City Zoning Ordinance Prohibiting Conversion Of Senior Mobilehome Parks To All-Age Parks Does Not Violate Federal Housing Discrimination Laws

The Ninth Circuit Federal Appeals Court recently rejected a challenge by four mobilehome park owners to a city ordinance that prohibits mobilehome parks that currently operate as senior housing from converting to all-age housing.  (Putnam Family Partnership v. City of Yucaipa, California (— F.3d —-, C.A.9 (Cal.), February 17, 2012).  While the Federal Fair Housing Amendments Act generally prohibits age discrimination in housing, the court found that the Act’s senior housing exception allows cities to require that mobilehome parks be restricted to seniors, even when the park owners prefer no age restrictions.

Facts

The City of Yucaipa, California (“City”) adopted an ordinance which amended City’s land-use plan and created a “Senior Mobilehome Park Overlay District” (“District”).  The Ordinance prohibited any of the 22 mobilehome parks that were then operating as senior housing from converting to all-age housing.  It also requires that “[t]he signage, advertising, park rules, regulations, rental agreements and leases for spaces” for a park in the District “shall state that the park is a senior park.” 

Four mobilehome park owners, including the Putnam Family Partnership (the “Owners”), who own parks within the City brought a lawsuit in federal district court alleging that the Ordinance violates the Fair Housing Amendments Act of 1988 (“FHAA”) by forcing the parks to discriminate based on familial status.  Putnam also asserted the FHAA preempts the Ordinance and that the Ordinance violates California housing law. 

The City filed a motion to dismiss on the grounds that (1) the Ordinance falls within FHAA’s senior exemption, “which allows communities that provide ‘housing for older persons’ to exclude families with children,” and (2) that the senior exemption as amended by the Housing for Older Persons Act of 1995 (“HOPA”) and as interpreted by regulations of the Department of Housing and Urban Development (“HUD”), applies to city-zoned senior housing.  The district court granted the City’s motion to dismiss and held “that the Ordinance was covered by the federal senior exemption because, under the HOPA amendments, the required intent to provide senior housing need not be that of the private property owner.” 

Decision

The court of appeals affirmed the district court’s dismissal of the Owners’ action.  The Fair Housing Act as originally enacted prohibited discrimination in the rental or sale of a dwelling based on race, color, religion, sex or national origin.  The FHAA amended the Fair Housing Act to also prohibit discrimination based on familial status, which is defined as “children younger than eighteen living with a parent or legal custodian.”  There are two exemptions to the familial-status discrimination provision:  (1) restrictions on maximum occupancy, and (2) “housing for older persons.”  The senior exemption allows communities that satisfy certain requirements to discriminate based on familial status. 

As originally enacted, the FHAA provided that an owner or manager must have the intent to provide senior housing and that the housing must be “specifically designed to meet the physical or social needs of older persons.”  When Congress enacted HOPA, it eliminated the “significant facilities and services” requirement and the requirement “that the intent to provide senior housing demonstrated in published policies and procedures must be that of the ‘owner or manager.’”  HOPA also specified that a housing facility or community must publish policies and procedures. 

HUD regulations define the phrase “housing facility or community” to include mobile home parks and municipally zoned areas.  The regulations also prescribe ways in which a “housing facility or community” can satisfy the requirement that it publish and adhere to policies and procedures that demonstrate its intent to operate as senior housing.  An appendix contains an example involving a “zoned area,” and states that “An area zoned by a unit of local government as ‘senior housing’ satisfies the intent requirement if :  (1) Zoning maps containing the ‘senior housing’ designation are available to the public; (2) Literature distributed by the area describes it as ‘senior housing’; (3) The ‘senior housing’ designation is recorded in accordance with local property recording statutes; and (4) Zoning requirements include the 55–or–older requirement or a similar provision.”

The Owners argued the Ordinance violated the FHAA because it required them to discriminate against families.  However, discrimination based on familial status does not violate the FHAA if the senior exemption applies.  The Owners asserted the requirements of the FHAA are not met where a housing provider lacks the intent to operate senior housing and a city forces the unwilling housing provider to operate senior housing.  The court of appeals rejected Putnam’s argument.

The City expressed its intent to provide senior housing when it created the District.  The question is whether the District can qualify as a “housing facility or community.”  The court considered the text of the FHAA as amended by HOPA and concluded “that Congress has not ‘directly spoken to the precise question at issue.”   Therefore, the court deferred to HUD’s definition of “housing facility or community,” which includes municipally zoned areas.  The court concluded that “[m]unicipally zoned senior housing is consistent with Congress’s efforts in enacting HOPA to ‘preserve housing for older persons.’”

The court concluded that “[a]s long as the decision to provide senior housing is intentional, whether that intent belongs to a city or a housing provider is irrelevant.”  Most important is that the intent be demonstrated in published policies that (1) give notice to potential and current tenants and, (2) ensure that the age requirement is consistently applied.  The court found that the City’s Ordinance satisfies these purposes.  The court also held that the Ordinance does not violate the FHAA and that the FHAA does not preempt the Ordinance.   

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey | 916.321.4500

Jon E. Goetz | 805.786.4302