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INTRODUCTION

"Housing discrimination is not confined to America's urban centers. Rural communities also confront racial, ethnic, sex, age and other forms of housing discrimination. The "Not in My Back Yard" (NIMBY) syndrome is a common factor in preventing affordable housing development in some communities, and NIMBY opposition may provide the basis for a fair housing complaint. NIMBY is a term used to describe residents' desires and actions to prevent certain land uses near their homes or their communities, and NIMBY opposition often takes place in the arena of local zoning and land use politics. While NIMBY attitudes may be expressed towards the development of shopping malls or waste treatment plants, the term is associated in many people's minds with actions aimed at preventing the development of low-income, affordable or special-use housing.

Each case of resident opposition to affordable housing development is shaped by the local social and political environment, the reputation and actions of the developer, and local perceptions of the population to be served by the project. In this sense, each case of local opposition to a proposed affordable housing project is unique. However, many NIMBY conflicts do follow similar, general patterns as they evolve.

Most affordable housing projects must obtain some form of building permit, seek rezoning, or respond to land use provisions. In many instances, these require some form of public hearing. Even when a public hearing is not required to obtain the necessary permits to secure property and begin affordable housing development, local officials involved in the permit process may still find the need to respond to public concerns about the proposed project. In either case, project sponsors must frequently address potential or real opposition to their project plans in a public forum. Although the normal role of this process is to ensure that new development is consistent with the long-term needs of the community, land use and zoning politics often set the stage for local opposition to affordable housing development.

The use of fair housing laws is frequently associated with individual acts of discrimination, such as landlords refusing to rent to people because of their race or low incomes. Fair housing laws also address discrimination that may arise when neighbors and other local residents oppose a proposed project, or when local officials respond to discriminatory sentiments by rejecting permit or rezoning applications. However, these cases are often difficult to prove. Instead of documenting an individual act, or obvious pattern of discrimination on the part of an individual landlord or real estate agent, it can be challenging to prove the connection between discriminatory statements by local residents opposed to a project and the actions taken by local planning, zoning or elected officials.

This study will provide an outline of common patterns in NIMBY cases, explore the circumstances that would transform a NIMBY situation to a fair housing discrimination case, and outline the grievance mechanisms available to complainants in these types of housing discrimination situations.

Cases were chosen after consultation with national fair housing experts, local legal services staff, and local affordable housing developers. Each case reflects different uses of zoning or land use politics to support local opposition to affordable housing proposals, or to reduce the presence of low-income minority populations within town boundaries. Three of the cases involved the filing of fair housing complaints or the threat of federal litigation. In addition, three of the cases have been resolved as of August 1998, with development work completed or currently underway. The cases are geographically diverse, reflecting different housing markets and local zoning laws at work.

Case study materials were obtained through interviews, which were supplemented by documentation. Telephone interviews were conducted with individuals such as affordable housing sponsors, legal services staff, housing development technical assistance providers, board members of sponsoring organizations and Housing Assistance Council (HAC) Community Development staff involved with cases that had accessed HAC loan funds.

Documentation obtained for the cases included copies of zoning applications and minutes from zoning hearings. Copies of fair housing complaints were also obtained for the cases in which they were filed. In some of the cases, newspaper clippings and newspaper article summaries were received by HAC. Finally, HAC loan fund documents were examined for the Elizabeth Cornish Landing and Vista View One projects.

In rural areas, when an individual or organization believes that housing discrimination has occurred, a complaint may be filed with the U.S. Department of Housing and Urban Development (HUD), a state or local agency with fair housing protections similar to those under federal law, or the U.S. Department of Agriculture (USDA). Even though HUD offices serve both urban and rural areas around the country, most rural complaints have traditionally been filed with USDA when its programs are involved, because its Rural Housing Service (RHS)² works through state Rural Development offices to administer programs specifically targeting rural housing needs. In FY1997, HUD and USDA signed a memorandum of understanding (MOU) that outlines how they will coordinate investigation and resolution of fair housing complaints from rural areas.

Complaints filed with HUD are investigated by the Office of Fair Housing and Equal Opportunity (FHEO). In zoning or land use cases, if FHEO determines that there is reasonable cause to believe that discrimination has occurred, the case is reviewed by HUD's Office of General Counsel (OGC) and forwarded to the U.S. Department of Justice (DOJ) for investigation and possible litigation. In most cases, HUD and DOJ will first try to reach a settlement with the individuals or local governments accused of housing discrimination. If a settlement cannot be reached, penalties may include punitive and civil damages payable to the U.S. Treasury, requirements for restitution, such as rezoning a piece of property, and in the case of local governments, withholding federal housing and community development funds, such as Community Development Block Grants (CDBG).

Three out of the four cases used in this report have involved the HUD fair housing complaint process. To differing degrees, the involvement of the federal government has had an impact on the resolution of each case, with one exception where the case is pending before HUD as of August 1998. In most of the cases, the fair housing investigative process itself has prompted resolution of the local opposition, rather than having to initiate litigation.

The Elizabeth Cornish Landing project in Bridgeville, Del. was developed to meet pressing farmworker housing needs in Sussex County. Sussex County is located in southern Delaware where the major industries are agriculture and poultry processing. In 1988 both the Food and Agriculture Council and the State Department of Agriculture identified housing needs as a farmworker recruitment and retention tool for local agribusiness in Sussex County. Later that year, the Delaware Development Office and the Department of Agriculture jointly conducted a survey of farmers and growers which further attested to the need for farm labor housing, specifically in Sussex County along the western corridor.

In August 1988 the Delaware State Housing Authority invited Delmarva Rural Ministries to consider developing farm labor housing in Sussex County, with technical assistance being provided by the National Council on Agriculture Life and Labor Research Fund, Inc. (NCALL). An intense land search was undertaken by Delmarva Rural Ministries, NCALL, and the Delaware Development Office to locate an acceptable site in western Sussex County that would meet the funding criteria of the RHS Section 514/516 farm labor housing programs. The criteria included access to public water and sewer, location central to area farms, location near essential services, correct zoning, and affordability. During 1989 and 1990 a site search took place in Laurel, Seaford, and Bridgeville, Del. Delmarva Rural Ministries optioned a 10.6 acre, which was the only site that was for sale and met RHS criteria. Half of the property was within the town of Bridgeville, with the remainder of the site on Sussex County land.

Delmarva Rural Ministries proposed developing 34 units on the county portion of the site, since it was zoned for commercial use that permitted multifamily housing development. Water and sewer connections had to be secured through the town of Bridgeville, which did not appear to be a problem in the early stages of the project. In fact, town officials encouraged Delmarva Rural Ministries to develop the property because the town had excess water and sewer capacity. During the first seven months of the project, Delmarva Rural Ministries was able to garner the support of several local and state agencies, including the president of the Bridgeville town commission, area growers, county zoning and planning staff, and the Delaware Development Office.

In July 1991, Delmarva Rural Ministries submitted an extensive preapplication for financing and a market analysis to the Rural Development district office. All federal requests must also be submitted to the Delaware State Clearinghouse. The Clearinghouse then circulates such requests to the appropriate state agencies for comments. At this point initial opposition was expressed by the Delaware Housing Authority. The Delaware Housing Authority wrote a letter on behalf of the governor approving the project concept, but opposing the site because it would increase the concentration of low-income housing, an important concern in siting some affordable housing projects. However, Rural Development financing programs did not include concentration limits when evaluating applications. Because of the state's concern about the project, both the town of Bridgeville and the Delaware Development Office retracted their letters of support and went on the record as supporting the concept but not the site. As a result of the letters from the state agencies the state Rural Development office rejected the preapplication. The state office also notified Delmarva Rural Ministries of the group's right to appeal the rejection. Delmarva Rural Ministries quickly filed an appeal with the state Rural Development office, which was subsequently reviewed by appeals staff at RHS, the national office overseeing Rural Development housing programs. Delmarva Rural Ministries' appeal noted that Rural Development had no regulations addressing low-income concentration limits, that the proposed project and the existing subsidized housing near the site were all low-density developments, and that minority concentrations would not necessarily increase since it could not be assumed farmworker tenants would all be members of a single minority group.

In addition to the political opposition, residents of Bridgeville also began to express concern about the project. Residents began a letter writing campaign telling their congressional representatives and state legislators that this was a local issue that should have the approval of the community in order to move forward. Flyers were also placed throughout town asking people to attend a public hearing to discuss the proposal. Although Delmarva Rural Ministries and NCALL were not required to attend the meeting, they decided to prepare a detailed presentation to disseminate accurate information to the public. Delmarva Rural Ministries also hosted its own public meeting, which was attended by over 100 people. At both forums, very few people expressed support for the project. The majority of people in attendance questioned such things as whether the schools could support an influx of non-English speaking children and whether federal dollars should be spent on immigrants.

After a lengthy public information campaign and months of public outcry, RHS appeals staff reversed the state Rural Development office's rejection of the project application. According to project sponsors, the lack of Rural Development criteria concerning low-income concentration was the primary reason given by RHS for allowing the project to proceed with its application. The Elizabeth Cornish Landing apartment complex was completed in 1993 and was the first Section 514/516 farm labor housing project developed in Delaware. It provides affordable rental housing for both year-round farmworker residents and migrant farmworkers. Eighteen of the 34 units are occupied by year-round residents and 16 are reserved for migrants. Elizabeth Cornish Landing has won national attention as a premier affordable housing project. In 1997, the project received a Maxwell Award of Excellence from the Fannie Mae Foundation. Locally,.Elizabeth Cornish Landing has been commended by local officials as an enhancement the area, and the town has annexed the county portion of the land.

While Delmarva Rural Ministries and NCALL believe that the events surrounding the development of Elizabeth Cornish Landing probably warranted a formal fair housing complaint, they were sensitive to the fact that residents of the complex would have to live and work in the community. Therefore, they wanted to exhaust all other measures before pursuing a legal remedy.

Vista View One is the first phase of an affordable housing development being built by Vista View Development Corporation on a 50-acre site in Bluffton, S.C. Bluffton is approximately eight miles from Hilton Head Island, a world class resort area that attracts thousands to the region for vacation and recreation. Hilton Head Island has a service-based economy, wages are low, and the cost of property is extremely high. As a result, many of the people who work on the island cannot afford to live there and are forced to commute long distances, sometimes as long as 150 miles round trip. Vista View One is targeted to low- and moderate-income families who work on Hilton Head, but would be severely cost burdened if they lived on the island.

After conducting extensive market studies which confirmed that there was a shortage of affordable housing in Beaufort County in 1988, Vista View Development purchased 50 acres of land in Bluffton. The group planned to use the land for a phased development to build approximately 200 apartment units and 40 single-family homes.

Bluffton is a small community where the majority of housing structures are single-family units. At that time the town had very few zoning and development standards in place. In fact, there were no density requirements on the books when Vista View Development applied for its preliminary building and development permits. Vista View Development was able to obtain preliminary development permits from the town in 1988. However, the organization encountered vehement opposition when it was announced that the site would be used to develop affordable housing. A local residents' group called the Bluffton Area Citizens for Planned Growth (BACPG) was formed and became the chief opponent of the development. Opposition group members were initially all white, while the project sponsor was an African- American developer. As the conflict over Vista View One wore on over many years, BACPG recruited a couple of minority group members, possibly to reduce perceptions that their opposition may be racially motivated.

BACPG expressed fears that an affordable housing project would lead to decreases in property values and increases in crime and drugs in the community. Days after the preliminary permits were issued for the Vista View One project, BACPG filed a lawsuit against Vista View Development and the county, claiming that the permits had been obtained illegally, that the land had been intensely devalued, and that the approved multifamily housing proposal was not appropriate for a community with mostly single-family homes. The opposition group won the initial lawsuit and the case became entangled in a web of lengthy appeals. Eventually, the case went to the South Carolina Supreme Court where the local opponents prevailed. The case was in court for such a long period of time that the county was able to rewrite its zoning laws, and in effect zoned the project out of existence.

Feeling that it had exhausted all methods of recourse available to it at the state level, Vista View Development filed a fair housing complaint. Upon finding evidence of discrimination, HUD brought in DOJ to begin a formal investigation. DOJ confirmed that there was evidence of discrimination and informed the county that it had 30 days to offer a settlement agreement or risk suit by the federal government. In 1993 the matter was officially resolved when the county announced that if Vista View Development reapplied for the building permits, they would be granted. Construction on phase one began in November 1996 and a grand opening ceremony was held in November 1997. As of August 1998, the complex is 100 percent occupied and construction on phase two is underway. Phase one development produced 72 apartment units and three single-family homes. Bluffton residents have accepted the project, with no protest voiced as the project's first phase was completed and tenants began moving in.

Pueblo Bonito is a farmworker housing project in Bonita Springs, Fla. As of August 1998, development is underway, with the first tenants anticipated to move in near the end of December 1998. Bonita Springs is in Lee County, where agriculture is a significant employer. The project is the first sponsored by Partnership in Housing, a nonprofit organization founded in 1994 to address farmworker housing needs in Lee County. The Pueblo Bonito site is located across a canal from the Imperial Harbor mobile home park for older persons.

In spring 1995, Bonita Springs experienced heavy flooding in low-lying areas, which included the Manna Christian Recreational Vehicle (RV) park, where many of the area's migrant and seasonal farmworkers lived. Hundreds of farmworkers had to stay in emergency shelters for weeks. The Lee County Board of Commissioners sought sites for emergency trailers from the Federal Emergency Management Agency (FEMA). One criterion for site selection was that the site had to be "without community opposition." No sites were found that met all of the criteria. The Pueblo Bonito site was considered, but was not recommended because of neighbors' opposition. In November 1995, the Manna Christian RV park was allowed to reopen despite remaining flood damage and a lack of potable water. FEMA never did place emergency trailers in Bonita Springs.

Partnership in Housing sought sites in the southern part of Lee county for a farmworker housing project, since that area was where most of the county's agricultural work was available. The only site meeting the environmental criteria that was not cost prohibitive was the land next to Imperial Harbor. The Pueblo Bonito site was zoned for mobile home placement, so Partnership in Housing needed to get the property rezoned in order to develop a multifamily rental project consisting of 75 duplexes with 150 units.

Residents of Imperial Harbor formed two opposition groups, the Concerned Citizens of Bonita Springs (CCBS), and the Imperial Harbor Civic Association (IHCA). These groups led rallies against the project, raised money to hire lawyers to oppose the rezoning, and generated a letter writing campaign to local newspapers and elected officials. Racially inflammatory rhetoric was typical in early letters published in local papers. Inflammatory rhetoric was also prominent at the zoning hearing in September 1995, but the hearing examiner recommended the site for rezoning in November 1995. The Lee County Board of Commissioners rejected the hearing examiner's recommendation and denied the rezoning in December 1995. This was only the second time they had overruled the hearing examiner in over 300 cases.

Following the rejection of the site's rezoning, a fair housing complaint was filed with HUD by Florida Legal Services, Inc. on behalf of two organizations representing farmworkers statewide and in the Bonita Springs area. HUD and DOJ investigators came to Bonita Springs, toured sites that had received approval for similar rezoning requests, and began preparation for litigation against the Lee County Board of Commissioners. Concurrently with the HUD/DOJ investigation, Partnership in Housing filed a request for relief under a Florida pro-development land use law. The statute provides an appeals process for landowners seeking relief from regulatory burdens that they believe are onerous in the sale or development of their property. It has typically been used in cases where such things as wetlands regulations may impede development proposals. With pressure from HUD and DOJ, and the request for relief from Partnership in Housing providing an avenue for negotiations, the Lee County Board of Commissioners worked with Partnership in Housing to revise the project proposal. This led to another rezoning hearing where the project was approved, albeit with conditions such as additional buffering between the site and Imperial Harbor.

Tulare City is located in Tulare County in California's Central Valley, one of the largest agricultural regions in the United States. In November 1996, Opportunity Builders, a nonprofit housing organization, sought a design review approval from the city council for a 42-unit multifamily apartment complex. The property was already zoned for multifamily rental housing development, and Opportunity Builders had already received all the required permits for the project and approval of its design plan from the city's planning commission. Vocal opposition to the project was expressed at the hearing, with residents expressing fears of increased crime and a concentration of low-income rental units in their neighborhood. The city council responded by rejecting the design review application and adopting an ordinance imposing an interim moratorium on multifamily housing applications and development within the city.

The moratorium ordinance was renewed in December 1996, and extended until October 1997, the state's statutory time limit for this kind of development moratorium. When the ordinance lapsed, a new ordinance was adopted requiring a conditional use permit for implementing a multifamily rental development project. This meant that multifamily housing was no longer a permitted use as it was before adoption of the ordinance, and that additional requirements can be imposed on a project as part of the process of obtaining the conditional use permit. Local affordable housing advocates note that the additional public meetings required to obtain the conditional use permit, and the opportunity to impose significant additional requirements that can add to project costs, such as more ornate facades or additional buffering between properties, present more opportunities for NIMBY opponents to pressure local officials and add costly conditions that may delay or derail projects. They also noted that no other type of development proposal is required to meet these additional conditions as part of the approval process.

In November 1996, shortly after the multifamily housing moratorium was imposed, the National Farmworker Service Center, Inc. sought land in Tulare for a rental project to meet the housing needs of area farmworkers. The National Farmworker Service Center is a subsidiary of the United Farmworkers Union (UFW), and is an experienced affordable housing developer. The National Farmworker Service Center has developed nine projects with approximately 1,500 units. National Farmworker Service Center staff were unaware of the moratorium ordinance. The National Farmworker Service Center went to the city's planners to introduce them to the project proposal and seek information on the permits necessary to develop the project. It was only at this time that the organization was informed about the moratorium, after the group had already paid for an option on the property.

The National Farmworker Service Center learned about a multifamily rental housing project which had received approval prior to the moratorium, but which could not proceed because the project sponsor was not able to secure Low Income Housing Tax Credits (LIHTC), and therefore could not finance its project. Local officials were asked if the group could substitute its farmworker rental project for the one that could not proceed, since both were multifamily rental projects. However, local officials stated they would only approve this move if the National Farmworker Service Center developed the exact same project as proposed by the original developer. Since the projects were substantially different designs, the National Farmworker Service Center was not able to proceed with its project under the prior approval the city had granted the other developer. A new proposal for that particular site could not be submitted, since the multifamily housing moratorium was still in effect at the time of this request was made to the city by the National Farmworker Service Center.

National Farmworker Service Center staff were informed by local officials that the moratorium might be lifted in June 1997. However, the moratorium ran its full term, and by the time it lapsed the National Farmworker Service Center had lost the property to another bidder. The organization was not able to proceed with its farmworker housing development in Tulare City.

A fair housing complaint was filed by California Rural Legal Assistance, Inc. on behalf of an individual farmworker who would have qualified to live in the proposed farmworker rental project, as well as the National Farmworker Service Center and the National Association for the Advancement of Colored People (NAACP).³ The complaint was filed in April 1998, and as of August 1998 is still being considered by FHEO at HUD. The basis for the complaint is that the combination of the multifamily housing development moratorium and subsequent requirement of a conditional use permit are a discriminatory impediment to meeting the housing needs of the city's very low-income residents, and conflict with the goal of affirmatively furthering fair housing. The state Consolidated Plan, including the analysis of impediments to fair housing choice, and the housing element for Tulare County note the need for affordable rental housing, and for farmworker housing in particular, and affirm that local governments shall place no impediments to meeting these needs.

While each of these cases involves the use of the zoning process by local opposition to affordable housing development, each also illustrates a variety of opposition tactics. Also evident in each case are a wide range of strategies employed by affordable housing sponsors and advocates to respond to local opposition and the concerns of local officials.

While each NIMBY case is unique, local opposition to affordable housing proposals does tend to follow a general pattern. The same is true of the strategies pursued by affordable housing sponsors and advocates. Although a variety of measures may be employed to reduce local opposition and secure the support of local officials, certain strategies are more likely to be used effectively at particular stages of a NIMBY conflict. Examples from the cases will therefore be used to illustrate the different choices that may be made in the stages of conflict most common in NIMBY struggles.

Early in the development process, experienced affordable housing sponsors often undergo a planning process where choices are made about how to announce the project to the public and address potential opposition from neighbors and local officials. This planning often involves developing a media strategy, a political strategy, a legal strategy, and a strategy for smoothly negotiating the local zoning and permit process.

Initial opposition often arises from immediate neighbors, and the tone of their opposition can be inflammatory. Early expressions of opposition to a project are often crudely made, with racial and ethnic fears prominently voiced. Rallies and petition drives in the immediate neighborhood are also commonly undertaken by newly formed opposition groups. Without careful planning, public forums where project sponsors inform neighbors about a project may become tense and hostile.

As neighborhood opposition groups mobilize their resources, they will often adjust their criticisms of a project proposal in order to attract support from residents in other parts of the community and local elected officials. As the opposition expands, opposing arguments become expressed in more development-oriented terms, such as impacts on traffic, public services, and property values. A frequent public venue for influencing local leaders is a public hearing required to secure the permit or zoning necessary to build the project.

As these struggles reach the conflict resolution stage, options for engaging local officials include negotiation, filing fair housing complaints, or litigation. In most cases, affordable housing sponsors will support more than one of these efforts at the same time to secure approval for their project. In many instances, an affordable housing developer will prefer to pursue negotiation with local officials rather than file a fair housing complaint or bring litigation, since it will often be necessary to have the cooperation of these officials on future projects. One common tactic is for another interested party, such as a prospective tenant, to file a complaint, while the affordable housing developer negotiates with officials.

The end results of NIMBY conflicts are rarely good, and quite a few NIMBY struggles derail affordable housing projects. Even when affordable housing sponsors are able to develop their projects, local opposition may exact a significant price. Delays increase the carrying costs of holding property, and design changes or conditional use provisions agreed to in order to secure a zoning permit can add significantly to development cost. However, NIMBY struggles may also play a role in revising zoning ordinances to make it easier to develop affordable housing in an area, or in establishing lasting working relationships with local elected and planning officials.

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