Posted by: Patricia Salkin | May 17, 2015

TN Appeals Court Reverses Finding of Open Meetings Act Violation and Allows FHA Claim to Proceed

This appeal arose from the trial court’s grant of summary judgment to Appellees on their Open Meetings Act claim, and the grant of partial summary judgment to Appellees on their Fair Housing Act claims, i.e., disparate treatment and disparate impact. There were two separate groups of Appellees in this case: Flat Iron Partners, LP, a Tennessee limited partnership; and Cottonwood Properties, Inc., Flat Iron and Cottonwood each bought tracts of land for the purposes of building multi-family housing. Flat Iron presented a “conceptual plan” to the City of Covington Municipal–Regional Planning Commission, in which Flat Iron represented that its proposed development would not be Section 8 housing, but would be a gated community, targeting individuals making between $30,000 and $40,000 per year. Following two meetings on November 28th and 29th, the BMA adopted an Ordinance amending the Zoning Ordinance to impose the temporary moratorium upon the issuance of building permits. Following this, several problems were found with the initial site plan that were not remedied by the time the application for a building permit was made. As such, the permit was denied.

Tennessee’s Open Meetings Act provides that “all meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee.” Tenn.Code Ann. § 8–44–102(a) (2002). In their motion for summary judgment, Appellees argued that the Appellants violated the foregoing statutory provisions by holding a private meeting of the BMA on November 27, 2000. Appellants countered with sworn deposition testimony of Mr. Keith Phelps, the Board of Alderman on November 27, 2000, which said there was no discussion of how the members would vote in that meeting. Since Mr. Phelps stated that the purpose of the meeting was to introduce the proposed moratorium, and to make relevant information available, there was no “meeting” under the Open Meetings Act. Therefore, the court found no violation and reversed the trial court’s grant of summary judgment in favor of Appellees on this issue.

As to the disparate treatment claim, in order to establish a disparate treatment claim under the FHA, Appellees needed to prove that a discriminatory purpose was a motivating factor in the Appellants’ actions. Appellees claimed that the undisputed facts showed that the Appellants, acting through the BMA, passed an illegal and void amendment to the City’s general ordinance for the specific purpose of, first, stopping Appellees from building high-density, MFUH developments in Covington. Appellants provided ample evidence to rebut the presumption of discriminatory treatment by providing legitimate, non-discriminatory reasons for their actions. Accordingly, the trial court erred in dismissing this claim at the summary judgment stage.

Flat Iron Partners, LP v City of Covington, 2015 WL 1952290 (TN App. 4/30/2015)

The opinion can be accessed at:

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