R.I. planner Kevin Flynn: Nothing in RhodeMap RI plan takes away local government, zoning control

The RhodeMap RI long-term economic development plan continues to spark controversy throughout Rhode Island.

This week, Republican legislators said they would submit legislation to free municipalities from having to incorporate it in their local planning.

That follows comments House Speaker Nicholas Mattiello made in December to radio station WPRO-AM. Mattiello said, "the plan is never going to come before the House or the Senate in its totality and we’re never going to vote on it."

The controversy started in mid-September with the release of a 200-page draft of the plan, which is meant to guide efforts to improve the state’s economy.

During meetings that sometimes descended into shouting matches, critics said that if RhodeMap RI were implemented, local cities and towns would be relinquishing control to the federal government on affordable housing and land-use issues because the plan was paid for, in part, by a $1.9 million U.S. Department of Housing and Urban Development grant.

Supporters said there's nothing in the plan that would infringe on individual property rights or local control over zoning.

Because the debate is likely to continue in the coming months, we decided to examine a statement made late last year by Kevin M. Flynn, associate director for planning for the state Division of Planning, who oversaw the plan’s development.

Addressing concerns about ceding municipal control, Flynn told EcoRI News, "there’s nothing in the plan that takes away local government control and local zoning control."

We asked Flynn how he backed up his statement.

While we waited for a response, we read through the RhodeMap RI plan, and found nothing to indicate a threat to local control, suggesting Flynn’s statement was accurate.

But things got more complicated when we looked at other documents, including the Planning Division’s grant application, the grant agreement, and HUD’s description of the Sustainable Regional Planning Grant Program, the source of the $1.9 million.

According to HUD, the program is intended to support planning efforts that integrate land use, economic and workforce development, transportation and infrastructure investments. It also aims to enable local and state planners to consider such issues as energy use, climate change, public health and "social equity" in economic planning.

Agencies that apply for such grants must agree to generate plans aimed at producing, among other objectives, "equitable land use planning" that furthers the federal Fair Housing Act and complies with other civil rights laws.

And those agencies must agree to analyze and overcome barriers to housing discrimination -- in HUD’s words, to  "affirmatively further fair housing."

Critics view those provisions with alarm, saying they essentially give the federal government license to override state and local government control. They point to a long-running legal dispute involving New York’s Westchester County as Exhibit A. More on that in a moment.

When Flynn got back to us, he referred us to Article XIII of the Rhode Island Constitution, which empowers cities and towns to adopt and amend their charters, and enact and amend local land use laws. He also cited state zoning enabling legislation, which delegates zoning authority to cities and towns.

"A plan is simply that. A plan," Flynn said. "A plan has no power to modify constitutional or statutory law."

"The economic development plan could never supercede state law," he said. "That is a basic tenet of our jurisprudence."  

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Looking for more impartial views, we reached out to more than 10 national housing law experts. The four who responded agreed that communities do not cede zoning control when they accept HUD grants. But they had some caveats.

For example, Brian Gilmore, an associate professor and director of the Housing Clinic at Michigan State University College of Law, said, "I wouldn’t say they’ve ceded total control. I would say they have obligations."

Robert G. Schwemm, a professor at the University of Kentucky College of Law, said much the same thing.  

"It’s illegal to use local zoning power to maintain segregation," Schwemm said.  

However, "HUD has no direct power over local zoning authority," Schwemm said.

"HUD could deny the grant or take back money," but that’s a remote possibility, he said. "The idea of a fund cutoff is virtually unheard of," because historically, the Fair Housing Act "has been enforced weakly. … They’re doing more than has been done in the past," he said of the Obama administration.

HUD’s Annual Report on Fair Housing 2012-2013 showed that the agency received 495 analyses by cities and towns examining fair housing choice. Of those, HUD took enforcement  action in five instances.

Here’s why Westchester County is important.

In 2006, a housing advocacy group sued the county in federal court, arguing that it had defrauded taxpayers by accepting $50 million in HUD grant money while failing to remove barriers to fair housing as required by its agreement with HUD. HUD later became a plaintiff in the suit.

A judge ultimately agreed with the plaintiffs, and a landmark settlement was reached requiring the county to spend $50 million to build or acquire 750 affordable-housing units in communities that were more than 90 percent white.

Now, the county and HUD are fighting over whether the county has complied with the settlement and whether it must amend its zoning ordinances to do so. The county has lost at least $20 million in HUD grants so far.

We contacted the county for its take on HUD grants and local control.

"The experience in Westchester has been caveat emptor," said Ned McCormack, Westchester  communications director and senior adviser to County Executive Robert P. Astorino, using the Latin phrase for "buyer beware." "Once you take any money from HUD, your interpretation of what is expected in return and their interpretation vary widely."  

Our ruling

Kevin M. Flynn said nothing in the RhodeMap RI plan "takes away local government control and local zoning control."

Technically, there is nothing in the plan’s language that appears to compromise local zoning law or control. But his statement doesn’t acknowledge the strings attached to the HUD grant.

In accepting the $1.9 million from HUD to develop the plan, the state agreed to, among other things, expand housing opportunities for underserved populations on the basis of race, ethnicity, or economic status and, thus, is obligated to do so.

In fact, HUD has taken legal action against grant recipients such as Westchester County that, in its view, failed to live up to its agreement. It’s rare, but it has happened.

For the record, in December, 26 Rhode Island cities and towns were awarded nearly $5.3 million in HUD grants through the Community Development Block Grant program

On balance, we rate Flynn’s claim is "partially accurate but leaves out important details or takes things out of context," our definition of Half True.

(Correction: Article XIII of the Rhode Island Constitution spells out home rule for cities and towns. The article number was incorrect in the original version of this item.)