The U.S. Department of Housing and Urban Development (HUD) has recently issued guidelines in an effort to protect victims of domestic violence, or similar crimes that involve the need for emergency services or police intervention.  Specifically, HUD reviewed local nuisance ordinances and the impact these ordinances may have on domestic violence victims.

At issue is how state and local governments have described “nuisance” or “disorderly behavior” to include situations in which “excessive” numbers of calls for emergency police or ambulance services are made. These phone calls for emergency services may be made by tenants, neighbors, or other third parties, whether or not they are directly related to the particular property. Of concern is that the ordinances are written and interpreted without regard to whether the resident is the victim or the perpetrator of the domestic violence. Even where ordinances expressly exclude victims of domestic violence or other crimes, victims are still frequently deemed to have committed nuisance conduct because police and other emergency service providers may not log the call as domestic violence, instead categorizing it incorrectly as property damage, disturbing the peace or some other type of nuisance conduct.

HUD has provided guidance on this issue because of HUD’s belief that those in protected classes are being subject to discrimination. HUD cites the fact that 80% of domestic violence victims are women, and in some communities, racial or ethnic minorities are disproportionately victimized by crime. 

The local ordinances described are not very different from nuisance provisions adopted by homeowners associations to avoid annoyances to neighbors. It is common to see rules prohibiting loud noises, screaming, disturbances, criminal conduct and disruption resulting in police responses. It is also not uncommon for landlords to be threatened with fines for failure to abate a nuisance of this nature, which generally requires the landlord to evict the tenants, which could of course include victims of domestic violence.

To combat this, HUD has determined that “a local government’s policies and practices to address nuisances, including enactment or enforcement of a nuisance or crime-free housing ordinance, violate the Fair Housing Act when they have an unjustified discriminatory effect, even when the local government had no intent to discriminate.” In other words, even if an ordinance is non-discriminatory as written, if applied in a discriminatory manner it is a violation of the Act.

In HUD's review, a three-step analysis is used to determine if an ordinance is discriminatory:

• A person alleging discrimination has the burden to prove that a local government’s enforcement of its nuisance ordinance has a discriminatory effect. In other words, in practice the result of the ordinance will predictably result in a disparate impact on a group of persons because of a protected characteristic.

• If step 1 is proven, then the burden shifts to the local government to prove that the challenged nuisance or crime-free housing ordinance is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the local government. The interest of the local government may not be hypothetical or speculative, meaning the local government must be able to prove with evidence what the government interest is, that its interest is legitimate, substantial and nondiscriminatory, and that the challenged practice is necessary to achieve that interest. Assertions based on generalizations or stereotypes about persons deemed to engage in nuisance or criminal conduct are not sufficient to prove that an ordinance or its enforcement is necessary to achieve the local government’s substantial, legitimate, nondiscriminatory interest.

• If step 2 is proven, then the burden shifts back to the plaintiff or HUD to prove that such interest could be served by another policy or practice that has a less discriminatory effect.

HUD’s guidelines are troubling in that it is not clear what exactly is permitted. It would seem that HUD is suggesting that a municipality, and in turn a homeowners association, may not deem acts of domestic violence to be a nuisance. This would suggest that neighbors have little recourse when faced with constant disruption by neighbors if one of the people causing the disruption could be perceived as a victim of domestic violence.