The Harvard Law & Policy Review Online, published a note, entitled End Residential Racial Segregation: Build Communities that Look Like America, by long time housing advocate and Indiana University law professor Florence Wagman Roisman. After detailing the history of federal policies that have resegregated American cities along racial lines, the author suggests seven common sense initiatives to address the problem. We join Florence in her hope that we soon find leaders with the power, vision and courage to implement these needed changes.

The United Nations Committee on the Elimination of Race Discrimination (CERD) issued its Concluding Observations on March 7. These Observations followed formal review of the U.S.’s report to the CERD under the International Convention on the Elimination of All Forms of Racial Discrimination, a treaty the U.S. ratified in 1994. In the “positive aspects” section of the report on the U.S., CERD applauds California Housing Element Law as an effective anti-discrimination and anti-segregation tool. California Housing Element Law requires each jurisdiction in California to plan and zone for the housing needs of all economic segments of its population, including the needs of residents in the lower income strata who are disproportionately people of color. While many civil rights and affordable housing advocates advocate for a strong housing element law, many have used it to promote more equitable development policies and patterns. Such application is described in the January 08 REP e-newsletter article by Michael Rawson of the Public Interest Law Project (PILP). Other positives in the CERD report include the recent reauthorizations of the Violence Against Women Act and the Voting Rights of 1965.

Among the many concerns, with recommendations, listed in CERD’s report are persistent racial segregation in housing, persistent lack of access to opportunity among people of color, particularly African-Americans and Latinos, the failure of national and state law and jurisprudence to recognize and remedy discrimination caused by disparate impact, the U.S. Supreme Court decisions in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education and their after effects, and the ongoing displacement and disenfranchisement of African-Americans from the gulf region two years after Hurricane Katrina. The National Law Center on Homelessness and Poverty, the Poverty and Race Research Action Council, PILP and Public Counsel are among the organizations that contributed to the report.

See also the CERD Housing Report: Residential Segregation and Housing Discrimination in the United States.

The REP is happy to bring you the long-awaited and much-anticipated e-newsletter exploring land use and housing issues faced by low income persons of color. We hope this e-newsletter will shed some light onto how advocates can fight structural and institutional inequity and racism through the creative use of land use and housing law.

The three contributors to this e-newsletter each bring a unique perspective to land use and housing practice. We hope that you will find their articles informative and inspiring. Enjoy.

Using California Law to Advance Race Equity in Land Use, Mike Rawson, Co-director, The Public Interest Law Project.

Public Housing Redux, Demetria McCain, Esq., Director of Advocacy & Education, Inclusive Communities Project, Inc.

Empowering Communities of Color Through Land Use Advocacy, Zenobia Lai, Senior Attorney, Greater Boston Legal Services.

We are still ruminating on the theme of the next e-newsletter. If you have a suggestion, we would love to hear from you.

Local governments historically have generally exercised their broad land use and zoning powers to exclude rather than encourage housing affordable to lower income households. Local prejudices and parochialism cultivated land use policies and practices that exacerbated long time patterns of racial and economic segregation. They also underlie efforts to eliminate low income communities of color under the guise of eliminating blight. In recent years, however, California has adopted several laws that place important limitations and obligations on local decision makers when it comes to approving affordable housing or displacing lower income tenants.

• Local land use authority begins with the adoption of a general plan, which must include a housing element that is updated every five years. Most significantly, a housing element must identify specific sites that are available appropriate for affordable housing and address governmental constraints to development. The sites must be sufficient to accommodate the community’s state and regional government determined “fair share” of the regional need for affordable housing. If the locality fails to adopt a housing element or adopts one that is inadequate, a court can order the locality to halt development until an adequate element is adopted or order approval of specific affordable housing developments. In most cases, the identification of sites must include sites zoned for multifamily development by right. Given economic realities in most communities, i.e. that people of color are disproportionately lower income, these laws, coupled with strategies to ensure housing choice and policies that encourage racial integration, can be particularly beneficial to communities and households of color. Interested in more information? Take a look at PILP’s California Housing Element Manual.

• Even in communities with good housing elements, misinformation and prejudice e.g. based on race, ethnicity or disability, often unconscious or masked, can generate fierce opposition to affordable housing. State law counters this Not-In-My-Backyard phenomenon by prohibiting disapproval of affordable housing unless the locality finds that one of a few specific and narrow conditions exist. Generally, a local agency may not turn down an affordable housing development unless the project would have a specific, adverse and unavoidable impact on health and safety, based on objective, written standards and which cannot be mitigated or the community has met all of its “fair share” housing need. This relatively high standard, if interpreted and enforced property, enables affordable housing advocates to counter or mitigate virulent opposition based on racial animus, bias against low-income people, and bias against people with disabilities. Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• This statute forbids discrimination against affordable housing developments, developers or potential residents by local agencies when carrying out their planning and zoning powers. Agencies are prohibited not only from exercising bias based on race, sex, age or religion, but from discriminating against developments because the development is subsidized, will be occupied by lower income persons, or is a multifamily building. Local governments may not impose different requirements on affordable developments than imposed on market-rate projects. Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• Like the federal Fair Housing Act (FHA), FEHA prohibits discrimination by local government and individuals based on race, color, religion, sex, familial status, marital status, national origin, ancestry or mental or physical disability (and FEHA also protects sexual orientation and source of income). FEHA expressly prohibits discrimination through public or private land use practices and decisions, and expressly provides that there is a prima facie violation of FEHA if land use actions have a disparate impact on the protected groups. (§ 12955.8) This provides advocates with a powerful tool for addressing exclusionary actions where there is little from of or no evidence of intentional discrimination, which now is more often the case in the case of housing discrimination based on race.

• FEHA, like federal law also requires local governments considering housing projects for the disabled to make reasonable accommodations in rules, policies and practices if necessary to afford disabled persons equal opportunity for housing. (§ 12927). Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• Local governments must grant projects with a prescribed minimum percentage of affordable units up to a 35% increase in density and/or up to 3 incentives/concessions from local land use regulations and development standards. A concession can include a reduction in parking or design standards or modification of zoning requirements. Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• CEQA Exemption: Pub Res Code §§ 21159.20-25 provide exceptions to from CEQA review for affordable developments meeting particular criteria.

• Conditional Use Permits: Gov. Code § 65589.4 prohibits conditional use permits on multifamily housing developments that meet the CEQA affordable housing, farmworker or infill exemptions, and on affordable multifamily housing with 100 or fewer units, a density of at least 12 units/acre, located on an infill site in an urbanized area.

• Exclusionary Zoning: C.H.I.P. v. City of Orland (E.D. Cal.). Faced with virulent NIMBY opposition, the City denied a non-profit developer approvals for the development of a 40 unit farmworker housing development by rezoning the lot for low density development. The developer and farmworker families brought suit alleging, among many claims, that the City’s actions were inconsistent with the housing element, had a disparate impact on Latino families and violated the anti-NIMBY statute. The case settled with the City providing an alternative site in the same neighborhood and damages.

• Combating Displacement: Hom v. I.H.M.C. (Superior Ct., Alameda County). After agreeing to keep 50 units in Oakland’s Chinatown affordable to very low income tenants for at least ten years in exchange for receipt of Oakland Redevelopment Agency funds for a commercial residential project, the owner summarily began vacating units without negotiating with the Agency over maintaining affordability. The tenants, who were predominantly Asian and older persons with disabilities (and ultimately the City) sued raising fair housing claims based on race and disability as well as contractual violations. The case settled with the owner agreeing to convey the 50 units to a nonprofit developer at a substantially discounted price.

By Mike Rawson, Co-director, The Public Interest Law Project. The Public Interest Law Project “provides statewide support, including litigation, policy advocacy, consultation and training for local legal services and other public interest law programs in the areas of public benefits, housing, health, civil rights, redevelopment and community reinvestment. The Project was established in 1996 to continue class action and other major advocacy without LSC funding.”

A donut that is constantly being nibbled at the edges is perhaps an apt description of Boston’s Chinatown. During the four and a-half decades between 1950 and 1995, this 46-acre neighborhood was besieged with institutional expansion waged by the medical school and the hospital in its core and highway construction on its fringes. (For background of the land use history in Boston’s Chinatown, see Zenobia Lai, Leong and Wu, “ The lessons of the Parcel C struggle: reflections on community lawyering,” 6 Asian Pacific American L.J. 1 (Summer 2000); also Louder than words: lawyers, communities and the struggle for justice, c.6. p. 120 (Penda D. Hair, ed., March 2001)) During the past decade, gentrification brought on by mega development of luxury condominiums and apartments has replaced institutional expansion to threaten Chinatown’s survival. To protect this community from gentrification is immediate and urgent.

Land use and zoning is not within the traditional legal services practice areas, why did Greater Boston Legal Services take this up? It started when the community asked the Asian Outreach Unit in 1993 to explore legal handles to stop a proposed hospital garage on “Parcel C,” one of the last remaining urban renewal parcels. In the course of mapping out the land use history of Chinatown from the 1950s to that point, it is not difficult to see that facially neutral land use policies had robbed this community of much needed housing and open space. The urban renewal policy implemented pursuant to the 1948 National Housing Act and the highway plan of 1948 had worked in tandem to remove land and housing from Chinatown. Instead of implementing the urban renewal policy to replace dilapidated housing with new housing for existing residents, the policy was implemented to raze existing housing leading to the displacement of hundreds of residents from the neighborhood, only to clear the land to enable the hospital and medical school to expand in the heart of Chinatown. At the same time, the construction of two interstate highways stripped land and housing off two sides of the neighborhood, removing still more housing units and families in the 1950s and 60s. The effect of the urban renewal was to hollow out Chinatown from the inside whereas the effects of the highway construction was to box in Chinatown from the edges. While these government policies ravaged through Chinatown, the adjacent neighborhoods with mostly white residents were left untouched. The reason why such devastating land use policies could be implemented in Boston Chinatown but not in the neighboring communities was because the Chinese residents did not matter to the policy makers. Almost a century of exclusionary immigration and citizenship policies had deprived Chinese Americans from re-uniting with their overseas families, becoming citizens and hence voting.

By 1993, the legacy of the adverse land use policies has reduced Chinatown into a neighborhood that looked like a donut, with numerous surface parking lot dotting its landscape. The proposed hospital garage on Parcel C was particularly offensive, not only because of the history of the hospital’s land grab within the community, but also because the City had promised to preserve this piece of land for a Chinatown community center less than two years earlier. Moreover, this garage proposal would test the efficacy of the Chinatown Community Plan adopted by the city in 1990, which lays the ground rules and principles for future land use and developments for Chinatown.

The research into the community’s land use and social history quickly led us to conclude that the garage proposal was only “the miner’s canary.” (This is referring to the theme of the book of the same title by Lani Guinier and Gerald Torres.) The battle to protect Parcel C from institutional expansion was thus not just the mechanical examination of land use law or development review, it called for a challenge to the underlying government policies and actions that sanctioned inequitable land use adversely affecting a community of color. GBLS represented the Coalition formed to fight for Parcel C through the city’s project review process (The city’s project review process followed Article 31 (has since been amended and re-codified as Article 80) of the Boston Zoning Code, which focused on the proposed development’s impact on the environment and not on the social fabric of the community.) and the state’s environmental review (MEPA) process. (The state’s Executive Office of Environmental Affairs oversee the environmental review pursuant to the Massachusetts Environmental Policy Act, M.G.L. c.30, Sections. 61-62H, 301 C.M.R. Sec. 11.00 (amended in 1998).) Although for the first time, the community was able to demand a bilingual public hearing, secured a skimpily translated draft environmental impact report and succeeded in convincing the state agency to require the hospital to redraft its environmental impact report, we knew that this review process would not stop the garage in the end. This realization led us to begin building a civil rights case along an environmental justice claim that centered on the continuing application of land use policies that produced disparate impacts on a community of color. The environmental justice claims that Boston Chinatown has developed are not about hazardous waste or toxic dump. They center around the municipality’s deliberate land use policies that have allowed highway construction, adult entertainment district siting and institutional expansion to take place in inner city neighborhood that produces adverse impacts on low income community of color. The case was never filed because the city negotiated with the hospital to withdraw the garage proposal a week before the planned filing date. The potential lawsuit, however, created a new dialogue within the community that had never before considered civil rights “their” issue.

Since the Boston Chinatown community won the Parcel C battle, the landscape of the land use in the community has changed. Instead of institutional expansion, Boston Chinatown has been experiencing downtown encroachment and gentrification. Since 2000, approximately 1200 units of housing has been built in and around Chinatown, which almost doubled the total number of housing units in this neighborhood. Of these new units, less than three percent is affordable to low income households, which account for the majority of those in Chinatown. Almost all of them are high rises with hundreds of units in a single development, apparently to advance the “smart growth” principles. The frontier of the Boston Chinatown’s land use battle has moved from the earlier environmental justice claims to zoning enforcement. The issue of contention is the municipality’s granting of illegal zoning variance to allow the building of luxury residential high rises in Chinatown to hasten gentrification that leads to displacement of low income residents. (In 2002, Greater Boston Legal Services represented a community based organization and a tenant in suing the City of Boston and the private developer for violating the zoning in proposing to build a high rise residential building at three times the height limit and twice the allowable density under the applicable zoning code. For a brief discussion of this case, see Raun Rasmussen, Zoning and Land-Use Laws: Tools to create housing and services for our clients, Clearinghouse Review Journal of Poverty Law and Policy, 441,454 (Nov. – Dec. 2002).) Instead of undoing its 1972 zoning that put the sex business into Chinatown in the first place, the city has chosen a circuitous and ineffective route. It has chosen to allow developers to violate zoning law to build luxury high rises that in the city’s view will “contain” the adult entertainment district.

Almost fifteen years after Greater Boston Legal Services took on the first land use case in Boston Chinatown, our practice on this issue has broadened beyond the project-by-project challenge. Recognizing that this community’s strength derives from its physical space marked by Chinatown, GBLS has been working with community-based organizations to build resident capacity and to map out broader economic and community development strategies to ensure this community’s survival. The upcoming challenge will focus on the future development of a 10 to 20-acre site made available by the completion of the “Big Dig,” part of which comprised land taken from the community in the 1950s and 60s. The next frontier of our work will be to combine our legal expertise in zoning law, inclusionary zoning policies, affordable housing policies, and civil rights laws with the expertise of urban planners to push through the community’s vision of survival and growth, both geographically and economically.

In devoting significant resources in preserving one community, Greater Boston Legal Services has not abandoned its practice in other areas. Its Asian Outreach Unit (AOU) that focuses on serving the legal needs of the low income Asian immigrant community has continued to have a general poverty law practice that covers employment, family, housing, immigration, and public assistance. The unit was founded in 1972 by the first generation Asian American law students to bring legal services to the growing Chinese community who could not access the mainstream legal services due to language barriers. Recognizing that the understanding and resolution of their legal problems also requires knowledge of cultural practices common in the community, the AOU and its predecessor also emphasize bringing in bilingual and bicultural staff and interns to aid in the delivery of legal services. Thirty-five years after it was formed, the core mission of the Asian Outreach Unit has remained unchanged. In fact, over the past decade, the Asian Outreach Unit has emerged as a model for other legal services programs in designing their service to better serve the needs of limited-English-proficient clients. (See e.g. The search for equal access to justice: Asian American Access to Justice Project Report, p.29 (The National Asian Pacific American Legal Consortium, May 2000); Expanding Legal Services: serving limited English proficient Asians and Pacific Islanders, p. 25 (Asian Pacific American Legal Center, Nov. 2003); the Asian Outreach Unit is also profiled in an abstract on the Legal Services Corporation resource library.) It is challenging to strike a balance between meeting the day-to-day legal needs of individual clients through the regular legal services delivery and taking on big projects that address the long-term economic, social and political advancement of the community. (Besides the land use work in Chinatown, the Asian Outreach Unit also served as the legal counsel to the Vietnamese American Initiative for Development (Viet-AID) during its early years in the mid-1990s. Viet-AID is the first and only community development corporation founded by and for the Vietnamese American community. It is the brainchild of one of the first seven NAPIL (now Equal Justice Works) fellows who joined the Asian Outreach Unit in the fall of 1993. The AOU helped with the formation of the family childcare center project and the community center by doing basic legal research on the applicable program regulations and property titles. Along the way, AOU has also helped form and incorporate tenant associations and the Boston Chinatown Resident Association.)

However, legal services need not evaluate its programming within an “either-or” construct. The collective advancement of the social and economic conditions of a community also benefits the clients who may come to legal services for assistance on individual legal problems. The solution to persistent poverty is in both helping the individuals get more income and correcting the underlying conditions that keep people poor. One approach is short-term and immediate, the other is long-term and perhaps indirect. With respect to the Boston Chinatown community, we are experimenting with using the tangible land use emergency to stimulate the community’s imagination, to find ways to capitalize on these developments to produce economic opportunities for the community burdened with these developments. We hope that by working with the community to create a vision for its physical and economic future, and by lending our expertise to support its implementation, the Boston Chinatown residents may one day afford to rent or own the gleaming new apartments that are rising in their neighborhood.

By Zenobia Lai, Senior Attorney, Greater Boston Legal Services