Exclusionary Practices

1. Exclusionary Practices Racial & Non - Racial

2. Overview • Land regulatory practices are presumed to be rationally related to a legitimate community need based on the health, safety, and public welfare • However, the opportunity to abuse this power is great and ever present, especially when those segments of society are disadvantaged • Two types of cases are presented in this section • Regulatory discrimination that is not based on an identifiable protected classification • Racial, ethic, and gender discrimination based on the attributes of a protected class of persons

3. Some Discriminatory Practices • Minimum lot and house size • Failure to provide for adequate opportunity for least cost housing sites • Bias against certain forms of land use: i.e., manufactured homes • Administrative delay • Covert and overt racial discrimination • Failure to offer and provide adequate municipal services

4. National Land Investment Co. v Easttown Township • In 1958 National Land Investment offered to buy an 85 acre tract of land subject to a successful subdivision plan • When National Land took the option the Township zoning standard was 1 acre minimum per residence – and the land was zoned for single family residences • National Land submitted a subdivision plan for “Sweetbriar” on one acre lots in 1961 • The Township did not take any action because it was in the process of amending the minimum lot requirement to 4 acres

5. Sweetbriar Today Quality and craftsmanship are evident throughout in the detailed cabinetry, custom carpeting and top of the line fixtures. Enjoy elegant entertaining in the formal living room and dining rooms and great family living in the dramatic family room with brick walled walk-in fireplace. Easttown Township, Chester County “The Sweetbriar.” FOR SALE – 1 Acre $1,200,000

6. National Land Appeals • National Land applied for a variance but this was denied by the Board of Zoning Appeals • The trial court found for the Township noting that a four acre minimum lot size restriction was reasonable for a rapidly growing rural area • The Pennsylvania Supreme Court accepted the case for review and began by characterizing the area

7. Description • Easttown Township has an area of 8.5 square miles – about the same land area as the greater Manhattan area • In 1965 the Township was located about 20 miles from Philadelphia • Growth is also approaching from the commercial – industrial complex at King of Prussia and Valley Forge • In 1965 about 60% of the population resides in about 20% of the Townships’ Villages area – the other 40% are scattered in the rural portion

8. King of Prussia To The North

9. Township Location, Founded 1704

10. Growth Factors • Population of Easttown • 1950 – 2,307 • 1960 – 6,907 • 1970 – 10,050 • 2000 – 21,500

11. The Court Begins The Lengthy Analysis • The relative advantages of a one acre lot over a one-half acre lot are easy to comprehend • Similarly, a two acre lot has advantages over a one acre lot and three acres may be preferred over two acres or ten acres over three • The greater the amount of land, the more room for children, the less congestion, the easier to handle the water supply and sewage, and the fewer municipal services which must be provided • At some point along the spectrum, however, the size of lots ceases to be a concern requiring public regulation and becomes simply a matter of private preference • The point at which legitimate public interest ceases is not a constant one, but one which varies with the land involved and the circumstances of each case.

12. Township’s Argument • The Township says that 4 acre lots are necessary because most of the township is not sewered but on septic systems • Township roads are old and inadequate to carry the increased traffic burden • They also wish to preserve Easttown’s Character • Preserve open space and create Greenbelts • Preserve historic sites and buildings • Protect the setting for the old homes dating back to the 1700s • Protect the general rural character

13. Court’s Analysis – Sewer System • The Township also allows residences on 1, 2 and 3 acre lots in certain areas. If 4 acres is really necessary – why not make 4 acre minimums through the Township? • And, the Township Sanitation Officer is allowed to increase the size of any lot if a percolation test proves to be unsatisfactory • We think that you are blowing smoke in our ear

14. Court’s Analysis - Roads • Yes, we realize that may roads are old, narrow, and winding. But when National Land paid an independent consultant to perform a traffic analysis the result was that the present road system could serve another 7,000 residents without becoming congested and dangerous • The road where Sweetbriar is located is near Highway 30, very much under capacity, and can easily carry more traffic

15. Court’s Analysis – Open Space • Preserve Open Space? • Excuse me! We thought that the best way to preserve open space was to use cluster and density development rather than increase the lot size • Why don’t you use PUD’s to collect common open space • If you are going to implement Greenbelts why don’t you have each developer contribute linear open space • Why just say four acre lots

16. Open Space

17. Court’s Analysis – Historic Sites and Old Homes • We don’t understand this one!!!! • The map shows that all of the historic sites are located in the small villages throughout the Township where the zoning remains ½ acre minimums • Professionals tell us that the best way to preserve historic sites is through design sensitivity and compatibility • There is no doubt that many of the residents of this area are highly desirous of keeping it the way it is, preferring, quite naturally, to look out upon land in its natural state rather than on other homes. These desires, however, do not rise to the level of public welfare. This is purely a matter of private desire which zoning regulation may not be employed to effectuate.

18. Court’s Analysis – Rural Character • What are you preserving? • There is nothing about south Easttown which differentiates it from any other area in the southeastern section of Pennsylvania. • No one would seriously maintain that the entire southeast corner of the state should be declared immune from further development on areas of less than four acres simply because there are many old homes located there • If the township were developed on the basis of 4 acre zoning, however, it could not be seriously contended that the land would retain its rural character -- it would simply be dotted with larger homes on larger lots.

19. The Knockout Punch • Four acre zoning represents Easttown's position that it does not desire to accommodate those who are pressing for admittance to the township unless such admittance will not create any additional burdens upon governmental functions and services. The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live.

20. Its Invalid • A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid • This does not mean that a governmental body may not utilize its zoning power in order to insure that the municipal services which the community requires are provided in an orderly and rational manner.

21. The Warning To Other Communities • The purpose of Planning is to provide for the needs of the future – it is not intended to deny the future • Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities.

22. Easttown Land Use Map

23. Burlington County NAACP v Mt Laurel, New Jersey - 1973

24. Some Background • Mt. Laurel settled in 1688 • The actual Mt. Laurel Village incorporated in 1847 • Mt. Laurel Township/Village has grown steadily from 1960 to 2000 – from 2,345 to 38,000

25. Home of the MARPies

26. The Case Setting • Mt. Laurel is a 22 sq. mile (14,000 acres) Township located near Cherry Hill NJ some 10 miles from Camden • The Zoning Scheme • 29.2% of the land is zoned light industrial (4,121 acres) but no more than 100 acres are actually used for industry • 1.2% is zoned for retail business ( 129 acres) • The balance of the land is zoned for conventional housing (10,000 acres)

27. The Residential Zoning Scheme • The ordinance provides for R-1; R-1D; R-2 and R-3 • Each zone permits only single family housing • Attached townhouses, apartments, and manufactured homes are not allowed anywhere in the township • Over 7,000 acres are zoned to permit • A combination of lot size and minimum dwelling size makes it evident that only a upper middle income family could afford to move to the township • The Township did pass a limited PUD District and three developers took advantage by applying for a mixed housing project

28. The PUD Application • Mt Laurel gives tentative approval • Only a few of the townhouses can have more than one bedroom • No school aged children can be permitted to occupy any one bedroom unit • No more than 2 children can occupy a two bedrooms unit • The developer, if more than an average of .3 students per unit occur, must pay the cost of tuition to attend township schools • All units must be furnished with required amenities, such as central air-conditioning and must pay large sums for township fire, police, library and schools

29. And More • A good share of the units had to be set aside for senior citizens where children under 18 could not live • Needless to say, the developers walked away from the projects without the slightest hesitation but did not sue for fear that they would never be allowed to do business again in Mt Laurel • The Burlington County NAACP filed a class action suit on behalf of future residents (a novel idea) that were barred from moving there from the Camden area

30. The Court Makes Some Findings • There cannot be the slightest doubt that one of the main reasons for this zoning scheme is to keep local property taxes low and shift the burdens to other communities • This pattern appears repeatedly in developing municipalities • This pattern does not allow for low and moderate income families to move to the community – they are effectively barred

31. The Central Questions • May a developing community, such as Mt. Laurel, make it physically and economically impossible to provide low and moderate income housing for various persons who need and want it? • Can communities limit the type of housing the want so that they is no choice in different types of living accommodations? • Can Mt. Laurel avoid its fair share of the regional burden in supplying the benefits of community to future populations?

32. The Ruling • We conclude that every developing community must, at least by its land use regulations, presumptively make possible an appropriate variety and choice of housing • This court now adopts a non-local approach to the meaning of general welfare and no longer allows a community to hide behind parochial local interests • Communities must permit multi-family housing without bedroom limitations as well as small dwellings on small lots • Communities, such as Mt. Laurel, must remove land from industrial zones when this practice is undertaken to prevent needed housing opportunities • Mt. Laurel must bear its fair share of the regional burden and this region will vary from place to place

33. Conclusion • Mt. Laurel is granted 90 days to remedy and correct the deficiencies in its zoning ordinance • A master must approve the Townships regional fair share housing plan

34. Mt Laurel II, 1983 – In The Words of the Court • The is a return, 8 years later, of the Burlington County NAACP v Mt. Laurel Township case • After all this time, and invalidating its zoning ordinance, the Township is still afflicted with a blatantly exclusionary zoning ordinance • The new ordinance, at its core, is a testament to Mount Laurel’s determination to exclude the low and moderate income • Mt. Laurel is not alone in this widespread non-compliance with the constitutional mandate of the original case • “To the best of our ability, we will not allow this to continue”

35. The Challenge • Mt. Laurel II is actually a consolidation of 5 different cases at once – all arise from the Mt. Laurel doctrine • One of the communities involved is Mt Laurel itself which never really implemented a regional fair share plan • The ruling is a lengthy set of guidelines set down for all New Jersey municipalities • The court starts off by saying “That some changes will be made – NOW”

36. Removing Excessive Restrictions • All municipalities are immediately ordered to remove unnecessary barriers to the construction of low and moderate income housing • Lot lot requirements • Minimum housing size requirements • Maximum bedrooms regulations • Overuse of amenities in PUDs • Regulations that impact on the number of children

37. Using Affirmative Measures • There are two basic types of affirmative measures that a municipality can use to make the opportunity for low and moderate income housing realistic • Encouraging or requiring the use of available state and federal housing subsidies • Providing incentives for or requiring developers to set aside a portion of their developments for lower income housing – including 5% mandatory set asides • Trial courts are authorized to retain control of cases such as these and to supervise the community’s resolve to pursue affirmative measures

38. Zoning For All Housing • Although the New Jersey Courts have upheld bans on mobile homes – all these decisions are now reversed • Changed circumstances now exist and mobile home must now be allowed – all absolute bans will be immediately overruled • The Court recognized the aesthetic sensibilities of communities but also reversed all decisions which upheld a ban on apartments, town homes, duplexes and triplexes

39. Least Cost Housing • There may be municipalities where special conditions exist that make it impossible for fair share conditions to exist even after all excessive restrictions and exactions have been removed • Then, and only then, may these communities adopt a “least cost” housing approach to satisfy their regional fair share obligation

40. Least Cost Housing

41. In Re Girsh, 1969 • In Re Girsh is neither a famous or unique case. It is however very informative because it illustrates the tremendous resistance offered by many suburban communities to judicial orders • In other words, even though the applicant prevails, the community drags its feet, ignores the ruling, and proceeds along its own path • It also shows that when a ruling is returned to the trial court – this lower court often resists interpreting the appeals ruling in the most favorable light

42. Some Background • The date is 1964 • Mister Girsh Sr. made a contract to purchase 17 ½ acres of land for $120,000. The contract stated that he would agree to apply to the township board to change the R-1 zoning so that a high rise (6 story) apartment building could be constructed • The contract also stated that if this zoning change was successful – he would pay the land owner a total of $150,000

43. The Place – Delaware County - Nether Providence Township Population 433,535 Delaware County

44. Place Description • Nether Providence Township has a population of 6,000 persons (1969) and a land area of 4.64 square miles • The U.S. Census count for 2000 is 13,456 persons • About 75% of the township is zoned for single family residential (R-1 or R-2) on not less than 20,000 and 14,000 sq. ft. respectively • Multi-family is not expressly prohibited but it is not provided for in the ordinance; there are 2 multi-family housing units in the township permitted by variance

45. Girsh’s Actions • Girsh’s sought approval for 2, nine story luxury apartment buildings – each contained 280 units – he offered to reduce each building to 216 units • The Planning Commission refused to amend the ordinance • Girsh sues and the township wants the case dismissed because Girsh did not apply for a variance • Trial court dismisses the suit because it was not ripe • The date is now 1966

46. Supreme Court Analysis • First, by emphasizing the possibility that a given landowner could obtain a variance, the Township overlooks the broader question that is presented by this case. In refusing to allow apartment development as part of its zoning scheme, Nether Providence has in effect decided to zone out the people who would be able to live in the Township if apartments were available.

47. Cause and Effect • The township argues that apartment uses would cause a significant population increase with a resulting strain on available municipal services and roads, and would clash with the existing residential neighborhood. • "Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities. • Zoning is a means by which a governmental body can plan for the future -- it may not be used as a means to deny the future. . . . Zoning provisions may not be used . . . to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring."

48. Conclusion • The Court concludes by saying: • In addition, at least hypothetically, the Township could show that apartments are not appropriate on the site where appellant wishes to build, but that question is not before us as long as the zoning ordinance in question is fatally defective on its face. The Township could properly decide that apartments are more appropriate in one part of the Township than in another, but it cannot decide that apartments can fit in no part of the Township. • The Decision is reversed and remanded to the trial court • The date is now 1971

49. Its Not Over • Its now 1972 • The trial court receives the remanded case • Judge orders a new hearing for Girsh • The Township says we now need to revise our zoning ordinance to provide for housing • Judge says OK. You have a year • Now its 1974 • The new ordinance is released along with a new zoning map. The Township rezones about 3% of the land for multi-family

50. Guess What? • Girsh’s land is not zoned on the map for multi-family housing • Girsh again applies for rezoning of his property to R-3 • In 1975 the Township Planning Board says no • Girsh applies for a variance this time • He is denied by the Board of Adjustment • Girsh goes back to the trial judge and the Judge says “what are you doing here? • Girsh says “I Though I Won!”