Exclusionary Practices
Racial &
Non - Racial
Overview
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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

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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
Some Discriminatory Practices
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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
National Land Investment Co. v
Easttown Township

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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
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
National Land Appeals

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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
Description
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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
King of Prussia To The North
Township Location, Founded
1704
Growth Factors

Population of Easttown
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1950 – 2,307
1960 – 6,907
1970 – 10,050
2000 – 21,500
The Court Begins The Lengthy
Analysis
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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.
Township’s Argument
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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 Easttown’s Character
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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
Court’s Analysis – Sewer System
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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
Court’s Analysis - Roads
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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
Court’s Analysis – Open Space
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Preserve Open Space?
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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 don’t you use PUD’s to collect common open
space
If you are going to implement Greenbelts why don’t you
have each developer contribute linear open space
Why just say four acre lots
Court’s Analysis – Historic Sites
and Old Homes
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We don’t understand this one!!!!
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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.
Court’s 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.
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.
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.
The Warning To Other
Communities
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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.
Easttown Land Use Map
Burlington County NAACP v Mt
Laurel, New Jersey - 1973
Some Background
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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
The Case Setting
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Mt. Laurel is a 22 sq. mile (14,000 acres) Township
located near Cherry Hill NJ some 10 miles from
Camden
The Zoning Scheme
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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)
The Residential Zoning Scheme

The ordinance provides for R-1; R-1D; R-2 and R-3
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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
The PUD Application

Mt Laurel gives tentative approval
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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
And More
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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
The Court Makes Some Findings
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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
The Central Questions
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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?
The Ruling
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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
Conclusion
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
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
Mt Laurel II, 1983 – In The Words
of the Court
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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
Laurel’s 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”
The Challenge
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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”
Removing Excessive Restrictions
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All municipalities are immediately ordered to remove
unnecessary barriers to the construction of low and
moderate income housing
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Lot lot requirements
Minimum housing size requirements
Maximum bedrooms regulations
Overuse of amenities in PUDs
Regulations that impact on the number of children
Using Affirmative Measures
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There are two basic types of affirmative measures
that a municipality can use to make the opportunity
for low and moderate income housing realistic
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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 community’s
resolve to pursue affirmative measures
Zoning For All Housing
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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
Least Cost Housing
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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
Least Cost Housing
In Re Girsh, 1969
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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
Some Background
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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
The Place – Nether Providence
Township
Place Description
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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
Girsh’s Actions
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Girsh’s 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
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.
Cause and Effect
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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."
Conclusion

The Court concludes by saying:
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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
Its Not Over
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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
Guess What?
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Girsh’s 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!”
The Judge Says What?

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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
And it Goes On
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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
Girsh Dies
Last Trip
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Girsh’s 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 “Builder’s 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
Girsh’s Last Wish
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.
Background
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
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
Township Location
Philadelphia
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.
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 multifamily dwellings are only one of more than a dozen
other uses permitted on this fraction of land.
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 Township’s 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.
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 builder’s
remedy (issue the permits now)
Upper Providence Township 2001
2000 Land
Use Map
98% residential
1% commercial
1% industrial
Average
housing price
$700,000
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.
Location
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 twobedroom 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
The Zoning Ordinance



The zoning ordinance in effect at the beginning of this
action in 1985 provided for a single-family home on a twoacre 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
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
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
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 "[t]owns
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.
"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 lowand moderate-income housing is actually built.
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.
Celebration in Chester NH
And, Mobile Homes
Clark v Winnebago County
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.
Description


Clark’s 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
The Clark Family
Deron and
Deronette Clark
Mr. And Mrs. Clark
“We are not trailer trash”
Clark’s 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
Clark’s Lawyer –
Denephew Brisious
“A person should be able
to live where they want”
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.
The 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”
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
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..
And Now, The Flowers



In April of 1979, Ruth Flowers and her daughter and son-inlaw, 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.
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
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
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
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.
Zoning And Land Use
Restrictions and Racial
Discrimination

The Historical Cases




Yick Wo v Hopkins
Buchanan v Warley
Dailey v Lawton
Shelly v Kraemer
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
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
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”
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”
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.
Inspection



The Board of Supervisors could have issued a
certificate of compliance for Yick Wo’s 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
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 ninetenths 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
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
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
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
Facially Discriminatory Racial
Laws in Housing


There was a great resurgence of local laws after
1912 designed to assure that the White and NonWhite 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
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
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.'
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. …
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
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
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.
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.
Louisville’s 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
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.
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.
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
The Facts






In 1944 the Shelly’s purchased a lot from a Mr.
Fitzgerald subject to the covenant
The Shelly’s 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
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
The Court’s 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
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
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’
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
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
Columbia Square Site
Various
Apartments
Zoned R-4
Catholic
School
Tract
Livingston Apts.
Complex
James
Addition
3 rise
apartments
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
City’s 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
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
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."
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
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.
Stormfront Website
United States v City of Black
Jack, 1975
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
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
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
The Situation




The ICUA applies for rezoning on the tract to R-3
multi-family housing
Black Jack claims over density and out of character
with its low density housing pattern
Black Jack also claims that it does not have an
affirmative obligation to provide affordable housing
for St. Louis residents
The City claims its actions are not racially biased
District Court


The ICUA raised the civil rights question to the U.S.
District Court
The Court rules for Black Jack saying:


There was no discriminatory effect because the class of
persons whose housing needs would be satisfied by the
project included 29 percent of the white population as
well as 32 percent of the minority population
Therefore, the ordinance would not have an appreciably
greater impact on minorities than on whites
The Appeals Court Reverses


No! Not right! To establish a facial case of racial
discrimination they need prove no more than the
conduct of the defendant (based on pattern and
practice) predictably results in racial discrimination –
in other words – a discriminatory effect
The ICUA need not show that the action resulting in
racial discrimination in housing was racially
motivated. Effect, not motivation, is the touchstone of
Civil Rights
Decision


The Court said that it saw a deliberate pattern and
practice on the part of suburban St. Louis
communities to systematically promote racial
discrimination in the metropolitan area
Black Jack’s patterns and actions, by there very
nature, indicate an intent to discriminate against
residents of low and moderate income housing
And Then




Black Jack was ordered to rezone the ICUA site
Black Jack delayed the rezoning for over a year and
the ICUA lost their place in the cue for HUD 236
funding
The ICUA returned to the Court asking for damages
They were awarded $450,000 in punitive damages
and Black Jack was ordered to to prepare a housing
plan that would address the needs of low and
moderate income housing
The Continuing Saga




The Court places Black Jack under a federal
injunction preventing them from taking any rezoning
action on the ICUA site other than for multi-family
housing
Black Jack takes the necessary steps to unincorporate their town to avoid payment
The ICUA returns to court
The District Court orders the former town officials to
re-incorporate the community and opens the door to
any St. Louis resident who would have qualified to for
housing to sue Black Jack
The Finale




Black Jack is once again incorporated and ordered to
levy a community tax or a bond in an amount equal to
twice its previous annual budget to pay the ICUA.
Black Jack must now fund its own low/moderate
income housing project
The irony is that the total cost to Black Jack is now
$500,000
If they would have allowed the housing project it
would have received $36,000 a year in property taxes