by Peter Seidman
A recent U.S. Supreme Court fair-housing decision and new U.S. Department of Housing and Urban Development (HUD) rules are either a significant step forward to promoting diverse communities or examples of government overreach aimed at destroying suburbia, depending on the observer.
Although the assertion that the feds and the high court are aiming big Washington guns at counties like Marin in an effort to dismantle single-family enclaves may rest at the wild end of a conspiracy spectrum, the court decision and the HUD rules unquestionably signal a “get serious” approach to fair housing that could have significant impacts on counties like Marin.
The court upheld a key part of the 1968 Fair Housing Act called “disparate impact,” a kind of indirect discrimination. If a landlord says that all of the units in a complex must have just one person per bedroom and the landlord doesn’t mention any prohibition against any protected class covered by the Fair Housing Act but the action effectively excludes families with children, that’s disparate impact discrimination, and it’s illegal. The court case that went to the Supreme Court sought to negate disparate impact.
“The Supreme Court decision is an absolute victory for fair housing,” says Caroline Peattie, executive director at the nonprofit Fair Housing of Marin. “It expands housing opportunities to people across the country. Where you live has everything to do with the opportunities you have available to you. The decision underlines that fact by supporting what already was the premise of the Fair Housing Act—that everyone should have the opportunity to live in the housing of their choice free of discrimination.”
The court released its decision in late June. Shortly after, HUD announced new rules relating to fair housing. The rules could have a significant impact on cities and counties. The rules underscore the Fair Housing Act that has been in place since 1968 but that has been a bit fuzzy. To clarify the situation, HUD now says, communities must analyze zoning and housing patterns to determine whether patterns exist that effectively discriminate and report findings to HUD. The rules go a step further and stipulate that communities must show HUD they have taken a proactive stance and taken actions and embraced policies aimed at reducing discrimination.
In the past, HUD took a relatively hands-off approach and allowed communities to investigate their housing patterns using a variety of data sources. Each community could use its own methods. Now, however, communities will be asked to develop a housing picture using similar data. Jurisdictions can use data HUD provides. Along with that kind of standardization, HUD will take a stricter look at the results. At stake are certain federal grants.
The Supreme Court decision and the HUD rules “are coming at the same issue of equal housing opportunities from different angles and in some ways coming into sync with each other,” Peattie says.
Opponents of fair housing cite these mechanisms as examples of excess government regulation and charge that the real goal is to aim anti-discrimination rules and regulations at eviscerating communities like Marin that have a preponderance of single-family homes.
The disparate impact court ruling and the new HUD rules clarify and strengthen the fair housing legislation. They enact no new regulations not included in the original Fair Housing Act.
That’s unlikely to mollify opponents of Plan Bay Area, a state-mandated transportation, land-use and housing plan that will support a growing economy, and other programs aimed at regional planning. While Plan Bay Area covers nine local counties, the new HUD rules cover the entire country. Hence the conspiracy theories.
Predominantly white Marin is a county in which only about 2 percent of its population is African-American, according to U.S. Census data. People of Hispanic and Latino origin make up about 15 percent of the population.
In 2009, HUD initiated a review of Marin to determine whether the county was meeting fair housing goals. Part of the county’s response to HUD involved updating a document called Analysis of Impediments To Fair Housing Choice, which identified barriers to fair housing. The county, with the help of Fair Housing of Marin, drafted an updated Analysis of Impediments, which the Board of Supervisors approved. It included an analysis and an implementation plan.
Key findings in the investigation revealed some common knowledge: Marin City and the Canal area in San Rafael are home to a high percentage of minorities. Most communities in the rest of the county have a relatively low percentage of minorities. Why the disparity exists is of equal importance to the fact that it does exist. If zoning and planning decisions relegate a protected class to certain neighborhoods, that’s housing discrimination. But if market forces create a county in which housing prices are beyond the reach of protected classes, that in and of itself doesn’t amount to discrimination.
Opponents of housing actions like the HUD rules and the court decision say that groundwork is being laid that will result in lawsuits forcing communities to provide increased affordable housing to protected classes. They say that Marin is the next stop in the federal government’s crusade to remake the suburbs. The first stop, they assert, was Westchester County, New York.
It was in that county, often called a kind of “East Coast Marin,” that the Anti-Discrimination Center filed suit. The legal action led to a settlement in which the county agreed to build 750 units of “affordable and fair” housing and accompany the building with a marketing move.
The pushback in Marin against higher-density affordable housing has the effect of limiting affordable units in the county. But the county, its cities and interested residents are engaged in looking at ways to provide affordable units without resorting to multi-story complexes. That situation separates Marin from Westchester.
Peattie notes that lower-income populations never have been a protected class under the Fair Housing Act. A lack of affordable housing still could be one element that contributes to a disparate impact. But the prospect of HUD-related lawsuits filed against local jurisdictions because they’re not approving and building housing along the Highway 101 corridor is a possibility, though the bar will be set rather high. “You would have to show how not [building development in the corridor] would in a very specific way impact protected classes,” Peattie says.
The new HUD rules clarify how the agency will help local jurisdictions create fair housing assessments and the data HUD will provide. The rules do not set out a plan to decimate single-family homes in suburbs, says Peattie.
No part of the new HUD rules or the court decision stipulates anything about restricting single-family homes. Fair housing mandates, however, prohibit counties and cities from enacting zoning regulations across their entire jurisdictions that allow only single-family housing.
The new rules, rather than charting Armageddon for the suburbs, recognize that HUD is ready to, in Peattie’s words, “step up to the plate,” and acknowledge that fair housing obligations have been in place since 1968 “and now we want to make sure that you fulfill them.”
Housing advocates recognize that Marin residents opposed to increasing the stock of affordable housing will continue to pressure politicians who sit between the feds and the electorate. Threats of recalls and campaigns to defeat reelection bids have become more common and more commonly based on housing issues.
There are ways to increase affordable housing without building monolithic projects. A county like Marin, with a pool of talented designers and architects, could become a showplace for innovative development sensitive to the environment. There is a middle ground.
“I understand that people want to preserve the beauty of Marin County,” Peattie says. “I am one of those people. There are ways that we can use land in this county in a way to address some of these issues. I want to retain the beauty of Marin. But I also want all the wonderful things, the richness that comes with a diverse community. I mean diverse in every way, not just in race and national origin but the whole kit and caboodle: Different incomes, different ethnicities, different values. That’s what I would love to see in the county I live in.”