raises two very significant issues under the federal fair housing act one is what is necessary to state a plausible claim for relief under it like closer what's necessary to state a plausible claim for relief for intentional discrimination under it ball and the other is whether to state a claim of disparate impact under the federal fair housing act one needs to show a shortage of housing showing that there are not any other available housing opportunities would have a significantly adverse or just proportionate impact on hispanics and if so how can you prevail given that the purchasers of your homes would be fifty percent hispanic and you admit that the city of yuma is about fifty percent hispanic isn't that proportionate impact as opposed to just four that is correct that is proportionate that's what they wanted to build but that's not what was able to be built because of the denial of the rezoning that the  evidence that we should put forward on summary judgment was that if the rezoning had been granted the plaintiffs would have would have built a housing subdivision that would have been in a price range that would have been a affordable for persons that were in the market at that time to purchase a home in entry level home whereas by leaving the existing zoning in place the if something was built there it would only be affordable by people in a much higher income bracket which was disproportionately white and much less hispanic so that does show a significantly disparate impact disturbing evidence on that though ok that evidence was based on home mortgage disclosure act data data which shows for who actually is purchasing properties and the amounts they are paying for their properties and their ethnicity and we showed that during the period of time that was relevant that in the in the proposed price range that the plaintiffs wanted to build in that they could expect that fifty percent of their purchasers would be hispanic which was also in line with what their historic experience was that fifty percent of their purchasers were hispanic in that price range but that by denying that excuse me and then that people that were purchasing in the price range of the surrounding neighborhood properties were who actually did purchase were much more heavily white and have higher incomes  well they were they were white they were seventy percent white so that shows a disparate impact by taking away that housing opportunity the the city precluded the building of properties that would have provided that would have been purchased by fifty percent hispanic people who would be reflective of the city of yuma that wasn't just that analysis no his and that was it now his analysis was because there were existed other properties in that price range that they could a disparate impact could not be shown and that you know you know what's wrong with that call it economic theory or well i think there's there's several things wrong with that one is and it's discussed at length in our brief is that the fair housing act isn't it it's protecting housing opportunities and this is reflected both in the hud regulations and in judge kennedy's recent opinion in the inclusive communities that someone that there is no violation of law if someone can go get housing somewhere else if you for example take an employment case if you have if an employer has a rule that disproportionately negatively precludes women from getting a position with an employer the fact that they can go down the street and get a job with another employer doesn't doesn't make that that rule not cause a disparate impact  no that that cannot be the standard well that if we take years to an extreme then every place could only be where it had to beat would have to be affordable to everyone and some people have more money than other people you know your honor that would have to be looked at on a case by case basis and that is actually something that's recognized in justice kennedy's opinion is that the fair housing act is designed to  outlaw unlawful zoning practices and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without sufficient justification our case is that in this neighborhood they were excluded without sufficient justification it doesn't matter that miles away they could get another house that that is if but if a whole subdivision if it cost a certain amount of money chico into it you know if that's then all of those that could never happen you could never have you could never have a subdivision that was priced higher then what everyone could afford but that's not that's not true what the fair housing act is is preventing or is designed to prevent is precluding people from building this is a barrier that was put in in in the way of an attempt to build a property yes in terms of remedies at this point that's the same assume hypothetically if that and i'm not i'm speaking hypothetically if the court were to reverse on the disparate treatment but not on the just great impact there's different theories for the same violation so it wouldn't affect because sometimes different areas have different right exactly exactly in this case what's significant is that the plane just lost the property and i think go beyond this and see if you know whether your client got some money or not of much interest to me but i think we have a because he had already ruled on the first but on the first is based almost entirely on the idea i think it's alarming for minorities confined living honor and and what i would suggest to for the court to look to guidance is the hud regulation that was promulgated in two thousand and thirteen which is referenced a number of times in justice kennedy's opinion governmental interest and then that in turn can be rebutted by a showing of a less nondiscriminatory alternative getting back to the issue of whether or not every zoning every zoning issue becomes a disparate impact case justice kennedy's explicitly states that once you show the impact that's not the end the that they're both it has to be an impact and there also has to be a causal connection which is long been the rule a causal connection between the practice or the or the ordinance and the disparate impact and then in addition the government has the opportunity to explain it legitimate governmental interest so most of these cases would never be brought because it's so clear that there's a governmental interest but in a case like this it's done usual case when there simply governmental interest is lacking and it becomes a situation where people are deprived of housing opportunities in certain neighborhoods without justification based on stereotypes based  on negative views of what they are going to do to the neighborhood so this is the kind of the as justice kennedy ascribed to the heartland case of disparate impact this is the kind of case that disparate impact was intended to be for to be designed for and the fact let it i mean that the whole purpose of the fair housing act adopted in one thousand nine hundred sixty eight was to make housing opportunities to stop to integrate neighborhoods to stop segregation so if if a if you're suing for a disparate impact on a decision that has excluded people from a neighborhood then that is exactly what the fair housing act was intended to exact same kind of thing you said i think blacks in l a can live in watts then it's ok under the eleventh circuit rule and that's the opposite of what we're saying not only is there not a disparate impact in the fifty percent circumstance present here there is the opposite of a disparate impact their own evidence if you go to sixty which is the human you must census data from two thousand and ten is that white is thirty eight percent and latin is fifty five percent you take those data and they're saying the affected area denied welling's within the f h a to an expected occupancy group that would be fifty percent white and fifty percent latin so you have in a city that's thirty eight percent white fifty percent of those denied that dwelling are white in a city that's fifty five percent latin you have fifty percent of those who are denied the dwelling are latin that is an under that is an opposite of a disparate impact or a negative disparate impact ratio and as far as the watts part which i'm i'm eager to address judge that's the opposite of what they pleaded they pleaded that lots of yuma is segregated and seventy five percent latin they pleaded that specifically the southeast area is predominantly white and so when you look at what they pleaded the area in which this housing exists is the predominantly white area so it isn't the case that we're saying someone can find housing in watts metaphorically we're saying there's tons of other housing in the supposedly predominantly white area of yuma which is their chosen geographic area that they think is preferable that they wish to integrate but their claim advocates for your honor and that's the area in which we have shown and it's undisputed they've admitted that segregated areas of yuma which was the premise of judge reinhart's question and i think these facts do not swear in this case with that premise but i do advocate for the hallmark standard because i think ultimately and you know i don't have to sustain the burden of suggesting a shortage element i don't need to show that it goes back to the very wording of judge callahan's first question there is a need here to show a significant disparate impact on hispanics and circuit authority in the ninth circuit is what is relevant for that we don't do it by inference gamble we don't do it by mere suggestion we do it with a real statistical proof and they've chosen the wrong statistical proof to make a comparison they're saying well but let's go to to the south is more expensive well we're not here to argue about an ordinance requiring poor people to buy a house and bledsoe to we're here to talk about a deprivation of a right to buy a dwelling in the subject property and that goes to the circuit authority daryn's bird and they've committed the same logical fallacy in their analysis that this court properly called out in daryn's bird if you look at barron's bird the same general logic chain is present there was a theoretical underfunding of bus service in relation to r service and this court held that it was not discriminatory even though as a general matter in the relevant metropolitan area more minorities rode buses that that didn't show a disparate impact you had to look at what in that case was quote the subject property in that case it was well which bus lines are we talking about and are those predominantly minority or disproportionately minority they have a they may be fifty question a little differently so i understand what you're sort of your honor what we're saying here is that the relevant neighborhood which is highly relevant to the point here is se yuma they pick that in their pleading that isn't us forcing them into a weird or arbitrary proof their idea is that the neighborhood is southeast yuma which they said originally was seventy five percent white on summary judgment they're saying maybe it's forty eight to sixty five percent white so that's the relevant neighborhood and we are saying there's lots and lots of our one six housing some of the exact same house type sunrise and that is in the same neighborhood for the purposes of the relevant analysis and this is so right there right there you're adopting the leaven circuit test right because there are other similar housing similar price thing available in the same so the humor area there i'm making two different arguments and i'd like to pull them apart please your honor because i think i may have conflated them on one hand i am saying that hallmark is right and that there is other housing available in their chosen neighborhood and for that reason they cannot prove an impact on minority groups i am saying completely separate from that that their chosen proof of impact is the opposite of disparate impact because of the fifty percent point we started our discussion with because yuma is thirty eight percent white i be earth eight sixty in their evidence and it's fifty five percent latin and it doesn't make anything about the overall population in the city of yuma yes yes your honor and the general population numbers are the ones that we are supposed to look to under the some believe this case in the second circuit which was adopted as the right measure in the ninth circuit case i quoted earlier i think daryn's berg and so when you look at the general population you're seeing that there's actually the opposite of what they're saying and very instructive judge on this point is please consider what they promised and what they delivered in paragraph forty seven of their complaint they said that they expected seventy seven percent latinos because they said basically we have a development that is what we call affordable housing which by the way is not what hud calls affordable housing it's much less dense and higher scale but anyway they have what they call affordable housing and based on that prior development it was seventy seven percent now we get to summary judgment where the rubber meets the road and we're finding out well the only predict fifty percent occupancy in a city that they're now saying is fifty five percent latin on their own terms on those facts you don't need a hallmark you don't have to like hallmark judge reinhardt you don't have to honor there are papers are to the contrary of that and in the reply brief in this court in page thirty two they are saying that the expected occupancy is fifty fifty and that is from the further excerpts of record ninety four desh ninety five that they put in the record and what the sixty five thirty your honor is referring to is their breakdown of the already existing separate neighborhood immediately to the south and that is a completely misplaced comparison that has no place in the circuits and often i that eight would be six would be fifty and then eight would be thirty five thirty well they do say in their reply brief that they're expecting that it would be roughly equally occupied by latinos and whites that is page thirty two and there are s saying i'm saying that the relevant analysis is of the subject parcel and the data i think you're talking about judge reinhart relate to the parcel to the south that was already built without more pricey homes with what they think it would be if it were so and if it was yes your honor they're saying if it was on for six that it would be fifty fifty fifty fifty and so that's the deprivation that we're talking about here whether that's actionable as a disparate impact when you relevant deprivation is not having a fifty fifty parcel there the relevant deprivation isn't forcing people to buy houses no one's making them buy across the way and there's al particular area here and make the move over to another brigade well your honor as to the beverly hills versus a neighborhood that is predominantly minority they are the masters of their legal theory and they as the masters of the theory decided that south east yuma in toto was beverly hills and there's lots of other housing in beverly hills using that idiom that's available they've pled it they've admitted it in their responses to s o f twenty three and twenty forty three or forty seven of the first amended complaint they say it's basically the same kind of affordable housing and so it's in the southeast yuma they admitted that they didn't have to admit that if they wanted to say the only relevant neighborhood was this little tiny place they c that but they didn't say that because it recurs to judge telling his question which is are you going to just drill down on one little area and say well this is the whole relevant neighborhood so you can never his own for expensive houses and that's where their argument takes them inexorably and it doesn't make any sense let me understand  let me make sure i understand that if if the panel were to accept your legal analysis your your saying that the panel would never have to guess whether to the issue of hallmark and there's already a split in the circuit regarding this but in the circuits regarding hallmark right it's i mean there's we would just be adding to it there is there is a case in the fifth circuit there are cases that talk about housing shortage that seems to be consistent with hallmark but you don't have to go there absolutely judge but is there i mean but isn't there already had an existing split i'm aware that there are cases saying that you need to have a housing shortage and that where there's all this other available i'm not quite sure of the contrary position how well represented that is right maybe on your i think that you may have some problems on now that disparate treatment was handled at the trial be stage correct it was because of the conclusory the complete lack of evidence of reseller geisha ins and the sort of nested hearsay nature of you know statements that people are making in the general public which aren't on their face racial and then the small they if you look at but they are they also wanted to amend the complaint and i think that they were denied that huma city council approved all of seventy five other rezoning requests since two thousand and five you know house that fact not strongly supportive of the plaintiffs contention that the city's denial was contrary to its regular zoning practices because this when it went approved all the way through and then we have the who were raw at the you know at the at the city council where people get and i if i were to make that the appellant's argument i think that they would be saying that that the concerns that people were voicing about parking and crime were really code words that that had to do with racial animus so why haven't they at least made a prime a face a case there and that they should be allowed to amend the complaint and then maybe at summary judgment maybe it's a different story but this is   x right it is twelve b six and my response to that is twofold and i'd start with the second amended complete point you raised first as callahan and then backwards to the allegations as to amending the complaint when they went ahead and put that in they gave a chart showing you know there are about seventy five other instances of zoning in that the general outcome is that requests are approved but what is left unsaid in that is that this is a very unusual situation because what you have is a situation where you had an area that was own dari it already and there were people who had already moved in and it was in the bill that's a part that was already developed and then you're saying oh well you moved in and you thought the neighborhood was like this and now after you moved in we're going to change it and those are the people who are complaining so you have a pretty unusual situation in that regard in fact the chart shows the very opposite of plausibility on these allegations because it's except i'm just wondering if not yeah i think that the builder i v a slate there was a financial collapse there were any number of reasons that they couldn't do that and that might be something that a trial would determine that there was an intentional discrimination but that being said  be six isn't there at least circumstantial evidence supporting each of the arlington heights factors for making upon the face case of intentional discrimination i don't think so judge callahan unless one takes the position which i think is a whipsaw  that if you deny one application that's invidious but if you denied fifteen of them you know the argument they'd be making that's invidious because look at this pattern of not letting people have are six you always lets people have the r six and that  people that commit crimes and you know all sorts of things that preyed on horrors went on and they said those things that people said those things and apparently the city council listened to its constituents and kind of got started thinking about re election maybe well it is a parade of horribles and i think that when you look at this the question is you know in what language are members of the public allowed to say i don't want half of my neighborhood rezoned to be less poor or more affluent one could on one hand say you know the things they're saying about poor people are not things you like to hear you can recognize that and embrace that proposition as i do and still say it's not invidious it's not racial are they allowed to say anything and the city council is allowed to listen to them and this is a weird situation this isn't a situation where the city is denying our six's ever and saying you know we're not going to let our six in southeast yuma this city let's our six all over the theoretical all white area of southeast majority white ok so that's not presented by their own allegations their allegations are we generally do allow this and i'm not aware of any public comment in favor of the down zoning here you're looking at the affected neighbors are coming in in a very narrow fact specific situation and the mayor said how about we compromise you keep most of your r six we'll just put a little r eight around the edge to placate those people who are complaining not only does that strongly suggest the opposite of invidious in this in their motives but then they said no we don't think that's appropriate and that's in their statement of facts on summary judgment so they declined to compromise which is why the mayor said no the mayor wanted to compromise and that's not what you do when you're invidiously trying to keep people out so i think that that one additional fact doesn't add add that much for them at all and i think when you look back at the five factors i mean we think about the pacific the pacific shores case and just look at all the messed up procedural stuff that was happening in that case there was a much let me ask you a question counsel's argument is that you chose the area of comparison half the city i guess it was southeast yum wider area down in the southeast and then after the filing of the complaint the two thousand and ten census came out and that is where it then said that those numbers had been reduced however where the  property sits was still a concentration of white population as the city itself and its in its planning documents what you're still i'm not understanding did you pick that area neighborhood was excluding was they were being excluded from this neighborhood that was the i mean that's the summary judgment and it was clear that the neighbors and the people working in neighborhood the neighborhood was this was the much larger and so i think it's i think it misconstrues our complaint to say that we had said this is the comparative wars and that and so what if it said if we said that in the complaint as the case developed this was what came out in between the filing of the complaint and the summary judgment has i mean i think it kind of both of the feather is in favor of us not you know trying to hide the ball or anything but i also want to say that  on the on the issue of in the intentional claim basically in this case you'd have to say the only thing that we were still required to show in order to  show raise the inference of intentional discrimination was an actual statement you know in the legislative record that the city was intending to discriminate and but we put a basically everything else that you could have in the us people don't see exactly of the facts that council was reciting about in support of why there was no discrimination come from the summary judgment record not from the the face of the complaint itself more question