Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
A new bill to change the application for housing tax credits would make it virtually impossible to build new low-income housing anywhere in the Lone Star State.
Texas Representative Valoree Swanson is enjoying a banner first month in office. Since the start of the state’s legislative session in January—her first—she has proposed legislation to make it a crime for a doctor who has performed an abortion to apply for a medical license in the state. She has suggested that every Texas student pass the U.S. Citizenship and Immigration Services naturalization test in order to graduate from high school. She wants to make it easier for public-school teachers to throw water on scientific theories such as evolution. And she has put forward a bill to outlaw property taxes.
H.B. 1792, which Swanson introduced on Monday, is a different stripe of ideological. This bill, along with H.B. 1653, would change the way affordable housing tax credits work in Texas. By the standards of affordable housing, H.B. 1792 represents a dramatic departure from the norm. The bill would all but block the construction of low-income housing in the Lone Star State—which is exactly what Swanson promised to do when she ran for office.
“The bill is perhaps the most expansive Not In My Back Yard (NIMBY) legislation ever filed,” writes John Henneberger, co-director of the Texas Low Income Housing Information Service.
H.B. 1792 would rework the point system that decides where and how Low Income Housing Tax Credits are distributed in Texas. LIHTCs are the primary federal mechanism for building new affordable housing units, in Texas and beyond. H.B. 1792 would first and foremost require developers who apply for these tax credits to “conspicuously identify” proposed developments as “low-income government-subsidized housing"—which sounds bad—to a number of community stakeholders. A pledge to ”stop low-income government housing” was the bedrock of her campaign. (Swanson’s office did not respond to a request for comment.)
Beyond rebranding affordable housing, the bill would also greatly expand the reach of stakeholders—homeowners, neighborhood activists, elected leaders—to prevent it from being built.
As it stands, Texas state law requires would-be affordable housing developers to file LIHTC applications with relevant community leaders: the neighborhood association, school district board, mayor or city council member, and state representative of the district where the LIHTC-financed development would be built. Swanson’s law would expand that group to all neighborhood associations within 5 miles of a boundary of the district where the development would be built.
Moreover, the bill would grant all of those new gatekeepers the power to tack on negative points—and only negative points!—to an application. Neighborhoods committed to keeping out low-income families could scupper the construction of new affordable housing across Texas.
To see how this change might affect a hypothetical development, I built a map based in Swanson’s suburban Houston charge, Texas House District 150. That’s the Louisiana-shaped area mostly covered by the yellow circle. The map depicts in yellow an area with a 5-mile radius drawn from Meyer Park, a fairly central place in Spring, Texas. The darker blue patches represent a number of neighborhood associations around Spring—hardly an exhaustive list.
Under H.B. 1792, any neighborhood group on record with the state with boundaries falling within 5 miles of the proposed development could apply negative points to the application. In the map above, all of those housing associations that fall within the circular zone could comment on a hypothetical LIHTC application for a mixed-income apartment building near Meyer Park. The bill does cap the total negative points that these outside organizations can apply. But it wipes out positive points altogether: Neutral or supportive feedback simply wouldn’t count.
Further, H.B. 1792 requires LIHTC applicants to file a detailed brief to every relevant stakeholder within the development’s boundaries—the state representative, county commission, school district superintendent, and so on—as well as every neighborhood association within the 5-mile zone. That brief must:
contain a description of the development and an independent study of the development’s anticipated effects on local schools, area crime rates, infrastructure, governmental expenditures, population density, area property values, and the revenue of local, state, and federal governmental entities.
So this brief expands the potential list of stakeholders even further. For example, the yellow area in the map intersects four different independent school districts (Klein, Cypress-Fairbanks, Spring, and Aldine). Since neighborhood associations within the zone would all get a say, a developer might need to appeal to all of them as to how an affordable-housing development would affect their schools. Ostensibly, any of the five state representatives whose districts are entailed in this zone (beyond Swanson) could chime in about the effects on infrastructure costs and more.
Notably, a separate bill put forward by Swanson, H.B. 1653, would increase the stature of a state representative’s input in weighing an affordable-housing development. Under the status quo, a state rep’s assessment comes in last on the list of eight priority-ranked concerns (including tenant income, size of units, and cost per square foot); H.B. 1653 would nudge a representative’s statement up to fourth.
These bills are the latest front in an ongoing war in Texas over how much control state lawmakers should have in deciding where low-income housing will be built. Housing advocates won a few victories on LIHTC scoring over the course of the last two legislative sessions. But fair-housing victories in the state legislature—and at the Supreme Court—triggered a backlash.
Last year, Swanson successfully primaried her predecessor in District 150, former State Representative Debbie Riddle, on a platform of NIMBYism (and combatting Sharia law). Swanson won despite the fact that Riddle has prided herself on her staunch opposition to low-income housing. Once, in a 2011 state appropriations hearing, Riddle said that affordable-housing developers looking to build in her (predominantly white) suburban Houston district should look instead to (majority-minority) Mesquite or Galveston, describing her own community as “inundated.” The 15-year incumbent described public education and healthcare as springing from “the pit of hell.” For Spring voters, Riddle’s message wasn’t radical enough.
“Since 2001, Texas law has given state legislators unprecedented power over the competitive application process for LIHTC projects in their districts,” reads a 2013 memo from the National Low Income Housing Coalition. “They can influence it through letters of support or opposition, each of which holds considerable weight in the point scoring process for proposed projects. One opposing letter has the potential to defeat an application.”
Texas homeowners aren’t giving up on the legal tools that state lawmakers adopted in 2001 to concentrate low-income housing in minority communities, the Supreme Court or Fair Housing Act be damned. That’s putting Texas communities in conflict with the federal government: In January, the U.S. Department of Housing and Urban Development found that Houston had violated the Civil Rights Act by blocking an affordable-housing complex near the upscale Galleria.
Or rather, Texas has found itself sparring with the feds in the past. It remains to be seen how aggressively HUD under Secretary Ben Carson or the U.S. Department of Justice under Attorney General Jeff Sessions will prosecute fair-housing violations. Whether or not H.B. 1792 goes anywhere, state legislators still faces enormous pressure from homeowners to reject integrated housing and enshrine segregated housing—pressure that takes the form of Republican Party primary challengers. Assuming the Trump administration continues to enforce the Civil Rights Act, Texans will be forced to either adapt or do as they always have: Fight like hell.