Supreme Court ruling supports push for affordable housing

Overlooked Supreme Court ruling sets up future battles over 'workforce housing'

A vote by the Anne Arundel County Council in January smelled like a lawsuit waiting to happen, and if anyone was thinking of bringing one, the Supreme Court last week might have provided more grounds than already existed.

By a 5-4 vote, the court ruled Thursday that even unintentional discrimination in housing is illegal, an affirmation of the Fair Housing Act of 1968 that gives advocates for affordable housing — also known as "workforce housing" — a weapon in the fight against discriminatory policies.

Ruling in a Texas case, the court found that both overtly discriminatory practices and practices shown to result in a "disparate impact" — not based on race, but disproportionately affecting minorities — could be brought under the federal law.

The Inclusive Communities Project, a nonprofit housing advocacy group, brought suit against the Texas Department of Housing and Community Affairs, challenging the practice of providing tax credits to developers for low-income housing in low-income neighborhoods rather than in the Dallas suburbs.

Here's how Mike Daniel, the lawyer for the housing group, described the Supreme Court ruling for the Dallas Morning News: "You can't just say: Hey, I am not a bad person, it's just the way things work out that none of the affordable housing gets put in white parts of Dallas and instead is put again and again in areas of slum or blight."

This case speaks to several issues in the Baltimore region: concentrated poverty in the city and the abysmal lack of socioeconomic mobility that results; the serious lack of affordable housing in both the city and suburbs; the historic resistance to inclusive zoning that fosters housing for multiple income levels in the counties; and the wisdom of a federal court agreement several years ago to demolish Baltimore's high-rise projects and provide rent-subsidy vouchers to hundreds of poor families so they could find decent housing in low-poverty neighborhoods throughout the region.

The decision also calls to mind a vote of the Anne Arundel County Council in January to erase a special exception to local zoning that would have allowed an 84-unit, mixed-income "workforce housing" development in the Pasadena area. The council vote to eliminate the exception rendered the project unfeasible because the developer, Enterprise Homes, Inc., needed to build more units than the zoning in the area allowed.

Readers might recall the Earleigh Station development because, when it was proposed, the council's resident loud mouth, John Grasso, went off on poor people and tax credits for developers willing to build them an affordable place to live. (Tax credits go to developers of housing for families with annual incomes of no more than 60 percent of the county household median of $87,000.)

Grasso had a solution for low-income people who can't afford to live in Anne Arundel County: Go somewhere else.

"You save your money and if you can't afford it, you can't live there," the councilman said. "I was raised in a family that says live within your means. It is unfair for people to turn around and dump their way of living on top of people that have already earned their way of living."

Grasso called people receiving government assistance "freeloaders" and he told The Capital newspaper he had little sympathy for poor people with kids. "Who told them to have children?" he said. People "use children as a crutch to describe laziness."

Grasso told me he opposed the Enterprise Homes development because "what I don't want is that situation of Baltimore City migrating its way to Anne Arundel County."

If Grasso's obnoxious rhetoric wasn't enough to spur a discrimination lawsuit, I thought the council's vote to eliminate the density exception could. The January vote not only killed the Enterprise project, but it might effectively ban low-income housing in affluent, white areas of the county. If that were to be the result, the council would be opening itself up to federal scrutiny or litigation. In fact, a former county attorney who had drafted Arundel's workforce housing law in 2011 warned the council of as much, according to The Capital.

Now a surprising Supreme Court decision might have increased the possibility — if not in the Enterprise case, certainly in a future one.

Barbara Samuels, veteran housing attorney for the American Civil Liberties Union of Maryland, said Justice Anthony Kennedy's majority opinion was "a virtual clarion call to challenge exclusionary zoning schemes" like the one in Arundel.

County Councilman Peter Smith, who supports affordable housing and opposed the zoning change, said Monday the ruling "reinforces the notion that our legislative body may have potentially exposed our county to legal action."

But Enterprise, the developer of thousands of affordable and market-rate homes over the last 30 years, appears to have moved on for now. Chickie Grayson, its president and CEO, said Enterprise has no plans to sue the county.

Too bad. Sometimes the only way for advocates of affordable housing to win these battles is in court. I doubt Grasso and his colleagues will reverse themselves simply on the strength of Justice Kennedy's eloquence.

drodricks@baltsun.com

Dan Rodricks' column appears each Tuesday, Thursday and Sunday. He is the host of "Midday" on WYPR-FM.

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