819 F.3d 581 (2d Cir. 2016)
In 2002 Nassau County faced a budget crisis and decided to sell excess property, including the approximately 25-acre Social Services Site located within the Village of Garden City and zoned P (Public).1 The County asked Garden City to rezone the site so it could be sold to a private developer for at least $30 million.2 Garden City formed a P-Zone Committee, retained the planning firm BFJ, and after more than a year of study and public forums proposed R-M zoning that would have permitted up to 311 multi-family apartment units or 75 single-family homes.3
Public hearings held in January and February 2004 drew strong resident opposition focused on traffic, schools, and the possibility that R-M zoning would allow affordable housing and change the character of the overwhelmingly white village, whose minority population was only 4.1 percent.4 In response, BFJ and the Board of Trustees abruptly abandoned R-M zoning in May 2004 and adopted R-T zoning that restricted multi-family housing to less than 15 percent of the site and only by special permit.5 The Board enacted Local Law No. 2-2004 on June 3, 2004.6
Nassau County then issued an RFP under the new R-T zoning requiring a minimum $30 million bid.7 MHANY (then NYAHC) determined it could not feasibly build affordable housing under R-T restrictions and submitted a non-conforming protest proposal.8 The County awarded the site to Fairhaven Properties for $56.5 million to build 87 single-family homes.9 Plaintiffs later prepared pro formas showing they could have bid competitively under the rejected R-M zoning and that the resulting tenant pool would have been 18 to 32 percent minority.10
On May 12, 2005, ACORN, NYAHC, and individual plaintiffs sued Garden City and Nassau County alleging violations of the Fair Housing Act, Sections 1981 and 1983, and Title VI.11 ACORN disbanded in 2010; MHANY continued the suit and NYCC intervened.12 The district court granted summary judgment to Nassau County in February 2012, conducted an eleven-day bench trial against Garden City in 2013, and on April 22, 2014 entered judgment finding Garden City liable and ordering injunctive relief.13 Both sides appealed.
Whether plaintiffs have Article III standing to challenge Garden City's rezoning decision?14
To establish Article III standing, a plaintiff must show three elements.15 The plaintiff must have suffered an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical.16 The injury must be fairly traceable to the challenged action of the defendant.17 It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.18 Standing under the Fair Housing Act is coextensive with Article III.19 Housing plaintiffs need not show absolute certainty that a project will succeed but only a realistic opportunity to proceed with construction.20
Yes. MHANY prepared four pro formas under the rejected R-M zoning with bids reaching $56.1 million for a project containing 85 percent market-rate units and 15 percent affordable housing.21 This figure was directly competitive with the $56.5 million Fairhaven bid accepted under R-T zoning.22 The competitive bidding position establishes that plaintiffs suffered a concrete injury in the denial of the opportunity to build affordable housing.23
The injury is traceable to Garden City's shift from R-M to R-T zoning.24 Invalidation of the R-T zoning would redress the injury by restoring a realistic opportunity for construction.25 The small 0.7 percent difference between the bids confirms the factual finding of direct competitiveness without requiring undue speculation about hypothetical higher bids.26
Plaintiffs have Article III standing to challenge Garden City's rezoning decision.27
Whether plaintiffs' claims against Garden City and Nassau County are moot in light of the County's decision to construct a courthouse on the Social Services Site?28
Mootness is standing set in a time frame.29 The requisite personal interest must continue throughout the litigation.30 The voluntary cessation doctrine provides an exception.31 A defendant's voluntary cessation of challenged conduct does not moot a case unless the defendant meets the stringent burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.32 Interim relief must have completely and irrevocably eradicated the effects of the violation.33
No. Nassau County announced its courthouse decision only on the eve of summary judgment motions.3435 The County had known of the alleged urgent need since 2004.36 Construction fences appeared only around the time notices of appeal were filed.37 The project remained dormant for years after the County was dismissed at summary judgment.38
These circumstances of suspicious timing demonstrate that the County has not met its formidable burden.39 It is not absolutely clear the challenged conduct of selling the site for private development will not resume.40 The County's history of changing plans in response to litigation developments supports this conclusion.41
Plaintiffs' claims are not moot.42
Whether Garden City's shift from R-M to R-T zoning for the Social Services Site was motivated by discriminatory intent in violation of the Fair Housing Act, Section 1981, Section 1983, and the Equal Protection Clause?43
A plaintiff establishes a prima facie case of disparate treatment under the Arlington Heights factors.44 Animus against the protected group must be shown as a significant factor in the position taken by municipal decision-makers or by those to whom they were knowingly responsive.45 The analysis considers impact, historical background, sequence of events, procedural and substantive departures, and legislative history.46 Once a prima facie case is made the burden shifts to the defendant to proffer a legitimate non-discriminatory reason.47 The plaintiff must then prove that discrimination was a motivating factor.48 The defendant may prevail only by showing it would have taken the same action on permissible grounds alone under a mixed-motive analysis.49
Yes. After more than a year of consistent R-M recommendations by BFJ and the P-Zone Committee, Garden City abruptly shifted to R-T zoning in a matter of weeks.50 This followed public hearings where residents voiced opposition to multi-family housing.51 Residents used code words about preserving the character and flavor of the overwhelmingly white village.52
They expressed concerns over affordable housing bringing in undesirable residents and fears of changing demographics.53 Garden City officials understood these coded objections as race-based.54 The village's minority population was 4.1 percent and affordable housing was absent.55 The shift occurred despite earlier dismissals of traffic and school concerns as irrational.56
Even accepting legitimate concerns about traffic and townhouses as partial motives, the mixed-motive analysis shows the decision would not have been made absent the discriminatory animus.57 The alternative rationales were insufficiently weighty and unsupported by the record.58
Garden City's shift from R-M to R-T zoning was motivated by discriminatory intent in violation of the Fair Housing Act, Section 1981, Section 1983, and the Equal Protection Clause.59
Whether Garden City's adoption of R-T zoning instead of R-M zoning produced a disparate impact on minority groups in violation of the Fair Housing Act?60
Under the Fair Housing Act a plaintiff establishes a prima facie case of disparate impact.61 The plaintiff must show that a facially neutral practice produces a significantly adverse or disproportionate impact on persons of a particular race.62 The defendant must then prove the practice is necessary to achieve one or more substantial legitimate nondiscriminatory interests.63 After that showing the plaintiff bears the burden under 24 C.F.R. § 100.500(c)(3) of proving that those interests could be served by another practice with less discriminatory effect.64
Yes. The original R-M zoning would have created a pool of potential renters 18 to 32 percent minority.65 The R-T zoning largely eliminated the potential for affordable rental units that minorities were disproportionately likely to need.66 This change perpetuated segregation in a village where minorities comprise only 4.1 percent of the population.67
Garden City identified legitimate interests in reduced traffic and townhouse development.68 The district court applied the incorrect burden-shifting framework by requiring Garden City rather than plaintiffs to prove the absence of a less discriminatory alternative.69 Remand is required for application of the proper HUD standard.70
Garden City's adoption of R-T zoning produced a disparate impact on minority groups, but the liability finding is vacated and remanded for application of the correct burden-shifting framework.71
Whether Nassau County bears legal responsibility for Garden City's rezoning decision under theories of approval or failure to intervene?72
A county may be held liable for a municipality's discriminatory zoning.73 The county must have had legal authority to intervene.74 County officials must have known of the discriminatory practices.75 The county must have failed to exercise that authority.76 Liability requires more than speculation about the effectiveness of advisory powers.77 Liability cannot rest on the mere possibility of override when the municipality can act unilaterally.78
No. The Nassau County Planning Commission issued a report approving R-T zoning rather than disapproving it under N.Y. Gen. Mun. Law § 239-m.7980 Garden City's Board of Trustees adopted the zoning unanimously.81 Any advisory disapproval could have been overridden by a majority-plus-one vote.82
The County lacked clear legal responsibility to override Garden City's zoning for a private developer's project.83 New York precedent permitting overrides applies to county-owned land or public functions, not to sales to private parties pursuing their own endeavors.84 Any causal role for the County is too tenuous to support liability.85
Nassau County does not bear legal responsibility for Garden City's rezoning decision.86
Whether Nassau County's policies regarding the siting of affordable housing violate the Fair Housing Act or Title VI of the Civil Rights Act?87
Section 804(a) of the Fair Housing Act prohibits making housing unavailable because of race under both discriminatory intent and disparate impact theories.88 Title VI prohibits discrimination in programs receiving federal funding.89 Claims under these provisions require factual development and legal analysis by the district court in the first instance before appellate review.90
No. The district court granted summary judgment to Nassau County on claims related to the Social Services Site rezoning.9192 The court did not address plaintiffs' separate allegations that the County steered affordable housing to low-income majority-minority communities while placing elderly housing in majority-white areas.93 These allegations are documented in HUD filings from 1995 to 2010.94 Because the district court failed to consider these factual allegations under Section 804(a) and Title VI, the claims must be remanded for initial resolution rather than resolved on appeal.95
The district court did not address whether Nassau County's policies regarding the siting of affordable housing violate the Fair Housing Act or Title VI, requiring remand for consideration in the first instance.96