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Ask the Lawyer — About Down-Zoning

A:  You should consider raising arguments under the federal Fair Housing Act (FHA) to dissuade the county from enacting its down-zoning ordinance. Among other things, the FHA seeks to ensure that certain classes of people, including minorities, are not the victims of housing discrimination. The U.S. Supreme Court has declared that the FHA’s goals to prevent discriminatory housing practices are “of the highest priority.” Accordingly, since the 1970s the federal courts have considered a series of cases concerning racial discrimination in housing, brokerage and other real estate transactions.

In several of these cases, local government have been found to be in violation of  the FHA for a variety of land use and zoning actions. These include denying construction permits for affordable housing projects, adopting ordinances that prevent such projects from being built or re-zoning particular parcels to block affordable housing projects where minorities would reside.

Counties (and other zoning bodies) should understand that they may violate the FHA even when they do not intend to discriminate against minorities. They are violating the act when the effect of their action denies housing to minorities.

For example, consider a situation where a county enacts a regulation to increase minimum lot sizes. That regulation consequently drives-up housing costs and unintentionally prevents classes of minorities from buying homes. The county most likely did not intend to discriminate racially when it passed its minimum lot size requirement. However, in most judicial circuits, that defense would not be successful insofar as the FHA is concerned — because it is the effect of government action that matters.

It is important to understand that the FHA is not an affordable housing statute. Congress passed the FHA with a specific purpose: to eliminate housing practices that discriminate against minorities and other groups. Nonetheless, the FHA should make government bodies think carefully when they raise barriers to multifamily and other high-density projects. Where statistics, demographics and other evidence show that government actions have created racially segregated housing patterns — or have effectively denied minorities access to affordable housing — the FHA should cause land use regulators to take a second look at the consequences of their actions.

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