As President of Housing Land Advocates (HLA), I am pleased to announce that HLA and the American Planning Association have filed a joint amicus brief in the latest case to challenge the Fair Housing Act’s (FHA) disparate impact standard. The Texas Dept. of Housing and Community Affairs case questions whether state administrators of federal low income housing tax credits (LIHTC) programs must consider the location of the housing and whether the location has a disparate impact on protected classes. Ed Sullivan, HLA Board Member and APA Amicus Committee member submitted the brief on behalf of the amici.
Here is an excerpt of the summary of the argument:
From the perspective of professional planners engaged in development efforts across the United States, the benefits of continued recognition of a disparate impact-standard under the FHA substantially outweigh the minimal costs that the standard imposes. Decades of operation under a legal framework that has uniformly recognized disparate-impact claims has taught the institutions and professionals engaged in development to work within the standard’s requirements. Those requirements have proven to be fully consistent with efficient project planning and execution efforts. Reversing course at this point would be disruptive to established practices and, ultimately, would thwart just and effective planning efforts.
The benefits that flow from compliance with the FHA’s disparate-impact standard have been substantial. The legitimacy of public institutions depends, in significant part, on transparent decision making. In the context of urban and rural development efforts, it is inevitable that certain projects will affect some groups of persons more than others. Responsible planners consider the unintended consequences of development projects, explain to the public why a project is necessary and beneficial notwithstanding its disadvantages, and engage in dialogue with affected community members to minimize a project’s drawbacks. Institutions that properly explain the reasoning behind their decisions enjoy greater public support for and participation in their long-term objectives.
The FHA’s disparate-impact framework furthers transparency and legitimacy by committing planning professionals and public institutions to a dialogue with those affected by their actions. Under the most pervasive articulation of the standard, housing plans must serve legitimate, nondiscriminatory interests through the least discriminatory means available. This includes development efforts that are part of the federal low income housing tax credit (LIHTC) program. Over the course of decades, that norm has become an accepted component of the planning process. Today, responsible developers share their objectives with potentially disadvantaged persons and groups and together develop plans to minimize projects’ adverse effects. This kind of transparency makes affected groups more apt to lend their support to projects, view such projects as fair, and regard planners and public institutions as legitimate actors in the public space.
The costs, meanwhile, of the disparate-impact framework have proven to be minimal. Over the course of four decades, complying with the existing legal regime has not thwarted economically beneficial development efforts, including those made as part of the LIHTC program. That is because, properly understood, the possibility of a disparate impact does not make a development project unlawful—it simply requires that institutions provide and articulate nondiscriminatory justifications for projects that adversely affect protected groups.
In sum, the FHA’s disparate-impact standard has promoted just and efficient planning and development efforts for decades. Overturning that standard now would decrease the legitimacy of public institutions and the planning profession, disrupt practices that have advanced under the standard, and ultimately disadvantage the public interests that development projects are designed to serve.
You can read the entirety of the brief here.
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