Chapter 5.3
Social Justice

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Racial Impact Analysis in Local Land Use Applications

INTRODUCTION

Land use decisions and policies can have a significant impact on the people living in a community. Any development decisions or processes, or lack thereof, can affect people through issues such as displacement and environmental hazards.[1] Land use changes can also impact “people’s access to housing, jobs, schools, open space, public services, and transportation.”[2]

People of color experience disproportionate displacement through urban renewal, highway construction, and other local redevelopment projects.[3] Not only are there environmental hazards that exist due to construction during a land use project, but communities of color are also plagued by the siting of hazardous industrial and waste sites.[4] Unlike low-income minority populations, the residents of predominantly wealthy, white neighborhoods have more resources to divert “locally unwanted land uses (LULUs),” like industrial sites, so "these LULUs usually end up in poor, powerless black communities rather than in affluent suburbs."[5] An Environmental Protection Agency workgroup found that “minorities are more likely to live near a commercial waste treatment facility or an uncontrolled hazardous waste site than the general population."[6]

To help address some of the inequities involved with the siting of land uses, the proposal recommends Racial Impact Analyses (called “Racial Equity Reports” in New York City). A Racial Impact Analysis is a tool to aid in quantifying and qualifying the potential impact stemming from a land use decision on historically disadvantaged communities, including communities of color.[7] The purpose of requiring Racial Impact Analyses is to evaluate how a land use decision may impact those living in and around the area proposed to be developed.[8] In particular, “[r]acial impact analyses evaluate how land use actions will affect equity and social justice in a community.”[9] These analyses, in the form of a Racial Impact Analysis attached to a land use application, can include assessments of the impact of development on housing affordability, the likelihood of community displacement, risks of gentrification, impact on the overall quality of the community, environmental hazards from development, and many other community-based concerns.[10] Racial Impact Analyses may be required to be submitted with a land use application, with a further requirement that the information contained therein is considered when the application is reviewed.

Requiring Racial Impact Analyses for land use applications is a relatively new development and has not yet been widely adopted. However, the Racial Impact Analysis itself is not a new concept. Some localities have adopted ordinances requiring Racial Impact Analyses when creating new legislation and for changes in the criminal justice system.[11] When utilized for proposed legislation, Racial Impact Analyses aid in analyzing potential racial disparities that may arise in the implementation of the new law.[12]

As of December 2022, only New York City, New York had adopted an ordinance requiring racial equity reports for local land use applications (New York’s ordinance is described in more detail below). However, other local governments have taken important or similar steps to New York City’s. Some localities have taken steps which include analyzing racial disparities when enacting zoning laws or comprehensive plans, or requiring a general community impact statement in land use applications.

New York City also created an Equitable Development Tool to aid in determining racial disparities in potential land use decisions.[13] In New York City, part of the racial equity report required for certain land use applications includes utilizing the Equitable Development Tool to determine the risk of developing in certain geographic locations.[14] This is a useful tool that should be implemented alongside requiring Racial Impact Analyses in localities due to the information that the tool is able to provide to supplement the report.[15]

Localities may also choose to follow Montgomery County, Maryland’s ordinance which requires a racial impact statement alongside any proposed bill and zoning amendment (Montgomery County, Maryland’s statute is also described in more detail below).[16] Lastly, localities may consider adopting Hoffman Estates, Illinois’s ordinance, which requires submission of a Community Impact Statement with applications for new development. The ordinance in Hoffman Estates is similar to that in New York City, but much broader in its analysis in that it considers the community in general.[17] Although these three examples are similar, they have their differences. New York City requires an analysis on the impact on different racial demographics of developing the land in certain geographic areas. Montgomery County requires a Racial Impact Analysis for proposals of bills and zoning amendments. Hoffman Estates requires a Community Impact Statement alongside applications for land use, which is quite broad.

EFFECTS

Requiring a Racial Impact Analysis to support local land use decisions is a relatively new development; local governments have only in recent years started to enact these laws.

However, a racial impact statement brings awareness to local leaders of the vast array of social impacts that come with development and land use decisions in a community.[18] Requiring land use applicants to investigate and acknowledge a proposal’s impacts on low-income and minority communities allows local leaders to consider those impacts in approving or denying the application (or parts of it).[19] As stated above, locally unwanted land uses generally end up in low-income black communities rather than high-income suburbs.[20] Well-reasoned and researched racial impact analyses may prevent intentional or unintentional discrimination against low-income and minority communities via land use changes. The goal of requiring racial impact analyses is to squash the perpetuation of racial discrimination in land use and to find alternate ways to minimize any detrimental impact to a community from land use.[21]

Development and redevelopment of highway systems have perpetuated racial discrimination in the past and present.[22] Impacts from the interstate highway system “include helping to cement hyper-racial segregation in housing and schools; concentrating poverty and excluding low-income, inner-city residents from communities of opportunity; and entrenching the physical, psychological and economic division of communities.”[23] Adoption of a regulation that requires Racial Impact Analyses for projects such as development and redevelopment of highway systems will not only aid in the promotion of racial equity, but also “help states and localities unearth structural conditions that perpetuate racial inequality and understand how highway construction will impact transportation equity, racial segregation and concentrated poverty, economic opportunity and investment, access to quality education and affordable housing, and health outcomes.”[24] These are specific to highway development but can apply to other land use developments as well.

Additionally, Racial Impact Analyses will bring awareness to government actors about the realities of racial inequalities that persist in communities.[25] It may help to “open up a community-wide conversation among various stakeholders about the reality of racial inequality in those communities and the structural conditions that are required to advance racial equity.”[26] Not only could Racial Impact Analyses open up conversations among stakeholders, but they also could help open up conversations amongst community members.[27] In order to catalyze dialogue and “improve community relations, we must include community input in the creation of Racial Impact” Analyses.[28]

Another potential impact of Racial Impact Analyses is that they may aid in proving intent to discriminate if laws are passed or land use decisions are approved in the face of notice to officials of discriminatory impact.[29] When government decision makers are provided Racial Impact Analyses detailing the effect of the proposal on minority communities, they face the decision of whether to approve the application, thus undermining any impact to minority populations, or deny the application with the knowledge that approving it may result in discriminatory impact as noted in the application.[30] Approval of an application in the face of discriminatory impact forces government officials to accept the impact of development as their own, thus admitting to knowledge of discriminatory effects.[31] This possible outcome may in turn convince officials to instead “pursue alternative policies that reduce adverse effects on racial and ethnic populations.”[32]

The drawback of this proposal is that if there are “no teeth” behind the requirement of a Racial Impact Analysis (i.e., no way to ensure that the Racial Impact Analysis is effective at making equitable land use decisions), then its requirement may not make any meaningful impact. While the mere presence of a law requiring a Racial Impact Analysis should be enough to compel compliance, a better practice would be to develop procedures to enforce the consideration of the impact analysis when making land use decisions. One way of doing this is to prohibit the approval of any applications that have a disproportionally negative impact on minority communities when compared to other communities in the area.[33] Furthermore, Racial Impact Analyses should be given to decision-makers as early on in the process as possible, and ideally alongside the application itself.[34] The Racial Impact Analyses should also be extremely detailed and illustrative of the issues that development presents.[35] Regardless, it is a step in the right direction to bring awareness to this issue that is often overlooked.

EXAMPLES

As mentioned above, New York City, NY is the only locality thus far to pass a law which specifically requires a Racial Equity Report to accompany certain land use applications. New York City also created an Equitable Development Tool to aid in this analysis. Montgomery County, Maryland has a law which requires the preparation of a Racial Impact Analysis to accompany proposed bills and zoning amendments. Hoffman Estates, Illinois has a law requiring a Community Impact Statement for land use applications, which does not specifically require a racial disparity analysis, but is illustrative as a law which considers community impact in land use decisions which may aid in other localities adopting Racial Impact Analysis laws.

New York City, NY

On July 18, 2021, New York City enacted an ordinance that created an online tool wherein information on equitable development at the city and borough level, as well as, if possible, neighborhood and community level is enclosed.[36] The law summary states in part that “[r]acial equity reports on housing and opportunity would be required for certain land use applications [(which are noted in the following paragraph)], using data from the equitable development data tool.”[37] The tool should be accessible through the city’s website, and be publicly available.[38] The equitable development data tool shall include “(i) demographic conditions, (ii) household economic security, (iii) neighborhood quality of life and access to opportunity, (iv) housing security, affordability and quality, (v) housing production and (vi) a displacement risk index.”[39] The data should furthermore be broken down by race.[40]

Pursuant to this law, land use applications submitted on or after June 1, 2022, must include a racial equity report if the application seeks approval for any of the following:

• “Text amendment to the zoning resolution affecting 5 or more community districts;
• Historic district designation affecting 4 or more city blocks;
• Seeking a change to the use regulations or permitted floor area for any use in a manufacturing district where a building in the project contains at least 100,000 square feet of floor area;
• Applications submitted pursuant to subdivision a of section 197-c of the charter that seek approval for: Acquisition or disposition of land to facilitate a non-residential project containing at least 50,000 square feet of floor area;
• Acquisition or disposition of land to facilitate a residential project, other than a residential project consisting of a building to be preserved, provided that such equity report shall only be required related to a building in such project containing at least 50,000 square feet of floor area;
• An increase in permitted residential floor area of at least 50,000 square feet;
• An increase in permitted non-residential floor area of at least 200,000 square feet;
• A decrease in permitted floor area or number of housing units on at least four contiguous city blocks.”[41]

The Racial Equity Report on Housing and Opportunity requires that the applicant choose the application type (from the list above), then write an executive summary which should include a summary of the remainder of the Racial Equity Report, emphasizing major elements of the project and important conditions of the neighborhood and demographics of the area to be developed.[42] The next section of the report requires a description of the residential affordability as a result of the proposed project.[43] Then it asks for details related to the non-residential uses (built for a specific tenant or business) of the proposed development area, if applicable.[44] After that it asks the applicant to estimate the number of jobs created as a result of the development.[45] The next section requires the applicant to use the Equitable Development Tool to create a community profile summary of the proposed developed area.[46] Then it asks the applicant to describe how the proposed project will aid in reaching New York City’s goals to “affirmatively further fair housing and promote equitable access to opportunity.”[47] The final section once again asks the applicant to use the Equitable Development Tool to list the following for the community in which development is being proposed: “demographic; household economic security; housing affordability, quality, and security; housing production; and quality of life and access to opportunity.”[48]

The impacted community board and borough president shall be given copies of the Racial Equity Report.[49] The impacted council member, the public advocate, and the council speaker will then immediately post the report on its website.[50]

It is notable that the Racial Equity Report is procedural; regardless of the findings of the Racial Equity Report, the application may still be approved.[51] Additionally, not all land development projects are required to submit Racial Equity Reports, which may leave a gap for inequitable development to continue.[52]

This is one of the first seemingly meaningful land use Racial Impact Analysis laws in the country. While it is yet to be seen how much of an impact the law will have on racial discrimination in land use in New York City, it is a positive first step to equity and inclusion.

To view the provision, see New York City, NY, Administrative Code § 25-117 and § 25-118 Requiring a citywide equitable development data tool and racial equity reports on housing and opportunity https://perma.cc/WQD3-4DMK.

Montgomery County, MD

Montgomery County, Maryland enacted an Act effective September 1, 2021, that includes requiring a Racial Impact Analysis for future land use decisions.[53] While New York City requires a Racial Equity Report for land use development applications, Montgomery County’s Act, in relevant part, requires the submission of a statement for any proposed bill and zoning amendment that details the “racial equity and social justice impact” of the proposal.[54] The Director of the Office of Legislative Oversight or the Director’s designee (the Director) must submit to the Council for their consideration, the “racial equity and social justice impact," if any, of any proposed bill and zoning amendment.[55] Before the Racial Impact Analysis is submitted to the Council for a zoning text amendment, the Planning Board staff must be consulted.[56]

The statement must include the following information: “(1) the sources of information, assumptions, and methodologies used; (2) an estimate of both positive and negative changes in racial equity and social justice in the County as a result of the implementation of the bill; (3) recommended amendments that may promote racial equity and social justice; and (4) if a bill is likely to have no racial equity or social justice impact, why that is the case.”[57]

The racial equity and social justice impact statement must be submitted to the Council “no more than 21 days after a bill sponsored by a Councilmember is introduced” and “no later than 7 days before the public hearing on each bill introduced by the Council President at the request of the County Executive.”[58]

According to Montgomery County Zoning Ordinance, once a text amendment is introduced, it must be made available to the public, and the amendment must be kept on file to give to the public upon request.[59] Furthermore, after the public hearing on the amendment, “the Advisers’ recommendations may be summarized in Council staff’s memorandum to the appropriate Council committee before the work session on the text amendment.”[60] The memorandum must include their analysis of the amendment, as well as their recommendation as to whether to adopt the amendment, including any revisions.[61] Lastly, it is noted that the “recommendations of the Planning Board and Planning Staff must be included in material provided to the appropriate Committee and Council.”[62]

To see the provision, see Montgomery County, MD, Montgomery County Code § 2-81C Racial Equity and Social Justice Impact Statements, https://perma.cc/HC2K-SYU5.

Hoffman Estates, IL

Hoffman Estates, Illinois adopted an ordinance on May 9, 2022, which requires that a Community Impact Statement (CIS) be submitted with the application for development and land use.[63] Any land use applications must be accompanied by a CIS, which is divided into two phases: the first being an initial CIS detailing the basic impacts of a land use project, and the second being a Supplementary Community Impact Statement which may be required depending on what was included in the preliminary CIS and the nature of the project.[64] The CIS must include a property description, a project description, a construction/phasing schedule, an environmental impact analysis, and a revenue/expenditure impact analysis.[65]

The Supplementary CIS, which may or may not be required after the initial CIS and application are submitted, may include information on the impact of the project on the current housing market, the impact on available housing for residents, housing availability if residents choose to relocate, and housing opportunities for both elderly and low-income residents.[66] The Supplementary CIS may also require an analysis on the impact of the project on employment rates, both from employment as a result of construction, and the impact of the project on permanent employment in the area.[67] Furthermore, the Supplementary CIS may require a project impact analysis on air quality, the recreation system, the school system, the mass transit/transportation system, and “any other information deemed necessary to evaluate the potential impacts of a project may be requested by the Assistant Village Manager-Development Services.”[68]

To see the provision, see Hoffman Estates, IL, Code of Ordinances § 10.6-2 Community impact statement, https://perma.cc/3ZJG-AKNH.

ADDITIONAL EXAMPLES

Bonita Springs, FL Code of Ordinances § 4-348 (2022) (requiring environmental, economic, and social impact analyses for applications for “residential planned developments within rural or outer islands requesting density above the standard density range for the land use classification in which located.”).

Riverview, MI Zoning § 24.15 (2018) (requiring an impact assessment for the developmental, ecological, social, economic, and physical impact for proposed development applications).

Seattle, WA Resolution 31577 (2009) (stating Seattle’s intent to make central its values of racial equity in their Comprehensive Plan. Seattle created an equity analysis which identifies how the city’s growth might benefit or burden marginalized populations).

New York State Department of Environmental Conservation Commissioner Policy 29, Environmental Justice and Permitting (2003) (a policy that creates guidance which promotes the inclusion of environmental justice in environmental permit review processes, enforcement programs, and public participation programs).

New York State Cumulative Impacts Law S8830 (2023) (regulates siting of environmental facilities by requiring environmental impact statements that consider the disproportionate impact on disadvantaged communities).