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<br />PLANNING COMMISSIONERS JOURNAL / NUMBER 78 / SPRING 2010
<br />PLANNING LAW PRIMER
<br />No Certification, No Money:
<br />THE REVIVAL OF CIVIL RIGHTS OBLIGATIONS IN HUD FUNDING PROGRAMS
<br />by Michael Allen, Esq.Editor’s Note: This short article provides an
<br />“early warning” alert on an important housing
<br />issue that may well affect your community.
<br />I hope you’ll plow through the acronyms and
<br />some of the legal background, as it’s a topic
<br />worth becoming familiar with.
<br />Since the late 1960s, states and
<br />municipalities receiving federal
<br />housing and community devel-
<br />opment funds – under the Community
<br />Development Block Grant (CDBG),
<br />HOME Investment Partnership (HOME),
<br />and similar programs – have been
<br />required to certify that they will comply
<br />with federal civil right laws. Many have
<br />done so without understanding what is
<br />required by these certifications, assum-
<br />ing that the U.S. Department of Housing
<br />and Urban Development (HUD) would
<br />not challenge their validity.
<br />Until recently, this assumption was
<br />largely correct, as HUD rarely questioned
<br />recipients on these issues and virtually
<br />never terminated or threatened to termi-
<br />nate funding. HUD simply did not press
<br />recipients to comply with their civil
<br />rights fair housing certifications. Conse-
<br />quently, from 1995 through 2009, hun-
<br />dreds of recipients bowed to NIMBY
<br />pressures,1 ignored their certifications,
<br />and spent billions of dollars in federal
<br />funds to segregate affordable housing by
<br />placing most of it in already disadvan-
<br />taged neighborhoods or communities.
<br />In just the past year, however, this sit-
<br />uation has begun to rapidly change – the
<br />result of a ground-breaking lawsuit
<br />against Westchester County, New York2 –
<br />and the Obama Administration’s interest
<br />in reviving civil rights enforcement.
<br />Under emerging HUD guidelines and a
<br />stepped-up agency enforcement policy,
<br />recipients of federal housing funds will
<br />be required to take a hard look at imped-
<br />iments to fair housing choice in their
<br />jurisdictions and propose robust actions
<br />to overcome them.
<br />This new environment will have a
<br />dramatic impact on communities across
<br />the country, whether they are one of the
<br />1200+ “entitlement jurisdictions” receiv-
<br />ing federal funds directly from HUD, or
<br />small cities or rural counties whose fed-
<br />eral funds are channeled through a state
<br />community development agency.3
<br />Civil Rights
<br />To be eligible for CDBG and related
<br />funds, state and local governments must
<br />certify that they will comply with a range
<br />of federal civil rights laws4 and “affir-
<br />matively further fair housing.” Since at
<br />least 1995, this last obligation, some-
<br />times referred to as “AFFH,” has required
<br />recipients to conduct an Analysis of
<br />Impediments (AI), in which they identify
<br />and analyze impediments to fair housing
<br />choice within their jurisdictions, and
<br />outline appropriate actions to overcome
<br />those impediments. HUD also requires
<br />recipients to maintain records support-
<br />ing the analysis and the actions taken to
<br />overcome impediments.
<br />HUD requires state and local govern-
<br />ments to use their AIs to list impedi-
<br />ments experienced by members of all
<br />seven protected classes,5 whether caused
<br />by intentional discrimination or by poli-
<br />cies and practices that have a harsher
<br />effect on members of a protected class
<br />than on those not in a protected class.
<br />Recipients, in their AI, must make an
<br />honest assessment of their own zoning,
<br />land use, building, and other ordinances
<br />that may decrease housing choice, and
<br />must design approaches that will coun-
<br />teract those negative effects. An AI is also
<br />required to look at impediments caused
<br />by private sector actors, including steer-
<br />ing in the sales and rental markets, dis-
<br />criminatory lending practices, insurance
<br />redlining, and similar practices.
<br />While recipients are encouraged to
<br />provide affordable housing, HUD makes
<br />clear that doing so does not fully satisfy
<br />the obligation to affirmatively further fair
<br />housing, where the focus is on eliminat-
<br />ing discrimination on the basis of pro-
<br />tected class and expanding housing
<br />opportunity regardless of income.
<br />Westchester County Goes Astray
<br />Westchester County ignored HUD
<br />regulations and guidance. County offi-
<br />cials had Census and other data showing
<br />that cities, towns, and villages in Westch-
<br />ester were dramatically segregated,6 and
<br />1 See, e.g., Michael Allen, “Why Not in Our Back
<br />Yard?” PCJ #45 (Winter 2002).
<br />2 United States ex rel. Anti-Discrimination Center v.
<br />Westchester County, New York, Case No. 06-cv-2860,
<br />U.S. District Court for the Southern District of New
<br />York (settled in August 2009). Pleadings, legal mem-
<br />oranda, court decisions, and other materials on the
<br />case are available at: www.antibiaslaw.com/wfc
<br />3 Because a significant portion of funds made avail-
<br />able to communities through the American Recovery
<br />and Reinvestment Act of 2009 (ARRA) are pro-
<br />grammed through the CDBG program, even “non-
<br />entitlement” jurisdictions and those that have never
<br />applied for funds from state CDBG or HOME pools
<br />will likely have to sign civil rights certifications prior
<br />to receiving ARRA funds.
<br />4 These include, but are not limited to, Title VI of the
<br />Civil Rights Act of 1964; the Rehabilitation Act of
<br />1973; the Age Discrimination Act of 1975; the Fair
<br />Housing Act; and Section 109 of the Housing and
<br />Community Development Act of 1974.
<br />5 The Fair Housing Act prohibits discrimination on
<br />the basis of race, color, religion, national origin, sex,
<br />familial status, and disability. People protected by
<br />RECIPIENTS OF FEDERAL
<br />HOUSING FUNDS WILL BE
<br />REQUIRED TO TAKE A HARD
<br />LOOK AT IMPEDIMENTS TO
<br />FAIR HOUSING CHOICE
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