Exclusionary Practices

1
Exclusionary Practices

• Racial
• Non - Racial

2
Overview

• Land regulatory practices are presumed to be
  rationally related to a legitimate community need
  based on the health, safety, and public welfare
• However, the opportunity to abuse this power is
  great and ever present, especially when those
  segments of society are disadvantaged
• Two types of cases are presented in this section
• Regulatory discrimination that is not based on an
  identifiable protected classification
• Racial, ethic, and gender discrimination based on
  the attributes of a protected class of persons

3
Some Discriminatory Practices

• Minimum lot and house size
• Failure to provide for adequate opportunity for
  least cost housing sites
• Bias against certain forms of land use i.e.,
  manufactured homes
• Administrative delay
• Covert and overt racial discrimination
• Failure to offer and provide adequate municipal
  services

4
National Land Investment Co. v Easttown Township

• In 1958 National Land Investment offered to buy
  an 85 acres tract of land subject to a successful
  subdivision plan
• When National Land took the option the Township
  zoning standard was 1 acre minimum per residence
  and the land was zoned for single family
  residences
• National Land submitted a subdivision plan for
  Sweetbriar on one acre lots in 1961
• The Township did not take any action because it
  was in the process of amending the minimum lot
  requirement to 4 acres

5
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
6
National Land Appeals

• National Land applied for a variance but this was
  denied by the Board of Zoning Appeals
• The trial court found for the Township noting
  that a four acre minimum lot size restriction was
  reasonable for a rapidly growing rural area
• The Pennsylvania Supreme Court accepted the case
  for review and began by characterizing the area

7
Description

• Easttown Township has an area of 8.5 square miles
  about the same land area as the greater
  Manhattan area
• In 1965 the Township was located about 20 miles
  from Philadelphia
• Growth is also approaching from the commercial
  industrial complex at King of Prussia and Valley
  Forge
• In 1965 about 60 of the population resides in
  about 20 of the Townships Villages area the
  other 40 are scattered in the rural portion

8
King of Prussia To The North
9
Township Location, Founded 1704
10
Growth Factors

• Population of Easttown
• 1950 2,307
• 1960 6,907
• 1970 10,050
• 2000 21,500

11
The Court Begins The Lengthy Analysis

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

12
Townships Argument

• The Township says that 4 acre lots are necessary
  because most of the township is not sewered but
  on septic systems
• Township roads are old and inadequate to carry
  the increased traffic burden
• They also wish to preserve Easttowns Character
• Preserve open space and create Greenbelts
• Preserve historic sites and buildings
• Protect the setting for the old homes dating back
  to the 1700s
• Protect the general rural character

13
Courts Analysis Sewer System

• The Township also allows residences on 1, 2 and 3
  acre lots in certain areas. If 4 acres is really
  necessary why not make 4 acre minimums through
  the Township?
• And, the Township Sanitation Officer is allowed
  to increase the size of any lot if a percolation
  test proves to be unsatisfactory
• We think that you are blowing smoke in our ear

14
Courts Analysis - Roads

• Yes, we realize that may roads are old, narrow,
  and winding. But when National Land paid an
  independent consultant to perform a traffic
  analysis the result was that the present road
  system could serve another 7,000 residents
  without becoming congested and dangerous
• The road where Sweetbriar is located is bear
  Highway 30, very much under capacity, and can
  easily carry more traffic

15
Courts Analysis Open Space

• Preserve Open Space?
• Excuse me! We thought that the best way to
  preserve open space was to use cluster and
  density development rather than increase the lot
  size
• Why dont you use PUDs to collect common open
  space
• If you are going to implement Greenbelts why
  dont you have each developer contribute linear
  open space
• Why just say four acre lots

16
Courts Analysis Historic Sites and Old Homes

• We dont understand this one!!!!
• The map shows that all of the historic sites are
  located in the small villages throughout the
  Township where the zoning remains ½ acre minimums
• Professionals tell us that the best way to
  preserve historic sites is through design
  sensitivity and compatibility
• There is no doubt that many of the residents of
  this area are highly desirous of keeping it the
  way it is, preferring, quite naturally, to look
  out upon land in its natural state rather than on
  other homes. These desires, however, do not rise
  to the level of public welfare. This is purely a
  matter of private desire which zoning regulation
  may not be employed to effectuate.

17
Courts Analysis Rural Character

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

18
The Knockout Punch

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

19
Its Invalid

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

20
The Warning To Other Communities

• The purpose of Planning is to provide for the
  needs of the future it is not intended to deny
  the future
• Zoning is a tool in the hands of governmental
  bodies which enables them to more effectively
  meet the demands of evolving and growing
  communities. It must not and can not be used by
  those officials as an instrument by which they
  may shirk their responsibilities.

21
Easttown Land Use Map
22
Burlington County NAACP v Mt Laurel, New Jersey -
1973
23
Some Background

• Mt. Laurel settled in 1688
• The actual Mt. Laurel Village incorporated in
  1847
• Mt. Laurel Township/Village has grown steadily
  from 1960 to 2000 from 2,345 to 38,000

24
The Case Setting

• Mt. Laurel is a 22 sq. mile (14,000 acres)
  Township located near Cherry Hill NJ some 10
  miles from Camden
• The Zoning Scheme
• 29.2 of the land is zoned light industrial
  (4,121 acres) but no more than 100 acres are
  actually used for industry
• 1.2 is zoned for retail business ( 129 acres)
• The balance of the land is zoned for conventional
  housing (10,000 acres)

25
The Residential Zoning Scheme

• The ordinance provides for R-1 R-1D R-2 and R-3
• Each zone permits only single family housing
• Attached townhouses, apartments, and manufactured
  homes are not allowed anywhere in the township
• Over 7,000 acres are zoned to permit
• A combination of lot size and minimum dwelling
  size makes it evident that only a upper middle
  income family could afford to move to the
  township
• The Township did pass a limited PUD District and
  three developers took advantage by applying for a
  mixed housing project

26
The PUD Application

• Mt Laurel gives tentative approval
• Only a few of the townhouses can have more than
  one bedroom
• No school aged children can be permitted to
  occupy any one bedroom unit
• No more than 2 children can occupy a two bedrooms
  unit
• The developer, if more than an average of .3
  students per unit occur, must pay the cost of
  tuition to attend township schools
• All units must be furnished with required
  amenities, such as central air-conditioning and
  must pay large sums for township fire, police,
  library and schools

27
And More

• A good share of the units had to be set aside for
  senior citizens where children under 18 could not
  live
• Needless to say, the developers walked away from
  the projects without the slightest hesitation but
  did not sue for fear that they would never be
  allowed to do business again in Mt Laurel
• The Burlington County NAACP filed a class action
  suit on behalf of future residents (a novel idea)
  that were barred from moving there from the
  Camden area

28
The Court Makes Some Findings

• There cannot be the slightest doubt that one of
  the main reasons for this zoning scheme is to
  keep local property taxes low and shift the
  burdens to other communities
• This pattern appears repeatedly in developing
  municipalities
• This pattern does not allow for low and moderate
  income families to move to the community they
  are effectively barred

29
The Central Questions

• May a developing community, such as Mt. Laurel,
  make it physically and economically impossible to
  provide low and moderate income housing for
  various persons who need and want it?
• Can communities limit the type of housing the
  want so that they is no choice in different types
  of living accommodations?
• Can Mt. Laurel avoid its fair share of the
  regional burden in supplying the benefits of
  community to future populations?

30
The Ruling

• We conclude that every developing community must,
  at least by its land use regulations,
  presumptively make possible an appropriate
  variety and choice of housing
• This court now adopts a non-local approach to the
  meaning of general welfare and no longer allows a
  community to hide behind parochial local
  interests
• Communities must permit multi-family housing
  without bedroom limitations as well as small
  dwellings on small lots
• Communities, such as Mt. Laurel, must remove land
  from industrial zones when this practice is
  undertaken to prevent needed housing
  opportunities
• Mt. Laurel must bear its fair share of the
  regional burden and this region will vary from
  place to place

31
Conclusion

• Mt. Laurel is granted 90 days to remedy and
  correct the deficiencies in its zoning ordinance
• A master must approve the Townships regional fair
  share housing plan

32
Mt Laurel II, 1983 In The Words of the Court

• The is a return, 8 years later, of the Burlington
  County NAACP v Mt. Laurel Township case
• After all this time, and invalidating its zoning
  ordinance, the Township is still afflicted with a
  blatantly exclusionary zoning ordinance
• The new ordinance, at its core, is a testament to
  Mount Laurels determination to exclude the low
  and moderate income
• Mt. Laurel is not alone in this widespread
  non-compliance with the constitutional mandate of
  the original case
• To the best of our ability, we will not allow
  this to continue

33
The Challenge

• Mt. Laurel II is actually a consolidation of 5
  different cases at once all arise from the Mt.
  Laurel doctrine
• One of the communities involved is Mt Laurel
  itself which never really implemented a regional
  fair share plan
• The ruling is a lengthy set of guidelines set
  down for all New Jersey municipalities
• The court starts off by saying That some changes
  will be made NOW

34
Removing Excessive Restrictions

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

35
Using Affirmative Measures

• There are two basic types of affirmative measures
  that a municipality can use to make the
  opportunity for low and moderate income housing
  realistic
• Encouraging or requiring the use of available
  state and federal housing subsidies
• Providing incentives for or requiring developers
  to set aside a portion of their developments for
  lower income housing including 5 mandatory set
  asides
• Trial courts are authorized to retain control of
  cases such as these and to supervise the
  communitys resolve to pursue affirmative
  measures

36
Zoning For All Housing

• Although the New Jersey Courts have upheld bans
  on mobile homes all these decisions are now
  reversed
• Changed circumstances now exist and mobile home
  must now be allowed all absolute bans will be
  immediately overruled
• The Court recognized the aesthetic sensibilities
  of communities but also reversed all decisions
  which upheld a ban on apartments, town homes,
  duplexes and triplexes

37
Least Cost Housing

• There may be municipalities where special
  conditions exist that make it impossible for fair
  share conditions to exist even after all
  excessive restrictions and exactions have been
  removed
• Then, and only then, may these communities adopt
  a least cost housing approach to satisfy their
  regional fair share obligation

38
Least Cost Housing
39
In Re Girsh, 1969

• In Re Girsh is neither a famous or unique case.
  It is however very informative because it
  illustrates the tremendous resistance offer by
  many suburban communities to judicial orders
• In other words, even though the applicant
  prevails, the community drags its feet, ignores
  the ruling, and proceeds along its own path
• It also shows that when a ruling is returned to
  the trial court this lower court often resists
  interpreting the appeals ruling in the most
  favorable light

40
Some Background

• The date is 1964
• Mister Girsh senior made a contract to purchase
  17 ½ acres of land for 120,000. The contract
  stated that he would agree to applied to the
  township board to change the R-1 zoning so that a
  high rise (6 story) apartment building could be
  constructed
• The contract also stated that if this zoning
  change was successful he would pay the land
  owner a total of 150,000

41
The Place Nether Providence Township
42
Place Description

• Nether Providence Township has a population of
  13,000 persons (1969) and a land area of 4.64
  square miles
• About 75 of the township is zoned for single
  family residential (R-1 or R-2) on not less than
  20,000 and 14,000 sq. ft. respectively
• Multi-family is not expressly prohibited but it
  is not provided for in the ordinance there are 2
  multi-family housing units in the township
  permitted by variance

43
Girshs Actions

• Girshs sought approval for 2, nine story luxury
  apartment buildings each contained 280 units
  he offered to reduce each building to 216 units
• The Planning Commission refused to amend the
  ordinance
• Girsh sues and the township wants the case
  dismissed because Girsh did not apply for a
  variance
• Trial court dismisses the suit because it was not
  ripe
• The date is now 1966

44
Supreme Court Analysis

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

45
Cause and Effect

• The township argues that apartment uses would
  cause a significant population increase with a
  resulting strain on available municipal services
  and roads, and would clash with the existing
  residential neighborhood. But we explicitly
  rejected both these claims in National Land
• "Zoning is a tool in the hands of governmental
  bodies which enables them to more effectively
  meet the demands of evolving and growing
  communities. It must not and can not be used by
  those officials as an instrument by which they
  may shirk their responsibilities. Zoning is a
  means by which a governmental body can plan for
  the future -- it may not be used as a means to
  deny the future. . . . Zoning provisions may not
  be used . . . to avoid the increased
  responsibilities and economic burdens which time
  and natural growth invariably bring."

46
Conclusion

• The Court concludes by saying
• In addition, at least hypothetically, the
  Township could show that apartments are not
  appropriate on the site where appellant wishes to
  build, but that question is not before us as long
  as the zoning ordinance in question is fatally
  defective on its face. The Township could
  properly decide that apartments are more
  appropriate in one part of the Township than in
  another, but it cannot decide that apartments can
  fit in no part of the Township.
• The Decision is reversed and remanded to the
  trial court
• The date is now 1971

47
Its Not Over

• Its now 1972
• The trial court receives the remanded case
• Judge orders a new hearing for Girsh
• The Township says we now need to revise our
  zoning ordinance to provide for housing
• Judge says OK. You have a year
• Now its 1974
• The new ordinance is released along with a new
  zoning map. The Township rezones about 3 of the
  land for multi-family

48
Guess What?

• Girshs land is not zoned on the map for
  multi-family housing
• Girsh again applies for rezoning of his property
  to R-3
• In 1975 the Township Planning Board says no
• Girsh applies for a variance this time
• He is denied by the Board of Adjustment
• Girsh goes back to the trial judge and the Judge
  says what are you doing here?
• Girsh says I Though I Won!

49
The Judge Says What?

• The trial court took up the matter and decided
  that that the Township had acted properly by
  complying with the decision of the Supreme Court.
• Girsh get the shaft
• The time in now 1977
• Girsh files leave for appeal before the Supreme
  Court
• His brief simple says I thought I Won am I not
  entitled to build my apartments
• The Supreme Court is a bit upset and returns the
  case to the trial court with instructions to
  grant Girsh a new hearing

50
And it Goes On

• Its now 1979
• Girsh is granted a new hearing
• The trial judge once again says that the Township
  had every right to turn you down on the specific
  site you selected for housing as long as they
  provided for adequate mutli-family zones in the
  Township
• Girsh is very, very unhappy and upset

51
Girsh Dies
52
Last Trip

• Girshs son takes up the matter in 1982
• In 1983 the Supreme Court decides to hear the
  case again and makes a final ruling in 1938
• The court says that the intention was all along
  to grant Girsh a Builders Remedy.
• They then order to the trial court to immediately
  order the property rezoned and permits issued
• The Township never did this Girsh jr. lost the
  financing on the property and was never able to
  complete the project

53
Girshs Last Wish
54
Surrick v Upper Providence Twsp., 1977

• Upper Providence Township is a western suburb of
  Philadelphia, located about 12 miles from the
  center of the city. The 1970 census set the
  township's population at slightly over 9,200 the
  2000 population is about 12,000 the total
  acreage of the township is approximately 3,800
  acres. Approximately one-quarter of the township
  land is undeveloped. The township was first
  settled in 1700
• The zoning ordinance in question has classified
  43 acres, or 1.14 of the total township acreage,
  as a B district in this B district apartments
  are permitted along with other essentially
  commercial uses, and the B district is already
  substantially developed.

55
Background

• Surrick sought to build apartments and townhouses
  on a 16.25 acre tract of land (four acres owned
  by appellant 12.25 acres under agreement of sale
  with zoning contingency). The tract is located in
  an area designated A-1 Residential under the
  township ordinance, which permits only single
  family dwellings on one-acre lots.
• Surrick applied to the Township to rezone the
  12.25 acre tract to B-Business, the only
  ordinance classification permitting multi-family
  housing, to develop the site for apartments
• The rezoning was denied
• Surrick revised his plans to include the four
  acres of ground owned by him. He sought building
  permits, which were denied by the Building
  Inspector
• He appealed to the Board requesting a variance
  the Board denied

56
Township Location
Philadelphia
57
Legal Challenge

• The trial court upholds the actions of the
  Township
• The Supreme Court reviews and makes the following
  findings
• There can be little doubt that Upper Providence
  Township is a logical area for development and
  population growth. This conclusion is supported
  by the fact that the township is located a mere
  twelve miles or so from Philadelphia and is
  situated at the intersection of two main traffic
  arteries, one of which, Route 1, is a direct link
  with the city.

58
Finding 2 and 3

• The record shows that the township is not a high
  density population area roughly one-quarter of
  the township land is undeveloped. Thus the
  township's present level of development does not
  preclude further development of multi-family
  dwellings.
• The zoning ordinance in question results in a
  partial exclusion of multi-family dwellings,
  providing, as it does, 1.14 of the township land
  for development of multi-family dwellings. It is
  also significant that multi-family dwellings are
  only one of more than a dozen other uses
  permitted on this fraction of land.

59
Conclusion of Facts

• The analysis leads inescapably to the conclusion
  that the facts of the instant case are legally
  indistinguishable from previous cases. Thus we
  hold that Upper Providence Township has not
  provided a "fair share" of its land for
  development of multi-family dwellings.
• The Townships assertion that the greatest demand
  for housing in the township is for single-family
  homes on one acre lots rather proves too much.
  One need not probe too deeply into the economic
  mechanics of supply and demand to realize that
  the zoned-in scarcity of land for multi-family
  dwellings could easily create this type of demand.

60
Conclusion

• Note The Penn. Courts have already adopted a
  fair share formula following Mt. Laurel. The
  court now has some 10 years of experience in
  facing discriminatory ordinance
• The final action of the Court is to invalidate
  the ordinance order a new study and plan
  prepared and grant Surrick a builders remedy
  (issue the permits now)

61
Upper Providence Township 2001
2000 Land Use Map 98 residential 1
commercial 1 industrial Average housing price
700,000
62
Britton v Town of Chester, 1991

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

63
Location
64
Class Action Suit

• There are two sets of plaintiff's in this case
• A group of low income persons represented by
  George Edwards, a woodcutter, who grew up in the
  town. He lives in Chester with his wife and three
  minor children in a one-bedroom, thirty-foot by
  eight-foot camper trailer with no running water.
  Their annual income is 14,040, which places
  them in the low-income category. Roger McFarland
  grew up and works in the town. He lives in Derry
  with his wife and three teenage children in a
  two-bedroom apartment which is too small to meet
  their needs. He and his wife both work, and their
  combined annual income is 24,000.
• The other plaintiff is Raymond Remillard, home
  builder, who has been trying to build moderate
  cost housing since 1979

65
The Zoning Ordinance

• The zoning ordinance in effect at the beginning
  of this 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 multi-family
  housing from all five zoning districts in the
  town
• The ordinance was amended in 1986 to permit
  multi-family housing as part of a Planned Unit
  Development
• George Remillard applied for the Planned Unit
  Development overlay but was denied he brought
  suit in district court

66
The Trial Court

• FINDINGS
• Under the ordinance, PUDs are allowed on tracts
  of not less than twenty acres in two designated
  "R-2" (medium-density residential) zoning
  districts.
• Due to existing home construction and
  environmental considerations, such as wet-lands
  and steep slopes, only slightly more than half of
  all the land in the two R-2 districts could
  reasonably be used for multi-family development.
  This constitutes only 1.73 of the land in the
  town

67
The PUD Ordinance

• THE PUD ORDINANCE IS DEFECTIVE
• The PUD requires approval by the Town Board and
  the Planning Commission in such a way that there
  are no objective standards
• The developer may be required to hire a
  hydrologist, engineer, architect and other
  professionals to assist the Planning Board
• The trial court found that the ordinance itself
  was discriminatory and did not address the fair
  share needs of its region
• The trial court invalidates the entire zoning
  ordinance and orders building permits for
  Remillard

68
The Town of Chester Appeals

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

69
"Equity will not suffer a wrong without a remedy."

• Chester denies that the trial court had the power
  to (in effect) rezone the tract my granting a
  builders remedy
• Since 1979, Remillard has attempted to obtain
  permission to build a moderate-sized multi-family
  housing development on his land in Chester. He is
  committed to setting aside a minimum of ten of
  the forty-eight units for low- and
  moderate-income tenants for twenty years.
• Hence, we hold that the "builder's remedy" is
  appropriate in this case, both to compensate the
  developer who has invested substantial time and
  resources in pursuing this litigation, and as the
  most likely means of insuring that low- and
  moderate-income housing is actually built.

70
Conclusion

• The zoning ordinance evolved as an innovative
  means to counter the problems of uncontrolled
  growth. It was never conceived to be a device to
  facilitate the use of governmental power to
  prevent access to a municipality by "outsiders of
  any disadvantaged social or economic group."
• The town of Chester has adopted a zoning
  ordinance which is blatantly exclusionary. This
  court will not condone the town's conduct.

71
Celebration in Chester NH
72
(No Transcript)
73
And, Mobile Homes
Clark v Winnebago County
74
Clark v Winnebago County, 1987

• Clark County has adopted a zoning ordinance that
  regulates the uses of land within the County.
• The ordinance establishes the zoning
  classification of "Mobile Home District" as a
  separate district and provides that, with limited
  exceptions, mobile homes may not be located
  outside a mobile home district.
• It additionally sets forth certain performance
  standards for mobile home parks located within
  such a district.

75
Description

• Clarks property is currently zoned agricultural.
  The property is surrounded by land zoned for low
  density residential
• Clark filed to rezone his property to two
  classifications
• R-1 Single Family residential
• MH Mobile Home Park District
• The County Commission grants the R-1 zoning and
  denies the mobile home zoning designation

76
The Clark Family
Deron and Deronette Clark
Mr. And Mrs. Clark We are not trailer trash
77
Clarks Contentions

• Clark contends that there is no rational basis
  for discriminating against mobile homes they
  are, after all, a form of single family housing
• Clark contends that this is a violation of his
  equal protection rights since there is no
  substantial difference between site built and
  mobile homes

Clarks Lawyer Denephew Brisious A person
should be able to live where they want
78
The Trial

• After a trial on the merits, the district court
  concluded that neither the ordinance nor the
  zoning decision was so irrational or unrelated to
  the general welfare as to implicate the
  fourteenth amendment. Clark appeals.
• The Supreme Court agrees with the district court
  that Clark failed to establish that the ordinance
  is clearly unrelated to a legitimate governmental
  interest. Mobile home parks are a sufficiently
  distinct use of land to justify their separate
  classification for zoning purposes.
• For instance, mobile home parks, with their
  smaller lot sizes, affect population density, and
  the County unquestionably has a right to control
  the orderly development of the community by
  regulating density.

79
The Clarks Lose
I just cant see it, said Mr. Clark, my mobile
home looks just the like houses of those scum
sucking Planning Commissioners
80
Stonewood v Bells and Barrackville, 1980 West
Virginia

• The Town of Barrackville adopted a zoning
  ordinance that prohibited mobile homes other than
  in an existing mobile home park
• The Town of Stonewood also adopted an ordinance
  restricting mobile homes to parks and prohibiting
  the formation of any additional mobile home parks
• Grandfather clauses allow existing mobile homes
  to stay in place

81
The Controversy

• In June of 1977, Russell and Dora Bell placed a
  mobile home on lots lying within the town limits
  of Stonewood. Two months later Stonewood, through
  its legal counsel, notified the Bells that the
  placement of their mobile home violated the
  aforementioned ordinance and requested that the
  mobile home be removed. The Bells refused to
  remove the mobile home.
• Stonewood connected the Bell's mobile home to the
  town's water system under the mistaken impression
  that the mobile home was without the town limits.
  Upon discovering that the mobile home was within
  the town limits, Stonewood refunded to the Bells
  an amount representing the extra fee charged to
  persons outside the town limits who desire the
  town's water service..

82
And Now, The Flowers

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

83
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
84
The Trial Court

• Both towns moved for summary judgment and the
  court granted an injunction
• Both parties are ordered to remove their mobile
  home
• The Bells and the Flowers appealed
• The ordinances violated the substantive due
  process clause of the 14th amendment
• The ordinances constitute a violation of the
  equal protection clause

85
The Appeals Court

• A Virginia statute allows communities to adopt
  ordinances restricting mobile home to parks
  regardless of whether or not they have a
  comprehensive zoning plan
• The court upholds this statute in recognition
  that many small, rural towns would have
  difficulty adopting a zoning ordinance and
  maintaining a planning commission

86
Equal Protection Substantive Due Process

• We are unable to say that the towns of Stonewood
  and Barrackville have unreasonably or arbitrarily
  restricted the placement of mobile homes.
• We are not here dealing with an absolute
  exclusion of mobile homes. If we were, our
  analysis would necessitate a different approach
• The concept of "community" embraces not only the
  idea of a group of people living together in a
  given area, but also that those people will live
  together harmoniously. The appellants will share
  the benefits and the burdens of these exercises
  of the police power and it would be not only
  disruptive but inappropriate for us to strike
  down an ordinance which substantially advances a
  legitimate legislative goal.

87
Zoning And Land Use Restrictions and Racial
Discrimination

• The Historical Cases
• Yick Wo v Hopkins
• Buchanan v Warley
• Dailey v Lawton
• Shelly v Kraemer

88
The Civil Rights Acts

• Civil Rights Act of 1868
• The Civil Rights Act of 1866, passed in March of
  that year by Radical Republicans in Congress over
  a veto by President Andrew Johnson, declared
  African Americans to be citizens and granted them
  equal protection of the laws in matters of
  contracts, lawsuits, trials, property
  transactions, and purchases, and it attached
  penalties for violations of these rights
• Civil Rights Act of 1871
• Voting rights

89
Civil Rights

• Civil Rights Act of 1875
• The Civil Rights Act of 1875 sought to guarantee
  freedom of access, regardless of race, to the
  "full and equal enjoyment" of inns, public
  conveyances and public places of amusement.
  Citizens were given the right to sue for personal
  damages. Federal courts were given exclusive
  jurisdiction over all cases arising under the
  act.
• Civil Rights Act of 1957
• Established the Commission on Civil Rights and
  created the Civil Rights Enforcement Division in
  the Dept. of Justice

90
Civil Rights

• Civil Rights Act of 1964
• Its eleven titles combated voter discrimination,
  funded school desegregation, renewed the Civil
  Rights Commission another four years, banned use
  of federal funds for schools or programs which
  discriminated, banned discrimination in
  employment and unions, barred federal courts from
  remanding civil rights cases back to state or
  local courts, established the right to a jury
  trial for in cases involving the act, and more
• Civil Rights Act of 1968
• The Fair Housing Act

91
Yick Wo - Background

• By 1880 about 10 percent of the population of
  California was Chinese
• About half lived in the San Francisco area
• Because of discriminatory laws they tended to
  concentrate in certain industries mining,
  railroad, cigar making, laundries, and garments
• The Yellow Press frequently characterized Chinese
  laundries as Opium Dens

92
Yick Wo v Hopkins, 1886

• Yick Wo was a citizen of China residing in San
  Francisco
• Yick Wo was arrested, fined 10, and sentenced to
  10 days in jail for violating a city ordinance
  prohibiting a laundry in a wooden building
• The ordinance stated that It shall be unlawful,
  from and after the passage of this order, for any
  person or persons to establish, maintain, or
  carry on a laundry within the corporate limits of
  the city and county of San Francisco without
  having first obtained the consent of the board of
  supervisors, except the same be located in a
  building constructed either of brick or stone.

93
Inspection

• The Board of Supervisors could have issued a
  certificate of compliance for Yick Wos wooden
  frame laundry building if it found it to be safe
• The trail court and the California Appeals courts
  upheld the conviction and the ordinance as a
  valid exercise of the police power
• The U.S. Supreme Court accepted the case under a
  writ of habeas corpus

94
The Complaint

• There were about 320 laundries in the city and
  county of San Francisco, of which about 240 were
  owned and conducted by subjects of China, and of
  the whole number, 320, about 310 were constructed
  of wood, the same material that constitutes
  nine-tenths of the houses in the city of San
  Francisco
• Yick Wo claims that 150 Chinese operators have
  been arrested for violating the ordinance.
  However, 80 non-Chinese operators, who own wooden
  frame laundries were not arrested

95
Further Facts

• About 200 Chinese owners petitioned the Board for
  permission to operate their laundries all were
  denied
• All the non-Chinese who petitioned to operate
  their laundries (with the exception of one woman)
  were granted permits
• All the Chinese owners were ordered to tear down
  their buildings and reconstruct them from stone
  or brick

96
The Decision

• The power given to the Board of Supervisors to
  approve or disapprove the operation of wooden
  laundries is arbitrary, standard less, and
  violates the subjects equal protection
• The fourteenth amendment to the constitution is
  not confined to the protection of citizens. it
  says "Nor shall any state deprive any person of
  life, liberty, or property without due process of
  law nor deny to any person within its
  jurisdiction the equal protection of the laws."
  These provisions are universal in their
  application, to all persons within the
  territorial jurisdiction, without regard to any
  differences of race, of color, or of nationality
  and the equal protection of the laws is a pledge
  of the protection of equal laws

97
Conclusion

• The fact of this discrimination is admitted. No
  reason for it is shown, and the conclusion cannot
  be resisted that no reason for it exists except
  hostility to the race and nationality to which
  the petitioners belong, and which, in the eye of
  the law, is not justified
• This discrimination is therefore illegal, and the
  public administration which enforces it is a
  denial of the equal protection of the laws, and a
  violation of the fourteenth amendment of the
  constitution

98
Facially Discriminatory Racial Laws in Housing

• There was a great resurgence of local laws after
  1912 designed to assure that the White and
  Non-White races could not co-mingle in the
  workplace, in public places, and in neighborhoods
• These municipal laws were based on the theory
  that the co-mingling of races would encourage
  over familiarity and lead to misogamy

99
Buchanan v Warely, 1917

• Buchanan, a person of color, signed a contract to
  purchase a home in Louisville, KY.
• The contract was subject to a clause that read
• 'It is understood that I am purchasing the above
  property for the purpose of having erected
  thereon a house which I propose to make my
  residence, and it is a distinct part of this
  agreement that I shall not be required to accept
  a deed to the above property or to pay for said
  property unless I have the right under the laws
  of the state of Kentucky and the city of
  Louisville to occupy said property as a residence

100
Executing the Contract

• Buchanan tried to purchase a home in a block
  where 10 homes were occupied by Caucasians and
  two homes were owner by persons of color
• Louisville, in 1911, had adopted an ordinance
  with the following title
• 'An ordinance to prevent conflict and ill-feeling
  between the white and colored races in the city
  of Louisville, and to preserve the public peace
  and promote the general welfare, by making
  reasonable provisions requiring, as far as
  practicable, the use of separate blocks, for
  residences, places of abode, and places of
  assembly by white and colored people
  respectively.'

101
What The Ordinance Said

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

102
Simply Put

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

103
The Persons and Moves

• The property in question was sold by a white man
  to an Afro-American named Buchanan
• Buchanan sought to have the contract enforced by
  the trial court because he could not take
  possession of the house
• The trial court ruled that the contract was
  impaired and order the money returned to Buchanan
• Buchanan appeal to the Ky. Supreme Court in that
  the ordinance violated his civil rights and his
  equal protection rights

104
The Civil Rights

• The Civil Rights Act of 1866
• 'All citizens of the United States shall have the
  same right, in every state and territory, as is
  enjoyed by white citizens thereof to inherit,
  purchase, lease, sell, hold and convey real and
  personal property
• The Civil Rights Act of 1870
• 'All persons within the jurisdiction of the
  United States shall have the same right in every
  state and territory to make and enforce contracts
  to sue, be parties, give evidence, and to the
  full and equal benefit of all laws and
  proceedings for the security of person and
  property as is enjoyed by white citizens, and
  shall be subject to like punishment, pains,
  penalties, taxes, licenses and exactions of every
  kind, and none other.

105
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.

106
Louisvilles Other Argument

• This ordinance gives equal treatment to both
  races
• Although whites can exclude blacks from a
  neighborhood blacks may likewise exclude whites
  from their neighborhoods
• The Court notes that this is rather like saying
  that since white can exclude backs from their
  neighborhood, blacks can exclude whites from
  their slums

107
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.

108
Conclusion

• The case presented does not deal with an attempt
  to prohibit the amalgamation of the races. The
  right which the 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 color and
  of a colored person to make such disposition to a
  white person.
• We think this attempt to prevent the alienation
  of the property in question to a person of color
  was not a legitimate exercise of the police power
  of the state, and is in direct violation of the
  fundamental law enacted in the Fourteenth
  Amendment of the Constitution preventing state
  interference with property rights except by due
  process of law.

109
The Private Side Shelly v Kraemer, 1948

• A restrictive covenant, signed by 30 of 39
  property owners in St. Louis, contained the
  following clauses
• This property shall not be used or occupied by
  any person or persons except those of the
  Caucasian race.
• It is further agreed that this restriction shall
  not be effective unless at least eighty percent
  of the property fronting on both sides of the
  street in the block where our land is located is
  subjected to this or a similar restriction
• This agreement was made in 1911 and is to run for
  50 years

110
The Facts

• In 1944 the Shellys purchased a lot from a Mr.
  Fitzgerald subject to the covenant
• The Shellys are Afro-American
• The co-covenantors brought suit in district court
• The trial court found the lots owners and order
  the Shellys to vacate the property within 90 days
  
• The Shellys were enjoined not to use the property
  again in the future
• The Missouri Supreme Court reversed this decision
  and the landowners brought an appeal

111
The U.S. Supreme Court

• Use of the properties for residential occupancy,
  as such, is not forbidden. The restrictions of
  these agreements, rather, are directed toward a
  designated class of persons and seek to determine
  who may and who may not own or make use of the
  properties for residential purposes. The excluded
  class is defined wholly in terms of race or
  color "simply that, and nothing more
• It cannot be doubted that among the civil rights
  intended to be protected from discriminatory
  state action by the Fourteenth Amendment are the
  rights to acquire, enjoy, own and dispose of
  property

112
The Courts Reasoning

• These restrictions do not involve action by state
  legislatures or city councils
• They are determined by restrictions imposed by
  private individuals
• Participation of the State consists in the
  enforcement of these restrictions
• The 14th Amendment erects no barriers against
  merely private conduct, however discriminatory or
  wrongful

113
Arguments By the State

• The State urges that equal protection is granted
  because the covenant would be enforced against
  white and black alike
• The State also asserts that to deny whites access
  to the courts to enforce their contracts is in
  itself a denial of equal protection

114
Conclusion

• These restrictions, standing alone, do not
  violate the 14th Amendment
• As long as the purpose is effectuated by
  voluntary adherence to the terms, and no State
  action involved, there can be no violation
• However, in this case the Missouri Courts moved
  to enforce the restrictions by penalties and
  sanctions
• Therefore, there has been State action in the
  full and complete sense of the word
• The action of the State courts is void and the
  property is returned to the Shellys

115
Dailey v City of Lawton, OK 1970

• In 1970 the City of Lawton is still highly
  racially segregated. The Catholic School Tract is
  located in the heart of the white section of the
  community
• Prior to 1962 Block 26 was open space owned by
  the City of Lawton
• In 1962 the tract was sold to the Catholic Bishop
  of Oklahoma which was used for school purposes
• In 1966 the Bishop conveyed the land to a
  non-profit corporation Columbia Square, Inc
• At the time of the transfer the tract was zoned
  FP to permit schools, churches, and public uses

116
Dailey v City of Lawton, 1970

• Columbia Square, Inc. planned a three rise
  apartment building on 7.6 acres on what is known
  as Block 26
• The tract is surrounded by R-4 zoning districts
  the highest density residential districts
  permitted in Lawton
• Calculations indicate the the final density on
  the Columbia Square tract would equal
  approximately 60 of the surrounding density
• No report by the City indicated excess density of
  traffic congestion

117
Columbia Square Site
Catholic School Tract
Various Apartments Zoned R-4
James Addition 3 rise apartments
Livingston Apts. Complex
118
Actions

• Columbia Square applied for rezoning from FP to
  R-4 and is denied twice and receives threatening
  phone calls
• A petition was circulated by the surrounding
  residents and returned to the Planning Commission
  with 320 signatures
• All the signers of the petition were white
• The petition alleged that
• Over density and crowding
• Traffic congestion
• Too many units on the tract

119
Citys Actions

• The one dissenting planning commissioner states
  that the reason for denial was racial bias
• The City Council upholds the Planning Commission
  and makes the following findings
• Too much density
• Over crowding of local schools
• Over burdening of local fire fighting capability
• No recreation facilities
• No City Official testified in support of the
  findings, and no data were gathered to justify
  the allegations

120
City Claims

• The City claims that the neighborhood has the
  right to a continuation of Block 26 conveyed to
  Lawton by the U.S. Government for school purposes
• The City states that there was no racial bias
  involved in the final decision it was based
  solely on the desire to prevent over crowding of
  facilities
• Since was bias was never discussed it cannot be
  used as an argument for over turning the zoning
  decision

121
Courts View

• The U.S. District Court holds that the actions of
  the City with respect to the rezoning decision
  were arbitrary, capricious and racially motivated
• The Court holds that the decision was "a direct
  result of the bias and prejudice on the part of
  the owners of other property in North Addition,
  which feeling carried over" to the members of
  those bodies that the motivation for the denial
  of the zoning change "was to keep a large
  concentration of Negroes and other minority
  groups from living in North Addition and the fear
  of the property owners that such project as
  proposed by the plaintiff would bring about a
  depreciation in property values in the district."

122
The Appeal

• Lawton appeals the decision to the U.S. Court of
  Appeals
• The main argument of the City remains that since
  racial bias was never openly shown or discussed
  it cannot simply be assumed
• Besides, argues the City, the majority of
  residents in Lawton that would qualify for this
  housing are WHITE

123
Decision

• The Court says If proof of a civil right
  violation depends on an open statement by an
  official of an intent to discriminate, the
  Fourteenth Amendment offers little solace to
  those seeking its protection. In our opinion it
  is enough for the complaining parties to show
  that the local officials are effectuating the
  discriminatory designs of private individuals
• The racial prejudice alleged and established by
  the plaintiffs must be met by something more than
  bald, conclusory assertions that the action was
  taken for other than discriminatory reasons.

124
Stormfront Website
125
United States v City of Black Jack, 1975
126
The Background

• Black Jack was an unincorporated area governed by
  St. Louis County. In 1970 it had a population of
  3,500. In 2000, Black Jack has 6,134 residents
• In 1970 the County adopted a master plan which
  designated a site in Black Jack for multi-family
  use to further their scattered site affordable
  housing policy
• An option to purchase the designated tract was
  taken by the Inter-Religious Center for Urban
  Affairs located in St. Louis
• The ICUA announced its intent to apply for a
  section 236 housing project grant to build low
  and moderate income housing

127
The Residents

• After the announcement by the ICUA the residents
  of Black Jack organized and were successful in
  incorporating the area as a city
• The new City Council adopted a hastily prepared
  master plan and zoning ordinance
• The zoning prohibited the construction of
  multi-family housing on the site chosen by the
  St. Louis County Master Plan

128
Some Background Facts

• Black Jack is populated solely by Whites
• The percentage of minorities in the City of St.
  Louis is 40.9 percent in 1970
• The average cost of a home in Black Jack in 1970
  was 30,000
• The proposed project in Black Jack was designed
  to accommodate persons earning between 5,000 and
  10,000 per year

129
The Situation

• The ICUA