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A supreme court zoning decision
TAMILA C. J E N S E N
LEGAL HORIZONS
A Supreme Court Zoning Decision Tamila C. Jensen is a faculty m e m b e r in business law at Indiana University.
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Disagreement may exist as to whether or not the United States has a housing shortage. Many people agree, however, that at least one segment of our population the poor, especially the urban p o o r - i s facing a housing crisis. 1 "If we have a housing crisis, it is the problem of providing more housing opportunities for minorities and of providing satisfactory neighborhood environments. ''2 Zoning ordinances, long recognized b y the courts as a means whereby communities can protect property values and the character of neighborhoods, can have the effect of erecting racial or economic barriers around those communities, thus exacerbating the housing dilemma. In recent years, such ordinances have been challenged as violative of the "equal protection" clause of the Fourteenth Amendment on the grounds that they discriminate on the basis of race. There seems little doubt that if a municipality specifically
1. Richard D. Marshall, "Housing: A Crisis," Business Horizons, April 1977, p. 47.
2. Richard L. Pfister, "Housing: No Crisis," Business Horizons, April 1977, p. 58.
excluded blacks or other minorities or restricted them to one area such action would be unconstitutional. The problem becomes more complex when local zoning ordinances require relatively large lots, fail to provide for multiple-family uses, or otherwise fail to accommodate high density development. Persons of low income, and often many of middle income, cannot afford to acquire homes in such communities. Where a majority of the low income people in a particular area are black and other minorities, the effect is not only economic segregation b u t also racial segregation. A growing trend has developed for federal courts to declare these ordinances unconstitutional as violative of the equal protection clause where it could be proved that, seen in its historical context and ultimate effect, the ordinance had a racially discriminatory effect. The courts had held that it was not necessary to establish racially discriminatory intent, purpose or motive. Village of Arlington
Heights v. Metropolitan Housing Development Corporation, 97 S. Ct. 555 (1977), represents a crucial development in this legal battle. In this case, the Supreme Court held that in evaluating local land use controls " p r o o f of
BUSINESS HORIZONS
A Supreme Court Zoning Decision
racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."
RACIALLY DISCRIMINATORY EFFECT The Village of Arlington Heights, a suburb of Chicago, is a primarily white residential community of single-family homes. Despite substantial population growth during the 1960s, Arlington Heights remained predominantly white. In 1970, 27 of the village's 64,000 residents were black. The percentage of racial minorities declined in this suburban community while it rose in the central city. In 1959, the village adopted a zoning ordinance and comprehensive plan. Most of the land in Arlington Heights was zoned single-family residential. According to the comprehensive plan, multiple-family residential (R-5) was a buffer zone between singlefamily residential and uses deemed incompatible, such as commercial or manufacturing uses. The property that was the subject of the litigation has always been zoned R-3, meaning a single-family residential use on a small lot. The Clerics of St. Viator, a religious order, owned an eighty-acre tract in Arlington Heights which was only partially occupied by
various buildings used by the order. The order decided to use some of its vacant land for low and moderate income housing. In 1970, it entered into an agreement to sell a fifteenacre site to the Metropolitan Housing Development Corporation (MHDC), a not-for-profit corporation created by concerned citizens to develop low and moderate income housing. The subject property was abutted on two sides by single-family homes and on two sides by the remaining vacant land of the order. MHDC planned to build twenty two-story buildings with a total of 190 units having from one to four bedrooms per unit. One hundred units were one-bedroom apartments designed to attract elderly tenants. In order to build the project, to be known as Lincoln Green, a zoning change to R-5 (multiple-family residential) was required. During the spring of 1971 three public hearings on the petition to rezone were held. At the hearings discussion ensued on the desirability of building low and moderate income housing-housing that would probably be racially i n t e g r a t e d - a t this location in the village. Opponents focused on the zoning aspects, arguing (1) that residents who had purchased land in the area did so in reliance upon the single-family residential zoning and that rezoning of the subject property would
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AUGUST 1977
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TAMILA C. JENSEN
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cause a drop in property values and amount to an implicit breach of faith, and (2) that R-5 is a buffer zone between single-family residential and incompatible uses and that the subject property did not fall in that classification. The rezoning request was denied b y the board of trustees b y a vote of six to one on September 28, 1971. MHDC and three minority individuals seeking housing in the village filed suit in J u n e 1972. They sought a declaratory judgment that the zoning ordinance as applied to them was invalid. They sought also to enjoin the village from interfering with development of the project. The complaint alleged (1) that the refusal to rezone the property as requested perpetuated racial segregation and denied MHDC the right to use its property in a reasonable manner and (2) that the refusal violated the Fourteenth Amendment, the Civil Rights Act of 1866, the Civil Rights Act of 1871 and the Fair Housing Act of 1968 in that the complainants had been racially discriminated against. The trial court held that the failure of the village to grant the rez0ning request was not unconstitutional. MHDC appealed, and the United States Court of Appeals for the Seventh Circuit reversed. As the appeals court saw the case, no evidence of discriminatory motive was required; the question was whether or not there was a racially discriminatory effect, "assessed not only in its immediate objective b u t its historical context and ultimate effect. ''3 Applying that test, one relied upon b y a growing number of federal courts hearing exclusionary zoning cases, the court found that racially discriminatory effect was clear. The Chicago metropolitan area is segregated in terms of housing. Arlington Heights is predominantly white. Forty percent of those eligible for this project are black. The village has no other low-cost housing and no plans to build any. The effect of the refusal to 3. Metropolitan Housing Development Corporation v. Village of Arlington Heights, 517 F,2d 409 (7th Cir. 1975).
rezone would be to perpetuate Arlington Heights as a segregated community. Although Arlington Heights took no affirmative action to create or maintain segregation, it relied on the segregated housing pattern of the Chicago area to establish an all-white community, and that was enough for the court of appeals.
RACIALLY DISCRIMINATORY INTENT The Supreme Court of the United States rejected the "discriminatory effect" test, reversed the court of appeals on the constitutional issues and held that p r o o f of racially discriminatory intent or purpose was required to show a violation of the equal protection clause. In doing so, the Court relied on one of its decision in the previous term in Washington v. Davis, 426 U.S. 229 (1976), a case dealing with the discriminatory effect of qualifying tests given to police recruits in Washington, D.C. Washington v. Davis held that proof of racially discriminatory purpose is necessary to establish a violation of the equal protection clause of the Fourteenth Amendment. There, the Supreme Court bad already specifically disapproved seven federal court cases decided b e t w e e n 1968 and 1972 that had applied the "discriminatory effect" test to invalidate actions of local governments. Those cases had been major weapons in the arsenal of those fighting the use of zoning and other local land use control measures to exclude racial minorities from white communities. The Supreme Court in Arlington Heights held that MHDC had failed to prove a racially discriminatory intent or purpose in the refusal of the village to rezone the property to make construction of low and moderate income housing possible. It remanded the case for consideration of the statutory question of whether the Fair Housing Act had been v i o l a t e d - a question not considered b y the lower courts.
BUSINESS HORIZONS
A Supreme Court Zoning Decision
After Arlington Heights, proof of racially disproportionate effect of a local land use regulation will not be sufficient to establish an infringement of the constitutional protections of the equal protection clause of the Fourteenth Amendment. Yet, while racially discrminatory intent and purpose are required to show a violation of the equal protection clause, neither Arlington Heights nor Washington v. Davis requires direct evidence of motive or intent. A showing of a disproportionate impact may be enough under Washington v. Davis to shift the burden to the municipality to prove that its actions were not racially motivated. Nor does the racially discriminatory purpose have to be the only or even the dominant purpose of the municipality's actions. The Court in Arlington Heights set out a number of factors, any one of which might be considered evidence of discriminatory intent or purpose. They are as follows: a clear pattern of segregation with no neutral explanation; a history revealing a series of official actions taken for invidious purposes; the circumstances surrounding or leading to the decision being c h a l l e n g e d ; d e p a r t u r e s from usual procedures; inconsistent application of substantive criteria; and legislative or administrative history.
AUGUST 1977
Thus, challenge to local land use regulation on equal protection grounds is not foreclosed by Arlington Heights, although in many instances it may be more difficult. Indeed, if the standards articulated by the Supreme Court in Arlington Heights were applied to those housing and zoning cases that the Court disapproved in Washington v. Davis for applying the wrong test, most of the challenged regulation could still be found unconstitutional under the racially discriminatory purpose test. Nor has Arlington Heights resolved the problems presented by exclusionary zoning. These issues will continue to be faced by communities, builders and would-be residents of low and moderate income housing. After Arlington Heights, they may be resolved as federal statutory issues. Alternatively, some of them may be resolved as questions of state law, which may require at least certain municipalities to provide for a variety of land uses. Where a racially discriminatory intent or purpose can be shown, the issues may be resolved as questions of constitutional law. Thus, Arlington Heights has not precluded all future challenges of allegedly exclusionary zoning, but it has made the rules tougher for the challenger.
75
LEGAL HORIZONS
A Supreme Court Zoning Decision Tamila C. Jensen is a faculty m e m b e r in business law at Indiana University.
72
Disagreement may exist as to whether or not the United States has a housing shortage. Many people agree, however, that at least one segment of our population the poor, especially the urban p o o r - i s facing a housing crisis. 1 "If we have a housing crisis, it is the problem of providing more housing opportunities for minorities and of providing satisfactory neighborhood environments. ''2 Zoning ordinances, long recognized b y the courts as a means whereby communities can protect property values and the character of neighborhoods, can have the effect of erecting racial or economic barriers around those communities, thus exacerbating the housing dilemma. In recent years, such ordinances have been challenged as violative of the "equal protection" clause of the Fourteenth Amendment on the grounds that they discriminate on the basis of race. There seems little doubt that if a municipality specifically
1. Richard D. Marshall, "Housing: A Crisis," Business Horizons, April 1977, p. 47.
2. Richard L. Pfister, "Housing: No Crisis," Business Horizons, April 1977, p. 58.
excluded blacks or other minorities or restricted them to one area such action would be unconstitutional. The problem becomes more complex when local zoning ordinances require relatively large lots, fail to provide for multiple-family uses, or otherwise fail to accommodate high density development. Persons of low income, and often many of middle income, cannot afford to acquire homes in such communities. Where a majority of the low income people in a particular area are black and other minorities, the effect is not only economic segregation b u t also racial segregation. A growing trend has developed for federal courts to declare these ordinances unconstitutional as violative of the equal protection clause where it could be proved that, seen in its historical context and ultimate effect, the ordinance had a racially discriminatory effect. The courts had held that it was not necessary to establish racially discriminatory intent, purpose or motive. Village of Arlington
Heights v. Metropolitan Housing Development Corporation, 97 S. Ct. 555 (1977), represents a crucial development in this legal battle. In this case, the Supreme Court held that in evaluating local land use controls " p r o o f of
BUSINESS HORIZONS
A Supreme Court Zoning Decision
racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."
RACIALLY DISCRIMINATORY EFFECT The Village of Arlington Heights, a suburb of Chicago, is a primarily white residential community of single-family homes. Despite substantial population growth during the 1960s, Arlington Heights remained predominantly white. In 1970, 27 of the village's 64,000 residents were black. The percentage of racial minorities declined in this suburban community while it rose in the central city. In 1959, the village adopted a zoning ordinance and comprehensive plan. Most of the land in Arlington Heights was zoned single-family residential. According to the comprehensive plan, multiple-family residential (R-5) was a buffer zone between singlefamily residential and uses deemed incompatible, such as commercial or manufacturing uses. The property that was the subject of the litigation has always been zoned R-3, meaning a single-family residential use on a small lot. The Clerics of St. Viator, a religious order, owned an eighty-acre tract in Arlington Heights which was only partially occupied by
various buildings used by the order. The order decided to use some of its vacant land for low and moderate income housing. In 1970, it entered into an agreement to sell a fifteenacre site to the Metropolitan Housing Development Corporation (MHDC), a not-for-profit corporation created by concerned citizens to develop low and moderate income housing. The subject property was abutted on two sides by single-family homes and on two sides by the remaining vacant land of the order. MHDC planned to build twenty two-story buildings with a total of 190 units having from one to four bedrooms per unit. One hundred units were one-bedroom apartments designed to attract elderly tenants. In order to build the project, to be known as Lincoln Green, a zoning change to R-5 (multiple-family residential) was required. During the spring of 1971 three public hearings on the petition to rezone were held. At the hearings discussion ensued on the desirability of building low and moderate income housing-housing that would probably be racially i n t e g r a t e d - a t this location in the village. Opponents focused on the zoning aspects, arguing (1) that residents who had purchased land in the area did so in reliance upon the single-family residential zoning and that rezoning of the subject property would
/
/
/
// ff
/
AUGUST 1977
/
73
TAMILA C. JENSEN
74
cause a drop in property values and amount to an implicit breach of faith, and (2) that R-5 is a buffer zone between single-family residential and incompatible uses and that the subject property did not fall in that classification. The rezoning request was denied b y the board of trustees b y a vote of six to one on September 28, 1971. MHDC and three minority individuals seeking housing in the village filed suit in J u n e 1972. They sought a declaratory judgment that the zoning ordinance as applied to them was invalid. They sought also to enjoin the village from interfering with development of the project. The complaint alleged (1) that the refusal to rezone the property as requested perpetuated racial segregation and denied MHDC the right to use its property in a reasonable manner and (2) that the refusal violated the Fourteenth Amendment, the Civil Rights Act of 1866, the Civil Rights Act of 1871 and the Fair Housing Act of 1968 in that the complainants had been racially discriminated against. The trial court held that the failure of the village to grant the rez0ning request was not unconstitutional. MHDC appealed, and the United States Court of Appeals for the Seventh Circuit reversed. As the appeals court saw the case, no evidence of discriminatory motive was required; the question was whether or not there was a racially discriminatory effect, "assessed not only in its immediate objective b u t its historical context and ultimate effect. ''3 Applying that test, one relied upon b y a growing number of federal courts hearing exclusionary zoning cases, the court found that racially discriminatory effect was clear. The Chicago metropolitan area is segregated in terms of housing. Arlington Heights is predominantly white. Forty percent of those eligible for this project are black. The village has no other low-cost housing and no plans to build any. The effect of the refusal to 3. Metropolitan Housing Development Corporation v. Village of Arlington Heights, 517 F,2d 409 (7th Cir. 1975).
rezone would be to perpetuate Arlington Heights as a segregated community. Although Arlington Heights took no affirmative action to create or maintain segregation, it relied on the segregated housing pattern of the Chicago area to establish an all-white community, and that was enough for the court of appeals.
RACIALLY DISCRIMINATORY INTENT The Supreme Court of the United States rejected the "discriminatory effect" test, reversed the court of appeals on the constitutional issues and held that p r o o f of racially discriminatory intent or purpose was required to show a violation of the equal protection clause. In doing so, the Court relied on one of its decision in the previous term in Washington v. Davis, 426 U.S. 229 (1976), a case dealing with the discriminatory effect of qualifying tests given to police recruits in Washington, D.C. Washington v. Davis held that proof of racially discriminatory purpose is necessary to establish a violation of the equal protection clause of the Fourteenth Amendment. There, the Supreme Court bad already specifically disapproved seven federal court cases decided b e t w e e n 1968 and 1972 that had applied the "discriminatory effect" test to invalidate actions of local governments. Those cases had been major weapons in the arsenal of those fighting the use of zoning and other local land use control measures to exclude racial minorities from white communities. The Supreme Court in Arlington Heights held that MHDC had failed to prove a racially discriminatory intent or purpose in the refusal of the village to rezone the property to make construction of low and moderate income housing possible. It remanded the case for consideration of the statutory question of whether the Fair Housing Act had been v i o l a t e d - a question not considered b y the lower courts.
BUSINESS HORIZONS
A Supreme Court Zoning Decision
After Arlington Heights, proof of racially disproportionate effect of a local land use regulation will not be sufficient to establish an infringement of the constitutional protections of the equal protection clause of the Fourteenth Amendment. Yet, while racially discrminatory intent and purpose are required to show a violation of the equal protection clause, neither Arlington Heights nor Washington v. Davis requires direct evidence of motive or intent. A showing of a disproportionate impact may be enough under Washington v. Davis to shift the burden to the municipality to prove that its actions were not racially motivated. Nor does the racially discriminatory purpose have to be the only or even the dominant purpose of the municipality's actions. The Court in Arlington Heights set out a number of factors, any one of which might be considered evidence of discriminatory intent or purpose. They are as follows: a clear pattern of segregation with no neutral explanation; a history revealing a series of official actions taken for invidious purposes; the circumstances surrounding or leading to the decision being c h a l l e n g e d ; d e p a r t u r e s from usual procedures; inconsistent application of substantive criteria; and legislative or administrative history.
AUGUST 1977
Thus, challenge to local land use regulation on equal protection grounds is not foreclosed by Arlington Heights, although in many instances it may be more difficult. Indeed, if the standards articulated by the Supreme Court in Arlington Heights were applied to those housing and zoning cases that the Court disapproved in Washington v. Davis for applying the wrong test, most of the challenged regulation could still be found unconstitutional under the racially discriminatory purpose test. Nor has Arlington Heights resolved the problems presented by exclusionary zoning. These issues will continue to be faced by communities, builders and would-be residents of low and moderate income housing. After Arlington Heights, they may be resolved as federal statutory issues. Alternatively, some of them may be resolved as questions of state law, which may require at least certain municipalities to provide for a variety of land uses. Where a racially discriminatory intent or purpose can be shown, the issues may be resolved as questions of constitutional law. Thus, Arlington Heights has not precluded all future challenges of allegedly exclusionary zoning, but it has made the rules tougher for the challenger.
75