Session Function Code: S563 Planning for and Defending...

Session Function Code: S563

Planning for and Defending Fair Housing

HOUSING DISCRIMINATION –

DEFENSE PERSPECTIVE

Edwin P. Voss, Jr.

APA 2012 National Planning Conference

April 16, 2012

TODAY

Why does the FHA apply to zoning?

Matters of proof.

Application of FHA to specific planning

and zoning case scenario.

FAIR HOUSING ACT

Enacted in 1968 – 42 U.S.C. § 3604(a)

• Prohibits discrimination in sale or

rental of housing, “or otherwise make

unavailable or deny” housing.

• “Because of” Race, Color, National

Origin, Religion, Sex, Handicap or

Familial Status

FHA Standards of Proof

1. Discriminatory Intent (also known as

“disparate treatment”)

2. Discriminatory Effect (also known as

“disparate impact”)

Inclusive Communities Project

v. Town of Flower Mound

Facts:

April 2008 letter

June 2008 meeting

ICP proposal presented

June 2008 follow-up

letter

Lawsuit filed November

2008

ICP v. Flower Mound

Intentional Discrimination alleged:

Town’s failure to enter into contract

with ICP to provide LIHTC housing

Town’s refusal to select location for

development of low-income housing

Based on the race of ICP’s clients

Injunctive relief and attorney’s fees

ICP v. Flower Mound

A. Pretrial motions to dismiss

B. Trial in July 2010

C. Court’s decision: March 2011

D. Findings of Fact and Conclusions of

Law (Appendix C of paper)

E. Town did not violate FHA

ICP v. Flower Mound

Statistical evidence

Comparison with neighboring city

Experts: statistics/LIHTC/planning

Use of circumstantial evidence and

discriminatory effect factors to prove

intentional discrimination

ICP v. Flower Mound

1. Pretext assumed

2. Race a significant factor?

a. Historical background: ICP

(slightly)

b. Specific sequence of events:

Neutral

c. Departures from normal procedure:

Town (heavily)

d. Substantive departures: Town

ICP v. Flower Mound

2. Race a significant factor? (cont.)

e. Legislative history: Neutral

f. Disparate impact: ICP

Result: ICP failed to prove race was a

significant factor in Town’s refusal to: (1)

partner with ICP on LIHTC project, or (2)

identify site for MF housing.

ICP v. Flower Mound

What’s missing from this picture?

No developer

No development application

No proposal or inquiry other than

letters/informal meeting

No recent ordinance

Low demand for multifamily housing

Session Function Code: S563

Planning for and Defending Fair Housing

HOUSING DISCRIMINATION –

DEFENSE PERSPECTIVE

Edwin P. Voss, Jr.


April 16, 2012

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SMITH, ROBERTSON, ELLIOTT, GLEN, KLEIN & DOUGLAS, L.L.P.

| | SMITH ROBERTSON A t t o r n e y s a t L a w

SMITH ROBERTSON 221 West Sixth Street, Suite 1100

Austin, Texas 78701

512.225.5800│main line

512.225.5838│main fax


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The Law Future

Effect

The Cost

Increase

and

The Effect

PLANNING FOR AND DEFENDING FAIR HOUSING Session Function Code: S563

Raise

the

Bar

Kyle is

Full Up

With

Starter

Homes

Kyle Housing

Statistics

Retaliation

City of Kyle –

The Perfect

Storm

Michael Klein


April 16, 2012


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KYLE HOUSING STATISTICS

Kyle Housing

Statistics

2001 Kyle Housing Inventory

2001 Kyle Housing Inventory –

Deteriorated and Dilapidated

Kyle Population Estimates & Projections

Where Does Kyle’s Growth Come From?

Where is Kyle?

Home Value Estimate in 2000

Google Map

City2332.pdf


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WHERE IS KYLE?

Kyle Housing Statistics

AUSTIN

KYLE

SAN MARCOS

SAN ANTONIO

22 miles

10 miles

49 miles

IH-35

80 miles


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WHERE DOES KYLE’S GROWTH COME FROM?

Due to its close proximity to downtown Austin and location on I-

35, the city of Kyle is “in the path of growth.” Kyle’s strategic

location offers both residents and businesses prime sites to the

booming Austin-San Antonio corridor, which is one of the

fastest growing metropolitan regions in the nation. The rapid

development of the Interstate 35 corridor region has changed

the complexion of Kyle.

Plaintiffs’ Rule 1006 Summary of (1) the 2007 Economic Development Strategic Plan for

Kyle; (2) the City of Kyle Transportation Master Plan; and (3) the City of Kyle 2001-2020

Comprehensive Plan, Ex. P-191, p. 3



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Kyle Population Estimates and Projections



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Kyle’s Growth Coming from Austin

Kyle Comprehensive Plan


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STARTER HOMES

Plum Creek

Kyle is full up with starter homes

Citizen Workshops

Enough Starter Homes

Kyle is

Full Up

With

Starter

Homes


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PLUM CREEK

Starter Homes


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CITIZENS WORKSHOP

Starter Homes


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RAISE THE BAR

Former P&Z Commissioner — How to Stop

Growth

Kyle City Manager — “Raise the Bar”

Before & After Zoning Comparison Ex P190

Comparison of Selected City Zoning

Ordinances

Raise

the

Bar


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KYLE CITY MANAGER

“The overall effort was try to raise the bar in general on the

basic minimum single-family home.”

Tom Mattis, City Manager of Kyle, Texas, in interview by K-EYE News on March 20, 2005

Raise the Bar Cost Increase & Effect


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KYLE PLANNING & ZONING COMMISSIONER

Q. So do you recall having any discussions with either

[Council Member 1] or [Council Member 2] or [Council Member 3] or

[Planning & Zoning Comm. Member 1] about how to slow residential

growth in the City of Kyle?

A. I was asked how to stop it.

Q. Who was asking you that?

A. [Council Member 1].

Former City of Kyle Planning & Zoning Commissioner, Deposition Testimony taken

November 6, 2007

Raise the Bar


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COMPARISON: 20 SELECTED CITY ZONING ORDINANCES

Cities Requiring a 6825 Sq. Ft. or Greater Lot (7 of 20)

Alamo Heights Decatur

Balch Springs Friendswood

Burnet Hewitt

Coppell

Cities Requiring a 1200 Sq. Ft. or Greater Home (3 of 20)

Balch Springs Robinson

Coppell

Cities Requiring a Garage (2 of 20)

Balch Springs Hewitt

Cities Requiring 100% Masonry (0 of 20)

None

Raise the Bar


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COST INCREASE & EFFECT

State of Texas

Austin-San Marcos MSA

Hays County

City of Kyle

Raising the Bar – A Demonstration

The Cost

Increase

and

The Effect


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RAISING THE BAR – A DEMONSTRATION

Cost Increase & Effect

Professor Sager

Statistics Professor

Expert Witness for Plaintiffs

Manager of City of Kyle


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RAISING THE BAR – A DEMONSTRATION

Professor Sager

Statistics Professor

Expert Witness for Plaintiffs

Cost Increase & Effect Raising the Bar


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THE PERFECT STORM

Bedroom Community of Austin

Explosive Growth

City of Kyle –

The Perfect

Storm

Virtually 100% Single-Family Residential

Large % of Homes in Entry-Level Price Range

Effort to “Raise the Bar” on Basic Minimum

Single-Family Home


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RETALIATION

Fair Housing Act § 3617

Inspection & Fee Increase (Ordinance 495)

Ex P160-3

Retaliation


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Fair Housing Act § 3617

§ 3617. Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.

Retaliation


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COUNCIL INCREASES INSPECTION AND BUILDING

FEES TO FUND LITIGATION

Retaliation


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FUTURE EFFECT

1990 Total Population

Construction Building Permits

2000 Total Population Future

Effect

2010 Total Population


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THE LAW

In Theory & In Practice

Black Jack (Produced No Evidence)

Reinhart

Statistical Evidence

Dothard (Applicant Flow Not Required)

Plaintiffs’ Prima Facie Case


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Plaintiffs’ Prime Facie Case

To establish a prima facie case of adverse impact, plaintiffs must,

by a preponderance of the evidence demonstrate that the

[defendant’s action] had an adverse impact on minorities at a

substantially and disproportionately higher rate than whites . . . .

Once established, the burden shifts to the defendants to

demonstrate, by a preponderance of the evidence, that legitimate

business reasons justify the adoption of [defendant’s action].

Bernard v. Gulf Oil Corp., 841 F.2d 547, 559-60 (5th Cir. 1988)

The Law


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Statistical Evidence

The Law

Employment

FHA


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Statistical Evidence - Employment

The Law

Dothard v. Rawlinson, 433 U.S. 321 (1977)

Int’l Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977)


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Dothard v. Rawlinson

433 U.S. 321 (1977)

“The appellants argue that a showing of disproportionate impact on

women based on generalized national statistics should not suffice

to establish a prima facie case. They point in particular to

Rawlinson's failure to adduce comparative statistics concerning

actual applicants for correctional counselor positions in Alabama.

There is no requirement, however, that a statistical showing of

disproportionate impact must always be based on analysis of

the characteristics of actual applicants.”

433 U.S. at 330 (emphasis added)

The Law Statistical Evidence


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433 U.S. 321 (1977)

“The application process might itself not adequately reflect the

actual potential applicant pool, since otherwise qualified people

might be discouraged from applying because of a self-

recognized inability to meet the very standards challenged as

being discriminatory.”

433 U.S. at 330 (emphasis added)

“A potential applicant could easily determine her height and weight

and conclude that to make an application would be futile. Moreover,

reliance on general population demographic data was not

misplaced where there was no reason to suppose that physical

height and weight characteristics of Alabama men and women

differ markedly from those of the national population.” 433 U.S. at 330



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433 U.S. 321 (1977)

“For these reasons, we cannot say that the District Court was

wrong in holding that the statutory height and weight standards had

a discriminatory impact on women applicants. The plaintiffs in a

case such as this are not required to exhaust every possible

source of evidence, if the evidence actually presented on its

face conspicuously demonstrates a job requirement’s grossly

discriminatory impact. If the [defense] discerns fallacies or

deficiencies in the data offered by the plaintiff, he is free to adduce

countervailing evidence of his own. In this case no such effort was

made.” 433 U.S. at 331 (emphasis added)



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433 U.S. 321 (1977)

“I agree that the statistics relied upon in this case are sufficient, absent rebuttal,

to sustain a finding of a prima facie violation . . . , in that they reveal a

significant discrepancy between the numbers of men, as opposed to women,

who are automatically disqualified by reason of the height and weight

requirements. The fact that these statistics are national figures of height

and weight, as opposed to statewide or pool-of-labor-force statistics,

does not seem to me to require us to hold that the District Court erred as

a matter of law in admitting them into evidence.

. . .

The statistics relied on here do not suffer from the obvious lack of relevancy of

the statistics relied on by the District Court in Hazelwood School District v.

United States, 433 U.S. at 308, 97 S.Ct. at 2742.”

Dothard, Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr.

Justice BLACKMUN join, concurring in the result and concurring in part. 433

U.S. at 337-8. (emphasis added)



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Int’l Brotherhood of Teamsters v. U.S.

431 U.S. 324 (1977)

At the initial, “liability” stage of a pattern-or-practice suit the

Government is not required to offer evidence that each person for

whom it will ultimately seek relief was a victim of the employer’s

discriminatory policy. Its burden is to establish a prima facie case

that such a policy existed. The burden then shifts to the employer

to defeat the prima facie showing of a pattern or practice by

demonstrating that the Government’s proof is either inaccurate or

insignificant.

p. 360



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Int’l Brotherhood of Teamsters v. U.S.

431 U.S. 324 (1977)

In any event, our cases make it unmistakably clear that “(s)tatistical analyses have served and will continue to serve an important role” in cases in which the existence of discrimination is a disputed issue. [citations omitted] We have repeatedly approved the use of statistical proof, where it reached proportions comparable to those in this case, to establish a prima facie case of racial discrimination in jury selection cases. [citations omitted] Statistics are equally competent in proving employment discrimination. We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. [citations omitted]

pp. 339-40



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STATISTICAL EVIDENCE - FHA

“[S]tatistics ‘have critical, if not decisive significance’” in

determining discriminatory effect cases.

United States v. Mitchell, 580 F.2d 789, 791 (5th Cir. 1978) (quoting United States v.

Northside Realty Assocs., Inc., 518 F.2d 884 (5th Cir. 1975)) (quoted in Dews v.

Town of Sunnyvale, 109 F. Supp. 2d 526 (N.D. Tex. 2000))

Statistical Evidence The Law


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Reinhart v. Lincoln City

482 F.3d 1225 (10th Cir. 2007)

Accordingly, the Reinharts must provide evidence indicating before-and-

after costs of dwellings and the percentages of protected and nonprotected

persons who will be priced out of the market as a result of the increase.

pp. 1230-31

Yet the Reinharts told the district court nothing about the expected prices

of homes in the development, or, more importantly, the amount by which

those prices would exceed what they would have been absent the change

in the regulations. And nothing in the Reinharts' income data (from which

they could estimate the percentages of people who could afford a

$200,000 house) would enable anyone to calculate the specific impact on

protected groups, as compared to the general population, from an increase

in home prices from $X to $Y.

p. 1231

The Law


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In Theory & In Practice

Once the plaintiff has made out a prima facie case of discriminatory effect, by demonstrating adverse impact on a particular minority group and harm to the community generally by the perpetuation of segregation, the burden shifts to the defendant to prove a compelling government interest. Specifically, a defendant must show that

(1) its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest, and

(2)no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.

Sunnyvale at 565, citing Huntington at 939

The Law


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Black Jack Produced No Evidence

The Law

Stated Governmental Interests

Analysis of Stated Interests

U.S. v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974)


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Stated Governmental Interests

(1) Road and traffic control;

(2) Prevention of overcrowding of schools;

(3) Prevention of devaluation of adjacent single-family homes.

Several other interests were also alluded to in the record, including exclusion of apartments where there were already too many and where there was no need for them.

Black Jack

U.S. v. City of Black Jack, 508 F.2d 1179, 1186-7 (8th Cir. 1974) (citations omitted).

The Law


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Analysis of Stated Interests

In determining whether any of these rise to the level of a compelling governmental interest, we must examine: first, whether the ordinance in fact furthers the governmental interest asserted; second, whether the public interest served by the ordinance is constitutionally permissible and is substantial enough to outweigh the private detriment caused by it; and third, whether less drastic means are available whereby the stated governmental interest may be attained.

We need not go beyond the first step in the inquiry, for we find that there is no factual basis for the assertion that any one of the three primary interests asserted by the City is in fact furthered by the zoning ordinance, and we find that the other asserted interests- at least on the facts of this case- are clearly not substantial in relation to the housing opportunities foreclosed. To paraphrase the Supreme Court in Shapiro v. Thompson, supra at 638, 89 S. Ct. 1322, we conclude that the City does not use and has no need to use the ordinance for the governmental purposes suggested.

U.S. v. City of Black Jack, 508 F.2d 1179, 1186-7 (8th Cir. 1974) (citations omitted).

Black Jack The Law


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SMITH, ROBERTSON, ELLIOTT, GLEN, KLEIN & DOUGLAS, L.L.P.

| | SMITH ROBERTSON A t t o r n e y s a t L a w

SMITH ROBERTSON 221 West Sixth Street, Suite 1100

Austin, Texas 78701

512.225.5800│main line

512.225.5838│main fax

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