Disparate Impacts and Affordable Housing in the Champagne Belt

For many, the term "public housing" conjures images of grim blocks of buildings situated in poorer neighborhoods. While this is by no means a truth universally acknowledged, public housing has been historically shunted to areas with struggling schools and high crime levels. In a vicious cycle, the construction of more public housing units has led to further decreased property values in these neighborhoods, not to mention increased stigma and economic segregation, with affordable housing opportunities scant in more affluent neighborhoods with better public services. The reality of a divided urban (and suburban) landspace has contributed to the construction of more mixed-income communities and attractive housing projects that defy stereotypes as well as support for the filing of claims of violation of the Fair Housing Act of 1968 under a theory of disparate impact. 
The Fair Housing Act "prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, or national origin." In relation to the FHA, disparate impact theory states that a particular housing policy has a disproportionate negative impact on a class of people protected by the Act by creating, perpetuating, or increasing segregation, even if the policy was not implemented with a discriminatory purpose. Since the Second Circuit Court of Appeals held that a municipality's neutral policy (restricting affordable housing to an "urban renewal zone" populated mainly by ethnic minorities) can have a disproportionate negative impact and thus be in violation of the Act even absent discriminatory intent in Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), other courts have followed suit (Huntington differed from a previous case, which used discriminatory intent as a criterion to evaluate the zoning plan). See Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 264-271 (1977). 

Image Credit: Greenwich Housing Authority 

However, more than two decades after appeals courts began allowing administrative disparate impact claims, many affluent communities remain devoid of affordable housing. Notable is Westchester County's dragging its heels following a desegregation agreement that involves reshaping exclusionary zoning policies and marketing affordable housing to racial minorities in some of the county's overwhelmingly white communities. In response to this resistance as well as the dismissal of Magner v. Gallagher (Sup. Ct. Docket 10-1032), the case set to go before the Supreme Court last February to decide whether disparate impact claims are cognizable under the FHA; and, if so, what test should be used to analyze them, the Department of Housing and Urban Development (HUD) has developed a proposed burden-shifting standard- with the initial burden on the plaintiff- for evaluating disparate impact housing claims. On the state and local levels, a federal judge in Texas has authorized the state's Department of Housing and Community Affairs to challenge the opposition of residents of affluent areas to publicly supported housing while communities such as Chapel Hill, NC have instituted an Inclusionary Zoning Ordinance, which mandates that 15% of the entire town and 10% of CH's highly desirable town center should be set aside for affordable units in response to criticism of racial homogeneity in the town. See Inclusive Communities Project, Inc. v. Texas Department of Housing & Community. Affairs,  2012 WL 953696. Other municipalities, such as Charlotte, have considered voluntary inclusionary zoning plans, though opponents claim that voluntary plans are less likely than their mandatory counterparts to spread affordable housing opportunities to primarily white affluent and upper-middle class neighborhoods. Mant of these efforts can trace their historical roots to an unlikely source- the elite hedge fund kingdom of Greenwich, CT, whose Housing Authority has been awarded HUD's highest honor and has maintained a surprisingly large amount of attractive and well-maintained publicly supported housing for five decades (though, of course, affordable housing in Greenwich is not without its community opposition and social tensions). These affordable housing efforts have contributed to a racial diversity that belies Greenwich's lily-white reputation and differentiates the town from tony Fairfield County neighbors such as New Canaan and Darien. While Greenwich boasts perhaps the proudest history of such housing in traditionally homogenous wealthy suburbia, decade-long waiting lists demonstrate that the amount of units remains inadequate. 
The adoption of mandatory inclusionary zoning policies, government challenges to racially-inclusive affordable housing opposition from well-heeled neighbors, and efforts of communities like Greenwich to blend wealthy surroundings and publicly supported options all provide possible ways forward- an present new challenges-in the struggle to diversify affluent neighborhoods with affordable housing opportunities. However, as the vast majority of policies resemble the voluntary inclusion plans often challenged for developing affordable housing along racial lines perpetuating de facto segregation, there is a high possibility that the SCOTUS will have to decide the question unanswered by Magner- whether disparate impact claims will be recognized under the FHA in order to bring some affordability to heretofore unreachable areas.