Kyle, TX Gains Allies in Housing Discrimination Lawsuit Appeal

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The City of Kyle, TX, facing a legal challenge to its minimum development standards, which critics contend would discriminate against minorities, has gained support from the Texas Municipal League and the state and international associations of city attorneys, as well as four other Central Texas cities. The case is being watched closely by cities nationwide, because the appellate court decision may serve as a precedent and affect many other cities that have enacted similar ordinances, legal experts say.

The City of Kyle, TX, facing a legal challenge to its minimum development standards, which critics contend would discriminate against minorities, has gained support from the Texas Municipal League and the state and international associations of city attorneys, as well as four other Central Texas cities.

The case is being watched closely by cities nationwide, because the appellate court decision may serve as a precedent and affect many other cities that have enacted similar ordinances, legal experts say.

The support came in the form of a friend-of-the-court brief filed on Nov. 24, 2009 with the Fifth Circuit Court of Appeals, which is considering the appeal of a Federal District Court decision in favor of Kyle’s modification of its zoning code. (Nos. 09-50352 & 09-50505, National Association for the Advancement of Colored People; Texas State Conference of NAACP Branches; Austin Branch of the NAACP; Home Builders Association of Greater Austin, Inc.; National Association of Home Builders, Inc., Plaintiffs-Appellants-Appellees v. City of Kyle, Texas, Defendant-Appellee-Appellant.)

Joining in the amicus curiae brief in support of Kyle, are: City of Manor, Texas; City of Round Rock, Texas; City of Pflugerville, Texas; City of Jonestown, Texas; Texas Municipal League; Texas City Attorneys Association; and International Municipal Lawyers Association. These cities also filed an amicus brief in support of the City of Kyle in the original lawsuit in the court of US District Judge Lee Yeakel.

Kyle’s revised zoning ordinance established minimum standards for construction of new single family homes in the city: a) minimum of 1,600 sq ft, up from 1,400 sq ft; b) minimum lot size of 8,190 sq ft, 20 percent greater than previously; c) garages of not less than 480 sq ft, and d) constructed with exteriors of 100 percent masonry, encompassing clay (brick), concrete, cement-based siding, or stone options. The zoning ordinance was amended again in November 2005 when the city, anticipating litigation, raised the fee for residential building permits by 25 percent to cover the expected litigation costs.

In November 2005, the national NAACP, Texas State Conference of NAACP, Austin Branch of NAACP together with the National Association of Home Builders and the Home Builders Association of Greater Austin filed suit in Federal District Court.

Located just south of Austin, Kyle has a rapidly growing population, a “minority majority” City Council, a large Hispanic population (57 percent), and a large inventory of entry-level affordable housing.

The plaintiffs claimed that the revised zoning ordinance violated the (Federal) Fair Housing Act aimed at prohibiting discrimination in housing and that the city retaliated against the HBA by raising the permit fees.

Judge Yeakel heard the case in February 2008 and handed down his ruling in favor of the city on March 30, 2009. Judge Yeakel stated in his decision that “the Austin HBA and NAACP failed to conduct a proper statistical analysis” to support their claim that the city was trying to price minorities out of the housing market in Kyle.

The decision is now on appeal and a decision by the Fifth U.S. Circuit Court of Appeals is expected toward the middle of 2010. If the decision is upheld, legal experts say, it will serve as a strong precedent for all cities in Texas and elsewhere which have already or are considering enacting masonry ordinances and other minimum development standards.

In the 43-page amicus brief, the city attorneys and other cities argue that the lower court decision favoring Kyle should be upheld because:

  •     The plaintiffs did not have legal standing to file the complaint in the first place;
  •     The plaintiffs failed to show a prima-facie (on its face) violation of the law, and
  •     Kyle presented sufficient evidence that it had a legitimate, non-discriminatory purpose in enacting the ordinances, and that plaintiffs failed to show that a less discriminatory alternative would equally serve that purpose.

The amicus brief contends that “Congress enacted the FHA to prevent discrimination in housing practices and policies, not to prevent cities from exercising legitimate legislative judgments through zoning and building regulation. Plaintiffs’ arguments could undermine their governmental authority, placing them in a position of serious uncertainty.

To hold that Plaintiffs’ possibilities-and-contingencies statistics carried their prima facie burden could require cities to anticipate, predict, and quantify the unpredictable and unquantifiable. Cities would first need to determine whether a municipal action might have an economically discriminatory impact and consider every variable that may affect such potential discriminatory impact into the future. This would place cities at the mercy of every group that has a vision of growth, development, or developmental controls different from the cities’ lawful and legitimate regulations.”

Austin attorney Jose de la Fuente, one of the attorneys representing the amicus group, said, “Since this case has reached the appellate court, the decision could become an important precedent for cities nationwide. Establishing zoning rules and setting development standards is one of the most important things that city governments do. A ruling affirming the trial court’s decision in Kyle’s favor will strengthen the law on the well-established right of cities to set reasonable zoning and development standards.”

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GREGORY GRAZE
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