Key update: On Thursday morning, two days after publication of this article, the De Blasio administration wrote to City Limits to say community engagement for the assessment would begin in early 2018, that it’s committed to a thorough community engagement process, and that it expects to explore many different fair housing issues, including affordability and discrimination. The city’s past analyses of fair housing can be viewed here.
However, later that same day, the Trump administration announced it would be delaying the assessment deadlines. See our coverage of the postponement here.)
The debate about housing and development over the past couple years has tended to focus on whether the city is doing enough to address the affordability crisis, or if its policies exacerbate that problem. It’s often a neighborhood by neighborhood discussion, and often one in which race and ethnicity are not explicitly on the city’s list of what to discuss.
In the coming year, the city will have an opportunity to take a new, citywide, and potentially more race-conscious approach: to deliberate whether its housing approach is “fair”—and what exactly “fair” means. That’s what’s required of us under an Obama-era regulation that still remains on the books: the Affirmatively Furthering Fair Housing (AFFH) rule.
The 2015 rule requires jurisdictions to assess whether they are “affirmatively furthering fair housing” through a new assessment process that must take place at least every five years. The new assessment process replaces an older process that many advocates viewed as flawed and unstandardized. Some cities have already had to complete their first “Assessment of Fair Housing” and New York City’s deadline for its first revamped assessment is in 2019. Many expected the Trump administration to strike down the Obama-era rule, but so far it remains intact.
The AFFH rule aims to improve the enforcement of the Fair Housing Act of 1968, which was passed amidst the civil unrest that followed the assassination of Martin Luther King Junior. The Act prohibited discrimination in housing and also required the Department of Housing and Urban Development (HUD) to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this section [of the Act].” For decades, civil rights advocates and conservative politicians have disagreed on how to interpret the Fair Housing Act and in particular whether to define as discriminatory only those policies that are intentionally, explicitly racist or those that produce structural inequalities that disproportionately harm people of color and other vulnerable populations.
Following a landmark Supreme Court decision in 2015 that in some ways affirmed the latter view, the Obama administration issued its AFFH rule to ensure HUD was indeed “affirmatively” promoting the Federal Housing Act’s implementation.
AFFH requires local governments to complete an involved community engagement process and then, with the help of maps and data provided by HUD and potentially supplemented by other data sources, complete a questionnaire regarding the fair housing issues in their jurisdiction, what factors contribute to those patterns, and what policies could be used to reverse them. Jurisdictions are then supposed to incorporate the strategies listed in the assessment into other planning efforts, such as the required Consolidated Plans that detail how a city makes use of HUD funds.
In recent years, New York City residents have participated in a good number of planning processes, but it’s not too often that New Yorkers publicly discuss patterns of historic segregation and matters of fair housing. The De Blasio administration’s housing strategy has also been subject to fair housing lawsuits and criticism, which means the upcoming discussion could also entail heated debate.
Even though the AFFH rule so far remains on the books, under the Trump administration it seems unlikely any jurisdictions will face consequences for a poorly completed Assessment of Fair Housing. Civil rights advocates insist that doesn’t mean the process is itself completely worthless. Instead, it means advocates will need to play a bigger role in ensuring the assessment generates a worthwhile discussion, and perhaps in holding the de Blasio administration accountable to its commitments.
A community-driven process
HUD describes affirmatively furthering fair housing as “address[ing] significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.” The assessment is expansive and provides room for discussions that go beyond simplistic measurements of neighborhood diversity. In some other cities, advocates have used the framework of the assessment to explore the systemic problems that underlie the issues of gentrification and displacement.
The assessment entails several steps, beginning with community engagement. The jurisdiction is required to make HUD’s data available to the public, provide the public with opportunities to comment on the proposed assessment, hold a public hearing, ensure disabled people and residents with limited English proficiency can participate, and more. The AFFH rule guidebook recommends that governing bodies consult with fair housing organizations, experienced housing and tenant groups, faith-based organizations, universities, public housing resident advisory boards, disability advocacy groups and others. The city’s assessment must also provide responses to any views expressed that it does not accept. HUD can reject the assessment if it deems the community engagement process has been inadequate.
Megan Haberle of the Poverty and Race Research Action Council says the process can be an opportunity to bring a variety of stakeholders with different focuses to the table and serve as “a platform to access good schools, as a platform to racial interactions, as a platform to healthy communities.” She also advises advocates to get involved as early as possible, be involved throughout, and formulate clear goals that can then be used to hold the governing body accountable.
Civil rights advocates point to New Orleans and Los Angeles as two cities that conducted commendable community engagement processes. In New Orleans, the city and its housing authority worked closely alongside a 20-year-old advocacy organization, the Greater New Orleans Fair Housing Action Center (GNOFHAC), to conduct extensive outreach and even to help write the 147-page assessment that was completed in 2016, according to Diane Glauber of the Lawyers’ Committee for Civil Rights Under Law. “It is highly unusual to have such a collaborative relationship with city officials,” she says.
“The city and the housing authority saw the advocates as assets in the process—not as obstacles or barriers to getting it done, and that meant that we spent a lot of time working together,” says Maxwell Ciardullo, director of policy and communications at GNOFHAC.
This is apparent from the language of the final document itself, which pulls no punches in describing some of New Orleans’ past failures. “Although the City and [Housing Authority of New Orleans] have made some progress on a number of goals, they have fallen short on the overarching goals of furthering fair housing to produce more racially and socioeconomically integrated communities in New Orleans,” the assessment states at one point, while later it notes, “The City and [Housing Authority of New Orleans] are currently working closely with GNOFHAC on the [Assessment of Fair Housing] Plan; however, they have missed opportunities to support GNOFHAC’s work to improve fair housing system capacity in the past.”
Not every assessment has been so rigorous; Glauber says in some cases, because advocates are dependent on city officials for their funding, “organizations may feel stymied or constricted in being honest and upfront and critical of the process.”
Size also matters. New Orleans is a city of under 400,000 people; that’s less than the population of Staten Island. Such close collaboration between advocates and city officials might be more difficult in a bigger city with a large bureaucracy, Glauber says.
Los Angeles, which submitted its plan this November, provides a more comparable example to New York City, and Glauber says the city was able to bring many frequently underrepresented stakeholders to the table and convened a plethora of meetings and focus groups with the help of the Housing Rights Center, Grounded Solutions Network and the Alliance of California for Community Empowerment. In Los Angeles, not everything that community groups fought for ended up in the assessment, Glauber says, but the advocacy did prompt the government to take meaningful steps toward their demands.
It’s ironic that HUD has tasked cities with tackling segregation when the resources for doing so are under threat by the Trump administration. Crafting local regulations that force the private sector to take on more of the burden of addressing fair-housing issues is regarded as a key part of the answer.
In New York City, the assessment will be conducted by the Department of Housing Preservation and Development (HPD), the New York City Housing Authority, the Department of City Planning and others, according to NYU professor Vicki Been, formerly commissioner of HPD, at a Furman Center panel held in November to discuss the upcoming assessment.
While the administration did not respond to requests for comment about their vision for the upcoming process, the mayor told the New York Times in February 2016 that he believed integration was “a really important area of public policy and one where we need more and better tools.”
Opening affluent neighborhoods
The assessment requires jurisdictions to look at not only at problems like segregation and poverty concentration, but also things like “disproportionate housing needs” and “disparities in access to opportunity”—including access to transportation, jobs, schools and healthy living. Public housing and disability access are also main focuses.
In their assessments, New Orleans and Los Angeles commit to addressing a variety of problems. New Orleans hopes to improve enforcement of anti-discrimination laws, expand education on fair housing rights, and make poor neighborhoods less challenging to live in, among other goals. Los Angeles has a section that addresses access to opportunity including through non-housing strategies like the creation of a hate crime division in the police department. Both cities aim to tackle the housing issues faced by the most vulnerable groups, such as disabled residents and those with a criminal record.
A central goal for both New Orleans and Los Angeles is expanding the supply of low-income housing in thriving, “high-opportunity” neighborhoods. In both cities, this meant committing to reserving publicly owned land in affluent areas for the creation of affordable housing and encouraging affordable housing development in such neighborhoods.
New Orleans also committed to pass a mandatory inclusionary zoning ordinance by 2017. Since the writing of the assessment, the New Orleans City Planning Commission has proposed a policy that would require a portion of income-targeted housing whenever there is new construction in certain affluent neighborhoods. The city would also offer incentives to developers to ensure development does occur, such as expedited permitting, density bonuses or reduced parking requirements. (The City Council has yet to create a final ordinance, however.)
Meanwhile, Los Angeles made a commitment in its assessment to adopting something New York City doesn’t have: an “affordable housing linkage fee.” In a big victory for advocates this December, the city now requires every commercial and residential developer to pay a fee for every square foot of new construction. The revenue will be used to preserve and create affordable housing throughout the city.
Los Angeles already had the “Build Better LA Initiative,” also called measure JJJ, a policy that requires developers to provide low-income housing in exchange for a zoning change or general plan amendment, and provides incentives in exchange for affordable housing near transit stops. Los Angeles will also be updating its community plans for every neighborhood in the city, which will create opportunities for upzonings coupled with affordable housing requirements, including in high-income neighborhoods.
New Orleans’ mandatory inclusionary zoning proposal and measure JJJ bear similarities to the de Blasio administration’s 2016 mandatory inclusionary housing policy, which mandates developers that are benefiting from upzonings to reserve a portion of housing for low-income units. Yet during the assessment process, advocates in LA pushed for a policy that would be far more ambitious than anything New York City has on the books: a requirement that all new residential development, not just in areas where a developer has received an upzoning, provide a portion of affordable housing. In the assessment, the city of LA commits to studying the impact of its linkage fee on development trends over two years, and then consider whether to adopt across-the-board, on-site affordability requirements.
In other words, while the de Blasio administration’s mandatory inclusionary housing policy is an important step from a fair housing perspective, perhaps there’s still room to consider other ways New York City could be improving access to affordable housing in high-income neighborhoods. Advocates have criticized the administration for focusing its own upzonings on low-income rather than high-income neighborhoods, and also for not including any requirements for units that target families in the lowest income bracket (Los Angeles’s JJJ does include a requirement that every rental project include at least 5 percent of units available to that lowest bracket, in addition to more units at higher brackets).
Two other sticky issues will likely come up during the Big Apple’s assessment. First, the Anti-Discrimination Center of Metro New York is still suing the administration over its community preference policy, which gives preference in new low-income developments to residents of the local community district. The administration says the policy helps low-income residents stay in their neighborhoods and access affordable housing, while the Anti-Discrimination Center says it makes it harder for low-income minority residents to access low-income housing units in more affluent, white areas.
And then there’s the problem of Section 8 vouchers. Currently, a voucher pays for the fair market rent of the metropolitan area, which means that in New York City and elsewhere, the voucher is often not enough to cover the actual rent in the city’s affluent neighborhoods. HUD under Obama tried to address this issue with the implementation of “Small Area Fair Market Rents,” a new formula that would have calibrated the value of a Section 8 voucher to the market rent of the local zipcode. New York City policymakers worried that due to the city’s low rental vacancy rate, the new formula could imperil tenants, and it got itself exempted the rule. But that leaves New York City still struggling to determine a way to help section 8 voucher recipients access homes in affluent neighborhoods.
The upcoming assessment process could be an opportunity to brainstorm new, creative policies that ensure people are able to stay in gentrifying neighborhoods while also making affluent neighborhoods more “porous” to low-income residents.
Integration or gentrification?
Sometimes the goals of integration and affordability may seem to be in contradiction. If accounting for only racial integration alone, neighborhoods like Bedford Stuyvesant, Bushwick and Crown Heights might appear to be success stories. From 2000 to 2015, the white population of Crown Heights tripled from 7.4 percent to 21.6 percent of the population, while the black population declined from 78.1 percent to 55.5 percent, according to the Furman Center. Yet as residents of Crown Heights know, the story isn’t simply explained by post racial harmony; the neighborhood lost 7,326 black families during that time as the neighborhood grew more expensive. Many residents of Central Brooklyn would likely say that affordability, not integration, is their top concern.
The New Orleans assessment calls this problem “windows of integration”—when an area is temporarily integrated, but soon becomes white and affluent as a result of displacement—and it tackles the issue head on. It recognizes unthoughtful city policy can contribute to displacement, noting that after Hurricane Katrina “rebuilding efforts have targeted public subsidy and infrastructure investment in historically African-American, high-ground neighborhoods” that are not vulnerable to flooding and are thus “poised to gentrify.” It further notes that “the City realizes it must be careful to ensure that public investments…do not contribute to gentrification and displacement in pockets of growing market interest.”
The report identifies gentrification and displacement as a cause for segregation because it pushes low-income, minority residents into other areas of concentrated poverty. It also identifies displacement as a factor affecting “disproportionate housing needs.”
“The trumpet player who grew up and lived in the Treme all his life and whose gigs are in the French quarter, who used to be able to walk to them, now lives an hour and 15 bus ride away, where the bus service doesn’t run at night,” says Ciardullo. “It was less about moving people around like chess pieces on a board, and more about [considering] how do we let people stay in the neighborhoods they want to live in…as those neighborhoods gain resources, gain grocery stores…how do we make sure people stay in those neighborhoods, stay living close to the jobs that they’ve had?”
The New Orleans assessments’ strategies for addressing the risks of “neighborhoods vulnerable to gentrification” include, among others, developing 400 affordable rental units in the gentrifying neighborhood of Treme, preserving existing affordable housing, and requiring improved coordination between agencies so that investments in a neighborhood are paired with affordable housing development—initiatives that New York City is also employing to combat displacement.
Many of the goals and strategies in Los Angeles’s assessment relate to preserving existing affordable housing and preventing displacement. LA is thinking about some of the same solutions as New York City, such as helping nonprofits purchase affordable housing buildings at risk of converting to market-rate buildings. Following the lead of New York City, which this year became the first city in the country this year to guarantee a lawyer for all tenants in housing court, LA advocates pushed for a “right to counsel.” Ultimately the city of LA agreed to study the feasibility of a Right to Counsel ordinance, writing that state funds were still insufficient to cover the cost.
Los Angeles is also exploring some things New York City hasn’t done yet. These include, among others, examining the feasibility of creating “no net loss zones” where the city will more closely track the loss of rent stabilized units, and considering expanding “just cause” eviction regulations beyond rent stabilized housing units, which would limit the circumstances in which a tenant can be evicted. The city already has a “Los Angeles Index of Displacement Pressure” that helps the city know where to target increased tenant outreach, according to the assessment.
In some ways, New York City’s efforts to address its affordability crisis dwarf those of other cities. In 2014, De Blasio set a goal to preserve 120,000 units of affordable housing and build 80,000 affordable units by 2024—goals he has since increased to 300,000 overall. By comparison, Los Angeles Mayor Eric Garcetti the same year set out to build or preserve 100,000 new homes by 2021 of which 15,000 would be affordable, and New Orleans aimed to build or preserve 7,500 affordable homes between 2016 and 2021.
That said, there may be strategies to learn from other cities. Critics of the administration say that New York City still too often fails to recognize the link between public investment and gentrification—and as a result may be promoting “windows of integration” through rezonings of low-income neighborhoods that will exacerbate gentrification and displacement.
The question of enforcement
At the end of the assessment process, it’s unclear whether there will be any meaningful federal oversight. Trump’s HUD secretary Ben Carson has in the past criticized AFFH and, while he has not yet followed through on conservative demands to scrap the rule completely, he stated vaguely over this summer that he plans to “reinterpret” the rule. It’s unclear to advocates what this means.
“Without a strong federal actor on fair housing, you’re still going to see not as much progress on these issues as you hope,” says Haberle. “You have good actors like Los Angeles, Seattle, New Orleans who are doing a good job with it, but that’s not going to be the case everywhere.”
Under AFFH, completed assessments are submitted to HUD for review and approval. So far, HUD has taken a conciliatory approach with jurisdictions, Haberle says. This might be in part because cities are still getting used to using the data and completing the assessment and HUD is showing “a large degree of patience with allowing these places to figure it out.”
Advocates were actually concerned to begin with that AFFH lacked sufficient clarity about enforcement measures. Broadly, HUD has the legal power to strip housing grants from any jurisdiction that fails to comply adequately with the Fair Housing Act. For instance, in a 2009 lawsuit brought by the Anti-Discrimination Center, Westchester was found guilty of falsely certifying that it was in compliance with fair housing. Westchester then entered a settlement with HUD that required it to build affordable housing and fix exclusionary zoning policies, but HUD repeatedly rejected Westchester’s plans to address its issues and held back several HUD grants from the county, a move Westchester contested in court. (A month after Carson’s appointment of event planner Lynne Patton to lead HUD’s New York New Jersey office, the office quickly approved Westchester’s plans.)
Yet advocates have also had their share of disappointments in the past. Buffalo, for instance, completed a thorough fair housing analysis that lead the city to pass a “source of income” law in 2006 that prohibits landlords from refusing to rent to people who pay the rent with section 8 vouchers or other forms of public assistance (New York City already has such a statute.). Yet Haberle says advocates have been frustrated by poor enforcement of the law. It’s a story that suggests it will take a great deal of local activism to ensure that any wins through the assessment process come to fruition.
Another barrier to success is that while AFFH requires each jurisdiction to conduct an analysis of regional issues, it does not require cooperation across jurisdictions. That means that across the country, liberal municipalities with severe housing crises may still find themselves unable to adopt more progressive policies due to legal preemptions passed by more conservative state lawmakers.
“We have this artificially created system of municipal fragmentation,” says Haberle. “I do think in practical terms it’s very difficult to address many of these deep fair housing issues without some sort of framework for [political collaboration], and that often comes down to local political will.”
Perhaps it’s better to think of the AFFH process as an opportunity for dialogue between cities and states—especially as states will have to complete their own AFFH assessments later on.
“As the AFFH process is going forward in New York City, Albany will be considering rent regulation issues,” said Been at the Furman Center panel. “There’s some interesting points of leverage there.”