Monday, March 7, 2016

Zoning’s Centennial, Part 9: Mixed Signals: Exclusionary Zoning and Fairness: A Series by John R. Nolon

Part 9


Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center


Mixed Signals: Exclusionary Zoning and Fairness


After encountering significant NIMBY opposition to the expansion of the Lucasfilm facilities on his land in Marin County, California, George Lucas abandoned his plans and proposed to sell his land to affordable housing developers. The backstory involves the Fair Housing Act, various federal grant-in-aid programs, and a Voluntary Cooperation Agreement entered into between Marin County and the U.S. Department of Housing and Urban Development. After an investigation, HUD required the County to take steps to affirmatively further fair housing opportunities for people of color and other groups that face barriers to housing in the region.

Marin County’s minority population is much lower than that of other communities in the Bay Area. As a recipient of federal funding, it has an obligation to Affirmatively Further Fair Housing (AFFH), which includes eliminating impediments to fair housing, such as zoning restrictions that cause segregation. The neighbors of Lucas’s property are now contemplating a different change in the neighborhood than the one they initially opposed.

Under the 10th Amendment, the matter of land use control is left to the states, which have delegated that power to local governments. Exclusionary zoning is, in the first instance, a matter of state law. It is based on the Euclidian notion that zoning’s purpose is to segregate different land uses into various districts. Zoning is inherently exclusionary. Yet, since land use authority is delegated to localities by the state, there are constitutional limits to excluding growth and affordable housing.

State courts, however, are relatively shy about intruding into the local legislative realm and mandating solutions to affordable and fair housing. State legislatures, because all politics is local, have been equally reticent. Courts in New Jersey and the state legislatures in California and Connecticut which have aggressively and clearly defined the obligations of local government regarding housing are outliers.

New York courts are more engaged in the topic than most state court systems, but their holdings fall far short of providing effective guidance to localities regarding their responsibilities to provide affordable housing. In the seminal case, Berenson v. New Castle (1975),  the state’s highest court noted: “[T]he primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s land…. [I]n enacting a zoning ordinance, consideration must be given to regional [housing] needs and requirements…. There must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met.” The state court held that New Castle’s failure to zone land for multifamily housing was exclusionary. Mr. Berenson’s land was then rezoned for condominiums that sold for today’s equivalent of $500,000.

These abstract judicial utterances, in the few jurisdictions where state courts have entered the fray–coupled with the absence of state legislative guidance–leave localities wondering what their obligations are under state law. Meanwhile, if they receive federal funding or fail to rezone land proposed for multifamily housing, like Marin County, they may be liable for their failure to AFFH. The Fair Housing Act aims to fight racial segregation and thus implicates the very nature of zoning. How can segregation be eliminated if most land in communities is zoned for single-family housing, the ubiquitous result of Euclidian zoning? But what exactly does this mean? What does federal law require?

What we know is that communities that receive federal housing and community development funding must certify that they have analyzed the impediments to AFFH and acted in good faith to eliminate them. They may be liable if they have not, which implicates the zoning that creates a segregative settlement pattern. We also know that the refusal to rezone specific parcels for multi-family housing may result in municipal liability for discrimination, if such failure results in disparate impacts or disparate treatment. Huntington Branch, NAACP v Huntington (1986), held: “…[W]e find that the disproportionate harm to blacks and the segregative impact on the entire community resulting from the refusal to rezone create a strong prima facie showing of discriminatory effect.” 

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (2015), the U.S. Supreme Court held that “recognition of disparate-impact claims is consistent with the FHA’s central purpose.” The Court pointed to “zoning laws and other housing restrictions” that it viewed as “unfairly…excluding minorities from certain neighborhoods without any sufficient justification.” It went on to say that “[g]overnmental or private policies are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers. Courts should avoid interpreting disparate impact liability to be so expansive as to inject racial considerations into every housing decision.”

Municipalities and their attorneys are getting unclear signals in this area of land use law. They may create zoning districts and specify whatever uses they wish. But they must not craft these districts and uses in a way that excludes households in the state in search of housing. Yet, nowhere is the extent of this responsibility defined. There is no guidance on what constitutes “the region” or “regional needs”; localities’ “fair share” or their “duty” to actually make housing for such households affordable; or what combination of zoning techniques and housing subsidies (over which there is no local control) municipalities must use. When precisely, under federal law, are localities responsible to affirmatively further fair housing? Is that liability limited to communities that get federal funding and those that deny housing developers multifamily zoning? Or, does it extend to the entire pattern of development created by local zoning if its districts are not integrated racially? Wouldn’t that be injecting racial considerations into every land use decision that affects housing?

Perhaps nowhere in the story of Zoning’s Centennial is the legal system more confused than in this area of fair and affordable housing. It is an interjurisdictional mess, begging for sensible reform. But, where should this reform begin? State governments are often the appropriate intermediary between federal and local interests. State constitutions give the police power to their legislatures. They have, in turn, delegated it to localities regarding land use without clear guidance as to these critical fairness issues. The resolution of these questions should be a matter of state concern and become state priority, given the importance of these unresolved issues.  

For more information, see John R. Nolon, Affordable Housing in the New York Courts: A Case for Legislative Action, N.Y. Zoning Law & Prac. Rep., vol. 7, no. 3 (2006).

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning  

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

| Permalink