Appeals Court Upholds Ruling that Village of Garden City Intentionally Discriminated By Zoning Out Affordable Housing; Nassau County Must Now Stand Trial for Affordable Housing Steering Policy

HEMPSTEAD, N.Y., WASHINGTON, D.C., NEW YORK, N.Y. – On March 23, 2016, the United States Court of Appeals for the Second Circuit confirmed that the Village of Garden City in Long Island intentionally discriminated under the Fair Housing Act, the United States Constitution, and other civil rights statutes when it enacted an exclusionary zoning ordinance in 2004 in the face of race-based opposition to the prospect of affordable housing. The appeals court also reversed the lower court’s dismissal of Nassau County, Long Island from the case, ordering that the County must now stand trial for its policy of “steering” affordable housing to census blocks largely populated by African Americans and Latinos.

The plaintiffs in this decade-long legal battle are New York Communities for Change Inc., a not-for-profit membership organization devoted to improving the quality of life for members of low income communities in New York, and MHANY Management Co., a not-for-profit community-based developer of affordable housing.

In 2004, Garden City was considering a zoning proposal that would have made affordable housing possible on a Nassau County-owned site that was for sale in the Village. When confronted with racially-tinged opposition to affordable housing, the Village rezoned the site to exclude multi-family housing.

Judge Rosemary S. Pooler’s opinion for the Second Circuit panel affirms U.S. District Court Judge Arthur D. Spatt’s determination, after an 11-day trial, that Garden City’s exclusionary zoning ordinance was enacted with discriminatory motives.

According to the Second Circuit, “[t]he tenor of the discussion” at the Village’s public hearings and in the community showed that Village residents’ opposition to fair housing, “though not overtly race-based, was directed at a potential influx of poor, minority residents.”

Judge Pooler described the public outcry against affordable housing in Garden City as “eerily reminiscent” of that in another Second Circuit case: the landmark 1987 decision in United States v. Yonkers Board of Education, recently portrayed in the HBO miniseries “Show Me a Hero.” The Court’s analysis of the “striking” parallels between the two cases highlights that while discrimination in the social and economic mainstream of American life remains widespread, it is often masked in more subtle forms: the citizens who spoke at public hearings in the Yonkers case used explicit racial language; Garden City residents used “code words” to mask their bias. Litigation remains a powerful tool to combat this kind of discrimination.

The Second Circuit also reversed the district court’s dismissal of Nassau County, Long Island from the case, in 2012, before Garden City stood trial. The district court failed to consider the plaintiffs’ claim that the County was deliberately “steering” affordable housing to low-income, majority-minority communities, in violation of Section 804(a) of the Fair Housing Act, the Second Circuit held.

Nassau County admitted in documents submitted to HUD between 1995 and 2010 that it “targets its comprehensive community development efforts in a number of lower income and minority areas” and provides funding “to local governments and non-profits to acquire sites exclusively in low and moderate-income census tracts,” the Second Circuit observed. The district court must now determine whether Nassau County’s “steering” practices run afoul of the Fair Housing Act.

These kinds of steering policies, working alongside persistent opposition to affordable housing by predominantly white communities, are two of the greatest factors contributing to entrenched segregation in affluent suburban counties in New York, such as Nassau and Westchester, and throughout the United States. The Second Circuit’s decision reaffirms that while residential segregation is still pervasive, its causes can be routed out and successfully challenged when groups like NYCC and MHANY have the courage to take action.

Kristen Clarke, president and executive director of co-counsel, the Lawyers’ Committee for Civil Rights Under Law, stated: “Racial segregation and housing discrimination stand as long and intractable problems in Garden City and across Long Island. This decision underscores the central role of the Fair Housing Act to help combat that discrimination in order to provide equal housing opportunity for all.”

Co-counsel Joseph Rich, co-director of the Lawyers’ Committee’s Fair Housing and Community Development Project, added: “This is an extremely important case that was brought to break down discriminatory barriers to affordable housing erected by Garden City – what the Supreme Court has termed a “heartland” fair housing case designed to target zoning laws which unfairly exclude minorities from access to high opportunity neighborhoods and which perpetuate residential segregation. The Court’s decision sends an important message to other communities in Long Island and throughout the country that such actions are illegal and cannot continue.”

“This is ruling is historic. Having grown up in African-American communities on Long Island, I always knew that we were locked into certain places. You could visit Garden City but you could not stay,” said Diane Goins, chair of the Long Island Chapter New York Communities for Change. “Now the door has been opened for affordable housing to be built for African-Americans and Latinos in towns like Garden City. This battle took over 10 years, but it will have an unprecedented impact in New York and the nation for decades to come.”

Stanley Brown, lead counsel for the plaintiffs and a partner at Hogan Lovells US LLP in New York City, said: “Garden City has fought this case for eleven years when all they had to do to avoid this litigation was to go back to a zoning classification that their expert had recommended and that their own Board had tentatively adopted. The Second Circuit affirmed that Garden City rejected the original recommended zoning to avoid the possibility of affordable housing occupied by minorities. Too many communities have used zoning for discriminatory purposes and this decision should help municipalities to understand the consequences of such actions. Similarly, Nassau County has a long history of steering affordable housing into majority-minority areas to avoid angering its white constituents. We hope that Garden City and Nassau County will now work with NYCC and MHANY Management to bring affordable housing to Garden City and other communities where it is needed. Truly integrated communities is the goal.”

Ira Feinberg, counsel for plaintiffs and partner at Hogan Lovells US LLP in New York who argued the appeal, said: “The Civil Rights Act of 1968 was enacted almost 50 years ago, but its promise of integrated housing remains a distant dream. The Second Circuit’s decision is a major step forward toward achieving the Act’s promise. It makes clear that communities cannot cloak their efforts to keep minorities out of town by relying on irrational justifications that hide residents’ intent to preserve their segregated enclaves.”

Co- counsel Fred Brewington, who heads the Law Offices of Fredrick K. Brewington in Hempstead, New York, said: “This decision serves notice to Garden City and the County of Nassau that acts of discrimination and exclusion will not go unchallenged. When governments abuse their power and authority there is a price to be paid. We are ecstatic over the careful evaluation done by the Second Circuit Court on behalf of justice and the fight for affordable housing.”

Further inquiries, please contact:

Lawyers’ Committee for Civil Rights Under Law

Stacie B. Burgess

(202) 662-8317

sburgess@lawyerscommittee.org

Hogan Lovells US LLP

Stanley J. Brown, Esq.

(212) 918-3692

stanley.brown@hoganlovells.com

-OR-

Chava Brandriss, Esq.

(202) 637-6558