Guest Commentary: Keeping Davis White? Land Use Policy Is a Civil Rights Issue

by Rik Keller

“What has kept Davis so white?”

—City of Davis Mayor Pro Tempore Gloria Partida 10/3/2018

This is Part III in a series of articles about the history and ongoing patterns of housing discrimination in Davis.

Introduction

In Part 1: “Why Is Davis So White? A Brief History of Housing Discrimination” and Part 2 “How White Is Davis Anyway? A Comparative Demographic Analysis” of this series, other types of housing discrimination practices were mentioned that have continued even after explicit racial discrimination practices ended; for example, subprime lending that and “exclusionary zoning” that result in development patterns that focus on low-density single family houses and exclude more affordable housing types.

The point is, to borrow a quotation, “The past isn’t dead. It isn’t even past”.

An article about the 50th anniversary of the passage of the Fair Housing Act this year stated: “As Richard Rothstein explains in his groundbreaking book The Color of Law, our past segregationist policies have deep roots. Explicit discrimination may be outlawed, but indirect segregation via disinvestment and exclusionary land use policies remain common themes in our country today.”  The history and dynamics of these issues in Sacramento have been studied by Dr. Jesus Hernandez from the Sociology Department at UC Davis. His “research focuses on understanding the connection between economic market activity in the region and the patterns of racial segregation that we have.”

The “Taking Care Of Our Own” Program

“Us vs. them”Recently-elected Davis City Council member and Mayor Pro Tempore Gloria Partida wrote an op-ed several weeks ago that rightfully called out the language used as the tagline for the West Davis Active Adult Community (WDAAC)/Yes on Measure L senior housing project: “Taking Care Of Our Own” as ringing “with a distinctly Trumpian tenor that effectively delineates “us” from “them.””

This is a project whose “Davis-Based Buyer’s Program” says outright: for 90% of our houses, if you don’t live in Davis, if you don’t have any other Davis connections, you cannot buy into project. The Development Agreement for the project approved by the Davis City Council on 6/12/2018 states “Davis-Based Buyers Program. Developer has elected to restrict ninety percent (90%) of the residential units within the Project… to initial purchasers with a preexisting connection to the City of Davis.”

It is apparent the City Council did not even stop to think about who at retirement age now may have been excluded from Davis decades ago and who “our own” actually refers to.

As discussed earlier in this article series, the most significant underrepresented racial/ethnic group in Davis is Hispanics/Latinos who made up almost 39% of California’s population in 2016. In Davis, that group was only 14% of the total population, a rate almost 3 times less. Furthermore, the representation of Hispanics/Latinos among the older population (55+ years) in Davis in 2016 (4%) was at an even lower level, a rate about 5.5 times less than in California (21.8%).

It is indicative that while the WDAAC project went through multiple layers of review at the City of Davis, I can’t find a single reference to a city official or decision-maker in the publicly-available project documentation questioning the exclusionary message of the “Taking Care Of Our Own” program. Regardless of the offensive language used to describe the program, however, the larger problem is the nature of the program itself.

Eric Gelber (a Davis resident with 26 years experience as an attorney with a nonprofit disability rights advocacy organization, including fair housing advocacy) recently stated in a public forum (my emphasis):

“Council Member Partida was right to point out that the phrase “Taking Care of Our Own” has a Trumpian ring to it. But she missed the point that it’s not just the tagline that is Trumpian; it’s the policy itself. The Davis-Based Buyers Program is explicitly intended to prohibit those deemed to be outsiders from purchasing 90% of the homes in WDAAC. Intended or not, because of the demographics of Davis vs. the more diverse population of the region and the state, excluding outsiders would have the effect of perpetuating Davis’ comparative racial imbalance. The policy, not just the tagline, is the philosophical equivalent of “America First” and it is the functional equivalent of Trump’s proposed border wall.”

Violation of Civil Rights Under the Fair Housing Act

One of the most prominent civil rights attorneys in Northern California who has a decades-long strong record of defending and representing disadvantaged people and people of color—Mark Merin—has now filed lawsuit against the WDAAC project developers as well as the City of Davis alleging discrimination and Fair Housing Act violations as previously reported in this publication .

Contrary to her criticism of the language used to market the program, however, Mayor Pro Tem Partida has taken a dismissive attitude toward the lawsuit against the program itself, saying it is “an appropriation of civil rights issues for a land use dispute.” In addition, she said conflating civil rights marches with “walkable communities is nauseatingly wrong”. Disturbingly, that’s what the Mayor Pro Tem thinks this is all about? Putting aside for the moment the fact that walkability is actually a very real concern for fair housing and disability rights advocates, this viewpoint ignores the history of the Fair Housing Act, how it is enforced, and provisions within it that are deeply connected to land use policy and disputes.

Land Use Policy: Who is Excluded?

“Low-density zoning excludes Black and Hispanic residents”

Sometimes we see evidence of racism and discrimination in hate language being directed to certain groups. Sometimes we see it or hear about it when it comes to personal interactions and whether people feel comfortable in a community. But we need to stop thinking about discrimination as solely individual attitudes and actions, and start thinking about systemic and systematic discrimination and exclusion that is ongoing in our land use development patterns and in our in our distribution of resources.

Land use policy is a civil rights issue. Land use decisions are who gets to build what where, who is affected by that, who benefits, who is excluded. When you are buying or renting a home in a community, you are not just getting a roof over your head. You are purchasing opportunity for you and your family: opportunity for schools, for cultural enrichment, job opportunities, economic advancement. “Land use disputes” are at the center of that. There is discrimination and exclusion that is ongoing in our residential development patterns, in our lending patterns, and access to credit, and in our land use policies. As an example of the effect of exclusionary zoning practices, this study found that, “low-density-only zoning, which restricts residential densities to fewer than eight dwelling units per acre, consistently reduced rental housing; this, in turn, limited the number of Black and Hispanic residents…” [Rolf Pendall, Local Land Use Regulation and the Chain of Exclusion, Journal of the American Planning Association]

The Fair Housing Act

“Affirmatively furthering fair housing”

2018 is the 50th anniversary of the passage of the Fair Housing Act:

“The final major legislative accomplishment of the Civil Rights Movement, this act was preceded by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. President Lyndon B. Johnson pushed for an “open housing” law several years before, but … such a bill seemed to be going nowhere until the assassination of the Martin Luther King Jr. on April 4. With fear of further uprisings in the streets, legislators moved swiftly, and the Fair Housing Act was on President Johnson’s desk a week later.” [https://haasinstitute.berkeley.edu/blog-why-we-must-continue-fight-fair-housing-50-years-nation%E2%80%99s-fair-housing-act]

There is a common misconception that housing discrimination in the U.S. ended after the passage of the Fair Housing Act. However, while many people think of the Act as solely prohibiting individual cases of discrimination, actually:

“the Fair Housing Act in its original iteration went further than just to prohibit discrimination in the sale, rental, leasing or conditions of sale of housing. It also required that the government promote integration proactively….After decades of federal, state and local policies that had formed and systematically promoted racial residential segregation, simply prohibiting discrimination would hardly transform those patterns. Thus, although the Fair Housing Act’s main provision was an individualistic tort solution to discrimination, it went further, and called on the HUD and other federal agencies to “administer the programs and activities relating to housing and urban development in a manner affirmatively furthering” fair housing.”” [https://haasinstitute.berkeley.edu/blog-why-we-must-continue-fight-fair-housing-50-years-nation%E2%80%99s-fair-housing-act]

 There are two key things to emphasize:

1) Private lawsuits have been the primary means of enforcing the Fair Housing Act for the 50 years since its passage. Additionally, privately-initiated litigation has been responsible for most of the major decisions concerning it. As an article in the Yale Law Review stated, “private litigants deserve much of the credit.” In a very real sense, private litigants have been civil rights heroes who have brought tangible meaning and action to the goals of the Fair Housing Act. As stated in this New York Times Editorial Board article:

“In the absence of strong federal leadership, the task of securing fair housing has largely fallen to housing and civil rights groups, which have routinely taken cities and counties and the federal government itself to court for failing to enforce anti-discrimination laws. Their lawsuits have changed the lives of many citizens who were once trapped in dismal neighborhoods.”

2) It is central to the Fair Housing Act to “affirmatively further fair housing” through housing and land use policy. The wealth disparities in communities and between communities that were accentuated by the policies and practices outlawed by the Act and other legislation persist today with residential patterns and housing opportunities distributed along particular racial/ethnic lines and ongoing discrimination. However, this aspect of the Fair Housing Act was essentially ignored for years until finally in 2010, “under the Obama administration, the Department of Housing and Urban Development (HUD) began drafting an administrative rule that would clarify and operationalize this responsibility. The rule was finally issued in 2015, and has been used by a number of cities to begin to attack entrenched segregation.” [https://haasinstitute.berkeley.edu/blog-why-we-must-continue-fight-fair-housing-50-years-nation%E2%80%99s-fair-housing-act]

Disparate Impacts: Discriminatory Effects

“If I accepted these as legitimate justifications, residency preferences in and of themselves would forever justify the disparate impacts that they cause.”

The Affirmatively Furthering Fair Housing (AFFH) rule has now been challenged by the Trump administration seeking to overturn it. Sara Pratt, a former HUD attorney under the Obama administration has stated that if this happens “”You’re going back to communities willfully blinding themselves to patterns of segregation… Without this rule, communities will not do the work to eliminate discrimination and segregation.” [https://www.commondreams.org/news/2018/08/14/latest-attack-fair-housing-act-carson-moves-gut-anti-segregation-rule]

The required examination of exclusionary zoning and other potentially discriminatory land use practices under the AFFH rule is connected to disparate impact theory: “In 2015, the U.S. Supreme Court affirmed that housing policies that disproportionately negatively affect minorities are prohibited under federal law, even when those policies are not explicitly discriminatory. Exclusionary zoning was at the heart of the case that settled this “disparate impact” standard.” [https://www.citylab.com/equity/2018/08/ben-carsons-new-argument-against-fair-housing-rules-its-about-nimbys/567449/]

Disparate impact theory in fair housing states that ““A land use or zoning practice can result in an unjustified discriminatory effect if it caused or predictably will cause a disparate impact on a group of persons, or if it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic.” [https://nlihc.org/article/hud-and-doj-update-fair-housing-act-guidance-about-land-use-laws]

 The importance of this application of theory in promoting for inclusive communities and reducing segregation is highlighted in the following [my emphasis]:

“In order to effectively combat the full range of contemporary housing discrimination, including its more evolved forms, such as predatory lending and discriminatory rezoning plans, plaintiffs must be able to plead Fair Housing Act (“FHA”) claims under the disparate impact theory…In an effort to afford plaintiffs the comprehensive coverage required under the FHA, all eleven federal appellate courts adopted the disparate impact theory over the course of four decades of FHA litigation. Unlike disparate treatment liability, which requires a showing of discriminatory intent, the disparate impact theory prohibits “practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities.” Accordingly, a wider range of conduct is actionable under disparate impact than disparate treatment, as the latter can make it “virtually impossible to enforce antidiscrimination laws, since it can be very easy to conceal a discriminatory purpose behind neutral-sounding rules.” Fundamentally, a prima facie case of discrimination is established under the disparate impact theory by showing that “the challenged practice of the defendant ‘actually or predictably results in racial discrimination; in other words that it has a discriminatory effect.’” [http://www.cunylawreview.org/nick-bourland/]

In an editorial David Greenwald wrote in the Davis Vanguard in 2015, he stated that if the Inclusive Communities Supreme Court case then under review overturned these decades of precedent about disparate impact, it would spell the “end of fair housing” and would represent “further dismantling of the dream” of MLK. In my view, he was right about that.

In Davis, we now have a textbook example of an exclusionary housing program with clear on-the-face-of-it disparate impacts—that is, not necessarily discriminatory intent but discriminatory effects. The developers themselves said that discriminating by “zip code” would be illegal and their legal team agreed:

• [Jason Taormino, 9/14/2018; Davis Vanguard]: “…I did not see any methodology to provide preferences based upon being a current Davis resident or being related to a current Davis resident because the demographics of Davis are not reflective of the regional averages. Our legal counsel agreed with this opinion.”
• [Jason Taormino, 10/9/2017, Project FAQs document on the City of Davis project website]: “…we all recognize that the legality of discriminating based upon zip code is questionable…”

However, the WDAAC developers then tried to get around this illegal discriminatory effect of their program by extending program eligibility beyond city of Davis residents to UC Davis and DJUSD employees and former students. However, this is not sufficient either because of the demographics of the people of retirement age now who would have mostly established those connections previously when those institutions also had larger disparities in ethnic/racial groups. Even currently, for example, only 13.6% total UC Davis employees are Latino, a share almost identical to the share of the Latino population in the city of Davis.

Eric Gelber recently stated the following about the WDAAC project: “affirmatively adopting a policy that knowingly favors a largely white demographic and thereby statistically disadvantages non-white buyers, which will not only fail to improve the current racial imbalance but, by design, will most likely exacerbate it.”

The landmark 2002 Langlois opinion provides guidance on how to look at the kinds of local restrictions like the WDAAC project is proposing in its “Taking Care Of Our Own” program. The judge in that case stated (my emphasis) “the defendants could not simply cite the goal of wanting “to make it easier for their residents to keep living in their communities,” because this basically just reflects “the very definition of residency preferences. If I accepted these as legitimate justifications, residency preferences in and of themselves would forever justify the disparate impacts that they cause.” [http://furmancenter.org/research/iri/essay/the-community-preference-policy-an-unnecessary-barrier-to-minorities-housin]

Keeping Davis White?

What policies and programs have had or would have the effect of continuing these exclusionary patterns? How do we enact policies and programs to avoid continuing these past patterns and make the community more inclusive? How can Davis start to “affirmatively further fair housing” and seek eliminate disparate impacts in the housing projects it approves?

Supreme Court justice John Paul Stevens famously stated “The line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.” The concept of disparate impact is that it does not matter if there is discriminatory intent (and indeed discriminatory intent is very difficult to prove), it is just whether there is discriminatory effect. There could obviously be both in some situations and the lines can be blurred.

Eric Gelber stated the following about the WDAAC developers’ response to community backlash about their program:

“I take the Taorminos at their word that the local buyers’ preference program was intended to respond to their interpretation of the intent of [Measure J/R] –that is, to address “internal” housing needs. I believe there was no discriminatory intent. But the Davis-Based Buyers’ Program was a naive and misguided effort to address internal housing needs by simplistically saying, OK, we’ll just limit 90% of purchases to people connected to Davis. Then, in the face of evidence of how the local preference program as proposed would have a disparate impact (discriminatory effect) by disadvantaging non-white purchasers, rather than dropping the proposal, they dug in, and defended the program anyway. They subsequently gave mere lip service to the unfortunate phrasing of their promotional slogan–Taking Care of Our Own. At some point, the continued promotion of a policy in the face of evidence of its inevitable adverse discriminatory impacts–even if initially unintended–can no longer be deemed innocent or unintentional. At some point, motivational assumptions become justified.”

After the community forum sponsored by the CivEnergy about the project a week ago, one member of the WDAAC project development team spent a long time afterward asking me multiple variations of the question “wouldn’t the project be just as discriminatory without the Taking Care Of Our Own” program?” This demonstrates how thoroughly embedded in their thinking it is that the project is already discriminatory and exclusive based on both age restrictions and the types of housing and the income ranges that they are primarily trying to cater to, and, in their view, adding one explicit layer of discrimination on top in the form of their locational requirements would not change anything. This is the type of thinking that needs to change.

One of the primary things to address in terms of land use policy affirmatively furthering fair housing is low-density sprawl: primarily single family development that excludes by income/class and race/ethnicity (because the latter is so intertwined with former in the U.S.).

Another thing to address is the weakening of the City of Davis’ affordability requirements. Earlier this year the 25-35% requirement for inclusionary/affordable housing in the City’s Affordable Housing Ordinance was reduced to 15% temporarily because of a need to respond to State rules. When the City modifies its Ordinance again by the end of 2018, it needs to ensure that it is adequately addressing the need for affordable housing among the lowest income groups in the city and that it eliminates the kinds of loopholes in the requirements as well as fee assessments that developers have taken advantage of in the past. One example of this is illustrated in the following:

“Projects like the Sterling student apartments will be rented by the bedroom; units will include up to five bedrooms each with their own bathroom. Under this model, the impact fee for a one-bedroom unit ends up being the same as a five-bedroom”.

“In effect, the affordable housing units are subsidizing the market-rate units right now, which, of course, makes no sense if the city is looking for ways to encourage creation of more affordable housing,” [Luke] Watkins said.” [https://www.davisenterprise.com/local-news/its-an-uphill-battle-for-affordable-housing-in-davis/]

Another example is the recently-approved Nishi project, where claiming “affordability” by the bed will enable the project developers to charge more per bedroom for the “affordable” component than the market rate component of the project. [https://www.davisvanguard.org/2018/06/examination-affordability-nishi-projectmeasure-j-expensive-overcrowded/]

The background and legislative intent of the language in City of Davis Measure R (2010) regarding the policy goal of an “adequate housing supply to meet internal City needs,” includes a statement in the 2007 City Of Davis General Plan Update that “the primary reason for city residential growth to provide housing opportunities for the local workforce.” This history is more fully explored in this article: [https://www.davisvanguard.org/2018/09/guest-commentary-internal-housing-needs-davis/].

To summarize briefly here: despite the clear definition of the phrase “internal housing need” when we look at the City’s General Plan for which Measure R is designed to “further” and “implement,” there are some who have either forgotten this recent history or are hoping that we forget this recent history as they seek citizen approval to convert agricultural lands on the periphery of the city. These proposals should be evaluated carefully to determine whether they are truly addressing the policy language and intent in Measure R, the General Plan, and supporting documents.

Keeping with Measure R directives, project proposals that seek voter approval to develop protected agricultural land should be evaluated based on whether the proposed conversion of agricultural land to other uses is necessary and whether it meets the directive of addressing the city’s internal housing need—the housing need for the city’s workforce, particularly underserved low- and moderate-income households.

In perhaps the most egregious example of special interests weakening affordable housing provisions in Davis, there is a specific set of requirements that were killed by the Chamber of Commerce and a coalition of developers in 2009: the City of Davis Middle Income Ordinance. This was directed specifically at the primary internal housing need identified by Measure R and the City of Davis General Plan: workforce housing.

There is a large irony in the fact that the same project developers for WDAAC who are trying to use a broad and nebulous definition of “internal housing need” applied to Measure R that apparently means whatever they want it to mean for a particular project, —in this case a project that consists primarily of senior-only, market-rate, upper-income, suburban-sprawl style housing—and have also instituted a specific discriminatory program, were also involved in efforts to kill one of the main policies in Davis that actually addressed the primary internal housing need in Davis.

Final Thoughts

Land use disputes are a central civil rights issue. We need to change our thinking about what discrimination really looks like at the systemic level and start to try to address these issues in our land use planning for a more equitable and inclusive community.

“As long as we define social life as the sum total of conscious and deliberate individual activities, we will be able to discern as racist only individual manifestations of personal prejudice and hostility. Systemic, collective, and coordinated group behavior consequently drops out of sight. Collective exercises of power that relentless channel rewards, resources, and opportunities from one group to another will not appear “racist” from this perspective, because they rarely announce their intention to discriminate against individuals. Yet they nonetheless give racial identities their social meaning by giving people from different races vastly different life chances.” (George Lipsitz, “The Possessive Investment In Whiteness” in Readings For Diversity and Social Justice (4th Ed., 2018))

Rik Keller is a university instructor in communication studies and social work. He has two decades of professional experience in demographic analysis and housing policy & analysis in Texas, Oregon, and California after obtaining his master’s degree in city planning. He is also a 10+ year Davis resident and a current renter.

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