San Marcos Mercury | Local News from San Marcos and Hays County, Texas

November 16th, 2010
Appeals court rules for Kyle in home builders suit


The Fifth United States Court of Appeals ruled in the City of Kyle’s favor last week regarding a lawsuit filed by home builders who accused the city of discriminatory policies in residential development regulations passed in 2003.

The original suit was filed against the city on Nov. 22, 2005, by the National Association of Home Builders (NAHB), the Home Builders Association of Greater Austin (HBA), and the National Association for the Advancement of Colored People (NAACP), the Texas State Conference of the NAACP.

In 2003, the city passed a subdivision ordinance requiring upgrades to future homes built in the city. In public meetings leading up to the adoption of that code, city officials and residents expressed concern that the city didn’t have enough diversity in its housing stock to enable families to stay in town when their circumstances improved and they outgrew their starter homes.

The lawsuit complained that the residential codes violated the Fair Housing Act. As the city passed the regulations, the city had minority majorities on the city council and the planning and zoning commission.

The suit also alleged that Kyle retaliated against the HBA when the city increased building permit fees to cover the cost of the litigation.

United States District Court Judge Lee Yeakel ruled in March 2009 that Kyle won on all counts and did not violate the Fair Housing act, nor did the city retaliate against the HBA by raising the permit fees.

The appeals court ruled that the groups did not have standing to sue the city, as no evidence was presented that any of their members were unable to purchase a home as a result of the revised rules

“There is no evidence in the record showing that a specific member of the NAACP has been unable to purchase a residence in Kyle as a result of the revised ordinances that went into effect in 2003,” said the appellate court ruling. “There is also no evidence showing when and how the revised ordinances may deprive a NAACP member of the opportunity to acquire a new residence in Kyle. Instead, Plaintiffs have pointed only to evidence suggesting, in the abstract, that some minority members may be less able to afford such residences due to the revised ordinances. This is insufficient for associational standing because the alleged injury is neither concrete nor imminent.”

Said Kyle Mayor Lucy Johnson after the appeals court decision, “We are very pleased to have the appeals court confirm what we have known all along, that Kyle’s home building rules are fair to all people. Now that we have this behind us, I’m looking forward to being able to focus completely on moving the City of Kyle forward and building the very best city possible for all our existing citizens and for all our future citizens.”

The 2003 changes to the city’s zoning ordinance requires single-family residences to be a minimum of 1,600 square feet on minimum lot sizes of 8,190 square feet. The revised ordinance also requires all new structures to be constructed with exteriors of 100 percent masonry and to have garages of not less than 480 square feet. The previous ordinance required a single-family residence to be not less than 1,400 square feet and allowed lot sizes to be 20 percent smaller.

“As a city, we are very proud of our diversification and embrace the strength that we gain from it,” Kyle Interim City Manager James Earp said. “I certainly hope that this ruling lays to rest any doubts about the fairness of our ordinance and assures the public that the City of Kyle is happy and proud to be home to all people.”

Kyle spent much of the last decade as one of the fastest growing cities in Texas, pressuring the city to keep up with services.

On passing the ordinance, the Kyle City Council grandfathered in approximately 60,000 plats that were in process under the previous rules.

The city countersued for attorneys fees. The appeals court ruled that because the lawsuit was not frivolous, the attorney fees would not be awarded.

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0 thoughts on “Appeals court rules for Kyle in home builders suit

  1. Should have ordered NAHB, HBA, NAACP and Texas State Conference of the NAACP to pay Kyle’s legal fees or some other type of restitution to the city.

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