Local Land Use Controls May Violate the Fair Housing Act
By Duane Desiderio
The following first appeared in the July 2007 issue of NAHB's e-newsletter for consumers, HouseKeys.
In the midst of the racial upheaval of the late 1960s and in the immediate wake of Dr. Martin Luther King, Jr.’s assassination, Congress enacted the Civil Rights Act in April 1968. Title VIII of that law, known as the Fair Housing Act (FHA), declares that U.S. policy is to provide, within constitutional limits, fair housing throughout the nation.
The FHA’s central provision makes it illegal for any person to discriminate in the sale, rental and financing of dwellings based on race, color, national origin, disability or other protected groups of citizens set forth in the statute. In the FHA’s early years, a unanimous panel of the U.S. Supreme Court declared that the act’s language is “broad and sweeping,” its text must be afforded a “generous construction” and it embodies a “policy that Congress considered to be of the highest priority.”
Forty years ago, the most pressing problems to address in the housing industry were racial steering and blockbusting by real estate brokers, and other forms of overt and intentional discrimination. However, the legislative history of Title VIII indicates that its framers meant to put an end to all forms of housing discrimination. Some of the discriminatory tactics used today are more subtle, but the FHA nonetheless prohibits them even if they are not motivated by racial animus or a purposeful intent to discriminate. Indeed, every federal appellate court that has considered the issue has held that a violation of the FHA does not require proof of intentional discrimination to deprive housing opportunities.
In the housing development context, the FHA certainly makes it illegal for a local city council or zoning board to block a residential project where the motivation is to bar African Americans, Hispanics and other minorities from living in a certain neighborhood. But the FHA is a powerful law, and prohibits more than intentional forms of housing discrimination. A variety of land use and zoning regulations employed under the guise of “smart growth” can effectively discriminate against minorities, and thereby violate the FHA. For instance, a “Not-In-My-Back-Yard” attitude pervades many communities across the nation, as local officials react to citizen sentiment and deny approvals for higher density residential projects that moderate- and lower-income families could afford.
Local governments frequently adopt ordinances establishing large minimum lot sizes, expansive setbacks and side yards, open space set-asides, tree planting requirements and aesthetic controls like brick or masonry construction, to preserve affluence in the community and protect property values. These measures, however, may simultaneously preclude housing opportunities for the economically disadvantaged who can only afford to rent apartments or own multifamily dwellings like townhouses or condominium units.
All lower-income persons feel the impact of land use controls that increase the sticker price of housing. However, if the effect of these development regulations has a greater impact on minorities in depriving them of housing opportunities, then local governments that enact such regulations may be violating the FHA — because the effect of land use regulations has a disparate impact on minorities and other persons protected by the statute. Land use policies that deprive minority families access to quality affordable housing are certainly not smart growth.
To be sure, the FHA does not prohibit economic discrimination; moderate- and lower-income individuals are not among the statute’s named, protected groups. Nor does the FHA protect certain types of affordable housing projects that are government-subsidized with grants, vouchers, tax credits, loan guarantees, bonds or some other method of financing. However, when governments adopt land use controls that effectively preclude housing opportunities for the poor or specific projects geared toward low-income residents, the FHA can be a powerful tool to ensure that homes are available for all citizens — regardless of race, wealth or ethnicity.
Duane Desiderio is staff vice president of legal affairs at the NAHB.