“Housing is a necessary of life.”
Block v. Hirsch, 256 U.S. 135, 156 (1921)
(per Justice Oliver Wendell Holmes, Jr., writing for U.S. Supreme Court)
Adequate housing whose cost is affordable is a basic human need. Yet, tens of millions of low- and moderate-income Americans do not have the opportunity to buy, rent, or build such housing within a reasonable distance from where they work. The Equitable Housing Institute (EHI) is a charitable, legal services organization that provides education and “impact” legal services to reduce homelessness and poverty in the United States by increasing housing affordability.
EHI focuses on legal and policy ("regulatory") barriers to affordability, sometimes called "exclusionary housing policies." According to the Harvard University Joint Center for Housing Studies: "State and local regulations are among the principal culprits behind the nation’s persistent affordability problems.”
Regulatory barriers include exclusionary zoning policies--such as requirements for large lots and home sizes that dominate many American suburbs. Federal commissions created under both Democratic and Republican Presidents have found that suburban zoning ordinances often have created major barriers to housing affordability. Those barriers are increasingly significant because most jobs now are located in the suburbs.
Other common regulatory barriers include unjustified taxes, fees, exactions, and subdivision requirements on development of needed, moderately-priced housing. Often, regulatory barriers completely nullify efforts to provide such housing. In other instances, they impose excessive costs on it, causing prices to exceed construction costs by 40-50 percent and sometimes many times that much. The added costs severely limit the amount of moderately-priced housing that can be provided.
So, regulatory barriers are a major cause of housing shortages, chronic hyper-inflation in housing costs, housing "bubbles" and severe housing market contractions. Those barriers result in increased homelessness and poverty. For example, the U. S. Conference of Mayors regularly identifies shortages of affordable housing as a leading cause of homelessness in cities across the United States.
Also, regulatory barriers often prevent housing from being provided reasonably close to where people work and obtain basic services. That aggravates suburban sprawl--which causes excessive automobile commuting, traffic congestion, use of motor fuels, road building, air pollution, and environmental degradation deep into previously rural areas.
For further background information, please click on topics in the Background menu on this page.
Loudoun County (Virginia) needs major housing growth to meet challenge of Metrorail
The Washington, DC, area’s Metrorail (commuter rail) system is coming to Loudoun County, Virginia. Metrorail brings opportunities for needed housing growth, along with the additional commercial growth that Loudoun seeks. The County is planning for new development near the two stations, which currently are scheduled to open in late 2019.
EHI has studied Loudoun’s housing needs related to Metrorail and completed an extensive report on November 4, 2015. To read it, please click on Loudoun County’s Metrorail-Related Housing Needs.
UPDATE, JUNE 2016: Loudoun County’s Dept. of Planning and Zoning’s (DPZ) presented its draft land use plan for the Metrorail areas (“Silver Line Small Area Plan”) at a public workshop on June 29. DPZ forecasts enough housing units by 2040 to balance the tremendous number of new and existing jobs in those areas. DPZ’s approach is consistent with the public’s input on the Metrorail planning, with good planning principles, and with the facts on the ground—as documented in EHI’s report mentioned above, which EHI submitted to DPZ in November 2015. For specifics on DPZ's draft plan and on many other recent developments in Loudoun's Metrorail-area planning, please click on Loudoun Metrorail-area planning update--June 2016.
EHI helps its Local Emphasis Area--the Washington, DC,
region--achieve much-improved rental cost record
Recent data confirms the trend of the last several years in the Washington, DC, area, of substantially lower rent increases than in most comparable housing markets nationwide. That trend is especially helpful to low- and moderate-income people because, for example, most of them are renters rather than homeowners, and their housing costs tend to consume much more of their incomes.
Major increases in the area’s supply of newly completed, and planned, multifamily housing units seem to be an important factor in the trend. A recent dip in the area’s economy is another factor, but it no longer seems to be a major one. Other important factors include the area’s sizeable nonprofit, housing development sector; its rich array of large national and local nonprofit organizations concerned about low-income housing; the presence of many federal housing-related agencies, and the research resources of several major universities in the area.
We believe EHI is an important factor too. The DC area is EHI’s home base and its local emphasis area. Although still relatively new and small, EHI has engaged in vigorous education and advocacy there, since its founding in 2008, to loosen unwarranted restrictive zoning and other exclusionary housing policies of local governments. Those restrictions have seriously limited the supply of housing affordable to low- and moderate-income people.
For example, EHI changed the dynamics of Fairfax County’s planning for major redevelopment around several new Metrorail (commuter rail) stations in Reston and the western edge of the County, which plan for upwards of 45,000 new workers by 2040. More than 15,000 additional housing units were put in those plans after EHI became involved, following the initially proposed residential development levels.
Those additional units amount to more than half the total number of new housing units planned in the four transit station areas involved. The plans ultimately adopted by Fairfax County for the three Reston stations call for enough new housing to accommodate as many workers as are expected to join Reston’s workforce. At least 1,900 of those units—and perhaps upwards of 2,700—will be affordable to low- and moderate-income people, under Fairfax County’s inclusionary housing requirements for large, new residential buildings.
In addition to its active involvement in local planning and zoning, EHI has explained the local problems and solutions in letters printed on the editorial page of the Washington Post, and in articles such as this one on EHI’s website.
The recent improvement in the trajectory of rents in the DC-area housing market has coincided with the emergence of EHI as a force locally. Much more remains to be done to make the pricey DC area affordable to low- and moderate-income renters, however. To see a detailed discussion of DC-area rental housing cost issues, click on EHI HELPS ITS HOME REGION TO MUCH-IMPROVED RENTAL HOUSING COST RECORD.
"Fight Exclusionary Zoning to Make Headway Against Inequality"—Inside Philanthropy
EHI called “one obvious candidate for funding”
A recent article in Inside Philanthropy urges funders to support EHI’s efforts to break the grip of exclusionary zoning and other exclusionary housing policies on housing opportunities for low- and moderate-income people. Kiersten Marek, Memo to Funders: Fight Exclusionary Zoning to Make Headway Against Inequality, Inside Philanthropy (March 3, 2015), posted at: http://www.insidephilanthropy.com/home/2015/3/3/memo-to-funders-fight-exclusionary-zoning-to-make-headway-ag.html.
The article notes that the harmful grip of exclusionary housing policies is especially evident in the suburbs, where most jobs now are located.
. . . Seventy-five percent of extremely low-income families now spend more than 50 percent of their income on housing, and affordable housing is incredibly scarce in middle and high income communities where the best public schools often are.
One result is that families of color are often trapped in poor neighborhoods with poor schools, and racial segregation in K-12 is as bad as ever in many places. In fact, right now, New York State—with its high housing costs and stratified communities—has the most segregated schools in the entire country.
The article points out that a “big reason for a scarcity of affordable housing, and more integrated U.S. communities, is exclusionary zoning laws, which block high-density housing in largely affluent white suburbs, keeping out people of color and low-income people in general.” Inside Philanthropy urges funders to “realize that residential stratification, and the legal regime that supports it, is a key driver of inequality, particularly in education,” and to “get more serious about addressing this problem.”
And one obvious candidate for funding? Thomas Loftus and the Equitable Housing Institute. With the organization's detailed research on housing law, and its ability to help municipalities take a hard look at their assumptions and priorities, EHI has an important role to play in the fight for fair housing.
[Emphasis added] To read the very insightful article in its entirety, you may click on the link above.
U.S. Supreme Court rules that housing practices with
disproportionate, adverse impact on minorities may violate
federal Fair Housing Act, regardless of intent
On June 25, 2015, the U.S. Supreme Court ruled that the federal Fair Housing Act (“FHA,” 42 U.S.C. § 3601 et seq.,) prohibits housing practices that have a disproportionately adverse effect on members of minority groups—unless those practices have a justifiable purpose and properly limited scope. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project (ICP), No. 13–1371 (June 25, 2015).
In a 5-4 decision, the Court held that discriminatory intent is irrelevant to whether such a “disparate impact” violation exists. The Court also explained what a litigant must show in order to prove, or, conversely defend against, an alleged violation. The Court’s decision applies both to government officials and private persons.
The FHA’s prohibition on practices that have such a “disparate impact” is an important basis for challenging exclusionary housing policies, because those policies often have much greater adverse impacts on minority group members than on the overall population. The Court stated:
These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability.
(Slip op. at 17) The Court’s opinion, authored by Justice Kennedy, clarified the elements of a disparate impact housing violation, which had been stated somewhat differently by certain lower courts. The Supreme Court essentially adopted the statement of those elements in the recent rule issued by the U. S. Department of Housing and Urban Development (HUD), regarding such cases.Implementation of the Fair Housing Act’s Discriminatory Effects Standard: Final Rule, 78 Fed. Reg. 11460 (2013) (codified at 24 CFR §100.500).
HUD’s formulation involves the same kind of burden-shifting approach the Court has formulated for other anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 (equal employment opportunity). Thus, a person complaining of alleged housing discrimination (“plaintiff”) has the initial burden of proving “that a challenged practice caused or predictably will cause a discriminatory effect.” 24 CFR §100.500(c)(1) (2014).
If a plaintiff makes that showing, the burden shifts to the defendant to prove “that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.”Id., §100.500(c)(2). If the defendant makes its showing, the plaintiff still can “prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.” Id., §100.500(c)(3).
To see the Supreme Court decision and/or HUD rule in their entirety, click on the hyperlinks above.
EHI publication shows how exclusionary housing policies are linked to deficiencies in low-income children's health, education, and general development
Many studies have found that housing problems—such as unsafe and unhealthful conditions, unaffordable housing costs, and neighborhoods isolated from high-performing schools and health facilities—are linked to increased developmental problems among low-income children. (Those children live in households that have incomes of 80 percent or less of their area’s median income.) Among the aspects of development involved are children’s health (physical, mental and emotional), safety, educational achievement, and general cognitive and behavioral development.
Because exclusionary housing policies raise major barriers to the production and preservation of adequate amounts of suitable housing, those policies:
- substantially increase the number of low-income children who must live in unsafe, unhealthful, and/or overcrowded housing conditions, and in decaying and/or unsafe neighborhoods;
- isolate many such children, and their neighborhoods, from most economic opportunities, and from high-performing schools and health facilities; and
- raise housing prices (by 20 to 50 percent in many major metropolitan areas), making those prices unaffordable to low- and moderate-income families with children—thus causing economic instability in those families, and many involuntary, disruptive moves (usually to poorer neighborhoods).
EHI has prepared a memorandum summarizing how exclusionary housing policies aggravate housing problems that have been linked to those adverse effects. (To access EHI’s memorandum in its entirety, please click CHILDREN'S DEVELOPMENT & XHPs.) EHI concludes that eliminating exclusionary housing policies is a crucial step toward improving low-income children’s development.
EHI’s analysis is based on an important new report by the U.S. Department of Housing and Urban Development (HUD) that summarizes in detail existing studies of housing and children’s development. (HUD PD&R, Evidence Matters: Housing’s and Neighborhoods’ Role in Shaping Children’s Future (Fall 2014) (“HUD 2014”), posted at: http://www.huduser.org/portal/periodicals/em/EM_Newsletter_fall_2014.pdf).
EHI examines evidence that regulatory barriers to housing affordability have interstate effects and explores potential federal remedies
A number of recent studies indicate that regulatory barriers to housing growth and affordability in some of the nation's wealthier states are interfering with the ability of low- and moderate-income Americans to move into those states for better economic opportunities. EHI is examining whether Congress would have the authority to prohibit unwarranted state and local regulatory restrictions on housing supply ("exclusionary housing policies") that have interstate effects.
Economic analyses have shown that housing prices have become excessively high, compared to construction costs, in a large and increasing number of major metropolitan areas across the United States in recent decades. (For more on those analyses, see ECONOMIC EFFECTS OF EXCLUSIONARY HOUSING POLICIES.)
For example, between 2001 and 2011, there was a 49 percent increase in the number of households that paid more than 50 percent of their pre-tax income for housing. More than 20 million American households paid more than 50 percent on housing costs by 2011. (Harvard Univ. Joint Center for Housing Studies, State of the Nation's Housing 2013, p. 27.) The vast majority of those households were low-income.
Exclusionary housing policies have been largely responsible for the increasing disconnect between housing prices and construction costs. To access EHI's initial summary of relevant studies and legal considerations, click on INTERSTATE EFFECTS OF RBHAs. To read about EHI's remarks on the subject at the National Housing Summit hosted by the Bipartisan Policy Center in 2014, click on EHI INPUT AT NATIONAL HOUSING SUMMIT.
OTHER RECENT ARTICLES
- Major report by McKinsey Global Institute finds that overcoming exclusionary housing policies is the most critical step in providing affordable housing--in the United States and around the world. For more, click on McKINSEY REPORT ON MEETING GLOBAL HOUSING AFFORDABILITY CHALLENGE.
- HUD issues Affirmatively Furthering Fair Housing Rule (July 2015), requiring greater consideration of exclusionary and other discriminatory housing conditions by federal housing fund recipients. For more, click on HUD issues AFFH Rule. To read the Rule itself, click on HUD, Affirmatively Furthering Fair Housing (AFFH): Final Rule, 80 Fed. Reg. 42,272, 42,352 (July 16, 2015).
- Recent Washington Post articles highlight serious, adverse effects of local housing and land use policies: see ROGER LEWIS ON REGULATORY BARRIERS, and AFFORDABLE RENTS FADING AWAY IN D.C. EHI has expressed similar views in letters printed by the Post--see EHI LETTERS IN WASHINGTON POST.
- EHI responds to Wall Street Journal article on new exclusionary policies in certain suburbs of Phoenix and Denver. For more, please click on WSJ on new exclusionary policies.
- One affordable housing unit per day is added to plans in EHI's home county, following EHI's advocacy, during its first five years. For more, please click on EHI's FIRST FIVE YEARS.
- EHI issues analysis of role of governmental land use planning in housing shortages and excessive costs. For more, please click on EHI ANALYSIS OF JOBS-HOUSING REPORT.
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