Appeal from the United States District Court for the Western District of Washington D.C. No. 3:09-cv-05409-BHS Benjamin H. Settle, District Judge, Presiding
The opinion of the court was delivered by: Opinion by Judge Fisher
Argued and Submitted January 14, 2011-Seattle, Washington
Before: Susan P. Graber and Raymond C. Fisher, Circuit Judges, and Consuelo B. Marshall, District Judge.*fn1
Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey and Jennifer Levin Eichhorn, Attorneys, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for amicus curiae Secretary of the U.S. Department of Housing and Urban Development.
We hold that a residential community that has continuously operated as a retirement community for persons age 55 or older can qualify for the housing for older persons exemption from the Fair Housing Act's prohibition on familial status discrimination by establishing that it currently satisfies the exemption's three statutory and regulatory criteria at the time of the alleged violation, even if the community enforced age restrictions when it first achieved compliance with the exemption's age verification requirement.
In 1988, Congress amended the Fair Housing Act (FHA) and prohibited housing discrimination on account of familial status. See Fair Housing Amendments Act of 1988 (FHAA), Pub. L. No. 100-430, 102 Stat 1619. As amended by the FHAA, the FHA broadly prohibits discrimination against families with children in connection with the sale and rental of housing. See 42 U.S.C. §§ 3604(a)-(e), 3605, 3606, 3617, 3631.*fn2
At the same time, Congress recognized the effect these prohibitions would have on retirement communities and created exemptions in the FHA for qualified "housing for older persons." Id. § 3607(b). The housing for older persons exemptions permit communities satisfying certain requirements to discriminate on the basis of familial status. See id. The exemptions apply to three types of housing, including, as relevant here, housing for persons 55 years of age or older. See id. § 3607(b)(2)(C).*fn3
The familial status provisions of the FHA, including the housing for older persons exemptions, became effective in March 1989. See id. § 3601 note (quoting FHAA § 13(a)). In January 1989, the Department of Housing and Urban Development (HUD) issued final regulations implementing the exemptions. See Implementation of the Fair Housing Amendments Act of 1988, 54 Fed. Reg. 3232, 3290-3291 (Jan. 23, 1989); see also 24 C.F.R. §§ 100.10(b), 100.300-100.304 (1991). A few years later, in 1995, Congress passed the Housing for Older Persons Act (HOPA), Pub. L. No. 104-76, § 2, 109 Stat. 787, which revised the 55 or older exemption.
Under the FHA, as amended by the FHAA and HOPA, housing qualifies for the 55 or older exemption ("the HOPA exemption") when it is "intended and operated for occupancy by persons 55 years of age or older" and three requirements are satisfied:
(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;
(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and
(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall -
(I) provide for verification by reliable surveys and affidavits; and
(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.
42 U.S.C. § 3607(b)(2)(C).*fn4 It is the third of these criteria - the requirement that the community verify occupancy "by reliable surveys and affidavits" - that is at issue here. In 1999, HUD published final regulations implementing HOPA.
See Implementation of the Housing for Older Persons Act of 1995, 64 Fed. Reg. 16,324, 16,329-16,332 (Apr. 2, 1999); 24 C.F.R. §§ 100.304-100.308. HUD adopted a regulation, 24 C.F.R. § 100.307, specifying the actions a community must take to satisfy the verification requirement mandated by 42 U.S.C. § 3607(b)(2)(C)(iii). Section 100.307 states:
(a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with § 100.305 [i.e., at least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older] through reliable surveys and affidavits.
(b) A facility or community shall, within 180 days of the effective date of this rule, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.
(c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years. A survey may include information regarding whether any units are occupied by persons described in paragraphs (e)(1), (e)(3), and
(d) Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community: