The State of Fair Housing in the 21st Century: Gaps in Legal Protection

Image Credit: National Fair Housing Alliance 

In the week following the Fair Housing Act's forty-fifth anniversary, much attention has been paid to how far we've come on the fair housing front and how far we still have to go. Earlier, this blog discussed how the U.S. housing market is from from perfect and free from discrimination and other writers, such as The Atlantic Cities' Emily Badger, have provided examples of the discrimination that exists generations after the signing of the Act and its 1988 amendments. The National Fair Housing Alliance recently released a report advocating more inclusive fair housing policies in the states that do not protect against housing discrimination based on sexual orientation, gender identity, marital status, and source of income. According to the report, which compiled data on fair housing complaints during the past year, twenty-nine states allow legal housing discrimination based on sexual orientation, thirty-four states allow discrimination based on gender identity, twenty-nine states permit discrimination based on marital status, and thirty-seven states allow for the legal discrimination based on a prospective tenant's source of income, including alimony, child support, or vouchers. The extent to which millions of Americans are left vulnerable to discrimination with no actionable protection or legal recourse is astounding and illuminates the need for a fair housing rethink- it's been twenty-five years since more people were included as protected classes under the Act- and more comprehensive federal fair housing regulations.

Glass Half-Full Amidst FHA Bailout Worries?

Image Credit: Bubble Info 

While news this week of the Federal Housing Administration's (FHA) possible need of a $943 million bailout from the federal Treasury presents a bleak picture of the ripple effects of the housing crisis, the same reports provide some hopeful figures and trends. First, speculation about the possible need for the first bailout in the agency's 80-year history is largely based on current projected figures and the likelihood of the FHA tapping into the Treasury will likely not be known until the close of the fiscal year in the fall. Second, FHA Commissioner Carol Galante notes that the FHA has taken"stop gap" measures to protect some of the FHA's previous vulnerability, such as a moratorium on standard fixed-rate reverse mortgages readjusting maximum amounts, and requiring all borrowers to attend reverse mortgage counseling before applying for a loan. Finally, while much of the FHA's shortfall is caused by fallout from government-backed reverse mortgages that provide tax-free cash to senior citizens and result in default if the homeowners do not pay property taxes or insurance, the rest of the FHA is on firmer financial ground- excepting the reverse mortgage program, the other initiatives, including the robust single-family program, would result in a nearly $4 billion surplus at the end of the FY. While the FHA treads unpredictable waters and many of the policies surrounding government-backed reverse mortgages- like the reverse mortgages themselves- are controversial, the resurgence of the single-family home program provide some cause for cautious optimism about the future of the FHA. Nothing is certain about the prospect of a bailout as we turn our eyes toward October.

A Look in the Housing History Book: A Shining Birthday for Fair Housing Act

Credit: Greater Baltimore Comm. Housing Resources Board

April is National Fair Housing Month, a HUD designation with special significance this year as the Fair Housing Act turns forty-five. The Fair Housing Act was signed into law by President Lyndon B. Johnson on April 11, 1968 as Title VII of the Civil Rights Act of 1968, which expanded the protections from discrimination codified in the previous Civil Rights Act of 1964. The Act was a response to the "open housing marches", calls for fair housing legislation, and tireless advocacy on the part of civil rights leaders, including the recently assassinated Dr. Martin Luther King, Jr., "prohibited discrimination concerning the sale, rental, and financing of housing based on, race, religion, national origin, or sex." 42 U.S.C. § 3604 et seq. While it is often overshadowed by the other monumental civil rights legislation and Great Society programs of the 1960s, the Fair Housing Act has played a pivotal role in helping Americans of all racial backgrounds, ethnicities, and protected classes obtain equal access to a most essential and basic human need- housing. In 1988, the Act was amended to preclude housing discrimination based on disability or family status. The Act provided a federal statutory basis to counteract discrimination, abandoning the cumbersome "state versus private action" distinction that courts used to strike down racially restrictive covenants in the 1940s. See Shelley v. Kraemer, 334 U.S. 1 (1948). Throughout the past five decades, the Fair Housing Act has been used to shift the burden on landlords to provide a legitimate, non-discriminatory reason to deny access to housing to a member of a protected class, invalidate racial quotas in housing, and to provide compensation to minority homebuyers disproportionately affected by subprime lending practices. See Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989); U.S. v. Starrett City Assocs., 488 U.S. 946 (1988); e.g., U.S. v. Wells Fargo Bank (D.D.C. 2012). Forty-five years later, the U.S. housing landscape, though far from perfect, is a much more equitable place thanks to the many years of fair housing advocates' tireless  efforts and the wielding of one lucite-stemmed pen.

Image Credit: Daily News 

Downsizing Schools and Upgrading Housing?

Faced with shrinking populations, budget cuts, and- in some extreme cases- temporary takeover by article, there have been few conversations about what to do with the empty school buildings, many of which are located in low-income neighborhoods. Many of the larger abandoned buildings would be ideal for repurposed affordable housing, but a lack of neighborhood political will and willing developers coupled with certain laws restricting usage of former schools present obstacles that have consequences for the architectural future of the buildings and for housing options in areas that are in need of more affordable units near central business districts.

Image Credit: Hamilton Houston Lownie 

state emergency managers, many cities around the country are closing schools as part of an emotional and controversial process of consolidating students. Much ongoing debate has centered around the educational implications of shifting students from school to school but, excepting thoughtful pieces like Amanda Erickson's recent

In cities like Washington, D.C., laws that require local governments to offer empty school buildings to charter schools before affordable housing developers have left many buildings in rapidly gentrifying neighborhoods vacant. These buildings, which often have historical and emotional ties to the neighborhood, could help address the lack of affordable housing in areas where new arrivals are displacing and out-pricing longtime residents as school buildings' layouts provide ample space and the potential for a mixture of larger and smaller, sustainable units. In cities where municipal authorities have been able to expedite the conversion of former schools and build community support, such as Kansas City, Grand Rapids, Mich., and Atlanta, developers who were wooed by tax incentives have contributed to the building of hundreds of units. While some difficulties emerge from the process of renovating classroom space into living space and some buildings are determined to be unable for repurposing, the ability of developers and community groups to create low-cost units and make better use of empty spaces than charter schools or other enterprises that have traditionally been given preference over affordable housing and cannot afford to inhabit and renovate old schools. As more school budgets are slashed and demographics shift, the number of uninhabited school buildings is likely to increase. Amidst this reality and the need for inclusive housing near vibrant urban cores, lawmakers and local officials may want to enact new ordinances that spur development of affordable housing for residents of neighborhoods that were once served by the vacant schools now collecting dust in cities across America.

Pulling the Lever for Affordable Housing in 'Backyard Laboratories'

This blog often examines affordable housing decisions made by agencies and affirmed by judges. Today, we turn to the role played by voters in effectuating, or obstructing, affordable housing policies in their communities.

Photo Credit: MassDevelopment 

If states are, as Justice Brandeis famously stated, the "laboratories of democracy", then cities and towns are undoubtedly the lab's test tubes. Those citizens who do actually head to the polls during local elections are often deeply invested in issues that affect the quality of life, physical space, and property in their neighborhoods and vote to express their opinions about the type of community they want to shape. Among the more contentious measures to grace local ballots, right below tax identified by scholars like Dr. C. Theodore Kobel of Virginia Tech's Center for Housing Research. When faced with voters that does not want an influx of affordable housing beyond the state and federal required minimums, many cities and towns green-light mixed-income projects or circumvent placing the proposal on the ballot, but some municipalities require a ballot measure. The affordable housing proposals in the central Massachusetts community of Devens present an example of an effort to revive previously defeated affordable housing initiatives at the local level.
overrides and petition initiatives, are affordable housing proposals. Proposal after housing proposal has been decisively defeated in many local elections, illustrating a disconnect between likely voters' public opinion poll responses favoring more affordable housing units and actual voting behavior, representative of the "not in my backyard" phenomena- or NIMBYism-

Photo Credit: MassDevelopment 

Devens itself is a noteworthy story of mixed-use redevelopment. The site is a 4,400 acre former military base that closed in 1996 and was subsequently bought by MassDevelopment, an economic development organization, with help from the Commonwealth of Massachusetts. Since MassDevelopment took began Devens's redevelopment, nearly 100 businesses, nonprofits, and government agencies have opened in the project, employing more than 3,200 people in the semi-rural towns of Ayer, Harvard, and Shirley. In recent years, developers sought to include more housing in Devens, leading to a proposal to convert the property's abandoned Vicksburg Square barracks into a housing complex with 80 percent of the 246 apartments reserved as affordable units, many of them targeted toward elderly and veteran tenants (MassDevelopment's projects across the state have included affordable projects like Village Hill Northampton). However, in April 2012, voters in two of the three towns (Ayer and Harvard) that have voting power over development in Devens rejected the Vicksburg Square plan by a 2 to 1 margin, causing the Boston-based developer to abandon the project. The 2012 vote was the third time an affordable housing proposal was shuttered by voters since 2006. Unanimity of the three towns, each of which hold veto power to block attempts to change the former base's zoning rules, is required to approve any future housing developments. Immediately after the vote, the future of affordable housing in Devens seemed in jeopardy, but MassDevelopment has recently announced plans for new affordable housing development on another Devens parcel that would not require zoning variances and would not be subject to the towns' veto powers (developer bids for the new project are due May 24). The efforts in Devens, while unique because of the public-private partnership procedures, can serve as a model for other communities encountering stiff resistance to affordable and mixed-income development to be resilient in the face of NIMBY opposition and work within existing zoning and permitting schemes to achieve affordable housing solutions.

The New Horizontal Frontier of Transit-Oriented Affordable Development

Image Credit: Enterprise Community 

Public transit cheerleaders seem to racking up victories as more cities- even places like Denver, San Diego, and Phoenix where the car is king- implement new or improved public transit systems in the effort to encourage sustainability in our auto-centric culture. Transit projects have been a boon to the redevelopment of once-disconnected urban corridors, with attractive mixed-use centers blending workspaces, high-end commercial activity, and desirable residences cropping up at every turn. But concerns about the lack of low and moderate-income options amidst the surge of redevelopment have directed the conversation toward linking affordable housing and improved transit since the Government Accountability Office released their 2009 report entitled "Affordable Housing in Transit-Oriented Development", which recommended increased collaboration between HUD and the DOT-FTA and more state and local support of transit-centered affordable development. See GAO 09-871. While the report praised California's Housing and Emergency Shelter Trust Fund Act (encouraging the development of 1,800 affordable units close to transit) and Portland's Transit-Oriented Development Property Tax Abatement (reducing affordable housing developers and property owners' operating costs and supporting construction of hundreds of affordable units on underutilized lots in transit-oriented areas), the GAO identified more local support for affordable housing and even affordable housing requirements as "key practices" by the GAO. See, e.g. Cal. Health & Safety Code §§ 53560 et seq. (2009); Or. Rev. Stat. § 307.600 (2009). The vertical structure of housing and development and transportation agencies at all levels has precluded meaningful cooperation between these sectors and, as former U.S. House Subcommittee Chair on HUD Rep. John Oliver (D-MA) stated, inexplicably viewed "transportation, housing, and energy policy the federal, state, and local levels as separate spheres with little or no coordination for too long."

This lack of coordination has contributed to distressing consequences. According to a report filed by the Southern Environmental Law Center and Housing Virginia, low and moderate-income households in low-density development spend nearly double on transportation costs than their centrally-located counterparts. These residents, who have been priced out of transit-oriented neighborhoods, are isolated from the places in which they work, resulting in expensive and inefficient commutes. Exclusion of affordable housing from transit-oriented development (TOD) often places affordable units in location with little access to employment opportunities  and prevent low and moderate-income residents from seeking employment and deprives centrally-located areas of a full workforce. Affordable TOD advocates have lauded state and local governments' incentives to developers to reserve a certain percentage of affordable units in transit-oriented projects. In addition to the California and Portland laws, the New Jersey Transit Village Initiative has placed housing at the center of a statewide transportation overhaul and regional transit authorities in Atlanta and the Bay Area are working with housing and planning associations to create funds to construct new affordable housing along vital transit lines (MARTA and BART, respectively). State and local coordination mirrors Washington's new rhetoric to enhance horizontal communication between congressional housing and transportation committees, exploration of federal joint development projects, and a recognition that affordable housing and accessible transit are inextricably linked. Does this new horizontal collaboration mean long-term commitment to including affordable housing in TOD? Only time will tell as an increasingly urbanized U.S. reaches the next station.

'Reclaiming' the Reality of Beautiful Affordable Housing in Detroit

Image Credit: Michigan Live 

The woes of urban blight and decline in the city of Detroit need very little preamble. Years of media clips, shocking documentaries, and a host of "ruin porn" that runs the gamut from raw to opportunistic have painstakingly archived the hard times of the former "Paris of the Midwest." Many of the more than 50,000 Detroit homes that have been abandoned for an extended period of time are being demolished to make way for nascent efforts to rebuild Detroit beyond the still-thriving cultural institutions, galleries, trendy restaurants, and sporting arenas of Midtown. Everything from artists' colonies to urban farms have been proposed in the tracts of the city left vacant by the demolition and deconstruction. However, affordable housing advocates face a rare opportunity in the new urban landscape formed by this deconstruction. Not only does Detroit now have considerably more physical space to accommodate the housing needs of low-income Detroiters
(recent figures estimate that more than 300,000 of the city's residents are unemployed), but the abundance of materials salvaged from once-opulent homes that are properly deconstructed can challenge the notion that affordable housing must be purely function or only aesthetically inoffensive and not architecturally significant and beautiful.

Image Credit: Warm Training Center 

WBUR's Here and Now recently profiled the fallout of Detroit's demolition efforts- exurban landfills filled with home parts that could be reused and recycled. Host Robin Young's guest, Bob Chapman of the Warm Training Center, advocated for the Detroit Works Project's favored process of deconstruction, by which vacant homes are not merely demolished but instead are salvaged and sold or donated for use in new construction. Some of these "home parts" are hallmarks of yesterday's building craftsmanship that cannot be replicated- copper fittings, dentil moldings, and ornate fireplaces come to mind- are relatively inexpensive to remove but are tremendously valuable. While the potential for these materials to be used in rehabbed Corktown lofts and other pockets of market-rate gentrification is obvious, a collection of nonprofits, such as the Architectural Salvage Warehouse, are partnering with developers to set aside some of the elegant fixtures reclaimed from deconstruction (and the alternative practice of "skimming") to be made available to low and moderate-income families who are participating in Detroit's revival. The effort to preserve building materials that were once the height of luxurious design for sustainable, affordable housing that seeks to preserve elements of past grandeur is more than just good policy in an economically troubled region with a rare combination of high demand for low-income housing and plenty of space for new units. It is a strong reminder that the functionality of affordable housing does not have to displace form and that quality architecure of the past can be made more accessible in the present when used to include people of all income levels in the next chapter of a great American city.