Inherent Inequity: The Push to Enact Gov. Baker's "Housing Choices" Bill In An Informal Session

Just before Thanksgiving, it was reported that real estate industry and municipal lobbyists were calling on the legislature to enact Governor Baker’s housing production bill in an "informal session," where debate and roll call votes are not allowed, and few legislators are in the room. 

At the same time, several community-driven proposals to help protect tenants and to support affordable housing have been stalled in the legislature — as has a more progressive housing production bill that was championed by most House Democrats.

Why was virtually every progressive priority for housing affordability taken off the table at the end of 2017-18 formal legislative session? Apparently, because corporate real estate lobbyists said so. 

As I reflected on this situation, I felt compelled to speak up in the name of equity.

While I am generally supportive of the basic concept behind the "Housing Choices" bill — I cannot be silent about a process that allows lobbyists to push one bill forward while other bills that have the support of local community-led groups like Boston's City Life/Vida Urbana and Somerville's Affordable Housing Organizing Committee are laid aside.

So, on the Monday after Thanksgiving — after hearing from constituents who understand that the influence of corporate power on Beacon Hill is outrageous — I wrote to Speaker DeLeo and expressed my preference that we defer action on the Governor’s "Housing Choices" bill until formal sessions resume on January 2nd — and I also expressed my hope that we consider the Governor's bill as part of a comprehensive package of housing legislation.

In my view, "comprehensive" means smart, regional production strategies, stronger tenant protections and anti-displacement measures, and additional tools for raising revenue to support affordability and end homelessness. 

Yes, we need to encourage smart growth across the state, as the Governor's bill hopes to do — and, in the face of profound inequality, systemic racism, and a rigged economy — we also need to protect tenants who are facing displacement while putting new tools in the hands of municipalities to help fund the production and preservation of deeply affordable housing.

This is what a progressive housing agenda would look like in Massachusetts. Pro-growth and pro-equity. Development without displacement. As a renter and as someone who was raised in public housing, I believe this sort of comprehensive approach will bring more people to the table in service of the goal of housing for all.

The Strengths and Weaknesses of Gov. Baker's "Housing Choices" Bill

Pictured above, Governor Charles D. Baker's meets with business leaders to discuss his "Housing Choices" bill on March 12, 2018. 

The goal of Governor Baker's Act to Promote Housing Choices is to boost housing production across the Commonwealth.

To accomplish this goal, "Housing Choices" relies on a single strategy — it reduces the threshold for municipal approval of certain zoning changes and special permits from a two-thirds majority vote to a simple majority vote. Examples of the kinds of zoning and permitting votes that would require simple-majority approval are:

  • Multifamily housing or mixed-use development in locations that would qualify as Smart Growth Zoning Districts under state law
  • Accessory dwelling units
  • Open-space residential development
  • Reduced parking requirements
  • Transferable development rights
  • Relief from regulations concerning the bulk and height of structures, yard sizes, lot area, setbacks, open space, parking and building coverage requirements to allow for additional housing units beyond what would otherwise be permitted under the existing zoning ordinance or by-law

Overall, I have been supportive of the simple-majority concept because I recognize there are many suburban communities that are resistant to new, multifamily housing (despite the fact that many of these communities are served by MBTA or other regional transit routes).

Simple-majority approval has the potential to make it easier to build housing in communities that — unlike Cambridge, Somerville, and Boston — have been doing very little to keep up with regional housing demand. And while there is some logic and a long history of requiring supermajority approval for governmental decisions that impact private rights or are otherwise not easily undone — it should also be noted that most states only require simple majorities to change zoning.

That said, I also recognize we cannot rely exclusively on market-oriented, neoliberal strategies if we hope to make progress in the face of this ongoing housing emergency. Simple-majority approval could help us get more of the housing we need, if more attention is paid to affordability and anti-displacement concerns.

In addition, I think the "Housing Choices" bill demands the attention of the legislature in a full formal session where debate, amendments, and roll call votes are allowed. That is only possible after the 191st General Court is sworn-in on January 2, 2019.

The following is a list of some of the concerns that constituents, activists, advocates, and fellow legislators have raised with the "Housing Choices" bill. 

  • No affordability requirements for "Housing Choices" zoning. Amazingly, under "Housing Choices," a municipality will be able to change zoning to facilitate denser development with a simple majority vote, but new affordability provisions, such as inclusionary zoning, will continue to require a two-thirds majority vote. This means "Housing Choices" is writing inequity into law. Why not allow deeper affordability measures to pass by a simple majority, too?
  • Boston is exempt from "Housing Choices" altogether. "Housing Choices" was written to apply to all cities and towns in the Commonwealth, except for Boston, which is exempt from the bill.
  • For the other 350 cities and towns in Massachusetts, it's basically one-size-fits-all.  Cambridge and Somerville are two of the densest cities in the United States, and both cities have issued permits for several thousand units of new housing in recent years. Cambridge also has one of the highest percentages of subsidized affordable housing anywhere. Meanwhile, many suburban and rural communities face their own unique challenges around school funding, various water issues, and infrastructure concerns. We could do more to recognize the differences between the urban core, suburbia, gateway cities, and rural communities. "Housing Choices" often said to be about boosting production in the suburbs — but Massachusetts is more than just Boston and its suburbs.
  • Zoning changes are "one-way." There's a strange incongruity to the fact that, under "Housing Choices," we will have a system where it would require a simple majority to pass a certain zoning amendment, but if there was ever a desire to undo or adjust that change, it might require a two-thirds vote. 
  • No mechanism to ensure units get built. The Governor says this legislation will facilitate the goal of producing 135,000 additional units by 2025, but there is no actual mechanism to ensure what gets built. There are provisions to make it easier for "Housing Choice" communities to access state grants, but too much of this plan is left up to the market. As we've seen in Cambridge, just because you permit something does not mean it all gets built anytime soon. North Point, for example, was issued PUD permits for roughly 2,000 units of housing circa the year 2003. Most of the units have yet to be built. 
  • Very little funding is provided. One way to ensure more of the housing we need actually gets built is to attach a stronger direct funding mechanism to this bill. The Governor has committed up to $10 million per year to help communities plan for more housing — that is a very good thing — but this proposal would benefit from larger commitments to invest public resources into new projects so as to achieve deeper affordability.
  • Ambiguity on what "would qualify" for a Smart Growth Zoning District. A central component of the bill authorizes simple-majority approval of multifamily housing and mixed-used development in locations that "would qualify" as Smart Growth Zoning Districts (SGZD) under state law. However, the process of qualifying for a SGZD is complicated and subject to approvals, so this language has raised questions around whether it can be known what "would qualify" as a SGZD.
  • Leaves out key provisions of zoning reform bills filed by Democrats. As mentioned in the introduction, Democrats had advanced a broader package of housing production and zoning reform legislation this session, but "Housing Choices" leaves out various provisions intended to better address equity and sustainability concerns. Check out the fourth paragraph of this letter to see how the real estate lobby opposed everything except the Governor's bill back in June. 
  • Rep. Provost's 19-page mark-up of the bill. My Somerville colleague, Rep. Denise Provost, who also has experience serving as City Solicitor and as a Member of the Board of Aldermen for the City of Somerville, has described "Housing Choices" as "a wildly optimistic leap into supply-side economics as a means to solve the shortage of housing," and "not sufficiently well thought out and drafted to be passed into law this session." Click here to read or download Rep. Provost's extensive analysis of the bill.

This list makes me think formal session would give us an opportunity to better review and address all these concerns.

Equity Concerns with "Housing Choices" Legislative Process

Governor Baker introduced H.4075, An Act to Promote Housing Choices, on December 14, 2017. Astoundingly, the text of the bill is seven-pages long and yet does not include any of the following words: affordable, affordability, tenant, or displacement. 

On January 30, "Housing Choices" came before the Joint Committee on Housing, where I sit as a member. The most interesting exchange I had at the hearing was when Northeastern University Professor Barry Bluestone highlighted the fact that the City of Boston is responsible for 41% of all new housing permits in the Greater Boston metro area, which consists of 147 cities and towns. In turn, I suggested that "Cambridge and Somerville are right up there with Boston," and I asked if he would agree "that it's really a dichotomy between the urban core, where so much is happening, and just beyond the urban core where it's almost like you fall off a cliff..." "Right," he answered. "You've prompted me by your hearing to separate Boston, Cambridge, and Somerville, and I think if I added all those together, my guess would be that was probably closer to 75 to 80 percent of all permitting, and the 143 other communities only about 20 percent," he said.

On March 6, the Joint Committee on Housing reported-out favorably a somewhat revised version of the bill, H.4290. I was pleased to work with my colleagues in support of moving the bill forward in a timely fashion because, as discussed above, I see potential in the simple-majority concept, and I know that advancing legislation to the floor during formal sessions provides us with the opportunity to get a stronger bill. The Housing Committee also added one narrow affordability provision — allowing a developer to seek a simple-majority approval on certain special permit applications provided 10% of the housing is made affordable for 30 years.

The bill was immediately referred to the House Committee on Ways and Means, where it has sat for the past nine months. Under the rules, the Chairman would normally poll the members of the committee before the bill could proceed to the floor. So far, that has not happened.

As the clock was running out on the two-year, formal legislative session that ended on July 31, Speaker DeLeo was asked about the potential for bringing Housing legislation to the floor. He said it was possible, and went on to explain:

"I've had some initial meetings with the folks at MMA, NAIOP, and some of the other building contractors, and I can tell you with NAIOP and the MMA in particular, they've made an agreement that the bill that was filed by the Governor is the bill that they are supporting, and that they will not support on either side any idea about any amendments to that legislation, so that really severely limits us in terms of those folks who want to file something further," the Speaker said.

I remember reading those words at my desk and being shocked. Here I am, an elected member of the House of Representatives, working to bring concerns around affordability and the voice of renters to the fore — and I am told there will be no opportunity for myself or other legislators to consider amendments because an agreement was struck between commercial real estate lobbyists (NAIOP) and municipal lobbyists (MMA).

This has me thinking about a community conversation I attended in Cambridge last month with Dr. Darnisa Amante of the Disruptive Equity Education Project (DEEP), where she defined "equity" as "fairness in procedures, processes, and the distribution of resources. Equity exists when disparities in the outcomes experienced by historically under-represented populations have been eliminated. Equity requires changing structures of power and privilege."

As I reflected on that definition, I couldn't help but think both the substance and the process behind this "Housing Choices" bill might be described as the opposite of equity.

Calling for a Comprehensive Package of Housing Legislation as a Priority for 2019

Call it a pro-equity, pro-growth agenda. Call it development without displacement. Or maybe call it YIMBY Socialism. It's time to bridge the gap that too often exists between the pro-growth/YIMBY movement and the pro-equity/anti-displacement movement. It's time for progressives to have a really progressive housing agenda. When it comes to supporting housing production, I say: "Yes...and..."

As in, "Yes, we can promote housing production across the region — and — we can also work to protect tenants and boost housing affordability." It's really easy to say. So why can't more of our elected leaders (or the Boston Globe and Wall Street Journal) use those words?

It's not all bad news, however. Just last week, there was promising news out of California. So promising, in fact, that I want to quote sections of this incredible Shelterforce article by Rick Jacobus, "Hey YIMBY, Thanks For Listening," at some length:

In high-cost cities across the country, it has become commonplace for new real estate development proposals to devolve into ugly fights between anti-displacement activists and YIMBY (Yes In My Back Yard) activists. The anti-displacement activists accuse the YIMBYs of supporting buildings that will push low-income people and people of color out of neighborhoods where they have lived for generations. The YIMBYs push back by accusing anti-displacement activists of harming the very communities that they are trying to preserve by blocking the construction of market-rate housing that would lower prices overall.

Nowhere was this split more consequential than in the bitter fight over SB 827, State Senator Scott Wiener’s proposal for California to override local zoning limits to allow higher density housing near transit. The bill was called “one of the most important ideas in American politics today,” but it died in committee early this year. One of the biggest (but by no means only) points of contention was the question of how seriously to take the risk of displacement. Opponents of the bill argued that without tenant protections and affordable housing requirements, upzoning some neighborhoods would further fuel ongoing displacement. Some supporters responded to this concern by painting tenant advocates as no different from suburban NIMBYs standing in the way of new housing.

This week Senator Wiener introduced SB 50 which contains essentially the same proposal for increasing density limits around transit but, this time out, the bill includes a set of explicit protections for low-income tenants and even delays implementation in “sensitive communities” where the risk of displacement is greatest.

Time and again, American policy elites have talked themselves into believing that they are better qualified to decide what is best for lower-income people and people of color. The communities that bore the brunt of redlining and white flight have paid dearly for the right to be heard this time around. The great majority of tenants in high-cost cities are very worried about displacement and there is no reason not to put their concerns first when we design housing policy.

With SB 50, instead of trying to shout over the fears of urban tenants, Wiener has clearly decided to listen to people and accept that there may be places where development creates a real risk of increased displacement. Taking that risk seriously does not mean never building, but it may require extra effort to reduce the impact in sensitive neighborhoods. Given our history, it seems far better to do too much than too little to prevent widespread displacement of communities of color.

The parallels between the California pro-growth legislation and our current situation with "Housing Choices" are striking.

Both the California bill and "Housing Choices" set out to facilitate smart housing production, but both bills lacked meaningful affordability and tenant protection measures. After the legislative session ended in California this year, they decided to make an effort to address the concerns of tenants. This is the same thing I was suggesting in my letter to the Speaker after Thanksgiving.

Cambridge City Council to Consider "Housing Choices" on Monday

Last Monday, I learned about a late resolution on the Cambridge City Council agenda calling on the Cambridge Delegation to vote in favor of Governor Baker's "Housing Choices" bill. I reached out to Councillor Simmons and appreciate that she "Charter Righted" the resolution to delay debate until this evening. In response to this resolution, I have a few observations:

First, there is scant evidence that adopting "Housing Choices" would be "an important factor in allowing desperately needed new housing to be constructed in Cambridge...", as the fourth clause suggests. It is widely agreed that both the Cambridge City Council and the Cambridge Planning Board have been very friendly to new housing proposals over the past twenty years. Just last year, the City Council approved a 500-foot tall mostly-luxury residential tower as part of MIT's upzoning of the Volpe Site in Kendall Square. This proposal was opposed by local residents, and yet, the council voted unanimously to change the zoning. The list of examples of strong, official support for development in Cambridge goes back decades, and much of what is contemplated by "Housing Choices" is stuff we've already done and are already doing.

Second, the resolution strongly urges members of the Cambridge Delegation to "vote in favor" of Housing Choices, but as discussed, there are no roll call votes now that formal sessions have ended.

And like the original text of Governor Baker's bill, the resolution does not mention affordability or tenants.

In light of all of the above, I am respectfully asking the City Council to consider amending the resolution by striking the first RESOLVED statement in its entirety and substituting in its place the following text:

That the City Council go on record in strong support of the effort to bring a comprehensive package of housing legislation forward, including regional production strategies, as well as tenant protection measures and new tools to raise revenue to support affordability and end homelessness, as a priority in the formal legislative session that begins on January 2, 2019, and be it further

Adoption of the resolution, as amended above, would be a powerful step forward in the fight for housing justice in our community and across the Commonwealth.

If you've made it this far, you must care about housing as much as I do. Should you have any questions, concerns, or comments, please email me. Thank you for reading!

Update: The resolution in support of the Governor's "Housing Choices" bill failed to win the support of the Cambridge City Council. Coverage of the council's debate of this resolution can be found here in Cambridge Day.

About the author