Exclusionary Practices

Racial & Non - Racial

Overview

   Land regulatory practices are presumed to be rationally related to a legitimate community need based on the health, safety, and public welfare However, the opportunity to abuse this power is great and ever present, especially when those segments of society are disadvantaged Two types of cases are presented in this section  

Regulatory discrimination that is not based on an identifiable protected classification Racial, ethic, and gender discrimination based on the attributes of a protected class of persons

Some Discriminatory Practices

      Minimum lot and house size Failure to provide for adequate opportunity for least cost housing sites Bias against certain forms of land use: i.e., manufactured homes Administrative delay Covert and overt racial discrimination Failure to offer and provide adequate municipal services

   

National Land Investment Co. v Easttown Township

In 1958 National Land Investment offered to buy an 85 acre tract of land subject to a successful subdivision plan When National Land took the option the Township zoning standard was 1 acre minimum per residence – and the land was zoned for single family residences National Land submitted a subdivision plan for “Sweetbriar” on one acre lots in 1961 The Township did not take any action because it was in the process of amending the minimum lot requirement to 4 acres

Sweetbriar Today

Quality and craftsmanship are evident throughout in the detailed cabinetry, custom carpeting and top of the line fixtures. Enjoy elegant entertaining in the formal living room and dining rooms and great family living in the dramatic family room with brick walled walk-in fireplace.

Easttown Township, Chester County “The Sweetbriar.” FOR SALE – 1 Acre $1,200,000

National Land Appeals

   National Land applied for a variance but this was denied by the Board of Zoning Appeals The trial court found for the Township noting that a four acre minimum lot size restriction was reasonable for a rapidly growing rural area The Pennsylvania Supreme Court accepted the case for review and began by characterizing the area

Description

    Easttown Township has an area of 8.5 square miles – about the same land area as the greater Manhattan area In 1965 the Township was located about 20 miles from Philadelphia Growth is also approaching from the commercial – industrial complex at King of Prussia and Valley Forge In 1965 about 60% of the population resides in about 20% of the Townships’ Villages area – the other 40% are scattered in the rural portion

King of Prussia To The North

Township Location, Founded 1704

Growth Factors

 Population of Easttown    

1950 – 2,307 1960 – 6,907 1970 – 10,050 2000 – 21,500

    

The Court Begins The Lengthy Analysis

The relative advantages of a one acre lot over a one-half acre lot are easy to comprehend Similarly, a two acre lot has advantages over a one acre lot and three acres may be preferred over two acres or ten acres over three The greater the amount of land, the more room for children, the less congestion, the easier to handle the water supply and sewage, and the fewer municipal services which must be provided At some point along the spectrum, however, the size of lots ceases to be a concern requiring public regulation and becomes simply a matter of private preference The point at which legitimate public interest ceases is not a constant one, but one which varies with the land involved and the circumstances of each case.

Township’s Argument

   The Township says that 4 acre lots are necessary because most of the township is not sewered but on septic systems Township roads are old and inadequate to carry the increased traffic burden They also wish to preserve Easttown’s Character 

Preserve open space and create Greenbelts

  

Preserve historic sites and buildings Protect the setting for the old homes dating back to the 1700s Protect the general rural character

Court’s Analysis – Sewer System

   The Township also allows residences on 1, 2 and 3 acre lots in certain areas. If 4 acres is really necessary – why not make 4 acre minimums through the Township?

And, the Township Sanitation Officer is allowed to increase the size of any lot if a percolation test proves to be unsatisfactory We think that you are blowing smoke in our ear

Court’s Analysis - Roads

  Yes, we realize that may roads are old, narrow, and winding. But when National Land paid an independent consultant to perform a traffic analysis the result was that the present road system could serve another 7,000 residents without becoming congested and dangerous The road where Sweetbriar is located is near Highway 30, very much under capacity, and can easily carry more traffic

Court’s Analysis – Open Space

 Preserve Open Space?

   

Excuse me! We thought that the best way to preserve open space was to use cluster and density development rather than increase the lot size Why don’t you use PUD’s to collect common open space If you are going to implement Greenbelts why don’t you have each developer contribute linear open space Why just say four acre lots

Open Space

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Court’s Analysis – Historic Sites and Old Homes

We don’t understand this one!!!!

   The map shows that all of the historic sites are located in the small villages throughout the Township where the zoning remains ½ acre minimums Professionals tell us that the best way to preserve historic sites is through design sensitivity and compatibility There is no doubt that many of the residents of this area are highly desirous of keeping it the way it is, preferring, quite naturally, to look out upon land in its natural state rather than on other homes. These desires, however, do not rise to the level of public welfare. This is purely a matter of private desire which zoning regulation may not be employed to effectuate.

Court’s Analysis – Rural Character

 What are you preserving?

  

There is nothing about south Easttown which differentiates it from any other area in the southeastern section of Pennsylvania. No one would seriously maintain that the entire southeast corner of the state should be declared immune from further development on areas of less than four acres simply because there are many old homes located there If the township were developed on the basis of 4 acre zoning, however, it could not be seriously contended that the land would retain its rural character -- it would simply be dotted with larger homes on larger lots.

The Knockout Punch

 Four acre zoning represents Easttown's position that it does not desire to accommodate those who are pressing for admittance to the township unless such admittance will not create any additional burdens upon governmental functions and services. The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live.

Its Invalid

  A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid This does not mean that a governmental body may not utilize its zoning power in order to insure that the municipal services which the community requires are provided in an orderly and rational manner.

The Warning To Other Communities

  The purpose of Planning is to provide for the needs of the future – it is not intended to deny the future Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities.

Easttown Land Use Map

Burlington County NAACP v Mt Laurel, New Jersey - 1973

Some Background

   Mt. Laurel settled in 1688 The actual Mt. Laurel Village incorporated in 1847 Mt. Laurel Township/Village has grown steadily from 1960 to 2000 – from 2,345 to 38,000 

Home of the MARP

ies

The Case Setting

  Mt. Laurel is a 22 sq. mile (14,000 acres) Township located near Cherry Hill NJ some 10 miles from Camden The Zoning Scheme 

29.2% of the land is zoned light industrial (4,121 acres) but no more than 100 acres are actually used for industry

 

1.2% is zoned for retail business ( 129 acres) The balance of the land is zoned for conventional housing (10,000 acres)

The Residential Zoning Scheme

 The ordinance provides for R-1; R-1D; R-2 and R-3     

Each zone permits only single family housing Attached townhouses, apartments, and manufactured homes are not allowed anywhere in the township Over 7,000 acres are zoned to permit A combination of lot size and minimum dwelling size makes it evident that only a upper middle income family could afford to move to the township The Township did pass a limited PUD District and three developers took advantage by applying for a mixed housing project

The PUD Application

 Mt Laurel gives tentative approval     

Only a few of the townhouses can have more than one bedroom No school aged children can be permitted to occupy any one bedroom unit No more than 2 children can occupy a two bedrooms unit The developer, if more than an average of .3 students per unit occur, must pay the cost of tuition to attend township schools All units must be furnished with required amenities, such as central air-conditioning and must pay large sums for township fire, police, library and schools

And More

   A good share of the units had to be set aside for senior citizens where children under 18 could not live Needless to say, the developers walked away from the projects without the slightest hesitation but did not sue for fear that they would never be allowed to do business again in Mt Laurel The Burlington County NAACP filed a class action suit on behalf of future residents (a novel idea) that were barred from moving there from the Camden area

The Court Makes Some Findings

   There cannot be the slightest doubt that one of the main reasons for this zoning scheme is to keep local property taxes low and shift the burdens to other communities This pattern appears repeatedly in developing municipalities This pattern does not allow for low and moderate income families to move to the community – they are effectively barred

The Central Questions

  

May a developing community, such as Mt. Laurel, make it physically and economically impossible to provide low and moderate income housing for various persons who need and want it?

Can communities limit the type of housing the want so that they is no choice in different types of living accommodations?

Can Mt. Laurel avoid its fair share of the regional burden in supplying the benefits of community to future populations?

The Ruling

    

We conclude that every developing community must, at least by its land use regulations, presumptively make possible an appropriate variety and choice of housing This court now adopts a non-local approach to the meaning of general welfare and no longer allows a community to hide behind parochial local interests Communities must permit multi-family housing without bedroom limitations as well as small dwellings on small lots Communities, such as Mt. Laurel, must remove land from industrial zones when this practice is undertaken to prevent needed housing opportunities Mt. Laurel must bear its fair share of the regional burden and this region will vary from place to place

Conclusion

 

Mt. Laurel is granted 90 days to remedy and correct the deficiencies in its zoning ordinance A master must approve the Townships regional fair share housing plan

    

Mt Laurel II, 1983 – In The Words of the Court

The is a return, 8 years later, of the Burlington County NAACP v Mt. Laurel Township case After all this time, and invalidating its zoning ordinance, the Township is still afflicted with a blatantly exclusionary zoning ordinance The new ordinance, at its core, is a testament to Mount Laurel’s determination to exclude the low and moderate income Mt. Laurel is not alone in this widespread non-compliance with the constitutional mandate of the original case “To the best of our ability, we will not allow this to continue”

The Challenge

    Mt. Laurel II is actually a consolidation of 5 different cases at once – all arise from the Mt. Laurel doctrine One of the communities involved is Mt Laurel itself which never really implemented a regional fair share plan The ruling is a lengthy set of guidelines set down for all New Jersey municipalities The court starts off by saying “That some changes will be made – NOW”

Removing Excessive Restrictions

 All municipalities are immediately ordered to remove unnecessary barriers to the construction of low and moderate income housing     

Lot lot requirements Minimum housing size requirements Maximum bedrooms regulations Overuse of amenities in PUDs Regulations that impact on the number of children

Using Affirmative Measures

  There are two basic types of affirmative measures that a municipality can use to make the opportunity for low and moderate income housing realistic  

Encouraging or requiring the use of available state and federal housing subsidies Providing incentives for or requiring developers to set aside a portion of their developments for lower income housing – including 5% mandatory set asides

Trial courts are authorized to retain control of cases such as these and to supervise the community’s resolve to pursue affirmative measures

Zoning For All Housing

   Although the New Jersey Courts have upheld bans on mobile homes – all these decisions are now reversed Changed circumstances now exist and mobile home must now be allowed – all absolute bans will be immediately overruled The Court recognized the aesthetic sensibilities of communities but also reversed all decisions which upheld a ban on apartments, town homes, duplexes and triplexes

Least Cost Housing

  There may be municipalities where special conditions exist that make it impossible for fair share conditions to exist even after all excessive restrictions and exactions have been removed Then, and only then, may these communities adopt a “least cost” housing approach to satisfy their regional fair share obligation

Least Cost Housing

In Re Girsh, 1969

   In Re Girsh is neither a famous or unique case. It is however very informative because it illustrates the tremendous resistance offered by many suburban communities to judicial orders In other words, even though the applicant prevails, the community drags its feet, ignores the ruling, and proceeds along its own path It also shows that when a ruling is returned to the trial court – this lower court often resists interpreting the appeals ruling in the most favorable light

Some Background

   The date is 1964 Mister Girsh Sr. made a contract to purchase 17 ½ acres of land for $120,000. The contract stated that he would agree to apply to the township board to change the R-1 zoning so that a high rise (6 story) apartment building could be constructed The contract also stated that if this zoning change was successful – he would pay the land owner a total of $150,000

The Place – Delaware County - Nether Providence Township Population 433,535 Delaware County

Place Description

    Nether Providence Township has a population of 6,000 persons (1969) and a land area of 4.64 square miles The U.S. Census count for 2000 is 13,456 persons About 75% of the township is zoned for single family residential (R-1 or R-2) on not less than 20,000 and 14,000 sq. ft. respectively Multi-family is not expressly prohibited but it is not provided for in the ordinance; there are 2 multi-family housing units in the township permitted by variance

Girsh’s Actions

     Girsh’s sought approval for 2, nine story luxury apartment buildings – each contained 280 units – he offered to reduce each building to 216 units The Planning Commission refused to amend the ordinance Girsh sues and the township wants the case dismissed because Girsh did not apply for a variance Trial court dismisses the suit because it was not ripe The date is now 1966

Supreme Court Analysis

 First, by emphasizing the possibility that a given landowner could obtain a variance, the Township overlooks the broader question that is presented by this case. In refusing to allow apartment development as part of its zoning scheme, Nether Providence has in effect decided to zone out the people who would be able to live in the Township if apartments were available

.

Cause and Effect

  

The township argues that apartment uses would cause a significant population increase with a resulting strain on available municipal services and roads, and would clash with the existing residential neighborhood. "Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future -- it may not be used as a means to deny the future. . . . Zoning provisions may not be used . . . to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring."

Conclusion

 The Court concludes by saying: 

In addition, at least hypothetically, the Township could show that apartments are not appropriate on the site where appellant wishes to build, but that question is not before us as long as the zoning ordinance in question is fatally defective on its face. The Township could properly decide that apartments are more appropriate in one part of the Township than in another, but it cannot decide that apartments can fit in no part of the Township .

 

The Decision is reversed and remanded to the trial court The date is now 1971

Its Not Over

       Its now 1972 The trial court receives the remanded case Judge orders a new hearing for Girsh The Township says we now need to revise our zoning ordinance to provide for housing Judge says OK. You have a year Now its 1974 The new ordinance is released along with a new zoning map. The Township rezones about 3% of the land for multi-family

Guess What?

       Girsh’s land is not zoned on the map for multi-family housing Girsh again applies for rezoning of his property to R-3 In 1975 the Township Planning Board says no Girsh applies for a variance this time He is denied by the Board of Adjustment Girsh goes back to the trial judge and the Judge says “what are you doing here?

Girsh says “I Though I Won!”

The Judge Says What?

      The trial court took up the matter and decided that that the Township had acted properly by complying with the decision of the Supreme Court.

Girsh gets the shaft The time in now 1977 Girsh files leave for appeal before the Supreme Court His brief simple says “I thought I Won – am I not entitled to build my apartments” The Supreme Court is a bit upset and returns the case to the trial court with instructions to grant Girsh a new hearing

And it Goes On

    Its now 1979 – the population is 10,045 Girsh is granted a new hearing The trial judge once again says that the Township had every right to turn you down on the specific site you selected for housing as long as they provided for adequate mutli-family zones in the Township Girsh is very, very unhappy and upset

Girsh Dies

Last Trip

     Girsh’s son takes up the matter in 1982 In 1983 the Supreme Court decides to hear the case again and makes a final ruling in 1983 The court says that the intention was all along to grant Girsh a “Builder’s Remedy.” They then order the trial court to immediately order the property rezoned and permits issued The Township never did this – Girsh Jr. lost the financing on the property and was never able to complete the project

Girsh’s Last Wish

The Best of Local Art

Final Analysis

  Population in 2003 – 13,153 Median Household Income - $79,032

 

Surrick v Upper Providence Twsp., 1977

Upper Providence Township is a western suburb of Philadelphia, located about 12 miles from the center of the city. The 1970 census set the township's population at slightly over 9,200 the 2000 population is about 12,000; the total acreage of the township is approximately 3,800 acres. Approximately one-quarter of the township land is undeveloped. The township was first settled in 1700 The zoning ordinance in question has classified 43 acres, or 1.14% of the total township acreage, as a B district; in this B district apartments are permitted along with other essentially commercial uses, and the B district is already substantially developed.

Background

    

Surrick sought to build apartments and townhouses on a 16.25 acre tract of land (four acres owned by appellant; 12.25 acres under agreement of sale with zoning contingency). The tract is located in an area designated A-1 Residential under the township ordinance, which permits only single family dwellings on one-acre lots. Surrick applied to the Township to rezone the 12.25 acre tract to B-Business, the only ordinance classification permitting multi-family housing, to develop the site for apartments The rezoning was denied Surrick revised his plans to include the four acres of ground owned by him. He sought building permits, which were denied by the Building Inspector He appealed to the Board requesting a variance – the Board denied

Township Location

Philadelphia

Legal Challenge

  The trial court upholds the actions of the Township The Supreme Court reviews and makes the following findings : 

There can be little doubt that Upper Providence Township is a logical area for development and population growth. This conclusion is supported by the fact that the township is located a mere twelve miles or so from Philadelphia and is situated at the intersection of two main traffic arteries, one of which, Route 1, is a direct link with the city.

Finding #2 and 3

  The record shows that the township is not a high density population area; roughly one-quarter of the township land is undeveloped. Thus the township's present level of development does not preclude further development of multi-family dwellings.

The zoning ordinance in question results in a partial exclusion of multi-family dwellings, providing, as it does, 1.14% of the township land for development of multi family dwellings. It is also significant that multi-family dwellings are only one of more than a dozen other uses permitted on this fraction of land.

Conclusion of Facts

 

The analysis leads inescapably to the conclusion that the facts of the instant case are legally indistinguishable from previous cases. Thus we hold that Upper Providence Township has not provided a "fair share" of its land for development of multi-family dwellings.

The Township’s assertion that the greatest demand for housing in the township is for single-family homes on one acre lots rather proves too much. One need not probe too deeply into the economic mechanics of supply and demand to realize that the zoned-in scarcity of land for multi-family dwellings could easily create this type of demand.

Conclusion

  Note: The Penn. Courts have already adopted a fair share formula following Mt. Laurel. The court now has some 10 years of experience in facing discriminatory ordinance The final action of the Court is to invalidate the ordinance – order a new study and plan prepared – and grant Surrick a builder’s remedy (issue the permits now)

Upper Providence Township 2001

2000 Land Use Map

98% residential 1% commercial 1% industrial Average housing price $700,000

Britton v Town of Chester, 1991

Location

    Chester is located about 13 miles from Manchester NH Current stock of homes is composed (98%) of single family units The town lacks sewer an central water service – other municipal services are very modest Chester is primarily a bedroom community for Manchester

At Home In Chester

     Home to Chester College Bedroom suburb New Hampshire has a growth rate twice the U.S. average – from 600,000 in 1960 to 1.3 million in 2000 Rockingham County has grown from 100,000 to 275,000 since 1960 Chester 3,800 in 2002 Census

Background

   Raymond Remillard is the plaintiff developer joined by two low income families Remillard owns a 23 acre tract that he has been trying to develop a moderate size multi-family housing project for 11 years The plaintiffs live in an apartment in a nearby town and work in Chester

The Ordinance

   In 1985 the town’s zoning ordinance allowed single family homes on 2 acre lots and duplexes on 3 acre lots – multi-family was excluded from the town In 1986 the ordinance was amended to include multi family as part of a PRD A PRD requires a tract of 20 acres or more. Because of environmental conditions and wetlands Remillard only had 11.7 developable acres and was denied rezoning

The PUD Ordinance



THE PUD ORDINANCE IS DEFECTIVE

   

The PUD requires approval by the Town Board and the Planning Commission in such a way that there are no objective standards The developer may be required to hire a hydrologist, engineer, architect and other professionals to “assist the Planning Board” The trial court found that the ordinance itself was discriminatory and did not address the fair share needs of its region The trial court invalidates the entire zoning ordinance and orders building permits for Remillard

The Hearings

   A Master heard the case and granted Remillard a builder’s remedy The Appeals court did not find the entire ordinance unconstitutional but upheld the builder’s remedy Chester did not consider the needs of its region in adopting their zoning ordinance

Remedies

     Municipalities are not isolated enclaves The town has built a moat around it and the price of admission is a single family home on 2 acres In all cases an inequity demands a remedy Remillard and plaintiffs were wronged for 11 years He is entitled to immediate relief

The Finale

    Zoning evolved as an innovative means to counter the problems of uncontrolled growth It was never conceived as a device to facilitate the use of governmental power to prevent access to the community by outsiders of a disadvantaged social class The court “will not condone the conduct of Chester” The land is ordered rezoned and permits shall be issued to Remillard within 30 days

Celebration In Chester

And Now Come Mobile Homes

Manufactured housing remains the most affordable type of housing in the United States. Most manufactured homes are permanently affixed to their foundations and utilized as primary residences. Thus, the once widely used term "mobile home" is a misnomer. 18 million people, representing 7 percent of the housing population, live in manufactured homes Estimated average cost is $47,050

Clark v County of Winnebago

Clark v Winnebago County, 1987

   Clark County has adopted a zoning ordinance that regulates the uses of land within the County.

The ordinance establishes the zoning classification of "Mobile Home District" as a separate district and provides that, with limited exceptions, mobile homes may not be located outside a mobile home district. It additionally sets forth certain performance standards for mobile home parks located within such a district.

Description

   Clark’s property is currently zoned agricultural. The property is surrounded by land zoned for low density residential Clark filed to rezone his property to two classifications  

R-1 Single Family residential MH Mobile Home Park District

The County Commission grants the R-1 zoning and denies the mobile home zoning designation

The Clark Family

Deron and Deronette Clark Mr. And Mrs. Clark “We are not trailer trash”

Clark’s Contentions

 

Clark contends that there is no rational basis for discriminating against mobile homes – they are, after all, a form of single family housing Clark contends that this is a violation of his equal protection rights since there is no substantial difference between site built and mobile homes

Clark’s Lawyer – Denephew Brosious “A person should be able to live where they want”

The Trial

  

After a trial on the merits, the district court concluded that neither the ordinance nor the zoning decision was so irrational or unrelated to the general welfare as to implicate the fourteenth amendment. Clark appeals.

The Supreme Court agrees with the district court that Clark failed to establish that the ordinance is clearly unrelated to a legitimate governmental interest. Mobile home parks are a sufficiently distinct use of land to justify their separate classification for zoning purposes.

For instance, mobile home parks, with their smaller lot sizes, affect population density, and the County unquestionably has a right to control the orderly development of the community by regulating density.

The Clarks Lose

“I just can’t see it,” said Mr. Clark, “my mobile home looks just the like houses of those scum sucking Planning Commissioners”

Message From The Clarks

Town of Stonewood v Bell

Stonewood v Bells and Barrackville, 1980 West Virginia

  

The Town of Barrackville adopted a zoning ordinance that prohibited mobile homes other than in an existing mobile home park The Town of Stonewood also adopted an ordinance restricting mobile homes to parks and prohibiting the formation of any additional mobile home parks Grandfather clauses allow existing mobile homes to stay in place

The Controversy

 

In June of 1977, Russell and Dora Bell placed a mobile home on lots lying within the town limits of Stonewood. Two months later Stonewood, through its legal counsel, notified the Bells that the placement of their mobile home violated the aforementioned ordinance and requested that the mobile home be removed. The Bells refused to remove the mobile home. Stonewood connected the Bell's mobile home to the town's water system under the mistaken impression that the mobile home was outside the town limits. Upon discovering that the mobile home was within the town limits, Stonewood refunded the Bells an amount representing the extra fee charged to persons outside the town limits who desire the town's water service..

Mrs. Flowers Is Mad

“If they think I am going to move my mobile home then they can all go to hell.

They will have to shoot me first.” Corettea Flowers

And Now, The Flowers



In April of 1979, Ruth Flowers and her daughter and son-in-law, Judy and Joseph Griffin, appeared before the Barrackville town council and requested permission to locate a mobile home on property owned by them. They sought this use under an ordinance which provides a procedure for obtaining permission from the town council to place a mobile home outside a trailer court.



The town council denied the appellants' request. Despite this denial, Ruth Flowers moved her mobile home from a trailer court to the property owned by her daughter and son-in-law.



Subsequently, Barrackville brought an action to remove the home.

The Trial Court

  

Both towns moved for summary judgment and the court granted an injunction Both parties are ordered to remove their mobile home The Bells and the Flowers appealed:

 

The ordinances violated the substantive due process clause of the 14 th amendment The ordinances constitute a violation of the equal protection clause

The Appeals Court

 

A Virginia statute allows communities to adopt ordinances restricting mobile home to parks regardless of whether or not they have a comprehensive zoning plan The court upholds this statute in recognition that many small, rural towns would have difficulty adopting a zoning ordinance and maintaining a planning commission

  

Equal Protection & Substantive Due Process

We are unable to say that the towns of Stonewood and Barrackville have unreasonably or arbitrarily restricted the placement of mobile homes.

We are not here dealing with an absolute exclusion of mobile homes. If we were, our analysis would necessitate a different approach The concept of "community" embraces not only the idea of a group of people living together in a given area, but also that those people will live together harmoniously. The appellants will share the benefits and the burdens of these exercises of the police power and it would be not only disruptive but inappropriate for us to strike down an ordinance which substantially advances a legitimate legislative goal.

Zoning And Land Use Restrictions and Racial Discrimination



The Historical Cases

 

Yick Wo v Hopkins Buchanan v Warley

 

Dailey v Lawton Shelly v Kraemer

The Civil Rights Acts



Civil Rights Act of 1868



The Civil Rights Act of 1866, passed in March of that year by Radical Republicans in Congress over a veto by President Andrew Johnson, declared African Americans to be citizens and granted them equal protection of the laws in matters of contracts, lawsuits, trials, property transactions, and purchases, and it attached penalties for violations of these rights



Civil Rights Act of 1871

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Voting rights

Civil Rights

 

Civil Rights Act of 1875



The Civil Rights Act of 1875 sought to guarantee freedom of access, regardless of race, to the "full and equal enjoyment" of inns, public conveyances and public places of amusement. Citizens were given the right to sue for personal damages. Federal courts were given exclusive jurisdiction over all cases arising under the act.

Civil Rights Act of 1957



Established the Commission on Civil Rights and created the Civil Rights Enforcement Division in the Dept. of Justice

Civil Rights



Civil Rights Act of 1964



Its eleven titles combated voter discrimination, funded school desegregation, renewed the Civil Rights Commission another four years, banned use of federal funds for schools or programs which discriminated, banned discrimination in employment and unions, barred federal courts from remanding civil rights cases back to state or local courts, established the right to a jury trial for in cases involving the act, and more



Civil Rights Act of 1968



The “Fair Housing Act”

Yick Wo - Background

    By 1880 about 10 percent of the population of California was Chinese About half lived in the San Francisco area Because of discriminatory laws they tended to concentrate in certain industries – mining, railroad, cigar making, laundries, and garments The Yellow Press frequently characterized Chinese laundries as “Opium Dens ”

Yick Wo v Hopkins, 1886

   Yick Wo was a citizen of China residing in San Francisco Yick Wo was arrested, fined $10, and sentenced to 10 days in jail for violating a city ordinance prohibiting a laundry in a wooden building The ordinance stated that: It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.

Inspection

   The Board of Supervisors could have issued a certificate of compliance for Yick Wo’s wooden frame laundry building if it found it to be safe The trial court and the California Appeals courts upheld the conviction and the ordinance as a valid exercise of the police power The U.S. Supreme Court accepted the case under a writ of habeas corpus

The Complaint

  There were about 320 laundries in the city and county of San Francisco, of which about 240 were owned and conducted by subjects of China, and of the whole number, 320, about 310 were constructed of wood, the same material that constitutes nine-tenths of the houses in the city of San Francisco Yick Wo claims that 150 Chinese operators have been arrested for violating the ordinance. However, 80 non Chinese operators, who own wooden frame laundries were not arrested

Further Facts

   About 200 Chinese owners petitioned the Board for permission to operate their laundries – all were denied All the non-Chinese who petitioned to operate their laundries (with the exception of one woman) were granted permits All the Chinese owners were ordered to tear down their buildings and reconstruct them from stone or brick

The Decision

  The power given to the Board of Supervisors to approve or disapprove the operation of wooden laundries is arbitrary, standard less, and violates the subjects equal protection The fourteenth amendment to the constitution is not confined to the protection of citizens. it says: "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws

Conclusion

  The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified This discrimination is therefore illegal, and the public administration which enforces it is a denial of the equal protection of the laws, and a violation of the fourteenth amendment of the constitution

Facially Discriminatory Racial Laws in Housing

  There was a great resurgence of local laws after 1912 designed to assure that the White and Non-White races could not co-mingle in the workplace, in public places, and in neighborhoods These municipal laws were based on the theory that the co-mingling of races would encourage over familiarity and lead to misogamy

Buchanan v Warely, 1917

  Buchanan, a person of color, signed a contract to purchase a home in Louisville, KY.

The contract was subject to a clause that read: 

'It is understood that I am purchasing the above property for the purpose of having erected thereon a house which I propose to make my residence, and it is a distinct part of this agreement that I shall not be required to accept a deed to the above property or to pay for said property unless I have the right under the laws of the state of Kentucky and the city of Louisville to occupy said property as a residence

Executing the Contract

  Buchanan tried to purchase a home in a block where 10 homes were occupied by Caucasians and two homes were owner by persons of color Louisville, in 1911, had adopted an ordinance with the following title: 

'An ordinance to prevent conflict and ill-feeling between the white and colored races in the city of Louisville, and to preserve the public peace and promote the general welfare, by making reasonable provisions requiring, as far as practicable, the use of separate blocks, for residences, places of abode, and places of assembly by white and colored people respectively.'

What The Ordinance Said

 

It is made unlawful for any colored person to move into and occupy as a residence, place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied as residences, places of abode, or places of public assembly by white people than are occupied as residences, places of abode, or places of public assembly by colored people It is also unlawful for any white persons to move into and occupy as a residence. … or public assembly by colored persons. …

Simply Put

 

If any block is occupied by a majority of persons of color, and white person cannot occupy a residence in that block If any block is occupied by a majority of white persons, a persons of color cannot occupy a residence in that block

The Persons and Moves

    The property in question was sold by a white man to an Afro-American named Buchanan Buchanan sought to have the contract enforced by the trial court because he could not take possession of the house The trial court ruled that the contract was impaired and ordered the money returned to Buchanan Buchanan appeal to the Ky. Supreme Court in that the ordinance violated his civil rights and his equal protection rights

The Civil Rights

 

The Civil Rights Act of 1866



'All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property The Civil Rights Act of 1870



'All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other.

Plessy v Ferguson

  

Louisville insists that Plessy v. Ferguson is controlling in principle In that case the court held that a provision of a statute of Louisiana requiring railway companies carrying passengers to provide in their coaches equal but separate accommodations for the white and colored races did not run counter to the provisions of the Fourteenth Amendment It is to be observed that in that case there was no attempt to deprive persons of color of transportation in the coaches of the public carrier, and the express requirements were for equal though separate accommodations for the white and colored races.

Louisville’s Other Argument

   This ordinance gives equal treatment to both races Although whites can exclude blacks from a neighborhood – blacks may likewise exclude whites from their neighborhoods The Court notes that this is rather like saying that since whites can exclude backs from their neighborhood, blacks can exclude whites from their slums

The Louisville Ordinance

  The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character it was void as being opposed to the due process clause of the Constitution That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.

Conclusion

 

The case presented does not deal with an attempt to prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a person of color to make such disposition to a white person.

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the 14 th Amendment to the Constitution

The Private Side – Shelly v Kraemer, 1948

 A restrictive covenant, signed by 30 of 39 property owners in St. Louis, contained the following clauses:   

This property shall not be used or occupied by any person or persons except those of the Caucasian race. It is further agreed that this restriction shall not be effective unless at least eighty percent of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction This agreement was made in 1911 and is to run for 50 years

St. Louis Landmark Case

Courtesy of St. Louis H.U.D. Equal Opportunity Council

The Facts

      In 1944 the Shelly’s purchased a lot from a Mr. Fitzgerald subject to the covenant The Shelly’s are Afro-American The co-covenantors brought suit in district court The trial court found for the lot owners and ordered the Shellys to vacate the property within 90 days The Shellys were enjoined not to use the property again in the future The Missouri Supreme Court reversed this decision and the landowners brought an appeal

The U.S. Supreme Court

 

Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, are directed toward a nothing more.” designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; "simply that, and It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property

The Court’s Reasoning

    These restrictions do not involve action by state legislatures or city councils They are determined by restrictions imposed by private individuals Participation of the State consists in the enforcement of these restrictions The 14 th Amendment erects no barriers against merely private conduct, however discriminatory or wrongful

Arguments By the State

  The State urges that equal protection is granted because the covenant would be enforced against white and black alike The State also asserts that to deny whites access to the courts to enforce their contracts is in itself a denial of equal protection

Conclusion

     These restrictions, standing alone, do not violate the 14 th Amendment As long as the purpose is effectuated by voluntary adherence to the terms, and no State action involved, there can be no violation However, in this case the Missouri Courts moved to enforce the restrictions by penalties and sanctions Therefore, there has been State action in the full and complete sense of the word The action of the State courts is void and the property is returned to the Shellys’

Dailey v City of Lawton, OK 1970

     In 1970 the City of Lawton is still highly racially segregated. The Catholic School Tract is located in the heart of the white section of the community Prior to 1962 Block 26 was open space owned by the City of Lawton In 1962 the tract was sold to the Catholic Bishop of Oklahoma – which was used for school purposes In 1966 the Bishop conveyed the land to a non-profit corporation – Columbia Square, Inc At the time of the transfer the tract was zoned FP to permit schools, churches, and public uses

Dailey v City of Lawton, 1970

    Columbia Square, Inc. planned a three – rise apartment building on 7.6 acres on what is known as Block 26 The tract is surrounded by R-4 zoning districts – the highest density residential districts permitted in Lawton Calculations indicate the the final density on the Columbia Square tract would equal approximately 60% of the surrounding density No report by the City indicated excess density or traffic congestion

Columbia Square Site

Various Apartments Zoned R-4 Catholic School Tract Livingston Apts. Complex

James Addition 3 rise apartments

Actions

    Columbia Square applied for rezoning from FP to R-4 and is denied twice and receives threatening phone calls A petition was circulated by the surrounding residents and returned to the Planning Commission with 320 signatures All the signers of the petition were white The petition alleged that:   

Over density and crowding Traffic congestion Too many units on the tract

City’s Actions

   The one dissenting planning commissioner states that the reason for denial was racial bias The City Council upholds the Planning Commission and makes the following findings:    

Too much density Over crowding of local schools Over burdening of local fire fighting capability No recreation facilities

No City Official testified in support of the findings, and no data were gathered to justify the allegations

City’ Claims

   The City claims that the neighborhood has the right to a continuation of Block 26 conveyed to Lawton by the U.S. Government for school purposes The City states that there was no racial bias involved in the final decision – it was based solely on the desire to prevent over crowding of facilities Since bias was never discussed – it cannot be used as an argument for over turning the zoning decision

Courts’ View

   The U.S. District Court holds that the actions of the City with respect to the rezoning decision were arbitrary, capricious and racially motivated The Court holds that the decision was "a direct result of the bias and prejudice on the part of the owners of other property in North Addition, which feeling carried over" to the members of those bodies The motivation for the denial of the zoning change "was to keep a large concentration of racial minorities from living in North Addition and the fear of the property owners that such “project as proposed by the plaintiff would bring about a depreciation in property values in the district."

The Appeal

   Lawton appeals the decision to the U.S. Court of Appeals The main argument of the City remains that since “racial bias” was never openly shown or discussed – it cannot simply be assumed Besides, argues the City, the majority of residents in Lawton that would qualify for this housing are WHITE

Decision Pattern and Practice

  The Court says: “If proof of a civil right violation depends on an open statement by an official of an intent to discriminate, the 14 of private individuals th Amendment offers little solace to those seeking its protection. In our opinion it is enough for the complaining parties to show that the local officials are effectuating the discriminatory designs The racial prejudice alleged and established by the plaintiffs must be met by something more than bald, conclusory assertions that the action was taken for other than discriminatory reasons .

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Free men are not equal.

Equal men are not free.

United States v City of Black Jack, 1975

Median resident age: 31.1 years Median household income: $21,806 Median house value: $29,800

The Background

    Black Jack was an unincorporated area governed by St. Louis County. In 1970 it had a population of 3,500. In 2000, Black Jack has 6,134 residents In 1970 the County adopted a master plan which designated a site in Black Jack for multi-family use to further their “scattered site” affordable housing policy An option to purchase the designated tract was taken by the Inter-Religious Center for Urban Affairs located in St. Louis The ICUA announced its intent to apply for a section 236 housing project grant to build low and moderate income housing

ICUA SITE Black Jack Is One of 91 towns in St. Louis County

The Residents

   After the announcement by the ICUA the residents of Black Jack organized and were successful in incorporating the area as a city The new City Council adopted a hastily prepared master plan and zoning ordinance The zoning prohibited the construction of multi-family housing on the site chosen by the St. Louis County Master Plan

Some Background Facts

    Black Jack is populated solely by Whites The percentage of minorities in the City of St. Louis is 40.9 percent in 1970 The average cost of a home in Black Jack in 1970 was $30,000 ($192,000 in 2003) The proposed project in Black Jack was designed to accommodate persons earning between $5,000 and $10,000 per year

The Situation

    The ICUA applies for rezoning on the tract to R-3 multi family housing Black Jack claims over density and out of character with its low density housing pattern Black Jack also claims that it does not have an affirmative obligation to provide affordable housing for St. Louis residents The City claims its actions are not racially biased

District Court

  The ICUA raised the civil rights question to the U.S. District Court The Court rules for Black Jack saying:  

There was no discriminatory effect because the class of persons whose housing needs would be satisfied by the project included 29 percent of the white population as well as 32 percent of the minority population Therefore, the ordinance would not have an appreciably greater impact on minorities than on whites

The Appeals Court Reverses

  No! Not right! To establish a facial case of racial discrimination they need prove no more than the conduct of the defendant (based on pattern and practice) predictably results in racial discrimination – in other words – a discriminatory effect The ICUA need not show that the action resulting in racial discrimination in housing was racially motivated. Effect, not motivation, is the touchstone of Civil Rights

Decision

  The Court said that it saw a deliberate pattern and practice on the part of suburban St. Louis communities to systematically promote racial discrimination in the metropolitan area Black Jack’s patterns and actions, by there very nature, indicate an intent to discriminate against residents of low and moderate income housing

And Then

    Black Jack was ordered to rezone the ICUA site Black Jack delayed the rezoning for over a year and the ICUA lost their place in the cue for HUD 236 funding The ICUA returned to the Court asking for damages They were awarded $450,000 in punitive damages and Black Jack was ordered to to prepare a housing plan that would address the needs of low and moderate income housing

The Continuing Saga

    The Court places Black Jack under a federal injunction preventing them from taking any rezoning action on the ICUA site other than for multi-family housing Black Jack takes the necessary steps to un-incorporate their town to avoid payment The ICUA returns to court The U.S. District Court places the city officials under a “stay” order refrain from un-incorporation and opens the door to any St. Louis resident who would have qualified for housing to sue Black Jack

The Finale

    Black Jack is ordered to levy a community tax or a bond in an amount equal to twice its previous annual budget to pay the ICUA.

Black Jack must now fund its own low/moderate income housing project The irony is that the total cost to Black Jack is now $500,000 If they would have allowed the housing project it would have received $36,000 a year in property taxes

2003 Census Estimates

Races in Black Jack: White (71.3%) African-American (26.1%) Two or more races (1.5%) Hispanic (0.7%) American Indian (0.5%) Median resident age: 37.3 years Median household income: $63,806 Median house value: $198,800