In the last month, both the Supreme Court and the Federal Government have taken affirmative steps to combat housing discrimination, which may remove certain obstacles affordable housing developers have previously faced with local governments.  First, the Supreme Court held that the Fair Housing Act prohibits practices that have a discriminatory effect even if such discrimination was unintentional.  What this means is that if a local government’s action would more significantly impact a protected class than a non-protected class, such action may run afoul of the Fair Housing Act even if the local government was not intending to act in a discriminatory manner.  

In addition to the Supreme Court’s ruling, last week, the U.S. Department of Housing and Urban Development (“HUD”) released amended rules relating to local governments’ fair housing obligations.  These new rules enhance the fair housing planning obligations of local governments that receive HUD funding.  While local governments that receive HUD funding have always had the obligation to reduce barriers to fair or affordable housing, such obligation has never been enforced or regulated.  Under HUD’s new rules, however, local governments will have to affirmatively further fair housing goals and submit reports based upon their actions.  This means that if local governments do not affirmatively work with affordable housing developers to ensure that there is sufficient affordable housing in the community and that such housing is not in racially isolated areas of the community, they could lose their federal housing aid. 

These two events signal the Federal Government’s firm commitment to ensuring that there is sufficient decent affordable housing in all of our communities.