John Shoemaker is one of the nation’s leading attorneys in the defense of the rights of rental property owners , and subsequently the rights of low income residents who live in rented housing. He specifically addresses Milwaukee and its HUD Grant application in this letter. I share this with letter with his permission. It’s long, but if you intend to be part of low to moderate income housing you need to read this. — Tim Ballering
October 22, 2014
I am following up to my recent emails to you about the legal challenges private low-income housing providers have made in Federal District Court in the Twin Cities since 2004.
We are in our 10th year of federal litigation against Twin Cities’ municipalities, with six federal (Minnesota District) lawsuits still active (four lawsuits vs. the City of St. Paul – 14 total housing providers as plaintiffs: the three Gallagher vs. Magner consolidated cases that were before the U.S. Supreme Court in 2011-12, now awaiting trial; and the McRath vs. St. Paul case in discovery; and two lawsuits recently filed vs. Minneapolis – two providers as plaintiffs: Folger vs Minneapolis, Court File 13-cv-3489; and Ellis vs. HUD and Minneapolis, Court File 14-cv-3045). Recently, the federal court allowed housing provider Folger’s Fair Housing disparate impact lawsuit against Minneapolis to move past a motion to dismiss and that case is now in discovery. There are approximately 200 properties directly involved in these matters but the outcome of the litigation will impact hundreds if not thousands of other low-income properties.
Outside of these federal lawsuits, we have rarely seen much organized opposition from private real estate investors in response to oppressive public sector housing policies and actions. This is so even though the local government policies negatively impact the return on investment and incentives to continue providing affordable housing offered by the private market, and negatively impact the availability of such housing at rental rates that are affordable at under 30% of area median income.
Municipalities benefit from this lack of organization among private low-income housing market participants by focusing police power and public resources against each investor one at a time, picking off good, honest, hard-working Americans through ever-increasingly high regulatory standards, confiscatory fees, assessments and fines, targeted enforcement actions, other regulatory burdens and outright illegal policies and conduct. Low-income citizens who seek safe, decent and sanitary housing in the inner-city communities from private providers, suffer as the public sector actions cause displacement and keep housing units offline for longer periods of time than would be the case if the private market was allowed to operate within traditional legal boundaries, without oppressive local government regulation and illegal policies and conduct.
Challenging these illegal public policies and actions through litigation is not the best option in many situations as the heavy burden of court costs, attorney’s fees and expert fees is barrier to most owners of low-income housing pursuing redress of injuries against local governments. Owners usually experience an extended period of forced reduction in rental income and related dramatic increase in expenses directly from oppressive, targeted government actions against them. In a marketplace where profit margins are thin, local governments tend to drain private investor’s resources through heavy every day regulatory costs, so by the time litigation may be an option to preserve the portfolio and lifetime of investment, financial resources to carry the battle to court may be few. Many owners have drained available financial resources by the time they decide they need assistance in their fight. Many owners simply choose to walk away from their investment as they have no remaining resources to fight for extended periods and are unable to retain legal counsel to preserve their rights and fight for change. Nevertheless, in certain instances, litigation would be the best option where fighting back to save a rental portfolio is deemed necessary, especially if damages are significant or the threat of losing everything is very real and present.
What if private housing providers organized on a national, regional and/or state level and pooled their resources and joined the cause? That might move the process of change forward, albeit slowly over an extended period of time. One strategy might be to pool resources of time, talent and money for not just litigation but also lobbying at the local and state levels to publicly voice opposition to harmful public housing and related policies and advocate for reasoned approaches that preserve property rights, liberties, affordable housing and investments. We might consider creating a national or regional group of interested and experienced leaders and counsel to roundtable on these issues, including litigation strategies and to examine possible formation of citizen-investor groups to focus on selected municipalities where the fight is particularly advantageous to our cause.
There are other options for real estate investors in the low-income housing market outside the Court process and normal city council hearing process to address these legitimate concerns.
Private housing providers are eligible to file Complaints with the United States Department of Housing and Urban Development (“HUD”). We have filed three Housing Discrimination Complaints for a total of 16 housing providers and other interested parties with HUD since November 2012. HUD has not been cooperative and has taken every opportunity to delay having to accept complaints and to investigate complaints by private housing providers against local municipalities. This obstructive behavior by HUD arises I believe from the political animal HUD truly is, especially where the local government leaders are of the same political party as those in the Administration in Washington.
We have started the process this year of bringing HUD into the federal litigation as an interested party under the theory that federal law requires HUD to monitor and take actions to curtail violations of federal law by local governments and their officials. HUD has a federal statutory duty to honestly monitor and hold accountable local governments that receive federal grant funds where complaints are presented to HUD of wrongdoing by those jurisdictions. Courts have held HUD liable for damages and injunctive relief where HUD has continued to fund local entities with knowledge of discriminatory policies at the local level. Minneapolis and HUD have notified us that they will be seeking dismissal of the most recent lawsuit in January 2015.
While it might not be a cure-all, I believe the private housing providers must speak up at the local government level during the federal grant funding process.
Milwaukee is a yearly recipient of federal grants, including a number of grants administered by HUD. Milwaukee is recognized as an “Entitlement Jurisdiction” for federal HUD funding purposes which means the City applies to and obtains the grants from HUD directly, versus through the State of Wisconsin. One major grant program is called the Community Development Block Grant program, “CDBG”. As a federal grant funded Entitlement Jurisdiction, Milwaukee must conduct an “analysis of impediments to fair housing choice” (“AI”), every 3-5 years, although HUD strongly recommends each City receiving CDBG funds review the “AI” every year. The official definition of an “AI” is found in HUD’s Fair Housing Planning Guide (“FHPG”), see attached and see http://www.hud.gov/offices/fheo/images/fhpg.pdf
The “AI” is a review of impediments to fair housing choice in the public and private sector. The AI involves:
- A comprehensive review of a State or Entitlement jurisdiction’s laws, regulations, and administrative policies, procedures, and practices
- An assessment of how those laws, etc. affect the location, availability, and accessibility of housing
- An assessment of conditions, both public and private, affecting fair housing choice for all protected classes
- An assessment of the availability of affordable, accessible housing in a range of unit sizes.
- The FHPG (Sections 2-16 to 2-17), provides: “Impediments to fair housing choice are defined as:
- Any actions, omissions, or decisions taken because of race, color, religion, sex, disability, familial status, or national origin that restrict housing choices or the availability of housing choice
- Any actions, omissions, or decisions that have this effect. (Note: This means, “Disparate impact”).
- Policies, practices, or procedures that appear neutral on their face, but which operate to deny or adversely affect the availability of housing to persons because of race, ethnicity, disability, and families with children may constitute such impediments. (“Disparate impact”).
- Have the effect of restricting housing opportunities on the basis of race, color, religion, sex, disability, familial status, or national origin. (“Disparate impact”).
- HUD’s FHPG provides that Milwaukee must analyze the following subjects of City laws, policies and actions on how those laws, policies or actions affect housing choice for low income and protected class members:
4.3 AI SUBJECT AREAS
- Local building, occupancy, and health and safety codes that may affect the availability of housing for minorities, families with children, and persons with disabilities, such information should be available through a review of local laws and ordinances relating to these subjects.
- Public Sector – other actions -
- Building codes
- Local zoning laws and policies (e.g., minimum lot size requirements, dispersal requirements for housing facilities for persons with disabilities in single-family zones, and restrictions on the number of unrelated persons in dwellings based on size of unit or number of bedrooms)
- Demolition and displacement decisions pertaining to assisted housing and the removal of slums and blight (e.g., relocation policies and practices affecting persons displaced by urban renewal, revitalization, and/or private commercialization or gentrification in low-income neighborhoods)
Federal grant funding to Milwaukee, that includes CDBG, is processed under a Consolidated Planning process whereby: (1) every 5 years, a Consolidated Plan is prepared by Milwaukee with citizen participation and submitted to HUD showing the five year plan; and (2) every year during the five year period the City must provide HUD with an Action Plan and a CAPER (Consolidated Annual Performance and Evaluation Report). By providing detailed financial and beneficiary information in the CAPER, the City explains to HUD and the community how the City is carrying out its housing and community development strategies, projects, and activities.
Milwaukee is now near the end in the process of preparing its five year Consolidated Plan submission for 2015-2019 to HUD. Part of the required Con Plan process is Citizen Participation [footnote 1], where the City must hold hearings and provide access to Plan information and documentation for community members to review and submit oral and written comments about the City’s plans for using federal grant funds during the next 5 year period. See http://city.milwaukee.gov/NeighborhoodStabilizationProgramNSP/NSP-Meetings—Con-Plan.htm#.VEhAXBYzISg
It seems that most of the meetings/hearings on NSP occurred in March 2014. But, some meetings and or hearings on the 2015-19 Con Plan may still be on-going. https://www.facebook.com/events/468204259974633/
Meeting occurred in March 2014. See http://urbanmilwaukee.com/pressrelease/public-invited-to-offer-feedback-on-spending-plan-for-federal-funds/
states period to comment would end July 2014.
However, HUD says that Complaints about how the City’s housing policies and actions have negatively impacted low-income housing providers and their customers (tenants), impacting the availability of affordable housing and the incentives to continue to provide such housing, can be submitted to the City and/or to HUD at any time. http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/complaint-process
I have attached a copy of the draft HUD Consolidate Plan submission for Milwaukee for 2015-2019.
While there are many interesting bits of information in the Plan, see page 8 – City’s proposed code enforcement efforts in next 5 years.
Barriers to affordable housing, see page 103.
See also pages 139 (City goals summary including code enforcement, lead based paint abatement, demo), page 142-43, 146 (homeowner vs rental production- but most blacks need rental).
Also note that Milwaukee is planning on acquiring more vacant homes including foreclosure properties.
We have discovered here in the Twin Cities, that Cities acquire claimed distressed properties (including those that the City acquired after targeting them) and then hold those properties off market for 3-5 or more years – until they have the money to develop them from federal or other sources and so as they claim, stabilize the real estate market in the inner city. Through use of a land bank concept, the properties are off-limits to the private market much like the “First Look” program whereby bank REO properties in the inner-city are offered first off-the-books to local governments and NGOs, thereby prohibiting private market acquisition. We learned of this policies through the Cities’ applications for federal Neighborhood Stabilization Program grants (NSP) funding from 2009 and thereafter.
You will be able to learn more about Milwaukee’s use of NSP grants and the issues I have raised herein by looking at the City’s website on NSP funding – see the following link: http://city.milwaukee.gov/NeighborhoodStabilizationProgramNSP.htm#.VEg2DRYzISg
Here in the Twin Cities, we have local government policies that interfere with the normal “ups and downs” of the real estate market and exacerbate the affordable housing crisis. These local government policies prohibit transfer of ownership of vacant homes without local government approval and require massive investment into claimed distressed homes before re-occupancy. These policies have directly led to an extended period of blight in the inner-city as the normal 300-400 annual vacant homes in St. Paul has continued for eight years at 4-8 times those levels, including above 2,000-2,400 for a number of years. These local government policies extend the high number of vacant homes for longer periods thereby allowing local governments to control the disposition, ownership and use of these homes.
The continuation of these policies year after year has negatively impacted property (sales) values of homes including older rental properties; however, the tax assessments are continuing at high valuation levels.
Combined City efforts of heavy, targeted code enforcement and high rates of demolitions with associated demo assessments, along with the high number of foreclosures and vacant homes, has led to a golden opportunity for local governments to acquire these claimed distressed properties. City acquisition of large numbers of claimed distressed properties and the policy of holding those properties offline from sale and redevelopment, along with the lack of production of significant numbers of new affordable rental units for those at under 30% AMI, has exacerbated the unavailability of affordable older housing to meet the high demand for rental housing.
Here, local government documents demonstrate that City officials are seeking to keep private investors from acquiring distressed properties; are placing deed restrictions on renovated homes prohibiting rentals; city policies are de-converting multi-unit rental buildings and homes to smaller number of allowed units – duplexes de-converted to single family homes, and 4-plexes to duplexes. There are thousands of vacant homes that could be quickly and economically repaired to reasonable housing standards and let out to those in need of rental housing. Instead local governments are requiring massive renovation investment to City-approved standards (including Green Energy) in order to re-occupy these homes.
Federal, state and foundational funding is insufficient to renovate the inner-city older housing stock yet the City will allocate federal funds to each project at levels many times above the amount the private market would or could justify. Government funding for the expensive renovation and subsidies for new owners, is actually wasted while claiming to develop and preserve affordable housing. A small portion of the overall Millions in grant and other government funds currently being committed yearly to the government and NGO renovation projects producing a small number of housing units, could be provided to the private market for repairs and commonsense renovations.
With the high demand for affordable rental housing units by poor, minority families, a reasoned argument can be made that available government funds should be spent first on policies that ensure there are enough affordable housing units for most of those in need with ability to pay. The private market has the time-tested solutions for issues related to timely production of safe, decent and sanitary rental units including renovated units to reasonable standards. Instead, local government policies are focused on prohibiting the private market solutions and producing expensive renovations to a limited number of homes in the large pool of vacant homes. Government policies like this in the short term only produce minimal numbers of available units and most of them for home-owners only. It also keeps thousands of low-income and minority families on the waiting lists for affordable housing.
Again, thank you for your interest in our fight for justice here in the Twin Cities.
I look forward to discussing these issues with you.
John R. Shoemaker
Attorney at Law
SHOEMAKER & SHOEMAKER, PLLC
Highland Bank Building
5270 West 84th Street
Bloomington, MN 55437
P.S: In July 2013, HUD proposed a federal regulatory rule called, “Affirmatively Furthering Fair Housing” that has long been a federal funding requirement of all Entitlement Jurisdictions, including Milwaukee. Section 808(e)(5) of the Fair Housing Act (42 U.S.C. 3608(e)(5)) requires that HUD programs and activities be administered [including by grant recipients) in a manner affirmatively to further the policies of the Fair Housing Act.
The new AFFH rule replaces the “AI” process with a Fair Housing Assessment.
To review the new AFFH rule, see https://www.federalregister.gov/articles/2013/07/19/2013-16751/affirmatively-furthering-fair-housing
Final action by HUD on the new AFFH rule is expected in December 2014.
HUD says the AFFH rule is designed to lower the number of lawsuits against local government units.