Agenda - Planning Commission - 12/07/2017

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November 10, 2017 I Volume 11 I Issue 21 Zoning Bulletin district court with instructions that the district court determine whether MHANY proved at trial that the "substantial, legitimate, nondiscriminatory interests" proffered by the Village in support of its zoning shift "could be served by another practice that has a less discriminatory effect." (See 24 C.F.R, § 100.500(c)(3).) DECISION: Judgment for MHANY. The United States District Court, E.D. New York, found that MHANY met its burden at trial in demonstrating, by a preponderance of the evidence, that the Village's proffered reasons for its chosen zoning change (P to R-T) could have been met by another practice that had a less discriminatory effect. As an initial point, re -addressing the first step in the HUD standard analysis of this disparate impact claim, the court reiterated its previous, holding that R-M zoning would have provided for a "significantly larger percentage of minority household than the pool of potential renters in the R-T zoning." In other words, MHANY had established that the adoption of an R-T zoning instead of an R-M zoning "affected minority residents to a greater degree." In support of this finding, the court pointed to evidence that the R-T zoning would not have allowed for "any measurable number of affordable housing units," while the R-M zoning would have allowed for 45 to 78 affordable housing units. The court further noted that 88% of those on the Section 8 rental hous- ing list in the county were African American and Hispanic households, even though those households comprised only 14.8% of all households in the county. Thus, the court had found that R-M zoning would create more afford- able housing units available to minorities than the R-T zoning. Accordingly, the court reiterated its previous holding (made prior to the appeal and remand) that "R-M zoning controls would have a less discriminatory effect than R-T zoning controls." Re -addressing the second step in the analysis, the court noted that the Vil- lage had identified its "legitimate, bona fide governmental interests" in the zoning change as including: "controlling traffic; minimizing school over- crowding; developing townhouses; maintaining the character of the area; and creating a transition zone." On appeal, the Second Circuit had concluded that the only "legitimate interests" of those claimed by the Village were the interests of "minimizing traffic and school overcrowding." Finally, the court addressed the issue that was remanded to it from the Second Circuit: whether MHANY had met its burden at the third step of HUD's disparate impact burden shifting analysis. (See 24 C.F.R. § 100.500(c)(3).) For guidance, the court looked to the language of the statute and HUD's interpretation. The statute provides: "If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section [(i.e., the first and second steps of the analysis)], the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, 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).) And, the court found that "HUD's interpreta- tion could not be clearer that a plaintiff's burden under 24 C.F.R. § 100.500(c)(3) is not to show that the less discriminatory practice would be 8 © 2017 Thomson Reuters