Can Virginia legislate away the NIMBYs?

May 26, 2021 12:00 am

The Rosa, an affordable housing development by Enterprise Community Partners and the Richmond Redevelopment and Housing Authority in Richmond’s Jackson Ward neighborhood. (Wyatt Gordon/ For the Virginia Mercury)

In less than six weeks, Virginia will become just the third state in the nation to officially go on the books as saying no to NIMBYs.

Pro-housing advocates increasingly peg the “Not In My Backyard” naysayers as the main culprit behind America’s historic low of new housing construction over the past decade, since one of their top concerns remains keeping low-income families out of affluent neighborhoods. 

Thanks to HB 2046 from Del. Jeff Bourne, D-Richmond, beginning on July 1 localities across Virginia will no longer be allowed to deny building permits to projects “because the housing development contains or is expected to contain affordable housing units occupied or intended for occupancy by families or individuals with incomes at or below 80 percent of the median income of the area.”

The move sounds momentous, but will it really make a difference?

Holding back housing

“We‘re not sure if those people are right for our community,” said Bourne. “Do we really want this type of development for those folks in our town?” Those are just a couple of the questions Bourne says he often hears about when new affordable housing goes before Virginia localities for permit approvals. They are also the kinds of questions about new development that he hopes his anti-NIMBY bill will put an end to.

“We’re trying to limit the ability of discrimination to impede the creation of more affordable housing for folks,” Bourne said. “Unfortunately, local governments have used the type of tenant and end-use of housing as a reason to deny or defeat projects, so what we wanted to do is ensure protections for different classes of people when local governments are determining whether new development is a good fit for their community.”

In theory, the Fair Housing Act has protected Americans against race-based discrimination in the housing market since its passage in 1968. In practice, those looking to keep low-income Americans out of their neighborhoods have found creative and nuanced tools such as single-family zoning and minimum lot sizes to get the job done. One effective method to keep undesirables out has been to deny building permits for developments intended to serve low-income households or construction which relies upon federal tax credits to subsidize it.

Since prospective tenants’ income levels and developments’ funding sources aren’t federally protected, the Department of Justice has also had to get creative in their enforcement of the Fair Housing Act. That’s why in 2019 DOJ’s Civil Rights Division launched an investigation into potential racial discrimination by the Powhatan County Board of Supervisors after the county denied a rezoning application for a 204-unit multi-family apartment complex near Flat Rock Elementary School.

“Instead of explicitly saying we don’t want those people in our communities, today we see discrimination happening via land use,” said Kenneth Gilliam, policy director for New Virginia Majority, a racial and social justice nonprofit. “I think of this bill as continuing to chip away at the discriminatory practices that prevailed here in the South like redlining or racialized covenants that did not allow Black and brown communities to build wealth. This represents another step in the right direction by continuing to build more affordable housing and expand the areas that people have access to so families have more options when they’re looking for a place to call home.”

Housing for whom?

From the Virginia Values Act to protections for victims of domestic abuse, in recent years the commonwealth’s Democratic majority has dramatically expanded the list of groups included under Virginia’s Fair Housing Law. With such protections now in place, the fight for affordable housing has shifted to focus on the lack of supply in the market.

“This could be really groundbreaking, but the fear of change NIMBYism is based on is strong and NIMBYs will find any way to run out the clock, delay or create opposition to new housing,” said Joh Gehlbach, government affairs manager for the Richmond Association of Realtors. “This will certainly help to eliminate some of the more formalized opposition to housing creation for a specific income level and for rental properties versus sale properties, but this is another tool in the tool box. It’s not a silver bullet.”

Brian Koziol — executive director of the Virginia Housing Alliance — agrees with Gehlbach’s assessment: “More than anything this anti-NIMBY bill sets the tone that local governments can’t deny housing based on the income of the prospective residents. The bill sends the message to local governments that we are in dire need of affordable housing, and it is no longer acceptable to refuse low-income housing. Local governments can no longer say based on the style, design or neighborhood character of the proposal that it doesn’t fit with community standards.”

Debates around aesthetics and neighborhood character may sound frivolous; however, the lengthy delays and permit appeals triggered by such resident concerns can add up to big bucks for housing developers and those who wish to move into new construction. “In construction, time is money,” Gehlbach said. “Demands to lower the number of units in a new development also causes costs to be distributed across fewer housing units, thereby raising the cost of each new unit. The result is escalating housing costs for everyone.”

Ultimately, the impact of the bill may be decided by the courts. Many of the precedents housing non-discrimination law is based on have resulted from plaintiffs suing after localities, developers or realtors have violated newly established rights or protections. “I’m not predicting there will be lawsuits from this,” Koziol said, “but that’s the way a lot of fair housing and non-discrimination law works.”

Although housing advocates are excited about the bill taking effect, none believe the legislation will magically solve the commonwealth’s shortfall of housing for low-income families — currently estimated at 148,720 units according to the National Low Income Housing Coalition.

“I’m hopeful, but I don’t think in and of itself this is big enough of a mechanism to be viewed as a significant contributor to the production of affordable units,” said Koziol. “This is one helpful piece of a very complex puzzle.”

Even Bourne himself believes the best solution to Virginia’s affordability crisis is additional dollars. That’s why this year he patroned legislation to set aside $15 million a year over the next five years towards a state level Low Income Housing Tax Credit. It’s also why he has continuously called for the state to do more to prime the pump on affordable housing.

“We have to invest in the affordable housing trust fund; it is a good vehicle, but it doesn’t have the reach it needs,” Bourne said. “What’s affordable in Arlington isn’t affordable in Richmond and isn’t affordable in Big Stone Gap.”

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Wyatt Gordon
Wyatt Gordon

Wyatt Gordon covers transportation, housing, and land use for the Mercury through a grant from the Piedmont Environmental Council and the Coalition for Smarter Growth. The Mercury retains full editorial control. Previously he’s written for the Times of India, Nairobi News, Honolulu Civil Beat, Style Weekly and RVA Magazine. He also works as a policy manager for land use and transportation at the Virginia Conservation Network.