Much of the current racial segregation in residential housing is a direct result of zoning and land-use policies—including redlining—legitimized and subsidized since the 1920s by federal, state, and local governments.1 Unlike the racial motivations explicit in those earlier zoning and land-use policies, segregation is now furthered through facially neutral land-use voter initiatives, many veiled as environmental or open-space protection efforts. They result in significantly worse outcomes for low-income families and communities of color. These voter initiatives are the redlining of our era.
America’s History of Segregation and Land Use
Segregation levels today mirror those in the 1960s.2 The number of people living in high-poverty neighborhoods almost doubled from 2000 to 2013 (7.2 million to 13.8 million), with African American and Hispanic families disproportionately affected as compared to white families.3
This increase is concerning because residential integration is the most promising method of ensuring equality of opportunity.4 Areas that produce higher levels of economic mobility have less residential segregation.5 Further, the location of one’s home is a major determinant of health.6 Families who move from low-income, highly segregated communities to suburbs have significantly better health outcomes than families restricted to low-income, highly segregated communities.7
The Beginning of Zoning as a Tool for Segregation
Since the 1920s, the federal government and local governments have promoted, legitimized, and subsidized racial segregation through zoning and land-use policies leading to deep and lasting racial segregation throughout the United States.8 In the 1920s the Warren G. Harding administration encouraged localities to use zoning to separate single-family homes (white families) from multifamily housing (nonwhite families) and created a model law (the Standard Zoning Enabling Act) to help localities create single-family districts to exclude people of color and immigrants from white communities.9 The Federal Housing Administration’s mortgage insurance program advised, “If a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same racial classes.”10
Zoning ordinances based on the model statute were enacted throughout the country.11 These ordinances effectively excluded people of color and immigrants from white communities by requiring high minimum square footage homes, large setbacks, and related low-density requirements that increased the cost of development, all under the guise of promoting the health and protecting the safety of the community.12
In the early 1920s the Village of Euclid in Ohio enacted a zoning ordinance drafted by an individual who lived on a street known as Millionaire’s Row, the nature of which he aimed to preserve at a time when mansions were being replaced with apartments and commercial uses.13 When developers challenged the ordinance, a federal district court found it to be unconstitutional because zoning could not be used to segregate single-family homes from row homes and likely could not segregate them from apartments without evidence or justification of need, such as noise.14
The 1924 district court decision identified the racist and classist sentiment underlying the ordinance:
[T]he result to be accomplished is to classify the population and segregate them according to their income or situation in life. The true reason why some persons live in a mansion and others in a shack, why some live in a single-family dwelling and others in a double-family dwelling, why some live in a two-family dwelling and others in an apartment, or why some live in a well-kept apartment and others in a tenement, is primarily economic.15
The Federal Housing Administration’s mortgage insurance program advised, 'If a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same racial classes.'
The district court invalidated the ordinance on grounds that the claim of police power to support the zoning was too tenuous in light of a recent U.S. Supreme Court decision invalidating a race-based zoning ordinance in Kentucky.16
In 1926 the U.S. Supreme Court reversed the district court decision, thereby broadening that which constitutes legally justifiable bases for zoning and upholding Euclid’s restrictions on apartment houses, single-family homes, minimum residential lot sizes, and the location of commercial entities.17 In upholding the constitutionality of the zoning ordinance, the Court essentially found class segregation to be not only lawful but also vital, referring to apartments as “a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.”18 The Court stated:
With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities—until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed.19
Federal Support of Residential Segregation
In the late 1920s and early 1930s the Herbert Hoover administration spearheaded a campaign to encourage white families to move from multifamily homes to single-family homes in more desirable suburbs.20 In the 1930s the Franklin D. Roosevelt administration used tax dollars to create race-based zoning maps for the Federal Housing Administration to use for discriminatory home-lending decisions, issuing federally insured mortgages only to white families and low-interest federal loans to private contractors for the construction of white-only subdivisions.21
The Federal Housing Administration gave substantial subsidies and low-interest-rate loans to facilitate the purchase of these homes by white families, while excluding African Americans as ineligible for these loans.22 This exclusion from federal loans laid the groundwork for predatory home-sales agents to sell installment contracts to African American families, with title transferred only upon full and final payment, causing unjust evictions with no accrued equity and 15 to 20 years of inflated monthly payments. Families could afford these payments only by working multiple jobs and often by adding tenants, triggering allegations of “overcrowding” from white neighbors who were paying less for equivalent property through low-interest federal loans. As a result of the Federal Housing Administration’s discriminatory practices, not only did African American families have to pay more for the same property, but also they accrued no equity in the home, while white families, already beneficiaries of intergenerational transfer of wealth, accumulated additional wealth through equity.
During this time, the National Association of Real Estate Boards prohibited as a violation of professional ethics selling a home in a white neighborhood to a person of color. Further, private racial covenants (enforced by courts until 1948) prohibited home buyers from selling their home to an African American family.23
Exclusionary Zoning in the Midcentury Suburbs
By the 1950s government policy reversals paved the way for integration in suburban areas. But through municipal incorporation and facially neutral, but racially motivated, zoning ordinances, suburbs were able to remain almost exclusively white.24
For example, in the mid-1950s, the Santa Clara County (California) Board of Supervisors rezoned unincorporated land from residential to industrial to prevent an interracial residential project. When the developer then tried to build in an incorporated area, voters adopted new zoning laws to prevent the project’s development.25
In another example, a white suburb in St. Louis in 1959 rezoned land from residential to public use on grounds that it was needed for parkland only after finding out that the residential construction under way, with all necessary permits and development approvals, was for African American families.26 Voters had rejected converting this land to parkland months before, but after discovering that the homes would be sold to African Americans, voters overwhelmingly passed a bond to support the zoning change.27
Then in the late 1960s, after an integrated development was proposed in an unincorporated part of St. Louis County, the all-white suburb incorporated and adopted a zoning ordinance to prohibit more than three homes per acre.28
Through municipal incorporation and facially neutral, but racially motivated, zoning ordinances, suburbs were able to remain almost exclusively white.
Following the 1968 Fair Housing Act, the U.S. Department of Housing and Urban Development (HUD) instituted a program to deny federal funding to localities that engaged in exclusionary zoning. The program aimed to allow for mobility and to prevent, as the Richard M. Nixon administration HUD Secretary George Romney stated, “‘the widening economic gulf between the races, which left many whites residing in comfortable suburbs while poor blacks endured a harsh life in urban slums.’”29 The HUD secretary stated that “‘the impact of the concentration of the poor and minorities in the central city extends beyond the city boundaries to include the surrounding community.… To solve problems of the “real city”, only metropolitan-wide solutions will do.’”30 The program was undermined by the Nixon administration and abandoned shortly thereafter. Following Nixon’s reelection, the HUD secretary resigned.31
In 1974 an exclusionary zoning ordinance in the style of the old Standard Zoning Enabling Act was challenged on grounds that its requirements—including that all housing in Los Altos Hills, California, be not less than one acre and contain no more than one primary structure—excluded low-income families. The Ninth Circuit held that the zoning ordinance was rationally related to preserving the town’s rural environment.32
During this time, zoning ordinances using minimum lot size or minimum square footage, and prohibiting residential housing other than detached single-family homes, prevented inexpensive multifamily rental housing while facilitating the development of expensive single-family homes.33
Modern Voter Initiatives to Maintain Segregation
While “inner city” and “urban” used to serve as descriptive terms for places, decades ago they began to be code words for communities of color, low-income communities, low-quality schools, and low-quality housing, as compared to the surrounding suburbs that are economically and politically separate.34 Since the 1990s, zoning measures to contain urban development and prevent growth into the suburbs have been adopted across the country with almost a quarter of Census-designated urban areas under some form of urban containment.35 Behind this proliferation are communities’ tendencies to exclude low-income and minority populations, but localities have long understood the need to hide any discriminatory intent through the use of laudable (and legal) justifications including protecting the environment, reducing traffic congestion, and achieving fiscal stability.36 These zoning measures have disproportionately harmed people of color, and localities that enact these measures see a smaller increase in residents of color.37 Just as white families used now-unlawful exclusionary zoning to prevent integration of suburbs, homeowners now employ land-use voter initiatives to achieve the same ends.
Extensive studies, including one of 490 California cities and counties and another of 1,000 jurisdictions across 25 metropolitan areas, demonstrate how local growth-control ordinances disproportionately harm low-income families and people of color, significantly displace new housing construction, drive up the cost of housing in adjacent uncontrolled areas, and burden everyone but current homeowners.38 The antigrowth measures having the greatest effect on the aforementioned outcomes are measures that rezone land to protect agricultural or open-space use.39 Citing environmental concerns as a defense to the need for housing in suburban communities has become code for exclusionary zoning, with its underlying racial and classist sentiments.40
Just as white families used now-unlawful exclusionary zoning to prevent integration of suburbs, homeowners now employ land-use voter initiatives to achieve the same ends.
A common zoning approach is to limit the density of homes that can be built in the zone. Antidensity zoning contributes to racial segregation, while zoning to permit denser development allows communities to become more racially integrated.41 African American, Hispanic, and American Indian populations are disproportionately harmed by such local growth-control measures because of the resulting reduction in rental housing.42
By 2006 dozens of these measures appeared on ballots throughout California. One such ballot initiative in Ventura County produced the most stringent voter-approved growth-containment policies in the country. The policies, known collectively as Save Open Space and Agricultural Resources (SOAR), have resulted in “a significant cost in the form of higher land and housing costs.”43 As a result of SOAR, economic mobility decreased; the county job base decreased; land-value disparities at growth-containment boundaries in the county rose to unseen levels, creating the largest average discontinuity in land value at growth boundaries among all existing studies; and environmental risks increased because farmers compensated for the land change by using the land for more intensive agriculture purposes, which required increased groundwater pumping and pesticide and fertilizer applications.44
The Barack Obama administration identified localities’ land-use and zoning policies as impediments to housing development. The identified local policies took the form of “laws plainly designed to exclude multifamily or affordable housing,” “beneficial environmental protections,” “land use restrictions that make developable land much more costly than it is inherently,” and “zoning restrictions.”45 The Obama administration recognized this form of zoning as particularly problematic: “When new housing development is limited region-wide, and particularly precluded in neighborhoods with political capital to implement even stricter local barriers, the new housing that does get built tends to be disproportionally concentrated in low-income communities of color, causing displacement and concerns of gentrification in those neighborhoods.”46
Current Proposed Zoning Initiatives
Throughout Southern California, despite the unmet need for housing, “neighborhood groups liberally rely on the initiative and referendum to halt unwanted growth.”47 Through ballot-box zoning and slow-growth initiatives, localities have been effective in diluting the influence of people of color.48
In November 2018 and 2020 in San Diego, California, zoning and land-use initiatives will be presented to voters as open-space and environmental-protection efforts that really will exacerbate racial segregation and income inequality. Two initiatives will be presented to voters: one is a city-specific initiative on the November 2018 ballot, and the other is a countywide initiative that will be on the 2020 ballot because it did not qualify for the 2018 ballot.49 The sentiment underlying these initiatives is evident from their exclusionary language (protect the “unique character” and residents’ “quality of life”; protect “golf courses,” which “are valuable assets that promote the well-being of all citizens”; state that “property rights are at stake”; and caution against changes that “alter the character” of the region). The underlying sentiment is also evident from the type of housing that is exempt from voter approval; such housing includes single-family homes, lot sizes of 2.5 acres and larger, and second dwelling units for current property owners.50 These initiatives’ housing exemptions closely reflect the federal model of zoning that created segregated, single-family districts during the era of redlining and racial covenants.
In the county initiative, voters are given the power to veto affordable housing projects unless the Board of Supervisors not only makes a determination that an amendment to the General Plan is necessary to comply with state or federal law but also makes three separate specific legal findings and gives substantial evidence to support each finding. A similarly high bar is included in the city-specific initiative, in effect giving voters the power to veto any proposed affordable housing development.
These zoning initiatives, and many similar ones across the country, will exacerbate racial segregation and increase income inequality, resulting in significantly worse outcomes for low-income families and communities of color. They are this era’s form of redlining.
Recommendations for Advocacy
Advocates interested in changing these local dynamics that further racial segregation have options for steps they can take.
Use Federal Legislation and Federal Funding to Ameliorate Exclusionary Zoning
For decades, advocates have successfully filed lawsuits against cities, public housing authorities, and HUD secretaries for Fair Housing Act violations.51 This privately initiated litigation, filed on behalf of low-income tenants, tenant organizations, and communities of color, has produced a strong body of case law that interprets the Fair Housing Act to prohibit discriminatory actions, including exclusionary zoning and redlining.52
While private enforcement of the Fair Housing Act can and should continue to be used as a sword against discriminatory zoning practices, advocates should also look to federal funding requirements as a method to identify and eradicate zoning ordinances that serve as impediments to fair housing. The Obama administration implemented a rule aimed at enforcing HUD’s fair housing mandate of affirmatively furthering fair housing, which advocates have effectively used as an opportunity to engage with local authorities to reduce racial segregation and deconcentrate poverty.53 The rule is still on the books, but advocates should note that the status of this rule is in limbo under the Trump administration.54
Under the rule, recipients of HUD funding have a duty of affirmatively furthering fair housing.55 Funding recipients may not merely prohibit discriminatory practices; they must assess fair housing issues and contributing factors (including segregation and disparities in access to opportunity), analyze impediments to fair housing, and integrate findings into their planning processes.56 Advocates can take part in the process and help localities create policies that effectively desegregate neighborhoods and deconcentrate poverty. To date, advocates have successfully worked with local governments, including public housing authorities, to complete fair housing assessments, identify local barriers to desegregation and the deconcentration of poverty, and set forth specific policies that affirmatively further fair housing.
For example, during New Orleans’ Assessment of Fair Housing, city officials, community groups, and advocates worked collaboratively to create policies that tackled disparities in housing and segregated living patterns. Collaborators identified governmental constraints, such as exclusionary zoning laws, and nongovernmental constraints, such as private discrimination by housing providers and financial barriers, on the development of affordable housing.57
Advocates identified a “suburban neighborhoods residential districts” zoning designation, which allowed only low-density development (including single-family homes) and was segregated with a majority-white population.58 Advocates found this zoning designation to limit multifamily housing in certain neighborhoods and contribute to segregation. Among the policies implemented in the Assessment of Fair Housing was a mandatory inclusionary-zoning program, which became one of New Orleans’ most important Assessment of Fair Housing strategies.59
The cities of Los Angeles and Philadelphia have also conducted Assessments of Fair Housing and created policies to deconcentrate poverty and curb growing segregation.60
Advocates can help determine if these ordinances contribute to segregation or serve as fair-housing impediments.
Advocates can play a crucial role in helping localities identify fair-housing impediments and implement policies that further fair housing. For example, advocates should use the Assessment of Fair Housing process as a tool to challenge and ameliorate the results of exclusionary zoning. Advocates can work with local governmental agencies to identify and analyze existing and proposed land-use and zoning ordinances, including those that use minimum lot size and restrict high-density development. Advocates can help determine if these ordinances contribute to segregation or serve as fair-housing impediments.
In cases where local ordinances are found to be impediments to fair housing, advocates can work with federal funding recipients to create and implement new policies that affirmatively further fair housing. The policies developed as a result of the Assessment of Fair Housing should give low-income and minority communities, traditionally excluded from high-opportunity neighborhoods, meaningful access to housing options.61
HUD should continue to require that grantees demonstrate, as a condition of federal funding, efforts under way that affirmatively further the purposes of the Fair Housing Act. Advocates can urge HUD to preserve the Assessment of Fair Housing process and prevent the indefinite suspension of the affirmatively furthering fair housing rule, as proposed by the current administration.
Advocates can also support federal legislative efforts aimed at curbing exclusionary zoning. For example, in August 2018, Sen. Cory Booker (D-NJ) introduced a bill aimed at exclusionary zoning. The legislation requires that the hundreds of localities receiving community-development block grants (funded at $3.3 billion in 2018) for public infrastructure and housing develop a strategy to support inclusive zoning policies.62 HUD disburses community-development block grants to hundreds of localities each year, and the bill requires as a condition of funding that localities zone for higher density and multifamily developments and remove exclusionary practices, such as minimum lot sizes.63
Use State Legislation as a Tool to Ameliorate Exclusionary Zoning
Advocates can ameliorate segregation by pushing policies and systems that limit local control over land-use regulation.64 As evidenced by a 2016 study on the relationship between land-use regulation and segregation by income in the 95 biggest U.S. cities, rates of income segregation are highest in localities with local land-use control and lowest in areas with strong systems of state or regional land-use control.65 In other words, local control over land use exacerbates segregation.
State legislatures can prevent the adoption of exclusionary zoning ordinances by city councils and county boards of supervisors. For example, New Jersey’s state legislature passed the New Jersey Fair Housing Act to mitigate exclusionary zoning.66 The Act limits localities’ ability to exclude and pushes localities to facilitate the development of affordable housing.67 In another example, California requires localities to zone land to accommodate the current and projected housing need for all income levels.68 While New Jersey and California adopted systems focused on land use and planning, Massachusetts and Connecticut adopted models that focus on empowering multifamily housing developers through a streamlined zoning-approval and permit process accessible for mixed-income housing.69
Advocates can urge state legislatures to take on racial and class segregation and the concentration of poverty through state land-use and planning systems that incorporate these best practices.
(1) Specify the legal requirements each locality must meet (e.g., the integration rather than isolation of multifamily housing and single-family neighborhoods), while empowering local authorities and community groups to participate in a collaborative planning process for the selection of sites and associated rezoning of land.
(2) Establish clear guidelines for localities to facilitate the development of housing to accommodate the needs of low-income and very-low-income households.
(3) Ensure that localities implement affirmative fair-housing marketing requirements for all developments counted toward compliance with the state land-use regulatory regime.
(4) Include meaningful enforcement provisions, such as a private right of action and prevailing-party attorney fees.70
In jurisdictions with strong statewide laws, advocates should determine if their locality is complying with state-law requirements. A local ordinance can be challenged on preemption grounds if the locality’s compliance with the ordinance prevents the locality from complying with state law. Advocates should review their localities’ land-use and zoning policies and any planning documents mandated by state or regional authorities. Advocates may need to obtain internal documents and communications about local ordinances from governmental agencies, offices of elected officials, and planning boards. Advocates can seek this information by using state open-records laws and should make a timely request for information that may be relevant to the adoption, implementation, and enforcement of local land-use and zoning ordinances.
Exclusionary zoning practices come in many forms, and advocates should look not only at the language of the ordinance but also at the impact the ordinance may have on the development of affordable housing. The exclusionary intent behind some ordinances—particularly those aimed at preventing “urban sprawl” or “protecting community character”—will be clear, while the exclusionary impact of other ordinances—such as a cap on the number of dwelling units that a locality permits each year—may be more covert.
Build Partnerships with Local Environmental Justice Coalitions and Business Leaders to Oppose Exclusionary Zoning
Advocates can form effective partnerships with local environmental justice coalitions, labor unions, and even business leaders to take down barriers to desegregation. While these groups traditionally operate in distinct silos before different local government agencies, significant overlapping factors at play in the arena of land use and planning can help the groups identify common ground. Given the many governmental departments that administer land-use policies, cross-sector collaboration can help ensure a unified voice against exclusionary zoning and for inclusive growth.71
Advocates can use this issue overlap to form relationships with local leaders from the environmental, labor, and business sectors to push for mutually beneficial desegregation and inclusionary policies. In doing so, advocates will ensure that affordable multifamily housing is equally distributed throughout regions.72 This accomplishes the goals of environmentalists, as workers live closer to their jobs and do not have to commute to suburban and exurban job centers; labor unions benefit from additional project labor agreements resulting from an increase in high-density residential development; and businesses reach their hiring goals as employers have access to available local workers.73
With partners in environmental justice coalitions, labor unions, and the business sector, advocates can encourage the adoption of smart growth and related zoning policies that incorporate the goals of poverty reduction, income equality, and decreased disparities across groups, while planning for healthy neighborhoods.74
Advocates should continue to use litigation strategies, planning-process advocacy, and cross-sector partnerships to dismantle exclusionary zoning and further residential desegregation efforts. Steps toward desegregation must include repealing zoning ordinances that exclude, in word or in practice, high-density, multifamily, and affordable homes.75 Perhaps most important, land-use voter initiatives with ulterior motives must be identified as what they truly are—the redlining of our era—and deemed unacceptable.