Tag Archives: AFFH

Landmark Discrimination Case: Fair Housing Act Thwarts NIMBYs

May 2, 2016affirmatively furthering fair housing, fair housing, Uncategorized, zoningAFFH, affirmatively furthering fair housing, inclusionary zoning, inclusive communities, integration, NIMBYTed Wimpey

I am sharing here in full an article about a U.S. Ninth Circuit Court of Appeals decision with significant fair housing and Affirmatively Furthering Fair Housing import for planning, zoning and permitting of residential housing development that was published April 28, 2016 in the legal issue blog site, “Manatt.” Especially check out the three basic “Practice Pointers” at the end of the article for the main take away.

— https://www.manatt.com/real-estate-and-land-use/Landmark-Discrimination-Case-Fair-Housing-Act-Thwarts.aspx —-

—————————————————-

Real Estate and Land Use

Apr 28, 2016
Landmark Discrimination Case: Fair Housing Act Thwarts NIMBYs

Avenue 6E Investments, LLC v. City of Yuma (March 25, 2016)

Author: Michael M. Berger

Why It Matters: The Ninth Circuit Court of Appeals reversed a decision in favor of the City of Yuma, Arizona, and concluded instead that there was sufficient evidence to present to a jury that the City had rejected the developer’s application for an increase in zoning density for reasons of barely disguised animus toward the expected residents of the new development. The Court held that issues of disparate treatment and disparate impact under both the 14th Amendment’s Equal Protection Clause and the federal Fair Housing Act needed to be tried.

Facts: The plaintiffs/developers acquired 42 acres of undeveloped land with the intent of building a “moderately priced” housing project. They are known in the area as a developer of Hispanic neighborhoods. Although the General Plan allowed for homes on either 6,000- or 8,000-square-foot lots, a prior owner had it zoned for 8,000-square-foot lots. Unfortunately, the economy would no longer support lots of that size and the developers sought a rezoning to the smaller size which in turn would allow increased density. The City had done some studies, concluding that its population was racially divided, with most of the low-to-moderate-income housing in the areas populated by Hispanics. These developers wanted to develop their housing on the border of a predominantly white area.

The City’s General Plan acknowledged that racial segregation is wrong and that large-lot zoning raises housing costs and impairs the ability of the City to provide housing for moderate-income buyers. The Planning Commission approved the rezoning to smaller lots and recommended that the City Council do so as well. The City Council, however, was besieged with NIMBY complaints and thinly veiled anti-Hispanic charges, complaining that these particular developers were known to “cater to” the people responsible for the vast majority of major crimes.

Two other facts had some import. First, there were similarly priced and modelled homes available elsewhere in Yuma, a fact that the City thought absolved it of any claims of disparate impact. Second, a fact that proved difficult for the City to impress on the Court was that, in the preceding three years, this was the only rezoning request that had been rejected out of 76 applications.

The developers filed suit under the federal Civil Rights Act, 42 U.S.C. § 1983, for violation of the Equal Protection guarantee, as well as for disparate impact and treatment under the Fair Housing Act. The trial court entered summary judgment for the City on the sole ground that the adequate supply of similar housing elsewhere in the City automatically foreclosed any finding of disparate impact.

The Decision: The Court of Appeals reversed. When the opinion began with a paean to the Fair Housing Act and the way it “strikes at the heart of the persistent racism that so deeply troubles our Nation,” something that the provision of more affordable housing can help to cure, it was apparent that the conclusion was foregone: judgment reversed.

The Court of Appeals was unable to disregard the bright light of the fact that out of 76 applications, the only time the City had denied a zone change in the past three years was this one. There could be no explanation for the denial other than racism, particularly in light of some of the communications made by neighbors to the City Council about the presumed criminal proclivities of the anticipated residents of the new development. Nor would the Court have anything to do with the trial court’s idea that the presence of similar developments elsewhere in Yuma obviated the problem. Indeed, it merely emphasized the fact that the City was racially divided and at least some of its residents wanted things to remain that way.

There appeared to be no principled opposition to the requested zone change. As the Court of Appeals put it, the record was replete with “code words” and “veiled references” for the Hispanic influx that the neighbors anticipated, turning the development into a “low-cost, high-crime neighborhood.” The case had no chance on appeal.

Practice Pointers:

Neighbors frequently oppose projects in their neighborhoods that are intended to be occupied by lower-income families. Local governments often bow to this political pressure. This decision may well serve to justify these projects, even in the face of neighbor opposition.
Language similar to the “code words” used by neighbors in this case is common among project opponents opposing higher-density projects. Local agencies need to be mindful of the exposure that this kind of language may impose if the projects are disapproved by the local agency.
At the very least, local agencies need to include sufficient data and facts in the record to support their decision as not being based on discriminatory rhetoric.

Carrots and sticks

October 2, 2015affordable housing, fair housing, housing, integration, News, renters, segregationAFFH, civil rights, fair housing, integration, segregationTed Wimpey

Affirmatively furthering fair housing (AFFH) is a recurrent theme on this website, so if you’re still not conversant with the phrase, today’s post is another opportunity. Essentially, the AFFH rule issued by HUD over the summer represents a reinvigorated push to promote inclusive communities and to break up concentrated areas of segregation and poverty that the 1968 Fair Housing Act was intended to dispel.

If for no other reason, you should become familiar with AFFH because it’s a key addition to contemporary American civil rights vocabulary. You can bone up on previous posts here, or here, or delve in to some of this website’s Resources.

And if you’re a citizen committed to supporting affordable housing development in mixed-income, higher opportunity areas, your role may be important than you thought. Consider this excerpt from an essay by Michael Allen, a partner in the civil rights law firm of Relman, Dane & Colfax and one of the leading legal lights nationally in fair housing litigation:

“What HUD produced is a Final Rule long on ‘carrots,’ but painfully short on ‘sticks.’ To compound that problem, HUD does not currently have—and is very unlikely to acquire—sufficient resources to police the compliance of 1200 block grant recipients and 3400 public housing agencies. As a consequence, the promise of the Affirmatively Furthering Fair Housing (AFFH) mandate is likely to be realized only in communities where grassroots and legal advocates mobilize and create their own enforcement strategies. The success of the Final Rule will depend on this grassroots mobilization, on a community-by-community basis, all over the country. That means advocates, collectively, need to step up to the plate and provide the tools and resources for a sustained ‘ground game.’”

As for “carrots” that municipalities can offer for affordable housing development, the Fair Housing Project’s own Ted Wimpey offered a nice summation in his August testimony to the Vermont Advisory Committee to the U.S. Commission on Civil Rights: inclusionary zoning, density bonuses and impact-fee reductions, among others.

Segregation back on the table

September 15, 2015UncategorizedAFFH, affirmatively furthering fair housing, affordable housing, Chicago, housing news, New York Times, segregation, VermontTed Wimpey

Here are a couple of readings that expand on some of our previous posts on the inexorable AFFH theme:

“Segregation 101” takes off from an August Times story on Section 8 (that is, racial) discrimination in metropolitan St. Louis. One obstacle to locating more Section 8 voucher holders in middle-class suburbs, the story notes, is a relative lack of rental apartments in such suburbs — in part because of zoning practices that favor single-family homes.

“Segregation Conversation Goes National” offers another rebuttal to the controversial Edsall op-ed and advocates a dual approach to the housing affordability crisis: investing in poor neighborhoods and, on one hand, and settling more poor people in “opportunity-rich” middle-class neighborhoods, on the other. (That seems to be the strategy that Justice Kennedy implicitly endorsed in his disparate impact decision, as we noted previously.)

There’s also a reference to a regional program in Chicago that helps disperse urban Section 8-holders to outlying suburbs. (For an account in The Atlantic, click here.) Elements of that might translate well to Vermont, where the Section 8 program outside of Burlington and several other cities, is already administered by a “regional” agency (Vermont State Housing Authority) that covers the rest of the state.

Meanwhile, the Times lands another editorial today another segregation motif — racial discrimination by real estate agents around the country.

Once more, with feeling

September 8, 2015UncategorizedAFFH, affirmatively furthering fair housing, Fair Housing Act, housing news, HUD, integration, New York Times, segregation, Walter MondaleTed Wimpey

It’s not every day that we can praise the New York Times editorial board for following in Thriving Communities’ wake. Saturday’s editorial, which borrows its headline, “The Architecture of Segregation,” from a study we posted about last month. The editorial, while noting this two summer’s “positive” developments – the Supreme Court’s disparate impact decision and HUD’s AFFH rule – rightly takes federal officials to task for failing, over many years, to enforce the Fair Housing Act. And the editorial invokes Walter Mondale’s comments at the HUD conference last week about how the act’s intent is “not fulfilled” by exclusionary land-use planning.

While government deserves a good share of the blame for the present state of residential racial segregation, there are those in the community of fair housing advocates who contend that the real estate industry has been at fault, too. How else to account for the fact that upper-middle-income black families don’t have comparable access to the neighborhoods where their upper-middle-income white family peers live.

Indeed, one factor that may have contributed to segregated patterns is the choice of many whites to opt out of integrated communities, as Stacy Seicshnaydre pointed out in a law journal article last year, “The Fair Housing Choice Myth.” And one way to address that, Seicshnaydre argued, is to defund exclusion — as application of the AFFH rule promises to do, at least in theory.

Meanwhile, HUD conferees were reminded last week, redlining is still with us, and new cases are in the pipeline.

Putting AFFH under your pillow

July 16, 2015UncategorizedAFFH, affirmatively furthering fair housing, fair housing, Times Argus, VermontTed Wimpey

You’ve been lying awake at night wondering what affirmatively furthering fair housing (AFFH) will mean in Vermont, right?

Just kidding. If AFFH isn’t on the tip of your tongue yet, we understand. It is, however, an important part of the public policy lexicon, so you might as well start getting used to it. Ted Wimpey’s op-ed in today’s Times Argus is a nice entry point.

Among other things AFFH will afford a fresh look at fair housing choice in Vermont, drawing from data that HUD will provide. This will take the form of “assessment” reports – to be done for Burlington (a federal grant area in its own right) and for the state as a whole.

Chances are, the findings in these reports won’t come as a huge surprise. Consider the “State of Vermont’s “Analysis of Impediments to Fair Housing Choice,” completed in 2012.

That report addressed, among other things, racial residential patterns. According to the 2010 census, Vermont was 95.3 percent white. Blacks accounted for 1 percent of the 2010 population; Asians, 1.3 percent; and Hispanic residents, 1.5 percent. That analysis defined areas of concentration as double those levels. So, in the case of African Americans, there were 22 census tracts where the percentage of African Americans was 2 percent or higher, five of which were in Burlington.

Compared to concentrations in other, more urban states, Vermont’s numbers are quite low. Still, as Vermont’s draws increasing numbers of people of color, these numbers – and the patterns of concentration – bear watching, and it will be interesting to see how they play out in the coming AFFH assessment.

New push for integration

July 9, 2015UncategorizedAFFH, affordable housing, Boston, Ed Brook, Fair Housing Act, integration, LBJ, segregation, Vermont, Walter MondaleTed Wimpey

When the U.S. Department of Housing and Urban Development released its AFFH rule yesterday, it was the second cause for celebration among fair housing advocates in the last two weeks.

The first was the U.S. Supreme Court decision upholding the disparate impact doctrine — a key civil rights enforcement mechanism, under which housing policies can be found discriminatory on the basis of their effects, not merely their intent.

The second was the long-awaited AFFH rule. AFFH stands for “affirmatively furthering fair housing,” language contained in the Fair Housing Act of 1968 but not fully elucidated until yesterday.

Essentially, as HUD summarizes it, the rule is a means of overcoming segregation and fostering inclusive communities. This is entirely in keeping with the intent of the Fair Housing Act’s original sponsors – chief among them Sens. Walter Mondale and Ed Brook, who can be seen flanking LBJ as the president signs the legislation into law on April 11, 1968.

The main point of the Act according to Mondale, “was to replace the segregated living patterns with ‘truly integrated and balanced living patterns.’” To Brooke, the act was meant to break the “dreary cycle of the middle-class exodus to the suburbs and the rapid deterioration of the central city.” (They said as much in their amicus brief to the Supreme Court in the disparate impact case.)

Their vision hasn’t exactly played out over the last half-century, as most major metropolitan areas remain highly segregated. Consider Boston, for example, which has a white/black dissimilarity index of 68. On a scale of 0 to 100, 0 represents total integration and 100, total segregation. Any place that registers over 60 is considered highly segregated. (The State of Vermont, by contrast, came in at 38.8, according to a 2012 report.)

In this map of the Boston area, based on 2010 Census data by Eric Fischer, red dots represent white people; blue dots, black people; orange, Hispanics; and green, Asians.

Similar maps, some even starker in the depiction of racial separation, can be seen for most major U.S. cities. The AFFH rule, which makes operational the Fair Housing Act’s intent, is seen as a tool that will help overcome these longstanding segregated patterns.

Even though Vermont is 95 percent white, AFFH will have broad application here. After all, a major thrust is to break up pockets of poverty and promote inclusive settlement patterns that give people in protected classes – among them, racial minorities and disabled people – the choice to live in low-poverty areas with access to transit and good services. Vermont has plenty of room for more housing development in keeping with AFFH standards.