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Click here for the full text of this decision FACTS:Plaintiff homeowners purchased homes in their Dallas neighborhood between 1970 and 1978. It was a predominately white neighborhood, according to the 1970 U.S. Census. By the 1980 Census, it was predominately black. During the early years of this decade of racial transition, there was open dumping of solid waste at the site, prompting visits to the site by city of Dallas and state officials. Their response was a call for continuing surveillance. Illegal dumping continued from 1985 to 1993, and during this time the city invested little effort into deterring illegal dumping. In 1987, the city sued Van Sickle, V.V. Construction, and another defendant, Samson Horrice, for operating an illegal solid waste facility on their property in the neighborhood. In December 1989, the city obtained a judgment against the defendants ordering them to cease dumping at the site and to submit and implement a plan to close the site. But nothing changed. The Bureau of Solid Waste Management of the Texas Department of Health inspected the site in April of 1991. The inspectors reported continued unauthorized dumping and no efforts to clean up the site as required by the 1989 judgment. According to the reports, the city was informed of the failure to clean up the site. In 1992, First State Bank acquired the site when Van Sickle defaulted on a loan, and two years later it sold the site to Herman Nethery. During the time that Nethery owned it, the site was operated by Herman Lee Gibbons. Gibbons was also a subcontractor on certain city contracts for demolition and hauling debris, and he dumped waste at the site. Other subcontractors on city demolition projects did the same. In April 1995, the city sued Nethery for operating an illegal solid waste facility. Despite a resulting temporary injunction ordering Nethery to cease all operations at the site, illegal dumping continued through the end of 1996. Asserting racial discrimination, plaintiffs sued the city under the Fair Housing Act and 42 U.S.C. ��1981 and 1983 for persistent failure to police the operation of an illegal dump near their homes. The district court granted summary judgment to the city on the Fair Housing Act claim and ruled for the city on the ��1981 and 1983 claims after a bench trial. Plaintiffs appealed. HOLDING:Affirmed. Plaintiffs allege that the city violated �3604(a) of the FHA when it failed to prevent dumping at the site. The court states that the issue here is whether the failures and omissions by the city violate the FHA by “otherwise mak[ing] unavailable or deny[ing]” a dwelling to any person because of race. Plaintiffs argue that the city violated �3604(a) because the dump makes it more difficult for them to sell their houses and lowers the value of their houses. While the court finds that plaintiffs’ claim has factual support, the court holds that it is not a claim of “ unavailability” or “den[ial]” of housing under a proper reading of the FHA. The failure of the city to police the neighborhood landfill may have harmed the housing market, decreased home values or adversely impacted homeowners’ “ intangible interests,” but the court holds that such results do not make dwellings unavailable within the meaning of the act. Because housing was not made unavailable to plaintiffs, the court determines that the district court’s rejection of their �3604(a) claim was proper. Plaintiffs also allege that the city violated �3604(b) of the FHA when it failed to prevent dumping at the site. Section 3604(b) makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” Plaintiffs contend that the city discriminated against them in the provision of a service � the enforcement of zoning laws � and they attack the district court’s conclusion that �3604(b) “applies only to discrimination in the provision of services that precludes the sale or rental of housing.” Even assuming that the enforcement of zoning laws alleged here is a service, the court holds that �3604(b) is inapplicable here because the service was not connected to the sale or rental of a dwelling as the statute requires. The court states that plaintiffs’ claims do not assert the requisite connection between the alleged discrimination and the sale or rental of a dwelling � that is, �3604(b) does not aid plaintiffs, whose complaint is that the value or habitability of their houses has decreased. Finally, plaintiffs also appeal the district court’s judgment in favor of the city on the �1981 and �1983 claims. The district court concluded that there was no proof of official action and, in the alternative, that there was no proof of discriminatory intent. The court points out that municipal liability under both �1981 and �1983 requires proof of three elements in addition to the underlying claim of a violation of rights: “a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.” The court also notes that the policymaker must have either actual or constructive knowledge of the alleged policy. However, the district court found that even if there existed such a policy, the policymakers had no actual or constructive knowledge of it. The district court was swayed by statements made at a 1997 city council meeting, finding that they “belie any prior knowledge of illegal dumping of city demolition debris” in plaintiffs’ neighborhood. The court found that the district court’s conclusion that “[t]here is no evidence that either policymaker [the city council or the Board of Adjustment] had actual or constructive knowledge of this practice [dumping city debris] at the time it occurred” was not, on the record, clearly erroneous. The court therefore affirmed the district court’s judgment. OPINION:Higginbotham, J.; Higginbotham, Jones and DeMoss, JJ.

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