Racial Covenants Lurk in Local Property Deeds

Ames Homestead Deed 1958

Discriminatory language persists in real estate deeds across the United States and Massachusetts is no exception. Though most property owners are unaware of this issue, so-called “racial covenants” disallow the transference of properties to specific groups of persons. Such language is embedded in many Massachusetts deeds–including some right here in Shutesbury.

Lake Wyola Deeds with Racial Covenants

After hearing that some deeds for properties on Lake Wyola have racial covenants, I did some research on Masslandrecords.com. I found that in Shutesbury, covenants were inserted into some deeds to prevent ownership by “anyone other than persons who are of the Caucasian race”.

Searching randomly revealed that many properties on and around Lake Wyola were originally part of two large sets of land plans filed by two specific landowners. One is the “Harriet E. Ames Homestead Lots”, encompassing several lots on Shore Drive and North and South Laurel. The other plan, called “Great Pines, Shutesbury Mass.”, represents land owned by Paul H. Henley and includes much, if not all, of Lake Drive and Great Pines (open the plans in a new window or tab to enhance readability).

Ames Homestead Plan 1952

Great Pines Plan 1938

Deeds stemming from these plans included the restrictions, “The premises shall not be sold to, or occupied by, anyone other than persons who are of the Caucasian race”, or “That no part of the land hereby conveyed, or the improvements thereon, shall ever be sold, leased, traded, rented or donated to any other than the Caucasian race.” 

How Racial Covenants Became Institutionalized

Restrictive deed covenants prevent many people, including those of Irish, Italian, or Polish heritage, from owning, leasing, or occupying certain properties. The majority of these covenants also bar Black individuals from doing so. This practice can be traced back to the Great Migration (1910-1970) when African Americans moved north to seek opportunities and escape segregation. The resulting racial tensions led to the widespread use of racial covenants that excluded "non-Caucasians." These covenants were heavily used by developers and realtors and were even encouraged by the U.S. Federal Housing Administration to promote "neighborhood stability".

Several court cases and laws over the years have supported such covenants, at least privately. While 1917’s Buchanan v. Warley noted that zoning based on race was unconstitutional, it did not include private deed restrictions. The 1926 Corrigan v. Buckley decision affirmed the legality of such covenants, and the 1948 Shelley v. Kraemer case asserted that while the 14th Amendment had been violated, racial covenants could still be privately enforced even if state and federal entities could not do so.

The Fair Housing Act of 1968 prohibits housing discrimination based on race, color, national origin, religion, sex, familial status, or disability, thus making racial covenants illegal and unenforceable. Still, these covenants continue to exist and, in some predominantly white areas, appear to add value to the properties to which they are attached.

Follow the Money

The persistence of this ingrained form of racism may seem surprising until one realizes that racial covenants were a profitable venture for many white individuals and businesses. Developers and real estate agents played a key role in establishing and perpetuating this practice, promoting properties with racial covenants to white individuals as a means of safeguarding their investment. William Leavitt, the developer credited with popularizing the concept of suburbia after World War II, implemented racial covenants in all of his numerous Levittown developments. By the 1960s, Leavitt had amassed wealth of over $100 million.

 

For some white homeowners, racial covenants have effectively increased home values. Studies have revealed that homes with covenants in Minneapolis have values that are 20% higher than similar homes without covenants. A research project by the University of Minnesota’s Mapping Prejudice Project revealed nearly 560 deeds with racial covenants in the suburbs surrounding Boston. Notably, many of these communities are affluent and have populations that are approximately 90% white.

Renouncing Discriminatory Deed Covenants

Some property owners have used their outrage over racial covenants to push state governments to allow homeowners to void or redact such language in their deeds. Currently, 34 states and Washington, D.C. have laws addressing the remediation of racial covenants. Most allow property owners to simply void the language, while others have a procedure to remove the covenant entirely. 

Massachusetts law allows for voiding such covenants but does not remove them, which provides for repudiation without denying their historical existence. A bill that would expunge such language has stayed in committee for nearly two years.

The complaint process is free, but, like all state laws concerning racial covenants, it depends on the deed owner conducting their own research. For many property owners, being able to reject racially discriminatory deed covenants legally is valuable enough to justify the effort.

Note: This blog uses the AP style whereby Black is capitalized and white continues to be non-capitalized when referring to race.

Massachusetts POST Commission Criticized Over Database Transparency

Photo by Andrew Valdivia on Unsplash

Established by legislated police reform in the wake of George Floyd's murder in 2020, the Massachusetts Peace Officer Standards and Training (POST) Commission’s goal is “to improve policing and enhance public confidence in law enforcement by implementing a fair process for mandatory certification, discipline, and training for all peace officers in the Commonwealth.”

The POST Commission is responsible for creating and managing a statewide police officer certification process, including retraining in case of certification suspension or decertification. They also collaborate with the Municipal Police Training Committee to establish "use of force" regulations.

The most anticipated part of the new law was the creation of a database, accessible to the public, that would include complaints against police officers and any subsequent disciplinary action. 

Rollout Hiccups

The Commission’s database was launched online in August 2023, a year later than planned, providing the public with its initial access to police disciplinary records dating back to 1984. It contained a little over 3,400 records out of an original 36,000–a discrepancy described by the Commission’s Executive Director as weeding out those involving “minor matters”. This practice did not appease some law enforcement groups who felt some database entries dealt with inconsequential issues that caused embarrassment for the officers involved.

However, some news outlets noted that important information was missing–such as reports concerning misconduct by several police chiefs.

In a recent (paywalled) Boston Globe article, Commission officials acknowledged information gaps and strengthened regulations regarding disciplining departments and officers who withhold complaints from the Commission. Officials also noted that the database contained information that should not have been included while excluding relevant data.  

Shortcomings of the POST database

The Commission updated the database on August 19, 2024, adding approximately 600 new complaints. While generally lauded by the media and civil rights groups, concerns were raised over including “sustained” allegations only and the ambiguous language used to describe many offenses. Often, the database characterizes offenses as “other misconduct” without further commentary.

The Officer Disciplinary Records Database webpage lists the specific types of misconduct complaints that will be added to the database: 

• Reports alleging bias on the basis of race, ethnicity, sex, gender identity, sexual orientation, etc.

• Complaints regarding use of excessive, prohibited, or deadly force

• Actions that resulted in serious bodily injury or death including officer-involved shootings

• Truthfulness or professional integrity (misrepresenting or falsifying reports or evidence)

• Criminal misconduct (felonies, misdemeanors)

• Other misconduct (unprofessionalism, policy violations, conduct unbecoming, conformance to rules, etc.)

It also notes that certain information, such as data regarding police officers who resigned or retired in good standing, or “unfounded or non-sustained complaints” is not included in the database.

While it makes sense to list only infractions supported by evidence, the vagueness of the language used in the database limits its usefulness to the general public. 

A database search shows the phrase “Other Misconduct” dominates each page, showing up 4,986 times throughout the document’s 567 pages. “Allegation Details” are often scanty or non-existent, giving readers little or no understanding of the nature of the offenses. In some cases, the wording used in the description is difficult to understand; in others, the allegation details appear to be listed in the “Allegation Subtype” column.

Reporting Methods for POST Complaint Submission

There are two ways complaints are submitted to the Commission: through the state’s approximately 440 Law Enforcement Agencies (LEA),  or the public complaint form. According to the articles referenced in this post, both methods can potentially cause confusion or errors in the database.

LEA Reporting

In each case, the reliability of the information submitted is crucial. For LEAs, cases are processed before being submitted to the database, meaning the agency or department has already decided on the case. This means that descriptions of offenses can vary between cases and departments. It also means that the Commission cannot know if all the relevant information is being submitted for each case – or if entire cases are being omitted.

Other reasons submissions from LEAs can create database omissions are that cases have yet to be completely processed, or departments and agencies are still learning what is appropriate to submit and what is not. 

Complaints by the Public

Complaints by members of the public are submitted via the Police misconduct complaint form. While the LEA and public forms list the types of misconduct noted above, not all the descriptions on the public complaint form are fully explained (“other misconduct”) or are left out entirely (“misconduct”).

The form indicates that after a complaint is submitted, the Commission will notify the relevant agency or department and determine whether to conduct its own investigation or wait for the involved entity to do so. The Commission can then accept the entity’s decision or conduct its own investigation and take disciplinary action if necessary.

It's unclear how, or if, complaints submitted by the public are listed on the database, as the word "public" does not appear in any of the "Reporting Agency" columns. Since the Commission can simply accept the results of the complainee’s investigation, it's possible that these submissions do not proceed to the point where they would be included in the database.

Conclusions

Despite the deficiencies of the POST Commission database, it is a huge win for transparency and the right of residents and taxpayers to gauge whether public servants are performing their duties lawfully.

The database is new, and growing pains are to be expected. The Commission has shown a willingness to listen to concerns and address them, a process that should continue to improve its usefulness to all stakeholders. 

The Massachusetts Fair Share Tax is a Winner

Photo by Dinero777 via Pixabay

In November 2022, Massachusetts voters passed ballot question No. 1, the  Fair Share Constitutional Amendment that would impose an additional 4% tax on taxable income above $1 million.The money raised from this so-called “Millionaire’s Tax” would be used exclusively for public education and transportation infrastructure. 

The Fair Share Tax was estimated to bring in approximately $1.2 billion in revenue in the first year, FY2024. Ten months into the fiscal year, that total exceeded $1.8 billion!

It is estimated that 0.6% of taxpayers are affected by the Fair Share Amendment. 

Fair Share Highlights in the FY 2025 Budget

For FY 2024, budget funding from the 4% additional tax (surtax) totaled $1 billion, split almost evenly between transportation ($476.5 million) and education ($510 million). Funding increased to $1.3 billion for FY 2025 and a greater percentage of those funds was allocated to education ($761.5 million) than transportation ($538.5 million).

Here are some Fair Share funding highlights included in the FY 2025 budget.

Education

• $170 million to fund free meal programs at all Massachusetts public schools;

• $175 million for the Commonwealth Cares for Children early education and care programs;

• $117.5 million to provide free community college access across the state;

• $80 million increase in financial aid for Massachusetts residents attending state universities.

Transportation 

• $250 million for the Commonwealth Transportation Fund (CTF);

• $110 million for Regional Transit Authorities throughout the state, including funding for  fare-free service;

• $45 million in supplemental roads and bridges aid for municipalities;

• $4 million for increased mobility options for seniors and others in need.

The CTF is a primary funding vehicle for the Massachusetts Bay Transportation Authority (MBTA) and the entire $250 million will prop up its operating support and debt service. An additional $106 million is allocated for MBTA capital investments, worker safety reserves, and the MBTA Academy.

Though Boston and its environs get the lion’s share of the transportation funding revenue under the new Amendment, Fair Share makes a $100 million pot of money available to all 351 municipalities each year. The first $50 million is distributed via the Chapter 90 program, using a formula based on local road mileage, population, and employment. The second $50 million is based on a city or town’s road mileage alone.

Shutesbury received $51,490 from the Fair Share Tax for FY 2025 in addition to its Chapter 90 amount of $33,105.

Concerns About Fair Share Ease

In the days and weeks leading up to the November 2022 election,   opponents of the Fair Share Amendment voiced warnings that the wealthiest residents would leave the state if the ballot question passed. Nearly two years later, those dire predictions have not come to pass. The Bay State’s population increased by .27% from 2022 to 2023 and the first 12 months of the Amendment’s existence brought $2.2 billion into the state’s coffers. 

Another concern raised was that the tax would significantly reduce the savings of homeowners, small business owners, and retirees who sell their assets in a one-time transaction. However, it's important to remember that the tax only applies to any income exceeding $1 million, not the entire transaction amount.

Why Are Appropriations Not Equal to the Revenues Generated by Fair Share?

Despite the probability that Fair Share raised $2 billion in FY 2024, only $1.3 billion made it into the budget. Why is that the case, and where did the overage go?

Since the state budget process is a long one, reason dictates that budget appropriations work will begin before all revenues are received. $1.3 billion was likely agreed upon based on estimates, not the fiscal year’s total Fair Share revenues.

This explanation from the Massachusetts Budget and Policy Center brings some clarity:

Revenue raised by the surtax is first deposited into the Education and Transportation Fund (E&T Fund). Lawmakers set a spending cap on the amount that can be spent from the E&T Fund each Fiscal Year (see next section). Surtax money that exceeds that cap, “the excess,” will be transferred from the E&T Fund to one of the other two funds. Fifteen percent of the “excess” gets deposited into the “Education and Transportation Reserve Fund” to offer stability if surtax revenue decreases, such as an economic downturn. Eighty-five percent of the “excess” gets transferred to the “Education and Transportation Innovation and Capital Fund,” which supports one-time spending like the construction of a new rail line or vocational school. 

The article explains that imposing caps on long-term spending can help smooth out revenue fluctuations over time, making it easier to make funding decisions for long-term projects. During lean years, excess funds can be used for projects that have already been planned. Eventually, the spending cap will be determined based on the Fair Share revenues received over a previous 10-year period.

The Fair Share Amendment is successfully providing financial support to two previously underfunded areas essential to our state's economy and society. The best part is that it has achieved this without burdening low- and average-income residents' finances; a definite win-win.

MA Clean Energy Siting Bill Retains Language Harmful to Rural Towns

Photo by Kenny Cinders on Unsplash

Our Massachusetts legislators started their summer break after passing a last-minute state budget and leaving a stack of legislation pending until their return in September.

One of the unfinished bills is “An Act upgrading the grid and protecting ratepayers”, S2838, passed by the Senate on June 25, 2024, and the House version, H4884 passed on July 17. The two chambers were unable to agree on a unified version before July 31.

For residents in Western Massachusetts, it appears evident that language limiting local authority over the siting of clean energy projects remains in both versions of the bill and is likely to be enacted into law.

The Massachusetts Plan for Net-Zero Emissions by 2050

As part of the Massachusetts Clean Energy and Climate Plan for 2050, Governor Maura Healy created the Commission on Clean Energy Infrastructure Siting and Permitting on September 26, 2023. The new entity comprised representatives from various state agencies, municipalities, electric utilities, the clean energy industry, environmental justice organizations, and land use advocates. The group's purpose was to recommend ways to expedite the permitting process for clean energy infrastructure projects.

In April 2024, the Commission released its recommendations. New clean energy projects were defined as “solar, wind and anaerobic digestion facilities; storage facilities; and transmission and distribution infrastructure.” Local, state, and regional permits for larger projects of 25 megawatts or more for solar, wind, or anaerobic digestion facilities and 100 or more megawatts for energy storage facilities would be combined and issued by the Energy Facilities Siting Board (EFSB). The EFSB is supported by the Department of Public Utilities, which “oversees investor-owned electric power, natural gas, and water companies in Massachusetts.”  The EFSB must issue the consolidated permit within 15 months of receipt.

For smaller projects of fewer than 25 megawatts for solar, wind, and anaerobic digestion facilities, all local permits must be rolled into a single permit and issued in less than a year. State agencies will create standards to “guide municipalities in the issuance of permits for clean energy infrastructure.”  

The Western MA Solar Forums and the Forests as Climate Solutions Initiative

Between June 2023 and June 2024, several events took place including the Western MA Solar Forums (parts I & II) and the Forests as Climate Solutions Initiative. The solar forums were held weekly in September 2023, and the last forum took place in December. The second part of the solar discussions occurred on June 4, 2024. These events were open to the public and aimed to gather citizen input on the roles of renewable energy and forests in combating climate change.

I attended all the forums and was impressed with the first part, which I found informative and supportive of protecting forests and woodlands while developing solar facilities. 

The speakers discussed the challenges that community and residential solar are currently facing. Community action groups raised concerns about the lack of solar equity for low-income residents and the lack of transparency in the decision-making process of the Department of Public Utilities. A representative from the Attorney General’s Office talked about deceptive marketing and sales practices in the community solar sector, which led to customers overpaying for their share of a community solar farm. 

He also mentioned many Massachusetts residents filing complaints about residential solar scams involving aggressive door-to-door sales tactics and unfulfilled solar panel installations. These scammers often target the elderly, low-income, and those with language barriers.

Following the conclusion of the initial forum in December, there was a prevailing sentiment among speakers and the public that solar development should prioritize built environments such as rooftops and parking lots, and steer away from industrial solar projects that necessitate the clearing of forested lands.

The second part of the solar forums took place in June 2024, after the Commission released its recommendations. This event spent much time explaining that guidance and asking for public feedback on its content. It was a more focused discussion that seemed designed to “sell” the Commission’s recommendations to the public. Toward the end of the forum, speaker presentations spoke of “nimbyism”. They gave the impression that western Massachusetts communities should stop complaining about local control and do their fair share to help the state attain its energy goals.

While the foregoing is my opinion of the proceedings, the published comments and feedback show that many respondents were concerned that Boston would have a heavy hand in decisions affecting Western MA residents. The references to “local input” in the Commission’s recommendations did nothing to assuage the fears that the forests we live in would bear the brunt of the state’s accelerated clean energy plans.

In January 2024, the Climate Forestry Committee released its report on conserving forest lands, and the following June,  the state released its response to that report.  The committee’s report notes the state’s clean energy plan aims to protect “30% of Massachusetts lands by 2030 and 40% by 2050, much of that land to be forested (which entails doubling the recent pace of land protection).” One way to attain this goal is to pursue “policies to avoid conversion of forest land (e.g., siting of solar, housing, and other development).” 

Similarly, the state’s response notes, “To reach net zero by 2050 the Commonwealth will look to forests to sequester approximately half of the projected residual emissions. As such, forests are an essential climate solution to the Commonwealth.” 

Solar Siting: Public v. Private land

One issue never fully addressed at the forums is that installing solar on built environments is more costly than encouraging large, private landowners to lease their land to big solar companies. 

The city of Boston and its environs host many public buildings, parking lots, and vacant land that could be hosting solar panels. But it’s more expensive to install solar on built environments than it is to clear trees and put up industrial solar. This is especially true when it won’t cost Massachusetts a dime to put solar farms on land owned by the largest private landowner in the state.

The state wants to pretend that all municipalities in Massachusetts are similar and that the issue of local control affects all equally. This is untrue, and Western MA residents know it. We have spoken out against the hefty burden we are being made to bear for decisions made at the state capitol, but it seems to have fallen on deaf ears.

Though both versions contain the troublesome siting language, there is still time to register your thoughts about this legislation. Contact your legislators and let them know we need them to ensure that local energy projects are administered by the people who will live with them–not a faceless Boston-based committee.