Agenda - Planning Commission - 08/03/2017

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Zoning Bulletin June 25. 2017 I Volume 11 1 Issue 12 Citation: Avenue 6E Investments, LLC v. City of Yuma, Arizona, 217 F. Supp. 3d 1040 (D. Ariz. 2017) ARIZONA (05/1/17)—This case addressed the issue of whether a city's refusal to rezone land to permit higher -density development cre- ated disparate impact on Hispanics in violation of the federal Fair Hous- ing Act. The Background/Facts: In 2008, Avenue 6E Investments, LLC, and Saguaro Desert Land, Inc. (the "Developers") applied to the City of Yuma (the "City") to rezone a 42-acre parcel of undeveloped land (the "Property") from R-1-8 (minimum 8,000-square-foot-lots) to R-1-6 (minimum 6,000-square-foot-lots). Such a rezone would give the Developers 198 lots on which they intended to construct "affordable and moderately priced homes." Both the R-1-8 and R-1-6 zones were considered low -density zoning in the City, and were only one density grading apart. The City's planning staff found that the rezoning request was "consistent with the City's General Plan for thearea, which designated the area for low -density residential development". The City's planning staff recommended that the City Council approve the rezoning request. Meanwhile, the City Council also heard much neighborhood opposi- tion to the rezoning request. The opposition was "primarily based" on the "belief that higher -density development and lower -priced homes would increase crime and reduce property values." The Developers were known for developing low and moderately priced homes, with at least half of the purchasers of their, homes being Hispanic. The substance of comments from the opposition indicated that an expecta- tion of increased crime and lower property values was based on the "demographics" associated with the Developers' other developments. Due at least in part to the neighborhood opposition, on September 2008, the City Council denied the Developers' rezoning application. The Developers filed a legal action against the City. Among other things, the Developers claimed that the City's refusal to rezone the land created disparate impact on Hispanics under the federal Fair Housing Act, 42 U.S.C.A. § 33601 et seq. ("FHA"). Under the FHA it is unlawful to "make unavailable or deny" a "dwell- ing" to a person because of that person's race, color, religion, sex, fa- milial status, or national origin. (42 U.S.C.A. § 3604(a).) A dwelling includes "any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or por- tion thereof." (42 U.S.C.A. § 3604(b).) A FHA violation can be established under a theory of disparate treatment or disparate impact. "Disparate treatment is intentional discrimination; a governmental body cannot 'zone land or refuse to zone land out of concern that minorities would enter a neighborhood.' Disparate impact discrimination, on the © 2017 Thomson Reuters 3