Fair Housing 101 for County Governments

Fair Housing 101 for County

Governments June 2, 2021

KEVIN DWARKA LAND USE AND ECONOMIC CONSULTING | 145 West 79th Street, NY NY 10024 | 929.275.5048 | [email protected]

FAIR HOUSING 101 FOR COUNTY GOVERNMENTS

June 2nd, 2021

This CLE course presents the relevant policies, laws, regulations, and administrative procedures that

govern the planning, development, provision, and funding of housing units. Drawing upon the latest

guidance from federal and state housing agencies in tandem with court precedents, this training session

will focus specifically on the roles and responsibilities of county governments in affirmatively furthering

fair housing. Also presented will be best practices for coordinating county housing policies with municipal

housing plans.

TOPICS ADDRESSED

PART I: FAIR HOUSING LAW 101 o Federal Laws

o State, County, & Local Laws

o Enforcement Channels

o Enforcement Criteria

Disparate Impact

Affirmatively Further Fair Housing

PART II: FAIR HOUSING LEGAL CONFLICTS o Garden City Multi-Family Zoning

o Westchester County Allocation of HUD Monies

o New York City’s Housing Lotteries

PART III: ROLE OF COUNTY GOVERNMENTS IN HOUSING POLICY o Analyze Housing Needs

o Plan for Housing Supply Increases and Rehabilitation

o Educate Localities about Fair & Affordable Housing

o Adopt & Promote Housing Laws

o Fund Housing Development

o Market Housing Units

o Enforce Housing Laws & Monitor Local Compliance

KEVIN DWARKA LAND USE AND ECONOMIC CONSULTING | 145 West 79th Street, NY NY 10024 | 929.275.5048 | [email protected]

ABOUT KEVIN DWARKA

Kevin Dwarka is a land use and economic consultant specializing in the revitalization of New York State’s

neighborhoods, waterfronts, downtowns, main streets, and train stations. Headquartered in Manhattan,

Kevin offers a unique combination of development advisory services including economic analysis, land use

guidance and litigation support.

Economic analysis services include market analysis, real estate demand analysis, cost benefit

analysis, real estate financial modelling (pro-formas), retail leakage studies, feasibility analysis,

economic impact analysis (via IMPLAN), fiscal impact analysis, and economic development

strategy. Kevin Dwarka LLC also helps cities and local businesses secure public and private

financing for major redevelopment projects, operations, and infrastructure improvements.

Land use guidance include real estate development advising, land use disposition strategies,

development site analysis and marketing, zoning analysis, neighborhood planning,

comprehensive planning, transit station area planning, local waterfront revitalization plans,

housing policies, long-term redevelopment strategies, and environmental impact statements.

Litigation support services including regulatory review, expert testimony, real property valuation,

and technical analysis of land use, traffic, and environmental impact documents. The firm also

regularly guides localities and developers on compliance with federal fair housing laws, SEQRA,

and state redevelopment laws in order to protect them from legal disputes.

Kevin has conducted housing studies in a broad range of communities in New York State including New

York City, Yonkers, Ossining, Newburgh, Albany, Kingston, Croton-on-Hudson, Southold, and Baldwin. He

also provides regulatory guidance and training in fair housing compliance to local governments,

professional associations, and real estate developers.

Prior to establishing his own practice, Kevin Dwarka held senior positions at the MTA, Nelson Nygaard

Consulting Associates, and the Israel Union for Environmental Defense. He is admitted to practice before

the New York State Bar and serves on the New York City Bar Association’s Housing and Urban

Development Committee. He also serves as a Senior Fellow at Pace Land Use Law Center and on the board

of the New York chapter of the Congress for New Urbanism. He received his BA from Columbia University,

JD from Pace Law School, MCP from UC Berkeley, and PhD from the Hebrew University of Jerusalem’s

School of Public Policy.

FAIR HOUSING 101 FOR COUNT Y G OVERNMENTS

KEVIN DWARKA, PHDLand Use & Economic Consultant

TO DAY ’ S A G E N DA

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Part I: Fair Housing Law 101

o Federal Laws

o State, County, & Local Laws

o Enforcement Channels

o Enforcement Criteria

Disparate Impact

Affirmatively Further Fair Housing

Part II: Fair Housing Legal Conflicts

o Garden City Multi-Family Zoning

o Westchester County Allocation of HUD Monies

o New York City’s Housing Lotteries

Part III: Role for County Governments in Housing Policy

o Analyze Housing Needs

o Plan for Housing Supply Increases and Rehabilitation

o Educate Localities about Fair & Affordable Housing

o Adopt & Promote Housing Laws

o Fund Housing Development

o Market Housing Units

o Enforce Housing Laws & Monitor Local Compliance

FAIR HOUSING 101

PA RT I : FA I R H O U S I N G L AW S

W H Y D O W E N E E D FA I R H O U S I N G L AW S

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1. Enduring Discrimination in the Sale and Rental of Housing

2. High Levels of Housing Cost Burden for Low-Income Residents

3. Failure of Housing Providers to Ensure Safety & Accessibility

4. Perpetuation of Racial Segregation through Zoning, Funding, &

Tenanting Policies

FAIR HOUSING 101

C I V I L R I G H T S B E F O R E T H E C I V I L WA R

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Constitution / Bill of Rights (1787/1791)

o Protected slavery and legalized racial subordination

Dredd Scott Decision (1857)

o Formally excluded Black people from citizenship

FAIR HOUSING 101

C I V I L R I G H T S U N D E R R EC O N S T R U C T I O N

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Emancipation Proclamation (1863)

Granted freedom to slaves that escaped the Confederacy into the Union

13th Amendment (1865)

Abolished slavery

Civil Rights Act of 1866

Declared all people born in the United States as citizens, affirmed that all

citizens are equally protected under the law, and granted Black people the

right to enter into contracts and hold property.


Provided broad definition of citizenship; guarantees due process under the

law; requires equal protection under the law.


• Prohibited denying a citizen the right to vote based on that citizen's race, color,

or previous condition of servitude.

FAIR HOUSING 101

C I V I L R I G H T S F RO M 1 8 7 0 TO 1 9 6 4

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Plessy v Ferguson (1896)

SCOTUS decision that upheld racial segregation.

Jim Crow Laws

Enforced racial segregation in the South until 1965.

1957 Civil Rights Act

Established federal civil rights enforcement entities to monitor voter

suppression.

FAIR HOUSING 101

C I V I L R I G H T S A C T O F 1 9 6 4

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Prohibited discrimination based on race, religion, color, or national origin in

public places, schools, and employment

Outlawed employment discrimination on basis of race, religion, color, national

origin and sex (Title VI)

Made it illegal for any federally funded program to discriminate on the basis of

race, color, or national origin.

Applies to most housing programs funded by HUD.

FAIR HOUSING 101

C I V I L R I G H T S A C T O F 1 9 6 8 ( T H E FA I R H O U S I N G A C T)

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Title VIII of the 1968 Civil Rights Act is the Fair Housing Act (“FHA”)

Congress adopted the FHA six days after Martin Luther King was assassinated.

Protects people from discrimination when they are renting or buying a home,

getting a mortgage, seeking housing assistance, or engaging in other housing-

related activities.

Identifies seven protected classes from housing discrimination: Race; Color;

National Origin; Religion; Sex; Familial Status; Disability

Applies to landlords and real estate companies as well as other entities, such as

municipalities, banks or other lending institutions and homeowners insurance

companies

Outlaws coercion, intimidation, and harassment that interferes with a person’s

enjoyment of their housing.

Charges HUD as the agency responsible for enforcing the FHA.

Directs HUD program recipients to Affirmatively Further Fair Housing.

FAIR HOUSING 101

C I V I L R I G H T S A C T O F 1 9 6 8 ( T H E FA I R H O U S I N G A C T)

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Sex (1974)

The Act was amended in 1974 to prohibit sex-based discrimination.

Family Status (1988)

Children under 18 in the home

Disabled Persons (1988)

Protection of disabled persons by establishing design and accessibility provisions

for certain new multi-family units and also providing for reasonable

accommodations (1988)

Sexual Orientation & Gender Identity (2012)

The Fair Housing Act does not currently include sexual orientation and gender identity, but HUD identified ways that a gay person or a trans person may still find protection under the law.

FAIR HOUSING 101

N E W YO R K S TAT E FA I R H O U S I N G L AW

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New York State Human Rights Law (NYHRL)

Adopted in 1945 as the first state anti-discrimination law in the United States.

Prohibits housing and lending discrimination, as well as many other different

forms of discrimination.

Includes protected classes that are also covered by Fair Housing Act.

o Race

o Sex

o Disabled Persons

Includes protected classes that are not covered by Fair Housing Act.

o Marital status

o Age (18 and older)

o Military status

o Creed (Religious Belief)

o Sexual orientation (added in 2002)

o Gender identity or expression (added in 2019)

o Source of Income (2019)

FAIR HOUSING 101

C O U N T Y FA I R H O U S I N G L AW S

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Nassau County Human Rights Law

Protected classes include race, creed, color, national origin, ethnicity, gender, religion,

source of income, sexual orientation, age, marital status, familial status or disability.

Suffolk County Human Rights Law Protected classes include Race ; Color ; Creed ; National Origin; Gender; Disability; Age;

Marital Status ; Sexual Orientation; Marital Status ; Alienage & Citizenship ; Veteran Status; Military Status ; Status as a Victim of Domestic Violence ; Arrest/ Conviction Record (Employment Only); Lawful Source of Income.

Long Island Workforce Act

Mandates local to require developers to make 10 percent of their housing “affordable”

o Applies to developments with 5 or more units

o Developers must receive in exchange for a density bonus of at least 10 percent over the density permitted

under the existing zoning scheme.

o Affordability under the Act is set at 130% of the “area median income” or “AMI”

o Developers can build the affordable units in the main development, in another development in the

jurisdiction, or choose to pay a fee in lieu of constructing the affordable units.

FAIR HOUSING 101

FA I R H O U S I N G E N F O R C E M E N T C H A N N E L S

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HUD Office of Fair Housing and Equal Opportunity o Fair Housing Assistance Program o Fair Housing Initiatives Program o HUD Office of General Counsel

Department of Justice o Housing and Civil Enforcement Section

New York State Fair Housing Enforcement Agencies

County Human Rights Commission

Courts

FAIR HOUSING 101

FA I R H O U S I N G C O M P L I A N C E S TA N DA R D S

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Disparate Treatment Definition

Intentionally treating one protected class different from another Examples

Preventing someone from getting housing Treating one renter or buyer differently Denying someone the right to buy or rent a home even when they can afford it

Disparate Impact Definition

Adopting a policy that does not explicitly discriminate but has a negative effect on a protected class regardless of intentional intentionality

Examples Requiring an advanced degree for a job that does not require it.

HUD Disparate Impact Rules (2013), (2020), (2021)

Affirmatively Further Fair Housing Previously undeveloped aspect of Fair Housing Law Manifested in Analysis of Impediments Requirement Redefined in 2015 to mean means taking meaningful actions that, taken together, address

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.

FAIR HOUSING 101

PA RT I I : FA I R H O U S I N G D I S P U T ES

G A R D E N C I T Y Z O N I N G C O N F L I C T

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CONTEXT

Demographic Composition of Garden City vs. Hempstead

Total population 22,000 people; 93% White; Median Income 143K;

Neighboring area of Hempstead: 54,000 people, 7% White; Median Income is 55K

“While constituting 14.8% of all households in Nassau County, African-Americans and

Hispanic represented 53.1% of the County's "very low" income, non-elderly renter

households. In addition, African-Americans made up 88% of the County's waiting list

for Section 8 housing.”

Housing Inventory

Garden City had no affordable housing.

Political Context

Garden City repeatedly declined to join the Nassau County Urban Consortium, a group

of municipalities in Nassau County that are eligible to receive federal funding to

support affordable-housing development.

FAIR HOUSING 101


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PLANNING HISTORY May 2002: Nassau County announced that it had decided to sell the former Social Services building, which lies

between Washington Avenue and County Seat Drive, and approximately 25 acres of surrounding land.

o The site was originally zoned for public use

o The County hoped to receive at least $30 million for the property.

June 2002: at the County's request, Garden City began the process of rezoning the Social Services Site.

May 2003: Planning firm develops a proposal to rezone the site as “RM” allowing for 311 units of multi-family

housing.

November 2003: Garden City’s Village Board accepted the RM Zoning. Garden City residents attend public

hearings and begin to oppose the zoning and possibility of affordable housing.

June 2004: Garden City changes course instead of adopting the RM Zoning Code, adopts an “RT” zoning code

for the site that would allow for 96 single-family homes or 150 Townhomes and only 36 multi-family units.

July 2004: Nassau County issued RFP for the site

o NYACH issued a response for 2,000 units (2/3 affordable) that is rejected

o County awarded development rights to Fairhaven properties for $56 million

FAIR HOUSING 101


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LAWSUIT

May 2005: Housing organization, Association of Community Organizations for

Reform Now, or Acorn, sued Garden City (and also Nassau County) after the

village shifted courses on zoning and Nassau County failed to prevent the

discrimination.

o Plaintiff claimed that the zoning violated the Fair Housing Act, the Civil

Rights Act of 1866, Civil Rights Act of 1871, and Title VI of the Civil Rights

Act of 1964 because it would prevent affordable housing from being built,

which would likely be occupied by minorities.

o Plaintiffs argued that Nassau County's actions and policies in steering

affordable housing to certain communities violated its obligations under

Title VI of the Civil Rights Act not to discriminate in the administration of

federal funding, and under Section 808 of the Fair Housing Act to

affirmatively further fair housing.

FAIR HOUSING 101


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LEGAL OUTCOME

December 2013: Federal district court ruled that zoning’s effect violated Fair

Housing Act and Constitution’s Equal Protection Clause of the 14th Amendment

April 2014: Judge rules that Garden City must:o Rezone the site for multi-family housing if it pursues a redevelopment strategy for it or…set

aside 10% of future multi-family housing of buildings more than 5 units as affordable housing

o Conduct annual in-person fair-housing training for all elected officials and housing employees

o Enact a Fair Housing Resolution to “assure equal housing opportunities and

nondiscrimination in its zoning and other land use processes.”

o Garden City and its trustees enjoined from violating fair housing laws in the future.

o Hire an independent third party Compliance Officer and pay for all remedial measures.

o Join the Nassau Urban County Consortium, which disburses federal housing and community

development funds.

FAIR HOUSING 101


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SETTLEMENT TERMS

March 2019: The settlement, approved by the Nassau County Legislature on March 11,

2019, includes:o Payment of $5.4M to MHANY for purposes of affordable housing development and $120,000

in funds to civil rights advocacy group NYCC for educational programs;

o Allocation 1/4 of the County’s housing grants from the HOME Investment Partnerships

program, totaling approximately $450,000 per year for at least three years for-profit and not-

for-profit developers seeking to build mixed-income rental housing in high opportunity areas,

such as those with ample access to transportation and high performing schools;

o Production of Development and Outreach Plan examining how, where, and by whom mixed-

income housing can be developed within the County. The plan will include a model zoning

ordinance.

o Issuance of RFPs for Sale of County Owned Land for the purposes of building Mixed-Income

Housing

o Development and implementation of a Fair Housing Education Plan

o Pledge to Abide with Fair Housing and Not Discriminate

o Guidance to the independent local governments within the County’s borders—its cities,

towns, and villages—as they develop zoning and land use regulations based upon the unique

circumstances of each local jurisdiction.

FAIR HOUSING 101

W ES TC H ES T E R C O U N T Y C O N F L I C T O V E R H U D A L LO C AT I O N S

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CONTEXT

Westchester County received federal housing funds from several HUD programs including

the Community Development Block Grant Program.

Under the provisions of the Housing and Community Development Act, the County is

required to affirmatively further fair and affordable housing by reporting the how the

County is managing funds, performing an Analysis of Impediments to Fair Housing Choice,

and taking action to overcome these impediments.

CLAIM

April 2006, a non-profit organization, the Anti-Discrimination Center (“ADC”) brought a

whistleblower federal lawsuit in the Southern District court against Westchester County

under the federal False Claims Act.

ADC charged that Westchester County:

o Fraudulently or falsely certified compliance with the Fair Housing Act by accepting $52M in federal

development grants under false pretense over a period of 6 years.

o Failed to consider race-based impediments to fair housing,

o Failed to truly affirmatively furthered fair housing.


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EVIDENCE OF DISCRIMINATION

ADC’s main argument was that Westchester concentrated affordable housing in lower

opportunity areas while failing to build affordable housing in higher opportunity areas.

o Higher opportunity areas are disproportionately white, affluent, and anchored by

strong schools.

o In many of these areas, African Americans comprise less than 3% of the population

and Hispanics less than 7%.

o There is not affordable housing in these communities

o HUD monies are not being used to build affordable housing in these communities

o Racial minorities are disproportionately lower income and therefore in greater

need of affordable housing

Therefore, ADC contended, Westchester localities are not affirmatively furthering fair

housing and as a result, racial minorities are impeded from securing affordable housing

in many Westchester Communities.

FAIR HOUSING 101


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TERMS OF SETTELEMENT (2009)

Westchester County Agrees to:

(1) Make Financial Commitments to Affordable Housing Development

(2) Construct Units that Affirmatively Further Fair Housing

(3) Promote of A Model Inclusionary Housing Ordinance that Advances Fair

Housing

(4) Complete of a Satisfactory Analysis of Impediments that Included Zoning

Barriers and Housing Needs Assessment

(5) Affirmatively Market Affordable Housing within the County and in areas close

the County that have large non-white population.

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COMPLIANCE WITH SETTELEMENT (2021)

(1) Financial Commitments

(2) Construction of Housing Units that Affirmatively Further Fair Housing

As of January 2021, Westchester has “completed” 723 of the 750 units representing 96.4% of obligations

(3) Promotion of A Model Inclusionary Housing Ordinance that Advances Fair Housing

19 out of 31 eligible municipalities adopted Model Ordinance provisions; two other municipalities adopted

similar zoning provisions

None of the communities adopted all elements of the ordinance

County undertook substantial efforts to promote the ordinance and encourage its adoption:

o Conditioning funding on adoption of the model provisions

o Sending letters to towns and villages that failed to adopt the ordinance

o Advocating for adoption of the ordinance in meetings, seminars, and symposia

o Participating in public forms to discuss the model provisions.

(4) Completion of a Satisfactory Analysis of Impediments that Included Zoning Barriers

Multiple rejections (10) of the AI by HUD over the course of 8 years; HUD blocked release of CDBG monies in

2013 ($7 million) and 2014 ($5 million); Litigation over the AI (2013 and 2015)

Ongoing dispute over zoning analysis

2017: HUD accepts the AI; Completion of Housing Needs Assessment in 2019

(5) Affirmatively Market Affordable Housing within the County and in areas close the County that have large non-white

population.

County devoted significant resources (more than $1M) to affirmatively market new units including

advertisements in local newspapers, hosting an annual Fair and Affordable Housing Expo, maintaining a website

dedicated to affordable housing, and other marketing efforts. FAIR HOUSING 101

N E W YO R K C I T Y C O N F L I C T OV E R C O M M U N I T Y P R E F E R E N C ES

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Context Since the early 1980s, New York City has administered affordable housing lotteries in which

priority is given for residents of the community district in which the affordable unit is

available.

Currently, 50% of the units in a new affordable housing building will be made available to

residents of the associated community district regardless of their share of the total number

of applicants or the length of time they have resided in the community district.

Advocates of Community Preferences contend that the current policy… Addresses local housing needs

Precludes displacement from gentrification

Ensures racial equity

Guarantees political support for affordable housing

Critics of Community Preference contend that the current policy… New Yorkers want housing outside of their current neighborhoods

New affordable housing does not create displacement

Racial equity is not served by continuing patterns of segregation

Political support for affordable housing is not a defense for unfair housing lotteries

Lawsuit

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Lawsuit

In 2015, the Anti-Discrimination Center (“ADC”) filed a lawsuit against the City of

New York and charged that the policy constitutes both disparate treatment and

disparate impact on racial minorities in violation of the Fair Housing Act.

Both the plaintiff and the City conducted demographic analyses and reached

different conclusions.

o While the City contended that residential preference did not result in adverse

impacts to racial minorities, the plaintiff’s socio-spatial analysis suggested

that the policy had the effect of perpetuating segregation and depriving racial

minorities access to affordable units located in areas with a higher

representation of white households.

The case is still pending.

FAIR HOUSING 101

PA RT I I I : FA I R H O U S I N G B ES T P R AC T I C ES

FA I R H O U S I N G B E S T P R A C T I C E S

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Best Practice #1: Analyze Housing Needs Now

1) Study population and demographic patterns

2) Inventory & map different kinds of housing units (single-family/ multi-family;

rentals/owner- occupied; market-rate/cost-assisted) across the county and within

each locality

3) Analyze housing cost burdens across income levels and demographic groups

4) Identify housing gaps based upon data as well as interviews

5) Identify regulatory, financing, legal, and administrative barriers to filling housing

gaps including lapses in fair housing compliance

6) Formulate county housing action plan

7) Link housing action plan with three parallel efforts:

a. Consolidated plan (every five years)

b. AFFH certification (format TBD)

c. County economic development strategy

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Best Practice #2: Plan for Housing Supply Increases and Rehabilitation

1) Identify parts of the County most appropriate for housing development based

upon:

a. Existing land use and development patterns

b. Sectoral patterns

c. Transit access

2) Work collaboratively with localities on identifying parcels ripe for infill

development and/or rehabilitation.

Best Practice #3: Adopt & Promote Housing Laws

1) Update County Fair Housing / Human Rights laws to be consistent with New York

State Law

2) Help Localities update their own human rights laws

3) Draft model ordinances

a. Inclusionary Zoning

b. Accessory Units

c. Adaptive Reuse

d. Non-conforming Use

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Best Practice #4: Fund Housing Development

1) Establish clear requirements for fair housing compliance as a pre-condition for funding

awards

2) Align funding decisions with outcomes of Housing Needs Assessment

3) Used funding programs to achieve multiple housing goals.

Best Practice #5: Market Affordable Housing Units

1) Follow the guidance on marketing from HCR AND FUD

2) Ensure robust outreach to populations least likely to apply

3) Avoid geographic preferences

Best Practice #6: Educate Localities about Fair & Affordable Housing

1) Publish fair housing information on County website including fair housing laws and conflicts

2) Create multijurisdictional housing coalitions that include localities, housing advocates,

developers, landlord groups, and tenant associates

3) Partner with coalition members to generate online and in-person symposium, lectures,

information sessions

4) Evaluate local land use decisions (subdivision approvals, comprehensive planning updates,

zoning decisions) in accordance with County Housing Needs Assessment.

5) Provide formal opinions to localities on perceived non-compliance with fair housing laws.

FAIR HOUSING 101

Documents

Fair Housing 101 for County Governments