Why Opponents Should Say Yes to City of Yes

City of Yes, the Adams administration proposal to adjust zoning to allow a “little more housing in every neighborhood,” would be one useful and important step among the many needed to  address both New York City’s increasingly desperate housing-affordability crisis and its perennial housing-segregation crisis. It is not a cure-all — indeed, as Brooklyn Borough President Antonio Reynoso has said, City of Yes is, in fact, “remarkably modest” — but it does deserve to move forward. 

For City of Yes opponents, of course, the end of civilization is upon us. The chair of Queens Community Board 11, for example, puts it starkly: “City of Yes is the single greatest threat I have ever seen to our quality and way of life.” With hyperbolic rhetoric like that, facts tend to go out the window. The elimination by City of Yes of costly parking mandates, for example, winds up misunderstood as a prohibition on a developer choosing to include in-building parking.

Though I am supportive of City of Yes, I leave it to others to speak to its specific merits. I have a different message, and it is for opponents: You don’t know how good City of Yes is letting you have it. If City of Yes is voted down — or significantly watered down — New York City would become more vulnerable to lawsuits charging it with perpetuating segregation under both the federal Fair Housing Act and the New York City Human Rights Law. The remedy ordered could well leave you wishing you had said “yes” to City of Yes in the first place.

Perpetuation of segregation in New York City

One can’t go 10 minutes without hearing how “diverse” New York City is. Mostly that is a failure to distinguish between New York City as a whole, which is racially and ethnically diverse, and smaller levels of geography, where it often remains quite balkanized. For example, while the 2020 Census showed that the citywide population of non-Hispanic Blacks was 20.2%, 16 of 51 City Council districts have non-Hispanic Black population of less than 5%, including 11 districts each with less than 3%. At the community district level, I have calculated that 18 of 59 community districts have non-Hispanic Black populations of less than 5%.

Putting together these demographic data with affordable-housing production data compiled by Gothamist, and adding in a rough estimate of the volume of public housing per City Council district, the Anti-Discrimination Center (ADC) I lead is able to show that City Council districts with low affordable housing development and low amounts of public housing are disproportionately those with very low non-Hispanic Black populations.

In a perpetuation-of-segregation lawsuit under city and federal law, the plaintiff’s first job is to show that a defendant’s actions or failures to act predictably result in the maintenance of more residential segregation than would be the case if the defendant had taken a different path. Here, it would be child’s play to show that a rejection or watering-down of City of Yes — which would hinder the amount of new housing to be constructed — perpetuates segregation more than approving the plan. Why? 

Because the existing demographics of individual New York City neighborhoods are so much more segregated than the demographics of the citywide pool of applicants for the housing unleashed by City of Yes would be. I looked at this closely in the context of representing the plaintiffs in the challenge to the City’s affordable-housing lottery policies, which had given priority for 50% of units in a new project for residents of the community district in which the project was being built. By analyzing millions of lottery applications, we were able to see which applicants apparently met the qualifications for the housing applied for. Apparently-qualified residents living outside a community district who sought to move into new affordable housing developments would have done far more to desegregate neighborhoods — both in absolute numbers and in terms of percentage of desegregating moves — than those who already lived in the community districts in question.

In fact, our expert looked at six racial pairings (Black vs. white, Black vs. Hispanic, Black vs. Asian, Hispanic vs. Asian, Hispanic vs. white, and Asian vs. white), and examined three scenarios (actual results, apparently eligible applicants and defendant’s own simulation) in two different ways. Of the total of 36 comparisons, there was materially more desegregation without the “community preference” policy, including all 18 comparisons involving Black New Yorkers, than with it.

Facing this evidence, and with a trial nearing that included a perpetuation-of-segregation claim, the City entered into a negotiated resolution that ultimately reduces the percentage of units with preference for insiders from 50% down to 15%, with developments that are only getting state tax abatements not allowed local preference at all.

An unusual evidentiary playing field

Even prior to City of Yes being voted up or down, the likelihood of the city being vulnerable to a perpetuation-of-segregation legal challenge for its broader zoning code was high. We already have high-ranking officials in city government admitting the discriminatory purpose of the pre-City of Yes zoning code under which we are currently constrained. In September 2023, for example, Maria Torres-Springer, now first deputy mayor, acknowledged that some zoning rules were “purpose built to exclude working people and people of color,” with the mayor emphasizing that: “We can never lose sight of the fact that many [of] those who pushed for the 1961 Zoning Code aimed to promote... segregation.” 

We also have the administration’s executive director for housing, Leila Bozorg, explaining that approving City of Yes would usher in “a more fair and equitable housing landscape.”

And there is other evidence of the City’s past wrongdoing, including the way it concentrated both subsidized housing and public housing in Black and Hispanic neighborhoods, and the way (most notably in the Bloomberg administration) it downzoned (permitted less density) disproportionately in white neighborhoods, and upzoned (permitted more density) disproportionately in Black and Hispanic neighborhoods.

So how does City of Yes fit in? If it were approved, the City could at least point to that action and say that it is doing something to change its historic pattern of keeping white neighborhoods predominantly white, Black neighborhoods predominantly Black, and so on. But if City of Yes is voted down, that refusal to take even a set of baby steps to address residential segregation would be fresh evidence of present-day unwillingness to make change. That, I think, would be viewed as devastating additional proof of guilt by a court and a jury. 

I should underline at this point that plaintiffs in perpetuation-of-segregation cases are not required to show that the defendant has discriminatory intent. Two things that do almost always come up, however, in the defendant’s attempt to get off the hook are: 1) the defendant claims that its actions or failures to act (like leaving zoning barriers in place) advance a significant interest; and 2) the defendant claims that the plaintiff’s desired result (in this case, the zoning changes called for by City of Yes) would not be “feasible.” Either finding could stand in the way of liability being found. But here, the City (which would be the defendant) has already rejected the justifications that opponents put forward — and has already produced mountains of evidence that City of Yes is feasible.

Opponents risk relief being ordered that is broader than City of Yes

And if the courts step in to remedy discriminatory zoning, chances are the fix will be much broader than the fixes included in City of Yes. 

That’s because, while City of Yes is focused on no longer exacerbating the disparities between neighborhoods that allow housing and those that don’t, it does not try to deal with the legacy of the disparities that already exist. Building “a little housing everywhere” does not help resistant and exclusionary neighborhoods “catch up” to where they should be.

The only way to catch up is to place a special focus on building housing, and especially mixed-income housing, precisely in those racially segregated areas where affordable housing has successfully been resisted for so long. In other words, any serious remedy would involve changing the reality and slogan of City of Yes to something akin to “some housing everywhere… . and a lot more affordable housing where it has been absent or extremely limited.”

Wouldn’t a lawsuit take a long time?

It is true that, in general, fair housing lawsuits — like other contested legal matters — tend to drag on. But a governmental entity, facing clear liability on a matter and recognizing that a judge might well grant “summary judgment” against it, could choose to agree promptly to a resolution, with the complaint in the matter and a consent decree resolving it filed simultaneously. 

The interesting thing here is that it is not only getting a sober legal evaluation from the Law Department of the City’s eventual legal doom that could spur an expedited resolution. In the face of a rejection of City of Yes, resolving a perpetuation-of-segregation lawsuit quickly would coincide with getting done much of what the administration wanted to accomplish anyway. And Adrienne Adams, the first Council speaker to highlight and pass a “fair housing framework,” would probably not be dissatisfied with such a result, either.

City Council rejection or watering down of City of Yes need not be (and, I predict, would not be) the last word. I would urge the administration and the Speaker to, in the words of Borough President Reynoso’s advice to City Planning: “Do not back down; do not scale back; do not shy away. If you’re going to do anything, do more.”