Evaluation of 50 Years of Exclusionary Zoning Litigation

 

Robert G. Schwemm has published in the UIC Law Review - (37:3): 390-456 - an historical review of the Arlington Heights cases and the ongoing legal barriers to address metropolitan segregation through zoning litigation. See “Reflections on Arlington Heights: Fifty Years of Exclusionary Zoning Litigation and Beyond.”

Schwemm is the Ashland-Spears Distinguished Research Professor of Law and William L. Matthews, Jr. Professor of Law at the College of Law, University of Kentucky. He also is author of the encyclopedic standard Housing Discrimination: Law and Litigation (West Group, 2001 and updated annually by Clark Boardman Callaghan).

Arlington Heights (Illinois) was an exclusionary zoning case, one of many such cases brought in the 1970s that challenged local land-use practices blocking subsidized housing projects for racial minorities who were underrepresented in the area. Passage of the FHA in 1968 stimulated more of this type of litigation. Since then, many exclusionary zoning cases have been filed, and, as the Supreme Court noted in 2015, they make up the basis of this type of FHA claim. Arlington Heights is the most important of these cases. 

In the 50 years since the case, the Village of Arlington Heights has become a more diverse and welcoming community that recently elects Democratic candidates. But residents of these type of "high-opportunity" communities have generally continued to oppose any subsidized housing projects. Exclusionary zoning remains a battleground today, as occasional FHA-based actions generally have failed - and continue to fail - to overcome more powerful social and economic forces that encourage affluent suburbs to use zoning to exclude affordable housing. 

There have been positive developments since the Arlington Heights case that could influence future desegregation. The link between where you live and your financial, social, and medical life chances has been solidly established by much research. Also, bans on “source-of-income” discrimination have been added to many state and local fair housing laws that the majority of Americans now live in jurisdictions with such a ban. Though mainly designed to guarantee voucher-holders access to more rental opportunities, these source-of-income laws have also been used to challenge exclusionary zoning.

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Source: April edition of Poverty & Race by the Poverty & Race Research Action Council 

(PRRAC).

HUD Launches Website to Combat Source of Income Discrimination for Families Using Housing Vouchers

HUD’s new website details protections against Source of Income (SOI) discrimination for families with Housing Choice Vouchers (HCVs). SOI discrimination is the practice where landlords, owners, and real estate brokers refuse to rent to current or prospective qualified tenants with an HCV or other forms of public assistance. The Source of Income Protections website serves as a “one-stop shop” for HUD stakeholders that summarizes existing materials to explain what SOI discrimination looks like, identifies states and local jurisdictions that prohibit it, and provides resources for people who believe they have experienced this form of discrimination.

“Denying housing to Veterans, families with young children, or people trying to get off the street just because they get help to pay their rent preserves the legacy of discrimination, especially during this affordable housing crisis,” said Secretary Marcia L. Fudge. “Source of Income protections are important for families to thrive regardless of their economic status.”

HUD launches this resource in alignment with the principles laid out in the Biden-Harris Administration’s Blueprint for a Renter’s Bill of Rights, and at a time where lower income families face tremendous challenges finding safe, quality, and affordable housing. Leveraging all its resources, HUD is dedicated to ensuring that families with Housing Choice Vouchers (HCVs) have access to the housing and neighborhoods of their choice.

“There is no reason that those with vouchers should face discriminatory barriers that hinder or halt their housing search. This experience is still all too common for renters, despite having Source of Income protections in many states and jurisdictions. In order to address this issue, it is important to work with stakeholders to eliminate those practices," said Principal Deputy Assistant Secretary for Public and Indian Housing, Richard J. Monocchio. "HUD’s new webpage provides useful information to everyone -- tenants, landlords, housing authorities, and others -- with the ultimate goal of improving tenants' leasing success.”

SOI discrimination can, and often does, include other policies or practices that impact a potential renter’s ability to attain housing using vouchers. In states and jurisdictions covered by existing SOI protections, refusal to accept vouchers and other public assistance to pay rent, or adding additional requirements, can constitute as a form of housing discrimination. Thus, enforcing these protections is a critical component to ensuring people have fair access to the rental market.

“There is growing evidence that state and local laws prohibiting Source of Income discrimination improve voucher utilization rates for public housing authorities and expand housing and neighborhood choices for voucher holders,” said Solomon Greene, Principal Deputy Assistant Secretary for HUD’s Office of Policy Development and Research. “As part of our role at HUD, we believe it is imperative to support evidence-based policies that advance HUD’s mission to create strong, sustainable, inclusive communities and quality affordable homes for all.”

Local and state organizations may enforce illegal SOI discrimination and conduct fair housing testing to root it out. “Fair housing testing is an indispensable investigative tool to root out housing discrimination and FHEO encourages testing activities designed to identify discrimination that violates the Fair Housing Act,” said Demeteria McCain, Principal Deputy Assistant Secretary for the Office of Fair Housing and Equal Opportunity. “As I made clear in my February 2024 memo, Fair Housing Assistance Program (FHAP) recipients may use HUD funds to design source of income discrimination testing projects to detect discrimination that may violate the Fair Housing Act or state or local laws.”ent, all remaining residents who still need to be moved into supported housing will be.

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Read the March 13, 2024 HUD press release.