Abstract
Well before gated communities began growing in the United States, many suburban municipalities could, and did, restrict who could live in them by using their zoning and land use powers. For example, requiring large minimum lot sizes and not allowing any multi-family housing made it impossible for lower-income people, who are disproportionately black, to reside in their community. These and other “exclusionary zoning” techniques have continued to be used by many suburbs to create non-visible, but highly effective, gates and walls to “protect” their middle and upper-middle class white residents from having “undesirable” people living near them. They have, thus, contributed greatly to the pattern of racial and economic segregation that has been found in most metropolitan areas in the United States since the mid-1960s. Since the late-1960s, civil rights activists have challenged such zoning regulations as discriminatory in a number of court cases with mixed results. The first effort to “open up the suburbs” via enacting a state law aimed at overcoming the effects of “snob zoning” was made in Massachusetts in 1969. Since then, civil rights and affordable housing activists in several other states have used this legislation as a model and have gotten similar “anti-snob zoning ” laws passed by their legislatures. The Massachusetts statute, its impact on the supply and geography of affordable housing in that state, the opposition it has encountered, and how and why its proponents have been able to prevent it from being repealed or seriously weakened are the focus of this chapter.
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Notes
- 1.
Taking note of these trends, a Presidential Commission reached the “disturbing conclusion” that the United States was moving toward becoming “two societies, one black, one white—separate and unequal” (Report of the National Advisory Commission on Civil Disorders 1968).
- 2.
272 U.S. 365 (1926).
- 3.
429 U.S. 252 (1977).
- 4.
The lawyers for the plaintiffs in the Arlington Height case had charged the zoning board of that Chicago suburb with violating Title VIII of the U.S. Civil Rights Act of 1968 (known as the Fair Housing Act). However, the language in that Act prohibited only intentional discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin. The Supreme Court’s Arlington Heights decision led civil rights activists to push the US Congress to revise the wording of that Act, and in 1988 an amendment to it was passed that added the words “or discriminatory effects” to it.
- 5.
- 6.
South Burlington County NAACP et al. v. Mount Laurel Township et al., 67 N.J. 151 (1975).
- 7.
South Burlington County NAACP et al. v. Mount Laurel Township et al., 92 N.J. 158 (1983).
- 8.
Low-income households are generally defined as those earning less than 50 % of the area median income; moderate-income households are usually defined as those earning less than 80 % of the area median income. “Affordable housing” generally means housing that costs no more than 30 % of a household’s income per month.
- 9.
The major factors and actors that shaped the Fair Housing Act and contributed to its passage are discussed by Kirp et al. (1995) and by Payne (2001). One especially controversial provision included in the Act, which was demanded by legislators from affluent suburbs as a condition for voting for it, allowed suburban municipalities to buy out up to half of their fair share obligation by providing funds to a nearby urban municipality for it to use to create more housing for lower income households there instead of in their own community. Called a Regional Contribution Agreement, this feature of the Act, which was anathema to civil rights and “opening up the suburbs” activists (Fox 1987), was eventually removed via an amendment that was passed in 2008 (Bush-Baskette et al. 2011).
- 10.
re N.J.A.C. 5:96 and 5:97, 221 N.J. 1 (2015).
- 11.
COAH has had a rocky history. Because its 12 members are appointed by the Governor (with the “advice and consent” of the Senate) and it is located within and funded by the Department of Community Affairs, over the years the Council has tended to take a more aggressive, activist approach when the Governor has been a liberal Democrat and has been much more passive when the Governor has been a conservative Republican. The current Governor, Chris Christie, who is a very conservative Republican, actually abolished the Council in June 2011, but in March 2012 the Appellate Court ruled that he did not have the authority to do so and ordered it re-instated.
- 12.
- 13.
It is beyond the scope of this chapter to discuss the politics of the passage of this statute. For a description and analysis of the factors that led to its initiation and the success of its supporters in securing the necessary number of votes to get it enacted see Krefetz (1980, 2001) and Krefetz et al. (1990).
- 14.
- 15.
While this is about the same number of units that have been built in New Jersey as a result of the Mount Laurel Doctrine, Massachusetts’ population of less than seven million is much smaller than New Jersey’s population of nearly nine million, and Massachusetts has far fewer municipalities than New Jersey: 351 compared to 565. And, according to a recent comparative study by Bratt and Vladeck (2014), a larger number of affordable units have been produced annually in Massachusetts than in New Jersey over the past many years.
- 16.
- 17.
These and other changes made to the regulations are described in the CHAPA Fact Sheet (2014).
- 18.
A detailed description and analysis of the tactics used by the leaders of the repeal 40B effort and the supporters of 40B who campaigned against its repeal is presented in Krefetz and Furman (2011).
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Krefetz, S.P. (2016). Unlocking the “Gates” and Climbing Over the “Walls”: Opening up Exclusive Communities. In: Lehavi, A. (eds) Private Communities and Urban Governance. Springer, Cham. https://doi.org/10.1007/978-3-319-33210-9_11
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