November 1, 2013 - Garvey Schubert Barer (GSB) attorneys Ed Sullivan, Carrie Richter and Jennifer Bragar were instrumental in assisting the local organization, Housing Land Advocates (HLA), in filing an amicus brief in the United States Supreme Court. The attorneys facilitated a connection between HLA and the American Planning Association (APA) to engage Michael Gottlieb to write the amicus brief on behalf of the APA.
This is the first amicus brief HLA has filed with the U.S. Supreme Court since its inception in 2004. The brief is in support of the position of Mt. Holly Gardens Citizens in Action, Inc. in the case Township of Mount Holly, N.J. v. Mt. Holly Gardens Citizens in Action, Inc. The issue is whether having a disparate impact on minorities, even if it is not intentional, is a violation of the federal Fair Housing Act (FHA).
In the case, the Township of Mount Holly, N.J. determined The Gardens residential complex had become blighted, so was subject to demolition and removal through urban renewal. Therefore, the Township wanted to demolish the complex and replace it with a 520-unit, market-rate development, with 56 of the apartments allocated for current Garden residents. The Citizens argue that urban renewal would raise housing prices, effectively forcing out the mostly low-income Garden residents. Further, because 40% of The Gardens’ residents identify as African-American and 29% identify as Hispanic/Latino, the Citizens also argue they are protected under the FHA disparate impact standard, because the impact of the project fell disproportionally on minority groups.
The Township argues the disparate impact is not a test authorized by the FHA. APA and HLA argue otherwise and contend that FHA’s disparate impact standard - a standard which measures whether a practice or plan that has no discriminatory intention, but results in discriminatory effects - has served to promote responsible housing developments without sacrificing the associated economic benefits. Moreover, the APA and HLA support a policy that requires local governments to make disparate impact findings so that better planning will result. While redevelopment projects hold promise for future economic development, that progress, according to HLA, must include an equity lens.
The HLA is intimately familiar with the requirements of the FHA, including the disparate impact standard that has existed under the Act for the past four decades. The basic requirements embodied by that standard - nondiscrimination, transparency, and accountability - have become accepted components of the modern planning process and housing planning in Oregon and around the country. GSB attorneys chose to connect HLA and APA in this brief because all believe that FHA’s disparate impact standard has advanced, rather than thwarted, responsible housing development efforts.
Another amicus brief was written by State Attorney Generals, and includes Oregon’s own Attorney General Ellen Rosenblum. Their brief reads, “Amici States urge the Court to uphold the unanimous opinion of the circuit courts that disparate impact discrimination claims are cognizable under the FHA. We know from experience that the ability to bring disparate impact claims is essential to combating discrimination and segregation in housing—the principal purposes of the FHA, and matters of considerable concern for state and local governments.”
Although the Supreme Court is scheduled to hear oral arguments on this case December 4, 2013, the parties are discussing settlement. Such resolution is strategically aimed at maintaining the disparate impact standard in land use decision making going forward. The settlement will, in no small part, be informed by the arguments made by amici, HLA and APA, in advance of the scheduled oral argument.
HLA is the only Oregon organization that solely advocates for planning and land use regulation to support affordable housing. GSB attorney Sullivan is the Founder and Past-President and attorney Bragar serves as the current President. The nonprofit was formed in 2004 to advocate for affordable housing as a necessary element of the Oregon planning system, provide technical and legal support to public agencies regarding housing issues and undertake administrative or judicial efforts to compel planning for affordable housing. Since its inception, HLA has commented on multiple comprehensive plans and land use regulations, advocated for affordable housing accommodation in regional planning and in the receipt of federal and state grants, and participated in reviews of plans and land use regulations by regional and state bodies.