Just what would become of a plan to rezone a large chunk of Jerome Avenue remains to be seen. The New York City Council’s Land Use Committee voted to approve the rezoning on March 6. The rezoning paves the way for developers to build as much as 4,000 units of affordable housing by changing zoning rules between 184th and 167th streets, allowing for buildings as high as 19 stories.

It’s now cleared to go to the full New York City Council, which could approve or reject the rezoning come March 21. If it goes through, city policy dictates that the existing residents along Jerome Avenue can reap the rewards of new affordable housing, should they match the federally-outlined area median income guidelines required to apply.

Technically, their chances of getting approved for an affordable unit are greater than outside residents, thanks to the city’s community preference policy, which prioritizes existing residents for affordable housing over new residents. Jerome Avenue cuts through a large swath of mostly poor neighborhoods that include Fordham South, University Heights, Morris Heights, Mt. Eden, and Highbridge. The neighborhoods are predominantly Hispanic.

Carmen Vega-Rivera, a seasoned activist who’s influenced some measure of tenant protections for Jerome Avenue residents ahead of the impending rezoning, has praised the policy. After all, with long-term residents enduring years of subpar quality of life, priority for a new unit towards current residents is the least the city could do. That can be seen as a good thing, but it does relegate them to one neighborhood.

To Craig Gurian, an attorney specializing in housing discrimination, prioritizing one group over another only promotes segregation in a city that, while overwhelmingly diverse, stands as one of the most ethnically divided. While not intentional, community preference becomes a double-edged sword that spawns the debate on whether community integration or neighborhood preservation matters the most.

Gurian doubles as executive director of the Anti-Discrimination Center, a nonprofit that responds to discrimination practices. He’s in the middle of a lawsuit against New York City claiming community preference promotes decades-long segregation. New York City presently ranks as the second most segregated city, next to Milwaukee, Wisconsin as highlighted in an analysis of 2010 census data by the University of Michigan.

Gurian represents three African-American women who applied for housing in 2015 but were ultimately denied. The neighborhoods they had applied to for new affordable housing fell in predominantly white areas of Manhattan.

The city’s community preference policy is to blame, according to Gurian. The provision, enacted during the Koch administration of the 1970s and early 1980s, serves as an anti-displacement measure when new affordable housing is built. Should developers accept tax subsidies to build affordable housing from the New York City Department of Housing Preservation and Development (HPD), they’re required to conduct a lottery via the agency’s Housing Connect lottery system. Since 2002, the city has mandated that half the units be earmarked for the existing community while the other half is reserved for New Yorkers living outside the neighborhood. They include city employees, the physically disabled, and sometimes the homeless.

Critics like Gurian argue the lottery is not so much an arbitrary construct but a caste-style system that keeps the cycle of segregation spinning. This means that a family living outside the neighborhood but attempting to move in through an affordable housing apartment has less of a chance than a current family living in the neighborhood. This setup of exclusion is worsened when factoring in race.

In a city where at least 60 percent of neighborhoods are ethnically separated, community preference arguably slows the process of integration violating New York City Human Rights Law and the 1968 Fair Housing Act. Gurian claims the city has blatantly ignored federal provision, a bi-product of President Lyndon Johnson’s “Great Society” platform that barred municipalities from discriminating against anyone attempting to rent, buy, or secure finance for housing.

“Separate is not equal. The fact that the policy gives a black resident of a black area a better chance and a white resident of a white area a better chance does not make it equal,” said Gurian.

Community preference poses problems for residents attempting to live in so-called “neighborhoods of opportunity,” comprising better schools, lower crime, and more amenities at a resident’s disposal, argued Gurian. With odds already stacked against them given the sheer volume of applicants at a time when the affordable housing stock is crunched, new residents vying for a spot have it even worse.

“[O]ur complaint invariably means that the benefits of being an insider—that is being in the community district area—go to the dominant racial group, and that makes for an uneven playing field in terms of the chances to compete,” said Gurian.

While community preference is the official term, Gurian prefers to label it “outsider-restriction,” given the limits on residential mobility.

“Where people are now has been shaped very heavily by decades and decades of intentional discrimination,” said Gurian. “It’s not as though sometime in 1957 all the African-American families in New York City got together and said, ‘You know, let’s all just move to Jamaica and central Brooklyn and Harlem.’ There were restrictions where people can move to.”

Without residential mobility, families remain stuck. Studies suggest that segregated cities, particularly those with a high number of minorities, present barriers towards socioeconomic mobility. Segregated neighborhoods also produce poor health outcomes, fewer job opportunities, mistrust of the police, and low graduation rates as outlined in continued studies by the NYU Furman Center, which tracks the societal impact of housing trends.

If one were to assess how deeply segregated New York City currently is, they can look at the breakdown of the 59 community districts spread across the City. In an analysis by the Norwood News using the city’s Community District’s Profiles website, 11 of the 59 community districts have 50 percent or more African-Americans than any other racial segment. Twelve more community districts have Hispanic families comprising 50 percent or more of the population. Another 17 community districts have white families making up 50 percent or more of its population.

In court papers, Gurian blames much of this ongoing discrimination on political pressure by residents who’ve framed the segregation argument as preserving neighborhood character and keeping the status quo. “[T]his outsider restriction policy is one manifestation of that overarching policy and that’s illegal—being influenced by those who want to maintain a particular racial flavor,” Gurian said.

Thomas Angotti, an urban planner and retired professor from Hunter College, said one reason for this affordable housing lockout is “vote chasing,” where politicians, under pressure from the current community to keep any affordable housing project from entering a neighborhood, bow to their needs in exchange for staying in office.

The Bronx saw a number of downzonings around that same period, with the neighborhoods of Country Club, Spencer Estates and City Island, all largely white, pseudo-suburban sections of the Bronx, downzoned following City Council approval. That was thanks to the Department of City Planning’s (DCP) Low Density Growth Management Area zoning text amendment mandating suburban-like settings to remain so.

In a sworn deposition in August 2017, Vicky Been, then HPD commissioner and now faculty director of the NYU Furman Center, said the city supports community preference as an anti-displacement measure and denies it reinforces segregation. She also said the policy helps attract affordable housing so long as there’s a benefit to the existing community.

“[N]eighborhoods throughout the City and their elected representatives often resist approving land use actions required to allow greater density or site affordable housing because of concern about the other types of burdens that development may impose,” said Been in the deposition.

The measure is also supported by Mayor Bill de Blasio, who conceived the Housing New York plan that looks to build or preserve 300,000 more units of affordable housing through rezoning proposals. At a news conference in January this year that announced the city’s ongoing commitment to securing affordable housing, de Blasio supported the idea of keeping families where they are.

“[P]eople want to live in their own neighborhoods and close to their loved ones, their friends, their houses of worship, their kids’ schools,” said de Blasio, adding that “if you ask the people who want to live in their own neighborhood, they obviously need some right to do that.”

In a follow-up interview, Gurian questioned the logic of de Blasio’s comments, pointing to the sheer number of applicants bidding for affordable housing. “Why are there 60,000 people applying to a lottery? They couldn’t all be from the same district,” said Gurian, referencing the large number of applicants that typically apply to an HPD-financed affordable residence.

Getting a clear sense of the segregation issue through the lottery system has been a challenge for Gurian, who’s filed a motion asking a judge to unseal a city-sanctioned report outlining the ethnic breakdown of who’s applying to the housing lottery. A decision is now pending.

The case also blames the city for further enabling segregation by downzoning largely white areas where homeownership abounds. The 2005 downzoning in parts of central and southern Staten Island, a largely white area of New York City, for instance, banned the construction of multiple-dwelling housing, lowering the chance of affordable housing that would have allowed low-income residents to move in.

Today, largely white areas have not seen any major rezoning that include an affordable housing component. This is in stark contrast to minority neighborhoods, where at least six predominantly Hispanic and black communities are under current rezoning consideration, potentially seeing a higher concentration of low-income affordable housing within that area.

Gurian has sued for a setup similar to this in Westchester County, where a chunk of municipalities passed zoning laws that effectively kept minorities from low- and middle-income backgrounds out. This came despite the county accepting $50 million in funds from the U.S. Department of Housing and Urban Development to encourage racial desegregation and economic mobility. The case ended in settlement, with the county promising to build 750 affordable units in high-income neighborhoods.

Community preference as it relates to affordable housing means more to Carmen Vega-Rivera, than the promulgation of upzoning in largely minority neighborhoods that are ethnically segregated.

Nothwithstanding her aggressive activism for equity along Jerome Avenue, Vega-Rivera admits she has attempted to return to her childhood home of the Lower East Side through Housing Connect. It hasn’t worked out. She has been on and off the waiting lists and has been constantly denied.

“I don’t call it a lottery, I call it ‘gatekeeping,’” said Vega-Rivera, who lives in the Concourse section of the Bronx. “They have all these barriers, and all these obstacles whether you’re re-entry, whether you’ve served [jail] time.”

Even if a judge were to rule in favor of Gurian, the lottery system will still need work towards equity. Angotti notes that bureaucratic policies beyond community preference have kept New Yorkers out of certain neighborhoods. Much of those policies start when applying through the HPD lottery.

“You have to have a bank account. Well, many people don’t have bank accounts because of bank redlining. They don’t have access to banks. If you ever got stopped and frisked, you got a record and because stop and frisk is pervasive, has been pervasive in minority communities, that disqualifies a lot of people from even entering the lottery,” said Angotti. “And you need to have a credit record. That means you need to have a credit card, you never could have missed a payment, and you have to go through a very rigorous screening before you will even get selected and that could be a year, two years, or more. So the whole process of distributing the housing units needs to be reformed, not just community preference.”

Gurian could also have gained a greater sense of the segregation issue had the federal government kept to a time frame that ordered officials across U.S. cities to outline how they’re adhering to the Fair Housing Act and integrating neighborhoods. The rule became effective during the Obama administration.

In January this year, the Trump administration extended the deadline well past the year 2020.

Editor’s Note: The print version to part one of this series did not explicitly state that the New York City Council vote on the Jerome Avenue rezoning was still pending.

This series is made possible by a fellowship from Marguerite Casey Foundation, which supports low-income families in strengthening their voice and mobilizing their communities to achieve a more just and equitable society for all.