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HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable dispute <br />resolution procedures, like mediation, as alternatives to litigation. <br />DATE: AUGUST 18, 1999 <br />Questions and Answers <br />on the Fair Housing Act and Zoning <br />Q. Does the Fair Housing Act pre-empt local zoning laws? <br />No. "Pre-emption" is a legal term meaning that one level of government has taken over a field and left no room for <br />government at any other level to pass laws or exercise authority in that area. The Fair Housing Act is not a land use <br />or zoning statute; it does not pre-empt local land use and zoning laws. This is an area where state law typically gives <br />local governments primary power. However, if that power is exercised in a specific instance in a way that is <br />inconsistent with a federal law such as the Fair Housing Act, the federal law will control. Long before the 1988 <br />amendments, the courts had held that the Fair Housing Act prohibited local governments from exercising their land <br />use and zoning powers in a discriminatory way. <br />Q. What is a group home within the meaning of the Fair Housing Act? <br />The term "group home" does not have a specific legal meaning. In this statement, the term "group home" refers to <br />housing occupied by groups of unrelated individuals with disabilities.° Sometimes, but not always, housing is <br />provided by organizations that also offer various services for individuals with disabilities living in the group homes. <br />Sometimes it is this group home operator, rather than the individuals who live in the home, that interacts with local, <br />government in seeking permits and making requests for reasonable accommodations on behalf of those individuals. <br />The term "group home" is also sometimes applied to any group of unrelated persons who live together in a dwelling -- <br />such as a group of students who voluntarily agree to share the rent on a house. The Act does not generally affect the <br />ability of local governments to regulate housing of this kind, as long as they do not discriminate against the residents <br />on the basis of race, color, national origin, religion, sex, handicap (disability) or familial status (families with minor <br />children). <br />Q. Who are persons with disabilities within the meaning of the Fair Housing Act? <br />The Fair Housing Act prohibits discrimination on the basis of handicap. "Handicap" has the same legal meaning as <br />the term "disability" which is used in other federal civil rights laws. Persons with disabilities (handicaps) are <br />individuals with mental or physical impairments which substantially limit one or more major life activities. The term <br />mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, <br />HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and <br />mental illness. The term major life activity may include seeing, hearing, walking, breathing, performing manual tasks, <br />caring for one's self, learning, speaking, or working. The Fair Housing Act also protects persons who have a record of <br />such an impairment, or are regarded as having such an impairment. <br />Current users of illegal controlled substances, persons convicted for illegal manufacture or distribution of a controlled <br />substance, sex offenders, and juvenile offenders, are not considered disabled under the Fair Housing Act, by virtue of <br />that status. <br />The Fair Housing Act affords no protections to individuals with or without disabilities who present a direct threat to the <br />• persons or property of others. Determining whether someone poses such a direct'threat must be made on an <br />individualized basis, however, and cannot be based on general assumptions or speculation about the nature of a <br />disability. <br />Q. What kinds of local zoning and land use laws relating to group homes violate the Fair Housing Act? <br />Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar <br />groups of unrelated persons without disabilities violate the Fair Housing Act. For example, suppose a city's zoning <br />73 <br />