Yesterday we delved into Westchester County’s recent settlement, as reported in the New York Times, of a desegregation lawsuit.  Via a clever legal end run, it was brought against the county by the Anti-Discrimination Center, using the False Claims Act:

The case was litigated by Mr. Gurian and the center’s lawyer, John Relman. Their argument that the county had largely ignored local impediments to affordable housing –

Ever since Lyndon Johnson, it has been the Federal government’s thesis that since overt racial discrimination is illegal (under Brown v. Board of Education as well as numerous Equal Opportunity statutes), communities seeking to exclude minorities adopt camouflage, usually in the form of exclusionary zoning.  The Federal government has therefore made embrace of affordable housing the talisman of anti-discrimination, and has bestowed or withheld Federal funding based on cities’ and towns’ affirmative declaration that they are taking housing-affordability steps.  As Charles M. Lamb put it in Housing Segregation in Suburban America since 1960:

[Under George Romney], housing desegregation became a primary concern in the allocation of all HUD financial assistance, regardless of the specific program. By virtue of HUD’s interest in housing desegregation, Breakthrough soon came to represent more than a large-scale attempt to build low-cost housing; it was used to help spearhead desegregation.  

In Romney’s mind, suburban housing integration would also partly solve the thorny problems of segregated schools and minority unemployment. 

In return, not only would local governments receive low-income housing, but they would be given highest priority when applying for other forms of HUD assistance. If this carrot proved inadequate to implement Breakthrough, Romney threatened to rely on the stick as well, cutting or even revoking HUD assistance to communities refusing to cooperate.   Pages 63-64.

Remaking America: George Romney

Ever since Romney, localities that fail to adopt and implement anti-discriminatory policies can be denied Federal assistance, a requirement that had until recently become largely a rote affidavit, merely another of a long list of affirmations and declarations to be signed without thinking, and filed without reviewing.

Until, that is, the energetic lawyers opened up a False Claims suit and sought to show that Westchester’s deeds failed to match its words:

– was based, in part, on testimony by Andrew A. Beveridge, a sociologist at Queens College of the City University of New York.  

Beveridge’s graphic: blacks in tiny pockets

Judging by his CV, Dr. Beveridge specializes in these judicial expert-witness situations, which by itself is no disqualification, although it suggests he brings a perspective as well as extensive experience. 

Separating racial discrimination from economic: Beveridge

[His complete report is here, in .pdf, downloadable but not extractable, which is annoying since I'll have to retype the relevant quotes.]

[Many pages of statistical correlations, leading to the following.] 

Racial segregation levels are higher than segregation by income.

Forty years after Operation Breakthrough, the question remains: is visible socioeconomic segregation racist, or merely elitist? 

Racial discrimination, or economic?

Westchester County house values

When the affluent households are mapped (see Exhibit H), one can plainly see that there is substantial overlap between areas that have a high concentration of blacks in general, and those that have a high concentration of affluent blacks in particular. 

I can’t electronically extract Exhibit H, which is on page 45, but you can compare it with this page, also from his report:

Affluent blacks live in neighborhoods more black than affuent

This means that many affluent blacks in Westchester County share their neighborhoods with those who are much less well off than they.  (Sections 36-37, page 11)

That’s strong correlative evidence, and it won over the judge:

But the county’s claims were largely repudiated in February when Judge Denise L. Cote ruled that between 2000 and 2006 the county had misrepresented its efforts to desegregate overwhelmingly white communities when it applied for federal housing funds.

Don’t mess with this judge

The judge’s finding of county misrepresentation was based on ironclad logic:

Judge Cote concluded that Westchester made little or no effort:

To find out where low-income housing was being placed, or

To finance homes and apartments in communities that opposed affordable housing.

In other words, Westchester County had claimed it was actively seeking to desegregate its communities.  Yet Westchester County had failed either to build affordable housing in places with few blacks, or to find out if the market was building such housing on its own.  That’s excellent evidence of bad faith, or at the very least, total indifference.

Andrew Spano, the Westchester County executive, attributed the settlement” to “a historic shift of philosophy” by federal housing officials.  

“The Feds moved on us”: Andrew Spano

Mr. Spano said that the settlement would have “a sweeping effect on communities nationwide” and that he signed the agreement to avoid further litigation and possible penalties.

The county … said that since it had previously invested in affordable housing, “what is different is the locations where the housing must be built.”

The overarching goal, though, is to locate them in the least racially integrated neighborhoods.

It was at about this point in the Times article that I realized New York must lack an essential tool that Massachusetts has:

Not another failure?

New York needs a powerful inclusionary-zoning law like Massachusetts’ Chapter 40B. 

As I’ve posted before, Chapter 40B enables states to compel injection of affordable housing into recalcitrant localities, because it uses the override power of a higher unit of government (the state) to nullify the exclusionary restrictions promulgated by a lower unit (the town or village).

It has only just dawned on me that Chapter 40B works for the same reason the False Claims Act does – it privatizes enforcement by giving private actors a financial motivation to enforce.  Chapter 40B does for affordable housing development what the False Claims Act does for desegregation.  As shown by this map, 40B works – it builds properties in suburban cities and towns:

Notice now many suburbs have 40B properties

Meanwhile, in thirty-plus years of affordable housing here in Massachusetts, I’ve never heard of False-Claims litigation anything like Westchester’s.  Maybe 40B is acting like a vaccination, because any state with 40B or a similar inclusionary zoning statute will never be allowed to zone out of its domains.

Back in New York, will the judicial lever work?  Or will the plaintiffs’ victory be as hollow as that of the massive tobacco-litigation settlement, where the government gave the tobacco companies a quarter-century free run, in exchange for a share of the proceeds? 

Westchester’s got seven years to create a handful of affordable apartments.  We know the money’s totally inadequate to do this, which means either micro-sized apartments or more money must be found. 

Federal housing officials would appoint a monitor to ensure compliance.

It’s still a seven-year window, and by the time it’s over, we’ll have a new Administration.

Even if the agreement is enthusiastically fulfilled in every particular, Westchester will be moving only a tiny number of poorer people into whiter neighborhoods.  Will that make those neighborhoods blacker?

See any anti-black policies here?

Or will Westchester’s domestic workers just being moving out of outlaw in-law apartments?

Given that 120,000 acres of land in the county meet the criteria, Mr. Gurian said, the federal monitor “should have no difficulty making sure that Westchester ends its policy of allowing affordable housing to be off-limits in the most highly white neighborhoods in the county.”

What makes this a conundrum is that, after four decades of using affordable housing to segregate racially, we still don’t know if people are anti-black or anti-green.

How can we line up the incomes with the house prices?

“Affordable” housing is defined by a complex formula, but generally it is meant for working families. In some cases, a family of four could make up to $90,000 and still qualify.

That’s workforce housing, and there’s neither a guarantee nor even a legitimate mandate to ensure those ‘poor’ families are black.  

Or the unaffordable rents?

There is no minimum income level, “but it’s not going to be no-income,” Mr. Gurian said. “This agreement is not focused on facilitating housing for the poorest of the poor.”

Is Westchester County anti-black?  Or just anti-green?

The only minority we don’t like is the no-green group

Mr. Gurian said that while black and Hispanic residents have a disproportionate need for affordable housing, “this is an opportunity-creating agreement, not a guarantee” that the homes would go to members of minority groups.

Thus even if Westchester had done everything the False Claims litigation asserted Westchester did not, the county might still be just as segregated:

The county admitted no wrongdoing, blamed the judge’s ruling on a technicality, [and] said it had always given made affordable housing a priority.

Anti-black policies?  Or just anti-no-green?

We welcome anyone … with money!

Most of the homes would be new construction, although some existing houses and apartments could qualify if the county made them permanently affordable.

(Watch the county start discovering and granting quiet amnesty to in-law apartments being used for domestic workers, then counting them as affordable under the settlement formula.)

What does the Anti-Discrimination League’s expert say?

Dr. Beveridge found that “racial isolation is increasing for blacks, falling slightly for whites” and that “income level has very little impact on the degree of residential racial segregation experienced by African-Americans.”

If that’s so, then how will affordable housing solve it?

How will we encounter it?

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Forty years after Operation Breakthrough, the question remains: is exclusionary zoning (de jure or de facto in high land prices) racist, or merely elitist?

Racial discrimination, or economic?

Westchester County house values

Only one is illegal, and in the case of Westchester County, as reported in the New York Times, it took a curious private-citizen lawsuit to reach, if not a philosophical conclusion, at least a financial and real estate settlement:

Westchester County officials have entered into a landmark desegregation agreement that would compel the county to create affordable housing in overwhelmingly white communities and aggressively market it to non-whites in the county and in neighboring New York City.

The agreement, to be formally filed Monday [August 17 – Ed.] in Federal District Court in Manhattan, would end three years of litigation by the Anti-Discrimination Center over Westchester’s responsibility to enforce fair-housing goals.

Curious too is how the case was brought. It wasn’t brought by either the New York Attorney General or the US Department of Justice, either of whom have jurisdiction over discrimination. Instead it was brought by a private party.

“Residential segregation underlies virtually every racial disparity in America, from education to jobs to the delivery of health care,” said Craig Gurian, executive director of the Anti-Discrimination Center, which filed the suit under the federal False Claims Act.

Craig Gurian (at right) counseling other clients

False claims? What do false claims have to do with desegregation?

The False Claims Act (31 U.S.C. § 3729–3733, also called the “Lincoln Law”) is an American federal law which allows people who are not affiliated with the government to file actions against federal contractors claiming fraud against the government. The act of filing such actions is informally called “whistleblowing.” Persons filing under the Act stand to receive a portion (usually about 15%-25%) of any recovered damages.

By authorizing contingency payments to winning citizen plaintiffs, the False Claims Act turns ordinary citizens into tort bounty hunters.

Concerned citizens helping the government do its job

The False Claims Act, passed by Congress on March 2, 1863, was an effort by the USA to respond to entrenched fraud where the official Justice Department was reluctant to prosecute fraud cases.

Two months after the Emancipation Proclamation, and as part of Lincoln’s strategy for winning the Civil War, because an army that is corrupt is an army that cannot win.

The False Claims Act passed two months later

Importantly, a reward was offered in what is called the “qui tam” provision, which permits citizens to sue on behalf of the government and be paid a percentage of the recovery. Qui tam is short for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur“, which means, “he who brings a case on behalf of our lord the King, as well as for himself.” In a qui tam action, the citizen filing suit is called a “relator”.

Like RICO, another statute whose financial potency has turned it into a lever of choice for ex parte citizen litigation, the False Claims Act sicks a financial terminator on the target, eventually forcing a confrontation.

You defrauded the government

To bring Westchester within its sights, the Anti-Discrimination Center had to connect the county’s alleged passivity to a frauduluent claim:

Westchester officials had originally dismissed as “garbage” the lawsuit’s premise that the county had fraudulently claimed that, as a condition of accepting federal funds, it fully complied with mandates to provide affordable housing without furthering racial segregation.

Just north of New York City, an original affluent suburban county

These Federal financial mandates date back to George Romney’s Operation Breakthrough, to which I’ve previously alluded and about which I intend to post one day. Breakthrough was envisioned as both a housing-affordability strategy (breakthrough technology) and a segregation-buster (breakthrough zoning barriers of prejudice), and that’s certainly how the Anti-Discrimination Center framed its case:

“Westchester, belatedly acknowledging its authority to do so, is obligated to take legal action against resistant municipalities where needed to fulfill the affirmatively furthering fair housing purposes of the settlement,” Mr. Gurian said.

Brokered by the Department of Housing and Urban Development, the agreement promises to spark challenges to suburban counties across the country that have resisted pressure to undo decades of residential segregation.

It’ll certainly trigger many more False Claims Act cases, now that the Anti-Discrimination Center has provided the road map, and hit the jackpot:

And 15-25% of it is yours

The false claims suit by the Anti-Discrimination Center, a nonprofit group, and the settlement, apply to towns and villages in Westchester.

The cities operate separately from the towns and villages – which turns out to matter

The federal government deals directly with the cities in the county, among them Yonkers, which nearly went bankrupt before capitulating two years ago in a housing segregation case that dragged on for 27 years.

Exempting the cities really changes the settlement and desegregation dynamics, as can be seen by the next chart:

The blacks live in the cities

With a few microscopic exceptions, Westchester’s blacks live in Peekskill, Mount Vernon, New Rochelle, and White Plains. Only Greenburgh/ Elmsford both is a non-city town/ village and has a large black population.

The agreement calls for the county to spend more than $50 million to build or acquire 750 homes or apartments –

It sounds good, but that’s only $67,500 per apartment. No way will that be sufficient.

It is subject to approval within 45 days by the county Board of Legislators, which is also required to approve a $32.9 million bond sale to help finance the housing.

That’s another forty grand an apartment. Still nowhere near enough.

Think that’ll cost under $100k apiece? New construction in Eastchester

– 630 of which must be provided in towns and villages where blacks constitute 3% or less of the population and Hispanic residents make up less than 7%.

To put that in context, Westchester County’s total population is about 950,000. If we presume three people per household (a high number, and therefore conservative in terms of households), Westchester County has 320,000 households; adding 750 affordable apartments represents one-quarter of one% (0.25%) of the total housing stock.

Among the towns and villages in which blacks constitute less than 3% of the population and would theoretically be eligible for affordable housing under the settlement are Bedford, Bronxville., Eastchester, Hastings-on-Hudson, Harrison, Larchmont, Mamaroneck, New Castle, Pelham Manor and Scarsdale.

We can also examine it by people, since Westchester has a cornucopia of statistical information, such as this Census 2000 report:

Hispanics constitute the largest minority group in the county. Also, Hispanics were the fastest growing group of immigrants, totaling 144,124 residents. Hispanics now account for 15.6% of the county’s total population compared to 9.9% in 1990.

The Asian population also grew by 27% between 1990 and 2000. There are now

41,367 Asian residents who make up 3.7% of the county’s total population.

African-Americans also increased from 114,652 in 1990 to 131,132 in 2000. They now account for 14.2% of the county’s total population compared to 13.1% in 1990.

Blacks moving to the cities: Westchester’s report, Page 37

By contrast, the number of residents identifying themselves as white dropped by 35,450 to 658,858. While they remain the largest group in Westchester, whites make up a smaller percentage of the total population than they did in 1990. They now account for 71% of the total compared to 79.4% in 1990.

If 750 new affordable apartments house 3,000 people (at four per household, poor families often having larger households especially when compared with elderly), they all go to non-Hispanic blacks, then roughly 2.5% of Westchester’s black population will move from more-concentrated to less-concentrated areas.

Yet that’s the problem with using affordable housing as a desegregation proxy – you can’t legally target it to a particular race, for that violates every fair-housing protocol imaginable.

Will the homes be filled by blacks and Hispanics? Does poor = black and black = poor?

These things are not equivalent

The county has seven years to complete the construction or acquisition of the affordable housing units.

My goodness, that’s a long interval for so few homes or apartments.

It was not immediately clear where the new houses and apartments would be placed, although the settlement says that priority should be given to sites near public transportation.

At this point, I realized that the judicial win may well prove no policy solution.

Did we win?

[Continued tomorrow in Part 2].

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Yesterday’s exploration of the interesting experiment of co-housing, based on a sympathetic Boston Globe account, had reached the point of a completed development, using as an anti-snob crowbar the powerful lever of Massachusetts’ Chapter 40B law to produce a development that the founders swear up down and sideways ‘will’ be green. 

Future green? The Mosaic Commons site at Sawyer Hill

Will?  Nothing about co-housing makes it inherently greener than any other form of higher-density living. 

There are 74 communities in various stages of development, 25 in California alone, according to the Cohousing Association.

“The web of life that we have created through driving is just eliminated in cohousing,” said an association spokeswoman, Neshama Abraham Paiss. “You’ve got a real village.”

Except you have to drive to your job, and to your groceries.  All of this sounds merely like a plea for higher-density new urbanism, not a breakthrough innovation in its own right.

Emerson Chandler, a member of the Zoning Board of Appeals, said Sawyer Hill’s contention that it is environmentally sustainable is “baloney,” because the clustering has caused water to run onto a neighboring property.

In the long run, the greatest threat to residential property is water.  It can rot building envelops, drain into standing pools that rot siding, submerge property and breed expensive mold, and weaken building foundations.  Grade a site and you change the runoff, often to someone’s detriment.

But he cast the deciding vote in January 2007 to allow the project, avoiding a lengthy fight.

That Mr. Chandler voted yes reveals, despite his misgivings, another power of Chapter 40B that we saw in my two-part post: developers generally prevail on appeals, so local zoning boards sometimes hold their noses and acquiesce to something they dislike.

Vote yes and think of New England

Tony Valchius has lived for 35 years on his 23-acre Pleasant Street property, downhill from the western side of the development. He said since construction began at Sawyer Hill, he’s had at least a 200% increase in storm-water runoff cascading over his land, and has spent more than $60,000 in legal and engineering fees trying to prove that the development’s runoff controls are inadequate.

Mr. Valchius has visual evidence on his side.  Against him are those who believe the future will be different:

Journeay said engineers representing three different parties – Sawyer Hill, the town, and Valchius – all have said the arrangement in place should work.

‘Should’ – not even a future-tense verb, a future-tense conditional verb.

We always did all our chores, didn’t we?

What if it doesn’t work?  In a co-housing development, who’s responsible for making it work?  Who will pay to fix it?

Cohousers also may face cultural challenges as they move in over the coming months.

Berlin is so committed to its agricultural roots that it recently approved a bylaw protecting farmers from complaints about noise, odors, and dust. Many of the Sawyer Hill residents have jobs that stray far from the land – it’s a “geek-heavy” crowd, said Journeay.

Who, despite their desire for a walking community, drive to work.

“We have lots of people in the computer industry,” as well as a large number of Worcester Polytechnic Institute graduates, in Camelot, said Journeay, who is a business account manager at Tufts Health Plan. “We have an honest-to-God rocket scientist.”

Who drive.

I have nothing against those who drive to work.  But if your search for a sylvan walkable community takes you so far from your work that you are unable to use public transportation, how green are you really being?

But the village’s residents say they are committed to contributing to the community, through politics, schools, or by just being good neighbors.

How angelic, contributing to the community

Being good neighbors is not limited to co-housing residents.

“One of the things we’re so excited about is that we were able to put so much of the land into conservation,” said Ginny Maki [involved with the property since 2003 – Ed.], referring to the 28.5 acres that Sawyer Hill has set aside as open space.  

Sorry, Ms. Maki, no points for that.  That the residents have set it aside does not mean it’s legally deeded into conservation.  That land could be redeveloped later – and before the co-housing property arrived, it was undeveloped.   

[Update – in the comments, see below, commenter ‘dbang’ adds something omitted from the Globe’s article: “The conversation land is, in fact, legally deeded into conservation in perpetuity. It can’t legally be redeveloped later. Before, that land was undeveloped because no one had developed it — now it is undeveloped by force of law.”  That is a conservation benefit.]

Not that I oppose development. 

Rather, I think you get little credit for using a zoning override to create higher density than the town allows, only to pat yourself for having left undeveloped what your permit required you to leave undeveloped.

Residents will build and maintain trails for public use.

More future-tense verbs.  Building and maintaining trails is hard work.

Blogging’s even harder

When we’re young, we read and write science fiction, because the imagined worlds are more interesting than the experienced ones.  When we’re old, we read and write history, because what has happened is both remarkable in itself, and real.

This month, Maki will be moving into her three-bedroom unit with her family. In addition to her husband and two young children, her mother will be there.

And her younger brother, Ethan Bickford, was able to buy a reduced-rate unit in the community because his income falls within the 40B guidelines.

I’m all for income-mixing.  (You can see details of the affordable units, designed by Stockard & Engler & Brigham, here.)

Maki said her children are ecstatic about their future home and she loves that Sawyer Hill is multigenerational. After the death of her sister eight years ago, she said, she realized even more the importance of a tight-knit community and being close to loved ones.

“Once something like that has happened in your life,” she said, “it makes you take stock and remember what’s important.” 

I wish them luck.  Travel hopefully, but read the signs.

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Character is what you are in the dark

Thus it was with a fair dose of jaundice that I read a sympathetic Boston Globe account of a new approach to affordable housing, co-housing:

Co-housing?  Bah, humbug!

The idea started small. Kathy Journeay and a few close friends wanted to buy houses together on a cozy street so they could pool resources, raise their children together, and share their lives.

Long day’s journeay into housing

Is community something we bring to virgin territory, or what we make of those who become our neighbors?

More than seven years later, those same friends are about to realize their dream – albeit on a much larger scale than they ever imagined – and move into Sawyer Hill EcoVillage, a 68-unit development in Berlin that is the largest cohousing project in the country.

Far west of Boston, but spiritually close to Cambridge and Walden Pond?

As in a traditional condominium complex, each unit will be individually owned.

You might think this is a traditional Planned Unit Development, but the founders have idealist visions:

In most places, “maybe the only time you ever see your neighbor is when you’re pulling your mail out of your mailbox. You don’t find excuses to interact with each other. You don’t have the opportunities to get to know each other’s lives,” she said. “Did you just have a baby? Then I should be making you casseroles and bringing them over.”

Bringing casseroles?

On my street, a neighbor whom all of us have nicknamed the Mayor of Francis Avenue handles the social infrastructure for us – for which we neighbors are all grateful.

They learned how architecture is used to promote frequent interaction among residents. Homes are clustered around walking paths and a common house, where shared meals and events are held throughout the week. Social activities are centered on the property, child care is shared, and knowing your neighbors is inevitable.

Any shared-burden, shared-benefit environment faces the free rider problem.  Inevitably, some do less than their share – or what their neighbors consider ‘their share.’

We’re doing our share

At Sawyer Hill, responsibilities and costs will be apportioned as presented in the six defining characteristics of co-housing:

Business is predicated on value chains – disaggregated sequences of actions where each participant has a discrete function, for which it is paid.  Co-housing challenges that presumption, preferring instead an egalitarian utopia, a socialize community:

And at the center of their social lives will be shared meals – like the recent gathering in the development’s central common house, organized while awaiting the official occupancy permits that will let them move in for good.

The kitchen in Camelot Commons, one of two neighborhoods within Sawyer Hill

Sawyer Hill EcoVillage is composed of two 34-unit communities with distinct architectural styles – Mosaic Commons features multifamily buildings in the New England saltbox design, while Camelot CoHousing, where Journeay’s family will live, offers modern duplexes and standalone homes.

It makes good sense to offer multiple configurations to accommodate diversity of family situations.

Shared meals will be at the heart of each neighborhood. As daunting as cooking for 34 households may be, it’s a duty that rolls around only every month and a half, said Journeay.  

Want to eat what others choose?

You’re in the co-housing now, son

In exchange, residents can enjoy two cooked meals per week, while using only one kitchen on those nights instead of 34.

I don’t know about you, tovarisch, but my experience with group cooking involves lots of pasta and simmered meats. 

Don’t forget the grilled cheese and tomato!

For many of us, being at home is where we can be apart, private.  We cook what we like, eat what we like, do what we like.  The right to privacy begins at home, yet in a co-housing property, such privacy may be considered antisocial.

“Ideally, for me, community is where I can get support in my times of crisis and I can give support,” said Journeay, 39, who expects to move in with her husband within a few weeks. “When no one is in crisis, I have friends who I can spend time with.”

Although idealism ushered in the cohousing dream, Journeay and her friends quickly learned that it takes tenacious will to master all the technical, legal, and regulatory aspects that come with building a housing development.

Development is a real business: it takes real work, and there are real responsibilities.  After all, they call it real estate.

They also had to convince Berlin – a town with deep agricultural roots – that they would be good neighbors.

Presumably they picked Berlin because the land was relatively inexpensive.  Which means that the residents probably live far away.

Cohousing is still a novel idea in this country, though the model has been around since its 1964 birth in Denmark. There are 10 of the developments in Massachusetts and 114 across the nation, according to the Cohousing Association of the United States. Sawyer Hill is the largest, beating out a development in Decatur, GA, by one unit.

I suspect that co-housing, like birds, is scale-limited.  (If I did the cut-paste-total right, the site lists 129 properties and 3,243 homes, an average of about 25 per site.)  Too small and there isn’t the critical mass of people to assure that every function can be covered at one time or other.  Too large and governance will break down. 

Any bigger and I couldn’t fly

Intriguingly, the Berlin property was a marriage of convenience:

Soon after finding the land, the people who formed Camelot CoHousing banded together with the people from Mosaic Commons, who had also been searching for a site, and formed Sawyer Hill EcoVillage.  But they still had to persuade the town, and its residents, that this new arrangement would work.

The developmental and permitting challenges are non-trivial.  In fact, the neighbors didn’t want it:

Berlin’s bylaws require new homes be built on at least 2 acres.

Since zoning is destiny, large-lot zoning is a convenient means of being the righteous snobs by keeping ‘those people’ out of your bucolic town.  Except when inclusionary zoning can be compelled, as in Massachusetts:

To have homes set up in the clusters they envisioned, Sawyer Hill’s organizers obtained a permit under the state’s Chapter 40B law, which allowed them to work around the local zoning regulations.

‘Work around’? 

I’m not buying your story

That phrasing is sympathetically euphemistic.  Chapter 40B allowed the developers to override local preferences, so we have the community-oriented neighbors using a property law to cram a community:

In exchange for the leeway provided by its comprehensive permit, 40B requires that at least 25% of a development’s units be set aside as affordable housing, based on income and price restrictions set by the state.

It’s not leeway, it’s superseding zoning!

Is planning when I get to decide that you’ll do?

Of Sawyer Hill’s 68 units, 51 are under purchase agreements. And of the 17 still for sale, 10 units are earmarked as affordable.

So congratulations to them – they’ve made it past the development danger point of having a large unsold inventory.  Now they have the challenges of operations:

As green living becomes mainstream ethos, cohousing may skyrocket.

Oh, you think it’s green?

I don’t think so

[Continued tomorrow in Part 2.]

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God help us if they get to build it in our town: a 40B property in Sterling, MA

Yesterday’s post dug into the high-fiber statistics carefully compiled by MIT DUSP professor (and AHI affiliate) Lynn Fisher and presented in her recently issued Harvard Kennedy School report, Reviewing Chapter 40B: What Gets Proposed, What Gets Approved, What Gets Appealed, and What Gets Built?  As a general principle, I like inclusionary zoning and believe it should be on every global shopping list, and of such schemes our local flavor, Chapter 40B, is the granddaddy of them all, nearly forty years old.

Even at forty, 40B, you – look – marvelous!

As we saw yesterday, Chapter 40B has remade the state’s housing stock and today is indispensable in producing new affordable housing, yet despite its predilection for rental, communities fight rental:

Rental vs. Owner-Occupied Projects

There are significant differences between owner-occupied and rental projects.  (See Table 1)  Most notably, on average, rental projects (as finally permitted) are almost three times the size of owner-occupied projects and over twice as dense. 

Does rental beget density, or density beget rental?  One can make a case either way.

As a result, while 70% of the 386 40B applications receiving ZBA decisions in the study sample were proposed as owner-occupied projects, the over 32,000 proposed units in our sample were split almost equally between owner-occupied and rental units.

Here’s the overall breakdown in tabular form:

Nothing like numbers to show you reality

In terms of our pachinko machine, what happened to the applications Lynn studied?

Out of the 404 applications, just over half (203) were (a) approved, (b) not appealed, and (c) built.  One might consider these the programs unqualified successes, since the process both worked (parties happy) and it birthed new affordable housing. 

The survey results showed that:

While about 90% of the proposed projects ultimately were approved, only 62% had obtained building permits by the second quarter of 2008. 

Unfortunately, delays aren’t even a byproduct or an unintended side effect of the 40B process, they’re an intrinsic feature – and, for many refusenik localities, a deliberate strategy, hoping if not to win at least to discourage the applicant, and for that matter inoculate the community against further applications while the current one is pending.  That’s a feature of oppositional programs like 40B, where one party (in this case, as usual for oppositional statutes, a body of government) is being compelled by another part of government (whether legislative or judicial doesn’t matter) to do something that may be in the larger public interest but is perceived by the locals to be contrary to their parochial interest. 

One might almost think it was a strategy

Lynn’s data (which we’ll show) prove conclusively that Chapter 40B burdens everyone, most particularly the development, with a protracted process accompanied by substantial soft costs.  Lynn’s study doesn’t quantify those additional costs, but it sets the stage for that later quantification.

More than 80% of projects were initially approved at the local level and, for over 80% of these approved projects, developers did not challenge the conditions of the approvals.  As of September 2008 developers had received building permits for about 75% of these projects.

Thus the ‘main line’ of a property’s development is application/ negotiation/ approval, and then development.  What about the safety valve, the appeals process?

Overall, developers appealed 28% of the local decisions on applications. 

Surprisingly, more appeals came out of approvals as out of denials.  Developers obviously felt that the approval was grudging and not fully in conformity with the law, and the evidence backs their judgment:

Is it worthwhile to appeal even if you are approved?  The pachinko machine says Yes!

I’m betting on my appeal

Out of the 40 adjudicated (80% of the appeals), developers ‘won’ 33, winning modification from the original appeal.  That’s pretty impressive evidence that developers, at any rate, have learned the law in depth, and don’t appeal frivolously – not surprising when you reflect that appealing costs money and time (which is money).  As she put it:

Chapter 40B has created a process that developers and towns, among other actors, play with increasing sophistication.  Most notably, both local officials and developers seem to understand the conditions that the HAC will – and will not – accept when reviewing developer appeals of local ZBA decisions. 

More sophisticated than we look, actually

Equally surprising, when appealing a denial, the developers’ batting average is no higher: 24 wins, 13 losses.

Is it worthwhile to appeal when you’re denied?  The pachinko machine says Yes!

As you might have expected, whether or not appealed, the program is time-consuming:

On average, it took local governments 10 months to make a decision on proposed projects and, for built projects, on average it took about an additional year before developers received a building permit that allowed them to start work on an approved project.

That’s 22 months’ gestation just to get the building permit, meaning construction can start.  In that 22 months, the developer is spending the following:

1. Land purchase price (or option price).

2. Architects’ fees and other full-blown design costs.

3. Professionals (e.g. 40B consultants, lawyers).

4. Developer’s executive overhead (and trust me, that’s a lot of person-hours).

Plus interest on the borrowing needed to cover all these costs …

The appeals process is a higher-stakes game because while developers are more likely to gain a favorable ruling (particularly when local ZBAs turn down the requests for comprehensive permits), the delays associated with the appeals process – and likely lawsuits challenging some HAC approvals as well – reduce the odds of projects moving (at least for awhile) from planning to construction. 

Is there any wonder why per-unit affordable housing costs in Massachusetts are high, with all these procedural taxes imposed by localities resisting affordability altogether?

On average, localities held seven public hearings about proposed projects during the application process and took 10 months to make their decisions about those applications. 

It takes years to write the history of a hearing

Seven hearings?  What could possibly be left unsaid by the first hearing that requires six more?  This sounds like process-for-the-sake-of-delay, not process-for-the-sake-of-transparency.

However, the time it took ZBAs to rule on the applications ranged from as little as one month to as long as six years to complete. 

Again, delay is the intransigents’ friend, and that delay costs money. 

Just a few more procedural requirements …

Despite its modest title and slim executive summary, this is a major and critical piece of work.  As baseball-revolutionizing stat guru Bill James once put it, “You have your opinion and I have mine, but mine is supported by this mountain of facts.”

The Bill James of Chapter 40B?  MIT Associate Professor Lynn Fisher

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