Housing for Older Persons; Defining Significant Facilities and Services; Proposed Amendments

SUMMARY: This proposed rule would implement the rulemaking required by

section 919 of the Housing and Community Development Act of 1992.

Section 919 requires the Secretary of HUD to issue ``rules defining

what are `significant facilities and services especially designed to

meet the physical or social needs of older persons' required under

section 807(b)(2) of the Fair Housing Act to meet the definition of the

term `housing for older persons' in such section.'' This rule would

amend existing regulations governing ``housing for older persons'', to

provide the definitions required by section 919.

DATES: Comments due date: October 5, 1994.

ADDRESSES: Interested persons are invited to submit comments on the

proposed rule to the Office of the General Counsel, Rules Docket Clerk,

room 10276, Department of Housing and Urban Development, 451 Seventh

Street SW., Washington, DC 20410-0500. Communications should refer to

the above docket number and title. A copy of each communication

submitted will be available for public inspection and copying during

regular business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Peter Kaplan, Office of Program

Training and Technical Assistance, Office of Fair Housing and Equal

Opportunity, room 5242, U.S. Department of Housing and Urban

Development, 451 Seventh Street, SW., Washington, DC 20410-0500,

telephone (202) 708-1145 (not a toll-free number). The toll-free TDD

number is: 1-800-877-8339.

Notice of Public Meeting

The customary 60-day public comment period will be extended to a

90-day public comment period to ensure broad public input into the

rulemaking process. Additionally, the Assistant Secretary for Fair

Housing and Equal Opportunity will schedule a public meeting to hear

from all those affected by this proposed rule.

Attendance will be open to the interested public, but necessarily

limited to the space available. Presentation of oral statements will be

welcomed. However, groups that wish to make an oral presentation at the

meeting must request an opportunity to do so in writing. Oral

presentations will also be limited to a prescribed time and to the

groups that submit written comments. Written comments may be submitted

at any time during the 90 day comment period following publication of

the proposed rule in the Federal Register.

Specific details as to the date, time and location of the meeting

will be provided by notification in the Federal Register within 20 days

from the date of this publication. The Notice of meeting will also

contain all procedures governing the conduct of the meeting.

For further information concerning the public meeting contact Peter

Kaplan, Director, Office of Program Training and Technical Assistance,

Department of Housing and Urban Development, 451 Seventh Street SW.,

Washington, DC 20410, telephone (202) 708-1145, not a toll free number.

SUPPLEMENTARY INFORMATION:

I. Background

The Fair Housing Act (Title VIII of the Civil Right Act of 1968, as

amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601-19)

exempts ``housing for older persons'' from the prohibitions against

discrimination because of familial status. The purpose of the

prohibition against discrimination on the basis of familial status and

the ``housing for older persons'' exemption is to protect families with

children from discrimination in housing without unfairly limiting

housing choices for elderly persons (see 134 Cong. Rec. S 19722 (Aug.

1, 1988) statement of Senator Karnes).

On January 23, 1989 (54 FR 3232), HUD published a final rule

implementing the Fair Housing Act. This rule included regulations

governing housing for older persons. The ``housing for older persons''

regulations implement, among other things, section 807(b)(2)(C) of the

Fair Housing Act, which exempts housing intended and operated for

occupancy by at least one person 55 years of age or older per unit that

satisfies certain criteria. These regulations are codified in 24 CFR

part 100, subpart E. In drafting the housing for older persons

regulations, HUD took into consideration the public comments that

addressed the issue of what constitutes ``significant facilities and

services specifically designed to meet the physical or social needs of

older persons.''

Congress mandated that, in determining whether housing qualifies as

housing for persons 55 years of age or older, the Secretary develop

regulations which require at least the following factors:

(1) The existence of significant facilities and services

specifically designed to meet the physical or social needs of older

persons, or if the provision of such facilities is not practicable,

that such housing is necessary to provide important housing

opportunities for older persons; and

(2) That at least 80 percent of the units are occupied by at least

one person 55 years of age or older per unit; and

(3) The publication of, and adherence to, policies and procedures

which demonstrate an intent by the owner or manager to provide housing

for persons 55 years of age or older.

II. Overview of Proposed Rule

Section 919 of the Housing and Community Development Act of 1992

(Pub. L. 102-550, approved October 28, 1992 (the 1992 Act)), requires

the Secretary of HUD to issue rules further defining what are

``significant facilities and services especially designed to meet the

physical or social needs of older persons'' required under section

807(b)(2) of the Fair Housing Act to meet the definition of the term

``housing for older persons.''1 This proposed rule would implement

the rulemaking required by section 919 of the 1992 Act. Specifically,

this proposed rule would revise the ``55 or over'' housing regulation,

codified at 24 CFR 100.304.

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\1\The language of section 919 contains the word ``especially'':

``* * * rules defining what are `significant facilities and services

expecially designed to meet the physical or social needs of older

persons' required under section 807(b)(2) of the Fair Housing Act to

meet the definition of the term `housing for older person' in such

section.'' (emphasis added) This proposed rule uses the word

``specifically'' rather than the word ``especially'' to comply with

congressional intent and reflect the actual language of section

807(b)(2) of the Fair Housing Act.

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This proposed rule would expound upon the significant facilities

and services requirements governing ``55 or over housing'' currently

set forth in Sec. 100.304(b)(1). A new Sec. 100.305 would be added and

would address the requirements for ``facilities and services

specifically designed to meet the physical or social needs of older

persons.'' A new Sec. 100.306 would be added and would address the

requirement that such facilities and services be ``significant.'' In

addition to adding these two new sections, the substance of existing

Sec. 100.304(b)(2) would be located in the new Sec. 100.310. Existing

subsections Secs. 100.304(c)(1) and 100.304(d) and 100.304(e) would

provide the substance of new Sec. 100.315, and existing

Sec. 100.304(c)(2) would be redesignated as new Sec. 100.316.

In developing this proposed regulation, the Department desires to

provide as much certainty as possible regarding the determination that

housing qualifies as housing for older persons. It has sought to

structure the regulation to allow both housing providers and protected

classes alike to ascertain with confidence whether a community

qualifies under the Fair Housing Act.

However, it is the Department's view that a single, precise,

mathematical-like standard that fully implements the Act is not

possible, nor may it be equitable.

As a result, the Department has concluded that a flexible standard

is necessary in order to reflect regional variations in services and

facilities that distinguish housing for older persons from other

similar housing, as well variations determined by the geography of the

site or by the differences in the nature or cost of the housing in

question. To do otherwise could unnecessarily restrict housing

opportunities for older persons by holding all housing to a single

arbitrary standard that was not intended by the framers of the Act.

Services common to older persons in one region of the country are

often not commonly provided or expected in another where weather, for

example, or terrain make them unnecessary or undesirable. Similarly,

facilities expected as the norm at large, single family older community

developments may not be expected at small, mobile home parks with

limited acreage, or at large, multi-story, multi-family condominium

complexes. And services or facilities common or needed in urban

communities near transportation may differ substantially from those

appropriate to rural locations.

In addition, the Department recognizes that housing for older

persons is not limited to the affluent. Therefore, the Department is

concerned lest a single standard that offers certainty would not be

sufficiently flexible to accommodate housing for low and moderate

income older persons.

In structuring the proposed rule which follows, the Department has

sought to identify as many as possible of the factors and

considerations which are germane to capture the differences required by

housing for older persons, thus making it possible for wide varieties

of communities to qualify who meet the statutory requirements of the

Act. In addition, through the publication of the appendix and the

illustrative examples it contains, the Department has sought to provide

further guidance to assist in the application of the regulation.

However, the Department specifically requests detailed comment on

how the proposed standards can be modified to provide greater certainty

and precision while still providing the flexibility necessary to

accommodate the other factors essential to carry out the Act. To allow

for this, the Department has extended the comment period to 90 days and

will provide for a public hearing process, described elsewhere in the

preamble, to receive public comments.

As is the case with other exemptions to civil rights statutes and

other exemptions under the Fair Housing Act (the Act), the exemption to

the Act's requirements provided by the ``housing for older persons''

exemption will be interpreted narrowly. A narrow construction of this

exemption is intended to give full force and effect to the protection

against familial status discrimination afforded by the Act.

The burden of demonstrating that the ``older persons'' exemption

applies rests on the party asserting the exemption. Part of that

party's burden in establishing qualification for the exemption requires

affirmatively demonstrating through credible and objective evidence

that the requirements for the exemption exist as of the date of an

alleged violation of the Act or at any time that the exemption is

asserted as a basis for allowing a practice that would otherwise be

prohibited as discriminatory on the basis of familial status.

The Department believes that the Fair Housing Act imposes a strict

burden upon a person claiming the exemption to provide credible and

objective evidence showing that the facilities and services offered by

the housing provider were designed, constructed or adapted to meet the

particularized needs of older persons. In order to be considered as

sufficient to qualify a housing facility for the exemption, the

evidence must show that the housing in question is clearly

distinguished from the bulk of other housing (except for other older

persons' housing) in a particular area, by the existence of those

facilities and services which set the housing facility apart as housing

intended for and operated as housing for older persons. Absent such

evidence, the familial status prohibitions of the Act will apply.

There is no indication in the Act or in its legislative history

that Congress intended that only the most expensive housing with the

most expansive and expensive facilities and services, should qualify

for the exemption. Housing in all affordable categories may offer the

types of facilities and services for older persons which make that

housing unique for the class of persons who can afford that housing.

This determination is made by contrasting the housing being offered as

housing for older persons to comparable housing not claiming the

exemption and evaluating the significance of the facilities and

services being offered to meet the requirements of the exemption (See

Sec. 100.306(c)(l); Comparable housing is of similar type, size and

cost of lease or purchase.)

Proposed Amendments

New Sec. 100.305--Specifically Designed Facilities and Services

New Sec. 100.305 proposes to set forth the criteria by which a

facility or service will be determined to be ``specifically designed to

meet the physical or social needs of older persons.''

New Sec. 100.306--Significant Facilities and Services.

New Sec. 100.306 proposes to set forth the criteria by which

facilities or services that meet the requirements of Sec. 100.305

(i.e., specifically designed facilities and services) will be

determined to be ``significant.'' The factors listed in new

Sec. 100.306 are intended to measure the relative importance of the

facilities and services so that their significance can be determined.

New Sec. 100.306 would approach the ``significance'' determination as

an aggregate one--that is, a determination with respect to all

facilities and services as a whole, rather than a determination with

respect to each facility and service individually.

New Sec. 100.310--Impracticability

Existing Sec. 100.304(b)(2), which would be redesignated as new

Sec. 100.310, would be revised by adding the following language as the

introductory text to the current provisions contained in paragraph

(b)(2):

The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity affirmatively demonstrates through credible and objective

evidence that the housing satisfies the requirements of Secs. 100.305,

100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing

satisfies the requirements of section 100.310 if * * *

New Sec. 100.315--80% Occupancy

Existing Secs. 100.304(c)(1), 100.304(d) and 100.304(e) would be

combined as new Sec. 100.315, and the following language would be added

to the new Sec. 100.315:

The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity affirmatively demonstrates through credible and objective

evidence that the housing satisfies the requirements of Secs. 100.305,

100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing

satisfies the requirements of this section 100.315 if * * *

New Sec. 100.316 --Intent To Provide Housing for Older Persons

Existing Sec. 100.304(c)(2), which would be redesignated as new

Sec. 100.316, would be revised by adding the following language as the

introductory text to new Sec. 100.316:

The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity affirmatively demonstrates through credible and objective

evidence that the housing satisfies the requirements of Secs. 100.305,

100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing

satisfies the requirements of section 100.316 if * * *

III. Appendix

HUD is also proposing to publish an Appendix to the proposed rule.

This Appendix is intended to provide members of the public with

detailed guidance interpreting the provisions of the Fair Housing Act

that pertain to the exemption for ``housing for older persons'' (55 or

over housing). The Department believes that supplementing the

regulatory language with interpretive guidance in the Appendix is the

best way to comply with the Congressional mandate to further define the

term ``significant facilities and services specifically designed to

meet the physical or social needs of older persons.''

The Department intends for the Appendix to serve as guidance for

housing providers and others in determining whether housing qualifies

for the ``housing for older persons'' exemption (55 or over housing).

The Appendix illustrates the application of the factors that the

Department will consider in making its determination. The Department

will refer to the interpretive guidance in the Appendix when

considering whether there is reasonable cause to believe that a

discriminatory practice has occurred or is about to occur. It should be

clearly understood, however, that the illustrative examples provided in

this Appendix are not dispositive of any actual case; i.e., a bare

claim by a housing provider that the operation of a particular housing

development duplicates the fact pattern of any example presented in

this Appendix will not preclude the Department from conducting an

investigation under the Fair Housing Act of an alleged discriminatory

housing practice directed against an aggrieved person with familial

status; nor will it preclude the Secretary from issuing a determination

based upon the evidence obtained through such an investigation.

The Department will apply the criteria for ``specifically

designed'' and ``significant'' facilities and services on a case-by-

case basis, and a determination will be based upon the totality of the

factual circumstances examined.

The Department may revise or supplement the Appendix from time to

time in order to incorporate additional guidance, fact patterns, and

relevant Administrative Law Judge (ALJ) and court decisions that

reflect future developments in administrative and case law. This will

be accomplished through the publication of formal notices in the

Federal Register.

IV. Other Matters

Environmental Impact

A Finding of No Significant Impact with respect to the environment

has been made in accordance with HUD regulations at 24 CFR part 50,

which implements section 102(2)(C) of the National Environmental Policy

Act of 1969 (NEPA). This Finding of No Significant Impact is available

for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the

Office of the Rules Docket Clerk, Office of the General Counsel,

Department of Housing and Urban Development Room 10276, 451 Seventh

Street, SW, Washington, DC 20410.

Executive Order 12866

This rule was reviewed by the Office of Management and Budget (OMB)

under Executive Order 12866 on Regulatory Planning and Review, issued

by the President on September 30, 1993. Any changes made in this rule

as a result of that review are clearly identified in the docket file,

which is available for public inspection in the office of the

Department's Rules Docket Clerk, Room 10276, 451 Seventh Street, SW,

Washington, DC.

Impact on Small Entities

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this proposed rule before publication and,

by approving it, certifies that the proposed rule will not have a

significant impact on a substantial number of small entities. The

proposed rule would implement section 919 of the Housing and Community

Development Act of 1992, which requires the Secretary of HUD to further

define the term ``significant facilities and services specifically

designed to meet the physical or social needs of older persons.'' The

Department anticipates that the proposed rule will have an impact on

some small housing providers. However, the number of small housing

providers affected is not considered to be so great as to constitute a

significant economic impact on a substantial number of small entities.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official under section 6(a)

of Executive Order 12612, Federalism, has determined that this proposed

rule would not have substantial, direct effects on States, on their

political subdivisions, or on their relationship with the Federal

government, or on the distribution of power and responsibilities among

the various levels of government. The Fair Housing Act, and section 919

of the Housing and Community Development Act of 1992 direct HUD to

provide further guidance on the meaning significant facilities and

services so that States, local governments, and housing providers will

have a better understanding of what housing is exempt from the Fair

Housing Act's prohibition against discrimination on the basis of

familial status.

Regulatory Agenda

This proposed rule was listed as sequence 1662 in the Department's

Semiannual Regulatory Agenda, published on April 25, 1994 (59 FR 20424,

20464) under Executive Order 12866 and the Regulatory Flexibility Act.

List of Subjects in 24 CFR Part 100

Aged, Fair housing, Individuals with disabilities, Mortgages,

Reporting and recordkeeping requirements.

Accordingly, 24 CFR part 100 would be amended as follows:

PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT

1. The authority citation for part 100 would be revised to read as

follows:

Authority: 42 U.S.C. 3535(d) and 3600-3620.

2. In subpart E, Sec. 100.304 would be revised, new Secs. 100.305,

100.306, 100.310, 100.315 and 100.316 would be added, and an appendix

to subpart E would be added to read as follows:

Subpart E--Housing for Older Persons

Sec. 100.304 55 or over housing.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that, at the time of

an alleged violation of the Act or at any time that the exemption is

asserted as a basis for allowing a practice that would otherwise be

prohibited as discriminatory on the basis of familial status, the

housing satisfies the requirements of:

(1) Secs. 100.305, 100.306, 100.315 and 100.316; or

(2) Secs. 100.310, 100.315 and 100.316.

(b) With reference to complaints filed pursuant to the Act, this

means that the person or entity claiming the exemption must

affirmatively demonstrate through credible and objective evidence as of

the date of the alleged violation of the Act or at any time that the

exemption is asserted as a basis for allowing a practice that would

otherwise be prohibited as discriminatory on the basis of familial

status that the housing meets the requirements of paragraph (a) of this

section.

(c) For purposes of Secs. 100.305, 100.306, 100.310, 100.315 and

100.316 of this subpart, ``older persons'' means persons 55 years of

age or older. For purposes of Secs. 100.305 and 100.306, ``housing

provider'' means:

(1) The owner or manager of a housing facility; or

(2) The owner or manager of the common and public use areas of a

housing facility, where the dwelling units are individually owned.

Sec. 100.305 Specifically designed facilities and services.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity asserting the exemption affirmatively demonstrates through

credible and objective evidence that the housing has facilities and

services specifically designed to meet the physical or social needs of

older persons. In order to satisfy this paragraph, there must be more

than one facility and more than one service specifically designed to

meet the physical or social needs of older persons. Both facilities and

services specifically designed to meet the physical or social needs of

older persons must exist as of the date of an alleged violation of the

Act or at any time that the exemption is asserted as a basis for

allowing a practice that would otherwise be prohibited as

discriminatory on the basis of familial status.

(b)(1) In determining that a facility or service is ``specifically

designed to meet the physical or social needs of older persons,'' the

Department will first consider whether the facility or service is

readily accessible to and usable by older persons with mobility, visual

and hearing impairments.

(i) If the housing is a covered multifamily dwelling as defined in

24 CFR 100.201 constructed for first occupancy and use after March 13,

1991, in order for a facility to satisfy Sec. 100.305(b)(1) it must

meet the requirements of Sec. 100.205. In order for a service to

satisfy Sec. 100.305(b)(1), the Department will consider whether older

persons with mobility, visual and hearing impairments occupying units

can readily access and use the service and the extent to which the

service is designed to meet the mobility, visual and hearing

impairments of an aging population.

(ii) If the housing is not a covered multifamily dwelling as

defined in 24 CFR 100.201 constructed for first occupancy after March

13, 1991, in order for a facility or service to satisfy

Sec. 100.305(b)(1), the Department will consider whether older persons

with mobility, visual and hearing impairments occupying units can

readily access and use the facility or service, and the extent to which

the facility or service is designed to meet the mobility, visual and

hearing impairments of an aging population. However, if the facility

meets the Fair Housing Accessibility Guidelines for new construction

(24 CFR Ch. 1, Subch. A, App. II), the facility will satisfy the

requirements of this paragraph (b).

(2) If the requirements of paragraph (b)(1) of this section are

met, the Department will consider such factors as the following as

relevant in determining whether a facility or service is ``specifically

designed to meet the physical or social needs of older persons'':

(i) The extent to which the facility or service benefits the

current and future health, safety or leisure needs of an aging

population.

(ii) Whether a housing provider has published and adhered to

policies and procedures which demonstrate an intent by the housing

provider not only to comply with all requirements of law governing

discrimination against persons with disabilities, but, even in

circumstances not otherwise required by law, to make, at the housing

provider's expense, reasonable alterations, modifications and

accommodations to facilities and services to make them accessible to

persons with disabilities who become or who are residents. The policies

and procedures must ensure that as the needs of older persons currently

residing in the housing change and as new residents move into the

housing, the housing provider will respond to those changing needs. A

statement of these policies and procedures shall be provided to

residents and applicants for housing.

(iii) The extent to which the housing provider has taken meaningful

steps to make available an off-site facility or service which would

otherwise be unavailable to older persons who are residents of the

housing facility.

(iv) The extent to which a service, or services, specifically

designed to meet the physical or social needs of older persons is

provided in connection with the facility.

(3) The types of facilities and services provided in the section

202 ``Supportive Housing for the Elderly'' Program (see 24 CFR part

889) are the types of facilities and services that would meet the

physical or social needs of older persons in general. However, these do

not constitute the exclusive set of facilities and services that the

Department will consider in determining whether a facility or service

is ``specifically designed'' to meet the physical or social needs of

older persons.

Sec. 100.306 Significant facilities and services.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity asserting the exemption affirmatively demonstrates through

credible and objective evidence that the facilities and services

specifically designed to meet the physical or social needs of older

persons are ``significant''.

(b) In determining whether the facilities and services offered as

specifically designed to meet the physical or social needs of older

persons are significant, the Department will consider, in the

aggregate, all facilities and services that meet the requirements of

Sec. 100.305.

(c) The Department will evaluate each facility or service that

meets the requirements of Sec. 100.305 by the following criteria to

determine whether the facilities in the aggregate and the services in

the aggregate are ``significant'':

(1) The extent to which a facility or service offered by a housing

provider to residents is not customarily offered to residents of

comparable housing (other than housing for older persons) in the

relevant geographic area.

(2) The extent to which a facility or service can accommodate the

older population of the housing facility. The capacity of each facility

or service specifically designed to meet the physical or social needs

of older persons depends upon, but is not limited to, such factors as:

(i) The size of the facility or scope of the service offered;

(ii) The length of time during which the facility is made available

or the service is offered;

(iii) The frequency with which the facility is made available or

the service is offered; and

(iv) Whether the facility or service is offered only at one

location or there are a number of locations at which the facility is

made available or at which the service is offered.

(3) The extent to which the facility or service is of benefit to

older persons, given the climate and physical setting of the housing

facility.

(4) The extent to which a facility or service is actually used by

older persons who are residents.

(5) The extent to which the facility or service is provided by the

housing provider rather than by others.

(6) Whether a facility or service is not one that is required to be

provided by a law related to housing for the elderly or housing for

older persons.

Sec. 100.310 Impracticability.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity affirmatively demonstrates through credible and objective

evidence that the housing satisfies the requirements of Secs. 100.305,

100.306, 100.315 and 100.316 or Secs. 100.310, 100.315 and 100.316.

Housing satisfies the requirements of this section Sec. 100.310 if it

is not practicable to provide significant facilities and services

designed to meet the physical or social needs of older persons and the

housing facility is necessary to provide important housing

opportunities for older persons.

(b) In order to satisfy the requirements of Sec. 100.310 the owner

or manager must affirmatively demonstrate through credible and

objective evidence that the provision of significant facilities and

services designed to meet the physical or social needs of older persons

would result in depriving older persons in the relevant geographic area

of needed and desired housing. The following factors, among others, are

relevant in meeting the requirements of Sec. 100.310.

(1) Whether the owner or manager of the housing facility has

endeavored to provide significant facilities and services designed to

meet the physical or social needs of older persons either by the owner

or by some other entity. Demonstrating that such services and

facilities are expensive to provide is not alone sufficient to

demonstrate that the provision of such services is not practicable.

(2) The amount of rent charged, if the dwellings are rented, or the

price of the dwellings, if they are offered for sale.

(3) The income range of the residents of the housing facility.

(4) The demand for housing for older persons in the relevant

geographic area.

(5) The range of housing choices for older persons within the

relevant geographic area.

(6) The availability of other similarly priced housing for older

persons in the relevant geographic area. If similarly priced housing

for older persons with significant facilities and services is

reasonably available in the relevant geographic area then the housing

facility does not meet the requirements of Sec. 100.310 .

(7) The vacancy rate of the housing facility.

Sec. 100.315 80 percent occupancy.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity affirmatively demonstrates through credible and objective

evidence that housing satisfies the requirements of Secs. 100.305,

100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing

satisfies the requirements of Sec. 100.315 if at least 80 percent of

the units in the housing facility are occupied by at least one person

55 years of age or older per unit except that a newly constructed

housing facility for first occupancy after March 12, 1989 need not

comply with Sec. 100.315 until 25 percent of the units in the facility

are occupied.

(b) Housing satisfies the requirements of this section even though:

(1) On September 13, 1988, under 80 percent of the occupied units

in the housing facility are occupied by at least one person 55 years of

age or older per unit, provided that at least 80 percent of the units

that are occupied by new occupants after September 13, 1988 are

occupied by at least one person 55 years of age or older.

(2) There are unoccupied units, provided that at least 80 percent

of such units are reserved for occupancy by at least one person 55

years of age or over.

(3) There are units occupied by employees of the housing (and

family members residing in the same unit) who are under 55 years of age

provided they perform substantial duties directly related to the

management or maintenance of the housing.

(c) The application of this section may be illustrated by the

following examples:

Example 1: A. John and Mary apply for housing at the Valley

Heights apartment complex which is a 100 unit housing complex that

is operated for persons 55 years of age or older in accordance with

all the requirements of this section. John is 56 years of age. Mary

is 50 years of age. Eighty (80) units are occupied by at least one

person who is 55 years of age or older. Eighteen (18) units are

occupied exclusively by persons who are under 55. Among the units

occupied by new occupants after September 13, 1988 were 18 units

occupied exclusively by persons who are under 55. Two (2) units are

vacant. At the time John and Mary apply for housing, Valley Heights

qualifies for the ``55 or over'' exemption because 82% of the

occupied units (80/98) at Valley Heights are occupied by at least

one person 55 years old or older. If John and Mary are accepted for

occupancy, then 81 out of the 99 occupied units (82%) will be

occupied by at least one person who is 55 years of age or older and

Valley Heights will continue to qualify for the ``55 or over''

exemption.

B. If only 78 out of the 98 occupied units had been occupied by

at least one person 55 years of age or older, Valley Heights would

still qualify for the exemption, but could not rent to John or Mary

if they were both under 55 without losing the exemption.

Example 2: Green Meadow is a 1,000 unit retirement community

that provides significant facilities and services specifically

designed to meet the physical or social needs of older persons. On

September 13, 1988, Green Meadow published and thereafter adhered to

policies and procedures demonstrating an intent to provide housing

for persons 55 years of age or older. On September 13, 1988, 100

units were vacant and 300 units were occupied only by people who

were under 55 years old. Consequently, on September 13, 1988 67% of

the Green Meadow's occupied units (600 out of 900) were occupied by

at least one person 55 years of age or older. Under paragraph (b)(1)

of this section, Green Meadow qualifies for the ``55 or over''

exemption even though, on September 13, 1988, under 80% of the

occupied units in the housing facility were occupied by at least one

person 55 years of age or older per unit, provided that at least 80%

of the units that were occupied after September 13, 1988 are

occupied by at least one person 55 years of age or older. Under

paragraph (b) of this section, Green Meadow qualifies for the ``55

or over'' exemption, even though it has unoccupied units, provided

that at least 80% of its unoccupied units are reserved for occupancy

by at least one person 55 years of age or over.

Example 3: Waterfront Gardens is a 200 unit housing facility to

be constructed after March 12, 1989. The owner and manager of

Waterfront Gardens intends to operate the new facility in accordance

with the requirements of this section. Waterfront Gardens need not

comply with the requirement in paragraph (a) of this section that at

least 80% of the occupied units be occupied by at least one person

55 years of age or older per unit until 50 units (25%) are occupied.

When the 50th unit is occupied, then 80% of the 50 occupied units

(i.e., 40 units) must be occupied by at least one person who is 55

years of age or older for Waterfront Gardens to qualify for the ``55

or over'' exemption.

Sec. 100.316 Intent to provide housing for older persons.

(a) The provisions regarding familial status in this part shall not

apply to housing intended and operated for occupancy by at least one

person 55 years of age or older per unit, provided that the person or

entity affirmatively demonstrates through credible and objective

evidence that the housing satisfies the requirements of Secs. 100.305,

100.306, 100.315 and 100.316 or 100.310, 100.315 and 100.316. Housing

satisfies the requirements of Sec. 100.316 if the owner or manager of a

housing facility publishes and adheres to policies and procedures which

demonstrate an intent by the owner or manager to provide housing for

persons 55 years of age or older.

(b) The following factors, among others, are relevant in

determining whether the owner or manager of a housing facility has

complied with the requirements of Sec. 100.316:

(1) The manner in which the housing facility is described to

prospective residents.

(2) The nature of any advertising designed to attract prospective

residents.

(3) Age verification procedures.

(4) Lease provisions.

(5) Written rules and regulations.

(6) Actual practices of the owner or manager in enforcing relevant

lease provisions and relevant rules or regulations.

Appendix A to Subpart E--Guidance on Defining Significant Facilities

and Services

The guidance set out in this Appendix represents the

Department's interpretation of the principles and requirements of

the Fair Housing Act that require, in order for housing to qualify

as housing for persons 55 years of age or older, that there must

exist ``significant facilities and services specifically designed to

meet the physical or social needs of older persons.''

The Department intends for the Appendix to serve as a resource

document for housing providers and others in determining whether

housing qualifies for the ``housing for older persons'' exemption.

The Appendix illustrates the application of the factors that the

Department will consider in making its determination. The Department

will refer to the interpretive guidance in the Appendix when

considering whether there is reasonable cause to believe that a

discriminatory practice has occurred or is about to occur.

It should be clearly understood, however, that the examples

provided in this Appendix are illustrative and presented in summary

form. The examples are not intended to predetermine the Department's

disposition on any actual case since more detailed facts and

circumstances would have to be considered. Therefore, a claim from a

housing provider that the operation of a particular housing

development is an exact replica of one of the examples presented in

this Appendix will not preclude the Department from commencing an

investigation under the Fair Housing Act of an alleged

discriminatory housing practice directed against an aggrieved person

with familial status; nor will it preclude the Secretary from

issuing a determination based upon the evidence obtained through

such an investigation.

The Department may, from time-to-time, publish in the Federal

Register additional or revised interpretive guidance which will be

included in this Appendix.

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Dated: June 24, 1994.

Roberta Achtenberg,

Assistant Secretary for Fair Housing and Equal Opportunity.

[FR Doc. 94-16139 Filed 7-6-94; 8:45 am]

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