By Don Marsh, Editor
As he promotes “freedom from over-regulation and over-litigation” in his new book, Fed Up, Texas Governor Rick Perry should smile at local government power as exercised just outside his state capital and validated in NAACP v. City of Kyle. Plaintiffs in the case, examined here in June 2009, have failed again in their challenge of Kyle, Texas, zoning standards requiring cement or clay-based cladding for new single-family homes.
A U.S. Court of Appeals for the Fifth Circuit (Houston) panel determined a National Association for the Advancement of Colored People- and National Association of Home Builders-anchored coalition lacked legal standing in its claims the city’s ordinances violate the Federal Fair Housing Act (FHA). In a ruling last month, the Appellate Court essentially affirmed a March 2009 U.S. District Court for the Western District of Texas (Austin Division) decision denying plaintiffs’ pursuit of relief under the Act. The NAACP/NAHB coalition failed to present the latter court evidence of how the Kyle single-family home building standards discriminated against African-Americans or Hispanics.
The case arose from a 2003 zoning ordinance increasing minimum residential unit size from 1,400 sq. ft. to 1,600 sq. ft. and requiring 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—had also raised residential building permit fees 25 percent in 2005 to cover anticipated litigation costs.
Indeed, NAACP, Texas State Conference of NAACP Branches, Austin Branch of NAACP, along with the NAHB and Home Builders Association of Greater Austin (HBA), filed suit in District Court, alleging a) the revised zoning ordinance violated the FHA; and, b) the city had retaliated against the HBA through increased permit fees. The District Court ruled in March 2009 that 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 current and prospective residents and taxpayers,” said former City Manager Tom Mattis. “These standards promote durability, longevity, and safety in residential construction.” Most homebuilders active in Kyle have adjusted to the new zoning because they seek to deliver a product people will want, he added.
“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 held that plaintiffs had not established any direct injury to NAACP members or substantial diversion of HBA financial resources traceable to the effect of the zoning revisions. “The 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.
Embracing City of Kyle arguments on standing, the Appellate Court fittingly noted that alleged NAACP injuries were “neither concrete or imminent,” and that plaintiffs had not demonstrated how pursuit of the Kyle litigation “concretely and ‘perceptibly’ impaired HBA’s ability to carry out its purpose.”