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 New Orleans. The Parish was adamantly opposed to these apartment complexes, passing a moratorium on apartment construction, refusing to grant subdivision approval and hampering the issuance of building permits.
• Lawsuit against Westchester County, New York for certifying that it would "affirmatively further fair housing" in applying for federal funds to promote affordable housing, and then ignoring this obligation, resulting in concentration of affordable housing in impacted areas. The US Attorney's office and HUD intervened in this case, which ultimately resulted in a landmark consent decree.
• 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 Dallas being in impacted areas.
• Lawsuit against two Dallas suburbs for refusing to accept funds provided by a local nonprofit housing organization to promote the dispersion of affordable housing outside of impacted areas, with the result that the non-impacted areas of these suburbs have low amounts of affordable housing.

Fair Housing for Developers will provide summaries on these developments over the next couple of months.