housing act we are also asking the court to reverse the dismissal of the fifth count which was a due process violation which was dismissed with prejudice under rule twelve b six the district court  committed reversible error in dismissing count five of the due process claim with prejudice because the court went beyond the four corners of the complaint in finding that the city's proffered basis for the water meter policy was b six motion the court is limited to construing the facts on the other four corners of the complaint and it's required to construe the allegations of the complain the light most favorable to the nonmoving party you agree with that i understand where your honour's going with respect to the plausibility argument however that does in a twelve b six context go outside the four corners of the complaint the rational basis has to be rational i'm going with it and the complaint i rational basis asserted which they asserted was implementing a water study they had had a private contractor do a water study that recommended base rate increases across the board citywide the city adopted an ordinance that implemented the exact rate ordinance changes that were recommended by the water study however they also included this water meter billing classification change which affected only multifamily  projects they went from billing multifamily master metered projects based on the number of meters to the number of units that increased the burden on o t c we understand all that ok what i what i'm getting at is  what is alleged in the complaint is that the water study didn't recommend this classification change as that matter it does matter because there is no rational basis between the city's interest in in funding the utility which was outlined in the water study and this chang classification i would think that there's easily a conceivable conceivably rational basis to want to boost utility revenues to the thing i mean like any any rate increases conceivably nationally related that and they did that they increased the base rates in accordance with the water study across the board what they also did was went outside the water study and they tried to rectify what was essentially a permit ing problem they had permit a master meter community o t c in violation own ordinance and they tried to fix that through this ordinance change which increased the burden on one customer and the water study didn't recommend any additional burden on one customer may ask a question this way i agree with you on twelve bits an odd case because a piece of it comes up on twelve b six in a piece on summary judgment and they could have been very easy to simply convert the twelve b six into summary judgment and consider the entire record court doesn't particularly paragraph twenty nine and what was appended to the complaint was exhibit a resolution twenty five seventy six twelve i read those paragraphs twenty eight twenty nine and exhibit a together and it struck me that that stated a rational basis it required a new sanitary system they were beginning a five year consolidation process they wanted to adjust fees to fund the process they wanted to take into account the historical nature of the transaction why wasn't the fiscal integrity of the city a sufficient justification you might disagree and you might say now they could have done it better they could have done it differently but given the breath of rational basis scrutinies judge a new some pointed out to you why wouldn't this be rational you're on the converse of rational is arbitrary and without a backup in the rate study the change in classification was truly arbitrary the funding was established by the water study which showed a graduate of the complaint that i see fit of leave says you have a conclusion restatement that they went beyond the study that's all disagree with judge marcus was an observation that it had to do with money no i agree that that the real utilities the ordinance itself had also other other rate payers your honor the problem is if the if the city was relying on the rate study which is what it has contended from the beginning is that it is relying on implementing the rate study if that was what it was doing then and by changing the classification toe for o t c and multifamily master meter multifamily it went outside the rate study if it was going to do that right slow did that i'm sorry it yielded a different rate no it adopted the exact rate implemented by the water study and yet it's still got another eighty four thousand dollars in annual revenue increases from o t c based on the media meter classification argument is that if it was going to implement the rate study and and stablish what the the city's needs were then when it changed the classification it also should have reduced the rate increase citywide it didn't do that it adopted the city wide rate increase that was recommended by the water study and then did extra just seems to me like what you're saying on rational basis review is the cit articulated justification for this is not true and i just don't know that on rational basis review that's a winner and i think we're i think courts generally as a matter of law can go sort of beyond the articulated justification and say even if that one is wrong might there have been some other one that rationally supports the stay i think it is a twelve b six stage that your honor the court is confined it is it is a procedural bar it is not a substantive bar at at the same problem with the sage the problem with that assertion is that our case law is clear that if a court can hypothesize a rational basis whether offered by the party or not and there is a rational basis that you can i possibly size that's it that's the end of the inquiry your argument is that don't lock us out of any analysis outside of what you say we should be looking at the  you want to see you want to say that in a written opinion that henceforth we can't do that no the but when the when the rational basis that is pled is proven to be irrational because it doesn't bear relationship to what the city was using to implement its rate increase then you can't connect the rationality that prob the problem is the action bears no relationship to the arcing kind of study and then who was it th ordinance the city council wrecked we don't know what happened that the city council well we could compare the raid no we understand they hadn't had a study and they were acting pursuant to the study but we don't know what else they were doing when they decided to do what you're complaining about well we know what they did because we take we don't what they said but we can't consider whether that was rational correct but we have to look at what was on the vehicle and we can't consider it supreme court's anchor correct your honor but talk about the police power health and welfare certainly your honor and there's no dispute that the city has that power the problem is with pleading that isn't the exercise that the exercise or police power they did your honor and i think the parties agree that this was a legislative action and there was no question about that the army and the remaining time you have about disparate impact the disparate impact you know our issue on summary judgment your honor was that the court resolved issues of material fact it weighed the evidence it's evident on page beginning at page eighteen of the court's order that the this o t c put on evidence and i put the district court says more than that the district court says is a matter of law that you didn't produce any of the kind of statistical evidence that you would be required to produce in order to is stablished disparate impact i'm talking about just one of the three grounds upon which the district court when went off why was he wrong about that  with respect to the causation talk about after about disparate impact now and i'm talking specifically about the proofs that you will mounted to his stablish a sufficient supply statistical basis for disparate impact yes your honor and there are three has been codified that disparate impact is proven with three elements the first is causation and it was the cause asian element that the court had trouble with unfortunately i think the court read into the causation element a requirement for intent and culpability a standard that does not exist the only thing in the causation stage that the plaintiff has to show is a that the challenge practice caused o predictably will cause a discriminatory effect to get to causation don't you have to show that you see would have suffered financial hardship and they are therefore would have had to close and therefore would have had to turn people away a question i have for you is you've been essentially day or in the red brief to please talk about the liquidity guarantees and you haven't why doesn't that  at this stage at summer that is absolutely something that we should have to address at trial however at the summary judgment stage we had paloma sigmund affidavit which he is the financial officer of these companies he said weak we cannot continue to sustain ourselves with the content with the debt service that we have including unsecured debt and we will not survive and if that happens two hundred thirty six units of low income housing which serves seventy five percent minorities will close in the face of documentary evidence of these guarantees the documents in the expert report that guarantees do not cover all of the debt and the guarantors have an interest not necessarily consistent with can continuing this as low income housing the difficulty for me is that like this is the first time i'm now being educated about the extent and nature of the guarantees and i would argue that that demonstrates exactly why summary judgment was inappropriate here because we had the fundamental thing that factual question of whether or not o t c would be forced to close by the mr roper good morning your own ends donovan roper for the city of oviedo i'd like to address judge marcus's point on the twelve b six nature of the substantive due process violation in the court record the discovery cutoff was april sixth two thousand and seventeen the second amended complaint which for the first time added that count was filed later on april eighteenth of two thousand and seventeen that's why the judge dealt with it in a twelve b six motion and cited kantner vs city of set sanibel and stated that because the legislative exception legislative act exception happens here which protects against arbitrary and irrational actions by the government the rational basis review applied and that is that the plaintiff has the burden of a stablish ing that a policy is arbitrary and not rationally related to a legitimate government purpose and that's cooked versus bennett a court case from this court back in two thousand and fifteen and also can't enter again versus city of santa bill what is the basis for the policy that is in the record in document fifty six dash two page sixty two which states the p r m g s rate study in two thousand is this part of the count five yes or is this goes to the basis of the study and then the basis for the adoption by the city of a veto in passing the resolution that adopted the study in philippa to see  equal to the cost of the services provided by the system and the city should establish right sufficient to cover the costs of operating maintaining repairing and financing the system robert or i president of p r m g who did who conducted that right study justified in his affidavit document sixty dash one paragraph and we review that the it talks that are relevant for purposes of twelve b six are we not limited a to the complaint and b to the policy and any hypothetical rational basis we can find are we free put differently to look at extrinsic evidence including the deposition or a statement that isn't part of the complaint and isn't cited in the complaint in eight hundred twelve b six fashion in which discovery cut offs already taken place several days beforehand and in the in the  process and in the posture that the case was at the time looking at the four corners of the second amended complaint and specifically that allegation i pick you've just cited something mr roper that goes beyond the four corners of the complaint and the attached policy well what they were a lot of i miss apprehended what you were referencing no you are maybe i didn't make myself clear what is what is clear though in the judge's ruling is that the entire basis for not only the study that p r n g rendered but also the resolution was clearly related to a legitimate government objective and not arbitrary what one has to remember here that what is being challenge is not the policy itself but the city of a veto's refusal to grant an exception to that policy well there's nothing in it in the  regulate the adoption that provides for any exception or judicial review or review before anybody that is correct your honor i agree that if they were complaining about the exception they don't have a subset of due process claim they've got that it's kind of like a take a glance at that is a very go the very nature of this cause of action though is challenging their refusal to grant the exception to the policy they are on attacking the policy in this particular count count five saying that it's arbitrary and it's not rationally related to a legitimate government basis when clearly it is  i'd like to move on to what i feel is are the bor important issues that we were only touched on basically very briefly in opening arguments by opposing counsel and that is available to protected class a plaintiff can show either the station has its segregated effect or to that it makes housing options significantly more restrictive for members of a protected group in comparison to  persons outside that group that was the holding of this court in hallmark development versus fulton county back in two thousand and six relates out on page nine of its order now in this particular clase this is the us supreme court case in two thousand and fifteen of inclusive properties talks about that very issue what is necessary sort of a block on hallmark whatever we said there you agree twenty four c f r one hundred point five hundred c one and they say specifically in order to prove a disparate impact f h a claim under the first element under the regulation the plaintiffs must first make a prime aphasia showing of disparate impact that is and i'm quoting from the regulation the plaintiff has the burden of proving that a challenge practice caused or predictably will cause a discriminatory effect if a statistical discrepancy is caused by factors other than the defendant's policy plaintiff cannot establish a prime facia case and there is no liability now in this case all we have is a democratic survey of how many minority folks lived in o t c vs non minority folks and it came up with seventy seventy six percent where minorities and the village all together  and twenty four percent were white it doesn't go any further it doesn't connect the dots it doesn't connect a causal relationship to other populations outside of o oviedo town center or to anyone in the general the statistical base they used was wrong or and harrison it was wrong they limited the comparison statistically simply to the folks who lived within this unit rather than looking at it on a city  absolutely or as your point correct salute and that is exactly the kind of rationale that the us supreme court threw out in a very similar scenario in inclusive communities and also that this court vs city of treasure island threw out in the case of a halfway house in the city of treasure island for recovering drug addicts because all they produced was a similar survey saying the folks who are recovering drug addicts in this facility will be thrown out onto the street they did not show that the need for housing for recovering drug addicts exceeded that in the community majority was sixty six percent right the only comparison they make is the former not the latter right but do we know anything about the latter that is to say if we used a city where i citywide comparatives which we held you had to do in that there there was no discovery done whatsoever and no evidence submitted whatsoever and in fact just a point then boils down to simply the district court was right because to mount the kind of statistical impact case they want to ma they've got to have the right kind of showing and the comparison they made was fundamentally wrong agreed and i think that the inclusive communities supreme court case on page twenty five twenty three takes it one step further on that first step proving a prime aphasia case of supreme court focused on the fact that the plaintiffs need to demonstrate a robust causality requirement and when you look up under oxford dictionaries as to the term robust it says uncompromising and forceful when one looks at merriam webster dick's dictionary as having or exhibiting strength strongly formed or constructed we don't have that here there's no robust causality met at all  additionally in this particular case this is a one time decision again the decision by the city of oviedo to deny an exception to their rational him in a rational basis policy of imposing uniform fair and equitable utility rates that will take care of the bond obligations in inclusive communities they came up with three hypothetical scenarios in which they pointed out it would be very difficult for a plaintiff to demonstrate the required causal connection such as a one time decision by the government as opposed to the policy it drafted being an acted well that's exactly what we have here  and that's a case you need to cite i can supplied for you but they address the very same issues in this context in superimposed over a a survey that simply said five percent of the workforce was non white and ninety five percent of the workforce was white that's just a bare statistical discrepancy that doesn't prove anything moving to approximate causation because not only deplaned just have to prove a privation case and certainly an element to if they were wrong about the prime of facia do we have to get on do we even have to address the other question i don't think so your honor but i think that if you're looking at the proximate cause issue that is woefully short on that too because in the bank of america versus city of miami case obviously they talked about forsee ability alone in an f h situation it is not enough and proximate cause analysis is controlled by the nature of the statutory cause of action the question is if the harm alleged has a sufficiently close close connection to the conduct the statu have an in to the one step in the tween but do we have to get to that question is all i'm asking you know this case if the district court was otherwise correct about the prime aphasia showing i don't think so your honor i don't think so but assuming argue when doe that somehow that even meets muster you still can't get past the proximate cause in this case because although they were vague the court does say that the f h requires some direct relation between the injury asserted and the injurious conduct alleged they talk about directness principles and the fact that there has to be a close connection between the injury and the conduct complained of it it cannot be remote that there is no evidence here whatsoever as to why would it be remote here  it's the that the if the harm is they charged me more than they should have by calculating it in a certain kind of way we had to pay more money in weeks simply couldn't sustain it or injury was direct it was immediate and it was a function of this change in policy why isn't that sufficiently close and direct to meet whatever requirement proximate cause it requires in this context well there was no direct relation between the passing of that resolution and you not men of that resolution and the facts in this case the facts in this case showed instead that for the first four years of its existence oviedo town center had their tenants paying their own utilities the facts also showed that the city of oviedo for five years dramatically under build this particular facility to the tune of four hundred two thousand dollars over five years that's in the record it was an audit that was conducted and jerry boop our finance director from the city testified that when they conducted this audit they caught that error what you're talking about price difference wise here and this is an important point to make is that a town center for five years between two thousand and eight and two thousand nov thirtieth of two thousand and eleven was being charged for at the basis of eight single family homes for the twelve blocks they had there instead of the two hundred thirty six apartments now of those two hundred thirty six apartments and over town center sixty seven of them are one bedroom one bath forty five of them are two be bass seventy six of them are three bedroom two basses and forty eight of them are four bedroom for better and three bass that's a total of five hundred seventy seven bedrooms and four hundred fifty three bathrooms so for five years they're being charged at the rate of eight single family homes which is dramatically obviously by the numbers four hundred two thousand dollars what they're asking you is centrally to do is to reinstitute that old error and go back to the old system and not harm their profit margin now the incredible thing here is that as of october of last year o t c went back to that old system that they had in place for the first four years of having their tenants pay that if you in footnote one on page fourteen of our brief we cite  four cases in the county court down in seminole county in which oviedo town center has sued to a vict for their tenants and guess what in august of two thousand and seventeen when  the when when when the landlord is still paying the rent if you look at paragraph seven of the lease it says we pay the following and it has a box for weight water and wastewater checked but then two months later in october and november of two thousand and seventeen in two other lawsuits that is removed those checks from those boxes are removed and now the tenants painted the record yes sir ok that  that actually we requested that you take judicial notice of that because we can take judicial notice and we can take you the fact last well the reason i bring that up is because their whole argument here is that our denial of driving them out of business and that they can't change or their practice or point will in fact they can you heard what she had to say about the guarantee yes or that what's your understanding of the strength or the extent of it i'll put it that way the guarantee is very complete it says specifically the first one is the operating deficit guarantee that means the pla partnership agreements required the general partners to us to finance operating deficiency with non interest bearing loans that's the first one secondly there were two additional guarantees  en ginsberg individually as well as his related trusts the allen ginsberg trust provided operating and completion guarantees and an individual recourse guarantee for the full amount of the sale lo effectively on o t c because if if the tenant pays the utility the rent is decreased by the amount of the utility that they paid that is in the record again those are issues of material fact that the court weighed in favor of one party over the other which was improper the stage can you help me with this disparate impact again in the statistical showing in the pre inclusive case schwartz versus the city of treasure island we said we held that a comparison had to be made between members of the protective class throughout the city that are affected by the ordinance and nonmembers throughout the city affected by the ordinance they didn't do that and it was fatal in that case in this case the district court followed what we had said there and said specifically to explain how you could have but did  your burden he said and i quote plaintiffs may have satisfied their burden with statistical evidence demonstrating that comparison between one x percent of racial minorities occupying multifamily properties in the city and paying per unit based charges and two why percent of the non minorities occupying multi family properties in the city paying per unit charges but because you had completely failed to present any relevant comparative evidence your claim necessarily failed on disparate impact because the comparison you drew was limited to the the other case that you mention which the ordinance applied citywide in this case with the fair housing claim the claim is that the failure to grant the exception was what violated fair housing o t c was the only multifamily  meter community in the city of a veto that was impacted by this rate this meter change ordinance that was in the deposition of mr boot who is the city's finance director and he also the fellow who's the reason for that is because there was this  c didn't know that they applied for master miners the city employee installed master meters and then they did their financial projections based on what that master made meter community was going to look like over the next five ten fifteen twenty years the problem is that the causation is specious but for this rate change o t c would not have to close they would not have to displace seventy five percent of its its tenants seventy five percent of which are minorities