Forbes: Could The Fair Housing Act Be Used To Abolish Restrictive Zoning?

“A growing bipartisan cluster of journalists, academics, business people, and even the president himself has concluded that zoning and other land use regulations increase housing costs, and must be reformed or abolished.”

“The Supreme Court ruled in 2015 that the act also outlaws policies that have a negative “disparate impact” on minorities, even if those policies aren’t intentionally discriminatory. As Justice Anthony Kennedy wrote in his majority opinion, “in contrast to a disparate-treatment case, where a ‘plaintiff must establish that the defendant had a discriminatory intent or motive,’ a plaintiff bringing a disparate-impact claim challenges practices that have a ‘disproportionately adverse effect on minorities’ and are otherwise unjustified by a legitimate rationale.””

“O’Toole argues that such laws, while not written with intentional bias (at least not provable bias), nonetheless disproportionately hurt racial minorities. He notes that various regulations, such as zoning, rent control, and urban growth boundaries, have been found demonstrably to increase housing costs. And because certain groups–such as African-Americans–have lower median incomes, these regulations have a “disparate impact” on them, often driving them from select cities.”

“A recent “housing toolkit” published by the Obama administration focused more on regulations preventing urban infill housing, such as minimum parking requirements, setback requirements, and density limits. Perhaps more odious than the regulations targeting density or sprawl, specifically, are the broader approval barriers affecting all housing types.”

“So how could the Fair Housing Act be used to attack these regulations? O’Toole writes that affected parties—in this case minorities—could file lawsuits against cities and states whose land-use laws prevent them from living there. Concerned citizens could also sue these entities for accepting federal housing funds when their regulations clearly violate federal housing laws (in this case the Fair Housing Act). And, of course, the federal government could withhold funds from localities using the same rationale.”