A New Birth of Housing?
Omnibus’ “Baby YIMBY” Bill Offers An Opportunity For Cities — And For Advocates
Tucked deep inside the massive Omnibus bill is what has been called the “Baby YIMBY” provision — an $85 million grant program, to be administered by HUD:
The bill provides the U.S. Secretary for Housing and Urban Development (HUD) with $85 million to dole out on a competitive basis to jurisdictions for “the identification and removal of barriers to affordable housing production and preservation.”
The secretary, currently Marcia Fudge, would have wide discretion to select grant awardees based on their demonstrable “progress and commitment to overcoming local barriers” to affordable housing production and preservation and “acute demand” for affordable housing among a jurisdiction’s lower-income residents.
Senator Brian Schatz, one of Congress’ best legislators and best housing advocates, has been tweeting up a storm on it. But Reason’s Christian Britschgi has skepticism, and rightfully so. After all, he notes, the language is so broad that it could cover loads of things, and there is a distinct possibility that municipalities will just use the federal money to backfill money that they can move around elsewhere.
It’s a horrid cliche, but it raises both challenges and opportunities for advocates and scholars.
First, how will HUD assess grant applications? Can it insist on maintenance of effort?
Second, how can advocates influence the process? This is a standard question, but it is an important one. Are advocates ready to push and shame? And this question is particularly critical when it comes to HUD, a department that has pretty much been dysfunctional for its entire history, and especially so after four years of Ben Carson.
Third, how might this square with HUD’s Fair Housing Act responsibilities? Section 808(e)(5) of the Fair Housing Act requires the Secretary to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further” fair housing. So — how will it ensure that Black and brown people will be able to access more housing?
Fourth, how will climate goals will fostered? Building affordable housing in exurbs will make things worse.
And there is a big question for scholars, in my view: how “sticky” can a program be? Sometimes, you get a program in one year, and it quickly disappears (see, e.g. the American Rescue Act’s child tax credit, thanks to Manchinema). Sometimes, you get a tiny program and it lasts will beyond the circumstances of its enactment: the federal government started subsidizing mohair production in 1941 in order to produce uniforms for US troops during the expected war; the subsidy continued through 1993, was only killed due to efforts by John Kerry, and then returned, like a zombie, still going strong today.
There is, of course, an obvious answer to this question: it depends upon the structure of the interests benefitting from a program. The late James Q. Wilson developed a famous four-part typology to describe these developments:
1. Client politics, where the benefits are concentrated and the costs are diffuse;
2. Entrepreneurial politics, where the benefits are diffuse and the costs are concentrated;
3. Interest group politics, where the costs and benefits are concentrated; and
4. Majoritarian politics, where the costs and benefits are diffuse.
The mohair subsidy is classic client politics, which is one reason why it survived. The child tax credit is majoritarian, which is why it died: there was no strong concentrated interest group to defend it.
So what is federal YIMBY legislation? The question depends upon how we determine costs. One could say that the costs are concentrated, i.e. against NIMBYs. But one could also say that the connection between the legislation and the policy is so attenuated that it looks diffuse. Similarly, what about the benefits? Are they concentrated because cities will want the money? Or are they diffuse because the benefits are really too small to really benefit anyone?
It isn’t obvious to me how these sorts of grant programs fit in Wilson’s framework. But if the federal government is going to become involved in fostering more inclusive land use patterns — which it should be because exclusionary zoning has vast national implications for geographic and thus social mobility — we should understand it more.
The YIMBY Act will do little in its first year(s). It could be stillborn. Or it could the start of something bigger. The federal government has no land use authority but it has vast financial power.
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…READ more