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There are many hurdles to addressing the national housing shortage, but one of the most fundamental is a basic misalignment of motives.
The people who would benefit most from the construction of new affordable housing usually do not live in the places where it might most logically be built and therefore are not politically represented there. The people who do live there, meanwhile, perceive that new affordable housing would be against their interests.
This conflict feels intrinsic to American politics, but it isn’t. It derives in large part from Warth v. Seldin, a little-remembered U.S. Supreme Court case that arose in Penfield and was decided 50 years ago today. The Warth plaintiffs sued for access to affordable housing in the town, arguing that restrictive zoning practices of the sort prevalent in American suburbs violated the constitutional rights of those who found themselves excluded. They hoped for a decision in their favor to bring the entire edifice of exclusionary zoning tumbling down. In a 5-4 decision, a majority of the justices declined the invitation and instead decided the case on the legal concept of standing.
The relationship between those two issues—who gets to live in a place versus who has the right to seek justice there—is worth reconsidering. It underlies not just the current housing crisis but the broader edifice of racial and socioeconomic segregation in American life and politics.
Warth was brought in 1972 by Metro-Act of Rochester (now Metro Justice), a social justice group that formed in the aftermath of Rochester’s 1964 racial uprising. It targeted affluent, growing Penfield and in particular its restrictive zoning code, a nearly impregnable barrier against poor would-be residents. At the time, 98 percent of town land then was zoned for single-family residential. Black residents in Penfield numbered fewer than one in 400, and anecdotal evidence strongly suggested intent. A town board member in 1966, for example, expressed concern that certain types of development might represent “a wedge to bring colored people into the town.”
The lawsuit was filed in federal court on behalf of several poor and Black Rochester residents who claimed that the town’s zoning regulations excluded them, as well as housing developers who claimed to have been blocked from building there. None of the plaintiffs, however, had actually attempted to buy, rent or build a home in the town. Before a court could reach the heart of the question, it would have to address the hurdle of standing: Did people who did not live in Penfield, with no history of transacting business with the town, have any right to complain about its laws?
In a decision issued on June 25, 1975, on behalf of the five-justice majority, Justice Louis Powell answered the question clearly: No, they did not.
“None of these petitioners has a present interest in any Penfield property; none is himself subject to the ordinance’s strictures,” Powell wrote. “Instead, they rely on little more than the remote possibility … that their situation might have been better had (the town) acted otherwise.”
Powell came to his conclusion over the objections of his law clerks, who believed he was relying on “legal technicalities” to dodge the matter at hand. Justice William Brennan Jr. said as much in dissent.
The court’s stiff adherence to standing, Brennan wrote, could “only be explained by an indefensible determination … to close the doors of the federal courts to claims of this kind. Understandably, today’s decision will be read as revealing hostility to breaking down even unconstitutional zoning barriers.”
Since the ruling in Warth technically hinged on standing, it has been remembered only as a procedural case of minor importance. Its impact, however, extends beyond mere legalism. The court’s blanket denial of standing to non-residents constituted a formidable precedent: If you don’t live here, you can’t object to the rules—and the rules say you can’t live here.
Penfield today is more diverse than it was 50 years ago. The vast majority of the town, though, remains dedicated to large-lot single-family homes, and proposals to add comparatively affordable housing still reliably draw crowds in opposition. A 2019 report found that the border separating the Penfield Central School District from Rochester is the single steepest dividing line between school districts in the country in terms of students’ socioeconomic status.
Warth represented a call to address “festering sores in our society,” as Justice William Douglas wrote in dissent, through a recognition that broad societal concerns like the adequate supply of housing are seldom contained by municipal lines. A different decision might have provided a legal framework to overcome the suffocating parochialism that so often typifies local politics today.
Fifty years later, the questions at the heart of Warth still nag. What is a community? Who counts? Whose voices deserve to be heard?
Justin Murphy is research and communications coordinator at Our Local History.
The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. See “Leave a Reply” below to discuss on this post. Comments of a general nature may be submitted to the Letters page by emailing [email protected].
I wouldn’t want someone from outside my City/Neighborhood to force a regulatory change governing my property either. So IMO there is merit to the concept of “Standing”. Also racial covenants in Deed restrictions were struck down years ago by the same Court. However you have stumbled onto a legitimate problem here. We are going on 60yrs since burdensome Zoning regulations were implemented State wide. I happen to be old enough to remember life before massive Zoning ordinances. Contrary to legend, the world (or NYS in this case) was not a unmanageable jungle of un permitted buildings. On the contrary , if you owned property, you could build almost anything you wanted to, Setbacks and Insurance were the major limiters. Thus we had many Victorian era houses that had multiple affordable apartments within, small business buildings that also had living space (which had the advantage of being owner occupied 24/7 which made off-hour crime less likely). You could build a detached garage or mother-in-law space in your back yard, you could add a second story onto your ranch style house etc. This provided a lot of affordable housing around here during the post-war boom. Now most Zoning codes are so onerous, you wouldn’t be allowed to build any of these things. This is gotten so extreme since the late 60s that NYS is even bogged down when they try to create a energy project in some locality, or bring in new industry. Now that Albany has realized how much obstruction (& frankly impediment of property rights) they’ve created, they want they want to circumvent their own system (under the guise of “Permitting Reform”). There is a recent book out (i haven’t read it yet) called “Abundance” that examines how these well intended regulations have ham strung progress and property rights. (with the recent LA fires as a example, the last report I saw said only a single digit amount of building repair permits had been issued) . Local communities do have a interest in scrutinizing so-called “low-income-housing” . There are many examples where block apartments were constructed to with the good intention to provide housing to poor people, only to have them break down into centers of crime. I’d be happy to join hands with the “affordable housing advocates” and burn the Zoning code.
Excellent article which highlights how systemic racism works in our society to erect the structures of segregation and discrimination. There is much in our society which contributes to its dysfunction and Warth vs. Seldin is a good example.
Thank you Justin for a thoughtful informative article and to the Rochester Beacon for publishing it.
Wonderful essay.
I will just add that in addition to reinforcing our county’s egregious segregation, single family zoning also contributes to climate change by making nearly every single suburban resident dependent on car travel and most homeowners saddled with the most energy-inefficient housing we could create. More than 1/2 of greenhouse gas emissions in Monroe County come from our homes and cars. If we are to make any progress on combating climate change, we must increase the amount of land that is zoned for multifamily and mixed use development.
I find it very difficult to see, read, know, that the issues that have plagued our areas for decades are still alive and well and continue the labeling and separation of human beings.
Justin, as one of lawyers who wrote the briefs on behalf of the plaintiffs in Warth, I greatly appreciate your insights. It also should be noted that one year earlier, the Supreme Court ruled in the Milliken case that lower courts could not order metropolitan wide busing to remedy school segregation in the Detroit schools.
It was hoped that a favorable ruling in Warth would avoid the problem created by Milliken. Desegregated housing in the suburbs in turn would lead to less segregation in the schools. A court order aimed at school segregation would not be necessary.
Warth and Milliken together severely limited the ability to address both housing and school segregation.
I’d love to hear the answers that other suburban towns might have to the questions at the end of this article.
Thank you Justin for the incredible work you do researching and writing about the framework that underpins the socially engineered segregation we experience in our region. It is the lead weight holding us down, preventing Rochester capitalizing on all the wonderful assets we possess. We continue to underperform and tolerate nothing more than mediocrity… or less. We must boldly tackle these issues surrounding racism. They are not simply legacy. They still exist and inform our politics and lifestyle.
Great informative article that also examines the legal issue decided and those left undecided by the highest Court. “If you don’t live here, you cannot object to the rules-and the rules say you can’t live here.” Such zoning laws are at play nationwide to keep out people with less money, from living on land not owned by these same property owners. Poorer working people, especially people of color, were also disproportionally affected by the loss of housing wealth in the Great Recession caused by unprecedented fraud on Wall Street. It keeps Jim Crow alive in housing and negates Brown v. Board of Education of Topeka. We will hear screams of “My Property Values”, but diverse inner ring suburbs have seen their property values skyrocket, values which seem to have more to do with supply and demand.
Typical Lewis Powell reasoning.