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Zoning to Affirmatively Further Fair Housing

The Fair Housing Toolkit brings together available resources to help appointed and elected leaders, municipal planning, housing and redevelopment officials, developers, citizen board members, and other volunteers understand how to affirmatively further fair housing.  Zoning is a critical tool used at the local level to shape a municipality through requirements and incentives for land use.   This section demonstrates the fair housing implications of zoning and land use regulation to help planning boards, zoning boards and municipal planning staff meet the obligation to affirmatively further fair housing.   Zoning implements the master plan and can help create diversity of housing opportunities.  The courts have also made it clear that zoning cannot discriminate against protected classes.  As a further introduction to issues of fair housing and equity, the Metropolitan Area Planning Council has prepared the State of Equity in Metro Boston with a series of indicator reports monitoring progress toward achieving equity goals.

What is the need to link fair housing to zoning?

Historically, there have been policies that have led to segregation throughout the Greater Boston region.   The Fair Housing Center of Greater Boston (FHCGB) has created an interactive timeline demonstrating how the intentional and unintentional policies of the past created patterns of segregation that remain today.

FHCGB’s research, Historical Shifts from Explicit to Implicit Policies Affecting Housing Segregation in Eastern Massachusetts details these stages of development.   While redlining institutionalized racial segregation in the cities, it was the development of the suburbs via the construction of Route 128 that magnified the effects of segregation by increasing the physical separation between whites and people of color. Municipalities responded to the subsequent in-migration of jobs and people to the suburbs by enacting rigid zoning ordinances.  Zoning regulations were created to control density, protect open space, with a subsequent increase in housing prices. Strict zoning restrictions are still in use today and have a disparate impact.  Because they limit affordability and number of rental multifamily housing opportunities, these restrictions can have a disparate impact particularly for protected classes.

During the 1950s, towns like Lincoln and Weston, threatened with a massive inrush for single family housing on their graceful stretches of farmland, were among the first to protect themselves in this way. The magnitude of the demand for any kind of housing raised the price of older housing stock and raised rents. This created a serious problem for persons outside the labor force and lower income households. Little if any public housing was constructed in the communities adjacent to Route 128 during this period. In this way, persons in the lower income group were squeezed out of the more affluent towns or filtered into the older dilapidated sections of the less affluent ones. The suburbs became increasingly homogenous with respect to income.¹

MAPC projects that, if current zoning trends continue, by 2035 more than 85% of new housing in developing suburbs of Metropolitan Boston will be large, expensive single-family houses on lots of one acre or more. This may lead to a lack of modestly priced housing for young families, municipal employees, and minorities in locations where much of the region’s job growth is projected to occur. ²

Maps created by the FHCGB illustrate how current zoning practices – multifamily zoning, age restricted zoning, minimum lot sizes – impact communities of color and perpetuate segregation.

¹ Massachusetts Advisory Committee to the U.S. Commission on Civil Right and the Massachusetts Commission Against Discrimination.   Route 128: Boston’ Road to Segregation.  January, 1975.
² MAPC.  MetroFuture Trendlines #3.

What is the legal and regulatory guidance on zoning and fair housing?

In February 2013, HUD published the Implementation of the Fair Housing Act’s Discriminatory Effects Standard Final Rule, describes policies, practices or services that appear neutral on the surface, but, in practice, disadvantage protected class members and/or perpetuate segregated housing patterns.  Municipalities have the obligation to analyze and modify rules, policies, and practices that have potential discriminatory effects.

The effects of exclusionary zoning policies and practices are at the core of the Westchester False Claims case and its resulting settlement agreement.  The Department of Justice argued that exclusionary zoning practices in Westchester’s predominantly white, affluent suburbs have limited housing access for low income residents of color.  In order to fulfill its obligation to affirmatively further fair housing, the county must remove exclusionary zoning barriers and institute policies to reverse their effects.  After failing to comply with many settlement terms, in September, 2013, HUD reallocated $7.4 million in CDBG, HOME and ESG funds from Westchester County to other eligible jurisdictions.

Multiple legal cases hinge on the fair housing implications of zoning policies. Please see the Fair Housing Case Law section for specific examples.

What policy areas are of particular concern for fair housing implications?

  • Design preferences – Municipal design preferences for certain housing types, such as single family units or multi-level townhouses may have an unintended discriminatory effect based on race or disability.
  • Maintaining Housing – It is illegal to target members of any protected class for unequal enforcement of building, maintenance, safety or sanitary codes. It is necessary to distinguish between (a) the need to enforce property maintenance codes against substandard housing in which people live, including protected class members, and (b) the specific targeting of housing where protected class members live for more stringent inspections in order to remove them from their homes or to unnecessarily condemn their dwellings.
  • Reasonable Accommodations – A municipality is required to provide reasonable accommodations for persons with disabilities when it is necessary to provide them with equal housing opportunity. This may include, for example, granting a variance under the local zoning ordinance.  The City of Newton and the Newton Housing Partnership negotiated with the developer of Parkview Homes, a 40B project, to insure accessible housing was available in the development.  The Partnership then supported the development before the Zoning Board of Appeals, which gave its approval.  The City of Lynn’s Zoning Board of Appeals gave approve to a variance for the Lynn Home for Woman.  This development of 40 affordable units in 2 existing buildings included housing for persons infected with AIDS or HIV.  Another example of reasonable accommodation in zoning administration is for the removal of architectural barriers for people with disabilities.  Often municipalities will grant a variance for setback requirements for entrance ramps.
  • Redevelopment Plans – In planning for redevelopment it is essential to consider the impact of development plans on existing residents of the area being redeveloped.  If the housing that will be demolished includes a large number of residents who have protected status then there may be a discriminatory effect if these residents are displaced.  One way to address this concern is to ensure that the residents of the area being redeveloped are directly involved in the redevelopment planning and decision making process.Anti-displacement strategies can be used to insure that redevelopment has minimal adverse impact on existing residents and policies and procedures are in place to insure that residents have adequate replacement housing.  Low- and moderate- income households in particular can be affected by development activities or market changes that take place in their neighborhoods.  The U.S. Uniform Relocation Act should be consulted regarding redevelopment plans and relocation actions.  MAPC has developed a matrix of case studies showing anti-displacement strategies.
  • Site Selection – Since patterns of segregation may establish a basis for a housing discrimination complaint, through evidence of discriminatory intent or effect, it is important to consider such trends in making locational decisions.
  • Special Permit and Review Process – Many municipalities in Massachusetts do not allow multi- family housing by right, even in designated multi-family zoning districts.  Special review and permitting can impede affordable housing development, perpetuating patterns of segregation

What are some examples of steps municipalities should consider to affirmatively further fair housing?

No one zoning policy or practice is on its own the solution for affirmatively furthering fair housing. Each policy must be examined according to how it advantages or disadvantages groups protected under fair housing laws.  This requires conducting a disparate impact analysis using data sources such as Metro Boston DataCommon and the HUD Prototype Geospacial Tool.   Such policies can serve to affirmatively further fair housing by using affirmative marketing requirements.

Adopting overlay districts
The overlay district is an innovative tool in Massachusetts to meet a variety of land use goals.  An overlay district can provide protection for natural resources.  Often, the overlay district is used to incent housing production.  Municipalities can use the provisions of these districts to affirmatively further fair housing by prioritizing a detailed and actionable affirmative fair housing marketing plan. For any overlay district, specific fair housing needs can be given priority for developer selection or approval.  For instance, two preferences can be specified: units with 3 or more bedrooms to accommodate families and units that meet visitibility standards.

The 40R program for the Commonwealth of Massachusetts provides incentives for overlay districts for affordable housing.  Since the program began in 2004, 33 districts have been adopted in 31 communities.   The state provides financial incentives to the municipality for adopting the zoning and streamlining the development process.  The program has been affected by a weak real estate market for residential development.   Housing built under 40R must have an affirmative marketing plan and at least 20% of the units must be affordable.   MAPC has prepared an extensive report on the first several years of the 40R program, including a profile of the districts and the municipalities.  For approval of a 40R, the municipality receives a letter of eligibility and brings the 40R by-law to town meeting or city council for approval. Chapter 40S compliments 40R by adding financial incentives to qualifying municipalities enacting 40R to help cover the costs of educating any school-age children who move into these districts.  The financial incentive follows a formula concerning increased local revenue and state education funding.  The Massachusetts Executive Office of Housing and Economic Development provides an overview of the 40R and 40S program, with additional sources for information.

A key document for instituting the 40R program is a housing needs analysis, often referred to as a housing production plan.   The Massachusetts of Housing and Community Development (DHCD) provides guidelines for Housing Production Plan, including affirmatively further fair housing.

Mixed Use Zoning
A guide to mixed use zoning, compiled by MAPC, is based primarily on the experiences of five suburban municipalities that have prepared bylaws toward this end. MAPC also investigated the mixed use experiences of other municipalities in the region and elsewhere in the state.  Municipalities encourage proposals for special permit approvals for mixed-use developments in otherwise single use commercial zones.   In exchange for the permit approval, the developer can be required to include affordable units, accessible units, units with 3 or more bedrooms, or other priorities identified to affirmatively further fair housing goals.

Inclusionary Zoning
Inclusionary zoning uses mandatory requirements and development incentives to help create affordable housing.  Inclusionary zoning bylaws may only apply to certain types of development, such as new construction or substantial rehabilitation, requiring a minimum percentage of low and moderate income housing.   The unit threshold that triggers the inclusionary zoning provision should be related to the real estate market.  For instance in municipalities that are substantially built out, inclusionary zoning could apply to developments with fewer units.   Often, density bonuses help to make the program work in the marketplace.  Inclusionary zoning bylaws may include alternatives to dedicated units in the development itself.  For instance, some municipalities give developers the option of paying a fee per unit or building affordable units off-site.   The City of Somerville’s Inclusionary Housing Article, which provides for a density bonus, is triggered with 8 units and 12.5% of those units must be affordable.  The Article, part of the Zoning Ordinances, applies to new construction, substantial rehabilitation, Planned Unit Development, residential conversion, or adaptive reuse.    DHCD has created a model inclusionary zoning bylaw.    Inclusionary Zoning Guidelines for Cities and Towns by the Massachusetts Housing Partnership Fund outlines legal considerations and choices for zoning programs.

Linkage
Linkage fees generate income for housing programs, based on the concept that when commercial property is developed, there is a need for workforce housing.  A threshold of development is usually established to exempt smaller developments.     Linkage, typically implemented through the zoning ordinance, requires a vibrant development climate to succeed.  Policy Link provides an overview of commercial linkage strategies.   The City of Somerville also has a Linkage Article in the Zoning Ordinances providing for a “project mitigation contribution”.  This fee is assessed on commercial development over 30,000 square feet.  For every square foot of building over that number, a fee of $3.91 is assessed.   To support the linkage program, Somerville had a study completed to determine housing need and the impact of commercial development.

Inclusionary zoning policies, linkage fees, and density bonuses do not address barriers to equal opportunity unless they include affirmative marketing requirements. Increasing the number of affordable units in itself will not alter patterns of segregation.  Affirmative marketing is most effective when implemented regionally or as part of a regional plan.

Education and community involvement

  • Civic engagement to affirmatively further fair housing can create a platform for good policy, including land use regulation.
  • Training for municipal staff, board members and other will provide interactive guidance for policy change.