by John Anthony, Sustainable Freedom Lab, ©2017
Much of the chaos we see in America today is designed to stop President Trump from dismantling the federal system of rampant waste, dishonesty, and bullying. The largest “swamp” he must drain, is the embedded federal bureaucracy.
In theory, at least, we can “fire” politicians every 2, 4, and 6 years. But federal agency employees can linger for decades, beneath the radar, issuing guidance documents on little understood regulations that are now devastating our communities and property rights.
That is why the administration must work closely with Congress to pass the House and Senate bills, titled, the “Local Zoning Decisions Protection Act of 2017.” Once signed by the President, the new law will outlaw HUD’s worst offenders, its “Affirmatively Furthering Fair Housing” (AFFH) regulation.
AFFH uses legal actions against communities that accept popular HUD grants, to force them into a bizarre, centrally managed program of regionalism and forced socio-economic integration. AFFH use of litigation threats is becoming a widespread enforcement tool for the agency.
Whitehall Township is the most recent victim of HUD’s new legal intimidation. The community, located in the heart of the Lehigh Valley, 90 miles north of Philadelphia, has its own home rule charter. They have their own Mayor, Township Commissioners, and Planning Commission.
That autonomy and the voice of their voters means little to HUD.
In February 2014, PathStone, a regional affordable housing developer from the Philadelphia area, proposed purchasing a parcel of land in the Township and constructing 52 (later reduced to 49) affordable housing units in the Loft Project. By May, the Planning Commission rejected the proposal.
Rather than accept the Commission’s decision and find another location to build, in April 2015, PathStone hired a civil rights law firm who filed a complaint with HUD requesting they investigate Whitehall for a,
“discriminatory zoning ordinance that discourages the development of affordable, multifamily housing in high opportunity areas.”
The suit claimed,
“The Zoning Hearing Board denied zoning relief…on the basis of the race, color, national origin, familial status, and disability status of the prospective residents of the housing.”
HUD was involved because the Township had received $395,000 in Community Development Block Grants (CDBG) since 2009. But, how were the attorneys and HUD able to interpret the board’s decision as discriminatory?
The Planning Commission argued that PathStone’s proposal only allowed for 1 parking space per unit, in violation of zoning laws that called for 2. In addition, citizens raised concerns over reduced property values and increased crime.
PathStone’s attorneys countered that the Commission had previously approved similar zoning relief for the same parcel for a senior citizens’ home. Therefore, they reasoned, any rejection for affordable housing is clearly the result of discrimination.
Their rationale was limited to selective portions of the voters’ issues. Rather than address the community’s worries about crime, attorneys and HUD dismissed that issue as racist.
But safety and racism are different topics and the citizens’ fears were legitimate. While senior citizen housing rarely raises crime rates, a detailed block-by-block study shows that high density, low-income housing does attract larger numbers of homicides, no matter who lives there. This should be a real concern for any community.
Whitehall’s citizens were outraged at PathStone’s and HUD’s heavy-handed tactics and continued to voice their objections to the Lofts, even in the face of threatened lawsuits.
It was a losing fight. In HUD’s view, resistance to affordable housing is in itself discriminatory and bore the threat of even greater charges.
By June of 2016, Whitehall finally caved to the federal government’s pressure. They altered their zoning laws to meet HUD’s demands and agreed to sign a Voluntary Compliance Agreement allowing the project to advance. As Commissioner Philip Ginder, caught between signing an oppressive agreement voters did not want; and facing mounting lawsuit threats, said before voting, “This is one of the hardest ‘yes’ votes I’ve ever made in my life.
Among other stipulations, Whitehall ‘voluntarily’ agreed to:
Defend their zoning changes from third party challenges and,
“…extend its full cooperation throughout the remainder of the planning, application and approval processes relevant to development of The Lofts, and throughout the infrastructure development, building permit process, construction, and initial rent-up phases of The Lofts.”
Whitehall had to “actively promote the Lofts by endorsing the development…”
In the biggest sting of all, HUD ordered the Township,
“No later than December 28, 2016, to remit the amount of Three Hundred Seventy-Five Thousand Dollars ($375,000.00) to Complainant PathStone.”
The payment was in satisfaction for,
“PathStone’s claims for monetary compensation, additional carrying costs, out-of pocket expenses and additional staff time related to development of The Lofts from the time of the May 20, 2014, denial by Respondent Zoning Hearing Board, as well as additional payments to the current owner of subject property to reserve PathStone’s purchase rights, the expense of reapplication for PHFA funding in 2015, additional interest on the predevelopment loan for The Lofts, and attorneys’ fees and costs.”
What happened in Whitehall Township can happen in any community that has zoning laws and accepts federal money for fair housing or urban development. Even if AFFH is overturned, as the Whitehall case shows, the agency can claim discrimination for a host of reasons that may or may not be fair to communities. This is why communities must protect their local autonomy and their right to control zoning and land use.
Community members must stay informed and involved. Learn about HUD and how their grant requirements can alter your town, city, or county. Study the effects of regional sustainable development on local jurisdictional authority, on taxes, and on lifestyles. Then work with local officials to protect your neighborhoods for now and for future generations.
John Anthony, Founder Sustainable Freedom Lab
In January 2016, Mr. Anthony was a guest at the prestigious Rutgers University School of Management Fellowship Honoring Dr. Louis Kelso. In March 2016, he was the keynote speaker on HUD and Property Rights at the Palmetto Panel at Clemson University.