Agenda - Planning Commission - 06/02/2016

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May 10, 2016 ( Volume 10 I Issue 9 Zoning Bulletin determining whether discriminatory intent existed, including: circumstantial and direct evidence of discriminatory intent; the impact of the official ac- tion; the historical background of the decision, "particularly if it reveals a series of official actions taken for invidious purposes; departures from the normal procedural sequence." Here, the district court had looked primarily at the factors of: (1) the "considerable impact that [the Village's] zoning decision had on minorities in that community;" and (2) "the sequence of events involved in the Board's decision to adopt R-T zoning instead of R-M zoning after it received public opposition to the prospect of affordable housing in [the Village.]" Viewing the public opposition in light of: (1) the racial makeup of the Village, (2) the lack of affordable housing in the Village, and (3) the likely number of minorities that would have lived in affordable housing at the Social Services Site, the district court concluded that Village officials' "abrupt change of course" from pursuing an R-M zoning to pursuing an R-T zoning "was a ca- pitulation to citizen fears of affordable housing, which reflected race -based animus " The Second Circuit concluded that the district court's analysis and factual findings supported the conclusion that the Village officials know- ingly acquiesced to race -based citizen opposition. The Second Circuit found that although the citizen opposition was not overtly race -based or made through the use of explicit racial language, the words used by the R-M zon- ing opponents were "code words" for racial animus. The court cited examples of such code words as including complaints of: "full families liv- ing in one bedroom townhouses," and "four people or ten people in an apart- ment," as well as concerns about a decline in property values and a reduced quality of life in their community with pleas to "keep [the Village] what it is" and to "think of the people who live here." The Second Circuit further concluded that while legitimate concerns such as traffic and school overcrowding may have motivated in part the de- cision to adopt the R-T zoning instead of the R-M zoning, the Village would not have adopted the R-T zoning in the absence of discriminatory animus. With regard to the Plaintiffs' claims of disparate impact, the Second Circuit explained that under a United States Housing and Urban Develop- ment ("HUD") regulation interpreting disparate -impact liability under the FHA, the parties' burdens of proof are as follows: First, a plaintiff or charg- ing party must come forward with a prima facie case, by showing: (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices. Next, the defendant or respondent may rebut the prima facie case by proving that the "challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant." If the defendant meets its burden, the burden of proof shifts back to the plaintiff to show that the "substantial, legitimate, nondiscriminatory interests supporting the chal- lenged practice could be served by another practice that has a less discrimi- natory effect." (See 24 C.F.R. § 100.500(c)(1)-(3)). Here, the district court had not followed HUD's framework. The district 10 ©2016 Thomson Reuters