Comment Log Display

The Public Interest Law Project
449  15th Street, Suite 301
Oakland, CA  94612

September 15, 2014

Mary Nichols, Chair
California Air Resources Board


Re:  Interim Guidance to Agencies Administering Greenhouse Gas
Reduction Fund Monies

Dear Members of the Board:

	The Public Interest Law Project is a state support center for
local legal services and other public interest law programs serving
lower income households in California.  We write on behalf of
persons throughout the state in need of affordable housing in safe,
healthy and “high opportunity” neighborhoods with access to
affordable transit and proximate to good jobs.   Our comments are
intended to supplement those filed by other organizations and
groups that have filed comments asking that the Interim Guidance
Maximizing Benefits to Disadvantaged Communities and Appendix be
revised to better ensure the SB 535 investments provide benefits to
California’s disadvantaged communities without resulting in
displacement of existing households or substantial or unmitigated
demolition of blocks and neighborhoods.

	The final Interim Guidance, while including important social
equity provisions, unfortunately omits eligibility criteria that
would require all projects funded by the GGRF to protect the
existing residents from displacement and ensure that all projects
with residential components include affordable housing.  Amending
the Interim Guidance is essential to secure consistency with
RECOMMENDATIONS OF THE REGIONAL TARGETS ADVISORY COMMITTEE (RTAC)
PURSUANT TO SENATE BILL 375 [“RTAC Report”], the state’s ANALYSIS
OF IMPEDIMENTS TO FAIR HOUSING [“Analysis of Impediments”], the
Community Redevelopment Law, state and federal fair housing laws
and the rules of the Federal Transportation Administration. 
Amendments to the project eligibility requirements of Interim
Guidance to achieve the requisite consistency should include:

For All Projects:

Projects must not result in the displacement of lower income
households, either directly or indirectly, unless:

•	Displacement is necessary to achieve an essential purpose of SB
535
•	There is no feasible alternative that would result in no or
lesser displacement
•	If the project would have a discriminatory effect on groups of
residents protected by California and federal fair housings laws,
the displacement is necessary to achieve an important purpose
sufficiently compelling to override the discriminatory effect and
effectively carries out the purpose it is alleged to serve
•	Any housing affordable to lower income households that is removed
or converted will be replaced 1:1 within two years and made
available at a cost affordable to the households displaced, with
the displaced households receiving a first right of occupancy
•	All residents who must be displaced will be provided with
comparable replacement housing prior to displacement in the same
community unless their choice is to move to another community

For Projects with Housing:

•	Projects with a residential component must include housing
affordable to lower income households


A.	The Interim Guidance is Inconsistent with the Recommendations of
the RTAC

       As the Board is aware, ARB’s Regional Targets Advisory
Committee (RTAC) determined that a guiding principle in the
implementation of SB 375 was to “maximize social equity.”  (RTAC
Report at p. 3.)  Without amendment to ensure inclusion of
affordable housing in funded residential projects and prevention of
displacement in all projects as described above, the Interim
Guidance would undermine rather than maximize social equity.  As
the RTAC found: 

       Inequitable land use practices and inadequate public transit
access as well as economic and racial segregation can result in
exclusion, limitations on employment opportunities, sprawl and
excess VMT….  Land use based greenhouse gas reduction strategies,
however, could have beneficial or adverse effects on social equity
concerns such as housing affordability (increased land prices),
transportation access and affordability, displacement,
gentrification, and a changing match between jobs, required skill
levels and housing cost….  Implementation  of SB 375, accordingly,
should, at minimum avoid facilitating or exacerbating any adverse
consequences…. [RTAC Report at 28.]
	
B.	The Interim Guidance is Inconsistent with the State Analysis of
Impediments to Fair Housing.

	As a condition of receiving Federal housing and community
development funds, states must certify that they are affirmatively
furthering equal opportunity in housing for individuals and groups
protected by the federal Fair Housing Act of 1968 and its
amendments (42 U.S.C §3601 et seq.).  (24 C.F.R Part 91)  The
requirements apply to all state actions, not just the ones funded
with federal monies.   In preparation for making this certification
California accordingly adopted its Analysis to Impediments to Fair
Housing in September 2012.  

	The Analysis of Impediments found that the number one impediment
to fair housing choice in California is the “inadequate supply of
affordable housing available to lower-income and minority
households.”  (Analysis of Impediments at p. Exec. 2)  The adoption
of an Interim Guidance that fails to require production of
affordable housing in funded projects or provisions preventing
displacement except as a last resort will only exacerbate
California’s existing critical shortfall in housing affordable to
households in the disadvantaged communities where the GGRF monies
are directed.

	Moreover, the third most significant impediment to fair housing
identified in the Analysis of Impediments was the “shortage of
subsidies and strategies to promote affordable, accessible housing
for low, very low, and extremely low-income households, including
protected classes.”  (Ibid.)  Although the SB 535 funds will
include a set aside for affordable housing development, these funds
are insufficient to ensure that affordable housing will be included
in all projects with housing in disadvantaged communities.  If GGRF
funds flow into limited areas in disadvantaged communities, without
a requirement that affordable housing be a component of a funded
residential project, the land values, housing demand and attendant
rents and housing costs will rise, creating very impediments
identified by the Analysis of Impediments.  As the state
acknowledges in the Analysis in Impediment # 7:

   Low-income households may be at risk of displacement in areas
subject to strong new development pressure or activity.  [Analysis
of Impediments at Exec. p. 3.]

      And the clear corollary to that impediment is Impediment # 8
recognizing the “inadequate access for minority households to
housing outside of areas of minority concentration.”  (Ibid.) 
Unless projects funded outside of disadvantaged communities must
include affordable housing, this significant impediment will only
be exacerbated. 

C.	The Interim Guidance Must Reference the Obligation of
Development Projects in Existing Redevelopment Areas to Comply with
Redevelopment Law.

	Although redevelopment agencies were dissolved by AB1x 26, they
were replaced with successor agencies charged with fulfilling all
the obligations of the prior agencies and subject to the state’s
Community Redevelopment Law (CRL).  (Health and Safety Code §33000
et. seq.)   Accordingly, any new development occurring in a
redevelopment area is subject to the requirements of the CRL, and
many of disadvantaged communities identified through SB 535 will
contain existing redevelopment areas.  

	Health & Safety Code §33413 requires residential development in
all redevelopment project areas to include affordable housing in
proportion to the total number of housing units developed.  The
Interim Guidance, in addition to making eligibility for GHRF funds
conditioned on inclusion of affordable housing in residential
developments, must conform to the CRL and reference this
requirement.

D.	The Interim Guidance Must Reference and Incorporate the
Obligation that Governmental Actions Do Not Have a Discriminatory
Effect on Minorities and Other Groups Protected by the Fair Housing
and Civil Rights Laws.

	California and federal fair housing laws and state civil rights
laws also prohibit land use and development actions that have the
effect of discriminating against groups protected under those laws.
 California’s Fair Employment and Housing Act  and the federal Fair
Housing Act  prohibit land use actions by local government that
discriminate on the basis of race, national origin, disability and
family status among other protected classes.  And California
Government Code §11135 prohibits discrimination based on each of
those categories except family status by recipients of state
funding.  These overarching proscriptions against discrimination
and affirmative requirements must be acknowledged and incorporated
in the Interim Guidance.  This critical to ensuring that GGRF
monies will not perpetuate segregation or have a disparate impact
on persons of color, families with children and other protected
groups. 
   
E.	The Interim Guidance Must Ensure that Allocation of the GGRF
Affirmatively Furthers Fair Housing. 
 
	As explained under the discussion of the Analysis of Impediments,
above, the Fair Housing Act requires recipients of funding from the
Department of Housing and Urban Development (HUD) to administer
their programs in a manner to affirmatively further fair housing. 
42 U.S.C. § 3608(e)(5).  Actions that will affirmatively further
fair housing are activities that “will reduce racial segregation
and concentration of poverty, employing regional- or
metropolitan-level strategies, when applicable.”    Directing GGRF
monies to disadvantaged or advantaged communities without
sufficient protections against displacement and requirements for
production of affordable housing would be plainly inconsistent with
the duty of the state government to affirmatively further fair
housing.

	As former HUD Secretary Donovan has explained:

Sustainability also means creating “geographies of opportunity,”
places the effectively connect people to jobs, quality public
schools, and other amenities. Today, too many HUD-assisted families
are stuck in neighborhoods of concentrated poverty and segregation,
where one’s zip code predicts poor education, employment, and even
health outcomes.  These neighborhoods are not sustainable in their
present state. 

F.	A Requirement to Include Affordable Housing in GGRF Funded
Projects Would Achieve Consistency with the Rules of the Federal
Transportation Administration.

	The federal Transportation Administration (FTA) has incorporated
the provision of affordable housing in projects funded with federal
transportation monies into its rules describing the measures used
for project evaluation.  Appendix A to Part 611 of Title 49 of the
Code of Federal Regulations provides that evaluating economic
development projects must include consideration of:
Local plans and policies in place to support maintenance of or
increases to affordable housing in the project corridor;  [49 CFR
Part 611 I (g)(ii)]

        Just as the federal government has recognized that
affordable housing is critical in new development funded by the
federal transportation funds, the Interim Guidance should strive
for consistency with the federal rule, especially because many of
the projects funded with GGRF will likely also be receiving federal
transportation funds.

	Thank you very much for all the hard work evidenced by the draft
rule and for this opportunity to comment.   Please let me know if
you have any questions about our comments. 
 
Sincerely,

Michael Rawson
Director, The Public Interest Law Project