Zoning as discrimination

The Price of Equality: Fair Housing, Land Use, and Disparate Impact

The Supreme Court recently found that the Fair Housing Act allows for "disparate impact liability" meaning that even if the intent or stated purpose of a law or zoning code is not to exclude people of color from an area, if it has the end effect of doing so, it can be challenged.  This legal paper looks at the potential impacts of those decisions, and suggests that many of the arguments used support restrictive zoning, such as the impact of new development on traffic, wouldn't hold up to scrutiny.

It concludes that when cities restrict affordable and multifamily housing, which often has a disparate impact on people of color, zoning ordinances must withstand intermediate scrutiny in order to be sustained. Courts must balance local policies with demands for inclusion: sometimes those policies will triumph, but in many instances they will not, for they rest on weak empirical or legal foundations, or they can be addressed in less restrictive ways. The Article sets forth a series of the most common scenarios and justifications for exclusionary zoning, and seeks to show that such justifications have far less purchase than is commonly supposed.
— Jonathan Zasloff, UCLA- School of Law