Is Density a Question for the Courts to Decide?

Is Density a Question for the Courts to Decide?, Kriston Capps, CityLab, April 1, 2016, available here

Since the U.S. Supreme Court ruled last summer that the Fair Housing Act prohibits “disparate impact” in housing policies, an open question has remained about when and how often disparate impact would serve as precedent. In his majority opinion, Justice Anthony Kennedy warned courts about the “special dangers” of finding liability for disparate impact under the law.

A federal appellate court has taken that risk. On March 25, the U.S. Court of Appeals for the Ninth Circuit ruled that a zoning decision by the city of Yuma, Arizona, violated the Fair Housing Act. The decision is one of the first to find liability under the disparate-impact reading of the act—and it concerns zoning questions that apply far beyond the boundaries of Yuma.

Two real-estate developers, Avenue 6E Investments and Saguaro Desert Land, brought the case against Yuma after the city refused to rezone land for more density in 2008. The existing low-density residential zoning called for housing lots of 8,000 square feet (R-1-8 zoning). Since the nation was entering a housing crisis, the developers asked the city to lower the requirement to 6,000 square feet (R-1-6 zoning) to make it slightly more dense.   

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