On Jan. 26, 2012, Supreme Judicial Court Justice Ralph D. Gants
led lawyers on a walk to Beacon Hill seeking additional funding for
the Massachusetts Legal Assistance Corporation (MLAC). He delivered
a resounding address citing reasons the legislature should approve
additional funds for the MLAC. He began by noting that legal
services ensure that the promise of "justice for all" is more than
a promise. He ended by urging his colleagues to ask our elected
representatives some variation of the questions asked centuries ago
by Hillel: "What kind of commonwealth would we be if we did not
protect the rights of those in need by providing them with adequate
legal services? And if we do not protect the rights of those in
need, who will? And if not now, when?"
Access to justice is a fundamental human right. Access to
affordable housing (although not guaranteed under the U.S.
Constitution) is considered to be a fundamental human right under
national and international declarations. See Article 25 of the
Universal Declaration of Human Rights, and Article XI (11) of the
American Declaration on Rights and Duties of Man, among others.
Declarations and covenants do not create obligations that are
legally binding; however, the Universal Declaration is widely used
as the primary source of what are considered human rights.
Whether or not you consider access to affordable housing a
right, the current affordable housing crisis cannot be ignored.
It's ironic that this crisis began at the end of the subprime
lending "boom" and subsequent mortgage and financial crisis. Many
of us who witnessed subprime lending practices such as "no doc"
loans, 100 percent financing, negative amortization and high-capped
adjustable-rate mortgages knew that the housing bubble wasn't
sustainable. There had to be a correction in the market and an
overhaul of lending and mortgage investment practices. As we know,
there has been a dramatic shift in lending practices. Some would
say the tightening of lending practices and loan underwriting has
gone too far. Housing prices dropped for a brief time in 2008-2009,
but now, rather than a slow, steady rise in values, we have another
bubble. To add insult to injury, incomes have not risen to keep up
with home values.
Now we are faced with the reality that fewer and fewer people
can afford to buy or rent in Boston and the 'burbs and many other
urban centers across the country. As residential real estate
attorneys, we have borne witness to transaction after transaction
where sellers have enjoyed choosing from multiple offers over
asking price. Oftentimes the offers are cash transactions from
well-heeled foreigners looking to put their money in real estate in
the U.S. On the flip side, we have sympathized with our buyer
clients who have been discouraged after losing bidding war after
bidding war. Many of us have worked with buyers who have lost bids
on multiple homes, sometimes over a period of a year or more.
The dilemma is that, the longer it takes to enter the market,
the tougher entry becomes. In January, Standard & Poor's issued
a report which estimated that home values (in the Boston area) will
increase 24 percent by 2020. S&P's predicts home prices in the
Boston area would still actually go up if another recession hits of
the magnitude of the economic downturn in 2007.
To make matters worse, being forced to continue to rent puts
would-be homeowners at a further disadvantage. In the Greater
Boston Housing Report Card issued March 31, 2015,
Barry Bluestone notes that we are now at the point where it
takes an annual income of $100,000 to afford Boston's median
With no foreseeable end to dramatic rises in housing and rental
costs, is there any way to address the lack of affordable housing?
Inclusionary housing programs may offer some solutions. These
programs, as well as land use and zoning laws, are not new, and
have evolved over the years, i.e., M.G.L. c. 40B, R and S. Known as
The Comprehensive Permit Act, M.G. L. c. 40B was enacted in 1969 to
allow developers of affordable housing to override certain
municipal zoning bylaws. The goal was to encourage the production
of affordable housing by reducing barriers created by local
building permit processes, zoning and other restrictions.
In 2004, Massachusetts enacted the Smart Growth Zoning and
Housing Production Act (Chapter 40R). Rather than focus on
developers, Chapter 40R encourages cities and towns to zone for
compact residential and mixed-use development by offering financial
incentives and control over design. Chapter 40S covers the costs of
educating school-age children who move into cities and towns that
establish 40R districts.
The current crisis underscores the continuing and urgent need to
address the lack of affordable housing. Could there be further
amendments to our housing and economic development laws that would
help to address the situation? Perhaps corporate benefactors could
help. General Electric will be receiving huge incentives from
Boston and the commonwealth to relocate their headquarters here.
Maybe they could "spread the love" a bit by partnering with Boston
and the commonwealth in developing affordable housing.
Cambridge-based Lincoln Institute of Land Policy has published
reports on inclusionary housing policies that link approvals for
market-rate housing to the creation of affordable homes for low and
moderate-income households. One goal of inclusionary housing
programs is to expand the supply of affordable housing. Could
affordable housing requirements stand in the way of development?
Not if there are sufficient incentives for developers to include
affordable housing in new developments.
At the time this article was written, there were 934 luxury
condominium units for sale in Boston, from the Financial District
to Back Bay to the Leather District to the Seaport, Roslindale and
Jamaica Plain. Prices ranged from $1.9 million to more than $12
million. It would appear that 98 percent of the population cannot
afford to live in Boston anymore.
Practicing attorneys are not policymakers, but just as many of
us walked up the hill with Gants to ensure access to justice for
all, we must walk up the hill again to ensure access to affordable
housing for all of our citizens. The MBA has a time-honored process
of identifying and addressing legal and public policy issues in
ways that promote solutions to pressing problems. The MBA must
address affordable housing. What kind of organization would we be
if we did not help the vast majority of the population who need
affordable housing? And if we do not protect those in need, who
will? And if not now, when?