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

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

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

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

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

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

17. Betsey Test: Impact 1.Usually proved by statistics 2.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: B usiness Necessity Implicit Questions: a.How necessary? b.How much cost should landlord bear to achieve statutory goals (“sufficiently compelling to justify”)?

19. Betsey Test: B usiness Necessity Court remands for application of defense: a.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 1)Strength of effect 2)Evidence of some intent 3)D’s interest/justification 4)Type of Remedy Requested?

22. Congdon v. Strine: Arlington Heights II factors 1.Strength of effect Affected disabled P more severely than other tenants Can’t get out as much; physical problems using stairs. 2.Evidence of some intent 3.D’s interest/justification 4.Type of Remedy Requested?

23. Congdon v. Strine: Arlington Heights II factors 1.Strength of effect 2.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 3.D’s interest/justification 4.Type of Remedy Requested?

24. Congdon v. Strine: Arlington Heights II factors 1.Strength of effect 2.Evidence of some intent 3.D’s interest/justification Court: D has no interest in elevator not working !!?? 4.Type of Remedy Requested?

25. Congdon v. Strine: Arlington Heights II factors 1.Strength of effect 2.Evidence of some intent 3.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 4.Type of Remedy Requested?

26. Congdon v. Strine: If Betsey Applied 1.Strength of Effect: Same

27. Congdon v. Strine: If Betsey Applied 1.Strength of Effect: Same 2.Business Necessity Defense: –New elevator wd cost $65,000. too much for 1 apt? –Might also look at cost of better maintenance?