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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition
The Leadership Conference on Civil and Human Rights & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition
The Future of Fair Housing: Report of the National Commission on Fair Housing and Equal Opportunity. December 2008.

Regionalism and Fair Housing Enforcement

To make real progress toward equal housing opportunity, all of the jurisdictions within a metropolitan area must be coordinated in their efforts, and all of the housing programs and policies within a region must be aligned so that they are pointing in the same direction and mutually supporting the development and preservation of diverse, inclusive communities. HUD has many of these tools available now to accomplish this goal, through its own housing programs and its relationships with its state, local, and private sector grantees – each of whom make a binding promise to promote fair housing through their acceptance of federal housing funds. But additional planning and oversight authority should also be considered, and should include a regional fair housing analysis for all new federal investment in a region, promote fair housing in "smart growth" planning, and require coordination among regional agencies involved in housing, education, employment, transportation and other infrastructure development.

As described by Jill Khadduri (a former director of the HUD Division of Policy Development) in recent court testimony and reiterated by Elizabeth Julian (a former HUD Assistant Secretary), the starting point for a comprehensive regional fair housing process begins with fair housing performance goals for each federal housing program and each state local grantee in a region.[252] Funding of state and local entities through the popular HOME and Community Development Block Grant (CDBG) programs should be conditioned on meeting these goals. Each federal housing program in the region – including Section 8, LIHTC, and public housing – would also be redirected to support a share of specific regional opportunity goals.

The process described by Khadduri and Julian is not new – it was envisioned as part of the national fair housing structure in the late 1960s and early 1970s. In 1968, the federal law governing Section 701 grants to regional planning agencies was amended to require a "housing element" to assess regional housing needs.[253] This led to the development of "fair share housing plans" in many metropolitan regions. In 1969, this requirement was enhanced by the creation of the so-called "A-95 Review" process that empowered regional planning agencies to review and sign off on federal grants to municipalities for their conformance with the regional plan.[254] This system, which successfully engaged many metropolitan regions in a coordinated fair housing planning process,[255] effectively ended with the Nixon administration’s housing moratorium in 1973 and the subsequent passage of the Housing and Community Development Act of 1974, which weakened federal oversight of block grants to cities and towns.

With the renewed emphasis on a metropolitan approach to planning and infrastructure development at the federal level, the federal government may want to revisit the A-95 Review process to consider embedding fair housing analysis in the regional planning process. Just as the President’s Fair Housing Council seeks to coordinate federal activities across agencies to support fair housing, all the agencies operating in a metropolitan areas should coordinate their activities, with fair housing as a central component. Implementation of major investments in transportation, employment, education, commercial development, and other infrastructure enhancements should be aligned with fair housing goals, to support and develop diverse, sustainable communities with access to opportunity for all residents.

Enhanced regional planning and cooperation is essential, whether using existing HUD programs and powers, as Khadduri suggests, or through the re-establishment of a more formal regional planning process as originally envisioned when the Fair Housing Act was adopted. The politics of exclusion that led to the demise of these programs have been largely left in the past, and most Americans now understand that no community is an island.

Public Housing Agency Practices

Monitoring and coordination of public housing agency (PHA) programs is a crucial aspect of HUD fair housing oversight and regional coordination. Metropolitan areas often have multiple PHAs with public housing and Section 8 programs operating side by side, often without significant coordination. These PHAs can be leaders for regional opportunity, but problems have sometimes arisen when a PHA restrains opportunities for its residents, or when it becomes an exclusionary gatekeeper. Forceful leadership and coordination by HUD will require a meaningful fair housing element in all PHA plans, with each PHA sharing in target regional fair housing performance goals. PHAs should be encouraged to work together, through coordinated or merged waitlists and affirmative marketing across jurisdictional lines to encourage integration. Promoting marketing to those "least likely to apply" will increase participation in programs in all neighborhoods. Exclusionary practices such as residency preferences, first-come, first-served waitlists, or in-person application requirements should be prohibited or discouraged. Where feasible, Section 8 voucher programs should be administered on a regional basis, with active mobility counseling and landlord recruitment (including sharing of landlord lists across PHAs) to encourage families to consider higher opportunity areas.

Reforming State Laws and Land Use Regulation

Well-designed urban planning mechanisms can be effective in reducing income and race-based segregation, but the effect of land use regulations varies dramatically based on the initial design of the regulations and their execution.[256] As discussed earlier in this report, zoning (Americans’ favored form of land use control) had historically been employed to separate people by race, and it remains a significant barrier to creating mixed-income communities, especially by controlling the location of multifamily housing[257]or adopting low-density-only zoning that reduces or even eliminates rental housing opportunities for African Americans and Latinos.[258]

Throughout the country, there have been successful efforts to pressure local governments to erect land use barriers to keep development considered less desirable out of politically influential neighborhoods and communities. This phenomenon is known as "NIMBY," an acronym for "not in my back yard." Successful NIMBY campaigns have resulted in a disproportionate share of hazardous land uses being clustered in predominantly minority and poor areas, resulting in well-documented environmental justice concerns.[259] Similarly, local opposition to the development of affordable housing has led to its exclusion from many areas and the clustering of public housing, subsidized housing, and other affordable housing in areas that are already predominantly minority and poor. To combat this phenomenon, California, for example, has passed an "anti-NIMBY" law that requires approval of affordable housing developments on sites zoned for residential development unless the development would have a specific and adverse and unavoidable impact on objective health and safety standards that cannot be mitigated.[260]

The NIMBY phenomenon has been a consistent barrier to rebuilding affordable housing on the Gulf Coast in wake of Hurricanes Katrina and Rita in 2005 . Many communities in those areas have imposed land use barriers to exclude affordable housing from being rebuilt within their borders. As one attorney noted, "Mississippi’s policies at the state level and zoning choices at the local level so far have reinforced pre-existing economic and racial disparities in the area of housing and community opportunity."[261] Similarly, in Louisiana, a number of communities passed ordinances designed to prevent displaced African Americans from relocating within their borders or to limit the affordable housing opportunities.[262] The NIMBY phenomenon has also presented barriers to the placement of temporary housing and the reconstruction of affordable rental housing, and as a result, the only affordable housing that has been approved in Gulfport, Mississippi, for example, is on sites that were previously occupied by subsidized housing.[263]

Anti-immigrant ordinances are a particularly egregious example of the use of land use regulation to erect barriers to fair housing. In an effort to exclude immigrants entirely and others entirely, some municipalities have enacted zoning ordinances that prohibit members of extended families from living together.[264] Even more extreme, between 2005 and 2007, more than 30 municipalities throughout the country in , California, Texas, Missouri, Georgia, New Jersey, and Pennsylvania) enacted legislation penalizing and even jailing individuals for renting apartments to illegal immigrants.[265] Without the authority or expertise to determine a potential tenant’s immigration status, a landlord may refrain from renting or leasing to anyone he suspects could be an undocumented immigrant, a behavior likely to lead to racial and ethnic profiling and discrimination against people of color, and most commonly, Latinos.[266]

By contrast, states and local governments that have gone beyond traditional zoning regulation to incorporate affordable housing measures, building permit caps, and other land use reforms have had considerable success providing more regional opportunity for low-income residents and minorities.[267] For example, the California Housing Element Law "mandates that local governments adequately plan to meet the existing and projected housing needs of all economic segments of the community."[268] Similarly, in New Jersey, each municipality must provide for its "fair share of the present and prospective regional need" for low-income housing.[269] Although state and local mandates like these have not eliminated fair housing issues, they have contributed meaningfully to an increase in fair housing and affordable housing.[270] Areas undergoing gentrification, too, can adopt inclusionary zoning policies to leverage gentrification for the benefit of less advantaged residents.[271] In areas where the provision of affordable housing is not mandatory, local governments should be encouraged to consider inclusionary zoning policies and to eliminate barriers to fair housing.[272]

Regional Planning and "Smart Growth"

Regional planning initiatives can be instrumental in ensuring that fair housing is available throughout a region. A regional approach to meeting fair housing needs allows for the intentional connection of affordable housing to quality schools, employment opportunities, and an accessible transportation infrastructure without being constrained by jurisdictional borders between towns.[273] Because land use regulations have the potential to drastically reduce or enhance regional inequity,[274] analysis of alternative regulatory regimes is necessary to facilitate the transition of our current metropolitan areas into inclusive and sustainable communities of choice and opportunity. It is imperative for our nation to focus on three types of growth – productive, inclusive, and sustainable – to remain competitive in this increasingly global economy.[275]

Interagency cooperation at the regional level should mirror the interagency, metropolitan-centered collaboration promoted by the President’s Fair Housing Council. Major federal investments in a region should be assessed for their fair housing impact, with a new fair housing analysis in place modeled on the successful A-95 Review process in the early 1970s. Like smart growth, fair housing should be one of the core principles embedded in the next wave of federal infrastructure development.

Recently adopted anti-sprawl legislation in California (SB 375) expressly enlists "smart growth" land use principles to help curb greenhouse emissions, by encouraging high-density mixed use and mixed income development along public transit corridors. The new law links regional transportation, housing, and environmental planning; and provides incentives for transit-oriented development that includes a minimum portion of low or moderate income housing. This approach, perhaps with a stronger emphasis on inclusive fair housing principles, could serve as a national model for future infrastructure planning.

Next Section: Adopt a Regional Approach to Fair Housing

Footnotes

[252] Testimony of Elizabeth Julian (Atlanta); Testimony of Dr. Jill Khadduri (Atlanta Exhibit).

[253] This description of the regional planning and A-95 review process is taken from Charles Connerly and Marc Smith, Developing A Fair Share Housing Policy for Florida, 12 J. of Land Use & Environmental L. 63, 74, 75 (Fall, 1996); see also Myron Orfield, Land Use And Housing Policies To Reduce Concentrated Poverty And Racial Segregation, 33 Fordham Urb. L.J. 877 (Mar. 2006).

[254] Connerly and Smith, 12 J. Land Use & Env. L. at 74,75.

[255] See Orfield, 33 Fordham Urb. L.J.

[256] See Rolf Pendall, Robert Puentes & Jonathan Martin, Brookings Inst., From Traditional to Reformed: A Review of the Land Use Regulations in the Nation’s 50 Largest Metropolitan Areas 5-6 (Aug. 2006). This report examines different land use regulations in the largest metropolitan areas in the nation and considers the effects that they have had on development in those metropolitan areas.

[257] Pendall, From Traditional to Reformed, at 3; see also Testimony of Michael Rawson (Los Angeles), at 1.

[258] Testimony of john powell (Los Angeles), at 3.

[259] See, e.g., Robert D. Bullard et al., Toxic Wastes and Race At Twenty: 1987-2007 (2007).

[260] Testimony of Michael Rawson (Los Angeles), at 3.

[261] Testimony of Reilly Morse (Houston), at 5.

[262] Testimony of James Perry (Houston), at 2-3. St. Bernard Parish, which is adjacent to the predominantly African American Lower Ninth Ward of New Orleans, made it illegal for an owner of a single family home (93 percent of which are White) to rent to anyone not related by blood. To limit the availability of affordable housing, Jefferson Parish, which also borders Orleans Parish, passed a resolution stating that it did not want any Low Income Housing Tax Credit housing within its borders. Kenner City in Jefferson Parish sought to limit affordable housing by imposing a moratorium on the construction of multi-family housing. Id.

[263] Testimony of Reilly Morse (Houston), at 4. In Gulfport, Mississippi "a long series of tax credit-financed apartment complexes were blocked on pretextual zoning grounds." Id.

[264] See, e.g., Nick Miroff, Culpeper Officials Targeting Illegal Immigrants, Wash. Post, Sept. 21, 2006, at T10.

[265] See Ken Belson & Jill P. Capuzzo, Towns Rethink Laws Against Illegal Immigrants, N.Y. Times, Sept. 26, 2007; see also Testimony of Nancy Ramirez (Los Angeles), at 2-4.

[266] Testimony of Nancy Ramirez (Los Angeles), at 2-3.

[267] Pendall, From Traditional to Reformed, at 31.

[268] See Cal. Dep't of Hous. & Community Dev., Housing Elements, http://www.hcd.ca.gov/hpd/hrc/plan/he/; Testimony of Michael Rawson (Los Angeles), at 2-3.

[269] S. Burlington County NAACP v. Mt. Laurel, 33 A.2d 713, 724 (N.J. 1975).

[270] Testimony of Michael Rawson (Los Angeles), at 4 ("[O]ur experience is that when sites are rezoned as part of the housing element process [in California], affordable housing will always follow on some of them."). Inclusionary zoning ordinances have resulted in the production of over 13,000 affordable units in Montgomery County, Maryland, and, since 1999, 29,000 affordable units in California. Id. But see Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 10 ("California planning laws . . . sets a lofty tone and demands that local jurisdictions address affordable housing needs and housing equity, but is often is honored only in the breach by local governments resistant to ensuring that decent, safe and affordable housing is made available to farmworkers, immigrants and other especially needy populations").

[271] Testimony of Lance Freeman (Atlanta), at 8.

[272] Testimony of john powell (Los Angeles), at 8.

[273] Testimony of john powell (Los Angeles), at 8.

[274] Pendall, From Traditional to Reformed, at 6.

[275] Berube, MetroNation, at 23-24; see also Testimony of john powell (Los Angeles), at 6.

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