The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This lawsuit arises out of contentions by Eastern Paralyzed
Veterans Association, Inc. ("EPVA" or a "plaintiff") and Long
Island Housing Services, Inc. ("LIHS" or a "plaintiff")
(collectively, the "plaintiffs") that Lazarus-Burman Associates
("LBA" or a "defendant"), Jerome Lazarus ("Lazarus" or a
"defendant"), Jan Berman ("Berman" or a "defendant"), L.B.
Mitchel Field, Inc. ("Mitchel Field" or a "defendant"), L.B.
Mitchel Field Associates, L.P. ("Mitchel Field Associates" or a
"defendant") (collectively, the "Lazarus-Burman defendants"), and
Simplex Industries, Inc. ("Simplex" or a "defendant")
(collectively, the "defendants") constructed a 438-unit
senior-citizen housing development, The Meadows at Mitchel Field
("The Meadows"), in violation of the accessibility requirements
of the Fair Housing Act of 1986 as amended, 42 U.S.C. § 3601 et.
seq. (the "FHA") and the regulations promulgated thereunder.
Presently before the Court are: (1) the defendants' motion to
dismiss pursuant to 12(b)(1) of the Federal Rules of Civil
Procedure ("Fed.R.Civ.P.") based on the plaintiffs' alleged lack
of standing to sue; and (2) a motion to dismiss by Simplex,
pursuant to Rule 12(b)(1), based on an allegation that the
statute of limitations has expired on the plaintiffs' action.
The following facts are taken from the complaint. In the early
1990's, LBA purchased a 20-acre parcel of land from Nassau County
for the sum of $5,000,000. LBA intended to build The Meadows, an
affordable housing development for people over the age of 62,
through the Town of Hempstead's "Golden Age" program. Under the
Golden Age program, the Town of Hempstead offered real estate tax
abatements that translated into lower monthly carrying costs for
purchasers of units at The Meadows. The program also permitted
special high-density zoning.
In 1996, LBA submitted floor plans for The Meadows to the Town
of Hempstead Department of Buildings. The Chief Buildings
Inspector approved the plans on or about October 31, 1997.
Thereafter, the Lazarus-Burman defendants built The Meadows using
pre-fabricated modular units designed and constructed by Simplex.
The plaintiffs contend that the completed units at The Meadows
are not accessible to people who use wheelchairs, because: (1)
every ground-floor unit has three steps leading to the entrance
door; (2) the thermostat in every unit is above the accessible
reach of a person sitting in a wheelchair; (3) in all of the "C
units," a door into the bathroom and the door into the storage
room are only 28-inches wide; (4) in all of the "B units," the
door to the walk-in closet in bedroom # 1 is 24-inches wide; and
(5) in all of the "A units," one of the doors to the bathrooms is
28-inches wide.
EPVA is a not-for-profit corporation with over 2,000 members
who live throughout the northeastern United States, including the
New York City area and Nassau and Suffolk Counties. All of EPVA's
members are veterans of the United States armed forces and are
victims of spinal cord injuries, and almost all of EPVA members
use a wheelchair. The complaint describes EPVA's mission as
follows:
Among EPVA's purposes are to assist its members and
other individuals with disabilities in leading full,
active, and productive lives; to assure its members
proper and dignified medical care, and effective
reconditioning and rehabilitation; and to assure its
members and other individuals with disabilities have
full access to housing, transportation, employment,
recreational facilities, and other facilities open to
persons without disabilities. Toward these ends, EPVA
assists and cooperates with both governmental and
private entities in making their facilities
accessible to persons with disabilities, including
wheelchair users. Where necessary, EPVA has brought
litigation to assure compliance with federal, state
and local laws mandating access for persons with
disabilities.
The complaint also describes LIHS:
7. . . . [LIHS] is a private not-for-profit fair
housing advocacy and enforcement agency servicing
Nassau and Suffolk Counties. Its primary objectives
are to promote racial and economic integration, to
reduce and eliminate housing discrimination, to
promote equal housing opportunities, and to promote
the availability of affordable and accessible
housing. LIHS pursues these goals through counseling
clients in such areas as fair housing rights and
resources, landlord/tenant rights, government
assisted programs and homelessness prevention, as
well as mortgage default, pre-purchase and rental
strategies. LIHS promotes fair housing enforcement
and voluntary compliance with fair housing laws by
conducting fair housing investigations, including
testing, providing education and outreach for housing
consumers and industry related providers and serving
as a clearinghouse for information.
The following factual allegations are taken from affidavits
submitted to the Court in conjunction with the motions to
dismiss. See Antares Aircraft v. Federal Republic of Nigeria,
948 F.2d 90, 96 (2d Cir. 1991) ("On a motion under [Rule]
12(b)(1) challenging the district court's subject matter
jurisdiction, the court may resolve disputed jurisdictional fact
issues by reference to evidence outside the pleadings, such as
affidavits."), vacated on other grounds, 505 U.S. 1215, 112
S.Ct. 3020, 120 L.Ed.2d 892 (1992).
In order to purchase a unit at the Meadows, individuals must
show proof that they are over the age of 62 and that their income
does not exceed $45,000 for single persons or $55,000 for couples
(see Burman affidavit ¶ 4). As per the Town of Hempstead's
requirements, two-bedroom units on the second floor could not
sell for more than $107,000, and two-bedroom units on the first
floor could not sell for more than $112,000 (see Burman
affidavit ¶ 4).
The Lazarus-Burman defendants claim that at the time The
Meadows units were sold, a handicap package was offered to all
prospective buyers (see Burman affidavit ¶ 8). According to the
Lazarus-Burman defendants, only two prospective buyers inquired
about the package, and none of the ultimate buyers purchased the
handicap package (see Burman affidavit ¶ 9). The Lazarus-Burman
defendants also state that none of the existing unit owners at
The Meadows has asked for the handicap package (see Burman
affidavit ¶ 10). Burman maintains that one unit owner requested a
ramp be built after she had moved into her unit, and Burman
claims that he built the ramp at his own expense (see Burman
affidavit ¶ 11).
LIHS alleges that on or about November 13, 1997, Louis
Ponticello ("Ponticello"), an individual with a disability,
informed LIHS that he had visited The Meadows Sales Office to
inquire about purchasing a home, and he was concerned that none
of the units was accessible to wheelchairs (see Santantonio
affidavit ¶ 5). In response to Ponticello's inquiry, Michelle
Santantonio ("Santantonio"), the Executive Director for LIHS,
"conducted phone testing to [The Meadows] Sales Office to
determine whether persons with disabilities were being denied the
opportunity to purchase homes at [The Meadows]" (Santantonio
affidavit ¶ 6). Santantonio claims that during a telephone call
to The Meadows Sales Office on November 24, 1997, she was
"informed that there were no accessible apartments for persons
with disabilities, and that the development was for active
seniors" (Santantonio affidavit ¶ 7). Santantonio notes that
Ponticello was not eligible for The Meadows because he did not
meet the age requirement (see Santantonio affidavit ¶ 8).
Santantonio also claims that Nassau Suffolk Legal Services
("NSLS") relayed to her complaints they had received from
residents and prospective purchasers at The Meadows who wished to
modify the units in order to make them accessible to people with
disabilities (see Santantonio affidavit ¶ 10). NSLS told
Santantonio that The Meadows had advised one resident that she
would have to pay a sum of $2500 to have a ramp installed (see
Santantonio affidavit ¶ 10). Santantonio also claims that several
individuals with disabilities informed NSLS that the sales staff
at The Meadows attempted to dissuade them from purchasing units
(see Santantonio affidavit ¶ 10).
According to Santantonio:
LIHS spends a significant amount of its staff time
and resources on counseling clients on a wide array
of housing issues ranging from mortgage default to
promoting equal opportunity for persons with
disabilities to obtain housing. From April 1999
through June 1999 LIHS, during its investigation of
[The Meadows], had to layoff members of its
investigative staff due to budgetary constraints. . .
. The inaccessibility of [The Meadows] has resulted
in a significant diversion of resources at a time in
which LIHS was experiencing constraints on staffing
and time to further its mission. LIHS' primary
mission as an enforcement, advocacy and counseling
agency to promote racial and economic integration was
frustrated as its energies and time were diverted to
the technicalities of accessibility guidelines for
new construction.
(Santantonio affidavit ¶¶ 23, 25).
In January 1999, Santantonio contacted Brian Black ("Black"),
the Director of Building Codes and Standards at EPVA's Buffalo
office, regarding what she believed to be violations of the FHA
at The Meadows (see Black affidavit ΒΆ 2). Black and Santantonio
reviewed The Meadows floor plans, which they obtained from the
Town of Hempstead's Buildings Department, and visited The Meadows
where they examined the interior and exterior of the units ...