DOCKET NO. 05-0437
Richard Thompson, et al.,
ON WRIT OF CERTIORARI
TO THE UNITED STATES SUPREME COURT
Please limit your arguments to the enclosed Questions Presented. You may rephrase the questions as long as the rephrasing does not change the essence of the issues posed. It is imperative that you carefully review the rules governing this year’s competition. There has been significant revision of the rules since last year.
On May 18, 2004 Respondent, the City of
Richard Thompson is a 35 year-old African-American father of twin daughters, Amira and Amina. Before his wife Celia succumbed to breast cancer in late 2003, Thompson acted as a stay-at-home father while Celia worked as a secretary. After Celia’s death, Thompson sought employment and eventually landed a job as a night time parking lot guard at We Watch Over Security. Much of Thompson’s income was used to cover child care expenses for his daughters. Despite working overtime, Thompson could not afford to keep the apartment he and his late wife rented.
While speaking with a coworker one night, Thompson
learned of the Inclusionary Zoning Act. Thompson’s
earnings were slightly less than 50 percent (50%) of the Annual Median Income
for the City of
Thompson learned that the Inclusionary Zoning Act
provides for a control period in perpetuity, with no chance for homeowners to
gain wealth creation on resale. After
reading more on the subject, Thompson learned that the City of
Eventually, Thompson filed suit against the Zoning Commission in federal District Court, representing a class of African-American potential homeowners who, according to the Complaint, “have been harmed by and who will be harmed by the unfair terms, privileges, and conditions of homeownership under Inclusionary zoning units in the City of Dreams” in violation of the Fair Housing Act. Specifically, Thompson claims that: (1) the Zoning Commission violated federal law when they enacted legislation that would prevent Plaintiffs from receiving the full terms, conditions and privileges of homeownership, which are statutorily mandated; (2) the Zoning Commission’s acts and omissions had or will have a discriminatory effect on Plaintiffs; and (3) the Zoning Commission’s acts and omissions were motivated by discriminatory intent.
After losing at the District and Circuit Court levels, Thompson appeals to the United States Supreme Court, where certiorari has been granted on two questions:
1. Whether Chapter 25 of the Zoning Regulations for the City of Dreams violates Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3604(b).
Whether Chapter 25 of the Zoning Regulations for the
The duties of the Zoning Commission are set forth
in City of
The Zoning Commission is an independent,
five-member, quasi-judicial body in the City of
- George T. Poole, Chairman
- Eduardo Gomez
- Cynthia Johnson
- Dr. Angela Shabazz
- Herman Kryzewski
On November 23, 2002, The Initiative for
Inclusionary Zoning Mandates (“IIZM”), a body of non-profit, public, and
private entities, proposed that the City of
Between July 25, 2003 and May 18, 2004, the OP and the Zoning Commission were allowed to raise questions in nine public hearings. Though several topics were discussed, testimony during the public hearings focused on the negative effects of a longer control period.
Excerpts from Zoning Commission Public Hearings
November 5, 2003
Chairman Poole: I don’t think the Commission is seeing the big picture here. We’re focusing too much on the minor details. I say we go with the perpetual control period or whatever we can get away with. Any windfall developers receive does not justify only temporary affordability.
Commissioner Shabazz: Chairman, I think this might have some negative implications and the only way I’ll agree to perpetuity is if I can receive some assurances that we can cure the negative impact.
Chairman Poole: This Commission doesn’t have to do anything about the control period ending. It makes the whole thing a lot simpler in terms of buyouts and all that kind of stuff.
Commissioner Shabazz: But Chairman, the testimony given here tonight indicates that low-income buyers will potentially have zero opportunity for wealth creation if we make the control period go into perpetuity. I thought the purpose of the program was to help them out. This seems to hurt them in the long run.
Chairman Poole: Eh, maybe this will teach them to work harder on their jobs. If they perform well on the job, I’m sure they’ll be rewarded with pay increases. That should be enough to help them save money and eventually buy a house at market rate. Even with the perpetual control period, the poor guy can resell, get his sack of money, and everybody goes on their merry way.
January 24, 2004
Chairman Poole: Ok folks, this hearing is called to order. First on tonight’s agenda, we have a Census Bureau
analyst here to discuss some statistics.
Commissioner Johnson: Agent
Chairman Poole: Oh, I thought they were all in jail.
Commissioner Johnson: Excuse me?
Chairman Poole: I mean, I thought I’d read somewhere that there were more Blacks in jail than in open society. Maybe that was just the men.
Commissioner Johnson: Agent
Commissioner Johnson: So, this program will probably have a much greater impact on African-Americans than other races?
Agent Blackburn: Well, just looking at the numbers, 78% of the people who qualify for the program are African-American, so they’ll likely be the ones who are most affected by it. That would be my educated guess.
Chairman Poole: And how long have you been with the Bureau?
Commissioner Johnson: Thank you, Agent Blackburn. We appreciate you for sharing your expertise and time.
May 18, 2004
Chairman Poole: We are preparing to vote on adopting Chapter 25 to
the City of
Commissioner Gomez: Yea
Chairman Poole: Commissioner Gomez’s vote is “Yea.” Commissioner Johnson.
Commissioner Johnson: Nay
Chairman Poole: Commissioner Johnson’s vote is “Nay.” Commissioner Shabazz.
Commissioner Shabazz: Nay
Chairman Poole: Commissioner Shabazz’s vote is “Nay.” Commissioner Kryzewski.
Commissioner Kryzewski: Yea
Chairman Poole: The vote count stands at two Yeas and two Nays. My vote is “Yea.” This statute is accepted.
Commissioner Shabazz: I’d
like to go on the record as saying I believe this statute will have a negative
impact on African-Americans in the City of
Chairman Poole: Duly noted. The statute is still accepted. If there is no other business, this meeting is adjourned.
Inclusionary zoning is designed to place low and moderate-income residents in housing that may not normally be affordable. Inclusionary zoning works by mandating real estate developers and contractors to incorporate into their development plans a number of units reserved for low-moderate income homebuyers. In return for their compliance, developers are granted a license to build at a greater density than otherwise would be permitted under applicable zoning restrictions. For example, where applicable zoning restrictions may limit a development to 50 units, an inclusionary zoning program may allow the development to be increased to 75 units, provided that 10 of these extra 25 units are reserved for low and moderate income buyers.
All inclusionary zoning ordinances, by their very nature, effectively grant low-income buyers a form of public subsidy. Most such programs condition participation upon a so-called control period, during which the homeowner either may not resell the unit, or must pay back into the inclusionary zoning program a percentage of any fair-market profit on resale. To strike a balance between long-term affordability and wealth-creation for low-income participants, most inclusionary zoning programs use a control period of between 10 and 30 years to maintain affordability, prevent “flipping,” and allow low-income residents to realize some of the benefits of homeownership. Thus, an inclusionary zoning homeowner who resells the home at the conclusion of the control period may be able to achieve some meaningful wealth-creation.
Of the many jurisdictions
across the country with inclusionary zoning programs, only the City of
Title 11 of the City of
CHAPTER 25 INCLUSIONARY ZONING
2500 General Provisions
2500 GENERAL PROVISIONS
2500.1 This Chapter establishes an Inclusionary Zoning Program that furthers the Housing Element of the Comprehensive Plan by increasing the amount and expanding the geographic distribution of adequate, affordable housing available to current and future residents.
It is the intent of the Zoning Commission to promulgate
only such regulations as are necessary to establish the minimum obligations of
property owners applying for building permits or certificates of occupancy
under an Inclusionary Zoning Program.
All other aspects of the program, including the setting of maximum
purchase prices and rents, the minimum sizes of the units, the selection and
obligations of eligible households, and the establishment of enforcement
mechanisms such as covenants and certifications shall be as determined by the
Council and Mayor of the City of
2500.3 The most important general purposes of the Inclusionary Zoning Program include the following:
(a) To utilize the skills and abilities of private developers to produce quality affordable housing;
To leverage private development, combined where
appropriate with zoning density increases, to produce affordable housing
throughout the City of
(c) To mitigate the impact of market-rate residential development on the availability and cost of housing available and affordable to low- and moderate-income households;
To increase the production of affordable housing units
throughout the City of
(e) To provide for a full range of housing choices throughout the City of Dreams for households of all incomes, sizes, and age ranges to preserve diversity and to ensure the benefits of economic integration for the residents of the City of Dreams;
(f) To stabilize the overall burden of housing costs on low- and moderate-income households;
(g) To create a stock of housing that will be affordable to low- and moderate-income residents over a long term; and
(h) To make homeownership opportunities available to low- and moderate-income residents.
2501.1 When used in the Chapter, the following terms and phrases shall have the meanings ascribed:
The Act – Inclusionary Zoning Act. References to the Act include any Mayor’s Order, agency rule, or other administrative issuance promulgated pursuant to that legislation.
Eligible household- one or more persons certified by the Mayor as being a low- or moderate-income household pursuant to the Act.
Inclusionary unit – a unit set aside for sale or rental to an eligible low- and moderate-income household as required by this Chapter or by order of the Board of Zoning Adjustment.
Low-income household – a household of one or more individuals with a total annual income adjusted for household size equal to less than fifty percent (50%) of the Area Median Income (“AMI”) as certified by the Mayor pursuant to the Act.
Mayor – the Mayor of the City of
Moderate-income household- a household of one or more individuals with a total annual income adjusted for household size equal to between fifty percent (50%) and eighty percent (80%) of the Area Median Income (“AMI”) as certified by the Mayor pursuant to the Act.