Don’t try to flout the Housing Choice law

Communities that do are going to end up in court

MASSACHUSETTS HAS residential segregation problem.  The issue is particularly pronounced in Greater Boston, where communities of color are tightly packed into environmentally hazardous areas and the racial home ownership gap continues to widen.  Entrenched segregation cannot be fixed overnight, but the Commonwealth recently enacted a Housing Choice law that aims to begin the process.  To have any chance at success, the law must be implemented as intended.

Many different factors have contributed to Greater Boston’s housing segregation over the years.  Those include redlininglending discrimination, and particularly “exclusionary zoning.”  Exclusionary zoning is the practice of imposing rules that inhibit the development of low-income housing.  For example, many cities and towns have zoning laws that severely restrict where affordable multi-family homes can be built.  Others impose large lot size requirements for new homes, which inflate housing costs.

Although these kinds of zoning rules may seem neutral, they effectively concentrate lower-income families – who are disproportionately people of color – in high-poverty areas away from middle-class and affluent neighborhoods.  This, in turn, contributes to a significant racial opportunity gap, particularly with respect to education.

Most municipalities in Greater Boston only allow multi-family zoning on a small percentage of their land.  With zoning priorities skewed toward expensive single-family homes, it’s no wonder that Greater Boston remains highly racially segregated and mired in an affordable housing crisis.  That’s where the Housing Choice law comes in.

The new law, passed in 2020, seeks to increase housing stock by requiring cities and towns to take small – but critical – steps to generate affordable housing.  For example, it compels 175 municipalities near MBTA service to provide for at least one multi-family zoning district of “reasonable size” within the next few years.  Any covered community that currently lacks such a district must submit an “action plan” to the state by January 31, 2023 in order to achieve interim compliance.  Cities and towns that fail to meet the relevant compliance deadlines will become ineligible for certain types of state funding.

Unfortunately, there are already troubling signs of push-back from the Boston suburbs.  The law’s passage sparked howls of protest from municipalities that prefer to maintain the status quo.  Even after the state scaled back requirements for many covered communities, opponents of the law began challenging it in court and wondering aloud if they could just ignore it.

The short answer is “no.”  The law is phrased in mandatory terms, which require compliance from covered jurisdictions.  And, importantly, non-compliant municipalities risk more than just state grant ineligibility.  Flouting the law will generate significant liability as municipalities will incur lawsuits filed by families of color who are locked out by segregated housing patterns.  On top of that, taxpayers will be saddled with the cost of protracted litigation.

Federal fair housing law also looms large.  Exclusionary zoning practices have long been successfully challenged under the Fair Housing Act, which forbids local zoning policies that have an unjustified discriminatory effect.  While the Trump administration sought to weaken federal fair housing policy, Lawyers for Civil Rights secured a nationwide injunction blocking that rollback in federal court.  Covered communities should think twice about defying the Housing Choice law, as doing so will invite Federal Housing Act challenges.

The next two months will be critical for fair housing in the Commonwealth.  Non-compliant Housing Choice communities must submit action plans, and we urge the Department of Housing and Community Development  to enforce the law aggressively.  A soft touch won’t spur the kind of progress that the law requires and the Commonwealth needs.  Civil rights advocates stand ready to compel compliance from recalcitrant suburbs in court should that be necessary.

To be sure, the Housing Choice law is no silver bullet.  But it’s an important and necessary step on the path toward greater racial and socio-economic diversity and lower housing costs across our communities.  Those goals will strengthen our Commonwealth as a whole.

Jacob M. Love is a staff attorney and Oren M. Sellstrom is litigation director at Lawyers for Civil Rights, a Boston-based legal organization. Love spearheads the organization’s fair housing practice.