Kyle, TX Officials Praise Masonry Ordinance; Expect to Prevail Again in Legal Challenge

Lower court says plaintiffs failed to prove discriminatory effect

By Gregory Graze

The City of Kyle Texas near Austin is known in the area for having a rapidly growing population, a "minority majority" City Council, a large Hispanic population (57 percent), and for having a large inventory of entry-level affordable housing.

It also, since November 2003, has been one of more than 100 Texas cities that have amended their zoning codes to include masonry planning, something that didn't sit well with some homebuilders.

When Austin area homebuilders and the NAACP joined forces and singled out Kyle's masonry ordinance as being "anti-growth" and in effect discriminatory toward minorities and low-income people, the folks in Kyle felt a mixture of disbelief and amusement, according to City Manager Tom Mattis.

"We had an African-American as mayor then (now Hispanic), and every neighborhood in Kyle is ethnically and racially diverse," he said. "Diversity is not an issue in Kyle."

Kyle Mayor Mike Gonzalez said, "The contention that we were trying to prevent minorities from being able to afford a home in Kyle is preposterous. At the time this ordinance was passed, we had an African-American mayor presiding over a council that held a majority of Hispanics and African-Americans. We are very proud of the diversity in our city and recognize the strength of character that diversity brings us."

The masonry ordinance established minimum standards for residential construction 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, 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. The plaintiffs claimed that the revised zoning ordinance violated the Fair Housing Act and that the city retaliated against the HBA by raising the permit fees.

U.S. Dist. Court Judge Lee Yeakel in Austin heard the case (Cause No. A-05-CA-979-LY, National Association for the Advancement of Colored People, Texas State Conference of NAACP Branches, and Austin Branch of the NAACP, Home Builders Association of Greater Austin, Inc., and National Association of Home Builders, Inc. plaintiffs v. City of Kyle Texas) 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.

San Antonio attorney Bradford Bullock, who represents Kyle in the case, is confident that the district court decision will be upheld by the appellate court, because the plaintiffs did not provide supporting statistical evidence.

"The plaintiffs didn't meet the prima facie burden - there was no proof of impact," Bullock said. "They didn't come close to meeting their burden."

In the meantime, the Kyle ordinance remains in effect as it has since adoption. City Manager Mattis says it is working just as officials had hoped.

"With the masonry ordinance we were trying to establish minimum standards of quality that will benefit both current and prospective residents and taxpayers," Mattis said. "These standards promote durability, longevity, and safety in residential construction. The overall impact will be to enhance the aesthetic appeal of our city and strengthen the tax base, which we need to support continued growth."

He said most of the home builders who are active in Kyle have adjusted well to the new minimum standards, because they want to build a product that people will want.

"It's rare to have people unified on an issue," Mattis added, "but our residents support this ordinance strongly, because it's in everyone's best interest."