Fresh Critique Of SEWRPC's Housing Study Plan: Guest Posting

Kayrn Rotker, senior attorney with the ACLU of Wisconsin, lays out some problems with the housing study plan proposed by the Southeastern Wisconsin Planning Commission.

The context is a letter to SEWRPC's staff.

Ir should be noted that in 2008, the ACLU filed two civil rights complaints with federal agencies alleging discrimination in SEWRPC hiring and transportation decision-making.

Those complaints are pending, as is the quadrennial performance review of SEWRPC by federal transportation officials.

Ben McKay
Planner, Housing Study
Southeastern Wisconsin Regional Planning Commission
P.O. Box 1607
Waukesha, WI 53187‑1607

ALSO TRANSMITTED VIA FAX, (262) 547‑1103

RE: Housing Study Scope

Dear Mr. McKay:

I am writing to express some concerns regarding the draft Housing Study Scope. While the Scope provides a good basis to begin the study, it is important to recognize that research has shown that affordable housing does not automatically or necessarily result in fair housing. To ensure that the Housing Study facilitates fair housing, as well as affordable housing, these issues must be addressed.

I am unable to attend the initial meeting of the Housing Advisory Committee, but request that you share this letter and my concerns with Committee members, as well as with the Environmental Justice Task Force.

1) Information:

As a starting point, it is critical to acknowledge that the Milwaukee-Waukesha metropolitan region is, overall, the most racially segregated region in the United States for African-Americans, and in the top third of the most racially segregated large metropolitan areas in the United States for Latinos.[1]

However, while the Housing Study scope makes vague references to collecting demographic information, it fails to explicitly acknowledge, or make plans to gather information on, racial disparities. Moreover, it cannot be assumed that the reason for racial residential disparities is solely economic: for example, throughout the region low-income whites are more likely to live in middle-class neighborhoods, while higher income African-Americans are more likely to live in low-income neighborhoods.[2] In addition, it is crucial that the study gather data not only on overall demographic patterns, but on the variations in those patterns in different local communities.

HUD publications provide guidance on the kind of information that needs to be collected to conduct a meaningful demographic analysis.[3] Relevant information includes, but is not necessarily limited to:

Demographic data on each jurisdiction=s population and housing[4];

Mortgage and rehabilitation lending patterns by race and ethnic group;

Availability of accessible housing stock for persons with disabilities[5];

Results of fair housing testing activity, if available;

Occupancy requirements that might unlawfully limit housing for families with children or for group homes; and

Geographic patterns related to the use of housing choice vouchers and the siting of assisted housing.[6]

In addition, given the current housing crisis, it seems important that the Study also evaluate foreclosure patterns, including the demographics of persons who have lost their homes.

2) Housing Segregation Issues and Remedies:

Throughout the Draft Scope, there appears to be inadequate attention to, and a misconstruing of, factual and legal issues relating to housing discrimination. There is also no articulation of methods to address any housing discrimination or segregation that exists. The concerns, and suggested responses, are as follows:

The definition of the problem@ section limits its concern to housing discrimination in the rental market.

Housing discrimination is not simply discrimination in the rental market. Discrimination in the housing purchase market - including but not limited to – racial disparities in mortgage lending (in which the region routinely leads the United States[7]), predatory lending, and other forms of discrimination - is also part of the problem. In addition, discrimination against facilities such as group homes - which may not be owner occupied, but are also not traditional Arental@ housing - also may exist, but is not discussed.

The section on discrimination talks only about “reported” discrimination, implying that a lack of reported discrimination equates with a lack of fair housing violations.

As HUD itself has made clear, a lack of complaints does not necessarily mean that discrimination has not occurred. It can also mean that there is no adequate investigative entity; that the public is unaware of its housing rights or recourse; or that members of protected classes lack confidence in the investigative entity.[8]

The section on local land use controls appears to assert (incorrectly) that actions that have a discriminatory effect are not unlawful.

Actions that have the effect of discriminating against persons of color and/or persons with disabilities - regardless of whether those actions are based on discriminatory intent - are also unlawful.[9]

There is no acknowledgment or discussion of legal requirements that exist for local communities to affirmatively further fair housing and affirmatively market housing, not just refrain from discrimination.

For example, any community that receives funding from certain federal sources - including the Community Development Block Grant program, from which most, if not all, communities in the region benefit - is legally obligated to “affirmatively further fair housing.[10]” Affirmatively furthering fair housing means that a jurisdiction will conduct an analysis to identify impediments to fair housing choice within the area and take appropriate actions to overcome the effects of any impediments identified through that analysis.[11] The duty to affirmatively further fair housing entails more than just refraining from overt discriminatory practices.[12] Therefore, the Housing Study must review and evaluate these requirements, including the extent to which each jurisdiction that receives funding from any of these sources is or is not in compliance with the requirements, and methods to ensure that communities are in fact Aaffirmatively furthering fair housing.

In addition, recipients of other forms of federal funding must engage in “affirmative marketing.[13]” Affirmative marketing generally means that the funding recipient must take actions including developing procedures to be used by owners to inform and solicit applications from persons in the housing market area - including persons of under-represented racial groups - who are not likely to apply for the housing without special outreach (e.g., use of community organizations, places of worship, employment centers, fair housing groups, or housing counseling agencies).

Again, the Housing Study must review and evaluate these requirements, including the extent to which recipients are in fact complying with them and what steps must be taken to increase or ensure compliance.

Finally, it is a serious concern that the Scope contemplates making recommendations only on “affordable” housing, without addressing or suggesting recommendations to remedy housing discrimination and segregation.

As stated throughout this letter, fair housing is not identical to affordable housing.

Remedying the latter will not automatically resolve the former problem. Fair housing concerns must be explicitly raised and clear and concrete solutions proposed to remedy them.[14]

I anticipate that the Study scope will be amended to address these crucial fair housing matters.

Sincerely,

Karyn L. Rotker
Senior Staff Attorney

cc: Ken Yunker, Executive Director

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[1]“Residential Segregation of Blacks or African Americans: 1980 to 2000,” U.S. Census Bureau (Dec. 2004) (Ch. 5, 6) (see http://www.census.gov/hhes/www/housing/housing_patterns/pdftoc.html).

[2]See, e.g., Logan, John, “Separate and Unequal: The Neighborhood Gap for Blacks and Hispanics in Metropolitan America,” Lewis Mumford Center (SUNY-Albany, Oct. 15, 2002), Sources of Neighborhood Inequality for Metropolitan Milwaukee PMSA (In metropolitan Milwaukee, the median income of neighborhoods in which poor whites live was $45,014 - higher than the median income of neighborhoods in which affluent blacks ($35,111) and affluent Hispanics ($43,049) live.)

[3]See, e.g., U.S. Dept. Of Housing & Urban Development, “Top Seven Keys to Affirmatively Further Fair Housing,”
www.hud.gov/offices/cpd/communitydevelopment/toolkit/files/Module‑5‑TopSevenAFFH.pdf

[4]Given the regional racial segregation and barriers to housing for persons with disabilities in the region, race, ethnic, and disability-related demographic information must be collected.

[5]This information should be disaggregated by age, as well as by race and ethnicity. For example, even if there is accessible housing for seniors, physically accessible housing for non-seniors, especially those needing family housing, may not be available. Persons with different types of disabilities - e.g., physical, mental, sensory – also may require different types of housing, so data on the prevalence of particular disabilities should also be collected. An analysis should also be undertaken of the residential locations of persons who receive or are on the wait list to receive county or other disability support services, to ascertain the communities in which additional supportive housing may be required.

[6]Again, this needs to be disaggregated by age, as some communities are willing to accept affordable senior housing, but not affordable housing for younger persons. In addition, the racial demographics of assisted housing - including assisted senior housing - must be evaluated.

[7]See, e.g., “Income is No Shield Against Racial Differences in Lending,” National Community Reinvestment Coalition (2008) (Milwaukee-Waukesha led the United States in overall disparities; and disparities exist between loans made to middle/upper income persons of color as compared to loans made to middle/upper income white persons).

[8]ATop Seven Keys to Affirmatively Further Fair Housing,@supra.

[9]See, e.g., 24 C.F.R. ' 570.904(a)(1) (ii) (noncompliance with the law can exist based upon Aevidence that a policy, practice, standard or method of administration, although neutral on its face, operates to deny or affect adversely in a significantly disparate way . . . fair housing to persons of a particular race, color, religion, sex, or national origin. . .@); Metropolitan Housing Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1238 (7th Cir. 1977). Because minority communities in the region tend to have lower incomes, and thus greater need for affordable housing, than non-Hispanic white persons, actions that have the effect of preventing the construction of affordable housing (e.g., zoning and subdivision issues, NIMBYism), have a prohibited discriminatory effect.

[10]While “fair housing” may overlap with “affordable housing,” the terms - and the problems raised by each - are not identical, and cannot be analyzed as if they were the same. See, e.g., U.S. ex rel. Antidiscrimination Center of Metro New York v. Westchester County, New York, No. 06 Civ 2860 (S.D.N.Y., Opinion and Order of Feb. 24, 2009) (studies were improperly “conducted through the lens of affordable housing, rather than fair housing and its focus on protected classes such as race. . .. [A] determination that affordable housing is the greatest impediment does not absolve the County from its requirement to analyze race-based impediments to fair housing...”).

[11]See, e.g., 24 C.F.R. Sec. 91.225(a)(1) (consolidated plans); 24 C.F.R. Sec. 91.425(a) (consortia); 24 C.F.R. Sec. 570.303 (CDBG); 24 C.F.R. Sec. 960.103(b) (public housing agencies); 24 C.F.R. Sec. 982.53(b)(2) (Section 8).

[12]See, e.g., Comer v. Cisneros, 37 F.3d 775, 792 (2nd Cir. 1994) ; N.A.A.C.P. v. Secretary of Housing and Urban Development, 817 F.2d 149 (1st Cir. 1987.)

[13]See, e.g., 24 C.F.R. 92.351 (HOME program); 24 C.F.R. Sec. 511.13 (rental rehabilitation grants); 24 C.F.R. Sec. 850.1 (Housing development grant program).

[14]HUD has prepared a “Fair Housing Planning Guide,” which is a resource that could be useful in developing fair housing recommendations. www.hud.gov/offices/fheo/images/fhpg.pdf