In Denver on Wednesday, a federal court ruled for the first time that refusing to rent a dwelling to someone because the prospective renter does not conform to gender stereotype norms (e.g., because a person dresses or acts in a way, or is attracted to, married to, and/or has children with someone, that does not conform with stereotype norms associated with that person’s biological gender) constitutes sex discrimination under the Fair Housing Act (“FHA”).

In 2015, Tonya and Rachel Smith (pictured left) were looking to move from their home in Erie, Colorado. The Smiths are a same-sex couple with two children, and Rachel is a transgender woman (meaning that Rachel is biologically a man but identifies as a woman). They found a rental property on Craigslist located in the Boulder County mountain town of Gold Hill. Tonya responded to the advertisement and emailed the owner. In her email, Tonya discussed her family, including mentioning that Rachel is transgender. The Smiths met with the owner that evening. In emails to Tonya after the Smiths visited the Gold Hill property, the owner stated that she would not rent to the Smiths because of concerns regarding their children, noise, and because their “uniqueness” and “unique relationship” would become the town focus and would jeopardize the owner’s “low profile” in the community.  The owner continued to attempt to rent the Gold Hill property.   The Smiths sued the owner, claiming, among other things, discrimination based on sex in violation of the FHA.

The FHA prohibits refusing to rent or to negotiate for the rental of a dwelling space on the basis of certain characteristics, including sex, as well as statements indicating such discrimination.  To this point, the Tenth Circuit has declined to extend FHA protections to discrimination based on a person’s sexual orientation or a person being transgender. But the Smiths did not bring their sex discrimination claim under these theories; instead, their claim was brought under the theory of sex stereotyping.  In their motion for summary judgment, the Smiths contended that discrimination against women for not conforming to gender stereotype norms concerning to or with whom a woman should be attracted, should marry, and/or should have children is sex discrimination in violation of the FHA. They also contended that discrimination against a transgender person because that person does not conform with the stereotypical norms ascribed to that person’s biological gender (e.g., how a biological male should dress or act) constitutes sex discrimination in violation of the FHA. The Smiths’ motion was unopposed.

Judge Raymond P. Moore of the U.S. District Court for the District of Colorado agreed with both contentions and granted the Smiths’ motion for summary judgment. The court was careful to state, however, that it had not ruled that discriminating against Rachel solely because she is transgender or against the Smiths solely because they’re a same-sex couple violated the FHA, as the Smiths’ sex discrimination claim did not include such allegations, and the Smiths’ motion for summary judgment was not based on those theories.

The case is Smith v. Avanti.

Many of the residents selected for the Beloved Community Village have had issues getting into Denver’s shelters—there are a few couples who want to live together, a transgender person, a person in a wheelchair, and Sandra Herman, who has pets. Credit: Westword
Many of the residents selected for the Beloved Community Village have had issues getting into Denver’s shelters—there are a few couples who want to live together, a transgender person, a person in a wheelchair, and Sandra Herman, who has pets. Credit: Westword

Earlier this week, Denver approved a temporary zoning permit for a tiny-house community for homeless people, the “Beloved Community Village.” The community will include eleven 8-foot by 12-foot shelters, as well as shared kitchen and bathroom facilities, constructed for about $130,000 on Urban Land Conservancy-owned property at 38th and Walnut Streets in the RiNo neighborhood. Continue Reading Local Governments Making Room for Tiny Homes

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This past Tuesday evening, Boulder City Council voted 8-1 to extend the city’s existing moratorium barring the city from considering property owner requests to exceed the city’s building height ordinance. One of my prior posts summarizes Boulder’s building height restriction regime and the existing moratorium. The existing moratorium was set to expire on April 19, 2017; Tuesday’s vote extended that date to July 19, 2018 while keeping the existing moratorium’s other terms. In short, this extension means that unless a development is located in an exempted area or is part of an exempted project, Boulder won’t see a building over 40 feet tall constructed any time soon.

 

 

Virtually all of Boulder County’s local governments have their own, individual plans to reverse the diminishing supply of affordable housing in their respective communities.  But these local governments are now weighing a new approach: collaborating and coordinating with one another in a way that, if successful, would supply more affordable housing to the county than the total that will be provided if each of them continues acting independently.

At the Boulder County Consortium of Cities meeting last Wednesday, a working group of local government housing and community services agencies presented a draft of the Boulder County Regional Affordable Housing Strategic Plan (the “Plan”). Currently, the county’s cities and towns have plans that would increase the county’s aggregate affordable housing inventory by 6,000 units by 2035.  By contrast, due to the efficiencies gained through regional cooperation, the Plan calls for an increase of 15,000 to 22,000 units in that same time.  The initial reaction from members of the consortium was positive, stating that the Plan’s regional approach has “traction.”

Local governments will spend the coming months reviewing the Plan in more detail and providing feedback before a proposed final version is presented to the consortium, which may occur in April.

A photograph of Lot E, the parcel that is the subject of the Murrs’ dispute. Source: eenews.net.

On Friday, the U.S. Supreme Court set oral argument for March 20, 2017 in the case of Murr v. Wisconsin, in which the Court is being asked to determine what constitutes the “relevant parcel” in determining whether a regulatory taking of private property has occurred.  The Court’s decision in Murr, expected this summer, may significantly affect private parties’ ability to bring takings claims when government actions render portions—as opposed to the entirety—of the parties’ property unusable or undevelopable.

Two parcels of property located along Lake St. Croix in Wisconsin are the subject of Murr.  The two waterfront parcels, each of which are just over an acre in area, were platted in 1959.  The Murr family purchased one of the parcels (Lot F), and subsequently purchased the other parcel (Lot E) in 1963.  The Murrs built a family cabin on Lot F, and Lot E has remained vacant ever since.  The Murrs held title to Lot F in their family business, while they held title to Lot E under their personal names.  In 1994, the family business conveyed Lot F to their six children, and in 1995, Lot E was also conveyed to the children.  Continue Reading U.S. Supreme Court Set to Hear Oral Argument in Takings Case