Municipal Silence Leads to Successful Fair Housing Act Claim

On April 13, 2015, the City Council referred SBS's application to both the City Planning Board and the County Planning Board to obtain the recommendations of each board. On May 11, before hearing from either of the Planning Boards, the City Council conducted a public hearing on the application. On May 14, the County Planning Board recommended disapproval. Four days later, the City Planning Board, by a vote of 5-1, recommended disapproval.

During this time period, a new Adaptive Reuse District (ARD) law for the city was in draft form. The ARD law would have permitted creating a new district, and new development guidelines, for former schools and churches and other parcels associated with public and quasi-public use. On May 27, 2015, the Chair of the County Planning Board asked the City Council to resubmit SBS's application for reconsideration because, according to the Chair, the County Board had incorrectly believed that the site could be considered under the ARD law. Nevertheless, the following day, on May 28, the City Council voted 5-1 against the PDD application.

Two months later, the City Council approved the ARD law, but the law was drafted to apply only to parcels under two acres in size; SBS's parcel is larger than that. On July 30, 2015, SBS brought an action alleging a violation of the Fair Housing Act and seeking an order directing approval of its application to establish housing for people with disabilities at the former elementary school site. The city moved to dismiss for failure to state a claim.

The Court's Opinion

In denying the city's motion to dismiss, the court started by rejecting the city's arguments that SBS's clients were not “handicapped” within the meaning of the Fair Housing Act, and that the proposed facility did not constitute a “dwelling” for purposes of the statute. The court concluded that the complaint's allegations were sufficient to give SBS the opportunity to provide evidence that the mental illnesses suffered by its clients met the criteria of the Fair Housing Act and the ADA (Americans with Disabilities Act). Similarly, the court concluded that the complaint adequately alleged that the facility would be used for housing.

The court then turned to SBS's motion for a preliminary injunction. In finding that SBS had established a likelihood of success on the merits, the court focused on SBS's disparate treatment claim. Before getting to what it regarded as the heart of the case, the court rejected SBS's contention that the city's approval of other actions constituted proof of intentional discrimination against the disabled.But the court found “unusual” the suggestion made by some council members that the council should delay acting on SBS's application until the city adopted the ARD law, even though the council ultimately acted on SBS's application according to its ordinary procedures and timetable.

The court's primary focus, however, was on the City Council's failure to “describe the reasoning and logic behind the denial of SBS's application.” At the hearing on SBS's application, members of the community spoke in opposition, sometimes based on improper generalizations about mentally ill persons. Although no members of the council endorsed any of these community comments, the court concluded that the city's failure to articulate a rationale for its decision demonstrated that “improper animus against the disabled individuals was a significant factor in the [council's] decision.”

Once the court concluded that SBS had established a substantial likelihood of success on the merits, the court immediately concluded that SBS was entitled to a preliminary injunction requiring the city to approve SBS's application to establish a PDD at the site. The court acknowledged that SBS would still be required to submit a final site plan for approval, but warned the city not to impose conditions other than those consistent with the criteria delineated in the city's code.

Implications

The court's opinion was peculiar in two respects. First, it drew strong inferences from a local legislature's failure to articulate reasons for its decision. Ordinarily, legislative bodies need not provide reasons for failure to act on legislative proposals. Moreover, not all members of the legislative body need have the same reasons for the decisions they make. To draw such a strong inference from legislative silence raises questions about how a municipality must act when legislators can agree on an action, but not on the reasons for the action.

Second, the court awarded SBS a preliminary injunction that essentially granted it all the relief it ultimately wanted without ever making a determination on the merits of the case, beyond finding a “substantial likelihood” of success on the merits. If followed in other cases, these two aspects of the court's decision could have significant impact for municipal zoning decisions.

Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of this newsletter.