David L. Callies, FAICP, ACREL, is the Benjamin A. Kudo Professor of Law at the University of Hawaii Richardson School of Law, where he teaches land use, state and local government and real property. J.D., University of Michigan; LL.M., University of Nottingham, Life Member, Clare Hall College, Cambridge University. The author wishes to acknowledge and thank Brian Connally, Ed Voss, and Don Elliot, copanelists in several recent national programs on the Fair Housing Act and the Inclusive Communities decision, which helped form the basis of this paper. Derek B. Simon is an associate in the Honolulu office of Carlsmith Ball, LLP. This paper is a revised version of an article first published at 4 Journal of International and Comparative Law 39 (2017).
THE UNITED STATES HAS STRUGGLED WITH DISCRIMINATION IN HOUSING and the providing of affordable, workforce or low-income housing for decades. This paper summarizes and analyzes the problems and opportunities created in large measure by federal and state courts, together with guidance provided by the U.S. Department of Housing and Urban Development to address these issues and problems. First, the paper addresses the problem of discrimination in housing and remedies broadly provided by the U.S. Supreme Court under the U.S. Fair Housing Act (FHA) in the recent case of Inclusive Communities v. Texas Department of Community Affairs. Then follows a discussion of recent HUD guidance by way of administrative rule, together with a summary of how federal courts address discrimination in housing following the Inclusive Communities decision. Second, this paper addresses the concept of inclusionary zoning as a potential remedy for the construction of new affordable or workforce housing by placing the burden on the land development community as a condition or conditions for land development approval. The paper concludes that while discrimination in housing has been well-addressed by the courts, providing a remedy even when government does not intentionally discriminate against potential poor residents on the basis of race, religion, handicapped, or family status, the use of inclusionary zoning presents clear problems under the U.S. Constitution despite the occasional support of such inclusionary zoning by a few state courts.
I. The Problem: Discrimination in the United States
A. Government-Sponsored Segregation: Discriminatory Ordinances
Following the Great Migration of African Americans from rural counties to cities at the turn of the 20th century, and fearing their increasing purchasing power, concerned white homeowners turned to their local governments to prevent integration of their neighborhoods.1 Many local governments responded by enacting residential segregation ordinances.2 Typically, these ordinances either: “(1) prohibited whites from moving to all-Negro blocks and Negroes from moving to all-white blocks; (2) divided the city into segregated districts and designated a district for each race; or (3) restricted new residences in mixed blocks to the racial group which had established most of the residences on the block.”3