• email
  • share

Fair Housing Act’s Impact on Local Zoning and Land Use Laws

Although zoning and land use is an area where municipalities have primary power, courts have consistently held that the Fair Housing Act prohibits local governments from exercising their zoning and land use powers in a discriminatory way. According to the FHA, a dwelling includes “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.” Therefore, decisions related to the development, zoning or use of such land may not be based upon the race, sex, religion, national origin, color, disability, or familial status of the residents or potential residents who may live in the dwelling. Another way that discrimination in zoning and land use may occur is when a facially neutral ordinance has a disparate impact, or causes disproportional harm, to a protected group.

As California continues to struggle with its housing crisis, particularly regarding affordable housing, it is important to keep in mind FHA limitations on the development, implementation and enforcement of local zoning and land use regulations. Below are examples of prohibited activities under the FHA, as well as an explanation of the one exemption regarding housing for the elderly. For assistance with FHA related housing issues, please contact Meyers Nave Of Counsel Eva Plaza, a former Senate-confirmed Assistant Secretary of the U.S. Fair Housing & Equal Opportunity Office which is the chief administrative agency charged with enforcing the Fair Housing Act.

  • NIMBY: A municipality may not make zoning or land use decisions based on neighbors’ fears that a dwelling would be occupied by members of protected classes. For example, a municipality may not reject a proposed affordable housing development in response to neighbors’ fears that such housing will be occupied by racial minorities.
  • Different Treatment: Zoning ordinances may not contain provisions that treat uses such as affordable housing, supportive housing, or group homes for people with disabilities differently than other similar uses. For example, a municipality may not require neighbor notification or a public hearing only for the development of affordable housing or group homes, but not other types of residential development. Similarly, a municipality may not impose spacing requirements on group homes for persons with disabilities.
  • Unequal Enforcement: Municipalities may not enforce ordinances more strictly against housing occupied by members of the protected classes. For example, a municipality may not require additional studies or procedural steps or unnecessarily delay decision making when considering a development that may be occupied by members of the protected classes.
  • Reasonable Accommodation: In addition to prohibiting discrimination against persons with disabilities, the FHA also makes it unlawful to refuse to make “reasonable accommodations”, or changes to rules, policies, practices, or services, when such accommodations are necessary to allow persons with disabilities an equal opportunity to use or enjoy a dwelling. Under the FHA, an accommodation is considered “reasonable” if it does not impose an undue financial or administrative burden and if it does not fundamentally alter the zoning ordinance. Unless a municipality can prove that an accommodation request is unreasonable, the municipality must grant the accommodation. For example, a municipality may not refuse to allow an exception to a setback requirement as a reasonable accommodation for a disabled resident who must build a wheelchair ramp in order to access his or her home.
  • Disparate Impact: Land use policies such as density or design requirements that make residential development prohibitively expensive, prohibitions on multifamily housing, or a ceiling of four or fewer unrelated adults in a household may be considered discriminatory if it can be proven that these policies have a disproportionate impact on minorities, families with children, or people with disabilities. (Litigation Update: Texas Department of Housing and Community Affairs v. the Inclusive Communities Project is a landmark case before the U.S. Supreme Court that will determine the scope of the FHA. The case presents the Court with one question: Are disparate-impact claims cognizable under the Fair Housing Act? In other words, can the “disparate impact” standard be used to enforce the Fair Housing Act?)
  • Exemption for Elderly Housing: There is one exemption to the FHA that applies to zoning and land use. Housing for older persons, or housing where 80% of the units are occupied by at least one person over the age of 55, is exempt from the portion of the FHA that prohibits discrimination against families with children. According to the Housing for Older Persons Act, a housing facility or community for older persons may include “a municipally zoned area.” Therefore, although a municipality would be prohibited under the FHA from making a zoning or land use decision based on the presence of families with children residing in a dwelling or proposed development, any area zoned specifically for housing for older persons would be exempt from this prohibition.