Agenda - Planning Commission - 06/02/2016

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Zoning Bulletin May 10, 2016 I Volume 10 ( Issue 9 disparate impact on minority groups, and thus violated the disparate -impact component of the FHA. After a bench trial, the district court concluded that, among other things, the Plaintiffs had established, by a preponderance of the evidence, liability on the part of the Village for the shift from R-M to R-T zoning under the FHA, based on a theory of disparate treatment and disparate impact. The district court then issued an order granting the Plaintiffs the following relief against the Village: (1) a prohibitory nondiscrimination injunction; (2) fair housing training for Village officials; (3) a directive to the Village to pass a Fair Housing Resolution; (4) appointment of a third -party Fair Housing Compliance Officer by the Village; and (5) expenditure of reasonable sums to fund the relief required by the judgment. (By the time of the judgment, the County had abandoned plans to sell the Social Services Site to a private developer and instead decided to construct a new County Family Court building at the site. The district court also ordered that if the County decided to sell the Social Services Site within one year of the date of judgment, then the Village must begin the process of rezoning the Social Services Site from R-T to R-M controls. If the County did not make such an announcement, the court required that the Village: (1) join the County Urban Consortium, a group of County municipalities eligible for HUD affordable -housing funds; and (2) require that 10% of newly constructed residential development of 5 units or more be reserved for affordable housing.) The Village appealed. DECISION: Judgment of district court affirmed in part and vacated and remanded in part. The United States Court of Appeals, Ninth Circuit, first found no error in the district court's determination that the Village's decision to abandon R-M zoning in favor of R-T zoning was made with discriminatory intent, in violation of the FHA's prohibition on disparate treatment. In so holding, the court explained that § 804(a) of the FHA, also known as Title VIII of the Civil Rights Act of 1968, makes it unlawful "[t]o refuse to sell or rent. . .or otherwise make unavailable or deny, a dwelling to any person because of race, color,. . .or national origin." (42 U.S.C. § 3604(a)). "The phrase `otherwise make unavailable' has been interpreted to reach a wide variety of discriminatory housing practices, including discriminatory zoning restric- tions," said the court. The court also said that its "results -oriented language counsels in favor of recognizing disparate -impact liability." Thus, § § 804(a) and 805(a) of the FHA provide for both discriminatory intent (i.e., disparate treatment) and disparate -impact liability. With regard to disparate treatment, the court said that a governmental body may not escape liability merely because its discriminatory action was undertaken in response to the desires of a majority of its citizens. The court said that "[a] plaintiff can establish a prima facie [i.e., on its face] case of disparate treatment 'by showing that animus against the protected group was a significant factor in the position taken by the municipal decision - makers themselves or by those to whom the decision -makers were know- ingly responsive.' " The court said it must look to certain factors in 2016 Thomson Reuters 9