                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                                 FILED
                               ________________________               U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            October 12, 2006
                                     No. 05-15633                        THOMAS K. KAHN
                               ________________________                         CLERK

                         D. C. Docket No. 02–01862-CV-ODE-1

HALLMARK DEVELOPERS, INC.,
CHARLES GARRISON,

                                                            Plaintiffs-Appellants,

                                             versus

FULTON COUNTY, GEORGIA,

                                                            Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                     (October 12, 2006)

Before EDMONDSON, BIRCH and ALARCÓN,* Circuit Judges.

ALARCÓN, Circuit Judge:

       *
        Honorable Arthur L. Alarcün, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
                                          I

      Appellants Hallmark Developers, Inc. and Charles Garrison (collectively,

“Hallmark”) appeal from (1) the summary judgment in favor of Appellee Fulton

County, Georgia (“the County”) on their intentional discrimination claim based on

the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”); and (2) the judgment

entered following a bench trial on the merits on their discriminatory impact claim

based on the FHA.

      The District Court concluded that Hallmark had failed to adduce evidence

that the County had intentionally discriminated on the basis of race when it

refused to re-zone a parcel of property in order for Hallmark to build, inter alia,

homes affordable to households with low and moderate incomes. The District

Court also concluded that Hallmark failed to demonstrate that the re-zoning

decision had a significant disparate impact on minorities. Hallmark argues that (1)

the District Court failed to consider relevant evidence of discriminatory intent; (2)

was clearly in error in its finding regarding disparate impact; and (3) considered

expert testimony that should have been excluded under Rule 702 of the Federal

Rules of Evidence.




                                          2
                                             II

       For many years, Chris Doughtie, president of Hallmark, received literature

and invitations to attend business functions in South Fulton County, Georgia.

This literature identified South Fulton County as a “development target and

advised developers of the incentives to encourage development in the corridor.”

       Accordingly, Hallmark and Appellant Charles Garrison acquired property in

South Fulton County (“the Property”) with the express intention of developing it

for a mixture of uses, including commercial, office, and residential. Specifically,

they hoped to construct a large development consisting of apartments, townhomes

single-family homes, and office space. The townhomes and single-family homes

would be built under the control of Hallmark. The apartments would be built by a

contractor subject to conditions imposed by Hallmark. Hallmark intended that a

large percentage of the homes would be “affordable,” as defined by the

Department of Housing and Urban Development (“HUD”).1 The Property would

have to be re-zoned from AG-1 (agricultural) to MIX (mixed use) in order for this

development to take place.

       In early 2001, Mr. Doughtie arranged for a visit to Chestnut Lake, a low-


       1
        Under HUD definitions, housing is “affordable” if a person making 80% of the annual
median income for a given geographical area pays 30% or less of gross monthly income for
mortgage and utilities or rent and utilities. See 24 C.F.R. §§ 92.2, 92.252, 92.254.

                                              3
income, single-family subdivision that Hallmark had developed in DeKalb

County, Georgia. Among others, he invited Fulton County Commissioner William

Edwards, Fulton County Assistant Director of Comprehensive Planning Beth

McMillan, and Fulton County Economic Development Director Joseph Johnson.

The purpose of the visit was to acquaint these county officials with the sort of

development Hallmark intended to make on the Property.

       Chestnut Lake contains 700 lots. The homes initially were priced in the

range of $89,000 to $130,000, but after changes were made, the price range was

from approximately $120,000 to $150,000. The homes were built by Mayfield

Homes, which is owned in part by Mr. Doughtie and his son. Mr. Doughtie told

the county officials that Mayfield Homes would build the single-family homes on

the Property as well, and that the homes on the Property would be similar in

appearance and layout to those at Chestnut Lake.

       During this visit, none of the county officials expressed any concern

regarding the quality of the Chestnut Lake development.2 Commissioner Edwards,

however, cautioned Mr. Doughtie to involve South Fulton community associations


       2
        In its order on summary judgment, the District Court stated that it was undisputed that no
concerns regarding quality were expressed. At trial, Commissioner Edwards testified that he had
concerns over the quality of the homes. He felt, among other things, that they were “very
generic,” had very small rooms, and “just looked like row houses.” It is not clear whether he
expressed these concerns to Mr. Doughtie.

                                                4
in the re-zoning process to “get the community happy.” Among the community

groups Commissioner Edwards listed were the South Fulton Parkway Alliance, the

Cliffondale Community Association, and Green South Fulton (“the community

groups”).

      On October 30, 2001, Hallmark filed an application with the Fulton County

Department of Environment and Community Development seeking to re-zone the

Property. Kathryn Zickert appeared before the Board of Commissioners (“the

Board”) on behalf of Hallmark at a public hearing on February 6, 2002. The

Board granted a 60-day deferral to allow Hallmark to engage in discussions with

the community groups regarding the proposed development.

      On April 3, 2002, Ms. Zickert appeared before the Board on behalf of

Hallmark a second time. After the public hearing, Commissioner Edwards (who is

commissioner of the district where the Property is located) moved to deny

Hallmark’s re-zoning application “based on the quality of what [he’d] seen and

things [he’d] heard.” Chairman Mike Kenn supported Commissioner Edwards’s

motion. He stated that the development was “probably one of the poorest-

designed, laid out subdivisions [he’d] ever seen.” Another commissioner made a

substitute motion for an additional 60-day deferral, and the Board granted the

deferral so that Hallmark could continue to discuss unresolved issues with the

                                         5
community groups.

      On June 5, 2002, Ms. Zickert appeared before the Board on behalf of

Hallmark a third and final time. Commissioner Edwards moved to deny the

application due to the lack of improvement “in terms of the quality of the site plan

and the site plan design.” Hallmark’s re-zoning application was denied.

      While Hallmark’s application for re-zoning was pending, Mr. Doughtie, his

colleagues, and his attorneys met with the community groups as suggested by

Commissioner Edwards. During the meetings, community group members

expressed opposition to the proposed development on the Property. Three

community leaders, Abby Jordan, Dave Robinson, and Larry Hyde stated that they

opposed the proposed development because it was likely to attract “blacks” and

families with children to the area. Another community activist, Bruce Moody,

stated that he did not want poor black people moving into low-rent, lower priced

homes in South Fulton County.

      On January 26, 2001, at a meeting with a community group, Hallmark’s

counsel heard Commissioner Edwards say to Ms. Jordan, “I know a lot of your

objections to projects like [Hallmark’s] proposed development, is a black issue.”

The community groups also objected to the quality of the proposed homes, “made

demands which drove up the prices of homes,” and “did not want apartments in

                                         6
anything but luxury form.” Hallmark agreed to many of the changes in the quality

of the development that the community groups suggested.

       Hallmark did not produce evidence that any racist remarks were made at the

hearings in front of the Board. Although Hallmark contends that “subtle remarks

were made by no fewer than three activists” to the Board at the second hearing on

April 3, 2002, Hallmark does not state exactly what the remarks were.3 The

County points out that one member of the community stated:

              What I’m saying is that we have no choices that are over
              [$150,000, with reference to the price of the homes].
              And what I’m trying to get at is if we just keep building
              houses that are all under 150, we will never raise the bar
              in South Fulton. We will never bring in the kind of
              development that I thought this Commission envisioned.

The same community member later referred to the “apartment challenge” and “the

transient part of that.” Commissioner Emma Darnell responded:

              That’s a bad argument to bring to me. Let the approach
              have something to do with some objective measurement
              of the quality of life. Talk to me about environment.
              Talk to me about traffic. Let’s not bring our personal
              aesthetic prejudices and biases to the table . . . this
              County Commission is not going to close its doors to
              ordinary working people who also want to live and have
              nice houses.



       3
       The gist of the statements appears to be that the community members wanted the
development to be more upscale.

                                             7
Commissioner Nancy Boxill stated: “I don’t want to participate in a zoning

process that starts to say what kind of person gets to live where.” Commissioner

Edwards stated:

             Let me just add, too, because I want to thank both my
             colleagues for bringing out a very good point and a
             sensitive point because you understand my motion [to
             deny the re-zoning application] has nothing to do with
             price. . . But we do talk about price and a lot of times I
             think we should change that to quality and other things.
             And that was the basis of my denial.

Another community member said something about keeping South Fulton Parkway

“pristine.” Commissioner Boxill stated that the community members were

describing a “redlining” practice.

      The County’s Planning Staff, Community Zoning Board, the Atlanta

Regional Commission, and the Georgia Regional Transportation Authority

reviewed and repeatedly recommended approval for Hallmark’s zoning

application. Nevertheless, Commissioner Edwards voted to deny the re-zoning.

He was apparently influenced by the opposition of the community groups in this

decision. He stated in his deposition that ninety percent of the zonings that

happen in South Fulton County are “done real simple between the community and

the developer.” Zoning applications opposed by such community groups are

usually not approved. Actual voting records confirm that in eighty-nine of ninety-

                                          8
five instances, Commissioner Edwards’s vote reflected the community’s position.

Typically, other commissioners show “district courtesy” to each other. If a

proposed project is located within one commissioner’s district, the other

commissioners defer to that commissioner’s wishes.

      Following the denial of its application, Hallmark filed a complaint under the

FHA, contending that the County discriminated on the basis of race in denying its

application. Hallmark alleged that in giving effect to the racist views of the

community groups, the County acted with intent to discriminate. It also alleged

that the denial of the re-zoning worked a disparate impact on African-Americans,

who were more likely to be the purchasers of the homes and renters of the

apartments and townhomes on the Property. The District Court granted summary

judgment in favor of the County with regard to the intentional discrimination

claim. It concluded that there was no evidence that the County was aware of the

racist views of the community members. It denied the motion for summary

judgment with regard to the disparate impact claim.

      At trial, Hallmark produced an expert witness, Dr. Bradford, who testified

that the re-zoning decision had a disparate impact on minorities. Specifically, he

testified that “the elimination of either for sale or rental housing in the lower cost

ranges of the proposal for the Hallmark development would disproportionately and

                                           9
adversely affect minority households as compared to white households.” He

calculated disparity ratios4 based on an assumption that persons who owned homes

or rented apartments in certain “value ranges” in particular geographical areas

were representative of those who would have purchased or rented homes on the

Property. Using data from the 2000 United States Census, Dr. Bradford examined

the race of each homeowner or renter, the individual’s estimate of the value of his

or her home or the amount of rent, and the address of the residence. He examined

this data in five geographical areas, of increasing size, that surround the Property:

(1) the area within a 10-mile radius of the Property; (2) the area within a 20-mile

radius of the Property; (3) the area within a 30-mile radius of the Property; (4) the

30-mile radius from central Atlanta; and (5) the 20 counties surrounding Atlanta.

He opined that the 30-mile radius from central Atlanta and the 20-county area

would be the most reliable indicator of the race of the likely owners or renters on

the Property.

       Based on the disparity ratios he calculated, Dr. Bradford concluded that

there would be a statistically significant disparate racial impact arising from the


       4
         A “disparity ratio” is arrived at by dividing the percentage of all minority households
living in a certain value or rent range by the percentage of all white households living in that
same value or rent range. The underlying percentages are arrived at by dividing, for each racial
group, the total number of households within one value or rent range by the total number of
households within all values or rent ranges.

                                               10
denial of the re-zoning due to the elimination of homes priced below $125,000 and

rental housing costing less than $750 per month.

      The County produced an expert who testified that there is an oversupply of

housing within the price ranges Dr. Bradford testified were relevant to the

disparate impact on minorities. Dr. Camilla Johnson Moore, Director of the

Fulton County Office of Housing testified that at the time Hallmark’s re-zoning

application was denied, there was adequate housing for low and moderate income

residents. She testified there was an “oversaturation.” The District Court credited

this testimony. It concluded because other housing was available within the price

ranges that would allegedly produce the disparate impact, there was no appreciable

impact on minorities caused by the lack of the particular development Hallmark

wished to construct.

      The District Court also concluded that the impact to which Dr. Bradford

testified was not significant. In terms of pure percentages (as opposed to disparity

ratios), black home purchasers and renters occupied only a slightly larger

percentage of the market than Caucasians in the relevant price ranges.

      Finally, the District Court concluded that Dr. Bradford’s testimony was

inherently speculative. His calculations related to an estimated, hypothetical




                                         11
group of individuals.5 Additionally, the District Court found that there was no

guarantee that any of the homes or apartments, if built, would be priced as

Hallmark intended. In the Chestnut Lake development, the homes sold for a

higher price than originally intended. The apartments were not to be built by

Hallmark, but by a contractor. Because Dr. Bradford’s opinion regarding

disparate impact was based on a specific price range, any potential changes in the

prices at which the homes actually sold or the apartments actually rented would

affect the validity of Dr. Bradford’s opinion.

       Having concluded that Dr. Bradford’s testimony failed to establish a prima

facie case of disparate impact, the District Court entered judgment in favor of the

County. Hallmark has timely appealed.

                                              III

                                               A

       Hallmark argues that the District Court erred in entering summary judgment

on its claim of intentional discrimination. The District Court’s entry of summary

judgment is reviewed de novo. Summary judgment is appropriate only if there is

no genuine issue of material fact and the moving party is entitled to judgment as a


       5
          He hypothesized and estimated this group on the assumption that those who currently
live in a given home value or rent range would be likely to purchase a home or rent an apartment
in the same price range on the Property.

                                               12
matter of law. Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278 (11th Cir. 2006).

      The FHA prohibits the “refus[al] to sell or rent . . . or otherwise make

unavailable or deny, a dwelling to any person because of race, color, religion, sex,

or national origin.” 42 U.S.C. § 3604(a). In order to prevail on a claim under the

FHA, a plaintiff must demonstrate “unequal treatment on the basis of race that

affects the availability of housing.” Jackson v. Okaloosa County Fla., 21 F.3d

1531, 1542 (11th Cir. 1994). Housing may become unavailable within the

meaning of the FHA as a result of zoning decisions that effectively prohibit the

construction of housing. Id. at 1542 n.17.

      To prove that a zoning decision was based on intentional discrimination, a

plaintiff must “establish that race played some role” in the decision. Sofarelli v.

Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991).

             Because explicit statements of racially discriminatory
             motivation are decreasing, circumstantial evidence must
             often be used to establish the requisite intent. Among
             the factors that are instructive in determining whether
             racially discriminatory intent is present are:
             discriminatory or segregative effect, historical
             background, the sequence of events leading up to the
             challenged actions, and whether there were any
             departures from normal or substantive criteria.

United States v. Hous. Authority of the City of Chickasaw, 504 F. Supp. 716, 727

(S.D. Ala. 1980) (citing Vill. of Arlington Heights v. Metropolitan Hous. Dev.

                                         13
Corp., 429 U.S. 252 (1977)); see also United States v. City of Birmingham, Mich.,

727 F.2d 560, 566 (6th Cir. 1984) (articulating same test). For the sake of

discussion, we also accept that a plaintiff may demonstrate intentional

discrimination if the “decision-making body acted for the sole purpose of

effectuating the desires of private citizens, that racial considerations were a

motivating factor behind those desires, and that members of the decision-making

body were aware of the motivations of the private citizens.” United States v.

Yonkers, 837 F.2d 1181, 1225 (2d Cir. 1987); see also United States v. City of

Black Jack, Missouri, 508 F.2d 1179, 1185 n.3 (8th Cir. 1975); Jackson v. City of

Auburn, 41 F. Supp. 2d 1300, 1311 (M.D. Ala 1999) (“If . . . a zoning board’s

response to political pressure amounts to implementation of local residents’

discriminatory impulses, then the board’s actions may give rise to a cause of

action for intentional discrimination.”). Hallmark contends that the County

implemented the racist attitudes of community groups in its re-zoning decision. It

also argues that by applying the multi-factor test enunciated in City of Chickasaw,

we can infer that the County intentionally discriminated against African-

Americans in its re-zoning decision.

      Hallmark produced evidence that the County acted for the sole purpose of

effectuating the desires of the community groups and that Commissioner Edwards

                                          14
felt pressured by the groups. He encouraged Hallmark to meet with the groups,

and he met with the groups. Commissioner Edwards testified that he typically

votes in a manner consistent with the desires of the community groups. Hallmark

also demonstrated that some members of the community groups were motivated by

racial considerations. Hallmark’s evidence showed that during its own meetings

with the community groups, racist remarks were made.

      However, Hallmark failed to establish that “members of the decision-

making body were aware of the motivations of the private citizens.” Yonkers, 837

F.3d at 1225. Although Hallmark contends that Commissioner Edwards told a

community leader, “I know a lot of your objection to projects [like Hallmark’s]

proposed development, is a black issue,” this is not sufficient to raise a triable

issue of fact. This statement does not demonstrate that (1) the other members of

the Board were aware of the racist attitudes of the community leaders; (2) that

Commissioner Edwards was aware that any other community leaders had racist

motivations; or (3) that despite the racist motivations of certain community

leaders, the Board was not justified in denying the re-zoning based on the quality

of the proposed development. See Jim Sowell Constr. Co., Inc. v. City of Coppell,

Tex., 61 F. Supp. 2d 542, 552 (N.D. Tex. 1999) (“The . . . evidence indicates that

many other citizens voiced their opposition to multifamily housing based on race-

                                          15
neutral reasons, such as the adverse impact that dense housing facilities have on

public, services, traffic, and child safety. The evidence, viewed in the aggregate,

would permit a reasonable trier of fact to find only that the allegedly-biased

statements composed but a small fraction of the opinions presented to the

decisionmaking bodies.”).

      Next, Hallmark points to statements made at the hearings that it

characterizes as “subtle” statements of bias. The statements to which it refers are

objections to the proposed price of the housing. They do not demonstrate racial

animus. They demonstrate class animus. Wealth is not a proxy for race. See

James v. Valtierra, 402 U.S. 137, 140-42 (1971); Boyd v. Lefrak Org., 509 F.2d

1110, 1112-13 (2d Cir. 1975). These statements are not sufficient to overcome

summary judgment. Macone v. Town of Wakefield, 277 F.3d 1, 7 (1st Cir. 2002)

(“While ambiguous remarks may, under some circumstances, help to illuminate

the summary judgment record, such remarks rarely will suffice to conceive an

issue of material fact when none otherwise exists.” ) (quoting Nat’l Amusements,

Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st Cir. 1995)); cf. Metropolitan

Hous. Dev. Corp., 558 F.2d 1283, 1292 (7th Cir. 1977) (“The bigoted comments

of a few citizens, even those with power, should not invalidate action which in fact

has a legitimate basis.”).

                                         16
      Finally, in a footnote in its reply brief, Hallmark states that the County’s

Director of the Office of Housing, Dr. Moore, testified at trial that because the

area in which the Property is located is already predominately populated by

minorities, the re-zoning could have perpetuated segregation and result in

“ghettotization.” Hallmark characterizes this testimony as racist. Racist or not,

Dr. Moore was not a decision-maker with regard to Hallmark’s re-zoning

application. Her testimony does not establish that any Board member intentionally

discriminated against African-Americans in voting against zoning.

      Applying the multi-factor test articulated in City of Chickasaw, Hallmark

contends that it has produced sufficient circumstantial evidence of discriminatory

intent. The first factor is whether there is evidence of discriminatory impact. City

of Chickasaw, 504 F. Supp. at 727. The testimony of Dr. Bradford, although not

sufficient on this point to render the District Court’s judgment clearly erroneous

(as will be discussed below), does establish discriminatory impact. See Jim

Sowell, 61 F. Supp. 2d at 547 n.1 (standard is lower for discriminatory impact

when part of the discriminatory intent inquiry).

      Next, with regard to the “historical background” of the zoning decision,

Hallmark argues that the Board ratified the community groups’ discriminatory

motives. However, there is no evidence that the Board in fact ratified the

                                         17
discriminatory motives of any community group.

      With regard to the third factor, the sequence of events leading up to the

denial of the re-zoning, Hallmark points out that it was required to meet with

community groups repeatedly and that those groups expressed racial animus.

However, this sequence of events is only relevant if it demonstrates that the Board

ratified the racial biases of those groups.

      Next, Hallmark produced evidence that the Board departed from customary

procedures in ignoring the recommendations of approval from its staff and

planning bodies and in holding three hearings. Such “procedural abnormalities are

only relevant within a larger scope.” Macone, 277 F.3d at 6. Here, there is no

context that renders this deviation suspect. The procedural departures are

explainable as a response to community concern. There is nothing inherently

wrong with responding to community pressure. Here, with no racial animus

expressed to the Board, bowing to political pressure does not demonstrate racial

animus.

      Hallmark also maintains that the Board departed from substantive standards

in denying its application. Hallmark produced evidence that the proposed

development was consistent with the uses proscribed in the County’s Land Use

Plan. However, there is no evidence that the Board denied the proposed

                                          18
development because it had concluded it was inconsistent with the County’s Land

Use Plan. Rather, the Board voted against re-zoning because Hallmark’s proposed

development was unpopular with voters and was poorly designed.

      Hallmark has failed to demonstrate through direct or circumstantial

evidence that the Board intentionally discriminated on the basis of race in denying

the re-zoning application.

                                         B

      Hallmark also argues that the District Court erred in entering judgment in

favor of the County on its discriminatory impact claim. We may not set aside the

District Court’s findings of fact unless they are clearly erroneous. Holton v. City

of Thomasville Sch. Dist., 425 F.3d 1325, 1350-51 (11th Cir. 2005). Clear error is

a highly deferential standard of review. Id.

      “[A] showing of significant discriminatory effect suffices to demonstrate a

[prima facie] violation of the Fair Housing Act.” Jackson, 21 F.3d at 1543. A

plaintiff can demonstrate a discriminatory effect in two ways: it can demonstrate

that the decision has a segregative effect or that “it makes housing options

significantly more restrictive for members of a protected group than for persons

outside that group.” Hous. Investors, Inc. v. City of Clanton, Ala., 68 F. Supp. 2d

1287, 1298 (M.D. Ala. 1999). In this case, Hallmark advances only the second

                                         19
theory–that the re-zoning decision of the County had a harsher impact on

minorities than Caucasians.

      Typically, a disparate impact is demonstrated by statistics. See, e.g.,

Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 938 (2d Cir.

1988); City of Black Jack, 508 F.2d at 1186. Although no “single test controls in

measuring disparate impact,” Langlois v. Abington Hous. Auth., 207 F.3d 43, 50

(1st Cir. 2000) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995-96

n.3 (1988)), certain guidelines have developed. First, it may be inappropriate to

rely on “absolute numbers rather than on proportional statistics.” Huntington, 844

F.2d at 938. Second, “statistics based on the general population [should] bear a

proven relationship to the actual applicant flow.” Id. at 938 n.11. Third, the

appropriate inquiry is into the impact on the total group to which a policy or

decision applies. Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir.

1984).

             Whether the measure of disparate impact used is
             disproportional representation, in which the percentage
             of minority representation in the affected group is
             compared against that minority’s representation in the
             general population, or disproportionate adverse impact,
             in which the minority group’s percentage representation
             in the affected group is compared against the majority
             group’s representation in the affected group, the starting




                                         20
             point is always the subset of the population that is
             affected by the disputed decision.

City of Clanton, 68 F. Supp. at 1299.

      In this case, Dr. Bradford appropriately measured the proportional impact

on each race and performed his analysis with regard to the group “affected by the

disputed decision.” The difficulty, however, is that the group “affected by the

disputed decision” is inherently speculative. Whether a person who currently

owns a home or rents an apartment within the price ranges proposed by Hallmark

for its development would purchase or rent one of Hallmark’s homes is

speculative. This renders Dr. Bradford’s estimation of the impact on minorities

suspect. There is no evidence that the statistics based on this general population

of home owners and renters bears “a proven relationship to the actual applicant

flow.” See Huntington, 844 F.2d at 938 n.11; see also Macone, 277 F.3d at 8

(“Here, there is no information that any minorities would actually move into the

Hillview Estates Project.”).

      In this respect, this case is distinguishable from the majority of cases in

which disparate impact was found. In those cases, invariably there was a waiting

list for affordable housing or a shortage of housing for which only a defined group

qualified. See, e.g., Langois, 207 F.3d at 47-48 (considering those who qualify for

federally subsidized housing); Jackson, 21 F.3d at 1543 (majority of individuals

                                         21
on wait-list for housing were minority); Huntington, 844 F.2d at 929 (considering

impact of housing shortage on those who qualify for federally subsidized

housing); Betsey, 736 F.2d at 987 (particular individuals evicted from homes);

Metropolitan Hous. Dev., 558 F.2d at 1288 (considering housing intended for

those who qualify for federal subsidies); City of Black Jack, 508 F.2d at 1186

(with regard to housing intended for those within a certain income range, there

“was ample proof that many blacks would live in the development”); Ass’n of

Relatives and Friends of AIDS Patients v. Regulations and Permits Admin., 740 F.

Supp. 95, 98 (D. P.R. 1990) (impact is on group of individuals with AIDS who

were intended to live in group home); Malone v. City of Fenton, Missouri, 592 F.

Supp. 1135, 1162 (E.D. Mo. 1984) (considering only those who qualify for

federally subsidized housing). The inherent difficulty in defining the group

affected by the re-zoning decision supports the District Court’s decision that Dr.

Bradford’s results are “inherently speculative.”

      Another difficulty with Dr. Bradford’s testimony identified by the District

Court is the existence of other housing within the price range proposed by

Hallmark. Hallmark contends that the District Court’s conclusion on this issue

was clearly erroneous for two reasons: (1) it was based on the testimony of Mr.

Gary Hammond, who Hallmark contends was not qualified as an expert; and (2)



                                         22
because the existence of other available housing is irrelevant.

      First, the District Court’s conclusion with regard to the availability of other

housing was not based solely on the testimony of Mr. Hammond. Dr. Moore also

testified that there was adequate housing for low and moderate income residents.

The District Court did not clearly err in crediting this testimony.

      Second, the availability of other housing within the relevant price ranges is

relevant to the accuracy of Dr. Bradford’s statistics. If there is a glut in the market

of homes in Hallmark’s projected price range, the lack of the Hallmark’s particular

development is not likely to have an impact on anyone, let alone adversely affect

one group disproportionately. As explained above, adverse impact is consistently

found when there is a housing shortage. See, e.g., Metropolitan Hous. Dev., 558

F.2d at 1288 (noting that decision not to re-zone land for public housing precluded

public housing in that area unless other land were zoned). It stands to reason that

the impact of a failure to build particular housing may be measured more

accurately when no other housing is available.

      Hallmark argues that the District Court erred in considering whether

housing was available at the time the Board denied its re-zoning application

because the area in which the Property is located is expected to grow population-

wise over the next ten to fifteen years. Hallmark contends that housing



                                          23
opportunities for minorities will be denied in the future if affordable housing is not

built. Hallmark cites no authority for the proposition that this Court should

consider whether there will be an impact in the future on minorities, as opposed to

whether there was an impact at the time of the zoning decision. Additionally,

Hallmark’s argument is speculative. It cannot be determined what type of housing

will be built in the future or what the price of that housing will be.

      Hallmark asserts that “blocking these units from being built . . . denies these

minority households the opportunity and advantage of increased housing choices

and supply.” It contends that by looking at the existence of other housing when

this particular housing was denied is like saying that even if one lunch counter is

“whites only,” there is no harm if other lunch counters are available. However,

             there is no federally protected right to housing in a
             particular community, an allegation which lies at the
             essence of plaintiff’s action. . . . Plaintiffs are not
             prevented from obtaining all housing in the [South
             Fulton] community as a result of [the decision not to re-
             zone].

Schmidt v. Boston Hous. Auth., 505 F. Supp. 988, 995-96 (D. Mass. 1981)

(emphasis added). Nor does Hallmark cite any authority for the proposition that

an individual has a right to “increased housing choices and supply.” Where such a

right would end, Hallmark does not explain. Recognizing a right to “increased

housing choices and supply” would effectively place an affirmative duty on

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governing bodies to approve all re-zoning applications wherein a developer sought

to build housing within a particular price range. Furthermore, Hallmark’s lunch

counter analogy is flawed. Here, there is no evidence that South Fulton is

currently segregated and that Hallmark’s development would end that segregation.

Therefore, there is no “segregated lunch counter” that the County is refusing to

remedy. The District Court did not clearly err in finding that other affordable

housing is available. This finding cuts against the accuracy of Dr. Bradford’s

opinion.

      The District Court also rejected Dr. Bradford’s testimony on the grounds

that Hallmark’s projected price ranges may not be the price at which the homes

actually sell and the apartments actually rent. Hallmark argues correctly that the

District Court’s finding on this issue was partly speculative. Hallmark failed to

meet its burden of demonstrating that the houses would actually sell and the

apartments and townhomes would actually rent for the prices projected.

      The District Court did not clearly err in refusing to credit the testimony of

Dr. Bradford. We need not reach the issue of whether the District Court clearly

erred in concluding that Dr. Bradford’s testimony failed to establish that the

disparity ratios were statistically significant.




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                                         C

      Hallmark challenges the District Court’s decision to admit the testimony of

Mr. Hammond. A decision to admit or exclude an expert’s testimony is reviewed

for abuse of discretion. Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305-06 (11th

Cir. 1999). Hallmark argues that the District Court erred in failing to hold a

Daubert hearing regarding Mr. Hammond’s testimony and that Mr. Hammond’s

testimony was based on flawed methodology. We do not reach this issue because

the District Court’s judgment does not depend on the admissibility of Mr.

Hammond’s testimony.

      AFFIRMED.




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