DESIREE MARTINEZ, Plaintiff and Appellant, v. CITY OF CLOVIS et al., Defendants and Appellants.
F082914 (Super. Ct. No. 19CECG03855)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 4/7/23
CERTIFIED FOR PUBLICATION
OPINION
Lozano Smith, David J. Wolfe, Mark K. Kitabayashi and Michael R. Linden for Defendants and Appellants.
Central California Legal Services, Patience Milrod, Alfred A. Gallegos, Jesse Avila; Public Interest Law Project, Valerie Feldman and Michael Rawson for Plaintiff and Appellant.
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This case involves the important statewide issue of assuring affordable housing opportunities to lower income families in California. The California Legislature has long recognized the lack of housing in California is a critical problem, finding “California has a housing supply and affordability crisis of historic proportions” affecting millions of citizens because of a failure to “effectively and aggressively confront the crisis.”1 The historic proportions of the affordability crisis have arisen despite the Legislature‘s measures addressing the need for housing. For instance, in 1965 the Legislature mandated that the general plans of all cities and counties include a “housing element” that is updated periodically to accommodate the housing
This case involves the City of Clovis‘s (City) housing element and related zoning ordinances and whether they comply with specific statutory requirements designed to assure affordable housing opportunities to lower income families in California. These requirements for a municipality‘s housing element have statewide importance because the housing elements of all cities and counties must include compliant zoning that accommodates the municipality‘s need for lower income housing.
Adequacy of Housing Element. Desiree Martinez, a Clovis resident, sued the City, alleging its housing element for the 2015-2023 planning period, including amendments and zoning changes adopted in March 2019, did not substantially comply with the Housing Element Law.2 The trial court ruled in Martinez‘s favor, finding the City‘s zoning changes did not meet the statute‘s minimum density requirements and, therefore, did not provide enough sites to accommodate the City‘s affordable housing allocation. As a result, the court concluded the amended housing element did not substantially comply with state law. The court issued a peremptory writ of mandate directing the City to adopt a housing element for the 2015-2023 planning period that substantially complies with the Housing Element Law and to zone or rezone adequate sites to accommodate its unmet lower income housing allocation from the previous (fourth cycle) planning period. The City appealed, contending it had substantially complied with the Housing Element Law.
First, we conclude the trial court correctly interpreted the minimum zoning density requirement in the Housing Element Law when it found the City‘s zoning overlay failed to satisfy that requirement. (See
Discrimination Claims. This appeal also addresses Martinez‘s claims that the City violated antidiscrimination provisions in one federal and two California statutes3 based on a disparate impact theory. Martinez does not seek damages for these violations or for any other violation alleged in her lawsuit. Instead, she seeks a writ of mandate to remedy the alleged violations along with injunctive and declaratory relief. The trial court rejected Martinez‘s disparate impact theory and sustained the City‘s demurrer to the FHA and FEHA discrimination claims without leave to amend. The court applied similar standards for disparate impacts in rejecting the
Duty to Affirmatively Further Fair Housing. After decades of failing to achieve the objective of adequate affordable housing, the Legislature significantly expanded the responsibilities of cities and counties by imposing a mandatory duty to affirmatively further fair housing. (
First, we interpret
We therefore affirm in part, reverse in part, and remand the matter for further proceedings on the three discrimination causes of action under
BACKGROUND ON HOUSING ELEMENT LAW
Over fifty-seven years ago, “the California Legislature enacted a broad measure requiring all counties and cities in California to ‘adopt a comprehensive, long-term general plan for the physical development of the county or city.’ (
In 1980, the Legislature enacted the Housing Element Law, “a separate, comprehensive statutory scheme that substantially strengthened the requirements of the housing element component of local general plans.” (California Building Industry Assn. v. City of San Jose, supra, 61 Cal.4th at p. 445.) Many components4 of a municipality‘s housing element are mandatory. (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1182 (Fonseca).)
In broad terms, the mandatory components of a housing element include “an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of
Review and Revision
A municipality must review its housing element for the appropriateness of its housing goals, objectives, and policies and must revise the housing element in accordance with a statutory schedule. (
Before revising its housing element, a local government must make a draft available for public comment and, after comments are received, submit the draft, as revised to address the comments, to the Department of Housing and Community Development (HCD).6 (
If the HCD finds the draft does not substantially comply with the Housing Element Law, the local government must either (1) change the draft to substantially comply or (2) adopt the draft without changes along with a resolution containing findings that explain its belief that the draft substantially complies with the law. (
If the HCD finds the adopted housing element does not substantially comply with the Housing Element Law, it “shall notify” the local government and “may notify the office of the Attorney General” that the local government is in violation of state law. (
Assessment of Housing Needs
A revised housing element‘s assessment of needs must quantify the locality‘s existing and projected housing needs for all income levels, which includes the locality‘s proportionate share of regional housing needs for each income level. (
The Housing Element Law divides the units in a RHNA into four categories: very low income, low income, moderate income, and above moderate income levels. (
To summarize, the HCD‘s regional housing needs determination and the RHNA assigned to a locality by the regional council of governments are the centerpiece of a revised housing element‘s assessment of housing needs.
After receiving its RHNA, each local government must update its housing elements to identify specific sites for development within the planning period that are sufficient to accommodate its RHNA for all income levels. (
The site inventory in a revised housing element is a listing of properties by assessor parcel number that contains information specified by statute. The mandatory information includes the size, general plan designation, and zoning of each listed property; a map showing the property‘s location; a general description of environmental constrains to the development of housing; and a description of existing or planned utilities, including availability and access to distribution facilities. (
For nonvacant sites, the site inventory must describe “the existing use of each property.” (
The statute does not limit the parcel sizes, but if the parcels are smaller than a half acre or larger than 10 acres, the locality must demonstrate development is feasible on the identified parcels. (
Program
After a local government has assessed its housing needs, analyzed constraints, and compiled its site inventory, “it writes the program side of its housing element.” (Making It Work, supra, 47 Ecology L.Q. at p. 995 [the program‘s schedule of action is the housing element‘s substantive heart].) If the available sites do not accommodate the local government‘s RHNA for each income level, the program shall identify the actions that will accommodate those needs, which include rezoning actions to close the gap. (
residential use occupy at least 50 percent of the total floor area of a mixed-use project. (Ibid.)
Compliance and Enforcement
Despite the mandatory nature of many of the Housing Element Law‘s provisions, compliance has been mixed statewide. “As recently as 2017, some municipal officials were openly proclaiming that they had no intention of approving projects that conformed with their housing elements.” (Making It Work, supra, 47 Ecology L.Q. at pp. 985–986.) Traditionally, the mechanism for getting local governments to actually implement the actions promised in their programs did not amount to much. (Id. at p. 995.) Due to an ever-increasing lack of affordable housing, the Legislature has amended the Housing Element Law a dozen times since 2017. One amendment, effective January 1, 2018, increased the oversight powers of the HCD.9 Another amendment, effective January 1, 2019, imposed a
mandatory duty to affirmatively further fair housing, which is addressed in part III.C. of this opinion.
FACTS
City‘s RHNA
The two RHNA‘s assigned to the City that are relevant to this appeal were adopted by the Fresno COG for the 2006 through 2013 RHNA projection period (fourth cycle) and for the January 1, 2013, through December 31, 2023, RHNA projection period (fifth cycle). The fifth cycle RHNA plan was adopted by the Fresno COG on July 31, 2014. That plan set forth the RHNA for Clovis and all other jurisdictions in Fresno County. Its adoption date was 17 months before the December 31, 2015 due date for the City‘s fifth cycle housing element.
The 2015-2023 housing element also addressed the City‘s fourth cycle RHNA and the number of unaccommodated housing units that carried over to the fifth planning period. The City‘s fourth cycle RHNA had totaled 15,383 units, including 1,637 extremely low income units, 1,638 very low income units, and 2,354 low income units (i.e., a total of 5,629 lower income units). The City had met its fourth cycle RHNA for moderate income and
above moderate income units. In contrast, the City had not accommodated 4,425 units of its lower income housing RHNA of 5,629 units.11
The reason for the large shortfall during the fourth cycle was the City had rezoned a substantial amount of land at densities that could accommodate 4,614 lower income units, but only 717 units on sites zoned R-4 met the statutory requirements for adequate sites. For sites to satisfy the unaccommodated lower income RHNA, they must meet the statutory requirements. The sites (1) must be rezoned to permit owner-occupied and rental multi-family housing by right without discretionary review of the use or density and (2) must be zoned with a minimum density of 20 units per acre and be large enough to accommodate at least 16 units per site. (
In addition to describing the shortfall from the fourth cycle, the 2015-2023 housing element discussed the City‘s progress towards accommodating that unmet need and the City‘s action plan, which included four programs. Program 4 specifically addressed accommodating the fifth cycle RHNA carryover of 4,425 lower income units (Program 4). It stated the City would “[p]rovide adequate zoning on at least 221 acres of land by December 31, 2016 to cover the unaccommodated need.”
On July 22, 2016, the HCD found the City‘s 2015-2023 housing element was in substantial compliance with the Housing Element Law conditioned on, and based on, among
other things, the City‘s commitment under Program 4 to provide adequate zoning for its RHNA carryover. The City, however, failed to implement Program 4.
The consequences of this failure to implement were defined in part by a Housing Element Law amendment that became effective on January 1, 2018 (see fn. 9, ante) and increased local government accountability. Under the new provisions, the City was required to submit annual progress reports for 2016 and 2017 to the HCD by April 1, 2018. Addressing the obligation, the City passed resolution No. 18-49 on March 12, 2018, which summarized the steps it had taken to address housing needs in the City and purportedly affirmed “its commitment to take all reasonable efforts to achieve its RHNA and housing affordability for Clovis residents.” The necessary rezoning, however, was not implemented by the City before its submission of the annual progress reports to HCD.
On May 7, 2018, the HCD sent City a letter requesting the status on the implementation of program actions. When no response was received, HCD sent a June 27, 2018 letter to the City stating its housing element compliance would be revoked if a response was not forwarded to the HCD within 30 days. The City‘s August 1, 2018 responsive letter outlined several proposed general plan amendments and rezoning approvals that “hopefully w[ould] bring the City into compliance in 2020.”
HCD‘s Interim Finding of Noncompliance
On August 27, 2018, the HCD issued written findings that the City failed to implement the 2015-2023 housing element‘s Program 4 rezoning for RHNA, which brought the housing element out of substantial compliance with the Housing Element Law. The HCD invited the City to provide a written response before the HCD took any action, which would include revoking its finding that the City‘s 2015-2023 housing element was in substantial compliance with the Housing Element Law. The HCD explained the City‘s documentation did not describe actions that fully implemented Program 4; rather, the “City only described an anticipated schedule for program implementation,” which did not “provide for completion of required zoning actions within a reasonable deadline extension.”
On September 10, 2018, the City‘s planning and development services department submitted a staff report to the city council recommending two
On September 21, 2018, Central California Legal Services (CCLS) sent a letter to the HCD challenging the City‘s housing element compliance. Among other things, the letter addressed the City‘s proposal to amend its general plan and zoning ordinance to allow multi-family housing in the P-F Zone. The letter identified around 30 Clovis properties currently zoned as P-F and stated their location, size, and current use. CCLS argued those uses “demonstrate how unlikely it is that any multi-family housing development will occur there,” as the identified sites were occupied with other uses and it was difficult to see how any of the existing uses could be compatible with multi-family housing development.
On September 24, 2018, the City responded to the HCD, stating it had “commenced the implementation of a rezone program to address the [RHNA], which includes General Plan and Zoning Ordinance amendments.” Three days later, the City‘s planning commission recommended that the city council (1) amend the general plan to allow for multi-family housing in the P-F Zone and (2) amend the zoning ordinance to (a) provide for multi-family housing as a permitted use in the P-F Zone and (b) add a new overlay zone district for the RHNA (the RHN Overlay).
An overlay zone district is a special zone district that adds another layer of permitted uses and standards over and beyond the existing (i.e., base layer) zoning. Unlike a conventional rezoning, an overlay does not remove the zoning rights of the base layer. Thus, when an area previously zoned for single-family housing becomes subject to an overlay district for multi-family housing, both types of housing are allowed within the overlay district. In such an overlay district, multi-family housing development and single-family housing development compete for sites.
On September 28, 2018, CCLS sent the HCD a letter addressing the City‘s response. With respect to the proposed RHN Overlay, CCLS was concerned the City‘s site plan review process rose to the level of discretionary review, as it allowed the City to impose additional conditions to a development‘s approval, which would violate the requirement that multi-family housing be permitted by right without discretionary review. With respect to sites in the
On October 4, 2018, the City sent a letter to the HCD responding to CCLS‘s comments. The City stated it revised the mapping for the proposed RHN Overlay to contain “only vacant lands between 1 to 10 acres,” which would make available “a total of 134 acres to accommodate affordable housing at a density of 35 to 43 units per acre, providing 4,690 to 5,762 units dispersed fairly evenly across City limits.” The City represented there would be a rezoning project for the P-F Zone that would result in 70 acres of property feasibly counting toward the RHNA and would account for 2,450 to 3,010 units. The City also represented the zones would meet minimum coverage requirements, provide for approvals by right, and include enough units to absorb the loss of affordable housing lands as development occurs over time.
On October 10, 2018, CCLS wrote the HCD to provide input concerning the City‘s latest letter. CCLS asserted the site plan review and building permit processes would not allow for an RHNA project to be approved by right and it was highly unlikely the identified public facility property, which was owned by California State University, Fresno (university), would be available for development of multi-family housing.
The City‘s October 12, 2018 letter to HCD addressed the CCLS‘s allegation of discretionary review by asserting the City‘s site plan review was ministerial but, to avoid ambiguity, that review process had been removed from the proposed RHNA program. The letter also stated the building permit process did not provide an avenue for the public to challenge an RHNA project. With respect to the university‘s property in the P-F Zone, the City asserted the site “could easily be developed as affordable housing in the future” and it was unnecessary for the City to have established partnerships with other landowner public entities for the sites to be included as part of the RHNA inventory.
HCD‘s Revocation of Substantial Compliance and City‘s Responsive Action
On October 11, 2018, HCD sent the City a letter stating the City‘s September 24, 2018 response did not demonstrate implementation of Program 4. Thus, the HCD notified the City it was revoking its finding that the City‘s 2015-2023 housing element, adopted March 7, 2016, substantially complied with the Housing Element Law.
The staff report detailed the process that led to the proposed actions, including HCD‘s communications with the City and CCLS. The report analyzed the programs and noted they had “the highest probability of success,” as “developers w[ould] have multiple options ... to offer affordable housing options ... to residents who will integrate into the community and have available services.” As for the P-F Zone, the report noted the properties would be more marketable for private development if current restrictions were removed, including the need for a public hearing for approval. As for the RHN Overlay, the report noted there were “approximately 134 acres ranging from 1.0 and 10.0 acres and currently zoned residential that could reasonably accommodate multiple-family development.” The two programs combined were anticipated to accommodate between 7,140 and 8,772 units.
On November 5, 2018, the City approved the proposal by adopting ordinance No. 18-26, which (1) amended Clovis Municipal Code section 9.16.020 to allow multi-family developments in the P-F Zone subject to a building permit; and (2) added Clovis Municipal Code section 9.18.050 to establish an RHN Overlay that applies to all vacant residentially zoned property within the City limits with a minimum of 1.0 and a maximum of 10.0 acres, which was intended to provide “by-right” approval for lower income housing at a density of 35 to 43 units per acre.
On November 13, 2018, CCLS sent a comment letter to HCD regarding ordinance No. 18-26, pointing out that despite the high-density levels permitted by the overlay program, the underlying zoning designations still allowed low-density development. CCLS implied the competition from the underlying low-density development was a barrier to potential development at higher densities.
On December 10, 2018, the City adopted ordinance No. 18-28, which rezoned 887 acres of land to the P-F Zone, consistent with the general plan. The City forwarded both ordinances to the HCD.
On January 10, 2019, the HCD requested a site inventory of each rezone program with specific details for each opportunity site. The City‘s staff assembled the data and prepared the site inventory, which consisted of spreadsheets and maps of the sites. The staff report stated that while the site analysis was being prepared, units were lost due to a number of factors: (1)
On March 4, 2019, the city council adopted resolution No. 19-22 to amend its 2015-2023 housing element to incorporate the site inventory for the RHN Overlay and the P-F Zone, which had been prepared at the HCD‘s request. The City provided HCD with links to resolution No. 19-22 and the site inventory the following day. The resolution and the site inventory were added as an appendix to the City‘s 2015-2023 housing element. This opinion refers to the 2015-2023 housing element and appendix as the “amended housing element.” The site inventory consists of two spreadsheets that list identified sites within the RHN Overlay and P-F Zone, with detailed information about each site, as well as maps of each site within the RHN Overlay zone and P-F Zone.
On March 14, 2019, CCLS sent a letter to the HCD objecting to the rezone programs on the grounds (1) the underlying zoning for the RHN Overlay continued to allow very-low densities and (2) the university-owned property in the P-F Zone was not available for development of lower income housing because its use in agricultural education was much more valuable to the university than residential development.
HCD‘s Finding of Compliance with Housing Element Law
On March 25, 2019, HCD sent the City a letter finding the City‘s amended housing element complied with the Housing Element Law. The HCD noted the various documents it had received and considered, including comments from CCLS and the Public Interest Law Project. The HCD explained it found the City satisfied the requirements described in
In October 2019, Martinez and another plaintiff, Maria De Jesus Sanchez,12 initiated this lawsuit. The first amended verified petition for writ of mandate and complaint for declaratory and injunctive relief, which is the operative pleading, alleges eight causes of action against the City, its city council, and its city manager, Luke Serpa. The first three causes of action sought a writ of mandate pursuant to
The fourth through sixth causes of action alleged (1) discrimination against lower income housing in violation of
The petition’s prayer for relief requested a writ of mandate directing the City to adopt a housing element for the 2015-2023 planning period that substantially complies with the
In December 2019, Martinez filed a request for a prioritized hearing date on the writ of mandate as required by
demurrer to the fourth cause of action for discrimination against lower income housing and sustaining the demurrer to the fifth and sixth causes of action for discrimination against people of color without leave to amend.
Writ of Mandate Hearing and Order
In September 2020, Martinez filed a memorandum of points and authorities, along with supporting declarations and exhibits and a request for judicial notice, addressing the first, second, third, fourth, and seventh causes of action, and seeking issuance of a writ of mandate on those claims. Martinez did not address the merits of the eighth cause of action for declaratory and injunctive relief, stating she would pursue it by separate motion.
The City filed a memorandum of points and authorities in opposition to Martinez’s request for writ relief. The City specifically addressed the first through fourth causes of action, but did not address the seventh cause of action alleging a violation of
At the hearing on February 19, 2021, the trial court heard counsel’s arguments; no testimony or other evidence was introduced. The court took the matter under submission and, on April 30, 2021, issued a written statement of decision and order granting the petition for writ of mandate in part. The writ was granted as to the first through third causes of action and denied as to the fourth and seventh causes of action. The trial court acknowledged that the eighth cause of action for declaratory and injunctive relief remained undecided. The trial court ordered that (1) judgment be entered in Martinez’s
complies with
Martinez prepared a proposed judgment for writ of mandate as described in the trial court’s order. The City filed objections to the proposed judgment, asking the trial court to dismiss the eighth cause of action on its own motion and enter a final judgment. Martinez filed a written response, asserting the eighth cause of action was neither resolved nor abandoned and it should remain pending so she could pursue the remedy provided by
On June 1, 2021, the trial court signed and filed the proposed judgment without modification. A week later, the clerk of the superior court executed the peremptory writ of mandate containing the terms described above and directing the City to file a return within 150 days stating how it had complied with the writ. The City filed a timely appeal and Martinez filed a timely cross-appeal.
DISCUSSION
I. THE CITY’S APPEAL
The City contends the trial court erred in issuing a peremptory writ of mandate. The writ was issued based on the court’s finding the City’s amended housing element did not comply with the requirements of the
A. Appealability
As a threshold issue, we consider Martinez’s claim that the appeal must be dismissed because the judgment is not yet final under the one final judgment rule.
Here, the City appealed from the June 1, 2021 judgment finding in Martinez’s favor on the first, second and third causes of action alleged in the petition and ordering issuance of a peremptory writ of mandate. The statement of decision shows the trial court (1) found against Martinez on her fourth and seventh causes of action, (2) sustained the City’s demurrer to her fifth and sixth causes of action, and (3) did not decide the eighth cause of action for injunctive and declaratory relief under
herself and the City, the judgment is not appealable and both the appeal and cross-appeal therefore must be dismissed.
We conclude the appeal should not be dismissed, as we elect to exercise our discretion to treat the appeal as a petition for writ of mandate and review the matter. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 732 [appellate court may exercise its discretion to construe an appeal as a petition for writ of mandate in unusual circumstances where doing so would serve the interest of justice and judicial economy]; Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928, 943‒944.) In our view, the interests of justice and judicial economy would not be served by deferring resolution of this appeal, which the parties have fully briefed. Moreover, if not reviewable, the City would be required to comply with the peremptory writ of mandate while awaiting the final resolution of the claim for declaratory and
B. Standard of Review
“[A]ny interested party” may challenge a local government’s housing element by a traditional mandamus action filed in the superior court under
with the requirements” of the law. (
Appellate courts “independently ascertain as a question of law whether the housing element at issue substantially complies with the requirements of the
Program 4 in the 2015-2023 housing element stated the City would rezone to accommodate its fourth cycle RHNA shortfall of 4,425 lower income units by December 31, 2016. The City failed to meet this deadline, and the
In November 2018, the City attempted to bring the 2015-2023 housing element into compliance by adopting the RHN Overlay to provide by-right approval for multi-family housing at a density of 35 to 43 units per acre on any residentially zoned property within the City limits with a minimum of 1.0 acres and a maximum of 10.0 acres. However, the base zoning in existence when the overlay was enacted still applies to the RHN Overlay sites and permits development at densities below 20 units per acre on all except one of the sites, with some densities as low as 0.5 units per acre. Martinez contends the overlapping density provisions applicable to the RHN Overlay sites do not comply with the
The parties’ dispute over whether the RHN Overlay with by-right approval for housing in areas previously zoned to allow only single-family housing satisfies the
The parties agree that when a local government is required to rezone sites to accommodate a carryover from the prior planning period, the rezoning program must comply with
The parties disagree on the interpretation of this provision. The City contends it does not require exclusive zoning at a density of 20 units per acre; rather, it is sufficient if the RHN Overlay provides for a minimum density of at least 20 units per acre and the existence of a separate base zoning district is irrelevant to whether the overlay satisfies the density
requirement. Martinez contends the provision’s plain language mandates rezoned sites have a single minimum density of at least 20 units per acre, which the RHN Overlay failed
1. Principles of Statutory Interpretation
Our interpretation of
“When the statutory language, standing alone, is clear and unambiguous—that is, has only one reasonable construction—courts usually adopt the plain or literal meaning of that language. [Citations.] [¶] The plain meaning of the words of a statute may be disregarded only when the application of their literal meaning would (1) produce absurd consequences that the Legislature clearly did not intend or (2) frustrate the manifest purposes that appear from [the statute’s] provisions … when considered as a whole in light of its legislative history.” (Merced Irrigation Dist. v. Superior Court, supra, 7 Cal.App.5th at p. 924.)
In comparison, when the statutory language is ambiguous, a court’s primary goal is to adopt the interpretation that best effectuates the legislative intent or purpose. (Cavey v. Tualla, supra, 69 Cal.App.5th at p. 337.) To identify a statute’s purpose and the underlying legislative intent, courts may look to such aids as legislative history, the maxims of statutory
construction, and the consequences of a particular interpretation, including its impact on public policy. (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.)
2. Interpretation of Section 65583.2(h)
At the center of the parties’ dispute about the meaning the density requirement is the phrases “shall be zoned with minimum density and development standards that permit … at least 16 units per site at a density of at least 16 units per acre in [certain] jurisdictions … [and] shall be at least 20
Focusing on the word “permit,” the City argues it is sufficient if a density of 20 units per acre is allowed on the sites through the RHN Overlay even though the base zoning allows for development at a lower density. But the word “permit” cannot be read in isolation; rather, it is constrained by the phrase “minimum density and development standards” and the minimum density standard “shall be at least 20 units per acre.” (
The City also contends
community … that can be developed for housing within the planning period and that are sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels,” includes “[r]esidentially zoned sites that are capable of being developed at a higher density” and which “meet the standards set forth in subdivisions (c) and (g).” The City asserts “[t]his language clearly allows the use of an overlay zone to reach the required higher density so long as the site ‘is capable of being developed at a higher density’ and ‘meet(s) the standards set forth in subdivisions (c) and (g).” The City reasons the RHN Overlay does just that because the RHN Overlay sites are capable of being developed at the higher density required by the RHN Overlay. The City further asserts
The City, however, misapprehends the statutory scheme.
least 16 units per site and at least 20 units per acre, and to allow development by right without discretionary review. While the identification of these sites must “include all components specified in
The City also contends this interpretation is in “disharmony” with California’s no net loss statute. That statute,
adequate sites to accommodate the jurisdiction’s share of RHNA by income level. (
By its terms, the no net loss statute contemplates what should occur if future development activity renders a jurisdiction unable to accommodate its share of the RHNA by income level. This has no impact on the requirements of
The City points out there is no explicit prohibition on the use of an overlay under
The City argues the Legislature could not have intended to prohibit underlying densities lower than 20 units per acre because
to include mixed-use development. The City reasons this is no different than a site with a base zone that allows development at a lower density range and an overlay zone that authorizes higher density development. But as Martinez points out, allowing mixed-use development does not negate the requirement that the site be zoned for a minimum density of 20 residential units per acre, as all residential development permitted on the rezoned sites must meet the minimum density requirements.
We recognize the
While the City urges us to defer to the
provide any
The City contends prohibiting a local government from using an overlay to satisfy the requirements of
The City also asserts the Legislature could not have intended to impose a minimum density for shortfalls or carryovers to provide certainty for development of lower income housing because zoning is always subject to change and if the base zoning were removed to correct a shortfall, that zoning could simply be added back at the beginning of the next planning cycle. The City claims its only obligation is to identify sites that show sufficient capacity to accommodate housing at various income levels and “all that matters” is that the RHN Overlay sites “are capable of being developed at a higher density and the approval is by-right.” But
In sum,
Because
City’s objections to the admissibility of the declaration but noted it did not rely on the declaration.
The City’s contention that the admission of Creswell’s declaration was erroneous does not identify a reversible error because the trial court explicitly stated it did not rely on the declaration. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellant has the burden of affirmatively demonstrating prejudicial error].) Furthermore, the admission of Creswell’s declaration has not influenced our de novo review of
D. The P-F Zone Sites
In addition to the RHN Overlay sites, the City attempted to provide sites to accommodate its RHNA carryover by amending its zoning ordinance to allow multi-family development in the P-F Zone. The City selected six sites in the P-F Zone for inclusion in the site inventory incorporated into its amended housing element by the ordinance adopted on March 4, 2019.17 The site inventory lists four parcels as vacant, including 14.2-acre parcel with 6.8 developable acres (site No. 1). The two parcels with existing uses are a 70.05-acre parcel used for agriculture, 10 acres of which are developable (site No. 3) and a 9.4-acre parcel used as temporary parking with 2.3 developable acres (site No. 8).
The trial court found the City did not provide the analysis required to allow the P-F Zone sites to accommodate the RHNA. First, for sites over 10 acres included in the inventory, the court concluded City did not provide the analysis required by section
A jurisdiction’s inventory of land is required to include the information specified in
The City contends the trial court erred in concluding sites greater than 10 acres were included in the P-F Zone inventory. The City asserts that because the portion of each parcel that is designated for lower income housing is 10 acres or less,
does not apply, and the trial court erred in determining the City had violated
Martinez asserts the City nevertheless was required to demonstrate the feasibility of development on these sites, which it failed to do as the amended housing element lacks information to determine how development would occur on a portion of a large unsubdivided parcel. Martinez, however, does not cite any statutory authority requiring such a demonstration. Rather, she sites to a memorandum the
2. Statutory Requirements for Nonvacant Sites
When a housing element’s inventory of land lists nonvacant sites, the inventory shall include “a description of the existing use of each property.” (
“The methodology shall consider factors including the extent to which existing uses may constitute an impediment to additional residential development, the city’s or county’s past experience with converting existing uses to higher density residential development, the current market demand for the existing use, an analysis of any existing leases or other contracts that would perpetuate the existing use or prevent redevelopment of the site for additional residential development, development trends, market conditions, and regulatory or other incentives or standards to encourage additional
residential development on these sites.” (
§ 65583.2, subd. (g)(1) , italics added.)19
The City contends the trial court erred in its analysis of what the City was required to demonstrate for the two nonvacant sites listed in the P-F Zone inventory. The City asserts the record demonstrates all the relevant factors identified in
Under Martinez’s interpretation of
The parties’ conflicting interpretations of
Second, we consider the wording of subdivision (g)(1) of
Martinez‘s arguments about what subdivision (g)(1) of
Consequently, based on the record and arguments presented, we conclude subdivision (g)(1) of
3. Substantial Compliance Regarding Development Potential
Having construed the statute, our next step addresses whether the City substantially complied with
Site No. 3 is located east of Willow Avenue, south of Bullard Avenue, and west of Highway 168. The P-F Overlay Site Inventory describes the parcel as a 70.05-acre agricultural property with 10 developable acres that have a total realistic development potential of 350 lower income units. It also states the site has “access,” infrastructure to both Bullard and Willow Avenues, no environmental constraints, and it is available in the planning period. The City contends the developability of a 10-acre portion of the site is obvious and refers to the site inventory map showing bordering parcels used for residential housing. In addition, the City relies on correspondence sent to HCD by it and CCLS that discuss the likelihood the site would be developed.
These letters show CCLS told the HCD the site is university-owned, and university staff told CCLS that the university was not interested in rezoning the site for residential purposes because the parcel was being used for agricultural education. In response, the City asserted the university needed additional student housing and in its discussions with university staff, staff was understanding and supportive of a rezone of the land to the P-F Zone. CCLS‘s subsequent letter to the HCD asserted the City‘s rezone of the land made no difference to the university, as the university was immune from the City‘s zoning and planning regulations and only the university‘s governing board could decide about the site‘s future development. The City responded that it was not required to make arrangements with a public entity for development of property prior to approving zoning changes to satisfy the RHNA, and while the university may not develop the site in the immediate future, the fact remained the site could easily be developed as affordable housing, which satisfied the law.
The letters show the City‘s efforts to assess the development potential of the site. Furthermore, HCD‘s March 25, 2019 letter states it considered CCLS‘s comments and contains (1) its finding that the City satisfied its obligation to rezone to accommodate the fourth cycle planning period shortfall of sites for lower income housing and (2) its conclusion that the
Martinez contends the letters relied upon by the City do not analyze the factors that the statute requires be included in the methodology used to determine a nonvacant site‘s development potential. Those factors are set forth in the second sentence of
Site No. 8 is described in the P-F Overlay Site Inventory as a 9.4-acre City-owned parcel on Lind Avenue with 2.3 developable acres that has a total realistic development potential of 80 lower income units. It also states the site has infrastructure to Lind Avenue, “access,” no environmental constraints, is available in the planning period, and its existing use is temporary parking. The site inventory includes a note stating site Nos. 8 and 10 are owned by Clovis and would be marketed to housing developers as potential sites for affordable housing at 35 to 43 units per acre; the sites have been identified as opportunity sites on the City‘s affordable housing Web page and the associated map would be used to show opportunities through other media as appropriate; if a developer expresses interest in one of these sites, the developer would make a formal offer to the City and because the use is for
The City asserts the current use as temporary parking is as close to vacant as possible, and there is no indication it would be difficult to prepare the site for a multi-family development project or that the current use would prevent the site from being redeveloped. As with site No. 3, the HCD‘s conclusion the amended housing element complied with the Housing Element law implies HCD determined the information provided by the City about site No. 8 fulfilled its obligation to address the site‘s development potential. To the extent that a particular statutory factor was not mentioned, Martinez has not shown how missing information was essential to the Housing Element Law‘s objectives—that is, was more than a technical imperfection of form. (Camp v. Board of Supervisors, supra, 123 Cal.App.3d at p. 348.)
The HCD‘s finding of compliance is presumptively valid and Martinez has not rebutted the finding as to the nonvacant sites. Accordingly, we reverse the trial court‘s finding that the amended housing element does not satisfy the requirements of
E. Conclusion
Although we reverse the finding that the City did not provide the statutorily-required analysis for large or nonvacant sites in the P-F Zone, this does not require reversal or modification of the judgment in favor of Martinez on the first through third causes of action or modification of the peremptory writ of mandate. This is because the finding that the RHN Overlay does not comply with the statutory requirements, which we affirm, supports judgment in Martinez‘s favor on those causes of action, which allege: (1) the
With respect to the peremptory writ of mandate, the trial court stated in the judgment it would issue a writ compelling the City to: (1) “adopt, within 120 days, a housing element for the 2015-2023 planning period that substantially complies with
II. PLEADING DISPARATE IMPACT CLAIMS UNDER THE FHA AND FEHA
Martinez‘s fourth through sixth causes of action alleged discrimination in violation of two California statutes (
Each of Martinez‘s discrimination claims included allegations of intentional discrimination and discrimination based on a disparate impact, which is a specific type of discriminatory effect claim. For example, Martinez alleged the City‘s failure “to accommodate and to provide opportunities to develop very low- and low-income housing through its failure to comply with the Housing Element Law has an adverse and disparate impact on people of
The trial court rejected Martinez‘s disparate impact theory on all the discrimination claims by sustaining the City‘s demurrer to her fifth (FHA) and sixth (FEHA) causes of action without leave to amend and finding her fourth cause of action (
A. General Demurrers and the Standard of Review
A complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (
When a complaint “does not state facts sufficient to constitute a cause of action,” a defendant may raise that objection by filing a demurrer. (
Appellate courts independently review an order sustaining a general demurrer and make a de novo determination of whether the pleading “alleges facts sufficient to state a cause of action under any legal theory.” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Generally, appellate courts “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865Ibid.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff‘s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
B. Discrimination Under the FHA—the Fifth Cause of Action
1. Basic Pleading Principles
We conclude federal law controls how to plead a disparate impact theory under the FHA. California courts recognize that federal law applies to determine the sufficiency of a complaint alleging a federal civil rights cause of action under
The basic principles of federal law for pleading a cause of action are similar to California‘s.
2. Statutory Text Authorizing FHA Disparate Impact Claims
The FHA makes it unlawful to refuse to sell or rent, “or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” (
The textual foundation for disparate impact liability is the phrase “or otherwise make unavailable or deny” (
The United States Supreme Court also noted federal appellate courts had recognized disparate impact claims for several decades without creating dire consequences. (Inclusive Communities, supra, 576 U.S. at p. 546Inclusive Communities, supra, at p. 540.)21
Our determination of the pleading elements of an FHA cause of action is guided by Inclusive Communities and a regulation adopted by the United States Department of Housing and Urban Development (HUD) in 2013. HUD‘s regulation provides a synthesis of federal decisions and addresses how liability may be established under the FHA based on a practice‘s discriminatory effect—that is, its disparate impact or its perpetuation of segregation. (78 Fed.Reg. 11460-01–11482 (Feb. 15, 2013).) The regulation was codified at former
The 2013 Rule stated in relevant part:
“Liability may be established under the Fair Housing Act based on a practice‘s discriminatory effect, as defined in paragraph (a) of this section, even if the practice was not motivated by a discriminatory intent. The practice may still be lawful if supported by a legally sufficient justification, as defined in paragraph (b) of this section. The burdens of proof for establishing a violation under this subpart are set forth in paragraph (c) of this section.
“(a) Discriminatory effect. A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.” (78 Fed.Reg., supra, at p. 11482; 24 C.F.R. former § 100.500 .)
HUD asserts it “has always used a three-step burden-shifting approach [for disparate impact claims], as did many federal courts of appeals prior to the 2013 Rule.” (86 Fed.Reg., supra, 33590-01, 33591 (Jun. 25, 2021), fns. omitted.) Initially, the plaintiff has “the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.” (78 Fed.Reg., supra, at p. 11482;
The 2013 Rule does not explicitly address how to plead a discriminatory effect claim. Nonetheless, it describes the elements of a prima facie showing of such a claim. In broad terms, the elements are (1) a practice that has (2) a discriminatory effect. The 2013 Rule and federal case law recognize there are two kinds of discriminatory effects. The first kind, sometimes referred to as a traditional disparate impact, is a greater adverse impact on one protected group than on others. (Mhany, supra, 819 F.3d at p. 619; Graoch Associates #33, L.P. v. Louisville/Jefferson County Metro Human Relations Commission (6th Cir. 2007) 508 F.3d 366, 378.) The second kind is the ” ‘harm to the community generally by the perpetuation of segregation,’ ” which prevents interracial association. (Mhany, supra, at p. 619; Graoch, supra, at p. 378; see Schwemm, Segregative-Effect Claims Under the Fair Housing Act (2017) 20 N.Y.U. J. Legis. & Pub. Pol‘y 709.) According to HUD, “perpetuation of segregation remains, as it always has been, a basis for contending that a policy has an unlawful discriminatory effect” and is distinct from disparate impact. (86 Fed.Reg., supra, at p. 33595.) We adopt Professor Schwemm‘s approach and use the labels “disparate impact” and “segregative effect” to describe the two types of discriminatory effect claims. (Schwemm, supra, 20 N.Y.U. J. Legis. & Pub. Pol‘y at p. 710.)
The 2013 rule recognizes that a disparate impact claim can challenge a practice that “actually ... results in a disparate impact” on a group of
To summarize, the elements of a disparate impact claim in violation of the FHA are (1) a practice that (2) actually causes or, alternatively, predictably will cause (3) a disparate impact on a group of persons because of a protected characteristic. The elements of a segregative effect claim in violation of the FHA are (1) a practice that (2) creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic.
4. Pleading an Unlawful Practice
When alleging a disparate impact in employment in violation of federal law, the plaintiff is obliged to isolate and identify the specific employment practices alleged responsible for the disparate impact. (See Meacham v. Knolls Atomic Power Laboratory (2008) 554 U.S. 84, 100.) We conclude the same degree of particularity is required when pleading a discriminatory effect claim under the FHA. Here, the acts and omissions constituting the unlawful practice were identified in Martinez‘s allegation that the City failed to accommodate and to provide opportunities to develop lower income housing “through its failure to comply with Housing Element Law.” The failures to comply with the Housing Element Law were alleged in detail in Martinez‘s first three causes of action and those allegations were incorporated into her fifth cause of action alleging a violation of the FHA.
Those omissions included the continuing failure to implement Program 4, which had an initial deadline of December 31, 2016, and resulted in the HCD‘s August 27, 2018 written findings that the 2015-2023 housing element did not substantially comply with the Housing Element Law. (See
5. Pleading the Lack of Sufficient Justification
The discriminatory practices made unlawful by the FHA “include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.” (Inclusive Communities, supra, 576 U.S. at p. 539.)23 Under the FHA‘s burden-shifting approach to discriminatory effect claims, once a plaintiff has established a prima facie case, the defendant has the burden of proving a sufficient justification. The shifting of burdens creates the following pleading question: Must a plaintiff allege facts sufficient to show the absence of a legally sufficient justification for challenged practice? Stated from a different perspective, is it sufficient for a plaintiff to plead only the elements of a prima facie case? Based on the circumstances presented, we need not resolve this question of pleading law. Instead, we assume without deciding that a plaintiff must plead the challenged practice is without sufficient justification and conclude Martinez has done so.
This is not the typical pleading case because Martinez has pleaded and proven that the City violated the Housing Element Law. Thus, the challenged acts and omissions involving zoning are not otherwise lawful, like the facially neutral zoning ordinance adopted in United States v. City of Black Jack, supra, 508 F.2d 1179. In other words, the City‘s practice is illegal for reasons other than being discriminatory. As stated by the United States Supreme Court, “[d]isparate-impact liability mandates the ‘removal of artificial, arbitrary, and unnecessary barriers,’ not the displacement of valid government policies.” (Inclusive Communities, supra, 576 U.S. at p. 540.) Here, the City‘s violation of the Housing Element Law is not a valid government policy—it is the opposite. (See Metropolitan Housing Development Corp. v. Village of Arlington Heights (7th Cir. 1977) 558 F.2d 1283, 1293 [action outside the scope of a governmental body‘s authority is not
6. Pleading Causation
The United States Supreme Court referred to a “robust causality requirement” for FHA disparate impact claims and stated the requirement ensures that racial imbalance does not, without more, establish a prima facie case and “protects defendants from being held liable for racial disparities they did not create.” (Inclusive Communities, supra, 576 U.S. at p. 542.) “A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.” (Inclusive Communities, supra, at p. 543.) Inclusive Communities involved a motion for summary judgment, not a motion to dismiss for failure to state a claim. Despite its procedural posture, we conclude the Supreme Court‘s statement that a plaintiff must allege facts demonstrating a causal connection accurately identifies a requirement for pleading a claim under the FHA and those facts typically are statistics. Consequently, simply pleading the ultimate fact of causation24 by alleging the challenged practice caused or predictably will cause a disparate impact is insufficient to properly plead the element of causation in an FHA disparate impact claim. Instead, causation must be pleaded with more particularity, which typically includes statistics about the municipality and surrounding communities.
We next consider whether Martinez pleaded enough particular facts to satisfy the causation element of an FHA claim. We note the Ninth Circuit recently stated that “some debate has developed about the contours of the robust causality requirement” and cited a case describing four different views. (See Southwest Fair Housing Council, Inc. v. Maricopa Domestic Water Improvement Dist. (9th Cir. 2021) 17 F.4th 950, 966 [in opposing summary judgment motion, plaintiff satisfied robust causality requirement]; see Inclusive Communities Project, Incorporated v. Lincoln Property Company, supra, 920 F.3d at pp. 903–905 [describing views held in the Fourth, Eighth, and Eleventh
In addition to the allegations of discriminatory intent, Martinez alleged statistical facts about income and housing burden within Clovis and Fresno County and facts about the City‘s persistent failure to comply with the Housing Element Law during the fourth and fifth planning cycle. We conclude Martinez‘s allegations contain enough particularity to adequately allege the City‘s practice of noncompliance “predictably results in a disparate impact” on persons of color. (78 Fed.Reg., supra, at p. 11482;
7. Pleading a Disparate Impact
Martinez‘s allegations address the disparate impact by alleging the violations of the Housing Element Law has an adverse and disparate impact on people of color and the disparate impacts were predictable, statistically significant, and did not occur by chance. The existence of a disparate impact, which is intertwined with the causation element, is supported by allegations of statistics about the racially and economic composition of Clovis and Fresno County. We conclude these allegations, which are accepted as true for purposes of a demurrer, are sufficient to state a violation of the FHA under a disparate impact theory.
The 2013 Rule states the challenged “practice has a discriminatory effect where it ... reinforces[] or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.” (78 Fed.Reg., supra, at p. 11482;
Consequently, we consider whether Martinez alleged facts sufficient to state a claim for relief based on a practice that perpetuates segregated housing. We conclude Martinez‘s allegations of statistics about the racially and economic composition of Clovis and Fresno County from a historical perspective are sufficient to adequately allege the City‘s practice of noncompliance with the Housing Element Law during the fourth and fifth planning periods perpetuated segregated housing patterns and, thus, stated a segregative effect claim. As a result, we need not consider whether Martinez should be granted leave to amend to include the detailed information about the City‘s history and housing patterns contained in (1) the declaration and report from Jessica Trounstine, a political science professor at the University of California, Merced, who has published articles on segregation and land use regulations and (2) the “Analysis of Impediments to Fair Housing Choice,” which was approved by the city council on November 4, 2019 and submitted to HUD. (See generally,
The foregoing sets forth our independent analysis of the law, its application to the allegations in Martinez‘s petition, and our conclusion that Martinez
9. The Trial Court‘s Analysis
The trial court‘s analysis of the Martinez‘s FHA began by quoting an overview of the principles governing FHA discrimination claims set forth in Avenue 6E, supra, 217 F.Supp.3d 1040. That case involved the City of Yuma‘s motion for summary judgment on
the plaintiff developers’ disparate impact claim. (Id. at p. 1043.)26 The district court‘s overview of the FHA stated:
“Under the FHA it is unlawful to ‘make unavailable or deny’ a ‘dwelling’ to a person because of that person‘s race, color, religion, sex, familial status, or national origin. [(
42 U.S.C. § 3604(a) ).] A dwelling includes ‘any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.’ [(42 U.S.C. § 3602(b) ).] What it means to ‘make unavailable or deny’ a dwelling is not specifically defined in the statute, but municipal land use decisions that block or impede the provision of housing are included. A plaintiff can establish a FHA violation under a theory of disparate treatment or disparate impact. Disparate treatment is intentional discrimination; a governmental body cannot ‘zone land or refuse to zone land out of concern that minorities would enter a neighborhood.’ Disparate impact discrimination, on the other hand, includes actions taken by ‘governmental bodies that create a discriminatory effect upon a protected class or perpetuate housing segregation without any concomitant legitimate reason.’ Disparate impact ’ “permitsplaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification.” ’ It also ‘targets “artificial, arbitrary, and unnecessary barriers” to minority housing and integration that can occur through unthinking, even if not malignant, policies of developers and governmental entities.’ In a recent case,
The Ninth Circuit also addressed the dismissal of the disparate treatment claim and concluded it had been plausibly alleged based on (1) the events leading up to the rezoning decision, which included a showing of community animus, (2) the city council‘s rejection of the unanimous recommendation of its planning and zoning commission and the recommendation of the planning staff, and (3) the disparate impact and historical background of the decision, which included statistics about the historical patterns of segregation by race and class. (Avenue 6E Investments, LLC v. City of Yuma, supra, 818 F.3d at pp. 504–509.)
Texas Department of Housing [and Community Affairs v. Inclusive Communities Project, Inc. (2015) 576 U.S. 519,] the Supreme Court affirmed that disparate impact claims were cognizable under the FHA.” (Avenue 6E, supra, 217 F.Supp.3d at p. 1047, fns. omitted.)
Next, the district court analyzed the merits of the city‘s summary judgment motion by (1) applying the familiar burden-shifting framework, (2) finding the plaintiffs’ evidence established a prima facie case of disparate impact and additional evidence of discriminatory animus communicated by citizens to the city council bolstered the disparate impact claim, (3) rejecting the city‘s arguments that there were legally sufficient reasons for the city‘s denial of the rezoning request, and (4) concluding there was an issue of fact regarding whether there was an alternative that would have had a less discriminatory effect. (Avenue 6E, supra, 217 F.Supp.3d at pp. 1047, 1050–1058.) Based on these determinations, the district court denied the city‘s motion for summary judgment. (Id. at p. 1058.)
Here, after the trial court quoted the overview from Avenue 6E, it noted the FHA must be interpreted expansively to effectuate its purpose and then set forth the following legal conclusions, with which we disagree:
“The FHA does not appear to support discrimination liability when nothing has been denied by the municipality. Under the FHA, there is no duty to construct, to plan for, approve and promote any housing. (San Pedro Hotel Co., Inc. v. City of Los Angeles (9th Cir. 1998) 159 F.3d 470, 475; Acevedo v. Nassau County (2d Cir.1974) 500 F.2d 1078, 1082. Liability in this case is not supported by the plain language of the FHA because RHNA zoning does not ‘make’ housing ‘unavailable’ in any material sense or ‘deny’ housing. Zoning can change, and a developer can always request a zoning change.”
Later in its order, the trial court reformulated these conclusions by stating the City “ha[s] done nothing to interfere with any plan to develop property for low-income residents. Instead, [Martinez] want[s] the City compelled to take affirmative steps to aid the development of housing for low-income individuals. The FHA does not appear to encompass such a theory.”
First, the trial court erred in concluding that the FHA‘s discrimination provision is violated only when a municipality has denied something. Restated using the elements of an FHA disparate impact claim, the court concluded, in effect, that the “practice” element is met only when the municipality has denied something. The City has cited, and we have located,
The trial court‘s error in concluding a municipality violates the FHA‘s discrimination provision only when it has denied something also can be explained by referring to the statutory phrase “make unavailable or deny,” which the district court in Avenue 6E stated included “municipal land use decisions that block or impede the provision of housing.” (Avenue 6E, supra, 217 F.Supp.3d 1047, italics added.) The trial court‘s conclusion overemphasizes the statutory term “deny” and its synonym “block” and did not give the proper interpretation to the term “make unavailable” and its synonym “impede.” The verb “impede” means “to bar or hinder the progress of; obstruct or delay.” (Webster‘s New World Dict. (2d college ed. 1982) p. 703.) Thus, a municipal practice that delays the availability of housing to people of color is actionable under the FHA.
Furthermore, the phrase “or otherwise make unavailable or deny” (
Second, the trial court erred by mischaracterizing the relief Martinez sought under her FHA cause of action. The trial court‘s statement that there is no duty under the FHA to construct, to plan for, approve and promote any housing refers to a sentence in San Pedro Hotel Co., Inc. v. City of Los Angeles (9th Cir. 1998) 159 F.3d 470 (San Pedro), which we quote in full: “While the City is under no duty ‘to construct, to “plan for, approve and promote” any housing,’ see Acevedo v. Nassau County, 500 F.2d 1078, 1082 (2d Cir.1974),
practice that caused a discriminatory effect—that is, resulted in a disparate impact or perpetuated a segregated housing pattern.
The trial court‘s “no duty” statement also is off point because Martinez is not asking the City to construct, plan for, approve, and promote lower income housing. As described in Martinez‘s appellate briefing, her allegations “seek solely to compel the City to comply with Housing Element Law” and its “ministerial duty to plan and zone for over 4,000 affordable housing units.” (Italics added.) Thus, the relief Martinez is seeking under her FHA cause of action is the same as the relief obtained on her first three causes of action—namely, writ of mandate directing the City to comply with the Housing Element Law.
The trial court‘s mischaracterization of the relief sought by Martinez caused it to misapply the fourth factor in the four-factor test adopted in Metropolitan, supra, 558 F.2d 1283. In Metropolitan, the plaintiffs (1) alleged the city‘s refusal to rezone the plaintiffs’ property to allow construction of federally financed low-cost housing violated the equal protection clause and the FHA and (2) requested an injunction compelling the city to rezone the property. (Id. at p. 1285.) After a trial, the district court rejected both claims. It concluded the plaintiffs failed to prove the refusal to rezone would adversely affect members of racial minorities, as opposed to poor people generally, and found the city‘s refusal to rezone was not motivated by racial discrimination or opposition to poor people. (Id. at p. 1286.) The Seventh Circuit upheld the finding that the city did not have a discriminatory motive, reversed the finding that the zoning decision did not have a discriminatory effect, and concluded the city violated the equal protection clause. (Id. at pp. 1286–1287.) The United States Supreme Court disagreed with the
“Four critical factors are discernible from previous cases. They are: (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 [(1976) 426 U.S. 229]; (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.” (Metropolitan, supra, 558 F.2d at p. 1290.)
We note the Seventh Circuit formulated the fourth factor to fit the circumstances of that case. The court did not attempt to phrase the fourth factor in a manner that would cover the entire range of governmental acts or omissions that could be addressed in relief granted under the FHA. As a result, the fourth factor, as phrased, does not apply to the facts of this case because Martinez‘s FHA claim is not seeking to compel the City to affirmatively provide housing for members of minority groups and is not seeking to restrain the City from interfering with her property rights.
Next, we consider how the Seventh Circuit‘s discussion of the fourth factor relates to Martinez‘s request for a writ compelling the City to comply with the Housing Element Law by rezoning sufficient sites to accommodate the RHNA carryover. That discussion reads:
“The final criterion which will inform the exercise of our discretion is the nature of the relief which the plaintiff seeks. The courts ought to be more reluctant to grant relief when the plaintiff seeks to compel the defendant to construct integrated housing or take affirmative steps to ensure that integrated housing is built than when the plaintiff is attempting to build integrated housing on his own land and merely seeks to enjoin the defendant from interfering with that construction. To require a defendant to appropriate money, utilize his land for a particular purpose, or take other affirmative steps toward integrated housing is a massive judicial intrusion on private autonomy. By contrast, the courts are far more willing to prohibit even nonintentional action by the state which interferes with an individual‘s plan
to use his own land to provide integrated housing. [Citation.] The Second Circuit has explicitly relied on the distinction between requiring affirmative action on the part of the defendant and preventing the defendant from interfering with the plaintiff‘s attempt to build integrated housing in deciding whether to grant relief under the Fair Housing Act. [Citations.] “This factor favors plaintiffs in this case. They own the land on which [the low-cost housing] would be built and do not seek any affirmative help from the Village in aid of the project‘s construction. Rather, they seek to enjoin the Village from interfering with their plans to dedicate their land to furthering the congressionally sanctioned goal of integrated housing.” (Metropolitan, supra, 558 F.2d at p. 1293.)
Here, Martinez‘s FHA cause of action is not seeking to compel the City to appropriate money, actually construct integrated housing, take affirmative steps to ensure such housing is built, or utilize City-owned land in a particular way.28 Furthermore, the rezoning Martinez seeks is less intrusive on local government autonomy than the rezoning sought in Metropolitan because, aside from the application of the FHA, that rezoning decision fell within the wide discretion traditionally afforded a municipality‘s zoning decisions. (Metropolitan, supra, 558 F.2d at pp. 1293–1294.) In contrast, Martinez is not attempting to alter an otherwise lawful discretionary decision. She seeks to compel the City to comply with its statutory obligation to zone sufficient sites to accommodate its RHNA. In other words, Martinez is not seeking to compel a local government to take affirmative steps that are not otherwise required by law and, thus, is not requesting a “massive judicial intrusion on private [or local government] autonomy.” (Metropolitan, supra, 558 F.2d at p. 1293.) Accordingly, we conclude the trial court erred in determining the relief sought by Martinez precluded her from stating a cause of action under the FHA.
C. Discrimination Under the FEHA—the Sixth Cause of Action
1. Statutory Provisions
The FEHA makes it unlawful for the City to “discriminate through public … land use practices, decisions, and authorizations because of” protected characteristics, including race and source of income.29 (
Our analysis of the making-unavailable issue is guided by
characteristic. (Italics added.) Based on the statutory text and a review of the legislative history, the Sixth District concluded that the Legislature plainly intended that housing “discrimination under the FEHA could be based upon either disparate treatment or disparate impact.” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1419.) We agree.
2. Regulatory Provisions
Regulations adopted under the FEHA also address intentional housing discrimination practices (
Another similarity between the California regulations and the 2013 Rule is that both adopt a shifting-burden framework, although California‘s version has two stages instead of three. First, a “complainant has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.” (
3. Alleging a Discriminatory Effect Claim
The trial court concluded Martinez‘s sixth cause of action for violation of the FEHA failed to allege facts sufficient to state a cause of action. The court interpreted the FEHA‘s language about “zoning laws … that make housing opportunities unavailable” (
Martinez has pleaded and proven that the City violated the Housing Element Law by its continuing failure to meet its RHNA zoning obligation. This continuing failure constitutes a “land use practice” for purposes of
The order sustaining the demurrer to the FEHA cause of action could be affirmed if a statutory immunity applies to the City‘s practice. The City relies on
The City contends the adoption of its amended housing element and the related zoning ordinances are legislative acts and, thus, the ”
In Gibson v. County of Riverside (C.D.Cal. 2002) 181 F.Supp.2d 1057, the plaintiffs sued the county alleging its enacting, enforcing, and refusing to repeal a zoning ordinance establishing an age minimum for residents in certain areas violated the FHA, the FEHA, the Unruh Civil Rights Act, and various constitutional provisions. (Gibson, supra, at p. 1062.) The county moved for partial summary judgment, asserting, among other things, the defendants were entitled to immunity under
Here, Martinez‘s cause of action under the FEHA does not seek damages. The City relies on Esparza v. County of Los Angeles (2014) 224 Cal.App.4th 452 (Esparza), which stated the “immunity granted under
Unlike the FEHA claims in Esparza, Martinez‘s FEHA claim is not for money damages. Thus, the City‘s immunity argument “overlook[s] the distinction between a tort suit and a mandate action: the former enables the wronged plaintiff to recover compensatory damages; the latter permits a party suffering from improper governmental action to correct administrative abuse. The cases have long acknowledged this distinction, one deeply rooted in the theory of our polity.” (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 519.) Thus, “legislative acts, even if improper, find their judicial remedy in the undoing of the wrongful legislation, not in money damages awarded against the state.” (Ibid.)
Martinez is seeking to undo the City‘s failure to comply with the Housing Element Law by obtaining writ relief, declaratory relief, and injunctive relief under her FEHA claim. Therefore, she is not attempting to hold the City “liable for an injury” for purposes of
Therefore, the trial court correctly concluded the legislative immunity does not apply to the sixth cause of action alleging a violation of the FEHA. Because Martinez has adequately alleged a cause of action under the FEHA and the immunity does not apply, the demurrer to that cause of action should have been overruled.
III. CLAIMS UNDER SECTIONS 65008 AND 8899.50
Martinez‘s cross-appeal also challenges the trial court‘s rejection of (1) her fourth cause of action alleging the City discriminated against lower income housing in violation of
Martinez sought a writ of mandate pursuant to
While “a trial court‘s ruling under
B. Discrimination in Residential Development – Fourth Cause of Action
1. Statutory Text
“discriminate” is not defined in
2. Discriminatory Effect
The first question of statutory interpretation involving
The California Supreme Court has not addressed whether disparate impact or segregative effect claims are cognizable under
In Building Industry, supra, 27 Cal.App.4th 744, an action was brought to invalidate a residential growth control initiative adopted by the voters in the City of Oceanside. (Id. at p. 748.) One issue raised was whether the voter-approved initiative conflicted with the Planning and Zoning Law (
We recognize the appellate court in Building Industry did not use the term “disparate impact” in its discussion. In our view, however, precedent is established by what a court actually does, not whether the opinion uses a particular phrase or buzz word. The actual basis for the appellate court‘s conclusion that the plaintiff established income-based discrimination in violation of
“The trial court made key findings that since [the initiative] took effect in 1988, affordable housing in the City had dramatically declined. Only 415 total low income and senior citizen units had been excepted from the effect of [the initiative] in the period between 1987 and 1990, and they were all in the senior category (plus an additional 28 units in the similar fourplex category). Based on those figures, the trial court made an estimate that some 20,000 persons would be denied affordable housing based on the effect of [the initiative]. The trial court expressly found that the exception allowing higher priced units on 10,000-square-foot lots was not justified by an asserted imbalance in the current housing stock, such that higher end units were needed in the City.” (Building Industry, 27 Cal.App.4th at pp. 769–770, italics added.)
In referring to the dramatic decline in affordable housing and underlying statistics, the court made no mention of the intent underlying the initiative. Thus, the dramatic decline in affordable housing describes an impact—more specifically, a disparate impact. The trial court‘s estimate that 20,000 persons would be denied affordable housing because of the initiative‘s effect is the equivalent of a finding that the initiative predictably would cause a disparate impact on low-income persons seeking affordable housing.31 Therefore, we interpret Building Industry as a case that actually determined income-based discrimination in violation of
Our analysis of Keith, supra, 858 F.2d 467, also supports the conclusion that disparate impact claims are cognizable under
agreed, finding Hawthorne had violated the FHA and
The plaintiffs in Keith claimed, among other things, that Hawthorne‘s denial of the developer‘s applications violated
With respect to racial discrimination, the Ninth Circuit noted there was no California case law regarding the proof necessary to establish a violation under
With respect to discrimination based on income, the Ninth Circuit noted the California Supreme Court had not specified the standard of proof
Having resolved that legal issue, the Ninth Circuit addressed whether the district court‘s factual finding that Hawthorne‘s denial of the developer‘s applications adversely affected low-income individuals was clearly erroneous.33 (Keith, supra, 858 F.2d at p. 485.) The evidence showed (1) most of the displaced residents were from low-income households, (2) there was insufficient existing or planned low-income housing in Hawthorne to house them, and (3) unless more low-income housing became available, many displaced residents would have to leave Hawthorne to find affordable housing. (Ibid.) By preventing the project‘s construction, the displaced persons were deprived of a potential opportunity to remain in the city, while wealthier individuals were not likely to be affected since there was no deficit of moderate- or high-income housing and few of the displaced persons were in the higher income brackets. (Ibid.) “Because the City‘s actions adversely affected only low income persons, the district court correctly concluded that Hawthorne‘s denial of the [developer‘s] applications violated”
Returning to the text of
Interpreting
3. Trial Court‘s Decision
We next consider whether the trial court committed legal error in analyzing Martinez‘s fourth cause of action alleging a violation of
The trial court, after concluding neither Building Industry nor Keith mentioned a disparate impact analysis in discussing
“The court finds that there is no viable claim here, as Petitioners have identified no action that the City has taken that would limit housing opportunities for lower income families and individuals. What petitioners have shown is that the City, in some minor respects, has not done enough to promote and advance development for low income housing.”35
The trial court noted Martinez‘s argument “that the failure of the housing element to impose the minimum densities mandated by
The trial court‘s interpretation recognized “a distinction between [1] failing to take sufficient steps pursuant to a very complex statutory scheme to promote and facilitate development of housing for low income individuals, and [2] taking some action that ‘prohibit[s] or discriminate[s]’ against such development.” Applying this distinction, the trial court concluded Martinez had not shown that “failing to do enough to promote high density housing for low-income persons is the equivalent of prohibiting or discriminating against such.” Under this statutory interpretation, a failure to comply with certain provisions of the Housing Element Law would never “discriminate against any residential development” (
We reject the trial court‘s statutory interpretation and its application to the facts of this case. We conclude an “enactment or administration of ordinances“—such as the City‘s adoption of the ordinances included in its
Consequently, the absence of a provision in
In summary, we conclude the trial court committed legal error in its analysis of Martinez‘s discrimination claim under
4. A Discriminatory Effect Cannot be Found as a Matter of Law
Our conclusion that Martinez‘s three discrimination claims must be remanded for further proceedings is based on our rejection of Martinez‘s argument that judgment on the fourth cause of action alleging a violation of
Before deciding whether the evidence establishes such a claim as a matter of law, we must determine the standards used to establish a discrimination claim under
Martinez contends her evidence of disparate impact demonstrates that zoning is the primary factor in the economic disparity in Clovis. This evidence includes the declaration and report of Trounstine. Trounstine was retained to determine whether the City‘s RHN overlay “is likely to affect the demographic characteristics of Clovis going forward.” Trounstine compared Clovis and Fresno, and concluded Clovis is whiter and wealthier than Fresno, housing is more expensive in Clovis, and Clovis‘s residential land use regulations are more stringent than Fresno‘s. Trounstine opined: (1) “[t]he weight of the evidence indicates that it is highly probable that residential land use regulations have significantly affected Clovis[‘s] demographic makeup“; (2) “[i]t is extremely unlikely” the difference in demographic composition and housing costs between Clovis and Fresno happened by chance; and (3) “the recently adopted overlay ordinance is highly unlikely to substantially ameliorate these differences.”
In reaching her conclusions, Trounstine noted that while the RHN Overlay allows for by-right high-density development, nearly all the sites allow lower density development. Trounstine opined this “tend[ed] to produce lower density development” because: (1) high-density development of affordable units is an expensive undertaking, with most financing sources requiring public comment and approval by elected officials; (2) “[r]esearch suggests that most homeowners prefer that any new residential development in their neighborhood be low-density, single-family units“; (3) homeowners are “the most vocal and active participants in local politics” and if given the chance are likely to argue for reduced density; and (4) “[t]hese preferences mean elected officials are unlikely to voluntarily promote higher density housing and may even work to block it,” thereby generating delays and higher development costs. Trounstine opined “[w]hen parcels are zoned with a minimum (high) density, affordable housing projects are less likely to be derailed.”
Based on the evidence in the appellate record, we conclude a finding that Martinez has established her prima facie case of housing discrimination under
C. Affirmatively Furthering Fair Housing—Seventh Cause of Action
In 2018, the Legislature enacted a statute requiring local governments to affirmatively further fair housing (AFFH). (Stats. 2018, ch. 958, § 1.) The mandatory AFFH duty greatly increases the responsibilities on local governments in administering their land use and housing policies. As explained below, compliance requires more than simply refraining from discrimination. To establish context for the Legislature‘s decision to impose the AFFH duty on all cities and counties in California, we provide an historical overview. (See generally, Williams, Affirmatively Further Fair Housing: California‘s Response to a Changing Federal Landscape (2019) 28 J. Affordable Housing & Community Dev. L. 387, 388–393 [history of federal and state laws] (Williams).)
1. The AFFH Duty‘s History
The AFFH duty goes back to the 1968 enactment of the FHA. (Sen. Com. on Appropriations, Rep. on Assem. Bill No. 686 (2017-2018) as amended June 13, 2018, p. 1.) Before enactment of the FHA, “governments disproportionately invested in the schools, parks, and other public amenities in white neighborhoods, while communities of color were left marginalized. Not coincidentally, the property values of homes in white communities grew far more quickly than those in other neighborhoods, meaning that white homeowners built greater equity than their counterparts. The built-in economic advantage these white homeowners received, coupled with the ongoing access to better schools and other public amenities, led to entrenched cycles of wealth and opportunity for white households. The inverse effect drove cycles of poverty in many communities of color.” (Assem. Floor Analysis of Assem. Bill No. 1304 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 1.)
“Upon enactment of the FHA, housing discrimination was no longer legal. However, at that point the financial, social, and geographic disparities were so
Due to the entrenched nature of the problem, “the FHA did not just outlaw housing discrimination” but attempted “[t]o rectify existing disparities” by obligating “federal government agencies involved in housing and urban development to administer their programs and activities ‘in a manner that affirmatively furthers fair housing.‘” (Assem. Floor Analysis of Assem. Bill No. 1304 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 1; see
“The AFFH provisions of the [FHA] went largely overlooked until, in 2015, the Obama Administration promulgated the Affirmatively Furthering Fair Housing Rule.” (Assem. Floor Analysis of Assem. Bill No. 1304 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2.) “The AFFH rule required HUD grantees to examine barriers to fair housing choices and access to opportunity within their jurisdictions, and submit this examination to HUD for review and acceptance. Completion of this process became a prerequisite to receiving funding for housing development from HUD.” (Assem. Floor Analysis of Assem. Bill No. 1304 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2.) “[T]he implications for HUD and the enforcement of the long-neglected AFFH provision of the FHA were profound.” (Julian, The Fair Housing Act at Fifty: Time for a Change (2019) 40 Cardozo L.Rev. 1133, 1141.)
“In [January] 2018, the Trump Administration suspended the AFFH rule, and rescinded it in 2020, citing that the rule was unworkable, and that it would facilitate the construction of housing for low-income households in suburban communities. In June of 2021, the Biden Administration reinstated the Obama-era AFFH rule.” (Assem. Floor Analysis of Assem. Bill No. 1304 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2; Sen.
In 2021, the Legislature adopted Assembly Bill No. 1304 (2021-2022 Reg. Sess.) to clarify the AFFH analysis requirements in response to deficiencies identified in the HCD‘s review of new housing elements submitted by local governments in their sixth cycle housing elements. (Assem. Floor Analysis of Assem. Bill No. 1304 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2; see Stats. 2021, ch. 357, § 1.) The bill also clarified
2. Statutory Text
“‘Affirmatively furthering fair housing’ means taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive
communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. The duty to affirmatively further fair housing extends to all of a public agency‘s activities and programs relating to housing and community development.” ( § 8899.50, subd. (a)(1) , italics added.)
The Legislature expressly required
3. Trial Court‘s Decision
After the hearing on the merits, the trial court addressed Martinez‘s seventh cause of action by referring to
“Petitioners argue that the City‘s failure to rezone sites to minimum densities as required by the Housing Element Law, resulting in a discriminatory impact on Black and Latinx persons, flatly contravenes this duty. [¶] As discussed above, the court disagrees with Petitioners’ disparate impact analysis. Petitioners do not prevail on the seventh cause of action.”
On appeal, Martinez argues her “unrebutted evidence … established Clovis‘s longstanding pattern and practice of evading statutory obligations to create opportunities for low-income people and households of color.” She argues the trial court erred in denying her
4. The Statutory Duty Extends Beyond Not Discriminating
No California appellate court has interpreted
The first question we consider is whether the trial court erred by interpreting
Our interpretation of
Our conclusion that
The 2015 commentary to the federal regulation states that the FHA‘s provisions for affirmatively furthering fair housing “include more than the [FHA‘s] anti-discrimination mandates.” (
Consequently, the trial court erroneously concluded its rejection of the discrimination claim under
5. Violations of the AFFH Duty
Next, we consider Martinez‘s argument that the violations of the Housing Element Law proven in this case compel a finding that the City violated the AFFH duty set forth in
Initially, we note that
Accordingly, we consider whether the City‘s 2019 acts and omissions relating to the amended housing element qualify as a public agency‘s administration of “programs and activities relating to housing and community development” as that phrase is used in
Next, we consider whether the City‘s 2019 acts and omissions were done “in a manner” that did not “affirmatively further fair housing.”
Consequently, we conclude as a matter of law that the violations of
Accordingly, after remand, judgment should be entered in Martinez‘s favor on the portion of her
Next, we consider the other part of Martinez‘s
In 2021, the Legislature addressed the enforcement of
Based on this legislative history and the use of the term “mandatory duty” in
DISPOSITION
We reverse the judgment issuing the peremptory writ of mandate to the extent the writ is based on the trial court‘s finding the amended housing element does not satisfy the requirements of
We reverse the judgment to the extent it (1) resolved the fourth and seventh causes of action in favor of the respondents and (2) dismissed the fifth and sixth causes of action based on the trial court‘s August 11, 2020 order sustaining the City‘s demurrer to those causes of action. The matter is remanded to the trial court for further proceedings not inconsistent with this opinion. The judgment entered after those further proceedings shall provide that Martinez prevailed on the part of her seventh cause of action based on the violations of the Housing Element Law established in her first three causes of action.
Martinez is awarded to her costs on appeal.
FRANSON, J.
WE CONCUR:
DETJEN, Acting P. J.
DeSANTOS, J.
Notes
“A housing barrier regulation may operate in one of several respects; to prevent the construction of housing that will likely be used by minority groups in places that currently lack minority residents; to confine housing that will be used by minority group members to neighborhoods where minority households already predominate; or to otherwise deny minority households freedom of movement in a wider housing marketplace.” (Forty Years, supra, 63 Am. U. L.Rev. at pp. 360–361.) For the period 1974 to 2013, eight of the 18 “positive FHA disparate impact decisions at the appellate level were challenges to housing barriers,” which made that type of claim the most successful. (Forty Years, supra, 63 Am. U. L.Rev. at p. 402.) The next most successful type of FHA disparate impacts decisions are “challenges to neutral occupancy rules or other restrictions on the basis of familial status.” (Ibid.)
Similarly, a sentence using “or” would not be compatible with California law. After being amended in 2018,