Written By: Scott R. Thomas

When I was a little kid on vacation in Virginia Beach in 1961.  I saw a public fountain marked “Colored Water.”  I ran up to use it, expecting a rainbow to flow out of the faucet.  But it was just regular water, cool and clear.  I thought it was false advertising.  My mother had to explain to me what it really was.  Didn’t understand it then.   Don’t understand it now.

Racism isn’t out in the open now the way it was in my youth.  The hate is more subtle.  Since the events in Ferguson, Missouri, much has been written about encounters between black people and white police officers.  Determining a person’s motivation and intent is difficult in a factually complex setting involving decisions affecting life and death that have to be made in split-seconds.  But what about decisions that are made over a period of weeks or months at your local zoning board?

Naturally, your local zoning board is not promulgating ordinances that openly discriminate against people of color.  Some zoning boards have tried to achieve that objective by enacting zoning which targets the poor.  Statistically, people of color make up a greater portion of low-income groups, as compared with their percentage representation in the public at large.  For the modern discriminator then, attacking the poor where they live and shop seems an attractive way to achieve an unlawful goal.  A zoning board with discriminatory intent might, for example, place limits on the number of apartments or multi-family dwellings in its jurisdiction or create zones where the kinds of retail business that serve the low-income community would be prohibited.

Zoning boards who engage in this kind of discrimination know that the deck is stacked in their favor.  Typically, an ordinance enjoys a presumption of validity.  The person contesting the ordinance has the heavy burden of showing “beyond fair debate,” that the zoning classification denies them an economically viable use of their land without substantially advancing a legitimate interest in the health, safety or welfare of the community.  Columbia Oldsmobile, Inc.  v. Montgomery (1990), 56 Ohio St. 3d 60, 62, 564 N.E.2d 455, 457, certiorari denied (1991), 501 U.S. 1231, 111 S. Ct. 2854, 115 L. Ed. 2d 1022.  The zoning board also knows that the legal battle is expensive.  The people adversely affected by the ordinance are unlikely to have the resources necessary to bring that fight.

When affected property owners, whether aggrieved individuals or a business, do mount that fight, they often find a sympathetic ear at the courthouse.  Regardless of the presumption, a zoning ordinance must still bear a real and substantial relation to the public health, safety, morals or general welfare to advance a legitimate governmental interest.  Westlake v. Given (May 12, 1983), Cuyahoga App. No. 45407.  A zoning official may find it awkward trying to explain to a judge how keeping poor people from residing and shopping in the community advances the public welfare.  A judge in New Jersey noted the cruel irony of these discriminatory efforts, i.e., that the communities have courted industries to move there yet enact laws making it impossible for the lower paid employees of those industries to live in the community where they work.

The fact that an ordinance does not expressly target the poor or people of color will not save it from judicial scrutiny.  Judges have developed a nose for discrimination and will sniff it out.  When they find it, they strike it down as repugnant.  In July, for example, a federal court struck down a North Carolina law, saying its facially-neutral provisions deliberately “target African-Americans with almost surgical precision” in an effort to depress black turnout at the polls.  A Wisconsin law that sharply restricted the locations and times at which municipal voters could cast their ballots was struck down as an obvious effort to hamper voting in neighborhoods whose residents were predominantly black.  Courts are willing to look behind the words of the ordinance to find the real intent.

Nor can zoning boards take refuge in the defense that they are implementing the will of the people of the community.  In many situations, the zoning board may be relying on sentiments expressed by residents in a survey used to develop a “master plan.”  Americans are entitled to have opinions, even discriminatory ones.  Unlike the man in the street, however, the zoning board is an arm of the government and must adhere to a higher standard, a constitutional standard.  The zoning board, as a steward of the community and its future, cannot pander to the sentiments of residents who would exclude people they consider “low class” or “undesirable.”  If zoning boards shirk their duty and adopt the prejudices of some residents, that racially-motivated ingredient will stain the ordinance and remain there for a court to wring it out.

In Warth v. Seldin, Supreme Court Justice Douglas wrote that “the American dream teaches that if one reaches high enough, and persists, there is a forum where justice is dispensed.”  Fortunately, courts are available in Ohio and Kentucky where the light of day can expose thinly-veiled efforts to discriminate against the poor and people of color.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

Hemmer DeFrank (1)