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In what appears to be the nation’s first race-based challenge to a state’s allocation of federal tax credits for low-cost housing, a state appeals court seems inclined to support taking race into account. The Low Income Housing Tax Credit program is the chief source of funding for affordable housing in New Jersey. The New Jersey Housing and Finance Mortgage Agency doles out about $15 million worth of credits a year to spur development of affordable housing. But the Fair Share Housing Center of Cherry Hill, a not-for-profit advocacy group, argues that the criteria in the agency’s Qualified Allocation Plan (QAP) concentrate construction in inner cities, perpetuating segregated housing patterns and segregated schools. Last year, for example, nine of the 14 projects that received credits were in census tracts with greater than 85 percent minority populations. And 506 of the 743 units were to be built in municipalities whose schools are more than 90 percent minority, according to Fair Share, which was denied a contested hearing during the rulemaking process. The HFMA claims it is not compelled by state or federal law to deny subsidies to affordable housing in largely minority urban areas. The 1986 federal tax statute that created the credit program does not mention race as a factor. Fair Share argues that, nevertheless, Title VIII of the Civil Rights Act of 1968 creates a mandate for integration. At oral arguments last Monday in In re Adoption of the 2003 Low Income Housing Tax Credit Qualified Allocation Plan, A-109-03, Appellate Judges James Havey, Richard Newman and Robert Fall seemed to see merit in Fair Share’s contention that race should be a factor. At the outset, Havey instructed counsel to assume that the HFMA is subject to language in Title VIII that agencies administer programs “in a manner affirmatively to further the purposes of this title.” Fair Share attorney Peter O’Connor began by telling the judges that the criteria laid out in the QAP are “fundamentally flawed.” He said the agency refuses to consider racial implications of its siting criteria and Fair Share is “looking for a directive from the court to correct the deficiencies in the QAP prospectively.” “Outline what we should do,” Havey requested. O’Connor pointed to standards used by the U.S. Department of Housing and Urban Development, which address racial concentration. Those standards should be supplemented by “school considerations” and “the Mount Laurel considerations of regional opportunity,” he urged. Havey asked whether O’Connor agreed that, aside from the impact of the Mount Laurel doctrine, the state cannot trump local power to zone. O’Connor replied that while the HFMA might not have power to zone, neither is it bound by local zoning restrictions. “There is almost nothing this agency cannot do in the area of housing development,” he said. O’Connor said that the 2003 criteria work against what should be the HFMA’s goal of promoting integration in housing. For example, they deny tax credits to builders who qualify for a density bonus. The Council on Affordable Housing is part of the problem. The federal government sets affordability standards but states can go lower. “COAH set the floor too high,” skewing suburban construction toward moderate- rather than low-cost housing, O’Connor said. Kenneth Zimmerman, of the New Jersey Institute for Social Justice, argued on its behalf and three other amici on Fair Share’s side: the New Jersey Public Policy Research Institute, the Housing and Community Development Network and the Coalition for Affordable Housing and the Environment. Zimmerman argued that the Title VIII provision at issue shows Congress intended to promote residential integration by requiring “active steps” toward that goal. The HFMA has taken steps to promote economically mixed housing but it continues to resist the legal mandate to consider racial impact, he added. Though the agency has suggested that considering race would run afoul of case law on affirmative action, racial quotas are not at issue here. The broad issue is “how is the state going to apply its resources to accomplish Mount Laurel objectives,” he continued. Zoning is the most significant constraint, but resources also matter. The state “is saying Mount Laurel stops short of the most significant set of housing subsidies available,” said Zimmerman. Judge Newman asked the HFMA’s lawyer, Senior Deputy Attorney General Carol Johnston, whether, if there are not enough tax credits for New Jersey’s needs, more might be obtained. Johnston responded that if New Jersey exhausts its share of credits, which are based on population, it can draw from a national pool. Judge Fall asked: “If we find that the QAP has a substantial effect in promoting discrimination, do you agree the regulations would be void?” Johnston said that the 2003 QAP has added various preferences and set asides that should lead to revitalization of urban areas and more mixed-income housing, which, assuming low-income is a proxy for race, should increase diversity. “Will it or will it not promote integration?” pressed Fall. It should assist with revitalization and economic integration, Johnston answered. Asked by Havey what the HFMA had done to “affirmatively further integration,” Johnston said, “We have not refused or denied tax credit to projects in urban areas with high minority populations. We have not directed them solely to white neighborhoods.” Was it the state’s position that its creation and promotion of housing opportunity may result in integration but that was not its mission, asked Havey. “Yes, but let me explain,” answered Johnston. The cases cited by plaintiffs are “round pegs” while “we’ve got a square hole,” she said. In those cases, courts would not allow low-income housing to be concentrated in black areas in cities that included both black and white neighborhoods, explained Johnston. They don’t apply here because New Jersey’s cities are entirely minority. The HFMA has acted to promote mixed-income housing and community revitalization and to help meet COAH obligations, and has “not much to do beyond that,” stated Johnston. “We should do no harm,” she concluded.

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