In a March 27, 2017 ruling Judge Richard Leon of the D.C. Circuit found a safe harbor in the Fair Housing Act that I haven’t seen referred to in any earlier published opinion. See, U.S. v. Mid-America Apt. Communities, Inc., 2017 WL 1154944 (D.D.C. Mar. 27, 2017). In the defense of FHA design / build cases the emphasis is usually on the statutory safe harbor in 42 U.S.C. §3604(f)(4), the ANSI A117.1 standard, or in one of the similar safe harbors recognized by HUD in 24 CFR §100.205(e). However, there is also safe harbor language in 42 U.S.C. §3604(f)(5), which provides that:
(5)(A) If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed to satisfy the requirements of that paragraph.
(B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met. More