Agenda - Planning Commission - 11/03/2011

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September 10, 2011 1 Volume 5 No. 17 Zoning Bulletin Among other things, the FHA prohibits discrimination against any person in the sale or rental of a dwelling based on familial status (i.e., FHA prohibits discrimination in housing against families with children). Discrimination based on familial status is, however, permitted in housing developments that qualify as "housing for older persons" (42 U.S.C.A. % 3617). To qualify as "housing for older persons," "at least 80 percent of [the Park's] occupied units [had to be] occupied by at least one person 55 years of age or older." (24 C.F.R. 100.305). Additionally, to qualify for the senior exemption from the prohibition on discrimination based on familial status, the Park had to "comply" with certain requirements. Spe- cifically, the Park had to: publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older (24 C.F.R. 100.306); and identify methods for verification of occupancy required by the exemption from housing for older persons (24 C.F.R. 100.307). Through due diligence, Waterhouse apparently determined that Park rules were not in compliance with the FHA. The Park had no histori- cal records to provide verification that at least 80% of the Park's spaces were occupied by at least one person 55 years or age or older. The Park did not have procedures in place for routinely determining the occu- pancy of each unit. Waterhouse subsequently "endeavored to change the [P]ark rules so that the rules would be consistent with the [P]ark's exist- ing operation as an all -age park." Seeking to maintain housing for seniors, the City enacted a series of moratoria forbidding the conversion of the Park from what the City con- sidered a senior park to an all -age park. In March 2010, the City ad- opted a Senior Mobile Home Park Overlay Zone "to maintain senior residency status in areas that already maintain at least 80 percent senior residency." A City survey determined that the Park had 91% senior resi- dency. Accordingly, under the new ordinance, the Park had to "maintain senior residency status" of at least 80%. The Park sued the City. The Park argued that the City's ordinances violated the FHA. The City countered that the Park was always a senior park and that is ordinances merely protected seniors —consistent with the FHA —from Waterhouse's attempted conversion. Each party asked the court to find there were no material issues of fact in dispute and to issues summary judgment on the law alone in their favor. DECISION: Waterhouse's motion for partial summary judgment granted. The United States District Court, N.D. California, held that the City's ordinances violated the FHA. Although the Park had, prior to Water- house ownership, had rules stating that it was a seniors -only park, the 6 © 2011 Thomson Reuters