Published on February 8, 2020
Editorials by Gregory Stroud

The struggle for equitable housing is inseparable from — but not identical to — the decades long civil rights movement in the United States.

No doubt that’s in part the reason that, “Separated by Design,” the recent multipart series on affordable housing by Jacqueline Rabe Thomas is couched in a vocabulary of civil rights.

“Housing segregation,” as Thomas phrases the issue of affordable housing.

And to be sure, there is ample evidence that the WWI-era introduction of zoning laws in the United States went hand in hand with racial segregation.

Until a landmark 1917 decision by the United States Supreme Court in Buchanan v. Warley, housing regulations could simply exclude minority residents from majority white neighborhoods.

After 1917, de jure segregation – that is the legal exclusion of minorities – was prohibited, but there was no such constitutional protection for the poor.

And for the next 60 years, the courts upheld – in Euclid v. Ambler and Village of Arlington Heights v. Metropolitan Housing Development Corp — a familiar set of land use regulations, often described as “exclusionary zoning,” which acted to exclude the poor, and over time also decisively shaped many American suburbs: two-acre zoning and requirements for substantial houses that priced poorer would-be residents out of the market, limits on apartments and rental units, the separation of residential and commercial uses.

At the same time, Congress underscored the intent of Buchanan v. Warley under the Fair Housing Act of 1968 to prohibit discrimination in housing; a protection which over time has been extended to include discrimination on the basis of race, color, national origin, religion, sex, ability or familial status.

In Connecticut, these protected classes also include sexual orientation, and by “lawful source of income” (for example Social Security, Section 8, etc).

But here’s the rub…

Although it is still technically not illegal to discriminate against lower-income residents, it is hardly a secret that many or most of these ‘protected classes,’ are disproportionately represented among lower-incomes.

And in a series of decisions since the Fair Housing Act, the courts have gradually developed and upheld a standard of “disparate impact,” whereby statistical evidence and other evidence can be used to convince the courts that a law or practice can constitute de facto prohibited discrimination, even if the intent is innocent (or claims to be innocent).

For example, in 1980 United States District Court for the Southern District of Alabama decided in United States v. Housing Authority of Chickasaw, that it was discriminatory for a public housing authority to serve only local residents.

These decisions on “disparate impact,” culminated in a 2015 decision by the U.S. Supreme Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., affirming the legitimacy of disparate impact complaints in cases of housing discrimination, and in the majority opinion Justice Kennedy in fact argued that exclusionary zoning was at the “heartland” of the decision.

To be clear, in 1989, the Connecticut General Assembly passed “The Affordable Housing Land Use Appeals Procedure,” better known as “8-30g,” not to mandate that Connecticut’s 169 municipalities construct “affordable housing,” for the workforce, or to ease the burden of volunteer government or town employee salaries, but rather as a remedy to a long history of discrimination – in housing, schools, and services – by what is known as “exclusionary zoning.”

Of course, towns in southeast Connecticut do not have de jure segregationist rules on their books, but in the case of Lyme or Old Lyme or Stonington or Essex, “exclusionary zoning” could broadly be construed to include everything from open space provisions – and conservation set asides to prevent development — to requirements for minimum lot sizes, to limits on the construction of multifamily housing, to sewer avoidance, to housing policies that give preference to town residents and employees.

Given that exclusionary zoning fundamentally shapes how much of Connecticut lives, there should be enough to this to make most everyone uncomfortable.

With the first meeting of the Old Lyme Affordable Housing Commission scheduled for Monday at six o’clock and the Community Foundation of Eastern Connecticut sponsoring “Separated By Design,” a forum on affordable housing at Mitchell College in New London on February 27 based on Jacqueline Rabe Thomas’ recent work for CT Mirror… a little food for thought.