Recent Case Law, Disparate Impact, and Restrictive Zoning

The Fair Housing Act (“FHA”) prohibits housing discrimination, including the refusal to sell or rent housing based on race, color, religion, sex, familial status or national origin,and any policy or conduct that “otherwise make[s] unavailable or den[ies], a dwelling [based on these impermissible factors].”In 2015, the Supreme Court interpreted the “otherwise make unavailable” language of the Act to mean that the FHA includes not only claims for intentional discrimination, but also claims for disparate impact. Under the disparate impact doctrine, a defendant may be liable for facially neutral rules or policies that disproportionately favor one racial group over another. Zoning law often disfavors Blacks and Hispanics by limiting housing supply and increasing housing costs. Zoning codes generally limit the number of houses or apartments that can be built on a parcel of land. By restraining the overall supply of residences, these “minimum lot size” regulations make housing more costly. Zoning codes also make housing expensive in a variety of other ways; for example, zoning codes typically separate houses from apartments, thus limiting the supply of apartments. Because studies show that Blacks and Hispanics, on average, have lower incomes than Whites, minimum lot size requirements also tend to exclude Blacks and Hispanics from the municipalities and neighborhoods with the strictest limits. Because zoning raises housing costs, one might think that the disparate impact doctrine can easily be used to limit zoning. The purpose of this article is to examine recent case law to determine whether this is accurate. Part I of the Article describes the background of disparate impact law under the FHA, and Part II focuses on the most recent disparate impact case law in cases involving the types of zoning restrictions discussed above