Agenda - Planning Commission - 08/03/2017

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June 25, 2017 I Volume 11 I Issue 12 Zoning Bulletin other hand, includes actions taken by `governmental bodies that create a discriminatory effect upon a protected class or perpetuate housing segregation without any concomitant legitimate reason.' " An FHA claim based on a disparate impact theory is evaluated under "the familiar burden -shifting framework," and therefore a plaintiff (i.e., the party bringing the legal action) must first make a prima facie (i.e., first impression) showing of disparate impact. If such a showing is made, the burden then shifts to the defendant (i.e., the party which the legal action was brought against) to prove that the challenged practice "is necessary to achieve one or more substantial, legitimate, nondis- criminatory interests." "If the defendant satisfies that burden, the plaintiff may still prevail by showing that the defendant's interests could be served by a less discriminatory alternative." To making a prima facie showing of disparate impact, plaintiffs are required to establish: "(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." Thus, here, to establish a prima facie showing of disparate impact, the Developers' had to show that the City's actions had a discriminatory effect on Hispanics through statistical analysis. If the Developers could make such a showing, the burden would then shift to the City (as described above). In this case, arguing that there were no material issues of fact in dispute, the City asked the court to decide the matter in its favor on the law alone. The City argued that the Developers "could not meet their prima facie burden of establishing [a] disparate impact claim under the FHA because of the glut of housing opportunities in the southeast por- tion of [the City] that were similar to [the Developers'] proposed development on the Property." Alternatively, the City also argued that the Developers "failed to present the appropriate statistics to meet the prima facie test for disparate impact and also that it had a legitimate and nondiscriminatory basis for denying the rezoning request." The court granted the City's motion for summary judgment on the City's first argument, finding that the Developers could not meet their prima facie burden because of other housing opportunities in the area. The court denied the City's alternative motion as moot and therefore did not address the City's challenge to the Developers' statistical show- ing of disparate impact. The Developer appealed. On appeal, among other things, the United States Court of Appeals for the Ninth Circuit reversed the lower court's finding of summary judgment in favor of the City as to the Developers' disparate impact claim under the FHA. On remand, the City renewed its motion for summary judgment based on its argument that the Developers "failed to present the appropriate 4 © 2017 Thomson Reuters