24 Cfr Part 100 - Implementation Of The Housing For Older Persons Act Of 1995; Final Rule - U.s. Department Of Housing And Urban Development Page 3
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Federal Register / Vol. 64, No. 63 / Friday, April 2, 1999 / Rules and Regulations
phrases such as ‘‘adult living’’, ‘‘adult
generally supported the rule but felt that
homes. These private agreements and
community’’, or similar statements are
it should have done more to stabilize
local laws, for the most part, are left
inconsistent with the intent to establish
the conditions at senior housing
undisturbed by HUD’s interpretation of
housing for older persons. Such phrases
communities or which objected to
HOPA.
HUD has also taken into consideration
are not evidence that the facility or
isolated provisions. Several of the
the broader historical aspects of the
community intends to operate as
specific points raised will be addressed
senior housing issue. Until the advent of
housing for older persons and are
later in the preamble and have resulted
the familial status protection established
inconsistent with that intent. HUD, in
in changes and refinements to the
in the Fair Housing Amendments Act of
order to make an assessment of intent,
proposed regulation. As a general
1988, the senior housing industry was a
will consider all of the measures taken
response, some of the comments from
well-established, accepted component
by the facility or community to
each side are based upon premises with
of housing options for seniors. With no
demonstrate the intent required by the
which HUD does not agree. In addition,
federal law directly applicable, the
Act. Moreover, the housing facility or
Congress did not state that HOPA
industry developed in a variety of
community may not evict or terminate
should be retroactively applied.
configurations and circumstances. Age
leases of families with children in order
Therefore, a matter involving a claim of
restrictions in individual communities
to achieve occupancy of at least 80
alleged discrimination occurring before
started at various ages—age 40, age 45,
percent of the occupied units by at least
December 28, 1995 will be covered by
age 50 and so forth. Many communities
one person 55 years of age or older.
those laws and regulations in effect at
HUD also provides guidance to assist
defined themselves as ‘‘adult’’
the time of the claimed violation.
housing facilities and communities in
communities, but in operation served
Claims of alleged discrimination
applying the requirements of this rule.
seniors. Many senior communities
occurring after December 28, 1995, but
These examples are contained in an
served mature residents who are active,
before the effective date of this
appendix to this rule. The appendix will
participating members of their
regulation will be analyzed using HOPA
not be codified in title 24 of the CFR.
communities. State and local law, local
and its legislative history.
HUD may update or revise the appendix
Those who maintain that HUD’s
custom, and various provisions of
as necessary.
interpretation of the exemption should
covenants and restrictions affected how
be narrowed ignore the history of the
rules for occupancy were established or
C. Discussion of Public Comments on
senior housing exemption and HOPA.
changed, against whom those rules
the January 19, 1997 Proposed Rule
Congress made explicit findings that
could be enforced, the senior
The Housing for Older Persons Act
HOPA was necessary because of the
community’s interplay with state and
(HOPA) was a remedial amendment to
narrow construction afforded the senior
local land use and anti-discrimination
the Fair Housing Act overwhelmingly
housing exemption in the past. It would
statutes, and other practical day-to-day
passed by Congress in an attempt to
be contrary to the intent of the HOPA
issues of senior housing. Against the
clarify the Act’s senior housing
to abolish the ‘‘significant facilities and
backdrop of the nearly infinite number
exemption which Congress found was
services’’ requirement that hindered
of possible scenarios, HUD and courts
being effectively repealed by the judicial
senior housing only to construct new
attempted to enforce the 1988
and administrative interpretation which
impediments by strictly construing the
provisions of the exemptions. Congress
the exemption had received.
remaining requirements. At the same
has determined that those efforts did not
Senator Brown described the purpose
time, Congress provided no indication
achieve the desired results, and
of HOPA as ‘‘making the law clearer and
that it intended to change the usual
amended the Act. The rules that are
more workable for seniors * * * to
standards applicable in judicial
included here in final form have
protect seniors so that they can, if they
constructions of exemptions, and, thus,
attempted to the address the issue in the
wish to, move to housing where they are
HUD believes that, as with any
broadest possible terms to account for
protected in their safety and their
exemption to the Fair Housing Act, the
the large variety of senior communities
privacy.’’ (Congressional Record, S.
burden will be on the housing provider
while being sufficiently detailed to
18064). Senate Report #104–172
to prove that it meets the requirements
provide clear guidance on the
describes the purpose as a ‘‘return to the
set forth in this regulation in order to
requirements of the senior housing
original intent of the Fair Housing Act
qualify for the exemption.
exemption, without dictating results
exemption Congress created in 1988.
Others who believed that HUD should
which may be inconsistent with local
HOPA is designed to make it easier for
go further in specifying exactly what
practice or deny flexibility in a variety
a housing community of older persons
must be done by each facility and
of circumstances.
to determine whether they qualify for
community fail to take into full account
Opposition to the proposed rule came
the Fair Housing Act exemption’’. While
the limited nature of the exemption
largely from Fair Housing advocacy
House Report 104–91 states ‘‘legislation
provided under the law. The Fair
groups and some housing industry
is necessary to establish a workable and
Housing Act and its senior exemptions,
groups. The comments of the Northern
fair exemption to protect senior citizens
as amended by HOPA, do not provide
California Fair Housing Coalition
who wish to live in retirement
standards for the proper operation of a
(NCFHC), a coalition of 18 fair housing
community’’. In short, HOPA was
senior community; they are designed
groups, is a representative example of
passed in order to protect senior
only to advise communities and
the issues raised by these groups.
housing.
facilities what will not violate the
NCFHC urges that the rule be
HUD published a proposed rule for
familial status provisions of the Act.
withdrawn or significantly altered based
comment on January 14, 1997, at 62 FR
Most aspects of living in a senior
on a strict interpretation of the
2000, and received approximately 130
community are governed by private
exemption which HUD believes is
comments on the proposed rule. The
contractual agreements between senior
contrary to the clear Congressional
comments were evenly split between
housing developers and individuals
intent. Specifically, NCHFC considers
comments which expressed the belief
who purchased or rented the dwelling.
§ 100.305(e)(5), the so called ‘‘transition
that the regulation went too far in
Other aspects may be governed by state
provision,’’ to be without legal authority
allowing the creation or continuation of
or local ordinances, particularly
and bad public policy because, they
senior housing and those which
regarding mobile and manufactured
assert, it would allow communities with
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