Exclusionary Practices

Exclusionary PracticesExclusionary Practices

Racial &Racial &

Non - RacialNon - Racial

OverviewOverview

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

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

Two types of cases are presented in this Two types of cases are presented in this sectionsection 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 Some Discriminatory PracticesPractices

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

opportunity for least cost housing sitesopportunity for least cost 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 Failure to offer and provide adequate

municipal servicesmunicipal services

National Land Investment Co. National Land Investment Co. v Easttown Townshipv Easttown Township

In 1958 National Land Investment offered to In 1958 National Land Investment offered to buy an 85 acre tract of land subject to a buy an 85 acre tract of land subject to a successful subdivision plansuccessful subdivision plan

When National Land took the option the When National Land took the option the Township zoning standard was 1 acre Township zoning standard was 1 acre minimum per residence – and the land was minimum per residence – and the land was zoned for single family residenceszoned 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 The Township did not take any action because it was in the process of amending the it was in the process of amending the minimum lot requirement to 4 acresminimum lot requirement to 4 acres

Sweetbriar TodaySweetbriar 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 AppealsNational Land Appeals

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

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

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

DescriptionDescription

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

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

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

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

King of Prussia To The NorthKing of Prussia To The North

Township Location, Founded Township Location, Founded 17041704

Growth FactorsGrowth 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 The Court Begins The Lengthy AnalysisLengthy Analysis

The relative advantages of a one acre lot over a one-half acre lot are easy The relative advantages of a one acre lot over a one-half acre lot are easy to comprehendto comprehend

Similarly, a two acre lot has advantages over a one acre lot and three 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 threeacres may be preferred over two acres or ten acres over three

The greater the amount of land, the more room for children, the less The greater the amount of land, the more room for children, the less congestion, the easier to handle the water supply and sewage, and the congestion, the easier to handle the water supply and sewage, and the fewer municipal services which must be providedfewer municipal services which must be provided

At some point along the spectrum, however, the size of lots ceases to be a 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 concern requiring public regulation and becomes simply a matter of private preferencepreference

The point at which legitimate public interest ceases is not a constant one, 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 but one which varies with the land involved and the circumstances of each case.case.

Township’s ArgumentTownship’s Argument The Township says that 4 acre lots are necessary because most of The Township says that 4 acre lots are necessary because most of

the township is not sewered but on septic systemsthe township is not sewered but on septic systems Township roads are old and inadequate to carry the increased Township roads are old and inadequate to carry the increased

traffic burdentraffic 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 Court’s Analysis – Sewer SystemSystem

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

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

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

Court’s Analysis - RoadsCourt’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 independent winding. But when National Land paid an independent consultant to perform a traffic analysis the result was that consultant to perform a traffic analysis the result was that the present road system could serve another 7,000 the present road system could serve another 7,000 residents without becoming congested and dangerousresidents without becoming congested and dangerous

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

Court’s Analysis – Open Court’s Analysis – Open SpaceSpace

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 spaceWhy don’t you use PUD’s to collect common open space 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

Open SpaceOpen Space

Court’s Analysis – Historic Court’s Analysis – Historic Sites and Old HomesSites 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 in the The map shows that all of the historic sites are located in the

small villages throughout the Township where the zoning small villages throughout the Township where the zoning remains ½ acre minimumsremains ½ acre minimums

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

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

Court’s Analysis – Rural Court’s Analysis – Rural CharacterCharacter

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 differentiates it from any other area in the southeastern section of Pennsylvania. southeastern section of Pennsylvania.

No one would seriously maintain that the entire No one would seriously maintain that the entire southeast corner of the state should be declared southeast corner of the state should be declared immune from further development on areas of less than immune from further development on areas of less than four acres simply because there are many old homes four acres simply because there are many old homes located therelocated there

If the township were developed on the basis of 4 acre If the township were developed on the basis of 4 acre zoning, however, it could not be seriously contended zoning, however, it could not be seriously contended that the land would retain its rural character -- it would that the land would retain its rural character -- it would simply be dotted with larger homes on larger lots.simply be dotted with larger homes on larger lots.

The Knockout PunchThe Knockout Punch

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

Its InvalidIts 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 prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, avoid future burdens, economic and otherwise, upon the administration of public services and upon the administration of public services and facilities can not be held validfacilities can not be held valid

This does not mean that a governmental body This does not mean that a governmental body may not utilize its zoning power in order to insure may not utilize its zoning power in order to insure that the municipal services which the community that the municipal services which the community requires are provided in an orderly and rational requires are provided in an orderly and rational manner.manner.

The Warning To Other The Warning To Other CommunitiesCommunities

The purpose of Planning is to provide for the The purpose of Planning is to provide for the needs of the future – it is not intended to deny needs of the future – it is not intended to deny the futurethe future

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

Easttown Land Use MapEasttown Land Use Map

Burlington County NAACP v Burlington County NAACP v Mt Laurel, New Jersey - 1973Mt Laurel, New Jersey - 1973

Some BackgroundSome Background

Mt. Laurel settled in 1688Mt. Laurel settled in 1688 The actual Mt. Laurel Village incorporated The actual Mt. Laurel Village incorporated

in 1847in 1847 Mt. Laurel Township/Village has grown Mt. Laurel Township/Village has grown

steadily from 1960 to 2000 – from 2,345 to steadily from 1960 to 2000 – from 2,345 to 38,00038,000

Home of the MARPHome of the MARPiesies

The Case SettingThe Case Setting

Mt. Laurel is a 22 sq. mile (14,000 acres) Mt. Laurel is a 22 sq. mile (14,000 acres) Township located near Cherry Hill NJ some Township located near Cherry Hill NJ some 10 miles from Camden10 miles from Camden

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 The Residential Zoning SchemeScheme

The ordinance provides for R-1; R-1D; R-2 The ordinance provides for R-1; R-1D; R-2 and R-3and 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 ApplicationThe 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 MoreAnd 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 senior citizens where children under 18 could not livenot live

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

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

The Court Makes Some The Court Makes Some FindingsFindings

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

This pattern appears repeatedly in This pattern appears repeatedly in developing municipalitiesdeveloping municipalities

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

The Central QuestionsThe Central Questions

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

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

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

The RulingThe Ruling We conclude that every developing community must, We conclude that every developing community must,

at least by its land use regulations, presumptively at least by its land use regulations, presumptively make possible an appropriate variety and choice of make possible an appropriate variety and choice of housinghousing

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

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

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

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

ConclusionConclusion

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

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

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

The is a return, 8 years later, of the Burlington The is a return, 8 years later, of the Burlington County NAACP v Mt. Laurel Township caseCounty NAACP v Mt. Laurel Township case

After all this time, and invalidating its zoning After all this time, and invalidating its zoning ordinance, the Township is still afflicted with a ordinance, the Township is still afflicted with a blatantly exclusionary zoning ordinanceblatantly exclusionary zoning ordinance

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

Mt. Laurel is not alone in this widespread non-Mt. Laurel is not alone in this widespread non-compliance with the constitutional mandate of the compliance with the constitutional mandate of the original caseoriginal 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 ChallengeThe Challenge

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

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

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

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

Removing Excessive Removing Excessive RestrictionsRestrictions

All municipalities are immediately ordered to All municipalities are immediately ordered to remove unnecessary barriers to the construction remove unnecessary barriers to the construction of low and moderate income housingof low and moderate 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 MeasuresUsing 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 that a municipality can use to make the opportunity for low and moderate income housing opportunity for low and moderate income housing realisticrealistic 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 Trial courts are authorized to retain control of cases such as these and to supervise the cases such as these and to supervise the community’s resolve to pursue affirmative community’s resolve to pursue affirmative measuresmeasures

Zoning For All HousingZoning For All Housing Although the New Jersey Although the New Jersey

Courts have upheld bans on Courts have upheld bans on mobile homes – all these mobile homes – all these decisions are now reverseddecisions are now reversed

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

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

Least Cost HousingLeast Cost Housing

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

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

Least Cost HousingLeast Cost Housing

In Re Girsh, 1969In Re Girsh, 1969

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

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

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

Some BackgroundSome Background

The date is 1964The date is 1964 Mister Girsh Sr. made a contract to purchase 17 Mister Girsh Sr. 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 apply to the township that he would agree to apply to the township board to change the R-1 zoning so that a high rise board to change the R-1 zoning so that a high rise (6 story) apartment building could be constructed(6 story) apartment 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 was successful – he would pay the land owner a total of $150,000total of $150,000

The Place – Delaware County - Nether Providence The Place – Delaware County - Nether Providence TownshipTownship

Population 433,535

Delaware County

Place DescriptionPlace Description

Nether Providence Township has a population of Nether Providence Township has a population of 6,000 persons (1969) and a land area of 4.64 6,000 persons (1969) and a land area of 4.64 square milessquare miles

The U.S. Census count for 2000 is 13,456 personsThe U.S. Census count for 2000 is 13,456 persons About 75% of the township is zoned for single About 75% of the township is zoned for single

family residential (R-1 or R-2) on not less than family residential (R-1 or R-2) on not less than 20,000 and 14,000 sq. ft. respectively20,000 and 14,000 sq. ft. respectively

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

Girsh’s ActionsGirsh’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 – apartment buildings – each contained 280 units – he offered to reduce each building to 216 unitshe offered 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 dismissed because Girsh did not apply for a variancevariance

Trial court dismisses the suit because it was not Trial court dismisses the suit because it was not riperipe

The date is now 1966The date is now 1966

Supreme Court AnalysisSupreme 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 overlooks the broader question that is presented by this case. In refusing to allow apartment by this case. In refusing to allow apartment development as part of its zoning scheme, Nether development as part of its zoning scheme, Nether Providence has in effect decided to zone out the Providence has in effect decided to zone out the people who would be able to live in the Township people who would be able to live in the Township

if apartments were availableif apartments were available..

Cause and EffectCause and Effect The township argues that apartment uses would cause The township argues that apartment uses would cause

a significant population increase with a resulting strain a significant population increase with a resulting strain on available municipal services and roads, and would on available municipal services and roads, and would clash with the existing residential neighborhood. clash with the existing residential neighborhood.

"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.

Zoning is a means by which a governmental body can Zoning is a means by which a governmental body can plan for the future -- it may not be used as a means to plan for the future -- it may not be used as a means to deny the future. . . . Zoning provisions may not be deny the future. . . . Zoning provisions may not be used . . . to avoid the increased responsibilities and used . . . to avoid the increased responsibilities and economic burdens which time and natural growth economic burdens which time and natural growth invariably bring."invariably bring."


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

The Decision is reversed and remanded to the trial The Decision is reversed and remanded to the trial courtcourt

The date is now 1971The date is now 1971

Its Not OverIts 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 The Township says we now need to revise our

zoning ordinance to provide for housingzoning ordinance 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 zoning map. The Township rezones about 3% of the land for multi-familythe land for multi-family

Guess What?Guess What?

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

Girsh again applies for rezoning of his property to Girsh again applies for rezoning of his property to R-3R-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 Girsh goes back to the trial judge and the Judge

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

The Judge Says What?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 gets the shaftGirsh gets the shaft The time in now 1977The time in now 1977 Girsh files leave for appeal before the Supreme Girsh files leave for appeal before the Supreme

CourtCourt 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 apartments”entitled 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 case to the trial court with instructions to grant Girsh a new hearingGirsh a new hearing

And it Goes OnAnd it Goes On

Its now 1979 – the population is 10,045Its now 1979 – the population is 10,045 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 had every right to turn you down on the specific site you selected for housing as long as they site you selected for housing as long as they provided for adequate mutli-family zones in the provided for adequate mutli-family zones in the TownshipTownship

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

Girsh DiesGirsh Dies

Last TripLast 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 In 1983 the Supreme Court decides to hear the

case again and makes a final ruling in 1983case again and makes a final ruling in 1983 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 the trial court to immediately They then order the trial court to immediately

order the property rezoned and permits issuedorder the 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 WishGirsh’s Last Wish

The Best of Local ArtThe Best of Local Art

Final AnalysisFinal Analysis Population in 2003 – 13,153Population in 2003 – 13,153 Median Household Income - Median Household Income -

$79,032$79,032

Surrick v Upper Providence Surrick v Upper Providence Twsp., 1977Twsp., 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 Philadelphia, located about 12 miles from the center of the city. The 1970 census set the township's of the city. The 1970 census set the township's population at slightly over 9,200 the 2000 population population at slightly over 9,200 the 2000 population is about 12,000; the total acreage of the township is is about 12,000; the total acreage of the township is approximately 3,800 acres. Approximately one-approximately 3,800 acres. Approximately one-quarter of the township land is undeveloped. The quarter of the township land is undeveloped. The township was first settled in 1700township was first settled in 1700

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

BackgroundBackground Surrick sought to build apartments and townhouses on a Surrick sought to build apartments and townhouses on a

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

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

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

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

He appealed to the Board requesting a variance – the He appealed to the Board requesting a variance – the Board deniedBoard denied

Township LocationTownship Location

Philadelphia

Legal ChallengeLegal Challenge

The trial court upholds the actions of the The trial court upholds the actions of the TownshipTownship

The Supreme Court reviews and makes the The Supreme Court reviews and makes the following findingsfollowing 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 3Finding #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 density population area; roughly one-quarter of the township land is undeveloped. Thus the the township land is undeveloped. Thus the township's present level of development does not township's present level of development does not preclude further development of multi-family preclude further development of multi-family dwellings.dwellings.

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

Conclusion of FactsConclusion of Facts

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

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


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

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

Upper Providence Township Upper Providence Township 20012001

2000 Land Use Map

98% residential

1% commercial

1% industrial

Average housing price $700,000

Britton v Town of Chester, Britton v Town of Chester, 19911991

LocationLocation

Chester is located about 13 miles from Chester is located about 13 miles from Manchester NHManchester NH

Current stock of homes is composed (98%) of Current stock of homes is composed (98%) of single family unitssingle family units

The town lacks sewer an central water service – The town lacks sewer an central water service – other municipal services are very modestother municipal services are very modest

Chester is primarily a bedroom community for Chester is primarily a bedroom community for ManchesterManchester

At Home In ChesterAt Home In Chester

Home to Chester CollegeHome to Chester College Bedroom suburbBedroom suburb New Hampshire has a growth rate twice the U.S. New Hampshire has a growth rate twice the U.S.

average – from 600,000 in 1960 to 1.3 million in average – from 600,000 in 1960 to 1.3 million in 20002000

Rockingham County has grown from 100,000 to Rockingham County has grown from 100,000 to 275,000 since 1960275,000 since 1960

Chester 3,800 in 2002 CensusChester 3,800 in 2002 Census

BackgroundBackground

Raymond Remillard is the plaintiff developer Raymond Remillard is the plaintiff developer joined by two low income familiesjoined by two low income families

Remillard owns a 23 acre tract that he has been Remillard owns a 23 acre tract that he has been trying to develop a moderate size multi-family trying to develop a moderate size multi-family housing project for 11 yearshousing project for 11 years

The plaintiffs live in an apartment in a nearby The plaintiffs live in an apartment in a nearby town and work in Chestertown and work in Chester

The OrdinanceThe Ordinance

In 1985 the town’s zoning ordinance allowed In 1985 the town’s zoning ordinance allowed single family homes on 2 acre lots and duplexes single family homes on 2 acre lots and duplexes on 3 acre lots – multi-family was excluded from on 3 acre lots – multi-family was excluded from the townthe town

In 1986 the ordinance was amended to include In 1986 the ordinance was amended to include multi-family as part of a PRDmulti-family as part of a PRD

A PRD requires a tract of 20 acres or more. A PRD requires a tract of 20 acres or more. Because of environmental conditions and Because of environmental conditions and wetlands Remillard only had 11.7 developable wetlands Remillard only had 11.7 developable acres and was denied rezoningacres and was denied rezoning

The PUD OrdinanceThe 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 HearingsThe Hearings

A Master heard the case and granted Remillard a A Master heard the case and granted Remillard a builder’s remedybuilder’s remedy

The Appeals court did not find the entire The Appeals court did not find the entire ordinance unconstitutional but upheld the ordinance unconstitutional but upheld the builder’s remedybuilder’s remedy

Chester did not consider the needs of its region in Chester did not consider the needs of its region in adopting their zoning ordinanceadopting their zoning ordinance

RemediesRemedies

Municipalities are not isolated enclavesMunicipalities are not isolated enclaves The town has built a moat around it and the price The town has built a moat around it and the price

of admission is a single family home on 2 acresof admission is a single family home on 2 acres In all cases an inequity demands a remedyIn all cases an inequity demands a remedy Remillard and plaintiffs were wronged for 11 Remillard and plaintiffs were wronged for 11

yearsyears He is entitled to immediate reliefHe is entitled to immediate relief

The FinaleThe Finale

Zoning evolved as an innovative means to Zoning evolved as an innovative means to counter the problems of uncontrolled growthcounter the problems of uncontrolled growth

It was never conceived as a device to facilitate It was never conceived as a device to facilitate the use of governmental power to prevent access the use of governmental power to prevent access to the community by outsiders of a to the community by outsiders of a disadvantaged social classdisadvantaged social class

The court “will not condone the conduct of The court “will not condone the conduct of Chester”Chester”

The land is ordered rezoned and permits shall be The land is ordered rezoned and permits shall be issued to Remillard within 30 daysissued to Remillard within 30 days

Celebration In ChesterCelebration In Chester

And Now Come Mobile HomesAnd Now Come Mobile Homes

Manufactured housing remains the most affordable type of housing in the United States. Most manufactured homes are permanently affixed to their foundations and utilized as primary residences. Thus, the once widely used term "mobile home" is a misnomer.

Estimated average cost is $47,050

18 million people, representing 7 percent of the housing population, live in manufactured homes

Clark v County of WinnebagoClark v County of Winnebago

Clark v Winnebago County, Clark v Winnebago County, 19871987

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

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

DescriptionDescription

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

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

The Clark FamilyThe Clark Family

Mr. And Mrs. Clark

“We are not trailer trash”

Deron and Deronette Clark

Clark’s ContentionsClark’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 discriminating against mobile homes – they are, after all, a form of single family housingall, a form 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 protection rights since there is no substantial difference between site built and mobile homesdifference between site built and mobile homes

Clark’s Lawyer – Denephew Brosious

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

The TrialThe Trial After a trial on the merits, the district court After a trial on the merits, the district court

concluded that neither the ordinance nor the zoning concluded that neither the ordinance nor the zoning decision was so irrational or unrelated to the general decision was so irrational or unrelated to the general welfare as to implicate the fourteenth amendment. welfare as to implicate the fourteenth amendment. Clark appeals.Clark appeals.

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

For instance, mobile home parks, with their smaller For instance, mobile home parks, with their smaller lot sizes, affect population density, and the County lot 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 development of the community by regulating density. density.

The Clarks LoseThe 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”

Message From The ClarksMessage From The Clarks

Town of Stonewood v BellTown of Stonewood v Bell

Stonewood v Bells and Stonewood v Bells and Barrackville, 1980 West Barrackville, 1980 West

VirginiaVirginia The Town of Barrackville adopted a zoning The Town of Barrackville adopted a zoning

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

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

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

The ControversyThe Controversy In June of 1977, Russell and Dora Bell placed a In June of 1977, Russell and Dora Bell placed a

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

Stonewood connected the Bell's mobile home to the Stonewood connected the Bell's mobile home to the town's water system under the mistaken impression town's water system under the mistaken impression that the mobile home was outside the town limits. that the mobile home was outside the town limits. Upon discovering that the mobile home was within Upon discovering that the mobile home was within the town limits, Stonewood refunded the Bells an the town limits, Stonewood refunded the Bells an amount representing the extra fee charged to amount representing the extra fee charged to persons outside the town limits who desire the persons outside the town limits who desire the town's water service..town's water service..

Mrs. Flowers Is MadMrs. 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

And Now, The FlowersAnd 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 Subsequently, Barrackville brought an action to remove the home.the home.

The Trial CourtThe Trial Court Both towns moved for Both towns moved for

summary judgment and summary judgment and the court granted an the court granted an injunctioninjunction

Both parties are ordered to Both parties are ordered to remove their mobile homeremove their mobile home

The Bells and the Flowers The Bells and the Flowers appealed:appealed: The ordinances violated The ordinances violated

the substantive due the substantive due process clause of the process clause of the 1414thth amendment amendment

The ordinances The ordinances constitute a violation of constitute a violation of the equal protection the equal protection clauseclause

The Appeals CourtThe Appeals Court A Virginia statute allows A Virginia statute allows

communities to adopt communities to adopt ordinances restricting ordinances restricting mobile home to parks mobile home to parks regardless of whether or regardless of whether or not they have a not they have a comprehensive zoning comprehensive zoning planplan

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

Equal Protection & Equal Protection & Substantive Due ProcessSubstantive Due Process

We are unable to say that the towns of Stonewood We are unable to say that the towns of Stonewood and Barrackville have unreasonably or arbitrarily and Barrackville have unreasonably or arbitrarily restricted the placement of mobile homes.restricted the placement of mobile homes.

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

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

Zoning And Land Use Zoning And Land Use Restrictions and Racial Restrictions and Racial

DiscriminationDiscrimination

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 ActsThe 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 RightsCivil 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 RightsCivil 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 - BackgroundYick 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, concentrate in certain industries – mining, railroad, cigar making, laundries, and garmentsrailroad, cigar making, laundries, and garments

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

Yick Wo v Hopkins, 1886Yick 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 Yick Wo was arrested, fined $10, and sentenced to 10 days in jail for violating a city ordinance to 10 days in jail for violating a city ordinance prohibiting a laundry in a wooden buildingprohibiting a laundry in a wooden building

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

InspectionInspection

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

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

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

The ComplaintThe 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 owned and conducted by subjects of China, and of the whole number,of the whole number, 320, about 310 were 320, about 310 were constructed of wood, the same material that constructed of wood, the same material that constitutes nine-tenths of the houses in the city of constitutes nine-tenths of the houses in the city of San FranciscoSan Francisco

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

Further FactsFurther Facts About 200 Chinese owners petitioned the Board for permission to About 200 Chinese owners petitioned the Board for permission to

operate their laundries – all were deniedoperate their laundries – all were denied All the non-Chinese who petitioned to operate their laundries (with All the non-Chinese who petitioned to operate their laundries (with

the exception of one woman) were granted permitsthe exception of one woman) were granted permits All the Chinese owners were ordered to tear down their buildings All the Chinese owners were ordered to tear down their buildings

and reconstruct them from stone or brickand reconstruct them from stone or brick

The DecisionThe 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 any confined to the protection of citizens. it says: "Nor shall any state deprive any person of life, liberty, or property without state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These 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


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

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

Facially Discriminatory Racial Facially Discriminatory Racial Laws in HousingLaws 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, White races could not co-mingle in the workplace, in public places, and in neighborhoodsin public places, and in neighborhoods

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

Buchanan v Warely, 1917Buchanan v Warely, 1917

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

The contract was subject to a clause that The contract was subject to a clause that read: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 ContractExecuting the Contract

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

Louisville, in 1911, had adopted an Louisville, in 1911, had adopted an ordinance with the following title:ordinance with 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 SaidWhat The Ordinance Said

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

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

Simply PutSimply Put

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

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

The Persons and MovesThe Persons and Moves

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

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

The trial court ruled that the contract was The trial court ruled that the contract was impaired and ordered the money returned to impaired and ordered the money returned to BuchananBuchanan

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

The Civil RightsThe 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 citizens, security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other.taxes, licenses and exactions of every kind, and none other.

Plessy v FergusonPlessy v Ferguson Louisville insists that Plessy v. Ferguson is

controlling in principle In that case the 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.

Louisville’s Other ArgumentLouisville’s Other Argument

This ordinance gives equal treatment to both This ordinance gives equal treatment to both racesraces

Although whites can exclude blacks from a Although whites can exclude blacks from a neighborhood – blacks may likewise exclude neighborhood – blacks may likewise exclude whites from their neighborhoodswhites from their neighborhoods

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

The Louisville OrdinanceThe 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.


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 prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to white man to dispose of his property if he saw fit to do so to a person of color and of a person of color to do so to a person of color and of a person of color to make such disposition to a white person.make such disposition to a white person.

We think this attempt to prevent the alienation of We think this attempt to prevent the alienation of the property in question to a person of color was not the property in question to a person of color was not a legitimate exercise of the police power of the a legitimate exercise of the police power of the state, and is in direct violation of the fundamental state, and is in direct violation of the fundamental law enacted in the 14law enacted in the 14thth Amendment to the Amendment to the ConstitutionConstitution

The Private Side – Shelly v The Private Side – Shelly v Kraemer, 1948Kraemer, 1948

A restrictive covenant, signed by 30 of 39 A restrictive covenant, signed by 30 of 39 property owners in St. Louis, contained the property owners in St. Louis, contained the following clauses: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

St. Louis Landmark CaseSt. Louis Landmark Case

Courtesy of St. Louis H.U.D. Equal Opportunity Council

The FactsThe 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 for the lot owners and The trial court found for the lot owners and

ordered the Shellys to vacate the property within ordered the Shellys to vacate the property within 90 days 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 The Missouri Supreme Court reversed this decision and the landowners brought an appealdecision and the landowners brought an appeal

The U.S. Supreme CourtThe U.S. Supreme Court

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

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

The Court’s ReasoningThe 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 Participation of the State consists in the enforcement of these restrictionsenforcement of these restrictions

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

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


These restrictions, standing alone, do not violate These restrictions, standing alone, do not violate the 14the 14thth Amendment Amendment

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

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

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

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

Dailey v City of Lawton, OK Dailey v City of Lawton, OK 19701970

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

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

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

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

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

Dailey v City of Lawton, 1970Dailey 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 apartment building on 7.6 acres on what is known as Block 26as Block 26

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

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

Columbia Square SiteColumbia Square Site

Catholic School Tract

James Addition

3 rise apartments

Livingston Apts. Complex

Various

Apartments

Zoned R-4

ActionsActions

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

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

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 ActionsCity’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 The City Council upholds the Planning Commission and makes the following findings:Commission 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, No City Official testified in support of the findings, and no data were gathered to justify the and no data were gathered to justify the allegationsallegations

City’ ClaimsCity’ Claims

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

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

Since bias was never discussed – it cannot be Since 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’ ViewCourts’ 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 bodiesthe members of those bodies

The motivation for the denial of the zoning change "was to The motivation for the denial of the zoning change "was to keep a large concentration of racial minorities from living in keep a large concentration of racial minorities from living in North Addition and the fear of the property owners that North Addition and the fear of the property owners that such “project as proposed by the plaintiff would bring about such “project as proposed by the plaintiff would bring about a depreciation in property values in the district."a depreciation in property values in the district."

The AppealThe 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 “racial bias” was never openly shown or discussed – it cannot simply be assumeddiscussed – it cannot simply be assumed

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

Decision Pattern and PracticeDecision Pattern and Practice

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 depends on an open statement by an official of an intent to discriminate, the 14an intent to discriminate, the 14thth Amendment Amendment offers little solace to those seeking its protection. offers little solace to those seeking its protection. In our opinion it is enough for the complaining In our opinion it is enough for the complaining parties to show that the local officials are parties to show that the local officials are effectuating the discriminatory designs of private effectuating the discriminatory designs of private individualsindividuals

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

http://www.stormfront.org/ http://www.stormfront.org/ WebsiteWebsite

Free men are not equal.Equal men are not free.

United States v City of Black United States v City of Black Jack, 1975Jack, 1975

Median resident age: 31.1 years Median household income: $21,806Median house value: $29,800

The BackgroundThe Background

Black Jack was an unincorporated area governed Black Jack was an unincorporated area governed by St. Louis County. In 1970 it had a population of by 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 designated a site in Black Jack for multi-family use to further their “scattered site” affordable use to further their “scattered site” affordable housing policyhousing policy

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

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

ICUA

SITE

Black Jack Is One of 91 towns in St. Louis County

The ResidentsThe Residents

After the announcement by the ICUA the After the announcement by the ICUA the residents of Black Jack organized and were residents of Black Jack organized and were successful in incorporating the area as a citysuccessful in incorporating 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-The zoning prohibited the construction of multi-family housing on the site chosen by the St. Louis family housing on the site chosen by the St. Louis County Master PlanCounty Master Plan

Some Background FactsSome Background Facts

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

Louis is 40.9 percent in 1970Louis is 40.9 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 $30,000 ($192,000 in 2003)was $30,000 ($192,000 in 2003) The proposed project in Black Jack was designed The proposed project in Black Jack was designed

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

The SituationThe 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 Black Jack claims over density and out of character with its low density housing patterncharacter with 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 affirmative obligation to provide affordable housing for St. Louis residentshousing for St. Louis residents

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

District CourtDistrict Court

The ICUA raised the civil rights question to The ICUA raised the civil rights question to the U.S. District Courtthe U.S. District 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 ReversesThe 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 practice) predictably results in racial discrimination – in other words – a discriminatory discrimination – in other words – a discriminatory effecteffect

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

DecisionDecision

The Court said that it saw a deliberate pattern The Court said that it saw a deliberate pattern and practice on the part of suburban St. Louis and 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 ThenAnd 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 Black Jack delayed the rezoning for over a year

and the ICUA lost their place in the cue for HUD and the ICUA lost their place in the cue for HUD 236 funding236 funding

The ICUA returned to the Court asking for The ICUA returned to the Court asking for damagesdamages

They were awarded $450,000 in punitive They were awarded $450,000 in punitive damages and Black Jack was ordered to to damages and Black Jack was ordered to to prepare a housing plan that would address the prepare a housing plan that would address the needs of low and moderate income housingneeds of low and moderate income housing

The Continuing SagaThe Continuing Saga

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

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 U.S. District Court places the city officials The U.S. District Court places the city officials

under a “stay” order refrain from un-incorporation under a “stay” order refrain from un-incorporation and opens the door to any St. Louis resident who and opens the door to any St. Louis resident who would have qualified for housing to sue Black Jackwould have qualified for housing to sue Black Jack

The FinaleThe Finale

Black Jack is ordered to levy a community tax or a Black Jack is ordered to levy a community tax or a bond in an amount equal to twice its previous bond in an amount equal to twice its previous annual budget to pay the ICUA.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 The irony is that the total cost to Black Jack is now $500,000now $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 would have received $36,000 a year in property taxestaxes

2003 Census Estimates2003 Census Estimates

Races in Black Jack:White (71.3%)

African-American (26.1%) Two or more races (1.5%)

Hispanic (0.7%) American Indian (0.5%)

Median resident age: 37.3 years Median household income: $63,806Median house value: $198,800

Exclusionary Practices

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