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Court of Appeal:
Project Can’t Be Blocked Under FHA, FEHA Based on ‘Disparate Impact’ Theory
Justice Hoffstadt Says Resort to Fair Housing Laws Is Precluded by U.S. Supreme Court Decision
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that fair housing laws cannot be invoked in an effort to block a neighborhood revitalization project in South Los Angeles which, according to detractors, would “gentrify” the area, having a “disparate impact” on Blacks and Latinx who would no longer be able to afford to live there.
The $1.2 billion project, which is to include high-rise condominiums, a hotel, and shops, is slated to be constructed near Leimert Park on a 43-acre parcel south of 39th Street, bordered on the east by Crenshaw Boulevard, on the south by Stocker Street, and on the west by Santa Rosalia Drive and Marlton Avenue. It is presently the site of the Baldwin Hills Crenshaw Plaza.
The Crenshaw Subway Coalition contends that the project, approved by the City of Los Angeles, is violative of the federal Fair Housing Act (“FHA”) and California’s Fair Employment and Housing Act Fair Employment and Housing Act (“FEHA”).
Different Approach
Although affirming a judgment of dismissal which followed Los Angeles Superior Court Judge Mitchell L. Beckloff’s sustaining of a demurrer, Justice Brian M. Hoffstadt of Div. Two did not echo Beckloff’s reasoning which was based on a Court of Appeal decision that was subsequently ordered depublished by the California Supreme Court.
Rather, Hoffstadt declared that disallowing the action “is dictated” by the U.S. Supreme Court’s 2015 decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.
In his opinion for the majority in that case, then-Justice Anthony Kennedy (now retired) said:
“Difficult questions might arise if disparate-impact liability under the FHA caused race to be used and considered in a pervasive and explicit manner to justify governmental or private actions that, in fact, tend to perpetuate race-based considerations rather than move beyond them. Courts should avoid interpreting disparate- impact liability to be so expansive as to inject racial considerations into every housing decision.”
City Officials’ Purview
Hoffstadt wrote:
“The Coalition’s gentrification theory implicates issues of urban renewal, socioeconomic inequality, and racial injustice. How to balance the social benefits of revitalizing blighted neighborhoods against the resulting social costs of gentrification is a question for our elected officials—not for this court. Elected officials are the ones who must grapple with these issues in deciding which projects to approve, where they should be sited, and how to mitigate the potential negative impacts of those projects on the surrounding neighborhoods by requiring or incentivizing developers to take actions that benefit local residents (such as setting aside affordable housing or employing local labor)…
“Our task is much more limited: We decide only whether the claims that the Coalition alleged in the operative complaint are legally cognizable under the Fair Housing Act and FEHA….[T]he Inclusive Communities decision by the United States Supreme Court dictates the conclusion that they are not.”
Coalition’s Contention
The coalition argued that even if application of the FHA is barred by Inclusive Communities, the FEHA, which it contended is broader, can be relied upon. Hoffstadt countered:
“[T]he safeguards that Inclusive Communities built into disparate impact claims under the Fair Housing Act would seem to be equally pertinent to such claims under FEHA—namely, the concern that such claims not be used to coopt FEHA into a tool for injecting race into city planning decisions, for discouraging affordable housing, or for perpetuating racial segregation in housing patterns.”
The case is Crenshaw Subway Coalition v. City of Los Angeles, 2022 S.O.S. 930.
Copyright 2022, Metropolitan News Company