Housing advocates say Lexington's 2013 ordinance regulating day shelters is discriminatory

bmusgrave@herald-leader.comMay 7, 2014 

Housing advocates and the American Civil Liberties Union are raising questions over a 2013 city ordinance regulating day shelters for the homeless that they claim is discriminatory against the poor and could run afoul of federal housing laws.

Bill Sharp, staff attorney for the ACLU of Kentucky, said that his organization is looking at the ordinance that was passed in October 2013. The ordinance requires a special permit for facilities operating during daylight hours if they serve people with "limited financial resources, including people who are homeless."

"We are taking a very close look at it," Sharp said, but declined to say whether the ACLU would sue the city. "It could apply to a lot more entities than they had initially intended."

The ordinance appears to single out a class of people based on financial resources, which "raises some concerns for the ACLU," Sharp said.

Art Crosby, executive director of the Lexington Fair Housing Council, a nonprofit that fights housing discrimination, said the ordinance creates different rules for different types of people.

"There is something wrong with zoning that allows a community center for the rich to move into an area without any questions, but you have to ask the city for approval before you can serve the poor at that location," Crosby said.

From a fair housing perspective, Crosby said, when "you look at things that segregate groups based on income, you tend to find that such laws have a disparate impact based on race, gender and families with children."

Federal fair housing laws prohibit discrimination in housing based on race, color, national origin, religion, sex, familial status and disability.

The ordinance does not apply to homeless shelters — where people sleep — only day shelters.

Susan Straub, a spokeswoman for the city, said the city couldn't comment on the concerns from housing advocates and the ACLU because of an ongoing U.S. Department of Housing and Urban Development investigation into possible fair housing act violations involving another homeless shelter in town.

"We are currently in the midst of an administrative proceeding related to this issue with U.S. Department of Housing and Urban Development so I cannot comment," Straub said.

The ordinance was tweaked after neighbors complained when the New Life Day Center opened in December 2011 at 224 North Martin Luther King Boulevard in the former Fraternal Order of Police Hall. Some neighbors were angry because the day shelter opened before they were notified.

It's one example of many fights between city officials and the homeless community about where services for the homeless can be located.

The new ordinance also would prohibit the Community Inn, a homeless shelter on Winchester Road, and the Catholic Action Center, a day shelter on Fifth Street, from moving to a new, larger location. The city and the Community Inn are currently in a legal fight over whether it can remain open at the Winchester Road location. A court case that would decide if Community Inn can remain at its current location is currently pending in Fayette Circuit Court.

Ginny Ramsey, co-founder of the Community Inn and Catholic Action Center, had proposed moving and consolidating the two operations to the former Lorillard Lofts off Leestown Road.

But the city balked at the idea after hearing complaints from neighborhoods along the Leestown Road corridor. The city gave Ramsey 71 locations that were currently appropriately zoned for a homeless shelter.

The city has so far turned down three possible locations, most recently a building on Spruce Street, Ramsey said. Lawyers with the city's planning department told Ramsey and Crosby that if the night shelter and day shelter were to be consolidated and moved to 105 Spruce Street, the former mayor's training center, Ramsey would have to apply for a conditional use permit because of the new day shelter ordinance.

But Ramsey and Crosby argued that because the night shelter was also going to be moved to the 105 Spruce Street location, the location was appropriately zoned for a night shelter and a conditional use permit was not needed.

Crosby and Ramsey say they are worried that the ordinance is so broadly worded it will make it difficult for any social service agency that serves the poor to move to a different location.

"In fact, we are not sure if we can operate in any location in Lexington," Crosby said. "So long as the shelter is serving the poor or the homeless, we will have to ask the city for special permission."

The disagreement over the Community Inn's location prompted the HUD federal fair housing investigation. That investigation had been put on hold to see whether the two sides could come to an agreement on a new location, Ramsey and Crosby said.

Ramsey said that she has notified HUD that the new ordinance has made it difficult to find a place for homeless services in Lexington and for the two sides to reach an agreement.

"It's the principle," Ramsey said. "At this point it appears that the city is not making an effort to make any sort of reasonable accommodation."

Jeremy Rosen, policy director at the National Law Center on Homelessness and Poverty, said other cities have tried to use zoning ordinances to restrict where homeless services can go. Some of those ordinances have been successfully challenged in court. But other ordinances have withstood legal challenges.

"I'm not sure what's to be gained from this approach," Rosen said of Lexington's ordinance. "Even if this is found to be legal, it doesn't make it good policy. It just suggests that they are trying to prevent homeless services from being established in the community. That has not proven to be a successful strategy."

Beth Musgrave: (859) 231-3205. Twitter: @HLCityhall.

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