Posted by: Patricia Salkin | March 24, 2012

Fed. Dist. Court in NY Dismisses Village’s Motion for Summary Judgment on Zoning Discrimination Claims

Several plaintiffs commenced a lawsuit against the County of Nassau, the Village of Garden City, and the Garden City trustees, alleging the defendants re-zoned two parcels of land owned by Nassau County to prevent the building of middle income housing.  In addition, the plaintiffs also allege this act was part the defendants’ long standing racially discriminatory policy.  Plaintiffs assert claims under the Fair Housing Act and 42 U.S.C. §§ 3601 et seq., 1981, 1982, 1983 and 2000d et seq.  Defendants claim no wrong-doing or discriminatory intent.  The federal district court addressed the defendants’ motion for summary judgment and a plaintiff-intervenor’s motion to amend its intervenor-complaint to include an additional cause of action inadvertently omitted. 

Of significant importance to this case are the demographics of the Nassau County and Garden City.  The plaintiffs’ expert described Nassau County as one of the most segregated counties in America.  Minority populations heavily reside in certain municipalities in the County, but are essentially absent from other municipalities.  Garden City is one such municipality, as it has a minority share of only 4.1% of the population, and only 2.3% of households are headed by minority persons.  Illustrating the disparity between municipalities, nearby Hempstead is 84% minority, and East Garden City is 67% minority.  The former Nassau County Executive explained this has occurred in part because, “Garden City . . . historically, has been viewed as a community that didn’t want to have affordable housing in it[.]”

In 2006, the County intended to sell land in Garden City, for the purpose of affordable housing development.  For this to go project to go forward, the land needed to be rezoned from commercial to multi-family residential, which was opposed by residents, and the rezoning did not occur.  As of 2011, there were only three portions of the Village zoned for multi-family use, and none of these areas contained affordable housing.

In addition, as part of a plan to improve the fiscal status of the County, the County determined it was in their best interest to consolidate and sell surplus real property.  One targeted piece property was a site in Garden City, where the County housed government operations in a public use zone district.  The County wanted to sell the property, and maximize its interest by having the lot rezoned to permit multi-family housing.  Garden City retained a consultant firm to analyze the County’s proposal.  The firm endorsed the creation of zone district which would permit up to 311 apartment units, as opposed to the County’s goal of at least 400 units.  Under existing zoning controls, 770 units would be made available.  Statements from public hearings illustrated that the County Executive was committed to sell the location for upscale housing and that residents strongly preferred single family housing.  One Trustee “felt that ‘housing occupied by low income minorities’ was not consistent with ‘the existing character of the neighborhood.’”  Following public hearings, the 311 apartment units proposed in the new district dwindled.  The new plan designated the lot as “Residential-Townhouse,” (“R-T”) which permitted single family residences, with 15% of the site to available for multi-family housing, by special permit only under the “C0-5” district tag.

Garden City adopted the proposed zoning change, which resulted in the site being rezoned as “R-T” and “C0-5.”  The “R-T” district would permit one single family residence per 6,000 square feet of space used for residential.  Thereafter, the County sought bids for the site, setting a bidding floor at $30 million.  Nineteen bids came in for the site, ranging from $31-$56 million.  NYAHC (Now plaintiff MHANY) submitted a bid to lease the property for $5 million a year for the purpose of developing rental apartments, and was thus not in conformance with the zoning designation and the bid requirements.  The County chose the highest bidder for the site.  However, after a change in County administration, the site was not sold, nor is it for sale, and it is currently planned to be the site for the relocation of the County’s Family and Matrimonial Court Complex. 

In addressing the merits of the motion for summary judgment, the court first had to determine whether the plaintiffs’ cause of action was moot, as the property was no longer for sale.  Plaintiffs assert the cause of action is not moot, as they seek relief not concerning the sale of the property, such as an injunction requiring the government officials involved to not engage in any discriminatory acts, and a court order requiring remediation of past discrimination.  The District Court found that some of the demands for relief were not rendered moot, and thus the cause of action survived the defendants’ motion for summary judgment.

The court then moved on to the specific substantive issues of the case, first addressing the plaintiff’s FHAA claims.  The FHAA can be violated where discriminatory zoning practices are demonstrated by way of disparate treatment or impact.  The plaintiff can make a prima facie case of disparate treatment by showing that animus against a group was a significant factor in the municipality’s decision, which can be rebutted by a showing that the defendant municipality would have acted the same without the impermissible intent. 

The court found a genuine issue of fact existed as to Garden City’s potential violation of the FHA under the disparate treatment standard.  Specifically, the court found that the impact of the “R-T” zone designation, the historical background of the community, the change from a proposed re-zone that allowed as of right affordable housing to one that restricted it, and statements made by decision-makers, illustrated that Garden City “bowed to race-based opposition[.]”  In rebuttal, the City provided non-discriminatory reasons for their change of the zoning designation to one which permitted less development.  The reasons included the lessened impact on traffic and the school system, and that it would fit within the character of the neighborhood.  The court found the City met their minimal burden, but also found that a trier of fact could find the non-discriminatory basis pretextual.  The possibility of pretext led the court to deny the City’s motion for summary judgment. 

The court found a prime facie case was not made out against Nassau County, and granted summary judgment in the County’s favor as to the disparate treatment claim.  The court so ruled because the plaintiffs did not demonstrate “the legally required causal relationship” between the County and the zoning action.  The court stated that the County had no duty to make sure the City provided affordable housing at the site, nor did the County have any control over the re-zone process.

Next, the court addressed the disparate impact claims.  Under a disparate impact claim, the plaintiffs needed to show neutral practices that resulted in “significantly adverse or disproportional impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.”  The court also explained that the plaintiff must show a causal connection between the neutral policy and the effect.  The defendant can then rebut, showing a legitimate government interest and no alternative. 

As to the Village, the court found summary judgment was precluded due to issues of fact.  The court so found based on the adoption of the restrictive zoning change that had a disproportional effect on potential minority residents.  This was because, under the initially proposed re-zone, 56 to 101 minority households could have afforded to live on the site.  If housing were to be build in conformance with the enacted re-zone, only 3 to 6 minority households could have afforded to reside on the site.  The Village failed to adequately meet their burden of rebuttal, and thus their motion for summary judgment failed.

In addressing the County’s liability under the disparate impact standard, the court found there was no evidence that the County was responsible for the final complexion of the re-zone, and thus the County could not be subject to a disparate impact claim resulting from the change of possible zone districts from the less to more restrictive (as passed).  The court provided that the County could only be liable concerning the disparate impact among proposals under the resultant zone district.  The plaintiffs made no such showing, thus summary judgment was granted in favor of Nassau County on this claim.

The plaintiffs’ also alleged the County violated Section 808 of the FHA, 42 U.S.C. § 3608, due to its failure to “affirmatively further fair housing while receiving federal grants[.]”  The court found this section of the FHA does not create a private right of action, and thus summary judgment must be granted in favor of the County.  Likewise, since Section 808 of the FHA provides no private right of action, the plaintiffs’ 42 U.S.C. § 1983 claim, based in violation of Section 808, against the County must also be dismissed.

The court next addressed the plaintiffs’ claims against the defendants pursuant to 42 U.S.C. §§ 1981, 1982 & 1983.  All three of these claims require a showing of discriminatory intent.  The defendants argued the plaintiffs cannot show this common element, and thus all three claims must be dismissed.  The court found that there was a genuine issue of fact as to whether the City switched to the more restrictive re-zone based on discriminatory intent.  Thus, the City’s motion for summary judgment was not granted.  As there was no issue of fact as to whether the County harbored discriminatory intent, the court dismissed the claims against the County.

The court also dismissed the 42 U.S.C. § 2000d claim against the County, as the statute requires a showing of intentional discrimination, which the plaintiffs failed to satisfy.

Lastly, the court addressed the plaintiff-intervenor’s motion to amend the intervenor-complaint.  This party omitted to include claim for the violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Equal Protection Clause of the Fourteenth Amendment.  This amendment would only be permissible upon the defendants’ consent or leave of court.  First off, the court found the amendments would be futile as applied to the County, but remain viable against the Village.  The court next found that the 5 month delay between the discovery of the error and its correction was not an undue delay, and that the Village would not experience any undue prejudice from the amendment.  Thus, the court permitted the amendment of the intervenor-complaint only against Garden City. 

MHANY Management Inc. v. County of Nassau, 2012 WL 523521 (E.D.N.Y., 2012),

The decision can be accessed at: http://www.lawyerscommittee.org/admin/site/documents/files/Memorandum-of-Decision-and-Order-2.15.12.pdf.


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