On November 10, 2016, the U.S. Department of Housing and Urban Development and the U.S. Department of Justice released a “Joint Statement” providing updated guidance on the application of the federal Fair Housing Act to state and local land use laws and practices.

The FHA prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability. Among other things, the FHA applies to local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The FHA does not pre-empt local zoning laws, however, which are is traditionally reserved to state and local governments, except to the extent such laws may conflict with requirements imposed by the FHA or other federal laws.

The new guidance updates and expands HUD’s and DOJ’s “Joint Statement on Group Homes, Local Land Use, and the Fair Housing Act,” issued in 1999. According to a DOJ press release, the new guidance “is designed to help state and local governments better understand how to comply with the FHA when making zoning and land use decisions as well as to help members of the public understand their rights under the FHA.”

The new guidance is issued in the form of questions and answers to 27 topics, including the following:

  • How does the FHA apply to state and local land use and zoning?
  • What types of land use and zoning laws or practices violate the FHA?
  • When does a land use or zoning practice constitute intentional discrimination in violation of the FHA?
  • Can state and local land use and zoning laws or practices violate the FHA if the state or locality did not intend to discriminate against persons on a prohibited basis?
  • Does a state or local government violate the Fair Housing Act if it considers the fears or prejudices of community members when enacting or applying its zoning or land use laws respecting housing?
  • Can state and local governments violate the FHA if they adopt or implement restrictions against children?

More information about HUD and the civil rights laws it enforces is available at www.hud.gov/fairhousing. More information about the Justice Department’s Civil Rights Division and the laws it enforces is available at https://www.justice.gov/crt.