A New York Times article recently highlighted ongoing struggles to create and / or replace affordable housing in New Orleans and neighboring parishes. In both predominately white suburbs and in primarily black neighborhoods in the New Orleans city limits, proposed low- or mixed-income developments have met with staunch opposition, but the opposition has been particularly fierce in St. Bernard Parish east of the city. In September 2009 a federal district judge held the parish in contempt for violation of a consent order and a previous court order enforcing it.

The Greater New Orleans Fair Housing Action Center (GNO) brought the original lawsuit, which the consent order settled. The suit challenged several ordinances enacted by the St. Bernard Parish Council. Most notable was the infamous “blood-relative” ordinance of September 2006. This ordinance would have required application for a permissive use permit to allow occupancy of any single-family residence by anyone other than a family member “within the first, second or third direct ascending or descending generation(s).” Since whites owned 93% of the houses in St. Bernard Parish before Katrina, the ordinance had glaring racial implications. The consent order, approved by the district court in February 2008, enjoined the parish from violating the Fair Housing Act and enforcing the discriminatory ordinances.

In September 2008, however, St. Bernard Parish enacted a twelve-month moratorium on multi-family development in the parish. At the time of the introduction and passage of this moratorium, a real estate developer (Provident) had begun the process of constructing four affordable housing developments in St. Bernard Parish.  GNO argued that the moratorium violated the consent order and filed a motion to enforce the order.  Judge Berrigan agreed, finding ample evidence of disparate impact, discriminatory intent, and discriminatory effect of the moratorium. In March, 2009, she enjoined enforcement of the moratorium and ordered St. Bernard Parish to rescind it. [Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 2009 WL 2399999, E.D.La., 2009.]

The parish’s fight against the affordable housing projects continued. After the court’s March order, St. Bernard Parish denied or delayed the Provident’s applications to re-subdivide the site of the the proposed projects. In August 2009, Judge Berrigan granted GNO / Provident’s motion for contempt and, again, enforced the consent order, finding that “[t]he objections raised [to the applications for minor re-subdivision], by both the Planning Commission and the Parish Council, [were] irrelevant to the re-subdivision process and pretextual.” (2009 WL 2567186, 16, E.D.La., 2009.) Amazingly, that didn’t stop the Planning Commission from denying the application again, construing it as a “major re-subdivision.”

GNO went back to court with yet another motion for contempt and to enforce the consent order. “This is the third time that this Court is called upon to determine whether or not defendants violated orders governing this case,” Judge Berrigan said in her opinion granting the motion. She applauded the immediate and earnest recovery efforts of the parish, one of the areas hit hardest by Katrina, pointing out the incongruity between the parish’s actions to block the affordable housing development, and its otherwise valiant “spirit of recovery”:

[W]hen parish officials were initially approached by Provident, they appeared to welcome their offer of affordable housing, and for good reason. The four modestly sized housing units would bring $60 million of investment into the parish, without any cost to the parish…. Each project was estimated to produce $40,000 in annual property taxes, for a total of $160,000 a year…. Each development was mixed-income with thirty percent of the units rented at fair market rates, fifty percent at 60% of Area Median Income and twenty percent at 30% of Area Median Income. These rents were targeted to the incomes of the St. Bernard Parish workforce, such as teachers, policemen, firemen, nurses, refinery workers, dock workers, cooks, waiters, and retail sales people….

Plaintiff’s expert in affordable housing, Kalima Rose, opined
that even if St. Bernard proceeded with all the currently available federal resources and projects, including Provident, that only twenty percent of the lost rental stock would be replaced. Provident’s projects clearly promise long and short term gains for the parish.

Nevertheless, since the fall of 2008, certain St. Bernard Parish officials have repeatedly taken actions to thwart, delay and derail the proposed developments…. [Id.]

Judge Berrigan’s September order deemed the re-subdivision applications approved, and imposed monetary sanctions if the Parish fails, without good cause, to meet any of the deadlines in the opinion. The sanctions would begin at $5,000 for the first day, “increasing to $10,000 each day thereafter per each individual missed deadline…” With this latest hammer, it appears that the affordable housing project can move forward.