From: New Orleans Times Picayune
By: Javis DeBerry // September 13, 2009
Here's a synopsis of U.S. District Judge Ginger Berrigan's Friday ruling against St. Bernard Parish: Keep acting a fool if you want, but it's going to cost you.
Parish officials have been brazenly defying the judge's orders that they comply with the Fair Housing Act. But the parish will begin hemorrhaging money if those officials don't immediately conform to federal law.
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Sunday, September 13, 2009
Saturday, September 12, 2009
Westchester County NY Fair Housing Consent Decree
From: The New York Times
By: Sam Roberts // August 11, 2009
Westchester Adds Housing to Desegregation Pact
Westchester County entered into a landmark desegregation agreement on Monday that would compel it to create hundreds of houses and apartments for moderate-income people in overwhelmingly white communities and aggressively market them to nonwhites in Westchester and New York City.
The lawsuit, filed under the federal False Claims Act, argued that when Westchester applied for federal Community Development Block Grants for affordable housing and other projects, county officials treated part of the application as boilerplate — lying when they claimed to have complied with mandates to encourage fair housing.
The agreement calls for the county to spend more than $50 million of its own money, in addition to other funds, to build or acquire 750 homes or apartments, 630 of which must be provided in towns and villages where black residents constitute 3 percent or less of the population and Hispanic residents make up less than 7 percent. The 120 other spaces must meet different criteria for cost and ethnic concentration.
Implications for Developers -- If a city is bowing to NIMBY forces in fighting affordable housing, remind them of their obligation in taking federal funds to "affirmatively further fair housing."
For two great discussions of the Westchester County case, see the Equity Blog and Poverty in America.
MORE FROM THE NEW YORK TIMES
By: Sam Roberts // August 11, 2009
Westchester Adds Housing to Desegregation Pact
Westchester County entered into a landmark desegregation agreement on Monday that would compel it to create hundreds of houses and apartments for moderate-income people in overwhelmingly white communities and aggressively market them to nonwhites in Westchester and New York City.
The lawsuit, filed under the federal False Claims Act, argued that when Westchester applied for federal Community Development Block Grants for affordable housing and other projects, county officials treated part of the application as boilerplate — lying when they claimed to have complied with mandates to encourage fair housing.
The agreement calls for the county to spend more than $50 million of its own money, in addition to other funds, to build or acquire 750 homes or apartments, 630 of which must be provided in towns and villages where black residents constitute 3 percent or less of the population and Hispanic residents make up less than 7 percent. The 120 other spaces must meet different criteria for cost and ethnic concentration.
Implications for Developers -- If a city is bowing to NIMBY forces in fighting affordable housing, remind them of their obligation in taking federal funds to "affirmatively further fair housing."
For two great discussions of the Westchester County case, see the Equity Blog and Poverty in America.
MORE FROM THE NEW YORK TIMES
St. Bernard Parish LA Case
In mid-2008, a Dallas developer filed applications with the Louisiana Housing Finance Agency (LHFA) to secure low income housing tax credits on four apartment complexes in St. Bernard Parish, Louisiana (across the bridge from the 9th Ward). By way of background, in this latest round of tax credits, LHFA gave priority to two parishes that were hit hardest by Hurricane Katrina but had not received tax credits in prior rounds. St. Bernard Parish had over 90 percent of its housing stock significantly damaged by the hurricane. The Parish is 94 percent Caucasian versus adjoining Orleans Parish which is over 70 percent African American.
After the developer requested its tax credits, but before LHFA awarded the credits, the Parish passed a moratorium on multifamily development to stop development of the apartment complexes. This was the 4th in a series of measures passed by the Parish to stop rental housing --previously, the Parish had adopted a 2007 multifamily moratorium, a ban on any house being rented that was not rented prior to the hurricane, and a revised ban on renting houses that only allowed rental to a "blood relative." In late 2007/early 2008, the blood relative ordinance was challenged in Federal District Court by a local nonprofit. The nonprofit claimed the blood relative ordinance violated the Fair Housing Act. The Parish and the nonprofit ultimately entered into a Consent Decree that, among other things, prohibited the Parish from violating the Fair Housing Act for three years, with the court retaining jurisdiction over Fair Housing Act violations by the Parish during that time period. The Blood Relative Consent Decree is attached
In December, the developer intervened in the nonprofit's lawsuit against the Parish and together the nonprofit and the developer claimed the new multifamily moratorium violates the Fair Housing Act and the Consent Decree. They moved to have the Consent Decree enforced and the moratorium struck down. In March, the judge granted the request to enforce the Consent Decree, requiring the Parish to revoke the moratorium. The judge subsequently granted a motion for contempt and sanctions against the Parish.
Now, the Parish is using the planning and zoning process (subdivision approval) to block the apartment developments. The nonprofit and the developer petitioned the court to again hold the Parish in contempt for these actions and on August 17th, the judge held that the Parish's conduct since the original March 25th order, by "subverting the re-subdivision process", also violates the Fair Housing Act. To quote from the opinion "there appears to be a concerted effort, through stall and delay tactics, to simply outlast [the developer's] efforts while avoiding a substantive decision on their application. Construction must be completed by December 31, 2010 for the tax credits to be viable. By delaying construction a month here and a month there while plaintiffs ping-pong back and forth between the planning commission and the Parish Council, defendants may well achieve their goal." The judge ordered the Planning Commission put the resubdivision applications on its next agenda.
The judge's opinion was issued in the afternoon of August 17th. That morning, the developer was before the Planning Commission to again request approval of the resubdivisions and the resubdivisions were again denied.
The Parish put the resubdivision applications on their Planning Commission agenda for Tuesday afternoon, August 25th. We informed the Commission of the judge's order, which concluded that the resubdivisions should be considered "minor resubdivisions" and many of the concerns expressed at prior meetings were "pretextual." The Chairman of the Commission replied: "The judge doesn't say what's a major or a minor subdivision in St. Bernard Parish. Unfortunately, the Parish Planning Commission does and that's who you have to answer to."
The nonprofit and the developer petitioned the court to hold the Parish in contempt, liable for sanctions and requested that the court order the resubdivisions approved and require the Parish to issue building permits by October 1st. Last week, the Court held a hearing to discuss the issuance of the building permits and the actions of the Parish in denying subdivision approval. Referring to the comments of the Planning & Zoning Chairman, the Judge stated "I think you would agree that I do get to say if the action of the Planning Commission or the Parish Council violates the Fair Housing Act and other U.S. laws, and I did say that." and asked the Parish's counsel "How is this not contempt?"
The Judge issued her opinion last Friday, noting that the Planning & Zoning Commission had not even read her prior opinion, and in finding the Parish in contempt stated that the Parish "may disagree with this Court's orders, but under our system of laws, they must abide by those prior orders unless and until the Court of Appeals takes a different view." The Judge ordered the subdivision applications deemed approved, and laid out specific steps and timelines for the issuance of building permits, coupling those requirements with daily sanctions for each missed deadline beginning at $5,000 for the first day and increasing to $10,000 per day thereafter.
For an extensive list of articles/materials about the case -- click here
After the developer requested its tax credits, but before LHFA awarded the credits, the Parish passed a moratorium on multifamily development to stop development of the apartment complexes. This was the 4th in a series of measures passed by the Parish to stop rental housing --previously, the Parish had adopted a 2007 multifamily moratorium, a ban on any house being rented that was not rented prior to the hurricane, and a revised ban on renting houses that only allowed rental to a "blood relative." In late 2007/early 2008, the blood relative ordinance was challenged in Federal District Court by a local nonprofit. The nonprofit claimed the blood relative ordinance violated the Fair Housing Act. The Parish and the nonprofit ultimately entered into a Consent Decree that, among other things, prohibited the Parish from violating the Fair Housing Act for three years, with the court retaining jurisdiction over Fair Housing Act violations by the Parish during that time period. The Blood Relative Consent Decree is attached
In December, the developer intervened in the nonprofit's lawsuit against the Parish and together the nonprofit and the developer claimed the new multifamily moratorium violates the Fair Housing Act and the Consent Decree. They moved to have the Consent Decree enforced and the moratorium struck down. In March, the judge granted the request to enforce the Consent Decree, requiring the Parish to revoke the moratorium. The judge subsequently granted a motion for contempt and sanctions against the Parish.
Now, the Parish is using the planning and zoning process (subdivision approval) to block the apartment developments. The nonprofit and the developer petitioned the court to again hold the Parish in contempt for these actions and on August 17th, the judge held that the Parish's conduct since the original March 25th order, by "subverting the re-subdivision process", also violates the Fair Housing Act. To quote from the opinion "there appears to be a concerted effort, through stall and delay tactics, to simply outlast [the developer's] efforts while avoiding a substantive decision on their application. Construction must be completed by December 31, 2010 for the tax credits to be viable. By delaying construction a month here and a month there while plaintiffs ping-pong back and forth between the planning commission and the Parish Council, defendants may well achieve their goal." The judge ordered the Planning Commission put the resubdivision applications on its next agenda.
The judge's opinion was issued in the afternoon of August 17th. That morning, the developer was before the Planning Commission to again request approval of the resubdivisions and the resubdivisions were again denied.
The Parish put the resubdivision applications on their Planning Commission agenda for Tuesday afternoon, August 25th. We informed the Commission of the judge's order, which concluded that the resubdivisions should be considered "minor resubdivisions" and many of the concerns expressed at prior meetings were "pretextual." The Chairman of the Commission replied: "The judge doesn't say what's a major or a minor subdivision in St. Bernard Parish. Unfortunately, the Parish Planning Commission does and that's who you have to answer to."
The nonprofit and the developer petitioned the court to hold the Parish in contempt, liable for sanctions and requested that the court order the resubdivisions approved and require the Parish to issue building permits by October 1st. Last week, the Court held a hearing to discuss the issuance of the building permits and the actions of the Parish in denying subdivision approval. Referring to the comments of the Planning & Zoning Chairman, the Judge stated "I think you would agree that I do get to say if the action of the Planning Commission or the Parish Council violates the Fair Housing Act and other U.S. laws, and I did say that." and asked the Parish's counsel "How is this not contempt?"
The Judge issued her opinion last Friday, noting that the Planning & Zoning Commission had not even read her prior opinion, and in finding the Parish in contempt stated that the Parish "may disagree with this Court's orders, but under our system of laws, they must abide by those prior orders unless and until the Court of Appeals takes a different view." The Judge ordered the subdivision applications deemed approved, and laid out specific steps and timelines for the issuance of building permits, coupling those requirements with daily sanctions for each missed deadline beginning at $5,000 for the first day and increasing to $10,000 per day thereafter.
For an extensive list of articles/materials about the case -- click here
Recent Developments in Fair Housing
Opposition to Affordable Housing
The "not in my backyard" (NIMBY) attitudes and actions of local homeowners and elected officials has been the most significant barrier to the production of affordable housing since the inception of the low income housing tax credit (Tax Credit) program in 1986, causing developers to seek the path of least resistance, placing the vast majority of affordable housing in "impacted areas" -- neighborhoods that are primarily minority and primarily low income -- where the surrounding homeowners are less organized and less politically savvy.
The net result is the re-concentration of low income people in limited geographic areas, which only tends to reinforce stereotypes of affordable housing. This re-concentration of poverty and ethnicity runs directly contrary to the basic tenets of the Fair Housing Act of 1968 (FHA). In the words of the US Supreme Court, in the FHA "Congress has made a strong national commitment to promote integrated housing" -- which we are clearly not accomplishing so long as state Tax Credit allocation formulas incorporate local support/opposition as a factor in determining funding, and local NIMBY factors determine where affordable housing can be located.
Recent Developments
Over the last 6 months, there have been a number of federal lawsuits over NIMBY actions by local and state governments, and the current federal administration appears to be taking a more active role in affordable housing issues in general and in specific FHA cases. Recent activity includes:
- Lawsuit in which Munsch Hardt represented the developer of 4 Tax Credit developments in a Parish outside
- Lawsuit against
- Lawsuit against the Texas Department of Housing & Community Affairs for FHA violations inherent in the Texas Tax Credit allocation process, resulting in over 70% of the Tax Credit apartment units in
- Lawsuit against two
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