General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 6
September 2000



By Peter W. Salsich, Jr.

Local land use regulatory powers are delegations of the state police power expressed through state zoning and planning enabling statutes. There is no tradition of general federal oversight of local land use regulation. However, with the enactment of the Fair Housing Act in 1968, the federal government began to assert influence over local land use regulations in two areas: civil rights and environmental protection. Federal environmental laws have significant impact on local land use regulatory prerogatives through the federal permit requirement as a condition to development authorization.

Fair Housing Act. The Fair Housing Act does not specifically refer to local land use laws. Section 3604 (a), as amended, makes it unlawful to "refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." The phrase "or otherwise make unavailable or deny" has been held to include local land use regulations.

In a Second Circuit case, the court applied the disparate impact test of Title VII employment discrimination cases to strike down a refusal to rezone for multifamily housing. Under this test, discriminatory effect rather than discriminatory intent is the standard. If the plaintiff establishes a prima facie case that a land use regulation has a discriminatory effect, the burden shifts to the defendant municipality to "prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect."

Fair Housing Amendments Act. The Fair Housing Amend-ments Act (Act) expanded the protections against discrimination in the Fair Housing Act to handicapped persons and families with children under the age of 18. Important definitions include "handicapped," which does not include current, illegal use of or addiction to a controlled substance; and "familial status" which means one or more individuals under the age of 18 who are domiciled with a parent or another person having legal custody of the individual, or the designee of the parent or other person having custody. It also applies to pregnant women and persons securing legal custody of children under 18 years of age. The amendments extend § 3604 coverage to familial status and handicapped status, which impact zoning through apartment and group home controversies.

The second way in which the Act is made applicable to local land use regulations is contained in the provision adding handicapped status as a protective class. Prohibited discrimination against that class includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."

Important qualifications to the application of the Act to local land use regulations include: a statement that the amendments are not intended to invalidate or limit any law that "requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this sub-chapter," and a provision that dwellings do not have to be made available to individuals "whose tenancy would constitute a direct threat to the health and safety of other individuals or whose tenancy would result in substantial physical damage to the property of others."

Cases Applying the Amendments to Local Land Use Regulations. The first case brought under the Act involved a group home for persons with AIDS. The court concluded that a local land use decision denying a special use permit to a group house violated the Act. On the issue of standing, the court determined that persons infected with HIV were handicapped. The second issue was whether a residence for persons with AIDS-related illnesses was a dwelling. Distinguishing transient visitors from temporary or permanent inhabitants, the court concluded that a residence for HIV victims in need of a place to live is a dwelling because the persons residing there will "not be living there as transients," despite the fact that the length of stay may vary.

Section 3604 prohibitions against discrimination can be violated in two ways: through a showing of intent to discriminate or a showing that facially neutral conduct produces a discriminatory effect. Discriminatory intent is established if the local government’s action was based at least in part on the fact of the person’s membership in a protected class. In discriminatory effect cases, four factors are used to decide the merits of the case: the strength of the plaintiff’s showing of discriminatory effect; evidence of discriminatory intent; the defendant’s interest in taking the action complained of; and whether the plaintiff seeks to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. The local government’s burden is two-fold in responding to a prima facie case: whether its reasons were bona fide and legitimate and whether less discriminatory alternatives are available. The court may differentiate between plan-specific and site-specific reasons.

Most cases construing the application of the Act to local land use regulations have focused on group homes and other forms of supportive housing for persons with disabilities. The major question in these cases is whether or not a particular land use regulation constitutes a "reasonable accommodation in rules or policies." The Supreme Court has construed the reasonable accommodations provision along with the provision exempting from coverage "maximum number of occupants" laws. The Court concluded that a local ordinance defining family to include no more than five unrelated people who were permitted to live together in a single-family zone was not an exempt maximum occupancy provision because it did not apply to related people. Instead, the Court determined that it was a "family composition rule" that was subject to the reasonable accommodation standards of the Act.

Making Reasonable Accommodations. The circuits have split on how to construe the reasonable accommodations requirement. The Bazelon Center, which tracks litigation involving people with disabilities, has described the Third, Sixth, and Tenth Circuits as reading the Fair Housing Act "expansively and [as having] developed very favorable law on disparate treatment," while the Fourth, Fifth, Seventh, and Eighth Circuits have "narrowly construed reasonable accommodation," and the Ninth Circuit has adopted a "difficult disparate impact test."

Overly restrictive definitions of "family" are subject to challenge. Distance regulations for group homes are almost universally struck down. At least one court has struck down a moratorium on development of congregate living facilities. The Bazelon Center notes that overly restrictive fire and safety codes against group homes are subject to successful challenge "unless they can show that unique and specific needs and abilities" of the residents of these homes require restrictive regulations.

Peter W. Salsich, Jr., is McDonnell professor of justice at the Saint Louis University School of Law in St. Louis, Missouri, and editor-in-chief emeritus of the Journal of Affordable Housing & Community Development Law.

This article is an abridged and edited version of one that originally appeared on page 228 of the Journal of Affordable Housing and Community Development Law, Spring 2000 (9:3).


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