III. Prohibitive and exclusionary zoning is a barrier to using cooperatives as a form of affordable housing in California

The landmark Supreme Court case, Village of Euclid v. Ambler Realty Co., established the principle that municipal zoning ordinances are constitutional and a valid exercise of police power when reasonably related to the health, safety, morals or welfare of the community. The legacy of Village of Euclid encouraged suburban sprawl through individual homeownership in areas zoned for single-family housing. In California, cases came down the same year as Euclid that stated that classification of “single-family” residential zones were reasonable through the use of police power to regulate population density, traffic, noise, building sizes and similar matters affecting the community welfare. Over the next 90 years, however, single-family zoning classifications would prove to be a cumbersome burden in the face of rapidly rising rental and purchase costs in California.

In 1970, a ruling in Palo Alto Tenants Union v. Morgan effectively maintained the exclusion of non-families from single-family neighborhoods, stating that it was a reasonable application of zoning ordinances. In 1980, the California Supreme Court declined to rule on whether or not the definition of “single-family” in a Santa Barbara zoning ordinance was too restrictive by not expanding its definition to include people who are unrelated by blood. However, the court did express that other states were declining to limit the term “single-family” to blood relatives, thus signaling that such zoning ordinances could be reinterpreted sometime in the future.

This question was acknowledged by the Supreme Court in 1995, in a limited way, in City of Edmonds v. Oxford House, Inc. It stated that the zoning code definition of the term “family” in a Washington city’s ordinance was not a maximum occupancy restriction that could be exempt from the FHA under § 3607(b)(1). Yet, the court declined to determine if the ordinance violated the Act by failing to provide “reasonable accommodation” to a diasbled class by not permitting a group home for recovering substance abusers in a single-family zone. The Court declined to expand FHA broadly to single-family zoning, making sure not to overturn Euclidian zoning and subvert the purpose of single-family zoning, which was to keep density low and protect the cultural fabric of the family unit.

In 1999, HUD finally discussed the nexus between cooperative living and zoning in a joint statement with the Department of Justice. In this statement, HUD expressed that the Fair Housing Act prohibits zoning or land use decisions or land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The statement was keen to express that the term “group home” for purposes of the statement, was narrowly defined to mean communal housing for people with disabilities. The statement acknowledged that group homes could also include any group of unrelated persons who live together in a dwelling, but suggested that local governments were free to regulate housing of this kind, as long as they didn’t discriminate against groups who fell under a protected class. The statement expressed that the Fair Housing Act cannot prevent zoning laws from imposing number caps on unrelated persons so long as the caps were being imposed on everyone equally, which further restricts cooperative living. Additionally this statement stated that HUD is sensitive to high concentrations of group homes within neighborhoods, stating that a consideration of over-concentration should be considered short of foreclosing group homes from locating in entire neighborhoods. This concession seems to imply that HUD is still sympathetic to density restrictions, which inherently problematizes the presence of cooperative housing schemes. Unfortunately, an updated statement by HUD and the DOJ on the same topic in 2016, provided no new remedies for cooperatives through the Fair Housing Act, aside from elaborating on existing limitations and remedies for group homes as it was previously narrowly defined.

The Fair Housing Act could support communal living is through the use of Affirmatively Furthering Fair Housing (AFFH) rule. The AFFH requires federal agencies and federal grantees to take meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, AFFH forces proactive action to address disparities in housing needs and segregated living patterns, in order to transform racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. This rule could encourage serious consideration for the use of housing cooperatives as a form of affordable housing. For example, the AFFH rule could utilize its assessment tool to allow quantitative data to be collected about the potential cost benefits of using housing cooperatives as a form of affordable housing and set goals that prioritize the implementation of cooperatives. Unfortunately, the AFFH rule is currently in flux, and cannot be depended upon as a resource to support housing cooperatives because of its own dubious future.