America’s housing rift is coming to a head in the leafy suburbs of deep-rooted eastern New England.
Two years ago, Milton, a wealthy, mostly white town, along with dozens of other nearby towns, received an order from the Massachusetts Legislature to allow more and higher-density housing. I was told that action needed to be taken. But by February, about 5,000 voters had rejected the plan, after Mr. Milton spent thousands of dollars and countless hours of city staff and elected officials developing it.
Days later, Massachusetts Attorney General Andrea Campbell filed a lawsuit to compel Milton to comply, and a panel of judges will hear arguments on October 7. Although Milton’s issue is unique to Massachusetts, the issues it raises are familiar to communities across the country.
When housing becomes scarce and out of reach for most people in the area, what is the community’s responsibility to help? Should the state intervene? If so, to what extent? Should I do it?
For many progressive housing advocates, Milton’s impasse is just the latest salvo in a years-long battle.
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“This is the civil rights issue of our generation,” said David Dworkin, president of the National Housing Congress. In Milton, Dworkin sees echoes of the Deep South protests of the 1950s and Martin Luther King Jr.’s activism in Chicago in the 1960s. “Zoning in America was developed and designed for racial segregation. It’s not a subtle tool.”
Thomas Silverstein, director of fair housing and community development efforts at the Lawyers’ Committee for Civil Rights Under Law, agreed. “The focus of civil rights and fair housing litigation and advocacy has been on the use of urban planning powers to avoid equitably providing affordable housing to neighborhoods, and the use of urban planning powers to It’s about dealing with a disproportionate number of wealthy suburban areas, and it’s a way that disproportionately hurts people of color,” Silverstein said in an interview.
But Milton residents who oppose the rezoning say they are not opposed to affordable housing. Their concern is the scale of development being considered in their small community.
“I’m all for improving the diversity of the housing stock,” said Denny Swenson, a longtime Milton resident and former member of the town’s Planning Commission. “We welcome it and we love to see it. This (lawsuit) is simply an attempt by developers to silence our town and other towns from saying they want better, more thoughtful zoning. It is a means.”
Build, baby, build
The 2021 law at the center of the dispute required communities under the jurisdiction of local public transit agencies to adopt zoning laws that allow multifamily housing in certain areas of town. The law, the MBTA Community Act, states that local governments that do not comply will lose access to several funding sources provided by the state.
Milton’s planning department staff spent much of 2023 working with consultants to develop a new “zoning language” for consideration by the town’s elected officials, according to the attorney general’s filing. In December of that year, elected officials approved an ordinance authorizing the zoning. However, when the ordinance was put to a referendum in February, it was rejected 54% to 46%.
Swenson said most of the Milton residents who opposed the ordinance opposed the size of the development. The MBTA Community Act requires new zones to accommodate at least 2,400 new housing units, she said. That’s a big elevator in a town of 24,000 that doesn’t have much room for outward expansion.
But a representative from the state attorney general’s office told USA TODAY in an email that the law allows communities a great deal of flexibility and local discretion. A certain level of density is required within the zone, but there is no specific minimum number of units to be built.
Swenson said residents were initially in talks with state officials, but once they decided to hold a referendum, there was “no communication,” adding, “They were making punitive threats, but at one point… “I thought we could stop and try to cooperate.” . I think it’s amazing that citizens can be sued for disagreeing with the state. ”
Swenson said many Milton residents who oppose the law feel blindsided by the lawsuit. The law stipulated that communities that did not comply would lose access to funds, and many residents were happy to accept this. “The executive branch can’t just walk in and legislate,” she said.
In a February 2023 advisory reminding communities of the law’s requirements, the state said not only could municipalities that don’t comply with the original law lose funding, but also that those municipalities could be It also cited possible violations of the state’s fair housing law.
In a statement to USA TODAY, Massachusetts Attorney General Andrea Joy Campbell said: “This mandatory legislation serves as an essential tool to address the housing affordability crisis by creating zoning districts where more housing can be built. It is done through a collaborative process that gives municipalities considerable discretion.”
The statement continued: “The Town of Milton filed an ordinance to comply with the MBTA Community Act and had the full support of the state until a private group requested a referendum to repeal the ordinance. has the following mission.” We remain ready to enforce our laws, including this mandatory law, and to assist any community in their efforts to comply. ”
Milton Building Commissioner Joe Atue and Milton Assistant Town Administrator Nicholas Connors, who are named in the attorney general’s legal filing, responded to multiple email requests for comment on the matter. There wasn’t.
What can states do?
According to public documents, much of the town’s legal response is based on the idea that the attorney general has the authority to withhold funds only to the extent provided in the MBTA Community Act, and that anything beyond that would be an overreach. There is.
Legal experts interviewed for this article disagreed with that argument.
While there are nuances in each state’s legal framework, broadly speaking, rural communities exist at the will of the state, Silverstein said. “There’s a certain premise that states can force local governments to take certain actions or refrain from taking certain actions.”
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In September, the Massachusetts Real Estate Lawyers Association, the main professional association for real estate lawyers in Massachusetts, filed a brief in support of the attorney general.
“Withholding funds is not the only remedy; the Attorney General has broad authority to enforce statutes in the public interest of the Commonwealth,” Kathleen Heyer, one of the authors of the brief, said in a statement from USA. He said this in an interview with TODAY. .
Notably, Heyer said the statue did not require anything to be built or permitted, it was simply an attempt to change the town’s zoning ordinance. “The permitted uses just changed and people still said en masse, ‘We don’t want that.’ We would rather withhold these discretionary funds than comply with state law. Masu.”
local housing crisis
Many who witnessed the incident also believe that towns like Milton have a responsibility not only to abide by the law, but also to cooperate in what has become a serious community crisis.
A brief filed by more than a dozen local housing nonprofits in support of the attorney general provides these numbers: The median sales price for a single-family home in Greater Boston in 2024 is $950,000, and the median rent in the area is $3,940. One month. The majority of renters in metropolitan Boston are “rent burdened” and pay more than 30% of their income in rent.
The term “no-go zone” is used by academics, activists, government officials, and others to refer to communities that make it impossible for certain people to settle there. When zoning and other practices default to single-family homes with gardens, which average $1 million or more, people from lower socioeconomic classes are excluded. Especially for many people who work in the town, it has become virtually impossible to live there.
See also: Residential real estate faced a racist past. Then came the commission lawsuit.
“People in xenophobic communities are freeloaders,” Dworkin said. “They take in all the benefits that all the workers do, but they don’t actually allow them to live near where they work.”
Swenson said Milton’s NO campaign would accept a smaller goal of about 500 to 900 units, with most residents in favor of making some of those units affordable. He emphasized.
What’s next?
Beyond questions of legality, many supporters are wondering what will happen next. What if Massachusetts wins but no new housing is built in Milton?
The attorney general’s initial brief describes a long history of states trying to induce more housing construction to little avail. For example, a 2004 state law provided incentives to towns to create zoning districts near transit or in densely populated areas.
“However, as of May 2024, only 49 municipalities have created such districts and, as a result, none have actually been built or permitted within the Massachusetts Bay Transportation Authority (“MBTA”) service area. “Only about 5,903 new units were added,” the summary states. .
Massachusetts’ current housing shortage is estimated to be at least 200,000 units, according to a prepared letter from affordable housing advocacy groups.
For Dworkin and others who view this case through a social justice lens, every little thing helps. “There’s no magic wand here,” he said. “We’re going to solve this crisis 10, 50, 100 units at a time.”
“The idea that they are resisting and trying to resist change is sad, but not surprising,” Silverstein said. “This resistance, in a way, kind of proves the point behind this law, which is that we need solid requirements, not incentives, to get things done. Places that are not playing their fair share will continue to play that role unless someone really pushes for it.”
