Exclusionary Practices

Racial &Racial &

Non - RacialNon - Racial

Overview

Land regulatory practices are presumed to be Land regulatory practices are presumed to be rationally related to a legitimate community need rationally related to a legitimate community need based on the health, safety, and public welfarebased on the health, safety, and public welfare

However, the opportunity to abuse this power is great However, the opportunity to abuse this power is great and ever present, especially when those segments of and ever present, especially when those segments of society are disadvantagedsociety are disadvantaged

Two types of cases are presented in this sectionTwo types of cases are presented in this section Regulatory discrimination that is not based on an Regulatory discrimination that is not based on an

identifiable protected classificationidentifiable protected classification Racial, ethic, and gender discrimination based on the Racial, ethic, and gender discrimination based on the

attributes of a protected class of personsattributes of a protected class of persons

Some Discriminatory Practices

Minimum lot and house sizeMinimum lot and house size Failure to provide for adequate opportunity for least Failure to provide for adequate opportunity for least

cost housing sitescost housing sites Bias against certain forms of land use: i.e., Bias against certain forms of land use: i.e.,

manufactured homesmanufactured homes Administrative delayAdministrative delay Covert and overt racial discriminationCovert and overt racial discrimination Failure to offer and provide adequate municipal Failure to offer and provide adequate municipal

servicesservices

National Land Investment Co. v Easttown Township In 1958 National Land Investment offered to buy an In 1958 National Land Investment offered to buy an

85 acres tract of land subject to a successful 85 acres tract of land subject to a successful subdivision plansubdivision plan

When National Land took the option the Township When National Land took the option the Township zoning standard was 1 acre minimum per residence – zoning standard was 1 acre minimum per residence – and the land was zoned for single family residencesand the land was zoned for single family residences

National Land submitted a subdivision plan for National Land submitted a subdivision plan for “Sweetbriar” on one acre lots in 1961“Sweetbriar” on one acre lots in 1961

The Township did not take any action because it was The Township did not take any action because it was in the process of amending the minimum lot in the process of amending the minimum lot requirement to 4 acresrequirement to 4 acres

Sweetbriar Today

Quality and craftsmanship are

evident throughout in the

detailed cabinetry, custom carpeting and top

of the line fixtures. Enjoy

elegant entertaining in the formal living room and dining rooms and great family

living in the dramatic family room with brick walled walk-in

fireplace.

Easttown Township, Chester County “The Sweetbriar.”

FOR SALE – 1 Acre $1,200,000

National Land Appeals

National Land applied for a variance but this was National Land applied for a variance but this was denied by the Board of Zoning Appealsdenied by the Board of Zoning Appeals

The trial court found for the Township noting that a The trial court found for the Township noting that a four acre minimum lot size restriction was reasonable four acre minimum lot size restriction was reasonable for a rapidly growing rural areafor a rapidly growing rural area

The Pennsylvania Supreme Court accepted the case The Pennsylvania Supreme Court accepted the case for review and began by characterizing the areafor review and began by characterizing the area

Description

Easttown Township has an area of 8.5 square miles Easttown Township has an area of 8.5 square miles – about the same land area as the greater Manhattan – about the same land area as the greater Manhattan areaarea

In 1965 the Township was located about 20 miles In 1965 the Township was located about 20 miles from Philadelphiafrom Philadelphia

Growth is also approaching from the commercial – Growth is also approaching from the commercial – industrial complex at King of Prussia and Valley industrial complex at King of Prussia and Valley ForgeForge

In 1965 about 60% of the population resides in about In 1965 about 60% of the population resides in about 20% of the Townships’ Villages area – the other 40% 20% of the Townships’ Villages area – the other 40% are scattered in the rural portionare scattered in the rural portion

King of Prussia To The North

Township Location, Founded 1704

Growth Factors

Population of EasttownPopulation of Easttown 1950 – 2,3071950 – 2,307 1960 – 6,9071960 – 6,907 1970 – 10,0501970 – 10,050 2000 – 21,5002000 – 21,500

The Court Begins The Lengthy Analysis The relative advantages of a one acre lot over a one-half The relative advantages of a one acre lot over a one-half

acre lot are easy to comprehend. Similarly, a two acre lot acre lot are easy to comprehend. Similarly, a two acre lot has advantages over a one acre lot and three acres may be has advantages over a one acre lot and three acres may be preferred over two acres or ten acres over three. The preferred over two acres or ten acres over three. The greater the amount of land, the more room for children, the greater the amount of land, the more room for children, the less congestion, the easier to handle water supply and less congestion, the easier to handle water supply and sewage, and the fewer municipal services which must be sewage, and the fewer municipal services which must be provided. At some point along the spectrum, however, the provided. At some point along the spectrum, however, the size of lots ceases to be a concern requiring public size of lots ceases to be a concern requiring public regulation and becomes simply a matter of private regulation and becomes simply a matter of private preference. The point at which legitimate public interest preference. The point at which legitimate public interest ceases is not a constant one, but one which varies with the ceases is not a constant one, but one which varies with the land involved and the circumstances of each case.land involved and the circumstances of each case.

Township’s Argument

The Township says that 4 acre lots are necessary The Township says that 4 acre lots are necessary because most of the township is not sewered but on because most of the township is not sewered but on septic systemsseptic systems

Township roads are old and inadequate to carry the Township roads are old and inadequate to carry the increased traffic burdenincreased traffic burden

They also wish to preserve Easttown’s CharacterThey also wish to preserve Easttown’s Character Preserve open space and create GreenbeltsPreserve open space and create Greenbelts Preserve historic sites and buildingsPreserve historic sites and buildings Protect the setting for the old homes dating back to the Protect the setting for the old homes dating back to the

1700s1700s Protect the general rural characterProtect the general rural character

Court’s Analysis – Sewer System

The Township also allows residences on 1, 2 and 3 The Township also allows residences on 1, 2 and 3 acre lots in certain areas. If 4 acres is really acre lots in certain areas. If 4 acres is really necessary – why not make 4 acre minimums through necessary – why not make 4 acre minimums through the Township?the Township?

And, the Township Sanitation Officer is allowed to And, the Township Sanitation Officer is allowed to increase the size of any lot if a percolation test increase the size of any lot if a percolation test proves to be unsatisfactoryproves to be unsatisfactory

We think that you are blowing smoke in our earWe think that you are blowing smoke in our ear

Court’s Analysis - Roads

Yes, we realize that may roads are old, narrow, and Yes, we realize that may roads are old, narrow, and winding. But when National Land paid an winding. But when National Land paid an independent consultant to perform a traffic analysis independent consultant to perform a traffic analysis the result was that the present road system could the result was that the present road system could serve another 7,000 residents without becoming serve another 7,000 residents without becoming congested and dangerouscongested and dangerous

The road where Sweetbriar is located is bear The road where Sweetbriar is located is bear Highway 30, very much under capacity, and can Highway 30, very much under capacity, and can easily carry more trafficeasily carry more traffic

Court’s Analysis – Open Space

Preserve Open Space?Preserve Open Space? Excuse me! We thought that the best way to preserve Excuse me! We thought that the best way to preserve

open space was to use cluster and density development open space was to use cluster and density development rather than increase the lot sizerather than increase the lot size

Why don’t you use PUD’s to collect common open Why don’t you use PUD’s to collect common open spacespace

If you are going to implement Greenbelts why don’t you If you are going to implement Greenbelts why don’t you have each developer contribute linear open space have each developer contribute linear open space

Why just say four acre lotsWhy just say four acre lots

Court’s Analysis – Historic Sites and Old Homes We don’t understand this one!!!!We don’t understand this one!!!!

The map shows that all of the historic sites are located The map shows that all of the historic sites are located in the small villages throughout the Township where the in the small villages throughout the Township where the zoning remains ½ acre minimumszoning remains ½ acre minimums

Professionals tell us that the best way to preserve Professionals tell us that the best way to preserve historic sites is through design sensitivity and historic sites is through design sensitivity and compatibilitycompatibility

There is no doubt that many of the residents of this area There is no doubt that many of the residents of this area are highly desirous of keeping it the way it is, preferring, are highly desirous of keeping it the way it is, preferring, quite naturally, to look out upon land in its natural state quite naturally, to look out upon land in its natural state rather than on other homes. These desires, however, do rather than on other homes. These desires, however, do not rise to the level of public welfare. This is purely a not rise to the level of public welfare. This is purely a matter of private desire which zoning regulation may not matter of private desire which zoning regulation may not be employed to effectuate.be employed to effectuate.

Court’s Analysis – Rural Character What are you preserving?What are you preserving?

There is nothing about south Easttown which There is nothing about south Easttown which differentiates it from any other area in the southeastern differentiates it from any other area in the southeastern section of Pennsylvania. Surely, no one would seriously section of Pennsylvania. Surely, no one would seriously maintain that the entire southeast corner of the state maintain that the entire southeast corner of the state should be declared immune from further development should be declared immune from further development on areas of less than four acres simply because there on areas of less than four acres simply because there are many old homes located there. If the township were are many old homes located there. If the township were developed on the basis of 4 acre zoning, however, it developed on the basis of 4 acre zoning, however, it could not be seriously contended that the land would could not be seriously contended that the land would retain its rural character -- it would simply be dotted retain its rural character -- it would simply be dotted with larger homes on larger lots.with larger homes on larger lots.

The Knockout Punch

Four acre zoning represents Easttown's position that Four acre zoning represents Easttown's position that it does not desire to accommodate those who are it does not desire to accommodate those who are pressing for admittance to the township unless such pressing for admittance to the township unless such admittance will not create any additional burdens admittance will not create any additional burdens upon governmental functions and services. The upon governmental functions and services. The question posed is whether the township can stand in question posed is whether the township can stand in the way of the natural forces which send our growing the way of the natural forces which send our growing population into hitherto undeveloped areas in search population into hitherto undeveloped areas in search of a comfortable place to live.of a comfortable place to live.

Its Invalid

A zoning ordinance whose primary purpose is to A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the future burdens, economic and otherwise, upon the administration of public services and facilities can not administration of public services and facilities can not be held valid. Of course, we do not mean to imply be held valid. Of course, we do not mean to imply that a governmental body may not utilize its zoning that a governmental body may not utilize its zoning power in order to insure that the municipal services power in order to insure that the municipal services which the community requires are provided in an which the community requires are provided in an orderly and rational manner.orderly and rational manner.

The Warning To Other Communities The purpose of Planning is to provide for the needs The purpose of Planning is to provide for the needs

of the future – it is not intended to deny the futureof the future – it is not intended to deny the future Zoning is a tool in the hands of governmental bodies Zoning is a tool in the hands of governmental bodies

which enables them to more effectively meet the which enables them to more effectively meet the demands of evolving and growing communities. It demands of evolving and growing communities. It must not and can not be used by those officials as an must not and can not be used by those officials as an instrument by which they may shirk their instrument by which they may shirk their responsibilities.responsibilities.

Easttown Land Use Map

Burlington County NAACP v Mt Laurel, New Jersey - 1973

Some Background

Mt. Laurel settled in 1688Mt. Laurel settled in 1688 The actual Mt. Laurel Village incorporated in 1847The actual Mt. Laurel Village incorporated in 1847 Mt. Laurel Township/Village has grown steadily from Mt. Laurel Township/Village has grown steadily from

1960 to 2000 – from 2,345 to 38,0001960 to 2000 – from 2,345 to 38,000

The Case Setting

Mt. Laurel is a 22 sq. mile (14,000 acres) Township Mt. Laurel is a 22 sq. mile (14,000 acres) Township located near Cherry Hill NJ some 10 miles from located near Cherry Hill NJ some 10 miles from CamdenCamden

The Zoning SchemeThe Zoning Scheme 29.2% of the land is zoned light industrial (4,121 acres) 29.2% of the land is zoned light industrial (4,121 acres)

but no more than 100 acres are actually used for but no more than 100 acres are actually used for industryindustry

1.2% is zoned for retail business ( 129 acres)1.2% is zoned for retail business ( 129 acres) The balance of the land is zoned for conventional The balance of the land is zoned for conventional

housing (10,000 acres)housing (10,000 acres)

The Residential Zoning Scheme

The ordinance provides for R-1; R-1D; R-2 and R-3The ordinance provides for R-1; R-1D; R-2 and R-3 Each zone permits only single family housingEach zone permits only single family housing Attached townhouses, apartments, and manufactured Attached townhouses, apartments, and manufactured

homes are not allowed anywhere in the townshiphomes are not allowed anywhere in the township Over 7,000 acres are zoned to permitOver 7,000 acres are zoned to permit A combination of lot size and minimum dwelling size A combination of lot size and minimum dwelling size

makes it evident that only a upper middle income family makes it evident that only a upper middle income family could afford to move to the townshipcould afford to move to the township

The Township did pass a limited PUD District and three The Township did pass a limited PUD District and three developers took advantage by applying for a mixed developers took advantage by applying for a mixed housing projecthousing project

The PUD Application

Mt Laurel gives tentative approvalMt Laurel gives tentative approval Only a few of the townhouses can have more than one Only a few of the townhouses can have more than one

bedroombedroom No school aged children can be permitted to occupy any No school aged children can be permitted to occupy any

one bedroom unitone bedroom unit No more than 2 children can occupy a two bedrooms No more than 2 children can occupy a two bedrooms

unitunit The developer, if more than an average of .3 students The developer, if more than an average of .3 students

per unit occur, must pay the cost of tuition to attend per unit occur, must pay the cost of tuition to attend township schoolstownship schools

All units must be furnished with required amenities, All units must be furnished with required amenities, such as central air-conditioning and must pay large such as central air-conditioning and must pay large sums for township fire, police, library and schoolssums for township fire, police, library and schools

And More

A good share of the units had to be set aside for A good share of the units had to be set aside for senior citizens where children under 18 could not livesenior citizens where children under 18 could not live

Needless to say, the developers walked away from Needless to say, the developers walked away from the projects without the slightest hesitation but did not the projects without the slightest hesitation but did not sue for fear that they would never be allowed to do sue for fear that they would never be allowed to do business again in Mt Laurelbusiness again in Mt Laurel

The Burlington County NAACP filed a class action The Burlington County NAACP filed a class action suit on behalf of future residents (a novel idea) that suit on behalf of future residents (a novel idea) that were barred from moving there from the Camden were barred from moving there from the Camden areaarea

The Court Makes Some Findings

There cannot be the slightest doubt that one of the There cannot be the slightest doubt that one of the main reasons for this zoning scheme is to keep local main reasons for this zoning scheme is to keep local property taxes low and shift the burdens to other property taxes low and shift the burdens to other communitiescommunities

This pattern appears repeatedly in developing This pattern appears repeatedly in developing municipalitiesmunicipalities

This pattern does not allow for low and moderate This pattern does not allow for low and moderate income families to move to the community – they are income families to move to the community – they are effectively barredeffectively barred

The Central Questions

May a developing community, such as Mt. Laurel, make it May a developing community, such as Mt. Laurel, make it physically and economically impossible to provide low and physically and economically impossible to provide low and moderate income housing for various persons who need moderate income housing for various persons who need and want it?and want it?

Can communities limit the type of housing the want so that Can communities limit the type of housing the want so that they is no choice in different types of living they is no choice in different types of living accommodations?accommodations?

Can Mt. Laurel avoid its fair share of the regional burden in Can Mt. Laurel avoid its fair share of the regional burden in supplying the benefits of community to future populations?supplying the benefits of community to future populations?

The Ruling

We conclude that every developing community must, at We conclude that every developing community must, at least by its land use regulations, presumptively make least by its land use regulations, presumptively make possible an appropriate variety and choice of housingpossible an appropriate variety and choice of housing

This court now adopts a non-local approach to the meaning This court now adopts a non-local approach to the meaning of general welfare and no longer allows a community to of general welfare and no longer allows a community to hide behind parochial local interestshide behind parochial local interests

Communities must permit multi-family housing without Communities must permit multi-family housing without bedroom limitations as well as small dwellings on small bedroom limitations as well as small dwellings on small lotslots

Communities, such as Mt. Laurel, must remove land from Communities, such as Mt. Laurel, must remove land from industrial zones when this practice is undertaken to industrial zones when this practice is undertaken to prevent needed housing opportunitiesprevent needed housing opportunities

Mt. Laurel must bear its fair share of the regional burden Mt. Laurel must bear its fair share of the regional burden and this region will vary from place to placeand this region will vary from place to place

Conclusion

Mt. Laurel is granted 90 days to remedy and correct the Mt. Laurel is granted 90 days to remedy and correct the deficiencies in its zoning ordinancedeficiencies in its zoning ordinance

A master must approve the Townships regional fair share A master must approve the Townships regional fair share housing planhousing plan

Mt Laurel II, 1983 – In The Words of the Court The is a return, 8 years later, of the Burlington County The is a return, 8 years later, of the Burlington County

NAACP v Mt. Laurel Township caseNAACP v Mt. Laurel Township case After all this time, and invalidating its zoning ordinance, the After all this time, and invalidating its zoning ordinance, the

Township is still afflicted with a blatantly exclusionary Township is still afflicted with a blatantly exclusionary zoning ordinancezoning ordinance

The new ordinance, at its core, is a testament to Mount The new ordinance, at its core, is a testament to Mount Laurel’s determination to exclude the low and moderate Laurel’s determination to exclude the low and moderate incomeincome

Mt. Laurel is not alone in this widespread non-compliance Mt. Laurel is not alone in this widespread non-compliance with the constitutional mandate of the original casewith the constitutional mandate of the original case

““To the best of our ability, we will not allow this to To the best of our ability, we will not allow this to continue”continue”

The Challenge

Mt. Laurel II is actually a consolidation of 5 different Mt. Laurel II is actually a consolidation of 5 different cases at once – all arise from the Mt. Laurel doctrinecases at once – all arise from the Mt. Laurel doctrine

One of the communities involved is Mt Laurel itself One of the communities involved is Mt Laurel itself which never really implemented a regional fair share which never really implemented a regional fair share planplan

The ruling is a lengthy set of guidelines set down for The ruling is a lengthy set of guidelines set down for all New Jersey municipalitiesall New Jersey municipalities

The court starts off by saying “That some changes The court starts off by saying “That some changes will be made – NOW”will be made – NOW”

Removing Excessive Restrictions

All municipalities are immediately ordered to remove All municipalities are immediately ordered to remove unnecessary barriers to the construction of low and unnecessary barriers to the construction of low and moderate income housingmoderate income housing Lot lot requirementsLot lot requirements Minimum housing size requirementsMinimum housing size requirements Maximum bedrooms regulationsMaximum bedrooms regulations Overuse of amenities in PUDsOveruse of amenities in PUDs Regulations that impact on the number of childrenRegulations that impact on the number of children

Using Affirmative Measures

There are two basic types of affirmative measures There are two basic types of affirmative measures that a municipality can use to make the opportunity that a municipality can use to make the opportunity for low and moderate income housing realisticfor low and moderate income housing realistic Encouraging or requiring the use of available state and Encouraging or requiring the use of available state and

federal housing subsidiesfederal housing subsidies Providing incentives for or requiring developers to set Providing incentives for or requiring developers to set

aside a portion of their developments for lower income aside a portion of their developments for lower income housing – including 5% mandatory set asideshousing – including 5% mandatory set asides

Trial courts are authorized to retain control of cases Trial courts are authorized to retain control of cases such as these and to supervise the community’s such as these and to supervise the community’s resolve to pursue affirmative measuresresolve to pursue affirmative measures

Zoning For All Housing

Although the New Jersey Courts have upheld bans Although the New Jersey Courts have upheld bans on mobile homes – all these decisions are now on mobile homes – all these decisions are now reversedreversed

Changed circumstances now exist and mobile home Changed circumstances now exist and mobile home must now be allowed – all absolute bans will be must now be allowed – all absolute bans will be immediately overruledimmediately overruled

The Court recognized the aesthetic sensibilities of The Court recognized the aesthetic sensibilities of communities but also reversed all decisions which communities but also reversed all decisions which upheld a ban on apartments, town homes, duplexes upheld a ban on apartments, town homes, duplexes and triplexesand triplexes

Least Cost Housing

There may be municipalities where special conditions There may be municipalities where special conditions exist that make it impossible for fair share conditions exist that make it impossible for fair share conditions to exist even after all excessive restrictions and to exist even after all excessive restrictions and exactions have been removedexactions have been removed

Then, and only then, may these communities adopt a Then, and only then, may these communities adopt a “least cost” housing approach to satisfy their regional “least cost” housing approach to satisfy their regional fair share obligationfair share obligation

Least Cost Housing

In Re Girsh, 1969

In Re Girsh is neither a famous or unique case. It is In Re Girsh is neither a famous or unique case. It is however very informative because it illustrates the however very informative because it illustrates the tremendous resistance offer by many suburban tremendous resistance offer by many suburban communities to judicial orderscommunities to judicial orders

In other words, even though the applicant prevails, In other words, even though the applicant prevails, the community drags its feet, ignores the ruling, and the community drags its feet, ignores the ruling, and proceeds along its own pathproceeds along its own path

It also shows that when a ruling is returned to the trial It also shows that when a ruling is returned to the trial court – this lower court often resists interpreting the court – this lower court often resists interpreting the appeals ruling in the most favorable lightappeals ruling in the most favorable light

Some Background

The date is 1964The date is 1964 Mister Girsh senior made a contract to purchase 17 Mister Girsh senior made a contract to purchase 17

½ acres of land for $120,000. The contract stated ½ acres of land for $120,000. The contract stated that he would agree to applied to the township board that he would agree to applied to the township board to change the R-1 zoning so that a high rise (6 story) to change the R-1 zoning so that a high rise (6 story) apartment building could be constructedapartment building could be constructed

The contract also stated that if this zoning change The contract also stated that if this zoning change was successful – he would pay the land owner a total was successful – he would pay the land owner a total of $150,000of $150,000

The Place – Nether Providence Township

Place Description

Nether Providence Township has a population of Nether Providence Township has a population of 13,000 persons (1969) and a land area of 4.64 13,000 persons (1969) and a land area of 4.64 square milessquare miles

About 75% of the township is zoned for single family About 75% of the township is zoned for single family residential (R-1 or R-2) on not less than 20,000 and residential (R-1 or R-2) on not less than 20,000 and 14,000 sq. ft. respectively14,000 sq. ft. respectively

Multi-family is not expressly prohibited but it is not Multi-family is not expressly prohibited but it is not provided for in the ordinance; there are 2 multi-family provided for in the ordinance; there are 2 multi-family housing units in the township permitted by variancehousing units in the township permitted by variance

Girsh’s Actions

Girsh’s sought approval for 2, nine story luxury Girsh’s sought approval for 2, nine story luxury apartment buildings – each contained 280 units – he apartment buildings – each contained 280 units – he offered to reduce each building to 216 unitsoffered to reduce each building to 216 units

The Planning Commission refused to amend the The Planning Commission refused to amend the ordinanceordinance

Girsh sues and the township wants the case Girsh sues and the township wants the case dismissed because Girsh did not apply for a variancedismissed because Girsh did not apply for a variance

Trial court dismisses the suit because it was not ripeTrial court dismisses the suit because it was not ripe The date is now 1966The date is now 1966

Supreme Court Analysis

First, by emphasizing the possibility that a given First, by emphasizing the possibility that a given landowner could obtain a variance, the Township landowner could obtain a variance, the Township overlooks the broader question that is presented by overlooks the broader question that is presented by this case. In refusing to allow apartment development this case. In refusing to allow apartment development as part of its zoning scheme, Nether Providence has as part of its zoning scheme, Nether Providence has in effect decided to zone out the people who would in effect decided to zone out the people who would be able to live in the Township if apartments were be able to live in the Township if apartments were available.available.

Cause and Effect

The township argues that apartment uses would cause a The township argues that apartment uses would cause a significant population increase with a resulting strain on significant population increase with a resulting strain on available municipal services and roads, and would clash available municipal services and roads, and would clash with the existing residential neighborhood. But we with the existing residential neighborhood. But we explicitly rejected both these claims in National Land:explicitly rejected both these claims in National Land:

"Zoning is a tool in the hands of governmental bodies "Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands which enables them to more effectively meet the demands of evolving and growing communities. It must not and can of evolving and growing communities. It must not and can not be used by those officials as an instrument by which not be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future -- it may which a governmental body can plan for the future -- it may not be used as a means to deny the future. . . . Zoning not be used as a means to deny the future. . . . Zoning provisions may not be used . . . to avoid the increased provisions may not be used . . . to avoid the increased responsibilities and economic burdens which time and responsibilities and economic burdens which time and natural growth invariably bring."natural growth invariably bring."

Conclusion

The Court concludes by saying:The Court concludes by saying: In addition, at least hypothetically, the Township could In addition, at least hypothetically, the Township could

show that apartments are not appropriate on the site show that apartments are not appropriate on the site where appellant wishes to build, but that question is not where appellant wishes to build, but that question is not before us as long as the zoning ordinance in question is before us as long as the zoning ordinance in question is fatally defective on its face. The Township could fatally defective on its face. The Township could properly decide that apartments are more appropriate in properly decide that apartments are more appropriate in one part of the Township than in another, but it cannot one part of the Township than in another, but it cannot decide that apartments can fit in no part of the decide that apartments can fit in no part of the TownshipTownship..

The Decision is reversed and remanded to the trial courtThe Decision is reversed and remanded to the trial court The date is now 1971The date is now 1971

Its Not Over

Its now 1972Its now 1972 The trial court receives the remanded caseThe trial court receives the remanded case Judge orders a new hearing for GirshJudge orders a new hearing for Girsh The Township says we now need to revise our zoning The Township says we now need to revise our zoning

ordinance to provide for housingordinance to provide for housing Judge says OK. You have a yearJudge says OK. You have a year Now its 1974Now its 1974 The new ordinance is released along with a new The new ordinance is released along with a new

zoning map. The Township rezones about 3% of the zoning map. The Township rezones about 3% of the land for multi-familyland for multi-family

Guess What?

Girsh’s land is not zoned on the map for multi-family Girsh’s land is not zoned on the map for multi-family housinghousing

Girsh again applies for rezoning of his property to R-3Girsh again applies for rezoning of his property to R-3 In 1975 the Township Planning Board says noIn 1975 the Township Planning Board says no Girsh applies for a variance this timeGirsh applies for a variance this time He is denied by the Board of AdjustmentHe is denied by the Board of Adjustment Girsh goes back to the trial judge and the Judge says Girsh goes back to the trial judge and the Judge says

“what are you doing here?“what are you doing here? Girsh says “I Though I Won!”Girsh says “I Though I Won!”

The Judge Says What?

The trial court took up the matter and decided that The trial court took up the matter and decided that that the Township had acted properly by complying that the Township had acted properly by complying with the decision of the Supreme Court.with the decision of the Supreme Court.

Girsh get the shaftGirsh get the shaft The time in now 1977The time in now 1977 Girsh files leave for appeal before the Supreme CourtGirsh files leave for appeal before the Supreme Court His brief simple says I thought I Won – am I not His brief simple says I thought I Won – am I not

entitled to build my apartmentsentitled to build my apartments The Supreme Court is a bit upset and returns the The Supreme Court is a bit upset and returns the

case to the trial court with instructions to grant Girsh case to the trial court with instructions to grant Girsh a new hearinga new hearing

And it Goes On

Its now 1979Its now 1979 Girsh is granted a new hearingGirsh is granted a new hearing The trial judge once again says that the Township The trial judge once again says that the Township

had every right to turn you down on the specific site had every right to turn you down on the specific site you selected for housing as long as they provided for you selected for housing as long as they provided for adequate mutli-family zones in the Townshipadequate mutli-family zones in the Township

Girsh is very, very unhappy and upsetGirsh is very, very unhappy and upset

Girsh Dies

Last Trip

Girsh’s son takes up the matter in 1982Girsh’s son takes up the matter in 1982 In 1983 the Supreme Court decides to hear the case In 1983 the Supreme Court decides to hear the case

again and makes a final ruling in 1938again and makes a final ruling in 1938 The court says that the intention was all along to The court says that the intention was all along to

grant Girsh a “Builder’s Remedy.”grant Girsh a “Builder’s Remedy.” They then order to the trial court to immediately order They then order to the trial court to immediately order

the property rezoned and permits issuedthe property rezoned and permits issued The Township never did this – Girsh jr. lost the The Township never did this – Girsh jr. lost the

financing on the property and was never able to financing on the property and was never able to complete the projectcomplete the project

Girsh’s Last Wish

Surrick v Upper Providence Twsp., 1977 Upper Providence Township is a western suburb of Upper Providence Township is a western suburb of

Philadelphia, located about 12 miles from the center of the Philadelphia, located about 12 miles from the center of the city. The 1970 census set the township's population at city. The 1970 census set the township's population at slightly over 9,200 the 2000 population is about 12,000; the slightly over 9,200 the 2000 population is about 12,000; the total acreage of the township is approximately 3,800 acres. total acreage of the township is approximately 3,800 acres. Approximately one-quarter of the township land is Approximately one-quarter of the township land is undeveloped. The township was first settled in 1700undeveloped. The township was first settled in 1700

The zoning ordinance in question has classified 43 acres, The zoning ordinance in question has classified 43 acres, or 1.14% of the total township acreage, as a B district; in or 1.14% of the total township acreage, as a B district; in this B district apartments are permitted along with other this B district apartments are permitted along with other essentially commercial uses, and the B district is already essentially commercial uses, and the B district is already substantially developed.substantially developed.

Background

Surrick sought to build apartments and townhouses on a 16.25 Surrick sought to build apartments and townhouses on a 16.25 acre tract of land (four acres owned by appellant; 12.25 acres acre tract of land (four acres owned by appellant; 12.25 acres under agreement of sale with zoning contingency). The tract is under agreement of sale with zoning contingency). The tract is located in an area designated A-1 Residential under the located in an area designated A-1 Residential under the township ordinance, which permits only single family dwellings township ordinance, which permits only single family dwellings on one-acre lots. on one-acre lots.

Surrick applied to the Township to rezone the 12.25 acre tract to Surrick applied to the Township to rezone the 12.25 acre tract to B-Business, the only ordinance classification permitting multi-B-Business, the only ordinance classification permitting multi-family housing, to develop the site for apartmentsfamily housing, to develop the site for apartments

The rezoning was denied The rezoning was denied Surrick revised his plans to include the four acres of ground Surrick revised his plans to include the four acres of ground

owned by him. He sought building permits, which were denied owned by him. He sought building permits, which were denied by the Building Inspectorby the Building Inspector

He appealed to the Board requesting a variance – the Board He appealed to the Board requesting a variance – the Board denieddenied

Township Location

Philadelphia

Legal Challenge

The trial court upholds the actions of the TownshipThe trial court upholds the actions of the Township The Supreme Court reviews and makes the following The Supreme Court reviews and makes the following

findings:findings: There can be little doubt that Upper Providence There can be little doubt that Upper Providence

Township is a logical area for development and Township is a logical area for development and population growth. This conclusion is supported by the population growth. This conclusion is supported by the fact that the township is located a mere twelve miles or fact that the township is located a mere twelve miles or so from Philadelphia and is situated at the intersection so from Philadelphia and is situated at the intersection of two main traffic arteries, one of which, Route 1, is a of two main traffic arteries, one of which, Route 1, is a direct link with the city.direct link with the city.

Finding #2 and 3

The record shows that the township is not a high The record shows that the township is not a high density population area; roughly one-quarter of the density population area; roughly one-quarter of the township land is undeveloped. Thus the township's township land is undeveloped. Thus the township's present level of development does not preclude present level of development does not preclude further development of multi-family dwellings.further development of multi-family dwellings.

The zoning ordinance in question results in a partial The zoning ordinance in question results in a partial exclusion of multi-family dwellings, providing, as it exclusion of multi-family dwellings, providing, as it does, 1.14% of the township land for development of does, 1.14% of the township land for development of multi-family dwellings. It is also significant that multi-multi-family dwellings. It is also significant that multi-family dwellings are only one of more than a dozen family dwellings are only one of more than a dozen other uses permitted on this fraction of land.other uses permitted on this fraction of land.

Conclusion of Facts

The analysis leads inescapably to the conclusion that the The analysis leads inescapably to the conclusion that the facts of the instant case are legally indistinguishable from facts of the instant case are legally indistinguishable from previous cases. Thus we hold that Upper Providence previous cases. Thus we hold that Upper Providence Township has not provided a "fair share" of its land for Township has not provided a "fair share" of its land for development of multi-family dwellings.development of multi-family dwellings.

The Township’s assertion that the greatest demand for The Township’s assertion that the greatest demand for housing in the township is for single-family homes on one housing in the township is for single-family homes on one acre lots rather proves too much. One need not probe too acre lots rather proves too much. One need not probe too deeply into the economic mechanics of supply and demand deeply into the economic mechanics of supply and demand to realize that the zoned-in scarcity of land for multi-family to realize that the zoned-in scarcity of land for multi-family dwellings could easily create this type of demand.dwellings could easily create this type of demand.

Conclusion

Note: The Penn. Courts have already Note: The Penn. Courts have already adopted a fair share formula following Mt. adopted a fair share formula following Mt. Laurel. The court now has some 10 years of Laurel. The court now has some 10 years of experience in facing discriminatory ordinanceexperience in facing discriminatory ordinance

The final action of the Court is to invalidate The final action of the Court is to invalidate the ordinance – order a new study and plan the ordinance – order a new study and plan prepared – and grant Surrick a builder’s prepared – and grant Surrick a builder’s remedy (issue the permits now)remedy (issue the permits now)

Upper Providence Township 2001

2000 Land Use Map

98% residential

1% commercial

1% industrial

Average housing price $700,000

Britton v Town of Chester, 1991

The town of Chester lies in the west-central portion of The town of Chester lies in the west-central portion of Rockingham County, thirteen miles east of the city of Rockingham County, thirteen miles east of the city of Manchester. The available housing stock is principally Manchester. The available housing stock is principally single-family homes. There is no municipal sewer or water single-family homes. There is no municipal sewer or water service, and other municipal services remain modest. The service, and other municipal services remain modest. The town has not encouraged industrial or commercial town has not encouraged industrial or commercial development; it is a "bedroom community," with the development; it is a "bedroom community," with the majority of its labor force commuting to Manchester. majority of its labor force commuting to Manchester. Because of its close proximity to job centers and the ready Because of its close proximity to job centers and the ready availability of vacant land, the town is projected to have availability of vacant land, the town is projected to have among the highest growth rates in New Hampshire over the among the highest growth rates in New Hampshire over the next two decades.next two decades.

Location

Class Action Suit

There are two sets of plaintiff's in this caseThere are two sets of plaintiff's in this case :: A group of low income persons represented by George A group of low income persons represented by George

Edwards, a woodcutter, who grew up in the town. He lives Edwards, a woodcutter, who grew up in the town. He lives in Chester with his wife and three minor children in a one-in Chester with his wife and three minor children in a one-bedroom, thirty-foot by eight-foot camper trailer with no bedroom, thirty-foot by eight-foot camper trailer with no running water. Their annual income is $ 14,040, which running water. Their annual income is $ 14,040, which places them in the low-income category. Roger McFarland places them in the low-income category. Roger McFarland grew up and works in the town. He lives in Derry with his grew up and works in the town. He lives in Derry with his wife and three teenage children in a two-bedroom wife and three teenage children in a two-bedroom apartment which is too small to meet their needs. He and apartment which is too small to meet their needs. He and his wife both work, and their combined annual income is $ his wife both work, and their combined annual income is $ 24,000.24,000.

The other plaintiff is Raymond Remillard, home builder, The other plaintiff is Raymond Remillard, home builder, who has been trying to build moderate cost housing since who has been trying to build moderate cost housing since 19791979

The Zoning Ordinance

The zoning ordinance in effect at the beginning of this The zoning ordinance in effect at the beginning of this action in 1985 provided for a single-family home on a two-action in 1985 provided for a single-family home on a two-acre lot or a duplex on a three-acre lot, and it excluded acre lot or a duplex on a three-acre lot, and it excluded multi-family housing from all five zoning districts in the multi-family housing from all five zoning districts in the towntown

The ordinance was amended in 1986 to permit multi-family The ordinance was amended in 1986 to permit multi-family housing as part of a Planned Unit Developmenthousing as part of a Planned Unit Development

George Remillard applied for the Planned Unit Development George Remillard applied for the Planned Unit Development overlay but was denied – he brought suit in district courtoverlay but was denied – he brought suit in district court

The Trial Court

FINDINGS:FINDINGS: Under the ordinance, PUDs are allowed on tracts of not Under the ordinance, PUDs are allowed on tracts of not

less than twenty acres in two designated "R-2" less than twenty acres in two designated "R-2" (medium-density residential) zoning districts(medium-density residential) zoning districts..

Due to existing home construction and environmental Due to existing home construction and environmental considerations, such as wet-lands and steep slopes, considerations, such as wet-lands and steep slopes, only slightly more than half of all the land in the two R-2 only slightly more than half of all the land in the two R-2 districts could reasonably be used for multi-family districts could reasonably be used for multi-family development. This constitutes only 1.73% of the land in development. This constitutes only 1.73% of the land in the townthe town

The PUD Ordinance

THE PUD ORDINANCE IS DEFECTIVETHE PUD ORDINANCE IS DEFECTIVE The PUD requires approval by the Town Board and the The PUD requires approval by the Town Board and the

Planning Commission in such a way that there are no Planning Commission in such a way that there are no objective standardsobjective standards

The developer may be required to hire a hydrologist, The developer may be required to hire a hydrologist, engineer, architect and other professionals to “assist engineer, architect and other professionals to “assist the Planning Board”the Planning Board”

The trial court found that the ordinance itself was The trial court found that the ordinance itself was discriminatory and did not address the fair share needs discriminatory and did not address the fair share needs of its regionof its region

The trial court invalidates the entire zoning ordinance The trial court invalidates the entire zoning ordinance and orders building permits for Remillardand orders building permits for Remillard

The Town of Chester Appeals

Chester appeals and says we are not required to Chester appeals and says we are not required to serve the needs of outsiders – only the people of the serve the needs of outsiders – only the people of the town of Chestertown of Chester

The Supreme Court says we have already sent a The Supreme Court says we have already sent a message to zoning bodies (in Beck) that "[t]owns message to zoning bodies (in Beck) that "[t]owns may not refuse to confront the future by building a may not refuse to confront the future by building a moat around themselves and pulling up the moat around themselves and pulling up the drawbridge." Id. The town of Chester appears willing drawbridge." Id. The town of Chester appears willing to lower that bridge only for people who can afford a to lower that bridge only for people who can afford a single-family home on a two-acre lot or a duplex on a single-family home on a two-acre lot or a duplex on a three-acre lot. Others are realistically prohibited from three-acre lot. Others are realistically prohibited from crossing.crossing.

"Equity will not suffer a wrong without a remedy." Chester denies that the trial court had the power to (in Chester denies that the trial court had the power to (in

effect) rezone the tract my granting a builders remedyeffect) rezone the tract my granting a builders remedy Since 1979, Remillard has attempted to obtain permission Since 1979, Remillard has attempted to obtain permission

to build a moderate-sized multi-family housing to build a moderate-sized multi-family housing development on his land in Chester. He is committed to development on his land in Chester. He is committed to setting aside a minimum of ten of the forty-eight units for setting aside a minimum of ten of the forty-eight units for low- and moderate-income tenants for twenty years.low- and moderate-income tenants for twenty years.

Hence, we hold that the "builder's remedy" is appropriate in Hence, we hold that the "builder's remedy" is appropriate in this case, both to compensate the developer who has this case, both to compensate the developer who has invested substantial time and resources in pursuing this invested substantial time and resources in pursuing this litigation, and as the most likely means of insuring that low- litigation, and as the most likely means of insuring that low- and moderate-income housing is actually built.and moderate-income housing is actually built.

Conclusion

The zoning ordinance evolved as an innovative The zoning ordinance evolved as an innovative means to counter the problems of uncontrolled means to counter the problems of uncontrolled growth. It was never conceived to be a device to growth. It was never conceived to be a device to facilitate the use of governmental power to prevent facilitate the use of governmental power to prevent access to a municipality by "outsiders of any access to a municipality by "outsiders of any disadvantaged social or economic group." disadvantaged social or economic group."

The town of Chester has adopted a zoning ordinance The town of Chester has adopted a zoning ordinance which is blatantly exclusionary. This court will not which is blatantly exclusionary. This court will not condone the town's conduct.condone the town's conduct.

Celebration in Chester NH

And, Mobile Homes

Clark v Winnebago County

Clark v Winnebago County, 1987

Clark County has adopted a zoning ordinance that Clark County has adopted a zoning ordinance that regulates the uses of land within the County.regulates the uses of land within the County.

The ordinance establishes the zoning classification of The ordinance establishes the zoning classification of "Mobile Home District" as a separate district and "Mobile Home District" as a separate district and provides that, with limited exceptions, mobile homes provides that, with limited exceptions, mobile homes may not be located outside a mobile home district. may not be located outside a mobile home district.

It additionally sets forth certain performance It additionally sets forth certain performance standards for mobile home parks located within such standards for mobile home parks located within such a district.a district.

Description

Clark’s property is currently zoned agricultural. The Clark’s property is currently zoned agricultural. The property is surrounded by land zoned for low density property is surrounded by land zoned for low density residentialresidential

Clark filed to rezone his property to two Clark filed to rezone his property to two classificationsclassifications R-1 Single Family residential R-1 Single Family residential MH Mobile Home Park DistrictMH Mobile Home Park District

The County Commission grants the R-1 zoning and The County Commission grants the R-1 zoning and denies the mobile home zoning designationdenies the mobile home zoning designation

The Clark Family

Mr. And Mrs. Clark

“We are not trailer trash”

Deron and Deronette Clark

Clark’s Contentions

Clark contends that there is no rational basis for Clark contends that there is no rational basis for discriminating against mobile homes – they are, after all, a discriminating against mobile homes – they are, after all, a form of single family housingform of single family housing

Clark contends that this is a violation of his equal Clark contends that this is a violation of his equal protection rights since there is no substantial difference protection rights since there is no substantial difference between site built and mobile homesbetween site built and mobile homes

Clark’s Lawyer – Denephew Brisious

“A person should be able to live where they want”

The Trial

After a trial on the merits, the district court concluded that After a trial on the merits, the district court concluded that neither the ordinance nor the zoning decision was so neither the ordinance nor the zoning decision was so irrational or unrelated to the general welfare as to implicate irrational or unrelated to the general welfare as to implicate the fourteenth amendment. Clark appeals.the fourteenth amendment. Clark appeals.

The Supreme Court agrees with the district court that Clark The Supreme Court agrees with the district court that Clark failed to establish that the ordinance is clearly unrelated to failed to establish that the ordinance is clearly unrelated to a legitimate governmental interest. Mobile home parks are a a legitimate governmental interest. Mobile home parks are a sufficiently distinct use of land to justify their separate sufficiently distinct use of land to justify their separate classification for zoning purposes.classification for zoning purposes.

For instance, mobile home parks, with their smaller lot For instance, mobile home parks, with their smaller lot sizes, affect population density, and the County sizes, affect population density, and the County unquestionably has a right to control the orderly unquestionably has a right to control the orderly development of the community by regulating density. development of the community by regulating density.

The Clarks Lose

“I just can’t see it,” said Mr. Clark, “my mobile home looks just the like houses of those scum sucking Planning Commissioners”

Stonewood v Bells and Barrackville, 1980 West Virginia The Town of Barrackville adopted a zoning ordinance The Town of Barrackville adopted a zoning ordinance

that prohibited mobile homes other than in an existing that prohibited mobile homes other than in an existing mobile home park mobile home park

The Town of Stonewood also adopted an ordinance The Town of Stonewood also adopted an ordinance restricting mobile homes to parks and prohibiting the restricting mobile homes to parks and prohibiting the formation of any additional mobile home parksformation of any additional mobile home parks

Grandfather clauses allow existing mobile homes to Grandfather clauses allow existing mobile homes to stay in placestay in place

The Controversy

In June of 1977, Russell and Dora Bell placed a mobile In June of 1977, Russell and Dora Bell placed a mobile home on lots lying within the town limits of Stonewood. home on lots lying within the town limits of Stonewood. Two months later Stonewood, through its legal counsel, Two months later Stonewood, through its legal counsel, notified the Bells that the placement of their mobile home notified the Bells that the placement of their mobile home violated the aforementioned ordinance and requested that violated the aforementioned ordinance and requested that the mobile home be removed. The Bells refused to remove the mobile home be removed. The Bells refused to remove the mobile home. the mobile home.

Stonewood connected the Bell's mobile home to the town's Stonewood connected the Bell's mobile home to the town's water system under the mistaken impression that the water system under the mistaken impression that the mobile home was without the town limits. Upon discovering mobile home was without the town limits. Upon discovering that the mobile home was within the town limits, that the mobile home was within the town limits, Stonewood refunded to the Bells an amount representing Stonewood refunded to the Bells an amount representing the extra fee charged to persons outside the town limits the extra fee charged to persons outside the town limits who desire the town's water service..who desire the town's water service..

And Now, The Flowers

In April of 1979, Ruth Flowers and her daughter and son-in-In April of 1979, Ruth Flowers and her daughter and son-in-law, Judy and Joseph Griffin, appeared before the law, Judy and Joseph Griffin, appeared before the Barrackville town council and requested permission to Barrackville town council and requested permission to locate a mobile home on property owned by them. They locate a mobile home on property owned by them. They sought this use under an ordinance which provides a sought this use under an ordinance which provides a procedure for obtaining permission from the town council procedure for obtaining permission from the town council to place a mobile home outside a trailer court. to place a mobile home outside a trailer court.

The town council denied the appellants' request. Despite The town council denied the appellants' request. Despite this denial, Ruth Flowers moved her mobile home from a this denial, Ruth Flowers moved her mobile home from a trailer court to the property owned by her daughter and trailer court to the property owned by her daughter and son-in-law. son-in-law.

Subsequently, Barrackville brought an action to remove the Subsequently, Barrackville brought an action to remove the home.home.

Mrs. Flowers Is Mad

“If they think I am going to move my mobile home then they can all go to hell.

They will have to shoot me first.”

Corettea Flowers

The Trial Court

Both towns moved for summary judgment and the Both towns moved for summary judgment and the court granted an injunctioncourt granted an injunction

Both parties are ordered to remove their mobile homeBoth parties are ordered to remove their mobile home The Bells and the Flowers appealed:The Bells and the Flowers appealed:

The ordinances violated the substantive due process The ordinances violated the substantive due process clause of the 14clause of the 14thth amendment amendment

The ordinances constitute a violation of the equal The ordinances constitute a violation of the equal protection clauseprotection clause

The Appeals Court

A Virginia statute allows communities to adopt A Virginia statute allows communities to adopt ordinances restricting mobile home to parks ordinances restricting mobile home to parks regardless of whether or not they have a regardless of whether or not they have a comprehensive zoning plancomprehensive zoning plan

The court upholds this statute in recognition that The court upholds this statute in recognition that many small, rural towns would have difficulty many small, rural towns would have difficulty adopting a zoning ordinance and maintaining a adopting a zoning ordinance and maintaining a planning commissionplanning commission

Equal Protection & Substantive Due Process We are unable to say that the towns of Stonewood and We are unable to say that the towns of Stonewood and

Barrackville have unreasonably or arbitrarily restricted the Barrackville have unreasonably or arbitrarily restricted the placement of mobile homes.placement of mobile homes.

We are not here dealing with an absolute exclusion of We are not here dealing with an absolute exclusion of mobile homes. If we were, our analysis would necessitate a mobile homes. If we were, our analysis would necessitate a different approachdifferent approach

The concept of "community" embraces not only the idea of The concept of "community" embraces not only the idea of a group of people living together in a given area, but also a group of people living together in a given area, but also that those people will live together harmoniously. The that those people will live together harmoniously. The appellants will share the benefits and the burdens of these appellants will share the benefits and the burdens of these exercises of the police power and it would be not only exercises of the police power and it would be not only disruptive but inappropriate for us to strike down an disruptive but inappropriate for us to strike down an ordinance which substantially advances a legitimate ordinance which substantially advances a legitimate legislative goal.legislative goal.

Zoning And Land Use Restrictions and Racial Discrimination

The Historical CasesThe Historical Cases Yick Wo v HopkinsYick Wo v Hopkins Buchanan v WarleyBuchanan v Warley Dailey v LawtonDailey v Lawton Shelly v KraemerShelly v Kraemer

The Civil Rights Acts

Civil Rights Act of 1868Civil Rights Act of 1868 The Civil Rights Act of 1866, passed in March of that The Civil Rights Act of 1866, passed in March of that

year by Radical Republicans in Congress over a veto by year by Radical Republicans in Congress over a veto by President Andrew Johnson, declared African Americans President Andrew Johnson, declared African Americans to be citizens and granted them equal protection of the to be citizens and granted them equal protection of the laws in matters of contracts, lawsuits, trials, property laws in matters of contracts, lawsuits, trials, property transactions, and purchases, and it attached penalties transactions, and purchases, and it attached penalties for violations of these rightsfor violations of these rights

Civil Rights Act of 1871Civil Rights Act of 1871 Voting rightsVoting rights

Civil Rights

Civil Rights Act of 1875Civil Rights Act of 1875 The Civil Rights Act of 1875 sought to guarantee The Civil Rights Act of 1875 sought to guarantee

freedom of access, regardless of race, to the "full and freedom of access, regardless of race, to the "full and equal enjoyment" of inns, public conveyances and equal enjoyment" of inns, public conveyances and public places of amusement. Citizens were given the public places of amusement. Citizens were given the right to sue for personal damages. Federal courts were right to sue for personal damages. Federal courts were given exclusive jurisdiction over all cases arising under given exclusive jurisdiction over all cases arising under the act.the act.

Civil Rights Act of 1957Civil Rights Act of 1957 Established the Commission on Civil Rights and created Established the Commission on Civil Rights and created

the Civil Rights Enforcement Division in the Dept. of the Civil Rights Enforcement Division in the Dept. of JusticeJustice

Civil Rights

Civil Rights Act of 1964Civil Rights Act of 1964 Its eleven titles combated voter discrimination, funded Its eleven titles combated voter discrimination, funded

school desegregation, renewed the Civil Rights school desegregation, renewed the Civil Rights Commission another four years, banned use of federal Commission another four years, banned use of federal funds for schools or programs which discriminated, funds for schools or programs which discriminated, banned discrimination in employment and unions, banned discrimination in employment and unions, barred federal courts from remanding civil rights cases barred federal courts from remanding civil rights cases back to state or local courts, established the right to a back to state or local courts, established the right to a jury trial for in cases involving the act, and morejury trial for in cases involving the act, and more

Civil Rights Act of 1968Civil Rights Act of 1968 The “Fair Housing Act”The “Fair Housing Act”

Yick Wo - Background

By 1880 about 10 percent of the population of By 1880 about 10 percent of the population of California was ChineseCalifornia was Chinese

About half lived in the San Francisco areaAbout half lived in the San Francisco area Because of discriminatory laws they tended to Because of discriminatory laws they tended to

concentrate in certain industries – mining, railroad, concentrate in certain industries – mining, railroad, cigar making, laundries, and garmentscigar making, laundries, and garments

The Yellow Press frequently characterized Chinese The Yellow Press frequently characterized Chinese laundries as “Opium Dens”laundries as “Opium Dens”

Yick Wo v Hopkins, 1886

Yick Wo was a citizen of China residing in San Yick Wo was a citizen of China residing in San FranciscoFrancisco

Yick Wo was arrested, fined $10, and sentenced to Yick Wo was arrested, fined $10, and sentenced to 10 days in jail for violating a city ordinance prohibiting 10 days in jail for violating a city ordinance prohibiting a laundry in a wooden buildinga laundry in a wooden building

The ordinance stated thatThe ordinance stated that: : It shall be unlawful, from and It shall be unlawful, from and after the passage of this order, for any person or persons after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco corporate limits of the city and county of San Francisco without having first obtained the consent of the board of without having first obtained the consent of the board of supervisors, except the same be located in a building supervisors, except the same be located in a building constructed either of brick or stone.constructed either of brick or stone.

Inspection

The Board of Supervisors could have issued a The Board of Supervisors could have issued a certificate of compliance for Yick Wo’s wooden frame certificate of compliance for Yick Wo’s wooden frame laundry building if it found it to be safelaundry building if it found it to be safe

The trail court and the California Appeals courts The trail court and the California Appeals courts upheld the conviction and the ordinance as a valid upheld the conviction and the ordinance as a valid exercise of the police powerexercise of the police power

The U.S. Supreme Court accepted the case under a The U.S. Supreme Court accepted the case under a writ of writ of habeas corpus

The Complaint

There were about 320 laundries in the city and There were about 320 laundries in the city and county of San Francisco, of which about 240 were county of San Francisco, of which about 240 were owned and conducted by subjects of China, and of owned and conducted by subjects of China, and of the whole number,the whole number, 320, about 310 were constructed 320, about 310 were constructed of wood, the same material that constitutes nine-of wood, the same material that constitutes nine-tenths of the houses in the city of San Franciscotenths of the houses in the city of San Francisco

Yick Wo claims that 150 Chinese operators have Yick Wo claims that 150 Chinese operators have been arrested for violating the ordinance. However, been arrested for violating the ordinance. However, 80 non-Chinese operators, who own wooden frame 80 non-Chinese operators, who own wooden frame laundries were not arrestedlaundries were not arrested

Further Facts

About 200 Chinese owners petitioned the Board for About 200 Chinese owners petitioned the Board for permission to operate their laundries – all were permission to operate their laundries – all were denieddenied

All the non-Chinese who petitioned to operate their All the non-Chinese who petitioned to operate their laundries (with the exception of one woman) were laundries (with the exception of one woman) were granted permitsgranted permits

All the Chinese owners were ordered to tear down All the Chinese owners were ordered to tear down their buildings and reconstruct them from stone or their buildings and reconstruct them from stone or brickbrick

The Decision

The power given to the Board of Supervisors to approve or The power given to the Board of Supervisors to approve or disapprove the operation of wooden laundries is arbitrary, disapprove the operation of wooden laundries is arbitrary, standard less, and violates the subjects equal protectionstandard less, and violates the subjects equal protection

The fourteenth amendment to the constitution is not The fourteenth amendment to the constitution is not confined to the protection of citizens. it says: "Nor shall confined to the protection of citizens. it says: "Nor shall any state deprive any person of life, liberty, or property any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These its jurisdiction the equal protection of the laws." These provisions are universal in their application, to all persons provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal protection of the laws is a pledge of the protection of equal lawslaws

Conclusion

The fact of this discrimination is admitted. No reason The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and and nationality to which the petitioners belong, and which, in the eye of the law, is not justifiedwhich, in the eye of the law, is not justified

This discrimination is therefore illegal, and the public This discrimination is therefore illegal, and the public administration which enforces it is a denial of the administration which enforces it is a denial of the equal protection of the laws, and a violation of the equal protection of the laws, and a violation of the fourteenth amendment of the constitutionfourteenth amendment of the constitution

Facially Discriminatory Racial Laws in Housing There was a great resurgence of local laws after There was a great resurgence of local laws after

1912 designed to assure that the White and Non-1912 designed to assure that the White and Non-White races could not co-mingle in the workplace, in White races could not co-mingle in the workplace, in public places, and in neighborhoodspublic places, and in neighborhoods

These municipal laws were based on the theory that These municipal laws were based on the theory that the co-mingling of races would encourage over the co-mingling of races would encourage over familiarity and lead to misogamyfamiliarity and lead to misogamy

Buchanan v Warely, 1917

Buchanan, a person of color, signed a contract to Buchanan, a person of color, signed a contract to purchase a home in Louisville, KY.purchase a home in Louisville, KY.

The contract was subject to a clause that read:The contract was subject to a clause that read: 'It is understood that I am purchasing the above 'It is understood that I am purchasing the above

property for the purpose of having erected thereon a property for the purpose of having erected thereon a house which I propose to make my residence, and it is a house which I propose to make my residence, and it is a distinctdistinct part of this agreement that I shall not be part of this agreement that I shall not be required to accept a deed to the above property or to required to accept a deed to the above property or to pay for said property unless I have the right under the pay for said property unless I have the right under the laws of the state of Kentucky and the city of Louisville laws of the state of Kentucky and the city of Louisville to occupy said property as a residenceto occupy said property as a residence

Executing the Contract

Buchanan tried to purchase a home in a block where Buchanan tried to purchase a home in a block where 10 homes were occupied by Caucasians and two 10 homes were occupied by Caucasians and two homes were owner by persons of colorhomes were owner by persons of color

Louisville, in 1911, had adopted an ordinance with Louisville, in 1911, had adopted an ordinance with the following title:the following title: 'An ordinance to prevent conflict and ill-feeling between 'An ordinance to prevent conflict and ill-feeling between

the white and colored races in the city of Louisville, and the white and colored races in the city of Louisville, and to preserve the public peace and promote the general to preserve the public peace and promote the general welfare, by making reasonable provisions requiring, as welfare, by making reasonable provisions requiring, as far as practicable, the use of separate blocks, for far as practicable, the use of separate blocks, for residences, places of abode, and places of assembly by residences, places of abode, and places of assembly by white and colored people respectively.' white and colored people respectively.'

What The Ordinance Said

It is made unlawful for any colored person to move into and It is made unlawful for any colored person to move into and occupy as a occupy as a residence, place of abode, or to establish and residence, place of abode, or to establish and maintain as a place of public assembly any house upon any maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied block upon which a greater number of houses are occupied as residences, places of abode, or places of public as residences, places of abode, or places of public assembly by white people than are occupied as residences, assembly by white people than are occupied as residences, places of abode, or places of public assembly by colored places of abode, or places of public assembly by colored peoplepeople

It is also unlawful for any white persons to move into and It is also unlawful for any white persons to move into and occupy as a residence. … or public assembly by colored occupy as a residence. … or public assembly by colored persons. … persons. …

Simply Put

If any block is occupied by a majority of persons If any block is occupied by a majority of persons of color, and white person cannot occupy a of color, and white person cannot occupy a residence in that blockresidence in that block

If any block is occupied by a majority of white If any block is occupied by a majority of white persons, a persons of color cannot occupy a persons, a persons of color cannot occupy a residence in that blockresidence in that block

The Persons and Moves

The property in question was sold by a white man to The property in question was sold by a white man to an Afro-American named Buchananan Afro-American named Buchanan

Buchanan sought to have the contract enforced by Buchanan sought to have the contract enforced by the trial court because he could not take possession the trial court because he could not take possession of the houseof the house

The trial court ruled that the contract was impaired The trial court ruled that the contract was impaired and order the money returned to Buchananand order the money returned to Buchanan

Buchanan appeal to the Ky. Supreme Court in that Buchanan appeal to the Ky. Supreme Court in that the ordinance violated his civil rights and his equal the ordinance violated his civil rights and his equal protection rightsprotection rights

The Civil Rights

The Civil Rights Act of 1866The Civil Rights Act of 1866 'All citizens of the United States shall have the same right, in 'All citizens of the United States shall have the same right, in

every state and territory, as is enjoyed by white citizens every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real thereof to inherit, purchase, lease, sell, hold and convey real and personal propertyand personal property

The Civil Rights Act of 1870The Civil Rights Act of 1870 'All persons within the jurisdiction of the United States shall 'All persons within the jurisdiction of the United States shall

have the same right in every state and territory to make and have the same right in every state and territory to make and enforce contracts to sue, be parties, give evidence, and to the enforce contracts to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and penalties, taxes, licenses and exactions of every kind, and none other.none other.

Plessy v Ferguson

Louisville insists that Plessy v. Ferguson is controlling in principle in favor of the judgment of the court below. In that case this court held that a provision of a statute of Louisiana requiring railway companies carrying passengers to provide in their coaches equal but separate accommodations for the white and colored races did not run counter to the provisions of the Fourteenth Amendment. It is to be observed that in that case there was no attempt to deprive persons of color of transportation in the coaches of the public carrier, and the express requirements were for equal though separate accommodations for the white and colored races. In Plessy v. Ferguson, classification of accommodations was permitted upon the basis of equality for both races.

Louisville’s Other Argument

This ordinance gives equal treatment to both racesThis ordinance gives equal treatment to both races Although whites can exclude blacks from a Although whites can exclude blacks from a

neighborhood – blacks may likewise exclude whites neighborhood – blacks may likewise exclude whites from their neighborhoodsfrom their neighborhoods

The Court notes that this is rather like saying that The Court notes that this is rather like saying that since white can exclude backs from their since white can exclude backs from their neighborhood, blacks can exclude whites from their neighborhood, blacks can exclude whites from their slumsslums

The Louisville Ordinance

The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character it was void as being opposed to the due process clause of the Constitution

That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.

Conclusion

The case presented does not deal with an attempt to The case presented does not deal with an attempt to prohibit the amalgamation of the races. The right which the prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a white man to ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a color and of a colored person to make such disposition to a white person.white person.

We think this attempt to prevent the alienation of the We think this attempt to prevent the alienation of the property in question to a person of color was not a property in question to a person of color was not a legitimate exercise of the police power of the state, and is legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of interference with property rights except by due process of law.law.

The Private Side – Shelly v Kraemer, 1948 A restrictive covenant, signed by 30 of 39 property A restrictive covenant, signed by 30 of 39 property

owners in St. Louis, contained the following clauses:owners in St. Louis, contained the following clauses: This property shall not be used or occupied by any This property shall not be used or occupied by any

person or persons except those of the Caucasian race. person or persons except those of the Caucasian race. It is further agreed that this restriction shall not be It is further agreed that this restriction shall not be

effective unless at least eighty percent of the property effective unless at least eighty percent of the property fronting on both sides of the street in the block where fronting on both sides of the street in the block where our land is located is subjected to this or a similar our land is located is subjected to this or a similar restrictionrestriction

This agreement was made in 1911 and is to run for 50 This agreement was made in 1911 and is to run for 50 yearsyears

The Facts

In 1944 the Shelly’s purchased a lot from a Mr. In 1944 the Shelly’s purchased a lot from a Mr. Fitzgerald subject to the covenantFitzgerald subject to the covenant

The Shelly’s are Afro-AmericanThe Shelly’s are Afro-American The co-covenantors brought suit in district courtThe co-covenantors brought suit in district court The trial court found the lots owners and order the The trial court found the lots owners and order the

Shellys to vacate the property within 90 days Shellys to vacate the property within 90 days The Shellys were enjoined not to use the property The Shellys were enjoined not to use the property

again in the futureagain in the future The Missouri Supreme Court reversed this decision The Missouri Supreme Court reversed this decision

and the landowners brought an appealand the landowners brought an appeal

The U.S. Supreme Court

Use of the properties for residential occupancy, as such, is Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, not forbidden. The restrictions of these agreements, rather, are directed toward a designated class of persons and seek are directed toward a designated class of persons and seek to determine who may and who may not own or make use to determine who may and who may not own or make use of the properties for residential purposes. The excluded of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; "simply class is defined wholly in terms of race or color; "simply that, and nothing morethat, and nothing more

It cannot be doubted that among the civil rights intended to It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of propertyown and dispose of property

The Court’s Reasoning

These restrictions do not involve action by state These restrictions do not involve action by state legislatures or city councilslegislatures or city councils

They are determined by restrictions imposed by They are determined by restrictions imposed by private individualsprivate individuals

Participation of the State consists in the enforcement Participation of the State consists in the enforcement of these restrictionsof these restrictions

The 14The 14thth Amendment erects no barriers against Amendment erects no barriers against merely private conduct, however discriminatory or merely private conduct, however discriminatory or wrongfulwrongful

Arguments By the State

The State urges that equal protection is granted The State urges that equal protection is granted because the covenant would be enforced against because the covenant would be enforced against white and black alikewhite and black alike

The State also asserts that to deny whites access to The State also asserts that to deny whites access to the courts to enforce their contracts is in itself a the courts to enforce their contracts is in itself a denial of equal protectiondenial of equal protection

Conclusion

These restrictions, standing alone, do not violate the These restrictions, standing alone, do not violate the 1414thth Amendment Amendment

As long as the purpose is effectuated by voluntary As long as the purpose is effectuated by voluntary adherence to the terms, and no State action involved, adherence to the terms, and no State action involved, there can be no violationthere can be no violation

However, in this case the Missouri Courts moved to However, in this case the Missouri Courts moved to enforce the restrictions by penalties and sanctionsenforce the restrictions by penalties and sanctions

Therefore, there has been State action in the full and Therefore, there has been State action in the full and complete sense of the wordcomplete sense of the word

The action of the State courts is void and the property The action of the State courts is void and the property is returned to the Shellys’is returned to the Shellys’

Dailey v City of Lawton, OK 1970

In 1970 the City of Lawton is still highly racially In 1970 the City of Lawton is still highly racially segregated. The Catholic School Tract is located in segregated. The Catholic School Tract is located in the heart of the white section of the communitythe heart of the white section of the community

Prior to 1962 Block 26 was open space owned by the Prior to 1962 Block 26 was open space owned by the City of LawtonCity of Lawton

In 1962 the tract was sold to the Catholic Bishop of In 1962 the tract was sold to the Catholic Bishop of Oklahoma – which was used for school purposesOklahoma – which was used for school purposes

In 1966 the Bishop conveyed the land to a non-profit In 1966 the Bishop conveyed the land to a non-profit corporation – Columbia Square, Inccorporation – Columbia Square, Inc

At the time of the transfer the tract was zoned FP to At the time of the transfer the tract was zoned FP to permit schools, churches, and public usespermit schools, churches, and public uses

Dailey v City of Lawton, 1970

Columbia Square, Inc. planned a three – rise Columbia Square, Inc. planned a three – rise apartment building on 7.6 acres on what is known as apartment building on 7.6 acres on what is known as Block 26Block 26

The tract is surrounded by R-4 zoning districts – the The tract is surrounded by R-4 zoning districts – the highest density residential districts permitted in highest density residential districts permitted in LawtonLawton

Calculations indicate the the final density on the Calculations indicate the the final density on the Columbia Square tract would equal approximately Columbia Square tract would equal approximately 60% of the surrounding density60% of the surrounding density

No report by the City indicated excess density of No report by the City indicated excess density of traffic congestiontraffic congestion

Columbia Square Site

Catholic School Tract

James Addition

3 rise apartments

Livingston Apts. Complex

Various

Apartments

Zoned R-4

Actions

Columbia Square applied for rezoning from FP to R-4 Columbia Square applied for rezoning from FP to R-4 and is denied twice and receives threatening phone and is denied twice and receives threatening phone callscalls

A petition was circulated by the surrounding residents A petition was circulated by the surrounding residents and returned to the Planning Commission with 320 and returned to the Planning Commission with 320 signaturessignatures

All the signers of the petition were whiteAll the signers of the petition were white The petition alleged that:The petition alleged that:

Over density and crowdingOver density and crowding Traffic congestionTraffic congestion Too many units on the tractToo many units on the tract

City’s Actions

The one dissenting planning commissioner states The one dissenting planning commissioner states that the reason for denial was racial biasthat the reason for denial was racial bias

The City Council upholds the Planning Commission The City Council upholds the Planning Commission and makes the following findings:and makes the following findings: Too much densityToo much density Over crowding of local schoolsOver crowding of local schools Over burdening of local fire fighting capabilityOver burdening of local fire fighting capability No recreation facilitiesNo recreation facilities

No City Official testified in support of the findings, and No City Official testified in support of the findings, and no data were gathered to justify the allegationsno data were gathered to justify the allegations

City’ Claims

The City claims that the neighborhood has the right to The City claims that the neighborhood has the right to a continuation of Block 26 conveyed to Lawton by the a continuation of Block 26 conveyed to Lawton by the U.S. Government for school purposesU.S. Government for school purposes

The City states that there was no racial bias involved The City states that there was no racial bias involved in the final decision – it was based solely on the in the final decision – it was based solely on the desire to prevent over crowding of facilitiesdesire to prevent over crowding of facilities

Since was bias was never discussed – it cannot be Since was bias was never discussed – it cannot be used as an argument for over turning the zoning used as an argument for over turning the zoning decisiondecision

Courts’ View

The U.S. District Court holds that the actions of the City The U.S. District Court holds that the actions of the City with respect to the rezoning decision were arbitrary, with respect to the rezoning decision were arbitrary, capricious and racially motivatedcapricious and racially motivated

The Court holds that the decision was "a direct result of the The Court holds that the decision was "a direct result of the bias and prejudice on the part of the owners of other bias and prejudice on the part of the owners of other property in North Addition, which feeling carried over" to property in North Addition, which feeling carried over" to the members of those bodies; that the motivation for the the members of those bodies; that the motivation for the denial of the zoning change "was to keep a large denial of the zoning change "was to keep a large concentration of Negroes and other minority groups from concentration of Negroes and other minority groups from living in North Addition and the fear of the property owners living in North Addition and the fear of the property owners that such project as proposed by the plaintiff would bring that such project as proposed by the plaintiff would bring about a depreciation in property values in the district."about a depreciation in property values in the district."

The Appeal

Lawton appeals the decision to the U.S. Court of Lawton appeals the decision to the U.S. Court of AppealsAppeals

The main argument of the City remains that since The main argument of the City remains that since “racial bias” was never openly shown or discussed – “racial bias” was never openly shown or discussed – it cannot simply be assumedit cannot simply be assumed

Besides, argues the City, the majority of residents in Besides, argues the City, the majority of residents in Lawton that would qualify for this housing are WHITELawton that would qualify for this housing are WHITE

Decision

The Court says: “If proof of a civil right violation The Court says: “If proof of a civil right violation depends on an open statement by an official of an depends on an open statement by an official of an intent to discriminate, the Fourteenth Amendment intent to discriminate, the Fourteenth Amendment offers little solace to those seeking its protection. In offers little solace to those seeking its protection. In our opinion it is enough for the complaining parties to our opinion it is enough for the complaining parties to show that the local officials are effectuating the show that the local officials are effectuating the discriminatory designs of private individualsdiscriminatory designs of private individuals

The racial prejudice alleged and established by the The racial prejudice alleged and established by the plaintiffs must be met by something more than bald, plaintiffs must be met by something more than bald, conclusory assertions that the action was taken for conclusory assertions that the action was taken for other than discriminatory reasonsother than discriminatory reasons..

Stormfront Website

United States v City of Black Jack, 1975

The Background

Black Jack was an unincorporated area governed by Black Jack was an unincorporated area governed by St. Louis County. In 1970 it had a population of St. Louis County. In 1970 it had a population of 3,500. In 2000, Black Jack has 6,134 residents3,500. In 2000, Black Jack has 6,134 residents

In 1970 the County adopted a master plan which In 1970 the County adopted a master plan which designated a site in Black Jack for multi-family use to designated a site in Black Jack for multi-family use to further their “scattered site” affordable housing policyfurther their “scattered site” affordable housing policy

An option to purchase the designated tract was taken An option to purchase the designated tract was taken by the Inter-Religious Center for Urban Affairs by the Inter-Religious Center for Urban Affairs located in St. Louislocated in St. Louis

The ICUA announced its intent to apply for a section The ICUA announced its intent to apply for a section 236 housing project grant to build low and moderate 236 housing project grant to build low and moderate income housingincome housing

The Residents

After the announcement by the ICUA the residents of After the announcement by the ICUA the residents of Black Jack organized and were successful in Black Jack organized and were successful in incorporating the area as a cityincorporating the area as a city

The new City Council adopted a hastily prepared The new City Council adopted a hastily prepared master plan and zoning ordinancemaster plan and zoning ordinance

The zoning prohibited the construction of multi-family The zoning prohibited the construction of multi-family housing on the site chosen by the St. Louis County housing on the site chosen by the St. Louis County Master PlanMaster Plan

Some Background Facts

Black Jack is populated solely by WhitesBlack Jack is populated solely by Whites The percentage of minorities in the City of St. Louis is The percentage of minorities in the City of St. Louis is

40.9 percent in 197040.9 percent in 1970 The average cost of a home in Black Jack in 1970 The average cost of a home in Black Jack in 1970

was $30,000was $30,000 The proposed project in Black Jack was designed to The proposed project in Black Jack was designed to

accommodate persons earning between $5,000 and accommodate persons earning between $5,000 and $10,000 per year$10,000 per year

The Situation

The ICUA applies for rezoning on the tract to R-3 The ICUA applies for rezoning on the tract to R-3 multi-family housingmulti-family housing

Black Jack claims over density and out of character Black Jack claims over density and out of character with its low density housing patternwith its low density housing pattern

Black Jack also claims that it does not have an Black Jack also claims that it does not have an affirmative obligation to provide affordable housing affirmative obligation to provide affordable housing for St. Louis residentsfor St. Louis residents

The City claims its actions are not racially biasedThe City claims its actions are not racially biased

District Court

The ICUA raised the civil rights question to the U.S. The ICUA raised the civil rights question to the U.S. District CourtDistrict Court

The Court rules for Black Jack saying:The Court rules for Black Jack saying: There was no discriminatory effect because the class of There was no discriminatory effect because the class of

persons whose housing needs would be satisfied by the persons whose housing needs would be satisfied by the project included 29 percent of the white population as project included 29 percent of the white population as well as 32 percent of the minority populationwell as 32 percent of the minority population

Therefore, the ordinance would not have an appreciably Therefore, the ordinance would not have an appreciably greater impact on minorities than on whitesgreater impact on minorities than on whites

The Appeals Court Reverses

No! Not right! To establish a facial case of racial No! Not right! To establish a facial case of racial discrimination they need prove no more than the discrimination they need prove no more than the conduct of the defendant (based on pattern and conduct of the defendant (based on pattern and practice) predictably results in racial discrimination – practice) predictably results in racial discrimination – in other words – a discriminatory effectin other words – a discriminatory effect

The ICUA need not show that the action resulting in The ICUA need not show that the action resulting in racial discrimination in housing was racially racial discrimination in housing was racially motivated. Effect, not motivation, is the touchstone of motivated. Effect, not motivation, is the touchstone of Civil RightsCivil Rights

Decision

The Court said that it saw a deliberate pattern and The Court said that it saw a deliberate pattern and practice on the part of suburban St. Louis practice on the part of suburban St. Louis communities to systematically promote racial communities to systematically promote racial discrimination in the metropolitan areadiscrimination in the metropolitan area

Black Jack’s patterns and actions, by there very Black Jack’s patterns and actions, by there very nature, indicate an intent to discriminate against nature, indicate an intent to discriminate against residents of low and moderate income housingresidents of low and moderate income housing

And Then

Black Jack was ordered to rezone the ICUA siteBlack Jack was ordered to rezone the ICUA site Black Jack delayed the rezoning for over a year and Black Jack delayed the rezoning for over a year and

the ICUA lost their place in the cue for HUD 236 the ICUA lost their place in the cue for HUD 236 fundingfunding

The ICUA returned to the Court asking for damagesThe ICUA returned to the Court asking for damages They were awarded $450,000 in punitive damages They were awarded $450,000 in punitive damages

and Black Jack was ordered to to prepare a housing and Black Jack was ordered to to prepare a housing plan that would address the needs of low and plan that would address the needs of low and moderate income housingmoderate income housing

The Continuing Saga

The Court places Black Jack under a federal The Court places Black Jack under a federal injunction preventing them from taking any rezoning injunction preventing them from taking any rezoning action on the ICUA site other than for multi-family action on the ICUA site other than for multi-family housinghousing

Black Jack takes the necessary steps to un-Black Jack takes the necessary steps to un-incorporate their town to avoid paymentincorporate their town to avoid payment

The ICUA returns to courtThe ICUA returns to court The District Court orders the former town officials to The District Court orders the former town officials to

re-incorporate the community and opens the door to re-incorporate the community and opens the door to any St. Louis resident who would have qualified to for any St. Louis resident who would have qualified to for housing to sue Black Jackhousing to sue Black Jack

The Finale

Black Jack is once again incorporated and ordered to Black Jack is once again incorporated and ordered to levy a community tax or a bond in an amount equal to levy a community tax or a bond in an amount equal to twice its previous annual budget to pay the ICUA.twice its previous annual budget to pay the ICUA.

Black Jack must now fund its own low/moderate Black Jack must now fund its own low/moderate income housing projectincome housing project

The irony is that the total cost to Black Jack is now The irony is that the total cost to Black Jack is now $500,000$500,000

If they would have allowed the housing project it If they would have allowed the housing project it would have received $36,000 a year in property taxeswould have received $36,000 a year in property taxes