA protects endangered species by
  influencing land use decisions through its
  prohibition of taking endangered species.
• Example Loggerhead Turtle v. County Council of
  Volusia County, Florida, 148 F.3d 1231 (11th Cir.
  1998) held that County could be held liable for
  approving a beach lighting system that adversely
  affected turtle nesting.

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Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA)

• No government shall impose or implement a land
  use regulation in a manner that imposes a
  substantial burden on the religious exercise of a
  person, including a religious assembly or
  institution, unless the government demonstrates
  that imposition of the burden on that person,
  assembly, or institution
• (A) is in furtherance of a compelling government
  interest and
• (B) is the least restrictive means of furthering
  that compelling government interest.
• 42 U.S.C. 2000cc(a)(1).

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Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), cont.

• Sec. 8 Definitions
• (4) GOVERNMENT The term government
• (A) means
• (i) a State, county, municipality, or other
  governmental entity created under the authority
  of a State . . .
• 42 U.S.C. 2000cc-5(4).

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Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), cont.

• Recent cases
• Cam v. Marion County, 987 F.Supp. 854 (D. Oregon
  1997) (finding that Oregons high value of farm
  land zoning rules prohibiting new churches
  failed to pass rational basis test)
• Guru Nanak Sikh Society v. County of Sutter, 456
  F.3d 978 (9th Cir. 2006) (elected officials
  denial of application and offer to informally
  cooperate with Plaintiff did not overcome
  prohibition on substantial burden of RLUIPA
  local governments cannot use discretionary land
  use rationales as leverage to select the location
  where a group can worship)

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FEDERAL FAIR HOUSING ACT

• The Fair Housing Act makes it unlawful to
  refuse to sell or rent after the making of a bona
  fide offer, or to refuse to negotiate for the
  sale or rental of, or otherwise make unavailable
  or deny, a dwelling to any person because of
  race, color, religion, sex, familial status, or
  national origin and to discriminate in the
  sale or rental, or to otherwise make unavailable
  or deny, a dwelling to any buyer or renter
  because of a handicap. 42 U.S.C. 3604(a) and
  (f)(1) (2006).

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FEDERAL FAIR HOUSING ACT, cont.

• Courts have interpreted the phrase otherwise
  make unavailable broadly, and have generally
  held that practices such as zoning restrictions
  that have a discriminatory impact on protected
  groups of people are prohibited by the Fair
  Housing Act. LeBlanc-Stremberg v. Fletcher, 67
  F.3d 412, 424 (2d Cir. 1995).

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FEDERAL FAIR HOUSING ACT STANDING

• (1) Aggrieved Person
• (a) Any person who claims to have been injured
  by discriminatory housing practice or believes
  such person will be injured.
• (b) Person includes individuals, corporations,
  partnerships, associations, labor organizations,
  legal representatives, mutual companies,
  joint-stock companies, trusts, unincorporated
  organizations, trustees, receivers and
  fiduciaries.

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FEDERAL FAIR HOUSING ACT TYPES OF PLAINTIFFS

• (1) Project Developers
• (2) Individuals
• (a) Residents, Neighborhood Injury
• (b) Minority Non-Residents of Neighborhood
• (3) Organizations
• (a) First-Party Organizational Standing
  (requires injury in fact, causation, and
  redressability)
• (b) Representational Standing (requires injury
  to members, interests germane to its purposes,
  and the nature of the claim does not require
  participation of injured member for proper
  resolution)

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FEDERAL FAIR HOUSING ACT TYPES OF PLAINTIFFS,
cont.

• (4) Testers
• (a) Investigators re compliance with FHA
• (5) United States
• (6) Local Governments

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FEDERAL FAIR HOUSING ACT TYPES OF
DISCRIMINATORY PRACTICE

• (1) Adoption of Ordinances
• (2) Text Amendments
• (3) Zoning Classifications and Rezoning Requests
• (4) Permit Denials

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VIOLATIONS OF FEDERAL FAIR HOUSING ACT

• Plaintiff may establish a violation under FHA by
  successfully alleging two theories
• (1) Disparate Impact must show that policy
  affects one class of people differently than
  another class of people.
• (2) Failure to make reasonable accommodations
  change in rules, policies, or practices so as to
  afford an equal opportunity to live in a
  dwelling.

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UTAH FAIR HOUSING ACT (UFHA)U.C.A. 57-21-1 et
seq.

• The language and apparent policy of the UFHA
  are so similar to the Federal Fair Housing Act
  that it is appropriate to look to federal law as
  persuasive authority when interpreting the UFHA.
  Other states have similarly relied on FFHA case
  law when interpreting their own fair housing
  acts.
• Malibu Investment Company v. Sparks, 2000 UT 30
  27, 996 P.2d 1043, 1051.

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CHALLENGES RAISED BY FHA

• Conditional use permits.
• See City of Cleburne, Texas v. Cleburne Living
  Center, 473 U.S. 432 (1995) (special use permit
  failed the rational basis test for equal
  protection challenge for group home).
• Discretionary review requirements.
• Occupancy restrictions.
• See City of Edmunds v. Oxford House, Inc., 514
  U.S. 725 (1995) (exemption regarding maximum
  number of occupants applies to absolute occupancy
  restrictions, not those directed at group homes
  restriction must apply uniformly to handicapped
  residences and single-family dwelling units).

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CHALLENGES RAISED BY FHA, cont.

• Failure to make reasonable accommodations.
• See Corp. of Episcopal Church in Utah et al. v.
  West Valley City et al., 119 F.Supp.2d 1215 (D.
  Utah 2000) (FHA requires accommodation for
  persons with handicaps if the accommodation is
  (1) reasonable and (2) necessary (3) to afford
  handicapped persons equal opportunity to use and
  enjoy housing reasonable accommodation requires
  participation by both parties).

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U.C.A. 17-27a-519Residences for persons with a
disability

• (1) Each county shall adopt an ordinance for
  residential facilities for persons with a
  disability.
• (2) Each ordinance under Subsection (1) shall
• (a) comply with Title 57, Chapter 21, Utah Fair
  Housing Act, and the federal Fair Housing
  Amendments Acct of 1988, 42 U.S.C. Sec. 3601 et
  seq. and
• (b) to the extent required by federal law,
  provide that a residential facility for persons
  with a disability is a permitted use in any zone
  where similar residential dwellings that are not
  residential facilities for persons with a
  disability are allowed.

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U.C.A. 17-27a-519Residences for persons with a
disability, cont.

• (3) Subject to Subsection (2), an ordinance under
  Subsection (1) may
• (a) require residential facilities for persons
  with a disability
• (i) to be reasonably dispersed throughout the
  county
• (ii) to be limited by number of occupants
• (iii) for residential facilities for persons
  with a disability that are substance abuse
  facilities and are located within 500 feet of a
  school, to provide, in accordance with rules
  established by the Department of Human Services
  under Title 62A, Chapter 2, Licensure of Programs
  and Facilities
• (A) a security plan satisfactory to local law
  enforcement authorities
• (B) 24-hour supervision for residents and
• (C) other 24-hour security measures and

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U.C.A. 17-27a-519Residences for persons with a
disability, cont.

• (3) Subject to Subsection (2), an ordinance under
  Subsection (1) may
• (a) require residential facilities for persons
  with a disability
• (iv) to obtain permits that verify compliance
  with the same building, safety, and health
  regulations as are applicable in the same zone to
  similar uses that are not residential facilities
  for persons with a disability and
• provide that a residential facility for persons
  with a disability that would likely create a
  fundamental change in the character of a
  residential neighborhood may be excluded from a
  zone.

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U.C.A. 17-27a-104Stricter Requirements

• (1) Except as provided in Subsection (2), a
  county may enact an ordinance imposing stricter
  requirements or higher standards than are
  required by this chapter.
• (2) A county may not impose stricter requirements
  or higher standards than are required by
• (a) Section 17-27a-305
• (b) Section 17-27a-513
• (c) Section 17-27a-515 and
• (d) Section 17-27a-519.

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ROLE OF CONDITIONAL USE PERMITS (CUP)

• U.C.A. 17-27a-506(2)(a) (2005)
• A conditional use shall be approved if
  reasonable conditions are proposed, or can be
  imposed, to mitigate the reasonably anticipated
  detrimental effects of the proposed use in
  accordance with applicable standards.

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ROLE OF CONDITIONAL USE PERMITS (CUP), cont.

• U.C.A. 17-27a-506(2)(b) (2005)
• If the reasonably anticipated detrimental
  effects of a proposed conditional use cannot be
  substantially mitigated by the proposal or the
  imposition of reasonable conditions to achieve
  compliance with applicable standards, the
  conditional use may be denied.

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ROLE OF CONDITIONAL USE PERMITS (CUP), cont.

• In reviewing an application for a CUP, courts
  typically require the reviewing authority to
  issue findings of fact and conclusions of law.
  Findings of fact establish the factual basis, and
  conclusions of law establish the legal
  principles, that the board uses to reach its
  decision and assure more careful administrative
  consideration.
• See PSI Energy, Inc. v. Indiana Office of Utility
  Consumer Counsel, 764 N.E.2d 769, 773 (Ind. App.
  2002).

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ROLE OF CONDITIONAL USE PERMITS (CUP), cont.

• Cannot deny CUP based upon
• - criterion not identified in Code
• - speculation that additional, expanded CUP will
  be sought in future
• - public clamor (NIMBY) and
• - any inferred discriminatory intent.

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N.I.M.B.Y.

• NOT
• IN
• MY
• BACK-
• YARD!

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N.I.M.B.Y.

• The consent of neighboring landowners may not
  be made a criterion for the issuance or denial
  of a conditional use permit.
• See Davis County v. Clearfield City, 756 P.2d
  704, 712 (Utah Ct. App. 1988) (quoting Thurston
  v. Cache County, 626 P.2d 440, 445 (Utah 1981)).

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N.I.M.B.Y.

• The decision to deny an application for a
  conditional use permit may not be based solely on
  adverse public comment.
• See Ralph L. Wadsworth Construction, Inc. v. West
  Jordan City, 2000 UT App 49, 999 P.2d 1240.

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CONCLUSION

• Questions? Comments?
• Thank you for your attention.
• Suitter Axland, PLLC
• 8 E. Broadway, Suite 200
• Salt Lake City, UT 84111
• Telephone [phone]
• Facsimile 801.532.7355
• mhomer_at_sautah.com
• bbolinder_at_sautah.com