Gentrification, Displacement, and Fair Housing
The Fair Housing Act’s requirement that the secretary of the Department of Housing and Urban Development (HUD) administer HUD’s programs in a manner “affirmatively to further the policies” of the act,1 which came to be referred to as the “Affirmatively Furthering Fair Housing (AFFH)” requirement was an unusual congressional acknowledgment that just ending discrimination is not enough. Instead, affirmative steps are necessary to undo the horrendous legacy that more than a century of policies and practices by governments, businesses, and private individuals to segregate cities, suburbs, and towns across the United States have imposed upon generations of African American and Latinx individuals.2 The Fair Housing Act thus mandates that the government must take affirmative measures to undo the pernicious segregation that has resulted from its past actions and thereby begin to correct the many injustices that have resulted from that segregation.3 Those injustices range from unequal access to good schools, job opportunities, healthy environments, and neighborhoods with low crime and other essential services and amenities to persistent (and growing) gaps between the wealth of whites and African Americans and Latinx individuals.4
But how exactly local governments should go about dismantling residential segregation is not a simple matter, especially in growing cities, where many formerly affordable neighborhoods that had large shares of racial or ethnic minorities in their populations are becoming gentrified. For the purposes of this chapter, I define “gentrification” as unusual increases in housing costs in low-income neighborhoods over a sustained period of time. The complexities of how to achieve fair housing as neighborhoods change have spurred decades of debate about place-based versus people-based housing assistance.5 The many thoughtful comments submitted during consideration of the AFFH Rule,6 and in the debates over regulations regarding HUD’s application of disparate impact standards7 and its Small Area Fair Market Rent Rule,8 also reveal the nuanced difficulties of the issues that fair housing goals raise.
Of course, complexity can be the refuge of people who prefer the status quo or of those too timid to take a stand until all uncertainty is resolved. But even among those who earnestly want to reduce inequality and achieve diverse and thriving neighborhoods for all in their communities, the dilemmas posed by the obligation to affirmatively further fair housing in the context of gentrification make efforts to introduce effective policies fraught with dangers—of unintended consequences, legal challenges to well-intentioned judgment calls, and criticism from stakeholders who view the dilemmas differently or fail to see the nuances of the debate.
This chapter seeks to make the challenges of fair housing in the context of gentrification more concrete, with the hope that getting beyond abstract arguments will help encourage more productive thinking about how local governments can reduce segregation in gentrifying neighborhoods fairly, in ways that will not result in resegregation in the years to come, and, given the limited resources that local governments have, in the most cost-efficient ways possible. To be concrete, I must ground the discussion in actual neighborhoods, and I have chosen to focus on neighborhoods in New York City because the affordable housing crisis there is especially pronounced, gentrification and fair housing debates are particularly sharp, and the city already has adopted many of the anti-displacement tools that other jurisdictions are now considering.9 The first section seeks to put the questions in context by providing a brief overview of the affordable housing crisis in New York City. The second section gives a summary of some of the main strategies the city has chosen to address that crisis and the opposition to those strategies that has arisen. The third section outlines the hard questions about how best to achieve fair housing in growing cities that the opposition to the city’s proposals (as well as the thoughtful comments of proponents) raises and explores some of those questions with concrete examples of how they might play out in particular neighborhoods. The chapter concludes by exploring how the assessments of fair housing required by the 2015 AFFH Rule, although now no longer required,10 might provide an opportunity to make progress toward resolving the difficult issues that the previous section discusses.
Putting the Questions in Context: New York City’s Affordable Housing Crisis
Gentrification can occur even when population is declining and there is an apparent surplus of housing, as a particular neighborhood becomes desirable for people with higher incomes than those of existing residents.11 But the fair housing challenges that gentrification raises are particularly acute when the lack of affordable housing makes new development desirable, and that development either raises fears of gentrification in existing low-income neighborhoods or raises concerns that low-income neighborhoods are not getting their fair share of investment in public services and amenities because development is going elsewhere. It is helpful to start, therefore, by situating questions about gentrification in the broader context of the lack of affordable housing that is plaguing many cities.
New York City, like so many cities and towns across the country, is facing a significant crisis of affordability. The city’s renters and those who seek to purchase homes in New York City face enormous pressures caused primarily by four significant factors: (1) the city’s housing stock does not appear to be keeping up with demand; (2) middle- and upper-income households are increasingly seeking housing in the neighborhoods close to the central business and cultural districts; (3) for most of the years since the mid-2000s, wages have been stagnant or have even declined, while rents consistently have increased; and (4) the number of New Yorkers living at or near the poverty line far outstrips the number of apartments rented at rates affordable to those households.
The City’s Housing Stock Is Not Increasing Enough to Meet Demand
New York City has a population of about 8.3 million people as of July 2019. At the beginning of the 2010 decade, it grew at rates higher than the city had seen since the 1920s,12 but the city has experienced population declines in the last few years because of declining international immigration.13
The city’s housing production also has grown: there were about 260,000 more housing units in the city in 2016 than in 2000.14 As significant as that production was, however, it has to be viewed in context: while the housing stock grew by 8.2 percent during those years, the adult population grew by 11 percent, and the number of jobs in the city grew by 16.5 percent.15 Further, housing production has slowed in recent years: between 2001 and 2008, before the Great Recession, housing production was 25 percent higher on average than in the post-Recession period between 2009 and 2018.16 In addition, population growth is not the only source of demand for housing; some housing is purchased or rented by people who are not residents of the city.17 People who are homeless or living in overcrowded or substandard apartments also require additional housing options. As a result, vacancy rates remain low, and the share of housing affordable to the city’s low- and moderate-income households fell significantly between 2000 and 2016. All those measures suggest that more housing is needed, especially for the households in the city with moderate or lower incomes.18
Demand for Housing in Cities Like New York by Middle- and upper-Income Households Has Grown
Households with incomes in the top 40 percent of the U.S. income distribution were the only households who were more likely to live in higher-density neighborhoods in 2014 than they were in 2000.19 In New York City, households making more than $200,000 in income per year grew from 6.2 percent of the population in 2010 to 8.3 percent in 2016.20 While the number of resident and nonresident wealthy buyers in the city is smaller than the media attention to those buyers would suggest, and their demand for luxury apartments may have peaked, they undoubtedly affect what gets built and the price of housing in the city.21 Indeed, the New York University (NYU) Furman Center recently showed that the median renter in newly constructed units in the city had a household income that was one-third higher than the median income of all other renters and that the gap between the rents in new units and those in all other units has grown substantially in recent years.22
Rents Have Increased Far Faster Than Wages
One result of inadequate supply is that rents have gone up significantly—almost 20 percent between 2006 and 2016 in constant dollars.23 But the city’s median income, like the nation’s, declined or stagnated between 2008 and 2014, as shown in Figure 6.1. While median income has increased since then, increases in rent have far outpaced increases in renter income since 2006, as shown in Figure 6.2.
The Number of Low-Income Households Far Outstrips the Number of Affordable Apartments
The number of New York City households with especially low incomes also increased during this period. Indeed, New York City has a larger number of people living in poverty in the 2011–2015 period than it has had since at least 1970.24 More than 37 percent of all renter households in New York City earned incomes in 2016 that would be considered either “very low income” or “extremely low income” by HUD’s standards. That means that the city has more than 1.2 million households with incomes between $0 and $40,800 for a family of three.25 But the city had only about 515,000 housing units in 2017 with rents affordable to households in those income categories.26 That number includes all public housing, other subsidized housing, all unsubsidized but rent-regulated housing, and all unregulated market-rate housing rented for less than $999 per month. Further, the number overstates the supply available to those lowest-income households, because some of the units are rented to households with higher incomes that could afford units that rent for more.
Figure 6.1. Inflation-adjusted median household income (2017$). (Sources: American Community Survey; NYU Furman Center)
Figure 6.2. Index of real median gross rent and real median renter income, New York City (Index = 100 in 2006). (Sources: American Community Survey; NYU Furman Center)
Addressing the Affordable Housing Crisis
In sum, New York City’s population, and its low-income households, are increasing faster than the supply of housing, especially housing affordable to the lowest-income households. This situation means that more people are competing for existing housing, and, in that competition, wealthier people are able to outbid poorer people. Because some of the housing going to wealthier people is in neighborhoods that have been home to many low-income households, gentrification results.
Indeed, in 2016, the NYU Furman Center assessed all fifty-five sub-borough areas in New York City to identify low-income neighborhoods (those with a median income below the city’s median in 1990) in which rents had increased between 1990 and 2010 faster than the average rate for the city as a whole. Using that definition, its assessment showed that fifteen low-income neighborhoods were gentrifying.27
The city laid out its strategies for addressing the need for additional affordable housing in 2014 in Housing New York: A Five-Borough, Ten-Year Plan and updated and expanded those strategies in late 2017.28 Mayor Bill de Blasio committed to building or preserving two hundred thousand units of housing by 2024 (later expanded to three hundred thousand units by 2026).29 As of the end of March 2020, the city had financed the construction of 49,818 new homes and had preserved the affordability of another 114,386 for at least several more decades (“preserving” means financing rehabilitation or investments in the buildings and apartments as needed and entering into regulatory agreements with the owners to keep the homes affordable for the current occupants, restrict future rent increases, and require future tenants to meet income-eligibility standards). Of those 164,204 homes, 44 percent are affordable to households meeting HUD’s definition of “extremely low” and “very low” income households (those making 50 percent or less of the HUD-determined area median income [AMI]).30
The strategies to achieve more affordable housing are multifaceted. In 2016, the city passed the most rigorous mandatory inclusionary program of any large city in the nation. It requires all new development resulting from rezonings or other land-use actions that significantly increase development capacity to make 20 to 30 percent of all the homes developed permanently affordable to a range of extremely low, low, and moderate incomes.31 The city also passed Zoning for Quality and Affordability, a comprehensive effort to remove regulatory barriers and reduce the cost of construction for affordable and senior housing, to allow a wider range of senior housing, and to improve first-floor retail and community facility spaces so that streets are more inviting and lively.32
The city also is reviewing the zoning in a number of neighborhoods, with an eye toward increasing the density of the neighborhoods while also investing in infrastructure, schools, parks, job-training opportunities, and other necessary improvements in neighborhoods that have traditionally been left behind. Some neighborhoods can increase density through infill construction on underused properties, but to allow growth in other neighborhoods often requires a comprehensive neighborhood rezoning, along with considerable investments in infrastructure, schools, parks, and other neighborhood needs. The first such comprehensive community redevelopment plan was adopted in 2016 in East New York, one of the city’s poorest neighborhoods. The investments resulting from the rezoning are bringing $250 million to the neighborhood and paying for a new school, improvements to six neighborhood parks, major street and safety improvements, significant water and sewer improvements, an enhanced industrial development zone, and extensive job-training efforts. At least half of the six thousand new housing units planned are expected to be affordable, and 40 to 45 percent of those affordable homes will be targeted to households making between $23,000 and $39,000.33
The Resulting Fair Housing Dilemmas
The city’s efforts to rezone for growth in East New York and other neighborhoods have faced considerable pushback.34 Advocates and existing residents in neighborhoods where rezonings have been proposed worry that new housing in the neighborhoods will lead to displacement of low-income residents,35 and have called for no upzonings, upzonings that only allow affordable housing, or a variety of measures that they argue may help prevent displacement and harassment.36 The city has had a wide range of anti-displacement programs in place for years and recently began providing legal assistance to low-income tenants facing eviction, along with assistance to help homeowners stay in their homes.37 Nevertheless, tenant advocates are calling for additional measures ranging from special no-harassment districts to community land trusts.38 Opposition also revolves around the incomes that the new affordable housing being built should target: some advocates argue that the affordability levels should mirror the existing incomes of the community.39 Some also oppose the proposed rezonings because they claim that the areas being studied are home to more of the city’s poor and its racial and ethnic minorities than neighborhoods that the city is not considering for such rezonings.40 In addition, some opponents question whether adding more market-rate housing to the city is desirable and are skeptical that increasing supply actually affects the affordability of housing.41
This troubling combination of concerns and arguments raises four main questions about the meaning of fair housing in gentrifying neighborhoods. First, the criticism of the city’s selection of neighborhoods in which it may propose comprehensive rezonings and community development investments presents fundamental challenges to traditional place-based investments. On the one hand, enabling growth in neighborhoods that have been left behind in terms of investment and redevelopment could help promote integration if new residents are of different races, ethnicities, or incomes than existing residents. In addition, promoting comprehensive community redevelopment in those areas might help redress prior neglect, discrimination, and segregative or expulsive land-use policies. Indeed, failing to promote development in neighborhoods ignored in the past may be discriminatory. On the other hand, revitalization might be associated with further segregation of racial or ethnic minorities if it is accompanied by displacement or if the neighborhood subsequently moves from predominantly minority to predominantly white. Further, because growth always brings costs as well as benefits, growth in neglected neighborhoods may unfairly burden the very people who have already suffered from government and private discrimination.
A second set of questions concerns how governments can prevent displacement while also affirmatively furthering fair housing. One manifestation of that tension arises in discussions about how state and local governments should target the incomes to be served through subsidized housing to integrate those neighborhoods. On the one hand, targeting homes to those incomes currently prevalent in the neighborhood may further concentrate poverty and (because of the correlation between poverty and racial segregation) perpetuate existing segregation. On the other hand, especially if the subsidized housing is a small share of the new housing expected in the neighborhood, targeting incomes higher than the current population’s may be less immediately effective in preventing displacement than targeting the incomes of existing residents vulnerable to displacement. Another concern is whether tools for preventing displacement will promote or slow down integration and increase or decrease movement to higher-opportunity neighborhoods. Do anti-displacement tools, such as tenants’ right-to-purchase programs, preferences used in the allocation of new subsidized housing, or rent regulation that extends tenancies beyond what they would otherwise likely be, have the effect of perpetuating segregation if they enable or even encourage current residents to stay in a neighborhood that is currently segregated? Or do those tools help create stably integrated neighborhoods and reduce the likelihood of displacement that disproportionately affects minority families?
A third set of questions, closely related to issues about the fair housing implications of anti-displacement tools, concerns how cities should promote mobility while also respecting people’s desire to stay in their current neighborhoods. Do efforts to promote mobility unfairly put the burden of integration on those who have suffered the most from segregation? Where is the line between encouraging people to take advantage of opportunities to move to different neighborhoods and deterring them from remaining in their existing neighborhood or punishing them for doing so? The debates over how HUD’s Small Area Fair Market Rent rule would affect tenants in low-vacancy cities began to surface these issues, but they will require much more thought as efforts to encourage mobility increase.42 Similarly, they point to the need for the thoughtful design of mobility programs to address the challenges that people face in moving away from social and other networks.43
The fourth set of questions, related to the first, is how to assess the effects that zoning changes, neighborhood investments, and even building forms have on the segregation or integration of a neighborhood. It is relatively easy to conclude that, for example, zoning that allows only single-family homes will result in a less diverse neighborhood than zoning that allows multifamily and single-family developments. It is another matter to determine whether height limits of eight stories rather than ten,44 proposals to uniformly upzone areas around transit stations,45 inclusionary housing programs that allow off-site provision of the affordable housing,46 uniform limits on density that leave room for significant growth in only some neighborhoods,47 or historic preservation of some neighborhoods48 will promote, deter, or have no effect on integration.
Those are difficult questions that require thought and debate at a more concrete level than discussions about gentrification, or even about fair housing, typically entail. To illustrate how concrete discussions may help us move toward better discussions about such dilemmas, the following sections ground the first two sets of questions in specific neighborhood contexts. I leave for another day more extensive analysis of the last two sets of questions and discussion of an overarching fairness framework that could guide comprehensive resolution of all the questions I have raised.
Distributing the Benefits and Burdens of Growth
Answering the first set of questions demands that we have an underlying theory about how to fairly distribute the burdens and benefits of growth. Development may bring “eyes on the street,” jobs, and the customer base necessary to support retail, community organizations, transit, and culture. It is appropriate, or perhaps even mandatory, for cities to invest in infrastructure where they are seeing growth, so growth naturally brings with it new facilities and services. But growth also brings change, risk, the possibility of greater congestion, and other disadvantages.
So, how should those benefits and burdens be distributed? Surely it is wrong to deny the benefits of investment to neighborhoods in which a particular racial, ethnic, religious, or other group protected by the Fair Housing Act constitutes a large share of the population—that denial is what prompted the municipal service disparity legal challenges of the 1970s49 and the environmental justice cases challenging disparities in cleanup of polluted sites and the siting of hazardous facilities that began in the 1980s and 1990s.50 Indeed, the lack of investment in some neighborhoods is part and parcel of “expulsive zoning”51 and is rooted in the sorry history of unequal government support for mortgage financing, roads, and other investments in predominantly white suburbs that contributed to the residential segregation that mars our metropolitan areas today.52
But putting aside for a moment questions of displacement, if new growth is now targeted to some neighborhoods, along with service and facility investments, are the burdens that will accompany that growth unfair? How do we even measure whether a neighborhood is being asked to grow? Do we compare a proposed density to the density that is there now or to the maximum density that the community has seen in the past? And how do we compare the growth asked of different neighborhoods? If the primarily white or wealthy areas of a city are also areas of high density, as they are in at least some of the cities seeing significant gentrification, have those neighborhoods already accommodated their fair share of growth, or must they be asked to take the same amount of growth as areas that didn’t grow in the past (and does that depend on the reasons those areas didn’t grow)?53
More broadly, what should a fair distribution of land-use changes to allow (or disallow) additional capacity look like?54 Must the growth be evenly distributed over every neighborhood (however defined) in the jurisdiction (however defined)? In New York City, for example, should each of the city’s 59 community districts be required to accommodate at least 1/59 of the projected growth? Or should every neighborhood be required to accommodate an increase in the share of its population at least equal to the expected growth rate of the jurisdiction as a whole?
How should the distribution of growth relate to market demand? What role should other factors, such as environmental concerns, proximity to the central business district or other job centers or amenities, land assembly challenges, and the cost of building in different places, play in determining where growth should be encouraged?55
Current debates in New York City over the Chinatown neighborhood’s calls for rezonings to limit building heights and controversies over the towers being built at the edge of Chinatown in lower Manhattan provide a concrete example of these issues.56 With the growth discussed earlier, Queens and Staten Island are at their all-time population highs, the Bronx is close to its historic 1970 high of nearly 1.5 million, and Brooklyn is near or over its historic 1950 high of more than 2.7 million people.57 Although Manhattan is growing, its population is still more than 680,000 below its 1910 peak, and the population density of the Lower East Side/Chinatown was 10 percent lower in 2010 than it was in 1970.58 So it may be fair to ask at least some neighborhoods in Manhattan to accept more growth. On the other hand, the fact that some neighborhoods in the city (such as those in Staten Island and in some parts of Queens and Brooklyn) have historically been lower density should not necessarily mean that those neighborhoods should be able to lock in that privilege.59
Or consider East New York, which was rezoned in 2016. The area studied as part of the rezoning had twenty thousand fewer people than at its historic high of sixty-six thousand in 1950.60 The neighborhood suffered in the years it lost population, so that by 2016, the surrounding community district had a poverty rate of 28.4 percent, and only 24.5 percent of the fourth-grade students in its public schools performed at grade level in math proficiency tests.61 The area is now growing faster than the borough of Brooklyn as a whole but was not considered to be gentrifying as of 2015.62 Was the rezoning to allow another approximately six thousand homes (enough for about sixteen thousand people) unfair, given the neighborhood’s distressed conditions and large share of low-income households, or was it necessary to better resource the neighborhood and to help prevent pressure on the existing housing stock as the area deals with the already increasing demand?
More generally, Figure 6.3 shows a map of the changes in residential density in New York City since 1970. There are stark differences in growth or depopulation by neighborhood, and those differences may correlate in various ways with race, ethnicity, and poverty. How should that data inform our thinking about the fairness of which neighborhoods should be asked to accommodate the city’s growth? What should those differences suggest about which neighborhoods should be prioritized for investment?
Preventing Displacement without Perpetuating Segregation
To illustrate the problem of how efforts to prevent displacement may pose challenges to achieving fair housing goals, consider Washington Heights/Inwood in Upper Manhattan. The area is gentrifying63 and was rezoned for additional capacity on underused commercial land near the Harlem River.64 Figure 6.4 shows that between the 2000 Census and the 2012 to 2016 American Community Survey, household income shifted: the share of households in the very lowest income categories remained stable, but the share of those with moderate incomes fell, and the share of the population with higher incomes increased. One way to prevent displacement, of course, is to ensure that new housing development includes affordable housing. But should that affordable housing be targeted to the very-lowest-income households—those making less than $40,000 per year—when the share of those households is stable and higher than the share of low-income households in the city as a whole? Or should policy makers aim the subsidized housing toward the households that are making $40,000 to $60,000 (and whose share of the population is decreasing)? If the city targets only the very lowest incomes for the affordable housing, would that perpetuate the concentration of poverty? Given the relationship between poverty and race and ethnicity, and given that much of the current population is Latinx, as shown in Figure 6.5, would targeting only the very lowest incomes perpetuate segregation? Or, given the trend toward a higher share of white residents, is it imperative that the city do everything it can (including targeting the incomes of the lowest-income current residents) to help Black and Brown people stay in (or even move to) the neighborhood to keep it from becoming disproportionately white?
Figure 6.3. Change in population density, 1970–2010. (Sources: U.S. Census Bureau; Neighborhood Change Database; NYU Furman Center)
Figure 6.4. Washington Heights/Inwood household income distribution (2017$). (Sources: American Community Survey; NYU Furman Center)
Figure 6.5. Washington Heights/Inwood racial and ethnic composition. (Sources: American Community Survey; NYU Furman Center)
It is important to keep in mind that the lowest-income households may be the most rent-burdened and the most at risk of displacement, but they also may already be in public housing or privately owned but subsidized housing with protections that limit their rents to a percentage of their income and prevent evictions except in narrow circumstances. It may be that the people most at risk of any displacement that might occur are people in the low- and moderate-income categories rather than people in the extremely- and very-low-income categories.
Another way to allow people to stay in a neighborhood even if their current housing becomes unaffordable is to grant priority for neighborhood residents in the allocation of affordable housing provided in the area. New York City’s new affordable housing typically is made available to eligible applicants through a lottery, with priority for up to half of the units given to eligible residents of the community district in which the new housing is located.65 A version of that community preference has been in place since the early 1980s. New York’s preference has been challenged under the Fair Housing Act,66 and HUD rejected at least one other city’s initial proposal to adopt preferences to address the problem of displacement and fear of displacement on the grounds that the preference proposed might have a disparate impact by race.67
Some have suggested that the preference should be limited to those areas in a city that are undergoing significant gentrification or to those that have been “historically underserved” to address concerns that such preferences might have a disparate impact by race.68 To show the dilemmas that poses, consider two other areas that are gentrifying—the Bushwick and Brownsville neighborhoods in Brooklyn. Figure 6.6 shows that Bushwick has been losing, or not gaining, people with extremely low and very low incomes and is seeing a shift toward households with moderate, middle, and higher incomes. The neighborhood’s racial composition is also shifting, as Figure 6.7 shows: Bushwick either is losing, or failing to gain, African American and Latinx households, and the white population is growing.
On the one hand, those shifts may signal that anti-displacement tools intended to help existing residents to stay in the community as prices increase (such as a community preference for new affordable housing, homeowners’ tax abatements or deferrals, rent regulation, or tenants’ right-to-purchase acts) might be appropriate to prevent the neighborhood from becoming disproportionately white. On the other hand, perhaps those shifts are integrative because they are moving the neighborhood toward the average for the city as a whole (although that may depend upon whether the neighborhood becomes a stably integrated area or changes to a segregated, predominantly white community).
Brownsville, on the other hand, has not seen much change in household income or in its racial and ethnic composition, as Figures 6.8 and 6.9 reveal, even though it is gentrifying (again, defined as low income in 1990 and seeing sustained and above-average increases in housing costs since then).69
Figure 6.6. Bushwick household income distribution (2017$). (Sources: American Community Survey; NYU Furman Center)
Figure 6.7. Bushwick racial and ethnic composition. (Sources: American Community Survey; NYU Furman Center)
Does that mean that anti-displacement tools are unnecessary? Or does the fact that the neighborhood is made up almost entirely of African American and Latinx individuals mean that we should be particularly concerned about anti-displacement measures because any displacement that occurs is going to disproportionately affect those groups? The contrast between Bush-wick and Brownsville illustrates the difficulty of determining exactly how to structure anti-displacement policies. A policy that seeks to protect existing residents when the neighborhood is becoming more integrated (like Bush-wick) might be seen as perpetuating segregation under some circumstances, but not protecting those residents may mean that more African American or Latinx individuals than whites suffer from displacement. Similarly, a policy that does not extend anti-displacement protections to a neighborhood because it is not (yet) seeing much demographic change (like Brownsville) may open the door to precisely that change (and result, at least for a time, in a more integrated neighborhood) through displacement that disproportionately affects African American and Latinx households.
Figure 6.8. Brownsville household income distribution (2017$). (Sources: American Community Survey; NYU Furman Center)
Figure 6.9. Brownsville racial and ethnic composition. (Sources: American Community Survey; NYU Furman Center)
Perhaps the answer to those questions depends upon what else the jurisdiction is doing to foster integration and to ensure that all households have access to neighborhoods with good schools, low crime, and other measures of opportunity. There are dangers in looking at issues one by one. The legitimacy of anti-displacement tools that allow people to stay in their current neighborhoods might be viewed differently if, for example, they were paired with the option of receiving a voucher that realistically could allow the household to move to a more integrated neighborhood. Or, anti-displacement tools that could be paired with affordable housing investments aimed at households making incomes that could help diversify the neigh-borhood’s income mix might be better than either approach on its own.
Conclusion
The problems of how to grow fairly, especially when that growth may mean gentrification and therefore pose a risk or fear of displacement, present particularly difficult policy questions. Unfortunately, the heated debates over these issues have often failed to deal with the very concrete and practical issues that will have to be resolved if urban communities are to move beyond the anger and frustration that often accompany growth and change. Scholars and policy makers still do not agree about what is really meant by displacement, or about how often, or under what circumstances, it occurs. They disagree about what cities should do to protect against displacement and about who should bear the costs of anti-displacement tools. Similarly, they disagree about how to invest in communities that are left behind when those investments will change those neighborhoods (and perhaps other neighborhoods). Planners and policy makers have not thought enough about who is being asked to bear the burdens involved in integrating our neighborhoods or in accommodating growth or about what a fair distribution of those burdens would be. These are incredibly hard issues that require thoughtful soul searching and discussion among all the different stakeholders.
The assessments of fair housing that the 2015 AFFH Rule required provided an unusual opportunity to tackle these issues.70 Those assessments could force local and state governments and public housing authorities to confront and address data about segregation, access to opportunity, and barriers to fair housing. The Rule demanded that the assessments be conducted with significant input from affected communities, including groups often left out of the discussion. The assessment process encouraged jurisdictions to adopt specific and measurable goals for which they could be held accountable in the years following the assessment. Those features of the assessment process provided a platform for determining, concretely, how each community in the United States should work to undo the legacy of residential segregation that still plagues our metropolitan areas. Unfortunately, HUD’s subsequent actions to undermine the 2015 AFFH Rule have only delayed the thoughtful, specific, and concrete discussions about what fairness really requires that are so sorely needed across the country.
ENDNOTES
I would like to thank Ingrid Gould Ellen and Justin P. Steil for inviting me to participate in the MIT Department of Urban Studies and Planning Fair Housing Symposium, which provided the original impetus for this essay. Dylan Lonergan (Law ’19), Caroline Peri (Wagner ’18), and Lauren Richardson (Law ’19) provided excellent research assistance, and Stephanie Rosoff and Maxwell Austensen, the Furman Center’s director of data analytics and data manager, respectively, were fonts of wisdom about neighborhood data. I am grateful for the support provided by the Filomen D’Agostino and Max E. Greenberg Research Account. Although I completed the research for this essay in my role as a faculty director of the Furman Center, which is affiliated with NYU’s School of Law and the Wagner Graduate School of Public Service, it does not purport to present the institutional views (if any) of NYU or any of its schools.
1. After decades of first ignoring the AFFH language in the Fair Housing Act and then inadequately enforcing the obligation, HUD finally promulgated a rule implementing the obligation during the Barack Obama administration. Affirmatively Furthering Fair Housing, Final Rule, 80 Fed. Reg. 42272 (July 16, 2015) (codified at 24 CFR § 5, 91, 92, 570, 574, 576, and 903 (2015)). On January 5, 2018, HUD effectively suspended the key requirements of the AFFH Rule, and in January 2020 issued a proposed rule eliminating many of the 2015 rule’s key advances. Affirmatively Furthering Fair Housing, Proposed Rule, 85 Fed. Reg. 2041 (Jan. 14, 2020).
2. Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (New York: Liveright, 2017).
3. See, e.g., NAACP v. Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987) (HUD’s duty under the Fair Housing Act requires it to “do more than simply refrain from discriminating”).
4. Rothstein, The Color of Law; Thomas M. Shapiro, Toxic Inequality: How America’s Wealth Gap Destroys Mobility, Deepens the Racial Divide, and Threatens Our Future (New York: Basic Books, 2017); Justin P. Steil, Jorge De la Roca, and Ingrid Gould Ellen, “Desvinculado y Desigual: Is Segregation Harmful to Latinos?” Annals of the American Academy of Political and Social Science 660, no. 1 (2015): 57–76; Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993).
5. Sheila Crowley, Affordable Housing Dilemma: The Preservation vs. Mobility Debate (Washington, DC: National Low Income Housing Coalition, 2012), available at http://nlihc.org/library/other/periodic/dilemma.
6. See Affirmatively Furthering Fair Housing, available at https://www.regulations.gov/document?D=HUD-2013-0066-0001. A number of simplistic, hateful, and reactionary comments were also submitted.
7. Implementation of the Fair Housing Act’s Discriminatory Effects Standard, available at https://www.regulations.gov/document?D=HUD-2011-0138-0001. HUD has since issued a proposed rule dramatically changing its interpretation of disparate impact. Proposed Rule, HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 84 Fed. Reg. 42854 (Aug. 19, 2019).
8. See https://www.regulations.gov/docket?D=HUD-2016-0063.
9. I focus on New York City in part because I served as commissioner of the city’s Housing Preservation and Development (HPD) agency between 2014 and 2017 and helped shape many of the strategies on affordable housing that I describe. In that role, I struggled with many of the issues discussed in this essay. I do not purport to speak for the city, however, and my reflections are not necessarily the views of HPD either currently or during my tenure as commissioner. In May 2019, I returned to New York City government to serve as the deputy mayor of Housing and Economic Development, but again, I am not speaking here on behalf of the city.
10. Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 83 Fed. Reg. 23922 (May 23, 2018).
11. See, for example, the controversies over gentrification in Detroit, Michigan, in Peter Moskowitz, “The Two Detroits: A City Both Collapsing and Gentrifying at the Same Time,” Guardian, February 5, 2017, sec. Cities, available at https://www.theguardian.com/cities/2015/feb/05/detroit-city-collapsing-gentrifying.
12. New York City Planning, “Current Estimates of New York City’s Population for July 2019,” 2019, available at https://www1.nyc.gov/site/planning/planning-level/nyc-population/nyc-population.page.
13. Ibid.
14. Vicki Been, Stephanie Rosoff, and Jessica Yager, “Focus: Changes in New York City’s Housing Stock,” in State of New York City’s Housing and Neighborhoods in 2017, ed. Maxwell Austensen et al. (New York: NYU Furman Center, 2018), available at http://furmancenter.org/files/sotc/SOC_2017_FOCUS_Changes_in_NYC_Housing_Stock_1JUN2018.pdf.
15. Ibid.
16. NYC Planning, The Geography of Jobs, 2nd ed., 2019, available at https://www1.nyc.gov/assets/planning/download/pdf/planning-level/housing-economy/nyc-geography-jobs2-1019.pdf.
17. Emily Badger, “When the (Empty) Apartment Next Door Is Owned by an Oligarch,” New York Times, July 21, 2017, sec. The Upshot, available at https://www.nytimes.com/2017/07/21/upshot/when-the-empty-apartment-next-door-is-owned-by-an-oligarch.html; Richard Florida, “The Foreign Buyers You Haven’t Heard About,” CityLab, August 10, 2017, available at https://www.citylab.com/life/2017/08/the-foreign-buyers-you-havent-heard-about/536490/; National Association of Realtors Research Department, “2017 Profile of International Activity in U.S. Residential Real Estate,” 2017, available at https://www.nar.realtor/sites/default/files/documents/2017-Profile-of-International-Activity-in-US-Residential-Real-Estate.pdf.
18. Been, Rosoff, and Yager, “Focus: Changes in New York City’s Housing Stock.”
19. Jed Kolko, “Urban Revival? Not for Most Americans,” Jed Kolko, March 30, 2016, available at http://jedkolko.com/2016/03/30/urban-revival-not-for-most-americans/.
20. U.S. Census Bureau, “American Factfinder, Selected Economic Characteristics,” 2012–2016 American Community Survey 5-Year Estimates, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_16_5YR_DP03&src=pt.; U.S. Census Bureau, “Households and Families 2010 Census Summary File 1,” 2010 Census, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk.
21. Judith Evans, “The Gilded Glut: Falling Demand Hits Luxury Property Market,” Financial Times, June 9, 2017, available at https://www.ft.com/content/c8bae1f4-3898-11e7-821a-6027b8a20f23.
22. Been, Rosoff, and Yager, “Focus: Changes in New York City’s Housing Stock.”
23. NYU Furman Center, “CoreData.Nyc,” available at http://app.coredata.nyc.
24. Maxwell Austensen, Vicki Been, Katherine M. O’Regan, Stephanie Rosoff, and Jessica Yager, “Focus: Poverty in New York City” in State of New York City’s Housing and Neighborhoods in 2016, ed. Maxwell Austensen et al. (New York: NYU Furman Center, 2017), available at https://furmancenter.org/files/sotc/SOC_2016_FOCUS_Poverty_in_NYC.pdf.
25. U.S. Census Bureau, “American Factfinder, Selected Economic Characteristics.”
26. Elyzabeth Gaumer, Selected Initial Findings of the 2017 New York City Housing and Vacancy Survey (New York: New York City Department of Housing Preservation and Development, 2018), available at https://www1.nyc.gov/assets/hpd/downloads/pdfs/about/2017-hvs-initial-findings.pdf.
27. Note that middle-income or even higher-income neighborhoods could experience rent increases faster than the citywide average or have other characteristics of gentrifying neighborhoods, such as demographic change. But the NYU Furman Center defined gentrification to require that the neighborhood be a low-income area in 1990. For the purposes of this chapter, I use this definition of gentrification, although, as noted earlier, even the definition of gentrification is sharply contested. Maxwell Austensen et al., State of New York City’s Housing and Neighborhoods in 2015 (New York: NYU Furman Center, 2016), available at https://furmancenter.org/research/sonychan/2015-report.
28. The City of New York, “Housing New York: A Five-Borough, Ten-Year Plan,” 2014, available at http://www.nyc.gov/html/housing/assets/downloads/pdf/housing_plan.pdf; The City of New York, “Housing New York 2.0,” 2017, available at https://www1.nyc.gov/assets/hpd/downloads/pdf/about/hny-2.pdf.
29. The City of New York, “Housing New York 2.0.”
30. New York City Housing Preservation and Development, “Housing New York By the Numbers” (Mar. 31, 2020), available at https://www1.nyc.gov/site/housing/action/by-the-numbers.page.
31. The percentage of affordability required varies with the level of incomes to be served by the housing. The city council must decide for each rezoning whether to require that 25 percent of the units be affordable at an average of 60 percent of AMI, with at least 10 percent of the units targeted to households making 40 percent of AMI or to require that 30 percent of the housing be affordable at an average of 80 percent of AMI. In addition, the city council can choose to offer two other options to developers: a deep affordability option requiring 20 percent of the housing to be affordable, with all 20 percent aimed at households making 40 percent of AMI, or a workforce housing option requiring 30 percent of the housing to be affordable at an average of 115 percent of AMI, with at least 5 percent targeted at 70 percent of AMI and another 5 percent targeted at 90 percent AMI. New York City Planning, “Mandatory Inclusionary Housing Text Amendment,” March 22, 2016, available at https://www1-studies/mih/approved-text-032216.pdf.
32. New York City Planning, “Zoning for Quality and Affordability Text Amendment,” 2016, available at https://www1.nyc.gov/assets/planning/download/pdf/plans-studies/zqa/approved-zoning-text-032216.pdf.
33. A more comprehensive look at the various policy and programmatic initiatives underway to achieve Mayor de Blasio’s housing goals can be found in The City of New York, “Housing New York: Three Years of Progress,” 2017, available at https://www1.nyc.gov/assets/hpd/downloads/pdf/about/hny-three-years-of-progress.pdf. For review of the progress made in East New York since the rezoning, see, e.g., Sadef Ali Kully, “Worries about the Pace of Progress Four Years after East New York’s Rezoning,” City Limits, May 28, 2020, available at https://citylimits.org/2020/05/28/worries-about-the-pace-of-progress-four-years-after-east-new-yorks-rezoning/
34. Tanay Warerkar, “East Harlem Rezoning Faces Mounting Public Opposition,” Curbed NY, August 24, 2017, available at https://ny.curbed.com/2017/8/24/16199516/east-harlem-rezoning-city-planning.
35. Ben Adler, “New Package of Bills Aims to Stop Tenant Harassment in NYC,” Next City, June 9, 2017, available at https://nextcity.org/daily/entry/nyc-bills-stop-tenant-harassment-bad-landlords; Rebecca Baird-Remba, “East Harlem Tenants Speak Out against Planned Neighborhood Rezoning,” New York YIMBY, December 20, 2016, available at https://newyorkyimby.com/2016/12/east-harlem-tenants-speak-out-against-the-citys-planned-rezoning.html; Laurie Cumbo, Walter Mosley, and Eric Adams, “Crown Heights Had Changed, and So Must Its Armory Project,” Crain’s New York Business, June 6, 2017, available at https://www.crainsnewyork.com/article/20170606/OPINION/170609951/crown-heights-has-changed-and-so-must-its-armory-project; “A Confusing ‘No’ Vote on East Harlem Rezoning,” Voices of NY, June 22, 2017, available at https://voicesofny.org/2017/06/a-confusing-no-vote-on-east-harlem-rezoning/.
36. New York City Office of the Mayor, “Press Release: Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito Announce Creation of Office of Civil Justice to Provide Legal Assistance to New Yorkers in Need,” January 28, 2016, available at http://office-of-the-mayor/news/108-16/mayor-bill-de-blasio-city-council-speaker-melissa-mark-viverito-creation-office-of; New York City Housing Preservation and Development, “Press Release: HPD Commissioner Torres-Springer and City Council Member Espinal Announce the Launch of the East New York Homeowner Help Desk,” February 8, 2017, available at https://www1.nyc.gov/site/hpd/about/press-releases/2017/02/02-08-17.page.
37. Gale Brewer, “Recommendation on ULURP Application Nos. C 170358 ZMM, N 170359 ZRM, and C 170360 HAM-East Harlem Rezoning by The New York City Department of City Planning,” 2017, available at https://www.scribd.com/document/355410421/Final-Manhattan-B-P-Recommendation-Re-Nos-C-170358-ZMM-Et-Al-East-Harlem-Rezoning.
38. Ibid.
39. Thomas Angotti and Sylvia Morse, eds., Zoned Out! Race, Displacement, and City Planning in New York City (New York: Terreform, 2016); Michael Greenberg, “Tenants under Siege: Inside New York City’s Housing Crisis,” New York Review of Books, August 17, 2017, available at https://www.nybooks.com/articles/2017/08/17/tenants-under-siege-inside-new-york-city-housing-crisis/.
40. Tom Angotti, “Zoned Out in the City: New York City’s Tale of Race and Displacement,” Poverty and Race 26, no. 1 (March 2017), available at https://prrac.org/newsletters.nyc/pdf/plans.gov/assets/download/planning/janfebmar2017.pdf; Vicki Been, “The Clear and Present Danger of Supply Skepticism,” Poverty and Race 26, no. 1 (March 2017), available at https://prrac.org/newsletters/janfebmar2017.pdf; Vicki Been, Ingrid Gould Ellen, and Katherine M. O’Regan, “Supply Skepticism: Housing Supply and Affordability,” Housing Policy Debate, 2018, available at http://www.law.nyu.edu/sites/default/files/Been%20Ellen%20O%27Regan%20supply_affordability_Oct%2026%20revision.pdf.
41. See https://www.regulations.gov/docket?D=HUD-2016-0063 (especially the comments of Enterprise Community Partners; National Fair Housing Alliance; Brian Knudsen on behalf of a coalition of fair housing and civil rights groups; Deb Niemeier and Matthew Palm, University of California, Davis; New York City Housing Preservation and Development and New York City Housing Authority; New York State Homes and Community Renewal).
42. Vicki Been and Leila Bozorg, “Spiraling: Evictions and Other Causes and Consequences of Housing Instability,” Harvard Law Review 130 (2017): 1408–1433.
43. Broadway Triangle Cmty. Coal. v. Bloomberg, 941 N.Y.S.2d 831 (Sup. Ct. NY County 2011).
44. Henry Grabar, “Why Was California’s Radical Housing Bill So Unpopular?” Slate, April 20, 2018, available at https://slate.com/business/2018/04/why-sb-827-californias-radical-affordable-housing-bill-was-so-unpopular.html.
45. NYU Furman Center, “The Poor Door Debate,” The Dream Revisited, 2015, available at http://furmancenter.org/research/iri/discussions/the-poor-door-debate.
46. See, for example, NY Multiple Dwelling Law § 26.3 (limiting density to a floor area ratio of 12).
47. Vicki Been. Ingrid Gould Ellen, Michael Gedal, Edward Glaeser, and Brian J. McCabe, “Preserving History or Hindering Growth? The Heterogeneous Effects of Historic Districts on Local Housing Markets in New York City,” Journal of Urban Economics, NBER Working Papers, 92 (2016): 16–30.
48. See, for example, Hawkins v. Town of Shaw, 303 F. Supp. 1162 (N.D. Miss. 1969) (class action brought by Black residents against municipality seeking injunctive relief against discrimination in the provision of municipal services in violation of 42 U.S.C. §1983).
49. See for example, R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff’d, 977 F.2d 573 (4th Cir. 1992); East Bibb Twiggs Neighborhood Ass’n v. Macon-Bibb County Planning and Zoning Comm’n, 706 F. Supp. 880 (M.D. Ga. 1989), aff’d, 896 F.2d 1264 (11th Cir. 1989); Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673 (S.D. Tex. 1979), aff’d, 782 F.2d 1038 (5th Cir. 1986); Vicki Been, “What’s Fairness Got to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses,” Cornell Law Review 78, no. 6 (1993): 1001.
50. Jon Dubin, “From Junkyards to Gentrification: Explicating a Right to Protective Zoning,” Minnesota Law Review 77 (1993): 739–801.
51. Rothstein, The Color of Law.
52. Three of the five wealthiest neighborhoods in New York City also are among the city’s densest, for example. Sean Capperis et al., State of New York City’s Housing and Neighborhoods in 2014, Focus on Density (New York: NYU Furman Center, 2015), available at http://furmancenter.org/files/sotc/SOC2014_FocusOnDensity.pdf.
53. Vicki Been, Josiah Madar, and Simon McDonnell, “Urban Land-Use Regulation: Are Homevoters Overtaking the Growth Machine?” Journal of Empirical Legal Studies 11, no. 2 (2014): 227–265.
54. See, for example, S. Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158, 237–238, 456 A.2d 390, 430 (1983) (rejecting the notion that only “developing” municipalities must provide affordable housing).
55. Abigail Savitch-Lew, “Huge Waterfront Towers Frame Debate over LES Re-zoning,” City Limits, April 17, 2017, available at https://citylimits.org/2017/04/17/huge-waterfront-towers-frame-debate-over-les-rezoning/.
56. New York City Planning, “New York City Population Projections by Age/Sex & Borough, 2010–2040,” 2013, available at http://www1.nyc.gov/assets/planning/download/pdf/data-maps/nyc-population/projections_report_2010_2040.pdf.
57. Sean Capperis et al., State of New York City’s Housing and Neighborhoods in 2014.
58. Stacy E. Seicshnaydre, “The Fair Housing Choice Myth,” Journal of Affordable Housing and Community Development Law 23, no. 2 (2015): 149–203.
59. New York City Planning, “Sustainable Communities: East New York,” 2014, available at https://www1.nyc.gov/assets/planning/download/pdf/plans-studies=/sustainable-communities/eny/east_ny_report/east_ny_full.pdf.
60. Austensen et al., State of New York City’s Housing and Neighborhoods in 2016.
61. Capperis et al., State of New York City’s Housing and Neighborhoods in 2014.
62. Ibid.
63. New York City Economic Development Corporation, “Inwood NYC Planning Initiative,” 2017, available at https://www.nycedc.com/project/inwood-nyc-neighborhood-study; Ameena Walker, “Inwood Rezoning Gets Approval from City Planning Commission,” Curbed NY, June 26, 2018, available at https://ny.curbed.com/2018/6/26/17506598/inwood-rezoning-approval-city-planning-commission.
64. NYC Housing Connect, “What to Expect: Your Guide to Affordable Housing,” New York City Housing Preservation and Development, 2017, available at https://www1.nyc.gov/assets/hpd/downloads/pdf/what-to-expect/English.pdf.
65. Winfield v. City of N.Y., No. 15CV5236-LTS-DCF (S.D.N.Y. Oct. 24, 2016).
66. J. K. Dineen, “Feds Reject Housing Plan Meant to Help Minorities Stay in SF,” San Francisco Chronicle, August 17, 2016, available at https://www.sfchronicle.com/politics/article/Feds-reject-housing-plan-meant-to-help-minorities-9146987.php; Henry Grabar, “Obama Administration to San Francisco: Your Anti-Gentrification Plan Promotes Segregation,” Slate, August 17, 2016, available at http://www.slate.com/blogs/moneybox/2016/08/17/a_local_preference_affordable_housing_plan_in_san_francisco_might_violate.html; Caleb Pershan, “Feds Accept Version of Anti-Displacement Preference Plan,” SFist, September 22, 2016, available at http://sfist.com/2016/09/22/hud_breed_willie_kennedy.php.
67. Ethan Geringer-Sameth, “‘Community Preference’ Lawsuit at Center of Affordable Housing, Segregation Debates,” Gotham Gazette, March 29, 2017, available at http://www.gothamgazette.com/city/6838-community-preference-lawsuit-at-center-of-affordable-housing-segregation-debates.
68. Austensen et al., State of New York City’s Housing and Neighborhoods in 2015.
69. Affirmatively Furthering Fair Housing Rule, 24 C.F.R. § 5, §91, §92, §570, §574, § 903 (2015); see also U.S. Department of Housing and Urban Development, AFFH Guidebook, 2015.
70. See supra n1.