Discussing a single whereas clause in a non-binding proclamation celebrating the work of Newton’s Fair Housing Committee (and ultimately approving the entire proclamation), the City Council’s Zoning and Planning Committee (ZAP) this week overwhelmingly recognized the role that zoning reform has to play in the City meeting its obligation to “affirmatively further fair housing.”

Councilor Alicia Bowman drafted and gathered eleven co-signers (so far) for a proclamation intended to recognize — as April is Fair Housing Month — the important work that the city’s Fair Housing Committee does. Consideration of the proclamation was an item on the ZAP agenda on Monday night and passed 6-0 (2 abstentions).

During discussion, there was a single proposed amendment, to remove the following whereas clause:

Whereas the Fair Housing Committee’s expertise and focus will be important in addressing other action items from the Analysis of Impediments, including the review of restrictive zoning policies that limit the amount of multifamily and affordable housing, as well as compliance with recently passed state legislation that requires the creation of at least one by-right multifamily zoning close to transit.

The amendment to remove the clause failed 2-6, with only Councilors Lisle Baker and Pam Wright voting aye.

The thirty-three minute discussion begins at roughly 2:21:35 on the NewTV video of the meeting and lasts until 2:54:30.

The contested clause gets to the heart of an issue that is core to the City’s Zoning Redesign initiative. What role does zoning play in making Newton racially and economically diverse? The support for the clause indicates that ZAP and other councilors at the meeting recognize that zoning plays a key role in promoting equitable and affordable housing.

Under the Fair Housing Act, any town or city receiving Housing and Urban Development (HUD) funds, needs to “affirmatively advance fair housing.” Fair Housing Commission Chair (and former alderman and ZAP chair) Ted Hess-Mahan explained at the meeting that the obligation to affirmatively advance fair housing is intended to reverse racial segregation in housing that is the result of government and other policies. Those policies include exclusionary zoning, like we have in Newton. It is not, as ZAP Chair Deb Crossley, limited to preventing “overt act[s] of discrimination at the point of sale or rent.”* It is, as FHC Chair Hess-Mahan said, about “promoting diversity in housing.”

Under the Fair Housing Act, a municipality receiving HUD funds must prepare an Analysis of Impediments, The Analysis of Impediments, despite the name, is not just an analysis of what impediments exist, but a five-year plan to reduce or eliminate impediments. Newton’s Analysis of Impediments, prepared as part of the WestMetro HOME Consortium, includes two relevant items in the “Strategy and Actions” list:

Each community will adopt policies and practices to support safe, diverse,  affordable, accessible, and integrated housing

  • Review zoning ordinances, bylaws, and practices to identify provisions that may encourage, unintentionally, discriminatory  practices in permitting residential uses, e.g., requiring fiscal impact  studies or excessive parking for multi-bedroom units, or age restricted housing definitions that prohibit occupancy by people under 18. The communities will identify ways to reduce the barriers they have imposed on multifamily residential development.
  • […]
  • Unless a community has already done so, each community will study, on its own or through a subregional compact, options to  reduce or eliminate single-family zoning by allowing two-family dwellings (at minimum) in all residential districts.  

(Emphasis added.)

The disputed clause simply notes the value the Fair Housing Committee can bring to an important, already existing obligation, as set out in the Analysis of Impediment five-year action plan, to review restrictive zoning policies. The clause also notes the newly enacted state law that obligates Newton, as a “transit community,” to create a transit zoning district, with density up to 15 units/per acre allowed by right.

What, then, are Councilor Wright’s and Councilor Baker’s objections? 

Councilor Wright said she thought that the Fair Housing Committee’s scope was limited to rules governing sales and rentals “and not producing low-income housing. I think that’s a separate bucket.” As Hess-Mahan explained, “‘affirmatively furthering fair housing’ is an obligation that city of Newton has, and it goes well beyond just merely creating affordable housing, it has to go to equal housing but also promoting diversity in housing.” Nonetheless, Councilor Wright voted in favor of the amendment to delete the clause and then abstained from the vote on the resolution as a whole.

Councilor Baker, who moved the amendment, similarly said that he believes that zoning policy “is different from housing discrimination” and that the discussion of zoning policy in the context of a resolution celebrating the Fair Housing Committee amounted to “baggage.” He said he’d prefer to debate the relationship between zoning policy and housing discrimination separately.

His colleagues weren’t having any of it. Councilor Alison Leary noted that “that’s a very critical paragraph and it really gets to the immediate problem with the difficulty with creating new housing opportunities” and simply rejected the notion that as “baggie that doesn’t need to be carried along. Councilor Andrea Kelley said, “I think it’s very important if we’re going to be making this sort of statement about furthering our fair housing goals that we include” reference to the Analysis of Impediments and, specifically, multi-family housing. Councilor Bill Humphrey made the point that it’s “basically undeniable that certain specific aspects of the zoning code have been identified, externally, as obstacles for low income housing development in Newton,” citing a zoning designation that would allow more affordably housing, but is not mapped to any specific district, requiring a would-be developer of affordable housing to go to the expense and bother of getting a zoning change. 

Far from baggage, Councilor Vicki Danberg said, “I read this clause as really being central to the goal of furthering fair housing.” Council President Susan Albright noted that governor and the state legislature, “passed the Housing Choice bill for exactly the kinds of reasons that Councilor Bowman’s resolution mentions to affirmatively further fair housing.” And, Councilor Josh Krintzman made the obvious and important point that “it’s indisputable that single-family zones limit the amount of multi-family housing. That’s not really a question.”

The committee discussion and rejection of the amendment to remove the clause amounted to a rejection of Councilor Baker and Wright’s denialism about the relationship of zoning to equitable and affordable housing. As the Analysis of Impediments makes clear, density and equity go hand-in-hand. We see that in our own city. The densest village, Nonantum, is also the most diverse.

Side note: depending on how you draw its boundaries, Nonantum has no or very little area zoned single-family-only.

Two minor, but important point. Councilor Baker made an appeal to comity and collegiality. He advocated for removing the zoning clause — what he called “minor surgery” — because it would make unanimous support for the proclamation more likely. His colleagues were having none of that, either. Councilors Leary, Kelley, and Bowman explicitly preferred keeping the clause in, even at the expense of unanimity. As, Councilor Kelley put it, “like Councilor Baker, I hope that the full council does all vote unanimously but if it doesn’t, […] I would be happy if it passes.”

He also argued that the zoning close in the proclamation to recognize the work of the Fair Housing Committee would, in a legal sense, amount to an admission against interest that might be held against the city in some future litigation. It’s discouraging to hear a city legislator worry about admitting problems to be addressed, in this case, the city’s exclusionary zoning and how it has created segregation and inequitable opportunity. Without acknowledging these problems, how can we fix them? But, that may be Councilor Baker’s point: he’s not interested in fixing them.

* All transcription of the meeting video is my clean up of the automatically generated real-time transcript. If I have made any mistakes, please let me know in the comments and I will update, accordingly.