The Fair Housing Toolkit brings together available resources to help appointed and elected leader and municipal planning housing and development officials, developers, citizen board members, and other volunteers understand how to affirmatively further fair housing. This section describes the master plan, the Analysis of Impediments and the proposed Assessment of Fair Housing (which HUD has proposed to replace the Analysis of Impediments) as planning tools that can promote equity at the local, regional and state level. These strategic documents can provide resources that help protect the right to fair housing for protected classes through proactive strategies, the identification of housing needs for developers, and guidance for zoning and permitting decisions.
Why is fair housing planning needed?
Fair housing strategies need to be integrated into the planning process. Discrimination against protected classes led to civil rights legislation, and also left a legacy of misguided policies. For instance, some policies at the state and local government level have operated to separate people by race and ethnicity which has led to disparities in housing, particularly among lower income populations. This profound legacy of racial and ethnic separation, as a prominent example of discrimination against protected classes, is visited primarily on Black and African Americans, and Latinos. According to the Fair Housing and Equity Assessment (FHEA), concentrations of minorities in certain municipalities in the metropolitan area is not explained by differences in income or rates of poverty. The FHEA also indicates that opportunity mapping from the Kirwan Institute, shows “slightly more than 20% of the region’s high income white people live in low opportunity areas while more than half, 56%, live in high opportunity communities. In contrast, 90% of Latinos, Blacks and African American with the same level of income live in low opportunity places, while less than 5% live in high opportunity locations.” ¹ Planners need to identify housing needs in the master plan that integrate fair housing for all protected classes, and developers need to know where to look to respond to housing needs with housing development.
¹ MAPC. Fair Housing and Equity Assessment. 2013. P. 30
How do municipalities include fair housing in planning?
The master plan, or comprehensive plan, has a legally established place in municipal planning, the cornerstone of community visioning and purpose. The master plan should be updated every ten years and should be consistent with the regional plan, MetroFuture. As a further introduction to issues of fair housing and equity, the Metropolitan Area Planning Council has prepared the State of Equity in Metro Boston with a series of indicators monitoring progress toward achieving equity goals. The master plan document is implemented with action steps in numerous ways, including land use regulations.
Housing elements of comprehensive plans typically evaluate housing needs based on population characteristics of a municipality’s present population, with some regional considerations and a projection of population growth. Fair housing considerations have not been a prominent element of master plans, and protected classes were often underrepresented in the planning process. Master and comprehensive plans can evolve with outreach to protected classes and the use of assessment tools and data reviewed in assessment for disparate impact analysis.
Master plans should also reflect findings from an Americans with Disabilities Act (ADA) compliant self-evaluation. Access to civic life by people with disabilities is a fundamental goal of the ADA. To ensure that this goal is met, Title II of the ADA requires state and local governments to make their programs and services accessible to persons with disabilities. This requirement extends not only to physical access at government facilities, programs, and events, but also to policy changes that governmental entities must make to ensure that all people with disabilities can take part in, and benefit from, the programs and services of state and local governments. In addition, governmental entities must ensure effective communication — including the provision of necessary auxiliary aids and services — so that individuals with disabilities can participate in civic life. The U.S. Department of Justice (DOJ) has detailed ADA compliance for City Governments. The DOJ has also provided information on settlement agreements with municipalities for ADA compliance as well as general information on ADA. The ADA National Network and regional centers provide information, guidance and training on the ADA.
The City of Portland, OR has started a comprehensive planning process, which is heavily influenced by the sustainability planning efforts funded by the U.S. Department of Housing and Urban Development (HUD). The community involvement plan, which establishes the foundation for this effort, embraces a process that will lead to fair housing considerations. An essential element of the guiding framework is that Portland will become an equitable city where all residents will have access to opportunities they need for well-being. Throughout the community involvement process, the city is committed to inclusiveness and equity for historically excluded individuals and groups. The community involvement process also has distinct measures in time and effort. For identification of groups, networking within the municipality and the region [Link to Civic Engagement page] will add that critical dimension for affirmatively furthering fair housing.
Portland’s Equity Committee reports publicly on its efforts. The committee is working to apply the equity lens to a variety of scales. The committee is currently considering what impact decisions will have on: communities of color; equitable investments in public facilities, including parks; better transit service; protecting against gentrification; defining well-being; and the relation of households to ‘complete’ neighborhoods.
The City of Lowell Master Plan also incorporates fair housing principles, with a step for implementation. The City has explicitly referenced fair housing goals in the housing section of its Master Plan. To implement this concept, specific actions are required, by ordinance, for landlords to take positive action to ensure fair housing. The City is in the process of drafting ordinance provisions to implement this goal. Some provisions being considered include certification of knowledge and compliance with all federal and state fair housing laws.
Housing Production Plans
The Housing Production Plan (HPP) is a municipality’s proactive strategy for planning and developing affordable housing to meet Chapter 40B statute and regulations. HPPs give communities that are under the 10% threshold of Chapter 40B more control over the comprehensive permit application for a specified period of time. The municipalities must show progress in producing affordable housing on an annual basis. To affirmatively further fair housing, the HPP can assess the housing needs of protected classes and set goals to meet those needs. The HPP can be an important part of the housing element of the master plan. The Department of Housing and Community Development (DHCD) has published guidelines for completing the HPP. The DHCD ‘HPP website also provides links to HPPs that have been accepted by DHCD. The HPP is an important consideration for the housing element of the Master Plan.
Chapter 40B, Massachusetts Affordable Housing Zoning Law
Chapter 40B, also known as the Comprehensive Permit Law, is a state statute that enables local Zoning Boards of Appeals (ZBAs) to approve affordable housing under flexible rules. One of the qualifications for a 40B development is that at least 25% of the units must be affordable to lower income households who earn no more than 80% of the area median income. (Alternatively, for rental housing, the project can provide 20% of the units to households below 50% of median income.) Chapter 40B allows the developer (a public agency, nonprofit organization, or limited-dividend company) the right to appeal an adverse local decision to the State in communities with little affordable housing (less than 10% of its year-round housing or 1.5% of its land area). Communities that have not yet met one of these thresholds can also receive one- or two-year exemptions from State appeals by adopting a housing production plan and meeting short-term production goals. DHCD has provided a developers’ guide to 40B.
Analyses of Impediments and Assessment of Fair Housing
Since the 1990s, the Analysis of Impediments to Fair Housing Choice (AIs) has been a document required by HUD for fair housing planning at the local and state level. Some AIs identified housing needs by protected classes. The recommendations generated in AIs were rarely considered in master or comprehensive planning processes. Instead, the recognized place for AI recommendations has been in the Consolidated Plan (ConPlan), a HUD requirement for planning use of community development, HOME and other HUD funds. The ConPlan details the use of HUD funds for neighborhood redevelopment and activities by non-profits to support that work. Community development at the municipal level can support fair housing through fair housing counseling and education.
The cross pollination between the AI and the Master Plan is evolving with the publication of HUD’s Affirmatively Further Fair Housing Proposed Rule which was released in July, 2013. By this guidance, HUD proposes an Assessment of Fair Housing (AFH) to replace the AIs. Until the proposed rule is finalized, the AI still serves to define fair housing activities. AFH is intended to help program participants take a broader approach to fair housing planning. The AFH can be useful in the master plan because each master plan should address areas that are reflective of the new AFH requirements. Assessing fair housing should be central to and pervasive in the master planning process and final document. These elements can include: identifying areas of opportunity; dealing with segregation and disparate impact; affirmative marketing; integrating fair housing with other city planning efforts; and expanding housing choice for people with disabilities and families with children under 18 years of age. Since these elements involve the identification of housing need by protected class, they could be adapted and used in a master plan.
Master planning efforts can examine current AIs such as those completed by the communities of Naperville, Illinois, and the region of Portland, Gresham and Multnomah County Oregon to find elements similar to those below, which are meant to be illustrative. In the future, these kinds of elements will be present in the new Assessing Fair Housing efforts and will be adapted to Master/Comprehensive Planning efforts.
The City of Naperville, Illinois’ Analysis of Impediments for Fair Housing Choice received the “Best Practices Award in 2009” from the Illinois Chapter of the American Planning Association. There are several important areas addressed by this AI:
- Segregation. The impediments and recommendations in the AI recognize the importance of implementing practices to halt the patterns of segregation that are in the process of developing in Naperville.
- Disparate Impact. The AI includes an analysis on what Naperville’s racial and ethnic makeup would look like in a free housing market (based only on income); the gap between the actual number of minorities in the City and the percentage that would exist in a free market. The recommendations include a strategy to develop, collect, and maintain original data to aid in tracking and the influencing composition of minorities in the City.
- Affirmative Marketing. Naperville’s AI recognizes the importance of integrating affirmative marketing practices in all new residential developments and buildings as a pre-requisite to receiving a building permit, zoning, or subdivision approval.
- Integrating Fair Housing with Other City Planning Efforts. Naperville’s AI also issues recommendations on integrating fair housing into the comprehensive planning process to avoid a silo approach.
The 2011 Fair Housing Plan (FHP) for the City of Portland, City of Gresham, and Multnomah County, in Oregon, represents a regional approach to evaluating housing choice. The following areas of fair housing are well addressed by this plan:
- Citizen Participation Process. The FHP was grounded on a methodology which was executed by two stakeholder committees. A Stakeholder Advisory Committee of twenty‐three members including fair housing advocates, private market citizens, advocates for people with disabilities, people representing different cultural, racial, and ethnic groups, health care advocates, mental health advocates, and other interested citizens reviewed the scope of the analysis, discussed initial findings, identified impediments, and suggested recommendations. A Technical Advisory Committee of sixteen members including fair housing technical practitioners, housing program staff, and other jurisdictional partners secured data sources, discussed accuracy of findings, and reviewed identified impediments and recommendations.
- An evaluation of the segregation of protected classes based on “access to opportunity” is completed in the FHP. The report also issues programmatic and funding recommendations to address these inequalities.
- Limited Housing Choice for Persons with Disabilities. The FHP tackles the lack of affordable, accessible housing stock, including units with supportive services, in the region through targeted recommendations.
- Leveraging Regional Resources. The limitation on resources and funding, which is pervasive in many government entities, was approached in the FHP by prioritizing recommendations/action steps and leveraging resources on a regional level.
The City of Boston Analysis of Impediments to Fair Housing Choice was completed in June 2010 and included a distinctive approach with noted results.
- Citizen Participation. An advisory committee, representing protected classes, guided the AI. Presentations were made to the committee on critical elements of the AI. Public hearings were held as part of the City Consolidated Planning process. The AI recommended the continued involvement of the AI Advisory Committee as part of an Ongoing Voice for Fair Housing
- Fair Housing Planning in the Region. Race and ethnic characteristics of Boston neighborhoods were examined within context of the region. Data from the Kirwan Institute identifying places of opportunity was incorporated into the analysis.
- Fair Housing Enforcement. The AI clarified roles of HUD, the Massachusetts Commission Against Discrimination, the Attorney General and other agencies involved in fair housing enforcement. The AI provided a clear identification of laws governing housing discrimination, protected groups and the agencies with jurisdiction to accept complaints. Historical information on fair housing complaints was also reviewed.