Agenda - Planning Commission - 06/02/2016

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May 10, 2016 I Volume 10 j Issue 9 Zoning Bulletin prohibits intentional discrimination —that is, disparate treatment. The court explained that, under the FHA, "[a] private developer or governmental body cannot refuse to sell or rent housing to someone because of that person's race, religion, gender, or other protected characteristic, nor can a govern- ment zone land or refuse to zone land out of concern that minorities would enter a neighborhood." If a governmental actor engages in such discrimina- tion, such conduct also violates the Equal Protection Clause, explained the court. The court further explained that the FHA also prohibits disparate impact thus forbidding actions by private or governmental bodies that cre- ate a discriminatory effect upon a protected class or perpetuate housing segregation without any concomitant legitimate reason. Here, the Ninth Circuit reversed the district court's dismissal of the Developers' disparate -treatment claims because the court found that the Developers had sufficiently alleged that the City's decision to deny the rezone request was "driven by animus" against Hispanics. The court explained that the Developers would not need to "prove that the discrimina- tory purpose was the sole purpose" of the rezone denial, but only that it was a "motivating factor." Here, the Developers alleged that the City discrimi- nated against them Developers with a reputation as developers of subdivi- sions favored by Hispanics by denying their application in order to ap- pease constituents, despite knowing that opposition to the rezone application was based largely on racial animus, and despite the recommendations of the City's zoning commission and planning staff, as well as the City's regular practice. The court agreed that "community animus can support a finding of discriminatory motives by government officials, even if the officials do not personally hold such views." Here, the court found that statements made by neighborhood opposition submitted to the City Council contained "code words," which sent a clear message and carried a distinct tone of racial motivations and implications. Those code words, found the court, consisted of stereotypes of Hispanics that "would be well -understood in [the City]." The court concluded that the alleged use of such code words, along with the allegations that the Develop- ers were known to many as a developer of Hispanic neighborhoods on the basis of their housing projects in the City, provided "plausible circumstantial evidence that community opposition to the Developers' proposed develop- ment was motivated in part by animus, and that the City Council was fully aware of th[o]se concerns when it took the highly unusual step of acceding to the opposition and overruling the recommendations of its zoning com- mission and planning staff." Accordingly, the court held that the Develop- ers' complaint sufficiently alleged claims of disparate treatment under the FHA and Equal Protection Clause such that they should not have been dismissed by the district court. The court remanded those claims to the, district court for further consideration. As to the Developers' disparate -impact claim: the district court had rejected that claim on the sole ground that similarly -priced housing was available elsewhere in the Southeast of the City, The Ninth Circuit rejected the district court's reasoning. Instead, the Ninth Circuit held that "when a 6 © 2016 Thomson Reuters