Civil Rights and Housing for Homeless Individuals

with Disabilities By Michael Allen

Relman, Dane & Colfax, PLLC

National Alliance to End Homelessness

July 14, 2011Washington, D.C.

Contact Information

Michael Allen

Relman, Dane & Colfax, PLLC

1225 19th Street, N.W., Suite 600

Washington, D.C.  20036-2456

202/728-1888, ext. 114

FAX:  202/728-0848

E-mail: mallen@relmanlaw.com

Website: www.relmanlaw.com

Federal Civil Rights Law Applicable to Homelessness

Section 504 of the Rehabilitation Act Americans with Disabilities Act Fair Housing Act

Section 504

Applies only to “recipients of federal funds”

Prohibits discrimination on the basis of disability

Requires covered entities to change rules, policies and practices if necessary to benefit people with disabilities

Americans With Disabilities Act

Applies to “public services”– Programs or activities carried out by state or

local government, or through contract with private entities

Applies to “places of public accommodation”– Can include city-run shelters

Americans With Disabilities Act

Prohibits discrimination on the basis of disability Requires covered entities to change rules, policies

and practices if necessary to benefit people with disabilities

Requires that public entities provide services in the “most integrated setting” appropriate to needs of people with disabilities

Fair Housing Act

Applies to virtually all “dwelling units” Forbids discrimination on the basis of

race, color, religion, national origin, sex, familial status and disability

Definition of Disability

a mental or physical impairment, such as:– Blindness– Mobility impairment– HIV infection– Mental retardation– Alcoholism/drug addiction– Psychiatric disability – Deafness

Definition of Disability

…which substantially limits one or more major life activities, such as those related to:– walking

– hearing

– social interaction

– seeing

– breathing

– self-care

Congressional Intent on Disability

" [A] clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring those individuals into the economic and social mainstream of American life."

Text of the ADA

“...no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Federal Regulations (DOJ)

“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

28 C.F.R. §130(d)

“Most Integrated Setting” means…

“...a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”

28 C.F.R. pt. 35, App. A, p. 450

Olmstead: The Bottom Line

Unnecessary segregation of people with disabilities in institutions constitutes discrimination based on disability.

States required to provide community-based services rather than institutional placements for individuals with disabilities

Olmstead Reasoning

“…unjustified isolation...is properly regarded as discrimination based on disability.”

“[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. . . .”

Olmstead Reasoning

“[C]onfinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”

Broad Coverage

The same principles apply not only to people who are currently institutionalized unnecessarily, but also to people at risk of unnecessary institutionalization because of the lack of community-based housing and supportive services.

Disability Advocates, Inc. v. Patterson

9/8/09: New York fails to offer housing in most integrated setting to people with psychiatric disabilities; nearly 4000 people in adult homes eligible for supported housing

3/1/10: State must develop sufficient supported housing units to ensure that all adult home residents can live in the most integrated setting appropriate to their needs

United States v. Georgia

10/19/10: Settlement– Georgia will stop admitting individuals with developmental

disabilities to its state-run hospitals by July 1, 2011, and will transition all individuals with developmental disabilities already living in the hospitals to community settings by July 1, 2015..

– By July 1, 2015, Georgia has agreed to provide services in community settings for 9,000 individuals with mental illness who currently receive services in the state hospitals, are frequently readmitted to state hospitals, are frequently seen in emergency rooms, are chronically homeless or are being released from jails or prisons.

Fair Housing Act Enforcement

No inquiry about disability No denial or segregation because of

disability Reasonable accommodation in rules and

policies Equal treatment mandate

“Affirmatively Furthering Fair Housing”

Every jurisdiction/entity receiving federal housing and community development funds is obligated to take affirmative steps to expand fair housing choice for members of the FHA’s seven protected classes– 1200 CDBG recipients (states/municipalities)– 3000+ housing authorities– Thousands of subsidized housing providers

AFFH Statutory Authority

FHA requires HUD to “administer [housing] programs…in a manner affirmatively to further the policies of [the Fair Housing Act],” including the general policy to “provide, within constitutional limits, for fair housing throughout the United States.” – 42 USC §3608(e)(5).

“No Certification, No Money”

42 U.S.C. §5304(b)(2): “Any grant under [the CDBG program] shall be made only if the grantee certifies to the satisfaction of the Secretary that … the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 [42 U.S.C. 2000a et seq.] and the Fair Housing Act [42 U.S.C. 3601 et seq.], and the grantee will affirmatively further fair housing.”

CDBG/Con Plan AFFH Regs

A grantee is “required to submit a certification that it will affirmatively further fair housing, which means that it will (1) conduct an analysis to identify impediments to fair housing choice within the jurisdiction; (2) take appropriate actions to overcome the effects of any impediments identified through that analysis; and (3) maintain records reflecting the analysis and actions in this regard.” – 24 C.F.R. § 570.601(a)(2) – 24 CFR § 91.225(a).

Impediments

In your own communities, what impediments to fair housing choice do homeless and low-income people experience on the basis of:– Disability?– Race?– National Origin?– Familial Status?

Impediments Are these impediments reflected in your

community’s Analysis of Impediments (AI)?

Does the AI describe (and commit to take) appropriate actions to overcome these impediments?

If “no” is the answer, your community may be failing in its AFFH obligation, and its federal funding may be at risk

Metro Atlanta Task Force for the Homeless v. City of Atlanta, et al.

HUD Administrative Complaint filed 9/6/10, alleges that City and others:– Have discriminated on the basis of race, color

and disability– Have interfered with Task Force funding and

efforts to create supportive housing and employment opportunites

– HUD is currently investigating

Civil Rights and Housing for Homeless Individuals

with Disabilities

www.csh.org

NAEH Annual Conference – Washington D.C.July 13-15, 2011

29

Who is CSH?

CSH helps communities create permanent housing with services to prevent and end

homelessness.

CSH’s Project Related Assistance

Predevelopment Funding

Technical Assistance

Systems Advocacy

Williams v Quinn

Class Action Lawsuit Filed in 2005 Lawsuit alleged that IL was in violation of Title II

of ADA and Section 504 of Rehabilitation Act by “needlessly segregating” plaintiffs

Class of 4,500 IL resident with Serious Mental Illness living in Institutions of Mental Disease (IMDs)

30

Williams Consent Decree

“All persons with SMI currently residing in IMDs in IL have the right to choose to live in community-based settings and that the State has an obligation to expand the current community-based service system to support the needs of those individuals.”

31

Williams Consent Decree

“…aim of providing services to an individual in the least restrictive and most integrated setting possible”

“…Recovery Principles should guide all systems reform efforts and frame the development and expansion of all services.”

32

Williams Implementation Plan

Outreaching to Class Members Creating individualized evaluations and

service planning Transitioning to least restrictive housing Providing community-based service

33

Williams Consent Decree

Housing Requirements:– 1st year – 256 Class Members offered

placement in Community-Based Setting & develop 256 PSH units

– 2nd year – 640 Class Members offered placement in Community-Based Setting & develop 640 PSH units

– 3rd year – Offered placement to at least 40% & develop corresponding number of PSH units

34

Williams Consent Decree

Housing Requirements Continued:– 4th Year – Offered placement to at least 70% &

develop corresponding number of PSH units – 5th year - Offered placement to at least 100% &

develop corresponding number of PSH units– After 5th year - offered the opportunity to move

and shall receive appropriate services consistent with Service Plan within 120 days of the date of the Service Plan

35

Policy Considerations

Integrated housing – no more than 25% of a developments units can be targeted to Class Members

Housing models/options Housing resources Supportive services resources State and local resources Nursing home lawsuit

36

Lindsey Bishop312-332-6690 ext.12

lindsey.bishop@csh.org

Civil Rights and Housing for Homeless Individuals with

Disabilities

National Alliance to End Homelessness

Annual Conference – Washington D.C.

July 13-15, 2011

New Hope Apartments, Peoria, IL

• 79 efficiency apartments, SRO

• Tenants: homeless, disabled

• On-site amenities include TV rooms, laundry & exercise rooms, garden patio

• 24/7 front desk coverage

• On-site case management – SSOC

• Offices for 2 non-profits

New Hope Apartments

• Tax Credit Project – Oversight, compliance

• $12 million project, $8 million in construction

• Operational funding secured, all units subsidized

Background

• SSOC had 30 units permanent supportive housing (PSH)

• Renting a poorly maintained building

• Local CoC: Community needs more PSH

• Started looking for a site in the 1990’s; more seriously in 2003

Background (cont.)

• Warehouse Overlay District (oW)• Old warehouses, industrial uses• Vision

– Gentrification; loft apartments– New Urbanism; walkable downtown

• Riverfront museum planned• Heart of Peoria Plan

– Duany – New Urbanism guru

Site Selection

• Zoning for oW District– Offices on street level, residential above offices

• Verbal acknowledgement from city staff that no zoning changes required

• July 2004 - SW Washington building identified

• Located across the alley from existing 30-unit SRO

Special Use Required

• November 2004, 8:30 am– Heart of Peoria Meeting– Neighborhood business owner objected to New

Hope Apt– 2 City staff argued on need for Special Use

• 10:30 am – Call from Director of Planning and Zoning that Special Use was required

Legal Issues

• We contended: the proposed development was a permitted use under the oW District

• City requirement for Special Use:– Fair Housing violation – American with Disabilities Act violation

• Requested Reasonable Accommodation

Exhaust Administrative Remedies

• Jan 2005 – Zoning Commission to request Special Use for Rooming House

• We questioned the Findings of Fact process

• Mar 1 – Zoning Commission Special Meeting to establish Findings of Fact

Exhaust Administrative Remedies (cont.)

• Mar 15 – City Council expected to vote on Zoning Commission recommendation – remanded back to Zoning

• June 9 – Zoning Board of Appeals – Not a rooming house

Pursuing Fair Housing Issues

• Met with Fair Housing department at HUD’s Chicago filed office

• Including William Caruso, John Marshall Law School

• Filed 903.1 Fair Housing Complaint

Legal Action

• July 2005 - Filed lawsuit against the City of Peoria

• Kept the project on the City’s radar screen

“Denouement”

• Congressman LaHood intervened• Meeting of all players• Alternate site #1 proposed – Inappropriate• Alternate site #2 proposed – Current

location• Opponents objected• Power Play – LaHood’s aid:

“You can’t object to every site”

Completion Timeline

• Dec 2005 – 1st tax credit application

• April 2006 – 2nd tax credit application

• June 2006 – Tax credits awarded

• March 2007 – Started construction

• March 2008 – Construction completed, started lease-up

• Dec 2008 – 100% occupancy

Side Note

City of Peoria’s current Warehouse District zoning:

No offices providing support services

Understanding NIMBY

• Fear of the unknown

• Limited knowledge – negative anecdotal, usually irrelevant to proposed development

• Trust – Human nature to trust who you know

Overcoming NIMBY

• Power

• Political advocate

• Be ready to compromise

• Litigation

Avoiding NIMBY

• Proactive

• Build relationships

• Develop trust

Tools and Resources

• Corporation for Supportive Housing

• Knowledgeplex.org??

• Affordable Housing Toolkit

• JG: Check NIMBY files

Contact Information:

Jane Genzel

Peoria Opportunities Foundation

301 NE Jefferson

Peoria, IL 61603

309-672-5212

jane.genzel@gmail.com