The Housing and Community Development Act of 1974 created the Community Development Block Grant (CDBG) program. Then as now, exclusionary zoning practices by local governments was on the radar of planners and advocates. Forty years later, exclusionary zoning remains a major problem, notoriously represented by the Westchester County, NY affirmatively furthering fair housing case (see Memo, 4/25, 4/26/13, 4/12/13, 3/29/13, 7/27/12, 5/4/12, 7/22/11, 6/3/11, 1/7/11, 2/26/10, 7/16/10, 8/21/09, 6/5/09).

Observing the Memo to Members series, “40 Years Ago,” NLIHC member Daniel Lauber, AICP, forwarded an article he wrote entitled “The Housing Act and Discrimination,” which was published in the February 24, 1975 issue of Planning magazine.  Regarding the recently implemented CDBG program, Mr. Lauber commented, “There can be no doubt that exclusionary zoning practices obstruct the clear intent of the Housing and Community Development Act to increase employment opportunities and reduce the isolation of lower-income groups. Due to the disproportionately high number of blacks and Spanish-speaking Americans in the lower-income groups, this economic segregation is usually accompanied by racial segregation as well.”

The CDBG statute states that the “primary objective” of CDBG is “the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.” The statute continues with seven “specific objectives,” including one that states that “the reduction of the isolation of income groups within communities and geographical areas and the promotion of an increase in the diversity and vitality of neighborhoods through the spatial deconcentration of housing opportunities for persons of lower income and the revitalization of deteriorating and deteriorated neighborhoods to attract persons of higher income.”

Although that specific objective does not directly cite race or ethnicity, Section 104 of the 1974 Act required jurisdictions to provide “satisfactory assurances” that their use of CDBG funds would conform to the Fair Housing Act of 1968. Today, Section 104, as amended, specifically requires jurisdictions to certify that they will affirmatively further fair housing. The original 1975 regulations specifically required jurisdictions to certify that they would comply with Title VIII of the Civil Rights Act of 1968, the Fair Housing Act, which requires jurisdictions to affirmatively furthering fair housing.

Section 104 of the 1974 Act also required jurisdictions to submit a housing assistance plan (HAP). Among other requirements, the HAP had to indicate, “the general locations of proposed housing for lower income persons with the objective of: furthering the revitalization of the community, including the restoration and rehabilitation of stable neighborhoods; promoting greater choice of housing opportunities and avoiding undue concentrations of assisted persons in areas containing a high proportion of low income persons; and, assuring the availability of public facilities and services adequate to serve proposed housing projects.”

The 1975 CDBG regulations required a jurisdiction’s HAP to include a map showing the concentration of minority groups. Mr. Lauber noted in his article that the maps and census data should enable “HUD officials to easily identify possible exclusionary communities and establish whether a jurisdiction’s housing assistance plan contributes to a continuation of exclusionary practices which limit housing and employment opportunities.”

Mr. Lauber commented that the new CDBG regulations “recognize the invidious and subtle effects of exclusionary zoning.” Specifically, those regulations stated, “A recipient, in determining the site or location of housing provided in whole or in part with [CDBG] funds may not make selections of such site or location which have the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination on the ground of race, color, national origin, or sex; or which have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act, and of this [nondiscrimination] section.”

Even in the absence of overt discrimination, the nondiscrimination section of the 1975 regulations stated that jurisdictions “should take affirmative action to overcome the effects of conditions which would otherwise result in limiting participation by persons of a particular race, color, national origin or sex.” If there was previous discriminatory practice or usage, the regulation stated that “the recipient has the obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage and to accomplish the purpose of the Act.”  

The 1975 regulations also required jurisdictions to document the actions taken to further fair housing, including any site selection policies adopted to promote equal opportunity in housing, and any action taken to assure that land use and development programs funded with CDBG provided greater housing opportunities throughout the area for any identifiable segment of the total group of lower income people.

Unfortunately, over time, the specific provisions of the 1975 regulations that refer to affirmative action to overcome the effects of discrimination have been deleted from the CDBG regulations by one Administration or another.  This is all the more reason for today’s HUD to quickly issue a final rule intended to improve jurisdictions’ obligation to affirmatively further fair housing (see Memo, 9/20/13)

Toward the end of his article, Mr. Lauber wondered, “Will HUD take advantage of this opportunity to stop subsidizing communities that continue to violate federal law? The history of the Nixon-Ford administration bodes ill for the prospects of HUD’s withholding community development block grants from exclusionary communities that refuse to change their ways. Mr. Lauber closes stating, “The Housing and Community Development Act of 1974 gives the federal government an opportunity to use funding disincentives to help break down exclusionary land use practices and regulations. It remains to be seen if this unprecedented opportunity will be exercised.”

Starting in 2009 with Westchester County, NY, today’s HUD began to take steps toward exercising its authority to address a jurisdiction’s refusal to affirmatively further fair housing. Other examples of HUD’s CDBG-related fair housing actions, not limited to exclusionary housing practices, include: State of Texas, (see Memo, 11/13/09), Marin County, CA (see Memo 1/14/11), Joliet, IL (see Memo, 8/19/11), Houston (see Memo, 2/17/12), Sussex County, DE (see Memo, 12/7/12), Dubuque, IA (see Memo, 6/28/13), and Dallas (see Memo, 12/6/13). Although the Westchester County case is still not resolved, HUD has withheld CDBG and HOME funds in response to the County’s ongoing resistance to, among other failings, address exclusionary zoning (see Memo, 4/25).

Daniel Lauber, AICP was elected President of the American Planning Association (1989-86) and twice elected President of the American Institute of Certified Planners (1992-94 and 2003-2005). Mr. Lauber currently heads Planning/Communications, dl@planningcommunications.com

“The Housing Act and Discrimination,” Planning, 24 February 1976 is at: http://bit.ly/1n4I7wE

This “40 Years Ago” article also is based on NLIHC staff member Ed Gramlich’s personal, original copies of the 1974 Act and 1975 regulations.

NLIHC is recognizing its 40th anniversary throughout 2014, culminating in a commemorative event on Monday, November 17 in Washington, DC. Please save the date.