Chaffee, Jay Allen

English

University of Tulsa College of Law

Tulsa Law Review Volume 12 Issue 4 1977 Zoning Law--Refusal to Rezone Which Perpetuates De Facto Segregation Does Not Violate Equal Protection Clause Unless Motivated by Discriminatory Purpose Jay Allen Chaffee Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Jay A. Chaffee, Zoning Law--Refusal to Rezone Which Perpetuates De Facto Segregation Does Not Violate Equal Protection Clause Unless Motivated by Discriminatory Purpose, 12 Tulsa L. J. 774 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol12/iss4/9 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. RECENT DEVELOPMENTSZONING LAW-RFUSAL TO REZONE WHICH PERPETUATES DEFACTO SEGREGATION DOES NOT VIOLATE EQUAL PROTECTIONCLAUSE UNLESS MOTIVATED BY DISCRIMINATORY PURPOSE. Vil-lage of Arlington Heights v. Metropolitan Housing DevelopmentCorp., 97 S. Ct. 555 (1977).Metropolitan Housing Development Corporation (MHDC) con-tracted to buy a fifteen acre tract located in the Village of ArlingtonHeights, an almost exclusively white suburb of Chicago,' in order todevelop federally funded middle and low income housing. Becausethe tract was zoned only for detached single family dwellings, the salewas made contingent on the Village's grant of a zoning variance as wellas the procurement of federal financing. In response to MHDC's re-quest for rezoning, public hearings were held before the Village's PlanBoard on the question.At these hearings, three arguments were advanced againstMHDC's request. First, concern was voiced over "the 'social issue'-the desirability. . . of introducing at this location in Arlington Heightslow and moderate income housing. . . that would probably be raciallyintegrated."2  It was also argued that the change would defeat thereasonable expectation of persons who purchased property in the arearelying on the fact that it had always been zoned for single family dwell-ings. Finally, opponents pointed out that the variance would be incon-sistent with the Plan Board's use of multiple family zoning as a bufferbetween single family dwellings and commercial or manufacturing1. The demographic breakdown of the Arlington Heights community according tothe 1970 census was 64,884 white residents and 27 black residents. Metropolitan Hous.Dev. Corp. v. Village of Arlington Heights, 517 F.2d 409, 413-14 (7th Cir. 1975). "Ac-cording to statistics of plaintiffs' expert demographer and urbanologist Pierre de Vise,Arlington Heights is the most residentially segregated community in the Chicago metro-politan area among municipalities with more than fifty thousand residents." Id. at 414n.1.2. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 97 S. Ct. 555,559 (1977).1Chaffee: Zoning Law--Refusal to Rezone Which Perpetuates De Facto SegregatPublished by TU Law Digital Commons, 2013RECENT DEVELOPMENTSareas because there was no commercial or manufacturing property ad-jacent to the tract. Following the hearings, the Plan Board deniedMHDC's request in an ambiguously-worded motion.3 The VillageBoard then adopted the Plan Board's motion.MMDC sought injunctive and declaratory relief in federal courtagainst the Board's refusal to rezone the parcel. Alleging that theBoard's denial was racially discriminatory, the plaintiffs argued that theaction violated both the fourteenth amendment and the Fair HousingAct of 1968.1 Finding that the Board's action was not racially moti-vated but rather was designed "to protect property values and the in-tegrity of the Village's zoning plan,"' the district court found in favorof the defendants. On appeal, the Seventh Circuit Court of Appealsheld that the Village's denial violated the fourteenth amendment be-cause its "ultimate effect" was discriminatory and not justified by anycountervailing interests on the part of the Village. The Supreme Court,however, rejected the Seventh Circuit's "ultimate effect" analysis and ap-pears to have firmly shut the door to equal protection challenges tozoning that further encourages de facto segregation but which cannotbe shown to have been racially motivated.Aside from the equal protection problem, two other issuesemerged in the case. The Court's treatment of the first issue, that ofwhether the plaintiffs had standing, was the final word on a questionthat had been before the Court repeatedly over the last decade. Thesecond issue, the applicability of the Fair Housing Act, which the Courtavoided, may prove important in the future.While the requirements for plaintiffs to gain standing to challenge3. Id. at 559-60.4. 42 U.S.C. §§ 3601-3631 (1970). The following two sections were pleaded atthe Supreme Court level.42 U.S.C. § 3604 (1970) provides:As made applicable by section 3603 of this title and except as exempted bysections 3603(b) and 3607 of this title, it shall be unlawful-(a) To refuse to sell or rent after the making of a bona fide offer, or to re-fuse to negotiate for the sale or rental of, or otherwise make unavailable ordeny, a dwelling to any person because of race, color, religion, or nationalorigin.42 U.S.C. § 3617 (1970) provides:It shall be unlawful to coerce, intimidate, threaten, or interfere with any personin the exercise or enjoyment of, or on account of his having exercised or en-joyed, or on account of his having aided or encouraged any other person onthe exercise or enjoyment of, any right granted or protected by section 3603,3604, 3605, or 3606 of this title. This section may be enforced by appropriatecivil action.5. Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 373 F. Supp.208, 211 (N.D. 111. 1974).1977]2Tulsa Law Review, Vol. 12 [2013], Iss. 4, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol12/iss4/9TULSA LAW JOURNAL [Vol. 12:774zoning decisions were earlier set down in Warth v. Seldin,6 ArlingtonHeights was the Court's first opportunity to apply the Warth test. Priorto Warth, courts had been divided on the questions of whether individu-als unassociated with the community involved" or developers in thosecommunities" could base zoning challenges on violations of the rightsof third parties. In Warth, the Supreme Court restricted some courts'interpretation of the requirements for standing by requiring that aplaintiff show that he himself is injured by the challenged action of thedefendant and that the injury be fairly traceable to the defendant'sacts. 9 In Arlington Heights, the Court clearly applied the Warth test;plaintiffs were able to assert equal protection violations because oneof the plaintiffs included a black man who testified that he would livein Arlington Heights if the housing project was completed. 10Rejected in the district court because no specific section was reliedon and ignored in the court of appeals, the Fair Housing Act questionwas remanded by the Supreme Court. Even though the question hasreceived little attention thus far," the Act has been the basis of onecourt's invalidation of a system of restrictive zoning"2 and could wellbecome important in light of the Court's treatment of the equal protec-tion challenge in Arlington Heights.6. 422 U.S. 490 (1975). This case dealt with nonresidents who, without propertyinterests, sought standing to challenge the alleged exclusionary zoning practices of Penn-field, New York. They were joined by several developers who also had no property in-terests in the town. The Court ruled that the plaintiffs had not shown sufficient injury-in-fact to acquire standing and therefore did not reach the merits of the case. Foranalysis of this case, see Note, Warth v. Seldin: Nonresidents Lack Standing to ChallengeExclusionary Zoning Laws, 5 CAP. L. Rv. 351 (1976); Comment, Warth v. Seldin:More Restrictive Requirements of Standing and Ripeness in Federal Actions ChallengingExclusionary Zoning, 12 NEw ENGLAND L. REV. 161 (1976).7. See, e.g., Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208 (8thCir. 1972); Crow v. Brown 457 F.2d 788 (5th Cir. 1972).8. See, e.g., Kennedy Park Homes Assn. v. City of Lackawana, 436 F.2d 108 (2ndCir. 1970), cert. denied, 401 U.S. 1010 (1971); United Farmworkers of Florida HousingProject, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974).9. 422 U.S. at 508. See also United States v. SCRAP, 412 U.S. 669, 688 (1973).10. The development corporation also met the standing requirement because denialof the rezoning classification represented an absolute barrier to the housing project.11. The plaintiffs failed to press the allegation of a violation of the Fair HousingAct at either the district or circuit court level.12. In United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974),cert. denied, 422 U.S. 1402 (1975), an action was brought by the United States againstthe city alleging that through adoption of a zoning ordinance prohibiting the construc-tion of any multiple-family dwellings the City had interferred with the right to equalhousing opportunity in violation of 42 U.S.C. § 3617 and had denied persons housingon the basis of race in violation of 42 U.S.C. § 3604(a). The court held that the burdenof proof in an action under the above statutory sections was proof that the defendantsaction "actually or predictably results in racial discrimination; in other words that it has3Chaffee: Zoning Law--Refusal to Rezone Which Perpetuates De Facto SegregatPublished by TU Law Digital Commons, 201319771 RECENT DEVELOPMENTSThe district court's rejection of the equal protection argumenthinged on the plaintiff's failure to establish either a discriminatorymotive on the part of the Village' s or the racially discriminatory effectof its refusal to rezone the property. 4 While the court of appeals os-tensibly concluded that the district court's findings were not clearly er-roneous, it was willing to overturn the Village's action because it failedto satisfy what the court felt was the additional requirement that theaction not be discriminatory in "its historical context and ultimateeffect."'" Applying this test, the court found the Village's action dis-criminatory, despite evidence that there was other property availablein the Village for low and middle income housing, because the refusalwas likely to foreclose any other similar developments in the future andthus perpetuate the Village's racial composition.The Supreme Court rejected the court of appeals' assumption thatgovernmental action could be discriminatory simply because it had aracially disportionate impact. Relying on the 1976 case of Washingtonv. Davis,'6 the Court held that "[plroof of racially discriminatory intenta discriminatory effect." 508 F.2d at 1184. The court went on to say that "the plaintiffneed make no showing whatsoever that the action resulting in racial discrimination inhousing was racially motivated." Id. at 1185.The City of Black Jack, like the Village of Arlington Heights, was ninety-nine per-cent white and their zoning practices effectively denied access to all minorities in themoderate or low income bracket. Whether the Eighth Circuit's interpretation of theFair Housing Act would be sustained today is questionable. The court of appeals de-cision relied heavily on several cases that subsequently have been disapproved of by theSupreme Court. See Washington v. Davis, 426 U.S. 229, 245, n.12 (1976); note 16infra. For further analysis, see Note, Inadequacy of Judicial Remedies in Cases of Ex-clusionary Zoning, 74 MIcH. L. REv. 760 (1976).13. The court did admit that plaintiffs had proven that the highest and best use forthe disputed tract would be for multiple-family dwellings. However, there were enoughother factors present to uphold the zoning board's decision. These factors included thefact that the proposed rezoning was a deviation from the systematic development plan,recognition of injury to home values in surrounding areas, and the existence of availablevacant tracts previously zoned for multiple-family dwellings. 373 F. Supp. at 211.14. The district court held that plaintiffs failed to prove discrimination "againstracial minorities as distinguished from the under-privileged generally." Id. at 210.15. 517 F.2d at 413-14. For further analysis of the court of appeals decision onthe equal protection issue, see Note, Metropolitan Housing Development Corporationv. Village of Arlington Heights: A New Discriminatory Effect in Zoning, 9 J. MAR. J.oF PRAC. and Paoc. 533 (1976); Note, Zoning- Equal Protection, 1976 Wis. L.R y. 234 (1976).16. 426 U.S. 229 (1975). Washington dealt with a challenge by Negro police ap-plicants who were rejected because they failed to pass a verbal skills test. Plaintiffs ar-gued that the test bore no relationship to job performance and that a disproportionatenumber of black applicants were failing and, therefore, being excluded from the policeforce. After holding that the disproportionate racial impact was insufficient to triggerstrict scrutiny, the Court overruled a large number of equal protection cases:Cases dealing with public employment include: Chance v. Board of Examiners,458 F.2d 1167, 1176-1177 (CA2 1972); Castro v. Beecher, 459 F.2d 725, 732-4Tulsa Law Review, Vol. 12 [2013], Iss. 4, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol12/iss4/9TULSA LAW JOURNAL [Vol. 12:774or purpose is required to show a violation of the Equal ProtectionClause. '17  While not requiring that the motivation be "'dominant' or'primary,"' the Court held that such intent had to be shown to be a"motivating factor" in a zoning decision. While recognizing that theeffect of a zoning decision may reflect a discriminatory intent, the Courtmade it clear that this alone would be insufficient to establish suchintent.' 8Apart from this cases, the Court gave several examples of howdiscriminatory intent could be established:The historical background of the decision is one evidentarysource, particularly if it reveals a series of official actionstaken for invidious purposes. . . . [Others are] [t]he specificsequence of events leading up to the challenged deci-sion . . . [and] departures from the normal procedural se-quence ....The legislative or administrative history may be highlyrelevant, especially where there are contemporary statementsby members of the decisionmaking body, minutes of its meet-ings, or reports.19In Arlington Heights, the Supreme Court has continued theconsolidation of local zoning powers evidenced in recent cases.20  Even733 (CAI 1972); Bridgeport Guardians v. Bridgeport Civil Service Comn'n,482 F.2d 1333, 1337 (CA2 1973); Harper v. Mayor of Baltimore, 359 F. Supp.1187, 1200 (Md.), affd in pertinent part sub nom. Harper v. Kloster, 486 F.2d1134 (CA4 1973); Douglas v. Hampton, 168 U.S. App. D.C. 62, 67, 512 F.2d976, 981 (1975); cert. pending, No. 75-1026. There are also District Courtcases: Wade v. Mississippi Cooperative Extension Serv., 372 F. Supp. 126, 143(ND Miss. 1974); Arnold v. Ballard, 300 F. Supp. 723, 736 737 (ND Ohio.1975); United States v. City of Chicago, 385 F. Supp. 543, 553 (ND Ill.1974); Fowler v. Schwarzwalder, 351 F. Supp. 721, 724 (Minn. 1972), rev'don other grounds, 498 F.2d 143 (CA8 1974).In other contexts there are Norwalk CORE v. Norwalk RedevelopmentAgency, 395 F.2d 920 (CA2 1968) (urban renewal); Kennedy Park HomesAssn. v. City of Lackawanna, 436 F.2d 108, 114 (CA2 1970), cert. denied,401 U.S. 1010 (1971) (zoning); Southern Alameda Spanish Speaking Organ-ization v. Union City, 424 F.2d 291 (CA9 1970) (dictum) (zoning); Metro-politan H. D. Corp. v. Village of Arlington Heights, 517 F.2d 409 (CA7), cert.granted, 423 U.S. 1030 (1975) (zoning); Gautreaux v. Romney, 448 F.2d 731,738 (CA7 1971) (dictum) (public housing); Crow v. Brown, 332 F. Supp.382, 391 (ND Ga. 1971), affd, 457 F.2d 788 (CA5 1972) (public housing);Hawkins v. Town of Shaw, 437 F.2d 1286 (CA5 1971), afid on rehearing enbane, 461 F.2d 1171 (1972) (municipal services). The cases impressivelydemonstrate that there is another side to the issue; but, with all due respect,to the extent that those cases rested on or expressed the view that proof ondiscriminatory racial purpose is unnecessary in making out an equal protectionviolation, we are in disagreement.426 U.S. at 244-45, n.12 (emphasis added).17. 97 S. Ct. at 563.18. Justice Powell noted that disproportionate impact of official action would pro-vide only "an important starting point". Id. at 564.19. Id. at 564-65.20. See, e.g., Construction Indus. Assoc. v. City of Petaluma, 522 F.2d 897 (9th5Chaffee: Zoning Law--Refusal to Rezone Which Perpetuates De Facto SegregatPublished by TU Law Digital Commons, 2013RECENT DEVELOPMENTSthough not entirely foreclosing challenges based on circumstantial evi-dence of discriminatory intent, the Court's action has substantiallydiminished the likelihood that equal protection challenges will besuccessful in the future. As the resolution of the case suggests, theburden of proof placed on a challenger in such circumstances will beextremely difficult to overcome.If discriminatory intent was not clearly a factor motivating theVillage to refuse the requested variance, which likely would have in-creased the black population over 1000%,21 then it appears thatmunicipal leaders who are sufficiently cautious in making no discrimi-natory statements and offering nonracial rationalizations are free to en-gage in zoning that has clear discriminatory effects. At present, thethe Fair Housing Act appears to be the only potential barrier to suchaction. Arlington Heights may also be significant because it providessome indication how the question will be treated in the courts.Jay Allen ChaffeeCir. 1975), cert. denied, 424 U.S. 934 (1976); Village of Belle Terre v. Boraas, 416U.S. 1 (1974). But see Moore v. City of East Cleveland, Ohio, 97 S. Ct. 1932 (1977).21. The project would have contained 190 units and would have dramatically raisedthe black population from its former level of 27. See note 1 supra.197716Tulsa Law Review, Vol. 12 [2013], Iss. 4, Art. 9https://digitalcommons.law.utulsa.edu/tlr/vol12/iss4/9

Zoning Law--Refusal to Rezone Which Perpetuates De Facto Segregation Does Not Violate Equal Protection Clause Unless Motivated by Discriminatory Purpose

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Zoning Law--Refusal to Rezone Which Perpetuates De Facto Segregation Does Not Violate Equal Protection Clause Unless Motivated by Discriminatory Purpose

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