NIMBY, Equity and Liability for Communities

NIMBY Equity and Liability: Why Planners Need to Understand Fair Housing Law

During the October, 2022 APA Idaho Conference in Boise, Approximately 60 planning professionals heard from experts Erin Anderson (Director, The Housing Company) and Don Elliott, FAICP, J.D. (Director, Clarion Associates) on the impacts of growing NIMBY opposition to residential development that is affordable and/or serves diverse populations. The session references findings and comments from the most recent 2022 Analysis of Impediments to Fair Housing, and provides examples of barriers to fair housing choice and best practices in planning to reduce violations and liability. The session was moderated by Erik Kingston, PCED (Housing Resources Coordinator, IHFA).

Session Description. Housing availability and affordability are top of mind for every community. As local government seeks to cultivate housing diversity and choice, persistent local opposition to multifamily housing, density or diversity poses both a barrier and liability. The Fair Housing Act defines an “aggrieved person” as “any person who . . . claims to have been injured by a discriminatory housing practice,” and the Act expressly protects the rights of housing developers—as well as minorities, families or people with disabilities.

When developers of otherwise conforming subsidized projects are consistently denied permits because of neighborhood pushback, local governments may be liable. NIMBY can drive emotionally charged short-term thinking about what should be long-term planning and development strategies. This panel of fair housing, planning and legal experts will explore existing case law and invite participants to a discussion of practical civic engagement strategies to stay focused on planning principles and long-term community benefits.

Watch the session video here (Courtesy, APA Idaho Chapter)

What Every County and City Needs to Know

If you or your unit of local government receive or administer certain types of federal funding, you need to understand the implications of various federal laws, such as the Fair Housing Act, ADA, Section 504, Section 3, etc. Failure to understand these requirements can lead to unintentional violations and significant liability for professional staff and elected officials, and the for the taxpayers they represent.

The information provided here is merely a starting point; it is critical that each unit of local government conduct a thorough analysis of its policies and procedures along with relevant laws and regulations, and seek professional counsel skilled in Civil Rights Defense and related laws.

Planning implications. It is highly recommended that housing providers and public entities pursue training whenever possible. See “Fair Housing Gets More Serious,” a presentation by Don Elliott, FAICP (Director at Clarion Associates) at Boise’s City Hall on February 3, 2015. Click here to view the video. See also the April 15th, 2015 fair housing conference and training for another example of recent training events held in Idaho.

Please proceed only after reviewing and agreeing to the Waiver of Liability above.

Please note. Information and findings contained in the 2011 Analysis of Impediments represent a point-in-time survey and analysis; individual counties may have subsequently modified policies and procedures, and individual cities or communities may have policies and procedures that differ substantially from their surrounding county. Data collected is only as accurate as the source material; errors or inconsistencies may be present and will be corrected as they are brought to the attention of the AI consultant.

NEW! Webcast / Housing and Takings: A Look at the U.S. Supreme Court’s Inclusive Communities Project and Horne Decisions

Below are links to sample documents for initial review, and official HUD materials for guidance:

  1. Fair housing compliance_local government considerations (read this first)
  2. Excerpt from 2011 AI_Land-Use Regulations and County Summaries (Please review this section for two reasons: first, to verify that the data supplied for your county is accurate as of the 1st Quarter of 2011; and second, to understand the land-use and zoning considerations that influence housing affordability and (indirectly) housing choice for all protected classes. Please report any discrepencies in housing data to erikk @ ihfa.org or dennis.porter @ community.idaho.gov.
  3. 2011 Analysis of Impediments (draft for review and comment)
  4. 2017 Assessment of Fair Housing (2017 AFH)
  5. Fair Housing Planning Guide
  6. HUD/FHEO pages

Boise County, ID In Alamar Ranch LLC v. Boise County, a 2010 court ruling involving a residential treatment facility resulted in a $4 million judgment (not counting legal costs) against Boise County, Idaho. County officials believed they were following standard procedures when reviewing the project application, responding to public testimony from constituents and ultimately granting permits. The plaintiff’s legal team persuaded the court that the net effect of the process constituted discrimination based on disability. Many feel the outcome might have been different with a more complete understanding of fair housing law at the outset. In November, 2011, Judge Lynn Winmill ordered Boise County to levy a tax on its property owners to repay the estimated $5.4M resulting from the court case.

Westchester County, NY Many housing/community development and planning professionals are aware of the Westchester County decision, a recent landmark case involving fair housing and ‘disparate impact’ but filed under the False Claims Act. This case involved a complaint against the county and alleged that HUD funds were being administered in a manner that did not ‘affirmatively further fair housing’ as county and other officials attested to when receiving and distributing those finds. Michael Allen was one of the lead plaintiff’s attorneys in the Westchester County case. He was the featured speaker at the 2010 Fair Housing Conference in Boise, Idaho. Mr. Allen’s travel costs for the 2010 conference were sponsored by the Intermountain Fair Housing Council, a private testing and enforcement contractor based in Idaho.

Select the following link to view Mr. Allen’s clear and informative presentation to the Emory School of Law about the Westchester case.

http://www.youtube.com/watch?v=yzYSH1KcuAQ

See also:

Housing: Foundation of Community and Economic Success

Searching for Opportunity Rich Neighborhoods