Agenda - Planning Commission - 12/07/2017

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Zoning Bulletin November 10, 2017 I Volume 11 I Issue 21 rezoned a parcel of land from a Public Use ("P") designation to a Residential - Townhouse ("R-T") zoning designation. The parcel had previously been oc- cupied by numerous government offices. Following that rezoning, MHANY Management, Inc. ("MHANY") challenged the rezoning. MHANY argued that because an R-T zoning designation did not allow any "affordable multifamily housing," the rezoning of the parcel had a disparate impact on minorities and disparate treatment of minorities —namely African Americans and Hispanics. MHANY maintained that an alternative zoning designation would have had allowed for multi -family housing and thus had a less discriminatory effect on minorities. Specifically, MHANY had maintained that a CO-5(b) zone with multi -family residential group restrictions ("R-M" zoning controls), which would have allowed for the construction of multifam- ily housing such as apartment buildings, would have had a less discriminatory effect than the R-T zoning controls that were adopted by the Village. MHANY, which was later joined by intervenor New York Communities for Change, (hereinafter, collectively, "MHANY") brought a housing discrimination ac- tion against the Village. After trial, agreeing with MHANY, the United States District Court, E.D. New York found that based on the Village's rezoning of the parcel from a P to R-T zoning designation, the Village was liable under various federal laws, including the Fair Housing Act (the "FHA"), 42 U.S.C.A. §§ 3601 to 3618, based on disparate impact and disparate treatment. MHANY and the Village cross -appealed. The United States Court of Ap- peals for the Second Circuit affirmed the majority of the Court's conclusions, but remanded the case on two points, one of which was addressed is addressed here. The Second Circuit held that the district court had applied an incorrect standard in addressing MHANY's FHA disparate impact claims. The Second Circuit explained that the district court should have analyzed the disparate impact claims under the standard announced by the Secretary of Housing and Urban Development ("HUD") in 2013. (See Implementation of the Fair Hous- ing Act's Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (Feb. 15, 2013) (codified at 24 C.F.R. § 100.500).) The Second Circuit found that the FHA was "ambiguous on the relative burdens of the parties, and therefore HUD's interpretation was entitled to deference." Under HUD's standard, in order to succeed on a FHA disparate impact claim, a plaintiff such as MHANY, here —must present a prima facie (i.e., on its face) case of disparate impact. The burden then shifts to the defendant (here, the Village) to demonstrate that the "challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant." (24 C.F.R. § 100.500(c)(1)-(2).) As a third step, the burden shifts back to the plaintiff to prove that the defendant's "substantial, le- gitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect." (24 C.F.R. § 100.500(c)(3).) Here, the Second Circuit held that the first two steps were met: "MHANY more than established a prima facie case[,] . . . [and] [the Village] identified legitimate, bona fide governmental interests, such as increased traffic and strain on public schools." However, the Court remanded the case back to the © 2017 Thomson Reuters 7