Chapter 18 Federal Law

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 18 Federal Law

Perhaps the most significant development in zoning actions has been the spate of actions brought under the Civil Rights Act¹ and the Fourteenth Amendment of the United States Constitution.

A. Fair Housing

The question of when a refusal to rezone property constitutes racial discrimination prohibited by either the Fourteenth Amendment or the Federal Fair Housing Act (FFHA) is the subject for a law review article. However, for the zoning official, it is important to be conversant with the case of Metropolitan Housing Dev. Corp. v. Village of Arlington Heights.² In this case, the district court found that the Village's motivation in denying the application for rezoning was based on its concern for property values and the integrity of its zoning plan and that there was no act of invidious discrimination that would require the showing of a compelling state interest. The Seventh Circuit Court of Appeals reversed. In so doing, the court sought to assess the Village's decision in light of its historical context and ultimate effect. The court found that Arlington Heights had exploited a long history of segregated housing patterns in the metropolitan area by failing to integrate its community and was attempting to avoid its responsibility by rejecting "the only present hope of making even a small contribution toward eliminating the pervasive problem of segregated housing."³ The decision of the court implied that the Village had a duty to alleviate the problem of segregated housing. This theory, incidentally, is in keeping with a New Jersey Supreme Court decision which held that, under the state constitution, the Village, indeed the villages in the entire region, had an obligation to act affirmatively to alleviate segregated housing patterns and to set aside certain amounts of land to encourage the development of low- and moderate-income housing.⁴

In its Mount Laurel I decision, the New Jersey Supreme Court opened what it thought was the door to low- and moderate-income housing scattered throughout suburban areas by interpreting the New Jersey Constitution's "Welfare" provision as requiring low- and moderate-income housing to be built throughout the state, with each suburb taking on its "fair share" of such housing.⁵ In Mount Laurel II, Southern Burlington County. N.A.A.C.P. v. Township of Mount Laurel,⁶ the New Jersey Supreme Court looked back on what had been accomplished since its earlier decision and reached the conclusion that there had been "widespread non-compliance with the constitutional mandate of our original opinion in this case." In a 248-page opinion, Chief Justice Robert N. Wilentz reaffirmed Mount Laurel I's earlier holding and then set about to judicially legislate what the court believed to be the necessary affirmative measures to realistically provide for low-income housing. The New Jersey Supreme Court required federal or state housing subsidies, zoning incentives, and requirements for low-income housing in some or all new developments throughout the state. The importance of this case lies in the fact that other state courts have held that municipalities have an obligation to consider so-called regional needs in their zoning ordinances, and these state courts might also be tempted to adopt the remedies imposed by the New Jersey Supreme Court. To implement the remedies, the court established panels of trial judges who oversee housing needs for particular municipalities as well as special masters (fact-finders to serve the court) to assist in this operation. One can only wonder the extent to which the New Jersey Supreme Court believes it might participate in local government as an active member of each village board.

One of the methods of providing for low-income housing is so-called inclusionary zoning. This is zoning which requires a mandatory set aside of certain land to be developed with low-income housing. Suppose, for example, that the municipality rezones a developer's land to require low-income housing and that developer then files a suit claiming this amounts to a taking requiring just compensation. Is the municipality then required to pay for the taking? It will be interesting to see whether New Jersey's landmark zoning decision will be followed by any other states. It will also be interesting to see whether the judicial zeal of the New Jersey Supreme Court will be translated into tangible benefits for the citizens of New Jersey.⁷ More recently, the New Hampshire Supreme Court ruled in Britton v. Town of Chester⁸ that the state zoning enabling statute, which authorized cities and towns to enact zoning ordinances to promote "the general welfare of the community," obligates municipalities to consider regional needs when enacting ordinances that control growth and to provide low- and moderate-income families within the region the opportunity to obtain affordable housing.

B. Section 1983 Causes of Action

In the case of Monell v. Department of Social Services of City of New York,⁹ the United States Supreme Court held for the first time that local governmental bodies could be sued under § 1983 of the Civil Rights Act. Prior to the Monell decision, the law had been that a municipality was not a "person" within the language of the Civil Rights Act and, therefore, was not liable under the Act.¹⁰ Following Monell, the Court in Owen v. City of Independence¹¹ took the next step in exposing municipalities and municipal officials to Civil Rights liability in holding that there is no "good faith" immunity for a municipality in an action brought under § 1983. This means that while municipal officials and employees may be immune from liability because they acted in "good faith," the municipality that they serve enjoys no such protection. A municipality is strictly liable for civil rights violations regardless of the good intentions of the municipal officials who acted, if the action represents official policy and is found to be in violation of some constitutional right.

The United States Supreme Court has also held that absolute immunity exists for members of a state-created regional land planning agency acting in their legislative capacity.¹² The Court of Appeals for the Seventh Circuit has ruled that members of local government governing bodies enjoy absolute immunity when acting in a legislative capacity.¹³ The Supreme Court also held that a municipality is not liable for punitive damages, that is, damages imposed as a punishment for willful misconduct, in addition to any actual damages awarded under § 1983.¹⁴

Finally, a distinction is noted between suing a public official in his official capacity as opposed to his individual capacity. Where, for example, the sheriff or the superintendent of schools, or some other individual is sued because he holds that position, the courts generally treat that as another way of bringing an action against an entity of which this particular officer is simply an agent. In such a situation...