Preserving Senior Housing vs. the Fair Housing Act

According to the Pew Research Center, since January 1, 2011 more than 10,000 Baby Boomers reach the age of 65 every single day.  According to various studies, the number of Americans over age 65 is expected to reach 71.5 million by 2030- twice their number in the year 2000.  Because of this trend, many local governments are beginning to think about how to plan for an aging population.

The City of Yucaipa, California recently ran into a tough legal question in its quest to plan for an aging population.  The City passed a zoning ordinance “prohibiting any mobile home park currently operating as senior housing from converting to all-age housing.”  In response to the ordinance, four mobile home park owners sued the City claiming that the law violated the Fair Housing Act and the Fair Housing Act Amendments of 1988 (collectively the “FHAA”).  The City argued that an exemption to the FHAA for senior housing enacted in the Housing for Older Persons Act of 1995 (“HOPA”) permitted the ordinance.

The City successfully defended the ordinance before the federal district court, but the mobile home park owners appealed the decision to the Ninth Circuit Court of Appeals.  The primary question before the Ninth Circuit was whether the senior exemption in the HOPA applied to situations where the City intended to protect senior housing or whether it applied only when the housing provider intended to provide senior housing.  The court concluded that the FHAA, as amended by HOPA, is silent on the issue, but that regulations issued by the Department of Housing and Urban Development permit the intent to be the City's intent and accordingly upheld the City ordinance.  In the court’s view, “as long as the decision to provide senior housing is intentional, whether that intent belongs to a city or a housing provider is irrelevant.”

The Court specifically stated, however, that its decision was limited to ordinances that applied to existing senior housing and that a different question may be presented if the ordinance required mobile home parks that did not already operate as senior housing to do so.

A copy of the Ninth Circuit’s opinion is available here http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/10-55563.pdf