The subversion of fair housing law by pernicious zoning ordinances, part 2

[continued from part 1]

Massachusetts has, in the past, attempted to address the problem of snobbish, exclusionary zoning. The section of law known as Chapter 40B was passed in 1969:

This law was seen as one of the earliest recognitions of the racial and economic segregation often imposed by exclusionary zoning practices such as minimum lot sizes and bans on multi-family housing. The purpose of the law is to “address the shortage of low and moderate income housing in Massachusetts and to reduce regulatory barriers that impede the development of such housing.” 

Often referred to as the “Anti-Snob Zoning Law,” the “Comprehensive Permit Law” and the “Massachusetts Affordable Housing Law,” Chapter 40B is seen as a “one-stop” permitting process for developers proposing low and moderate-income housing projects. Rather than applying to many local boards, the developer applies for a “comprehensive permit” to one local authority—the Zoning Board of Appeals (ZBA). 

Chapter 40B is significant in that it was one of the first instances in which a state exerted authority over local control in land use zoning.4 Therein also lays its controversy. Under 40B, a developer has the right to appeal to the state Housing Appeals Committee (HAC) if it is denied a comprehensive permit for a qualified project, or if it is granted one with conditions making the project uneconomic. Under 40B, ZBAs are able to approve projects with higher density than current zoning allows, making it more economically feasible to develop affordable housing.

Chapter 40B only applies to municipalities that have less than 10% of their housing stock designated as 'affordable', and it does not apply to Boston at all (due to the Boston Redevelopment Authority). It's success has been limited: 48,000 units were created from 1969 through 2008, of which 26,000 were designated as affordable. That's an average of 1,230 units per year, or 666 affordable per year -- far lower than the demand. And only 55 municipalities (of 350) had met the 10% requirement after nearly 40 years of the law.

The law happened to go into effect not long prior to Boston's school busing crisis, an era that exacerbated the divide between city and suburb, as 'white flight' brought many new residents to the suburban towns, eager to shut the door behind them as they arrived. From Common Ground:

Indeed, barely a month after Garrity’s ruling on the constitutional violation, the Supreme Court effectively cut off one possible avenue of remedy. In Milliken v. Bradley, it over-ruled a district court which had required cross-busing between Detroit and its surrounding suburbs. Since the lower court had found de jure segregation only within the city and not in the suburbs, the Supreme Court held that a metropolitan-wide order “would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy.” Milliken marked an important turning point in the Court’s approach to school segregation. Albeit by the narrowest margin (5–4) in any major school case yet, the Court halted the advance of school desegregation at the city line. Although many students of the matter believed a clear pattern of “state action” could be detected in the suburbs—notably in government housing loans and highway construction policies which operated to keep them predominantly white—the increasingly conservative Court majority declined to push its broadened doctrine of de jure segregation that far.

The anti-busing protesters could no longer maintain segregated schools in the city; instead, they moved to the surrounding towns where they could promote segregation through the use of regulatory tools such as zoning codes. The borders of municipalities acted as effectively as segregated neighborhood boundaries had before. Since then, a common complaint of town NIMBYs opposed to residential development is that it might bring 'too many' students to the public school system, thereby 'overwhelming' it. Such 'pseudo-engineering' of the school system by laypeople -- as if they were engineers designing a waterworks -- is more likely to be a cover story for their true motivation: the exclusion of people unlike themselves. And this effect may partially explain why the Chapter 40B requirements have not been met by the majority of towns in the Commonwealth, even after nearly half a century has passed.

Affordable housing money wasted on pointless parking spaces

Just a quick blog post on something I noticed yesterday. A quote from a letter filed with the BRA regarding a new project on Telford Street:

At the recently constructed Charlesview project across Western Avenue from the Telford Street project site, the fully occupied 240 unit residential development has about 180 spaces of its 248 space parking garage used. Since there is no additional fee for parking above monthly leases at Charlesview, these numbers represent a true parking demand of about 0.74 spaces per unit.

Think about how much affordable housing money has been wasted on these luxurious accommodations for automobiles -- which aren't even being utilized.

Sickening.

The subversion of fair housing law by pernicious zoning ordinances, part 1

I'm not a religious person but I think there is genuine evil in this world. And one of those evils is the persistence of segregation fifty years after the Civil Rights movement of the 1960s.

2010 Census Block Data showing distribution of population by race in Boston (source)

One of the more important Supreme Court decisions of the year was handed down last month. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. ruled that 'disparate-impact' claims are valid under the Fair Housing Act of 1968. This ruling ensures that an important tool in the fair housing toolbox continues to be usable: the notion of 'disparate-impact', or that government policies can have an unstated yet implicit racially-biased effect.

The Inclusive Communities Project brought suit over how the Texas Department of Housing and Community Affairs distributes tax credits for low-income housing. The Department’s policy, the group claimed, causes almost all affordable units to be built in racially segregated low-income areas, providing minorities with few opportunities to move to integrated or wealthier areas. Though the creators of the tax credit policy had no racial intent, according to the Inclusive Communities Project the results of the policy confined minorities to segregated areas.

From the opinion:

Recognition of disparate-impact claims is consistent with the FHA’s central purpose. See Smith, supra, at 235 (plurality opinion); Griggs, 401 U. S., at 432. The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation’s economy. See 42 U. S.  C. §3601 (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States”); H.  R.  Rep., at 15 (explaining the FHA “provides a clear national policy against discrimination in housing”).  These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., Huntington, 488 U. S., at 16–18 (invalidating zoning law preventing construction of multifamily rental units); Black Jack, 508 F. 2d, at 1182–1188 (invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action Center v. St.  Bernard Parish, 641 F.  Supp. 2d 563, 569, 577–578 (ED La. 2009) (invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only “‘blood relative[s]’” in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52–53 (discussing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA’s objectives and to protect their property rights by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g., Huntington, supra, at 18. Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

This is an important ruling if and only if the Federal government backs it up by strengthening and enforcing the regulations based on the Fair Housing Act. Unfortunately, over the past four decades, successive administrations including the current one have largely done nothing or acted to undercut the law. That might change now, with the Supreme Court's fresh ruling.

This is significant if it is used to reverse some of the most pernicious and widespread zoning code techniques that effectively cause economic and racial segregation through disparate-impact. Zoning has long been about exclusion, even continuing after explicitly racial zoning was struck down by the courts. From Dead End, a book about the history and effect of sprawl, by Benjamin Ross:

[Euclid v Ambler, 1926] moved quickly beyond the specifics of Ambler’s property; from the beginning, the principle of zoning was at stake. And the main principle was the exclusion of people, the people who lived in apartment houses. “In the last analysis,” Judge Westenhaver wrote perceptively in his opinion, “the result to be accomplished is to classify the population and to segregate them according to their income or situation in life.” The Supreme Court saw the issue similarly. The village’s power to keep out factories was not really in doubt, it observed: “The serious question in the case arises over the provisions of the ordinance excluding from residential districts apartment houses, business houses, retail stores and shops, and other like establishments.”

And The Racial Origins of Zoning in American Cities:

"What began as a means of improving the blighted physical environment in which people lived and worked," writes Yale Rabin, became "a mechanism for protecting property values and excluding the undesirables." The two interest groups that were regarded as the undesirables were immigrants and African Americans.

While instances of explicit racial exclusion through zoning and restrictive covenants are generally overturned by the courts, that has not been the primary mechanism through which segregation is created and maintained. Instead, the racially biased effect is engineered through neutral-seeming zoning codes that provide an aura of plausible deniability. For example, a zoning code might mandate a minimum lot size, such as a quarter-acre, for construction of housing, while forbidding anything larger than a single-family home to be built. None of the language used has any explicit mention of race or class, but the net effect is to restrict residency on that property for only a single family capable of affording a quarter-acre of land. In any reasonably attractive neighborhood, the price of that 10,860 square feet of land is beyond the reach of low- or middle-income families, thus effectively excluding all but the wealthy.

That is not the only type of regulation that is used to make land and housing unaffordable. For example, onerous requirements for front yard, back yard, and side yard ensure that only those people wealthy enough to afford 'conspicuous waste' can live there. Minimum parking quotas force residents to pay for parking spaces whether they use them or not. And, most infamously, the prohibition against apartments or multi-family housing in many zones makes it impossible to divide the cost among several families. Generally, the net effect of these regulations is either implicitly or explicitly intended to lower density. One glance at the population distribution map above should confirm that there is more than a passing correlation between 'low density' and 'overwhelmingly white'. That is disparate-impact at work: it is subtle in the wording of zoning codes, but the net effect over time is clear. The question now is: will the government begin to tackle the inequities created by local zoning codes? And how?

[continued in part 2]

The Epic Journey Across Ruggles Street at Southwest Corridor Park

I've been gathering footage around town with my digital camera. Here's my first attempt at creating a video, about a poorly-timed signalized crosswalk near Ruggles Station: