Charleston Apartment Association
Legislative Pulse
The CAA Legislative Pulse is a monthly newsletter designed to keep Charleston Apartment Association members abreast of topical political news impacting our industry. The CAA Legislative Pulse will be released to members the fourth Tuesday of each month.
NAA/NMHC JOINT LEGISLATIVE PROGRAM NEWS
Congress Passes Long-Term National Flood Insurance Program (NFIP) Extension
Before
leaving for the July 4 recess, both the House and Senate agreed to a
transportation bill (H.R. 4348) conference report that, among other
things, reauthorizes the NFIP for five years. The NFIP has operated on a
series of short-term extensions since 2008. As the primary source of
insurance coverage for flood damage, more than five million
policyholders, including multifamily property owners and managers, rely
on the NFIP for coverage.
The
legislation includes reforms to put the program, which faces program
debt of $18 billion, back on a path to financial solvency. Those reforms
include phasing in new actuarial rates for certain properties, such as
second and vacation homes, commercial properties, homes sold to new
owners and repetitive loss properties, over the next five years. It also
raises the caps on annual premium increases from 10 percent to 20
percent and imposes minimum deductibles for flood claims. The
legislation also raises limits available to multifamily properties to
$500,000, placing them on par with commercial properties, and creates a
technical advisory council to assist with map modernization. President
Obama is expected to sign this legislation into law immediately.
NAA/NMHC Support Bill to Prevent Excessive Litigation Over Alleged Americans with Disabilities Act (ADA) Violations
The
U.S. House of Representatives' Committee of the Judiciary's
Subcommittee on the Constitution held a hearing on June 27 to discuss
H.R. 3356, the ADA Compliance for Customer Entry to Stores and Services
(ACCESS) Act. The bill aims to address the numerous lawsuits filed by
professional litigants whose primary goal is to extract settlement money
from business owners found in noncompliance with the ADA. H.R. 3356
intends to reduce the number of abusive lawsuits and promote compliance
with the ADA by providing business owners and operators an opportunity
to fix alleged violations before a civil suit can be filed. While the
ADA applies only to public accommodations, apartment owners can be the
target of these "drive-by lawsuits" for alleged violations in areas open
to the public, such as building entrances, parking lots or leasing
offices.
NAA/NMHC
submitted a letter to the subcommittee supporting the bill, which would
prohibit civil action for failure to remove a structural barrier to
entry into an area of public accommodation unless: (1) the aggrieved
person has notified the owner/operator with a written notice specific
enough to identify the barrier; (2) the owner/operator neglected to
respond to the written notice within 60 days; or (3) the owner/operator
failed to remove barriers to entry within 120 days. A similar bill
(H.R. 881) was proposed by Rep. Duncan Hunter (R-Calif.). It is
uncertain at this time if these bills will advance during the 112th
Congress. NAA/NMHC continue to monitor these bills and other related
legislative efforts.
New Petition Asks Supreme Court to Weigh In on Disparate Impact Under Fair Housing Act
On
June 11, the Township of Mount Holly, N.J., filed a petition for
certiorari with the Supreme Court asking the court to review an earlier
decision to determine whether disparate impact claims are cognizable
under the Fair Housing Act and, if so, under which test or standard.
Disparate impact claims maintain that even if an action is not intended
to discriminate, it can still be considered discriminatory if its effect
has an "adverse impact" on members of a protected class.
In
Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., the
township of Mount Holly created a plan for redeveloping a blighted
neighborhood occupied mostly by low- and moderate-income minority
households. Residents filed suit against the township, arguing that the
redevelopment lacked affordable housing and, therefore, had a disparate
impact on minorities and violated the Fair Housing Act.
This
case closely mirrors a disparate impact case that the Supreme Court was
scheduled to hear earlier this year (Magner v. Gallagher). However, in
that earlier case, the city of St. Paul, Minn., withdrew its petition,
stating its concern for the potential unintended consequences of a
decision in its favor.
On
a similar note, last November, HUD published a proposed rule to
establish uniform standards for determining when an act can be
considered discriminatory based on a disproportionate negative impact on
a protected class under the Fair Housing Act. NAA/NMHC submitted
comments urging HUD to delay action on the proposed rule until after the
Supreme Court ruled in Magner v. Gallagher. It is unclear when HUD will
finalize this rule in light of the recent court activity.
NAA/NMHC
will support the township of Mount Holly by filing an amicus brief with
the court; industry practices, such as resident screening, recently
have been the subject of legal challenges alleging disparate impact on
protected classes.
House Transportation Bill Affects Project-Based Rental Assistance Program Funding, Includes Other Housing-Related Provisions
On
June 29, the House approved the FY 2013 Transportation, Housing and
Urban Development and Related Agencies (THUD) appropriations bill (H.R.
5972). The legislation calls for partial funding of the Section 8
Project-Based Rental Assistance (PBRA) program; the $8.7 billion
allocated to the program is significantly below the level necessary to
fully fund the contracts currently in place. NAA/NMHC signed an industry
coalition letter on June 18 to oppose the partial funding. NAA/NMHC
continue to support the funding levels in the Senate bill (S. 2322)
approved in April, which fully funds the PBRA program.
In
related news, Section 8 tenant-based vouchers were funded at slightly
more than the FY 2012 enacted level, but the allocation was lower than
the amount approved by the Senate.
The
House transportation bill also drew an amendment offered by Rep. Scott
Garrett (R-N.J.) that would eliminate funding for the Department of
Housing and Urban Development (HUD) to establish disparate impact
standards under the Fair Housing Act. The NAA/NMHC-supported amendment
comes at a time when disparate impact is back in the news, as the
Supreme Court considers whether to review an earlier ruling on the
issue.
While
both the House and Senate have approved the THUD appropriation, the
issues contained in these proposals will either get worked out in
conference or, more likely, will be combined with other funding measures
later this year.
NAA NEWS
Bush Tax Cuts and Tax Extenders Are the Apartment Industry's Hot-Button Issues When Congress Is in Recess Next Month
Congress
needs to know that you support the renewal of the Bush-era tax cuts and
other current law tax policies that impact the industry. Your
opportunity to tell members of Congress is when they are in recess from
August 4 to September 9.
While
action on tax reform is unlikely this year, Congress is looking at
major tax provisions affecting the industry that either will expire at
the end of 2012 or that sunset at the end of 2011. In addition to the
Bush tax cuts affecting rates on ordinary and capital income, the estate
tax is set to sunset this year. Other key issues include the tax
extenders that provide the industry with numerous incentives (such as to
construct energy efficient property) which expired in 2011. The
apartment industry must start advocating now to ensure that the tax code
includes these tax breaks in 2013.
Please
don't delay in setting up your appointments. All the resources you need
for your meetings are available in the Congressional Recess Toolkit
available here.
You can also take advantage of the House's recess this month again from July 27 - 30.
Please let Carole Roper know if you plan to schedule meetings. She can be reached at Carole@naahq.org or 703/797-0616.
Your
engagement with your members of Congress is critical to the industry's
advocacy efforts and the future of your business. Please do all you can
to stand up for our industry!
*Content source: National Apartment Association.
