Tell It to the Judge: New Lawsuits Take Exclusionary Zoning to Court

As various housing reform bills work their way through the lawmaking process in American state legislatures, several new legal challenges to local land use and zoning ordinances are simultaneously underway in state and federal courts. Among these courtroom efforts are challenges to occupancy restrictions, short-term rental bans, inclusionary zoning and single-family zoning itself.

On May 9, 2023, the Pacific Legal Foundation filed a complaint on behalf of two plaintiffs in the United States District Court for the District of Kansas challenging a City of Shawnee ordinance (Ordinance No. 3419) which prohibits more than three unrelated adults from living together in a single residence. These limits, often adopted by localities as a means of excluding student renters or other groups of persons who are perceived as subverting the proper purpose of the so-called single-family home, are challenged by the plaintiffs as a violation of the constitutional right of free association and specifically the right to select and establish a household. The lawsuit also alleges that the ordinance violates equal protection and is beyond the scope of Kansas’ zoning enabling act (K.S.A. 12-741 et seq.), which does not authorize cities to regulate persons based upon blood or legal relationship.

In Nevada, the Clark County District Court on February 16, 2023 issued a preliminary injunction blocking Clark County from implementing and enforcing certain sections of its short-term rental ban (Clark County Code, Title 7, Chapter 7.100, Sections 7.100.110-.260). The lawsuit, filed by the Greater Las Vegas Short Term Rental Association, alleges among other things that the ordinance is arbitrary and capricious, reads as unconstitutionally vague, infringes on free association and effects a taking of property. That ruling has now been appealed to the Supreme Court of Nevada.

On December 15, 2022, the Institute for Justice commenced a lawsuit on behalf of a Seattle homeowner in the United States District Court for the Western District of Washington challenging the City of Seattle’s mandatory housing affordability program (Seattle Municipal Code §§ 23.58C.005–.055), which conditions the issuance of building permits on either a cash payment or the construction of below-market rental units (so-called “affordable housing”). The plaintiff, who was required to pay $77,000 into Seattle’s housing fund as a condition of building four dwelling units on her property if deed-restricted units were not constructed, claims that her proposed project has no nexus with the need for subsidized housing in the city. The complaint may understate the lack of a nexus, however, as a recent study from the NYU Furman Center finds that new construction actually fell in the areas covered by Seattle’s program. By reducing the supply of new housing, the program may have exacerbated Seattle’s housing shortage. A project such as the plaintiff’s, by contrast, would have lessened pressure on rents by contributing to Seattle’s private housing supply.

Perhaps the widest-ranging legal challenge is in Connecticut, where on August 30, 2022 several plaintiffs challenged certain zoning ordinances of the Town of Woodbridge which ban more than one dwelling unit in a single structure (multifamily housing) in all areas of the town not served by public water or sewer. In essence, the suit challenges the “single-family” zoning category which has been central to American zoning practice for nearly a century. In support of their argument, plaintiffs claim that the ordinances violate Connecticut’s zoning enabling act (Conn. Gen. Stat. § 8-2), which was amended in 2021 to encompass a wider range of housing objectives including addressing housing disparities and considering regional planning goals. The plaintiffs also contend that the ordinances violate the Connecticut Fair Housing Act (Conn. Gen. Stat. § 46a-64c) and are contrary to public health, safety and the general welfare under the Connecticut Constitution, as they impede housing supply, do not serve legitimate health objectives and contribute to segregation by race and income. The case, originally pending in New Haven superior court, has been transferred to the land use litigation docket in Hartford where it is awaiting conference.

Not all current zoning lawsuits are challenging exclusionary practices. On April 20, 2023, a group of plaintiffs filed suit in Arlington Circuit Court to challenge Arlington County’s so-called “missing middle” amendments to the Arlington County Zoning Ordinance and General Land Use Plan which permit multifamily housing in certain zones previously limited to single-family dwellings. The amendments, passed in March and with an effective date of July 1, 2023, limit multifamily permits in the specified zones to a total 58 per year until 2028. The lawsuit, clocking in at a prolix 162 pages, alleges that the amendments were procedurally deficient despite the legislative process having spanned more than two years of study and debate.