Hamer et al v. Planning and Zoning Commission et al
ORDER denying 26 Motion to Dismiss. Signed by Judge Warren W. Eginton on 6/21/13. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTOPHER HAMER, OAKVIEW
CAPITAL PARTNERS, LLC and OAKVIEW
HOUSING TRUST I, LLC,
DARIEN PLANNING AND ZONING
COMMISSION and FERDERICK B. CONZE, :
MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO DISMISS
Plaintiffs Christopher Hamer, Oakview Capital Partners, LLC, and Oakview Housing
Trust I, LLC filed this action against defendants Frederick Conze and the Darien Planning and
Zoning Commission, alleging racial discrimination in housing in violation of the Fourteenth
Amendment to the United States Constitution. Specifically, plaintiffs contend that they were
denied permission to develop real estate because their proposed construction would constitute
affordable housing that was perceived by defendants as conducive to home purchases by racial
Defendants have moved to dismiss for failure to state a claim. For the following reasons,
defendants’ motion will be denied.
For purposes of ruling on a motion to dismiss, the Court accepts the allegations of the
complaint as true and draws all inferences in favor of the plaintiffs.
Christopher Hamer is the managing member of Oakview Capital Partners, LLC, which is
the sole member of Oakview Housing Trust I, LLC. The Darien Planning and Zoning
Commission is the municipal governmental entity in Darien, Connecticut, responsible for all
planning and zoning matters for the town. Frederick Conze is the Chairman of the Commission.
On June 9, 2008, plaintiffs submitted an application to defendants to develop ten
residential condominiums at 26 Oak Crest, Darien, as affordable housing units to “provide much
needed diversity of housing options and increased opportunity for a wider range of income
levels.” Defendants rejected this application on January 8, 2009. Plaintiffs filed a timely appeal
to the Connecticut Superior Court.
Plaintiffs allege that defendants conspired with private citizens residing near the subject
property to bring a meritless lawsuit against plaintiffs for the purpose of increasing plaintiffs’
development costs and making it impossible for plaintiffs to proceed. Ultimately, the subject
property was lost to foreclosure and plaintiffs were unable to proceed with the development
project. The appeal to the Superior Court was dismissed as moot.
Plaintiffs allege that as of the 2010 census, Darien had a population of 20,732, of which
19,508 were Caucasians and only 104 were African-Americans. Stamford, Connecticut, located
immediately to the west of Darien, comprises 21.3% African-Americans, while Norwalk,
Connecticut, located immediately to the east of Darien, comprises 22.8% African-Americans.
Plaintiffs allege that defendants have attempted to exclude African-Americans from
Darien by preventing the construction of affordable housing units and keeping housing costs
prohibitively high. On July 1, 2008, at a public zoning meeting, defendant Conze characterized
affordable housing as a “virus” and stated, “I have to honestly tell you that I look at this as a
virus, that once you open the box . . . you never get it back in the bottle because it’ll be replicated
all over town.” On December 14, 2010, at the annual state of the town meeting, Conze publicly
Our objective is to preserve the character of our town. The demographic and
economic forces generated by our immediate neighbors to our east and west
cannot be taken lightly. I have spoken of these forces in past Town
addresses. . . Many view Darien as a housing opportunity regardless of its
effect on the character of our town and existing home values.
Plaintiffs brought this action alleging violation of the Fourteenth Amendment’s equal
protection clause. Plaintiffs’ original complaint was dismissed when plaintiffs failed to
distinguish classes and identify comparators for purposes of their equal protection claim, but the
Court permitted plaintiffs to replead their claim. In their amended complaint, plaintiffs assert
that “defendants consciously and intentionally discriminate against all persons and entities
attempting to construct affordable housing in Darien, in comparison to all other developers of
residential real estate, for the specific purpose of excluding African-Americans from living in the
town.” Defendants have now moved to dismiss plaintiffs’ amended complaint for failure to state
The function of a motion to dismiss is "merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be offered in support thereof."
Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.
1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as
true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73
(1984). The complaint must contain the grounds upon which the claim rests through factual
allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). A plaintiff is obliged to amplify a claim with some factual
allegations in those contexts where such amplification is needed to render the claim plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Failure to State a Claim
Defendants argue that plaintiffs’ complaint again fails to distinguish classes and to allege
differential treatment from those similarly situated. Defendants contend that plaintiffs have not
compared themselves to similarly situated individuals because plaintiffs, instead, compare
themselves to “all other developers of residential real estate.” In addition, defendants assert that
plaintiffs have failed to sufficiently allege that there was no legitimate reason for the claimed
differential treatment. Notably, defendants frame plaintiffs’ claim as a class-of-one equal
Plaintiffs’ equal protection claim is not a class-of-one claim. Rather, plaintiffs allege that
defendants discriminate against “all persons and entities attempting to construct affordable
housing in Darien.” Moreover, race-based discrimination is not subject to rational basis review.
Strict scrutiny equal protection review applies to suspect classifications, and racial discrimination
is an example of suspect classification in land use regulation. See Orange Lake Associates, Inc.
v. Kirkpatrick, 21 F.3d 1214, 1225 (2d Cir. 1994). “To establish that an even-handedly applied,
facially neutral law should be subjected to the strict scrutiny of a court, the challenger normally
must show that (1) the law has such a disproportionate impact on one of several groups (i.e., race,
national origin, alienage, gender or illegitimacy) that we may view the law as if it created such a
classification on its face, and (2) a discriminatory purpose motivated the actions of the
government officials.” Id. at 1226.
Plaintiffs need not prove that the challenged action rested solely on racially
discriminatory purposes. Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 265 (1977). Indeed, “[r]arely can it be said that a legislature or
administrative body operating under a broad mandate made a decision motivated solely by a
single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one. In fact, it
is because legislators and administrators are properly concerned with balancing numerous
competing considerations that courts refrain from reviewing the merits of their decisions, absent
a showing of arbitrariness or irrationality. But racial discrimination is not just another competing
consideration. When there is a proof that a discriminatory purpose has been a motivating factor
in the decision, this judicial deference is no longer justified.” Id.
Administrative history may be highly relevant to determining whether an improper
purpose has played a role in a land use decision, especially, as here, where there is a record of
statements by members of the decisionmaking body. “Determining whether invidious
discriminatory purpose was a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence as may be available.” Id. at 564. At this stage, plaintiffs have
adequately stated an equal protection claim. Accordingly, defendants’ motion to dismiss will be
For the foregoing reasons, defendants’ motion to dismiss [Doc. #26] is DENIED.
Dated this 21st day of June, 2013, at Bridgeport, Connecticut.
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE
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