Constitutional limitations on housing discrimination in California

Too often, established homeowners oppose new forms of housing for illegitimate reasons. These so-called “pretextual” justifications for restricting alternative housing – e.g., unfounded assertions that it will cause more congestion or increase crime – can sometimes convince local governments to prohibit lawful, appropriate development projects that they should approve.

From accessory dwelling units to millennial home-sharing, the American paradigm of block after block of detached single-family homes is facing some long-overdue opposition – in the suburbs and the surprising number of major cities with their land overwhelmingly dedicated to single-family housing. The issue is not only that certain ethnic and socioeconomic groups are being shut out.

NIMBY – not in my backyard – opponents of development are also impeding the construction of “missing middle” housing – e.g., duplexes, triplexes, low-rise apartments, and other structures beyond detached single-family dwellings.

While the U.S. Supreme Court has gone to some lengths to eradicate discrimination based on would-be tenants’ race or non-family status, it has only offered glimpses of its position on banning certain forms of housing.

Communities are entitled to shape and preserve their neighborhood’s character – to a point. This often means that certain uses – e.g., corporate campuses or smelting plants – are non grata. This serves to separate from residential areas certain uses that might be considered a nuisance. What the U.S. Supreme Court in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926) called “pig[s] in the parlor instead of the barnyard.” But official land-use decisions are all subject to a constitutional baseline.

Under the Supreme Court’s Moore v. City of East Cleveland, 431 U.S. 494 (1977), cities, towns, and counties are not just prohibited from rejecting housing permit requests based on a would-be resident’s sex, sexual orientation, gender, religion, ethnicity, nationality, race, but, too often ignored, their family status. And while the Court in Village of Belle Terre v. Boraas, 416 U.S. 1(1974) upheld a local ordinance prohibiting unrelated persons from occupying the same unit, City of East Cleveland emphasized that such policies require judges “examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.” Translation: local officials must have a darned good reason for stopping unrelated persons from cohabitating.

This year, Anaheim (which for decades has unduly restricted transitional housing) offered a prime example of what not to do in response to NIMBY pressures to prohibit unwanted people seeking to live in a non-traditional housing type. Grandma’s House of Hope (GHH) is an Anaheim charity that has assisted thousands of men and women in escaping domestic violence, drug use, and homelessness. Slated to build another small group home for women, GHH faced severe opposition, and the city’s planning commission rejected their permit application, despite its own staff’s recommendation. The backlash was swift, with California Attorney General Rob Bonta threatening Anaheim with Sacramento’s heft.

The Golden State stands at the bleeding edge of America’s chronic housing shortage – missing 978,000 of the national unit-per-household deficit of 3.8 million. Yet local land-use officials throughout the state continue fighting attempts to house certain populations because they are unpopular to established residents. Anaheim’s rejection of GHH’s application follows Woodside’s attempt to maintain exclusionary zoning by relabeling itself a “mountain lion sanctuary” and Los Angeles suburb Temple City’s thwarted attempt to prohibit new duplex residents from having parking spots. With a new state law banning single-family-only zoning, similar attempts have and will continue to abound.

Rejecting permits for group homes, for example – especially those meant to tailor to victims of domestic abuse and homelessness instead of violent characters (e.g., certain halfway houses) – often depends on contrived justifications unmoored from facts on the ground – —e.g., that a group home for special-needs adults can be banned on the rational basis standard to which ordinary police-power actions (e.g., requiring optometrists to be licensed) are subject. Under the Supreme Court’s Washington ex rel. Seattle Title Trust Co. v Roberge (1928), authorities cannot give existing residents a veto over who moves into their neighborhood (including those who will reside in a group home), provided “the legislative body found that the construction and maintenance of the new home was in harmony with the public interest …”

Later, in Justice Thurgood Marshall’s concurrence to City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985), he acknowledged that “the right to ‘establish a home’ has long been cherished as one of the fundamental liberties embraced by the Due Process Clause. Marshall’s position seemingly borrowed from the Court’s announcement in Meyer v. Nebraska, 262 U.S. 390, 399 (1925) that, [w]ithout a doubt” the Fourteenth Amendment protects the fundamental right to “establish a home.”

Local governments should reject pretextual NIMBY resistance to alternative forms of housing; failing to do so may be unconstitutional. No discernible public interest exists in prohibiting accessory dwelling units and duplexes from neighborhoods that already have a rich diversity of housing types – as is the case in many of Anaheim’s neighborhoods. In any case, the Constitution will not abide purely persnickety opposition. Beyond the constitutional issues at play, fighting NIMBY resistance to missing-middle housing is also good policy. The fight over GHH in Anaheim was a microcosm of similar local entry barriers across the state. Those impediments do Californians no favors in their struggle to claw out of an acute housing crisis.

As one recent study noted, California will need to build over 300,000 new units each year for the next eight years before it can reasonably accommodate its growing population. The only way these will ever be built is to break the hold NIMBYs have over many local land-use procedures.

The state should not have to swoop in and dictate the rules of the road, as it has threatened to do with Anaheim. Indeed, this has been shown to intensify rather than quiet NIMBY opposition. A better path is for courts to probe the rationales land-use authorities offer for rejecting alternative housing options. It is high time all housing types – —including group homes – proliferate, so that cities can offer all individuals the opportunity to find safe and appropriate housing.