Appellate Court rejects NAACP, NAHB challenges to town’s pro-masonry ordinance

Sources: Brick Industry Association-Southwest, Dallas; CP staff

A U.S. Court of Appeals for the Fifth Circuit (Houston) panel has found a National Association for the Advancement of Colored People- and National Association of Home Builders-anchored coalition lacked legal standing in its claims that revised, Kyle, Texas, zoning standards violate the Federal Fair Housing Act (FHA). In a November 11 opinion, the Appellate Court essentially affirms a March 2009 U.S. States District Court for the Western District of Texas (Austin Division) decision rejecting plaintiffs’ challenge based on their failure to present evidence the  standards discriminated against African-Americans or Hispanics.

A 2003 City of Kyle zoning ordinance increased minimum residential unit size from 1,400 sq. ft. to 1,600 sq. ft. and required exteriors of 100 percent clay, concrete, fiber-cement or stone masonry. Officials of Kyle—a fast growth town of 26,000 about 20 miles south of Austin—raised residential building permit fees in 2005 by 25 percent to cover anticipated litigation costs. In November of that year, NAACP, Texas State Conference of NAACP Branches, Austin Branch of NAACP, along with the NAHB and Home Builders Association of Greater Austin, filed suit in District Court. Plaintiffs alleged the revised zoning ordinance violated the FHA and the city retaliated against the HBA by raising the permit fees. In a March 2009 ruling, Judge Lee Yeakel found plaintiffs had failed to conduct a proper statistical analysis to support a claim Kyle was trying to price minorities out of its housing market.

“With the zoning ordinance revisions and masonry requirement we were trying to establish minimum standards of quality that will benefit both current and prospective residents and taxpayers,” former City Manager Tom Mattis said. “These standards promote durability, longevity, and safety in residential construction.” Most home builders active in Kyle have adjusted to the new minimum standards because they seek to deliver a product that people will want, he adds.

“The contention we were trying to prevent minorities from being able to afford a home in Kyle is preposterous,” said former Kyle Mayor Mike Gonzalez. “At the time this ordinance was passed, we had an African-American mayor presiding over a council that held a majority of Hispanics and African-Americans. We are very proud of the diversity in our city and recognize the strength of character that diversity brings us.”

The Appellate Court embraced all of Kyle’s standing arguments and held, in particular, that neither the NAACP nor the NAHB had established any direct injury to their members or substantial diversion of financial resources traceable to the effect of the zoning revisions. “The published opinion will make it harder for organizations like [the Kyle plaintiffs] to file similar speculative challenges to municipal regulations and help to save municipalities from the expense of defending their regulations on the merits at trial,” said defense attorney David Bird. The appellants can pursue rehearing measures or petition the Supreme Court to review the case, he adds, noting, “It is unlikely that any such requests would be granted. With any luck, the case should be over.”