Exclusionary Zoning

1. Exclusionary Zoning Get out and stay out!

2. Purpose of zoning – Separate inconsistent uses of land • In Euclid – keep industry away from residential • In Bove -- keep heavy industry away from residential • In Udell – keep commercial away from residential • In Pierro – keep motels from away residential • In Manalapan – keep Home Depot away from everything else

3. The issue • Judge David Westenhaven, who ruled against the Village of Euclid, observed: • That Euclid classified “the population and separate[d] them according to their income or situation in life.” • He thought that this was abhorrent.

4. In Euclid and Nectow Southerland was very concerned about what this new authority would mean for the institution of private property. • Others were concerned – then and now – about what land use regulation will mean for the availability of housing.

5. Did the reversal of Ambler v Euclid, (297 Fed 307) mean that it was OK to separate people according to their income or situation in life? • What are the rules when to comes to excluding people? • Or, is there some duty to accept or even seek out a diverse population?

6. How is exclusion practiced? • Large lot zoning • What are “large lots?” • Single family detached? • 1 acre tracts? • 5 acre tracts? • 10 or 20 acres? • Restrictions on or the exclusion of multi-family • Restrictions on or the exclusion of mobile homes. • Anti-development policies.

7. An affordable housing project in Boulder, Colorado

8. Southern Burlington County NAACP v Mount Laurel II,456 A.2d 390 (NJ1983)

10. Mount Laurel . . . 2000 • Median House Hold Income • Mount Laurel $63,750 • New Jersey -- 1st in US $55,146 • United States $41,994 • Families in poverty • Mount Laurel 2.5% • New Jersey 9.3% • United States 13.3% • Families drawing social security 26%

11. Mount Laurel Cont. . . Housing Mt LaurelUS • Owner occupied 83.7% 66.2% • Single Family-Detached Unit 49.5% 60.3% • Single Family–Attached Unit 23.6% 5.6% • Multi-Family (20 units or more) 3.2% 8.6% • Mobile Homes 1.8% 7.6% • Median Value $161,900 119,600

12. Mount Laurel I, 336 A.2d 713 (1975) • The Township of Mount Laurel . . . “must provide realistic opportunities for low and moderate income housing.” • After 10 years . . .

13. Mount Laurel II “Mount Laurel remains afflicted with a blatantly exclusionary [zoning] ordinance. papered over with studies, rationalized by hired experts, the ordinance at its core is true to nothing but Mount Laurel’s determination to exclude the poor.” What had Mount Laurel done? Maintain “single family character” of the community.

14. “[A] zoning ordinance that contravenes the general welfare is unconstitutional.”

15. Who’s general welfare? • The people of Mount Laurel? -- No! • The “public?” -- No! • The region? – Yes! • A developing municipality must accept its “fair share” of “regional” “affordable housing” need. • What is Mount Laurel’s “fair share” of regional affordable housing?

16. Using the State Development Guide Plan, a panel of judges – essentially similar to federal desegregation of public schools – • Will determine, generally, what is the housing obligation – THE MOUNT LAUREL OBLIGATION of municipalities – and then monitor their progress. • Rutgers University, under the supervision of the court, prepared an analysis of regional development and affordable housing need, • this became the benchmark for the panel to use. • Also established the Housing Advocate within the office of the attorney general

17. Meeting the Mount Laurel Obligation • Remove all municipally created barriers to the construction of their fair share of lower income housing. • Subdivision regulations – lot size • Zoning restrictions – multifamily • Exactions – fees, etc. • Use affirmative measures – being proactive – the removal of barriers is not sufficient (ala affirmative action) so look to . . . • Subsidies • Mandatory set-asides • Incentive zoning • Inclusion of multi family housing • Inclusion of mobile homes • Revision of Building codes

18. April, 1997, 26 years after Mount Laurel I, the Mount Laurel Planning Board approved a . . . • 140 unit complex of townhomes for low and moderate income persons. • Some 200 neighbors appeared in opposition to the development.

19. Board of Supervisors of Fairfax County v DeGroff Enterprises198 S.E.2d 600 (Va 1973) • Can we set aside 15% of new housing for low & moderate income families?

21. Fairfax County . . . 2000 • Median House Hold Income • Fairfax County $81,050 • Virginia $46,677 • United States $41,994 • Families in poverty 5.3%

22. Fairfax County Cont. . . Housing FairfaxUS • Owner occupied 70.9% 66.2% • Single Family-Detached Unit 50.3% 60.3% • Single Family–Attached Unit 23.0% 5.6% • Multi-Family (20 units or more) 9.6% 8.6% • Mobile Homes 0.6% 7.6% • Median Value $233,300 119,600

23. The issue • Can Fairfax County require, as a condition for rezoning, that 15% of the housing created by the rezoning be sold or rented to low and moderate income house holds? • Simply put, is it within Fairfax County’s authority? • Trial court said no, it was not.

24. Virginia Supreme Court • “[I]t would appear that providing low and moderate income housing serves a legitimate public purpose.” • “The question, then, becomes whether this public purpose can be accomplished by the amendment to the [zoning] ordinance which rests upon the police power.”

25. In prior cases the Virginia Supreme Court has held – • An ordinance where the purpose was to exclude low and middle income groups from western Fairfax County was invalid; • Declared illegal a zoning ordinance which had the effect of completely depriving the owner of beneficial use of his land; • So, would an ordinance that allowed use of the land provided that it included low and moderate income housing be valid? • No!

26. Why not? • “The amendment, in establishing maximum rental and sale prices for 15% of the units . . . exceeds the authority granted in the enabling act [SSZEA] to the local body because it is socio-economic zoning and attempts to control the compensation for the use of land and the improvements thereon.”

27. “Of greater importance, however, is that the amendment requires the developer or owner to rent or sell 15% of the dwelling units in the development to persons of low or moderate income at rental or sale prices not fixed by a free market. Such a scheme violates the guarantee set forth in . . . the Constitution of Virginia.” [takings clause]

28. Arlington Heights v Metropolitan Housing Development Corp.97 S.Ct. 555 1977. • Was the refusal to rezone single-family zoned land to multi-family, upon which the Metropolitan Housing Corp would build public housing, unconstitutional because the net effect of the refusal fell disproportionately upon African-Americans, a constitutionally protected group?

30. Arlington Heights . . . 2000 • Median House Hold Income • Arlington Heights $67,807 • Illinois $46,590 • United States $41,994 • Families in poverty ---%

31. Arlington Heights Housing ArlingtonUS • Owner occupied 76.7% 66.2% • Single Family-Detached Unit 57.2% 60.3% • Single Family–Attached Unit 7.8% 5.6% • Multi-Family (20 units or more) 20.4% 8.6% • Mobile Homes 0.0% 7.6% • Median Value $240,600 119,600

32. Factoids . . . • The property had been zoned single family since 1959 – 20 years. • Property was never zoned anything but single family. • Surrounding area is largely single family • 18% of the Chicago region was minority. • <1% of Arlington Heights was minority.* • 40% of the occupants would be minority. * In 2000 91.6% of the population was “white” and 1.1% “black” or African-American (868 out of 76,031).

33. Trial court held that the decision was not motivated by racial discrimination. • But rather by a desire to protect property values and the integrity of the Village’s zoning plan. • The appeals court found that the action was racially discriminatory in its “ultimate effect.”

34. Supreme Court • Opinion by Powell

35. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision. • The Court of Appeals’ finding that the Villages’ decision carried a discriminatory “ultimate effect” is without independent constitutional significance.