Mhany Management Inc. et al v. County Of Nassau et al
Filing
423
MEMORANDUM OF DECISION AND ORDER - For the foregoing reasons, within ten days of the date of this order, the Plaintiffs are directed to submit a proposed final judgment in accordance with the terms set forth in this decision and order. The Defendants shall then have ten days to file objections or an alternative proposed judgment. The Court will subsequently enter a final judgment. So Ordered by Judge Arthur D. Spatt on 3/17/2014. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MHANY MANAGEMENT INC.,
Plaintiff,
-and-
MEMORANDUM OF
DECISION AND ORDER
05-CV-2301 (ADS)(WDW)
NEW YORK COMMUNITIES FOR CHANGE,
INC.,
Intervenor-Plaintiff,
-againstINCORPORATED VILLAGE OF GARDEN
CITY AND GARDEN CITY BOARD OF
TRUSTEES,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Law Offices of Frederick K. Brewington
Attorneys for the Plaintiffs
556 Peninsula Blvd.
Hempstead, New York 11550
By:
Frederick K. Brewington, Esq., of Counsel
Lawyers’ Committee for Civil Rights Under Law
Attorneys for the Plaintiffs
1401 New York Avenue, NW
Suite 400
Washington, DC 20005
By:
Joseph D. Rich, Esq.
Linda H. Mullenbach, Esq.
Abigail E. Shafroth, Esq., of Counsel
Hogan Lovells US LLP
Attorneys for the Plaintiff Mhany Management Inc.
875 Third Avenue
New York, New York 10022
By:
Stanley J. Brown, Esq.
Peter J. Dennin, Esq.
Chava Brandriss, Esq.
Andrew J. Sein, Esq.he h
Sarah J. Gregory, Esq.
1
Benjamin A. Fleming, Esq.
Carol H. Cheng, Esq. Of Counsel
Cullen and Dykman, LLP
Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of
Trustees
100 Quentin Roosevelt Boulevard
Garden City, NY 11530
By:
James G. Ryan, Esq.
Ariel E. Ronneburger, Esq.
Thomas B. Wassel, Esq.
Cynthia Ann Augello, Esq.
Douglas J. Bohn, Esq.
Jennifer A. McLaughlin, Esq., of Counsel
Jones Day
Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of
Trustees
51 Louisiana Ave N.W.
Washington, D.C. 20001
By:
Michael A. Carvin
SPATT, District Judge.
Familiarity with the facts of this case is presumed.
Of relevance here, on December 6, 2013, after an 11-day bench trial commencing on
June 17, 2013, this Court concluded that the Plaintiffs established the liability of the Incorporated
Village of Garden City (the “Village” or “Garden City”) and the Garden City Board of Trustees
(collectively the “Garden City Defendants”) under (1) the Fair Housing Act (“FHA”), 42 U.S.C.
§ 361 et seq. based on a theory of disparate treatment and disparate impact; (2) 42 U.S.C. § 1981;
(3) 42 U.S. C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. MHANY Mgmt. Inc. v. Inc. Vill. of Garden City, 05-CV-2301
(ADS)(WDW), 2013 WL 6334107 (E.D.N.Y. Dec. 6, 2013)(Spatt, J.). In particular, the Court
found that:
2
Garden City Defendants acted with discriminatory intent when they eliminated R–
M [Multi-Family Residential Group] zoning and endorsed R–T [Residential
Townhouse]zoning after they received public opposition to the prospect of
affordable housing in Garden City. The Court notes that R–T zoning banned the
development of multi-family housing on all but a small portion of the Social
Services site—the 3.03 acres located on the western side of County Seat Drive—
and then only by special permit. The Court also notes the negative remarks by
Garden City residents at public hearings and the flyer against multi-family
housing on the Social Services Site. Set against the underlying sequence of
events and the considerable impact that this zoning decision would have had on
minorities in that community, the Court concludes that some of the expressions by
Garden City residents of disapproval for affordable housing reflected race-based
animus or at least could have been construed as such by the Board.
Furthermore, the Court finds that the adoption of R–T zoning instead of R–M
zoning had a disparate impact on minorities in Garden City and tended to
perpetuate segregation in that community.
Id. at *37.
With respect to remedies, the Court recognized that the FHA authorizes injunctive relief.
The Court noted that “at a minimum, prohibitive injunctive relief enjoining future FHA
violations is appropriate.” Id. at *36. “However,” the Court reasoned, “because such an
injunction merely prohibits what is already prohibited, further relief, perhaps in the form of
affirmative relief, appears appropriate.” Id. In that regard, the Court noted that “a directive
requiring Garden City to join the Nassau Urban Consortium appears eminently reasonable as a
starting point.” Id. The Consortium is a group of municipalities in Nassau County that are
eligible to receive federal funding to support affordable housing development.
At the same time, the Court made clear that “there is no constitutional or statutory right
for individual citizens to have housing comply with a particular standard, nor is there a
concomitant duty on the part of political entities to provide housing.” Id. Ultimately, the Court
reserved decision on the issue of remedies and directed the parties to propose remedial plans to
be incorporated into the final judgment in this case.
3
As modified in its reply brief and described in more detail throughout this opinion, the
Plaintiffs’ proposed remedies for inclusion in the final judgment are as follows: (1) a general
injunction prohibiting any discrimination in housing policy in Garden City on the basis of race,
color, or national origin; (2) a directive to Garden City to adopt a Fair Housing Resolution to
assure equal housing opportunities and nondiscrimination in its zoning and other land use
processes; (3) the appointment of a third-party contractor as a Fair Housing Administrator to
ensure compliance with the final judgment; (4) rezoning the Social Services Site from R-T
zoning to R-M zoning; (5) participation by Garden City in the Nassau County Urban
Consortium; (6) promotion of the development of no less than 78 affordable housing units in
Garden City; (7) Fair Housing training for Garden City employees whose duties relate to housing
or zoning; (8) funding of an Affordable Housing Trust Fund; (9) certain record-keeping
requirements; (10) a deadline to file a motion for attorney’s fees and costs; and (11) retention of
jurisdiction by this Court over this action until Garden City has fulfilled its obligations under the
judgment.
In opposition, without conceding liability, the Garden City Defendants contend that at
most the Plaintiffs are entitled to have the Social Services Site rezoned R-M. Alternatively, the
Plaintiffs suggests (1) a prohibitory non-discrimination injunction; (2) a requirement that any
developer of multi-family property consisting of 5 or more units in the Village offer at least 10%
of the units to be reserved for families whose income is 40% to 100% of the Nassau-Suffolk
County Area Median Income; (3) Fair Housing training for Village officials whose duties relate
to housing or zoning; (4) appointment of a Garden City employee or Trustee as a Fair Housing
Compliance Officer to ensure compliance with the final judgment; (5) a deadline for compliance;
4
(6) a deadline to file a motion for attorney’s fees and costs; and (7) retention of jurisdiction over
this matter by this Court until Garden City has fulfilled its obligations under the judgment.
In this decision, the Court adopts various aspects of the parties’ respective proposed
judgments, and includes its own changes as well. Within ten days of the date of this order, the
Plaintiffs are directed to submit a final judgment in accordance with the terms of this decision.
The Defendants shall then have ten days to file objections or an alternative proposed judgment.
The Court will subsequently enter a final judgment.
I.
DISCUSSION
The FHA expressly authorizes courts to award injunctive relief:
if the court finds that a discriminatory housing practice has occurred . . . the court
may . . . grant as relief, as the court deems appropriate, any permanent or
temporary injunction, temporary restraining order, or other order (including an
order enjoining the defendant from engaging in such practice or ordering such
affirmative action as may be appropriate).
42 U.S.C. § 3613(c)(1). “The Court must craft injunctive relief with a view toward the statute's
goals of preventing future violations and removing lingering effects of past discrimination. The
scope of the injunction is to be determined by the nature and extent of the legal violation.”
United States v. Space Hunters, Inc., 2004 WL 2674608, at *8 (S.D.N.Y. Nov. 23, 2004) (citing
Rogers v. 66–36 Yellowstone Blvd. Coop. Owners, Inc., 599 F. Supp. 79, 83 (E.D.N.Y. 1984)).
“[T]he two most common forms of injunctive relief requested under the FHA seek either to
prohibit the offending party from engaging in future acts of housing discrimination or to impose
upon that party certain affirmative duties to atone for past discrimination and prevent recurrence
of such acts.” Ueno v. Napolitano, 2007 WL 1395517, at *6 (E.D.N.Y. May 11, 2007). In
determining whether or not to grant a request for injunctive relief, “[t]he critical question . . . is
5
whether a sufficiently flagrant violation of the plaintiffs' civil rights – the guidepost for granting
FHA injunctive relief – has occurred.” Id. at *4.
In this regard, “[t]he Supreme Court has not required that the ‘least restrictive means of
implementation’ be adopted but has ‘recognized that the choice of remedies to redress racial
discrimination is ‘a balancing process left, within appropriate constitutional or statutory limits, to
the sound discretion of the trial court.’” United States v. Yonkers Bd. of Educ., 837 F.2d 1181,
1236 (2d Cir. 1987)(citations omitted).
Here, “[t]o the extent the defendants are concerned that the imposition of any
injunctive relief is unwarranted, intrusive or burdensome, the court finds such concerns
misplaced.” Ueno, 2007 WL 1395517, at *7. The Garden City Defendants did not move for
reconsideration of the December 6, 2013 order, and in the absence of such a motion, the Court
declines to relitigate liability. In other words, “the law has been broken and the defendants
cannot now complain of the ensuing consequences.” Id.
Further, contrary to the contention of the Garden City Defendants, the Plaintiffs have
proved that they are likely to suffer future harm from the “continuing, present adverse effects” of
the Defendants’ illegal conduct, thereby justifying injunctive relief. City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). In particular, the Court finds
that the Plaintiffs proved that the enactment of R-T zoning continues to limit available housing
options in Garden City. See Sierra v. City of New York, 535 F. Supp. 2d 448, 450 (S.D.N.Y.
2008)(On motion to dismiss for lack of standing, “[[a]s to injunctive relief, Sierra has made a
sufficient (if thin) showing that section 27-2076(b) continues to limit her available housing
options.”). Although Nassau County has since declined to sell the Social Services Site, the Court
notes that R-T zoning, which the Court found was enacted with a discriminatory intent and
6
purpose, remains in effect as a barrier to the construction of affordable housing in the Village. In
other words, even if the County changed course and decided to sell the property for residential
development, Garden City would still need to repeal the R-T controls to make construction of
any measurable number of affordable housing units feasible. South–Suburban Hous. Ctr. v.
Greater South Suburban Bd. of Realtors, et al., 935 F.2d 868, 881 (7th Cir. 1991) (finding that an
FHA challenge to a street plan for damages, declaratory relief, and injunctive relief was not
rendered moot although homes were sold prior to the trial, in part because there was still a viable
claim for declaratory and injunctive relief).
The Garden City Defendants contend that, absent a systemic violation throughout the
Village, the Court cannot order Village-wide relief and at most the Plaintiffs are entitled to have
the Social Services Site rezoned R-M. The Court disagrees.
As the Ueno court found:
The FHA sweeps broader than providing assurance that individual litigants are
protected from housing discrimination. Rather, to achieve Congress' goal of
eliminating discrimination wholesale, individual litigants like the plaintiffs here
should be considered proxies for the public at large, with the latter group being
the real focus in crafting “particularly tailored” injunctive relief under the FHA.
Id. at *5.
The Supreme Court decisions in Horne v. Flores, 557 U.S. 433, 129 S. Ct. 2579, 174
L. Ed. 2d 406 (2009) and Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038, 132 L. Ed. 2d 63
(1995) do not dictate otherwise.
In Horne, the Supreme Court vacated a statewide injunction to the extent it extended
beyond the district proven to have violated the Equal Educational Opportunities Act on the
ground that “a statewide injunction . . . intruded deeply into the State's budgetary processes” and
7
“obscured accountability for the drastic remedy,” as the state legislature or state courts had the
authority to decide that issue and not the lower court. 557 U.S. at 471, 129 S. Ct. at 2607.
Similarly, in Jenkins, a case involving unconstitutional racial segregation, the Supreme
Court held that “[a] district court seeking to remedy an intradistrict violation that has ‘directly
caused’ significant interdistrict effects exceeds its remedial authority if it orders a remedy with
an interdistrict purpose.” Jenkins, 515 U.S. at 97, 115 S. Ct. at 2054.
Put in simpler terms, Horne and Jenkins stand for the proposition that a remedy for a
constitutional violation should only bind the party found to be liable. In contrast to the Plaintiffs
in those cases, here, the Plaintiff seeks relief only as to the entities held liable, the Garden City
Defendants.
Finally, the Garden City Defendants argue that prospective injunctive relief is
inappropriate where, as here, the Village did not engage in a policy or practice of discrimination.
As the Second Circuit has summarized, “a plaintiff seeking injunctive relief [against a
municipality] must demonstrate both a likelihood of future harm and the existence of an official
policy or its equivalent.” Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004)(emphasis added).
This is not to say that such injunctive relief demands a history of repeat violations. Rather, the
Court finds that the enactment of a zoning ordinance, such as R-T zoning, qualifies as “an
official policy or its equivalent” adopted by the Village. Compare Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir. 1983) (“[M]unicipalities may be sued directly under § 1983 for constitutional
deprivations inflicted upon private individuals pursuant to a governmental custom, policy,
ordinance, regulation, or decision.”)(emphasis added).
8
Having addressed the Defendants’ arguments disputing the legal basis for injunctive
relief, the Court now addresses the specific relief to be incorporated into the final judgment in
this case.
A.
Prohibitive Injunctive Relief
As the Court previously stated in this case, “prohibitive injunctive relief enjoining future
FHA violations is appropriate.” 2013 WL 6334107, at *36, citing Rogers, 599 F. Supp. at 85-86
(approving prohibitive relief, i.e., forbidding a defendant from disobeying the law, and requiring
the “defendants to take definite steps via education and advertising towards sustained lawful
conduct”).
In this regard, the Plaintiffs propose that the following prohibitory injunction be entered
against the Garden City Defendants:
In accordance with the laws of the United States, Garden City, along with their
officers, agents, employees, successors, and all persons in active concern or
participation with any of them, are permanently enjoined from:
(1). Denying or otherwise making unavailable a dwelling because of race, color or
national origin;
(2). Discriminating in the terms, conditions or privileges of the sale or rental of a
dwelling, or in the provision of services or facilities in connection therewith,
because of race, color or national origin;
(3). Coercing, intimidating, threatening, or interfering with any person in the
exercise or enjoyment of, or on account of his having exercised or enjoyed, or on
account of his having aided or encouraged any other person in the exercise or
enjoyment of, any right protected by the FHA;
(4). Interfering with the funding, development or construction of any housing
because of race, color or national origin; and
(5). Discriminating on the basis of race, color or national origin in any aspect of
the administration of its zoning processes relating to residential property.
(Plfs’ Amended Proposed Judgment, at § V.)
9
The Garden City Defendants contend that the proposed prohibitive injunction is violative
of Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 65(d), which requires that injunctions be
“specific in terms.” The Second Circuit has cautioned that “an injunction must be more specific
than a simple command that the defendant obey the law.” Peregrine Myanmar Ltd. v. Segal, 89
F.3d 41, 51 (2d Cir. 1996). Thus, without conceding liability, the Garden City Defendants
propose the following alternative language:
In accordance with the laws of the United States, the Village shall not take any
action:
(1). Interfering in any way with any person in the exercise of his or her right
under the law to secure equal housing opportunity for himself, herself, or others,
or any other right enjoyed under the FHA.
(2). Interfering with the development or acquisition of any affordable housing
units because of race, color, or national origin.
(3). Discriminating because of race, color, or national origin in any aspect of the
enactment or administration of zoning, land use, special permit, or building
ordinance laws, polices, practices, requirements, or processes relating to
residential property.
(Defs’ Alternative Proposed Judgment, at § V.) .
In the Court’s view, the language proposed by the Garden City Defendants is more
appropriate under the circumstances of this case and complies with Fed. R. Civ. P. 65(d).
Accordingly, the Court directs that the Plaintiffs include in the final judgment the
language regarding the prohibitory injunction proposed by the Garden City Defendants
Judgment, with no time limitation.
B. Affirmative Injunctive Relief
The FHA “gives the district court the power it needs to fashion affirmative equitable
relief calculated to eliminate as far as possible the discriminatory effects of violation of the Fair
10
Housing Act.” Park View Heights Corp. v. City of Black Jack, 605 F.2d 1033, 1036 (8th Cir.
1979).
That said, the Court is cognizant of the general reluctance of the judiciary to impose
affirmative relief. “If the court orders a FHA defendant to provide affirmative relief, such as to
pass policies or rules, build housing or take other affirmative steps toward non-discriminatory
housing, then such mandates require serious justification,” Robinson v. Parkshore Co-op., 01 C
2103, 2002 WL 1400322, at *4 (N.D. Ill. June 27, 2002), because it is a “massive judicial
intrusion on private autonomy.” Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d
1283, 1293 (7th Cir. 1977) . “Indeed, there is no constitutional or statutory right for individual
citizens to have housing comply with a particular standard, nor is there a concomitant duty on the
part of political entities to provide housing.” 2013 WL 6334107, at *36. The Court now
addresses the following items of affirmative relief to be included in the final judgment.
1. Fair Housing Training
With regard to Fair Housing training, the Plaintiffs propose that the following language
be included in the final judgment:
A. Garden City shall implement a yearly fair housing training program for all
elected Garden City officials, and for all officials and Garden City employees
who have duties related to the planning, zoning, permitting, construction, or
occupancy of residential housing. The primary purpose of this training program is
to educate those persons with respect to the requirements of this Order, the FHA,
and state and local fair housing laws.
B. Garden City shall select a qualified third party entity that has experience
providing fair housing training to conduct the training, and shall select from the
following entities: Plaintiff NYCC, Long Island Housing Services, Inc., the Fair
Housing Justice Center or ERASE Racism.
C. Each year, at least one time per calendar year, Garden City shall provide in
person training of the requirements of this Order, the FHA, and state and local fair
housing laws. All elected officials, and all officials and employees who have
duties related to the planning, zoning, permitting, construction, or occupancy of
11
residential housing shall be required to attend the in-person training within the
first year after this Order. All newly elected officials, and all newly appointed
officials and hired employees who have duties related to the planning, zoning,
permitting, construction, or occupancy of residential housing shall be required to
attend the in person training within one year of their election, appointment or
hiring.
D. Each person who attends an in-person training session shall sign a form
attesting to the fact that he or she completed the training and the date on which it
was completed. All training certification forms shall be maintained by Garden
City for five years from the date of signature, and made publicly available upon
request to the Village Clerk.
(Plfs’ Amended Proposed Judgment, at § XII.)
The Court finds that required Fair Housing Training is consistent with established FHA
remedies. See United States v. Hous. Auth. of City of Chickasaw, 504 F. Supp. 716, 734 (S.D.
Ala. 1980) (requiring the municipality found liable for a FHA violation to institute educational
program for employees “to inform them of the provisions of this [Remedial] Order and their
duties under the Fair Housing Act”); City of Parma, 661 F.2d at 577 (“We can see no objection
to requiring an educational program to acquaint those officials and employees of the City who
are responsible for carrying out the terms of the remedial order of their obligations thereunder.”).
Accordingly, the Court directs that the Plaintiffs include in the final judgment the
language regarding Fair Housing Training in their Amended Proposed Judgment, with the caveat
that the trainers be qualified organizations or individuals mutually agreed upon by the parties.
In this regard, the Court notes that, despite NYCC’s familiarity with the facts of this case, the
Court finds that, given its role in this litigation, permitting NYCC to implement aspects of the
remedial order could present partiality problems. The Court further notes that this case does not
involve complex legal issues that would make it difficult for a third party to conduct the
mandated Fair Housing Training.
12
2. Fair Housing Resolution
The Plaintiffs also propose that Garden City enact a resolution “to assure equal housing
opportunities and nondiscrimination in its zoning and other land use processes.” (Plfs’ Amended
Proposed Judgment, at § VI.). The Court finds that a directive to enact such a measure is
reasonable and consistent with the purpose of the FHA. Yonkers Bd. of Educ., 635 F. Supp. at
1577-80 (requiring the defendant to enact legislation setting forth a fair housing policy).
Accordingly, the Court directs that the Plaintiffs include in the final judgment the language in
their Amended Proposed Judgment regarding a Fair Housing Resolution.
3. Re-Zoning the Social Services Site to R-M
While, as noted above, the Court is not limited to site-specific affirmative relief under the
FHA, the Court prefers such relief in this case, primarily because such a remedy “fit[s] the nature
and extent of the violation [here].” United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1235
(2d Cir. 1987). The violation of the FHA, and other civil rights provisions, was the specific
action by the Garden City Defendants to eliminate R-M zoning and endorse R-T zoning after
they received public opposition to the prospect of affordable housing in Garden City. The
violation was not, as the Plaintiffs assert, the history of segregation and the absence of affordable
housing in Garden City. Rather, the Court considered such factors as relevant to its
determination as to whether the Garden City Defendants acted with discriminatory intent and
purpose in the re-zoning of the Social Service Site.
Further, while a Town’s track record of stalling efforts to build low-income housing is
relevant to the imposition of affirmative relief, Huntington Branch, N.A.A.C.P. v. Town of
Huntington, 844 F.2d 926, 942 (2d Cir. 1988), aff'd in part sub nom. Town of Huntington, N.Y.
v. Huntington Branch, N.A.A.C.P., 488 U.S. 15, 109 S. Ct. 276, 102 L. Ed. 2d 180 (1988), the
13
Court notes that, in this case, for various reasons, it expressly declined to place significant weight
on any history of discrimination in Garden City.
It is true that the district court has “the power it needs to fashion affirmative equitable
relief calculated to eliminate as far as possible the discriminatory effects of violation of the Fair
Housing Act.” Park View Heights Corp., 605 F.2d at 1036, and one of the effects of the
discriminatory action in the re-zoning of the Social Services Site was the perpetuation of existing
segregation in Garden City. However, the Court must be careful not to impose overbroad or
“unnecessarily restrictive” relief. Uneo, 2007 WL 1395517, at *5.
The Court also notes that “[t]he animating purpose of [discrimination] remedies must
always be to put the victims of constitutional injury where they would have been but for the
injury.” United States v. City of Yonkers, 197 F.3d 41, 56 (2d Cir. 1999), citing Milliken v.
Bradley, 433 U.S. 267, 280, 97 S. Ct. 2749, 2757, 53 L. Ed. 2d 745 (1977). In other words, a
discrimination remedy “must be designed as nearly as possible ‘to restore the victims of
discriminatory conduct to the position they would have occupied in the absence of such
conduct.’” Milliken, 433 U.S. at 280, 97 S. Ct. at 2757 (citation omitted).
While the Court retains the authority to direct a municipality to rezone a parcel of land
that was previously zoned in violation of the FHA, Huntington Branch, N.A.A.C.P. , 844 F.2d at
942, the Court notes that, in this case, the Social Services Site is no longer for sale. Indeed, at
some point, the current Nassau County Executive Edward P. Mangano announced plans to
relocate the County's Family Court building, currently located in Westbury, New York, to the
Social Services Site. The County has since apparently taken no action at the site. Thus, the
Court could direct a rezoning only if Nassau County changed course and allows residential
14
development on the site. Also, the Court notes that it cannot issue a directive binding Nassau
County, which is no longer a party to this case.
Stated otherwise, a directive to the Garden City Defendants to rezone the Social Services
Site to zone R-M would not, without further action by third-parties, remedy the FHA and
constitutional violations in this case. However, the Court does not foreclose such a directive
because, in the Court’s view, unlike other potential remedies, the opportunity to place a
competitive bid for affordable housing on the Social Services Site would place the Plaintiffs – in
particular, the developer, Mhany – in substantially the same position they were in before the
unlawful discriminatory zoning action by the Garden City Defendants.
Accordingly, the Court directs that the Plaintiffs include in the final judgment the
following language, or its equivalent:
In the event Nassau County announces that the Social Services Site will be sold
for residential development within one year of the date of this judgment, Garden
City shall, within thirty days of that announcement, begin the process of
rezoning the Social Services Site with the R-M zoning designation so as to allow
for residential multifamily development on the Social Services Site as of right,
with no additional permitting or variance process required.
To be clear, the Court is not directing Nassau County, nor could it direct Nassau County
to sell the Social Services Site for residential development. That ultimate action is left to the
discretion of the County.
The Court will next address the two conditional measures of affirmative injunctive relief
with which Garden City must comply in the event the Nassau County does not announce for sale
the Social Services Site for residential development within one year of the date of the judgment.
i.
Participation in the Nassau County Urban Consortium
The Plaintiffs propose that Garden City join and participate in the Nassau County
Urban Consortium as follows:
15
Within sixty days of this Order, Garden City shall apply to become a member of
the Nassau County Urban Consortium (“Consortium”).
A. Participation: Once accepted as a member of the Consortium, Garden
City shall participate in Consortium activities in good faith.
(Plfs’ Amended Proposed Judgment, at § IX).
As noted above, this Court previously concluded that “a directive requiring
Garden City to join the Nassau Urban Consortium appears eminently reasonable as a
starting point.” 2013 WL 6334107, at *36, citing Smith v. Town of Clarkton, 682 F.2d
1055, 1065 (4th Cir. 1982)(ordering the Defendant found liable under the FHA to rejoin a
regional housing cooperative).
The Garden City Defendants contend that Smith is distinguishable because, unlike
the Town in that case, Garden City has not previously been a member of such a coalition.
However, the Court finds that ordering a municipal entity to join a housing coalition is
not significantly more intrusive than requiring a municipal entity to rejoin a housing
coalition.
Beyond Garden City joining the Nassau County Consortium, the Plaintiff requests
that, as a member of that coalition, Garden City be enjoined from:
1. Refusing funds from [the Department of Housing and Urban Development],
such as Community Development Block Grants (“CDBG”) and HOME
Investment Partnerships Program (“HOME”) funds, intended for provision of
affordable housing (as defined by the relevant HUD program), in Garden City;
2. Failing to use funds obtained from HUD for affordable housing (as
defined by the relevant HUD program); and
3. Applying residency preferences, such as a preference for current or past
residents of Garden City, to housing programs Garden City participates in as a
member of the Consortium.
(Plfs’ Amended Proposed Judgment, at § IX.)
16
However, the Court finds that these additional obligations of participation in the
Nassau County Consortium go far beyond the rulings in this case and are unnecessary to
achieve the objectives set forth. Accordingly, the Court directs that the Plaintiffs include
in the final judgment the language regarding the Nassau County Urban Consortium that
they include in their Amended Proposed Judgment, without the above-mentioned
additional obligations.
ii.
Construction of Affordable Housing
At the trial, Ismene Speliotis, Executive Director of NYAHC/MHANY,
concluded that it would have been financially feasible to build 45 to 78 affordable
housing units on the Social Services Site under the R-M zone. Using the latter figure, the
Plaintiffs Amended Proposed Judgment requires Garden City to “take all the necessary
steps to ensure” the development of 78 affordable housing units in Garden City within
five years, but specifies that Garden City need not do the building itself. The Plaintiffs
also propose that the housing units “be located within Garden City Public School District
attendance boundaries” and provides that at least 75% of the units must be two-bedroom
units or larger. The Plaintiffs would further obligate the Garden City Defendants to,
among other things, conduct an annual survey of Garden City to identify publicly and
privately owned sites that are viable for residential development, including new
construction or rehabilitation projects. The Plaintiffs would also require Garden City to
give Mhany the right of first consideration if Garden City chooses to sell Garden Cityowned land for the development of the 78 affordable housing units. Finally, the Plaintiffs
propose that Garden City could fulfill its requirements under the judgment if it donated
suitable land for the development of the 78 affordable housing units.
17
The Garden City Defendants counter-propose a requirement that any developer of
multi-family property consisting of 5 or more units in the Village offer at least 10% of the
units at affordable rates. The Garden City Defendants define “affordable housing” as that
for which a family whose income is 40% to 100% of the Nassau-Suffolk Statistical Area
Median Income pays no more than 30% of its income. The Garden City Defendants note
that while this requirement would be similar to the provisions of the Long Island
Workforce Housing Act, New York General Municipal Law § 699, et seq. (“LIWHA”), it
would differ in two respects. First, under the Garden City proposal, a developer would be
required to provide housing for those with lower incomes than does the LIWHA. Indeed,
while the LIWHA requires a developer of five or more units of multi-family housing to
make available 10% of those units to families with, at a maximum, 130% of the NassauSuffolk Area Median Income, the Garden City proposal would limit such units to
families, with a maximum, of 100% of the Nassau-Suffolk Area Median Income.
Second, under the Garden City proposal, a developer could not “buy-out” of this
requirement, as is permitted by the LIWHA.
In the Court’s view, the Plaintiffs’ proposed steps that Garden City must take to
promote the building of the 78 housing units go too far. As this Court previously found,
“‘federal courts should not become zoning boards of appeal to review nonconstitutional
land[-]use determinations by the [C]ircuit's many local legislative and administrative
agencies.’” 2013 WL 6334107, at *26, quoting Zahra v. Town of Southold, 48 F.3d 674,
679-80 (2d Cir. 1995) (quoting Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir.
1986) (alterations in Zahra)).
18
With this principle in mind, the Court finds that the Garden City Defendants’
counter-proposal to require new residential developers to set aside at least 10% of their
units at affordable rates is reasonable, with one caveat. The Court directs that the final
judgment adopt the Plaintiffs’ definition of “affordable housing” “as housing for which a
family whose income is 80% or less of the Nassau-Suffolk Metropolitan Statistical Area
Median Income . . . pays no more than 30% of its income.” (Plfs’ Amended Proposed
Judgment, at § IV(A).) Thus, the Court directs that the Plaintiffs include in the final
judgment the language regarding the construction of “affordable housing” used by the
Garden City Defendants in the Alternative Proposed judgment, but with the Plaintiffs’
definition of “affordable housing.”
4. Appointment of a Fair Housing Compliance Officer
Given that the language regarding Garden City’s duty to promote affordable
housing adopted by this Court is not as far reaching as the Plaintiffs propose, the Court
finds that the appointment of a Fair Housing “Administrator” with the duties described in
the Amended Proposed Judgment is not necessary. Rather, the Court finds that
appointment of a Fair Housing Compliance Officer, as described by the Garden City
Defendants in their Alternative Proposed Judgment, is appropriate. Indeed, while
oversight is appropriate, Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp. 2d
456, 473 (D. Md. 2000)(“The use of special masters to administer relief in fair housing
cases is an accepted practice”), the powers that the Plaintiffs would bestow on the
proposed Fair Housing Administrator are overly broad and unnecessary in light of the
more limited housing relief fashioned by the Court.
19
Thus, the Court directs that the Plaintiffs include in the final judgment the
language regarding appointment of a Fair Housing Compliance Officer used by the
Garden City Defendants in their Alternative Proposed Judgment, including the reporting
requirements and enforcement guidelines. Also to be included is the caveat that the
officer be a third-party independent contractor retained by Garden City, rather than a
current employee of the Village.
5. Funding
In the Plaintiff’s original proposed judgment, they requested that the Court direct the
Garden City Defendants to contribute a total of $1,500,000 to an “Affordable Housing Trust
Fund” to finance the relief ultimately required in the final judgment. In their Amended Proposed
Judgment, the Plaintiffs request an “Affordable Housing Trust Fund,” but remove that figure
without replacing it.
At this time, it is not yet clear what forms of relief will ultimately apply to the Garden
City Defendants, as some of the relief is conditional on Nassau County’s independent choice as
to whether to sell the Social Services Site for residential development. The only mandatory
affirmative injunctive relief is the passage of a Fair Housing Resolution; implementation of Fair
Housing Training; and employment of a Fair Housing Compliance Officer. The other forms of
relief – rezoning the Social Services Site, joining the Nassau County Urban Consortium, and the
enforcement of affordable housing requirements for new developers in Garden City – are only
triggered if the County does not announce plans to sell the Social Services Site for residential
development within a year of the date of the judgment.
The Court directs that the Plaintiffs’ include in the final judgment a directive to Garden
City to take reasonable measures to fund the relief required by that judgment.
20
C. Miscellaneous Directives in the Final Judgment
Pursuant to Fed. R. of Civ. P. 54(d)(2)(B), the Plaintiffs will have fourteen
days from the date the judgment is entered to file a petition for attorney’s fees and costs. See 42
U.S.C. § 3613(c) and 42 U.S.C. § 1988(b). The Court directs the Plaintiffs to include in the final
judgment such a directive. The Court also directs the Plaintiffs to include in the final judgment
the language in Section XVII of their Amended Proposed Judgment as it relates to the retention
of jurisdiction over the judgment by this Court.
II.
CONCLUSION
For the foregoing reasons, within ten days of the date of this order, the Plaintiffs are
directed to submit a proposed final judgment in accordance with the terms set forth in this
decision and order. The Defendants shall then have ten days to file objections or an alternative
proposed judgment. The Court will subsequently enter a final judgment.
Absent further negotiation by the parties as to the terms of the judgment, the
judgment must include, as described herein, (1) a prohibitory non-discrimination
injunction; (2) Fair Housing Training; (3) a directive to Garden City to pass a Fair
Housing Resolution; (4) appointment of a third-party Fair Housing Compliance Officer by
the Village; and (5) expenditure of reasonable sums to fund the relief required by the
judgment. The duties imposed by this mandatory relief shall expire within four years of
the date from the judgment, except for the prohibitory injunction which has no time
limitation.
The judgment must also include a directive that, if Nassau County announces the sale of
the Social Services Site within one year of the date of the judgment, then Garden City shall begin
the process of rezoning the Social Service Site from R-T to R-M controls. If Nassau County
21
does not make such an announcement, Garden City shall also be required, as described herein,
to (1) join the Nassau County Urban Consortium and (2) enforce certain affordable housing
requirements for new developers in Garden City. The duties and obligations imposed
by this conditional relief shall expire within five years from the date of the judgment.
Finally, as previously stated, the judgment shall also include, a date for the Plaintiffs to
move for attorneys’ fees and the retention of jurisdiction by this Court.
SO ORDERED.
Dated: Central Islip, New York
March 17, 2014
___Arthur D. Spatt_______________________
ARTHUR D. SPATT
United States District Judge
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?