Forty-five Years Later, Can the FHA Help Overcome Zoning Barriers to Integration?

Last month, The Atlantic Cities ran an article covering the latest attempt by the federal government to implement the long-delayed requirement of the 45-year-old Fair Housing Act to "affirmatively further" fair housing. Although the article notes that overt discrimination has been in decline, the idea of proactively enabling fair housing, as the Act requires, has been stalled for over four decades:

"In part at least, the obstacles to integration are harder to detect than the culprits behind discrimination. They take the form not of malicious real estate agents or red-lining banks. Rather, integration is stalled or blocked today by exclusionary zoning that keeps lower-income people or new affordable housing out of many communities. This means that furthering the goals of the Fair Housing Act in 2013 is a complex problem of planning and land use that goes far beyond rebuking anyone who won't offer a black family a home."

In remarks last week on the 50th anniversary of the March on Washington, President Obama alluded to similar notions in the context of civil rights:

"In some ways, though, the securing of civil rights, voting rights, the eradication of legalized discrimination – the very significance of these victories may have obscured a second goal of the march, for the men and women who gathered 50 years ago were not there in search of some abstract idea. They were there seeking jobs as well as justice – not just the absence of oppression but the presence of economic opportunity. For what does it profit a man, Dr. King would ask, to sit at an integrated lunch counter if he can't afford the meal?"

To that it might be added, what use is it to have legally integrated communities if one can't afford to live in them? The connection between exclusionary zoning and integration, not only of races but of classes, generations and household types, has been extensively studied, from 1992's American Apartheid to 2003's Unfair Housing to 2012's Snob Zones. A recent article chronicles the inexplicable failures of successive administrations, both Republican and Democrat, to affirmatively promote integration. That so little has been achieved in rolling back exclusionary zoning shouldn't come as much surprise, however, given the focus of the Act itself and the precedents set by state and federal courts.

Notably, the Fair Housing Act did not, and still does not, contemplate housing cost as an element of housing fairness.* The word "affordability" or its synonyms do not appear once in the FHA's text. Implicit in the FHA's structure is that the primary obstacle to integration is directly discriminatory laws and practices, rather than high home prices or rents contributed to by land use restrictions. Consistent with this interpretation, courts have declined to hold that generally applicable regulations with no obvious purpose other than raising the cost of housing violate the FHA, absent clear and detailed evidence of racially discriminatory impact (see e.g. NAACP v. City of Kyle, W.D. Texas March 20, 2009**), and in those instances where they have struck down such broad regulations have relied on due process grounds, rather than on the FHA (see e.g. Builders Service Corporation v. Planning & Zoning Commission (N.J. 1979), and Home Builders League of So. Jersey, Inc. v. Twp. of Berlin (CT 1988).

Victories against zoning laws using an FHA rationale have been modest, often involving the rezoning of a single parcel in a sea of large-lot single-family homes (see Huntington Branch, NAACP v. Town of Huntington (2d Cir. 1988)) in a manner that hardly redresses ingrained segregation, and underlines the rather discouraging point that it is only disparate impact against certain protected classes that is the concern of the FHA, rather than disparate impact against low-income persons in general. This view of fairness can be traced back nearly a century, long before the FHA, when the Supreme Court followed its ruling striking down racial zoning in 1917's Buchanan v. Warley with  approval of snob zoning in 1926's Euclid v. Ambler.

The few judicial and legislative attempts at remedying the effects of exclusionary zoning have similarly addressed symptoms rather than challenging the underlying malady. Among these are Connecticut's Section 8-30G, which has achieved the construction of a modest number of units in certain towns, Massachusetts' Chapter 40b, and New Jersey's Mount Laurel doctrine. New Hampshire's Britton decision, hailed as that state's own Mount Laurel doctrine, has, according to Snob Zones, been an ineffective weapon against exclusionary zoning codes in that state. Worse still, the use of further government intervention to override restrictions placed by town governments has inflamed local resentment and corrupted the very term "affordable housing," such that it now generally refers to a specialized product of legislation rather than market rate housing that happens to be low cost. The implication is that low cost housing itself is a government product, and perhaps can only be a government product, a notion which contributes to a neglect of market-based approaches to increasing housing affordability. The latest achievement for the court campaigners comes out of Westchester County, New York:

"A 2009 settlement between the county and the Anti-Discrimination Center of Metro New York … mandated that Westchester build and acquire 750 units of affordable housing in its wealthiest, and least diverse, communities over the course of seven years. The case came about as a result of the anti-discrimination center’s claims that the county had zoning that was exclusionary based on race."

Such inadequate remedies involving the construction of insufficient quantities of housing without challenging the exclusionary codes themselves seem aimed more at "sticking it" to wealthy communities rather than actually providing reasonably priced homes for a majority of those in the county, regardless of their race. And although there is at least a dawning awareness that segregation and affordability are linked, the focus on the former – the symptom – detracts from real achievement on the latter.  

The evidence is fairly abundant, however, that low housing costs are a major weapon against segregation. Researchers with the Urban Institute, using a measure of residential segregation known as the Dissimilarity Index, have shown that low-cost Sunbelt cities, including non-zoned Houston, have been and continue to be among the most integrated metros. Hyper-expensive New York, on the other hand, is one of the few places to experience increasing segregation over the past 40 years, to the point that it now ranks as the second most segregated large American metro area:

Source: Urban Institute

(The data actually underestimate these patterns, since as the researchers note, "larger metros tend to be more segregated than smaller metros," which makes the numbers for rapidly-growing Houston, Dallas and Atlanta all the more remarkable.)

The explicitly racial zoning laws of the 1910s were arguably passed as a result of the failure of individual acts of discrimination to halt integration in the context of an otherwise non-zoned and affordable city. Although some, or even many, of the residents may harbor discriminatory attitudes, when deprived of the power of law to carry out their ends, a mixing of not only races, but of ages, household types and incomes will occur to greater or lesser extents. From that perspective, the affirmative provisions of the FHA look toothless. Where housing costs are low, the provisions may not be needed. Where costs are high, they are ineffective, since the FHA does not encompass affordability and is therefore legally powerless against well-crafted exclusionary zoning no matter what new regulations are adopted by HUD. If the administration truly wishes to make progress against this sort of zoning practice, it is possible that a new approach, and possibly new legislation, may be needed, one which takes a broader view of discrimination both with respect to its means and its objects.

As a parting shot, I'll offer the forgotten words of Courtney Westenhaver, the district court judge in the Euclid case, who in striking down the city of Euclid's zoning ordinance – one of the the last or perhaps the last time a general zoning law would ever be struck down in its entirety by an American court – was under no illusions as to the purpose of the law: 

"The plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life."

*Of course, even if the FHA did not address low cost housing, other government programs did. However, for a time even after the FHA's adoption, federal affordable housing policy was directly at odds with integrationist public policy, tending to warehouse the poor in physically segregated public housing facilities, and typically locating these facilities in low-income neighborhoods. Their construction often involved the obliteration of large swathes of the most affordable private housing options, thereby increasing demand, and thus prices, for the remaining private housing stock. The Section 8 program, which at least in theory (though not, as it turned out, in practice) had integration potential, did not arrive until 1974.

**I'm not able to provide a link to the case, but in City of Kyle (a rapidly growing city of 28,000 some 20 miles south of Austin, TX) the city amended its zoning regulations to increase the minimum square footage for single family homes by 20 percent, and required that all such homes be accompanied by a garage of at least 480 square feet. The revised regulations also increased the minimum lot size and required masonry exteriors. I'm not sure how a law requiring a two-car garage (a mandated studio apartment for cars!) could survive even rational basis review, but a due process argument was not presented to the district court in the case.