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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.
APA 2012 National Planning Conference
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
APA 2012 National Planning Conference
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
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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
Kyle Housing Statistics
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Kyle Population Estimates and Projections
Kyle Housing Statistics
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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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Main Index Future Effect
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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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Dothard v. Rawlinson
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
The Law Statistical Evidence
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Dothard v. Rawlinson
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)
The Law Statistical Evidence
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Dothard v. Rawlinson
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)
The Law Statistical Evidence
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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
The Law Statistical Evidence
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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
The Law Statistical Evidence
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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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