Can a town’s laws be racist even if they do not explicitly state: “No Blacks Allowed?”

That question emerged at the latest public hearing over whether to change zoning, and boost affordable housing, in New Haven’s leafy neighbor to the west.

The question came towards the end of a three-hour hearing hosted last week by the Woodbridge Town Planning & Zoning Commission.

The virtual meeting, live-streamed on the video-sharing platform Webex, was the latest episode in a months-long dispute over whether the suburb should change its zoning laws to allow for multi-family housing in every residential district in the disproportionately white and wealthy town.

The two-pronged rezoning proposal submitted by civil rights attorneys and Yale Law School students has inspired New Haveners concerned about the regional roots of segregation and racism to weigh in (in this case, and in similar statewide efforts).

It has also prompted pushback from suburbanites who argue that local control over housing laws, as well as fragile well water and septic systems, would be trampled by out-of-towners with a political agenda.

The Feb. 22 hearing marked the first opportunity in three months for Woodbridge zoning commissioners to ask the applicants questions, and to tip their hands about their take on the multi-family housing proposal as currently articulated.

The public hearing was ultimately continued, with the next virtual meeting on the matter slated to take place March 1.

Just as the civil rights attorneys and Yale Law students framed their initial argument about Woodbridge’s history of exclusionary, single-family zoning around race, one of the commissioners probed the alleged connection between residential segregation and single-family zoning.

“Does anywhere in [Woodbridge’s] statutes talk about Blacks or Hispanics or Asians?” town commissioner Paul Schatz asked.

Since the town’s laws make no such explicit racial distinction, he said, how can the applicants accuse the town’s zoning laws of being racist?

“You essentially called Woodbridge a bunch of racists” in this application, he said.

Hannah Abelow and Kare Anderson, two Yale Law students in the school’s Jerome N. Frank Legal Services Organization, recognized that this is a difficult conversation to have. They argued that, as Anderson put it, “You don’t need to have a ‘No Blacks Allowed’ sign” in town in order for Woodbridge’s zoning laws to have a disparate racial impact.

“The way the Fair Housing Act works, the way we think about what it means to have a policy that has a racist impact, you don’t have to actually be saying that we’re treating Black people differently in order for your regulations to have a disparate impact on Black people,” Abelow said.

It’s well-documented that, in Connecticut, Black and Hispanic people have on average less wealth and lower incomes than white residents, she said. She said that zoning laws that promote single-family homes atop large minimum lot sizes and that essentially exclude multi-family housing from being built anywhere in town artificially drive up the cost of housing.

That in turn erects a de facto economic and racial barrier to entry for anyone hoping to move to a town like Woodbridge.

The U.S. Supreme Court struck down explicitly race-based zoning laws as unconstitutional in 1917, Anderson said. Over the past roughly 100 years, she said, “Woodbridge was a pioneer in using seemingly race-neutral zoning regulations” to create and preserve a racially exclusive town.

Schatz returned to the letter of Woodbridge’s current zoning laws, and to the protections outlined in the Fair Housing Act.

“Our regulations never once mention sect, religion, or color,” he said. “You all are drawing conclusions that essentially paint us as racists.”

Abelow and Anderson argued that such explicit racial references are not necessary to perpetuate a “structural racism” that lingers in apparently race-neutral laws around, for example, how many families can live in one residence and how much minimum space a single-family residence must take up.

The U.S. Supreme Court identified such exclusionary zoning laws as “the heartland” of the modern-day legal disputes over disparate racial impacts and housing.

“Today, a lot of racism doesn’t take the form of a ‘No Blacks Allowed’ sign,” Abelow repeated. “It takes the form of whether or not someone can afford” to live somewhere.

Only 2.7 percent of Woodbridge is Black and only 5.6 percent is Hispanic, according to 2018 Census, in comparison to 13.5 percent and 16.4 percent of the broader South Central Connecticut region, she said.

“Exclusionary zoning has taken away housing choice from many lower-income Black and Hispanic families. … Our proposal will hopefully allow for more housing opportunities.”

Too “drastic”? Turning town into city?

Also hotly debated at the hearing was whether the rezoning application represents a “drastic” potential solution that would burden Woodbridge’s well water and septic systems with an unsustainable level of development.

“Our town has before us a presentation to change every single residential” district to permit multi-family housing, zoning commission Chair Rob Klee said.

“You’ve asked us to change all of our residential zoning rules. … Does it need to go all the way to this end of the spectrum” in order to address the affordable housing concerns raised by the civil rights lawyers and law students? he asked.

During a half-hour presentation at the beginning of the session, Glenn Chalder —a land use consultant hired by Woodbridge to offer an independent evaluation of the rezoning proposal—argued that this application could have a profoundly negative environmental impact if approved as is.

He repeatedly stated that the application does not strike an appropriate “balance” between housing, public health, and public safety.

He said that “more than half” of Woodbridge is a state-designated “public supply public watershed,” meaning that reservoirs in the community provide water supply for hundreds of thousands of people in the Greater New Haven region.

Chalder cited various regional and state studies that argue that for a minimum lot size “not less than two acres” for housing built in such protected zones. He warned of the long-term “cumulative impact on septic systems” posted by dense residential development in towns like Woodbridge that don’t have extensive public sewer infrastructure.

And he said that the current application could allow up to a 36-unit apartment building—or 12 units per acre—on a three-acre lot where a developer associated with the applicant, Open Communities Alliances, hopes to convert a single-family house into a four-family dwelling.

Town Commissioner Jeff Kennedy  agreed.

“Your remedy is drastic,” he said. “Your remedy is very strong. We have Yale Law School students telling us to write this legislation and go from [being] a town into [being] a city.”

In their responses to Chalder’s presentation and Klee’s questions, Abelow and her colleagues repeatedly argued that the rezoning proposal would affect only how many families could live in a residential building currently allowed under town zoning law.

It would not affect the permitted size or lot coverage of such structures. It would not impede public health agencies from enforcing regulations pertaining to water and sewers.

“Any multi-family developers will still need to abide by the public health code regulations regarding septic and water,” said Sean Yang, a Yale architectural school student enrolled in the law school’s clinic. “In situations where the environment would be put at risk, the public health code would be protecting Woodbridge from overdevelopment.”

“We’re not asking to change setbacks or coverage,” he continued. “The existing public health code regulations will take care of other concerns and scale up accordingly.”

Zoning Commissioner Yonatan Zamir asked about page 66 of the 138-page application, in which the proponents argue that considerations of “soil types, terrain, or infrastructure capacity” cannot be used as a “per se excuse for abdicating [a municipality’s] affordable housing responsibilities under § 8-2.”

How exactly does that argument compare to the potential environmental damage warned of by Chalder?

Abelow said that state statute 8-2 gives a “direct command that towns have to zone in a way that promotes multi-family housing and economic diversity and housing choice.”

The law calls on commissions to take into consideration soil types, terrain, and infrastructure capacity.

“But that doesn’t mean that one cannot do multi-family altogether or not have affordable housing altogether.”

These considerations should help inform where and what kind of multi-family housing should be located in town. They should not provide an excuse to bar multi-family housing entirely, as Woodbridge has largely done, she said.

And what about state statute 8-30j? Klee asked. That recently adopted state law requires municipalities to “prepare or amend and adopt an affordable housing plan for the municipality” every five years. Per this law, Woodbridge would have to develop and adopt its own affordable housing plan by July 2022.

Why should the town approve this zoning overhaul proposed by outside lawyers, he asked, when it’s required to go through a town-wide affordable housing planning process in less than a year and a half?

Open Communities Alliance Executive Director Erin Boggs  said that that upcoming, mandatory affordable housing planning process is all well and good—but it does not preclude the town zoning commission from taking action earlier.

“This can be an immediate thing, an actionable thing,” she said about the rezoning proposal.

She and Anderson argued that Woodbridge has shot down many proposals over the decades to update its zoning code and Plan of Conservation and Development (POCD) to encourage the development of multi-family housing.

That means that “we’re starting in a segregated landscape,” she said, that the Town of Woodbridge and many others like it have repeatedly refused to ameliorate on their own.

If only “local interests” in a particular town are left to guide what that town’s zoning should look like, she said, if we only take into account those who already live in a segregated town, “then we’re likely to stay in a segregated landscape.”

This story was first published Feb. 22, 2021, by the New Haven Independent.