DISPARATE IMPACT: GOV’T DEFENDANTS

1. DISPARATE IMPACT: GOV’T DEFENDANTS Huntington Branch Continued

2. DQ131: Town’s Justifications ForZoning rules? Trying to get developers to build in depressed “urban renewal” area.

3. DQ131: Town’s Justifications ForZoning rules? Trying to get developers to build in depressed “urban renewal” area. Court rejects because: • can do w/o outright ban on multi-family homes outside depressed area (incentives) • maybe counterproductive; builders don’t have to work in Huntington; can just go elsewhere

4. Site-Specific sewage traffic health hazard from substation Plan-Specific parking fire protection inadequate recreation areas small units DQ131: Town’s Justifications for Rejecting Proposal

5. DQ131: Plan-Specific v. Site-Specific Justifications Site-Specific: Site chosen won’t work for this kind of project. E.g.: • toxic waste dump next door • site too small for multi-family housing

6. DQ131: Plan-Specific v. Site-Specific Justifications Site-Specific: Site chosen won’t work for this kind of project. Plan-Specific: Site OK; need to fix specifics of plans for this project

7. DQ131: Plan-Specific v. Site-Specific Justifications Site-Specific: Site chosen won’t work for this kind of project.Hard to get around. Plan-Specific: Site OK; need to fix plans for this project.Easier to get around: • often can let project proceed w modifications • instead of “no” can say: allow if meet specs • less discriminatory alternative almost always available

8. Site-Specific sewage traffic health hazard from substation Plan-Specific parking fire protection inadequate recreation areas small units DQ131: Town’s Justifications for Rejecting Proposal

9. Site-Specific sewage traffic health hazard from substation Not Supported by Evidence in Record Plan-Specific parking fire protection inadequate recreation areas small units DQ131: Town’s Justifications for Rejecting Proposal

10. 2d Circuit Balance in Huntington Branch • strong effect v. • weak reasons by town + • town not forced to build + • [unstated: evidence of intent] = Plaintiffs win Qs on 2d Circuit Opinion?

11. HBII: Supreme Court Opinion • Mandatory jurisd. at the time: state statute struck via Supremacy Clause • Affirms just portion dealing w zoning ordinance on narrow grounds: • Assuming disparate impact cause of action exists, sufficient evidence to support result • Inadequate justification given by town

12. HBII: Supreme Court Opinion: Precedential Value Unclear • Specifically declined to decide if disparate impact cause of action exists for FHA • BUT no justice said otherwise • Every lower court since says yes • SCt recently recognized for ADEA (Age) b/c supposed to parallel Title VII; cd make same argument here

13. DISPARATE IMPACT: PRIVATE DEFENDANTS Need to know 3 versions of Legal Test 1. Betsey 2. Arlington Hts (Congdon) 3. 4th & 10th Cir. (see DQ 138)

14. Betsey Test: (Similar to Blackjack (8th Cir) for govt defdts) 1. P shows disproportionate impact 2. Then D must prove business necessity sufficiently compelling to justify the impact

15. Betsey Test: Impact 1. Usually proved by statistics; not integral to this class a. I’ll make very clear; not ask you to assess close cases re stats b. Info on statistics in Note (pp.362-64) Qs on Statistics or Note?

16. Betsey Test: Impact • Usually proved by statistics • Like Huntington: 2 Kinds of Effect Relevant • impact on community (segregation/integration) • impact on affected group (residents of affected bldgs)

17. Betsey Test: Impact • Usually proved by statistics • Two Kinds of Effect Relevant • impact on community • impact on affected group • Raises hard Q of when pool is too small. • Why not require community effect? Maybe concern re many small ldlds with cumulative effect

18. Betsey Test: Business Necessity Implicit Questions: a. How necessary? b. How much cost should landlord bear to achieve statutory goals (“sufficiently compelling to justify”)?

19. Betsey Test: Business Necessity Court remands for application of defense: • policy in Q exclusion of families w children (pre-1988) b. Evidence that might meet this test in Betsey? i) Tenants moving out b/c prefer adults only bldgs ii) Harm to bldg/units from children iii) Can’t charge as much rent iv) Other?

20. Congdon v. Strine • Neutral Policy Challenged? Refusal to Get Elevator Into Good Repair • Applies Arlington Heights II factors even though they were designed for government defendant

21. Congdon v. Strine:Arlington Heights II factors • Strength of effect • Evidence of some intent • D’s interest/justification • Type of Remedy Requested?

22. Congdon v. Strine:Arlington Heights II factors • Strength of effect • Affected disabled P more severely than other tenants • Can’t get out as much; physical problems using stairs. • Evidence of some intent • D’s interest/justification • Type of Remedy Requested?

23. Congdon v. Strine:Arlington Heights II factors • Strength of effect • Evidence of some intent • Lack of evidence of intent “weighs in Strine’s favor” • Arl Hts II says it shouldn’t; otherwise drifting into disparate ttreatment • D’s interest/justification • Type of Remedy Requested?

24. Congdon v. Strine:Arlington Heights II factors • Strength of effect • Evidence of some intent • D’s interest/justification • Court: D has no interest in elevator not working !!?? • Type of Remedy Requested?

25. Congdon v. Strine:Arlington Heights II factors • Strength of effect • Evidence of some intent • D’s interest/justification • Court: D has no interest in elevator not working • Real Q: D’s interest in not fixing: • lots of $ to replace/repair? • could just be lazy • Type of Remedy Requested?

26. Congdon v. Strine:If Betsey Applied • Strength of Effect: Same

27. Congdon v. Strine:If Betsey Applied • Strength of Effect: Same • Business Necessity Defense: • New elevator wd cost $65,000. too much for 1 apt? • Might also look at cost of better maintenance?