IV. APPLICATION TO ISSUES OF STATE AND LOCAL CONCERN
A. Zoning
So far, this chapter has attempted to present a descriptive account of preemption, focused more on outcomes than on technical terms. Often, a given statute or regulation may not declare, on its face, an intent to preempt local authority, but the outcome is indistinguishable. For example, attaching policy conditions to the receipt of federal funds is not technically "preempting" any particular state law or local ordinance. Local governments still have authority to act in the given area but defer in order to benefit from federal largesse. Frequently, as noted regarding the Affordable Care Act, the states view the generosity of the federal government with suspicion, and the courts have crafted limits on the coercive power of conditional grants. But some pains have been taken to point out the differences among the various methods the federal government uses to achieve regulatory uniformity. Sometimes the analysis starts with a preemption clause, sometimes it does not. An awareness of this ambiguity is necessary when making sense of the federal government's involvement with local land-use decisions.
The Supreme Court has consistently recognized that the local interests at play in zoning decisions justify significant deference by the federal government. In Village of Euclid v. Ambler Realty, the Court noted that localized planning and zoning ordinances are justifiable exercises of the general police power reserved to the states in the Constitution.110 There are limits, however, to the local government's authority to determine appropriate land use. These limits are established by a mishmash of statutes (which rarely admit their preemptive purpose and/or effect) and case law under the Dormant Commerce Clause.
B. Fair Housing Act
While the Justice Department maintains that the Fair Housing Act does not preempt local zoning laws,111 the effect is largely the same. As discussed previously, preemption in the narrow sense occurs when one level of government claims exclusive authority to act in a certain regulatory arena. The Fair Housing Act, instead, applies to local governments and municipalities and prohibits them from passing any zoning regulation or practice that excludes or discriminates against protected classes. Those protected classes include race, color, religion, sex, familial status, national origin, and disability. Local zoning ordinances have been struck down for violating the Act when the discrimination is obvious and intentional but also when a discriminatory intent is absent. Intentional discrimination includes zoning ordinances that treat uses such as affordable housing, supportive housing, or group homes for individuals with disabilities differently from other similar uses. The latter category of discrimination, which does not require explicit discriminatory intent, is usually proven using the "disparate impact" analysis.
Whether the Fair Housing Act preempts local law has significant jurisdictional implications. A claim arising exclusively under state laws against housing discrimination is not removable to federal court because there is no federal subject-matter jurisdiction.
1. Toledo Fair Housing Center v. Farmers Insurance112
In a case arising out of allegations of housing discrimination, the district court held that no federal subject-matter jurisdiction existed, and thus the defendant's removal to federal court was improper. The complaint alleged a violation of Ohio law regarding housing discrimination. Because the Fair Housing Act explicitly states that it does not preempt local law, the court held that federal law does not preempt Ohio law regarding housing discrimination except to the extent an Ohio law is itself a "discriminatory housing practice."
Local zoning ordinances often run afoul of the Fair Housing Act with respect to individuals with disabilities. That is because, beyond the substantive requirements of the Fair Housing Act itself, municipalities must also navigate the accommodation requirements of the Americans with Disabilities Act.
2. Dadian v. Village of Wilmette113
The Dadians were an elderly couple who lived in and had difficulty navigating their two-story house. They hired an architect to design a one-story house with hallways wide enough for wheelchairs and an attached front garage. The garage conflicted with a zoning ordinance, and their application for waiver was denied. The board was concerned that Mrs. Dadian, who had difficulty turning or twisting, could not safely back out of the driveway without posing a risk to small children. The Dadians brought their lawsuit in federal court, alleging claims of discrimination under the Americans with Disabilities Act and the Fair Housing Amendments Act, and ultimately prevailed before a jury. The Village appealed. The Seventh Circuit held that a public entity must reasonably accommodate a qualified individual with a disability by making changes in rules, policies, practices, or services, when necessary. Because a reasonable jury could have found that the Village violated the Americans with Disabilities Act and the Fair Housing Amendments Act, the court of appeals affirmed the award for the Dadians.
To establish a violation of the Fair Housing Act, a plaintiff may either prove that the defendant acted with discriminatory intent or that a given rule or policy has a discriminatory effect disparately impacting persons in a protected group. To prove intentional discrimination, the plaintiff need only show that a decision to deny housing opportunities was motivated, at least in part, by the plaintiff's protected status.
3. Fowler v. Borough of Westville114
The plaintiffs in this case were recovering alcoholics and drug users who resided in a group home located in Westville, New Jersey. The home operated under the "Oxford House" model, in which residents were self-sufficient, house conflicts were resolved democratically, and any resident who relapsed was ejected from the house by the other residents. The plaintiffs alleged that the Borough attempted to drive them out of town by directing excessive police activity at the home's residents and excessive regulatory actions at the home's owners. The Borough moved for summary judgment, and the district court denied, holding that the plaintiffs made sufficient allegations that the Borough's administrator had made statements indicating that he did not want people in recovery residing in Westville— and that he was not going to let "those people" stay in his town. The court held that the plaintiffs had created a triable issue of fact as to whether the Borough administrator was motivated to target the home and its residents for heightened scrutiny based on their disability.
A plaintiff need not prove intentional discrimination to make out a claim under the Fair Housing Act. Recently, the disparate impact theory has become especially controversial. Twice in the last few...
