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Mhany Management Inc., Vic Devita, and Francine Mccray v. County of Nassau

February 15, 2012

MHANY MANAGEMENT INC., VIC DEVITA, AND FRANCINE MCCRAY,
-AND- PLAINTIFFS, NEW YORK COMMUNITIES FOR CHANGE, INC.,
INTERVENOR - PLAINTIFF,
v.
COUNTY OF NASSAU, INCORPORATED VILLAGE OF GARDEN CITY, AND GARDEN CITY BOARD OF TRUSTEES, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

In 2005, several individual plaintiffs and organizations commenced a lawsuit against the Defendants the County of Nassau (the "County Defendant"), the Incorporated Village of Garden City, and the Garden City Board of Trustees (collectively, the "Garden City Defendants"). Briefly, the Plaintiffs allege that the Defendants discriminatorily re-zoned two parcels of Nassau County-owned land that were located in Garden City to prevent the building of low- and middle-income housing on that site. The Plaintiffs further allege that this decision was part of a long-standing racially discriminatory policy maintained by the Defendants. Based on these allegations, the Plaintiffs assert claims pursuant to the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42 U.S.C. § 1983; and 42 U.S.C. § 2000d et seq. In response, the Defendants deny any wrongdoing, and assert that they have no racially discriminatory policies. Six years have now passed since the suit's initial filing, and there have been dozens of depositions, the exchange of thousands of documents, expert analyses and thousands of hours of attorney time.

Now pending before the Court is a series of motions. First, both the County Defendant and the Garden City Defendants have separately moved, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, for summary judgment dismissing the entirety of both the Plaintiffs' amended complaint and the intervenor complaint. In addition, the Intervenor-Plaintiff New York Communities for Change, Inc. ("NYCC") has moved to amend its intervenor complaint to include an additional cause of action that was inadvertently omitted.

I. BACKGROUND

The Court has taken the facts described below from the parties' depositions, affidavits, exhibits, and respective Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 (2d Cir. 2001).

A.Factual Background

1.The Parties

Vic DeVita is a white male who resides in Garden City, New York. (Garden City "GC" 56.1 ¶ 1.) Francine McCray is an African-American female who seeks affordable housing in a racially integrated and diverse area of Nassau County, including Garden City. (GC 56.1 ¶ 2.) The Plaintiff MHANY Management Inc. ("MHANY") is a non-profit community based developer of affordable housing incorporated in New York. (GC 56.1 ¶4.) MHANY was formerly known as New York ACORN Housing Company Inc. ("NYAHC"), which was previously a plaintiff in this action. The Intervenor-Plaintiff New York Communities for Change, Inc. ("NYCC") is a non-profit entity organized under the laws of the State of New York and formed in December 2009. (Nassau County "NC" 56.1 ¶ 4; GC 56.1 ¶ 6.) NYCC is the practical successor to another former plaintiff in this action, the New York Association of Community Organizations for Reform Now ("ACORN"). (NC 56.1 ¶ 6.)

Nassau County ("the County") is a municipal corporation organized under the laws of the State of New York. (NC 56.1 ¶ 1.) The Incorporated Village of Garden City ("Garden City") is a municipal corporation also organized under the laws of the State of New York and located in Nassau County. (NC 56.1 ¶ 2.) The Garden City Board of Trustees ("the Board") is an elected governing body in Garden City, from which the Garden City offices responsible for all development in Garden City derive their power. (NC 56.1 ¶ 3.)

2.Affordable Housing Options in Nassau County

The Plaintiffs' expert Nancy McArdle, who conducted an analysis of racial change and segregation in Nassau County, reports that as of the year 2000, Nassau County was ranked in the top half of top 1% of all counties in the United States for segregation of African-Americans and in the top 10% of all such counties for segregation of Hispanics. (McArdle Decl. ¶ 6.) Specifically, the population of Nassau County in 2000 was 74% white, 10.3% African-American and 10% Hispanic. (Plaintiffs' Amended Statement of Additional Material Facts ("SAMF") ¶ 12.) Minorities comprised 14.8% of all households in Nassau County, but 31.1% of renter households, 41.4% of very low-income households, and 53.1% of non-elderly, very low-income households. (McArdle Decl. ¶ 49.) In Nassau County, family subsidized housing, which serves a predominantly minority population, tends to be located in high-minority areas, while senior citizen housing, which serves a much lower minority population, tends to be located in much lower minority areas. (McArdle Decl. ¶ 52.) Over half of the County's affordable housing units are located in municipalities with minority shares that are over three times the County average, while two-thirds of subsidized housing for senior citizens are located in municipalities with minority shares below the County average. (McArdle Decl. ¶ 53.)

While the County has a persistent need for affordable housing, the County has noted that "affordable housing sponsors are often confronted with strong neighborhood opposition to proposed low and moderate income developments." (SAMF ¶ 244.) The previous Deputy County Executive for Economic Development, Patrick Duggan, testified that "people who don't want people of different races living in their communities and local communities elect their elected officials to do the will of the people." (SAMF ¶ 245.) He further stated that "local municipalities have been demonstrated to use zoning to keep out - to use it as a way to keep people out." (Duggan Dep. at 107:12-20.)

3.Affordable Housing Options in Garden City

Garden City has a population of approximately 21,750 individuals and has approximately 6,480 residences, of which approximately 1,095 are units contained in multi-family dwellings. (GC 56.1 ¶¶ 104-05.) Garden City's population is over 90% white. (SAMF ¶ 1.) As of the 2000 Census Report, minorities comprised 4.1% of the Garden City population, as opposed to 20.3% of the County's population. (McArdle Decl. at ¶ 17.) Between 1980 and 2000, the minority population of the County increased by 105%, while the minority population of Garden City increased by only 31.4%. (McArdle Decl. at ¶ 17.) It is important to note that according to the Plaintiffs' expert, 61% of the Village's African-American population was living in dormitories in 2000, and thus excluding this population significantly alters these statistics and perhaps paints a more realistic picture of Garden City's demographics. If one looked only at people living in households in 2000, and not in group quarters such as dormitories, the minority share of Garden City's population was just 2.6% of the population (versus the 4.1% above), as compared to 19.7% in the County (versus the 20.3% above).

To the east and south of Garden City are the municipalities of East Garden City, which in 2000 was 67% minority, Hempstead, which in 2000 was 84% minority, and Uniondale, which in 2000 was 79% minority. (SAMF ¶ 5.) In 2000, 2.3% of households in Garden City were headed by an African-American or Hispanic person, compared to 15.3% of Nassau County households. (SAMF ¶ 7.) If minorities comprised the same share of Garden City households as they did of Nassau County households, Garden City would have 1,333 African-American or Hispanic households, versus the actual total of 167. (SAMF ¶ 9.) There are "no low- and moderate-income census tracts or block groups in the Village of Garden City." (SAMF ¶ 3.) None of the multi-family dwellings that Barbara K. Miller, the former mayor, identified in Garden City offer affordable housing as an option. (SAMF ¶ 168.) McArdle reported that because of the lower income distributions of minority families, increasing the number of affordable units in a community would increase the number and share of minority households who could afford to live in that community. (McArdle Decl. ¶ 12.)

Former Nassau County Executive Suozzi has stated that "Garden City . . . historically, has been viewed as a community that didn't want to have affordable housing in it." (SAMF ¶ 98.) To that end, Garden City residents have expressed their opposition to affordable housing in Garden City in the past. (SAMF ¶ 174.) Garden City asserts that in the past twenty-seven years it has not received any applications from any developer of affordable housing and in the history of the village has no record indicating that any such application has ever been filed,. (GC 56.1 ¶¶ 106-08.) The Plaintiff disputes this fact based upon: (1) a news article from April 21, 1989, which stated that "a preliminary application [was] submitted . . . by the owners of Doubleday to develop the 18-acres Franklin Avenue property" (Ex. 78 at PM000005); and (2) a news article from May 26, 1989, which contained quotations from Doubleday's owner and developer that he "applied for a building permit under the existing zoning in accordance with which it would build 51 units of affordable housing at the site." (Ex. 38; Ex. 37.) The Garden City Defendants contest the Court's consideration of these articles as hearsay.

In May 2006, the County announced that it intended to sell a parcel of land located in Garden City, the Ring Road site, for the purpose of developing affordable housing in Garden City and Nassau County. (SAMF ¶ 191.) In order for the project to go forward, the Board needed to rezone the site from commercial to multi-family residential. However, Garden City residents expressed opposition to the construction of affordable housing in the town. (SAMF ¶¶ 193-99.) In 2006, Garden City increased the amount of residential space available in its hotel district to allow for the development of more luxury condominiums. (SAMF ¶ 202.) As of May 2011, there were only three areas zoned for multi-family use in Garden City, none of which contain affordable housing. (SAMF ¶ 203.)

4. Allegations of Other Discriminatory Acts in Garden City

In early 1969, the Unitarian Universalist Church of Central Nassau proposed to open a subsidized day care center in Garden City, in which the majority of children served would be African-American. (SAMF ¶ 208.) The proposal led to numerous lawsuits and petitions, in which opponents argued that the center would create traffic problems, reduce property values, and change the character of the neighborhood. (SAMF ¶ 209.) The Plaintiffs also allege that between 1987 and 1989, the Board imposed a moratorium on new construction to gain tighter control over housing development in Garden City. (SAMF ¶ 213.)

As another example of alleged discriminatory acts, in 2004, the New York State Attorney General investigated complaints that Garden City enforced a local requirement limiting the use of its parks to Garden City residents in a racially discriminatory manner. (SAMF ¶ 215.) In a press release dated May 12, 2005, the New York State Attorney General stated that "Garden City park attendants routinely question black non-residents about their residency and refuse them entry into the parks, while permitting white non-residents to enter and use the parks without questioning their residency." (Pls.' Ex. 43.) In the wake of this investigation, Garden City adopted policies and procedures to ensure that local regulations were not enforced in a racially discriminatory manner. (Pls.' Ex. 43.)

5. The County's Real Estate Consolidation Plan

Former County Executive Thomas R. Suozzi began serving his first term in January 2002, at which time the County faced a severe fiscal crisis. (NC 56.1 ¶¶ 18, 20.) Specifically, the County was struggling to address many County facilities that had fallen into disrepair after years of neglect. (NC 56.1 ¶¶ 22-24.) In response to this problem, County Executive Suozzi created a real estate consolidation plan to sell surplus property and maximize the revenue from those sales to invest in refurbishing other County facilities. (NC 56.1 ¶ 25; Cohen Dep. at 16.) County Executive Suozzi appointed Sheldon Cohen as Director of the Office of Real Estate Planning and Development for the County. He retained the real estate consulting firm Insignia ESG to advise the County on how to sell surplus and/or underutilized County property and return the profit to the tax rolls. (NC 56.1 ¶¶ 27-35.)

The consolidation plan included a twenty-five acre parcel of land located within the boundaries of Garden City, which housed the Nassau County Supreme Court, County administration buildings, and parking facilities (hereinafter "the Social Services site").

(GC 56.1 ¶ 8; NC 56.1 ¶ 38.) At this time, the Social Services site was designated as a "Public P-Zone" under Garden City's zoning code and thus only permitted buildings owned by governmental entities for governmental purposes. (GC 56.1 ¶ 13; NC 56.1 ¶ 37.) The County represents that in selling the Social Services site, its "only concern" was maximizing revenues from the sale of the property and, therefore, it asked Garden City to re-zone the property in a manner consistent with that goal. (NC 56.1 ¶¶ 39-43, 57; GC 56.1 ¶¶ 11, 14.) County Executive Suozzi testified that it was his understanding that zoning which permitted multi-family housing and upscale units would maximize revenue. (NC 56.1 ¶¶ 44-45.) Suozzi further stated that he did not want single-family homes on the Social Services site because multi-family housing would fetch a higher purchase price. (NC 56.1 ¶¶ 47-48.) However, Suozzi did not want to build affordable housing on the Social Services site, but rather housing similar to "The Wyndham," an upscale apartment complex located in Garden City that exceeds six stories, as he felt that this type of housing would garner a higher sale price. (NC 56.1 ¶¶ 49-53.)

6. The Re-Zoning of the Social Services Site

Though the County asked Garden City to re-zone the Social Services site, it maintains that Garden City and its Board possessed the sole authority to make zoning determinations over the construction, location and usage of buildings within Garden City, including real property owned by the County located within Garden City. (NC 56.1 ¶ 54.) Plaintiffs dispute this assertion, arguing that (1) the County initiated the re-zoning process;

(2) the County "touted" the fact that it "partnered" with Garden City in that process; and

(3) the County admits that it failed to engage in serious negotiations with Garden City regarding the process. (Pls.' NC Resp. at 2-3.)

In June 2002, Garden City created a sub-committee (hereinafter "the Committee") which was comprised of three members of the Board - Peter Bee, chair of the Committee, Gerard Lundquist and Peter Negri. The Committee was charged with retaining a planner to review zoning options for the Social Services site, (GC 56.1 ¶ 15; NC 56.1 ¶ 58.) The Committee was also given the task of reviewing the proposed zoning options and making recommendations to the Mayor and the Board. (NC 56.1 ¶ 58.) On recommendation of the Committee, Garden City retained Burkhurst Fish and Jacquemart (hereinafter "BFJ") as its planners. (NC 56.1 ¶ 59; GC 56.1 ¶ 16.)

In September 2002, Garden City Village Administrator Robert Schoelle, Jr. wrote to County Executive Suozzi to advise him that any zoning associated with the proposed development should be in accordance with the goals set forth in the Garden City Zoning Code, i.e. consistent with the surrounding neighborhoods in terms of scale and design. (NC 56.1 ¶ 60.) Schoelle further represented that Garden City would cooperate with the County provided that the County "acknowledge the legitimate interests of the Village to control and guide land uses". (NC 56.1 ¶ 61.) At a September 24, 2002 address to the Garden City Chamber of Commerce, County Executive Suozzi mentioned multi-family housing as a possible use if the County sold the Social Services site. (NC 56.1 ¶ 62.)

By memorandum dated October 8, 2002 and addressed to the four Garden City Property Owners Associations, Schoelle stated that the "County Executive's apparent goal is to sell surplus properties and raise the maximum money for the County . . . . However, the Village's goals are not necessarily identical to the County's goals . . . . It is apparent that we realize . . . that the County's and Village's interests could conflict and that the Village will work diligently to protect the character and residential quality of our Village." (NC 56.1 ¶ 63.)

By memorandum dated November 15, 2002, titled "Potential Approach to 'P' Zone Changes," and addressed to the Committee, BFJ recommended that Garden City should borrow from its already existing zoning regulations and apply something similar to the "CO-2" zone, allowing for commercial and office use, as well as residential use on the southern part of the property. (NC 56.1 ¶¶ 64-65.) Specifically, BFJ suggested that the regulations for residential use include a maximum density of one unit per 2,300 square feet of lot area, which would permit as many as 770 units on the property. (NC 56.1 ¶¶ 66-68; SAMF ¶ 39.)

Following an April 18, 2003 meeting with the Committee, Schoelle, Special Counsel John Kiernan, and Superintendent of the Garden City Buildings Department Michael Filippon, BFJ issued a memorandum on April 30, 2003 proposing the creation of the "CO-5" zone, which would include a "multifamily residential, group" (hereinafter "RM") zoning control and ultimately allow for 311 units on the Social Services site. (NC 56.1 ¶¶ 70-73.) Under the proposed zoning, the density would allow garden apartments or townhouses. (NC 56.1 ¶ 73; GC 56.1 ¶ 21.) BFJ memorialized this recommendation in a report entitled "Village of Garden City -- A Zoning Study for Public P District" on May 12, 2003. (NC 56.1 ¶ 76; GC 56.1 ¶ 20.) This study stated that the proposed CO-5 zone for the Social Services site "is seen as a transitional area between existing single-family homes neighborhoods and current commercial development. . . . We propose using the existing RM zoning controls . . . R-M allows 14.5 units per acre. At the Social Services site this would allow a total of 311 units . . . [and] would also allow single-family homes . . . which would allow a total of approximately 75 units." (NC 56.1 ¶ 77.)

On May 2, 2003, Village Administrator Schoelle wrote to Nassau County Real Estate Director Cohen, stating, in part, that "[t]he tentative consolidation proposals are cause to remind you that the Village has building and zoning regulations that should be respected. In particular, we call your attention to . . . the Code of . . . Garden City . . . which requires site plan review and approval . . . It is our belief that the County must comply with the Village's zoning and building regulations and requirements." (NC 56.1 ¶ 75.)

By memorandum dated May 19, 2003 and addressed to Schoelle, BFJ stated that the "contemplated zoning designation would allow office and residential uses . . . . Given the weak office market, the site would most likely be developed for either single-family homes or apartments." (NC 56.1 ¶ 80.) The memorandum further compared the sales value of the property if sold under the single-family home designation, as opposed to the multi-family designation, and concluded that the sales value of the property under the latter designation far exceeded that of the former. (NC 56.1 ¶ 81.) Specifically, the comparison, provided by an appraiser and three local realtors, concluded that the sales value and land value of the property under the multi-family designation would be, respectively, $155.5 million and $31 million dollars, while those figures under the single-family designation would be $86.2 million and $17 million dollars. (NC 56.1 ¶ 81.)

On May 29, 2003, BFJ presented its study to Garden City at a public forum. (NC 56.1 ¶¶ 82-83; GC 56.1 ¶ 25.) On July 9, 2003, BFJ issued a revised version of the study, which again included the proposal that Garden City zone the Social Services site under the "CO-5 zone, which would permit residential development of either 311 apartment units or approximately 75 single-family homes." (NC 56.1 ¶¶ 84-85; GC 56.1 ¶ 31.) According to the Plaintiffs, R-M zoning controls would permit the construction of affordable housing developments. (Pls.' GC Resp. at 3.) On August 19, 2003, County Executive Suozzi, Cohen and other County personnel met with the Committee and Frank Fish of BFJ to discuss the County's concerns with the rezoning proposal; specifically, County Executive Suozzi stated that the County wished to maximize the sale of the land and therefore desired a density of at least 400 more apartment units. (NC 56.1 ¶¶ 86-87.)

After meeting with the Committee on September 29, 2003, BFJ reported via memorandum that the Committee favored residential development and, specifically, the RM designation. (NC 56.1 ¶¶ 87-88.) Several reasons were stated for this preference, including the ability to "Afford both young and older Garden City residents the ability to either establish themselves as homeowners in Garden City or remain in Garden City after their home may be sold; Transition between single-family housing and the County office buildings . . . ; Reduce the traffic generation . . . ; [and] Moderate impacts on the public school system." (NC 56.1 ¶ 89.)

On October 17, 2003, a notice was placed in the Garden City News entitled, "Tell Them What You Think About the County's Plan for Garden City," which stated:

Where is the Benefit to Garden City? Are We Being Urbanized? . . . The County is asking the Village to change our existing zoning -- P (Public use) ZONE -- to allow the County to sell the building and land . . . now occupied by the Social Services Building, to private developers. Among the proposed plans: Low-density (high-rise?) housing -- up to 311 apartments . . . These proposals will affect ALL of Garden City. (NC 56.1 ¶ 92.) On October 23, 2003, BFJ presented its proposal to Garden City at a second public forum and again stated that single-family homes, townhouses, or apartments would be permitted under the proposed zoning. (NC 56.1 ¶¶ 90-91; GC 56.1 ¶¶ 33-34.)

In a memorandum setting forth the agenda for a November 6, 2003 meeting between BFJ and the Committee, and in a November 10, 2003 memorandum to the Committee, BFJ again confirmed its proposal for R-M zoning in the Social Services site. (NC 56.1 ¶¶ 93-94.) In November 2003, BFJ issued another Zoning Study, its third report, confirming its proposal for the R-M designation that allowed for a possible 311 apartment units on the Social Services site. (NC 56.1 ¶ 95.) On November 19, 2003, Committee Chair Peter Bee wrote a letter on the Committee's behalf endorsing the recommendations contained in BFJ's November 2003 Zoning Study, including that which proposed 311 multi-family apartment units on the Social Services site. (NC 56.1 ¶ 96.)

On January 8, 2004, Garden City held a public hearing to consider a proposed local law that would rezone the P-Zone under the CO-5 zone, which would permit office and courtroom use, as well as both single family and multi-family units. (GC 56.1 ¶¶ 41-43.) At the meeting, residents voiced concerns that multi-family housing would generate more traffic, parking problems, and schoolchildren. (See generallyPls.' Ex. 53.) Frank Fish of BFJ informed the residents that the County had hired a consulting firm to do a full environmental impact statement, which would include a traffic study, and that residents would be invited to attend a "scoping session" after the completion of the statement, at which time they could provide their input. (Pls.' Ex. 53, at 2344-45.)

On January 20, 2004, the Eastern Property Owners' Association held a Board Meeting, at which time Trustee Bee discussed BFJ's recommendation for the Social Services site. (SAMF ¶ 63.) The summary of the meeting reports that "Trustee Bee answered many questions from the floor" and, in doing so, expressed the opinions that "Garden City demographically has a need for affordable housing" and that "he would keep an open mind but he still felt the recommended zoning change were appropriate." (Pls.' Ex. 66 at 3.) The summary further states that "County Executive Suozzi was reminded that he pledged not to do anything that Garden City residents objected to. Mr. Souzzi's [sic] commitment still stands." (Pls.' Ex. 66 at 3.)

On February 5, 2004, County Executive Suozzi attended a public hearing for the residents of Garden City, at which time he presented the County's real estate consolidation plan. (GC 56.1 ¶¶ 49-50; NC 56.1 ¶ 98.) County Executive Suozzi stated at his deposition that he wanted Garden City to re-zone the Social Services so as to allow multi-family housing. (NC 56.1 ¶ 99.) The County asserts that County Executive Suozzi spoke at the hearing to persuade Garden City to adopt the zoning plan that maximized County revenues. The Plaintiffs maintain that County Executive Suozzi sought to preserve and defend the RM zoning proposal against changes sought by local residents opposed to the proposed zoning based, in part, on racism. (NC 56.1 ¶ 100; Pls.' NC Resp. at 3; seePls.' Ex. 21, Deposition of Thomas Suozzi (hereinafter "Suozzi Dep.") at 62-63 ("SUOZZI: I think there are some people that are opposed to affordable housing in Garden City based upon racism.").)

Residents at the public hearing voiced their preference for "upscale" housing at the Social Services site. (See, e.g., Pls.' Ex. 54 ("Hearing Tr.") at 2391

("TRUSTEE BEE:

[N]either the County nor the Village is looking to create a so-called affordable housing at that spot. UNIDENTIFIED SPEAKER: Can you guarantee that it won't be in that building? . . . I'm in the Cherry Valley apartments and I'm just concerned about a huge amount of apartments that come on and depress the market for any co-op owner in the Village. How do you guarantee it's going to be upscale . . . ."); id. at 2386 ("UNIDENTIFIED SPEAKER: You say it's supposed to be upscale. SUOZZI: It's going to be upscale. If you sell your $2 million home in Garden City and you don't want to take care of that lawn anymore, you can go into . . . who lives in Wyndham for example? It's a very upscale place.").)

The residents further voiced their opposition to multi-family housing at the Social Services site. (See, e.g.,Hearing Tr. at 2404 ("BRIAN GEMMEL [to SUOZZI]: "I don't think you are hearing a lot of the people. We're not against residential, we're against multi-level residential."); id. at 2407 ("SUOZZI: You would probably like to see single family housing I presume. UNIDENTIFIED SPEAKER: Single family. (Applause)."); id. at 2407-08 ("GAIL MADIGAN: I moved here from Brooklyn so that when I walked out of my house I did not turn to my left and see apartment buildings."); id. at 2408 ("SUOZZI: Mayor out of respect, let me stipulate the facts here. The public of Garden City especially from the eastern civic association does not want to see multi-family housing here. They'd rather see single-family housing."); id. at 2409 ("DAVID PICIULO: I don't hear a compelling argument from anyone here tonight as to why we should have multi-dwelling homes. Can we take it out of the proposal?").)

It is undisputed that County Executive Suozzi believed the County could earn the most revenue from a zoning plan that permitted multi-family housing. (NC 56.1 ¶ 102.) County Executive Suozzi clarified at the meeting, however, that "[the County] is absolutely not interested in building affordable housing there and there is a great need for affordable housing, but Garden City is not the location." (NC 56.1 ¶ 105.) He further stated that developers would love to build upscale housing in Garden City . . . . We would be willing to put deed restrictions on any property that we sold. The Village would have control of their zoning requirements. We would put on restrictions whatsoever, no ifs ands or buts, that it can't be anything but upscale housing. Put it this way, we generate more revenues for the County by selling it for upscale housing. (NC 56.1 ¶ 106.) It is further undisputed that Trustee Negri felt that "housing occupied by low income minorities" was not consistent with "the existing character of the neighborhood." (Pls.' Ex. 13, Deposition of Peter Negri (hereinafter "Negri Dep.") at 24-25.)

A flyer distributed in Garden City prior to a March 18, 2004 meeting of the Board asked: "WILL GARDEN CITY PROPERTY VALUES DECREASE IF OVER 300 APARTMENTS ARE BUILT AT THE SITE OF THE SOCIAL SERVICES BUILDING?" It further stated:

The Garden City Trustees are close to voting on how to zone this property. They might choose to zone it for multi-family housing (If Senator Balboni's current bill passes in June, as many as 30 of those apartments would be considered 'affordable housing.' According to this bill, 'Affordable workforce housing means housing for individuals or families at or below 80% of the median income for Nassau Suffolk primary metropolitan statistical area as defined by the Federal Department of housing and urban development.' . . . NOT JUST GARDEN CITY INCOMES! . . .) (Pls.' Ex. 32.)

On April 1, 2004, BFJ prepared a document titled "CO-5b Zoning Discussion, Social Services Site," and, under the "Notes for Discussion" section, revised the number of potential multi-family units on the site from 14 units per acre to 10 units per acre, to allow for a maximum of 215 units, versus the prior number of 311. (NC 56.1 ¶¶ 107-08.) On April 22, 2004, BFJ presented this revised proposal to the residents of Garden City. (NC 56.1 ¶ 109; GC 56.1 ¶ 61.)

By memorandum dated May 4, 2004 and addressed to the Board, BFJ proposed eliminating the CO-5b zone altogether, and with it, the potential for multi-family housing on the 21.44 acres of land on the Social Services site located east of County Seat Drive. (NC 56.1 ¶ 110.) Specifically, BFJ stated:

[W]e reviewed the public comments with Robert Schoelle, Michael Filippon and Gary Fishberg. Based upon these discussions we would recommend for your consideration two basic refinements to the recommendations: (1) Elimination of office use for the 101 County Seat Drive area; (2) Provide for multi-family housing in the 101 County Seat Drive area only by special permit and limited to the West Side of County Seat Drive. (NC 56.1 ¶ 111.) BFJ suggested renaming the proposed zoning designation as "Residential-Townhouse" (hereinafter "R-T"), which essentially limited the development of multi-family housing to less than 15% of the Social Services site, and only by special permit. (NC 56.1 ¶ 112.) BFJ's proposed description of the R-T zone defined "townhouse" as a "single-family dwelling unit." (NC 56.1 ¶ 114.)

On May 20, 2004, proposed Local Law No. 2-2004, which deleted the P-Zone and replaced it with CO-5 and R-T districts, the latter of which encompassed the Social Services site, was considered at a public hearing. (GC 56.1 ¶¶ 65-67.) At the meeting, one attendee asked whether Garden City would be "open to affordable housing" or whether it was "going to take litigation." (Pls.' GC Resp. at 9.) An ACORN member noted the need for affordable housing on Long Island and asked that Garden City consider "build[ing] affordable housing in their community." (Pls.' GC Resp. at 8-9.)

By letter dated May 24, 2004 and addressed to Mayor Miller, Cohen wrote:

[T]he County requests that the Village consider applying zoning regulations that would provide more flexibility for development of property consistent with the zoning framework that controls other areas of the Village. By limiting the density as proposed, the Village is severely impacting her County's potential revenue from the sale of this property and as such, impacts the overall Real Estate Consolidation Plan. (NC 56.1 ¶ 119; Resissman Dec. Ex. AQ.) In a memorandum dated June 2, 2004 and addressed to the Board, BFJ expressly stated: "The maximization of profit on land sales was not a zoning criteria for the Village." (NC 56.1 ¶ 120.)

County Executive Suozzi testified that he represented to the Board that he would not go against their wishes regarding plans for the Social Services site, and that regardless of whether Garden City's wishes were motivated by racism, he was not concerned with that in his role as County Executive, but rather concerned with maximizing revenues for the sale of the property. (Suozzi Dep. at 83-84.)

7. Garden City Adopts the R-T Zone for the Social Services Site

On June 3, 2004, the Board officially adopted Local Law No. 2-2004, which rezoned the P District containing the Social Services site to R-T zoning. (NC 56.1 ¶¶ 121-22.) As enacted, Local Law No. 2-2004 limited construction on the Social Services site to one dwelling unit for each 6,000 square feet of total plot devoted to such use. (NC 56.1 ¶ 124.) ACORN representative Ismene Speliotis determined, after reviewing the new zoning, that "it was going to be hard to respond to develop affordable housing given th[e] parameters" in that it "asked for very few housing units . . . [and] a high acquisition price." (Pls.' Ex. 18 (hereinafter "Speliotis Dep.") at 43-44.) She further noted that "while it is not totally impossible to build affordable housing given that zoning, it certainly does not encourage the building of affordable housing." (Speliotis Dep. at 183.)

In July 2004, the County issued Requests for Proposals ("RFPs") for the sale of the Social Services site. (GC 56.1 ¶ 92; NC 56.1 ¶ 128.) Cohen testified that the RFP was drafted to solicit a purchaser consistent with the new zoning rules that were adopted by Garden City. (NC 56.1 ¶ 129.) The RFP stated that the County would not consider bids of less than thirty million dollars. (GC 56.1 ¶ 93; NC 56.1 ¶ 135.) Plaintiffs assert that under this RFP, it would have been virtually impossible to build affordable housing and, therefore, it would have been futile for them to submit an affordable housing response to the RFP that complied with the new zoning. (SAMF ¶¶ 129, 132.) However, former Plaintiff NYAHC contacted the County to work with them on a proposal that would include multi-family affordable housing, and urged it to withdraw or modify the current RFP to require some part of the property to be affordable housing. (SAMF ¶¶ 134-35, 143.) Former Plaintiffs NYAHC and ACORN met with County Executive Suozzi and other County officials to discuss the proposal and the possibility of constructing affordable housing on the Social Services site. (SAMF ¶ 141.) The County did not reissue the RFP. (SAMF ¶ 144.)

Proposals were due by September 10, 2004 at 12:00 noon, with two copies to be mailed to Cohen in Mineola and a third copy to be mailed to Martin Lomazow in Westbury. (GC 56.1 ¶ 94; NC 56.1 ¶ 136.) Applicants were further directed to submit a concept drawing, three bound originals of the proposal, and a good faith deposit of $5,000. (NC 56.1 ¶¶ 137-39.) As of 12:00 noon on September 10, 2004, the County received nineteen bids conforming to the above-mentioned requirements, ranging from $31,070,000 to $56,833,640. (NC 56.1 ¶ 141.)

8. NYAHC Submits a Bid

On September 10, 2004, former Plaintiff NYAHC submitted a six page letter proposal that did not conform to the technical requirements laid out in the RFP. (GC 56.1 ¶ 95; NC 56.1 ¶¶ 143-45; Pls.' NC Resp. at 7.) Specifically, NYAHC proposed leasing the subject property (with an up-front lease payment of $5,000,000) for the development of rental apartments for mixed incomes. (NC 56.1 ¶ 148; Pls.' NC Resp. at 11.) Plaintiffs maintain that NYAHC's proposal did not follow the specifications laid out in the RFP because the RFP made the construction of affordable housing on the Social Services site virtually impossible. (Pls.' Resp. at 8-9.) Specifically, NYAHC's proposal stated:

As the County knows from previous meetings, telephone conversations and correspondence with NYAHC and LI ACORN, NYAHC is unable to respond to the County's Request for Proposals (RFP) of July 2004 related to the 25 County-owned parcel in Garden City (the Parcel) due to the restrictive zoning adopted by the Village of Garden City in connection with the County's sale of the Parcel.

(Pls.' NC Resp. at 8.) At the time of submission, NYAHC had the capacity to pay the $30 million dollar asking price up front and still build affordable housing on the Social Services site, as well as the capacity to pay the County $150 million dollars over thirty years. (Pls.' NC Resp. at 11.)

On November 17, 2004, the County selected Fairhaven Properties, Inc. as the highest bidder for the purchase of the Social Service site with the bid of $56,500,000. (GC 56.1 ¶ 101; NC 56.1 ¶¶ 151-54.)

NYAHC developed four proposals for development at the Social Services site under the R-M zoning designation after the contract was awarded to Fairhaven Properties, Inc., with the percentage of affordable and/or Section 8 housing units out of 311 total rental units ranging from 12.5% to 25%. (SAMF ¶¶ 149-154.) Plaintiffs' expert McArdle evaluated each proposal in conjunction with the racial/ethnic distribution of the available pool of renters and determined that had NYAHC been able to building housing under any of the four proposals in accordance with the rejected R-M zoning designation, the pool of renters likely to occupy all units, including market rate, affordable and Section 8 units, would have likely been between 18% and 32% minority with minority-households numbering between 56 and 101. (McArdle Decl. at ¶¶ 59-61.) McArdle further analyzed the likely racial composition of the pool of homeowners who could afford to purchase units potentially developed by Fairhaven Properties, Inc., based on their proposal as well as available information regarding Garden City property values, and determined that between 3 and 6 minority-households could afford such a purchase. (McArdle Decl. at ¶ 67.)

9. Current Status of the Social Services Site

On January 1, 2010, Thomas R. Suozzi was succeeded by the present County Executive Edward P. Mangano. (NC 56.1 ¶ 310; GC 56.1 ¶ 111.) The Mangano Administration decided to relocate the County's Family Court building, currently located in Westbury, New York, to the Social Services site. (NC 56.1 ¶ 311; GC 56.1 ¶¶ 112-13.) Thus, although the prior County administration planned to sell the Social Services site to a private developer, the site is currently no longer for sale. (NC 56.1 ¶ 320; GC 56.1 ¶ 114.) The County asserts that a primary factor in the decision to build a new Family and Matrimonial Court Complex at the Social Services site is cost, because although moving the building to a new location and renovation will cost approximately the same $100 million, renovation will not "remedy the many deficiencies in the existing building." (NC 56.1 ¶ 324.) The Plaintiffs dispute this assertion and state that it will cost tens of millions dollars more to relocate the Family Court to the Social Services site rather than renovate the existing Family Court site in Westbury. (Pls.' NC Resp. at 19; Carl Schroeter Dep. at 48:9-49:2, 97:5-11.) According to the Plaintiffs, the estimated cost of relocating the Family Court to the Social Services site is between $110 million and $130 million, while the estimated cost of renovating the current Family Court site is between $85 million and $95 million. (SAMF ¶¶ 161-62.) In addition, by building a new Family Court at the Social Services site, the County will lose the revenue it could gain by selling the site. (SAMF ¶ 163.)

10. Nassau County's Status as a HUD Grant Recipient

The United States Department of Housing and Urban Development ("HUD") administers Community Planning and Development Formula Grant Programs ("CPD formula grants"), including the Community Development Block Grant Program ("CDBG") and the HOME Investment Partnerships Program ("HOME"). (NC 56.1 Pt. 2 ¶ 3.) HUD's Office of Community Planning & Development ("CPD") distributes the CPD formula grants to Nassau County as an "Urban County"- one that has a population of 200,000 or more and is certified by HUD as an Urban County Entitlement. (NC 56.1 Pt. 2 ¶ 6.) The Nassau County Office of Community Development ("OCD") is responsible for administering HUD funds to the Nassau Urban County Consortium ("the Consortium"). (NC 56.1 Pt. 2 ¶ 1.)

The Consortium includes participating cities, towns, and villages who agree by a cooperation agreement to apply for HUD funds, including CDBG and HOME funds. (NC 56.1 Pt. 2 ¶ 7.) The Consortium applies for HUD recertification every three years, during which time the County solicits non-participating municipalities to join the Consortium. (NC 56.1 Pt. 2 ¶ 8.) The County also provides the participating communities with the opportunity to "opt out" of the Consortium; those who do not opt out are automatically retained as members. (NC 56.1 Pt. 2 ¶ 9.) Consortium members are considered a "participating jurisdiction" and HUD funds distributed and administered by the County are allocated according to the population and demographics of the participating municipalities. (NC 56.1 Pt. 2 ¶ 11.) Garden City has never participated in, and has never been a member of, the Nassau Urban County Consortium. (NC 56.1 Pt. 2 ¶ 14.)

The County's CPD formula grants are distributed in accordance with the Nassau Urban County Five-Year Consolidated Plan and Annual Action Plan ("Con Plan"), which is prepared by the OCD for the Consortium every five years and serves as the comprehensive housing affordability strategy, community development plan, and submission for funding, including CDBG and HOME grants. (NC 56.1 Pt. 2 ¶¶ 15-16.) The Con Plan governs the County's decision as to which activities and organizations to fund. (NC 56.1 Pt. 2 ¶ 16.) HUD mandates that in preparing a Con Plan that is eligible for HUD funding, the authority must certify that they are "affirmatively furthering fair housing within their jurisdictions." (NC 56.1 Pt. 2 ¶ 29; See 24 C.F.R. § 91.225.) Part of this effort is the identification and subsequent reduction and/or elimination of "impediments to fair housing", and the Analysis of Impediments is included in the Con Plan. (NC 56.1 Pt. 2 ¶¶ 29, 33.) In addition, OCD prepares an annual Consolidated Annual Performance and Evaluation Report ("CAPER"), which requires the County to evaluate its efforts to affirmatively further fair housing on an annual basis. (NC 56.1 Pt. 2 ¶ 33.)

The County points out that it submitted the 2010 Con Plan and Analysis of Impediments to HUD for approval, and has not been notified of any deficiencies or failures to meet federal requirements. Also, the County has continued to receive HUD funding up through and including the present day. (NC 56.1 Pt. 2 ¶ 43.) However, the Plaintiffs dispute any suggestion that a lack of notification by HUD of deficiencies indicates compliance with the federal requirements. (Pls.' NC Pt. 2 Resp. at 17.)

According to the Plaintiffs, the County has a policy and practice of using federal housing funding, including HOME and CDBG funds, to concentrate affordable housing in high minority areas. (SAMF ¶ 231.) The 2005-2009 draft Con Plan anticipated the locations of planned affordable housing developments to include five municipalities with minority shares that are several times the County average. (McArdle Decl. ¶ 55.) Further, affordable housing projects anticipated to be completed in 2010 with the assistance of HUD HOME grants were to be constructed in two municipalities that rank in the top three highest minority municipalities in the County - Roosevelt and New Cassel. (McArdle Decl. ¶ 55.) The County's 1995, 2000 and 2005 Con Plans stated that "Nassau County currently targets its comprehensive community development efforts in a number of lower income and minority areas . . ." (SAMF ¶ 232.)

The County has never evaluated the impact of CDBG or HOME expenditures on racial or housing segregation, nor has it examined how centering the construction of affordable housing in minority communities would impede fair housing. (SAMF ¶ 258.) The County notes, however, that the minority communities targeted for the development of affordable housing have "active programs." (Pls.' Ex. 14, Deposition Transcript of Rosemary Anne Olsen (hereinafter "Olsen Dep.") at 218.)

The County Defendant has devoted a large portion of its Rule 56.1 Statement to describe various aspects of the County's disbursement of federal housing funds, including: the disbursement of CDBG and HOME funding; analyses of impediments to fair housing; establishment of fair housing plans; housing training and education programs and workshops; the County's 10-year plan to end homelessness; the Section 8 Housing Choice Voucher program; and the emergency shelter grant program. It appears the County did this, in part, to establish that affordable housing options do exist in Nassau County in a nondiscriminatory fashion and that it is affirmatively furthering fair housing within its jurisdictions. (See NC 56.1 Pts. 2 and 3; Crean Aff.) For the most part, the Plaintiffs do not dispute any factual allegations in this regard. However, they contest any implication that the preparation and/or existence of these materials and programs indicate that the County's activities comply with its obligations under fair housing law, related civil rights statutes, and federal funding regulations.

B. Procedural History

On May 12, 2005, the Plaintiffs ACORN, NYAHC, and several individual Plaintiffs filed the instant action, which was initially assigned to United States District Judge Leonard D. Wexler. On February 9, 2006, this case was reassigned to United States District Judge Joseph F. Bianco. On March 10, 2006, the County and the Garden City Defendants moved separately to dismiss the action for lack of standing and failure to state a claim. By Memorandum and Order dated July 21, 2006, Judge Bianco denied both motions in their entirety and directed the parties to conduct discovery in accordance with the Individual Rules of United States Magistrate Judge William D. Wall. See ACORN v. County of Nassau, No. 05 Civ. 2301 (JFB) (WDW), 2006 WL 2053732 (E.D.N.Y. July 21, 2006). In March 2009, both the County Defendant and the Garden City Defendants moved for summary judgment.

On March 2, 2010, Judge Bianco recused himself in this case. Thereafter, the case was reassigned to this Court for all further proceedings. Consequently, all pending motions were denied without prejudice and with leave to refile in accordance with this Court's individual motion practice rules. On April 14, 2010, a motion to intervene as plaintiff pursuant to Federal Rule of Civil Procedure 24(b) was filed by NYCC, which the Court subsequently granted on June 15, 2010. On June 30, 2010, NYCC filed its intervenor complaint. On June 25, 2010, Magistrate Judge Wall granted the Plaintiff's request to reopen discovery.

On July 29, 2011, motions for summary judgment were again filed by both the Garden City Defendants and the County Defendant. In addition, on August 26, 2011, the Intervenor-Plaintiff NYCC filed a motion to amend its intervenor complaint, pursuant to Rule 15(a)(2), to include an additional cause of action for violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its rights under the Equal Protection Clause of the Fourteenth Amendment. The motions for summary judgment and the motion to amend are currently pending.

II. MOTIONS FOR SUMMARY JUDGMENT

A.Legal Standard on a Motion for ...


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