Ask the Lawyer — About Down-Zoning
Q: The county where I planned to build townhomes and garden apartments proposed a new ordinance that would “down-zone” my property. As a result, the new ordinance will not accommodate higher-density projects like mine. In fact, there is already a lack of affordable housing in the community. How can I persuade the county not to adopt its proposed 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.