N E W S & I N F O R M A T I O N F O R C I T I Z E N P L A N N E R S

ThinkRegionally, Act LocallyWhen local planningand zoning decisionsaffect more than yourown community.

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Drafting ClearOrdinancesSome do’s and don’ts

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21st CenturyTransportationPlanningChallengesBringing people andplaces closer together.

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PlanetizenUpdateWeb sites of specialinterest to citizenplanners.

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HousingChoicesHow planners can bestaddress changingdemand in the housingmarket. Plus a majorlegal development onwhere affordablehousing should go.

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Coping withEconomicMeltdownIs there a role for plan-ning commissioners inaddressing localeconomic development?

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Stop, Look,LoiterTaking the time to be a careful observer.

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P L A N N I N GC O M M I S S I O N E R S

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www.plannersweb.com

Housing Choices

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P L A N N I N G L AW P R I M E R

No Certification, No Money:THE REVIVAL OF CIVIL RIGHTS OBLIGATIONS IN HUD FUNDING PROGRAMS

by Michael Allen, Esq.Editor’s Note: This short article provides an“early warning” alert on an important housingissue that may well affect your community. I hope you’ll plow through the acronyms andsome of the legal background, as it’s a topicworth becoming familiar with.

Since the late 1960s, states andmunicipalities receiving federalhousing and community devel-opment funds – under the CommunityDevelopment Block Grant (CDBG),HOME Investment Partnership (HOME),and similar programs – have beenrequired to certify that they will complywith federal civil right laws. Many havedone so without understanding what isrequired by these certifications, assum-ing that the U.S. Department of Housingand Urban Development (HUD) wouldnot challenge their validity.

Until recently, this assumption waslargely correct, as HUD rarely questionedrecipients on these issues and virtuallynever terminated or threatened to termi-nate funding. HUD simply did not pressrecipients to comply with their civilrights fair housing certifications. Conse-quently, from 1995 through 2009, hun-dreds of recipients bowed to NIMBYpressures,1 ignored their certifications,and spent billions of dollars in federalfunds to segregate affordable housing byplacing most of it in already disadvan-taged neighborhoods or communities.

In just the past year, however, this sit-uation has begun to rapidly change – theresult of a ground-breaking lawsuitagainst Westchester County, New York2 –and the Obama Administration’s interest

in reviving civil rights enforcement.Under emerging HUD guidelines and astepped-up agency enforcement policy,recipients of federal housing funds willbe required to take a hard look at imped-iments to fair housing choice in theirjurisdictions and propose robust actionsto overcome them.

This new environment will have adramatic impact on communities acrossthe country, whether they are one of the1200+ “entitlement jurisdictions” receiv-ing federal funds directly from HUD, orsmall cities or rural counties whose fed-eral funds are channeled through a statecommunity development agency.3

Civil Rights

To be eligible for CDBG and relatedfunds, state and local governments mustcertify that they will comply with a rangeof federal civil rights laws4 and “affir-matively further fair housing.” Since atleast 1995, this last obligation, some-times referred to as “AFFH,” has requiredrecipients to conduct an Analysis ofImpediments (AI), in which they identifyand analyze impediments to fair housing

choice within their jurisdictions, andoutline appropriate actions to overcomethose impediments. HUD also requiresrecipients to maintain records support-ing the analysis and the actions taken toovercome impediments.

HUD requires state and local govern-ments to use their AIs to list impedi-ments experienced by members of allseven protected classes,5 whether causedby intentional discrimination or by poli-cies and practices that have a harshereffect on members of a protected classthan on those not in a protected class.

Recipients, in their AI, must make anhonest assessment of their own zoning,land use, building, and other ordinancesthat may decrease housing choice, andmust design approaches that will coun-teract those negative effects. An AI is alsorequired to look at impediments causedby private sector actors, including steer-ing in the sales and rental markets, dis-criminatory lending practices, insuranceredlining, and similar practices.

While recipients are encouraged toprovide affordable housing, HUD makesclear that doing so does not fully satisfythe obligation to affirmatively further fairhousing, where the focus is on eliminat-ing discrimination on the basis of pro-tected class and expanding housingopportunity regardless of income.

Westchester County Goes Astray

Westchester County ignored HUDregulations and guidance. County offi-cials had Census and other data showingthat cities, towns, and villages in Westch-ester were dramatically segregated,6 and

1 See, e.g., Michael Allen, “Why Not in Our BackYard?” PCJ #45 (Winter 2002).

2 United States ex rel. Anti-Discrimination Center v.Westchester County, New York, Case No. 06-cv-2860,U.S. District Court for the Southern District of NewYork (settled in August 2009). Pleadings, legal mem-oranda, court decisions, and other materials on thecase are available at: www.antibiaslaw.com/wfc

3 Because a significant portion of funds made avail-able to communities through the American Recoveryand Reinvestment Act of 2009 (ARRA) are pro-grammed through the CDBG program, even “non-entitlement” jurisdictions and those that have neverapplied for funds from state CDBG or HOME poolswill likely have to sign civil rights certifications priorto receiving ARRA funds.

4 These include, but are not limited to, Title VI of theCivil Rights Act of 1964; the Rehabilitation Act of1973; the Age Discrimination Act of 1975; the FairHousing Act; and Section 109 of the Housing andCommunity Development Act of 1974.

5 The Fair Housing Act prohibits discrimination onthe basis of race, color, religion, national origin, sex,familial status, and disability. People protected by

RECIPIENTS OF FEDERALHOUSING FUNDS WILL BE

REQUIRED TO TAKE A HARDLOOK AT IMPEDIMENTS TO

FAIR HOUSING CHOICE

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knew that nearly three-quarters of coun-ty-funded affordable housing was beingbuilt in racially-segregated, African-American neighborhoods.

Despite this the county’s AIs in 1996,2000, and 2004 made absolutely no men-tion of that segregation or of race-basedimpediments to fair housing choice.Moreover, even though the County’s ownappointed Housing Opportunities Com-mission had identified intense opposi-tion to affordable housing in the whitestcommunities and the failure of 20municipalities to build a single unit ofaffordable housing pursuant to theCounty’s affordable housing “allocationplan,” the AIs failed to mention theseimpediments.

The Anti-Discrimination Center ofNew York began an investigation ofWestchester County’s civil rights perfor-mance in 2005, requesting records toestablish whether the County had truth-fully made certifications of AFFH com-pliance. Document discovery in asubsequent lawsuit brought under theFalse Claims Act revealed the nearlycomplete absence of supporting records.As the then-County Executive testified athis deposition, he never read the AFFHcertifications requiring his signature, and“signed whatever [he had] to sign to getthe money from HUD.”

On February 24, 2009, a federal judgeconcluded that more than 1,000 of theCounty’s AFFH certifications – those inthe annual applications and those implic-itly made each time the County request-ed payment from the federal governmentbased on annual written certifications –were false. Finding that HUD’s 1995 FairHousing Planning Guide7 was persuasiveauthority, the court instructed the Coun-ty (and other recipients) that the AFFHcertifications were “not mere boiler-plate,” but were material and substantiverequirements that are required for receiptof federal funds.

Within a few weeks of the court’s rul-ing, HUD Secretary Shaun Donovan andDeputy Secretary Ron Sims were person-ally engaged in settlement negotiationswith the county. Those efforts, combinedwith a temporary cutoff of funds to thecounty, culminated in a $62.5 millionsettlement on August 10, 2009, requiringthe county to develop 750 units ofaffordable housing in the whitest townsand villages in Westchester, and to affir-matively market them to people of color.In addition, the settlement requires thecounty to conduct a new AI and to con-sider all fair housing impediments.

Speaking not just to WestchesterCounty, but also to the state and munici-pal recipients of HUD funds across thecountry, Sims noted that the agencywould begin to “hold people’s feet to thefire” on civil rights certifications.8

Scattering the Seeds of Westchester

While HUD has announced it willpublish a proposed regulation toughen-ing AFFH substantive and proceduralrequirements later this year, the agencyhas already become active in reviewingrecipients’ certifications and perfor-mance. The most notable instancesinvolve St. Bernard Parish, Louisiana; theState of Texas; and the City of Joliet, Illi-nois. All three involve litigation oradministrative complaints by grassrootsadvocates, alleging discrimination on thebasis of race or national origin, and thefailure to identify and analyze impedi-ments experienced by people in thoseprotected classes.

• In Louisiana, HUD threatened towithhold hurricane recovery funds torebuild a hospital because St. Bernardhad adopted a series of racially discrimi-natory ordinances with respect to multi-family housing.

• In Texas, HUD rejected the state’splan to spend $1.7 billion in disaster

recovery money, in part because itsseven-year old AI did not comply withfederal requirements.

• In Illinois, HUD has taken enforce-ment action against the City of Jolietbecause the city allegedly used its eminentdomain power in a discriminatory fashionto shut down affordable housing inhabit-ed almost exclusively by low-income,African-American single mothers.

What It All Means for MunicipalPlanning

Planning professionals and planningcommissioners across the country willincreasingly be called upon to informand guide their communities through theHUD-required planning processes. Com-munities whose planning departmentsand commissions are already immersedin conversations about addressing localhousing issues will have a head start indeveloping robust AIs. Those with littleexperience in assessing the civil rightsimpacts of zoning, land use, building,and funding functions may have to bringin outside consultants to help developcompliant AIs.

One AI worth taking a look at – espe-cially for those in small or mid-sizedmunicipalities – is that of the City ofNaperville, Illinois (a Chicago suburb),winner of an Illinois APA 2009 Best Prac-tices Award.9

Planners would also do well – evenbefore HUD’s new regulations are inplace – to dust off their copy of the HUDFair Housing Planning Guide and reviewits roadmap on how to conduct an AI.10

The Guide includes valuable suggestionson data sources and community involve-ment strategies. ◆

Michael Allen, Esq. is a part-ner in the civil rights lawfirm, Relman & Dane, PLLC,which engages in litigationand consulting throughoutthe country, principally in theareas of fair housing and fairlending. Allen was the firm’slead attorney in United States ex rel. Anti-Discrimination Center v. Westchester County andhas a similar role in the State of Texas matternoted in this article.

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these provisions are often colloquially referred to asthe “protected classes.”

6 The County’s own data showed that 24 of thesemunicipalities had African-American populations of3 percent or less, and that others had block groupsthat were almost entirely African-American.

7 Available at: www.nls.gov/offices/fheo/images/fhpg.pdf

8 As reported by Peter Abelbome in The New YorkTimes, “Integration Faces a New Test in the Suburbs,”(August 22, 2009).

9 Available at: www.planningcommunications.com/ai/naperville_ai_2007.pdf or www.naperville.il.us/emplibrary/Boards_and_Commissions/fhacanalysisofimpediments.pdf

10 See footnote 7 for download location.