The purpose of an Analysis of Impediments to Fair Housing Choice (AI) is to identify local barriers that are preventing individuals and families from living in integrated communities free of housing discrimination. In addition, an AI should identify ways that a jurisdiction can affirmatively further fair housing.

On October 17, 2017, the ERC submitted the following comments to the Fairfax County Office of Human Rights and Equity Programs, the agency tasked with submitting the documents to HUD for approval:

The Equal Rights Center (ERC) is a civil rights organization that identifies and seeks to eliminate unlawful and unfair discrimination in housing, employment, and public accommodations in its home community of Greater Washington, DC and nationwide. The ERC receives funds from HUD to serve as a full service fair housing center to the Greater Washington, DC region and conducts complaint intake, education and outreach, testing, investigations, and if necessary, fair housing enforcement, in Fairfax County. As part of this work, ERC staff reviewed the public draft of the Fairfax County, Virginia Analysis of Impediments to Fair Housing Choice 2016-2020 and applauds Fairfax County for creating a report that is both comprehensive and easy to understand. It is commendable that the report authors highlight multiple actions the County has taken to comply with its duty to affirmatively further fair housing (AFFH), even in the face of state level barriers to doing so.

Nonetheless, the draft report lays out a series of concerning observations and subsequent recommended actions to overcome them. The ERC agrees with the report analysis and recommended actions overall, and is using its comments to highlight the following:

• The draft Analysis of Impediments (AI) identifies that a dual housing market currently exists in Fairfax County using a “Free Market Analysis” to determine if race, color, and/or national-origin based discrimination are occurring in the County. The Free Market Analysis takes into account household incomes and the cost of housing in order to identify the approximate racial demographics of a census tract if it were free of discrimination. The report consistently finds that the actual proportion of black individuals and families in neighborhoods was significantly less than would be expected. White, Asian, and Hispanic households were overrepresented in those neighborhoods. This indicates a high likelihood that a dual housing market exists, one in which white, Asian, and Latino households have access to neighborhoods throughout Fairfax County in what is called the primary housing market. However, black households are likely being steered to integrated and majority black neighborhoods in what is referred to as the secondary housing market. These results are troubling but well analyzed.

In addition, black and Hispanic households were most likely to be denied for conventional and government backed loans and indications are that these households are likely being steered towards high-cost, if not predatory, loans. Further, some neighborhoods are also becoming increasingly concentrated with Asian and/or Hispanic households. It is unclear whether this is because of national origin-based steering or an inclination of recently immigrated families to want to live in close proximity to each other. It is highly possible that both factors may be at play. As a result of these observations, the report recommends the County monitor neighborhood demographics to determine if neighborhoods are re-segregating or if second and third generation immigrants are moving to all areas within the county. The AI also encourages the County to undertake additional research and testing to better determine if steering and discriminatory lending practices are systemic concerns. The ERC strongly supports these recommendations.

• The report also examines the impact on affordability to the local housing market (and highlight that the County has taken decisive action to do so as well). Affordability is important to consider because the legacy of racism in the United States has not just impacted people’s access to housing, but also access to employment and the ability to accumulate wealth. Most of the homes, except for condominiums, for purchase in Fairfax County are unaffordable to over half of its residents. The affordability gap disproportionately harms residents of color due to their lower median household incomes. Women-headed households and the elderly are also disproportionately impacted.
• Finally, the AI finds that housing for people with disabilities, especially community residences, is significantly limited by the county’s zoning code. The zoning code attempts to impose maximum occupancy standards on housing for people with disabilities and it creates confusing distinctions between types of households for unrelated people with disabilities. In addition, the zoning approval process for such households is financially burdensome and time-consuming. The report strongly recommends bringing the zoning code into compliance with the Fair Housing Act’s provisions for people with disabilities and to simplify the zoning code so it is much more straightforward and easy to understand.

These concerns are not exhaustive of the report’s analysis, but deserve serious attention. The AI also outlines a number of steps that Fairfax County can take to affirmatively further fair housing. Some of these should be relatively easy to complete, like updating the County website to make it easier to find information on fair housing and to file a housing discrimination complaint. Some of the recommended steps would be almost impossible for the County to achieve on its own. For example, Virginia allows local jurisdictions only those powers it specifically confers to then, which makes it difficult for the county to add protected classes or mandate inclusionary zoning laws.

The ERC encourages Fairfax County to review the Analysis of Impediments once it is finalized and consider implementing all recommendations as much as they are feasible. The ERC especially encourages the following:

• Conduct testing and in-depth research in the various planning districts to determine if steering and/or other forms of discrimination in housing based on race, color, and national origin are occurring.
• Establish a Housing Service Center, which would assist home seekers of all protected classes in finding housing throughout the County.
• Revise the zoning code to promote the development of group living facilities for people with disabilities and bring the code into compliance with Fair Housing Act provisions for people with disabilities.
• Promote the development of more affordable units through revisions to the zoning code and affordable housing programs.
• Educate the real estate industry and housing providers on fair housing laws and encourage the implementation of best practices at their companies.

The draft Fairfax County AI is one of the most comprehensive, well-researched documents of its kind that the ERC’s staff has ever had the opportunity to review. County leadership should be commended for taking the time to conduct such an in-depth analysis that highlights problems that are difficult to solve. The ERC has a long, positive working relationship with Fairfax County and hopes to use the finalized AI as an opportunity to continue building that relationship by assisting with the implementation of the draft report’s recommendations in the interest of affirmatively furthering fair housing.