Recent Case Law, Disparate Impact, and Restrictive Zoning

The Fair Housing Act (“FHA”) prohibits housing discrimination, including the refusal to sell or rent housing based on race, color, religion, sex, familial status or national origin,and any policy or conduct that “otherwise make[s] unavailable or den[ies], a dwelling [based on these impermissible factors].”In 2015, the Supreme Court interpreted the “otherwise make unavailable” language of the Act to mean that the FHA includes not only claims for intentional discrimination, but also claims for disparate impact. Under the disparate impact doctrine, a defendant may be liable for facially neutral rules or policies that disproportionately favor one racial group over another. Zoning law often disfavors Blacks and Hispanics by limiting housing supply and increasing housing costs. Zoning codes generally limit the number of houses or apartments that can be built on a parcel of land. By restraining the overall supply of residences, these “minimum lot size” regulations make housing more costly. Zoning codes also make housing expensive in a variety of other ways; for example, zoning codes typically separate houses from apartments, thus limiting the supply of apartments. Because studies show that Blacks and Hispanics, on average, have lower incomes than Whites, minimum lot size requirements also tend to exclude Blacks and Hispanics from the municipalities and neighborhoods with the strictest limits. Because zoning raises housing costs, one might think that the disparate impact doctrine can easily be used to limit zoning. The purpose of this article is to examine recent case law to determine whether this is accurate. Part I of the Article describes the background of disparate impact law under the FHA, and Part II focuses on the most recent disparate impact case law in cases involving the types of zoning restrictions discussed above

How City Hall Causes Sprawl - A Case Study (Book Review)

Some commentators have labeled Atlanta, Ga. as America\u27s poster child for sprawl. Atlanta is highly auto-oriented, and suffers from higher levels of traffic congestion and air pollution than most other cities. This book review explains how sprawl happened in Atlanta - not through the mysterious invisible hand of the free market, but through transportation and zoning decisions made by city officials

Five Myths About Sprawl

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is a natural result of affluence that occurs in all urbanized societies. Bruegmann\u27s book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the role of government spending and regulations in creating sprawl and, as a result, fails to adequately discuss the possibility that sprawl can be reduced by limiting, rather than increasing, the size and intrusiveness of government

YOU CAN HAVE IT ALL: LESS SPRAWL AND PROPERTY RIGHTS TOO

Some commentators believe that smart growth and property rights are at loggerheads - and to be sure, these theories do lead to differing positions on a few issues (most notably urban growth boundaries and similar anti-sprawl regulations). But as to a wide variety of issues, smart growth advocates and property rights theorists can find common ground. Both groups can support eliminating zoning regulations that mandate automobile-dependent, sprawling development, such as single-use zoning, minimum parking requirements and minimum lot size requirements

Green Amendments Land Use and Transportation: What Could Go Wrong?

Numerous states have amended their constitutions to include a green amendment (that is, an amendment providing that the state\u27s citizens have a right to a healthy environment). Unfortunately, the vagueness of these amendments leaves an enormous amount of interpretative power to courts. This article examines how some courts have interpreted green amendments and how these interpretations risk the misuse of green amendments. Additionally, this article examines how such misuse may be avoided

Five Myths About Sprawl

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is a natural result of affluence that occurs in all urbanized societies. Bruegmann\u27s book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the role of government spending and regulations in creating sprawl and, as a result, fails to adequately discuss the possibility that sprawl can be reduced by limiting, rather than increasing, the size and intrusiveness of government

THOU SHALT NOT PUT A STUMBLING BLOCK BEFORE THE BLIND : THE AMERICANS WITH DISABILITIES ACT AND PUBLIC TRANSIT FOR THE DISABLED

The Americans with Disabilities Act (ADA), ordered local governments to make bus and train systems more accessible to the disabled, and imposed costly requirements upon local public transit systems - but did not give local governments funds with which to satisfy this mandate. By reducing the funds available to transit systems, the ADA has sometimes forced cutbacks in transit service for everyone including, ironically, the disabled to the extent that disabled people were able to use public transit before the ADA\u27s enactment). Thus, the ADA has occasionally (at least in times of budgetary austerity) been counterproductive. The ADA\u27s inadequacy is rooted in its approach to transportation policy: rather than requiring that disabled transit users be made equal to the auto-using majority, that statute requires merely that disabled transit users be made equal to other transit-dependent Americans. It follows that if a state or local government is not interested in aiding the transit-dependent disabled, it can freeze the disabled out of the transportation system by slashing service for all users of public transit - even if it increases spending on highways and other driver-related services. Thus, government can and does make the transit-dependent disabled second-class citizens by making all nondrivers second-class citizens. This article critiques the ADA\u27s inadequacy, and suggests a variety of possible solutions to the ADA\u27s problems