Urban Lawyer

Promise Unfulfilled? Zoning, Disparate Impact, and Affirmatively Furthering Fair Housing

by Brian J. Connolly

Brian J. Connolly is an attorney at Otten Johnson Robinson Neff & Ragonetti, P.C., Denver, Colorado. He wishes to thank Professor John Nolon, Pace Law School, White Plains, New York and Heidi Aggeler, BBC Research and Consulting, Denver, Colorado for their review and insightful commentary on drafts of this article. Special thanks are also due to Alex Gano, law student at the University of Colorado Law School for his research and writing assistance.

ON JUNE 28, 2016 THE BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, COLORADO, a wealthy suburban county of approximately 325,000 residents near Denver, held a public meeting to determine whether the county should submit its annual action plan as required  to receive more than $700,000 in U.S. Department of Housing and Urban Development (HUD) funds for the Community Development Block Grant (CDBG) program.1 During the hour-long meeting, county staff informed the board of the benefits of HUD programs, and the initiatives that the county accomplished as a result of the program.2 Despite these benefits, at the end of the meeting, the board voted to decline CDBG funding for the 2016 fiscal year.3

Viewed in a vacuum, the Board of County Commissioners’ decision to reject such a substantial amount of money for community development projects, including rental assistance, capital improvements for community crisis centers, and even infrastructure projects, is striking.4 Similarly striking is the fact that several members of the community attended the board meeting to oppose the county’s receipt of federal funds.5 Yet the board’s decision, and the community opposition that precipitated that decision, did not occur in such a vacuum.

Almost a year prior to the Douglas County board’s decision on July 8, 2015, HUD Secretary Julian Castro promulgated what is now known as the final Affirmatively Furthering Fair Housing rule.6 The Fair Housing Act of 1968 (FHA) requires the Secretary of HUD to affirmatively further fair housing, yet the FHA does not define this concept.7 The AFFH Rule, which attempts just such a definition,8 places new requirements on thousands of state and local governments that receive HUD dollars. Central to the AFFH Rule’s goals, recipients are required to study barriers to fair housing and analyze segregation patterns within their particular communities and regions, which includes inquiries into whether local regulatory practices —particularly planning and zoning — serve as barriers to fair and affordable housing. The final AFFH Rule followed just two weeks after the United States Supreme Court upheld the use of disparate impact analysis reviewing discriminatory effects of facially neutral policies, including zoning and planning policies, under the FHA.9 The combination of the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project and the AFFH Rule portended a veritable sea change in local governments’ fair housing obligations vis-a`-vis their planning and zoning authority.

The AFFH Rule’s promulgation fanned the flames of controversy over the degree to which a federal administrative agency can and should, through funding programs, scrutinize local government planning and zoning decisions to root out disparate impacts. Even after the issuance of the Notice of Proposed Rulemaking on the AFFH Rule, conservative politicians and media outlets slammed HUD for attempting a “power grab” over local planning and zoning.10 A September 2013 commentary in the Wall Street Journal stated, “if HUD can define what constitutes exclusionary practices, then local zoning as it is known today disappears. Apartments, high rises or whatever else the federal government or a developer wants can be built on any block in America.”11 The National Review decried the AFFH Rule as an effort by the Obama Administration “to punish, control, and fundamentally transform communities that, in its estimation, are too white or too affluent.”12 Prior to the final AFFH Rule’s promulgation, Republicans in Congress introduced legislation to prevent the its implementation.13 In local communities around the country, citizens took matters into their own hands by petitioning their local elected officials to decline HUD funds in the name of protecting local autonomy.14 Some communities, such as Douglas County, Colorado, voted to reject further participation in HUD funding programs.15

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