Metropolitan News-Enterprise


Monday, March 28, 2016


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Ninth Circuit Revives Claim That Racial Bias Triggered Rezoning Denial


From Staff and Wire Service Reports


A mostly white city in Arizona must defend claims that it illegally discriminated by denying a rezoning application that would have increased the local population of Hispanics, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel held that two developers had raised colorable claims that the City of Yuma violated the Fair Housing Act and the Equal Protection Clause of the Fourteenth Amendment, and that a district judge erred in dismissing them.

Avenue 6E Investments and Saguaro Desert Land Inc. brought the challenge in 2009 after Yuma’s city council denied their request to rezone a parcel of land to permit higher-density housing developments. Avenue and Saguaro’s rezoning request had been the only rejection of 76 applications the council had considered in the three preceding years, Judge Stephen Reinhardt noted in his opinion for the Ninth Circuit.

He also noted that the firms have “a reputation as a developer of Hispanic neighborhoods based upon their development of several affordable housing projects in Yuma in which the majority of homes were sold to Hispanics.”

Reinhardt said District Judge John W. Sedwick should have considered evidence that the city council capitulated to the protests of the development’s opponents, “in the face of the city’s own expert’s recommendation to approve the request and its practice of generally granting these requests.”

Elizabeth Brancart, an attorney for the developers applauded the outcome. “We are very pleased with the decision and gratified that the Ninth Circuit recognized both the historical and current importance of the federal Fair Housing Act,” Brancart, with the San Francisco Bay Area firm of Brancart & Brancart, said in an email to Courthouse News Service.

The 39-page opinion notes that the property at issue is on the western boundary of an area in Yuma’s southeast portion, where most residents are white. Many homeowners there sent letters to the city council opposing the proposed development, according to the ruling.

Although none of the letters specifically mentioned Hispanic people as a group, they contained such complaints as the development would create “a low-cost, high-crime neighborhood” and would be “catering” to low-income people.

Finding that the developers’ complaint “contains sufficient allegations that the city’s decision was driven by animus to state a plausible claim for relief,” Reinhardt called dismissal of the disparate-treatment claim improper.

“Community members’ opposition to the developers’ application, using language indicating animus toward a protected class, provides circumstantial evidence of discriminatory intent by the city,” he wrote. There is precedent in which the use of “code words” may indicate discriminatory intent, he said.

Although none of the statements by community members “expressly refers to race or national origin,” they did “raise various concerns about issues including large families, unattended children, parking and crime,” the ruling states.

Reinhardt said these concerns consist of “stereotypes of Hispanics that would be well-understood in Yuma.”

And “in denying the rezoning, the city council’s decision ran contrary to the unanimous recommendation provided by the city’s planning and zoning commission, as well as the recommendation of the city planning staff,” he continued.

Yuma’s “singling out” of the developers’ zoning request for denial “supports the developers’ contention that the city had a discriminatory intent,” Reinhardt added.

Meanwhile the “sole ground” for summary judgment Yuma had raised alleged that southeast Yuma offered similarly priced housing elsewhere, the court noted.

“We reject that ground and hold that when a developer seeks to rezone land to permit the construction of housing that is more affordable, a city cannot defeat a showing of disparate impact on a minority group by simply stating that other similarly-priced and similarly-modeled housing is available in the general area,” Reinhardt said.

Yuma’s obligation to establish a “legitimate and credible basis” for its rezoning denial “is not an unreasonable burden,” the judge added.

He was joined in the opinion by Judge Consuelo Callahan and Senior Judge A. Wallace Tashima.

Yuma’s attorney, Andrew Jacobs with Snell & Wilmer in Tucson, did not respond to a CNS email seeking comment.  

The case is Avenue 6E Investments, LLC v. City of Yuma, 13-16159


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