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

Can Dollars and Cents Mitigate Development Impacts?

Elegant is not a word one generally associates with land use law. For instance, in attempting to mitigate the effects a given project has on neighbors and other stakeholders, many planning commissions have spent many a late (late) night attempting to divine whether a given project is “timely” or “reasonably compatible” with neighboring uses. Typically, conditions of approval are slathered on what was originally proposed and, more often than not, these conditions go a Texas-mile further than the applicant ever expected and not nearly far enough for those impacted by the development. Basically, everyone leaves unsatisfied. What if the subjective process of balancing these competing interests were jettisoned in favor of a simpler, bottom-line approach to mitigating the impacts of development? A recent article in the Economist newspaper asks this question. It is an interesting read and we would love to hear your thoughts on it. Could it be done, and if so, should it? Send us your thoughts in the "Contact Us" form in the bar to the left.

Changes in Local Budget Law Coming Your Way in January 2012

For most Oregon local governments it may seem early to be discussing annual budget development, but recently adopted House Bill (HB) 2425 makes several changes to ORS 294.305 to 294.565, most commonly known as Local Budget Law.  These changes affect, in part, budget development, supplemental budgetary changes, public notice provisions, and budget document requirements.  These changes take effect January 1, 2012. One of the notable changes in HB 2425 is the addition of a new circumstance triggering a supplemental budget action.  A reduction in available resources that requires the governing body to reduce appropriations in the original budget, or previously approved supplemental budget, now triggers a supplemental budget; previously only an increase in resources triggered a supplemental budget.  The appropriate supplemental budget process continues to be determined by whether a supplemental budget action will increase expenditures by less than or more than 10 percent.

Other changes to Local Budget Law include new requirements for detailed categories of estimated budget requirements.  For instance, ORS 294.352(5) now requires estimates for personnel services to show the total cost for each organizational unit or activity, and the total full-time equivalent (FTE) positions for each.  ORS 294.401(5) notice requirements for budget committee meetings is now allowed by two separate publications in a newspaper, or one publication in a newspaper in addition to posting the notice on the local government’s website.  Significant amendments were made to information required in the financial summary of the published budget document.  Briefly, amendments include additional detail about resources, additional information about expenditures and FTEs per program or organization unit, the addition of a narrative explaining budget changes from the previous year, and additional detail regarding taxes imposed by the local government.

HB 2425 amendments to Local Budget Law are extensive and local governments are advised to become familiar with such amendments sooner rather than later.  A copy of the bill can be obtained at If you have specific questions, you may always contact your local government attorneys here at BEH.