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May 20th, 2009
Kyle to fight HBA appeal


KYLE — The Kyle City Council, as expected, agreed Tuesday night to fight an appeal that will be filed by the Home Builders Association (HBA) of Austin.

A United States District Judge ruled in late March that ordinances passed by Kyle in 2003 do not have the effect of discriminating against minorities by forcing new home prices beyond their means, as the HBA and National Association for the Advancement of Colored People (NAACP) contended in a lawsuit they filed against the city in 2005.

Bradford Bullock, Kyle’s attorney in the matter, said the home builders filed their notice of appeal almost two weeks ago. The case will be appealed in the Fifth Circuit Court of Appeals.

In his decision against the plaintiffs, U.S. District Judge Lee Yeakel said the home builders failed to establish a prima facie case demonstrating that Kyle’s ordinances would have a disparate impact or discriminatory effect on minorities.

“The city believes Judge Yeakel got it right at the trial,” Bullock said. “The city is fully prepared to (fight the) appeal.”

If Yeakel had found that the plaintiffs made their prima facie case for discriminatory impact, then the city would have to have demonstrated a compelling governmental interest in enacting the ordinance. Finding that the prima facie case did not hold, Yeakel didn’t address in his ruling whether Kyle demonstrated its compelling interest.

However, Bullock said, the entire matter was tried in Yeakel’s court, meaning it will likely fall to Yeakel to rule on whether Kyle demonstrated that interest. That is, if an appellate judge rules that the plaintiffs do have a prima facie case, then the matter is likely to be remanded to Yeakel, who would then rule on whether Kyle succeeded in meeting its burden.

“The pickle they’re going to have in appeal is that Judge Yeakel gave them their day in court,” Bullock said of the homebuilders. “He allowed them to get in all their evidence … He forced the city to put on its case for a compelling governmental interest.”

The 2003 zoning changes required new single-family residences to be a minimum of 1,600 square feet on minimum lot sizes of 8,190 square feet. The previous minimums allowed lots to be 20 percent smaller and houses to be 200 square feet smaller.

During public meetings in Kyle leading up to the new ordinance, city officials expressed concern that the Kyle housing stock didn’t provide the next move up from a starter home for growing and prospering families who wished to remain in the city.

The HBA and NAACP held a press conference in February 2005 to announce the findings of their study about the impact of the new ordinance on home affordability for minorities.

In October 2005, the Kyle City Council passed an ordinance increasing the residential building impact fee by 25 percent. The next month, the HBA and NAACP sued the city, saying the new ordinance priced minorities out of the Kyle housing market while also contending that the impact fee increase was retaliation for the plaintiffs aiding or encouraging persons to exercise their rights under the Fair Housing Act (FHA).

In his ruling, Yeakel declared that the “Plaintiffs take nothing by their action against the City of Kyle, Texas,” while also denying all other relief.

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