No More Kids! How Overcrowded Schools May Lead to Violations of Fair Housing Laws

• Publication year: 2015
• Author: By Barbara Kautz

No More Kids! How Overcrowded Schools May Lead to Violations of Fair Housing Laws

By Barbara Kautz

©2015 All Rights Reserved.

I. INTRODUCTION

As cities and counties try to meet the mandates of the State Legislature to "use the powers vested in them to ... make adequate provision for the housing needs of all economic segments of the community,"¹ they have faced substantial opposition from a growing force: parents and school districts who want city councils and boards of supervisors to plan and zone to exclude families with children from the community because of overcrowded schools. Housing elements² (the required local housing plan) frequently cite school capacity and overcrowding as a major factor in community opposition to housing.³ For example, before one city council hearing on a housing element, local residents organized a rally in opposition using the motto, "SAVE OUR SCHOOLS."⁴

Concerns about school overcrowding are especially acute when new housing is proposed. For a 365-unit project in the Town of Los Gatos, the staff reports, public meeting transcripts, and letters from the Los Gatos Union School District repeatedly expressed concern about school overcrowding and the possibility of approving only senior housing.⁵ The possibility of school overcrowding even trumped an initiative that would have limited the number of housing units in a downtown area. In arguing against the initiative, opponents asserted that it would cause significantly more family housing to be built, thus increasing burdens on local schools.⁶

However, the ability of local jurisdictions to consider school overcrowding in their planning and zoning decisions has been virtually eliminated by the passage of the Leroy F. Greene School Facilities Act of 1998 ("S.B. 50").⁷ That legislation limits local authority to require developers to mitigate school impacts; now, developers can only be required to pay school impact fees equal, at most, to fifty percent of the cost of providing new facilities. S.B. 50 prohibits cities and counties from requiring additional contributions. But as enrollment increases, especially in communities with good test scores where parents pay a premium to live,⁸ districts and parents instead demand that cities plan for housing that will not attract families with children—and cities may try to accommodate them by adopting design standards intended to be suitable only for singles or childless couples, or by adopting ordinances permitting senior housing only. For instance, one community's draft plan asked, "How does design attract Gen Y and Baby Boomers instead of families?" and went on to discuss design features that would discourage families, such as higher density and smaller units, no direct access to yards and garages, wine bars instead of tot lots, and nightlife instead of parks.⁹

These efforts to exclude and discourage families from living in communities violate prohibitions against "familial status" discrimination contained in the federal Fair Housing Act (the "FHA"),¹⁰ the California Fair Employment and Housing Act (the "FEHA"),¹¹ the California Unruh Civil Rights Act (the "Unruh Act"),¹² and the California Planning and Zoning Law.¹³ The purpose of this article is to describe the fair housing protections that prohibit adoption of land use controls meant to keep out families with children.

II. BACKGROUND: S.B. 50, OVERCROWDED SCHOOLS, AND LOCAL FRUSTRATION

S.B. 50 provides that:

A state or local agency may not deny or refuse to approve a legislative or adjudicative act, or both, involving, but not limited to, the planning, use, or development of real property, or any change in governmental organization or reorganization as defined in Section 56021 or 56073 on the basis of a person's refusal to provide school facilities mitigation that exceeds the amounts authorized pursuant to this section or pursuant to Section 65995.5 or 65995.7, as applicable.¹⁴

Payment of these fees "shall be the exclusive method[] of considering and mitigating impacts on school facilities" under the California Environmental Quality Act and is "deemed to provide full and complete school facilities mitigation."¹⁵ "School facilities" are defined as "any school-related consideration relating to a school district's ability to accommodate enrollment."¹⁶ The effect of these provisions is to limit the school fees that can be charged to new development and to remove the ability of local agencies to make land use decisions based on the inadequacy of school facilities or school overcrowding.

Currently, school fees cannot exceed so-called Level II fees, which provide only half the cost of the needed facilities.¹⁷ S.B. 50 contemplated that the State of California would assume the other half of the cost, and since 1998, the State's voters have approved approximately thirty-five million dollars in statewide general obligation bonds for schools.¹⁸ However, no school bond has been placed on the State ballot for the last ten years, no bonding authority remains, school advocates report a four to nine billion dollar need for school facilities, and Governor Brown is opposed to new statewide school bonds.¹⁹

Cities and counties in communities with overcrowded schools face a toxic mix when considering housing developments: school districts with inadequate funds to accommodate new students, angry parents, and the inability to obtain adequate mitigation for school impacts, all of which result in demands to keep out new families with children.

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III. DISCRIMINATION BASED ON FAMILIAL STATUS

Federal and state fair housing laws prohibit cities and counties from enacting or enforcing land-use laws that operate to make housing "unavailable" based on "familial status." "Familial status" is generally defined as a household containing a person under eighteen years of age residing with a parent, guardian, or person having legal custody.²⁰

In particular:

• The FHA forbids actions that make housing "unavailable" based on familial status,²¹ discriminate based on familial status,²² or interfere with an owner's efforts to make housing available to families.²³ The FHA invalidates any local ordinance that requires a discriminatory housing practice.²⁴
• The California FEHA prohibits discrimination through land use practices, including zoning laws, use permit denials, and other planning and zoning actions that make housing opportunities "unavailable" because of familial status.²⁵
• The California Planning and Zoning Law invalidates any planning action if it denies the enjoyment of residence to any persons because of familial status or age.²⁶ The law forbids local agencies from prohibiting or discriminating against any residential development because of familial status or age,²⁷ or from imposing different requirements on residential developments because of age or familial status.²⁸

In response to public pressure, communities may seek to adopt ordinances or policies that will discourage families with children, such as limiting the number of bedrooms or unit square footage, or adopting senior zoning on undeveloped sites. Ordinances or other outwardly facially neutral actions by a city or county that are in fact motivated by an intent to discriminate against families with children violate fair housing laws. Under the FHA, a plaintiff "may 'simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated' the challenged decision."²⁹

When plaintiffs rely on the "direct or circumstantial evidence" approach, the multi-factor Arlington Heights test applies, with which a court

analyzes whether the defendant's actions were motivated by a discriminatory purpose by examining (1) statistics demonstrating a clear pattern unexplainable on grounds other than discriminatory ones, (2) [t]he historical background of the decision, (3) [t]he specific sequence of events leading up to the challenged decision, (4) the defendant's departures from its normal procedures or substantive conclusions, and (5) relevant legislative or administrative history. These factors are non-exhaustive.³⁰

The court does not need to find that discrimination was the sole reason that a city council adopted an ordinance or policy. Rather, a plaintiff need only show that a discriminatory reason more likely motivated the local agency than not, or that the agency's explanation for its actions is not credible.³¹ The FEHA utilizes a similar standard.³²

In examining whether a facially neutral ordinance was adopted with an intent to discriminate against the disabled, the Ninth Circuit found the following facts sufficient to support a denial of summary judgment to the City of Newport Beach: an actual reduction in group homes for the disabled; disparate enforcement practices; statements by a councilmember and assistant city manager; unequal treatment of uses with similar impacts; and procedural irregularities whereby the ordinance was drafted and enforced in consultation only with opponents to homes for the disabled.³³ Courts will also examine citizens' comments and letters to determine whether a city's act was the result of political pressure that "amounts to the implementation of local residents' discriminatory impulses."³⁴

Even if the city officials themselves have made no discriminatory comments, if the record demonstrates that the city acted on political pressure from the community that was based on discrimination, the community's discriminatory intent may be imputed to the city. Substantial community opposition alone³⁵ can be used to show that a discriminatory reason more likely motivated the city than not, or that the city's explanations for its actions are not credible.³⁶ Circumstantial evidence, such as evidence of inconsistent treatment of similar uses, as occurred in Newport Beach, can be used to bolster this conclusion.

In...