Villas West II of Willowridge Homeowners Ass'n v. McGlothin
885 N.E.2d 1274
Ind.
2008
Check Treatment

*1 that a trial is we conclude new a failure to Because a continuance was request to 60(B)(2), we need appropriate under Rule discover the new diligence due to exercise claim under Rule Speedway’s not address posttrial testing. developed 60(B)(3). cross-appeal to plaintiffs’ As the contend, the and Finally, plaintiffs the granting the trial court erred in agreed, that exer- of Appeals Court Speedway’s jeans, motion to test the could have Speedway diligence, due cise of arguments that on the same claim is based evidence, or at least re- the new obtained diligence did Speedway not exercise due thirty jeans, the to the within quested test For reasons during and trial. the before judgment. Speedway, after days above, affirm the trial court’s discussed we to Speedway had file N.E.2d motion the grant Speedway’s to test jeans, then in the by to the motion test jeans. court, for the the and wait possession of Conclusion hearing, and an or- response, plaintiffs’ testing. Speedway also permitting der denying trial court The order the analytical chemist and had find Error and Speedway’s Motion to Correct knowledge coding, label someone Indiana Judgment for Relief from under jeans provide and its testing, the send reversed, 60 is and Trial Rules perform their with time to tests experts grant Speedway’s trial court’s motion All these activi- prepare reports. jeans case is test is affirmed. The holiday over season. required ties were remanded with instructions to vacate act Assuming possible to more it was judgment and a new trial. schedule point no disadvan- plaintiffs quickly, days thirty after tage passage SHEPARD, C.J., DICKSON, trial, and motion was filed Speedway’s RUCKER, JJ„ SULLIVAN, and concur. Trial period allowed Rule within A

for a motion to correct error. new Trial Rule appropriate therefore under

is

60(B)(2). suggest do that a new trial is

We

required appears whenever evidence or, case, in this eleventh thirteenth VILLAS WEST OF WILLOWRIDGE rarely surface hour. Critical exhibits ASSOCIATION, HOMEOWNERS trial, the weeks before but when within (Plaintiff/Cross-De INC., Appellant do, them, offering they parties considering Below), fendant discovery have parties ongoing who obligations, obligated oppos- to inform Even if the ing immediately. counsel McGLOTHIN, Appellee Edna authentic, communi-

jeans were failure to (Defendant/Cross-Claimant practical cate their existence shifted Below). discovery to the inno- burden this late No. 34S02-0805-CV-266. If, opposing party. cent as seems to be case, they jeans were not what of Indiana. Supreme Court be, compound- appeared problem May ed. The unusual circumstances surround- equi- us to ing this case lead conclude that

ty requires a new trial. *3 residence,

sion rented out her notwith- standing a covenant not to so. do Her homeowners association sued enforce the prohibition, countersued, and she claiming agreement that the had she made through the covenant violated the Fair Housing Act. Her counter-complaint ap- peared to include very elements of two different impact and in- claims— *4 tentional discrimination. relief, granted

The trial ap- court her pearing largely rely im- pact. We conclude that relief on these grounds was erroneous. We remand for reconsideration intentional discrimi- nation claims. History

Facts and Procedural Algy McGlothin, and Edna husband and wife, purchased a home in West II Villas Development Planned Unit Willowridge August Subdivision on 1996. Villas West II development is a 149-lot located City in the of Kokomo.1 purchased MeGlothins their home easements, subject “any agree- and all ments and restrictions of record.” One of prohibited these provisions owners leasing their residences: Peelle, Kokomo, Jeremy P. A. Thomas Jr., IN, Murray, Indianapolis, Lara A. Dwelling by Lease For Owner. Anderson, IL, Bolingbrook, Attorneys for purpose maintaining congenial Appellant. and residential character of Villas West protection and for the of the Owners Davis, Kokomo, IN,

Joseph Attorney H. regard financially responsible Appellee. for

residents, Dwelling by of a lease an Owner, shall be allowed. Each Dwelling be occupied by shall Owner family. their immediate 43.)2 SHEPARD, (Appellant’s App. Chief Justice.

A whose Mrs. homeowner deed contained var- McGlothin lived the home until ious applicable her she hip covenants subdivi- broke her moved to a 1998 and platted April 1. Villas West II was 1990 and 2. The no-lease covenant was recorded on Co., developed Bagley Jim Construction April (App. at (Appellant's App. Inc. leging enforcement of Mr. lived the Association’s

nursing home. McGlothin violated the Fair Hous- no-lease covenant until he also five months home another Act. Association ing The Homeowners nursing Mr. home. moved into summary judgment, which moved for nursing home remained in McGlothin trial court denied. After Mr. until death June his death, daugh- McGIothins’ McGlothin’s trial, After a concluded bench home. began leasing out the ter the Fair Hous- that the covenant violated Act, it finding greater had a adverse ing 20, 2002, the Villas West August On mi- and racial effect on African Americans notified Homeowners Association finding legitimate non- norities and “no daughter that Mrs. McGlothin McGIothins’ discriminatory reason” for no-lease of the no-lease covenant was in violation 17-19.) The court en- covenant. response, compliance. and demanded McGlothin. judgment tered Mrs. acknowledged lawyer Mrs. McGlothin’s appealed, and Homeowners Association pay- covenant, argued that the rent but Appeals the Court of affirmed. Villas to maintain Mrs. necessary ments were *5 Willowridge, Homeowners West of nursing the home.3 He also McGlothin Ass’n, McGlothin, 841 N.E.2d Inc. v. provision could be that the no-lease stated transfer, grant We (Ind.Ct.App.2006). invalid, racially it had discrimina- alleging reverse, and remand. tory roots. I. The Prevalence of Real to Mrs. Although unsympathetic Estate Covenants situation, the Homeowners McGlothin’s an ex A restrictive covenant is her acquiesce to declined Association grantor grant and press contract between covenant, citing violation of no-lease his grantee’s that use of ee restrains eco- its residents and the concerns “about Villages Holliday land. v. Crooked Creek could consequences nomic the violation Ass’n, Inc., Homeowners 759 N.E.2d neighborhood property have on the and control (Ind.Ct.App.2001). Covenants (Id. values as a whole.” aspects land, including may many of what that Association demanded Homeowners (fence ground land or above be built on the premises to avoid the tenant vacate the may (private the land be used pool), how further action and attached draft legal commercial), alienability or of injunction seeking against complaint Natelson, See, Law e.g., land. G. Robert of premises, the eviction renting 56-58, Property Associations Owners tenant, fees, all attorney the current of (1989). 153-66 damages. other matter, to are used to Restrictive covenants Unable resolve com- maintain enhance the value of land Association filed the or Homeowners or reciprocal undertakings Mrs. restrain plaint on October answer, Holliday, regulate filed subsequently groups properties. McGlothin her defense, al- 759 N.E.2d at 1092. These covenants affirmative and counterclaim $23,363.66 pursuant ready to 405 Mrs. McGloth- 3. The trial court found that advanced 2-3-15(c)(10), care, "Edna Ind. Code be Admin. in's the court determined lien could to own her home McGlothin was entitled placed home to secure on Mrs. McGlothin’s long rental so as the receive Medicaid benefits upon repayment and could Mrs. be foreclosed greater than the [was] income from her home or was sold McGlothin’s death if the (em- (App. expenses ownership.” at 12-13 prior to her death. added)). phasis had al- Because Medicaid in condominium or “com- law common other and the of other covenanted subdivi- housing subdivisions. Prior is well on way being mon-interest” sions com- plat, plete,” thus, selling proper first unit the subdivi- “to speak sion or condominium owner creates a dec- write ‘condominium law’ and ‘home- all of they laration or master deed contains owners association law’ as if were topics”).5 who Property restrictions.4 owners discrete subject purchase properties their to such Condominium associations fre certain give up degree restrictions quently adopt no-lease covenants that bar freedom in exchange individual for the rental units and forbid absentee owner protections living community in a Shifrin, ship. Jordan I. No-Leasing Re reciprocal undertakings. strictions Condominium Owners: The Restrictions found a declara Legal Landscape, 94 Ill. B.J. 80-81 (like deed) (2006). in a tion those found master These covenants are adopted to very “are with a strong presump clothed address owners’ nega concerns “about the validity tion which arises from fact high tive effects of resident turnover and purchases perceived that each individual unit owner renters’ lack of attention unit re knowing accepting property.” his of and empirical Id. at Some concerns; strictions be Har data imposed.” Hidden validates these a California Estates, Basso, bour Inc. v. study high So.2d showed that “[a] number of (over 30%) (Fla.Dist.Ct.App.1981). Analogizing signifi leased units can impair restrictions declarations to cantly position covenants market of the subdivi *6 land, Consent, running Natelson, with the court Basso sion.” Robert G. Coer cion, in held that restrictions declaration and “Reasonableness” in Private showing “will be absent a Special invalidated Law: The Property Case of arbitrary Association, are they wholly in their Owners 51 Ohio L.J. St. (1990). application, public in of or policy, commonly violation 73 n. 150 Courts en See, that they abrogate some fundamental con force no-lease restrictive covenants.6 right.” Today, e.g., Flagler stitutional Id. 639-40. Fed. Sav. & Loan Ass’n v. anticipated, Ass’n, Inc., the Basso restrictive Crestview Towers Condo. 595 (associa identically planned covenants function 198 (Fla.Dist.Ct.App.1992) So.2d and may prohibit leasing; subdivisions condominiums and func tion restrictions identically tion regardless they valid); presumed whether declaration Seagate Con Ass’n, are in a deed Duffy, found master or a declara do. Inc. v. 330 So.2d 484 Natelson, (“the supra, tion. at 58-60 inte (Fla.Dist.Ct.App.1976) (leasing restrictions gration alienation; the law of between condominium not unreasonable on restraints 4. setting using phrases The declaration or deed master forth "restricted subdivision” 3,320 powers the association's over the "Indiana” subdivision returns websites. describing typically use restrictions is commonly Conditions, 6.Courts enforce both covenants called the “Declaration of Cove- initially nants, a included in declara- subdivision’s or "CC & Restrictions” Rs.” tion, through as well as added those later recording coupled of the declaration with the Shifrin, ("The supra, amendments. at 81 con- sale of the units creates various restrictive .the stitutionality covenants, easements, of these no-renter covenant mod- cove- affirmative Natelson, challenged repeatedly ifications has been nants detailed in the declaration. exceptions, since the mid-'70s. With rare supra, at 58. right modify of condominium owners to their certainly governing The use of restrictive consistently covenants is has documents been commonplace Google upheld.”). A this state. search

1280 (1971). illegal makes- Title VII it promote residential character restrictions v. hire employer Ass’n “to fail or refuse to community); Apple II Condo. Co., prohib- of’ a Ill.App.3d discharge” person 277 a “because Trust Bank & Worth such as race. U.S.C.A. N.E.2d ited reason Ill.Dec. 2000e-2(a)(l) (West 2008). Title (1995) part § made VIII prohibition (leasing it language, making un critical upheld valid and uses the same presumed declaration unlawful to to sell or rent ... “arbitrary, against public “refuse less restriction any of’ race. person consti because dwelling some fundamental or violates policy owners”). § Based on this identi- right of the unit U.S.C.A. tutional recovery language, disparate impact

cal Impact Disparate Under Claims II. by FHA been allowed all under the Housing Act the Fair courts that have addressed federal circuit question.7 Still, limit use of agreements un subject challenge real agreement wide federal There is challenge here der other law. dispa FHA allows circuit courts that the (FHA), Housing the Fair Act based on claims, but no consensus about impact rate Rights the Civil as Title VIII of enacted analyzing framework for such proper can either Act 1968. FHA claims take Supreme U.S. has not claim.8 The Court treatment or dis disparate routes: two issue, and circuits have de addressed parate impact. approaches, for the veloped variety early FHA part most derived from three re claims Disparate treatment cases, Metropolitan impact intentionally quire proof of Development Corp. Village Housing Disparate protected treatment of a class. (7th Heights, Arlington 558 F.2d 1283 Cir. claims, contrast, no require impact 1977) II),9 Heights (Arlington Resident if a intent, and can established proof of be Rizzo, (3d Advisory Board v. 564 F.2d 126 discriminatory ef has a policy practice Branch, Cir.1977), and Huntington class, if protected policy fect even the *7 Huntington, 844 F.2d NAACP v. Town of facially nondiscriminatory. or practice is (2d Cir.1988). 926 al recovery was first Disparate impact II, Arlington Heights eases the Seventh employment discrimination lowed recovery Rights disparate impact Act of that Title VII the Circuit held under of Civil Co., FHA proper Power 401 under the when defen- Griggs 1964. v. Duke See discriminatory 424, 849, produces 158 a 91 28 L.Ed.2d dant’s conduct U.S. S.Ct. looked to this annota- 7. Ave. Tenants’ Ass’n v. District Connecticut court 2922 Sherman 673, Columbia, (D.C.Cir. 444 F.3d 679 cursory reading "a tion and concluded that of of Stanton, 2006) (citing F. Fair Hous John many that article and of the cases cited set Update ing An Act and Insurance: differing opinions forth a morass of such Discrimination, Question Disability 31 of cases that the federal on fundamental issues 141, (2002) (listing 180 Hofstra L.Rev. 174 n. rely simply this will on Second Circuit court cases)). law.” Theuman, Annotation, 8. E. Evidence See John Arling commonly to as 9.This case is referred Discriminatory Alone as of Effect Sufficient distinguish Heights ton II to it from the Sev Prove, of, Facie Case Establish Prima case, ruling enth earlier in the same Circuit’s Act, Fed. Housing 100A.L.R. Violation Pair 97, of Metropolitan Housing Development Corp. v. (1990). Ackley, § C.H.R.O. v. 3 See also (7th CV99550633, 951374, Village Arlington Heights, 517 F.2d 409 2001 WL at *3 No. of 20, 1975). 2001), July (Conn.Super.Ct. in which Cir.

1281 grant four balance in favor of whether effect and factors determine relief. Id. at (1) relief. The four granting factors strength plaintiffs showing competing These approaches spawned (2) effect; discriminatory of dis- variety of others. disagree One source of intent, criminatory though enough to role, any, ment if was Arlington satisfy the constitutional standard of Heights A II factors. few courts have Davis; (3) Washington v. the defendant’s used part the factors as prima facie (4) conduct; challenged interest See, e.g., Clarkton, case. v. Smith Town of plaintiff seeks affirmative re-

whether (4th 1055, Cir.1982); 682 F.2d 1065-66 merely to defendant lief or restrain the Snyder Inc., Barry Realty, v. F.Supp. 953 interfering with individual (N.D.Ill.1996): 220 approach This provide housing. wish to Ar- owners who widely rejected been plain making II, Heights lington 558 F.2d at 1290. Rizzo, tiffs case too difficult. E.g., 564 II, Heights 32; Arlington One month after F.2d at 148 n. Huntington, F.2d at 844 adopted 935; Addison, the Third Circuit a burden-shift- Hispanics United Vill. of 1130, 1154 (N.D.Ill.1997). ing already framework similar to that in 988 n. 14 F.Supp. Rizzo, employment use in Title VII cases. Other applied Arlington courts Heights only 564 F.2d II. approach, Under factors involving cases by plaintiff prima public E.g., makes a facie show- Betsey case defendants. v. Turtle Creek, Assocs., (4th ing that the defendant’s action has a dis- 736 F.2d n. 5 989 Cir.1984). criminatory effect. Id. The defendant can Still others the sec discarded by showing justification rebut this which ond Arlington Heights proof of factor — “serve[s], in theory practice, legit- discriminatory weighed intent —and the re imate, three, fide showing maining reasoning bona interest” and intent was only that “no alternative course of action could relevant in disparate treatment cases. adopted E.g., be would enable that interest Mountain Side P’ship Mobile Estates Dev., to be served with less im- v. Sec’y Hous. & 56 F.3d Urban (10th pact.” Cir.1995); at 149. The did City Id. Rizzo court Arthur v. Toledo, (6th Cir.1986). apply Arlington Heights II factors but F.2d acknowledged that the result have would recently, More most federal circuits been the same. Id. at 148 n. 32. Arlington Heights have abandoned the later, altogether.

A decade Huntington E.g., factors Charleston Hous. sought merge Arlington Dept. Agric., Rizzo and Auth. F.3d v. U.S. *8 (8th Cir.2005); Heights II. Huntington Under the frame- Tsombanidis v. Ha West work, (2d plaintiff Cir.2003); prima Dept., the a facie ven 352 565 establishes Fire F.3d by showing “challenged case the prac- Lapid-Laurel, Zoning that L.L.C. v. Bd. Ad (3d predict- justment, Cir.2002); tice of the actually defendant 284 F.3d 442 Lan ably Auth., glois Abington results racial discrimination.” v. 207 Hous. F.3d (1st Cir.2000) 43, (“True, at Huntington, 844 F.2d 934. The defen- 51 circuit one by showing balancing, dant can rebut case that court this decision did refer to but furthered, theory its “actions and in the court few later circuit decisions on a practice, legitimate, govern- point justification bona simple fide come closer to a test, mental interest that think no alternative and we this is far the better (citations omitted); would serve that discrim- approach.”) interest with less v. Salute inatory court Apartments, effect.” The then balances 136 Greens Garden Stratford (2d Cir.1998). Arlington Heights Yet, the four II F.3d factors to 293 at least one 1282 prove must approach, plaintiff con der this courts have

circuit and several district effect, discriminatory which defen- v. Lincoln a Reinhart tinued to balance. (10th legitimate, 1225, may by offering 1229 Cir. dant rebut County, F.3d 482 In- 2007) factors); nondiscriminatory for its rule. Thompson reason (balancing three Dev., showing a less plaintiff 348 then Hous. & Urban stead Dept. v. U.S. alternative, (D.Md.2005) 398, (balancing discriminatory plaintiff 417 F.Supp.2d reason is a factors); Ass’n the defendant’s offered Peoria Area Landlord shows four Peoria, 917, Badgett, v. 976 921-22 States City F.Supp.2d pretext. 168 United v. ( (8th factors); 1176, Cir.1992); C.D.Ill.2001) Snyder, (balancing F.2d 1178 four Valley F.Supp. v. 953 Corp. Episcopal Church W. (D.Utah 1215, F.Supp.2d 1219 City, 119 courts Federal district Seventh 2000) factors). (balancing four obligated follow are of course Circuit burden-shifting frame Huntington’s including Ar- precedent, Circuit Seventh courts morphed. also Several work has II. We are not so restrict- lington Heights into Huntington’s two burdens changed ed, appears Snyder, and it that district See, e.g., Darst-Webbe Tenant three. opinion Arlington Heights on which Auth., 417 Hous. Ass’n Bd. v. St. Louis relied, of the mainstream of feder- is out (8th Cir.2005); v. 902-03 Harris F.3d authority. al (9th Cir.1999); F.3d 1051 183 Itzhaki Side, 1254; Hispan 56 Mountain F.3d Moreover, Arlington Heights United, test F.Supp. at 1162. This ics doctrinally employ II seems unsound. requires plaintiffs to show discrimi still cases, impact ment burden-shift effect, rebutting natory defendants but factor-balancing favored ing tests are over fide, nondis provide only need to a bona Teal, See v. 457 U.S. tests. Connecticut justification. the defen criminatory Once 440, 446-47, 73 L.Ed.2d 102 S.Ct. justification, the dant offers appropriate Rawlinson, (1982); Dothard v. plaintiff to show shifts back to burden 321, 329, 2720, 53 L.Ed.2d 97 S.Ct. U.S. defen an alternative would serve the (1977); Paper Albemarle Co. discriminatory ef dant’s interest less 405, 425, Moody, 422 U.S. 95 S.Ct. ex adopting approach fect. Courts (1975). Because Title VII 45 L.Ed.2d 280 plaintiff propose plain requiring language and the FHA use the same ulti gives plaintiff an alternative discrimination, ap we should prohibiting proving a violation and mate burden framework to both. More ply same is sad advantage that “neither party over, Heights II fac Arlington mixing (the having prove negative dled with burden-shifting framework tors with the of bona fide reasons or nonexistence unnecessarily complex pro produces an alterna of less absence improper consider cess introduces tives).” United, F.Supp. Hispanics burden-shifting framework ations. Arlington accommodates two relevant by considering factors Heights a much of fed Finally, smaller number *9 discriminatory effect of the strength a of the applied eral courts have variant in defendant’s challenged practice disparate treatment test McDonnell Green, it. two necessitating remaining 411 The Douglas Corp. v. U.S. 93 terest im (1973), of relief and intent —are 668 a lead factors—form S.Ct. 36 L.Ed.2d disparate im case,, proper to re considerations ing employment discrimination context. pact FHA claims. Un- disparate impact solve

1283 sought inappropriate policy relief is an or practice The has a manifest relation- FHA specifically consideration because the ship legitimate, to a nondiscriminatory in- “preventive courts to award re- authorizes plaintiff may terest. The then overcome lief, including permanent temporary or a the defendant’s showing by demonstrating order, injunction, restraining or other or- that a less alternative higher It sets no for der.” out standard would serve the legitimate defendant’s in- seeking plaintiffs affirmative relief. equally terest well. 3614(d)(1)(A). § U.S.C.A. application We now turn to dispa- this Intent is an improper consideration be- impact rate framework to the record in disparate impact dispa- cause cases the this case. The no-lease covenant at issue violation, impact is irrespec- rate itself provides: Side, tive of intent. See Mountain Dwelling by Lease Owner. For the reason, at 1252. For F.3d the same purpose of maintaining congenial third burden should address less discrimi- and residential character Villas West alternatives, natory pretext. not Pretext protection and for the Owners finding subjective is a means of to intent regard financially responsible The more pershasive discriminate. federal residents, of Dwelling lease an by specifically courts have held that current Owner, shall be allowed. Each disparate impact FHA law does involve Dwelling occupied by shall be an Owner pretext. Huntington, See F.2d and their family. immediate (“The test, however, Douglas McDonnell is an intent-based standard for disparate (App. at McGlothin contends that the inapposite treatment cases to the disparate no-lease covenant violates FHA be- circuit, claim impact asserted here. No it impermissible cause has an disparate case, impact required plaintiffs has to impact on African Americans. The trial prove justifications that defendants’ were (Id. court so found. Evidence pretextual.”). presented at trial that regardless showed age, income African rent Americans

These observations lead us to re greater their homes in proportion than do ject Arlington Heights approach 16-17.) whites. decrease it, and, with any pretext search in a for housing by available rental caused no- Instead, disparate impact case. adopt we covenant predictably dispro- lease will test, prevailing which two involves portionately affect African Americans. shifts, plaintiff not one. Requiring supporting finding While this identify a specific less restrictive alterna desired, something leaves to be we will tive is more efficient than requir and fair proceed prima on the basis that facie ing “guess the defendant to at and elimi is ease established. all possible nate” alternatives. Hispanics United, F.Supp. at 1162. The Homeowners Association sum, sought prima by rebut this facie case right to establish a demonstrating provision its impact FHA, no-lease recovery under the to a relationship legitimate, has a manifest plaintiff prima must establish a facie case nondiscriminatory that a interest. demonstrating policy practice actually predictably significantly court found that the Association’s reason or disproportionate impact excluding adverse renters from the subdivision class., protected showing, To rebut do “renters not maintain homes *10 they defendant must demonstrate that its which rent well as owners maintain covenants, Therefore, updating it. these own- Under their the exclusion homes. obligated only helps property maintain values.” ers are to maintain renters (Id. it. ample home, update at The record Contains to Own- improve not proposi- testimony supporting this expert property have an occupy ers who their (Tr. 65-67, at tion. update to because improve incentive and they and enjoy improvements can both asserted Because the Association upon selling their reap the fruits of labor nondiseriminatory reason for legitimate, the home. covenant, the burden returned its no-lease equally an effec propose to to McGlothin situation, however, in- this In a rental tive, discriminatory alternative. less is weakened because divided centive attention McGlothin drew the trial court’s ownership occupancy. and renter the trial to other covenants which several improve prop- to lacks some incentive adequately than as court found “more erty only he or she would benefit because neat, visually clean and attractive sured a an enjoyment, not from from the current environment, high degree proper and a value. ad- increased market Because the 18.) These ty (App. maintenance.” at property-maintenance covenants ditional to, require among homeowners covenants problem of divided do not address windows, door hard things, other maintain they in not property, are interests rental ware, and lawns patios, appliances; water effective, discriminatory less al- equally shrubs; keep and exterior free Moreover, excluding renters. ternative trash, signs, certain communication certain in this record although nothing there is vehicles;- devises, certain point, it directly addressing the seems ob- perform all maintenance and re “promptly is owner-occupant psy- that an both vious which, neglected, might if ad pair ... chologically financially invested versely any Dwelling, affect other Com than greater a rent- property extent Property.” mon Area the value surely can er.10 Personal motivation (Id. 38-42.) 33-35, Because these addi contractual achieve better results than place, the trial tional covenants were many This not a compulsion cases. is justifica court found that “the Plaintiffs par- Both reweighing matter of evidence. tion for no-rent lacks factu provision ties’ that owners maintain experts testified basis, rendering subterfuge, al and is mere (Tr. do better than renters. property provision unnecessary said and useless.” 230-31.) 66, 86, on Because 18-19.) Ultimately, point undisputed, to the extent found the covenant to violate the FHA. these other trial court found covenants a claim support This record does not equally adequate property to maintain val- theory. Al- disparate impact under a ues, findings point the trial court on this though specific property-maintenance clearly are erroneous. are a covenants less alter- plaintiff points to no equally Because maintenance, native the cove- promote effective, discriminatory alternatives less equally nants are not an effective means of legitimate to the defendant’s nondiscrimi- property Maintaining maintaining values. merely natory policy, policy support does main- values involves violation, FHA if improving disparate impact even taining property but also recognized owner-occupant neighbors psychology Surely, of this is tation likely by prospective purchasers, to make such investments mainte- who assess wheth- purchases part expec- based er make nance. *11 on a disparate impact protected developer’s it has a covenant and the advertise- convey any ments did not class. racial discrimi- and that nation she welcomed the covenant Disparate Treatment III. renting because an had adverse effect on counterclaim contains McGlothin’s 324-27.) 319-21, values. at allegations part dispa certain that are trial findings The court’s about the de- In rate claim under the FHA. treatment veloper’s ambiguous: intent are likewise counterclaim, alleged that her McGlothin “Whether the builder of the tract realized making 20. In covenant ... said not, ‘restricted,’ it or the words as used in developer evidenced intention to clearly its advertisements sent message limitation, preference, make a or dis- African community American ... among persons crimination who could (and African Americans perhaps other occupy dwellings within the subdivision minorities) are not welcome.” at (App. 19- sex, race, color, status, familial based on 20.) There is no evidence that the Associ- origin. or national promoted ation ever subdivision as “re- seeking said enforce covenant stricted,” but the no-lease covenant and provision, members of Villas II or West originate advertisement did with the devel- Association, Willowridge Homeowners oper, who recorded the covenants and first Inc. evidence an intention to make a (Tr. 15-16.) controlled Association. at limitation, discrimination preference, or record does contain evidence re- among persons occupy who could dwell- garding when using advertisements ings within subdivision based word “restricted” were disseminated or color, race, sex, status, familial na- whether those advertisements were linked origin. tional to the Villas IIWest subdivision. 55-56.) (App. findings at The trial court’s nature of findings these and the fact (and record on intentional dis- arguments that McGlothin’s brief contains crimination) reflect certain contradictions. but mostly exclusively pertinent to dis- The court found that there was no conclu- parate impact understandably led the sive intention of Appeals “[o]nly Court to conclude that behind at- the Homeowners Association’s disparate impact issue here.” Villas tempt to enforce the no-lease covenant. West, 841 our- N.E.2d at We find time, At the same it found the no-lease selves unable to discern whether relief is “subterfuge,” covenant to be a suggesting appropriate on intentional dis- McGlothin’s (Id pretext. This finding as to the crimination claim. The a fair need for underlying motivation for the covenant adjudication suggests desirability flows from a McGlothin witness who said remanding for further evidence and find- (used the term “restricted” here in a de- ings. advertisement) veloper’s is understood Conclusion minorities, Americans, especially African judgment the trial We reverse the (Tr. synonymous to be “segregated.” disparate impact court on the claim of Two African American residents remand for claim reconsideration of the of Villas West II also testified on this intentional discrimination. point. African One American resident tes- tified that she did not think the covenant BOEHM, JJ., concur. DICKSON language preference indicated a racial RUCKER, J., exclusion. Another African resi- American with separate dissents SULLIVAN, J., dent language opinion testified which concurs. *12 RUCKER, Justice, dissenting. JONES, Appellant Alan C. works overtime majority (Defendant below), Arlington argue much ink to

spends not be II is flawed should Heights v. sure, of as To be the Court followed. uniform noted, “a standard

Appeals Indiana, Appellee STATE of disparate determining liability upon based (Plaintiff below). elusive, and the impact remains jurisprudence been described impact No. 61S01-0711-CR-560. case body incoherent of increasingly ‘an ” Supreme of Indiana. Court v. Willowridge law.’ Villas West (Ind.Ct. McGlothin, 584, 841 N.E.2d 15, May Mahoney, E. Peter (quoting App.2006) End(s) Impact: Doctrinal Disparate Law, Reconstruction, Lending Fair and Principle,

and the Antidiscrimination 1998)). But even

Emory (Spring L.J. 409 several state imperfections, its jurisdictions to follow the continue

federal See, methodology.

Arlington Heights v. Ave. Tenants’ Ass’n.

e.g., 2922 Sherman 673, Columbia, 444 680-82 F.3d

District of

(D.C.Cir.2006); v. Anderson rel. Dowd ex (1st Boston, 375 F.3d 83-90

City of

Cir.2004); County, Reese v. Miami-Dade (S.D.Fla. F.Supp.2d 1304-06

2002); Cmty. Molo Hill Damien kai, 911 P.2d 872-74 N.M.

(1996). exceedingly make Other than to it legitimate victims

more difficult for their

housing press discrimination

claims, I see no reason abandon Indeed, Arling applying the

precedent. factors, both trial court Heights II

ton Appeals concluded Court violated

Villas West’s restrictive covenant Housing Act because

the Federal Fair of the disparate impact on members

its residing community

African American agree I and would City of Kokomo. trial court. judgment

affirm the I

Therefore dissent.

SULLIVAN, J., concurs.