[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.
---------------------------------------------------------------------------

    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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BILLING CODE 4210-28-C
    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]
BILLING CODE 4210-28-P