Is the Patrick Administration Preparing Test Case Litigation Against Municipalities?

Deborah Goddard, DHCD Chief Counsel   

Governor Patrick’s Housing Chief, Aaron Gornstein, recently published a 309-page report examining barriers to affordable housing for disadvantaged members of our society.  The report, titled Analysis of Impediments to Fair Housing Choice, is particularly critical of municipal zoning and environmental protection laws, that Gornstein says are exclusionary to lower-income households.  On page 217, the report observes that suburban communities that “offer high-quality education, economic opportunity, and excellent public health outcomes are not accessible to persons of color and with disabilities, thereby perpetuating residential segregation.”  Despite the implication, the report does not specifically point to evidence that municipalities are intentionally excluding such populations, but rather are not facilitating inexpensive housing that would serve more people of color and with disabilities.

There are two important “take aways” from this report.  First, it presages a significant regulatory change under Chapter 40B. Sometime in 2014, the Department of Housing and Community Development with either amend its regulations or adopt a policy change that will give less weight age-restricted housing as compared to non-age restricted housing in a municipality’s Subsidized Housing Inventory.  This means that in cities and towns where Chapter 40B projects were approved with the expectation that the affordable units would help them achieve the “holy grail” 10% threshold under the statute, those units will suddenly have less value; either they will not count, or will count less, towards the 10% mark.  The likely result is that the 10% target will be moved farther away, requiring even more Chapter 40B projects to be approved to get to the elusive 10% goal.  

Second, in a strikingly candid shot across the bow, the Patrick report lays out the legal basis for a “test case” discrimination lawsuit that could be brought against municipalities with high housing costs.  In a section starting on page 239, the report suggests that legal action could be modeled after the historic “Mount Laurel” rulings from the New Jersey Supreme Court, basing a fair housing claim on the state’s constitution.  The theory, laid out in the report, is that zoning laws that restrict multi-family housing by right have the effect of excluding lower-income families, which are disproportionately minority and disabled populations.   The report states that “a legal challenge might focus on the extent to which municipalities have a pattern of denying family low income housing developments and/or imposing limiting conditions (eg, relative to bedroom distribution, age restrictions, income levels below 80% AMI, local residency preferences) that are ultra vires of its zoning authority under Chapter 40B.”  

For the last several years, the Chief Counsel at the Department of Housing and Community Development has hinted at such a challenge, viewing otherwise reasonable growth management techniques as sinister

attempts to pull up the gates to exclude minorities and families with children.  Recognizing that these same communities are the ones with “high quality education” and “excellent public health outcomes,” the Patrick Administration’s answer seems not to be on improving the quality of life in the urban areas where housing is already inexpensive, but rather to artificially force housing prices to come down in areas where quality of life is already high.  However, this strategy requires communities to set aside growth management, planning and environmental concerns and forces urbanization and population growth in communities that have legitimate and rational (i.e., non-racist) reasons to resist.  The report does not mention how communities like Newton, Cambridge and Brookline, all of which have significant multi-family housing populations, fare in terms of housing affordability.  Housing does not become affordable in affluent communities merely by making it condos or apartments - affordability requires market restrictions such as rent control, which was about as popular in Massachusetts as the black plague.

This report should be a wake-up call to municipal leaders across the Commonwealth.  The Patrick Administration is clearly contemplating legal action, whether brought by the Commonwealth or one its proxies in the private non-profit sector.  

 State HAC Rejects Andover Planning Defense in 40B Appeal

Werner Lohe, Chairman of the Housing Appeals Committee 

In another setback to municipal planning efforts, the state Housing Appeals Committee overturned a local zoning board of appeals denial of a Chapter 40B comprehensive permit to construct 248 apartments in an office and industrial park in Andover.  The case is Hanover R.S., LP v. Andover ZBA, HAC No. 12-04 (Dec. 17, 2013).  

The ZBA’s denial was predicated on the incompatibility of siting a large housing community in an isolated part of town, where residential uses were otherwise prohibited under the Town’s zoning bylaw.  Andover’s defense was buttressed by its relatively successful track record in permitting affordable housing, just below the state’s 10% benchmark at 9.3%.

Consistent with most of its prior rulings on this subject, the Committee discounted Andover’s housing initiatives and master planning efforts, and found that despite the Town’s proximity to the 10% holy grail threshold and the legitimacy of the Town’s planning efforts, the “regional need for housing” still outweighed these concerns. Senate Bill 72, sponsored by Jamie Eldridge of Acton and pending in the Joint Housing Committee where he is the chair, would amend Chapter 40B to allow denials based on an incompatibility with an affordable housing plan, where the plan has designated a viable alternative location for the proposed project.  Senator Eldridge’s bill contains a number of other commonsense reforms to the statute.