Who gets to live where?: The battle over affordable housing

The Supreme Court is to hear a case involving the low-income housing tax credit as state and local opposition simmers

Lauren Wilusz and her son, Tommy, outside their home in Severna Park, Maryland. Wilusz' property is near a proposed affordable housing development.
Lawrence Lanahan

SEVERNA PARK, M.D. — Lauren Wilusz leans down to help her 22-month-old son, Tommy, out of his coat and snow-spattered boots.

“Dat!” he says, pointing to the tall Christmas tree in the den.

“Christmas tree!” Wilusz responds.

Lauren and her husband, Joe, allowed themselves the tree as a treat. “First Christmas in the new house,” she says. “It’s the biggest tree I’ve ever had in my life.”

Last January, after several years of strict budgeting and hard work — Lauren in university administration, Joe as an aerospace engineer — the couple bought a home in Severna Park. In this suburban neighborhood of single-family homes in Anne Arundel County, the Wiluszes have 2,000 square feet with a community playground and pond right outside their back door. Lauren recently quit her job to stay home with Tommy. Their second child is due in March.

But before the Wiluszes were in the house a year, neighbors told them about plans for an apartment complex a mile away on Ritchie Highway, a busy, four-lane stretch connecting Baltimore and Annapolis. Enterprise Homes, an affordable-housing developer, planned 84 units on five acres, with reduced rents for low-income earners.

Nearby residents opposing the development dominated two public meetings this fall, complaining about potential effects on traffic, school crowding, crime, infrastructure and home values, according to local newspaper coverage. On Dec. 1, County Council member Derek Fink submitted a bill that would stop the project. A public hearing and council vote was scheduled for Jan. 5. Wilusz felt the development would change the feel of the neighborhood she had worked so hard to afford. She made plans to attend.

'Communities of opportunity'

Sarah's House, a homeless shelter in Anne Arundel County, Maryland, faces difficulties finding affordable apartments for its former residents.
Lawrence Lanahan

Lauren Wilusz’ part of Anne Arundel County is exactly the kind of place where fair-housing advocates would like to see units developed for low-income residents. The schools rank in the top 5 percent in the state. A bus line connects to workplaces in Baltimore and Annapolis. Based on an index of homeownership rates, income levels, proximity to jobs and school rankings, the state designated this area a “community of opportunity.”

“The real key for opportunity is to get lower-income children into high-quality schools and safe neighborhoods,” says Phil Tegeler, executive director of Poverty & Race Research Action Council. “There are decades of research on the benefits of kids attending lower-poverty schools.”

At the heart of the debate over low-income housing developments like the one planned by Enterprise Homes is the question “Who gets to live where?” Good schools and low crime often go hand in hand with high rents and home values, and policies throughout the 20th century pushed recipients of family housing assistance into areas of concentrated poverty and racial isolation. Over time, the explicit intent to segregate — as seen, for example, in separate housing projects for white and black residents — has faded, but segregated residential patterns have persisted. Under the Fair Housing Act of 1968, jurisdictions receiving U.S. Department of Housing and Urban Development funding must take active steps to undo the legacy of segregation.

HUD has long used the legal theory of “disparate impact” to determine violations of the Fair Housing Act, even in the absence of discriminatory intent. HUD formalized its standard for disparate impact in a rule established in 2013: If a plaintiff can show a discriminatory effect, the defendant must show that the practice was necessary to achieve a “legitimate” and nondiscriminatory goal. Even if the defendant does that, the plaintiff can still identify a different and less discriminatory practice and argue that it should have been used.

On Jan. 21, the U.S. Supreme Court will hear oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. to decide whether disparate impact claims can be used under the Fair Housing Act and, if so, what the standards should be. In TDHCA v. TICPI, an affordable-housing developer brought a “disparate-impact” claim against a state housing agency, arguing it had violated the Fair Housing Act by disproportionately rejecting applications for tax credits to build low-income housing in “predominantly Caucasian neighborhoods.”

At the root of both the Texas lawsuit and the planned development near the Wiluszes’ home is the low-income-housing tax credit. In the tax code since 1986, the credit provides a break to developers willing to build units with reduced rents, and it is America’s largest source of new affordable housing. The credit seems like a straightforward way to help finance new apartments in wealthy neighborhoods that even struggling families can afford. But states are in charge of allocating the credits, and fair-housing advocates say states often undermine the credits’ potential to create integrated neighborhoods by favoring developments in high-poverty, racially homogeneous areas at the expense of developments in “communities of opportunity.” In addition, local opposition often jeopardizes developments in affluent areas, as is the case in Anne Arundel County.

Starting over

Dione Zackery in her apartment, part of the transitional housing at Sarah's House, a homeless shelter.
Lawrence Lanahan

The apartment that Dione Zackery shares with her 12-year-old son, Chris, is small and spare. A microscope Chris received for Christmas sits on the kitchen table. “He’s looking at stuff in there every night,” Zackery says.

Zackery and her son arrived in Anne Arundel County last April. A house fire and layoff in Connecticut had left Zackery at loose ends back in 2009. For several years, she moved around New Haven and Bridgeport, tried culinary school, but couldn’t find anything stable. Chris’ aunt on his father’s side convinced the two to move in with her in Glen Burnie, a town just up Ritchie Highway from Severna Park. Chris enrolled at the local middle school.

After just three weeks, Zackery says, Chris’ aunt told them they had to go. Within a week, the two secured a spot at Sarah’s House, a homeless shelter on the grounds of the U.S. army base Fort Meade in Anne Arundel County. They remained in the shelter for almost six months, then in November moved into a one-bedroom apartment in the shelter’s transitional housing.

Zackery wants to stay in Anne Arundel County. She feels welcome there, and she’s especially fond of the school system, whose administrators worked hard to help Chris through a difficult transition and provided transportation for him to stay at his school when he moved to the shelter. She knows housing is cheaper up the road. “If I was by myself,” Zackery says, “that’s one thing. But with a 12-year-old African-American male, I don’t want to take a chance on the Baltimore area.”

Despite having a full-time job at a call center in Baltimore County and part-time work at an assisted-living facility near Severna Park, Zackery makes less than $30,000 a year. In Anne Arundel County, she has yet to find a two-bedroom apartment she can afford. At the site proposed by Enterprise, such units would go for between $450 and $950, depending on income.

At work on Jan. 5, Zackery got an email from Eileen Meaghan, a case worker at Sarah’s House, telling her about the County Council bill that threatened to derail the Enterprise development. Meaghan asked Zackery if she would testify that night; Zackery agreed.

Federal funds, state approach

A new housing development in Hanover, Maryland, about a mile-and-a-half from Sarah's House. Town homes start at $300,000.
Lawrence Lanahan

Enterprise’s plans for Ritchie Highway had emerged during a time of flux, as state and local jurisdictions sent mixed signals about support for low-income developments in Maryland’s high-income areas. In 2011, the state’s policy for allocating low-income-housing tax credits prompted a fair-housing organization to file a complaint with HUD. Before a low-income-housing tax credit, or LIHTC, could even be evaluated, the state required a vote by the legislative body in the county where the development was planned. This provision, the complaint argued, “establishes an institutional mechanism for local ‘NIMBY’ [not in my backyard] opposition to LIHTC housing without regard to the worthiness of the project,” resulting in a concentration of those developments in low-income neighborhoods.

In 2014, the state legislature stripped that provision from the application process, to the delight of many in Maryland’s affordable-housing community. This meant Enterprise’s application would not require approval from the Anne Arundel County Council. But counties and municipalities still have ways to pre-empt construction of low-income housing, for example through zoning laws and environmental permits.

Fortunately for Enterprise, Anne Arundel had passed a law in 2011 allowing special exceptions in the zoning process for low-income housing. Under that bill, Enterprise was able to submit plans to the county for 17 units per acre on the Ritchie Highway site, which had originally been zoned for two units per acre.

In December, Maryland rejected Enterprise Homes’ tax-credit application. The company’s CEO, Chickie Grayson, was disappointed, but the decision didn’t shut the door permanently on the project. “It’s very competitive,” Grayson says. “Usually you don’t get [the credits] on the first round. It’s not unusual at all to go back two or three times.”

What could shut the door, however, was the bill submitted to the County Council on Dec. 1, which would roll back the special exception on land zoned for two to five units per acre. Grayson says building as originally zoned at two units per acre would be “financially impossible.”

Word of the bill only reached Sarah’s House several hours before the Jan. 5 hearing. The shelter provides its residents with financial counseling and help with résumé writing and job-interview preparation. There is even transitional apartment housing for those like Zackery who have found a job. The idea is to prepare them for moving out on their own. In Anne Arundel County, with the 18th highest median household income in the country, the lack of affordable housing is one of the shelter’s biggest obstacles. According to an ACLU Maryland analysis, the new bill would reduce the area available in Anne Arundel County for dense low-income housing by 87 percent.

You get out of life what you put into it. You save your money, and if you can’t afford it, you can’t live there.

John Grasso

Anne Arundel County Council member

Sitting down at a microphone that evening, Zackery told the council about the house fire, her two current jobs, her love of the county.

“I have a 12-year-old son I’m raising by myself, so it’s important to me where we’ll be able to live,” Zackery testified. “Having the opportunity of affordable housing is something that will help me even more get back on my feet.”

A former Sarah’s House resident named Keisha Scott also testified. “The income level requirement is way too high for anyone of modest means to live anywhere in Anne Arundel County,” Scott said. “I wish people would focus less on the zone and more on the need.” Scott said she was raising her 5-year-old son, working three jobs and going to school part-time.

Councilman John Grasso, who supported colleague Derek Fink’s bill, was not impressed. “When I came out of high school, I had two full-time jobs and a part-time job,” Grasso said. “So my heart doesn’t go out to any of you with this problem.”

Grasso went on for a minute and a half, his voice rising as he concluded, “You get out of life what you put into it. You save your money, and if you can’t afford it, you can’t live there.”

A round of applause went up, and Keisha Scott walked out of the room.

Soon after that, Lauren Wilusz testified. She and her husband spent nearly all of their life savings making their way to Severna Park, she said. A developer using exceptions to rezone it would change what they worked so hard for. “I thank Mr. Grasso for emphasizing that you work hard for what you have,” she said. “That’s not to slight anybody who cannot afford to live in our community. I know you are equally working as hard: I used to work with you and among you.”

Wilusz later said Grasso’s comments were “more abrasive in terms of living within your means.” She supports low-income housing, she said — just not outside the current zoning guidelines.

Later that night, the council passed the bill 4-3 along party lines. Daryl Jones, a former councilmember who sponsored the 2011 bill creating special exceptions for affordable housing, doesn’t understand why the new bill was necessary, since the council could already vote to reject zoning exceptions case by case. Now, he says, a community that actually wants a special exception for certain zones can’t get one. “This is just an assault on working-class people in the county,” Jones says.

According to Linda Schuett, vice chair of the Anne Arundel Affordable Housing Coalition and a registered lobbyist for Enterprise Homes, the bill could run afoul of the Fair Housing Act. Schuett, who served as Anne Arundel County attorney in the early 2000s and, as a private lawyer, helped draft Daryl Jones’ 2011 bill, testified that limiting low-income developments to too small a portion of the county, in “undesirable living situations,” could trigger a violation.

Fink, the bill’s sponsor, did not respond to interview requests for this story. At the hearing, he argued that even without special exceptions, the current system was flexible enough to allow affordable housing in most parts of the county. The current county attorney, Nancy Duden, testified that the bill would not cause problems with HUD. In any case, Fink said, the council shouldn’t base its decisions on potential lawsuits. “Anyone can sue anyone for anything.”

If the Supreme Court rules for Texas in TDHCA v. TICPI, there will be one less argument advocates can use to bring suit against housing policy they deem exclusionary. Disparate-impact theory, says Phil Tegeler of Poverty & Race Research Action Council, “has been used again and again to challenge exclusionary zoning.

“There are other legal tools available,” he adds, “but this is the most powerful and traditionally important tool in the toolbox.”

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