Daily Development for Thursday, September 6, 2001


By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri


FAIR HOUSING; ZONING APPROVALS: An violation of Constitutional Equal Protection and Substantive Due Process and of the Fair Housing Act may occur when a City fails to issue a permit for a low income housing project when the project meets existing zoning standards, even when the City's failure to act is in response to a referendum process expressly authorized by the City Charter if the court can conclude that the private citizens who prepared the referendum petition were motivated by racial or antifamily bias.


Buckeye Community Hope Foundation v. City of Cuyahoga Falls, 2001 FED App. 0299P (6th Cir. 6th Cir. 8/31/01)


Builder proposed a low income rental housing project in an area zoned for such usage.  The City ordinance required that the Planning Commission review projects of this size and scope for compliance with city ordinances and submit the proposal to  the City Council for approval by ordinance.  The Planning Commission indeed did approve the project, subject to satisfaction of nine condition,  and sent the proposal forward. At the Council, however, the proposal met with stiff opposition from citizen testimony.  Arguably some of the testimony, and some of the comments by the Mayor, at least, indicated that opposition to the proposal was racially motivated or reflected a bias against families. (This is only an arguable proposition, but the court assumed it was true for purposes of passing on the  summary judgment for defendant City granted by the trial court.)


Notwithstanding this opposition, the Council ultimately did adopt an ordinance approving the project within less than a month after it first reviewed it.


The City Charter provided that any ordinance of the City Council could be subjected to a referendum if a sufficient petition were filed within

30 days of passage.  In the event of such petition, the effectiveness of the ordinance would be stayed, and would become effective only if approved in the referendum.  A timely petition, not signed by any members of the City Council, was presented.  The court does not indicate whether any of those who evinced, through their comments at a City Council meeting, a racial or antifamily bias signed the petition, or, if so, whether their signatures were necessary to meet the minimum required number of signatures.


The City Building Commissioner then refused to carry out the ordinance and issue the building permit for the project until the referendum issue was resolved.  Builder promptly obtained an injunction of the referendum pending a determination of whether it was valid.  Within only a few months, the Ohio Supreme Court, after first confirming the validity of the referendum process, reversed itself on rehearing and concluded that the referendum, although required by the City Charter, was in violation of the Ohio Constitution.  That Constitution permits referenda on City legislative actions, but not, in the view of the court, on administrative actions.  Since the City's action here was purely administrative  a simple determination of whether the project satisfied existing zoning standards, no referendum was possible.


Thus, presumably, the project could go ahead.  But wait  there's more.


During the months intervening between the referendum petition and the ruling of the Ohio Supreme Court, Builders filed a massive lawsuit in federal court against the City under Section 1983 for violation of Equal Protection Clause and Substantive Due Process guarantees and under the Federal Fair Housing Act for interference with housing opportunity on the basis of race and family status.  The defendants are described as "The City of Cuyahoga Falls et al," so we don't know exactly who else was named.  As indicated above, the federal district court magistrate to whom the case was submitted recommended the granting of summary judgment for the defendants, but the district court trial judge originally assigned the case disagreed and denied the motion for summary judgment.  The case was later reassigned, the motion renewed, and granted.  The  Sixth Circuit, in this opinion, reversed and remanded


Virtually the entire Sixth Circuit opinion discusses the potential liability of the City, although there may be a little discussion of a special place for the Mayor, who, understandably, did get himself caught up with the zeal of the citizenry opposing the proposal and openly supported the referendum petition drive.


In discussing the Equal Protection Clause claims, the Sixth Circuit noted that because of the special sensitivity of racial discrimination, the presumption of validity normally granted to public agency actions would not apply.  A different standard is used, even when it is not certain that racial factors were the sole motivation for such actions:

"Rarely can it be said that a legislative or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified."


Here is the nub of the discussion, which pretty much demonstrates how the rest of the opinion will go (get ready folks):


"[The District Court] held that the defendants did not exhibit racial bias in denying plaintiffs the benefit of the City Council approved site plan and withholding the building permits because the defendants were simply following the City Charter which required them to stay the effectiveness of any ordinance that is subject to a referendum. This analysis begs the question of whether the public opposition to the housing project was animated by racial bias and whether City officials improperly gave effect to that racial bias by allowing the fate of the project to be decided by referendum."


In other words, if the City Council determined somehow that a sufficient number of people who put their names on the petition did so because of racial bias, then it was obligated to ignore the specific language of the City Charter and grant a building permit under an ordinance specifically suspended from operation by the terms of the Charter.


"Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.");  . . [I]t is enough for the complaining parties to show that the local officials are effectuating the discriminatory designs of private individuals." So, the question here is whether the plaintiffs produced sufficient evidence to raise a genuine issue of material fact as to whether the City officials gave effect to a referendum that was motivated, in part, by racial bias."


The court started with the fact, hard to contest, that denial of a permit for low income housing operates disproportionately to the detriment of racial minorities.  But that's not enough.  The denial must be motivated by racial bias.  Here, the court pointed to the fact that no other housing development petition had ever before been the subject of a referendum petition.  It further excerpted a few quotes from what must have been hours of  testimony at the various Council proceedings to support the conclusion that there was a colorable case that racial bias existed in the City of Cuyahoga and motivated some of those who opposed the housing project.  Again, not a particularly surprising finding.


From this (and very little more  really), the court reached the following conclusion:


"At bottom, the circumstances surrounding the opposition to the project, including the comments mentioned above, at least, raise a genuine issue of material fact as to whether the City, in rejecting the ordinance which approved the site plan, gave effect to the racial bias of its citizens."


The Court made no effort to itself establish that those who signed the petition that implemented a clear provision of the City Charter denying effect to the ordinance had a racial bias.  Nor did  it suggest how the City Council or the Building Director might have made such a determination.

It apparently mattered not who was responsible for the petition, and what motivated them, so long as there were some loud citizens in Cuyahoga who were biased against minorities.  This was not necessary, the court suggested, because the City knew who was "behind" the referendum petition and why they promoted it:


"[T]he Court sees a distinction between inquiring into the thoughts of the voter at the voting box, and recognizing the stated motivations of citizens at public meetings and of those who organize and effectuate a petition drive. Where the former would involve the scrutiny of "people acting in a legislative capacity,"

the latter is simply an attempt to "gather additional information concerning the basis of opposition to the [ordinance]. . .


[Later in the opinion] [I]t is beyond peradventure that this court may properly view the statements made by residents of Cuyahoga Falls as additional information concerning the basis of the opposition to the proposed housing project. . . .  Of course, private citizens' motivations and government officials' knowledge of these motivations may be quite relevant to the ultimate issue of the government officials' purposes."." [Citations omitted]


The Federal Housing Act discussion is similar in tone, although here the court notes that it is not necessary to show actual discriminatory intent only discriminatory effect coupled with "extraordinary circumstances."

It finds the extraordinary circumstances in the fact that the referendum was the first of its kind and that the Ohio Supreme Court ultimately found that the referendum provided for in the City Charter was unconstitutional as applied to administrative actions of the Council, even though the Charter language did apply to those actions by its terms.


The court even went so far as to indicate that the City itself "used"

the referendum process  somehow overlooking the fact that the decision to use the process was made by persons outside of the City government and, insofar as the City officials knew, was a perfectly valid use of neutral governance provisions.  Note that the constitutionality problem was not all that evident  the Supreme Court reached that conclusion only on rehearing, following an approval of the process in its first ruling.

How much prescience did the Cayahoga city attorney have to have in order to dope this one out?


As to the Substantive Due Process Claim, the court again concluded that the City officials could not "hide behind" the fact that the charter compelled them to respect the petition:


"[The District Court] found that the defendants' actions were not arbitrary and capricious because the City was simply following its own law providing for the use of referendum. J.A. at 60.

However, the Supreme Court has stated that "[i]f the substantive result of the referendum is arbitrary and capricious . . . then the fact that the voters . . . wish it so would not save the [zoning] restriction."


The court went on to point out that there was no basis shown for denial of the proposed project in the City zoning ordinance.  Consequently, the City was "irrational" in refusing to issue the necessary permits.  The Court conveniently neglected to consider whether it was "rational" for the City to assume that the provisions of its charter providing for democratic processes were valid until rule invalid by a pending court process.


Thus, unless there is a settlement, a federal court jury will be presented with a substantial damages claim.  Even if the jury finds insignificant damages (the total delay was only a few months), the attorney's fee awards under these various federal statutes will eat the City budget to pieces.


Comment: Obviously, most of the editor's comments steamed out while he was writing the description of the case.  The editor is hardly expert in fair housing lore, and it may well be that there is a legal foundation for the positions taken by the court here, although the editor suspects that there is an even stronger case to be made that the decision is wrong on the law.  What appears to make no sense usually, in the final analysis, makes no sense.


Of course, we can't hide from history.  Horrible discrimination has been justified in the past through recourse to ordinary and apparently neutral governmental devices.  But we also must note that there is much greater political strength today in the forces of those who want to eradicate discrimination (the editor counts himself in this group).

Consequently, we do have choices in the way that we foil those who wish to deny opportunity on the basis of race.  Given those choices, it may be a bad idea to select a method that challenges the very integrity of our democratic form of government. Even if we do find it necessary in some on some occasions to overturn our democratic processes (protection of minorities, after all, is usually undemocratic), surely we should do so only on a much stronger showing than existed in this case that the processes we attack in fact reflect racial bias.



Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.


DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:




[Does not matter]

Text in body of message

Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:




[Does not matter]

Text in body of message

Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:




[Does not matter]

Text in body of message

Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:




[Does not matter]

Text in body of message

Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/