race the plane the plane it points to races cold words used and one of the public hearings regarding the plane is on an application worries by residents by residential neighbors that a business in their neighborhood increase crime and decrease their property values are legitimate concerns which do not necessarily relate to race at all that sentence really captures the error in this decision the  judge gets at the core of the case about whether or not suggesting that that the plan is business would increase crime in the area or would decrease property values the question of whether or not those concerns have are based in some type of assumptions about african american people and the judge here say is that they don't necessarily but they might and that makes it a question of fact that that should have of what prevented summary judgment in this case this case is about kimberly mincey moved into a neighborhood that was predominantly white she's african american and she wanted to open operate a male shop out of her house that was called males back in me residence there's evidence in the record the residence harassed her some of her neighbors harassed her about her moving in there and about her or her open in that business and at a public hearing residents expressed that they didn't want it to happen and and one of the residents specifically referred to an case decided against rezoning her property for residential to a mixed use awning there were other properties in the neighborhood and around the city that had been rezoned to allow someone to operate a home business out of them she didn't they offensively say that is because there is a plan for that neighborhood to not decrease the residential units now she it would not it would not cause a net decreas measure miss her first and made it that part of her calculus was the comments by the neighbors that it would increase crime in the area and that makes it improper that makes the decision arbitrary the decision does not have to wholly based on race it just has to be part of the considerations why would a concern about crime be arbitrary it will there's no there's no reason that there's no reason to believe that ran the business out of her house would increase crime especially because there literally is a beauty salon operated in the same neighborhood so it's even a similar type of business and so there's there's just no reason to believe that trying to open a nail salon and that is it therefore you know as the judge noted maybe it's not race based but maybe it is and therefore it's a question of fact for a jury to decide that  especially in the context where she was harassed by neighbors specifically because of race and in fact she she she alleges that she had some some stress issues that she actually sought medical treatment for because of the se similar types of uses in her neighborhood there was again a beauty salon which is an extremely similar use now i believe that that the city argues that there may not be a temp relation in some of those that maybe some of them happen in a different time period then then then her requests happen however she she still would be similarly situated the time period is not so remote that that it it  destroys her situation also the city well i don't know of i don't know that it's in the record but but but the city does and as to your less judge moody said there wasn't any evidence to show that any of them had been rezoned in the same way that your client was trying to resolve and therefore they weren't for running the business i don't know this correct but there are certainly some some that were resolved from that were in neighborhoods single family settings that were zone to allow similar types of businesses so so i did you should prove that i mean did your list show that some of these other properties had been rezone from single family zoning to mixed use or business or whatever it is that you need for the her business i can't say one hundred percent what the initial zoning on all of those who are in i think that's part of the problem is you've got a if you want to show a compared or  you've got to identify for the court which one was similar yes so they are similar all right well they are similar because they are their houses that are in a residential neighborhood that were the n allowed to turn to to business uses so even if the initial zoning was somewhat different which i'm not sure that it would be with a b and a house in a residential area steal a sensually a house in a residential area was turned into a business that is a similar business a beauty salon which is i believe the exact same zoning needed for a nail salon and again there are some within within blocks there is a beauty salon along with other in her neighborhood in spain in particular there were white people who were rezoned i'm however across the city there were there were different races who were rezone however it depends on the neighborhood where race came in and this was really on the neighbor objections in this particular predominantly white neighborhood and so in the context of another neighborhood the neighbors may not have persuaded the city to do it so our argument is that the the neighbors persuaded the city to make that decision and part of the neighbor's persuasion was based in arbitrary opinions that were based on that were based on race because there was no other reason for the assumption or the reason that was  first and made it that that the neighbor's objections this particular neighbor's objections were part of her consideration it's all because of that it does transfer well but she didn't admit that she that the neighbors were acting based on race did she mean when they're saying the reason the neighbors complained you think was that the neighbors were acting based on race and the nature of the neighbor's complaint to assume that males amy would increase crime and decrease property values the content of the neighbor's objection that facility accepted was a racially based content and therefore the city adopted a racially base reason as part of their reasoning and according to the case law that's all it requires is that that race was part of the reason part of the consideration for it to be arbitrary that only works so if you buy the argument that those are code words right right right however it's argument that whether they're call words or not is not something for the just to the side and in his decision it even sound it even started i'm sure he said they're not necessarily code words but he doesn't say that they're necessarily not whole words and so if there is the possibility that those were based on race and that that was a way for someone to express their opinions about race without expressing it our right then that's that's something for a jury to decide whether that's the case and especially in the context where there were some other things that that were that were apparently race based the jury has to have the  opportunity to weigh those things together to determine whether or not those those words were actually a pretext to race and i'd like to say the rest of the time for rebuttal if you might on me thank you  argument mr carpenter will hear from you when you're ready may please the court i have to express admiration for mr sprinkle two arguments and one day before the same panel is something i have done it it's never fun problem with this case is that words are being given meaning to try to make that into a racial allegation you try to make that to be an improper motive for the passage of legislation and the problem in this cases is that there were eighty four undisputed facts provided to the district court and coordinates with the local rule only two of those were objected to by the plaintiff one was that this was not one of the races of base a basis of race and  of thirty one and thirty three in the city statement of undisputed facts as to the race spaces it was the codewords of lowered property values and crime and as we pointed out in our brief make that leap to that this is a racial classification but incidentally it's not just because it was going to be a business there that was a concern about crime as the district court stated in its order and there is nothing in the record from the plaintiffs disputes this the concern about crime is because the parking for this facility because a residential business house was being turned into a partial business was going to have to be and i secluded alley and so the concern about crime is that there's  secluded alley that the customers of miss meant she would have to go into in order to get their cars to leave her hours of operation particularly during the fall and winter months would make that during the evening and that is a possibility of crime i suggest to you that the concern of a member of the board of directors familiar with the crime problems in the location of crime problems within the city of little rock can can legitimately be concerned about this aspect of it the lower property values was that this was to be a commercial business place between two residential properties and the problem there is not only was that inconsistent with the comprehensive plan of the future development plan that had been developed by the city it was also inconsistent with a neighborhood action plan the debate developed by the hillcrest neighborhood and the hill chris neighborhood developed that plan because it isn't a stuart neighborhood and it's going to lose some of that status if it loses residential stock and one of the crime prime products of that plan was not to lose residential spock within that area so the question about the claim that there's a beauty salon down the street the claim is also if you look at page two through ten of the second volume of the appendix there is the affidavit of the planning director tony was in ski the points out that the types of businesses that they were complaining about have either been grandfathered in before a zoning decision had been made there or in terms of the ninety eight listings that he had before he went through there in great detail and pointed out why those were not similar in fact that they were not changes in that type of situation but i go back to the unique skill chris plan it's to take the historic neighborhood in your particular and your particular home towns efforts are made by cities throughout the country with the approval of the court to take special actions to try to keep those things in some sort of fashion that's what that neighborhood plan was so was it just that there was going to be a business it was going to be a business located between two residences and an area that wasn't zone for that and which the neighborhood had done special actions that had been accepted by the city although not binding upon the city to try to decrease and stop any loss of residential properties within that area more to the point all of these factors are put forth with the exhibits in the city's statement of undisputed facts and they were not challenge in any way by the plaintiff now summary judgment is a tool so that cases do not go to trial that there is no genuine issue of material fact and it's well set up that this is how could be done the local rule says give your statement of undisputed facts the other side has to come up with some of the challenges they said well the other  they said that crime was a basis for racial determination and yet crime isn't right crime affects all races and all peoples all ages and all sexes and those are the things that a concern about in a residential area are legitimate concerns the issue here really is did the plaintive do anything to challenge the motion for summary judgment and the statement of undisputed facts so that there is some place from the record that suggests this i heard for the first time about death threats i have never heard of that before i will admit that i was not the trial lawyer so i can't tell you what may have been happening at conversations with depositions but i will tell you the record and have anything about that what the record has in it is mis mincey making the statement that some of the neighbors didn't seem to try to engage her didn't seem to look at her and as the district judge said you know there's also a legitimate reason for that she's suing the area to put a commercial business within their residence and they don't agree with it they are in conflict so they're not going out of there why the moment the city put forth the evidence that there was no racial basis particularly under arkansas  incumbent upon the plaintiff to come forward with something else they did not do so as to the substantive due process argument this court's decisions have made it quite clear that those types of arguments are to be used very seldom and they have to be is totally arbitrary and totally capricious the city contends that if the reasons that may be given for the denial of his zoning matter are legitimate reasons is found by the state's highest court then they are not and the only way that fact can be shown is if the plane to produce some sort of evidence to show that that was really not even true in the first place but here's the real problem unfortunately the plane of purchased property used for commercial bases  residential due diligence wasn't done evidently the person that helped her to purchase his property didn't make that clear to her and then she got into something and she wanted to use it for a purpose it was not zoned to be used for when she tried to get decisions they don't need to make a federal court as own in court of appeals if there are no other questions of will yield back the balance my t very well thank you for your argument that the course of hill that they don't review zoning decisions if they are based on legitimate reasons however the court explicitly say is their race is not a legitimate reason and so it still comes back to whether or not race was a part of that decision and given the facts of this case whether race was a part of that decision is something for the jury to decide something for for whoever the trier of fact is to decide not is not appropriate other than your interpretation yes well the fact that there can be different interpretations is the reason that the allegation is that they are that that the decisions were based on race is the allegation and if the words can be interpreted different ways then that is why that's what trouser for is is to see what is the correct interpretation the fact that that there's no other reason to believe and even the the argument about the alley well if the neighborhood doesn't have crime then there's no reason to believe that because someone is in the alley that all of a sudden the neighbors are going to start committing crimes against them or is it the customers who are going to start committing crimes against the neighbors because they're in the alley there it's own the surface it sounds like maybe there's something there but how do you put something there how do you make the fact  that that that nails back him his customers are parking in the alley how do that how does that increase crime a neighborhood that does not have a lot of crime either the neighbors are attacking them or they're attacking the neighbors without some other reason to get there the way you get there is through speculation and what is a speculation based on it's mis missy's argument that speculation is based soley on her race and there's no other argument as to what it is based on right now therefore