A California appeals court has ruled it is not enough for municipalities and counties to refrain from low-income housing discrimination, but under state zoning law, must also set aside sufficient land to accommodate such housing.
The recent decision was delivered by Associate Justice Donald Franson Jr., with concurrence from Associate Justices Jennifer Detjen and Thomas DeSantos, of California Fifth District Appellate Court. The decision favored Clovis resident Desiree Martinez in an action she lodged against the city of Clovis in October 2019 in Fresno County Superior Court.
Martinez claimed Clovis engaged in housing discrimination by not zoning enough areas for low-income housing, as required by state law. Judge Kristi Kapetan agreed with Martinez, which caused Clovis to appeal.
The case revolves around the Housing Element Law, which directs municipalities to provide opportunities for affordable housing.
Martinez argued Clovis had a “ministerial duty to plan and zone for over 4,000 affordable housing units," but did not do so. She further maintained zoning is the primary reason for economic disparity in the city. Clovis is a city of 120,000 residents, of whom 68 percent are white, according to U.S. Census figures.
Justice Franson concluded Martinez made a plausible case Clovis did not follow the law.
"That a city or county did not discriminate in its housing related programs and activities does not automatically mean the entity fulfilled 'its obligation to affirmatively further fair housing,'" Franson said, quoting from the Housing Element Law.
In other words, Franson said, "Compliance requires more than simply refraining from discrimination."
Franson noted that Jessica Trounstine, an expert hired by Martinez, pointed out Clovis is whiter and wealthier than nearby Fresno, with more expensive housing and more stringent land use regulations. Trounstine said it is "extremely unlikely" these differences happened by chance and Clovis' current zoning is "highly unlikely" to ameliorate the differences.
Clovis had contended it was immune from Martinez's action, but Franson found immunity only applies when a plaintiff is seeking damages for an injury. In Martinez's case, she is seeking to "correct administrative abuse" on the part of Clovis, so the city is not shield by immunity.
Franson concluded the state law "goes beyond simply prohibiting a public agency from discriminating in its housing programs and zoning."
Martinez has been represented by Patience Milrod, Alfred Gallegos and Jesse Avila, of Central California Legal Services, which has offices in Fresno, Merced and Visalia. Martinez has also been represented by Valerie Feldman and Michael Rawson, of Public Interest Law Project, of Oakland.
Clovis has been represented by David Wolfe, Mark Kitabayashi and Michael Linden, of Lozano Smith, which has eight offices in California, including one in Fresno.