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NHLP Feb 2001 BULL Redone 3 NATIONAL HOUSING LAW PROJECT Housing Law Bulletin Volume 31 • July/August 2001 Published by the National Housing Law Project Demolitions, Conversions, Sales—How to Support Discriminatory Effects Claims in Loss of Units Cases —see page 157 Double Your Tax Refund Donation to NHLP —see box on page 159 Housing Law Bulletin • Volume 31 Page 155 Page 156 National Housing Law Project • July/August 2001 Fair Housing Litigation to Housing Law Prevent the Loss of Federally Assisted Housing: Bulletin The Duties of Public Housing * Volume 31 • July/August 2001 Authorities and Project Owners Published by the National Housing Law Project Part Two of Two Articles: Obtaining Data, 614 Grand Avenue, Suite 320, Oakland CA 94610 Formulating Claims and Anticipating Objections Telephone (510) 251-9400 • Fax (510) 451-2300 www.nhlp.org • [email protected] The poor are not the cause [of distressed neigh- borhoods]. The real cause is the poverty, the unem- ployment, and also the lack of concern by [people Table of Contents responsible for] their condition. So [the poor] are the Page victims. Fair Housing Litigation to Prevent the So I would like to say that I totally disagree with Loss of Federally Assisted Housing: the suggestion to relocate the poor out of the cities. The Duties of Public Housing Doing that is to attack unwholesome problems by Authorities and Project Owners . 157 looking at only one side of it and it will merely bring trouble from one place to another. Where can the poor HUD Issues Partial Final Rule on the move to and how and why? This solution will only Voluntary Conversion of Public perpetuate the same discordance, frustration, and so Housing Developments to Vouchers . .171 forth, which now exists in the cities. HUD Publishes Proposed Rule and Interim Rule Are we going to spend the same expenses to Affecting Existing Section 8 Homeownership build new houses for the poor as we plan to do for Program . .173 the high income in the city? Are we going to build new, good hospitals, new, good facilities, new, good Opt-Out and Prepayment of Four Section 8 public institutions in those areas for the poor?1 Projects Preliminarily Enjoined . .180 Virginia Court Reverses Conviction for Introduction: HUD’s Role Trespass on Privatized Streets Surrounding Public Housing . 182 Part One2 of this two-part series of articles was an overview of federal fair housing law relating to discriminatory effect Recent Housing Cases . 184 liability and the affirmative fair housing duties of public hous- Recent Housing-Related Regulations ing authorities (PHAs) and the owners of federally assisted, and Notices . 186 multifamily housing developments. Part Two will outline the sources of demographic statistical data and other related in- Announcements formation available on the Internet to support claims, describe Double the Impact of your Donation to NHLP— Donate your Tax Refund Through Giveforchange.com . 159 *This series of articles is an extension of an article written by David Bryson Publication List/Order Form . 192 on the fair housing duties of HUD regarding the loss of federally assisted housing. See HUD’s Fair Housing Duties and the Loss of Public and Assisted Units, 29 HOUS. L. BULL. 1 (Jan. 1999)(available online at www.nhlp.org/ hlb/199/199fairhsg.htm). NHLP extends its special thanks to Henry The Housing Law Bulletin is published 10-12 times per year Korman, formerly of Cambridge and Somerville Legal Services and Pro- by the National Housing Law Project, a private nonprofit corpo- fessor Duncan Kennedy of Harvard Law School for their generous assis- ration of the State of California. Opinions expressed in the Bulletin tance in the preparation of this article. are those of the authors and should not be construed as represent- 1 ing the opinions or policy of any funding source. Nho Trong Nguyen, Vietnamese-Buddhist Association of America, Testi- A one-year subscription to the Bulletin is $150. mony before the Committee on Banking, Currency and Housing, House of Repre- th Inquiries or comments should be directed to Robin Fleckles sentatives, 94 Cong., 2d. Sess., 234 (Sept. 20-24, 1976)(cited in John Calmore, or Eva Guralnick, Editors, Housing Law Bulletin, at the National Fair Housing v. Fair Housing, 14 CLEARINGHOUSE REV. 7, 18 (1980)). Housing Law Project, 614 Grand Avenue, Suite 320, Oakland, CA 2 94610, Tel: (510) 251-9400 or via e-mail to [email protected] See Fair Housing Litigation to Prevent the Loss of Federally Assisted Housing: The Duties of Public Housing Authorities and Project Owners, 31 HOUS. L. BULL. 73 (Apr. 2001)(Part One). Housing Law Bulletin • Volume 31 Page 157 how to approach the formulation discriminatory effect theo- utilization patterns may vary according to race, national ori- ries3 in situations involving the loss of public housing and gin, and other categories, in particular, geographic areas.9 federally assisted multifamily housing,4 and discuss the an- ticipated objections to the imposition of discriminatory effect The Picture of Subsidized Households liability against PHAs and project owners. In 1996, 1997, and 1998, the HUD Office of Policy Devel- The duties the Department of Housing and Urban De- opment and Research published a two-part data set, the velopment (HUD) will not be addressed in detail, largely Picture of Subsidized Households (Picture).10 Organized by state, because they have been addressed at length elsewhere.5 How- the Picture data sets report demographic information on ever, any claim brought against a PHA or project owner to households participating in federally assisted housing pro- challenge the loss of housing they administer should often grams for individual public housing and multifamily assisted also involve HUD as a defendant. HUD has fair housing du- housing developments and census tracts.11 The information ties under Title VIII of the Civil Rights Act of 1968, the Fair provided is extensive and includes: the number of units in 6 Housing Act, as extensive as those of PHAs and project own- each development or the number of tenant-based Section 8 7 ers, including the affirmative duty to further fair housing. households per census tract, the percentage of households Despite this, HUD has long been inattentive to its fair hous- of color, the percentage of households with children present, ing duties, making little or no effort to assess the civil rights and the percentages of households including persons with effects of its decisions in the administration of the federal 8 disabilities, average household income, and average length housing programs. In addition, HUD will nearly always be of tenure, in addition to other information.12 involved in the demolition or conversion process—for ex- The data in the Picture is several years old13 and not al- ample, approving and funding public housing demolitions ways complete,14 but provides, nonetheless, a very readily and proposing (or failing to propose) new subsidy levels for accessible and detailed demographic snapshot of a feder- affordable developments subject to project-based Section 8 ally assisted development or patterns of tenant-based Section subsidy contracts—which usually means that HUD’s inclu- 8 utilization in a geographic area.15 The ready availability of sion in a suit will be necessary to obtain full relief and to the Picture online and the ease with which the detailed data preserve the housing that is the subject of the suit. it contains may be analyzed electronically makes it a very powerful resource, especially when paired with some of the Obtaining Demographic Data about Developments, other sources of information described below. Neighborhoods, and Regional Housing Needs The first step in assessing the fair housing effects of the 9The following discussion is intended to guide an initial assessment of threatened loss of a federally assisted housing development is the viability of discriminatory effect claims. Even though the uses of data to assemble a demographic profile of the development and of described below are fairly simple and straightforward, actual presenta- the wider community. Fortunately, a large amount of detailed tion of a demographic analysis at trial is probably best done through an expert witness. See generally ROBERT G. SCHWEMM, HOUSING DISCRIMINATION: information is now publicly available on the Internet. With LAW AND LITIGATION (“SCHWEMM”) at § 32.3(6) (1996). this information, it is possible to determine the demographic 10Available online at www.huduser.org/datasets/assthsg/statedata98/ characteristics of particular housing developments and the cen- index.html (1998); www.huduser.org/datasets/assthsg/statedata97/ sus tracts in which these developments are located and how index.html (1997); and www.huduser.org/datasets/assthsg/statedata96/ housing needs may vary according to racial and ethnic groups index.htm (1996). HUD’s sources for the Picture are 1990 census data and in cities, counties, and metropolitan areas. With a little more HUD-50058 and HUD-50059 forms submitted by PHAs and project own- ers. In addition to the Picture, a more limited report of 1994 PIH data is effort, it is also possible to determine how Section 8 voucher available at: www.huduser.org/publications/pubasst/famdat.html. 11Aggregate information for a PHA’s public housing, tenant-based Sec- tion 8, and Section 8 Moderate Rehabilitation developments are also in- cluded in the Picture. 12There are approximately three dozen data fields of family demographic 3As with Part One, this discussion will focus on federal housing law as it data, in addition to development-specific information such as address, related to race and national origin. Title VIII provides protection on the numbers of bedrooms per unit, and latitude and longitude. Some of house- basis of a number of other classifications as well. See Part One, 31 HOUS. hold demographic data is presented in more than one data field—e.g., L.
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