Terner Center Blog: No Limits

Leading Housing Researchers Challenge Proposed Fair Housing Rule Change

Posted on by Terner Center

The NYU Furman Center and the Terner Center for Housing Innovation at the University of California at Berkeley submitted public comments today arguing that a proposed rule from the U.S. Department of Housing and Urban Development (HUD) ignores the demonstrated harms inflicted by segregation, fails to account for the basic structure of local zoning and land-use decisions, and imposes obligations on fair housing plaintiffs inconsistent with the basics of social science.  In light of these major flaws, the university researchers urge HUD to withdraw the proposed rule. Read the joint public comments.

The “Disparate Impact” standard is a legal concept at the crux of fair housing enforcement, one that was affirmed by the U.S. Supreme Court in 2015 in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc (Inclusive Communities). Under this standard, an unjustified policy or decision that disproportionately affects groups protected by the Fair Housing Act can violate the law regardless of discriminatory intent. In August, HUD published a proposed rule claiming to better align its regulations with the recent Inclusive Communities court decision, opening a public comment period that closes on Friday, October 18. Yet, as reflected in the comments submitted by these two leading research organizations, the proposed rule fails to comport with important legal standards and social science research, potentially making use of the disparate impact standard more difficult—and in many circumstances impossible.

“Especially given the ongoing work this nation needs to do to create diverse and inclusive communities, the Fair Housing Act’s disparate impact standard is a critical tool,” said Ken Zimmerman, Distinguished Fellow at the NYU Furman Center. “HUD’s proposed rule is a step backward, failing to acknowledge the harms it would impose and allowing unjustified policies and decisions to escape review.”

The rule is silent on the potential negative consequences of changing the disparate impact regulation – yet assessing such costs during the rule-making process are required by administrative law. Extensive social science research has shown the profound harms segregation inflicts on the health, education, and income of minority communities, and the drag it can put on economic growth across entire regions. Certain vulnerable populations, including people with disabilities and victims of domestic violence, also depend on legal protections that would be eroded by HUD’s new regulation.

“Good policymaking is built on rigorous data and evidence,” said Kathy O’Regan, Faculty Director at the NYU Furman Center. “Yet this proposal ignores voluminous social science research that confirms the damage segregation does to individuals and families, to our neighborhoods, and to our economy.”

In addition to HUD’s failure to account for the rule’s negative effects, the proposed rule seeks to exempt from disparate impact review so-called “single event” zoning and land-use decisions and practices, such as those that occur in variance and rezoning processes, despite the fact that these are critical aspects of contemporary land-use policy.  Noting that these proposed changes are inconsistent with the Supreme Court decision and broad consensus among the federal government and research community, the comments demonstrate that the proposed rule misconstrues land-use and zoning practices, and inappropriately legally immunizes many exclusionary land-use choices that perpetuate segregation.  

“HUD’s proposed rule fails to recognize the clear and extensive evidence that links restrictive zoning practices and local opposition to patterns of racial segregation and exclusion,” said Carol Galante, Faculty Directory of the Terner Center for Housing Innovation. 

“Local governments commonly make their land use and zoning decisions one project or proposal at a time,” said Matthew Murphy, Executive Director of the NYU Furman Center.  “Exempting these one-off decisions from any fair housing analysis would effectively remove all potentially racially exclusionary local decisions from judicial review.”

The NYU Furman Center/Terner Center comments come as other fair housing and community development stakeholders respond to HUD’s proposed rule in advance of the October 18 deadline. Read a copy of the full submitted comments, or learn more about HUD’s disparate impact proposal.

# # #

About the NYU Furman Center: The NYU Furman Center advances research and debate on housing, neighborhoods, and urban policy. Established in 1995, it is a joint center of the New York University School of Law and the Wagner Graduate School of Public Service. More information can be found at furmancenter.org and @FurmanCenterNYU.

About the Terner Center for Housing Innovation at U.C. Berkeley: The Terner Center for Housing Innovation at the University of California at Berkeley is a collaboration between the College of Environmental Design and the Haas School of Business. The Terner Center formulates bold strategies to house families from all walks of life in vibrant, sustainable, and affordable homes and communities. For more information, visit: ternercenter.berkeley.edu or @TernerHousing.


2019 California Housing Legislation Round Up

Posted on by David Garcia

The 2019 California legislative season recently came to a close, and several promising housing bills have now been signed into law by Governor Newsom. But the road to this year’s “housing package” was not easy and, at various points, it seemed as if the legislature would fail to pass any key housing reforms.  The session started optimistically, buoyed by a new governor who made bold housing solutions a staple of his campaign. Sure enough, the session got off to a fast start, with the introduction of several sweeping and ambitious pieces of legislation, on issues as varied as land use reform,…


Land Use Politics, Housing Costs, and Segregation in California Cities

Posted on by Jonathan Rothwell

This paper is part of a working paper series that utilizes the Terner Center California Residential Land Use Survey to assess the implications of California’s state and local policies for housing. Read the full paper here. By Jonathan Rothwell, PhD, Gallup It is striking that, at a time when a lack of housing affordability is a highly salient issue for the public and elected representatives, California uses its land so inefficiently. While less than a quarter of the land in the state’s municipalities is zoned for multifamily housing, more than half is set aside for single-family detached homes. Density is closely related to housing affordability,…


Demystifying Development Math

Posted on by David Garcia

For many, the way that housing is built can be mysterious: a developer acquires the land and wins city approval, then at some point construction workers break ground, and eventually the new housing becomes a reality. But what about all of the steps in between? What factors go into whether or not something gets built? And what does it even mean to make a project “pencil”?  If you’ve ever found yourself wondering about these and other real estate finance questions, then our latest Terner Center publication is for you. In our new brief “Making It Pencil: The Math Behind Housing…


Residential Impact Fees in California

Posted on by Terner Center for Housing Innovation

As California continues to grapple with the devastating effects of the housing crisis, more attention is being paid to the rising cost of building new homes. The median home value in California has almost reached $550,000,(1) reflecting both the limited supply of homes as well as the high cost of development. In some cases, the cost of building affordable housing in California has topped $600,000 per unit, or more. Strapped for revenue, localities are increasingly turning to development fees to fund vital public services. In an effort to uncover paths to lower the cost of housing, the Terner Center has…


California’s Rent Cap Debate: Something’s Gotta Give

Posted on by Carol Galante

The Terner Center for Housing Innovation first became involved in discussions around rent control policy in California leading up to Proposition 10, the ballot initiative in 2018 (ultimately defeated) that would have repealed the Costa-Hawkins Rental Housing Act, the statewide framework put in place by the state legislature in 1995 to set limitations on local rent control ordinances. History tells us that the debate over Costa-Hawkins itself was a divisive and hard-fought battle. It’s no surprise that stakeholders and policymakers are having a difficult time finding a path forward today. In May 2018, after research and meetings with a variety…


California Needs to Build More Apartments

Posted on by Jenny Schuetz and Cecile Murray

This paper is part of a working paper series that utilizes the Terner Center California Residential Land Use Survey to assess the implications of California’s state and local policies for housing. Read the full paper here. California needs to build more apartments. By Jenny Schuetz, PhD, the Brookings Institution, Metropolitan Policy Program and Cecile Murray, MSCAPP, University of Chicago So much ink has been spilled over California’s persistently high housing costs that it has become a cliché. Nearly everyone agrees that high costs are a substantial problem – not just for families struggling to pay rent, but also for companies trying to attract and retain workers, and for…


Comparing Perceptions and Practice: Why Better Land Use Data Is Critical to Ground Truth Legal Reform

Posted on by Moira O’Neill, Giulia Gualco-Nelson, and Eric Biber

This is the third installment in a working paper series that utilizes the Terner Center California Residential Land Use Survey to assess the implications of California’s state and local policy for housing. The working paper series is published jointly by the CALIFORNIA ASSOCIATION OF REALTORS®’s Center for California Real Estate and the Terner Center for Housing Innovation at UC Berkeley. This paper series will examine a number of topics related to land use regulation; from the feasibility of ADU production to trends in segregation. Read the full paper here. Comparing Perceptions and Practice: Why Better Land Use Data Is Critical…


No Place Like Zone: Two Ways California Policymakers Can Encourage Housing Affordability Through the Opportunity Zone Program

Posted on by Terner Center

Ever since the federal government launched the Opportunity Zone (OZ) program, many questions about the potential benefits and drawbacks have been raised. The program has been touted as a potential game changer for economic development in distressed communities, and has enjoyed bipartisan support. But at the same time, the relative ambiguity of the program’s requirements and its broad applicability have left many to wonder if Opportunity Zones will actually lift up the communities it was billed as serving, or mostly prove to be a windfall to investors. As some critiques of this new program have noted, without specific guidelines that push…


Regulating ADUs in California: Local Approaches & Outcomes

Posted on by Deirdre Pfeiffer

This is the second installment in a working paper series that utilizes the Terner Center California Residential Land Use Survey to assess the implications of California’s state and local policy for housing. The working paper series is published jointly by the CALIFORNIA ASSOCIATION OF REALTORS®’s Center for California Real Estate and the Terner Center for Housing Innovation at UC Berkeley. This paper series will examine a number of topics related to land use regulation; from the feasibility of ADU production to trends in segregation. Read the full paper here. Regulating ADUs in California: Local Approaches and Outcomes By Dr. Deirdre Pfeiffer, Associate…