finding statutory obliga- tion under Fair Housing Act to refrain from zoning pol- icies that effectively foreclose the construction of low- cost housing within municipality; remanding to deter- mine whether that obligation was violated
How later courts described this case
- finding statutory obliga- tion under Fair Housing Act to refrain from zoning pol- icies that effectively foreclose the construction of low- cost housing within municipality; remanding to deter- mine whether that obligation was violated
- recognizing that a village's refusal to rezone plaintiffs' property to accommodate federally financed low-cost housing had the potential to effect a strong discriminatory impact capable of violating the federal FHA
- discerning the following four critical factors from the relevant case law that would aid in a determination of actionable discriminatory impact: “(1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to [take] affirmative[ ] [steps to] 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”
- recognizing a statutory obligation under the Fair Housing Act “to refrain from zoning policies that effectively foreclose the construction of any low-cost housing within its corporate boundaries”
Written by the judges who cited it.
The opinion
FAIRCHILD, Chief Judge,
concurring.
With all respect, I do not subscribe to all the principles and analytical steps described in the opinion prepared for the court by Judge Swygert.
The ultimate question is whether the refusal of the zoning change made a dwelling unavailable to plaintiff Ransom (and others) because of race. If it did, the refusal was unlawful under 42 U.S.C. § 3604 (a).
After trial, the district court found that the Village has 60 tracts zoned for R-5 use and some of it is still vacant and available to plaintiff. The proof showed nine undeveloped tracts in excess of 15 acres, zoned R-5. It was not established whether or not these were suitable for low-cost housing under federal standards. A preliminary question arises as to why plaintiffs should have a second chance at this element of the case. I am satisfied that the mandate of the Supreme Court for further consideration of plaintiffs’ statutory claim is a reason for affording a second inquiry in this area. The majority’s answer appears to be that *1296 the Village has the burden on this issue. It seems to be, however, that traditional principles apply and burden should be allocated to plaintiffs.
Arlington Heights is a community of substantial size (64,000 in 1970). It seems clear that housing there is presently almost totally confined to white persons. The substantial percentage of minority persons in the whole metropolitan community and the fact that minority persons are employed in Arlington Heights render it improbable that existing housing segregation there can represent free choice among persons who might reasonably consider living there. Zoning is appropriate for regulating the location of land use within a community. With exceptions, which are rare in this context, it is not appropriate for total exclusion. If on remand it be demonstrated that no suitable site with proper zoning is available, I can accept the conclusion that the denial of a change in zoning was, in the circumstances of this case, unlawful under 42 U.S.C. § 3604 (a).