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February 12, 2022

Will racial impact assessments really yield justice in land use?

Amid the ongoing national discussion of racial justice, several big cities and counties have created new policies to prevent racial inequities in land use decisions.

Those communities — including New York City, Seattle and a large suburb of Washington, D.C. — have created assessment tools to weigh how rezonings and new land developments affect residents who are Black, Hispanic and other people of color.

As these policies spread across the country, experts wonder: What’s the best way to measure such inequities? And how effective are they?

A panel of experts discussed the issue Feb. 11 at the American Bar Association Virtual Midyear Meeting. The program, “Reconciling the Past and Planning for the Future: The Use of Racial Impact Assessments in Land Use Planning and Zoning,” was sponsored by the ABA Section of State and Local Government Law.

“What we have today is a conversation about a number of municipalities that are starting to develop local laws to require the use of racial impact assessments in land use planning and zoning,” said moderator Patricia Salkin, a provost and law professor at Touro College. “This is now a new tool which may or may not dovetail with work that many of us are doing in the area of environmental justice.”

William West, a law student at Pace University and associate at the Land Use Law Center, studies racial impact assessments across the country. They began in reaction to decades of discriminatory practices that kept many families and people of color out of middle-class and affluent neighborhoods.

Now, some municipalities require racial impact statements that are similar to environmental impact, health impact or fiscal impact statements.

Last year, for example, New York City started requiring racial equity analyses for new residential and commercial developments over a certain size. And in July, the city wrote a racial equity report on housing and opportunity in the Gowanus neighborhood of Brooklyn. It noted that New York “remains one of the most highly segregated and unequal cities in the United States.” To address this, the report concludes, “the goal of racial equity must be built into the structures of governmental decision-making processes. To do this, we need to actually recognize, analyze and discuss it, not pretend we have already solved it.”

Just outside the nation’s capital, Maryland’s Montgomery County requires the Office of Legislative Oversight to submit racial equity and social justice impact statements for each bill and zoning amendment before it is approved. Montgomery is a diverse county of more than 1 million residents.

And in Seattle, as part of an update to the county’s comprehensive land use plan, officials conducted a racial impact analysis of four growth alternatives. County officials created a displacement-risk index and an access-to-opportunity index to measure how land-use changes would affect communities of color.

Casey Anderson, chair of the Montgomery County Planning Board, praised the intent of racial impact assessments, but introduced a word of caution. “I think that these types of analyses are useful. I think that they compel us to examine issues,” he said. “But racial equity is not the only lens. Sometimes it is not the most relevant lens.”

Often, Anderson said, there is no agreement on factual premises, much less ideological premises or values. For example, he asked, does new market-rate development cause housing prices in the immediate area to go up or down? “That’s a hotly contested issue … There’s disagreement on that,” he said.

Also, Anderson asked: When new housing is built and more affluent people move in, how does that affect nearby lower-income residents? Again, he said, experts disagree.

Even so, the goal of racial impact assessments is very important, said Anamaria Hazard, a land use attorney with Dentons in Atlanta. It’s important, she said, that policymakers, government officials and citizens understand the effect that land use decisions and policies have on racial equity. “That should be in the back of everyone’s mind,” she said.

Salkin suggested that the ABA take the lead in developing best practices and training in this area, perhaps creating a subcommittee within the ABA Section of State and Local Government Law to continue studying the issue.