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Disparate Impact Claims under Fair Housing Act – Supreme Court Grants Cert

November 10, 2011
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UPDATE: The Supreme Court dismissed this case after both parties agreed to dismiss on February 10, 2012. 

Original post from November 10, 2011:

The Supreme Court recently granted cert in Magner v. Gallagher, a case that will likely have implications for local governments. IMLA submitted an important amicus brief in this case, you can read our brief here and see a mention of our brief in a recent Forbes.com article.

Like many cities, St. Paul has a property maintenance code which establishes minimum maintenance standards for all structures, including provisions on light, ventilation, heating, sanitation, fire safety, etc. In 2002, the City established the Department of Neighborhood Housing and Property Improvement (DNHPI) as an executive department responsible for administering and enforcing the code.

The director of DNHPI increased the level of code enforcement target at rental properties, and directed proactive “sweeps” to detect code violations. DNHPI sought to compel property owners to take greater responsibility for their properties or, alternatively, force changes in ownership. To achieve its objectives, DNHPI employed a variety of strategies for renter-occupied dwellings, including orders to correct or abate conditions, condemnations, vacant-building registration, fees for excessive consumption of municipal services, tenant evictions, real-estate seizures, revocations of rental registrations, tenant-remedies actions, and if necessary, court action.

Plaintiffs in this case are essentially landlords, with portfolios ranging from one property to over forty properties. These landlords received code enforcement citations that in many cases, cited between ten and twenty-five violations per property. As a result, Plaintiffs claim they suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances.

Plaintiffs brought a number of claims (11 in total), and the district court dismissed all on summary judgment. The plaintiffs appealed to the Eighth Circuit Court of appeals, where the Court affirmed in all aspects except one. On review, the 8th Circuit held that disparate impact theory applied to a claim of racial discrimination under the FHA when a city applies its housing maintenance code to substandard housing, because the cost to repair tended to reduce housing options for people of color. The standard used by the 8th Circuit is that a plaintiff “must show a facially neutral policy ha[d] a significant adverse impact on members of a protected minority group.” Plaintiffs are NOT required to show that the policy or practice was formulated with discriminatory intent. The Circuits are split on this. The Seventh Circuit (and a few others have follow) includes the following factors to be used: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.

SCOTUSblog is a good place to follow the action.


Acronym of the Day – RLUIPA

September 19, 2011
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As local government lawyers, most of us are familiar with RLUIPA and what keeps us up at night is the question: What do institutionalized persons have to do with religious land use? [RLUIPA – Religious Land Use and Institutionalized Persons Act].

Well, it may be a while before we get an answer to that particular question, but the question trail doesn’t end there. IMLA joined an certiorari-stage amicus effort in City of San Leandro v. Int’l Church of the Foursquare Gospel. [Read Ninth Circuit decision here] [Read San Leandro’s cert petition brief here]

It’s an interesting case, and if SCOTUS grants cert, it might be the case that clears up some of the ambiguity of RLUIPA. The Questions Presented in the cert petition are:

1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a “substantial burden” under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006).

2. Whether case-by-case analysis of a land use application constitutes an “individualized assessment” under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006).

3. Whether neutral, generally applicable planning principles may be a “compelling interest” of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§2000cc(a)(1)(A) (2006).

See IMLA’s amicus submission here.


Posted in Uncategorized

April 18, 2011
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IMLA welcomes our new intern for the month of April, from the country of Georgia.

I am Teona Tavelishvili. I am visiting here through the Legislative Fellows Program organized by American Councils for International Education in hopes of learning about how local governments operate in the United States. The program facilitates month long internships with local and state governments throughout the United States and is designed to help young professionals from other countries gain a better understanding of the legislative and political processes.

I am lawyer of the local administrative body of  Sagarejo municipality. This is a town in Kakheti, in eastern Georgia with 12,000 population.  During my interning period I attended the Mid-Year Seminar which took place in Washington DC.  I met representatives of counties, city attorneys and other members of IMLA from different states of America. I listened to their interesting speeches and representatives shared each other their municipality’s issues. They were talking about their counties problems and offered their solving ways.  Some of them are similar to my municipality’s others are not. But what I found interested here is that this organization makes many good things for municipalities and such meetings and seminars is very important, to improve working systems in local bodies.

My great desire is  when I go back to my country tell my region about IMLA and make presentation about the functions and goals of IMLA and offer Georgians to create the similar organization in our country.


Posted in General

New Strategy to Combat Abandoned Property?

March 10, 2011
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Here’s a redirect to an interesting interview heard recently on NPR.

Here’s the description provided on the NPR website of the audio feed: As the foreclosure crisis continues, derelict properties have become a growing problem in neighborhoods nationwide. Webster, Mass., has come up with an innovative way to deal with buildings deemed nuisances: posting the names and contact information of the owner in front of the property.

How is your community dealing with abandoned properties? Have any other communities tried posting a “wall of shame” on a owner’s abandoned property?


Posted in Land Use

Deceptive Competition: What the 2010 U.S. Census Figures Might Reveal About Cable Competition in Your Community

March 9, 2011
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Author: Matthew Schettenhelm

In the past three years, cable operators have flooded the FCC with petitions claiming that because satellite providers serve the same communities, the cable operators face “effective competition” and should be deregulated. What has caused this dramatic uptick in filings at the turn of the decade? As you might suspect, the answer appears to relate less to a sudden emergence of meaningful competition (which, for most, remains hard to come by) than to old-fashioned gamesmanship.

In many recent petitions, cable operators, seeking to beat the release of 2010 U.S. Census data, have distorted the competitive status of many local markets by comparing current satellite subscribership with 10 year old (2000 U.S. Census) occupied housing data. For communities that have grown over the past decade, this creates a highly misleading picture of competition: it overstates satellite subscribership, often dramatically. Yet, lacking better data, the FCC—which finds effective competition if a cable operator shows that 15% of community households subscribe to satellite—has accepted these mismatched showings and freed cable operators from local regulation.

This need not be the case. Local government attorneys can now quickly and easily clarify this distortion using a simple tool: 2010 U.S. Census data. We have found that using 2010—not 2000—U.S. Census housing data often materially changes the 15% analysis. If your community has experienced any growth over the past decade, you should review whether a cable operator has recently filed an effective competition petition. If so, a simple filing with the FCC could correct the operator’s “effective competition” status and preserve valuable community benefits.

Why an Effective Competition Finding Matters

An “effective competition” finding helps the cable company and hurts the local community. After the FCC finds “effective competition,” a local government may no longer regulate the cable company’s basic cable service rates. In addition, cable operators use “effective competition” status to justify other anti-consumer practices. For example, certain operators have claimed that they no longer must place PEG channels on the basic service tier, and can require additional equipment to view it. The “competitive market,” it is said, will protect these benefits. But in areas where this so-called “effective competition” is the product of a cable operator’s skewed market calculations, cable subscribers in the community are left with no protection at all.

Why Recent Petitions May Not Fairly Reflect the Competitive Market in Your Community

In recent years, cable operators have flooded the FCC with effective competition petitions. In 2009, the total number of local markets found subject to effective competition more than doubled, increasing from 3,205 to 7,034. The FCC explained that the increase was due largely to petitions relying on the 15% satellite market share test. The FCC also found that cable rates are higher in markets that supposedly face “effective competition.”  The FCC openly attributes this effect to these recently-filed petitions.[1]

The fact that monthly cable bills have risen in new “effective competition” communities should not be a surprise for a simple reason: many recently-filed petitions do not document real competition at all. Because the FCC compares a community’s satellite subscribership with its total occupied households (to find effective competition, the FCC requires over 15% of households to subscribe), and because the U.S. Census only updates household counts every 10 years, many cable operators have claimed “effective competition” by comparing current satellite subscribership with ten year old household data. In many communities, this has produced “effective competition” findings that recent household data reveal to be simply wrong.

What Your Community Can Do

Local government attorneys now have an easy way to counter this tactic. For many states, the U.S. Census Bureau has already released occupied household numbers by community. For many others, such data will be released shortly.[2]

If your community has been the subject of a recent effective competition petition (even one already granted), you should test the cable company’s reported subscribership count against the occupied household count reported in the 2010 U.S. Census. If the total number of competing subscribers the company reports is less than 15%, your community should correct the record and preserve local benefits. The cable operator should not achieve “unregulated” status based on an openly misleading depiction of your local cable market.

Should you have any questions, please do not hesitate to contact us (Miller & Van Eaton, PLLC).



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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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