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January 10, 2011 7:30 AM CST

Court Rejects Challenge to Masonry Ordinance

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TThe U.S. Fifth Circuit Court of Appeals has rejected an appeal filed by the NAACP and NAHB who claimed that revised zoning standards adopted by the City of Kyle violate the FHA.

The U.S. Fifth Circuit Court of Appeals has rejected an appeal filed by the NAACP and NAHB who claimed that revised zoning standards adopted by the City of Kyle violate the FHA.
The U.S. Fifth Circuit Court of Appeals has rejected an appeal filed by the NAACP and National Association of Home Builders, who claimed that revised zoning standards adopted by the City of Kyle, Texas violate the Federal Fair Housing Act (FHA).

The Federal Court’s decision (Case No. 09-50352) published on Nov. 11, 2010 essentially affirms the Federal District Court decision in March 2009, which had rejected the legal challenge on the basis that the plaintiffs had not presented any evidence that the city’s revised zoning standards had discriminated against African-Americans or Hispanics.

The case was being followed closely by cities throughout the region and beyond, because of the potential impact on local planning and development decisions.

The lower court judgment was affirmed unanimously by the Fifth Circuit, which found that neither the NAACP nor the NAHB had standing to sue the City under the FHA.

"In a nutshell," said David Bird, "one of the attorneys involved in the Kyle defense, the court embraced all of Kyle’s standing arguments and held, in particular, that neither the NAACP nor the NAHB had established any direct injury to their members or any substantial diversion of their own financial resources traceable to the particular effect of Kyle's regulations."

“The published appeals court opinion will make it harder for organizations like these to file similar speculative challenges to municipal regulations in the future and will help to save municipalities from the expense of defending their regulations on the merits at trial,” Bird said.

“The appellants can seek panel rehearing and rehearing by the en banc court,” he said. “They also can petition for a writ of certiorari to the U.S. Supreme Court. It is, however, unlikely that any such requests would be granted. With any luck, the case should be over.”

Kyle (est. pop. 26,000), located about 20 minutes south of 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.

Kyle’s zoning ordinance, revised in 2003, 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.

When Austin area home builders and the NAACP joined forces and singled out Kyle’s revised zoning ordinance, which included new masonry standards, 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 former City Manager Tom Mattis.

“We had an African-American as mayor then, and every neighborhood in Kyle is ethnically and racially diverse,” he said. “Diversity is not an issue in Kyle.”

Former 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 zoning 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.”

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 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.

"With the zoning ordinance revisions and masonry requirement 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.”

The full text of the appeals court decision can be found at the court’s website: http://www.ca5.uscourts.gov/opinions%5Cpub%5C09/09-50352-CV0.wpd.pdf.


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