[Federal Register Volume 59, Number 129 (Thursday, July 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16139]
[[Page Unknown]]
[Federal Register: July 7, 1994]
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Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity
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24 CFR Part 100
Fair Housing; Fair Housing Act; Discriminatory Conduct; Housing for
Older Persons; Significant Facilities and Services Definition; Proposed
Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity
24 CFR Part 100
[Docket No. R-94-1706; FR-3502-P-01]
RIN 2529-AA66
Housing for Older Persons; Defining Significant Facilities and
Services; Proposed Amendments
AGENCY: Office of the Secretary and Office of the Assistant Secretary
for Fair Housing and Equal Opportunity, HUD.
ACTION: Notice of Proposed Rule and Notice of Public Meeting.
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SUMMARY: This proposed rule would implement the rulemaking required by
section 919 of the Housing and Community Development Act of 1992.
Section 919 requires the Secretary of HUD to issue ``rules defining
what are `significant facilities and services especially designed to
meet the physical or social needs of older persons' required under
section 807(b)(2) of the Fair Housing Act to meet the definition of the
term `housing for older persons' in such section.'' This rule would
amend existing regulations governing ``housing for older persons'', to
provide the definitions required by section 919.
DATES: Comments due date: October 5, 1994.
ADDRESSES: Interested persons are invited to submit comments on the
proposed rule to the Office of the General Counsel, Rules Docket Clerk,
room 10276, Department of Housing and Urban Development, 451 Seventh
Street SW., Washington, DC 20410-0500. Communications should refer to
the above docket number and title. A copy of each communication
submitted will be available for public inspection and copying during
regular business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Peter Kaplan, Office of Program
Training and Technical Assistance, Office of Fair Housing and Equal
Opportunity, room 5242, U.S. Department of Housing and Urban
Development, 451 Seventh Street, SW., Washington, DC 20410-0500,
telephone (202) 708-1145 (not a toll-free number). The toll-free TDD
number is: 1-800-877-8339.
Notice of Public Meeting
The customary 60-day public comment period will be extended to a
90-day public comment period to ensure broad public input into the
rulemaking process. Additionally, the Assistant Secretary for Fair
Housing and Equal Opportunity will schedule a public meeting to hear
from all those affected by this proposed rule.
Attendance will be open to the interested public, but necessarily
limited to the space available. Presentation of oral statements will be
welcomed. However, groups that wish to make an oral presentation at the
meeting must request an opportunity to do so in writing. Oral
presentations will also be limited to a prescribed time and to the
groups that submit written comments. Written comments may be submitted
at any time during the 90 day comment period following publication of
the proposed rule in the Federal Register.
Specific details as to the date, time and location of the meeting
will be provided by notification in the Federal Register within 20 days
from the date of this publication. The Notice of meeting will also
contain all procedures governing the conduct of the meeting.
For further information concerning the public meeting contact Peter
Kaplan, Director, Office of Program Training and Technical Assistance,
Department of Housing and Urban Development, 451 Seventh Street SW.,
Washington, DC 20410, telephone (202) 708-1145, not a toll free number.
SUPPLEMENTARY INFORMATION:
I. Background
The Fair Housing Act (Title VIII of the Civil Right Act of 1968, as
amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601-19)
exempts ``housing for older persons'' from the prohibitions against
discrimination because of familial status. The purpose of the
prohibition against discrimination on the basis of familial status and
the ``housing for older persons'' exemption is to protect families with
children from discrimination in housing without unfairly limiting
housing choices for elderly persons (see 134 Cong. Rec. S 19722 (Aug.
1, 1988) statement of Senator Karnes).
On January 23, 1989 (54 FR 3232), HUD published a final rule
implementing the Fair Housing Act. This rule included regulations
governing housing for older persons. The ``housing for older persons''
regulations implement, among other things, section 807(b)(2)(C) of the
Fair Housing Act, which exempts housing intended and operated for
occupancy by at least one person 55 years of age or older per unit that
satisfies certain criteria. These regulations are codified in 24 CFR
part 100, subpart E. In drafting the housing for older persons
regulations, HUD took into consideration the public comments that
addressed the issue of what constitutes ``significant facilities and
services specifically designed to meet the physical or social needs of
older persons.''
Congress mandated that, in determining whether housing qualifies as
housing for persons 55 years of age or older, the Secretary develop
regulations which require at least the following factors:
(1) The existence of significant facilities and services
specifically designed to meet the physical or social needs of older
persons, or if the provision of such facilities is not practicable,
that such housing is necessary to provide important housing
opportunities for older persons; and
(2) That at least 80 percent of the units are occupied by at least
one person 55 years of age or older per unit; and
(3) The publication of, and adherence to, policies and procedures
which demonstrate an intent by the owner or manager to provide housing
for persons 55 years of age or older.
II. Overview of Proposed Rule
Section 919 of the Housing and Community Development Act of 1992
(Pub. L. 102-550, approved October 28, 1992 (the 1992 Act)), requires
the Secretary of HUD to issue rules further defining what are
``significant facilities and services especially designed to meet the
physical or social needs of older persons'' required under section
807(b)(2) of the Fair Housing Act to meet the definition of the term
``housing for older persons.''1 This proposed rule would implement
the rulemaking required by section 919 of the 1992 Act. Specifically,
this proposed rule would revise the ``55 or over'' housing regulation,
codified at 24 CFR 100.304.
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\1\The language of section 919 contains the word ``especially'':
``* * * rules defining what are `significant facilities and services
expecially designed to meet the physical or social needs of older
persons' required under section 807(b)(2) of the Fair Housing Act to
meet the definition of the term `housing for older person' in such
section.'' (emphasis added) This proposed rule uses the word
``specifically'' rather than the word ``especially'' to comply with
congressional intent and reflect the actual language of section
807(b)(2) of the Fair Housing Act.
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This proposed rule would expound upon the significant facilities
and services requirements governing ``55 or over housing'' currently
set forth in Sec. 100.304(b)(1). A new Sec. 100.305 would be added and
would address the requirements for ``facilities and services
specifically designed to meet the physical or social needs of older
persons.'' A new Sec. 100.306 would be added and would address the
requirement that such facilities and services be ``significant.'' In
addition to adding these two new sections, the substance of existing
Sec. 100.304(b)(2) would be located in the new Sec. 100.310. Existing
subsections Secs. 100.304(c)(1) and 100.304(d) and 100.304(e) would
provide the substance of new Sec. 100.315, and existing
Sec. 100.304(c)(2) would be redesignated as new Sec. 100.316.
In developing this proposed regulation, the Department desires to
provide as much certainty as possible regarding the determination that
housing qualifies as housing for older persons. It has sought to
structure the regulation to allow both housing providers and protected
classes alike to ascertain with confidence whether a community
qualifies under the Fair Housing Act.
However, it is the Department's view that a single, precise,
mathematical-like standard that fully implements the Act is not
possible, nor may it be equitable.
As a result, the Department has concluded that a flexible standard
is necessary in order to reflect regional variations in services and
facilities that distinguish housing for older persons from other
similar housing, as well variations determined by the geography of the
site or by the differences in the nature or cost of the housing in
question. To do otherwise could unnecessarily restrict housing
opportunities for older persons by holding all housing to a single
arbitrary standard that was not intended by the framers of the Act.
Services common to older persons in one region of the country are
often not commonly provided or expected in another where weather, for
example, or terrain make them unnecessary or undesirable. Similarly,
facilities expected as the norm at large, single family older community
developments may not be expected at small, mobile home parks with
limited acreage, or at large, multi-story, multi-family condominium
complexes. And services or facilities common or needed in urban
communities near transportation may differ substantially from those
appropriate to rural locations.
In addition, the Department recognizes that housing for older
persons is not limited to the affluent. Therefore, the Department is
concerned lest a single standard that offers certainty would not be
sufficiently flexible to accommodate housing for low and moderate
income older persons.
In structuring the proposed rule which follows, the Department has
sought to identify as many as possible of the factors and
considerations which are germane to capture the differences required by
housing for older persons, thus making it possible for wide varieties
of communities to qualify who meet the statutory requirements of the
Act. In addition, through the publication of the appendix and the
illustrative examples it contains, the Department has sought to provide
further guidance to assist in the application of the regulation.
However, the Department specifically requests detailed comment on
how the proposed standards can be modified to provide greater certainty
and precision while still providing the flexibility necessary to
accommodate the other factors essential to carry out the Act. To allow
for this, the Department has extended the comment period to 90 days and
will provide for a public hearing process, described elsewhere in the
preamble, to receive public comments.
As is the case with other exemptions to civil rights statutes and
other exemptions under the Fair Housing Act (the Act), the exemption to
the Act's requirements provided by the ``housing for older persons''
exemption will be interpreted narrowly. A narrow construction of this
exemption is intended to give full force and effect to the protection
against familial status discrimination afforded by the Act.
The burden of demonstrating that the ``older persons'' exemption
applies rests on the party asserting the exemption. Part of that
party's burden in establishing qualification for the exemption requires
affirmatively demonstrating through credible and objective evidence
that the requirements for the exemption exist as of the date of an
alleged violation of the Act or at any time that the exemption is
asserted as a basis for allowing a practice that would otherwise be
prohibited as discriminatory on the basis of familial status.
The Department believes that the Fair Housing Act imposes a strict
burden upon a person claiming the exemption to provide credible and
objective evidence showing that the facilities and services offered by
the housing provider were designed, constructed or adapted to meet the
particularized needs of older persons. In order to be considered as
sufficient to qualify a housing facility for the exemption, the
evidence must show that the housing in question is clearly
distinguished from the bulk of other housing (except for other older
persons' housing) in a particular area, by the existence of those
facilities and services which set the housing facility apart as housing
intended for and operated as housing for older persons. Absent such
evidence, the familial status prohibitions of the Act will apply.
There is no indication in the Act or in its legislative history
that Congress intended that only the most expensive housing with the
most expansive and expensive facilities and services, should qualify
for the exemption. Housing in all affordable categories may offer the
types of facilities and services for older persons which make that
housing unique for the class of persons who can afford that housing.
This determination is made by contrasting the housing being offered as
housing for older persons to comparable housing not claiming the
exemption and evaluating the significance of the facilities and
services being offered to meet the requirements of the exemption (See
Sec. 100.306(c)(l); Comparable housing is of similar type, size and
cost of lease or purchase.)
Proposed Amendments
New Sec. 100.305--Specifically Designed Facilities and Services
New Sec. 100.305 proposes to set forth the criteria by which a
facility or service will be determined to be ``specifically designed to
meet the physical or social needs of older persons.''
New Sec. 100.306--Significant Facilities and Services.
New Sec. 100.306 proposes to set forth the criteria by which
facilities or services that meet the requirements of Sec. 100.305
(i.e., specifically designed facilities and services) will be
determined to be ``significant.'' The factors listed in new
Sec. 100.306 are intended to measure the relative importance of the
facilities and services so that their significance can be determined.
New Sec. 100.306 would approach the ``significance'' determination as
an aggregate one--that is, a determination with respect to all
facilities and services as a whole, rather than a determination with
respect to each facility and service individually.
New Sec. 100.310--Impracticability
Existing Sec. 100.304(b)(2), which would be redesignated as new
Sec. 100.310, would be revised by adding the following language as the
introductory text to the current provisions contained in paragraph
(b)(2):
The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity affirmatively demonstrates through credible and objective
evidence that the housing satisfies the requirements of Secs. 100.305,
100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing
satisfies the requirements of section 100.310 if * * *
New Sec. 100.315--80% Occupancy
Existing Secs. 100.304(c)(1), 100.304(d) and 100.304(e) would be
combined as new Sec. 100.315, and the following language would be added
to the new Sec. 100.315:
The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity affirmatively demonstrates through credible and objective
evidence that the housing satisfies the requirements of Secs. 100.305,
100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing
satisfies the requirements of this section 100.315 if * * *
New Sec. 100.316 --Intent To Provide Housing for Older Persons
Existing Sec. 100.304(c)(2), which would be redesignated as new
Sec. 100.316, would be revised by adding the following language as the
introductory text to new Sec. 100.316:
The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity affirmatively demonstrates through credible and objective
evidence that the housing satisfies the requirements of Secs. 100.305,
100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing
satisfies the requirements of section 100.316 if * * *
III. Appendix
HUD is also proposing to publish an Appendix to the proposed rule.
This Appendix is intended to provide members of the public with
detailed guidance interpreting the provisions of the Fair Housing Act
that pertain to the exemption for ``housing for older persons'' (55 or
over housing). The Department believes that supplementing the
regulatory language with interpretive guidance in the Appendix is the
best way to comply with the Congressional mandate to further define the
term ``significant facilities and services specifically designed to
meet the physical or social needs of older persons.''
The Department intends for the Appendix to serve as guidance for
housing providers and others in determining whether housing qualifies
for the ``housing for older persons'' exemption (55 or over housing).
The Appendix illustrates the application of the factors that the
Department will consider in making its determination. The Department
will refer to the interpretive guidance in the Appendix when
considering whether there is reasonable cause to believe that a
discriminatory practice has occurred or is about to occur. It should be
clearly understood, however, that the illustrative examples provided in
this Appendix are not dispositive of any actual case; i.e., a bare
claim by a housing provider that the operation of a particular housing
development duplicates the fact pattern of any example presented in
this Appendix will not preclude the Department from conducting an
investigation under the Fair Housing Act of an alleged discriminatory
housing practice directed against an aggrieved person with familial
status; nor will it preclude the Secretary from issuing a determination
based upon the evidence obtained through such an investigation.
The Department will apply the criteria for ``specifically
designed'' and ``significant'' facilities and services on a case-by-
case basis, and a determination will be based upon the totality of the
factual circumstances examined.
The Department may revise or supplement the Appendix from time to
time in order to incorporate additional guidance, fact patterns, and
relevant Administrative Law Judge (ALJ) and court decisions that
reflect future developments in administrative and case law. This will
be accomplished through the publication of formal notices in the
Federal Register.
IV. Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implements section 102(2)(C) of the National Environmental Policy
Act of 1969 (NEPA). This Finding of No Significant Impact is available
for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of the General Counsel,
Department of Housing and Urban Development Room 10276, 451 Seventh
Street, SW, Washington, DC 20410.
Executive Order 12866
This rule was reviewed by the Office of Management and Budget (OMB)
under Executive Order 12866 on Regulatory Planning and Review, issued
by the President on September 30, 1993. Any changes made in this rule
as a result of that review are clearly identified in the docket file,
which is available for public inspection in the office of the
Department's Rules Docket Clerk, Room 10276, 451 Seventh Street, SW,
Washington, DC.
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication and,
by approving it, certifies that the proposed rule will not have a
significant impact on a substantial number of small entities. The
proposed rule would implement section 919 of the Housing and Community
Development Act of 1992, which requires the Secretary of HUD to further
define the term ``significant facilities and services specifically
designed to meet the physical or social needs of older persons.'' The
Department anticipates that the proposed rule will have an impact on
some small housing providers. However, the number of small housing
providers affected is not considered to be so great as to constitute a
significant economic impact on a substantial number of small entities.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this proposed
rule would not have substantial, direct effects on States, on their
political subdivisions, or on their relationship with the Federal
government, or on the distribution of power and responsibilities among
the various levels of government. The Fair Housing Act, and section 919
of the Housing and Community Development Act of 1992 direct HUD to
provide further guidance on the meaning significant facilities and
services so that States, local governments, and housing providers will
have a better understanding of what housing is exempt from the Fair
Housing Act's prohibition against discrimination on the basis of
familial status.
Regulatory Agenda
This proposed rule was listed as sequence 1662 in the Department's
Semiannual Regulatory Agenda, published on April 25, 1994 (59 FR 20424,
20464) under Executive Order 12866 and the Regulatory Flexibility Act.
List of Subjects in 24 CFR Part 100
Aged, Fair housing, Individuals with disabilities, Mortgages,
Reporting and recordkeeping requirements.
Accordingly, 24 CFR part 100 would be amended as follows:
PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
1. The authority citation for part 100 would be revised to read as
follows:
Authority: 42 U.S.C. 3535(d) and 3600-3620.
2. In subpart E, Sec. 100.304 would be revised, new Secs. 100.305,
100.306, 100.310, 100.315 and 100.316 would be added, and an appendix
to subpart E would be added to read as follows:
Subpart E--Housing for Older Persons
Sec. 100.304 55 or over housing.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that, at the time of
an alleged violation of the Act or at any time that the exemption is
asserted as a basis for allowing a practice that would otherwise be
prohibited as discriminatory on the basis of familial status, the
housing satisfies the requirements of:
(1) Secs. 100.305, 100.306, 100.315 and 100.316; or
(2) Secs. 100.310, 100.315 and 100.316.
(b) With reference to complaints filed pursuant to the Act, this
means that the person or entity claiming the exemption must
affirmatively demonstrate through credible and objective evidence as of
the date of the alleged violation of the Act or at any time that the
exemption is asserted as a basis for allowing a practice that would
otherwise be prohibited as discriminatory on the basis of familial
status that the housing meets the requirements of paragraph (a) of this
section.
(c) For purposes of Secs. 100.305, 100.306, 100.310, 100.315 and
100.316 of this subpart, ``older persons'' means persons 55 years of
age or older. For purposes of Secs. 100.305 and 100.306, ``housing
provider'' means:
(1) The owner or manager of a housing facility; or
(2) The owner or manager of the common and public use areas of a
housing facility, where the dwelling units are individually owned.
Sec. 100.305 Specifically designed facilities and services.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity asserting the exemption affirmatively demonstrates through
credible and objective evidence that the housing has facilities and
services specifically designed to meet the physical or social needs of
older persons. In order to satisfy this paragraph, there must be more
than one facility and more than one service specifically designed to
meet the physical or social needs of older persons. Both facilities and
services specifically designed to meet the physical or social needs of
older persons must exist as of the date of an alleged violation of the
Act or at any time that the exemption is asserted as a basis for
allowing a practice that would otherwise be prohibited as
discriminatory on the basis of familial status.
(b)(1) In determining that a facility or service is ``specifically
designed to meet the physical or social needs of older persons,'' the
Department will first consider whether the facility or service is
readily accessible to and usable by older persons with mobility, visual
and hearing impairments.
(i) If the housing is a covered multifamily dwelling as defined in
24 CFR 100.201 constructed for first occupancy and use after March 13,
1991, in order for a facility to satisfy Sec. 100.305(b)(1) it must
meet the requirements of Sec. 100.205. In order for a service to
satisfy Sec. 100.305(b)(1), the Department will consider whether older
persons with mobility, visual and hearing impairments occupying units
can readily access and use the service and the extent to which the
service is designed to meet the mobility, visual and hearing
impairments of an aging population.
(ii) If the housing is not a covered multifamily dwelling as
defined in 24 CFR 100.201 constructed for first occupancy after March
13, 1991, in order for a facility or service to satisfy
Sec. 100.305(b)(1), the Department will consider whether older persons
with mobility, visual and hearing impairments occupying units can
readily access and use the facility or service, and the extent to which
the facility or service is designed to meet the mobility, visual and
hearing impairments of an aging population. However, if the facility
meets the Fair Housing Accessibility Guidelines for new construction
(24 CFR Ch. 1, Subch. A, App. II), the facility will satisfy the
requirements of this paragraph (b).
(2) If the requirements of paragraph (b)(1) of this section are
met, the Department will consider such factors as the following as
relevant in determining whether a facility or service is ``specifically
designed to meet the physical or social needs of older persons'':
(i) The extent to which the facility or service benefits the
current and future health, safety or leisure needs of an aging
population.
(ii) Whether a housing provider has published and adhered to
policies and procedures which demonstrate an intent by the housing
provider not only to comply with all requirements of law governing
discrimination against persons with disabilities, but, even in
circumstances not otherwise required by law, to make, at the housing
provider's expense, reasonable alterations, modifications and
accommodations to facilities and services to make them accessible to
persons with disabilities who become or who are residents. The policies
and procedures must ensure that as the needs of older persons currently
residing in the housing change and as new residents move into the
housing, the housing provider will respond to those changing needs. A
statement of these policies and procedures shall be provided to
residents and applicants for housing.
(iii) The extent to which the housing provider has taken meaningful
steps to make available an off-site facility or service which would
otherwise be unavailable to older persons who are residents of the
housing facility.
(iv) The extent to which a service, or services, specifically
designed to meet the physical or social needs of older persons is
provided in connection with the facility.
(3) The types of facilities and services provided in the section
202 ``Supportive Housing for the Elderly'' Program (see 24 CFR part
889) are the types of facilities and services that would meet the
physical or social needs of older persons in general. However, these do
not constitute the exclusive set of facilities and services that the
Department will consider in determining whether a facility or service
is ``specifically designed'' to meet the physical or social needs of
older persons.
Sec. 100.306 Significant facilities and services.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity asserting the exemption affirmatively demonstrates through
credible and objective evidence that the facilities and services
specifically designed to meet the physical or social needs of older
persons are ``significant''.
(b) In determining whether the facilities and services offered as
specifically designed to meet the physical or social needs of older
persons are significant, the Department will consider, in the
aggregate, all facilities and services that meet the requirements of
Sec. 100.305.
(c) The Department will evaluate each facility or service that
meets the requirements of Sec. 100.305 by the following criteria to
determine whether the facilities in the aggregate and the services in
the aggregate are ``significant'':
(1) The extent to which a facility or service offered by a housing
provider to residents is not customarily offered to residents of
comparable housing (other than housing for older persons) in the
relevant geographic area.
(2) The extent to which a facility or service can accommodate the
older population of the housing facility. The capacity of each facility
or service specifically designed to meet the physical or social needs
of older persons depends upon, but is not limited to, such factors as:
(i) The size of the facility or scope of the service offered;
(ii) The length of time during which the facility is made available
or the service is offered;
(iii) The frequency with which the facility is made available or
the service is offered; and
(iv) Whether the facility or service is offered only at one
location or there are a number of locations at which the facility is
made available or at which the service is offered.
(3) The extent to which the facility or service is of benefit to
older persons, given the climate and physical setting of the housing
facility.
(4) The extent to which a facility or service is actually used by
older persons who are residents.
(5) The extent to which the facility or service is provided by the
housing provider rather than by others.
(6) Whether a facility or service is not one that is required to be
provided by a law related to housing for the elderly or housing for
older persons.
Sec. 100.310 Impracticability.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity affirmatively demonstrates through credible and objective
evidence that the housing satisfies the requirements of Secs. 100.305,
100.306, 100.315 and 100.316 or Secs. 100.310, 100.315 and 100.316.
Housing satisfies the requirements of this section Sec. 100.310 if it
is not practicable to provide significant facilities and services
designed to meet the physical or social needs of older persons and the
housing facility is necessary to provide important housing
opportunities for older persons.
(b) In order to satisfy the requirements of Sec. 100.310 the owner
or manager must affirmatively demonstrate through credible and
objective evidence that the provision of significant facilities and
services designed to meet the physical or social needs of older persons
would result in depriving older persons in the relevant geographic area
of needed and desired housing. The following factors, among others, are
relevant in meeting the requirements of Sec. 100.310.
(1) Whether the owner or manager of the housing facility has
endeavored to provide significant facilities and services designed to
meet the physical or social needs of older persons either by the owner
or by some other entity. Demonstrating that such services and
facilities are expensive to provide is not alone sufficient to
demonstrate that the provision of such services is not practicable.
(2) The amount of rent charged, if the dwellings are rented, or the
price of the dwellings, if they are offered for sale.
(3) The income range of the residents of the housing facility.
(4) The demand for housing for older persons in the relevant
geographic area.
(5) The range of housing choices for older persons within the
relevant geographic area.
(6) The availability of other similarly priced housing for older
persons in the relevant geographic area. If similarly priced housing
for older persons with significant facilities and services is
reasonably available in the relevant geographic area then the housing
facility does not meet the requirements of Sec. 100.310 .
(7) The vacancy rate of the housing facility.
Sec. 100.315 80 percent occupancy.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity affirmatively demonstrates through credible and objective
evidence that housing satisfies the requirements of Secs. 100.305,
100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing
satisfies the requirements of Sec. 100.315 if at least 80 percent of
the units in the housing facility are occupied by at least one person
55 years of age or older per unit except that a newly constructed
housing facility for first occupancy after March 12, 1989 need not
comply with Sec. 100.315 until 25 percent of the units in the facility
are occupied.
(b) Housing satisfies the requirements of this section even though:
(1) On September 13, 1988, under 80 percent of the occupied units
in the housing facility are occupied by at least one person 55 years of
age or older per unit, provided that at least 80 percent of the units
that are occupied by new occupants after September 13, 1988 are
occupied by at least one person 55 years of age or older.
(2) There are unoccupied units, provided that at least 80 percent
of such units are reserved for occupancy by at least one person 55
years of age or over.
(3) There are units occupied by employees of the housing (and
family members residing in the same unit) who are under 55 years of age
provided they perform substantial duties directly related to the
management or maintenance of the housing.
(c) The application of this section may be illustrated by the
following examples:
Example 1: A. John and Mary apply for housing at the Valley
Heights apartment complex which is a 100 unit housing complex that
is operated for persons 55 years of age or older in accordance with
all the requirements of this section. John is 56 years of age. Mary
is 50 years of age. Eighty (80) units are occupied by at least one
person who is 55 years of age or older. Eighteen (18) units are
occupied exclusively by persons who are under 55. Among the units
occupied by new occupants after September 13, 1988 were 18 units
occupied exclusively by persons who are under 55. Two (2) units are
vacant. At the time John and Mary apply for housing, Valley Heights
qualifies for the ``55 or over'' exemption because 82% of the
occupied units (80/98) at Valley Heights are occupied by at least
one person 55 years old or older. If John and Mary are accepted for
occupancy, then 81 out of the 99 occupied units (82%) will be
occupied by at least one person who is 55 years of age or older and
Valley Heights will continue to qualify for the ``55 or over''
exemption.
B. If only 78 out of the 98 occupied units had been occupied by
at least one person 55 years of age or older, Valley Heights would
still qualify for the exemption, but could not rent to John or Mary
if they were both under 55 without losing the exemption.
Example 2: Green Meadow is a 1,000 unit retirement community
that provides significant facilities and services specifically
designed to meet the physical or social needs of older persons. On
September 13, 1988, Green Meadow published and thereafter adhered to
policies and procedures demonstrating an intent to provide housing
for persons 55 years of age or older. On September 13, 1988, 100
units were vacant and 300 units were occupied only by people who
were under 55 years old. Consequently, on September 13, 1988 67% of
the Green Meadow's occupied units (600 out of 900) were occupied by
at least one person 55 years of age or older. Under paragraph (b)(1)
of this section, Green Meadow qualifies for the ``55 or over''
exemption even though, on September 13, 1988, under 80% of the
occupied units in the housing facility were occupied by at least one
person 55 years of age or older per unit, provided that at least 80%
of the units that were occupied after September 13, 1988 are
occupied by at least one person 55 years of age or older. Under
paragraph (b) of this section, Green Meadow qualifies for the ``55
or over'' exemption, even though it has unoccupied units, provided
that at least 80% of its unoccupied units are reserved for occupancy
by at least one person 55 years of age or over.
Example 3: Waterfront Gardens is a 200 unit housing facility to
be constructed after March 12, 1989. The owner and manager of
Waterfront Gardens intends to operate the new facility in accordance
with the requirements of this section. Waterfront Gardens need not
comply with the requirement in paragraph (a) of this section that at
least 80% of the occupied units be occupied by at least one person
55 years of age or older per unit until 50 units (25%) are occupied.
When the 50th unit is occupied, then 80% of the 50 occupied units
(i.e., 40 units) must be occupied by at least one person who is 55
years of age or older for Waterfront Gardens to qualify for the ``55
or over'' exemption.
Sec. 100.316 Intent to provide housing for older persons.
(a) The provisions regarding familial status in this part shall not
apply to housing intended and operated for occupancy by at least one
person 55 years of age or older per unit, provided that the person or
entity affirmatively demonstrates through credible and objective
evidence that the housing satisfies the requirements of Secs. 100.305,
100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing
satisfies the requirements of Sec. 100.316 if the owner or manager of a
housing facility publishes and adheres to policies and procedures which
demonstrate an intent by the owner or manager to provide housing for
persons 55 years of age or older.
(b) The following factors, among others, are relevant in
determining whether the owner or manager of a housing facility has
complied with the requirements of Sec. 100.316:
(1) The manner in which the housing facility is described to
prospective residents.
(2) The nature of any advertising designed to attract prospective
residents.
(3) Age verification procedures.
(4) Lease provisions.
(5) Written rules and regulations.
(6) Actual practices of the owner or manager in enforcing relevant
lease provisions and relevant rules or regulations.
Appendix A to Subpart E--Guidance on Defining Significant Facilities
and Services
The guidance set out in this Appendix represents the
Department's interpretation of the principles and requirements of
the Fair Housing Act that require, in order for housing to qualify
as housing for persons 55 years of age or older, that there must
exist ``significant facilities and services specifically designed to
meet the physical or social needs of older persons.''
The Department intends for the Appendix to serve as a resource
document for housing providers and others in determining whether
housing qualifies for the ``housing for older persons'' exemption.
The Appendix illustrates the application of the factors that the
Department will consider in making its determination. The Department
will refer to the interpretive guidance in the Appendix when
considering whether there is reasonable cause to believe that a
discriminatory practice has occurred or is about to occur.
It should be clearly understood, however, that the examples
provided in this Appendix are illustrative and presented in summary
form. The examples are not intended to predetermine the Department's
disposition on any actual case since more detailed facts and
circumstances would have to be considered. Therefore, a claim from a
housing provider that the operation of a particular housing
development is an exact replica of one of the examples presented in
this Appendix will not preclude the Department from commencing an
investigation under the Fair Housing Act of an alleged
discriminatory housing practice directed against an aggrieved person
with familial status; nor will it preclude the Secretary from
issuing a determination based upon the evidence obtained through
such an investigation.
The Department may, from time-to-time, publish in the Federal
Register additional or revised interpretive guidance which will be
included in this Appendix.
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Dated: June 24, 1994.
Roberta Achtenberg,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 94-16139 Filed 7-6-94; 8:45 am]
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