SPECIAL FOCUS

TURF WARS: HOW TO FIGHT NIMBYISM

War Stories

Developers share their NIMBY battles and the lessons they learned

AFFORDABLE HOUSING FINANCE • July 2008

Affordable housing developers have the battle scars to show for each project that they have built and every one that was denied. The scars are reminders of NIMBY fights won and lost. Several leading developers share their war stories and the lessons learned.

WALTER MOREAU
Executive Director, Foundation Communities Austin, Texas
Our first new construction project was met with fierce and early neighborhood opposition. Opponents circulated a flyer with pictures of buzzards that read “the lowincome, tax credit housing buzzards are circling ... we’ve plucked their feathers before; let’s do it again.”

The flyer was so outrageous it helped draw media attention, which led to the newspaper editorial board coming out in strong support of us. We waged a “Yes, In My Backyard” campaign. Our best tactic was to proactively get out and talk to the neighbors, as well as invite them to tour our other properties. We ran on our track record. In the end, most of the rational neighbors were no longer opposed, and some became supporters. We succeeded in winning tax credits and zoning, and built a beautiful new property, Trails at the Park, in Austin.

Lessons learned:
• Show off your other properties.
• Get out and meet folks and try to address legitimate concerns.
• Sometimes the “over the top” opponents end up helping because their antics backfire.

FRAN WAGSTAFF
President, Mid-Peninsula Housing Coalition Foster City, Calif.
In 1993, we secured an option on a site in Fremont, Calif., that was owned by the Sisters of the Holy Family. It was perfect. The sisters wanted to sell us the land, both because they needed the money for their retirement and because their mission was to help families. We agreed that this multifamily- zoned site would be developed as family housing. We had just received a local subsidy commitment from the city, when some neighbors basically started fear-mongering. Targeting a City Council election, they succeeded in electing council members who pledged to kill the development.

The project became the center of the most heated NIMBY battle that I have ever seen. At one neighborhood meeting in the nearby Mission San Jose church, the police showed up in riot gear. That’s how heated it got.

The sisters saw the bigotry that we faced and started organizing supporters. Both active and retired nuns from the motherhouse adjoining the site and other faith-based and secular housing advocates started coming to public hearings hours early and filling the seats with supporters. The opponents were outside, forced to watch the proceedings on television.

Opponents argued that the project was going to harm the historic fabric of the neighborhood, even though there were new buildings, including a 7-Eleven, across the street. Because the site was appropriately zoned, and we had the local financing commitment, a newly elected council took the position that the design was not appropriate for the neighborhood, thereby forcing three complete redesigns. After the final redesign, the project (now fully funded) was turned down on a split vote.

At this point, Mid-Peninsula and the Sisters of the Holy Family became co-plaintiffs in a lawsuit filed in federal court, charging the city with civil rights discrimination. Ten public and private law firms, working pro bono, joined forces to prepare the case. The basis for the lawsuit was a history of discriminatory public statements by council members, indicating that they could support the project if it housed seniors exclusively, and not if it housed families.

Finally, an out-ofcourt settlement allowed the project to go forward, less 15 units. It included some seniors housing, but family housing was the core. The whole process took seven years.

Many opponents stated that they would not have opposed the development if they had known it would look like it does. Three housing advocacy organizations, born of this battle, are still active in the city. By all accounts, the tone of the dialogue about affordable housing has totally changed for the better. Mid-Pen has since completed another development in Fremont.

Lesson learned:
• Sometimes a fight is necessary to bring about change, but make sure you have courageous, socially motivated allies. We couldn’t have done this without the sisters.

SISTER MARY SCULLION
Co-founder and executive director, Project H.O.M.E. Philadelphia
The most dramatic and powerful story in our history is the struggle to “Free 1515.” Our first planned permanent housing facility was 1515 Fairmount Ave. By 1990, we had comprehensive plans for its development into 48 permanent-housing units so that men and women could break the cycle of homelessness. With a financing package, architectural plans, and even federal housing subsidies, we were ready to move forward— only to be blocked in court by community groups opposed to our presence in “their” neighborhood. While we had faced NIMBY conflicts before, this one was particularly vehement and politically complicated. The next five years included struggles in countless courtrooms, in the streets, and in the arena of public opinion. It was exhausting.

Using legal advisers, who served pro bono, H.O.M.E. eventually compelled the U.S. Department of Justice to file a case in the federal Court of Appeals on our behalf. This case took advantage of the federal Fair Housing Act to argue that a neighborhood could not discriminate against the homeless and mentally ill. In winning the case, H.O.M.E. and the Justice Department established a legal precedent with huge national implications.

A grassroots campaign was also important to the cause. Citizens dogged the mayor throughout the debate, showing up in Tshirts reading “Free 1515.” One board member said at the time, “If you live in Philadelphia, all you needed to say is ‘1515.’ It’s like saying in baseball, ‘Lefty,’ meaning Steve Carlton, or in basketball, ‘Michael,’ meaning Michael Jordan. It just evokes something. You don’t have to say any more than 1515, and there’s a real sense among people who have been in this city that justice prevailed.”

In 1994-95, at the end of a four-year legal battle, work began on the project, which opened in 1996. It is home to 48 formerly homeless individuals with a primary diagnosis of chronic mental illness, as well as a café and catering business and a thrift store, which provides employment experience for residents and community members.

Lessons learned:
• Folks who are starting down this road will want to be sure that they have excellent legal advice, and also an openness to listen to and—to the best of their ability—to address the legitimate concerns of neighbors. Adjustments in “the plan” that help improve neighbors’ views of the project while not compromising any essential aspect of the project are a good way to make the whole thing work. Which leads us to our second lesson learned …
• That these projects, in their essence, are really about ensuring a quality of life for everyone. It is not “us versus them.” It is about how we can all live together and what is necessary to make that happen. This is what builds successful projects and successful communities.

KARL PNAZEK
President and CEO, CAP Services, Inc. Stevens Point, Wis.
One type of development that we build is “adult family housing.” This type of housing consists of a single-family home with four bedrooms, each with a private bath, [and] with community dining and recreation areas. They are designed for developmentally disabled adults who can live independently with some monitoring. In Wisconsin, there is case law stipulating that these projects do not need multifamily zoning as long as there are four or fewer occupants and the household members share some of the same amenities, such as kitchens and recreational areas.

Five years ago, working with the county human services department, we obtained funds to build two such projects in different neighborhoods in Montello, a small town of 1,000 in a rural county in central Wisconsin. After purchasing two lots on opposite ends of the city (both of which were zoned singlefamily), we applied for a building permit. The request was denied by the mayor on the basis that this was multifamily housing and to build it we needed a zoning change.

We then asked our legal counsel to provide the mayor and the city attorney a copy of the court case and the case law. The mayor’s response was that he still considered the project multifamily. Soon after, rumors started spreading that the housing was for tenants from other counties and included people convicted of sex crimes.

While our staff ’s initial reaction was to recommend we go to court to ask for an injunction, one of our board members suggested talking with Marquette County Human Services, our partner in the project. Human Services forwarded the issue to the county corporate counsel. A joint meeting was held a week later. The county counsel advised the city that given the case law it would be in their best interest to give us the building permit. The city again refused. The county corporate counsel then reviewed the penalties and damages that could be assessed if the city refused to grant the permit. When the total began to approach $100,000, the city agreed to grant the permit.

The two projects were built within 90 days. Since its completion, there have been no neighborhood complaints, only compliments.

Lessons learned:
• Make sure you have reviewed any case law or public plans that support your proposed use of the property. Don’t be afraid to bring in your allies to help.
• If you are an out-of-down developer, private or nonprofit, your best assets are local people who can explain things from a local perspective. For example, the county helped the city understand the tenants targeted for these units lived in the community and were people with developmental disabilities.
• When the city expressed concerns about the quality of our housing, I challenged them to get in my car and drive one county away where we had units. We would drive down a street and if they could pick out our adult family house we wouldn’t build the project. Our board’s policy is that projects must fit into the neighborhood and should be among the nicest houses on the block. In 20 years, only two people have taken me up on my offer, and neither could identify our property.

PERCIVAL VAZ
President and CEO, AMCAL Multi-Housing, Inc. Agoura Hills, Calif.
We bought land to build 600 units in Southern California. There were three large parcels, and we were in conformance with the zoning and the general plan. All we needed was a site plan review to be decided by the planning director.

We had a hearing on a weekday afternoon for the planning director to approve our plan. Three people from the neighborhood showed up and objected to the director’s approval. She told them that she had to approve it because we met all the requirements. The neighbors, however, had the option to appeal to the planning commission. They appealed, and now about 100 people show up at a hearing, objecting to the project on different grounds. It was classic NIMBY, where opponents threw every possible reason at the proverbial wall and hoped something stuck. There was a second hearing, and almost 200 people showed up. After completing several studies and a third hearing, the commission gave us their approval.

The project was appealed to the City Council. It was an election year, and we went through similar drills. The council, being unable to come up with any legitimate reason to stop the project, decided to impose a one-year moratorium on all new multifamily housing until it did a “study on the impacts of multifamily developments.” At the last hearing, the crowd swelled to almost 600. We had to be escorted by sheriff ’s deputies into and out of city hall.

We filed a suit against the city, claiming $23 million in potential damages, as we were in jeopardy of losing allocated tax credits. One council member, who was an attorney, realized that the city would probably lose. The city, after two more hearings, agreed to exempt the first phase of the project and allowed that project to go forward but put a moratorium on the other two phases. We never could go forward on those projects. We sold the two remaining lots to single-family homebuilders.

Lesson learned:
• Do not take anything for granted. According to rules, we needed a site plan review. We shouldn’t have had to go through all this, but we did. Talk with the community even when you have zoning rights. Try your best to address all their concerns. If you still sense unreasonable opposition, you may need to mount whatever forces that you can to support your project like a political campaign, as it will give the council “cover” to support you if they think it has merit.