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adm_71-3_41554 Sheet No. 105 Side A 09/18/2019 13:09:53                * MUCKER S ) 8/28/19) 5:47 PM 633 ELETE EIDI CRISIS D OT N K. H O (D DOCX . ME REVIEW ME _ Reviving an Obama-Era Ghost in the Name of Efficiency .... 652 .... Name of Efficiency Reviving an Obama-Era Ghost in the 654 ...... the Bush A Bird in the Hand is Worth Two in Quantifying, and The One, Two (Three) Punch: Clarifying, 656 Assessing ...... v. the Whip: Incentives Passing Out Candy or Cracking 659 Enforcement ...... The Evolution of Rental Assistance: What Worked and Rental Housing Assistance: What Worked The Evolution of 637 ...... What Didn’t 639 ...... Funding A Funnel for Federal Francisco’s Restrictive The Rise (and Potential Fall) of San 641 ...... of Cookie-Cutter Washington D.C.: Negative Implications 643 Development ...... 646 ...... I Heart , But Not The Rent          A. B. C. D. A. B. A. B. C. Success ...... 651 Success ...... 640 ...... SMUCKER ROLE IN THE HOUSING IN THE AFFORDABLE ROLE 71.3_ * J.D. Candidate, American University Washington College of , Class of 2020. 2020. College of Law, Class of Washington * J.D. Candidate, American University NO PLACE LIKE : DEFINING HUD’S HUD’S HOME: DEFINING LIKE NO PLACE M K Introduction ...... Introduction ...... 634 III.Baby Steps, Tiny Victories, and Their Potential for Impact ...... 647 ...... Their Potential for Impact III.Baby Steps, Tiny Victories, and Housing: A (Possible) Recipe for IV.Affirmatively Furthering Affordable 662 Conclusion ...... I.HUD: An Agency or Writer of Federal Checks? ...... 636 ...... or Writer of Federal Checks? I.HUD: An Agency We Have a Problem Francisco, D.C., and New York), II.Houston (and San ALR Thank you to Professor Mark Niles for sparking my interest in administrative law, providing administrative interest in for sparking my Niles Thank you to Professor Mark Ad- astute and conscientious feedback, and encouraging me throughout the writing process. for an ditional thanks to my mentor Ayanna Pressley for modeling how to transform passion when issue into advocacy and start meaningful conversations that lead to change, especially change can’t wait. C Y adm_71-3_41554 Sheet No. 105 Side A 09/18/2019 13:09:53 09/18/2019 A No. 105 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 105 Side B 09/18/2019 13:09:53 M K 9 ., ., C Y ES EV IMES D T ENTAL R .&R ]. ., RL34591, EV RBAN , N.Y. D ERV Three years S 6 .&U OUSING Housing and Urban July 20, 2019). FFORDABLE 1–2 (2014). OLICY H A P OUS see H ESEARCH OLICY P ENTAL 3 .R R [71:3 [71:3 T OF ’ FFICE OF 8/28/19 5:47 PM ONG EP VERVIEW OF .O D note 4, at 5; ,C EVIEW O 8 EV R Today, the stark reality is that the stark reality is Today, 1 D ORMATED HUD 2 (2006), https://monarchhousing. FFORDABLE ONES supra AW J RIEF ROGRAMS AND , , U.S. L P RBAN )_ME F ATIE ., A B In 1934, Congress created the Federal In 1934, Congress OUSING 5 &K ELETE ISTORY OF .&U OAL H D NTRODUCTION SSISTANCE As rent increases and wages remain stagnant, As rent increases ERL OT I .C OUS 2 A P N The agency’s earliest iteration sprang from a The agency’s earliest ,AH H 4 O ENTAL OUS DMINISTRATIVE DMINISTRATIVE (D R IBBY H A T OF ,L ’ OUSING DOCX . EP H HOMPSON As Affordable Housing Crisis Grows, HUD Sits on the Sidelines As Affordable Housing Crisis Grows, HUD Sits ARTY NCOME I C L. T C FFORDABLE U.S. D ME REVIEW ME M EDERAL OW _ F L L ’ at 4; A 4; at 5 (2017), https://nlihc.org/sites/default/files/AG-2017/2017AG_Ch01-S03_ AGGIE AT AWRENCE SMUCKER Id. Administration (FHA) The Federal Housing Id. Resources, Id. In 1965, Congress passed the Housing and Urban Development Act In 1965, Congress passed the Housing 7 71.3_ What is affordable housing? The Department of Housing Department The United States housing? What is affordable 7. M 5. 6. 3. 4. N 2. Glenn Thrush, Historically, HUD has been the federal mechanism for crafting affordable has been the federal mechanism for Historically, HUD 1. HUD’s policy framework addresses five overarching issues: increasing op- HUD’s policy framework addresses 8. 9. L VERVIEW OF OUSING and Urban Development (HUD) defines it as housing (HUD) defines it Development and Urban costs no more that income. percent of a resident’s than thirty Housing Administration to establish programs and make to establish mortgage insurance Housing Administration for a wider swath of Americans. homeownership affordable later, the United States Housing Act of 1937 established a statutory structure later, the United States Housing Act formed United States Housing Author- for under the newly ity. https://www.hud.gov/program_offices/housing/fhahistory (last visited affordable housing, especially for low-income individuals, is increasingly rare individuals, is increasingly for low-income housing, especially affordable and often times unattainable. housing policies and assembling them at the intersection of political, eco- assembling them at the intersection housing policies and avenues. nomic, and social H (July 27, 2018), https://www.nytimes.com/2018/07/27/us/politics/hud-affordable-housing -crisis.html. 634 ALR O https://web.archive.org/web/20190502144359/https://www.huduser.gov/portal/glossary /glossary_a.html (last visited July 20, 2019). portunities for homeownership, creating access to affordable rental housing, portunities for homeownership, creating cities, ending and preventing hous- contributing to the welfare of America’s assistance to homeless persons. ing discrimination, and providing housing millions of low-income Americans now put upwards of seventy percent of Americans now put upwards millions of low-income keeping a roof over their heads. their income toward History-Of-Affordable-Housing.pdf [hereinafter A History-Of-Affordable-Housing.pdf [hereinafter wave of legislation passed in the 1930s as part of Congress’s legislative re- passed in the 1930s as part of Congress’s wave of legislation Depression. sponse to the Great and consolidated these specialized agencies, among others, under one roof and consolidated these specialized agency. to establish HUD as a Cabinet-level Development Act of 1965, Pub. L. No. 89–174, (1965). § 2, 79 Stat. 667–71 Development Act of 1965, Pub. L. No. adm_71-3_41554 Sheet No. 105 Side B 09/18/2019 13:09:53 09/18/2019 B No. 105 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 106 Side A 09/18/2019 13:09:53 , . T ’ EP supra OUS , U.S. , D (PHA) H U.S. T OF ’ GENCY OUSING 635 EP A H D RISIS ., https://www.hud C See generally ES ENTAL , U.S. OUSING R H and grants for state and and grants .&R OUSING 10 H EV UBLIC 8/28/19 5:47 PM D Home Investment Partnerships Program

Low-Income Housing Tax Credits ., P FFORDABLE 14 A OUS 11 OLICY ORMATTED H P FFORDABLE accord note 4, at 6. A )_ME F NDIAN note 7, at 8–12 (describing the voucher note 7, at 8–12 (describing the Section 8 voucher supra , ELETE .&I FFICE OF supra D ., https://www.hud.gov/program_offices/comm_plan ., UB OT note 7, at 7–8 (noting that the Quality Housing and Work note 7, at 7–8 (noting that the Quality Housing and Work In response, state and local governments estab- In response, state and local governments .O EV P N OLE IN THE OLE IN 15 D OUSING O note 7, at 29; T AL EV R H E This legislation jump-started a “devolution of au- This legislation jump-started S (D D supra 13 ., supra RBAN note 9, at 11. ., FFICE OF DOCX . ARTY T AL HUD’ RBAN ENTAL C E R C ., O Today, this basic structure remains mostly unchanged, Today, this basic structure remains T AL supra Although HUD was not yet a decade old, Although HUD was passed Congress .&U , E 16 M 12 EV D OUS .&U ARTY ME REVIEW ME C EFINING _ H ., https://www.hud.gov/program_offices/comm_planning/communitydevelo C ARTY D OUS C EV M RBAN H C HOMPSON FFORDABLE T OF D ’ See generally Community Development Block Grant Program—CDBG See generally Community Development Block Grant See generally Id. See SMUCKER EP .&U D T OF ’ RBAN 71.3_ 11. Following the shift, HUD’s most profound contribution to affordable hous- HUD’s most profound contribution Following the shift, 10. 13. A 12. M 14. 15. T 16. M K OUS EP U.S. pment/programs (last visited July 20, 2019) (awarding flexible grants for development projects flexible July 20, 2019) (awarding pment/programs (last visited residents); that address quality of life issues for low income system, structure of authority for public housing projects, and nonprofit funding for elderly system, structure of authority for public housing and disabled individual recipients). largely developed after the rental assistance and grant programs HUD’s in the mid-1970s approach to governance and oversight agency shifted its and early 1980s. Opportunity Reconciliation Act of 1998 further deregulated public housing authorities Opportunity Reconciliation Act of 1998 further deregulated public housing authorities of (PHAs) and provided increased spending flexibility within the United States Department Housing and Urban Development (HUD)-PHA funding relationship). the Housing and Community Development Act in 1974, signaling a strate- Community Development Act in 1974, the Housing and gic, operational change. lished public housing authorities (PHAs) tolished public housing authorities (PHAs) create, effectuate, and manage housing policies. ing became maintaining a steady stream of federal funding; now when state a steady stream of federal funding; ing became maintaining dollars for housing, the onus was on and local governments received federal them to work out the details. D H org/wp-content/uploads/2007/03/hud-history.pdf. 2019] housing affordable and sustains creates HUD framework, this Within assistance programs rental housing through federal ALR &U note 4, at 6. ning/affordablehousing/programs/home/ (last visited July 20, 2019) (funding state and local ning/affordablehousing/programs/home/ supply); agency projects that increase affordable housing user.gov/portal/datasets/lihtc.html (last visited July 20, 2019) (incentivizing affordable hous- user.gov/portal/datasets/lihtc.html (last visited ing projects through developer tax credits). local housing initiativeslocal housing Housing the Low Income including from programs (CDBG), and Block Grant Development (LIHTC), Community Tax Credit (HOME). Partnerships HOME Investment thority” within HUD and the agency began carefully and purposefully ad- and the agency began carefully thority” within HUD agencies that largely gave state and local vancing policies autonomous housing development. control over affordable C Y adm_71-3_41554 Sheet No. 106 Side A 09/18/2019 13:09:53 09/18/2019 A No. 106 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 106 Side B 09/18/2019 13:09:53 , M K 18 C Y ? $10M The 20 ROUNDED HECKS C (Apr. 26, 2016), OST P EDERAL F but just nine years later ENVER [71:3 [71:3 , https://groundedsolutions. 19 , D 8/28/19 5:47 PM RUSTS Claire Martin & Steve Raabe, Claire Martin EVIEW T R RITER OF ORMATED AW W L see also AND L )_ME F ELETE However, despite efforts to utilize federal despite efforts However, D 17 OT N GENCY OR note 7, at 30; O A DMINISTRATIVE DMINISTRATIVE (D OMMUNITY N A supra The Deep, Uniquely American Roots of Our Affordable-Housing Crisis A note 9, at 11. President Ford rubber stamped the Housing and ., DOCX ,C . T AL supra , E (2001) receiving fed- (defining PHAs as local, regional, and state agencies HUD: ME REVIEW ME ETWORK _ N ARTY UIDE Bryce Covert, C G  C HOMPSON I. See (May 24, 2018), https://www.thenation.com/article/give-us-shelter/ (citing data 24, 2018), https://www.thenation.com/article/give-us-shelter/ (citing data (May SMUCKER ESK D 71.3_ 18. 19. 42 U.S.C. §§ 3531–3537 (1970). 20. T 17. M In 1965, HUD became a Cabinet-level agency, In 1965, HUD became a Cabinet-level This Comment explores how major cities are grappling with the current how major cities are grappling This Comment explores ATION LAN OLUTIONS Revolving Loan Fund Launched to Boost Denver Affordable Housing Revolving Loan Fund Launched to Boost Denver after CLT FAQ] (providing an overview of what community land trusts (CLTs) are and why why and are (CLTs) trusts land community what of overview an (providing FAQ] CLT after and affordable housing). they benefit local communities N showing there was a 300,000 surplus of affordable rental units in 1970, compared to today’s showing there was a 300,000 surplus of affordable rental units in 1970, compared to today’s for the country’s poorest residents). seven-million-unit deficit in affordable rental eral housing funds, regardless of what they are called locally). eral housing funds, regardless of what they https://www.denverpost.com/2015/02/06/10m-revolving-loan-fund-launched-to-boost- successful housing trust fund); G denver-affordable-housing/ (discussing Denver’s S P 636 via hyper- housing affordable also approach agencies and local state although zoning, and trusts, inclusionary public housing initiatives including localized land trusts (CLTs). community ALR org/strengthening-neighborhoods/community-land-trusts (last visitedorg/strengthening-neighborhoods/community-land-trusts July 20, 2019) [herein- the agency changed course and moved away from its original strategy. the agency changed course and moved housing crisis and why current federal, state, and local policies are little more why current federal, state, and local housing crisis and this Comment a national, systemic issue. Furthermore, than a band-aid for agency rule to rein- HUD can work within an established demonstrates how through well-crafted, local affordable housing initiatives vigorate state and Part I explains how and meaningful oversight. collaborative partnerships present the agency’s contemporary role and breaks down HUD arrived at its what housing dispari- housing. Part II describes contributions to affordable policy how local and look like across several major cities ties and shortages housing issues. Part III examines what failures contributed to their current and local agencies are adopting to in- new and innovative approaches state federal funding. Finally, Part IV crease local housing stock, with or without current framework and use agency rule- encourages HUD to work within its state agencies in addressing a national making power to better equip city and the agency to be a driving force issue at the local level, thereby positioning housing crisis. behind solutions for the country’s affordable funding efficiently and supplement it through local dollars, the current struc- local dollars, the it through and supplement funding efficiently afforda- or expanding incapable of replenishing outdated and ture is woefully demand. up with skyrocketing way to keep stock in a meaningful ble housing adm_71-3_41554 Sheet No. 106 Side B 09/18/2019 13:09:53 09/18/2019 B No. 106 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 107 Side A 09/18/2019 13:09:53 , 22 Id. OUSING OUNCIL H ’C 637 although Sec- (May 11, 2017), (May ENANTS 28 RISIS T EFUSAL OF C AB R Today, the reality L 29 ITY USTIN A OUSING Notably, this new, ten- H , C 25 8/28/19 5:47 PM MSA 3 (2012) (emphasizing that accord ORMATTED housing-assistance-fails/526020/ (report- USTIN A FFORDABLE UDIT REPORT ON THE A A )_ME F N ELETE :A D OT PPLY N OLE IN THE OLE IN A O R note 7, at 5. S (D OT When Housing Assistance Fails Housing When 26 N ANDLORDS IN THE supra L DOCX ., . HUD’ EED N ME REVIEW ME EFINING _ (discussing how in “high-opportunity areas” often refuse to accept ARTY ET AL D This behest is the program’s greatest detriment; This behest is the program’s greatest At first, the program handed out payments to owners handed out payments to property At first, the program OLDERS C 27 23 Tanvi Misra, OUCHERS BY at 5–6. at 6. H Additionally, focus shifted from creating new units to low-income individuals house low-income creating new units to Additionally, focus shifted from C The Evolution of Rental Housing Assistance: What Worked and What Didn’t What Didn’t Housing Assistance: What Worked and The Evolution of Rental The fundamental change most significantly affected how HUD affected how most significantly change The fundamental V When this model became unsustainable, due to the higher costs as- When this model became unsustainable, Id. Id. Id. See See id. Id. Id. 21  SMUCKER 24 A. 71.3_ Perhaps the biggest legacy of the Housing and Community Development legacy of the Housing and Community Perhaps the biggest Theoretically, the vouchers allowed recipients to live in any neighborhood Theoretically, the vouchers allowed 25. 26. 27. 28. 29. 21. 22. 23. 42 U.S.C. § 5301 (2012). 24. M M K OUCHER HOICE Act of 1974 was the creation of Section 8; this reform engulfed former rental creation of Section 8; this reform Act of 1974 was the rental assistance to create an overarching, comprehensive assistance policies program. tenants using vouchers because they are seen as a risk); ant-based system handed off the responsibility of issuing Section 8 vouchers ant-based system handed off the responsibility to state and local PHAs. they wanted, with one large caveat: landlords must be willing to accept the they wanted, with one large caveat: vouchers. tion 8 vouchers come with a federally-backed guarantee to cover the market tion 8 vouchers come with a federally-backed them and often do. rent, landlords can refuse to accept C Community Development Act of 1974 that altered HUD’s fundamental framework. altered Community Development Act of 1974 that 2019] hous- new public for in subsidies a rollback shift as the characterized agency to rental approach them with a “tenant-based” replacing ing construction, local govern- to state and authority delegating decisionmaking housing and ments. ALR V of new or “substantially rehabilitated” rental units and in exchange, land- rehabilitated” rental units and of new or “substantially units to low-incomelords rented these who paid income-based families rents. https://www.citylab.com/equity/2017/05/when- ing that “Section 8” has become a negative slur). sociated with new or renovated units, HUD pivoted and began reserving sociated with new or renovated units, . these contracts exclusively for existing spent federal housing dollars; rather than the federal government undertak- federal government rather than the housing dollars; spent federal money to simply funneled the new approach housing projects, ing physical direct new projects. and let them take on and state and local governments to ensuring this vulnerable population gained housing through rent-assistance programs. to ensuring this vulnerable population gained C Y adm_71-3_41554 Sheet No. 107 Side A 09/18/2019 13:09:53 09/18/2019 A No. 107 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 107 Side B 09/18/2019 13:09:53 M K ii– C Y AIN Section 8 AIT FOR V W ONG (May 10, 2017), (June 15, 2015), L AITING IN HE OST ADIO :T ., W .P .R EV ‘Poor Door’ Tenants of Luxury D UB (Jan. 17, 2016), https://ny- ASH P [71:3 [71:3 L ’ , W OST POTLIGHT RBAN 8/28/19 5:47 PM AT P S N EVIEW .&U R A Look at the Alarmingly Long Wait Times for A Look at the Alarmingly Long Wait (Jan. 4, 2018), https://archinect.com/ , N.Y. ORMATED OUSING OUS AW Laura Sullivan & Meg Anderson, Melkorka Licea, Melkorka L H EWS cf. ., H N )_ME F see also T OF OAL ’ ELETE EP .C D D OT OUS N RCHITECT H O U.S. note 7, at 15. DMINISTRATIVE DMINISTRATIVE (D , A A supra note 31 (quoting a resident that opposed a development project in note 31 (quoting a resident that opposed a development note 31 (describing a heated public forum where more than 250 DOCX ., . NCOME How Section 8 Became a ‘Racial Slur’ How I supra See generally 31 34 OW , supra L L ME REVIEW ME ’ _ ARTY ET AL AT C The LIHTC program provides developers with incentives to set provides developers with incentives The LIHTC program Sullivan Sullivan, N C 32 Moreover, the system cannot keep up with increasing demand and increasing demand keep up with the system cannot Moreover, Yet across the country, residents in affluent and middle class neigh- residents in affluent and middle Yet across the country, See See See 3 (2016) (reporting that in 2016 the national median wait time on a Section 8 waitlist 3 (2016) (reporting that in 2016 the national SMUCKER 30 33 OME 71.3_ 33. M 31. 30. Emily Badger, 34. Even when landlords or developers want to accept vouchers, communities vouchers, communities want to accept landlords or developers Even when 32. H Vouchers Help the Poor — But Only if Housing is Available, But Only if Housing the Poor — Vouchers Help her neighborhood with units reserved for voucher recipients as stating “the lifestyle that goes recipients as stating “the lifestyle that her neighborhood with units reserved for voucher with Section 8 is usually working, single moms or people who are struggling to keep their class as us”).heads above water[;] [i]t’s just not people who are the same aside affordable units within their newly constructed properties and focuses within their newly constructed aside affordable units socioeconomically di- units to make communities on adding affordable verse. news/article/150043421/a-look-at-the-alarmingly-long-wait-times-for-section-8-housing-in- now average wait time for Section 8 vouchers u-s-cities (reporting that in 2018 the national is a lottery system for applicants to even apply for exceeds two years and in some cities there a spot on a waitlist). amounts to the equivalent of a lottery system, with people languishing for with people languishing of a lottery system, to the equivalent amounts waitlists. years on post.com/2016/01/17/poor-door-tenants-reveal-luxury-towers-financial-apartheid/ (describ- built a separate entrance and forced tenants ing how a luxury building in Manhattan was one and a half years, 25% of Section 8 waitlists had a wait time over three years, and 53% over three years, and 53% of Section 8 waitlists had a wait time was one and a half years, 25% of waitlists were closed to new applicants); https://www.washingtonpost.com/news/wonk/wp/2015/06/15/how-section-8-became-a- racial-slur/?utm_term=.58e349697254. landlords’ “refusal to accept [subsidies] drastically reduces the effectiveness reduces the accept [subsidies] drastically landlords’ “refusal to of the program”). 638 resi- and neighborhood landlords both to word, 8 is a dirty Section is that dents. ALR Apartment Tower Reveal the Financial Apartheid Within can rally together to oppose any potential new neighbors and development neighbors and any potential new together to oppose can rally projects. residents rallied against a developer who wanted to reserve thirteen units in her apartment residents rallied against a developer who wanted building for tenants using Section 8 vouchers); Section 8 Housing in U.S. Cities Section 8 Housing https://www.npr.org/2017/05/10/527660512/section-8-vouchers-help-the-poor-but-only- six who was on the waitlist for a single mother if-housing-is-available (citing an example of Walter, years before receiving a voucher); Alexander iv (1999) (providing an overview on the growing crisis between supply and demand in rental iv (1999) (providing an overview on the growing housing assistance at the end of the millennium). A borhoods, sometimes in conjunction with their local governments, have ve- in conjunction with their local borhoods, sometimes the credit, sometimes developers intending to utilize hemently fought against with ugly results. adm_71-3_41554 Sheet No. 107 Side B 09/18/2019 13:09:53 09/18/2019 B No. 107 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 108 Side A 09/18/2019 13:09:53 , (Feb. 12, 38 XCHANGE E This ap- This 39 639 URBED The program , C RISIS 40 , HUD C OUSING However, the number of However, the number H 8/28/19 5:47 PM 37 After Years of Disinvestment, City Public (June 1, 2018), https://www.ny IMES ORMATTED T FFORDABLE A )_ME F Although the program remains popular Although the program remains popular 42 Grantees must put a minimum of seventy Grantees must put a minimum of seventy 43 , N.Y. ELETE 41 D OT A Funnel for Federal Funding A Funnel for Federal N OLE IN THE OLE IN  O R note 7, at 10. An allocation process considers needs relating note 7, at 10. An allocation process considers S (D B. note 7, at 16 (defining entitlement communities as central cities PHAs receive federal funding to cover the gap be- to cover the federal funding PHAs receive supra 35 DOCX ., . HUD’ supra Trump Budget Proposal Would Decimate HUD Funding Trump Budget Proposal Would , ARTY ME REVIEW ME C EFINING _ C ARTY ET AL D C M C Id. Id. Id. See generally Community Development Block Grant Entitlement Program Id. See SMUCKER Currently, public housing is the second largest direct housing assis- direct housing is the second largest public housing Currently, 36 71.3_ 37. 38. 39. 42. 43. Jeff Andrews, 40. 41. 35.5301 (2012); J. David Goodman, 42 U.S.C. § Likewise, low-rent public housing projects developed by PHAs with federal with by PHAs developed projects housing public low-rent Likewise, 36. M In 2017, President Donald Trump drew fire from both sides of the aisle In 2017, President Donald Trump The second legacy of the 1974 Act was the CDBG program. The second legacy M K Housing Is Poised to Get U.S. Oversight Is Poised to Get U.S. Housing 2018), https://www.curbed.com/2018/2/12/17003900/trump-budget-proposal-hud-low- income-housing. tance program, after Section 8 housing vouchers. tance program, after percent of the money toward initiatives and projects meant to benefit low- percent of the money toward initiatives and moderate-income households. to management, capital projects, and daily operations when calculating and awarding funding. to management, capital projects, and daily operations proach created a funnel for federal dollars between HUD and state and local for federal dollars between HUD proach created a funnel plan. just a few stipulations built into the governments, with within metropolitan areas, cities with populations exceeding fifty thousand, and urban counties). areas, cities with populations exceeding fifty thousand, and urban counties). within metropolitan https://www.hudexchange.info/programs/cdbg-entitlement/ (last visited July 20, 2019) https://www.hudexchange.info/programs/cdbg-entitlement/ (providing background on the program). tween what residents pay toward rent and what it takes to operate the build- it takes to operate rent and what residents pay toward tween what ings. who were chosen to live in the building’s allocated affordable units to use that door, instead of who were chosen to live in the building’s allocated the actual entrance). 2019] ALR funding face public scorn; state and local governments have not maintained have not state and local governments public scorn; funding face them as blight often view more affluent residents projects and these housing on the neighborhood. when he proposed ending CDBG. times.com/2018/06/01/nyregion/after-years-of-disinvestment-us-to-take-oversight-role-in- city-public-housing.html. remaining public housing units is steadily declining as PHAs can gain HUD’s PHAs can gain HUD’s units is steadily declining as remaining public housing requirements that the demolish their projects, without any approval to simply jurisdiction. units be made up elsewhere in the number of eliminated apportions seventy percent of the program’s total funding to “entitlement apportions seventy percent of the thirty percent pieced out to states to use communities,” with the remaining in non-entitlement communities. C Y adm_71-3_41554 Sheet No. 108 Side A 09/18/2019 13:09:53 09/18/2019 A No. 108 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 108 Side B 09/18/2019 13:09:53 , , M K 44 C Y ), ATION (July 8, 45 , N ORK Y TOCK OF THE OLITICO S EW , P N Issues involving 51 AKING AND ., T 47 [71:3 [71:3 , D.C., 8/28/19 5:47 PM ROBLEM P EVIEW R ORMATED AW HEODOS ET AL L AVE A T RANCISCO )_ME F H 6 (Apr. 2017) (stating that the different formulas’ F E RETT ELETE AN W B HOME is meant to support healthier com- HOME is meant RANT D S G 46 nteractives/2017/hud-community-development-block- nteractives/2017/hud-community-development-block- OT N O accord AND note 7, at 17. ( DMINISTRATIVE DMINISTRATIVE A seven-million-unit deficit exists for rental homes A seven-million-unit deficit exists for (D note 9, at 17. A 48 The Federal Program That Can’t Be Killed—or Fixed The Federal Program That Can’t Be Killed—or supra DOCX ., . note 44, at 6. supra , Once Seen as a Local Issue, Affordable Housing is Becoming a State Focus The Deep, Uniquely American Roots of our Affordable-Housing Crisis The Deep, Uniquely American Roots . (Oct. 16, 2018), https://www.governing.com/topics/urban/sl-afford supra OUSTON , Renters and Homeowners in Non-Metro Areas are Increasingly Cost-Burdened in Non-Metro Renters and Homeowners but recent studies paint a different picture. ERV H Part I. ME REVIEW ME S , 50 EVELOPMENT BLOCK _ ARTY ET AL HOMPSON D The time has come for HUD step up to the plate. The time has come for HUD step C T EWS 49 C HEODOS  N See, e.g. See See supra SMUCKER II. https://www.politico.com/i 71.3_ 46. M 49. Bryce Covert, 51. However, as the nation’s affordable housing stock rapidly shrinks, HUD’s shrinks, HUD’s affordable housing stock rapidly However, as the nation’s In addition to CDBG, HOME is another valve that state and local gov- that state and is another valve to CDBG, HOME In addition 45. T 47. Framing affordable housing as an urgent, national policy issue is new; for Framing affordable housing as an urgent, 44. Lorraine Woellert, 50. Wiltz, Teresa 48. OMMUNITY RIBUNE T hands-off, open-wallet approach through these programs is no longer viable. approach through these programs hands-off, open-wallet and their solutions left to handle housing on their own, Cities and states are are largely unsuccessful. able-housing-state-legislation.html. ernments can tap into for HUD dollars. There are four options for utilizing into for HUD dollars. There are four ernments can tap for owner-occupied homebuyer assistance, rehabilitation HOME funding: and supplementing and renovation of rental housing, housing, development assistance. tenant-based rental munities through a more holistic approach that gives local governments a a more holistic approach that gives munities through when utilizing the funds. wide breadth of deference ability to accurately allocate funding to real pockets of need has diminished due to a continued ability to accurately allocate funding to real stock numbers). reliance on variables such as pre-1940 housing 2017), grants-cant-be-killed-or-fixed/; C 640 it is based stories, success enduring of HUD’s as one credited routinely and is the 1970s. that date back to and formulas outdated metrics on remarkably ALR decades, problems with affordability and housing stock remained a “purely decades, problems with affordability local matter” (May 24, 2018), https://thenationcom/article/give-us-shelter/. (May This system protects the status quo, allowing a continuous flow of federal a continuous flow quo, allowing protects the status This system or directly re- based on need is not necessarily communities that dollars into affordable housing the creation of new warding programs. and related that are affordable to the lowest-income bracket in this country, over half a that are affordable to the lowest-income any given night, and almost half of million Americans are homeless on thirty percent of their income on hous- renters nationwide spend more than ing costs. adm_71-3_41554 Sheet No. 108 Side B 09/18/2019 13:09:53 09/18/2019 B No. 108 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 109 Side A 09/18/2019 13:09:53 , UFF , H OUSING H (asserting that 641 FOR . Blame Zoning, Not TR RISIS C C see also id. OINT OUSING U. J H 8/28/19 5:47 PM Kriston Capps, ee also ARVARD

ORMATTED . (Aug. 2016), http://harvard-cga.maps. 56 , H Cities, suburbs, and rural areas are and rural Cities, suburbs, FFORDABLE A (Mar. 11, 2016), https://www.citylab.com/ (Mar. 52 The Gap: A Shortage of Affordable Rental Homes TUD )_ME F S ., OAL ELETE ITYLAB D .C , C OT OUSING America’s Housing Crisis Is Spreading to Smaller Cities America’s Housing N OLE IN THE OLE IN H O OUS R S (D H Bad Housing Have Turned ’s Tech Boom Into a Crisis Laws Have Bad Housing FOR . DOCX . HUD’ TR NCOME C I note 54 (stating the “tech monster” is just a boogeyman and pointing to (Apr. 23, 2016), https://www.vox.com/2016/4/23/11490758/oakland- (Apr. 23, 2016), https://www.vox.com/2016/4/23/11490758/oakland- OW ME REVIEW ME supra The Rise (and Potential Fall) of San Francisco’s Restrictive Zoning Fall) of San Francisco’s Restrictive Zoning The Rise (and Potential OINT L ,Hobbes, Michael EFINING _ OX L D  ’ (Mar. 2018), http://nlihc.org/gap. (Mar. When looking beyond this first layer, the problem is rooted in this first layer, the problem When looking beyond Timothy B. Lee, U. J A. (suggesting to take away land-use decisions from neighborhoods and instead give 55 While the housing crisis now affects every state in some way, large in some way, affects every state housing crisis now While the , V AT 53 Id. See See, e.g. ORG SMUCKER (May 5, 2018), https://www.huffingtonpost.com/entry/housing-crisis-small-cities- (May While the tech boom often takes the lion’s share of Valley tech boom often takes the While the Silicon . (Dec. 2017), http://harvard-cga.maps.arcgis.com/apps/MapSeries/index.html?appid 54 Nearly Half of American Renters are Cost-Burdened 71.3_ 56. 55. Capps, 54. San Francisco is arguably at the epicenter of America’s ongoing debate of America’s ongoing debate at the epicenter San Francisco is arguably 52. 53. N M K ARVARD OST TUD that power to the cities). lack of housing as the real problem). equity/2016/03/are-wealthy-neighborhoods-to-blame-for--of-poorer-ones equity/2016/03/are-wealthy-neighborhoods-to-blame-for-gentrification-of-poorer-ones /473349/ that “the lack of adequate housing supply is the consensus culprit in the (describing housing crisis sweeping the country [and the] lack of new housing is tearing San Francisco apart in particular”). Tech, for San Francisco’s Housing Crisis housing-crisis (demonstrating that discussions over the rising housing costs in Silicon Valley, housing-crisis (demonstrating ago); s and then San Francisco, began over a decade blame for the Bay Area’s housing crisis, this characterization is not entirely Area’s housing crisis, this characterization blame for the Bay accurate. a two-bedroom unit in Jacksonville requires low-income individuals to earn eight dol- individuals requires low-income renting a two-bedroom unit in Jacksonville wage). lars more than the state mandated minimum boise_us_5ae878f7e4b055fd7fcfcee0 (detailing that in 2016 Boise became the “seventh most boise_us_5ae878f7e4b055fd7fcfcee0 (detailing place just five years prior); unequal city in America,” rising from 79th now in a similar situation; today, not a single state has enough affordable state has enough today, not a single similar situation; now in a low-income of extremely its population to accommodate rental stock renters. S P H 2019] affect now housing affordable diminished and markets housing pressurized cities like including smaller across the country, of communities all types Florida. and Jacksonville, Boise, Idaho ALR cities are the poster child for foundational affordable housing issues like re- child for foundational affordable cities are the poster shortages. housing stock, and housing strictive zoning, unvaried to rapidly outpace sup- and why demand continues over affordable housing ply. arcgis.com/apps/StorytellingSwipe/index.html?appid=51335f0233e14c3cb35312e9160f82 ec; NLIHC. San Francisco’s rigid and archaic zoning. =ea1929b8f2bf482dadad173a3f62c27e. for Oakland C Y adm_71-3_41554 Sheet No. 109 Side A 09/18/2019 13:09:53 09/18/2019 A No. 109 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 109 Side B 09/18/2019 13:09:53 . M K ., 61 AP C Y TY EV AILY M C (Jun. D .D TAN ONING NSIDER However, Z RBAN ITY AND , S .I 60 C US , B Together, these Together, accord .&U 58 RANCISCO F OUS AN H (2018). [71:3 [71:3 ., S 8/28/19 5:47 PM IV D EVIEW T OF ISTRICTS ’ R Further zoning frustrations in- zoning frustrations Further D EP 57 ORMATED D AW L ULK )_ME F /B OMPLIANCE &C ELETE , U.S. . (Sept. 2018), https://www.collectorsweekly.com/ 21, D EIGHT OT (Sept. 18, 2018), https://www.washingtonpost.com/out (Sept. 18, 2018), https://www.washingtonpost.com/out KLY Why Do So Many Affordable-Housing Advocates Reject the Law of Affordable-Housing Advocates Do So Many Why N –H Demolishing the Dream: How San Francisco Created Its Demolishing the California Dream: How San Francisco ONING O W AP The Not-So-Radical Case for De-Zoning San Francisco DMINISTRATIVE DMINISTRATIVE (D The San Francisco Bay Area’s Housing Crisis is So Out of Control, a Crisis is So Out The San Francisco Bay Area’s Housing ,Z OST A M T ’ .P EP DOCX . D ASH ONING OLLECTORS ,Z , W City residents agree that continually climbing rental and continually climbing agree that City residents , C www.businessinsider.com/san-francisco-affordable-housing-solutions-2018-6; ME REVIEW ME 59 _ LANNING Leanna Garfield, Roderick M. Hills Jr., Roderick M. Harrison Hohman, RANCISCO See See About RAD Public Housing See SMUCKER F Hunter Oatman-Stanford, Oatman-Stanford, Hunter AN 71.3_ 58. 60. 57. S.F. P More than half of the city’s privately-owned land falls in residential zoning falls in residential land privately-owned of the city’s than half More 61. 59. S lot); only a combined fourteen percent of this land is zoned for RH-3 (maximum three units (maximum land is zoned for RH-3 lot); only a combined fourteen percent of this of and )). (mixture per lot), or RM articles/demolishing-the-california-dream/ (describing how “local control” exerted by (describing articles/demolishing-the-california-dream/ development in many city wealthy San Francisco residents has made new neighborhoods ex- ceedingly difficult). Supply and Demand? clude minimum parking requirements and height limits. and height parking requirements clude minimum pdf (demonstrating that thirty-eight percent of land in San Francisco is zoned RH-1 or RH- percent of land pdf (demonstrating that thirty-eight per (maximum two units percent is zoned RH-2 1-D (maximum one unit per lot), and sixteen see also (2018), https://sfplanning.org/sites/default/files/resources/2019-02/zoning_use_districts. (Oct. 2, 2018), https://www.stanforddaily.com/2018/10/02/me-asl-the-not-so-radical-case- in San buildings restriction of forty feet for most for-de-zoning-san-francisco/ (citing a height can cast a shadow); Francisco and limitations on where new buildings 642 ALR https://www.hud.gov/RAD/program-details (last visited July 20, 2019) (describing the pro- https://www.hud.gov/RAD/program-details (last visited pro- cess by which state and local governments hand over control of troubled public housing direct which converts a property’s basis of federal assistance from jects to private companies, HUD funding to Section 8 vouchers). 6, 2018), https:// districts that have one- or two-unit limits. have one- or districts that while San Francisco’s zoning is development adverse, the city is taking some zoning is development adverse, while San Francisco’s efforts. The city toward kick starting affordable housing meaningful steps (RAD) program Rental Assistance Demonstration partnered with HUD’s look/2018/09/18/why-do-so-many-affordable-housing-advocates-reject-law-supply-demand Back Yard” between the “Not In My fight /?utm_term=.8ed5d4e30597 (describing the is characterized by movements; NIMBYism Back Yard” (YIMBY) and “Yes In My (NIMBY) move- homeowners who reject all new development in their neighborhoods, while the YIMBY ment pushes for flexible zoning and supports increasing housing stock through any means). Median-priced Home Costs $820,000 – Here are 5 Ways to Help Fix the Problem 5 Ways Median-priced Home Costs $820,000 – Here are home-buying prices have resulted in a negative net impact on the city; how- have resulted in a negative net impact home-buying prices problem. sharply on how to remedy the ever, residents disagree OF and turned over control of the city’s entire public housing stock to private of the city’s entire public housing and turned over control zoning regulations vastly restricted new, large-scale development and ush- development new, large-scale vastly restricted zoning regulations and potential for both renters housing prices median ered in record-breaking homebuyers. Own Housing Crisis Own Housing adm_71-3_41554 Sheet No. 109 Side B 09/18/2019 13:09:53 09/18/2019 B No. 109 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 110 Side A 09/18/2019 13:09:53 : GENDA OLITICO REATIVE OLUMBIA A CONOMIC C , P E 643 CTION RISIS C DC A ISTRICT OF D LANNING AND Through RAD, pri- RAD, Through P 63 62 OUSING REATIVE H 8/28/19 5:47 PM C 69 65 AYOR FOR ORMATTED M to transform neighborhoods and to transform neighborhoods TATUS OF TRATEGY FOR THE FFORDABLE S note 68, at 3–4 (alluding to “neighborhood 66 A ,S )_ME F EPUTY supra D , ELETE D CONOMY LANNING E P OT (2016), https://planning.dc.gov/sites/default/files/dc/ A “Creative DC Action Agenda” emerged to A “Creative DC Action Agenda” N OLE IN THE OLE IN EPORT 67 O R S (D UARTER REATIVE FFICE OF D.C. R FFICE OF THE DOCX Q . O HUD’ ,C How San Francisco Saved Its Public Housing by Getting Rid of How San Francisco Saved Its Public Housing It T ’ ST OV D.C. REATIVE G ME REVIEW ME C EFINING _ 2016, 1 Washington D.C.: Negative Implications of Cookie-Cutter Development Implications of Cookie-Cutter Development Washington D.C.: Negative ]. D cf. D.C.  see also ; Notably, in 2017 California Governor Jerry Brown signed fifteen California Governor Jerry Brown Notably, in 2017 EAR B. See See id. See id. Id. Id. The city leveraged this plan through collaborations between The city leveraged this plan through the Dis- Y SMUCKER 64 EPORT 68 . (July 20, 2017), https://www.politico.com/magazine/story/2017/07/20/how-san- ., District Launches Creative Econ. Initiative D.C.s Focus on Idea People Can Transform ., District Launches Creative Econ. Initiative 71.3_ 69. 63. 64. 65.S.B. 540, 2017–18, Reg. Sess. (Cal. 2017). A.B. 73, 2017–18 Reg. Sess. (Cal. 2017); 66. O Release, Press While the city works with HUD to rehabilitate public housing, the debate public housing, to rehabilitate city works with HUD While the 62. Ethan Epstein, 67. 68. Where San Francisco falls short in creating new housing, Washington, falls short in creating new housing, Where San Francisco AG M K EV ISCAL rages on between allowing new development to counterbalance inflated de- to counterbalance new development between allowing rages on quaint quality city’s history and to preserve the blocking high rises mand and of life. assess the city’s current creative assets and use them as a springboard for the assess the city’s current creative assets CEI. francisco-turned-its-tenements-into-treasures-215391. D.C. R involved in expanding the city’s “Creative 92 (2014) (listing D.C. local government agencies Economy”); M D 2019] companies. management and developers ALR F sites/op/publication/attachments/CreativeDCActionAgenda_1.pdf [hereinafter C revitalization efforts, zoning update[s],” and identifying “specific zoning changes that could revitalization efforts, zoning update[s],” and identifying “specific zoning changes that be used” to further expand the initiative). pieces of legislation addressing affordable housing issues, including Assembly addressing affordable housing issues, pieces of legislation incentives to rework Bill 540; both bills provide cities with Bill 73 and Senate new housing development. zoning and allow trict of Columbia Office of Planning (DCOP), Department of Housing and trict of Columbia Office of Planning and the Office of the Deputy Mayor for Community Development (DHCD), (DMPD). Planning & Economic Development vate operators have stepped in to transform, modernize, and manage San modernize, and in to transform, have stepped vate operators properties going forward. public housing Francisco’s mold the District “from a city that need[ed] to be fixed” into a city booming mold the District “from a city that need[ed] with “economic vibrancy.” Neighborhoods (Sept. 6, 2007), https://dmped.dc.gov/release/district-launches-creative- Neighborhoods (Sept. 6, 2007), https://dmped.dc.gov/release/district-launches-creative- economy-initiative-dcs-focus-idea-people-can-transform. D.C. has the inverse problem. Over a decade ago, the city launched the launched the city problem. Over a decade ago, D.C. has the inverse Initiative” (CEI) “Creative Economy C Y adm_71-3_41554 Sheet No. 110 Side A 09/18/2019 13:09:53 09/18/2019 A No. 110 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 110 Side B 09/18/2019 13:09:53 : M K C Y (Mar. (Mar. TOCK S In April In April URBED 70 , C OUSING i (Mar. 2018), i (Mar. H S ’ OUSING H ISTRICT [71:3 [71:3 D 8/28/19 5:47 PM AMILY EVIEW F R In the complaint, Theresa claims Theresa In the complaint, ORMATED AW 71 These facts tend to validate mount- L TOCK OF THE 75 S )_ME F ELETE (Sept. 26, 2018), https://www.dcfpi.org/all/dcs-grow D Lawsuit: D.C. Policies to Attract Millennials Discriminated Lawsuit: D.C. Policies to Attract Millennials RESSURES ON AKING P OT ,T N 73 LOG O DMINISTRATIVE DMINISTRATIVE (D .: B A Report: D.C.’s Housing Market is Segregated, Not Varied Market Housing Report: D.C.’s AND DC’s Growing Prosperity is not Reaching Black Residents, Census Data , AYLOR (May 25, 2018), https://www.washingtonpost.com/local/dc-pol (May 25, 2018), https://www.washingtonpost.com/local/dc-pol T NST DOCX I . OST AYIN .P S OLICY . P ASH ME REVIEW ME Ed Lazere, , Paul Schwartzman, _ FFORDABILITY ESIM cf. Yet, as wealthy new residents make the District their home, the residents make the District their Yet, as wealthy new , W Y ISCAL 74 at 2. at 1–2 ,A F Furthermore, the complaint asserts that this concerted effort not complaint asserts that this concerted Furthermore, the Id. Id. See See, e.g. SMUCKER 72 , DC 71.3_ 73. 74. Goldchain, Michelle 71. Apr. 17, 2018). (D.D.C. D.C. Zoning Comm’n, No. 18-cv870 v. Compl. at 1, Matthews 72. 75. 70. The case comes at a critical time, as numbers show that District residents a critical time, as numbers show that The case comes at However, the CEI, its agenda, and the wave of development and growth and wave of development and the agenda, CEI, its the However, APACITY Against Blacks https://www.dcpolicycenter.org/wp-content/uploads/2018/03/DC-Policy-Center-Housing- https://www.dcpolicycenter.org/wp-content/uploads/2018/03/DC-Policy-Center-Housing- segre- “whiter, less inclusive, and more (reporting that D.C.’s Report.final_.March25.pdf of affordable gated” population is at least partly to blame on the city’s dwindling number units); family Show the agencies adapted land use policies and gave developers wide allowances land use policies and gave developers the agencies adapted a younger “creative projects in an effort to attract to speed up revitalization class.” /24/3549f7fe-5a1e-11e8-858f-12becb4d6067_story.html?utm_term=.112b2301ac81 (detail- /24/3549f7fe-5a1e-11e8-858f-12becb4d6067_story.html?utm_term=.112b2301ac81 of the city’s new residential development as ing attorney Aristotle Theresa’s characterization families” and “break[ing] up long-established “ignor[ing] the needs of poor and working-class [African-American] communities”). only aided and encouraged gentrification in historically African-American African-American gentrification in historically only aided and encouraged for also flatly ignored the growing demand neighborhoods but “family units housing.” or true affordable 29, 2018), https://dc.curbed.com/2018/3/29/17173486/affordable-housing-dc-report. city has seen “dramatic changes in its demographic and socioeconomic city has seen “dramatic changes middle-income families out of the city make-up” that are “pushing low and and increasing economic segregation.” 644 ALR C that followed were recently hit with a widely-publicized lawsuit. hit with a widely-publicized were recently that followed soon surpass 700,000 and the city’s population will are increasingly affluent residents. 2018, civil rights attorney and activist Aristotle Theresa filed a class action Theresa filed and activist Aristotle rights attorney 2018, civil crafted the city carefully of Columbia, alleging the District lawsuit against against long-time that discriminated zoning policies land use and in residents class.” a new “creative favor of attracting ing-prosperity-is-not-reaching-black-residents-census-data-show/1 (demonstrating that data ing-prosperity-is-not-reaching-black-residents-census-data-show/1 from the 2017 American Community Survey shows that between 2007 and 2017, median to $134,000, while the median in- $116,000 income among white residents increased from come for black residents fell from $43,000 to $42,000). ing concern over the makeup of the District’s housing stock and the types of ing concern over the makeup of the itics/lawsuit-dc-policies-to-attract-affluent-millennials-discriminated-against-blacks/2018/05 adm_71-3_41554 Sheet No. 110 Side B 09/18/2019 13:09:53 09/18/2019 B No. 110 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 111 Side A 09/18/2019 13:09:53 , 81 (Apr. (May (May IMES T 645 NFORMER .I , N.Y. RISIS ASH C , W lagues-d-c-residents/. Developers did not Developers did 78 ]. OUSING H 8/28/19 5:47 PM Trust Fund ORMATTED Emily Badger, Quoctrung Bui & Robert FFORDABLE , https://dhcd.dc.gov/page/housing-produc cf. A Why Are Zoning Variances So Easy to Get in D.C.? )_ME F GOV ELETE While the city’s CEI encouraged new de- city’s CEI encouraged While the m/affordable-housing-crisis-p D 77 , DC. OT Accordingly, over the last decade, a bulk of the Accordingly, over N OLE IN THE OLE IN O 79 R /2013/09/13/50bcf968-1b22-11e3-8685-5021e0c41964_ S (D & Jim Arkedis, Affordable Housing Crisis Plagues D.C. Residents note 75, at ix (estimating that nearly fifty-one percent of D.C.’s that nearly fifty-one percent note 75, at ix (estimating note 75, at xiv (suggesting that market forces, including increasing note 75, at xiv (suggesting that market DOCX 80 . HUD’ supra supra , , ME REVIEW ME 76 EFINING _ at xiii (pointing out that along with more competition from new, affluent D.C. new, from competition at xiii (pointing out that along with more AYLOR AYLOR D (Sept. 13, 2013), https://www.washingtonpost.com/opinions/why-are-zoning- (Sept. 13, 2013), https://www.washingtonpost.com/opinions/why-are-zoning- T Lukas P. Kohler T The Neighborhood Is Mostly Black. The Home Buyers Are Mostly White Buyers Are Mostly Black. The Home The Neighborhood Is Mostly OST See id. See Cf. Housing Protection Trust Fund Cf. SMUCKER .P 71.3_ 80. 78. 79. 81. 76. Jonathan Franklin, This need partially springs from the unvaried nature of the city’s newly nature of the city’s from the unvaried partially springs This need 77. To its credit, the District operates the Housing Protection Trust Fund, the operates the Housing Protection To its credit, the District ASH M K residents, restrictive land-use policies have also contributed to an unvaried housing stock residents, restrictive land-use policies have “largely composed of single-family homes”); W Gebeloff, housing stock can only accommodate one or two people, demonstrating a “great discrepancy housing stock can only accommodate one or inventory in the District of Columbia”). between household structure and the housing demand, led to developers buying land and only building the type of housing units they could demand, led to developers buying land and easily sell or rent). District’s new development catered to new, affluent residents, keeping the residents, keeping catered to new, affluent District’s new development growing need for af- and further compounding the housing pool unvaried fordable family units. variances-so-easy-to-get-in-dc the D.C. Board of Zoning Adjustment that story.html?utm_term=.ca1ac590edfe (lamenting drives up housing prices because developers will amounts to a loophole for developers and receive a zoning variance, increase the number outbid other buyers knowing they can easily of units, and sell more units at top dollar prices). build family-friendly affordable housing; instead, they focused on building affordable housing; instead, they build family-friendly units. small units, or luxury tion-trust-fund (last visited July 20, 2019) [hereinafter 27, 2019), https://www.nytimes.com/interactive/2019/04/27/upshot/diversity-housing- property acquiring how white homebuyers (demonstrating maps-raleigh-gentrification.html rental in city neighborhoods historically populated by people of color eventually drives up prices and emphasizes developers’ desire to sell to white newcomers). 2019] 47,000 there are growth, the city’s spite of In housing. affordable available city residents estimated 7,500 waitlist and an the public housing families on are homeless. ALR velopment, it was the city zoning board’svelopment, it was variances, not ac- liberally-granted that spurred new development. tual policy changes, developed housing, which is influenced by an influx of affluent singles and influx of affluent is influenced by an housing, which developed to the District. couples flocking Through the program, the city also partners with HUD and helps developers Through the program, the city also funding needs with LIHTC grants, who qualify to fill in any remaining 9, 2018), http://washingtoninformer.co 9, 2018), second largest city housing trust in the country, providing loan financing for housing trust in the country, providing second largest city impacting affordable housing. a wide range of projects aimed at positively C Y adm_71-3_41554 Sheet No. 111 Side A 09/18/2019 13:09:53 09/18/2019 A No. 111 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 111 Side B 09/18/2019 13:09:53 , . . M K 84 C Y UB AC 82 P , N.Y. , P OUSING Carmen H , N.Y. Compare Compare see also 87 , NYC rent stabilization, 83 352, sec. 47; [71:3 [71:3 In Defense of Rent Control AWS 8/28/19 5:47 PM EVIEW R 86 86 ORMATED AW L 1902 N.Y. L (explaining how New York’s Tenement House (explaining how New York’s Tenement House )_ME F Jake Blumgart, The Rise and Fall of New York Public Housing: An Oral The Rise and Fall of New York Public Housing: ELETE D Today, New York is still home to the nation’s Today, New York amended by OT see also N 85 O I Heart New York, But Not The Rent York, But Not The I Heart New DMINISTRATIVE DMINISTRATIVE 334, (D Tenants Under Siege: Inside ’s Housing Crisis Tenants Under Siege: Inside New York City’s Housing A  C. AWS DOCX . (June 7, 2018), https://www.nypl.org/blog/2018/06/07/tenement- (July 9, 2018), https://www.nytimes.com/interactive/2018/06/25/ny Luis Ferre-Sadurni, LOGS ME REVIEW ME (Aug. 17, 2017), https://www.nybooks.com/articles/2017/08/17/tenants- _ IMES , 1901 N.Y. L , N.Y.C. Admin. Code §§ 26–501–26–520 (1969) (allowing formerly rent con- 26–501–26–520 (1969) , N.Y.C. Admin. Code §§ (Apr. 1, 2015), https://psmag.com/economics/in-defense-of-rent-control (argu- (Apr. 1, 2015), https://psmag.com/economics/in-defense-of-rent-control OOKS : NYPL B B Our Current Affordable Housing Crisis: Affordable Housing for Every New Yorker Id. E.g. See generally E.g. SMUCKER Tenement Homes: The Outsized Legacy of New York’s Notoriously Cramped Apartments The Outsized Legacy of New York’s Notoriously Tenement Homes: , N.Y. T , N.Y. OF . 71.3_ Washington, D.C.’s recently-developed magnetism is nothing new to New is nothing new magnetism D.C.’s recently-developed Washington, 87. 86. Greenburg, Michael 85. However, this regulatory scheme is rapidly failing, and the disparity be- scheme is rapidly failing, and However, this regulatory 82. 83. 84. EV IBRARY TANDARD York City—an onslaught of newcomers has perpetually assailed the city’s of newcomers has perpetually York City—an onslaught wave of newcomers, before Ellis Island opened. For each housing stock since to accommodate housing policies and programs the city adopted sweeping tenement housing and reforms, the influx, including largest rent-regulation scheme, and this type of affordable units make up the scheme, and this type of affordable largest rent-regulation of affordable housing. city’s largest portion and public housing projects. and public housing Nigro, History under-siege-inside-new-york-city-housing-crisis York state legisla- (detailing when the New ture passed rent stabilization legislation and that today, approximately one million regulated remain). apartments region/new-york-city-public-housing-history.html?mtrref=www.google.com (describing the region/new-york-city-public-housing-history.html?mtrref=www.google.com and its eventual fall into disrepair and disen- City progression of public housing in New York franchisement). Act of 1901 was a catalyst for new state regulations on affordable housing).regulations on Act of 1901 was a catalyst for new state homes-new-york-history-cramped-apartments homes-new-york-history-cramped-apartments R 646 not pre- fund are city’s the a loan through for who qualify those ensuring to cover a project’s loan is not enough building if that cluded from costs. ALR L S https://www1.nyc.gov/site/housing/problem/problem.page (last visited July 20, 2019). tween available affordable housing units and households seeking housing is housing units and households tween available affordable units available for there are only 424,949 affordable growing. Currently, low income brackets.” households in the “extremely low/very ing that may be worth a second look after it was historically abandoned in ing that rent regulation may be worth a second New York City and other major cities). that number to the 979,142 “low- and very-low” households that actually that number to the 979,142 “low- trolled units to be converted to rent stabilized units, ensuring continuing protection for tenants trolled units to be converted to rent stabilized against price-gouging landlords); adm_71-3_41554 Sheet No. 111 Side B 09/18/2019 13:09:53 09/18/2019 B No. 111 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 112 Side A 09/18/2019 13:09:53 , 93 Id. New 92 Once new new Once Id. 647 RISIS OTENTIAL FOR C P HEIR OUSING T H 8/28/19 5:47 PM Call for Crackdown on ‘Rent Fraud’ in Call for Crackdown on ‘Rent Fraud’ AND , Id. ORMATTED MPACT I FFORDABLE A )_ME F ICTORIES (Apr. 9, 2018), https://citylimits.org/2018/04/09/ ELETE V D Abigail Savitch-Lew, OT ORG INY N . OLE IN THE OLE IN These landlords slowly convert rent-regulated rent-regulated slowly convert These landlords Due to siloed and uncoordinated enforcement, Due to siloed and O R 89 91 ,T S (D see also note 86. For example, twenty-five percent of stabilized units in note 86. For example, twenty-five DOCX note 86. . TEPS HUD’ ITYLIMITS One major factor contributing to rent-regulation’s slow to rent-regulation’s contributing major factor One S 88 Behind New York’s Housing Crisis: Weakened Laws and Fragmented Regulation Laws and Crisis: Weakened Behind New York’s Housing note 17. supra ,C supra ABY supra ME REVIEW ME B EFINING _ D When landlords “convert” a unit, they generally do so by thoroughly renovating landlords “convert” a unit, they generally do so by thoroughly renovating When  Furthermore, regulation and enforcement within the rent-regula- and enforcement regulation Furthermore, Id. Id. Kim Barker, SMUCKER 90 III. . 71.3_ 91 90. 88. 89. Greenburg, 92. Greenburg, 93. Martin, As the affordable housing problem has grown beyond a big-city problem As the affordable housing problem M K amenities and updates increase the unit’s value, it often falls outside the pricing categories amenities and updates increase the unit’s scheme. covered by New York City’s rent-regulation and modernizing the unit to make sure it qualifies for a higher market rent. for a higher market sure it qualifies the unit to make and modernizing N.Y. Times (May 20, 2018), https://www.nytimes.com/interactive/2018/05/20/nyregion/N.Y. Times (May (describing how the mechanisms meant to enforce rent-regula- affordable-housing-nyc.html investigators rely on outdated technology, tion policies often fall through the cracks; agency landlords, and fail to follow up on or large-scale fail to coordinate across agencies to monitor investigate filed complaints); Rezoning Neighborhoods demise is large-scale landlords who game the system by exploiting gaps in system by exploiting who game the large-scale landlords demise is enforcement. city housing 172,000 rent-stabilized units became deregulated in the past decade. units became deregulated in the 172,000 rent-stabilized tion system is split between three city and state agencies, resulting in splin- between three city and state agencies, tion system is split efforts. tered enforcement York’s outdated, ineffective policies and failure to respond legislatively ineffective policies and failure to York’s outdated, and allowing the way major cities are falling behind demonstrate yet another to widen. housing supply and demand gap between affordable 2019] city home. call the ALR buildings by creating high turnover amongst tenants and then renovating the tenants and then renovating amongst by creating high turnover buildings rent-regu- prices that fall under the eligible rental them above units, placing lation. The Revolving Housing Loan Fund (RHLF) is a partnership between several The Revolving Housing Loan Fund pulled ten million dollars together state and local agencies and originally Colorado Department of Local Affairs,from the city, Denver County, the call-for-crackdown-on-rent-fraud-in-rezoning-neighborhoods/ (detailing how the New York call-for-crackdown-on-rent-fraud-in-rezoning-neighborhoods/ (detailing how the New New York Department of of Finance and the City Department of Buildings and Department efforts regard- Renewal continually fail to coordinate enforcement and Community Housing ing rent fraud in destabilizing units). Side neighborhoods Upper West between 2007 and 2014. were deregulated Manhattan’s and transformed from a local issue to a national one, there are some small and transformed from a local issue aimed established a housing fund victories. Nearly three years ago, Denver struggle to create affordable housing. at injecting new life into the city’s C Y adm_71-3_41554 Sheet No. 112 Side A 09/18/2019 13:09:53 09/18/2019 A No. 112 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 112 Side B 09/18/2019 13:09:53 M K C Y 97 see also URBED 10 (2005), , C 98 In Phil- 96 Due to the Due 94 95 [71:3 [71:3 Getting Everyone on Board with New 8/28/19 5:47 PM EVIEW R (Nov. 21, 2018), https://nextcity.org/ ORMATED AW L ITY Emily Nonko, C )_ME F cf. EXT ELETE D , N OT N O DMINISTRATIVE DMINISTRATIVE (D A ‘Here Until They Take Me Out’: DC Tenants Use the Law to Fight Gen- Use Out’: DC Tenants They Take Me Until ‘Here Success in Affordable Housing: The Metro Denver Experience Success in Affordable Housing: The Metro Solving Affordable Housing: Creative Solutions Around the U.S. Solving Affordable Housing: Creative Solutions Around EcoVillage Provides Infusion of Affordable, Green Housing in North Minne- DOCX . note 95 (discussing the former gas-station parking lot’s transformation gas-station parking lot’s note 95 (discussing the former (Jan. 3, 2017), https://www.theguardian.com/us-news/2017/jan/ . (Mar. 16, 2018), http://www.startribune.com/ecovillage-provides-infu 16, 2018), http://www.startribune.com/ecovillage-provides-infu . (Mar. ME REVIEW ME supra _ RIB T note 54 (comparing Denver’s thirty percent increase in available housing units note 54 (comparing UARDIAN Patrick Sisson, Rose Hackman, See See , G TAR SMUCKER supra , S (explaining that the fund specifically targets projects that are right on the cusp of eligibility (explaining that the fund specifically targets 71.3_ 95. An increasingly common, localized approach to increasing affordable An increasingly common, localized 96. Shannon Prather, 98. 97. Sisson, 94. Jessica L. Webster, Denver is not alone; both Minneapolis and Philadelphia are approaching are approaching and Philadelphia not alone; both Minneapolis Denver is These approaches reflect several avenues that city and state governments and state reflect several avenues that city These approaches adelphia, a forty-eight million dollar affordable housing LEED apartment million dollar affordable housing adelphia, a forty-eight transit hub and incor- constructed near a SEPTA building was purposefully group offices. pharmacy, and several community porated a health clinic, for Colorado Housing and Finance Authority (CHFA) funding but are not likely to receive funding but are not likely to receive (CHFA) for Colorado Housing and Finance Authority housing credits). low-income housing stock is overhauling local zoning laws as part of a push for housing stock is overhauling local 03/gentrification-washington-dc-housing-topa-right-to-buy. 648 (CHFA). Authority Finance and Housing the Colorado and ALR https://www.bpichicago.org/wp-content/uploads/2014/01/Success-in-Affordable-Housing. https://www.bpichicago.org/wp-content/uploads/2014/01/Success-in-Affordable-Housing. pdf apolis daily/entry/getting-everyone-on-board-with-new-affordable-housing-standards-in-denver daily/entry/getting-everyone-on-board-with-new-affordable-housing-standards-in-denver affordability period for extended the minimum (discussing a new city council measure that new rental units to sixty years). fund’s success, the initial buy-in has expanded and Denver now has a healthy and Denver now has expanded the initial buy-in fund’s success, projects. housing development new affordable pipeline of trification to a sustainable building). sion-of-affordable-green-housing-in-north-minneapolis/477137363/. (July 25, 2017), https://www.curbed.com/2017/7/25/16020648/affordable-housing-apart (July 25, 2017), https://www.curbed.com/2017/7/25/16020648/affordable-housing-apart Revolving Housing Loan Fund’s (RHLF’s) in- ment-urban-development (reporting that the taxes and development impact fees); creased funding will come from new property Capps, was only a twelve D.C., where there between 2005 and 2015 with cities like Washington, percent increase over the same time period); Affordable Housing Standards in Denver expansion to local affordable housing with fresh eyes. An eighteen million eyes. An eighteen housing with fresh to local affordable expansion boasts energy-efficient, in Minneapolis recently completed dollar project such as solar with prominently “green” amenities, mixed-income housing minimal maintenance focused design that require panels and natural-lighting resources. potentially saving the city money and over the long term, are testing out as they search for solutions. Local governments are increasingly search for solutions. Local governments are testing out as they such as rezoning com- strategies that include approaches turning to small-scale variety in housing stock through munities to be more inclusive, establishing policies through local legislation. CLTs, and furthering tenants-rights adm_71-3_41554 Sheet No. 112 Side B 09/18/2019 13:09:53 09/18/2019 B No. 112 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 113 Side A 09/18/2019 13:09:53 ICTION (Apr. 4, F OX , V 649 The process Anacostia is Using a ACT FROM RISIS 104 F C ntain-affordable-hous ntain-affordable-hous . 7, 2018), (May ASH W 1–2 (2016), http://media. OUSING H 8/28/19 5:47 PM EPARATING The Solution to Our Housing Crisis Is The Solution to Our Housing Encouraging new, afford- Encouraging new, ,S 102 One option focuses on recon- One option REATER ROGRAMS P 100 ORMATTED OLICY , G FFORDABLE .P 103 A )_ME F OUS OUSING Michelle Chen, Chen, Michelle H H ELETE (Aug. 29, 2017), https://www.thenation. com/arti- (Aug. 29, 2017), https://www.thenation. ostia-is-using-a-land-trust-to-mai D accord FOR . OT N OLE IN THE OLE IN TR ATION O R S (D ,C note 17 (explaining that CLTs are a type of collective housing note 17 (explaining that CLTs are a type of , N This option gives local jurisdictions control over over control jurisdictions gives local option This 99 NCLUSIONARY The Future of Housing Policy is Being Decided in California The Future of Housing DOCX . supra I HUD’ at 11 (admitting that inclusionary rezoning is still largely dependent on at 11 (admitting that inclusionary rezoning State and local agencies can ease density restrictions near can ease density local agencies State and TURTEVANT ME REVIEW ME EFINING _ 101 FFECTIVE A. S D E CLT FAQ, ISA Id. Id. See But see id. SMUCKER ESIGN D 71.3_ 101. Roberts, David 102. 103. 104. 100. 99. L Another line of attack focuses on increasing variety within a region’s hous- focuses on increasing variety within Another line of attack M K federal funding through Low Income Housing Tax Credit (LIHTC) and Section 8 vouchers federal funding through Low Income Housing provided by HUD). and property ownership that offer a public-private partnership between local government support affordable housing in a particular neigh- agencies and nonprofit organizations that borhood, community, town, or city); to Let Communities Own Property fordable unit or unit density requirements to prevent developers from reducing density if the fordable unit or unit density requirements to away from public transportation). project is eventually built further wix.com/ugd/19cfbe_9a68f933ed6c45bfb5f8b7d2ef49dda0.pdf. Land Trust to Maintain Affordable Housing Land Trust to Maintain cle/the-solution-to-our-housing-crisis-is-to-let-communities-own-property/ (reporting that (reporting that cle/the-solution-to-our-housing-crisis-is-to-let-communities-own-property/ pro- the NYC Department of Housing Preservation and Development launched a new grant in seed funding to grow new CLTs); Stephenson, gram with $1.6 million able development around transportation centers allows jobs in urban areas around transportation centers allows able development while simultaneously to those displaced from city centers to remain accessible outside of crowded ur- incentive for city residents to move providing a small feeling the squeeze. ban neighborhoods public transportation, including height restrictions within a certain walking within a certain height restrictions including public transportation, be in close proximity centers or in areas that will distance of transportation transportation expansions. of approved public 2019] zoning.” “inclusionary ALR figuring zoning regulations to accommodatezoning regulations figuring housing near high-density transit hubs. TO how they develop affordable housing and allows for adaptation to each area’s to each area’s for adaptation housing and allows develop affordable how they housing market. and unique characteristics https://ggwash.org/view/67224/anac begins when a local nonprofit organization buys a property, often one with begins when a local nonprofit organization ing (reporting that the D.C. Douglass Land Trust in Anacostia is ing (reporting that the D.C. Douglass Land Trust working ahead of the Eleventh Street Bridge Project to prevent displacement in a historically African-American neighborhood; affordable, especially for family units). the CLT’s advocates are committed to keeping rent 2018), https://www.vox.com/cities-and-urbanism/2018/2/23/17011154/sb827-california- zoning proposals in a new crop of California housing-crisis (laying out transportation-centric af- to strictly enforce state and local agencies state legislation, including proposals allowing ing stock. CLTs have proven a valuable tool for state and local governments proven a valuable tool for state ing stock. CLTs have local nonprofit housing organizations. as they partner with C Y adm_71-3_41554 Sheet No. 113 Side A 09/18/2019 13:09:53 09/18/2019 A No. 113 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 113 Side B 09/18/2019 13:09:53 M K C Y supra The trusts The trusts This model This model If tenants do 107 . 105 110 Id. 108 [71:3 [71:3 8/28/19 5:47 PM Today, HUD maintains its Either option ensures that the low- EVIEW 112 Id. R ORMATED AW L )_ME F 111 ELETE D . OT N O DMINISTRATIVE DMINISTRATIVE (D note 81 (describing how federal funding aids D.C. trust fund A note 98 (reporting on low-income tenants in a Chinatown apart- note 98 (reporting on low-income tenants in note 104 DOCX . supra supra note 104. supra ME REVIEW ME _ (making decisions about land-use transparent and allowing residents to iden- (making decisions about land-use transparent Under the Tenants Opportunity to Purchase Act (TOPA), build- Opportunity to Purchase Act (TOPA), Under the Tenants Hudson, Hackman, As property value appreciates, the CLT can use profits to improve the buildings, As property value appreciates, the CLT can 109 See id. See Cf. Trust Fund, supra Id. See In this way, CLTs make it easier for low- and middle-income resi- middle-income it easier for low- and CLTs make In this way, SMUCKER 106 71.3_ 108. 109. 107. Chen, 112. 110. Code § 42–3404.02(a) (2016). D.C. 111.then buys the building on behalf of the A developer partnering with the tenants 106. 105. Finally, local legislation has proven a useful tool in preserving the number has proven a useful tool in preserving Finally, local legislation While these localized and largely locally-funded efforts are a good start, While these localized and largely locally-funded ment building that utilized local legislation to prevent its sale and demolishment). to prevent its sale and ment building that utilized local legislation tify the community’s needs and make decisions based on meaningful input) decisions based on meaningful needs and make tify the community’s income or affordable housing remains in the region’s housing supply. income or affordable housing remains in the reinvest in the community, or buy more land locally. land or buy more reinvest in the community, tenants’ associations; Tenants Opportunity to Purchase Act (TOPA) also provides tenants tenants’ associations; Tenants Opportunity to Purchase Act (TOPA) also provides tenants with the option to convert their building into a co-op or continue renting. Hackman, note 98. applicants in covering funding gaps so applicants can ultimately utilize a loan from D.C. and utilize a loan from applicants in covering funding gaps so applicants can ultimately capitalize on tax incentives provided by HUD). have built-in oversight from an advisory committee, typically comprised of from an advisory committee, have built-in oversight and leaders and technical experts. community members not have money to pool, they can bring in third-party developers through a not have money to pool, they can bring of first refusal if such a developer is tenants’ association and cede their right willing to partner with the tenants. ing owners in D.C. must inform tenants of the owner’s intent to sell and give must inform tenants of the owner’s ing owners in D.C. rate. of refusal at the building’s market them the first right 650 a CLT establishes it, and units on housing affordable or buildings apartment the buildings. while leasing out control of the land that retains ALR keeps rental costs down because tenants simply the building, not the lease the building, tenants simply costs down because keeps rental land. dents to stay in their communities, rather than be priced out by gentrification be priced out by rather than in their communities, dents to stay developments. and new, upscale efforts” from “revitalization of available affordable units. Washington, D.C. is one such city that success- units. Washington, D.C. is one of available affordable in favor of to prevent long-time resident displacement fully used legislation to wealthier income that would ultimately cater new housing development brackets. they barely make a dent in the mounting need for affordable housing. State they barely make a dent in the mounting position to inform decisions on how to and local governments are in the best varying factors regions with in different sustain and create affordable housing is the springboard that can help and influences. However, federal funding off the ground and closer toward craft- this regionally-focused knowledge get solutions. ing and implementing meaningful adm_71-3_41554 Sheet No. 113 Side B 09/18/2019 13:09:53 09/18/2019 B No. 113 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 114 Side A 09/18/2019 13:09:53 IMES :A , N.Y. T However, 651 OUSING 118 H RISIS C UCCESS S OUSING H 8/28/19 5:47 PM FFORDABLE the HUD Inspection Process the HUD Inspection A nity with Waivers that Enable Re- that Enable Waivers nity with Act of 2018, S. 3503, 115th Cong. 114 and the American Housing and and the American the Task Force on the Impact of the Task Force on 116 ORMATTED ECIPE FOR FFORDABLE 115 A )R )_ME F Elizabeth Warren’s Ambitious Fix for America’s Housing Ambitious Fix for America’s Housing Elizabeth Warren’s The most expansive of these proposals is The most expansive URTHERING ELETE 117 F D OT OSSIBLE N OLE IN THE OLE IN (P O R S (D but the agency can no longer ignore the fever pitch fever pitch ignore the longer can no the agency but DOCX . As Affordable Housing Crisis Grows, HUD Sits on the Sidelines As Affordable Housing Crisis Grows, HUD Sits on 113 HUD’ Madeleine Carlisle, Carlisle, Madeleine FFIRMATIVELY A (Sept. 25, 2018), https://www.theatlantic.com/politics/archive/2018/09/ see also ME REVIEW ME EFINING _ ; D  See id. TLANTIC SMUCKER IV. , A 71.3_ 118. 115. Act of 2017, S. 160, 115th Reform Process and Enforcement Inspection HUD 116. Crisis Act of 2018, S. 3231, Housing of the Affordable Task Force on the Impact 117. and Economic Mobility American Housing 114. Prosperity, and Opportu Mobility, Economic 113. Thrush, Glenn The national conversation around affordable housing has escalated such around affordable housing The national conversation M K and Enforcement Reform Act of 2017, and Enforcement Economic Mobility Act of 2018. Economic Mobility the Affordable Housing Crisis Act of 2018, the Affordable Housing S. 3503, the American Housing and Economic Mobility Act of 2018, intro- S. 3503, the American Housing and which lays out a multifaceted approach duced by Senator Elizabeth Warren, crisis through the country. to combatting the affordable housing (July 27, 2018), https://www.nytimes.com/2018/07/27/us/politics/hud-affordable-housing 2019] approach, hands-off ALR (2d Sess. 2018) (revising the Community Reinvestment Reform Act to include greater pen- alties against discriminatory lenders and raising the estate tax to fund new federal housing subsidy programs). forms for States (EMPOWERS) Act of 2017, S. (establish- 1427, 115th Cong. (1st Sess. 2017) forms for States (EMPOWERS) Families and enabling governors to Low-Income ing the Interagency Board for Empowering requirements). federal assistance program apply for waivers from employees from their positions based on Cong. (1st Sess. 2017) (allowing HUD to remove landlords receiving Section 8 payments proven misconduct or poor performance, including for their voucher tenants). safe living conditions who fail to maintain Congressional115th Cong. (2d Sess. 2018) (establishing a task force to examine potential leg- islative solutions to the affordable housing crisis). -crisis.html (explaining that the Trump Administration’s focal policy response to the escalating Administration’s (explaining that the Trump -crisis.html rents for about 712,000 of the poorest tenants re- national housing crisis is a “plan to triple ceiving federal housing aid and . . . households enrolled loosen the cap on rents on 4.5 million nationwide”). in federal voucher and public housing programs mounting within the affordable housing crisis. The issue’s severity shows no issue’s severity The housing crisis. within the affordable mounting it is time onward and upward, climbing and with demand signs of easing, a different approach. HUD took that several members of Congress have finally taken notice. Recently mem- of Congress have finally taken notice. that several members including the Eco- a slew of new housing legislation, bers have introduced that Enable Re- and Opportunity with Waivers nomic Mobility, Prosperity, Act of 2017, forms for States (EMPOWERS) elizabeth-warrens-fix-americas-housing-crisis/571210/?utm_campaign=atlantic-politics-and Crisis C Y adm_71-3_41554 Sheet No. 114 Side A 09/18/2019 13:09:53 09/18/2019 A No. 114 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 114 Side B 09/18/2019 13:09:53 : . . M K C Y IST ASH ASH L 123 , W , W The FHA, PARTMENT 120 A , As necessary as made it illegal to Pete Haviland-Eduah, 122 121 Fortunately, HUD Fortunately, cf. 119 [71:3 [71:3 8/28/19 5:47 PM EVIEW R ORMATED AW L )_ME F ELETE D OT N O www.washingtonpost.com/news/the-fix/wp/2015/07/10/ DMINISTRATIVE DMINISTRATIVE (D A note 118 (explaining that the estate tax proposal in the bill has “no note 118 (explaining that the estate tax proposal A Rundown of Just How Badly the Fair Housing Act Has Failed Act Has Badly the Fair Housing A Rundown of Just How DOCX . supra Reviving an Obama-Era Ghost in the Name of Efficiency Ghost in the Name of Reviving an Obama-Era  A. ME REVIEW ME _ , 2019), https://www.apartmentlist.com/rentonomics/housing- (Sept. 19, Janell Ross, Carlisle, Carlisle, § 804, 82 Stat. 83. See See Id. Obama Administration to Unveil Major New Rule Targeting Segregation Across U.S. New Obama Administration to Unveil Major SMUCKER (July 10, 2015), https:// (July (July 8, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/07/08 71.3_ 120. 5.150–5.180 (2016); Emily 24 C.F.R. §§ Furthering Fair Housing, Affirmatively 119. In 2015, the Obama Administration and HUD unveiled the Affirmatively Administration and HUD unveiled In 2015, the Obama 123. 122. 121. 800, 82 Stat. 81 (codified at 42 U.S.C. Act, Pub. L. No. 90-284, § Fair Housing ENTONOMICS OST OST chance of passing” if Republican’s control Congress and there is no guarantee either the chance of passing” if Republican’s control mid-term elections); House or the Senate will flip after the 2018 Housing Policy in American: Where Are Elected Officials Taking Action in Congress? Are Elected Policy in American: Where Housing refuse to sell or rent a unit to any person on the basis of race, color, disability, a unit to any person on the basis of refuse to sell or rent familial status, or national origin. religion, sex, disability, policy-in-america-where-are-elected-officials-taking-action-in-congress/ (stating that not one policy-in-america-where-are-elected-officials-taking-action-in-congress/ between 2017 and 2019 made it to Presi- of the eighty-three housing-related bills introduced dent Trump’s desk). Badger, the FHA remains, the law’s ultimate implementation has been dismal. the law’s ultimate implementation the FHA remains, -policy&utm_medium=social&utm_content=edit-promo&utm_source=facebook&utm_term -policy&utm_medium=social&utm_content=edit-promo&utm_source=facebook&utm_term two key approaches include raising (reporting that the bill’s =2018-09-25T10%3A00%3A27 billions into subsidy programs for additional the estate tax back to Bush-era levels to pump to incentivize repealing strict zoning program developers and creating a generous block-grant laws in wealthier communities). 652 either an to be not likely is new legislation climate, political current in the to creating solutions. pragmatic approach efficient or ALR R P P a-look-at-just-how-badly-the-fair-housing-act-has-failed/?noredirect=on&utm_term=.6e20a 8fc9b4a (maintaining that since the Fair Housing Act (FHA) was passed, only a small number of black and Hispanic Americans now live in middle-class or affluent neighborhoods and “the Furthering Fair Housing (AFFH) rule as means of following through with an (AFFH) rule as means of following Furthering Fair Housing of 1968. of the Fair Housing Act (FHA) underutilized portion is already armed with a mechanism that can encourage state and local agen- encourage state and that can armed with a mechanism is already come up with stock and affordable housing examine their cies to carefully markets. housing tailored to their individual solutions also known as Title VIII of the Civil Rights Act of 1968, also known as Title §§ 3601–3633 (1988 & Supp. II 1990)). /obama-administration-to-unveil-major-new-rules-targeting-segregation-across-u-s/?noredir /obama-administration-to-unveil-major-new-rules-targeting-segregation-across-u-s/?noredir 2015 rule as the Obama administration’s the ect=on&utm_term=.cf72d97fbd64 (heralding and promote the kind of racially integrated attempt to “repair the law’s unfulfilled promise segregated cities”).neighborhoods that have long eluded deeply adm_71-3_41554 Sheet No. 114 Side B 09/18/2019 13:09:53 09/18/2019 B No. 114 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 115 Side A 09/18/2019 13:09:53 , , , The no- The 128 653 Jeremiah Jensen, Jeremiah RISIS C see also note 120 (laying out how OUSING supra H 8/28/19 5:47 PM stating the rule’s implemen- The notice breaks down the 127 Badger, 125 Local Government Assessment Tool es- 129 treamlining and Enhancements, 83 Fed. and Enhancements, treamlining ORMATTED FFORDABLE A see also Affirmatively Furthering Fair Housing Rule, 24 Furthering Fair Housing Affirmatively )_ME F In August 2018, HUD issued a public In August 2018, ELETE 126 D OT N OLE IN THE OLE IN See generally Obama Administration Announces New Fair Housing Rules Obama Administration Announces New Fair O R S (D HUD Kills Key Tool Used to Enforce Obama Fair Housing Rule to Enforce Obama Fair Housing Kills Key Tool Used HUD DOCX . HUD’ 5 U.S.C. § 553 (2012) (outlining the process by which federal agencies 5 U.S.C. § Athena Jones, (May 18, 2018),(May https://www.housingwire.com/articles/43415-hud-kills- ME REVIEW ME (Sept. 14, 2018), https://www.housingwire.com/articles/46839-hud-secre (Sept. 14, 2018), https://www.housingwire.com/articles/46839-hud-secre EFINING _ at 40,714. (citing former HUD Secretary Julian Castro’s that the rule was for Secretary Julian Castro’s concession that the rule was for HUD (citing former Ben Lane, D IRE IRE (July 8, 2015), https://www.cnn.com/2015/07/08/politics/fair-housing-rules- Accord See See id. See generally See id. W W This meaningfully-constructed path toward utilizing the oft-ignored utilizing the oft-ignored path toward This meaningfully-constructed SMUCKER 124 COM 71.3_ 125. 126. 124. At present, HUD Secretary Ben Carson and the Trump Administration Secretary Ben Carson and the Trump At present, HUD HUD promulgated the AFFH to clarify the existing fair housing obliga- housing fair the existing to clarify AFFH the promulgated HUD 128. S Furthering Fair Housing: Affirmatively 127. 129. M K OUSING OUSING H the rule requires cities and towns receiving HUD funding to publicly report the results of local the rule requires cities and towns receiving HUD housing segregation assessments). text of the regulation). C.F.R. §§ 5.150–5.180 (2016) (providing the CNN. Title VIII mandates included revamping state and local reporting structures and local reporting revamping state mandates included Title VIII governments must for housing integration that local and establishing metrics their federal funding. meet in order to keep obama-administration/index.html (stating that the rule affects both the Community Devel- obama-administration/index.html (stating Partnership programs and targets housing prac- Investment Grant and HOME Block opment on fair housing). tices that have a disparate impact have taken an opposing stance. have taken an opposing sentially meaningless, before the agency scrapped the rule altogether); sentially meaningless, before the agency scrapped key-tool-used-to-enforce-obama-fair-housing-rule (reporting that HUD first postponed a re- key-tool-used-to-enforce-obama-fair-housing-rule the porting deadline for local governments, making the “long haul” and required “enforcement”); the “long haul” and required “enforcement”); tation over the past three years was “not fulfilling its purpose to be an efficient three years was “not fulfilling its purpose tation over the past meaningful action by program participants.” means for guiding remain deeply segregated”).vast majority of the nation’s neighborhoods 2019] ALR tice took particular aim at the “ineffectiveness of assessment tools,” specifi- aim at the “ineffectiveness of assessment tice took particular agencies submit an As- requirement that state and local cally questioning the HUD. sessment of Fair Housing (AFH) to tions under the FHA, provide HUD grantees with localized data so they with localized HUD grantees the FHA, provide tions under with work toward complying landscape and their fair housing could analyze mecha- rule as an enforcement wield the and ultimately those obligations, nism. must provide notice of a proposed rule, allow the public to participate by submitting com- must provide notice of a proposed rule, allow the public to participate by submitting ments, and consider these comments when making changes to the final rule). tary-ben-carson-lays-out-his-plans-for-affordable-housing-and-regulatory-reform (“What we (“What tary-ben-carson-lays-out-his-plans-for-affordable-housing-and-regulatory-reform burdens, while at the same is to lessen regulatory . . . want to do in pursuing new rulemaking their obligations.”). meet help local officials time, Reg. 40,713 (Aug. 16, 2018). notice for comments on amending the AFFH, notice for comments HUD Secretary Ben Carson Lays Out His Plans For Affordable Housing and Regulatory Reform HUD Secretary Ben Carson Lays Out His Plans H C Y adm_71-3_41554 Sheet No. 115 Side A 09/18/2019 13:09:53 09/18/2019 A No. 115 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 115 Side B 09/18/2019 13:09:53 M K C Y EWS (Aug. N AB L ITY , NBC , C Trump Administration Post- [71:3 [71:3 ., HUD Seeks to Streamline and 8/28/19 5:47 PM EV EVIEW D (Jan. 4, 2018), https://www.ny R ORMATED IMES AW RBAN L T )_ME F .&U 131 ELETE OUS D Emily Badger & John Eligon, , N.Y. H OT T N While the Obama Administration originally While the Obama Administration ’ O EP 134 see also DMINISTRATIVE DMINISTRATIVE (D D A However, refocusing the AFFH, rather than eras- However, refocusing the AFFH, Ben Carson is a YIMBY Now and Everything’s Confusing Ben Carson is a YIMBY A Bird in the Hand is Worth Two in the BushA Bird in the Hand is but if the basic framework is adapted and rebuilt effi- but if the basic framework DOCX 133 . note 126 (detailing how HUD decided to nullify reporting deadlines note 126 (detailing how HUD decided to nullify  132 B. Ben Carson Moves to Roll Back Obama-Era Fair Housing Rule to Roll Back Obama-Era Fair Housing Ben Carson Moves supra ME REVIEW ME _ Lane, Kriston Capps, Id. Id. See Cf. Furthermore, HUD claims the State and Insular Area tool was Insular Area tool the State and HUD claims Furthermore, SMUCKER 130 71.3_ While the rule was originally intended to dismantle stubbornly persistent originally intended to dismantle stubbornly While the rule was 133. U.S. Release, Press 130. 131. 132. 134. This year, Secretary Carson stated that the AFFH “dictated unworkable This year, Secretary Carson stated segregation across the country, today HUD should use the rule, or a similar the country, today HUD should use segregation across pressing issue: the to address another systematically rule-based framework, has made large chunks crisis. The Trump Administration affordable housing of the AFFH moot, times.com/2018/01/04/upshot/trump-delays-hud-fair-housing-obama-rule.html (reporting times.com/2018/01/04/upshot/trump-delays-hud-fair-housing-obama-rule.html (Aug. 13, 2018), https://www.nbcnews.com/politics/white-house/ben-carson-moves-roll- (Aug. 13, 2018), https://www.nbcnews.com/politics/white-house/ben-carson-moves-roll- on Secretary Carson’s plan to com- (reporting back-obama-era-fair-housing-rule-n900366 rule’s requirements). pletely roll back the AFFH 654 Area As- Insular State and the rule: under developed tools assessment three Assessment Local Government Tool, and Tool, PHA Assessment sessment Tool. ALR developed and implemented the AFFH to dismantle systemic segregation developed and implemented the AFFH restructuring the rule’s ultimate and prevent , ciently, the AFFH could serve as HUD’s most cost-effective tool for creating, could serve as HUD’s most cost-effective ciently, the AFFH access to affordable housing. protecting, and ensuring never actually developed, the PHA tool was made unavailable because nec- made unavailable PHA tool was developed, the never actually Government and the Local was not available, to make it workable essary data “significant deficiencies.” tool had pones an Obama Fair-Housing Rule ing it, is precisely the right approach that HUD can take in addressing the ing it, is precisely the right approach affordable housing crisis. for state and local PHAs and expressed doubts that threatening to pull federal funding was an that for state and local PHAs and expressed doubts appropriate enforcement tool); Enhance ‘Affirmatively Furthering Fair Housing’ Rule (Aug. 13, 2018), Enhance ‘Affirmatively Furthering Fair Housing’ Rule (Aug. 13, https://www.hud.gov/press/press_releases_media_advisories/HUD_No_18_079. 14, 2018), https://www.citylab.com/equity/2018/08/ben-carsons-new-argument-against-fair for the -housing-rules-its-about-/567449/ (surmising that Secretary Carson’s support Back Yard” movement and HUD’s attempt to “streamline and enhance” the “Yes In My in addressing affordable housing). use the rule’s potential future demonstrate AFFH on HUD’s decision to suspend the Affirmatively Furthering Fair Housing (AFFH) rule’s dead- (AFFH) Furthering Fair Housing decision to suspend the Affirmatively on HUD’s lines); Suzy Khimm, requirements and actually impeded the development and rehabilitation of requirements and actually impeded affordable housing.” adm_71-3_41554 Sheet No. 115 Side B 09/18/2019 13:09:53 09/18/2019 B No. 115 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 116 Side A 09/18/2019 13:09:53 . 42 EV LATE D Cf. , S OUSING Haviland- ,H RBAN cf. FFIRMATIVELY 655 A OUSE .&U H RISIS OUS C H HITE W ULE ON T OF ’ OUSING HE H EP 8/28/19 5:47 PM D ., HUD R , U.S. EV ORMATTED By shifting the focus of these core By shifting the focus able housing shortage requires that the fed- D FFORDABLE 138 A , https://www.huduser.gov/portal/datasets/ , https://www.huduser.gov/portal/datasets/ )_ME F RBAN Id. ELETE D ESEARCH OT N .&U OLE IN THE OLE IN O R S (D OUS .&R H 2 (Sept. 2016), https://www.whitehouse.gov/sites/whitehouse. DOCX EV Ben Carson Ends Obama-Era Efforts to Reduce Housing Segregation Ben Carson Ends Obama-Era Efforts to Reduce Housing . 137 HUD’ 135 D The overwhelming overlap between people of color and between people overlap The overwhelming T OF ’ 136 OOLKIT EP T ME REVIEW ME D OLICY EFINING _ P D note 119 (finding that seventy percent of housing-related bills introduced from of housing-related note 119 (finding that seventy percent Dataset: Assisted Housing: National and Local Dataset: Assisted Housing: supra SMUCKER 71.3_ 136. 137. Focusing on the real source of the afford As of 2017, minorities made up sixty-four percent of HUD’s beneficiaries; of HUD’s beneficiaries; up sixty-four percent minorities made As of 2017, 135. Grabar, Henry 138. U.S. At its inception, the AFFH emphasized three key components: providing AFFH emphasized three key components: At its inception, the FFICE OF M K EVELOPMENT Eduah, by members2017–2019 were sponsored or co-sponsored of the Congressional Black Caucus, Caucus). Pacific American Caucus, and Asian Hispanic that is, of all the people benefiting in some way from a federal, state, and way from a federal, in some all the people benefiting that is, of HUD, nearly two-thirds funded by local programs was a of that population color. person of assthsg.html#2009-2017_query (follow “Dataset” hyperlink; then search using the “2009- assthsg.html#2009-2017_query (follow “Dataset” tab, “2017” under Select a Year, “U.S. Total” 2018” category and select the “Query Tool” HUD Programs” under Select a Program, All of under Select a Summary Level, “Summary Non-Hispanic,” Asian or Pacific Islander Non-Hispanic,” “% “%Black Minority,” and “% is further broken down This number Hispanic”; then click “Get Results” button). and “% Asian or Pacific Islander Non-His- four percent into forty-two percent black non-Hispanic, panic, and seventeen percent Hispanic. eral government utilize administrative rule-making powers to engage state and local agencies eral government utilize administrative rule-making regarding the affordable housing crisis. and establish a collaborative plan of attack U.S.C. § 3535(d) (2012) (“The Secretary . . . may make such rules and regulations as may be may . . . 3535(d) (2012) (“The Secretary U.S.C. § necessary to carry out his functions, powers, and duties.”); T D 2019] and be two-fold still potentially could housing affordable toward purpose issues. address both ALR O (Aug. 13, 2018), https://slate.com/business/2018/08/ben-carson-ends-obama-era-efforts- out that the FHA is meant to “attack segrega- to-reduce-housing-segregation.html (pointing but quoting Secretary Carson as stating that tion, not scarcity [of affordable housing],” production across the board”); changes to the AFFH would “bolster housing gov/files/images/Housing_Development_Toolkit%20f.2.pdf (suggesting that state and local gov/files/images/Housing_Development_Toolkit%20f.2.pdf agencies can address the “growing severity of undersupplied housing markets” by eliminating zoning restrictions, unnecessarily slow per- local barriers to housing development, including processes, and land use restrictions). mitting data to HUD grantees regarding patterns of segregation; clarifying and sim- regarding patterns of segregation; data to HUD grantees local governments, housing obligations; and enabling plifying existing fair fair housing goals insular areas to set locally-determined PHAs, and state and HUD via an AFH. and report back to people benefiting from HUD-funded programs suggests thatfrom HUD-funded programs suggests people benefiting the results of positive results across or reimagined AFFH would reap enforcing a reworked deeply-ingrained initiatives and efforts to dismantle both affordable housing housing segregation. C Y adm_71-3_41554 Sheet No. 116 Side A 09/18/2019 13:09:53 09/18/2019 A No. 116 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 116 Side B 09/18/2019 13:09:53 , M K T ’ C Y EP ]. In shift- 140 UMMARY [71:3 [71:3 8/28/19 5:47 PM EVIEW R 4 (2015) (citing Congressional acts in 42 (2015) [hereinafter S In the CDBG program, a disclo- ORMATED AW L 142 )_ME F UMMARY S UIDEBOOK ]. For example, the LIHTC program would For example, the LIHTC program ELETE G . D 141 note 7, at 15 (stating that twenty percent of a develop- OT ULE Mayors Take the Fight for Affordable Housing to Capitol Hill Take the Fight for Affordable Housing Mayors N O supra XECUTIVE DMINISTRATIVE DMINISTRATIVE (D UIDEBOOK ., note 138 A G :E DOCX . ., AFFH R supra ULE , EV D ARTY ET AL , Capps, Kriston C ME REVIEW ME C _ AIR HOUSING The One, Two (Three) Punch: Clarifying, Quantifying, and Assessing The One, Two (Three) UMMARY RBAN F M S  HUD should implement incentive and enforcement mechanisms incentive and enforcement HUD should implement See See, e.g. See C. .&U (Jan. 29, 2018), https://www.citylab.com/equity/2018/01/mayors-take-the-fight- SMUCKER AB 139 139 OUS L 71.3_ 141. they “certify that grantees all HUD that was AFFH the under obligation such One Taking this well-rounded approach to repurposing the AFFH will demon- the AFFH will to repurposing well-rounded approach Taking this When adapting the AFFH’s first arm in understanding their HUD- When adapting the AFFH’s first 139. 142. Pragmatic awareness was foundational to the AFFH; communities could was foundational to the AFFH; Pragmatic awareness 140. H ITY URTHERING C will affirmatively further fair housing as a condition of receiving Federal funds.” U.S. D further fair housing as a condition of receiving Federal funds.” U.S. will affirmatively F 656 the could utilize HUD housing, affordable to fair housing from elements state and local system for create a federal support structure to AFFH’s basic housing of the affordable to address the effects as they each work agencies communities. crisis in their take dil- state and local agencies to ensuring agency’s commitment strate the housing stock. steps toward increasing their affordable igent, meaningful compromise or dra- readjusting the rule does not Perhaps most importantly, authority” framework. long-standing “delegation of matically alter HUD’s find workable solu- the mounting pressure to Furthermore, considering tions, ALR ment’s units is the threshold for developers hoping to qualify for a LIHTC). sure would explain that grant recipients must use seventy percent of their sure would explain that grant recipients U.S.C. §§ 5304(B)(2), 5306(d)(7)(B), 12705(b)(15), 1437C-1(d)(16) intended to reinforce the intended to reinforce the 1437C-1(d)(16) 5304(B)(2), 5306(d)(7)(B), 12705(b)(15), U.S.C. §§ mandate) [hereinafter R OF require disclosures regarding what percentage of a building’s total units de- percentage of a building’s require disclosures regarding what with incomes less than, or equal to, fifty velopers must reserve for households percent of the region’s median income. ing the rule’s spotlight away from fair housing and toward an affordable hous- ing the rule’s spotlight away from fair framework virtually unchanged. ing context, HUD can leave this overarching HUD must clarify existing grantee obli- prescribed fair housing obligations, the agency’s various avenues of gations and requirements that accompany funding for affordable housing. within the rule. not realistically dismantle and remedy housing segregation if they did not fully segregation if they housing not realistically dismantle and remedy fair housing obligations, identify local understand their HUD-prescribed set goals and track progress. problem areas, and utilize this data to for-affordable-housing-to-capitol-hill/551618/ (detailing a new public-private coalition’s de- for-affordable-housing-to-capitol-hill/551618/ in affordable housing). investment for more mand adm_71-3_41554 Sheet No. 116 Side B 09/18/2019 13:09:53 09/18/2019 B No. 116 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 117 Side A 09/18/2019 13:09:53 . LOG B 657 APCHATS :M RISIS AP C 143 M -furthering-fair-housing/. OLICY OUSING 147 H , P 8/28/19 5:47 PM The mapping was a key com- The mapping was Rather than pulling data on Id. 146 149 ORMATTED FFORDABLE A The database enabled HUD to isolate The database enabled )_ME F 145 ELETE D Id. note 120 (explaining how the mapping was intended to note 120 (explaining how the mapping was OT N OLE IN THE OLE IN O R supra S (D Affirmatively Furthering Fair Housing note 120 (characterizing the AFFH’s centerpiece as “a vast trove note 120 (characterizing the AFFH’s centerpiece note 120 (describing how HUD originally hoped communities note 135 (discussing how Chester County, Pennsylvania promised note 145. The “Racially/Ethnically Concentrated Areas of Pov- DOCX . HUD’ Badger, However, because the database is largely built on wide- However, because supra supra supra supra 148 accord ME REVIEW ME at 16 (citing that eligible community projects include crime prevention ser- at 16 (citing that eligible community projects ; https://www.policymap.com/2016/12/affirmatively EFINING _ D Badger, Badger, Grabar, For instance, HUD could pull numbers for neighborhood poverty rates and For instance, HUD could pull numbers See id. See Cf. See id. See Id. Likewise, grantees could similarly access the database to identify Likewise, grantees could similarly The AFFH’s lofty goals all lived and died according to data; to fully to data; lived and died according lofty goals all The AFFH’s SMUCKER 150 144 71.3_ 147. 150. 149. Furthermore, HUD is perfectly positioned to educate communities about educate communities positioned to HUD is perfectly Furthermore, 143. 144. 146. 145. Davidson, Joshua 148. Davidson, Under the AFFH, the most crucial data layer was the “Racially/Ethnically the most crucial data layer was the “Racially/Ethnically Under the AFFH, M K access to public transportation and determine if there was clear overlap that might support an if access to public transportation and determine inference of causation or correlation. unveil previously invisible barriers, theoretically making them harder to ignore). unveil previously invisible barriers, theoretically would utilize the tool to see where systemic segregation and deficits in affordable housing coexisted and further identify which neighborhoods had no affordable housing available) erty” (R/ECAP) layer also encapsulated smaller areas where the poverty rate was more than areas where the poverty rate was more than erty” (R/ECAP) layer also encapsulated smaller three times greater than general region’s average rate. the state of their local housing stock by utilizing a formidable AFFH data a formidable stock by utilizing of their local housing the state tool. race or ethnicity, HUD can isolate and layer data subsets concerning poverty race or ethnicity, HUD can isolate and growth, or lack thereof. Within rates and new development and economic state and local grantees uti- eighteen months of the AFFH’s implementation, areas and develop desegregation rem- lized the database to identify problem edies. ponent of the AFFH because it revealed previously unseen, unknown, or ig- because it revealed previously unseen, ponent of the AFFH segregation within communities. nored patterns of educate and inform communities regarding locally entrenched segregation, locally entrenched regarding inform communities educate and health, em- education, demographic, economic, a database of HUD built data. ployment, and transportation (Dec. 14, 2016), 2019] individuals. and moderate-income low- to benefit funding ALR vices, addiction and housing counseling, beautification, and localized economic development). and localized economic vices, addiction and housing counseling, beautification, of geographic data covering every community in the country” that includes local poverty rates, of geographic data covering every community school quality, and public transportation options concentrations of Section 8 vouchers, public and efficiency). data subsets for a region, layer multiple subsets on top of each other to create layer multiple subsets on top data subsets for a region, pinpoint problem areas. localized maps, and Concentrated Areas of Poverty” (R/ECAP) that tracked pockets where more of Poverty” (R/ECAP) that tracked Concentrated Areas forty percent, or more, the residents were non-White and than fifty percent of lived in poverty. ranging census data, utilizing this tool to identify localized affordable housing ranging census data, utilizing this tool deficits requires only simple modifications. C Y adm_71-3_41554 Sheet No. 117 Side A 09/18/2019 13:09:53 09/18/2019 A No. 117 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 117 Side B 09/18/2019 13:09:53 M K C Y OMMUNITY Letter from C VERSIGHT OF the agency’s O 155 But see 152 the three subcate- 156 OUSING AND [71:3 [71:3 ,H 8/28/19 5:47 PM Although Secretary Carson Although Secretary FFICE EVIEW O 151 R EQUIREMENTS AND Affirmatively Furthering Fair Housing: Furthering Fair Housing: Affirmatively treamlining and Enhancements, 83 Fed. and Enhancements, treamlining ORMATED R AW L )_ME F see also ELETE (2010) (reporting to Congress on HUD’s lack of over- (2010) (reporting to Congress on HUD’s lack D CCOUNTABILITY OT A NHANCE ITS N LANS E T O ’ P DMINISTRATIVE DMINISTRATIVE (D OV A G note 135 (reporting that Secretary Carson labeled the AFFH as- note 135 (reporting that Secretary Carson ]. DOCX . note 135. OUSING U.S. supra H EEDS TO EPORT supra R AIR ME REVIEW ME _ (quoting Assessment of Fair Housing (AFH) supporters and academic contrib- ’F Grabar, The intensive reporting requirements stipulated by the AFFH requirements stipulated by The intensive reporting See See generally Id. See id. 153 Researchers at Massachusetts Institute of Technology (MIT) evalu- Institute of Technology Researchers at Massachusetts : HUD N SMUCKER 154 71.3_ 151. S Furthering Fair Housing: Affirmatively 152. 153. While debate over the AFH’s workability continues, While debate over the AFH’s workability Finally, once the database helps grantees identify problems, establish identify problems, helps grantees the database Finally, once 154. Grabar, 155. 156. RANTS CCOUNTABILITY URISDICTIONS Matt Josephs et al., Senior Vice President for Policy, Local Initiatives Support Corp., to the Josephs et al., Senior Vice President for Matt that the 23, 2016) (warning HUD (May of Hous. & Urban Dev. Gen. Couns., U.S. Dep’t Off. strain on grantees submitting responses).AFH may be too complicated and place an undue ated the AFFH after implementation and summarily concluded that the re- implementation and summarily ated the AFFH after not unduly burdensome on communities. porting process was renewed reliance on the old “analysis of impediments” assessment tool is mis- the old “analysis of impediments” renewed reliance on guided. J to lower the number of Section 8 voucher recipients living in poverty-stricken areas from forty- living in poverty-stricken to lower the number of Section 8 voucher recipients data and constructing a plan for reducing area’s four to thirty-nine percent after reviewing the the number). G Reg. 40,714. 658 issues and housing affordable local down to the region, specific solutions craft throughout a region. each neighborhood plans for to individualized will ensure reporting system a mandated chart a course forward, goals, and such a The AFFH established effort to comply. make a good faith grantees assess- three slightly different the AFH had the AFH tool; system through grantees, local govern- methods for the varying types of ment and reporting states and insular areas. ments, PHAs, and ALR sessment tool for local governments as “unworkable” after noting that thirty-one out of forty- sessment tool for local governments as “unworkable” were rejected); assessments nine submitted Streamlining and Enhancements, 83 Fed. Reg. at 40,714Streamlining and Enhancements, 83 Fed. Reg. (Aug. 16, 2018). sight into grantees’ due diligence regarding the FHA requirements) [hereinafter sight into grantees’ due diligence regarding A were not implemented to burden grantees, but rather to keep them account- to burden grantees, but rather were not implemented able. gories for reporting—local government, PHA, and state and insular areas—gories for reporting—local government, the MIT researchers stressed that, should remain untouched. Furthermore, submitted were rejected, the AFH although a majority of the first assessments relationship with grantees that pro- forced HUD to have a close working chipping away at small pockets of duced measurable results, ultimately claims the AFFH fell flat and ultimately decided to scrap it, fell flat and ultimately decided to scrap claims the AFFH utors as extolling the assessment method’s positive impact and results). method’s utors as extolling the assessment adm_71-3_41554 Sheet No. 117 Side B 09/18/2019 13:09:53 09/18/2019 B No. 117 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 118 Side A 09/18/2019 13:09:53 In Id. Even 160 659 (Apr. 10, 2015), RISIS C TLANTIC A HE OUSING H , T 8/28/19 5:47 PM ORMATTED In this way, grantees would mostly In this way, grantees FFORDABLE 159 note 153, at 9–10 (finding that the previous note 153, at 9–10 (finding that the previous A )_ME F supra , ELETE D OT The AFH’s high assessment standards might standards high assessment AFH’s The Rather, HUD’s central approach should rally Rather, HUD’s central approach N OLE IN THE OLE IN EPORT O R 157 R 161 S (D How Education Policy Went Astray How Education Policy Went DOCX . HUD’ note 135. note 135. supra supra ME REVIEW ME Passing Out Candy or Cracking the Whip: Incentives v. Enforcement Cracking the Whip: Incentives v. Enforcement Passing Out Candy or EFINING _ CCOUNTABILITY An additional distinction between NCLB’s reporting structure and the one D A  Julian E. Zelizer, Id. D. Cf. id. Cf. Cf. Rather than remain detached, HUD would be clued into a commu- HUD would than remain detached, Rather SMUCKER 158 71.3_ Since 1974, HUD has acted more like a funnel of federal funding rather has acted more like a funnel of federal Since 1974, HUD 159. 160. Grabar, 161. 157. Grabar, The goal of adding an additional incentive/enforcement layer to the The goal of adding an additional 158. M K than an agency with a clear stake in creating affordable housing. Reconfig- a clear stake in creating affordable than an agency with tool for affordable housing would uring and utilizing the AFH assessment serving as “a meaningless rubber- counteract fears that HUD could continue of the nation’s housing crisis. stamp for local officials” in the midst contrast, HUD should amend the three reporting assessments within the AFH tool to address within the AFH the three reporting assessments should amend contrast, HUD different standards, depending on what type of entity is reporting, and further develop retain autonomous decisionmaking power and leave HUD’s delegation of decisionmaking power and leave retain autonomous collaboration through intact. Advancing this model of authority framework identifying if and how reporting guidelines is crucial for assessment tools and their affordable housing stock. grantees are expanding https://www.theatlantic.com/education/archive/2015/04/how-education-policy-went-astra y/390210/ (describing how the No Child Left Behind (NCLB) Act shuttered schools that did schools already under the strain of mini- testing standards and pulled funding from not meet mal funding). Relying on an incentive and enforcement system similar to the one imple- mented as part of the NCLB would similarly impose unrealistic standards and punish regions those standards by yanking funding, precisely when a region desperately needs that fail to meet resources. proposed here is NCLB’s misguided reliance on a standardized metrics of success. analysis of impediments (AI) reporting structure allowed HUD grantees to continue receiving analysis of impediments (AI) reporting structure and that nearly thirty percent of grant- guidelines federal funding despite failing to follow FHA for HUD to review). ees did not even have updated AI evaluations 2019] segregation. local systemic ALR further, an assessment and reporting structure can inform HUD’sfurther, an assessment and reporting decision- or enforcement actions. making regarding doling out incentives or detrimentally, punish state and local amended AFFH is not to unduly, the moment an assessment does not governments by withholding funding meet reporting standards. nity’s progress and, in the event of a report’s rejection, provide suggestions rejection, provide event of a report’s and, in the nity’s progress assessment criteria. on how to meet the have created a tedious back-and-forth between HUD and grantees, but HUD and between a tedious back-and-forth have created HUD’s would strengthen context this volley affordable housing within the between the collaboration and facilitate greater with recipients relationship two. C Y adm_71-3_41554 Sheet No. 118 Side A 09/18/2019 13:09:53 09/18/2019 A No. 118 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 118 Side B 09/18/2019 13:09:53 M K ., 167 C Y EV D IZMODO , G RBAN &U OUSING H [71:3 [71:3 T OF 8/28/19 5:47 PM ’ EP Instead, the revised AFH as- the revised AFH Instead, The feedback and back and The feedback and Id. EVIEW The review process not only The review process D R 162 166 164 ORMATED AW L , U.S. )_ME F This review model already has striking This review model 165 ELETE D OT N O odo.com/7-smart-new-affordable-housing-projects-making- odo.com/7-smart-new-affordable-housing-projects-making- DMINISTRATIVE DMINISTRATIVE (D A note 118 (detailing an incentive in Senator Warren’s proposed note 118 (detailing an incentive in Senator Warren’s DOCX . 7 Smart New Affordable Housing Projects Making Cities Stronger Projects Making 7 Smart New Affordable Housing supra ME REVIEW ME _ Carlisle, Carlisle, 163 Cf. HUD Review Process – PHA Plans Id. Id. Id. Id. See For areas like Washington D.C., where land-use restrictions and a For areas like Washington D.C., where SMUCKER 168 71.3_ 163. 162. Walker, Alissa 164. 165. 166. 167. 168. HUD already has a mechanism for reviewing deficiencies in the program a mechanism for reviewing deficiencies HUD already has For example, to encourage San Francisco grantees to ease rigid zoning For example, to encourage San Francisco provides that when a plan is rejected it is returned with detailed reasoning a plan is rejected it is returned with provides that when plans “as many times also allows PHAs to resubmit their for that rejection but it is approved. as necessary” until dwindling supply of available space are concerns, instead of simply counting dwindling supply of available space a victory, HUD could reward develop- new units added to housing supply as to reserving higher percentages of af- ers with tax breaks when they commit state and local governments struggling fordable units in their projects. For HUD could or housing policies, to amend or overhaul local legislation regionally-specific timelines for reporting and progress. regionally-specific timelines for reporting and (Dec. 30, 2013), https://gizm cities-s-1488019323. 660 is no There housing. affordable of new creation the incentivizing around are successful and how grantees measuring when approach to one-size-fits-all housing stock. their affordable in improving ALR https://www.hud.gov/program_offices/public_indian_housing/pha/review/ (last visited legislation that specifically appeals to areas with restrictive zoning and provides them access legislation that specifically appeals to areas with restrictive zoning and provides them zoning regulations). if they ease only to new flexible grant money July 20, 2019). sessment and reporting system would rely on localized data from the exten- localized data from would rely on and reporting system sessment HUD and between collaborative relationships database and build sive AFFH grantees. similarities to the AFFH’s reporting structure; therefore applying it within AFFH’s reporting structure; therefore similarities to the be straightforward. the adapted rule would plans PHAs submit to keep their funding. plans PHAs submit The combination of an open working relationship between HUD and grant- The combination of an open working influences allows HUD to develop ees and a concentrated focus on regional such as inclusionary zoning, in- incentives for small victories in categories updated local housing policies.creased variety in housing stock, and strings at- grants with little-to-no regulations, HUD could offer additional project granted a height vari- tached in exchange for each development ance. forth of resubmission only serves to build the relationship between only serves to build the relationship forth of resubmission HUD and metrics of success. to determine regionally-sensitive a grantee as they work adm_71-3_41554 Sheet No. 118 Side B 09/18/2019 13:09:53 09/18/2019 B No. 118 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 119 Side A 09/18/2019 13:09:53 173 While 170 661 RISIS C This collaboration This collaboration 169 ., HUD & Associated Bank ., HUD Similar to the grantee OUSING EV H D 171 8/28/19 5:47 PM RBAN ORMATTED .&U FFORDABLE A OUS )_ME F H But while the threshold should remain But while the threshold should remain ELETE 172 D T OF note 141, at 4. ’ OT EP N OLE IN THE OLE IN D Trump’s Rumored Housing Secretary is Best Known for Keeping His Secretary is Best Known for Keeping His Trump’s Rumored Housing O supra R , S (D note 138, at 2 (detailing the “phased-in approach” that “pro- note 138, at 2 (detailing the “phased-in approach” note 120 (describing how reporting under the AFFH applied more note 120 (describing how reporting under the DOCX . supra HUD’ , (Nov. 14, 2016), https://slate.com/business/2016/11/donald-trump- supra LATE Henry Grabar, ME REVIEW ME EFINING _ , S ULE GUIDEBOOK UMMARY D R Badger, S Press Release, U.S. But see Cf. Cf. See Cf. SMUCKER 71.3_ 171. By working closely with grantees to use updated data, review areas that data, review to use updated closely with grantees By working 169. While the possibility of enforcement through funding cuts should very While the possibility of enforcement 170. 172. 173. M K vides for additional time for communities to adopt this improved process for setting local fair to adopt this improved for communities vides for additional time housing priorities . . . .”). County Segregated 2019] who renovated landlords or government for local grants matching provide kept them affordable. units but would set forward, HUD a plan moving and formulate need improvement, also advise the agency can than write checks; that it does more a precedent of authority framework. within its delegation and guide ALR certification under the AFFH, the amended rule certification under the AFFH, the amended could require that recipients to the assessment and reporting pro- certify their good faith effort to adhere for creating housing, and accuratelycess, establish solid timelines and goals and outside funding, all backing their report current housing numbers, need, down on finding localized solution for overarching commitment to double their affordable housing needs. HUD should work closely with each grantee to create an individualized time- closely with each grantee to create HUD should work how to grantees would ultimately determine line for improvement, utilize shortage of affordable resources, to address severity in their area’s available efforts not reliant how to handle any local housing units, and to determine looks like and what to determine what a small victory on federal funding incentives they want. remain high. much feel tangible, the bar should high, enforcement action cannot merely be theoretical. Having palpable high, enforcement action cannot merely and real avenues for action serves not standards that trigger enforcement commitment to also reinforce HUD’s only to ensure compliance but would solutions to reverse the crisis. the new framework and finding workable pressure on jurisdictions to show results and “require[d] cities and towns all over the country pressure on jurisdictions to show results and bias and to publicly report, every three to five to scrutinize their housing patterns for racial years, the results”). and “phased in approach” is directly applicable to improving affordable is directly applicable to and “phased in approach” governments, locally and allows state and local agencies, housing numbers a high level of autonomy and decision-making. and PHAs to retain could-undo-obamas-big-hud-initiative-in-desegregation.html (detailing how Westchester could-undo-obamas-big-hud-initiative-in-desegregation.html (detailing how Westchester with the AFFH’s rather than comply County, New York ultimately refused federal funding bar fair housing obligations; such a flagrant dismissal of the HUD standards would meet the and pulled funding). measures for enforcement C Y adm_71-3_41554 Sheet No. 119 Side A 09/18/2019 13:09:53 09/18/2019 A No. 119 Side Sheet adm_71-3_41554 adm_71-3_41554 Sheet No. 119 Side B 09/18/2019 13:09:53 M K C Y [71:3 [71:3 8/28/19 5:47 PM EVIEW R ORMATED AW L )_ME F ELETE ONCLUSION D C OT N O DMINISTRATIVE DMINISTRATIVE (D A DOCX . ME REVIEW ME _ SMUCKER 71.3_ The current affordable housing crisis demands more of HUD, despite the housing crisis demands more The current affordable While states, counties, and cities across the country are going through a through are going the country across and cities counties, states, While agency’s decades long, hands-off approach. It is no longer enough that HUD agency’s decades long, hands-off approach. cash them. This structure advan- writes checks and state and local agencies more informed decisions regarding tageously allows communities to make deficit in affordable units. However, the how they should specifically tackle a enforcement from HUD does nothing lack of oversight, collaboration, and efforts to provide residents with an to incentivize innovation or any diligent basic structure of the AFFH rule and affordable place to live. Reviving the and quantify success within a con- making targeted adjustments to measure HUD to address the nationwide crisis text of affordable housing, enables affordable housing stock remains while the onus for creating and maintaining Overhauling what is left of the in the hands of state and local governments. first step toward ensuring the AFFH is how HUD can take an affirmative affordable housing crisis, an invest- agency’s stake in addressing America’s Department of Housing and Urban De- ment belayed by its very name, the velopment. Reach Historic $200 Million Settlement of Red-Lining Claim (May 26, 2015), https://ar Settlement Reach Historic $200 Million of Red-Lining Claim (May chives.hud.gov/news/2015/pr15-064b.cfm (announcing a settlement following complaints filed by HUD against a housing lender that engaged in blatantly discriminatory housing lend- ing practices). 662 ALR housing crisis seemingly en masse, each area’s housing market is unique and market is unique housing masse, each area’s seemingly en housing crisis Imple- specific to that region. and factors a set of characteristics affected by involvement, new level of HUD rule requires a the amended AFFH menting will be in the not mean HUD this does and action; however, investment, directly con- a move and local beneficiaries, micromanaging state trenches framework. Estab- entrenched delegation-of-authority trary to the agency’s allows HUD to build within the amended rule lishing working relationships responsibility of pro- state and local grantees, leaving the partnerships with success looks like solutions and developing what posing regionally-specific in the fight to pro- rewarding any and all small victories with grantees while housing. tect and create affordable adm_71-3_41554 Sheet No. 119 Side B 09/18/2019 13:09:53 09/18/2019 B No. 119 Side Sheet adm_71-3_41554