Exclusionary Practices - PowerPoint PPT Presentation

Loading...

PPT – Exclusionary Practices PowerPoint presentation | free to download - id: 57fc83-MTA1N



Loading


The Adobe Flash plugin is needed to view this content

Get the plugin now

View by Category
About This Presentation
Title:

Exclusionary Practices

Description:

Title: Exclusions Author: John Keller Last modified by: John Keller Created Date: 9/20/2001 6:27:35 PM Document presentation format: On-screen Show – PowerPoint PPT presentation

Number of Views:150
Avg rating:3.0/5.0
Slides: 136
Provided by: JohnK131
Category:

less

Write a Comment
User Comments (0)
Transcript and Presenter's Notes

Title: Exclusionary Practices


1
Exclusionary Practices
  • Racial
  • Non - Racial

2
Overview
  • Land regulatory practices are presumed to be
    rationally related to a legitimate community need
    based on the health, safety, and public welfare
  • However, the opportunity to abuse this power is
    great and ever present, especially when those
    segments of society are disadvantaged
  • Two types of cases are presented in this section
  • Regulatory discrimination that is not based on an
    identifiable protected classification
  • Racial, ethic, and gender discrimination based on
    the attributes of a protected class of persons

3
Some Discriminatory Practices
  • Minimum lot and house size
  • Failure to provide for adequate opportunity for
    least cost housing sites
  • Bias against certain forms of land use i.e.,
    manufactured homes
  • Administrative delay
  • Covert and overt racial discrimination
  • Failure to offer and provide adequate municipal
    services

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

5
Sweetbriar Today
Quality and craftsmanship are evident throughout
in the detailed cabinetry, custom carpeting and
top of the line fixtures. Enjoy elegant
entertaining in the formal living room and dining
rooms and great family living in the dramatic
family room with brick walled walk-in fireplace.
Easttown Township, Chester County The
Sweetbriar. FOR SALE 1 Acre 1,200,000
6
National Land Appeals
  • National Land applied for a variance but this was
    denied by the Board of Zoning Appeals
  • The trial court found for the Township noting
    that a four acre minimum lot size restriction was
    reasonable for a rapidly growing rural area
  • The Pennsylvania Supreme Court accepted the case
    for review and began by characterizing the area

7
Description
  • Easttown Township has an area of 8.5 square miles
    about the same land area as the greater
    Manhattan area
  • In 1965 the Township was located about 20 miles
    from Philadelphia
  • Growth is also approaching from the commercial
    industrial complex at King of Prussia and Valley
    Forge
  • In 1965 about 60 of the population resides in
    about 20 of the Townships Villages area the
    other 40 are scattered in the rural portion

8
King of Prussia To The North
9
Township Location, Founded 1704
10
Growth Factors
  • Population of Easttown
  • 1950 2,307
  • 1960 6,907
  • 1970 10,050
  • 2000 21,500

11
The Court Begins The Lengthy Analysis
  • The relative advantages of a one acre lot over a
    one-half acre lot are easy to comprehend.
    Similarly, a two acre lot has advantages over a
    one acre lot and three acres may be preferred
    over two acres or ten acres over three. The
    greater the amount of land, the more room for
    children, the less congestion, the easier to
    handle water supply and sewage, and the fewer
    municipal services which must be provided. At
    some point along the spectrum, however, the size
    of lots ceases to be a concern requiring public
    regulation and becomes simply a matter of private
    preference. The point at which legitimate public
    interest ceases is not a constant one, but one
    which varies with the land involved and the
    circumstances of each case.

12
Townships Argument
  • The Township says that 4 acre lots are necessary
    because most of the township is not sewered but
    on septic systems
  • Township roads are old and inadequate to carry
    the increased traffic burden
  • They also wish to preserve Easttowns Character
  • Preserve open space and create Greenbelts
  • Preserve historic sites and buildings
  • Protect the setting for the old homes dating back
    to the 1700s
  • Protect the general rural character

13
Courts Analysis Sewer System
  • The Township also allows residences on 1, 2 and 3
    acre lots in certain areas. If 4 acres is really
    necessary why not make 4 acre minimums through
    the Township?
  • And, the Township Sanitation Officer is allowed
    to increase the size of any lot if a percolation
    test proves to be unsatisfactory
  • We think that you are blowing smoke in our ear

14
Courts Analysis - Roads
  • Yes, we realize that may roads are old, narrow,
    and winding. But when National Land paid an
    independent consultant to perform a traffic
    analysis the result was that the present road
    system could serve another 7,000 residents
    without becoming congested and dangerous
  • The road where Sweetbriar is located is bear
    Highway 30, very much under capacity, and can
    easily carry more traffic

15
Courts Analysis Open Space
  • Preserve Open Space?
  • Excuse me! We thought that the best way to
    preserve open space was to use cluster and
    density development rather than increase the lot
    size
  • Why dont you use PUDs to collect common open
    space
  • If you are going to implement Greenbelts why
    dont you have each developer contribute linear
    open space
  • Why just say four acre lots

16
Courts Analysis Historic Sites and Old Homes
  • We dont understand this one!!!!
  • The map shows that all of the historic sites are
    located in the small villages throughout the
    Township where the zoning remains ½ acre minimums
  • Professionals tell us that the best way to
    preserve historic sites is through design
    sensitivity and compatibility
  • There is no doubt that many of the residents of
    this area are highly desirous of keeping it the
    way it is, preferring, quite naturally, to look
    out upon land in its natural state rather than on
    other homes. These desires, however, do not rise
    to the level of public welfare. This is purely a
    matter of private desire which zoning regulation
    may not be employed to effectuate.

17
Courts Analysis Rural Character
  • What are you preserving?
  • There is nothing about south Easttown which
    differentiates it from any other area in the
    southeastern section of Pennsylvania. Surely, no
    one would seriously maintain that the entire
    southeast corner of the state should be declared
    immune from further development on areas of less
    than four acres simply because there are many old
    homes located there. If the township were
    developed on the basis of 4 acre zoning, however,
    it could not be seriously contended that the land
    would retain its rural character -- it would
    simply be dotted with larger homes on larger lots.

18
The Knockout Punch
  • Four acre zoning represents Easttown's position
    that it does not desire to accommodate those who
    are pressing for admittance to the township
    unless such admittance will not create any
    additional burdens upon governmental functions
    and services. The question posed is whether the
    township can stand in the way of the natural
    forces which send our growing population into
    hitherto undeveloped areas in search of a
    comfortable place to live.

19
Its Invalid
  • A zoning ordinance whose primary purpose is to
    prevent the entrance of newcomers in order to
    avoid future burdens, economic and otherwise,
    upon the administration of public services and
    facilities can not be held valid. Of course, we
    do not mean to imply that a governmental body may
    not utilize its zoning power in order to insure
    that the municipal services which the community
    requires are provided in an orderly and rational
    manner.

20
The Warning To Other Communities
  • The purpose of Planning is to provide for the
    needs of the future it is not intended to deny
    the future
  • Zoning is a tool in the hands of governmental
    bodies which enables them to more effectively
    meet the demands of evolving and growing
    communities. It must not and can not be used by
    those officials as an instrument by which they
    may shirk their responsibilities.

21
Easttown Land Use Map
22
Burlington County NAACP v Mt Laurel, New Jersey -
1973
23
Some Background
  • Mt. Laurel settled in 1688
  • The actual Mt. Laurel Village incorporated in
    1847
  • Mt. Laurel Township/Village has grown steadily
    from 1960 to 2000 from 2,345 to 38,000

24
The Case Setting
  • Mt. Laurel is a 22 sq. mile (14,000 acres)
    Township located near Cherry Hill NJ some 10
    miles from Camden
  • The Zoning Scheme
  • 29.2 of the land is zoned light industrial
    (4,121 acres) but no more than 100 acres are
    actually used for industry
  • 1.2 is zoned for retail business ( 129 acres)
  • The balance of the land is zoned for conventional
    housing (10,000 acres)

25
The Residential Zoning Scheme
  • The ordinance provides for R-1 R-1D R-2 and R-3
  • Each zone permits only single family housing
  • Attached townhouses, apartments, and manufactured
    homes are not allowed anywhere in the township
  • Over 7,000 acres are zoned to permit
  • A combination of lot size and minimum dwelling
    size makes it evident that only a upper middle
    income family could afford to move to the
    township
  • The Township did pass a limited PUD District and
    three developers took advantage by applying for a
    mixed housing project

26
The PUD Application
  • Mt Laurel gives tentative approval
  • Only a few of the townhouses can have more than
    one bedroom
  • No school aged children can be permitted to
    occupy any one bedroom unit
  • No more than 2 children can occupy a two bedrooms
    unit
  • The developer, if more than an average of .3
    students per unit occur, must pay the cost of
    tuition to attend township schools
  • All units must be furnished with required
    amenities, such as central air-conditioning and
    must pay large sums for township fire, police,
    library and schools

27
And More
  • A good share of the units had to be set aside for
    senior citizens where children under 18 could not
    live
  • Needless to say, the developers walked away from
    the projects without the slightest hesitation but
    did not sue for fear that they would never be
    allowed to do business again in Mt Laurel
  • The Burlington County NAACP filed a class action
    suit on behalf of future residents (a novel idea)
    that were barred from moving there from the
    Camden area

28
The Court Makes Some Findings
  • There cannot be the slightest doubt that one of
    the main reasons for this zoning scheme is to
    keep local property taxes low and shift the
    burdens to other communities
  • This pattern appears repeatedly in developing
    municipalities
  • This pattern does not allow for low and moderate
    income families to move to the community they
    are effectively barred

29
The Central Questions
  • May a developing community, such as Mt. Laurel,
    make it physically and economically impossible to
    provide low and moderate income housing for
    various persons who need and want it?
  • Can communities limit the type of housing the
    want so that they is no choice in different types
    of living accommodations?
  • Can Mt. Laurel avoid its fair share of the
    regional burden in supplying the benefits of
    community to future populations?

30
The Ruling
  • We conclude that every developing community must,
    at least by its land use regulations,
    presumptively make possible an appropriate
    variety and choice of housing
  • This court now adopts a non-local approach to the
    meaning of general welfare and no longer allows a
    community to hide behind parochial local
    interests
  • Communities must permit multi-family housing
    without bedroom limitations as well as small
    dwellings on small lots
  • Communities, such as Mt. Laurel, must remove land
    from industrial zones when this practice is
    undertaken to prevent needed housing
    opportunities
  • Mt. Laurel must bear its fair share of the
    regional burden and this region will vary from
    place to place

31
Conclusion
  • Mt. Laurel is granted 90 days to remedy and
    correct the deficiencies in its zoning ordinance
  • A master must approve the Townships regional fair
    share housing plan

32
Mt Laurel II, 1983 In The Words of the Court
  • The is a return, 8 years later, of the Burlington
    County NAACP v Mt. Laurel Township case
  • After all this time, and invalidating its zoning
    ordinance, the Township is still afflicted with a
    blatantly exclusionary zoning ordinance
  • The new ordinance, at its core, is a testament to
    Mount Laurels determination to exclude the low
    and moderate income
  • Mt. Laurel is not alone in this widespread
    non-compliance with the constitutional mandate of
    the original case
  • To the best of our ability, we will not allow
    this to continue

33
The Challenge
  • Mt. Laurel II is actually a consolidation of 5
    different cases at once all arise from the Mt.
    Laurel doctrine
  • One of the communities involved is Mt Laurel
    itself which never really implemented a regional
    fair share plan
  • The ruling is a lengthy set of guidelines set
    down for all New Jersey municipalities
  • The court starts off by saying That some changes
    will be made NOW

34
Removing Excessive Restrictions
  • All municipalities are immediately ordered to
    remove unnecessary barriers to the construction
    of low and moderate income housing
  • Lot lot requirements
  • Minimum housing size requirements
  • Maximum bedrooms regulations
  • Overuse of amenities in PUDs
  • Regulations that impact on the number of children

35
Using Affirmative Measures
  • There are two basic types of affirmative measures
    that a municipality can use to make the
    opportunity for low and moderate income housing
    realistic
  • Encouraging or requiring the use of available
    state and federal housing subsidies
  • Providing incentives for or requiring developers
    to set aside a portion of their developments for
    lower income housing including 5 mandatory set
    asides
  • Trial courts are authorized to retain control of
    cases such as these and to supervise the
    communitys resolve to pursue affirmative
    measures

36
Zoning For All Housing
  • Although the New Jersey Courts have upheld bans
    on mobile homes all these decisions are now
    reversed
  • Changed circumstances now exist and mobile home
    must now be allowed all absolute bans will be
    immediately overruled
  • The Court recognized the aesthetic sensibilities
    of communities but also reversed all decisions
    which upheld a ban on apartments, town homes,
    duplexes and triplexes

37
Least Cost Housing
  • There may be municipalities where special
    conditions exist that make it impossible for fair
    share conditions to exist even after all
    excessive restrictions and exactions have been
    removed
  • Then, and only then, may these communities adopt
    a least cost housing approach to satisfy their
    regional fair share obligation

38
Least Cost Housing
39
In Re Girsh, 1969
  • In Re Girsh is neither a famous or unique case.
    It is however very informative because it
    illustrates the tremendous resistance offer by
    many suburban communities to judicial orders
  • In other words, even though the applicant
    prevails, the community drags its feet, ignores
    the ruling, and proceeds along its own path
  • It also shows that when a ruling is returned to
    the trial court this lower court often resists
    interpreting the appeals ruling in the most
    favorable light

40
Some Background
  • The date is 1964
  • Mister Girsh senior made a contract to purchase
    17 ½ acres of land for 120,000. The contract
    stated that he would agree to applied to the
    township board to change the R-1 zoning so that a
    high rise (6 story) apartment building could be
    constructed
  • The contract also stated that if this zoning
    change was successful he would pay the land
    owner a total of 150,000

41
The Place Nether Providence Township
42
Place Description
  • Nether Providence Township has a population of
    13,000 persons (1969) and a land area of 4.64
    square miles
  • About 75 of the township is zoned for single
    family residential (R-1 or R-2) on not less than
    20,000 and 14,000 sq. ft. respectively
  • Multi-family is not expressly prohibited but it
    is not provided for in the ordinance there are 2
    multi-family housing units in the township
    permitted by variance

43
Girshs Actions
  • Girshs sought approval for 2, nine story luxury
    apartment buildings each contained 280 units
    he offered to reduce each building to 216 units
  • The Planning Commission refused to amend the
    ordinance
  • Girsh sues and the township wants the case
    dismissed because Girsh did not apply for a
    variance
  • Trial court dismisses the suit because it was not
    ripe
  • The date is now 1966

44
Supreme Court Analysis
  • First, by emphasizing the possibility that a
    given landowner could obtain a variance, the
    Township overlooks the broader question that is
    presented by this case. In refusing to allow
    apartment development as part of its zoning
    scheme, Nether Providence has in effect decided
    to zone out the people who would be able to live
    in the Township if apartments were available.

45
Cause and Effect
  • The township argues that apartment uses would
    cause a significant population increase with a
    resulting strain on available municipal services
    and roads, and would clash with the existing
    residential neighborhood. But we explicitly
    rejected both these claims in National Land
  • "Zoning is a tool in the hands of governmental
    bodies which enables them to more effectively
    meet the demands of evolving and growing
    communities. It must not and can not be used by
    those officials as an instrument by which they
    may shirk their responsibilities. Zoning is a
    means by which a governmental body can plan for
    the future -- it may not be used as a means to
    deny the future. . . . Zoning provisions may not
    be used . . . to avoid the increased
    responsibilities and economic burdens which time
    and natural growth invariably bring."

46
Conclusion
  • The Court concludes by saying
  • In addition, at least hypothetically, the
    Township could show that apartments are not
    appropriate on the site where appellant wishes to
    build, but that question is not before us as long
    as the zoning ordinance in question is fatally
    defective on its face. The Township could
    properly decide that apartments are more
    appropriate in one part of the Township than in
    another, but it cannot decide that apartments can
    fit in no part of the Township.
  • The Decision is reversed and remanded to the
    trial court
  • The date is now 1971

47
Its Not Over
  • Its now 1972
  • The trial court receives the remanded case
  • Judge orders a new hearing for Girsh
  • The Township says we now need to revise our
    zoning ordinance to provide for housing
  • Judge says OK. You have a year
  • Now its 1974
  • The new ordinance is released along with a new
    zoning map. The Township rezones about 3 of the
    land for multi-family

48
Guess What?
  • Girshs land is not zoned on the map for
    multi-family housing
  • Girsh again applies for rezoning of his property
    to R-3
  • In 1975 the Township Planning Board says no
  • Girsh applies for a variance this time
  • He is denied by the Board of Adjustment
  • Girsh goes back to the trial judge and the Judge
    says what are you doing here?
  • Girsh says I Though I Won!

49
The Judge Says What?
  • The trial court took up the matter and decided
    that that the Township had acted properly by
    complying with the decision of the Supreme Court.
  • Girsh get the shaft
  • The time in now 1977
  • Girsh files leave for appeal before the Supreme
    Court
  • His brief simple says I thought I Won am I not
    entitled to build my apartments
  • The Supreme Court is a bit upset and returns the
    case to the trial court with instructions to
    grant Girsh a new hearing

50
And it Goes On
  • Its now 1979
  • Girsh is granted a new hearing
  • The trial judge once again says that the Township
    had every right to turn you down on the specific
    site you selected for housing as long as they
    provided for adequate mutli-family zones in the
    Township
  • Girsh is very, very unhappy and upset

51
Girsh Dies
52
Last Trip
  • Girshs son takes up the matter in 1982
  • In 1983 the Supreme Court decides to hear the
    case again and makes a final ruling in 1938
  • The court says that the intention was all along
    to grant Girsh a Builders Remedy.
  • They then order to the trial court to immediately
    order the property rezoned and permits issued
  • The Township never did this Girsh jr. lost the
    financing on the property and was never able to
    complete the project

53
Girshs Last Wish
54
Surrick v Upper Providence Twsp., 1977
  • Upper Providence Township is a western suburb of
    Philadelphia, located about 12 miles from the
    center of the city. The 1970 census set the
    township's population at slightly over 9,200 the
    2000 population is about 12,000 the total
    acreage of the township is approximately 3,800
    acres. Approximately one-quarter of the township
    land is undeveloped. The township was first
    settled in 1700
  • The zoning ordinance in question has classified
    43 acres, or 1.14 of the total township acreage,
    as a B district in this B district apartments
    are permitted along with other essentially
    commercial uses, and the B district is already
    substantially developed.

55
Background
  • Surrick sought to build apartments and townhouses
    on a 16.25 acre tract of land (four acres owned
    by appellant 12.25 acres under agreement of sale
    with zoning contingency). The tract is located in
    an area designated A-1 Residential under the
    township ordinance, which permits only single
    family dwellings on one-acre lots.
  • Surrick applied to the Township to rezone the
    12.25 acre tract to B-Business, the only
    ordinance classification permitting multi-family
    housing, to develop the site for apartments
  • The rezoning was denied
  • Surrick revised his plans to include the four
    acres of ground owned by him. He sought building
    permits, which were denied by the Building
    Inspector
  • He appealed to the Board requesting a variance
    the Board denied

56
Township Location
Philadelphia
57
Legal Challenge
  • The trial court upholds the actions of the
    Township
  • The Supreme Court reviews and makes the following
    findings
  • There can be little doubt that Upper Providence
    Township is a logical area for development and
    population growth. This conclusion is supported
    by the fact that the township is located a mere
    twelve miles or so from Philadelphia and is
    situated at the intersection of two main traffic
    arteries, one of which, Route 1, is a direct link
    with the city.

58
Finding 2 and 3
  • The record shows that the township is not a high
    density population area roughly one-quarter of
    the township land is undeveloped. Thus the
    township's present level of development does not
    preclude further development of multi-family
    dwellings.
  • The zoning ordinance in question results in a
    partial exclusion of multi-family dwellings,
    providing, as it does, 1.14 of the township land
    for development of multi-family dwellings. It is
    also significant that multi-family dwellings are
    only one of more than a dozen other uses
    permitted on this fraction of land.

59
Conclusion of Facts
  • The analysis leads inescapably to the conclusion
    that the facts of the instant case are legally
    indistinguishable from previous cases. Thus we
    hold that Upper Providence Township has not
    provided a "fair share" of its land for
    development of multi-family dwellings.
  • The Townships assertion that the greatest demand
    for housing in the township is for single-family
    homes on one acre lots rather proves too much.
    One need not probe too deeply into the economic
    mechanics of supply and demand to realize that
    the zoned-in scarcity of land for multi-family
    dwellings could easily create this type of demand.

60
Conclusion
  • Note The Penn. Courts have already adopted a
    fair share formula following Mt. Laurel. The
    court now has some 10 years of experience in
    facing discriminatory ordinance
  • The final action of the Court is to invalidate
    the ordinance order a new study and plan
    prepared and grant Surrick a builders remedy
    (issue the permits now)

61
Upper Providence Township 2001
2000 Land Use Map 98 residential 1
commercial 1 industrial Average housing price
700,000
62
Britton v Town of Chester, 1991
  • The town of Chester lies in the west-central
    portion of Rockingham County, thirteen miles east
    of the city of Manchester. The available housing
    stock is principally single-family homes. There
    is no municipal sewer or water service, and other
    municipal services remain modest. The town has
    not encouraged industrial or commercial
    development it is a "bedroom community," with
    the majority of its labor force commuting to
    Manchester. Because of its close proximity to job
    centers and the ready availability of vacant
    land, the town is projected to have among the
    highest growth rates in New Hampshire over the
    next two decades.

63
Location
64
Class Action Suit
  • There are two sets of plaintiff's in this case
  • A group of low income persons represented by
    George Edwards, a woodcutter, who grew up in the
    town. He lives in Chester with his wife and three
    minor children in a one-bedroom, thirty-foot by
    eight-foot camper trailer with no running water.
    Their annual income is 14,040, which places
    them in the low-income category. Roger McFarland
    grew up and works in the town. He lives in Derry
    with his wife and three teenage children in a
    two-bedroom apartment which is too small to meet
    their needs. He and his wife both work, and their
    combined annual income is 24,000.
  • The other plaintiff is Raymond Remillard, home
    builder, who has been trying to build moderate
    cost housing since 1979

65
The Zoning Ordinance
  • The zoning ordinance in effect at the beginning
    of this action in 1985 provided for a
    single-family home on a two-acre lot or a duplex
    on a three-acre lot, and it excluded multi-family
    housing from all five zoning districts in the
    town
  • The ordinance was amended in 1986 to permit
    multi-family housing as part of a Planned Unit
    Development
  • George Remillard applied for the Planned Unit
    Development overlay but was denied he brought
    suit in district court

66
The Trial Court
  • FINDINGS
  • Under the ordinance, PUDs are allowed on tracts
    of not less than twenty acres in two designated
    "R-2" (medium-density residential) zoning
    districts.
  • Due to existing home construction and
    environmental considerations, such as wet-lands
    and steep slopes, only slightly more than half of
    all the land in the two R-2 districts could
    reasonably be used for multi-family development.
    This constitutes only 1.73 of the land in the
    town

67
The PUD Ordinance
  • THE PUD ORDINANCE IS DEFECTIVE
  • The PUD requires approval by the Town Board and
    the Planning Commission in such a way that there
    are no objective standards
  • The developer may be required to hire a
    hydrologist, engineer, architect and other
    professionals to assist the Planning Board
  • The trial court found that the ordinance itself
    was discriminatory and did not address the fair
    share needs of its region
  • The trial court invalidates the entire zoning
    ordinance and orders building permits for
    Remillard

68
The Town of Chester Appeals
  • Chester appeals and says we are not required to
    serve the needs of outsiders only the people of
    the town of Chester
  • The Supreme Court says we have already sent a
    message to zoning bodies (in Beck) that "towns
    may not refuse to confront the future by building
    a moat around themselves and pulling up the
    drawbridge." Id. The town of Chester appears
    willing to lower that bridge only for people who
    can afford a single-family home on a two-acre lot
    or a duplex on a three-acre lot. Others are
    realistically prohibited from crossing.

69
"Equity will not suffer a wrong without a remedy."
  • Chester denies that the trial court had the power
    to (in effect) rezone the tract my granting a
    builders remedy
  • Since 1979, Remillard has attempted to obtain
    permission to build a moderate-sized multi-family
    housing development on his land in Chester. He is
    committed to setting aside a minimum of ten of
    the forty-eight units for low- and
    moderate-income tenants for twenty years.
  • Hence, we hold that the "builder's remedy" is
    appropriate in this case, both to compensate the
    developer who has invested substantial time and
    resources in pursuing this litigation, and as the
    most likely means of insuring that low- and
    moderate-income housing is actually built.

70
Conclusion
  • The zoning ordinance evolved as an innovative
    means to counter the problems of uncontrolled
    growth. It was never conceived to be a device to
    facilitate the use of governmental power to
    prevent access to a municipality by "outsiders of
    any disadvantaged social or economic group."
  • The town of Chester has adopted a zoning
    ordinance which is blatantly exclusionary. This
    court will not condone the town's conduct.

71
Celebration in Chester NH
72
(No Transcript)
73
And, Mobile Homes
Clark v Winnebago County
74
Clark v Winnebago County, 1987
  • Clark County has adopted a zoning ordinance that
    regulates the uses of land within the County.
  • The ordinance establishes the zoning
    classification of "Mobile Home District" as a
    separate district and provides that, with limited
    exceptions, mobile homes may not be located
    outside a mobile home district.
  • It additionally sets forth certain performance
    standards for mobile home parks located within
    such a district.

75
Description
  • Clarks property is currently zoned agricultural.
    The property is surrounded by land zoned for low
    density residential
  • Clark filed to rezone his property to two
    classifications
  • R-1 Single Family residential
  • MH Mobile Home Park District
  • The County Commission grants the R-1 zoning and
    denies the mobile home zoning designation

76
The Clark Family
Deron and Deronette Clark
Mr. And Mrs. Clark We are not trailer trash
77
Clarks Contentions
  • Clark contends that there is no rational basis
    for discriminating against mobile homes they
    are, after all, a form of single family housing
  • Clark contends that this is a violation of his
    equal protection rights since there is no
    substantial difference between site built and
    mobile homes

Clarks Lawyer Denephew Brisious A person
should be able to live where they want
78
The Trial
  • After a trial on the merits, the district court
    concluded that neither the ordinance nor the
    zoning decision was so irrational or unrelated to
    the general welfare as to implicate the
    fourteenth amendment. Clark appeals.
  • The Supreme Court agrees with the district court
    that Clark failed to establish that the ordinance
    is clearly unrelated to a legitimate governmental
    interest. Mobile home parks are a sufficiently
    distinct use of land to justify their separate
    classification for zoning purposes.
  • For instance, mobile home parks, with their
    smaller lot sizes, affect population density, and
    the County unquestionably has a right to control
    the orderly development of the community by
    regulating density.

79
The Clarks Lose
I just cant see it, said Mr. Clark, my mobile
home looks just the like houses of those scum
sucking Planning Commissioners
80
Stonewood v Bells and Barrackville, 1980 West
Virginia
  • The Town of Barrackville adopted a zoning
    ordinance that prohibited mobile homes other than
    in an existing mobile home park
  • The Town of Stonewood also adopted an ordinance
    restricting mobile homes to parks and prohibiting
    the formation of any additional mobile home parks
  • Grandfather clauses allow existing mobile homes
    to stay in place

81
The Controversy
  • In June of 1977, Russell and Dora Bell placed a
    mobile home on lots lying within the town limits
    of Stonewood. Two months later Stonewood, through
    its legal counsel, notified the Bells that the
    placement of their mobile home violated the
    aforementioned ordinance and requested that the
    mobile home be removed. The Bells refused to
    remove the mobile home.
  • Stonewood connected the Bell's mobile home to the
    town's water system under the mistaken impression
    that the mobile home was without the town limits.
    Upon discovering that the mobile home was within
    the town limits, Stonewood refunded to the Bells
    an amount representing the extra fee charged to
    persons outside the town limits who desire the
    town's water service..

82
And Now, The Flowers
  • In April of 1979, Ruth Flowers and her daughter
    and son-in-law, Judy and Joseph Griffin, appeared
    before the Barrackville town council and
    requested permission to locate a mobile home on
    property owned by them. They sought this use
    under an ordinance which provides a procedure for
    obtaining permission from the town council to
    place a mobile home outside a trailer court.
  • The town council denied the appellants' request.
    Despite this denial, Ruth Flowers moved her
    mobile home from a trailer court to the property
    owned by her daughter and son-in-law.
  • Subsequently, Barrackville brought an action to
    remove the home.

83
Mrs. Flowers Is Mad
If they think I am going to move my mobile home
then they can all go to hell. They will have to
shoot me first. Corettea Flowers
84
The Trial Court
  • Both towns moved for summary judgment and the
    court granted an injunction
  • Both parties are ordered to remove their mobile
    home
  • The Bells and the Flowers appealed
  • The ordinances violated the substantive due
    process clause of the 14th amendment
  • The ordinances constitute a violation of the
    equal protection clause

85
The Appeals Court
  • A Virginia statute allows communities to adopt
    ordinances restricting mobile home to parks
    regardless of whether or not they have a
    comprehensive zoning plan
  • The court upholds this statute in recognition
    that many small, rural towns would have
    difficulty adopting a zoning ordinance and
    maintaining a planning commission

86
Equal Protection Substantive Due Process
  • We are unable to say that the towns of Stonewood
    and Barrackville have unreasonably or arbitrarily
    restricted the placement of mobile homes.
  • We are not here dealing with an absolute
    exclusion of mobile homes. If we were, our
    analysis would necessitate a different approach
  • The concept of "community" embraces not only the
    idea of a group of people living together in a
    given area, but also that those people will live
    together harmoniously. The appellants will share
    the benefits and the burdens of these exercises
    of the police power and it would be not only
    disruptive but inappropriate for us to strike
    down an ordinance which substantially advances a
    legitimate legislative goal.

87
Zoning And Land Use Restrictions and Racial
Discrimination
  • The Historical Cases
  • Yick Wo v Hopkins
  • Buchanan v Warley
  • Dailey v Lawton
  • Shelly v Kraemer

88
The Civil Rights Acts
  • Civil Rights Act of 1868
  • The Civil Rights Act of 1866, passed in March of
    that year by Radical Republicans in Congress over
    a veto by President Andrew Johnson, declared
    African Americans to be citizens and granted them
    equal protection of the laws in matters of
    contracts, lawsuits, trials, property
    transactions, and purchases, and it attached
    penalties for violations of these rights
  • Civil Rights Act of 1871
  • Voting rights

89
Civil Rights
  • Civil Rights Act of 1875
  • The Civil Rights Act of 1875 sought to guarantee
    freedom of access, regardless of race, to the
    "full and equal enjoyment" of inns, public
    conveyances and public places of amusement.
    Citizens were given the right to sue for personal
    damages. Federal courts were given exclusive
    jurisdiction over all cases arising under the
    act.
  • Civil Rights Act of 1957
  • Established the Commission on Civil Rights and
    created the Civil Rights Enforcement Division in
    the Dept. of Justice

90
Civil Rights
  • Civil Rights Act of 1964
  • Its eleven titles combated voter discrimination,
    funded school desegregation, renewed the Civil
    Rights Commission another four years, banned use
    of federal funds for schools or programs which
    discriminated, banned discrimination in
    employment and unions, barred federal courts from
    remanding civil rights cases back to state or
    local courts, established the right to a jury
    trial for in cases involving the act, and more
  • Civil Rights Act of 1968
  • The Fair Housing Act

91
Yick Wo - Background
  • By 1880 about 10 percent of the population of
    California was Chinese
  • About half lived in the San Francisco area
  • Because of discriminatory laws they tended to
    concentrate in certain industries mining,
    railroad, cigar making, laundries, and garments
  • The Yellow Press frequently characterized Chinese
    laundries as Opium Dens

92
Yick Wo v Hopkins, 1886
  • Yick Wo was a citizen of China residing in San
    Francisco
  • Yick Wo was arrested, fined 10, and sentenced to
    10 days in jail for violating a city ordinance
    prohibiting a laundry in a wooden building
  • The ordinance stated that It shall be unlawful,
    from and after the passage of this order, for any
    person or persons to establish, maintain, or
    carry on a laundry within the corporate limits of
    the city and county of San Francisco without
    having first obtained the consent of the board of
    supervisors, except the same be located in a
    building constructed either of brick or stone.

93
Inspection
  • The Board of Supervisors could have issued a
    certificate of compliance for Yick Wos wooden
    frame laundry building if it found it to be safe
  • The trail court and the California Appeals courts
    upheld the conviction and the ordinance as a
    valid exercise of the police power
  • The U.S. Supreme Court accepted the case under a
    writ of habeas corpus

94
The Complaint
  • There were about 320 laundries in the city and
    county of San Francisco, of which about 240 were
    owned and conducted by subjects of China, and of
    the whole number, 320, about 310 were constructed
    of wood, the same material that constitutes
    nine-tenths of the houses in the city of San
    Francisco
  • Yick Wo claims that 150 Chinese operators have
    been arrested for violating the ordinance.
    However, 80 non-Chinese operators, who own wooden
    frame laundries were not arrested

95
Further Facts
  • About 200 Chinese owners petitioned the Board for
    permission to operate their laundries all were
    denied
  • All the non-Chinese who petitioned to operate
    their laundries (with the exception of one woman)
    were granted permits
  • All the Chinese owners were ordered to tear down
    their buildings and reconstruct them from stone
    or brick

96
The Decision
  • The power given to the Board of Supervisors to
    approve or disapprove the operation of wooden
    laundries is arbitrary, standard less, and
    violates the subjects equal protection
  • The fourteenth amendment to the constitution is
    not confined to the protection of citizens. it
    says "Nor shall any state deprive any person of
    life, liberty, or property without due process of
    law nor deny to any person within its
    jurisdiction the equal protection of the laws."
    These provisions are universal in their
    application, to all persons within the
    territorial jurisdiction, without regard to any
    differences of race, of color, or of nationality
    and the equal protection of the laws is a pledge
    of the protection of equal laws

97
Conclusion
  • The fact of this discrimination is admitted. No
    reason for it is shown, and the conclusion cannot
    be resisted that no reason for it exists except
    hostility to the race and nationality to which
    the petitioners belong, and which, in the eye of
    the law, is not justified
  • This discrimination is therefore illegal, and the
    public administration which enforces it is a
    denial of the equal protection of the laws, and a
    violation of the fourteenth amendment of the
    constitution

98
Facially Discriminatory Racial Laws in Housing
  • There was a great resurgence of local laws after
    1912 designed to assure that the White and
    Non-White races could not co-mingle in the
    workplace, in public places, and in neighborhoods
  • These municipal laws were based on the theory
    that the co-mingling of races would encourage
    over familiarity and lead to misogamy

99
Buchanan v Warely, 1917
  • Buchanan, a person of color, signed a contract to
    purchase a home in Louisville, KY.
  • The contract was subject to a clause that read
  • 'It is understood that I am purchasing the above
    property for the purpose of having erected
    thereon a house which I propose to make my
    residence, and it is a distinct part of this
    agreement that I shall not be required to accept
    a deed to the above property or to pay for said
    property unless I have the right under the laws
    of the state of Kentucky and the city of
    Louisville to occupy said property as a residence

100
Executing the Contract
  • Buchanan tried to purchase a home in a block
    where 10 homes were occupied by Caucasians and
    two homes were owner by persons of color
  • Louisville, in 1911, had adopted an ordinance
    with the following title
  • 'An ordinance to prevent conflict and ill-feeling
    between the white and colored races in the city
    of Louisville, and to preserve the public peace
    and promote the general welfare, by making
    reasonable provisions requiring, as far as
    practicable, the use of separate blocks, for
    residences, places of abode, and places of
    assembly by white and colored people
    respectively.'

101
What The Ordinance Said
  • It is made unlawful for any colored person to
    move into and occupy as a residence, place of
    abode, or to establish and maintain as a place of
    public assembly any house upon any block upon
    which a greater number of houses are occupied as
    residences, places of abode, or places of public
    assembly by white people than are occupied as
    residences, places of abode, or places of public
    assembly by colored people
  • It is also unlawful for any white persons to move
    into and occupy as a residence. or public
    assembly by colored persons.

102
Simply Put
  • If any block is occupied by a majority of persons
    of color, and white person cannot occupy a
    residence in that block
  • If any block is occupied by a majority of white
    persons, a persons of color cannot occupy a
    residence in that block

103
The Persons and Moves
  • The property in question was sold by a white man
    to an Afro-American named Buchanan
  • Buchanan sought to have the contract enforced by
    the trial court because he could not take
    possession of the house
  • The trial court ruled that the contract was
    impaired and order the money returned to Buchanan
  • Buchanan appeal to the Ky. Supreme Court in that
    the ordinance violated his civil rights and his
    equal protection rights

104
The Civil Rights
  • The Civil Rights Act of 1866
  • 'All citizens of the United States shall have the
    same right, in every state and territory, as is
    enjoyed by white citizens thereof to inherit,
    purchase, lease, sell, hold and convey real and
    personal property
  • The Civil Rights Act of 1870
  • 'All persons within the jurisdiction of the
    United States shall have the same right in every
    state and territory to make and enforce contracts
    to sue, be parties, give evidence, and to the
    full and equal benefit of all laws and
    proceedings for the security of person and
    property as is enjoyed by white citizens, and
    shall be subject to like punishment, pains,
    penalties, taxes, licenses and exactions of every
    kind, and none other.

105
Plessy v Ferguson
  • Louisville insists that Plessy v. Ferguson is
    controlling in principle in favor of the judgment
    of the court below. In that case this court held
    that a provision of a statute of Louisiana
    requiring railway companies carrying passengers
    to provide in their coaches equal but separate
    accommodations for the white and colored races
    did not run counter to the provisions of the
    Fourteenth Amendment. It is to be observed that
    in that case there was no attempt to deprive
    persons of color of transportation in the coaches
    of the public carrier, and the express
    requirements were for equal though separate
    accommodations for the white and colored races.
    In Plessy v. Ferguson, classification of
    accommodations was permitted upon the basis of
    equality for both races.

106
Louisvilles Other Argument
  • This ordinance gives equal treatment to both
    races
  • Although whites can exclude blacks from a
    neighborhood blacks may likewise exclude whites
    from their neighborhoods
  • The Court notes that this is rather like saying
    that since white can exclude backs from their
    neighborhood, blacks can exclude whites from
    their slums

107
The Louisville Ordinance
  • The effect of the ordinance under consideration
    was not merely to regulate a business or the
    like, but was to destroy the right of the
    individual to acquire, enjoy, and dispose of his
    property. Being of this character it was void as
    being opposed to the due process clause of the
    Constitution
  • That there exists a serious and difficult problem
    arising from a feeling of race hostility which
    the law is powerless to control, and to which it
    must give a measure of consideration, may be
    freely admitted. But its solution cannot be
    promoted by depriving citizens of their
    constitutional rights and privileges.

108
Conclusion
  • The case presented does not deal with an attempt
    to prohibit the amalgamation of the races. The
    right which the ordinance annulled was the civil
    right of a white man to dispose of his property
    if he saw fit to do so to a person of color and
    of a colored person to make such disposition to a
    white person.
  • We think this attempt to prevent the alienation
    of the property in question to a person of color
    was not a legitimate exercise of the police power
    of the state, and is in direct violation of the
    fundamental law enacted in the Fourteenth
    Amendment of the Constitution preventing state
    interference with property rights except by due
    process of law.

109
The Private Side Shelly v Kraemer, 1948
  • A restrictive covenant, signed by 30 of 39
    property owners in St. Louis, contained the
    following clauses
  • This property shall not be used or occupied by
    any person or persons except those of the
    Caucasian race.
  • It is further agreed that this restriction shall
    not be effective unless at least eighty percent
    of the property fronting on both sides of the
    street in the block where our land is located is
    subjected to this or a similar restriction
  • This agreement was made in 1911 and is to run for
    50 years

110
The Facts
  • In 1944 the Shellys purchased a lot from a Mr.
    Fitzgerald subject to the covenant
  • The Shellys are Afro-American
  • The co-covenantors brought suit in district court
  • The trial court found the lots owners and order
    the Shellys to vacate the property within 90 days
  • The Shellys were enjoined not to use the property
    again in the future
  • The Missouri Supreme Court reversed this decision
    and the landowners brought an appeal

111
The U.S. Supreme Court
  • Use of the properties for residential occupancy,
    as such, is not forbidden. The restrictions of
    these agreements, rather, are directed toward a
    designated class of persons and seek to determine
    who may and who may not own or make use of the
    properties for residential purposes. The excluded
    class is defined wholly in terms of race or
    color "simply that, and nothing more
  • It cannot be doubted that among the civil rights
    intended to be protected from discriminatory
    state action by the Fourteenth Amendment are the
    rights to acquire, enjoy, own and dispose of
    property

112
The Courts Reasoning
  • These restrictions do not involve action by state
    legislatures or city councils
  • They are determined by restrictions imposed by
    private individuals
  • Participation of the State consists in the
    enforcement of these restrictions
  • The 14th Amendment erects no barriers against
    merely private conduct, however discriminatory or
    wrongful

113
Arguments By the State
  • The State urges that equal protection is granted
    because the covenant would be enforced against
    white and black alike
  • The State also asserts that to deny whites access
    to the courts to enforce their contracts is in
    itself a denial of equal protection

114
Conclusion
  • These restrictions, standing alone, do not
    violate the 14th Amendment
  • As long as the purpose is effectuated by
    voluntary adherence to the terms, and no State
    action involved, there can be no violation
  • However, in this case the Missouri Courts moved
    to enforce the restrictions by penalties and
    sanctions
  • Therefore, there has been State action in the
    full and complete sense of the word
  • The action of the State courts is void and the
    property is returned to the Shellys

115
Dailey v City of Lawton, OK 1970
  • In 1970 the City of Lawton is still highly
    racially segregated. The Catholic School Tract is
    located in the heart of the white section of the
    community
  • Prior to 1962 Block 26 was open space owned by
    the City of Lawton
  • In 1962 the tract was sold to the Catholic Bishop
    of Oklahoma which was used for school purposes
  • In 1966 the Bishop conveyed the land to a
    non-profit corporation Columbia Square, Inc
  • At the time of the transfer the tract was zoned
    FP to permit schools, churches, and public uses

116
Dailey v City of Lawton, 1970
  • Columbia Square, Inc. planned a three rise
    apartment building on 7.6 acres on what is known
    as Block 26
  • The tract is surrounded by R-4 zoning districts
    the highest density residential districts
    permitted in Lawton
  • Calculations indicate the the final density on
    the Columbia Square tract would equal
    approximately 60 of the surrounding density
  • No report by the City indicated excess density of
    traffic congestion

117
Columbia Square Site
Catholic School Tract
Various Apartments Zoned R-4
James Addition 3 rise apartments
Livingston Apts. Complex
118
Actions
  • Columbia Square applied for rezoning from FP to
    R-4 and is denied twice and receives threatening
    phone calls
  • A petition was circulated by the surrounding
    residents and returned to the Planning Commission
    with 320 signatures
  • All the signers of the petition were white
  • The petition alleged that
  • Over density and crowding
  • Traffic congestion
  • Too many units on the tract

119
Citys Actions
  • The one dissenting planning commissioner states
    that the reason for denial was racial bias
  • The City Council upholds the Planning Commission
    and makes the following findings
  • Too much density
  • Over crowding of local schools
  • Over burdening of local fire fighting capability
  • No recreation facilities
  • No City Official testified in support of the
    findings, and no data were gathered to justify
    the allegations

120
City Claims
  • The City claims that the neighborhood has the
    right to a continuation of Block 26 conveyed to
    Lawton by the U.S. Government for school purposes
  • The City states that there was no racial bias
    involved in the final decision it was based
    solely on the desire to prevent over crowding of
    facilities
  • Since was bias was never discussed it cannot be
    used as an argument for over turning the zoning
    decision

121
Courts View
  • The U.S. District Court holds that the actions of
    the City with respect to the rezoning decision
    were arbitrary, capricious and racially motivated
  • The Court holds that the decision was "a direct
    result of the bias and prejudice on the part of
    the owners of other property in North Addition,
    which feeling carried over" to the members of
    those bodies that the motivation for the denial
    of the zoning change "was to keep a large
    concentration of Negroes and other minority
    groups from living in North Addition and the fear
    of the property owners that such project as
    proposed by the plaintiff would bring about a
    depreciation in property values in the district."

122
The Appeal
  • Lawton appeals the decision to the U.S. Court of
    Appeals
  • The main argument of the City remains that since
    racial bias was never openly shown or discussed
    it cannot simply be assumed
  • Besides, argues the City, the majority of
    residents in Lawton that would qualify for this
    housing are WHITE

123
Decision
  • The Court says If proof of a civil right
    violation depends on an open statement by an
    official of an intent to discriminate, the
    Fourteenth Amendment offers little solace to
    those seeking its protection. In our opinion it
    is enough for the complaining parties to show
    that the local officials are effectuating the
    discriminatory designs of private individuals
  • The racial prejudice alleged and established by
    the plaintiffs must be met by something more than
    bald, conclusory assertions that the action was
    taken for other than discriminatory reasons.

124
Stormfront Website
125
United States v City of Black Jack, 1975
126
The Background
  • Black Jack was an unincorporated area governed by
    St. Louis County. In 1970 it had a population of
    3,500. In 2000, Black Jack has 6,134 residents
  • In 1970 the County adopted a master plan which
    designated a site in Black Jack for multi-family
    use to further their scattered site affordable
    housing policy
  • An option to purchase the designated tract was
    taken by the Inter-Religious Center for Urban
    Affairs located in St. Louis
  • The ICUA announced its intent to apply for a
    section 236 housing project grant to build low
    and moderate income housing

127
The Residents
  • After the announcement by the ICUA the residents
    of Black Jack organized and were successful in
    incorporating the area as a city
  • The new City Council adopted a hastily prepared
    master plan and zoning ordinance
  • The zoning prohibited the construction of
    multi-family housing on the site chosen by the
    St. Louis County Master Plan

128
Some Background Facts
  • Black Jack is populated solely by Whites
  • The percentage of minorities in the City of St.
    Louis is 40.9 percent in 1970
  • The average cost of a home in Black Jack in 1970
    was 30,000
  • The proposed project in Black Jack was designed
    to accommodate persons earning between 5,000 and
    10,000 per year

129
The Situation
  • The ICUA
About PowerShow.com