Tenth St. Residential Ass'n v. City of Dall.

968 F.3d 492

TENTH STREET RESIDENTIAL ASSOCIATION, Plaintiff - Appellant

v.The CITY OF DALLAS, TEXAS, Defendant - Appellee

No. 19-10826

United States Court of Appeals, Fifth Circuit.

FILED August 3, 2020

John Morgan Hasley, Legal Aid of NorthWest Texas, Fort Worth, TX, Laura Beth Beshara, Michael Maury Daniel, Daniel & Beshara, P.C., Dallas, TX, Jorge Jasso, Attorney, Legal Aid of NorthWest Texas, Dallas, TX, for Plaintiff - Appellant

Kathleen MacInnes Fones, Charles S. Estee, Esq., Nicholas Dane Palmer, Attorney, James Bickford Pinson, Assistant City Attorney, City Attorney's Office for the City of Dallas, Dallas, TX, for Defendant - Appellee

Elizabeth Sherrill Merritt, Esq., Deputy General Counsel, Sharee Williamson, National Trust for Historic Preservation, Washington, DC, for Amicus Curiae National Trust for Historic Preservation

Andrea C. Ferster, Law Offices of Andrea C. Ferster, Washington, DC, for Amici Curiae Preservation Dallas, Heritage Oak Cliff

Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

In 2010, the City of Dallas ("the City") amended its City Code to streamline its procedure for demolishing dilapidated historical homes smaller than 3,000 square feet. Plaintiff-Appellant, Tenth Street Residential Association ("TSRA"), sought to enjoin demolitions under the new ordinance, alleging that the demolitions were threatening the neighborhood's status as a historical district. The district court found TSRA's injuries constitutionally insufficient and dismissed its claims because it lacked standing. Because we agree that TSRA failed to prove that its injuries are traceable to the City's alleged misconduct and that its injuries are redressable, we affirm.

I.

Tenth Street Historic District is one of a few remaining Freedmen's Towns in the nation and the only remaining one in Dallas. Today, the Tenth Street population is predominantly Black and Hispanic. TSRA is Tenth Street's neighborhood association, whose members are owner-occupants of single-family homes in the District. The struggle to preserve the historic nature of the District has been a long, fraught battle. Tenth Street was zoned commercial use until 1993, when the City finally designated it as a Landmark Historic District and provided single family zoning for the area. Despite these protections, the City has recognized that Tenth Street is currently in danger of being irreplaceably lost from severe deterioration without the support of additional resources. DALL. CITY CODE ART. XI § 51A-11.102(4.1). One of the issues facing Tenth Street is the City's demolition of its abandoned homes.

Prior to 2010, all demolitions of historic homes in Dallas were processed under Dallas City Code 51A-4.501(h) ("4.501(h)"). Now, it is used for nonresidential structures and homes greater than 3,000 square feet. 4.501(h) requires the City or a property owner seeking to demolish a residential structure to submit an application to the Landmark Commission indicating that "the demolition or removal is sought for one or more of the following reasons:"

(i) To replace the structure with a new structure that is more appropriate and compatible with the historic overlay district.

(ii) No economically viable use of the property exists.

(iii) The structure poses an imminent threat to public health or safety.

(iv) The structure is noncontributing to the historic overlay district because it is newer than the period of historic significance.

DALL. CITY CODE § 51A-4.501(h).

The Landmark Commission is required to deny the application for demolition unless the applicant proves specific factors bespoke to the reason the applicant is seeking demolition. Id. § 4.501(h)(4)(A)—(D). For example, the Landmark Commission must deny an application to demolish or remove a structure that purportedly "poses an imminent threat to public health or safety" unless it finds that:

(i) the structure constitutes a documented major and imminent threat to public health and safety;

(ii) the demolition or removal is required to alleviate the threat to public health and safety; and

(iii) there is no reasonable way, other than demolition or removal, to eliminate the threat in a timely manner.

Id. § 4.501(h)(4)(C). From 1993 to 2010, when 4.501(h) was the exclusive procedure by which demolitions were carried out in the City, the City approved 41 demolitions on Tenth Street.

On June 23, 2010, the City amended its Code to include ordinance 4.501(i). The stated purpose of the new ordinance was to create a less burdensome procedure for the demolition of historic homes under 3,000 square feet. To that end, 4.501(i) allows the City to obtain an approved certificate of demolition from the Landmark Commission after it receives a court order that the structure is an urban nuisance. Id. § 51A-4.501(i)(3). An urban nuisance can be established by proving, by a preponderance of the evidence, that the structure "is dilapidated, substandard, or unfit for human habitation and a hazard to public health, safety, and welfare." Id . § 27-3(40)(A). After the applicant notifies the Landmark Commission of the court order, the Commission conducts a public hearing where it must determine that suspension of the demolition is not a feasible option to alleviate the public nuisance in a timely manner. Id. § 4.501(i)(6)—(7). But the Landmark Commission must afford deference to the court order, so it has little to no discretion to do anything but approve the demolition. The only way to suspend a demolition once the 4.501(i) process has been initiated is to intervene as an "interested person," which requires:

[1] submit[ing] an application for a predesignation certificate of appropriateness or a certificate of appropriateness;

[2] provid[ing] evidence that the interested party has or will obtain title to the property and has authority to rehabilitate the structure, or is authorized to rehabilitate the property by a party who has title to the property or has the right to rehabilitate the property; [and]

[3] provid[ing] evidence that the structure and property have been secured to prevent unauthorized entry[.]

Id. § 51A-4.501(i)(8)(A)(ii). An interested person must also provide an agreement that: (1) contains a covenant to rehabilitate the structure by a specific date in accordance with the Commission certificate; (2) is backed by a performance and payment bond, letter of credit, or other similar enforceable arrangement; and (3) is approved as to form by the city attorney. Id. If no interested party is identified, the demolition will be carried out.

Because Tenth Street wholly comprises homes under 3,000 square feet, all demolition applications for these homes are sought under 4.501(i). One TSRA member attempted to become an interested person under 4.501(i) to prevent demolitions on three homes, but his efforts were unavailing. For at least one of the homes, he was unable to find the property owner and obtain clear title to the property, a common issue facing interested person applicants. Per the City's Historic Preservation Officer, the homes on Tenth Street have deteriorated into urban nuisances largely due to these absentee homeowners:

Settled as a Freedmen's Town, the Tenth Street area in east Oak Cliff was designated a neighborhood worth preserving in 1993. However, as long-time families died off or left the area, properties have been sold off to absentee landlords or to new residents who simply don't know or care about the unique history of the neighborhood. Inappropriate alterations made to the remaining housing stock, lax code enforcement, and demolitions by the dozens (usually under the auspices of the city) resulted in a once proud neighborhood on the brink of losing landmark status.

Since 2010, by way of 4.501(i), the City has received 32 certificates of appropriateness for demolition of structures on Tenth Street from the Commission, 17 of which have been carried out. In comparison, only one demolition was authorized in all of the six predominantly white non-Hispanic historic districts. Tenth Street residents complain that the large number of vacant lots has "attracted illegal dumping ... [and] increase[d] trash, crime, [ ] other illegal activity," caused trespassing, homeless persons camping on the lots, and the presence of drug paraphernalia in the District.

To incentivize restoration of these historic homes, the City uses a tax exemption program. Specifically, in endangered and revitalizing historic districts, like Tenth Street, owners become eligible to receive an exemption from City property taxes of 100 percent of the property's value if the cost of rehabilitation exceeds 25 percent of the pre-rehabilitation value of the structure, excluding the value of the land. DAL. CITY CODE § 51A-11.205. Because the tax program is tied to property values, TSRA members who own smaller, less valuable homes necessarily receive lower exemption amounts than those in other neighborhoods who own larger homes with higher property values.¹

TSRA filed for injunctive relief against the City in the Northern District of Texas on January 24, 2019, alleging violations of the Fair Housing Act,² § 1982, and the Equal Protection Clause. Specifically, TSRA claimed that 2010 Amendment to the city code, 4.501(i), and the City's failure to provide equal services was intentional discrimination on the basis of race or, alternatively, that the policies caused a disparate impact on African American and Latino residents. The City filed a motion to dismiss for lack of jurisdiction and for failure to state a claim. The district court granted the City's motion to dismiss without prejudice, and TSRA timely filed its notice of appeal.³

II.

"Jurisdictional questions are questions of law, and thus reviewable de novo by this Court." Pederson v. La. State Univ ., 213 F.3d 858, 869 (5th Cir. 2000) (citations omitted). However, we review those jurisdictional findings of fact for clear error.⁴ Robinson v. TCI/US W. Commc'ns Inc ., 117 F.3d 900, 904 (5th Cir. ...