by Eric Shupin
Discriminatory government policies in zoning and land use over the last 50 years have intentionally created racially segregated communities with concentrated areas of poverty. More than a half-century since passage of the Fair Housing Act of 1968, “even as metropolitan areas diversify, white Americans still live in mostly white neighborhoods.” In the Boston area, residential racial segregation exceeds the national average significantly, with Black and Hispanic households overwhelmingly residing in communities with the greatest educational challenges, limited resources, and the poorest educational, economic, and health outcomes. Alarming emerging data from the COVID-19 pandemic suggests that in urban cores, “[b]lack and brown people are dying at rates more than twice their share of the population”—likely because high density urban areas are comprised disproportionately of racial minorities with higher prevalence of preexisting poor health-related conditions. The racial gap in COVID-19 deaths exposes the urgent need for bold government intervention to undo the legacy of decades of exclusionary zoning that continues to perpetuate residential segregation in the Commonwealth.
AFFORDABLE HOUSING SHORTAGE AND SEGREGATION
An adequate, affordable housing supply throughout Massachusetts is critically necessary to disrupt existing patterns of residential segregation. As of 2018, 32% of Black and 16% of Latinix/Hispanic residents of Massachusetts lived in Boston. This is compared to the state’s overall population breakdown of 7% Black and 12% Latinx/Hispanic.
Not nearly enough housing has been produced outside of Boston over the past 30 years. Between the 1960s and the 1990s, annual housing production in Greater Boston actually dropped by 52 percent, and, multifamily housing production dropped by more than 80 percent. Consequently, rents and home prices in the region have been perennially among the highest in the nation, placing an increasing and unsustainable burden on renters, especially lower-income residents who are disproportionately people of color. In 2017, with only about three new housing units permitted for every thousand residents, Greater Boston continued to rank among the top-five in average housing costs and ranked 18th in housing production among the nation’s 25 largest metropolitan areas.
An adequate housing supply can help stabilize prices and enhance affordability, but production alone will not address the Commonwealth’s persistent patterns of racial residential segregation. Legislation and land use policies that explicitly address the need for affordable housing to be equitably distributed throughout Massachusetts are needed. Since its enactment in 1967, Chapter 40B has been the main statutory means to incentivize affordable housing production statewide. It empowers local Zoning Boards of Appeals in jurisdictions that have not met the 10% Subsidized Housing Inventory (SHI) “safe harbor” threshold to approve “comprehensive permits” for denser, larger, and higher development projects than would otherwise be permitted under local rules if they contain 20–25% affordable units. In the past 50 years, Chapter 40B has helped create over 60,000 homes, but, after all those years, currently only 67 of Massachusetts’ 351 municipalities are at or above the 10% SHI threshold.
Although Chapter 40B has helped, the Commonwealth still faces serious challenges to combatting patterns of residential segregation. Massachusetts needs additional zoning tools and reforms to overcome our legacy of restrictive zoning.
RESTRICTIVE ZONING AND FAIR HOUSING
The Massachusetts’ Zoning Act, G.L. c. 40A (“Chapter 40A”), delegates to all municipalities (except Boston) the power to enact their own zoning codes to regulate the use of land, buildings, and structures for the purpose of protecting the “health, morals, safety and general welfare of the community.” While the Legislature retains the ultimate authority to set zoning policy for the Commonwealth, in practice, local zoning laws represent the piecemeal expression of their development preferences and local control over such externalities as population growth, traffic congestion, noise, aesthetics, and property values. Without reform, most Massachusetts’ communities will continue to restrict the development of all but the most expensive—and exclusive—type of housing: single-family homes on large lots.
According to Massachusetts’ 2019 Analysis of Impediments to Fair Housing, density-restrictive zoning raises serious civil rights concerns because low-density developments tend to exclude Black and Hispanic residents disproportionately, whereas multifamily rental options promote the inclusion of traditionally excluded minority households.
ZONING REFORM TOOLS
Statutory zoning reform, coupled with judicial development of a more restrictive doctrine on abutter standing, can complement existing incentives, such as Chapter 40B and the Housing Choice Designation.
Enacting Housing Choice
We can start by amending Chapter 40A to make it easier for communities to pass local zoning changes that encourage more housing and “smart growth” development. Currently, any zoning change requires a two-thirds vote by all members of Town Meeting or city council. G.L. c. 40A, § 5. Without amendment, this often insurmountable threshold will ensure the status quo of our exclusionary land use practices.
H.4263, initially filed by Governor Baker, would enable municipalities to pass by a simple majority vote a narrow set of zoning changes related to multifamily housing, including mixed-use developments and accessory dwellings (or in-law apartments), and to approve special permits for certain affordable housing developments that are consistent with smart growth principles. Other zoning changes that might further restrict new and/or affordable housing, such as increasing dimensional requirements, would continue to require a super-majority vote. If sufficiently coupled with subsidies to build affordable housing, this measure would make a substantial impact by empowering the simple majority of the community to vote for such zoning amendments in favor of housing.
Curtailing Frivolous Abutter Challenges
Massachusetts’ jurisprudence on standing has accorded disproportionate power for abutters to challenge a project for the improper purpose of obstruction and delay. Abutter challenges—even without merit—can hold up affordable housing construction sufficiently to make the project financially unviable.
In Murchison v. Sherborn, a decision issued in less than 24 hours, the Supreme Judicial Court ruled that abutters must prove they would suffer some kind of demonstrable harm to have standing to bring a legal challenge to a project. While the claim that a proposed single-family home on a 3-acre neighboring lot would cause density-related harm may be an extreme case, the case exemplifies the frivolous type of challenges many affordable housing developers face. To promote the creation of more diverse housing types across Massachusetts, we must encourage a new jurisprudence or take legislative action on standing to deter frivolous abutter challenges of locally-supported affordable housing developments.
Each municipality can also adopt its own inclusionary zoning policy to require a certain portion of a housing development to be set aside as affordable. For example, Boston’s policy currently requires 13% to be set aside as affordable; Cambridge requires 20% to be income-restricted. The challenge for such policies is that sufficient density is required to make a mixed-income development economically feasible: if the required set aside for affordable units is too high, inclusionary zoning can have the unintended consequence of discouraging new development that can foster diversity in communities that are traditionally opposed to increased density. It is also dependent on a community approving projects large enough to trigger the policy in the first place. Even with these limitations, such policies are an important tool to combat exclusionary zoning.
Zoning is a powerful legal and public policy choice: it determines what gets built and where and who gets to live in a community, as well as who is excluded. Zoning reform is long overdue in Massachusetts to remediate our history of residential segregation. H. 4263 is a first step for Massachusetts to start building desperately needed diverse housing opportunities.
Eric Shupin is the Director of Public Policy at Citizens’ Housing and Planning Association. Shupin is the public policy co-chair of the Boston Bar Association’s Real Estate Section. Shupin holds a J.D. from The George Washington University Law School. The opinions expressed in this article are his own.
by Danielle Johnson
*This article is a companion piece to “Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. Budd.”
If you approach the steps of the Edward Brooke Courthouse (named after the first African-American elected to the U.S. Senate since Reconstruction) around 8:45 A.M. on a Thursday morning—colloquially known as “Eviction Thursday” in Boston—there is a seemingly endless line of people, mostly in street clothes, waiting anxiously to get through the security screening. I approach, dressed in a suit and dress shoes with my hair neatly dreadlocked. I walk quickly past the lines of waiting litigants with my bar card and driver’s license in hand. I am a young African American woman and I am an attorney. In court, I am both an anomaly and a chameleon, depending on whom I encounter.
The Court: The Tale of Two Lines
The familiar discomfort starts outside the courthouse. To get through the door of the courthouse to the Eastern Housing Court sessions on the fifth floor, I must walk past the long lines of fellow people of color waiting to submit themselves to the security screening—that often includes an electronic pat-down—before being allowed in the building. It is my weekly routine to swallow the discomfort of the two lines; one short line for predominantly white attorneys and another longer line for the litigants, including my clients, predominantly people of color. I present my bar card and driver’s license, and after close inspection—notably which are not scrutinized for my white colleagues who flash their cards and proceed before me— I am allowed to pass the first test and enter the foyer of the marbled courthouse.
Inside, the courthouse is buzzing, and the clamor of chatter and movements echo throughout the hallways. I make my way up to the fifth floor for the call of the lists. Exiting the elevator, the scene that awaits can overwhelm an unsuspecting person, but it is business-as-usual for Eviction Thursday. The two “Attorney of the Day” tables are set up to provide quick legal advice, one for pro se landlords and the other for pro se tenants. The area is so crammed with people that one cannot see the Attorneys of the Day. This is not surprising given that in 2019 alone, 39,600 households faced eviction in Massachusetts. Of these, 92% of the tenants were unrepresented; in contrast, more than 70% of landlords were represented.
At the “Attorney of the Day” table for tenants, I flip through the dockets and see the usual massive number of new eviction cases – about 150 in total – and 55 motion hearings on the two lists. The day will be long. I brace myself for the ongoing series of tests that I will face, each of which will demand that I prove who I am, making Eviction Thursday an even more exhausting day.
The Client: “You’re My Lawyer?”
Finding my client among the sea of black and brown faces who are anxiously searching for answers from anyone who might be willing to listen is do-able if I have previously met the tenant. Today is not that day. Working in legal aid, where there is a mismatch between high demand and limited resources, I often walk through the hall shouting out names of clients I will meet for the first time in court. When my first call does not yield a response, I call again. Success! I formally introduce myself to the client and field the expected question: “You’re the attorney I spoke with?” Surprise mixed with suspicion registers on my client’s face. For my clients, it is my youth that is concerning. I am used to this look of doubt as an attorney who practices exclusively with elders; this is my second test of the day. It is the unspoken challenge to my legitimacy raised by my appearance. I deflect their anxiety with humor using stereotypical images of attorneys common to their generation: “I must look adolescent, not the Matlock or Perry Mason you were expecting?” To get past the awkwardness, I direct my client’s attention to the goal for the day and what to expect in the courtroom. But sometimes this is not sufficient assurance. I confidently explain to my client that this is “not my first rodeo,” and hope that I have gained their trust. I leave them to their thoughts and move on to find opposing counsel.
The Bench and the Bar
Housing courts tend to have their usual players, so locating a specific attorney is not often difficult. Again, today is not that day. Like a chameleon, I pass unnoticed through the tenants, a sea of brown and black faces crowding the halls while waiting anxiously for the courtrooms to open, and quickly scan each white individual in a suit. In the courtroom, shades of brown dominate, speckled here and there by clusters of ivory. I am not the only person of color, or the only woman, or the only person of modest economic means. Even so, there is a clear dichotomy: the majority of the tenants are minorities while the majority of attorneys are white and male. Then there is me.
As the list is called, the attorneys jockey for seats in the jury box. In that segregated space, protected against the huddled masses packed into courtroom, the color scheme flips; today, I am the only grain of pepper in a sea of salt. I sigh, recalling the day the court officer singled me out: “Hey, you can’t sit there. You a lawyer?” Moving past colleagues to an empty seat, I speculate that they are wondering: “Does she know this section is for attorneys?” This is the daily reality of what it means to be an attorney of color in Massachusetts, navigating unwritten tests to prove that I exist, I am qualified, and that I belong.
Once the call of the lists begins, the doors to the standing-room only courtrooms are shut. Any defendant not present in the correct courtroom for the call will be defaulted. Most tenants who answer are visibly anxious. Once referred to court mediation on the third floor, some will go over agreements with a housing specialist, but most will be diverted to sign, without the benefit of a hearing or trial, the pre-drafted form agreement for judgment offered by the landlord’s attorney. This is accomplished quickly in the hallway, often with no understanding on the part of the tenants of the document they have signed, including the waiver of their right to request a stay, seek reconsideration, or pursue an appeal. Instead, they blindly focus on the quickest option that allows them to remain in their home and escape the stress of being in court.
My client, who was previously pro-se, had signed such an agreement for judgment with the landlord. The slightest breach of any of its conditions, including all incorporated lease terms, is deemed material and could trigger an execution for possession – and the agreement waived all stays of execution. But today, there will be no execution for possession. Today, I have prevailed in negotiating an amendment to the “Sword of Damocles” agreement, and substituted a sustainable repayment plan with sufficient time to access third party rental assistance through the Residential Assistance for Families in Transition (RAFT) program for the onerous agreement for judgment. I also connected the elderly client to the court’s Tenancy Preservation Program (TPP). I am the most pleased with my success in changing the basis for the eviction from “fault” to “no-fault,” thereby protecting my client from mandatory termination of their Section 8 Housing Choice Voucher.
I have passed today’s last test. I achieved a successful outcome. I demonstrated my competence to my client and proved my negotiation skills to an opposing counsel with whom I had not worked with in the past.
Legal Aid and the Massachusetts Bar
Back at my office at Greater Boston Legal Services, my shoulders relax. Here, I am not burdened by expectations to conform to the culture and hierarchy of a Boston law firm. I am not oppressed by inadvertent stereotyping nor subject to daily microaggressions that would stunt any lawyer’s professional growth. Notwithstanding, my dominant experience navigating my chosen profession is one of alienation, exclusion, and discomfort—the price that I pay under the “invisible labor clause” for being a black woman legal aid attorney in Massachusetts, serving the poorest people in Boston who are predominantly people of color, like me.
In my career, I have experienced racism, gender discrimination, and elitism. My experience is not unique. Throughout the Commonwealth, attorneys of color are called upon to prove their qualifications daily, to colleagues, clients, court personnel and even clerks and judges.
The 2019 demographic survey conducted by the Supreme Judicial Court, in collaboration with the Massachusetts Board of Bar Overseers, revealed that out of 22,743 participating attorneys, 20,043 (86%) identified as White, and only 494 (2%) identified as Black or African American, 519 (2%) as Hispanic or Latinix, and 574 (2%) as Asian. These numbers make clear what my experience has proven—there is a gross lack of minority representation in the Massachusetts bar.
This is not a “woe is me” story. It is a call to action for cultural diversity in law firms and legal organizations and, more importantly, for reflection on and recognition of each of our implicit biases. My day is over, but these challenges will repeat tomorrow and next week and every month thereafter with a new list of scared, mostly poor, minority tenants, assembled in lines to enter a courthouse, named for the first African American Attorney General of Massachusetts, all in effort to get “justice.” We should do better. We can do better.
Danielle Johnson is a Staff Attorney at Greater Boston Legal Services where her practice focuses on elder housing and disability benefits. Danielle also participates in the Lawyer for the Day Program at the Metro South Housing Court, assisting tenants. Danielle is also a member of the Boston Bar Association, the Massachusetts Black Lawyers Association, and the Massachusetts Black Women Attorneys.
Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. BuddPosted: May 28, 2020
Voice of Judiciary
*This interview is a companion piece to “Walk in My Shoes: A Day in the Life of a Black Woman Attorney” by Danielle Johnson.
I was fortunate to recently talk with Justice Kimberly S. Budd about her career path and her experiences as a woman of color in the legal profession.
SH: What drew you to the law?
KB: I was lucky in that my Dad was a lawyer so he exposed me to the law. I have to admit, though, that when I was a kid, I did not really have an understanding of what a lawyer did. I do remember going in to work with him on the weekends, and helping him by pulling files. That’s what I grew up in. When I graduated from college, I went on to law school because I didn’t know what else to do (I majored in English). In hindsight, I wish I had taken a year to work between college and law school. I felt really young and inexperienced in law school.
SH: Has your identity as a woman of color affected your experience as a judge?
KB: I think it is fair to say that being a woman of color affects every part of my life, including being a judge. The piece written by Danielle Johnson about her experiences in Housing Court brought back similar memories of my experience as a young litigator. I have been mistaken for a defendant’s girlfriend by a court officer, and have been underestimated by countless numbers of opposing counsel over the years.
As a judge in Superior Court, it was clear that attorneys, litigants and jurors were not expecting to see a Black woman judge when they came into the courtroom. I remember one particular afternoon I was sitting in a civil motion session in Middlesex County and working with a Black woman courtroom clerk and a Black woman court officer. I think those who had business in the “D” session that afternoon were surprised to see our team!
When I handled criminal cases, many of the defendants were Black. I like to believe that it made a difference for them to see someone who looked like them on the bench, especially if everyone else in the courtroom was White.
SH: What was your experience with Judicial Evaluations?
KB: State court trial judges are evaluated periodically by practitioners who are surveyed anonymously. The evaluations have both objective and subjective components, resulting in a numerical rating, and written comments. In 2014 a review of the judicial evaluations showed that judges who were of color and women judges consistently received lower ratings than White male judges. Attempts were made to figure out how to account for bias, implicit or otherwise. We haven’t come up with a solution, and I’m not sure that there is one. The evaluations reflect the biases that exist in our society.
I have to admit that whenever I received my evaluation results, it was difficult to look at the comments. Many were good, but it was the negative ones that consumed my attention. After my first evaluation I stopped looking at the written comments altogether.
SH: You are the third African American ever appointed to the SJC, correct?
KB: Yes, and the second Black woman. Chief Justice Rodrick Ireland was the first African American appointed to the court in 1997 (the first in the Court’s over 304 year history). He subsequently became the Chief Justice in 2010. He was an excellent chief—and a great leader; everyone thought he did an amazing job. He was cognizant of the fact that his performance likely would affect the way judges of color who came after him would be perceived.. When Chief Justice Ireland retired, Justice Geraldine Hines replaced him and was the first African American woman.
SH: Can you describe your relationship with Justice Hines?
KB: I have been fortunate to know Gerri for a long time. She started in the Superior Court, back in 2001. I remember attending her swearing in ceremony when she first became a judge and being so excited for her and for the Commonwealth. Little did I know that eight years later I would be her colleague on the Superior Court. She was my mentor there, and again when I joined the SJC. It makes such a difference when you have someone in your corner showing you how to do the job, answering your questions and rooting for you to succeed. Her presence on the SJC when I arrived was huge. And her absence is still felt (she retired in 2017). She is only a phone call away though!
SH: The future of the SJC. Do you see more diversity coming?
KB: I sure hope so.
I would hate to think that anyone would use my presence on the Court to support an idea I am one of just a handful of people of color who are qualified to be a Justice of the Supreme Judicial Court. That certainly is not the case. I also cringe when I think there are some who might believe that I am here only because they needed a Black person to fill a slot. Even though diversity and inclusion are and should be priorities for the Commonwealth’s judiciary system and in many workplaces, I believe that I hold my own on the SJC. I am not just taking up space. And like Danielle, I work every day to prove it.
Kimberly S. Budd is an Associate Justice for the Massachusetts Supreme Judicial Court (“SJC”), where she has served for nearly four years, and a former Justice of the Massachusetts Superior Court. She was appointed to the Superior Court by Governor Devall Patrick in 2009. Justice Budd was a litigation associate at Mintz Levin, an Assistant United States Attorney in the United Stated Attorney’s Office for the District of Massachusetts, and a University Attorney for Harvard University in the General Counsel’s Office. She also worked at Harvard Business School as the Director of Community Values. Justice Budd earned her bachelor’s degree in English from Georgetown University and her law degree from Harvard Law School.
by Laticia Walker-Simpson
Homelessness in Greater Boston was rising even before the economic fallout from the COVID-19 pandemic. From 2008 to 2018, the region experienced a 26.7% increase in homeless families and a 42.5% increase in homeless individuals. As rents skyrocketed and the shortage of affordable housing worsened, the state’s Emergency Assistance (“EA”) shelter program has strained to meet the need of the growing number of eligible households. The public health emergency has laid bare the structural problems with the state’s housing safety net program all too familiar to those working directly with the vulnerable population.
To meet the statutory mandate to provide Shelter to impoverished households, the Commonwealth must substantially increase funding for the EA program, implement measures to create more housing affordable for extremely low income residents, and adopt initiatives to address the displacement crisis, such as right to counsel in eviction cases and rent control.
“Right to Shelter”
In 1983, Massachusetts enacted a “Right to Shelter” law, Chapter 450 of the Acts of 1983, and established the state’s first publicly-funded homeless Shelter for families while they search for more stable housing. Although referred to as a “right to Shelter” jurisdiction, the Commonwealth imposes strict threshold eligibility requirements for applicants to be eligible for EA Shelter: families must be Massachusetts residents; at least one person must have qualifying immigration status; the family must have a qualifying child under age 21, and the overall household income must be at or below 115% of the federal poverty level.
Additionally, the family’s homelessness must have been caused by one of four qualifying reasons: (1) domestic violence; (2) fire, flood, or natural disaster not caused by a household member; (3) a health and safety risk that is likely to result in harm; or, (4) eviction due to certain circumstances that are generally beyond the control of the tenant household, such as medical situations.
A household will be barred from EA Shelter for a variety of reasons, including “intentionally reducing” income to become eligible for benefits (i.e., EA shelter or a housing subsidy); receiving EA Shelter benefits in the last year; abandoning public or subsidized housing without good cause; or being evicted due to criminal activity, destruction of property, or non-payment of rent for public/subsidized housing.
Once admitted to an EA Shelter, the household must meet certain mandatory participation requirements, such as saving 30% of their income, spending 20 hours per week in housing search, job search, or in education or training programs like financial literacy classes. Participants are also required to complete chores in the Shelter, including cleaning the facilities’ kitchens and bathrooms.
A Perverse Cycle
The Commonwealth’s shortage of affordable housing for low and extremely low income families is driving the need for EA Shelter. At least three in ten low-income people in Massachusetts are either homeless or must pay over half of their income in rent.
Since 2013, the average length of stay in EA Shelters across the state is 267 days. Only 12% of families exit the EA program within one month, 28% exit within three months, and 27% stay for more than a year and up to 5.6 years. Compared to an average of 247 days in 2008, in 2013 homeless families spent an average of 300 days in EA Shelters. The duration has been about 150 days longer in the Boston and Central regions than in the Southern and Western regions. This disparity is not surprising given the higher cost of housing in Boston where, for example, the rent for a two-bedroom leapt from $1,237 in 2010 to $1,758 in 2019.
With the lengthening duration of stay in EA Shelters due to lack of permanent affordable alternatives, more families are placed farther away from their home communities and face limited transportation options to their original places of employment, child care, medical care, education, and important networks of support. And case workers assigned to each EA family face increased caseloads, reducing the time they can spend assisting each family with housing search and accessing other resources necessary to transition out of homelessness.
The budget for the EA program has not kept pace with the expanded need for EA Shelter and increased cost of temporary EA housing. In fiscal year 2013, 39,436 homeless families were served by the EA budget of roughly $156.5M (adjusted for inflation). In fiscal year 2019, 43,392 families were served by the allocated EA budget of roughly $179.8M (exclusive of any supplemental budget).
To meet the increased demand, the EA program has placed many families in inexpensive private apartments. These private market EA placements have resulted in the unintended, albeit foreseeable, consequence of further shrinking the supply of “naturally occurring affordable housing” (“NOAH”) available as permanent housing options, including for EA participants. That is, by competing in the private rental market for EA temporary placements, the state’s efforts have had the perverse effect of further decreasing the supply of NOAHs available to low-income families, thereby pushing more vulnerable households into homelessness, and exacerbating the supply barriers to permanent housing for EA participants, thereby extending their time until exit from the EA program. It is a pernicious and inefficient cycle.
The related trends of longer EA stays and shrinking permanent affordable options has transformed the EA program from its original purpose as a short-term measure to help families get on their feet into a long-term housing placement system for those with limited prospects for transitioning to stable, affordable housing. This dynamic is unsustainable at current levels of EA appropriations.
The COVID-19 pandemic has also underscored the public health costs of a system operating beyond capacity. EA Shelters are primarily comprised of congregate housing, where each family has a private room but shares a kitchen, bathroom, and living space with other families. Congregate physical facilities make social distancing impossible and contributes to the spread of the virus. The reduction in on-site staffing due to the public health emergency also means cleaning and maintenance also has come under increased strain.
Creativity and determination are necessary, but not sufficient, to disrupt the current inefficient patterns and cycles in the operation of the EA Shelter system. A substantial increase in EA Shelter appropriations will also be necessary, along with expansion of staff trained to develop resources, capacity, and resilience within homeless families, and more systemic efforts to preserve NOAHs as permanent affordable housing options.
The most effective, preventative response to the homelessness crisis would be a form of rent control. A more immediately needed response in the face of the tsunami of evictions expected at the end of the temporary eviction and foreclosure moratorium, Chapter 65 of the Acts of 2020, is a Right to Counsel legislation that would reduce the number of low-income residents who are evicted and need EA shelter by providing attorneys to low-income tenants, the majority of whom presently go unrepresented.
The pandemic has exposed the need for systemic reform for the EA program to operate effectively to mitigate the traumatic human, medical, and social costs associated with homelessness and to transform the “Right to Shelter” from a paper promise into a sustainable reality for our Commonwealth’s neediest families.
Laticia Walker-Simpson is a Staff Attorney focusing on EA Family Shelter in the Housing Unit at Greater Boston Legal Services. She co-chairs the Mentor project at GBLS and is part of the Massachusetts Right to Counsel Coalition. She is an avid baker.
by City Councilor Lydia M. Edwards
Boston’s economy is thriving. Why then are so many residents of the City and Commonwealth struggling to find and afford housing, remain in the communities they love, become homeowners and build wealth? A shortage of housing that serves the needs of all economic classes and family structures is certainly part of the problem. But simply building across the region will not solve our state’s persistent housing affordability crisis. To house our diverse, growing population, we will need a multi-pronged approach that balances growth and prosperity with protection of all residents during both recession and economic booms and addresses the widening wealth gap that plagues our City and the Commonwealth. As Boston City Council Chair of the Housing and Community Development and Government Operations Committees, my view is that Boston can lead through housing policies that raise revenue for affordable housing, shape new inclusive neighborhoods through planning and zoning that affirmatively furthers fair housing, and stabilize communities through protections against involuntary displacement and equitable opportunities for home ownership.
Revenue for Affordable Housing
With the decades-long decline in federal funding, localities must look to other sources to finance the preservation and production of housing that is affordable to low- and moderate-income residents. Boston recently passed a home rule petition to collect a transfer fee of up to 2% on high-value real estate transactions that exceed $2 million dollars, subject to exemptions (“Transfer Fee Home Rule”). Enacted, the Transfer Fee Home Rule could generate as much as $169 million per year for affordable housing in Boston, vastly outstripping current resources at the City’s disposal. Municipalities as different as Somerville, Concord and Nantucket have also proposed transfer fees to fund their affordable housing, and 38 states and localities already have excise taxes on property sales.
Boston also has a pending home rule bill to authorize the City to update its existing Development Impact Program (“Linkage”) and Inclusionary Development Policy (“IDP”) which are each intended to mitigate the increased demands for affordable housing and job training attributable to large-scale developments. HB 4115. Enacted, HB 4115 would permit the City to make its own decisions to adjust the linkage fees to enable Boston to align more efficiently with changing market conditions and local needs without waiting for approval of the full General Court as currently required by statute; extend the IDP requirements (e.g., to create 13% of development as income-restricted units or contribute equivalent funds) which currently apply only to market-rate housing developments with 10 or more units and are in need of zoning relief, to all large projects regardless of whether zoning relief is needed; and codify the IDP into Boston’s Zoning Code.
Inclusive Zoning and Planning
Several “large projects” subject to Boston’s Article 80 Development Review and Approval process–including the former Suffolk Downs race tracks in East Boston, the Bunker Hill public housing in Charlestown, and the Mary Ellen McCormack public housing in South Boston–provide the City with unprecedented opportunities to shape entire new neighborhoods that provide an inclusive range of housing options to accommodate the City’s diverse population, while disrupting historic concentrations of poverty and patterns of racial and cultural segregation and providing access to employment and training opportunities for affected residents.
For public housing redevelopments, this may mean ensuring that income-restricted units are integrated with the market-rate units, whereas in purely private developments like Suffolk Downs, it may mean planning to ensure sufficient “affordable units” of the right bedroom size to house families and a community benefit agreement to mitigate meaningfully against adverse development impacts and hardships. I have proposed a zoning change for Boston to systematically ensure that all developers undertake deliberate and “meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” This change would amend the text of Boston’s Zoning Code to expressly incorporate our preexisting federal Affirmatively Furthering Fair Housing obligations. Seattle and Portland, for example, already review their plans with a lens for racial equity and displacement risk along with opportunities for economic growth, to inform their choices.
The City also recently strengthened its comprehensive planning under the Climate Ready Boston Initiative by passing an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston to ensure the equitable protection of all residents from the effects of climate change.
Boston has been taking aggressive steps to address the chronic housing crisis since October 2014 when the mayor’s Housing Advisory Task Force issued Housing a Changing City: Boston 2030, which was updated in 2018. The original Plan called for the production of 69,000 new housing units by 2030 with specific targets for different affordability levels in an effort to create a more equitable and inclusive City. Beyond production, the City also dedicates funds to support the acquisition and deed-restriction of properties as affordable housing, regulates and restricts short-term rentals, protects against condominium conversions, and supports a right to counsel in eviction proceedings––all measures intended to protect residents, especially long-time, low-income, elderly, and disabled tenants, against involuntary displacement. The City also created the Office of Housing Stability (“OHS”) in 2016, the first of its kind in the nation, to work across City departments and with external partners to promote policies, practices, and programs that are effective in achieving housing stability for tenants at risk of eviction, which is also critical to stabilizing communities like Boston where the majority of the population is renters.
Other high-cost cities also have passed right to counsel legislation, and some states such as Oregon, California and New York are moving towards rent stabilization policies which would allow rent increases but prohibit increases as high as those experienced by many Boston residents. These states, as well as Boston, have also looked to “just cause eviction” policies in efforts to protect tenants current with rent and who otherwise have not broken their lease agreements.
Additionally, to encourage home ownership, Boston has expanded the availability of low-interest loans to moderate-income families through the ONE+ Boston program and approved zoning to allow for accessory dwelling units. Other policies which support resident-controlled housing, such as cooperatives, cohousing and community land trusts; the co-ownership of such housing by residents; and a resident’s right of first refusal to purchase, would each promote community stability, as well as individual opportunity to gain equity and build wealth.
Boston’s housing affordability crisis is not abating, and our response has not scaled up to protect all residents. With bolder action, we can create lasting stability in neighborhoods and reverse historic patterns of discrimination and dispossession in our real estate market, as well as in zoning and planning decisions. To achieve community stability we need a multifaceted approach to the housing shortage that is responsive to the diverse needs of all residents and to historic inequities and barriers to enabling them to remain in place and housed in their communities of choice.
Lydia Edwards has spent her entire career as an advocate, activist, and as a voice on behalf of society’s most vulnerable. She served as the deputy director within the Mayor’s Office of Housing Stability, as a public interest attorney with Greater Boston Legal Services focusing on labor issues, and she currently represents District One on the Boston City Council. For the 2020-2021 council session, she serves as Chair of the Committees on Housing and Community Development and Government Operations.
by Olympia Bowker
With Massachusetts’ housing affordability crisis showing no signs of abating, it imperative to consider new, creative solutions. A 2018 Boston Magazine analysis of over 150 Massachusetts cities and towns revealed the lowest median home price in one municipality was $255,450; the highest was $1.9M. Contrast these figures with the roughly $60,000 retail cost of a Tiny House, and it is no wonder that these diminutive abodes appear tempting as affordable options. But can they play a meaningful role in ameliorating the affordable housing crisis in Massachusetts? And can the Community Preservation Act (“CPA”) help spur a Tiny House trend in Massachusetts?
Tiny Houses: What Are They, and Are They Prohibited?
A “Tiny House” is defined by the 2018 International Residential Code (“IRC”) as a dwelling that is 400 square feet or less in floor area excluding lofts used as a living or sleeping space. Generally, Tiny Houses look like miniature versions of traditional houses; they can feature tiny modernist rooflines, colonial shutters, or Victorian gingerbread trimming. They can be built either on trailers or fixed foundations—a key distinction for affordable housing purposes.
While attention is often on the high-end Tiny House market that focuses on minimalist lifestyles and carbon footprints, experiments nationwide highlight the value of “tiny house villages” to address homelessness. With the wait times for affordable housing in Boston lasting years, urgency must beget innovation here as well.
Notwithstanding the growth in Tiny Houses as a social and architectural movement, long-standing provisions of many municipal zoning bylaws and ordinances ignore, if not effectively prohibit, Tiny Houses. In Massachusetts, a wheeled Tiny House is legally treated as a recreational vehicle (“RV”), mobile home, or trailer that must be registered with the state and used as such (i.e., not parked year-round other than in a designated area), and is often barred by or heavily regulated under local zoning laws as undesirable.
If a Tiny House is built on a foundation, it must comply with zoning and building codes applicable to single family residential dwellings, including minimum square footage, lot and building size, and setback requirements. For example, Holliston Zoning Bylaw §V(D) has a 600 square foot minimum for floor area, effectively prohibiting Tiny Houses as defined under the IRC. But with the housing shortage at crisis levels, notwithstanding the still-developing zoning and construction standards, high land prices, and political tensions, these small-segment models of housing shouldn’t be overlooked.
Tiny Houses as Stock for the Subsidized Housing Inventory under G.L. c. 40B
To incentivize communities to adopt zoning changes to allow Tiny Houses, it is important to note that Tiny Houses constructed for low or moderate-income households may be countable toward a municipality’s Subsidized Housing Inventory (“SHI”) for purposes of the “Comprehensive Permit Law,” G.L. c. 40B. To qualify as SHI, the unit must be “affordable” to households earning at or below 80% of the Area’s Median Income (“AMI”)—the rent or mortgage payment and related housing expenses (e.g., utilities) cannot exceed 30% of the household members’ annual incomes.
Since enactment in 1969, G.L. c. 40B, §§ 20-23 (“40B”) has served as the main statutory scheme to address the affordable housing shortage statewide. 40B includes an ‘anti-snob’ provision that empowers the Zoning Board of Appeals to override zoning requirements to approve “comprehensive permits” for denser, larger, and higher developments than would otherwise be allowed under local regulations if the municipality has not met its “safe harbor” threshold for SHI: either at least 10% of a municipality’s total housing stock must be “affordable” or more than 1.5% of municipal land must be dedicated to SHI. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). If a municipality meets neither SHI threshold, 40B dramatically relaxes local control over approval of comprehensive permits for housing developments that contain 20-25% affordable units.
Even after 50 years of 40B incentive, as of 2017, Massachusetts municipalities had an average of 9.7% SHI, and only 67 of Massachusetts’ 351 municipalities were at or above the 10% SHI threshold. Tiny Houses that qualify as SHI would be more attractive to municipalities because they would count towards the 10% safe harbor threshold for 40B purposes.
But in order to qualify for SHI, Tiny Houses have to be allowed in the first place.
Crafting Tiny Zoning
Municipalities can start by explicitly including Tiny Houses in their zoning: write Tiny Houses into tables of uses, and define whether they can be used as accessory dwellings, secondary or tertiary structures, or as stand-alone residences. Definitions should address whether they can have wheels, or whether they must be built upon a foundation.
Carefully crafted Tiny House zoning can provide housing stock that fits within the character of towns by allowing continued municipal control over massing, setbacks, aesthetics, and other elements which municipalities would otherwise relinquish under the traditional 40B system.
Further, creation of an overlay district for Tiny House villages could provide for maximum square footage, smaller setbacks, and smaller lot of sizes in certain areas. In such scenarios, preexisting non-conforming lots may become buildable. With creative zoning such as cluster developments, more homes could be built in smaller areas.
In 2016, Nantucket enacted a zoning bylaw amendment that explicitly allowed Tiny Houses that comply with the International Building Code. While industry standards did not align at the time to permit prefabricated Tiny Houses under that ordinance, future iterations of bylaw changes and changes in the industry specifications can address those types of mismatches going forward.
Leveraging CPA Funds
The CPA can serve as a catalyst for a Tiny House trend by subsidizing construction or land acquisition for Tiny Houses that count towards SHI thresholds. One way the CPA helps communities create affordable housing is by establishing a “community preservation fund,” which is fed by a local tax of up to 3% on real property.
The CPA defines affordable housing as “community housing” that serves households at or below 100% of AMI. CPA funds can support many types of activities in furtherance of affordable housing, including construction and property acquisition. Municipalities can neutralize land costs by acquiring buildable land, which not only can enhance feasible development possibilities, but also allow more control over design and location of development.
Tiny Houses created with or assisted by CPA funds can be included in a municipality’s SHI through compliance with the Department of Housing and Community Development (DHCD)’s Local Initiative Program, which requires the unit to be created as a result of the municipality’s action or approval. The unit will be sold or rented on a fair and open basis subject to an affirmative fair marketing and resident selection plan approved by DHCD; be affordable to households below 80% AMI; and have its permanent affordability secured by Department use restrictions. CPA funds used to purchase land for Tiny Houses also incentivize partnerships with developers, such as through subsidies or by allowing the developer to build on municipal land.
Tiny Houses are not the silver bullet, as the resident pool for such housing is admittedly small, but they offer one more means to create much-needed inexpensive housing for single or double occupancy – a segment not prioritized in the current 40B scheme. By considering the interests of citizens, cities and towns, and affordable housing proponents, they can perhaps expand housing options and increase supply – at least a tiny bit.
Olympia A. Bowker is an associate at McGregor & Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, zoning, and regulatory matters.
by Melissa Garlick
Since 2017, college and university students across the country, including in Massachusetts, have noticed their campuses papered with fliers declaring, “It’s OK to be white” – a phrase with a long history in the white supremacist movement.
What may be surprising to some is that –although the seeming purpose of this coordinated effort by white supremacists is to propagandize, stoke fear, spread hate, and divide campus communities – these fliers are constitutionally protected speech.
While hate speech on campus is generally protected speech, that is not the end of the matter. Administrators and the campus community must recognize and prepare to address the harm that can stem from such speech on campus. A clear and forceful response to constitutionally protected hate speech will prevent protected speech from escalating to bias-motivated crimes and will ensure an inclusive climate where all community members feel safe and welcome.
Free Speech vs. Hate Crimes
The flyer incidents illustrate the important –yet often overlooked – dividing lines between free speech and hate crimes. Even some of the most heinous speech is not criminal, but rather, is largely protected by federal and state constitutions. The ability to express controversial and even offensive ideas is a cornerstone of our nation’s democratic ideals; it is one of the principal ways our nation is distinguished from many countries around the globe where expression of unpopular viewpoints can be – and often is – punished.
In order for an incident to be considered a hate crime, there must be a criminal offense – designated by statute – specifically and intentionally targeting an individual or property in whole or in part because of the victim’s actual or perceived race, religion, national origin, gender, gender identity, sexual orientation, or disability. See e.g., M.G.L. c. 265, § 39; 18 U.S.C. § 249. Such criminal acts become hate crimes only where the perpetrator intentionally selects the victim because of the victim’s personal characteristics. Id.Even more common than hate crimes on colleges campuses, are bias incidents (also referred to as hate incidents), in which a person makes bigoted or biased comments to another individual, distributes hate literature (like the aforementioned flyers), or conducts other similar other non-verbal communication. Although they are not hate crimes and often do not violate criminal or civil law, bias incidents nonetheless can be deeply hurtful and offensive.
Hate Incidents on College/University Campuses
Every year, thousands of students are the victims of hate crimes and bias incidents on college campuses, including bias-motivated slurs, vandalism, threats, and physical assaults. According to Federal Bureau of Investigation (FBI) statistics, schools and colleges/universities remain the third most-frequent location for hate crimes.
Over the past year, the Anti-Defamation League (ADL) has tracked not only a spike in anti-Semitic and hateful incidents on campus, but has documented the changing nature of incidents and their profound impact on communities. Reports of hate rhetoric and bias incidents, including anti-Semitic and racist graffiti, extremist speakers, and racist fliers, have increased markedly. Although most of those incidents would not qualify as hate crimes or be even criminally punishable, they are deeply painful to individuals and campus communities.
For example, on Valentine’s Day in 2017, gift bags were distributed to students at a Central Michigan University student group meeting including a card that read, “my love 4 u burns like 6,000 jews” [sic] and featured a photograph of Adolf Hitler. Even though the creator/distributor of the valentine card turned out not to be a student, the impact of the incident resonated through the campus community. University President George Ross issued a forceful statement and more than 100 faculty members issued an open letter to the University community. The letter stated: “First and foremost, we stand in unflinching solidarity with Jewish communities on our campus and beyond. We uphold you now and always. We will do everything in our power to protect you . . . .” This incident did not involve speech that crossed the First Amendment line into criminal behavior. However, the strong University response underscores the significant impact of such incidents on a person’s sense of value and belonging in a place of learning that they also call home. When hate speech appears on campus that is demeaning to a group of people and contradictory to the values of diversity and inclusion – though it may be protected by the First Amendment – trust is eroded and communities need to heal.
ADL also has tracked a dramatic uptick in incidents of white supremacists targeting college campuses via the distribution of literature, speaking engagements, or trolling/harassment efforts. Colleges and universities are traditionally seen as bastions of free speech; white supremacists capitalize on that by intentionally designing their efforts and words (e.g., the “It’s okay to be white” fliers) to fall under the umbrella of free speech. Since September 2016, ADL has tracked more than 500 incidents of white supremacist propaganda on college and university campuses, with almost 300 such incidents occurring during the 2017-18 school year. The vast majority of white supremacist campus actions involve hateful fliers (“Imagine a Muslim-Free America”) and stickers (“Make American White Again”), but white supremacists also have sent anti-Semitic faxes and delivered highly publicized on-campus speeches.
Considerations for College/University Administrators
As early as the 1600’s, John Milton introduced the now familiar concept of the “marketplace of ideas” which, in essence, posits that “the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting). Yet, this marketplace is not self-executing. It depends on people’s willingness to respond to words which are intended to demean, humiliate, and deride. Educational institutions must take into account that historically marginalized and other minority groups are under a greater burden and may be unable to adequately respond when speech targets their personal identities and sense of self. It is critical that colleges and universities speak and act, both against hate and toward a civil learning environment that values inclusion, equity, and open expression.
Reporting hate crimes on campuses, for example, is a crucial part of successful prevention of hate incidents. In 1998, Congress enacted an amendment to the Higher Education Act requiring all colleges and universities that receive federal aid to collect and report hate crime statistics to the Department of Education (ED). See Clery Act, 20 U.S.C. § 1092 (f)(1)(F). Currently, colleges and universities must report hate crime statistics for all campus crime categories.
Unfortunately, however, the ED’s current hate crime statistics reflect substantial underreporting. Indeed, the majority of hate crime victimizations go unreported. Colleges and universities have tended to either report the crime without indicating that it was bias-motivated or fail to report the crime at all. Such underreporting is underscored by the fact that the limited ED data conflict with campus hate crime information collected by the FBI under the Hate Crimes Statistics Act, 28 U.S.C. § 534, although the same reporting criteria apply.
Reporting hate crimes and training campus police should be a part of broader response protocols established by colleges and universities to quickly and effectively address hate crime incidents and build trust within campus communities. Campus police should take seriously all reports and allegations of hate crimes and incidents, bias, vandalism, graffiti, and flyering.
University administrators and campus stakeholders have a responsibility to use their own expressive rights to challenge and confront heinous ideas, rather than attempt to ignore them or stifle discussion. Faculty and students should be educated on the parameters of their First Amendment free speech rights and campus response policies and plans should be updated.
Ultimately, the most effective responses and prevention measures by colleges and universities are those that clearly recognize the harmful impact bias incidents have on campus communities, regardless of legal distinctions between hate crimes and bias incidents. It is only through strong action and counter-messaging that trust can be maintained, communities can heal, and the rising tide of hate on campuses may be stemmed.
 The fliers are a byproduct of a larger trolling campaign that emerged out of 4chan, a popular internet discussion forum infamous for the studied offensiveness of many of its members and its association with the white supremacist alt-right movement. See “From 4Chan Another Trolling Campaign Emerges,” ADL, Nov. 6, 2017, available at https://www.adl.org/blog/from-4chan-another-trolling-campaign-emerges.
 See Clery Act Requirements, Crime Categories Covered, available at https://clerycenter.org/policy-resources/the-clery-act/.
 See “Majority of Hate Crime Victimizations Go Unreported to Police,” Office of Justice Programs, Bureau of Justice Statistics, June 29, 2017, available at https://www.bjs.gov/content/pub/press/hcv0415pr.cfm.
 See, e.g., Rocheleau, Matt, “UNH stats showing no hate crimes in recent years raises red flag, experts say,” The Boston Globe, June 8, 2017, available at https://www.bostonglobe.com/metro/2017/06/08/unh-stats-showing-zero-hate-crimes-recent-years-raises-red-flag-experts-say/oEnPB4mYd0keau6vFpA4CP/story.html.
 For additional guidance, see Hate/Uncycled: ADL Resource for Administrators and Law Enforcement Teams, available at https://www.adl.org/media/11138/download (2018); Hate Crimes On Campus: The Problem and Efforts to Confront It, U.S. Department of Justice Bureau of Justice Assistance, available at https://www.ncjrs.gov/pdffiles1/bja/187249.pdf (October 2001).
Melissa Garlick is the National Civil Rights Counsel at the Anti-Defamation League (ADL), a non-profit organization dedicated to combatting bigotry, prejudice, and anti-Semitism. She is a member of the Civil Rights and Civil Liberties Steering Committee of the BBA.