Elisabeth Haub Law School of Law
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 25 of the Land Use, Human Health, and Equity Project
Editor: Brooke Mercaldi
Contributing Author: William West [*]
Racial Impact Analyses
In 2004, the ABA Justice Kennedy Commission recommended to the House of Delegates that state, territorial, and federal governments “conduct racial and ethnic disparity impact analyses, evaluate the potential disparate effects on racial and ethnic groups of existing statutes and proposed legislation, and propose legislative alternatives intended to eliminate predicted racial and ethnic disparity at each stage of the criminal justice process.” In 2008, Iowa passed a law requiring racial impact statements for laws concerning its criminal justice system after a report found the state ranked highest in racial disparity in its prison population. Recently, a similar reaction by municipal governments has occurred across the country in response to reports of widespread inequity in air and water quality, industrial contamination, food availability, heat island impacts, and previous land use practices. This blog will describe how cities have transitioned racial impact analyses from criminal justice contexts to land use.
Municipal governments use racial impact analyses to evaluate the effects of certain actions on equity and social justice. The type of actions that require racial impact analyses differ depending on the jurisdiction. New York City’s recent racial impact analysis bill incorporates racial equity reports into the Universal Land Use Review Procedure (ULURP). The law would require racial equity reports for “land use changes that propose residential projects 50,000 sqf or larger, non-residential projects 200,000 sqf or larger, citywide zoning text amendments affecting five or more community districts, or certain downzonings of historic districts.”
Similarly, Montgomery County, Maryland requires the Office of Legislative Oversight to submit racial equity and social justice impact statements to the County Council for each bill and zoning text amendment before approval. Montgomery County’s impact statements must include “the sources of information, assumptions, and methodologies used” and “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.” Examples can be found here.
Many of Montgomery County’s impact statements include a caveat about the difficulty of predicting the impact of legislation on racial equity due to data limitations and uncertainty. Indeed, data is one of the primary concerns about racial impact analyses in land use. Communities often start their equity initiatives by creating a baseline of existing conditions. King County, Washington’s Determinants of Equity Report created 13 data categories with 67 preliminary indicators to establish this baseline and answer a critical question: “how do we know if we are progressing towards a fair and just community?”
New York City’s bill addresses issues about data by developing an “Equitable Development Data Tool.” The data tool will collect data on citywide, boroughwide, community district, and neighborhood levels. Data categories include demographic conditions, economic security, neighborhood quality of life and access to opportunity, housing security/affordability/quality, housing production, and a displacement index. The displacement index includes indicators such as population vulnerability, housing conditions, and neighborhood change. Data will be disaggregated by race and ethnicity, and a focus on historical trends will be included. This data tool will be available for the public online in 2022 and will be produced by the Department of City Planning and Department of Housing Preservation and Development.
New York City’s law differs from Montgomery County’s in that New York requires private applicants instead of a public entity to prepare racial equity reports. These equity reports will use the Equitable Development Data Tool, approximating a half-mile radius study area, and will include a summary of the data on existing conditions, trends of the prior two decades, and comparisons with the rest of the borough and city. Racial equity reports for residential projects will include information about affordability and the necessary incomes required to avoid housing cost burden. Reports for non-residential projects must analyze job creation and the race and ethnicity of the relevant workforce. While the racial equity reports are required for the ULURP process, no private right of action will be created to enforce the law.
By requiring private entities to prepare racial impact analyses at the beginning of public review, New York’s law operates much like an environmental impact statement (EIS). Indeed, New York originally included the equity reports as part of its local regulations under the State Environmental Quality Review Act (SEQRA) before amending the bill to be part of ULURP. Seattle has also incorporated elements of EIS into its approach by evaluating how the city’s primary growth strategy could affect the city’s marginalized populations. Much like an EIS, the Growth and Equity report analyzed alternatives to Seattle’s primary growth strategy. By creating a Displacement Risk Index and Access to Opportunity Index, the city established baseline conditions so that it could identify public mitigation strategies and opportunities to leverage private development.
Racial impact analyses evaluate how land use actions will affect equity and social justice in a community. The community tools and examples discussed here are available in full on the Land Use Law Center’s Gaining Ground Information Database – a free research database featuring best practice models used by governments to control the use of land in the public interest. Please direct your search toward the Healthy Communities topic.
[*] William West is a second-year student at the Elisabeth Haub School of Law and Student Associate at the Land Use Law Center.
Brooke Mercaldi is a second-year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
The previous blogs in the series are listed here:
- Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project
- Planning for Public Health: A New Beginning for Land Use Law
- The Role of Density in Combatting Climate Change and COVID-19
- Novel Coronavirus Claims Implicate Age-Old Property Rights Questions
- State & Local COVID-related Emergency Powers: Individual Rights
- COVID-Related Land Use Regulations and Judicial Deference
- Mediation of Eviction Disputes May Hold the Key to the Survival of Small Businesses
- Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward
- Urban Heat Islands and Equity
- Urban Heat Island and Equity: What Can Local Governments Do?
- The Recovery Lease: Preventing Evictions of Commercial Tenants During the Pandemic
- The Role of Hazard Mitigation Planning in Promoting Public Health and Resilience
- Hazard Mitigation Planning: A Case Study
- Complete Streets: Protecting Public Health
- Zoning and Lease Mediation as a Way to Retain Critical Small Businesses
- Segregation by Law and the Racial Inequity Pandemic
- Combating Food Swamps to Improve Equity and Public Health
- The Pandemic Plan for Healthy Buildings
- Remediating Distressed Properties to Improve Public Health
- Housing, a Crucial Determinant of Health
- ADU Introduction
- NIMBY Restrictions to Poison the Prospects of Accessory Dwelling Units to Address Housing Insecurity
- Zoning to Fill the Missing Middle Housing Gap
- Old Tools to Fight Housing Insecurity: Adaptive Reuse and Infill Development
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